Criminal Law - Dlsu 2019

DE LA SALLE UNIVERSITY COLLEGE OF LAW Lasallian Commission on Bar Operations

CRIMINAL LAW Green Notes 2019

Green Notes 2019

Criminal Law

TABLE OF CONTENTS CRIMINAL LAW I GENERAL PRINCIPLES MALA IN SE VS. MALA PROHIBITA APPLICABILITY AND EFFECTIVITY OF THE RPC Generality Territoriality Prospectivity PRO REO PRINCIPLE FELONIES CRIMINAL LIABILITIES AND FELONIES Grave vs. less grave vs. light felonies Aberratio ictus, error in personae, and praeter intentionem Impossible crime Stages of execution Continuing crimes Complex crimes and composite crimes CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY Justifying circumstances Exempting circumstances Mitigating circumstances Aggravating circumstances Alternative circumstances Absolutory causes PERSONS LIABLE AND DEGREE OF PARTICIPATION Principals, accomplices, and accessories Conspiracy and proposal PENALTIES PENALTIES THAT MAY BE IMPOSED AND RETROACTIVE EFFECT OF PENAL LAWS CLASSIFICATION DURATION AND EFFECTS APPLICATION RPC provisions Indeterminate Sentence Law (Act No. 4103) Three-fold rule Subsidiary imprisonment GRADUATION OF PENALTIES ACCESSORY PENALTIES EXECUTION AND SERVICE RPC provisions Probation Law (PD 968, as amended) Juvenile Justice and Welfare Act (RA 9344, as amended) EXTINCTION OF CRIMINAL LIABILITY CIVIL LIABILITY IN CRIMINAL CASES

1 2 3 3 3 3 5 6 6 9 9 10 11 11 14 14 17 18 22 25 31 43 45 45 45 52 53 53 55 57 60 60 66 68 68 69 72 74 74 75 77 78 81

CRIMINAL LAW II CRIMES AGAINST NATIONAL SECURITY AND THE LAW OF NATIONS CRIMES AGAINST FUNDAMENTAL LAWS OF THE STATE CRIMES AGAINST PUBLIC ORDER CRIMES AGAINST PUBLIC INTEREST CRIMES AGAINST PUBLIC MORALS CRIMES COMMITTED BY PUBLIC OFFICERS CRIMES AGAINST PERSONS CRIMES AGAINST PERSONAL LIBERTY AND SECURITY CRIMES AGAINST PROPERTY CRIMES AGAINST CHASTITY CRIMES AGAINST THE CIVIL STATUS OF PERSONS CRIMES AGAINST HONOR QUASI-OFFENSES

84 84 89 94 109 124 129 148 165 180 196 204 206 212

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Green Notes 2019

Criminal Law

SPECIAL LAWS ANTI-ARSON LAW (PD 1613, AS AMENDED BY PD 1744) ANTI-CHILD PORNOGRAPHY ACT OF 2009 (RA 9775) ANTI-FENCING LAW OF 1979 (PD 1612) ANTI-GRAFT AND CORRUPT PRACTICES ACT (RA 3019, AS AMENDED) ANTI-HAZING ACT OF 2018 (RA 8049, AS AMENDED BY RA 11053) ANTI-HIJACKING LAW (RA 6235) ANTI-PHOTO AND VIDEO VOYEURISM ACT OF 2009 (RA 9995) ANTI-PLUNDER ACT (RA 7080, AS AMENDED BY RA 7659) ANTI-SEXUAL HARASSMENT ACT OF 1995 (RA 7877) ANTI-TORTURE ACT OF 2009 (RA 9745) ANTI-TRAFFICKING IN PERSONS ACT OF 2003 (RA 9208, AS AMENDED) ANTI-VIOLENCE AGAINST WOMEN AND THEIR CHILDREN ACT OF 2004 (RA 9262) BOUNCING CHECKS LAW (BP 22) COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002 (, RA 9165, AS AMENDED BY RA 10640) COMPREHENSIVE FIREARMS AND AMMUNITION REGULATION ACT (RA 10591) CYBERCRIME PREVENTION ACT OF 2012 (RA 10175) HUMAN SECURITY ACT OF 2007 (RA 9372) NEW ANTI-CARNAPPING ACT OF 2016 (RA 10883) OBSTRUCTION OF JUSTICE LAW (PD 1829) SPECIAL PROTECTION OF CHILDREN AGAINST ABUSE, EXPLOITATION, AND DISCRIMINATION ACT (RA 7610)

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215 216 217 218 220 221 222 222 223 224 226 228 230 230 233 234 236 236 237 238

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Criminal Law

FUNDAMENTAL PRINCIPLES

AND

GENERAL

DEFINITION OF CRIMINAL LAW Branch or division of law which defines crimes, treats of their nature, and provides for its punishment. Penal laws are those acts of the legislature which prohibit certain acts and establish penalties for their violations; or those that define crimes, treats of their nature and provide for their punishment. SOURCES OF CRIMINAL LAW (1) (2) (3)

The Revised Penal Code Special Laws which amend or apply to the RPC Special Penal Laws

CRIME; DEFINED An act committed or omitted in violation of law forbidding or commanding it.

CRIMINAL LAW I

TWO THEORIES IN CRIMINAL LAW (1)

Classical Theory School of thought followed by the Revised Penal Code. Characteristics: a. The basis of criminal liability is human free will; purpose of penalty is retribution. b. That man is essentially a moral creature with an absolute free will to choose between good and evil, thereby placing more stress upon the effect or result of the felonious act than upon the man, the criminal himself. c. It has endeavored to establish a direct and mechanical proportion between the crime and the liability. d. There is scant regard to the human element.

(2)

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Positivists theory Crime is essentially a social a natural phenomenon, and as such, it cannot be treated and checked by the application of abstract principles of law and jurisprudence nor by the imposition of a punishment, fixed and determined as basis; rather through the enforcement of individual measures in each particular case after a thorough, personal, and individual investigation conduction by a competent body of psychiatrists and social scientists.

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A. GENERAL PRINCIPLES

Laws Violated Revised Penal Code (General Special Laws (General Rule) Rule)

MALA IN SE VS. MALA PROHIBITA Mala In Se

As to Stages in Execution

Mala Prohibita As to Nature

Wrong from its very nature; inherenty evil

Wrong because it is prohibited by statute.

Use of Good Faith Defense Good faith is a valid defense; unless the crime is the result of culpa.

Good faith is NOT a defense.

Criminal intent immaterial.

is

Degree of Accomplishment of the Crime The degree of accomplishment of the crime is taken into account in punishing the offender

The act gives rise to a crime only when it is consummated

As to Mitigating and Aggravating Circumstances Mitigating and aggravating circumstances are taken into account in imposing the proper penalty.

Mitigating and aggravating circumstances are generally NOT taken into account in imposing the proper penalty.

Degree of Participation When there is more than one offender, the degree of participation of each in the commission of the crime is 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 Persons Criminally Liable Penalty is computed on the basis of whether he is a principal offender, or merely an accomplice, or accessory.

stages

of

As to Persons Criminally Liable There are three persons Unless otherwise criminally liable: principal, provided, only the accomplices, and accessories. principal is liable. As to Division of Penalties

Use of intent as an element Intent is an element.

There are three stages: No such attempted, frustrated, and execution. consummated.

The penalty on the offenders is the SAME whether they are merely accomplices or accessories.

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Penalties may be divided into degrees and periods.

There is NO such division of penalties.

MALA PROHIBITA Generally, applies to crimes punishable by special laws. General Rule: Criminal intent is NOT necessary, it being sufficient that the offender has the intent to perpetrate the act prohibited by the special law unless the special law itself expressly requires intent (“knowingly” or “maliciously”). (Padilla v. Dizon, 1988) The act alone, in crimes punishable by special laws, constitutes the offense. Good faith and absence of criminal intent are NOT valid defenses. Exceptions: (1) Imperative, incidental, and temporary posses-sion of firearms. (2) Assumption that his employer has the requisite license to possess said firearm. (People v. Cuenco) (3) Possession of firearms in good faith as civilian guards. (People v. Asa and Balbastro) (4) Possession of firearm was advised due to pending application for permanent permit. (People v. Mallari) (5) Authorized possession to carry out a mission. (People v. Lucero) (6) Transient possession of firearm to render the owner defenseless without the intention to use it. (People vs. Dela Rosa)

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CLASSIFICATIONS OF FELONIES As to nature

(1) (2)

Mala in se Mala prohibita

As to commission

(1) (2)

Intentional Felonies (DOLO) Culpable Felonies (CULPA)

As to stage of execution

(1) (2) (3)

Attempted Frustrated Consummated

As to gravity

(1)

Grave – those which the law attaches the capital punishment or penalties which in any of their periods are afflictive Less grave – those which the law punishes with penalties which in their maximum period is correctional Light felonies – those infractions of law for the commission of which the penalty is arresto menor, or a fine not exceeding P200.00 or both Composite Compound Complex Continued Continuing

(2)

(3)

As to count

(1) (2) (3) (4) (5)

APPLICABILITY AND EFFECTIVITY OF THE RPC GENERALITY

NOTE: Not applicable when the foreign country adversely affected does not provide similar protection Warship Rule The nationality of such warship determines the applicable penal laws to crimes committed therein, as they are considered to be an extension of the territory of the country to which they belong. Thus, their respective national laws shall apply to such vessels wherever they may be found. (2)

Article 14 of the New Civil Code Subject to the principles of public international law and to treaty stipulations. Persons exempt from the operation of our criminal laws by virtue of the principles of public international law a. Sovereigns and other chiefs of state. b. Ambassadors, Ministers, Plenipotentiary, Ministers Resident, Charges d’Affaires. (AM, MP, MR, CdA) NOTE: Consuls, vice-consuls and other commercial representatives (i.e. commercial attaché) of foreign nation are NOT entitled to the privileges and immunities of an ambassador or minister, in the absence of a treaty to the contrary (Bar 2011)

TERRITORIALITY GENERAL RULE: Penal laws are enforceable only within the Philippine territory. This includes the Philippine Archipelago, including its atmosphere, its interior waters, and maritime zone. (Art. 2,

RPC) GENERAL RULE: Criminal law is binding on all persons who live or sojourn in Philippine territory, whether citizens or not. EXCEPTIONS: (1) Article 2 of the RPC a. Treaties (e.g. Bases Agreement between Philippines and America, RP-US Visiting Forces Accord between Philippines and America, etc.) b. Law of preferential application (e.g. R.A. 75 which penalizes acts which would impair the proper observance by the Republic and its inhabitants of the immunities, rights, and privileges of duly accredited foreign diplomatic representatives in the Philippines.)

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EXCEPTION: (EXTRA-TERRITORIALITY) (1)

Offenses committed while on a Philippine ship or airship; Requisites: a. It must be registered in the Philippine Bureau of Customs or MARINA (Maritime Industry Authority), as the case may be; b. The crime must be committed in the Philippine waters or the high seas, and not within the territorial jurisdiction of another country.

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A.

Criminal Law

Foreign merchant vessels

ENGLISH RULE (TERRITORIALITY OR

FRENCH RULE (FLAG OR

SITUS OF THE CRIME)

NATIONALITY)

General Rule Crimes committed aboard a vessel within the territorial waters of a country are triable in the courts of such country.

•

•

(3)

Should be liable for act in connection with the introduction of the obligations and securities mentioned in the preceding number. (1) Those who introduced the counterfeit items are criminally liable even if they were not the ones who counterfeited the obligations and securities. (2) This paragraph only refers to obligations and securities issued by the Government of the Philippine Island, not coin or currency note of the Philippine Islands. (3) Introduction of coin or currency note of the Philippine Islands is not subject to this paragraph.

(4)

While being public officer or employee, should commit an offense in the exercise of their functions Crimes committed by public officers: (1) Direct bribery (Art. 210) (2) Indirect Bribery (Art. 215) (3) Qualified Bribery (Art. 211-A) (4) Corruption (Art. 212) (5) Fraud Against Public Treasury and Similar Offenses (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) Failure to Render Accounts Before Leaving the Country (Art. 219) (10) Illegal Use of Public Funds or Property (Art. 220) (11) Failure to Make Delivery of Public Funds/Property (Art. 221) (12) Falsification (Art. 171)

Crimes committed aboard a vessel within the territorial waters of a country are not triable in the courts of said country.

Note: The three-mile limit: Territorial waters cover until three miles from coastline, starting from the low water mark.

(Reyes) Exception When the crimes merely affect things within the vessel or when they only refer to the internal management thereof.

When their commission affects the peace and security of the territory or when the safety of the state is endangered.

The Philippines follows the ENGLISH RULE. A distinction must be made between merchant ships and warships; the former are more or less subjected to the territorial laws. English rule application in the Philippines. • Foreign merchant vessel in transit: possession of dangerous drugs is not punishable, but use of the same is punishable. • Foreign merchant vessel not in transit: mere possession of dangerous drugs is punishable because it can already be considered as illegal importation. B.

(2)

Foreign Warships The nationality of such warship determines the applicable penal laws to crimes committed therein, as they are considered to be an extension of the territory of the country to which they belong. Thus, their respective national laws shall apply to such vessels wherever they may be found.

Should forge or counterfeit any coin or currency note of the Philippine Island or obligations and securities issued by the Government of the Philippine Islands.

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If forgery was committed abroad, it must refer only to Philippine coin, currency note, or obligations and securities. Obligations and securities of the GSIS, SSS, and Landbank are not government issuances.

NOTE: 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. (5)

Should commit any of the crimes against national security and law of nations, defined in Title One of Book Two of this Code. NOTE: Limited only to the following crimes: (1) Treason (Art. 114) 4

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(2) (3) (4) (5) (6) (7) (8) (9)

Criminal Law

Conspiracy and proposal to commit treason (Art. 115) Espionage (Art. 117) Inciting to war and giving motives for reprisals (Art. 118) Violation of neutrality (Art. 119) Correspondence with hostile country (Art. 120) Flight to enemy’s country (Art. 121) Piracy and mutiny on the high seas (Art. 122) Terrorism (R.A. 9372 - Human Security Act)

(6)

Should forge or counterfeit any coin or currency note of the Philippines or obligations and securities issued by the government of the Philippines;

(7)

Should be liable for acts connected with the introduction into the Philippines of the obligations and securities mentioned in the preceding number;

EXCEPTION TO THE EXCEPTION: (1) Where the new law is expressly made inapplicable to pending actions or existing causes of action. (2) Where the offender is a habitual delinquent. KINDS OF REPEAL (1)

(2)

EFFECTS OF REPEAL/AMENDMENT ON LAW (1)

(8)

(9)

While being public officers or employees, should commit an offense in the exercise of their functions; Should commit any of the crimes against national security and the laws of the nations, defined in Title One of Book Two of the RPC. (Art. 2, RPC) NOTE: The following are NOT triable under the provisions of the Revised Penal Code: (1) Those punished under special law, to which the Code shall only have suppletory effects. (Art. 10) (2) Persons exempted from local criminal jurisdiction by reason of treaty stipulations or laws of preferential applications. (3) Those persons not subject to local jurisdiction under the principles of public international law. (4) Those crimes committed outside the territorial jurisdiction, except as permitted by Article 2. (Bar

2011) (5)

Those war crimes which are triable by military commissions. (Regalado)

PROSPECTIVITY GENERAL RULE: A penal law cannot make an act punishable in a manner in which it was not punishable when committed. REASON: Under Art. 366 of the RPC, crimes are punished under the laws in force at the time of commission. EXCEPTION: Whenever a new statute dealing with crime establishes conditions more lenient or favorable to the accused, it can be given a retroactive effect. Lasallian Commission on Bar Operations

Absolute or Total Repeal A repeal is absolute when the crime punished under the repealed law has been decriminalized by the subsequent law. 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.

(2)

(3)

(4) (5)

If the repeal/amendment on law makes the penalty lighter in the new/amended law, the new/amended law shall be applied, subject to the exceptions. If the new/amended law imposes a heavier penalty, the law in force at the time of the commission of the offense shall be applied. If the new/amended 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. When the new law and old law penalize the same offense, the offender can be tried under the old law. A person erroneously accused and convicted under a repealed statute may be punished under the repealing statute. NOTE: The accused must have an opportunity to defend himself against the charge brought against him.

(6)

A self-repealing law has the effect same as though it had been repealed at the time of its expiration. SUPPLEMENTARY EFFECT OF THE RPC

General Rule: The provisions of the Revised Penal Code are supplementary to special laws. Exceptions: (1) Where the special law provides otherwise. (2) When the provisions of the RPC are impossible of application, either by express provision or by necessary implication. Provisions of the RPC SUPPLEMENTARY to special laws: • Article 8 (regarding conspiracy) 5

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•

• • •

Article 12, paragraph 3 (regarding exempting circumstance of minority was applied to R.A. 509, the Anti-Profiteering Law.) Article 17 (regarding the participation of the principal in the commission of the crime) Article 22 (with reference to the retroactive effect of penal law if they favored the accused) Article 100 and 39 (regarding the indemnity and subsidiary imprisonment were applied to the Motor Vehicle Law)

PRO REO PRINCIPLE Penal laws are strictly construed against the Government and liberally in favor of the accused.

The in dubio pro reo principle is the rule of lenity. It is the doctrine that "a court, in construing an ambiguous criminal statute that sets out multiple or inconsistent punishments, should resolve the ambiguity in favor of the more lenient punishment." Thus, whenever a situation obtains where two interpretations are possible, one exculpatory and the other inculpatory, the former shall prevail, consistent with the rule on presumption of innocence

Criminal Law

NOTE: Nullum crimen, nulla poena sine lege.. There is no crime where there is no law punishing it. c.

INTENTIONAL FELONIES (DOLO) The act or omission is performed with deliberate intent or malice to do an injury. The offender has the intention to cause injury to the person, property, or right of another. Requisites: (FII) a. “Freedom” Voluntariness on the part of the person to commit the crime. NOTE: The offender must have freedom while doing an act or omitting to do an act. Actus me invito factus non est meus actus. An act done by me against my will is not my act b.

12, par. (1), (2), and (3))

B. FELONIES

NOTE: Crimes under the RPC are called felonies, while crimes penalized by special laws are termed offenses. ELEMENTS OF FELONIES (GENERAL) a.

There must be an act or omission. “ACT” Any bodily movement tending to produce some effect in the external world. It must be an external act. “OMISSION” An inaction or failure to perform a positive duty required by law.

b. That the act or omission be punishable by the Revised Penal Code.

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“Intelligence” Capacity to know and understand the consequences of one’s act. NOTE: The offender must have the intelligence while doing the act or omitting to do the act. Without such intelligence, it becomes necessary to determine the morality of human acts, and no crime can exist. Thus, an imbecile or the insane and the infant under 15 years of age, as well as the minor over 15 but less than 18 who acted without discernment have no criminal liability, because they acted without intelligence (Art.

In the construction or interpretation of the provisions of the RPC, the Spanish text is controlling.

FELONIES Acts and omissions punishable by the Revised Penal Code.

That the act is performed or the omission incurred by means of dolo or culpa.

c.

“(Criminal) Intent” The purpose to use a particular means to effect such result. • (General) Intent to commit an act with malice, being a purely mental process, is presumed. • Intent presupposes the exercise of freedom and the use of intelligence. • Absence of criminal intent is a defense not to incur criminal liability. NOTE: Actus non facit reum, nisi mens sit rea. The act of a person does not make him a criminal, unless his mind be criminal. GENERAL vs SPECIFIC INTENT General Criminal Intent

Specific Criminal Intent

An intention to do a wrong.

An intention to commit a definite act. 6

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Criminal Law

Presumed to exist from the mere doing of a wrongful act

Existence of the intent is not presumed.

The burden of proving the absence of intent is upon the accused.

The burden of proving the existence of the intent is upon the prosecution; as such intent is an element of the crime.

(4)

CULPABLE FELONIES (CULPA) Act or omission is not malicious. (Performed without malice). It is by mere fault, or by imprudence, negligence, lack of foresight, or lack of skill. (Bar 2011) • The offender has no intention to cause an injury to the person, property or right of another. • The injury caused by the offender to another is unintentional and merely through fault. • Acts executed negligently are voluntary. Requisites: (FIN) a. Freedom b. Intelligence c. Negligence

(5) (6) (7)

Where the identification of the accused proceeds from an unreliable source and the testimony is inconclusive and not free from doubt; Where there are no eyewitnesses to the crime and suspicion is most likely to fall upon a number of persons; If the evidence is merely circumstantial (Bar 2011) In ascertaining the motive in defense of stranger. In verifying the specific intent of the offender which would therefore determine the correct crime the offender’s act or acts would fall under.

NOTE: Motive alone is not sufficient to support a conviction. Even a strong motive to commit the crime cannot take the place of proof beyond reasonable doubt, sufficient to overthrow the presumption of innocence.

(People vs. Pisalvo) Imprudence Deficiency of action Lack of skill

Negligence Deficiency of perception Lack of foresight

DOLO VS. CULPA INTENTIONAL (DOLO)

NOTE: In culpable felonies, the act or omission must also be voluntariness, freedom and intelligence on the part of the offender, but the element of criminal intent is replaced with the requisite of “imprudence, negligence, lack of skill or foresight” Intent It is the reason for using a particular means to effect such result. It is an element of the crime, except in unintentional felonies. It is essential in intentional felonies.

(3)

Motive It is the moving power which impels one to action for a definite result. It is not an element of the crime. It is essential only when the identity of the perpetrator or the specific crime committed is in doubt.

RULE ON MOTIVE: the motive of the offender is not essential for the commission of a crime. neither is it relevant for conviction.

CULPABLE (CULPA)

Act is malicious.

Not Malicious.

With deliberate intent.

Injury caused is unintentional being incident of another act performed without malice.

Has intention to cause an injury.

Wrongful act results from imprudence, negligence, lack of foresight or lack of skill.

Examples of crimes which CANNOT be committed through imprudence or negligence (as they require specific intent): (1) Murder (2) Treason (3) Robbery (4) Malicious Mischief (5) Arson

WHEN MOTIVE IS NECESSARY: (1) There is doubt as to the identity of the assailant; (2) In ascertaining the truth between the conflicting theories or versions of the killing; Lasallian Commission on Bar Operations

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SPECIAL FACTORS AFFECTING INTENT AND CRIMINAL LIABILITY (1) (2) (3)

(4)

(5)

Mistake of Fact — Negates criminal liability, akin to a justifying circumstance under Art. 11 Aberratio Ictus (Mistake in Blow) — Generally increases criminal liability, as a complex crime (Art. 48) Error in personae (Mistake in Identity) — May or may not lower criminal liability depending on whether the actual crime committed and the intended crime are of equal or different gravity (Art. 49) Praeter Intentionem (No intent to cause so grave a wrong as that committed) — Lowers criminal liability as a mitigating circumstance under Art. 13 Proximate Cause (The cause of the cause is the cause of the evil caused) — Gives rise to criminal liability by analogy to Art. 4, par. 1 (HONEST) MISTAKE OF FACT

A misapprehension of fact on the part of the accused who caused injury to another. • It destroys the presumption of criminal intent which arises upon the commission of a felonious act. (People v. Coching, et al. citing People v. Oanis) • It is NOT applicable in culpable felonies. • It CANNOT be invoked in error in personae or mistake in identity. Requisites: a. The act done would have been lawful had the facts been as the accused believed them to be; b. That the intention of the accused in performing the act should be lawful; c. That the mistake must be without fault or careless on the part of the accused. ABERRATIO ICTUS (MISTAKE IN BLOW) The offender intends the injury on one person but the harm fell on another, or both. The act may result in a complex crime (Art. 48) or in two or more separate felonies, but there is only one intent that characterized the crimes. ERROR IN PERSONAE (MISTAKE IN IDENTITY)

when the accused zeroes in on is intended victim. The main reason is that the accused had acted with such a disregard for the life of victims without checking carefully the latter’s id entity as to place himself on the same legal plain as the one who kills another wilfully. It is not a mitigating circumstance (People vs. Pinto) MISTAKE IN BLOW 3 persons involved: the offender, the actual victim, and the intended victim. Generally aggravates the liability for a complex crime or two separate felonies may be committed because there could be two victims

MISTAKE IN IDENTITY 2 persons present: the offender and the actual victim May or may not be mitigating

PRAETER INTENTIONEM (NO INTENT TO CAUSE SO GRAVE A WRONG AS THAT COMMITTED) The injury is on the intended victim but the resulting injury or wrong is so grave than what was intended. There is a great disparity between the intended felony and the actual felony committed. This is a mitigating circumstance (Art. 13,(3)). But if the means used to commit the desired crime would also logically and naturally bring about the actual felony committed, praeter intentionem will not be appreciated. PROXIMATE CAUSE (THE CAUSE OF THE CAUSE IS THE CAUSE OF THE EVIL CAUSED) Proximate cause is that cause which, in its natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury, and without which the result would not have occurred. That acting first and producing the injury, either immediately or setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under such circumstances that the person responsible for the first event should, as an ordinary and prudent and intelligence person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom. (Mckee vs IAC)

The offender committed a mistake in ascertaining the identity of the victim NOTE: The fact that the victims were different from the one the offender intended cannot exculpate him. Mistake in the identity of the victim carries the same gravity as Lasallian Commission on Bar Operations

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CRIMINAL LIABILITIES CRIMINAL LIABILITY IS INCURRED (1)

By any person committing a felony (although the wrongful act done be different from that which he intended) Rule: A person who commits a felony is responsible for all the consequences which may naturally and logically result therefrom, whether foreseen or intended or not Elements: a. A person is committing a felony b. That the wrong done to the victim be the direct, natural, and logical consequence of the felony committed by the offender, although it was 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. (Impossible Crime) Requisites: a. 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 i. Legal Impossibility - Where the intended acts, even if completed would not amount to a crime. It applies to those circumstances where: 1. The motive, desire and expectation is to perform an act in violation of the law 2. There is intention to perform the physical act 3. There is a performance of the intended physical act 4. The consequence resulting from the intended act does not amount to a crime. ii. Physical/Factual Impossibility - This occurs when the extraneous circumstances unknown to the actor or beyond his control prevent the consummation of the intended crime.

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d.

That the act performed should not constitute a violation of another provision of the RPC.

GRAVE VS. LESS GRAVE VS. LIGHT FELONIES GRAVE FELONIES Those to which the law attaches the capital punishment or penalties which in any of their periods are AFFLICTIVE, in accordance with Article 25 of the Code. Enumeration of Penalties under Grave Felonies: (1) Reclusion Perpetua; (2) Reclusion Temporal; (3) Absolute or Temporary Absolute Disqualification; (4) Absolute or Temporary Special Disqualification; (5) Prision Mayor (6) Fines more than 6000 pesos. LESS GRAVE FELONIES Those which the law punishes with penalties which in their maximum are CORRECTIONAL, in accordance with Article 25 of this Code. Enumeration of Penalties under Less Grave Felonies: (1) Prision Correctional; (2) Arresto Mayor; (3) Destierro; (4) Suspension; (5) Fines equal to or more than 200 pesos but not less than 6000 pesos. Rules on Grave and Less Grave Felonies: (1) Where the penalty prescribed for the offense is composed of two or more distinct penalties, the higher of highest of the penalties must be an afflictive/ correctional penalty. (2)

If the penalty prescribed is composed of two or more period corresponding to different divisible penalties, the higher or maximum must be that of an afflictive/ correctional penalty.

(3)

If the penalty is composed of two periods of an afflictive/ correctional penalty or two periods corresponding to different afflictive/ correctional penalties, the offense for which is prescribed is a grave felony/ less grave felony.

LIGHT FELONIES Those infractions of law for the commission of which the penalty of arresto menor or a fine not exceeding 200 pesos, or both, is provided. (Art. 9, Par. 3) 9

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Criminal Law

NOTE When the code provides a fine of exactly 200 pesos for the commission of a felony, it is a light felony regardless of the provision in Article 26 of the Code which provides that a fine not less than 200 pesos is a correctional penalty. Note: Only principals and accomplices can be held liable for light felonies. GENERAL RULE: Light felonies are punishable only when they have been consummated. EXCEPTION: Light felonies committed against persons or property, are punishable even if attempted or frustrated.

• •

It covers intentional crimes (dolo) only. The wrongful act done must NOT result from imprudence, negligence, lack of foresight or lack of skill of the offender

Requisites: a. That an intentional felony has been committed. No felony is committed when: i. The act or omission is not punishable by the RPC; or ii. The act is covered by any of the justifying circumstances •

Light Felonies under RPC: (1) Slight physical injuries and maltreatment [Art. 266] (2) Theft [Art. 309, pars. 7 and 8]] (3) Alteration of boundary marks [Art. 313] (4) Malicious Mischief [Art. 328(3); Art 329, (3)] (5) Intriguing against honor [Art. 364]

•

b. (1) (2)

IMPORTANCE OF CLASSIFICATION To determine whether these felonies can be complex crimes or not. To determine the prescription of the crime and the prescription of the penalty.

ABERRATIO ICTUS, ERROR IN PERSONAE, & PRAETER INTENTIONEM (See. Page 7) BAR 1999: ABERRATIO ICTUS, ERROR IN PERSONAE, AND PRAETER INTENTIONEM (1)

Error in Personae Mistake in the identity of the victim.

(2)

Abberatio Ictus Mistake in the blow, that is, when the offender intending to do an injury to one person actually inflicts it on another; and

(3)

Praeter Intentionem The injurious result is greater than that intended.

ELEMENTS OF CRIMINAL LIABILITY Par. 1: By any person committing a felony (delito) although the wrongful act done be different from which he in-tended. Lasallian Commission on Bar Operations

Act or omission should NOT be punished by a special law. Any person who creates in another’s mind an immediate sense of danger, which causes the latter to do something resulting in the latter’s injuries, is liable for the resulting injuries.

That the wrong done to the aggrieved party must be the direct, natural, and logical consequence of the felony committed. A person is criminally responsible for acts committed by him in violation of the law and for all the natural, direct, and logical consequences resulting therefrom.

PROXIMATE CAUSE That cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred • If the result can be traced back to the original act, then the doer of the original act can be held criminally liable. • The must be a relation of “cause and effect,” the cause being the felonious act of the offended, the effect being the resultant injuries and/or death of the victim.

Thus, the person is still criminally liable if the wrongful act done be different from that which he intended. When death is presumed to be the natural consequence of physical injuries inflicted: (1) (2) (3)

That the victim at the time the physical injuries inflicted was in normal health. That death may be expected from the physical injuries inflicted. That death ensued within a reasonable time. 10

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Felony committed is not the proximate cause of the resulting injury when: (1)

(2)

There is an active force between the felony committed and the resulting injury, such active force is distinct a distinct act or fact absolutely foreign from the felony committed. The resulting injury is due to the intentional act of the victim. (i.e. fault or carelessness of the victim must have its origin from his malicious act or omission so as to increase the criminal liability of the assailant.

IMPOSSIBLE CRIME (See: page 14) 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.

•

•

(5)

The offer made by one of the parties to the other constitutes attempted felony if the offer is rejected. It is frustrated if the person returned the money given by the offender.

Material Crimes Crimes which involve the three stages of execution. (e.g. homicide, murder, robbery, etc.) DEVELOPMENT OF CRIME

(1)

(2)

First stage - Internal acts Mere ideas in the mind of a person are not punishable. External Acts a. preparatory acts – generally not punishable, except when the law provides otherwise (ex. Proposal and conspiracy to commit a felony; Art. 304: possession of picklocks, and Art. 176: possession of implements for committing falsification) b. acts of execution – performance of overt acts which, if continued, will logically result in a felony. Punishable under Art. 6 of the RPC

STAGES OF EXECUTION MANNER OF COMMITTING CRIMES (1)

Formal Crimes Consummated in one instant, no attempt. It consummates the crime by mere attempt or proposal or by overt act. E.g. slander, false testimony, mere act of selling or acting as a broker for the sale of prohibited drugs, flight to the enemy's country, corruption of minors, treason, physical injuries, acts of lasciviousness.

(2)

(3)

Crimes consummated by mere attempt or proposal or by overt act. Felony by omission There is no attempted stage because the of-fender does not execute acts. He omits to perform an act which the law requires him to do. (Except for killing a child by starving him)

STAGES OF EXECUTION (1)

(2)

(3)

Importance to classify the stage: for purposes of applying the proper penalty. ATTEMPTED FELONY ELEMENTS (1)

(4)

Crimes requiring the intervention of two persons to commit them are consummated by mere agreement. (e.g. betting in sports contests, corruption of public officials, etc.)

Lasallian Commission on Bar Operations

Attempted — when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by some cause or accident other than his own spontaneous desistance 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 Consummated — when all the elements necessary for its execution and accomplishment are present.

That the offender commences the commission of a felony directly by overt acts.

Felony deemed commenced directly by overt acts when the following are present: A. B.

That there be external acts; Such external acts have direct connection with the crime intended to be committed. 11

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Overt Act A physical activity or deed, indicating an intention to commit a crime. [Reyes] Indeterminate Offense It is one where the purpose of the offender in performing an act is not certain. Its nature in relation to its objective is ambiguous; thus, the accused may be convicted of a felony defined by the acts performed by him up to the time of desistance. “Directly by overt acts” Only offenders who personally execute the commission of a crime can be guilty of attempted felony. Thus, principal by inducement cannot be guilty of attempted felony. (2)

That the offender does not perform all the acts of execution which produce the felony.

Legal Desistance

Factual Desistance

Definition Desistance referred to in law which would obviate the criminal liability unless the overt act or preparatory act already committed in themselves constitute a felony other than what the actor intended.

Actual Desistance of the actor; the actor is still liable for the attempt.

Time or Period Employed Desistance made during the attempted stage.

Desistance made after the attempted stage of the crime.

Something still remains to be done by the offender. If anything yet remained for him to do, he would be guilty of attempted felony. (3)

The offender’s act is not stopped by his own spontaneous desistance.

The spontaneous desistance of the accused is EXCULPATORY only: (1) if made during the attempted stage, and (2) provided that the acts already committed do not constitute any offense. FRUSTRATED FELONY

The offender fails and stops to perform all the acts of execution which should produce the felony because of some cause or accident, not his own spontaneous

ELEMENTS

desistance. (1) (4)

The non-performance of all acts of execution was due to a cause or accident other than his own spontaneous desistance. If the actor does not perform all the acts of execution by reason of his own spontaneous desistance, there is no attempted felony. The law does not punish him. • It is not necessary that spontaneous desistance be actuated by good motives. • Desistance should be made before all the acts of execution are performed. Desistance It is an absolutory cause which negates criminal liability because the law encourages a person to desist from committing a crime. • The desistance which exempts from criminal liability has reference to the crime intended to be committed, and has no reference to the crime actually committed by the offender before his desistance.

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The offender performs all the acts of execution; NOTE: The offender must perform all the acts of execution. Nothing more is left to be done by the offender, because he has performed the last act necessary to produce the crime.

(2) (3) (4)

All the acts performed would produce the felony as a consequence; But the felony is not produced; and The felony is not produced by reason of causes independent of the will of the perpetrator.

Certain causes which may prevent the consummation of the offense are: a. Intervention of third persons who

b.

prevented the consummation of the offense; thus, it makes it frustrated. Perpetrator’s own will; thus, it ceases to

be frustrated.

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CONSUMMATED FELONY

(2)

When all the elements necessary for its execution and accomplishment are present, the crime is consummated. NOTE: The offender does not have to do anything else to consummate the offense. He has already reached the objective stage of the offense as he no longer has control of his acts having already performed all that is necessary to accomplish his purpose.

In attempted felony, the offender never passes the subjective phase of the offense. Attempted Stage Marks the commencement of the subjective phase.

Factors in determining stage of execution of felony: (1) Nature of the offense; (2) Elements constituting the felony; (3) Manner of committing the felony; Attempted

Frustrated

Impossible

Evil intent is not accomplished.

Evil intent is not accomplished.

Evil intent is not accomplished.

Evil intent is possible of accomplishment.

Evil intent is possible of accomplishment.

Evil intent is impossible to accomplish.

What prevented the accomplishment is the intervention of certain cause or accident in which the offender had no part.

What prevented the accomplishment is the intervention of certain cause by a third person to prevent its consummation or by the own will of the perpetrator.

Evil intent cannot be accomplished because of its inherently impossible accomplishment or the means employed by the offender is inadequate or ineffectual.

PHASES OF THE OFFENSE IN RELATION TO THE STAGES OF EXECUTION (1)

OBJECTIVE PHASE – That portion the phase which commences once the offender has performed the last act to complete the elements of the crime NOTE: If he has not so stopped in the subjective phase, but continues until he performs the last act, it is frustrated, provided the crime is not produced. If it is produced, the crime is consummated.

Frustrated Stage The end of subjective phase and the start of the objective phase. Consummated Stage It is the result of the acts of the execution, that is, the accomplishment of the crime. • If both the subjective phase and objective phase are present, there is a consummated felony. EFFICIENT INTERVENING CAUSES Causes interrupting the natural flow of events from the happening of the allegedly felonious act to the resulting injury. This may relieve the offender from criminal liability Not efficient intervening causes: (1) (2) (3) (4) (5)

The weak or diseased physical condition of the victim. (e.g. tuberculosis, heart disease) The nervousness or temperament of the victim; (e.g. removing the drainage from wound) Causes which are inherent in the victim; (e.g. not knowing how to swim, tuba addict) Neglect of the victim or third person; (ex. Refusal of medical attendance) Erroneous or unskilled medical or surgical treatment (unless the wound is slight or not mortal)

SUBJECTIVE PHASE - That portion of the acts constituting the 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 the act’s natural course. NOTE: During this phase, the offender is stopped by any cause outside of his voluntary desistance, the subjective phase has not been passed and it is an attempt.

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IMPOSSIBLE CRIME Par. 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 on the account of employment of inadequate or ineffectual means. IMPOSSIBLE CRIME Its commission is indicative of a criminal propensity or criminal tendency on the part of the actor; he is a potential criminal. • It is based on the positivist theory. • There is no attempted or frustrated impossible crime. It is always consummated. • Impossible crimes ONLY apply to grave and less grave felonies. REQUISITES OF IMPOSSIBLE CRIME: (1)

That the act performed would be an offense against persons or property. CRIMES AGAINST PERSONS Parricide [Art. 246] Physical injuries [Art. 262 - 266] Rape [Art. 266 A] Abortion [Art. 256 - 259] Homicide [Art. 249] Murder [Art. 248] Infanticide [Art. 255] Duel [Art. 260 261]

(2) (3)

CRIMES AGAINST PROPERTY Brigandage [Art. 306 - 307] Robbery [Art. 294, 297 300, 302 - 303] Usurpation [Art. 312 - 313] Culpable Insolvency [Art. 314] Theft [Art. 308, 310, 311] Swindling and other deceits [Art. 315 - 318] Chattel Mortgage [Art. 319] Arson and other crimes involving destruction [Art. 320 - 326] Malicious Mischief [Art. 327 - 331]

That the act was done with evil intent. That its accomplishment is inherently impossible, or that the means employed is either inadequate or ineffectual; and INADEQUATE, MEANING Insufficient.

INEFFECTUAL, MEANING Lasallian Commission on Bar Operations

Means employed did not produce the result expected. Inherent impossibility of its accomplishment: (1) Legal impossibility Where the intended acts, even if completed would not amount to crime. (e.g. Stealing a property that turned out to be owned by the stealer). (Intod v. CA) (2) Physical impossibility When extraneous circumstances unknown to the actor or beyond his control prevent the consummation of the intended crime. (e.g. When one tries to murder a corpse; peppered the victim’s house with bullets, the victim being absent at the time)Where the means employed is adequate and the result is not produced, it is not an impossible crime, but a frustrated felony. (People v. Domasian, 1993)

CONTINUING CRIMES (See: page 16) A single crime, consisting of a series of acts but all arising from one criminal resolution. Although there is a series of acts, there is only one crime committed; hence, only one penalty shall be imposed. It is a continuous, unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force, however long a time it may occupy. (People vs De Leon)

COMPLEX CRIMES AND COMPOSITE CRIMES PLURALITY OF CRIMES Consists in the successive execution, by the same individual, of different criminal acts, upon any of which no conviction has yet been declared. Kinds: (1) Ordinary Complex Crime (2) Special Complex Crime or Composite crimes (3) Continued Crimes (1) ORDINARY 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. (Art. 48) 14

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(1)

Criminal Law

b.

KINDS OF ORDINARY COMPLEX CRIMES Compound Crimes A single act constitutes two or more grave or less grave felonies.

NOTE: These are referred to Special Complex Crimes

Requisites: a. That only a single act is performed by the offender; b. That the single act produces: i. Two or more grave felonies ii. One or more grave and one or more less grave felonies, or iii. Two or more less grave felonies.

c.

d. e.

Examples: a. A person throwing a grenade at one person but killing several people (People vs Guillen) b. A single bullet killing two or more persons

f.

When the crimes involved are subject to the rule of absorption of one crime by the other i. The prior crime committed was indispensable in committing the other, then it would constitute an inherent element in the subsequent crime ii. The prior crime committed is considered an aggravating circumstance of the subsequent crime

g.

When the crime is committed through negligence or imprudence

(People vs Caldito)

(2)

Criminal negligence [Art. 365] can be complexed.

Complex crime proper An offense is a necessary means for committing another offense. Requisites: a. At least two offenses are committed; b. One or some of the offenses must be necessary to commit the other; and c. Both or all of the offenses must be punished under the same statute. •

Note: Necessary means is not equivalent to indispensable means. It is also not inherent in the crimes nor defines the other crime so as to constitute an element of another offense committed. The first offense must be consummated.

Excluded: a. When the crimes committed are punished by the RPC and SPL NOTE: Complex compound crimes expressly refer to “felonies." Complex crime proper cannot exist when the crimes involved are punished under different statutes Lasallian Commission on Bar Operations

When the law specifically fixes a single penalty when two offenses result from a single act When the law imposes “another penalty in addition” to the crime When the crimes have common elements NOTE: This is when two crimes are committed but there is a common element to both crimes. In such case, the element cannot be appreciated as present for both, but rather, can be counted only as to one of the crimes, rendering the other crime incomplete.

Excluded: a. Light felonies - if produced by the same act should be punished as separate offenses b. Crimes punished under special penal laws

•

When the law specifically fixes a single penalty for two or more offenses committed

(1) (2) (3) (4) (5)

NO COMPLEX CRIME: In case of continuous crimes; When one offense is committed to conceal the other; When the other crime is an indispensable part or an element of the other offense or offenses; Where one of the offenses is penalized by a special law; and When the provision provides for a two-tiered penalty.

NOTE: • Art. 48 is intended to favor the culprit. • The penalty for complex crime is the penalty for the most serious crime, the same to be applied in its maximum period • If different crimes resulting from one single act are punished with the same penalty, the penalty for any one of them shall be imposed the same to be applied in the maximum period. 15

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•

• •

• •

Criminal Law

When two felonies constitute a complex crime, are punishable by imprisonment and fine respectively only the penalty of imprisonment should be imposed. There is no fine imposed in complex crimes. There is no complex crime in estafa thru falsification of private document as both crimes require damage as an element which, if used for one renders the other incomplete, hence, the query is as to which crime was committed first. There is no complex crime of rebellion with murder arson, robbery or other common crimes. Article 48 does not apply to Act Penalized under Article 365 (criminal negligence) of the RPC

(2) SPECIAL COMPLEX CRIMES OR COMPOSITE CRIMES Those which are expressly treated by law as single indivisible offenses although comprising more than one specific crime and with specific penalty. Examples: •

• • •

Rape with homicide, The homicide must always be consummated; otherwise, the two would constitute separate offenses. The rape may either be consummated or attempted. Kidnapping with homicide, Kidnapping with rape, Robbery with rape, Additional acts of rape not aggravating.

NOTE: There is no complex crime of Arson with Homicide. (People v. Edna) ORDINARY COMPLEX CRIME

SPECIAL COMPLEX CRIME OR COMPOSITE CRIME

As to their concept It is made up of two or more It is made up to two or crimes being punished in more crimes which are distinct provisions of the considered only as a RPC but alleged in one component of a single information either because indivisible offense being they were brought about by punished in one a single felonious act or provision of the revised because one offense is a penal code. necessary means for committing the other offense or offenses. As to penalty Penalty for the most It is the penalty serious crime shall be specifically provided for imposed and in its the special complex maximum period. crime that shall be Lasallian Commission on Bar Operations

applied according to the rules on imposition of the penalty. (3) CONTINUING CRIMES A single crime, consisting of a series of acts but all arising from one criminal resolution. Although there is a series of acts, there is only one crime committed; hence, only one penalty shall be imposed. It is a continuous, unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force, however long a time it may occupy. (People vs De Leon) NOTE: When the first criminal act was committed, it must be shown that the offender already intended to commit the subsequent series of acts. Otherwise, if each act was independent in the sense that it arose from different criminal resolutions, each must be considered as a separate offense. Thus, the criminal intent of the offender is important. Such kind of crimes is not found in the RPC but is provided for under jurisprudence Requisites: a. There are a series of acts (regardless of the period of time over which it occurred) b. Such acts arise out of a singular criminal purpose and resolution to attain a definite objective c. All of such acts violates the criminal offense as defined In determining venue, a continued, continuous or continuing crime is DIFFERENT from a transitory crime (moving crime) – in the latter case, 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. Real or material plurality There is series of acts performed by the offender. Each act performed by the offender constitutes a separate crime; each act is generated by a distinct criminal impulse

Continued crime There is a series of acts performed by the offender. The different acts constitute only one crime; all of the acts performed arise from one criminal resolution.

CONTINUING OFFENSE A continuous, unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force, however long a time it may occupy. Although there is a series of acts, there is only one crime committed. Hence, only one penalty shall be imposed. 16

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CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY MODIFYING CIRCUMSTANCES affects not only criminal liability, but also the civil liability ex delicto

(2) (3) (4) (5) (6)

Defense of relatives Defense of strangers State of necessity or the avoidance of a greater evil Performance of duty or lawful exercise of a right Obedience to lawful order of superior EXEMPTING CIRCUMSTANCES (Art. 12)

EFFECT ON CRIMINAL LIABILITY

EFFECT ON CIVIL LIABILITY EX DELICTO

JUSTIFYING CIRCUMSTANCES (Art. 11) Negates liability

criminal Generally no civil liability, EXCEPT in par. 4 of Art. 11 where the civil liability is borne by the persons benefited by the act (Art. 101)

EXEMPTING CIRCUMSTANCES (Art. 12) Negates liability

criminal Generally, there is civil liability ex delicto, EXCEPT in accident and insuperable cause Art. 12(4,7), which strictly are not criminal ABSOLUTORY CIRCUMSTANCES

Negates liability

criminal Unsure but since they are akin to exempting circumstances, there is civil liability.

MITIGATING CIRCUMSTANCES (Art. 13) Reduces liability

criminal

Court can take them into consideration in the award of damages

AGGRAVATING CIRCUMSTANCES (Art. 14) Increases liability

criminal

Court can take them into consideration in the award of damages

ALTERNATIVE CIRCUMSTANCES (Art. 15) Reduces or increases criminal liability, as the case may be

Court can take them into consideration in the award of damages

ENUMERATION OF THE CIRCUMSTANCES JUSTIFYING CIRCUMSTANCES (Art. 11) (1)

(1) (2) (3) (4) (5) (6)

Imbecility or Insanity Minority (as amended by RA 9344) Accident Compulsion of an irresistible force Impulse of an uncontrollable fear Insuperable or lawful cause MITIGATING CIRCUMSTANCES (Art. 13)

Ordinary Mitigating — (1) Incomplete justifying or exempting circumstances (2) Senility (over 70 years of age) (3) Praeter intentionem (4) Sufficient provocation (5) Vindication of a grave offense (6) Passion and obfuscation (7) Voluntary surrender (8) Voluntary plea of guilt (9) Physical defects (10) Illness diminishing the exercise of will-power (11) Analogous circumstances Privileged Mitigating — (1) Art. 68 — Minors over 15 and under 18 years of age who acted with discernment (2) Art. 69 — If the deed is not wholly excusable by reason of the lack of some of the conditions required to justify it or to exempt from criminal liability, if majority of such conditions are present. AGGRAVATING CIRCUMSTANCES (Art. 14) Generic Aggravating — (1) Taking advantage of public position (2) In contempt or with insult to the public authorities (3) Dwelling of the offended party (4) Abuse of confidence (5) Obvious ungratefulness (6) Crime 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. (7) Nighttime (8) Uninhabited place (9) Band

Self-defense

Lasallian Commission on Bar Operations

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(10) Conflagration, shipwreck, earthquake, epidemic or other calamity or misfortune (11) Aid of armed men or (12) Recidivism (13) Habituality or Reiteracion (14) Price, reward, or promise (15) 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 (16) Evidence premeditation (17) Craft, fraud or disguise (18) Superior strength or weakening of defense (19) Treachery (20) Ignominy (21) Unlawful entry (22) Broken wall, roof, floor, door, or window (23) Aid of persons under fifteen years of age (24) Motor vehicles, motorized watercraft, airships, or other similar means (25) Cruelty Specific Aggravating — (1) Insult or in disregard of the respect due the offended party —crimes against persons and honor (2) Superior strength or weakening of defense crimes against persons property (3) Treachery —crimes against persons (4) Ignominy —crimes against chastity and persons (5) Cruelty —crimes against chastity and persons Special Aggravating — (1) Taking advantage of public position (2) Organized or syndicated crime group (3) Multi-recidivism or habitual (4) Quasi-recidivism (Art. 160) (5) Complex Crimes (Art. 48) (6) Error in personae (Art. 49) ALTERNATIVE CIRCUMSTANCES (Art. 15) (1) (2) (3)

Relationship Intoxication Degree of instruction and education of the offender ABSOLUTORY CIRCUMSTANCES

(1)

(2) (3)

Spontaneous desistance in the attempted stage unless the overt act committed already constitutes a crime other than that intended (Art. 6, par. 3) Attempted or frustrated light felonies except those against persons or property (Art. 7) Accessories in light felonies (Art. 16)

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Criminal Law

(4) (5) (6)

(7) (8) (9) (10) (11) (12) (13)

Certain relatives who are accessories subject to the requisites provided (Art. 20) Death and physical injuries inflicted under exceptional circumstances (Art. 247) In trespass, a person is not liable if he entered another’s dwelling for the purpose of preventing some serious harm to himself, the occupants of the dwelling or a third person, nor shall it be applicable to any person who shall enter a dwelling for the purpose of rendering some service to humanity or justice, nor to anyone who shall enter cafes, taverns, inns, and other public places (Art. 280) Certain relatives in theft, estafa, and malicious mischief (Art. 332) Marriage of the offender with the offended party in cases of seduction, acts of lasciviousness, rape Instigation Battered woman syndrome (Sec. 26, RA 9262) Status offenses in Sec. 57 and 58, RA 9344 Mistake of fact Repeal of a law, either absolute or modification of the penalty when favorable to the offender

IMPUTABILITY, DEFINED The quality by which an act may be ascribed to a person as its author. RESPONSIBILITY, DEFINED The obligation of taking the penal and civil consequences of the crime. GUILT, DEFINED An element of responsibility without which a man cannot be made to answer for the consequences of a crime.

JUSTIFYING CIRCUMSTANCES JUSTIFYING CIRCUMSTANCES Those were the act of a person is said to be in accordance with law, so that such person is deemed not to have transgressed the law and is free from both criminal and civil liability. There is no civil liability, except in par. 4 of Article 11 where the civil liability is born by the persons benefited by the act. I. Self-Defense II. Defense of Relatives III. Defense of Strangers IV. Avoidance of greater evil or injury V. Fulfillment of duty or lawful exercise of right or office VI. Obedience to an order issued for some lawful purpose (Art. 11, RPC) VII. Battered Woman Syndrome (R.A. No. 9262) 18

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Burden of Proof The burden of proof is on the accused who must prove it by clear and convincing evidence.

Mistake of Fact In relation to mistake of facts or good faith and honest belief of facts, the belief of the accused may be considered in determining the unlawful aggression.

Effect of Justifying Circumstance There is both no crime and no criminal. I. SELF-DEFENSE < Justified because of man’s natural instinct to protect, repel, and save his person or rights form impending danger or peril. It is based on necessity and that impulse of selfpreservation born to man and part of his nature as a human being. (Castanares vs CA).

NOTE: There is self-defense even if the aggressor used a toy gun, provided that the accused believed it to be a real gun. b. Reasonable necessity of the means employed to prevent or repel it; Presupposes the existence of unlawful aggression, which is either imminent or actual.

Subjects of Self-Defense: (PPRH) (1) Defense of Persons (2) Defense of Property (3) Defense of Rights (4) Defense of Honor

“To prevent or repel” A threat to inflict real injury places a person in imminent danger; thus, it must be prevented. An actual physical assault places a person in actual danger; thus, it must be repelled.

Requisites Of Self Defense: (URL) a. Unlawful aggression on the part of the victim against the accused’s person or rights Self-Defense includes not only the define of the person or body of the one assaulted but also that of his rights, that is, those rights the enjoyment of which is protected by law. These include — i. Right to life ii. Right to property iii. Right to honour When there is no peril to one’s life, limb, or rights, there is no unlawful aggression. “Actual” The danger must be present, that is, actually in existence. “Imminent” The danger is on the point of happening. It is not required that the attack already begins, for it may be too late. There must be actual physical force or actual use of weapon No Unlawful Aggression when there is agreement to fight PROVIDED that: (1) The challenge is voluntarily accepted. If NOT voluntarily accepted, an attack subsequent to it is becomes an unlawful aggression. (2) It occurred at the stipulated time and place. If NOT at the stipulated time and place, an attack subsequent to it becomes an unlawful aggression. One who voluntarily joins a fight cannot claim self-defense. Lasallian Commission on Bar Operations

Elements: a. Necessity for the course of action b. Necessity of the means employed Note: BOTH of elements must be reasonable. The test of reasonableness depends on the circumstances of each case. It depends on the nature and extent of the unlawful aggression. In determining whether it was reasonable, selfpreservation is of paramount consideration. c.

Lack of sufficient provocation on the part of the offender. To be entitled to the benefit of self-defense, the one defending himself must not have given cause for the aggression by his unjust conduct or by inciting or provoking the assailant. • No provocation at all was given to the aggressor by the person defending himself; • Even if a provocation was given, it was not sufficient; or • Even if the provocation was sufficient, it was not given by the person defending him-self; • Even if a provocation was given by the person defending himself, it was not proximate and immediate to the act of aggression. Note: The exercise of a right cannot give rise to sufficient provocation.

How to determine the sufficiency of provocation: The provocation is sufficient if it is adequate to stir the aggressor to its commission. 19

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Criminal Law

The provocation is sufficient: (1) When one challenges a person into a fight. (2) When one hurls invectives at another. NOTE: The requisite of “lack of sufficient provocation” refers EXCLUSIVELY to “the person defending himself.” Thus, if the accused appears to be the aggressor, it cannot be said that he was defending himself from the effect of another’s aggression. RULES IN SELF-DEFENSE (1)

Retaliation is not a self-defense • In retaliation, the aggression begun by the injured party already ceased when the person invoking self-defense attacked him. •

(2)

(3) (4)

(5)

When unlawful aggression ceases, the defendant no longer has the right to kill or even wound the aggressor. The attack made by the deceased and the killing of the deceased by the defendant should succeed each other without appreciable interval of time. The unlawful aggression must come from the person who was attacked by the person invoking self-defense. Nature, character, location, and extent of the wound of the person invoking self-defense allegedly inflicted by the injured party may belie claim of self-defense. Probability of the deceased being the aggressor belies the claim of self-defense.

Q: What is the effect when not all the requisites for selfdefense are present? A: The accused cannot claim self-defense as a justifying circumstance. However he could be entitled to either of the following provided unlawful aggression is present: • Ordinary mitigating circumstance — at least one requisite which is unlawful aggression is present • Privileged mitigating circumstance — at least two requisites, one is unlawful aggression is present II. DEFENSE OF RELATIVES < The person making defense is prompted by some noble or generous sentiment in protecting and saving a relative. Requisites: a. Unlawful aggression to the relative of the person invoking defense of relatives; b. Reasonable necessity of the means employed to prevent or repel it; and c. In case the provocation was given by the person attacked, the one making the defense had no part therein. Lasallian Commission on Bar Operations

NOTE: The fact that the relative defended gave provocation is immaterial. It does not negate the application of this justifying circumstance, as long as the person defending had no part in such provocation. Relatives that can be defended: (1) Spouse (2) Ascendants (3) Descendants (4) Legitimate, natural, or adopted brothers or sisters (5) Relative by affinity within the same degree (6) Relative by consanguinity within the fourth civil degree

“in-laws” relatives Survives the death of either party to the marriage which created the affinity.

Blood relatives: (1) (2) (3) (4)

Parents Legitimate Brothers and sisters Uncles, Nieces, Aunts, Nephews First cousins

III. DEFENSE OF STRANGERS < Requisites: a. Unlawful aggression to the stranger defended; NOTE: STRANGERS - any person not included in the enumeration of relatives under par. 2 of Art. 11. Damage to another includes injury to persons and damage to property. b. c.

Reasonable necessity of the means employed to prevent or repel it; and The person defending is not induced by revenge, resentment or other evil motives. NOTE: Even if a person has a standing grudge against the assailant, if he enters upon the defense of a stranger out of generous motive to save the stranger from serious bodily harm or possible death, the third requisite of defense of stranger still exists. The third requisite would be lacking if such person was prompted by his grudge against the assailant, because the alleged defense of the stranger would be only a pretext.

NOTE: This circumstance requires the person making defense to be actuated by disinterested or generous motives. 20

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Criminal Law

Furnishing a weapon to one in serious dan-ger of being throttled or about to be throttled is defense of stranger. IV. AVOIDANCE OF GREATER EVIL OR INJURY > Requisites: a. The accused does an act which causes damage to another in order to avoid an evil or injury which actually exists, and is not brought about by the accused’s own acts; • Evil sought to be avoided must not be merely expected or anticipated or may happen in the future. • The state of necessity must not be brought about by the accused himself b. That the injury feared be greater than that done to avoid it; • An exercise of right is not an evil to be justifiably avoided. c. That there be no other practical or less harmful means of preventing it • Greater evil must NOT be brought about by the negligence or imprudence or violation of law by the actor. NOTE: It is only in this paragraph of Art. 11 where there is civil liability, BUT the civil liability is borne by the persons benefited. [Art. 101] i.e., if firemen had to ram cars blocking their entry to a burning building, the persons the firemen would save from the fire bear the civil liability. State Of Necessity vs Accident Article 11, Par. 4

Article 12, Par. 4

Offender deliberately caused damage

Offender accidentally caused damage

V. FULFILLMENT OF DUTY OR LAWFUL EXERCISE OF RIGHT OR OFFICE > Requisites: a. That the accused acted in the performance of duty or in the lawful exercise of a right or office; and b. That the injury caused or the offense com-mitted be the necessary consequence of the due performance of duty or the lawful exercise of such right or office.

•

It is not necessary that there be unlawful aggression against the person charged with the protection of the property; otherwise, it will fall under self-defense. (Reyes)

VI. OBEDIENCE TO AN ORDER ISSUED FOR SOME LAWFUL PURPOSE > Requisites: a. That an order has been issued by a superior; b. That such order must be for some lawful purpose; and c. That the means used by the subordinate to carry out said order is lawful. This circumstance refers to an unlawful order with the appearance of legality. Subordinate is not liable for carrying out an illegal order if he is not aware of its illegality and has exhibited no negligence. Presupposes that what was obeyed by the accused was a lawful order. If the accused complied with an UNLAWFUL order under a MISTAKE OF FACT he should not incur a criminal liability.

VII. BATTERED WOMAN SYNDROME (BWS) > R.A. No. 9262, otherwise known as the “Anti-Violence Against Women and their Children Act of 2004”, provided the defense for the Battered Women Syndrome which took effect on 27 March 2004. Battered Woman, Defined A woman who is repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to submit to his bidding with no concern for her rights. • Includes wives or women in any form of intimate relationship with men. • Successfully invoking the Battered Woman Syndrome will create the effect of a circumstance of self-defense.

Lawful exercise of rights or office

THREE PHASES OF THE “CYCLE OF VIOLENCE” (1) Tension building phase; This is the phase where minor batterings in the form of verbal or slight physical abuse occurs. Here, the woman tries to pacify the batterer through a show of kind, nurturing behavior; or by simply staying out of his way.

Applying Art. 429 of the Civil Code, if, in protecting his possession of the property, he injures (not seriously) the one trying to get it from him, he is justified under this paragraph. (Reyes)

(2) Acute battering incident; The same is characterized by brutality, destructiveness and sometimes, death. The battered woman usually

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21

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realizes that she cannot reason with him and that resistance would only exacerbate her condition. (3) Tranquil, loving (or, at least, nonviolent) phase. This is where the couple experience a compound relief and the batterer may show a tender and nurturing behavior towards his partner. • In order to be classified as a battered woman, the couple must go through the battering cycle at least twice. • Crucial to the BWS defense is the state of mind of the battered woman AT THE TIME OF THE OFFENSE she must have actually feared imminent harm from her batterer and honestly believed in the need to kill him in order to save her life. Requisites of BWS: a. Each of the phases of the cycle of violence must be proven to have characterized at least two battering episodes between the appellant and her intimate partner. b. The final acute battering episode preceding the killing of the batterer must have produced in the battered person’s mind an actual fear of imminent harm from her batterer and an honest belief that she needed to use force in order to save her life; c. At the time of the killing, the batterer must have posed probable -- not necessarily immediate and actual -- grave harm to the accused, based on the history of violence perpetrated by the former against the latter.

EXEMPTING CIRCUMSTANCES

Criminal Law

V. VI.

Uncontrollable fear Insuperable cause

Burden of Proof The burden of proof to prove the existence of an exempting circumstances lies with the defense. JUSTIFYING CIRCUMSTANCES It affects the act not the actor; emphasis of the law is on the act The act is considered to have been done within the bounds of law; hence, legitimate and lawful in the eyes of the law. Since the act is considered lawful, there is no crime.

No crime No civil liability (except Art. 11, par. 4, where there is civil liability)

CIRCUMSTANCE I. Imbecility or Insanity II. Minority

Exempting circumstances are those by virtue of which, although the act is criminal, the law exempts the actor from liability. I. Imbecility or Insanity II. Minority a. Children who are 15 years of age or under at the time of the commission of the offense to an intervention program. b. Children above 15 but below 18 who acted without discernment. (Juvenile Justice and

Welfare Act, R.A. No. 9344) III. IV.

Accident without fault or intention of causing it A person who acts under the compulsion of an irresistible force

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IV. Compulsion of irresistible force

Since the act complained of is actually wrong, there is a crime but, since the actor acted without voluntariness, there is no dolo or culpa. There is a crime There is civil liability (except Art. 12, par 4 and 7, where there is no civil liability BASIS OF EXEMPTION Absence of intelligence Absence of intelligence

III. Accident RULE: When the offender acts in accordance with exempting circumstances during the commission of the felony, he is exempt from criminal liability but not the civil liability ex delicto.

EXEMPTING CIRCUMSTANCES It affects the actor not the act; emphasis of the law is on the actor The act complained of is actually wrongful, but the actor is not liable.

an

Absence of criminal intent and fault Absence of freedom of action or voluntariness

V. Impulse of an uncontrollable fear

Absence of freedom of action or voluntariness

VI. Insuperable or lawful cause

Absence of criminal intent and fault

I. IMBECILITY OR INSANITY > Imbecility, defined Exists when a person, while of advanced age, has a mental development comparable to that of children between two to seven years of age. Insanity, defined Exists when there is a complete deprivation of intelligence of freedom of the will. Mere abnormality of mental faculties is not enough especially if the offender has not lost consciousness of his acts. 22

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Criminal Law

RULE In imbecility or insanity, there must be a complete deprivation of intelligence, reason and discernment. The offender is exempted because of complete absence of intelligence. •

•

• •

Insanity and imbecility to exempt under Par 1, must be COMPLETE and they cannot be graduated in degrees of gravity. (Regalado, 2009) An insane person is not so exempt if it can be shown that he acted during a lucid interval BUT an imbecile is exempt in all cases from criminal liability. Feeblemindedness is not exempting but can be considered as mitigating. Somnambulism or sleepwalking must be clearly proven to be considered as an exempting circumstance under this article.

•

(1) (2) (3) (4)

“Crazy is not synonymous with the legal terms “insane, “non compos mentis,” “unsound mind,” “idiot,” or “lunatic”.

II. MINORITY > Periods of Criminal Responsibility Absolute irresponsibility — 15 years and below (until 15th birthday) Conditional responsibility — 15 years and 1 day to below 18 years (ages 15, 16 and 17). Full responsibility — 18 years to 70 years Mitigated responsibility — 15 years and 1 day to 18 years, the offender acting with discernment AND those over 70 years (senility). In this case, it is a privileged mitigating circumstance under Art. 68

in

Minors exempt from lliability Minors 15 years old or under (until 15th birthday) Minors over 15 (15 years and 1 day) and under 18 (those aged 16 and 17) who did not act with discernment

NOTE: In the Philippines, both cognition and volition test are applied there must be complete deprivation of the intellect (cognition) or will or freedom (volition)

Discernment, defined 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.

TWO TEST OF INSANITY (1) Test of COGNITION Complete deprivation of intelligence committing the crime. (2) Test of VOLITION Total deprivation of freedom of will.

(1) (2)

The defense must prove that the accused was insane at the time of commission of the crime because the presumption is always in favor of sanity. Effects Of The Insanity Of The Accused Time when accused was insane At the time of the commission of the crime During trial

After judgment or while serving sentence

•

Effect on criminal liability Exempt from liability

Proceeding will be suspended and accused is committed to a hospital 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

The fact that a person behaves in a crazy manner is not conclusive of insanity.

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It is manifested through: (1) Manner of committing the crime (2) Conduct of the offender Discernment

Intent

Refers to moral significance the person ascribes to the act.

Refers to the desired result of the person

JUVENILE JUSTICE AND WELFARE ACT OF 2006 (R.A. 9344) (1)

The following are EXEMPT from criminal liability: a.

Children who are 15 years of age or under at the time of the commission of the offense to an intervention program. i. If after the intervention there is no reform the minor shall be returned to the court for the promulgation of the decision against the minor: and then the court shall either decide on the sentence or extend the intervention.

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b.

(2)

Children above 15 but below 18 who acted without discernment.

If the child referred herein acted with discernment, he/she shall undergo diversion programs without undergoing court proceedings subject to the following conditions: (Section 23) a. Where the imposable penalty is not more than 6 years of imprisonment, the Punong Barangay or law enforcement officer shall conduct mediation, family conferencing and conciliation. b. Where the imposable penalty exceeds 6 years imprisonment, diversion measures may be resorted to only by the court.

(3)

Exemption from criminal liability herein established does not include exemption from civil liability.

(4)

The child in conflict with the law shall enjoy the presumption of minority until he/she is proven to be 18 years old or older (Section 7, par. 1) The prosecutor shall conduct a preliminary investigation and file information upon determination of probable cause in the following instances (Section 33): a. b. c.

(5)

When the child in conflict with the law does not qualify for diversion. When the child, his/her parents or guardian does not agree to diversion. Upon determination by the prosecutor that diversion is not appropriate for the child in conflict with the law.

Automatic Suspension of Sentence Once the child who is under 18 years of age at the time of commission of the offense is found guilty of the offense charged, the court shall determine and ascertain any civil liability which may have resulted from the offense committees. However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict with law under suspended sentence, without the need of application and impose the appropriate disposition measures as provided in the Supreme Court Rule on Juveniles in Conflict with the law. (Section 38)

(6)

Criminal Law

Upon recommendation of the social worker who has custody of the child, the court shall order the finals discharge of the child.

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The discharge of the child in conflict with the law shall not affect the civil liability resulting from the commission of the offense (Section 39.)

SUMMARY OF RULES •

•

If the judgment is an acquittal, the decision shall immediately take effect without suspension and the decision shall be promulgated and pronounced. If the judgment is conviction, the promulgation of the decision and the sentence shall be suspended by the court, the minor shall be ordered to undergo intervention, which shall have the following effects: (1) If after the intervention, there is reform on the part of the minor, the minor shall be returned to the court to dismiss the criminal case and dismiss the charges against the minor. (2) If after the intervention, there is no reform, the minor shall be returned to the court for the promulgation of the decision against the minor, and then the court shall either decide on the sentence or extend the intervention. NOTE: Only when there is (1) refusal to be subjected to reformation or (2) when there is failure to reform can the child be subjected to criminal prosecution and the judicial system. III. ACCIDENT WITHOUT FAULT OR INTENTION OF CAUSING IT > Accident, defined An occurrence that happens outside the sway of our will, and although it comes about through some act of our will, it lies beyond the bounds of humanly foreseeable consequences. Accident presupposes the lack of intention to commit a wrong. Elements: a. A person is performing a lawful act; b. With due care; c. He causes injury to another by mere accident; d. Without fault or intention of causing it. IV. A PERSON WHO ACTS UNDER THE COMPULSION OF AN IRRESISTIBLE FORCE > Elements : (PIT) a. That the compulsion is by means of physical force; b. That the physical force must be irresistible; and 24

Green Notes 2019

c.

Criminal Law

That the physical force must come from a third person.

than the damage caused by the accused.

the damage caused to avoid it.

NOTE: •

Passion and obfuscation cannot amount to irresistible force. The force must be irresistible as to reduce the actor to a mere instrument who acts not only without will but against his will. The person who used the force or created the fear is criminally and primarily civilly liable, but the accused who performed the act involuntarily and under duress is still secondarily liable. (Art. 101) The compulsion must be of such character as to leave no opportunity to the accused for escape or self-defense in equal combat.

VII. INSUPERABLE CAUSE > Elements: a. That an act is required by law to be done; b. That a person fails to perform such act; and c. That his failure to perform such act was due to some lawful or insuperable cause.

VI. UNCONTROLLABLE FEAR > Elements : a. That the threat which causes the fear is of an evil greater than, or at least equal to, that which he is required to commit; and • Presupposes that a person is compelled to commit a crime by another, but the compulsion is by means of intimation or threat, not force or violence. b. That it promises an evil of such gravity and imminence that an ordinary man would have succumbed to it. NOTE: • Duress as a valid defense should be based on a real, imminent, or reasonable fear for one’s life or limb and should not be speculative, fanciful, or remote fear. • The compulsion must be of such character as to leave no opportunity to the accused for escape or self-defense in equal combat. • It must presuppose intimidation or threat, not force or violence, otherwise this would fall under par. 5 on Irresistible Force.

MITIGATING CIRCUMSTANCES Those, if present in the commission of the crime, serve to reduce the penalty, not to change the nature of the crime. I. Incomplete justifying or exempting circumstances II. Over 15 but under 18 years old, if there is discernment or over 70 years old III. No intention to commit so grave a wrong IV. Provocation or Threat V. Vindication of grave offense VI. Passion or obfuscation VII. Voluntary surrender and confession of guilt VIII. Physical defect of offender IX. Illness of the offender X. Similar or analogous circumstances

•

•

•

IRRESISTIBLE FORCE A third person uses violence or physical force to compel the person invoking Irresistible Force to commit a crime. Must have been made to operate directly upon the person of the accused. The injury feared may be of a lesser degree

UNCONTROLLABLE FEAR A third person employs intimidation or threat to compel the person invoking Uncontrollable Fear to commit a crime. May be generated by a threatened act directed to a third (3rd) person. The evil feared must be greater or at least equal to

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Insuperable cause, defined A motive which has lawfully, morally or physically prevented a person to do what the law commands.

MITIGATING CIRCUMSTANCES

RATIONALE: They are based on the diminution (as opposed to complete absence) of either — (1) Freedom of action (2) Intent, or (3) Lesser perversity of the offender NOTE: A mitigating circumstance arising from a single fact absorbs all the other mitigating circumstances arising from the same facts ORDINARY MITIGATING Can be offset by any aggravating circumstance Results in the benefit of lowering the imposable penalty to the minimum period.

PRIVILEGED MITIGATING Cannot be offset by any aggravating circumstance Results in the benefit of lowering the imposable penalty, whether divisible or indivisible, by one or two degrees. 25

Green Notes 2019

Criminal Law

They are not considered when what is prescribed is a single indivisible penalty

Always considered whether the imposable penalty is divisible or indivisible

CIRCUMSTANCE

BASIS OF EXEMPTION

I. Incomplete justifying or exempting circumstances II. Over 15 but under 18 years old, if there is discernment or over 70 years old

Minority above 15 but below 18 years of age Diminution intelligence

of

IV. Provocation or Threat

Diminution of intelligence and intent Diminution of intelligence and intent

grave

VI. Passion or obfuscation VII. Voluntary surrender and confession of guilt VIII. Physical offender

defect

of

IX. Illness of the offender X. Similar or analogous circumstances

Causing injury by mere accident Irresistible Force

Diminution of intent

of

Performance of Duty

Obedience to Order of Superior

Depends

III. No intention to commit so grave a wrong (Praeter intentionam)

V. Vindication offense

State of Necessity

Diminution of intelligence and intent Lesser perversity of the offender Diminution of freedom Diminution of intelligence and intent Depends

Uncontrollable Fear

Treated

as

It is the age of the accused at the time of the commission of the crime which should be determined. His age at the time of the trial is immaterial. LEGAL EFFECTS OF VARIOUS AGES OF OFFENDER: (1) 15 and below Exempting (2)

Ordinary

Mitigating

CIRCUMSTANCE Self-Defense Defense of Relatives Defense of Strangers

of

Justifying/Exempting

INDISPENSABLE ELEMENT Unlawful Aggression Unlawful Aggression Unlawful Aggression

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Above 15 but under 18 Exempting unless acted with discernment. But even with discernment, penalty is reduced by one (1) degree lower than that imposed. [Art. 68, par. 2,

amended by R.A. 9344] (3)

Minor delinquent under 18 years of age who acted with discernment Sentence suspended. [Art. 192, PD 603 as amended

by PD 1179, referred to as Children in Conflict with the Law under RA 9344]

Exception: Treated as Privileged Mitigating Circumstance (If majority of the elements of the justifying or exempting circumstance is present.) • If the justifying or exempting circumstances has an even (2, 4, etc.) number of elements, half of it would already constitute the majority. Indispensable Requisites Circumstances

The accused in performing a lawful act There is a compulsion by means of physical force There is a threat which causes a feat of an evil greater than, or at least equal to, that which he is required to commit

II. OVER 15 BUT UNDER 18 YEARS OLD, IF THERE IS DISCERNMENT OR OVER 70 YEARS OLD >

I. INCOMPLETE JUSTIFYING OR EXEMPTING CIRCUMSTANCES > General Rule: Circumstance

The evil sought to be avoided actually exists The accused acted in the performance of a duty or in the lawful exercise of right or office An order has been issued by a superior Age of minor below 18

CHILD IN CONFLICT WITH THE LAW (DEFINITION) A child who is alleged as, accused of, or adjudged as having committed an offense under Philippine laws. (4)

18 years or over Full criminal responsibility.

(5)

70 years or over Mitigating, no imposition of death penalty [Art. 47]; if already imposed, execution of death penalty is suspended and commuted. [Art. 83] 26

Green Notes 2019

Criminal Law

III. NO INTENTION TO COMMIT SO GRAVE A WRONG >

NOTE: •

Rule for the application: This can be taken into account only when the facts proven show that there is a notable and evident disproportion between the means employed to execute the criminal act and its consequences. • Intention, being an internal state, must be judged by external acts. • Intention may be ascertained by considering: (1) The weapon used (2) The part of the body injured (3) The injury inflicted (4) The manner it is inflicted NOTE: • NOT applicable to felonies by negligence • NOT applicable to felonies where intention is immaterial • NOT appreciated in cases where there is no material harm done. • Intent at the time of the commission of the felony not during the planning stage should be considered.

•

• •

PROVOCATION AS

PROVOCATION AS A

REQUISITE OF INCOMPLETE SELF-DEFENSE It pertains to its absence on the part of the person defending himself.

MITIGATING CIRCUMSTANCE

Provocation, Defined Any unjust or improper conduct or act of the offended party capable of exciting inciting or irritating any one. Requisites: a. The provocation must be sufficient;

Sufficient means adequate to excite a person to commit the wrong and must accordingly be proportionate to its gravity. As to whether or not the provocation is sufficient, the following factors are to be considered: (1) The act constituting the provocation. (2) The social standing of the person provoked. (3) The place and time when the provocation is made. It must originate from the offended party; The provocation must be personal and directed to the accused; and must be immediate to the act, or the commission of the crime.

“Immediate” means that no interval of time should elapse between the provocation and commission of the crime. (People vs Pagal) Lasallian Commission on Bar Operations

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

V. VINDICATION OF GRAVE OFFENSE >

IV. PROVOCATION OR THREAT >

b. c.

The threat should not be offensive and positively strong. Otherwise, the threat to inflict real injury is an unlawful aggression, which may give rise to self-defense. An attack BEFORE the commencement of the agreed fight is sufficient provocation, provided that it is not that strong so as to amount to an unlawful aggression. Otherwise, the rules on self-defense apply. Lawful performance of duty does not give rise to sufficient provocation. Vague threats are not enough so as to amount to sufficient provocation. (i.e. “If you do not agree, beware!”) (Reyes)

the

Requisites: a. 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 degrees; and b. That the felony is committed in the immediate vindication of such grave offense within a reasonable amount of time “Immediate” Allows for a lapse of time as long as the offender is still suffering from the mental agony brought about by the offense to him. “Grave offense” Includes any act that is offensive to the offender or his relatives and the same need not be unlawful. NOTE: • • •

That grave offense must be the proximate cause or proximate to the act of the offender. The grave offense must be directed to the person invoking Vindication of Grave Offense. Vindication of grave offense cannot co-exist with passion or obfuscation if based on one single fact. 27

Green Notes 2019

PROVOCATION It is made directly only to the person committing the felony. The cause that brought about the provocation need not be a grave offense. It is necessary that the provocation or threat immediately preceded the act. It is mere spite against the one giving the provocation or threat.

Criminal Law

VINDICATION The grave offense may be committed also against the offender’s relatives mentioned by law. The offended party must have done a grave offense to the offender or his relatives mentioned by law. The vindication of the grave offense may be proximate, which admits of an INTERVAL of time. It concerns the honor of a person.

NOTE: • •

•

•

•

• VI. PASSION OR OBFUSCATION > • Rationale: When there are causes naturally producing in a person a powerful excitement, he loses his reason and selfcontrol, thereby diminishing the exercise of his will-power

(US vs Salandanan) Requisites: a. The accused acted upon an impulse so powerful that it naturally produced passion or obfuscation in him b. The impulse arose out of the lawful sentiments of the offender such that it was created by unlawful or unjust acts by the offended party. NOTE: Passion or obfuscation must arise from lawful sentiments of the offender. Meaning that the crime committed by the accused must be provoked by prior unjust or unlawful acts of the injured party. ‣ It cannot apply when the act is committed in a spirit of lawlessness or revenge. c. Such act must not be far removed from the commission of the crime by a considerable amount of time, during which the perpetrator might recover his normal equanimity NOTE: The defense must prove that the act which produced passion or obfuscation took place at a time not far removed from the commission of the crime Passion and obfuscation cannot be mitigating in a crime which is planned and calmly meditated before its execution. It presupposes a sudden impulse of natural and uncontrollable fury in the “spur of the moment” (People vs Pagal) Lasallian Commission on Bar Operations

The act of the offended party must be unlawful or unjust. This mitigating circumstance may be appreciated even if the reported act causing the obfuscation was not true, as long as it was honestly and reasonably believed by the accused to be true. No passion or obfuscation after twenty-four (24) hours, or several hours or half an hour elapsed between the cause of the passion or obfuscation and commission of the crime.[34] The crime committed must not be planned or calmly meditated or deliberately fermented by him for a considerable period of time.[35] Obfuscation may arise from jealousy, provided that it arises from lawful sentiments. (i.e. not legitimate wife; in a legitimate relationship) The cause producing passion or obfuscation must come from the offended party because it only mitigates that of the crime committed to him. Vindication of grave offense cannot co-exist with passion or obfuscation if based on one single fact.

General Rule: One single fact cannot be made the basis of a different modifying circumstances. Exception: When there are other facts, although closely connected with the fact upon which one circumstance is premised, the other circumstances may be appreciated as based on other fact. MITIGATING WHEN:

NOT MITIGATING WHEN:

The accused acted upon an impulse. The impulse must be so powerful that it naturally produced passion or obfuscation in him.

The act is committed in a spirit of lawlessness. The act is committed in a spirit of revenge.

DISTINGUISH PASSION OR OBFUSCATION

IRRESISTIBLE FORCE

Mitigating Comes from the offender himself Arises from lawful sentiments

Exempting Comes from a third person

PASSION OBFUSCATION

PROVOCATION

OR

Produced by an impulse which may be caused by provocation

Arises from sentiments

unlawful

Comes from the injured party

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Criminal Law

• It must be spontaneous. • Intent of the accused to submit himself unconditionally to the authorities must be either because he acknowledges his guilt or he wishes to save them the trouble and expense necessarily incurred in his search and capture the conduct of the accused determines the spontaneity of the arrest. • In order to appreciate this circumstance, the surrender of the accused must precede the service of warrant of arrest to the accused or its return when not served because the accused cannot be located. • Posting of bonds amount to voluntary surrender.

An amount of time may Must immediately pass as long as the precede the commission offender has not of the crime recovered his normal equanimity. Effect is the loss of reason and control of the offender

(1) (2) (3)

Passion and obfuscation CANNOT co-exist with: Vindication of Grave offense Treachery Evident premeditation VII. VOLUNTARY SURRENDER AND CONFESSION OF GUILT >

The paragraph contains two (2) mitigating circumstances: (1) Voluntary surrender to a person in authority or his agents. (2) Voluntary confession of guilt before the court prior to the presentation of evidence for the persecution.

When surrender is considered NOT voluntary • • •

Note: If both are present, there will be two independent ordinary mitigating circumstances. (1) VOLUNTARY SURRENDER Requisites: a. That the offender had not been actually arrested. b. That the offender surrendered himself to a person in authority or to the latter’s agent; and “PERSON IN AUTHORITY“ One directly vested with jurisdiction which is the power to govern and to execute the laws, whether as an individual or as a member of some court or government corporation, board or commission.

•

(2) CONFESSION OF GUILT Requisites: a. That the offender spontaneously confessed his guilt b. That the confession of guilt was made in open court, that is, before the competent court that is to try the case; c. That the confession of guilt was made prior to the presentation of evidence for the prosecution; NOTE: All that the law requires is voluntary plea of guilty prior to the presentation of the evidence by the prosecution. Thus, even if during arraignment, the accused pleaded not guilty, he is entitled to this mitigating circumstance as long as he withdraws his plea of not guilty and thereafter pledges guilty to the charge before the fiscal could present his evidence.

“AGENT OF A PERSON IN AUTHORITY” One who by direct provision of the law or by election or by appointment by competent authority is charged with the maintenance of public order and protection and security of life and property and any person who comes to the aid of person in authority [Art. 152, as amended by R.A. 1978] NOTE: Surrender must be made to a person in authority or his agent. Otherwise, a defense will not be appreciated under this circumstance, although it may be appreciated under paragraph 10, on analogous circumstances. c.

That the surrender was voluntary.

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Intention to surrender without actually surrendering is not mitigating Not mitigating when defendant was in fact arrested Surrender of weapon cannot be equated with voluntary surrender. It must be the accused in his person. Surrender of accused must not be accompanied by a condition.

A plea of guilty on appeal is NOT mitigating. This is because the rationale of spontaneous willingness of the accused to admit to the commission of the crime charged is absent. d.

That the confession of guilt was to the offense charged in the information 29

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VIII. PHYSICAL DEFECT OF OFFENDER >

(6)

When the offender is deaf and dumb, blind or otherwise suffering from some physical defect, restricting his means of action, defense or communication with other.

(7)

The physical defect must relate to the offense committed. (e.g. blindness does not mitigate Estafa.)

(8)

Dumb, Defined Lacking the power of human speech

CIRCUMSTANCES WHICH ARE NEITHER EXEMPTING NOR MITIGATING: (1) Mistake in the blow (aberratio ictus) (2) Mistake in the identity (3) Entrapment (4) Accused is over 18 years of age

GENERAL RULE: All of the physical defects of the offender must be proven that such defect restricted his freedom of action and understanding. EXCEPTION: Complete blindness (BAR 2011) Requisites: a. That the offender is deaf and dumb, blind or otherwise suffering some physical defect b. Such defect restricts his means of action, defense, or communications with his fellow beings c. The defect must relate to the crime committed

(1)

NOTE: This paragraph does not distinguish between the educated and uneducated person with physical defects. IX. ILLNESS OF THE OFFENDER > Requisites: a. That the illness of the offender must diminish the exercise of his will-power; and

b.

(2)

NOTE: This may cover illnesses of the mind, body, nerves, or the moral faculty. (People vs Francisco) That such illness should not deprive the offender of consciousness of his acts.

X. SIMILAR OR ANALOGOUS CIRCUMSTANCES > Examples: (1) Over 60 years old with failing sight, similar to over 70 years of age under par. 2. (2) The act of the accused leading the law enforces to the place where he buried the instruments he used to commit the crime are similar to voluntary surrender. (3) Extreme poverty, as similar to a state of necessity, which may apply to crimes against poverty but not violence, such as murder. (4) Outraged feeling of unpaid creditor, as kin to vindication and obfuscation. (5) Appeal to the spirit de corps of the accused, as analogous to passion. Lasallian Commission on Bar Operations

Wartime state of confusion resulting in illegal possession of firearm after the liberation, as being similar to lack of intent to commit so grave a wrong. Voluntary return of funds malversed by the accused, as equivalent to voluntary surrender. (BAR 2011) Testifying for the prosecution without being discharged from the information, as being like a plea of guilty

PRIVILEGED MITIGATING CIRCUMSTANCES MINORITY (Art. 68) By virtue of RA 9344 or the Juvenile Justice and Welfare Act, minority is always at least a privileged mitigating circumstance a. Minors below 15 years and below — exempting circumstance b. Minors over 15 years but under 18 acting without discernment — exempting circumstance c. Minors over 15 years but under 18 acting with discernment — privileged mitigating under Art. 68 MAJORITY OF THE REQUIREMENTS TO JUSTIFY OR EXEMPT IS PRESENT (Art. 69) NOTE: When the circumstance only requires two elements, the presence of one is considered a majority. This is a privileged mitigating circumstance which cannot be offset by any aggravating circumstance and is considered even if the penalty prescribed is single and indivisible under par. 1 of Art. 63. (People vs Oanis) If there is only one or less than majority of the elements present, the incompleteness is a mitigating circumstance under Art. 13, and can be offset by a generic aggravating circumstance.

(1)

(2) (3)

SPECIFIC MITIGATING CIRCUMSTANCES Voluntary release within three days; without attaining purpose; before criminal action (Illegal Detention) Abandonment of spouse (Adultery) Intent to conceal dishonor of mother (Infanticide/Abortion) 30

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AGGRAVATING CIRCUMSTANCES

Criminal Law

(2)

AGGRAVATING CIRCUMSTANCES Those which, if attendant in the commission of the crime, serve to increase the penalty without however, exceeding the maximum of the penalty provided by law for the offense; or changing the nature of the crime. BASIS: Greater perversity of the offender manifested in the commission of the felony as shown by: 1. the motivating power behind the act 2. the place where the act was committed 3. the means and ways used 4. the time 5. the personal circumstance of the offender and/or of the victim MUST BE ALLEGED IN THE INFORMATION If aggravating circumstance (this includes both qualifying and generic) are not alleged in the information, they cannot be taken into consideration. (Sec. 8, Rule 110, Rules

of Criminal Procedure)

Absorbed in rebellion, insurrection, sedition, and attempted coup d’etat. [R.A. 8294] (3)

QUALIFYING- Those that change the nature of the crime. A. Crime committed on the occasion of a conflagration, shipwreck, earthquake, epidemic or other calamity or misfortune. B. Aid of armed or persons who insure or afford impunity. C. Price, reward, promise. D. Crime committed by means of inundation, fire, poison explosion, stranding of a vessel or intentional damage there, derailment of a locomotive, or by the use of any other artifice involving great waste and ruin. E. Evident Premeditation F. Abuse of Superior Strength or Employment of means to weaken defense G. Treachery (Alevosia) H. Crimes committed by means of motor vehicle I. Cruelty

(4)

INHERENT - Those which necessarily accompany the commission of the crime, therefore not considered in increasing the penalty to be imposed, such as: A. Evident premeditation in robbery, theft, estafa, adultery and concubinage; B. Abuse of public office in bribery; C. Breaking of a wall or unlawful entry into a house in robbery with the use of force upon things; D. Fraud in estafa; E. Deceit in simple seduction; F. Ignominy in rape.

Even if the qualifying circumstance was proven by the prosecution, but was not alleged, it cannot be taken into account, even as a generic aggravating circumstance

(Rugas vs People) EFFECT The presence of aggravating circumstance increases the imposable penalty to the maximum penalty. Except when they are not considered when what is prescribed is a single indivisible penalty.

(1)

KINDS OF AGGRAVATING CIRCUMSTANCES GENERIC- Those that can generally apply to all crimes. These are the circumstances in Art. 14, par 1, 2, 3 (dwelling), 4, 5, 6, 9, 10, 14, 18, 19 and 20 (except by means of motor vehicles) A. Advantage taken of public position; B. Contempt or insult of public authority; C. Crime committed in the dwelling of the offended party; D. Abuse of confidence or obvious ungratefulness; E. Place where crime is committed; F. Nighttime, uninhabited place, or brand; G. Recidivism; H. Habituality; I. Craft, fraud, or disguise; J. Unlawful entry; K. Breaking of parts of the house; L. Use of persons under 15 years of age.

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SPECIFIC- Those which apply only to particular crimes. A. Disregard of rank, age, or sex due the offended party in crimes against persons and honor; B. Abuse of superior strength in crimes against persons, illegal detention, robbery with rape, multiple rape, robbery with homicide; C. Means employed to weaken the defense in crimes against persons and sometimes in crimes against person and property; D. Treachery in crimes against persons; E. Ignominy in crimes against chastity; F. Cruelty in crimes against persons; G. Band in crimes against property, crimes against person, illegal detention, and treason. H. Use of unlicensed firearms in the murder or homicide committed therewith.

These do not increase criminal liability or the penalty. 31

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These may be circumstances: a. Which in themselves constitute a crime specially punishable by law b. Which are included by law in defining a crime • This means that the circumstance is an integral element in the crime c. Inherent in the crime to such a degree that it must of necessity accompany the commission thereof • These are circumstances which necessarily accompany the commission of the crime. d. Inherent in other aggravating circumstances • This is when an aggravating circumstance may be absorbed by other aggravating or qualifying circumstance (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 [Par. 1[a], Art. 62]; E. Use of unlicensed firearm in homicide or murder.

RULES ON AGGRAVATING CIRCUMSTANCES (1)

Aggravating circumstances shall not be appreciated if: A. They constitute a crime especially punishable by law; or B. They are included by the law in defining a crime and prescribing a penalty therefore.

(2)

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]

(3)

sources listed below shall only serve to aggravate the liability of the principals, accomplices and accessories as to whom such circumstances are attendant even if there was conspiracy: A. Those from the moral attributes of the offender; or B. Those from his private relations with the offended party; or C. Those from any personal cause. [Art. 62, par. 3] (4)

These CANNOT be offset by ordinary mitigating circumstances Unlike qualifying circumstances, these do not change that character of the offense charged but guides the court in imposing the proper penalty GENERIC AGGRAVATING

As to whether it can be offset by mitigating circumstances May be offset by an Cannot be offset by a ordinary mitigating mitigating circumstance circumstance since it is since it is considered an not an ingredient of the ingredient of the crime. crime. Lasallian Commission on Bar Operations

The circumstances which consist of the following shall serve to aggravate the liability of those persons only who had knowledge of them at the time of the execution of the act or their cooperation therein: A. In the material execution of the act, or B. In the means employed to accomplish it. [Art.

62, par. 4] (5)

Aggravating circumstances, regardless of its kind, should be specially alleged in the information AND proved as fully as the crime itself in order to increase the penalty. [Sec. 9, Rule 110, 2000 Rules of Criminal Procedure] Such circumstances are not presumed. (Generic aggravating circumstances, even if not alleged in the information, may be proven during trial over the objection of the defense and may be appreciated in imposing the sentence.)

(6)

When there are more than one qualifying aggravating circumstances present, one of them will be appreciated as qualifying aggravating while the others will be considered as generic aggravating.

QUALIFYING AGGRAVATING

As to its effect Increases the penalty To give the crime its which should be imposed proper and exclusive name upon the accused to the and to place the author maximum period but thereof in such a situation without exceeding the as to deserve no other limit prescribed by law. penalty than that specially prescribed by law for said crime.

Aggravating circumstances which arise from the

32

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Par 1:

Par 3:

That advantage be taken by the offender of his public position.

That the act be committed: (1) with insult or in disregard of the respect due the offended party on account of his (a) rank, (b) age, or (c) sex; or (2) That it be committed in the dwelling of the offended party, if the latter has not given provocation.

Applicable only when the offender is a public officer. As a means by which he realizes his purpose, the public officer must use: (1) Influence (2) Prestige or (3) Ascendancy. •

It cannot be taken into consideration in offenses where taking advantage of official position is an integral element of a crime. (i.e. Malversation under

Art. 217) •

•

•

It is also inherent in the case of accessories under Art. 19, par. 3 (harboring, concealing, or assisting in the escape of the principal of the crime), and in crimes committed by public officers (Arts. 204-245). R.A. 7659 provides that crimes committed by a public officer will be given the penalty prescribed at its maximum, regardless of the nature and number of mitigating circumstances. Not aggravating if accused could have perpetrated the crime without occupying public position.

Par 2: In contempt of or with insult to the public authorities. Requisites: a. That the public authority is engaged in the exercise of his functions; b. That the public authority is not the person against whom the crime is committed; c. The offender knows him to be a public authority; d. His presence has not prevented the offender from committing the criminal act. •

• •

Teachers or professor of a public school or recognized private school and lawyers are NOT “public authority” within the contemplation of this paragraph. Par 2 of Art. 14 do NOT apply when crime is committed in the presence of an agent only. Knowledge that a public authority is present is essential. Lack of such knowledge indicates lack of intention to insult the public authority. (People v.

Rodil) •

If an assault is committed is against the public authority while in the performance of his duty, the offender commits direct assault without these aggravating circumstances.

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“Rank of the offended party” The designation or title of distinction used to fix the relative position of the offended party in reference to others. “Age of the offended party” May refer to old age or the tender age of the victim. “Sex of the offended party” Refers to the female sex, not to the male sex. •

• • •

If all the four circumstances are present, they have the weight of four different aggravating circumstances. Disregard of rank, age or sex is essentially applicable only to crimes against person or honor. Offender must deliberately offend the rank, age, or sex of the offended party. The offender must have a superiority over the offended party in terms of the invoked social condition.

The aggravating circumstance of disregard of rank, age, or sex is NOT applicable in the following cases: (1) When the offender acted with passion and obfuscation; (2) When the condition of being a woman is indispensable in the commission of the crime. (e.g. abduction, seduction and rape) Dwelling, defined A building or structure, EXCLUSIVELY USED FOR REST AND COMFORT. • A “combination of a house and a store” or a market stall where the victim slept is not a dwelling. • Includes dependencies, the foot of the staircase and enclosure under the house. • Does not mean the permanent residence or domicile of the offended party or that he must be the owner thereof. He must, however, be actually living or dwelling therein even for a temporary duration or purpose. • It is not necessary that the accused should have actually entered the dwelling of the victim to commit the offense. 33

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•

•

• • • •

Criminal Law

Par 4:

The aggravating circumstances of dwelling requires that the crime be wholly or partly committed therein or in any integral part thereof. Even if the killing took place outside the dwelling, it is aggravating provided that the commission of the crime began in the dwelling. Offended party must not give provocation in order to appreciate this circumstance. Dwelling may mean “temporary dwelling” The victim need not be the owner or occupant of the dwelling where he was shot. Dwelling is not absorbed in treachery.

(1) Abuse of confidence; or (2) Obvious ungratefulness (1) Requisites of abuse of confidence: (TAF) a. That the offended party had trusted the offender. b. That the offender abused such trust by committing a crime against the offended party; and c. That the abuse of confidence facilitated the commission of the crime. NOTE:: Abuse of confidence is inherent in malversation [Art. 217], qualified theft [Art. 310], estafa by conversation or misappropriation [Art. 315], and qualified seduction [Art. 337].

What aggravates the commission of the crime in one’s dwelling: (1) The abuse of confidence which the offended party reposed in the offender by opening the door to him; (2) The violation of the sanctity of the home by trespassing therein with violation or against the will to the owner.

(2) Requisites of obvious ungratefulness: (TAOU) a. That the offended party had trusted the offender; b. That the offender abused such trust by committing a crime against the offended party; c. That the act be committed with obvious ungratefulness.

Dwelling was found aggravating in the following cases although the crime was committed NOT in the dwelling of the victim: (1) The victim was raped in the boarding house where she was a bed spacer, but not in her room. (2) The victims were raped in their paternal home where they were guests.

NOTE: The ungratefulness contemplated by the said paragraph must be such obvious, clear and manifest gratitude on the part of the accused.

(1) (2) (3)

NOTE: The Revised Penal Code speaks of “dwelling” NOT domicile.

(4)

Par 5: 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.

Meaning of provocation in the aggravating circumstance of dwelling. The provocation must be: (GSI) (1) Given by the owner of the dwelling (2) Sufficient, and (3) Immediate

• • •

Dwelling is NOT aggravating in the following cases: (1) When both the offender and the offended party are occupants of the same house. Exception: In case of adultery in the conjugal dwelling, the same is aggravating. HOWEVER, if the paramour also dwells in the conjugal dwelling, the applicable aggravating circumstance is abuse of confidence. (2) When robbery is committed by the use of force upon things, dwelling is not aggravating because it is inherent. (3) In the crime of trespass to dwelling, it is inherent or included by law in defining the crime. (4) When the owner of the dwelling gave sufficient and immediate provocation (5) The victim is not a dweller of the house. Lasallian Commission on Bar Operations

•

• • •

Must be dedicated to public religious worship; private chapels not included. There must be an intention to desecrate the place dedicated to public religious worship. The President or Chief Executive need not be in the Palace to aggravate the liability of the offender. As long as he was present, and his presence is known to the accused when he committed the crime. Except for the third which requires that official functions are being performed at the time of the commission of the crime, the other places mentioned are aggravating per se even if no official duties or acts of religious worship are being conducted there. Cemeteries are not considered as place dedicated to the worship of God. Offender must have intention to commit a crime when he entered the place. An electoral precinct or polling place during Election Day is a place “where public authorities are engaged in the discharge of their duties”. 34

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General Rule: Nighttime is absorbed in treachery. PAR. 5. WHERE PUBLIC AUTHORITIES ARE ENGAGED IN THE DISCHARGE OF THEIR DUTIES

PAR. 2. CONTEMPT OR INSULT TO PUBLIC AUTHORITIES

Public authorities are in the performance of their duties

Exception: Where both the treacherous mode of attack and nocturnity were deliberately decided upon in the same case, they can be considered separately if such circumstances have different factual bases. (2)

UNINHABITED PLACE (DESPOBLADO) Uninhabited place, defined One where there are no houses at all; a place at a considerable distance from town, or where the houses are scattered at great distance from each other. • The determining factor for the existence of this circumstance is the reasonable possibility of the victim receiving or securing aid from third persons. • This should not be considered when the place where the crime was committed could be seen and the voice of the deceased could be heard from a nearby house. • It must be appear that the solitude of the place where the crime was committed was sought in order to better attain the purpose.

(3)

BAND (EN CUADRILLA) Band, defined Whenever more than three (meaning, at least four) armed malefactors shall have acted together in the commission of an offense, it shall be deemed committed by a band. • The four armed persons contemplated in this circumstance must ALL be principals by direct participation who acted together in the execution of the acts constituting the crime. In this case, conspiracy is presumed. • If one of them was a principal by inducement, the aggravating circumstance of having acted with the aid of armed men may be considered. • It absorbs the aggravating circumstances of abuse of superior strength and use of firearms (except when the firearms have no license or there is a lack of license to carry the firearms) if they are present in the commission of the crime. • This aggravating circumstance is NOT applicable in crimes against chastity, but is considered in crimes against property, crimes against persons, illegal detention, and treason. • This aggravating circumstance is inherent in brigandage. • When the armed men met up casually with others, and a crime was thereafter committed, it cannot be considered as an aggravating circumstance.

Place where public duty is performed In their office Outside of their office The offended party May or may not be the Public authority should public authority not be the offended party. Par 6: (1) nighttime; or (2) uninhabited place; or (3) By a band • When all 3 circumstances present in the same case and their elements are distinctly palpable and can subsist independently, they shall be considered separately. • Not applicable when the mitigating circumstances of passion or obfuscation or sufficient provocation are present in the commission of the crime. • Nighttime, uninhabited place or band are aggravating when: A. It facilitated the commission of the crime; or B. Especially sought for by the offender to insure the commission of the crime or for the purpose of impunity; or C. The offender took advantage thereof for the purpose of impunity. (1)

NIGHTTIME (OBSCURIDAD) Nighttime, defined That period of darkness beginning at end of dusk and ending at dawn. Nights are from sunset to sunrise. • It is necessary that the commission of the crime has begun and completed at nighttime and the accused took advantage of the nighttime. • This circumstance may also be appreciated if the crime happened at a dimly lit place, whether or not it was actually nighttime or daytime. • When the place of the crime is illuminated by light, nighttime is not aggravating. • It cannot be applied when it is an accidental meeting or a chance encounter. • Circumstances of nighttime, although not specially sought for, shall aggravate criminal liability if it facilitated the commission of the offense or the offender took advantage of the same to commit the crime. • Lighting of matchstick or use of flashlights does not negate appreciation of this circumstance.

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Par 7:

•

on the occasion of a conflagration, shipwreck, earthquake, epidemic or other calamity or misfortune.

•

The offender must take advantage of the calamity or misfortune.

• •

“Other calamity or misfortune”- refers to other conditions of distress similar to those previously enumerated.

Par 9: Recidivist

Par 8: with the aid of: (1) Armed men; or (2) Persons who insure

Recidivist (reincidencia), defined One who, at the time of his trial for one crime shall have been previously convicted by final judgment of another crime embraced in the same title of the RPC

or afford impunity. Requisites: a. That armed men or persons who insure or afford impunity took part in the commission of the crime, directly or indirectly; and b. That the accused availed himself of their aid or relied upon them when the crime was committed.

Note: A recidivist is entitled to the benefits of the indeterminate sentence law but is disqualified from availing credit of his preventive imprisonment. Requisites: a. That the offender is on trial for an offense; b. That he was previously convicted by final judgment of another crime; c. The previous conviction by final judgment was for a felony committed PRIOR to the felony he is currently being charged and tried d. That both the first and the second offences are embraced in the same title of the RPC;

NOTE: This requires that the armed men are ACCOMPLICES who take part in that minor capacity directly or indirectly, and not when they were merely present at the crime scene. Neither should they constitute a band, for then the proper aggravating circumstance would be “by a band”. When this aggravating circumstance shall NOT be considered: (1) When both the attacking party and the party attacked were equally armed. (2) 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.

•

• PAR. 6. “BY A BAND”

PAR. 8. “WITH THE AID OF ARMED MEN”

As to their number Requires more than three At least two armed malefactors (i.e. at least four)

•

As to their action Requires that more than This circumstance is three armed malefactors present even if one of the shall have acted together offenders merely relied on in the commission of an their aid, for actual aid is offense. not necessary.

•

•

As to their liability Band members are all principals.

Armed men accomplices.

are

mere •

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Mere moral or psychological aid or reliance is sufficient to constitute this aggravating offense. If there are four armed men, aid of armed men is absorbed in employment of a band. “Aid of armed men” includes “armed women” Persons who insure or afford impunity must have or be in a position of afford impunity (e.g. A judge)

In recidivism, it is sufficient that the succeeding offense be committed after the commission of the preceding offense PROVIDED that at the time of his trial for the second offense, the accused had already been convicted of the first offense. 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, judgment of conviction handed down on the same day shall be considered as only one conviction. To prove recidivism, it is necessary to allege the same in the information and to attach thereto a certified copy of the sentences rendered against the accused. Recidivism must be taken into account no matter how many years have elapsed between the first and second felonies. 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. There is no recidivism if the subsequent conviction is for an offense committed before the offense involved 36

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Criminal Law

in the prior conviction. (i.e. Crime 1 committed before Crime 2. Accused was convicted of Crime 2 first before Crime 1. There is no recidivism.) When the accused is granted: PARDON The first conviction is still counted to make him a recidivist. Pardon does not obliterate the fact of his prior conviction.

AMNESTY The first offense is no longer counted to make the accused a recidivist. In the case of amnesty, it theoretically considers the previous transgressions as not punishable. According to article 89, amnesty extinguishes the penalty and all its effects.

Par 10: That the offender has been previously punished: (1) For an offense to which the law attaches an equal or greater penalty; or (2) For two or more crimes to which it attaches a lighter penalty. Requisites of reiteracion or habituality: a. That the accused is on trial for an offense; b. That he previously served sentence for another offense to which the law attaches an: i. Equal, or ii. Greater penalty, iii. Or for two or more crimes to which the law attaches a lighter penalty than that for the new offense; and c. That he is convicted of the new offense. •

•

Since reiteracion provides that the accused has duly served the sentence for his previous conviction/s, or is legally considered to have done so, quasi-recidivism cannot at the same time constitute reiteracion, hence this aggravating circumstance cannot apply to a quasirecidivist. If the same set of facts constitutes recidivism and reiteracion, the liability of the accused should be aggravated by recidivism which can easily be proven. Reiteracion

Recidivism

As to the first offense It is necessary that the offender shall have served out his sentence for the first offense.

As to the kind of offenses involved The previous and subsequent offenses must not be embraced in the same title of the Code.

Requires that the offenses be included in the same title of the code.

As to frequency Not always an aggravating circumstance.

Always to be taken into consideration in fixing the penalty to be imposed upon the accused.

Par 11: In consideration of a price, reward or promise To consider this circumstance, the price reward or promise must be the primary reason or primordial motive for the commission of the crime. When liability is Aggravated If Alleged as a General Circumstance

If Alleged as Qualifying Circumstance

Only the liability of the receiver is affected.

Both the liability of the giver and the receiver are affected.

•

• •

There must be two or more principals, the one who gave or offered the price or promise and the one who accepted it, both of whom are principals. This appreciated in cases of principal by inducement. If without previous promise it was given voluntarily after the crime had been committed, it should not be taken into consideration for the purpose of increasing the penalty. Four Forms of Repetition

Recidivism

Where a person, on separate

Generic Aggravating Circumstance

offenses embraced in the same title in the RPC.

Reiteracion or Habituality [Art. 14, par. 10] – Generic Aggravating Circumstance

Where the offender has been previously punished for an offense to which the law attaches an equal or greater penalty or for two crimes to which it attaches a lighter penalty.

[Art. 14, par. 9] – occasions, is convicted of two

It is enough that a final judgment has been rendered in the first offense.

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Multi-recidivism or Habitual delinquency [Art. 62, par. 5.] – Extraordinary Aggravating Circumstance

Where a person within a period of ten years from the date of his release or last conviction of the crimes of serious physical injuries, robbery, theft, estafa or falsification, is found guilty of the said crimes a third time or oftener.

Quasi-recidivism [Art. 160] – Special Aggravating Circumstance

Where a person commits felony before beginning to serve or while serving sentence on a previous conviction for a felony.

•

•

penalty or to change the nature of the offense, as opposed to paragraph 7. RULES AS TO THE USE OF FIRE:

The price, reward or promise need not consist of or refer to material things or that the same were actually delivered. It is sufficient that the offer made by the principal by inducement be accepted by the principal by direct participation before the commission of the offense.

F. G.

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

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PAR. 12 “BY MEANS OF INUNDATION, FIRE, ETC.”

PAR. 7 “ON THE OCCASION OF A CONFLAGRATION,

Murder Separate crimes of arson and murder/homicide

SHIPWRECK, ETC.” The crime is committed on the occasion of a calamity or misfortune wherein the offender takes advantage of the said circumstance.

Par 13: evident premeditation Requisites: The prosecution must prove – a. The time when the offender determined to commit the crime; b. An act manifestly indicating that the culprit has clung to his determination; c. The date and time when the crime was, committed, to compute the lapse of time; an d. 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

waste and ruin. Inundation, defined Refers to use of water, or causing the water to flood in the commission of the offense. • When another aggravating circumstance already qualifies the crime, any of these aggravating circumstances shall be considered as a generic aggravating circumstance only. • When there is no actual design to kill a person in burning a house, it is plain arson even if a person is killed. Had there been intent to kill, the crime committed is murder, qualified by circumstance that the crime was committed “by means of fire”. • “Fire”, “explosion”, and “derailment of locomotive” may be inherent in a particular crime, such as arson, crimes involving destruction, and damages and obstruction to means of communication. In these cases, they do not serve to increase the penalty. • Unless used by the offender as a means to accomplish a criminal purpose, any of the circumstances in this paragraph cannot be considered to increase the

CRIME COMMITTED Simple arson but with a specific penalty [Art. 326]

The crime is committed by means of any such acts involving great waste or ruin.

Par 12: That the crime be committed by means of (FIPE-SAD) A. B. C. D. E.

ACT OF THE ACCUSED Intent was only to burn but somebody died as a result of the fire If fire was used as a means to kill If fire was used to conceal the killing

• • • •

Mere threats without the second element do not show evident premeditation. Three hours or less can be considered as sufficient lapse of time. Evident premeditation is presumed to exist when conspiracy is directly established. Premeditation is absorbed by reward or promise but only insofar as the inducer is concerned since he obviously reflected thereon in planning the crime but not the person induced since one can be a principal by direct participation without the benefit of due reflection.

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Evident premeditation, while inherent in robbery, may be aggravating in robbery with homicide if the premeditation included the killing of the victim. It is a General Rule that evident premeditation is not applicable in error in personae or aberratio ictus, except if there was a general plan to kill anyone to commit the crime premeditated. Evident premeditation is compatible with the mitigating circumstance of immediate vindication of a relative for a grave offense. Par. 14: That (CFD) be employed (1) Craft, (2) Fraud, or (3) Disguise Craft (astucia), defined Involves the use of intellectual trickery or cunning on the part of the accused to aid in the execution of his criminal design. Fraud (fraude), defined Insidious words or machinations used to induce the victim to act in a manner which would enable the offender to carry out his design • Craft and fraud may be absorbed in treachery if they have been deliberately adopted as the means, methods or forms for the treacherous strategy, or they may co-exist independently. • When the accused pretended to be buyers of the store so that they could get close to the victim, such is sufficient for the AC to attach. (People v Empacis) Some stratagems and ruses of that 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 thristy, asking for drink of water. (People v Empacis) Lasallian Commission on Bar Operations

Fraud

Craft

The act of the accused done in order to create a direct inducement by insidious words or machinations.

The act of the accused done in order not to arouse the suspicion of the victim constitutes craft.

This is characterized by the intellectual or mental rather than the physical means to which the criminal resort to carry out his design Disguise (disfraz), defined Resorting to any device to conceal identity. • 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 or false hair or beard.

It is aggravating when: (1) (2)

The accused is not recognized because of his disguise. The accused was masked, even though it fell off.

Not aggravating when: (1)

(2)

In spite of the accused’s mask, he was nevertheless objectively identifiable because his key facial features are apparent. When disguise is not purposely sought by the offender to conceal his identity. Par 15: (1) superior strength; or (2) to weaken the defense.

Paragraph 15 enunciates two (2) aggravating circumstances either of which qualifies killing to murder. No advantage of superior strength in the following: (1) One who attacks another with passion and obfuscation does not take advantage of superior strength. (2) When a quarrel arose unexpectedly and the fatal blow was struck at a time when the aggressor and his victim were engaged against each other as man to man. (3) When the attack was made on the victim alternately. •

•

In order to appreciate this circumstance, there must be notorious inequality of forces between the parties and the accused takes advantage of the same. For abuse of superior strength, the test is the relative strength of the offender and his victim. 39

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When there are several offenders participating in the crime, they must all be principals by direct participation and their attack against the victim must be concerted and intended to be so. Abuse of superior strength is also present when the offender uses a weapon which is out of proportion to the defense available to the offended party. There is abuse of superior strength when a man attacks a woman with a weapon. In parricide against the wife, it is generally accepted that the husband is physically stronger than the wife. Abuse of superior strength absorbs cuadrilla (band)

NOTE: The means employed may amount to treachery when the victim is not able to put up any sort of resistance. Advantage taken

be To deliberately use excessive force that is out of proportion to the means for self-defense available to the person attacked.

Means employed weaken defense

The offender employs means that materially weakens the resisting power.

Examples of “means employed to weaken defense”: (1) Where one, struggling with another, suddenly throws a cloak over the head of his opponents and while in this situation he wounds or kills him. (2) One who, while fighting with another, suddenly casts sand or dirt upon the latter eyes and then wounds or kills him. NOTE: This circumstance is applicable only to crimes against persons, and sometimes against persons and property, such as robbery with physical injuries or homicide. BY BAND

ABUSE OF SUPERIOR STRENGTH

Appreciated when the offense is committed by more than three armed malefactors regardless of the comparative strength of the victim or victims.

The gravamen of abuse of superiority is the taking advantage by the culprits of their collective strength to overpower their relatively weaker victim or victims.

What is taken into account here is not the number of aggressors nor the fact that they are armed, but their relative physical strength vis-a-vis the offended party.

Par. 16: Treachery (alevosia) Treachery, defined Present when the offender commits any of the crimes against persons, 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. Requisites of treachery: a. That at the time of the attack, the victim was not in a position to defend himself; and b. That the offender consciously adopted the particular means, method, or form of attack employed by him. TEST OF TREACHERY: not only the relative position of the parties but, more specifically, whether or not the victim was forewarned or afforded the opportunity to make a defense or to ward off the attack. Rules regarding treachery: (1) Applicable only to crimes against persons. (2) Means, methods or forms need not insure accomplishment of crime. (3) The mode of attack must be consciously adopted. (4) Treachery is taken into account even if the crime against the person is complexed with another felony involving a different classification in the Code. (5) The suddenness of 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. (6) Treachery must be appreciated in the killing of a child even if the manner of attack is not shown (7) Treachery is appreciated when the accused employed means to render the victim defenseless before the commission of the crime, or to eliminate the risk of defense on the part of the offended party. When must treachery is present: • When the aggression is continuous, treachery must be present in the BEGINNING of the assault

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When the assault was not continuous, in that there was interruption, it is sufficient that treachery was present at the moment the fatal blow was given.

Hence, even though in the inception of the aggression which ended in the death of the deceased, treachery was not present, if there was a break in the continuity of the aggression and at the time of the fatal wound was inflicted on the deceased he was defenseless, the circumstance of treachery must be taken into account.

Treachery cannot be presumed. There is no treachery when: (1) The crime is preceded by an altercation. (It is impulsively done) (2) The crime is preceded by a warning from the accused. (The victim is given the opportunity to defend himself; thus, there is an absence of the 2nd requisite.) •

•

An attack on the front of the victim does not automatically negate treachery. The same goes with an attack at the back. There can be treachery in the following cases: (1) Directing the beam of flashlight on the face of the victim. (2) Victim is in the state of intoxication that he cannot put up any sort of defense. (3) Victim is a child of tender age.

Treachery should be considered even if: (1) The victim was not predetermined but there was a generic intent to treacherously kill any first two persons belonging to a class. (The same rule obtains for evident premeditation). (2) There was aberratio ictus and the bullet hit a person different from that intended. (3) There was error in personae, hence the victim was not the one intended by the accused.

Aid of armed men Cuadrilla (“band”) Employing means to weaken the defense

NOTE: Treachery cannot co-exist with passion or obfuscation.

Treachery

Superior Strength

The offender does not employ means, methods, or forms of attack; he only takes advantage of his superior strength.

The offender, like in treachery, employs means but the means employed only materially weakens the resisting power of the offender party.

Par 17: IGNOMINY Ignominy; defined A circumstance pertaining to the moral order, which adds disgrace and obloquy to the material injury caused by the crime. • Ignominy is inherent in libel and acts of lasciviousness. “Which add ignominy to the natural effects thereof” The means or the circumstances must tend to make the effects of the crime more humiliating to the victim or to put the offended party to shame, or add to his moral suffering. • Injured party must not be dead when the act causing ignominy was inflicted to him. Applicable to: (1) Crimes against chastity, (2) Less serious physical injuries, (3) Light or grave coercion, and (4) Murder Par 18: after an unlawful entry Unlawful entry, defined When an entrance (and not for escape) is affected by a way not intended for the purpose.

Treachery absorbs: (CANACE) (1) Craft (2) Abuse of superior strength (3) Nighttime (4) (5) (6)

Means, methods, or forms of attack are employed by the offender to make it impossible or hard for the offended party to put up any sort of resistance.

Means to weaken defense

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Unlawful entry is inherent in: (1) Robbery with the use of force upon things; (2) Trespass to dwelling. Par 19: Broken (WRFDW) (1) Wall (2) Roof, (3) Floor, (4) (5)

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This circumstance is aggravating only in those cases where the offender resorted to any of said means TO ENTER the house. Par. 19

Par. 18

It involves the breaking (rompimiento) of the enumerated parts of the house.

Presupposes that there is no such breaking as by entry through the window.

•

If the offender broke a window to enable himself to reach a purse with money on the table near that window, which he took while his body was outside of the building, the crime of theft was attended by this aggravating circumstance. It is not necessary that the offender should have entered the building.

Where breaking of door or window is lawful: (1) Rule 113, Section 11 of the Revised Rules of Criminal Procedure (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) (2) Rule 126, Section 7 of the Revised Rules of Criminal Procedure (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) Par 20: Two (2) different circumstances grouped in this paragraph: (1) With the aid of persons under fifteen years of age. (2) By means of motor vehicles, airships, or other similar means. Use of motor vehicle is aggravating where the accused purposely and deliberately used the motor vehicle in: (1) Going to the place of the crime; or (2) Carrying away the effects thereof; or (3) In facilitating their escape. •

If motor vehicle is used as a means to kill a person, it is appreciated as qualifying circumstance.

Lasallian Commission on Bar Operations

•

The use of motor vehicle must be purposely sought and deliberately used for the commission of the crime; the use is not merely incidental. “Or other similar means”, meaning It should be understood as referring to motorized vehicles or other efficient means of transportation similar to automobile or airplane.

Par 21: Wrong done in the commission of the crime be deliberately augmented by causing another wrong not necessary for its commission (CRUELTY). Cruelty, defined When the culprit enjoys and delights in making his victims suffer slowly and gradually, causing unnecessary physical pain in the consummation of the criminal act. Requisites: a. That the injury caused be deliberately increase by causing another wrong; and b. That the other wrong be unnecessary for the execution of the purpose of the offender. Cruelty is inherent in: (1) Crimes against persons (2) Mutilation •

•

•

•

There must be positive proof that the wounds found on the body of the victim were inflicted while he was still alive in order to unnecessarily prolong physical suffering. Number of wounds alone does not show cruelty; it is necessary to show that the accused deliberately and inhumanly increased the sufferings of the victims. There is no cruelty when the series of acts causing unnecessary suffering to the victim took place in rapid succession. There must be appreciable time intervening between the infliction of one wound and that of another. Ignominy (Par. 17)

Involves moral suffering

Cruelty (Par. 21) Refers suffering

to

physical

NOTE: Unlike with mitigating circumstances [Par. 10, Art. 13], there is no provision for aggravating circumstances of a similar or analogous character. As such, the list is exclusive.

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Other Aggravating Circumstances Under SPL R.A Comprehensive

9165, When a crime is committed by an offender who is under the Dangerous Drugs Act influence of dangerous drugs, such state shall be considered Of 2002 as a qualifying aggravating circumstance. Use of Unlicensed Firearm (PD No. 1866 as Amended by R.A, 8294)

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

[Sec. 1, par. 3] When a person commits any crime under the Revised Penal Code or special laws with the use of explosives including but not limited to pillbox, Molotov cocktail bombs, denotation agents or incendiary devices resulting in the death of a person, the same is aggravating. [Sec. 3] Organized/Syndicated The maximum penalty shall be Crime Group under imposed if the offense was committed by a person who R.A. 7659 belongs to an organized /syndicated crime group. ORGANIZED /SYNDICATED CRIME GROUP, DEFINED A group of two or more persons collaborating, confederating or mutually helping one another for the purpose of gain in the commission of any crime. [Art. 23,

R.A. 7659] Specific Aggravating Circumstances (1) Violation of domicile (nighttime; papers and effects not returned immediately) (2) Interruption of religious worship (violence or threats) (3) Direct Assault (offender lays hands upon a person in authority) (4) Grave threats (in writing; through a middleman) (5) Slavery (crime is committed to assign the victim to some immoral traffic) (6) Robbery with violence against or intimidation of persons (uninhabited place, band) EXCEPT: robbery with homicide or robbery with rape. Lasallian Commission on Bar Operations

(7)

Robbery with force upon things (uninhabited place and by a band)

ALTERNATIVE CIRCUMSTANCES ALTERNATIVE CIRCUMSTANCES, DEFINED Those which must be taken into consideration as aggravating or mitigating according to the nature and effects of the crime and the other conditions attending its commission. The alternative circumstances are (RID): (1) Relationship; (2) Intoxication; and (3) Degree of instruction and education of the offender. Relationship The alternative circumstances of relationship shall be taken into consideration when the offended party is the: (1) Spouse, (2) Ascendant, (3) Descendant, (4) Legitimate, natural, or adopted brother or sister, (5) Relative by affinity in the same degree of the offender. Other relatives included: • The relationship of stepfather or stepmother and stepson or stepdaughter. • The relationship of adopted parent and adopted child. Adoption refers only to brothers and sisters but not to the adopting parents. BAR 2011 But the relationship of uncle and niece is not covered by any of the relationship mentioned Relationship is mitigating in the following cases: (1) In crimes against property, as a rule, relationship is mitigating, by analogy to the provisions of Art. 332. • Thus, relationship is mitigating in the crimes of robbery [Arts. 294-302], usurpation [Art. 312], fraudulent insolvency [Art. 314] and arson [Art. 321-322, 325-326]. • Relationship is exempting in the crimes of theft, estafa, and malicious mischief. [Art. 332] (2) In crimes against persons • In cases where the offense committed is less serious physical injuries or slight physical injuries, mitigating if the offended party is a 43

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relative of a lower degree; and aggravating if the offended party is a relative of a higher degree of the offender. Relationship is aggravating in the following cases: (1) In crimes against persons

It is aggravating where: •

The offended party is a relative of a higher degree than the offender; or When the offender and the offended party are relatives of the same level (e.g. Brothers)

•

In physical injuries: A.

B.

(2)

It is aggravating when the crime against persons is serious physical injuries [Art. 263], even if the offended party is a descendant of the offender. But the serious physical injuries must not be inflicted by a parent upon his child as excessive chastisement. It is aggravating when the offense committed is less serious physical injuries or slight physical injuries, if the offended party is a relative of a higher degree of the offender. o When the crime is homicide or murder, relationship is aggravating even if the victim of the crime is a relative of a lower degree. o In rape, relationship is aggravating where a stepfather raped his stepdaughter or in a case where a father raped his own daughter.

In crimes against chastity, like acts or lasciviousness [Art. 336], relationship is always aggravating, regardless of whether the offender is a relative of a higher or lower degree of the offended party. • When the qualification given to the crime is derived from the relationship between the offender and the offended party, it is neither mitigating nor aggravating, because it is inseparable from and inherent in the offense. (e.g. parricide, adultery, and concubinage). • The relationship always qualifies the crime first; thus, other aggravating circumstances, generic or qualifying, are given the effect of ordinary aggravating circumstance.

When intoxication is mitigating and when it is aggravating: Mitigating If intoxication habitual

If the offender did not use intoxication as a stimulant to commit a crime or suffocate any remorse.

If the offender did use intoxication as a stimulant to commit a crime or suffocate any remorse.

To be entitled to the mitigating circumstance of intoxication, it must be shown: (1) That at the time of the commission of the criminal act, the accused has taken such quantity of alcoholic drinks as to blur his reason and deprive him of a certain degree of control; and (2) That such intoxication is neither habitual nor used a stimulant to commit the felony or suffocate remorse. Habitual drunkard, defined One given to intoxication by excessive use of intoxicating drinks. • To be mitigating, the accused’s state of intoxication must be proved. Once intoxication is established by satisfactory evidence, in the absence of proof to the contrary, it is presumed to be non-habitual or unintentional. Instruction or Education As an alternative circumstance, it does not only refer to literacy but more to the level of intelligence of the accused. • Refers to the lack of sufficient intelligence and knowledge of the full significance of one’s acts. • Low degree of instruction and education or its lack thereof is generally mitigating. High degree of instruction and education is aggravating only when the offender took advantage of his learning in committing the crime. • In order for lack of education or instruction to be appreciated as mitigating, the offender must not have reached the first grade of elementary school. • The mitigating circumstance of lack of sufficient instruction cannot be justified if accused is a city resident and even knows how to sign his name. General Rule: Lack of sufficient education is mitigating. Exceptions: (1) Crimes against property (2) Crimes against chastity; (3) Treason (4) Murder; and (5) Rape.

Aggravating is

not

If intoxication is habitual

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ABSOLUTORY CAUSES ABSOLUTORY CAUSES, DEFINED Causes which, for reasons of public policy and sentiment, prevent penalty from being imposed for an act which would ordinarily result in criminal liability.

Examples of absolutory causes: (1) (2) (3)

(4) (5) (6) (7)

Spontaneous desistance [Art.6] Attempted or frustrated light felonies [Art.7] Accessories who are exempt from criminal liability by reason or relationship [Art. 20] and in light felonies Slight of less nervous physical injuries inflicted under exceptional circumstances [Art. 247] Person exempt from criminal liability for theft, swindling and malicious mischief [Art. 332] Instigation Trespass to dwelling when the purpose of entering another’s dwelling against the latter’s will is to prevent some serious harm to himself, the occupants of the dwelling or a third person, or for the purpose of rendering some service to humanity or justice, or when entering cafes, taverns, inns and other public houses, while the same are open

[Art. 280, par. 2] (8)

(9)

Marriage of the offender and the offended party in cases of seduction, abduction, acts of lasciviousness and rape [Art. 344) Adultery and concubinage if the offended party shall have consented or pardoned the offenders.

[Art. 344] (10) Legal Ground for arbitrary detention. [Art. 124] • • •

•

Entrapment is NOT an absolutory cause. A buy-bust operation conducted in connection with illegal drug-related offenses is a form of entrapment. If the one who made the instigation is a private individual, not performing public function, both he and the one induced are criminally liable for the crime committed: the former, as principal by induction; and the latter, as principal by direct participation. There is neither instigation nor entrapment when the violation of the law is simply discovered.

The means of committing the crime originates from the mind of the criminal.

The law enforcer conceives the commission of the crime and suggests to the accused who adopts the idea and carries it into execution.

Not a bar to prosecution conviction of lawbreaker.

It will result in the acquittal of the accused.

PERSONS LIABLE AND DEGREE OF PARTICIPATION PRINCIPALS, ACCOMPLICES, AND ACCESSORIES For grave and less grave felonies (1) Principal (2) Accomplices (3) Accessories For light felonies: (1) Principal (2) Accomplices Rules relative to light felonies: (1) Light felonies are punishable only when they have been consummated. (Art. 7, RPC) (2) But when light felonies are committed against persons or property, they are punishable even if they are only in the attempted or frustrated stage of execution. (Art. 7, RPC) (3) Only principals and accomplices are liable for light felonies. (Art. 16, RPC) (4) Accessories are not liable for light felonies, even if they are committed against persons or property.([Art. 16, RPC) SUBJECTS OF CRIMES (1)

Entrapment

Instigation

Measures are resorted to for the capture of lawbreaker in the execution of his criminal plan

Instigator induces the would-be accused to commit the crime, hence he becomes a co-principal

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the and the

Active subject (the criminal) Art. 16 enumerates the active subjects of the crime – a. Principals — liable for grave, less grave and light felonies b. Accomplices — liable for grave, less grave and light felonies c. Accessories — liable only for grave or less grave felonies

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Only natural persons can be the active subject of the crime because of the highly personal nature of the criminal. As a rule, juridical persons cannot be held criminally liable, though they may be subject to fines under the appropriate laws. (Aquino) (2)

Passive subject (the injured party) The passive subject of the crime is the holder of the injured right, these may be the following injured persons — a. Natural person b. Juridical person c. State

IMPORTANCE OF CLASSIFYING THE PERSONS CRIMINALLY LIABLE It is important only if the rule on collective criminal liability does NOT apply. Meaning conspiracy as a means to commit the crime is NOT proved. Their degree of criminal participation (whether they are principals, accomplices or accessories) is important to determine the property penalty to be imposed. PERSONS CRIMINALLY LIABLE PRINCIPALS They are persons who either — 1. Take a direct part in the execution of the act 2. Directly force or induce others to commit it 3. Cooperate in the commission of the offense by another act without which it would not have been accomplished ACCOMPLICES They are persons who are not principals but cooperate in the execution of the offense by previous or simultaneous acts 1.

2.

ACCESSORIES They have knowledge of the commission of the crime but did not participated therein either as principals or accomplices They merely take part subsequent to its commission in any of the following manners — a. By profiting themselves or assisting the offender to profit by the effects of the crime b. By concealing or destroying the body of the crime, or the effects or instruments thereof, in order to prevent its discovery c. By harboring, concealing, or assisting in the escape of the principals of the crime, provided the accessory either — i. Acts with abuse of his public functions, ii. Whenever the author of the crime is guilty of any of the ff. — (1) Treason

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(2) (3) (4) (5)

Parricide Murder Attempt to take the life of the Chief Executive Known to be habitually guilty of some other crime

PRINCIPALS Principal by Principal by Direct Inducement Participation Those who take a direct part in the execution of the act.

Those who directly force or induce others to commit it.

Principal by Indispensable Cooperation Those who cooperate in the commission of the offense by another act without which it would not have been accomplished.

PRINCIPAL BY DIRECT PARTICIPATION Requisites: (1) That they participated in the criminal resolution; • It is well-settled that a person maybe convicted for the criminal acts of another when there has been conspiracy or unity of purpose and, intention in the commission of the crime charged between them. • To be a party to a conspiracy, one must have the intention to participate in the criminal transaction with a view to the furtherance of the common design and purpose. [Reyes] • Conspiracy may be express or implied. Doctrine of implied conspiracy If it is proved that two or more persons aimed, by their acts, at the accomplishment of the same unlawful object, each doing a part so that their acts, though apparently independent, were in fact connected and cooperative, indicating a closeness of personal association and concurrence of sentiment, a conspiracy may be inferred though no actual meeting among them to concert ways and means is proved. •

Direct participation is necessary. Exception: Persons not in the scene of the crime (i.e. leaders, masterminds, prime movers)

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•

•

•

• • •

•

(2)

Formal agreement or previous acquaintance between persons is not necessary in conspiracy. In cases of implied conspiracy, the liability of a conspirator for acts performed by his coconspirators before he joined the conspiracy depends on the nature of those acts, thus: o If the anterior acts were the beginning of a felony which was consummated after he joined the conspiracy, he is liable for these anterior acts; and o If those prior acts were separate felonies and unilateral to those committed after his joining the conspiracy, he is not liable for hose preceding acts. In the absence of conspiracy, each of the accused is responsible only for the consequences of his acts. Conspiracy is presumed when crime is committed by a band. Conspiracy does not presuppose evident premeditation. A conspirator is not liable for another’s crime when it is neither an object of the conspiracy nor a necessary and logical consequence thereof. [Art. 4] Exception: Robbery by a band [Art. 296] Exception to the exception: If it is shown that he attempted to prevent the occurrence of the act that is not an object to the conspiracy. When there is conspiracy, the fact that an element of the offense is not present as regards one of the conspirators is immaterial. Exception: Art. 62(3) and (4). (i.e. relationship, treachery, etc.) – Aggravating circumstances which are purely personal to one would not affect the others.

Criminal Law

In conspiracy by prior agreement, the principal by direct participation who does not appear at the scene of the crime is NOT liable because: (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. (Art 8) Thus, by merely conspiring, they would be participator has not yet committed any crime unless he would appear at the scene of the crime and perform any act directly or indirectly in the accomplishment of the conspiracy. (3) There is no basis for criminal liability because there is no criminal participation. “Personally took part in its execution” meaning That the principal by direct participation must be at the scene of the commission of the crime, personally taking part in its execution except when there is conspiracy and the principal by direct participation has already performed his part prior to the actual commission of the crime. PRINCIPAL BY INDUCEMENT Requisites: (1) That the inducement be made directly with the intention of procuring the commission of the crime; and (2) That such inducement is the determining cause of the commission of the crime by the material executor. One cannot be held guilty of having instigated the commission of the crime without first being shown that the crime was actually directly committed (or attempt) by another.

That they carried out their plan and personally took part in its execution by acts which directly tended to the same end. NOTE:When the second requisite is lacking, there is only conspiracy.

Thus, there can be NO principal by inducement (or by indispensable cooperation) unless there is a principal by direct participation. But there can be a principal by direct participation without a principal by inducement (or by indispensable cooperation).

General Rule: The principal must be at the scene of the crime, personally taking part in its execution.

This inducement must be the determining cause of the commission of the crime by the principal by direct participation; without such inducement, the crime would not have been committed. The inducement must precede the act and must be so influential; hence if there is a price or reward involved, without prior promise, there can be no inducement.

Exceptions: (1) Leaders (2) Masterminds (3) Prime movers (4) Co-conspirators who has already performed their part of the crime. Lasallian Commission on Bar Operations

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If the crime committed is not contemplated in the order given, inducement is not material and not the determining cause thereof. Two ways of becoming a principal by Inducement: (1)

By directly forcing another to commit a crime by: (1) Using irresistible force.

Irresistible Force, defined Such physical force as would produce an effect upon the individual that in spite of all resistance, it reduces him to a mere instrument. (2)

Uncontrollable Fear, defined

PRINCIPAL BY

OFFENDER WHO MADE

Compulsion by means of intimidation or threat that promises an evil of such gravity and eminence that the ordinary man would have succumbed to it.

INDUCEMENT

PROPOSAL TO COMMIT A FELONY

By directly inducing another to commit a crime by: (1) 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. There is collective criminal responsibility. (2)

requirement does not apply to inducing another to commit a crime with the giving or offering of a price, reward or promise); d. The words of command must be uttered prior to the commission of the crime; and e. The material executor of the crime has no personal reason to commit the crime. f. If the person who actually committed the crime had reason of his own to commit the crime, it cannot be said that the inducement was influential in producing the criminal act.

Causing uncontrollable fear.

In these cases, there is no conspiracy, not even a unity of criminal purpose and intention. Only the one using the force or causing the fear is criminally liable. The material executor is not criminally liable because of Art. 12, pars. 5 and 6 (exempting circumstances). (2)

Criminal Law

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 of command is a principal by direct participation. There is also collective criminal responsibility Requisites: a. That the one uttering the words of command must have the intention of procuring the commission of the crime; b. That the one who made the command must have an ascendancy or influence over the person who acted; c. The words used must be so direct, so efficacious, so powerful as to amount to physical or moral coercion (this

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In both There is an inducement to commit a crime When liable Becomes liable only when the crime is committed by the principal by direct participation.

The mere proposal to commit a felony is punishable in treason or rebellion. However, the person to whom the proposal is made should not commit the crime; otherwise, the proponent becomes a principal by inducement.

What kind of crime involved Involves any crime

The proposal to be punishable must involve only treason, rebellion, insurrection or coup

d’ etat Effects of acquittal of principal by direct participation upon liability of principal by inducement: (1) Conspiracy is negated by the acquittal of codefendant. (2) One cannot be held guilty of having instigated the commission of a crime without first being shown that the crime has been actually committed by another. NOTE: If the one charged as principal by direct participation is acquitted because he acted without criminal intent or malice, his acquittal is not a ground for the acquittal of the principal by inducement.

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PRINCIPAL BY INDISPENSABLE COOPERATION Requisites: a. Participation in the criminal resolution, that is, there is either prior conspiracy or unity of criminal purpose and intention immediately before the commission of the crime charged; and • Requires participation in the criminal resolution • There must be conspiracy • Concurrence is sufficient. • Cooperation is indispensable. b.

Cooperation in the commission of the offense by performing another act without which it would not have been accomplished. • Cooperation must be indispensable. • If dispensable, accused is only an accomplice. • If cooperation is necessary in the execution of the offense, accused is considered as a principal by direct participation.

The term “cooperation in the commission of the offense,” involves acting with the desires or wishes of the Principal by Direct Participation. 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. • Principal by direct participation have collective criminal responsibility. • Principals by induction, except those who directly forced another to commit a crime, and principals by direct participation have collective criminal responsibility. • Principals by indispensable cooperation have collective criminal responsibilities with the principal by direct participation. 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. ACCOMPLICES ACCOMPLICES; DEFINED Persons who, not acting as principals, cooperate in the execution of the offense by previous and simultaneous Lasallian Commission on Bar Operations

acts, which are not indispensable to the commission of the crime (Art. 18, RPC). They act as mere instruments who perform acts not essential to the perpetration of the offense. Requisites: a. That there be community of design; that is, knowing the criminal design of the principal by direct participation, he concurs with the latter’s purpose; b. 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 manner; and c. That there be a relation between the acts done by the principal and those attributed to the person charged as an accomplice. NOTE: An accomplice is not in conspiracy with the principal by direct participation; otherwise, he becomes a co-principal. An accomplice acquires knowledge of the criminal design of the principal when: (1) The principal informs or tells the accomplice of the former’s criminal purpose. (2) The accomplice sees the criminal acts of the principal. The community of design need not be to commit the crime actually committed. It is sufficient if there was a common purpose to commit a particular crime and that the crime actually committed was a natural and probable consequence of the intended crimes. Previous or simultaneous acts can be through oral support or moral aid through advice, encouragement, or agreement, provided that is it not the determining cause of the commission of the crime of the principals. Where the accused acted in a dispensable manner, jurisprudence has held them liable as accomplices, even if they were co-conspirators, in view of the rule in favor of “milder liability.” Before there could be an accomplice, there must be a principal by direct participation. One can be an accomplice even if he did not know of the actual specific crime intended to be committed by the principal, provided he was aware that the objective of the acts he was tasked to do was illicit. 49

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Criminal Law

The person charged as an accomplice should not have inflicted a mortal wound. If he inflicted a mortal wound, he becomes a principal by direct participation. (2) In case of doubt, the participation of the offender will be considered that of an accomplice rather than of a principal. (3) ACCOMPLICE

CONSPIRATOR B.

They know and agree with the criminal design. They come to know about the They come to know same after the principals the criminal intention have reached the decision, because they and only then do they agree themselves have to cooperate in its execution. decided upon such course of action. They are merely instruments They are the authors who perform acts not of a crime. essential to the perpetration of the offense. ACCOMPLICE

Cooperation must be dispensable. 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.

There must be no conspiracy between principals and accomplices.

PRINCIPAL BY INDISPENSABLE COOPERATION Cooperation must be indispensable. Has participation in the criminal resolution, that is, there is either anterior conspiracy or unity of criminal purpose and intention immediately before the commission of the crime charged. There must be conspiracy between the principals liable

ACCESSORIES Persons who: (1) Having knowledge of the commission of the crime; (2) Without having participated therein either as principals or accomplices, take part subsequent to its commission in any of the following acts: A. By profiting them or assisting the offender to profit by the effects of the crime; (1) In profiting through the effect of the crime, the accessory must receive the property from the principal. He should not take it without the consent of the Lasallian Commission on Bar Operations

principal. If he took it without the consent of the principal, he is not an accessory but a principal of the crime of theft. Knowledge of the commission of the crime after acquisition of stolen property is sufficient. Mere suspicion that a crime has been committed is not enough.

By concealing or destroying the body, effects or instruments of the crime to prevent its discovery; “Body of the crime” is equivalent to corpus delicti. There must be an attempt to hide the body of the crime such as burying the cadaver and/or concealing or destroying the effects of or the instruments of the crime to prevent its discovery. Requisites: (1) The fact that the crime was committed; (2) The participation of the offender in the commission of the crime. • What is concealed is the body of the crime, not the accused. (3) By harboring, concealing, or assisting in the escape of the principal 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 (Art. 19, RPC)

Two classes of accessories contemplated in paragraph 3 of Art. 19: (1) Public officers, who harbor, conceal or assist in the escape of the principal of any crime (not light felony) with abuse of his public functions. Requisites: a. The accessory is a public officer; b. He harbors, conceal, or assist in the escape of the principal; c. The public officer acts with abuse of his public functions; and d. The crime committed by the principal is any crime, provided it is not a light felony. (2)

Private persons, who harbor, conceal or assist in the escape of the author of the crime who is guilty of treason, parricide, murder, or attempts against the 50

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Criminal Law

life of the Chief Executive (President), or who is known to be habitually guilty of some other crime. Requisites: a. The accessory is a private person; b. He harbors, conceal or assists in the escape of the author of the crime; and The crime committed by the principal is either: (TPMa) A. Treason; B. Parricide; C. Murder; D. An attempt against the life of the President; OR that the principal is known to be habitually guilty of some other crime. c.

Where the alleged principal is acquitted due to insufficiency of evidence as to the corpus delicti of the crime, it is neither proper nor possible to convict the defendant as an accessory.

General Rule: The responsibility of the accessory is subordinate to that of the principal in a crime. • HOWEVER, conviction of an accessory is possible notwithstanding the acquittal of the principal, if the crime was in fact committed, but the principal was not held liable, because of an exempting circumstance [Art. 12], such as insanity or minority. • Neither the letter nor the print of the law requires that the principal be convicted before one may be punished as an accessory. As long as the corpus delicti is proven and the accessory’s participation as such is shown, he can be held criminally responsible and meted out the corresponding penalty. • The prescribed acts of the accessory under par. 2 must have been intended to prevent the discovery of the crime; hence, mere silence is NOT punishable. Exceptions: a. if, however, the crime involved is conspiracy to commit treason, his silence may hold him liable for misprision of treason [Art. 116] but as a principal thereof. b. Committing the acts of knowingly concealing evil practices as enumerated in Art. 142 makes the accomplice also punishable as a principal in inciting to Sedition [Art. 142]. c. Where the accused misleads the authorities by giving them false information, such act is equivalent to concealment and he should be held as an accessory.

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ART. 19. RPC

The principal who was assisted committed only any of the enumerated felonies unless the accessory is a public officer who acts with abuse of public functions. The crime committed by the principal must be under the RPC. The person who gave assistance is punished as an accessory in the offense committed by the principal.

P.D. 1829 (OBSTRUCTION OF JUSTICE) The person who was assisted committed any crime.

The crime committed by the principal is punishable under any existing penal law, including the RPC. The person who gave assistance is punished as a principal in the crime of obstruction of justice.

Art. 20, RPC – Accessories exempt from liability The exemption provided for 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. An accessory is exempt from criminal liability when the principal is his/her – (SADL) (1) Spouse, or (2) Ascendant, or (3) Descendant, or (4) Legitimate, natural or adopted brother, sister or relative by affinity within the same degree. Accessory is NOT exempt from criminal liability even if the principal is related to him, if such accessory: (1) Profited by the effects of the crime, or (2) Assisted the offender to profit by the effects of the crime. The public officer contemplated in par. 3 of Art. 19 is exempt by reason of relationship to the principal, even if such public officer acted with abuse of this official functions. NOTE: The benefits of the exception in Art. 20 do not apply to P.D. 1829.

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CONSPIRACY AND PROPOSAL CONSPIRACY Conspiracy, defined When two or more persons come to an agreement concerning the commission of a crime and decide to commit it. (Agreement may be oral or written, express or implied.) Requisites: a. That two (2) or more persons came to an agreement; b. That the agreement pertains to a commission of a felony; and c. That the execution of a felony was decided upon. NOTE: There must be participation with a criminal resolution because simple knowledge thereof by a person may only make him liable as an accomplice. CRIMES PUNISHABLE BY MERE CONSPIRACY (1) (2) (3)

UNDER RPC Treason [Art. 115] Rebellion [Art. 136] Insurrection [Art.

(1) (2) (3) (4)

136] (4) (5) (6)

Coup d’etat [Art. 141] Sedition [Art. 141] Monopolies and combinations in restraint of trade.

(5) (6)

UNDER SPL Espionage, Highway robbery, Illegal association, Selected acts committed under the Dangers Drugs Act, Arson; and Terrorism under the Human Security Act.

[Art. 186] Crimes which are punishable by mere conspiracy: (under RPC) AS A FELONY

AS A MANNER OF INCURRING CRIMINAL LIABILITY

Conspirators should not actually commit treason, rebellion, etc., it being sufficient that two or more persons agree and decide to commit it.

If the conspirators commit it, they will be held liable for treason, and the conspiracy which they had before committing treason is only a manner of incurring criminal liability, not treated as a separate offense.

Felony relates to a crime actually committed.

Conspiracy is not treated as a separate offense but used to determine the liability of the offenders. In conspiracy, the act of one is the act of all.

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General Rule: When conspiracy is established, all who participated therein, irrespective of the quantity or quality of his participation is liable equally, whether pre-planned or instantaneous. (People v. Recones) 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.” BAR 1998, 2003 DOCTRINE OF IMPLIED CONSPIRACY Conspiracy may be inferred if it is proven that two or more persons aimed their acts towards the accomplishment of the same unlawful object, each doing a part so that their acts although apparently independent were in fact connected and cooperative, this indicating a closeness of personal association and a concurrence of sentiments. •

It is enough that at the time of the commission of the offense, the offenders acted in concert, each doing his part to fulfill their common design. It must be shown that there is unity of purpose and unity in the execution of the offense. A conspiracy must be established by positive and conclusive evidence.

• •

PROPOSAL Proposal to commit a felony, defined When a person decides to commit a crime and proposes its execution to some other person or persons. Requisites: a. That a person has decided to commit a felony; and b. That he proposes its execution to some other person or persons. RPC specially provides penalty for mere proposal in: (TRIC) (1) Treason (2) Rebellion (3) Insurrection (4) Coup d’etat

NO criminal proposal when: (1)

The person who proposes is not determined to commit the felony; 52

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(2) (3)

There is no definite, concrete, and formal proposal but a mere suggestion; It is not the execution of a felony that is proposed. • It is not necessary that the person to whom the proposal is made agrees to commit of any of the TRIC • If the proposal is accepted, it becomes conspiracy. • The crimes in which conspiracy and proposal are punishable are against the security of the State or economic security.

C. PENALTIES PENALTIES THAT MAY BE IMPOSED AND RETROACTIVE EFFECT OF PENAL LAWS PENALTY, DEFINITION The suffering that is inflicted by the State for the transgression of a law. Different juridical conditions of penalty: (P2C3EL) (1) Must be productive of suffering without however affecting the integrity of the human personality (2) Must be commensurate with the offense-different crime 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 effect (6) Must be equal for all (7)

Must be correctional

Three-fold purpose of penalty under RPC: (1) Retribution or expiation (2) Correction or reformation (3) Social defense Constitutional restriction on penalties The Constitution directs that “excessive fines shall not be imposed, nor cruel and unusual punishment inflicted.”

(Sec. 19 [1], Art. 3) Art. 21, RPC – Imposable penalties A felony shall be punishable only by the penalty prescribed by law AT THE TIME OF ITS COMMISSION. ! It has no application to any of the provisions of the RPC for the reason that, for every felony defined in the Code, a penalty has been prescribed. [Reyes] Lasallian Commission on Bar Operations

Criminal Law

!

This article can be invoked when a person is being tried for an act or omission for which no penalty has been prescribed by law.

Art. 22, RPC – Retroactivity of Penal laws General Rule: Penal law is applied prospectively. Exception: When retroactive application will be favorable to the person guilty of a felony, provided that: (1) The offender is NOT a habitual criminal (delinquent) under Art. 62(5); (2) The new or amendatory law does NOT prohibit its retroactive application. Habitual delinquent, defined A person who, within a period of ten years from the date of his release or last conviction of the crimes of serious or less serious physical injuries, robbery, theft, estafa, or falsification (FRETSeL), is found guilty of any said crimes a third time or oftener. Ex post facto law, defined A law which makes criminal an act which, when committed, was not a crime. An ex post facto law is one which: (1) Makes an innocent act done before the passage of the law criminal; (2) Aggravates a crime, or makes it greater than it was, when committed; (3) Changes the punishment and inflicts a greater punishment than that provided by the law annexed to the crime when committed; (4) Alters the legal rules of evidence, and authorizes conviction upon a less or different testimony than the law required at the time of the commission of the offense; (5) Assumes to regulate civil rights and remedies only, in effect imposing a penalty or deprivation of a right for something which when done was lawful; and (6) Deprives a person accused of a crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty. If retroactive effect of a new law is favorable to the defendant, it shall apply to him even if he is: (1) Presently on trial for the offense; (2) Has already been sentenced but service of which has not begun; or (3) Already serving sentence. NOTE: ! The exception applies to a law dealing with the prescription of a crime. 53

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!

!

!

Criminal Law

The retroactive effect of criminal statutes does not apply to the culprit’s civil liability, regardless of it being favorable or unfavorable No retroactive effect even when favorable to the accused if the new law is expressly made inapplicable to pending actions or existing causes of action. (Tavera vs. Valdez) The provisions of Art. 22 are applicable even to special laws which provide more favorable conditions to the accused.

Not applicable to civil liability The principle that criminal statutes are retroactive so far as they favor the culprit does not apply to the latter's civil liability, because the rights of offended persons or innocent third parties are not within the gift of arbitrary disposal of the State. Criminal liability under the repealed law subsists: (1) When the provisions of the former law are reenacted; or if the offenses are still punishable in the repealing penal law; (2) When the repeal is by implication; or (3) When there is a repeal of the repealing law, which revives the prior penal law, unless the language of the repealing statute provides otherwise. (4) When there is a saving clause. NOTE: The new law which increases the civil liability of the accused cannot be given retroactive effect.

In criminal cases, the intervention of the aggrieved parties is limited to being witnesses for the prosecution Compromise upon the civil liability arising from an offense may be had; but such compromise shall not extinguish the public action for the imposition of the legal penalty. (Art. 2034, Civil Code) A contract stipulating for the renunciation of the right to prosecute an offense or waiving the criminal liability is VOID. [Arts. 1306, 1352, 1409, Civil Code] Exception: Pardon by the offended party will bar criminal prosecution in the following crimes: ! Adultery and Concubinage [Art. 344, RPC] ! EXPRESS or IMPLIED pardon must be given by offended party to BOTH offenders. ! Pardon must be given PRIOR to institution of criminal action. ! Seduction, Abduction, Acts of Lasciviousness [Art.

344, RPC]

!

Bar 2011 When the repeal is absolute, the offense ceases to be criminal. The pending case charging the accused of the repealed crime is to be dismissed. Note: No retroactive effect of penal law as regards jurisdiction of court. The jurisdiction of the court to try a criminal action is to be determined by the law in force at the time of instituting the action, not at the time of the commission of the crime. Jurisdiction of courts in criminal cases is determined by the allegations of the complaint or informant, and not by the findings the court may make after trial. (People vs. Romualdo, 87 Phil. 641, 642) Art. 23, RPC – Effect of pardon by offended party General Rule: Pardon by the offended party does NOT extinguish the criminal liability of the offender.

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!

Note: The pardon by the parents, standing alone, is inefficacious. Similarly, the express pardon of a person guilty of attempted abduction of a minor, granted by the latter’s parents, is not sufficient to remove criminal responsibility, but must be accompanied by the express pardon of the girl herself. (People vs. Lacson, [ICA] 55 OG 9460) Pardon must be given PRIOR to the institution of the criminal action. Exception: However, marriage between the offender and the offended party EVEN AFTER the institution of the criminal action or conviction of the offender will extinguish the criminal action or remit the penalty already imposed against the offender, his coprincipals, accomplices, and accessories after the fact. Note: Not applicable in rape, where there are two or more principals involved and in case of multiple rape. Rape (as amended by R.A. 8353) The subsequent valid marriage between the offender and the offended party shall extinguish criminal liability or the penalty imposed. In case the legal husband is the offender, subsequent forgiveness by the wife as offended party shall also produce the same effect. Pardon by the offended party under Art. 344 is ONLY A BAR to criminal prosecution; it is NOT a ground for extinguishment of criminal liability. CIVIL LIABILITY may be extinguished by the EXPRESS WAIVER of the offended party.

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Art. 24, RPC – Measures of prevention or safety which are not considered penalties

! Same basis may be applied by analogy to bond to keep the peace ! These articles determine the classification of a fine whether imposed as a single or as an alternative penalty for a crime. ! Where the fine in question is exactly P200, under Art. 9 it is a light felony, whereas under Art. 26 it is a correctional penalty, hence the offense involved is a less grave felony. It has been held that this discrepancy should be resolved liberally in favor of the accused, hence Art. 9 prevail over Art. 26. (People

The following are NOT considered as penalties: (1) 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. (2) The commitment of a minor to any the institution mentioned in Art. 80 (now Art 192, PD No. 603) and for purposes specified therein. (3) Suspension from the employment or public office during the trial or order to institute proceedings. (4) Fines and other corrective measures which, in the exercise of their administrative or disciplinary powers, superior official may impose upon their subordinates. (5) Deprivation of right and the reparations which the civil law may establish in penal form. [Art. 24, RPC] Reasons why they are NOT penalties: ! They are not imposed as a result of judicial proceedings. Those mentioned in paragraphs 1, 3 and 4 are merely preventive measures before conviction of offenders. ! The offender is not subjected to or made to suffer these measures in expiation of or as punishment for a crime. ! Par. 1 does not refer to the confinement of an insane or imbecile who has not been arrested for a crime it refers to accused persons” who are detained by reason of insanity or imbecility. ! Paragraphs 3 and 4 refer to administrative suspension and administrative fines and not suspension or fine as penalties for violations of the RPC. ! The deprivation of rights established in penal form by the civil laws is illustrated in the case of parents who are deprived of their parental authority if found guilty of the crime of corruption of their minor children, in accordance with Art. 332 of the Civil Code. ! Where a minor offender was committed to a reformatory pursuant to Art. 80 (now, PD 603), and while thus detained he commits a crime therein, he cannot be considered a quasi-recidivist since his detention was only a preventive measure, whereas quasi-recidivism presupposes the commission of a crime during the service of the penalty for a previous crime.

vs. Yu Hai) Note: In determining the prescription of crimes, apply Art. 9 (P200 fine is light felony). In determining the prescription of penalty, apply Art. 26 (P200 fine prescribes in 10 years). RA NO. 9346 : AN ACT PROHIBITING THE IMPOSITION OF DEATH PENALTY IN THE PHILIPPINES Sec. 2 of said law provides that in lieu of death penalty, the following shall be imposed:

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The penalty of reclusion perpetua, when the law violated makes use of the nomenclature of the penalties of the Revised Penal Code; or

(2)

The penalty of life imprisonment, when the law violated does not make use of the nomenclature of the penalties of the Revised Penal Code.

Section 3. Persons convicted of offenses punished with reclusion perpetua, or whose sentences will be reduced to reclusion perpetua, by reason if this Act shall not be eligible for parole under Act No. 4103, otherwise known as the indeterminate sentence law, as amended.

CLASSIFICATION

!

!

Art. 26, RPC – Fines; classified Fine is: (1) Afflictive – over P6,000.00 (2) Correctional – P200.00 to P6,000.00 (3) Light penalty – less than P200.00

(1)

!

Art. 25, RPC – Penalties, classified The scale in Art. 25 is only a general classification of penalties based on their severity, nature and subject matter. The scale of penalties in Art. 70 is provided for successive service of sentences imposed on the same accused, in consideration of their severity and natures. The scales in Art. 71 are for the purpose of graduating the penalties by degrees in accordance with the rules in Art. 61. 55

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Classification of penalties under article 25: (1)

Based on their severity or gravity A. Capital, B. Afflictive, C. Correctional, D. Light This classification corresponds to the classification of felonies in Art. 9, into grave, less grave and light.

(2)

!

!

Perpetual or temporary absolute disqualification, perpetual, or temporary special disqualification, and suspension may be principal or accessory penalties. Bond to keep the place is imposed only in the crime of threats [Art. 284], either grave [Art. 282] or light threats [Art. 283].

Based on their nature A. Principal penalties Those expressly imposed by the court in the judgment of conviction. It may be further classified based on divisibility. DIVISIBLE Those that have fixed duration and are divisible into three periods. INDIVISIBLE Those which have no fixed duration. These are: (1) Death (2) Reclusion perpetua (3) Perpetual absolute or special disqualification (4) Public censure

B.

Reclusion Perpetua

Life Imprisonment

Eligible for parole after 30 years of imprisonment

Not eligible for parole after 30 years of imprisonment

Carries accessory penalties with it

Does not carry accessory penalties with it

Imposed by RPC

Imposed by Special Laws

Accessory penalties Those that are deemed included in the principal penalties.

Based on subject matter a. Corporal (death). b. Deprivation of freedom (reclusion perpetua and temporal, prision mayor and correccional, arresto mayor and menor). c. Restriction of freedom (destierro) d. Deprivation of rights (disqualification and suspension). e. Pecuniary (fine) Lasallian Commission on Bar Operations (3)

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DURATION AND EFFECTS

PENALTIES

Reclusion temporal Prision mayor, absolute disqualification and special temporary disqualification

TABLE SHOWING THE DURATION OF DIVISIBLE PENALTIES AND THE TIME INCLUDED IN EACH OF THEIR PERIODS

TIME INCLUDED IN THE PENALTY IN ITS ENTIRETY

TIME INCLUDED IN ITS MINIMUM PERIOD

TIME INCLUDED IN ITS MEDIUM PEDIOD

TIME INCLUDED IN ITS MAXIMUM PERIOD

From 12 years and 1 day to 20 years.

From 12 years and 1 day to 14 years and 8 months.

From 14 years, 8 months and 1 day to 17 years and 4 months.

From 17 years, 4 months and 1 day to 20 years.

From 6 years and 1 day to 12 years.

From 6 years and 1 day to 8 years.

From 8 years and 1 day to 10 years.

From 10 years and 1 day to 12 years

From 6 months and 1 day to 6 years.

From 6 months and 1 day to 2 years and 4 months.

From 2 years, 4 months and 1 day to 4 years and 2 months.

From 4 years, 2 months and 1 day to 6 years.

From 1 month and 1 day to months.

From 1 to 2 months.

From 2 months and 1 day to 4 months.

From 4 months and 1 day to 6 months.

From 1 to 30 days.

From 1 to 10 days.

From 11 to 20 days.

From 21 to 30 days.

Prision correccional,

suspension and destierro

Arresto mayor

Arresto menor

Art. 27, RPC – Durations

(2)

Afflictive Penalties: Reclusion Perpetua – 20 years and 1 day to 40 years Reclusion Temporal – 12 years and 1 day to 20 years Prision Mayor and Temporary Disqualification – 6 years and 1 day to 12 years except when disqualification is an accessory penalty, in which case its duration is that of the principal penalty.

(3)

In case of failure to give bond for good behavior. [Art.

284]

Correctional Penalties: Prision Correccional, suspension and destierro – 6 months and 1 days to 6 years except when suspension is an accessory penalty, in which case its duration is that of the principal penalty. Arresto mayor - 1 months and 1 day to 6 months. Arresto menor - 1 day to 30 days Bond to keep the peace - The period during which the bond shall be effective is discretionary on the court. In what cases is destierro imposed? (1) Serious physical injuries or death under exceptional circumstances. [Art. 247] Lasallian Commission on Bar Operations

As a penalty for the concubine in concubinage [Art.

334] (4)

In cases where after reducing the penalty by one or more degrees, destierro is the proper penalty. Art. 28, RPC - Computation

Rules: (to be done by Director of Prisons or warden) (1) When the offender is in prison – the duration of temporary penalties starts from the day the judgment of conviction becomes final. Applies in cases of temporary penalties and the offender is under detention (under preventive imprisonment) (2) When the offender is not in prison – the duration of penalties consisting in deprivation of liberty, starts from the day that the offender is placed at the disposal of judicial authorities for the enforcement of the penalty. Applies in cases of penalties consisting in deprivation of liberty and the offender is not in prison.

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The duration of other penalties – the duration starts from the day on which the offender commences to serve his sentence. Applies in cases of: Penalties consisting in deprivation of liberty and the offender are undergoing preventive imprisonment; but the offender is entitled to a deduction of the entirety of the time spent in detention (should the detention prisoner agree, in writing and with counsel, to abide by the same disciplinary rules imposed upon convicted prisoners) or 4/5ths of the time of his detention (should the detention prisoner not agree to the same, also in writing and with counsel). Temporary penalties and the offender is not under detention because the offender is released on bail. (3)

The following offenders are NOT entitled to be credited with the full time or four-fifths of the time of preventive imprisonment: Recidivists or those convicted previously twice or more times of any crime (reiteracion of 2 or more light felonies). NOTE: Includes habitual delinquents. Those who, upon being summoned for the execution of their sentence, failed to surrender voluntarily. Refers to convicts who failed to voluntarily surrender to serve their penalties under a final judgment, since this is indicative of a greater defiance of authority. !

Art. 29, RPC – Deduction/Credit of Detention period BAR 1994 Preventive Imprisonment Period of detention undergone by an accused where the crime with which he is charged is non-bailable or, even if bailable, he is unable to post the requisite bail:

These rules on preventive imprisonment apply to all sentences regardless of the duration thereof, including the so-called perpetual penalties as long as they involve deprivation of liberty.

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BAR 1994 When is the detention prisoner entitled to the full credit of his preventive imprisonment? If the detention prisoner agrees voluntarily in writing and with counsel to abide by the same disciplinary rules imposed upon convicted prisoners. When will he be credited only four-fifths (4/5) the time during which he has undergone preventive imprisonment? If the detention prisoner does not agree to abide by the same disciplinary rules imposed upon convicted prisoners. Said disagreement shall also be in writing and be made with the assistance of counsel.

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Art. 30, RPC – Absolute/Temporary Disqualification; effects Disqualification is the withholding of a privilege, not a denial of right – a restriction upon the right of suffrage or to hold office. Absolute disqualification; defined A disqualification to enter public offices and employments, the right to vote for any popular office, the right to be elected to such office. Perpetual absolute disqualification; defined An absolute disqualification effective during the lifetime of the convict and even after the service of the sentence. Temporary absolute disqualification; defined An absolute disqualification which lasts during the term of the sentence, and is removed after the service of the same. !

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In the case of a youthful offender who has been proceeded against under the Child and Youth Welfare Code, he shall be credited in the service of his sentence with the full time of his actual detention, whether or not he agreed to abide by the same disciplinary rules of the institution.

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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. The convict shall also be released immediately if the penalty imposed after trial is less than the full or 4/5ths of his preventive imprisonment, provided that the same is credited.

A plebiscite is NOT mentioned or contemplated in Art. 30, par. 2 (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. Art. 31 & 32, RPC – Special Disqualification; effects

Special Disqualification deprives the offender perpetually or during the term of the sentence of: 58

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(1) (2)

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The right to vote in any popular election for any public office, or To be elected to such office. BAR 2011

It does not deprive the offender of the right to vote in a plebiscite. Art. 33 & 34, RPC – Civil Interdiction; effects Civil interdiction deprives the offender of: ! The right of parental authority or guardianship of any ward (person or property); ! Marital authority; ! The right to manage his property and of the right to dispose of such property by any act or any conveyance inter vivos. But he can dispose of such property by will or donation mortis causa. Civil interdiction is imposed when the penalty is: (1)Death which is not carried out; (2)Reclusion perpetua; or (3)Reclusion temporal. Art. 35, RPC – Bond to keep the peace; effects Effects of bond to keep the peace

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The offender must present two sufficient sureties who shall undertake that the offender will not commit the offense sought to be prevented, and that in case such offense be committed they will pay the amount determined by the court; or

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The offender must deposit such amount with the clerk of court to guarantee said undertaking; or

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The offender may be detained, if he cannot give the bond, for a period not to exceed 6 months if prosecuted for a grave or less grave felony, or for a period not to exceed 30 days, if for a light felony.

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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

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Imposed as a penalty in threats [Art. 284]. Art. 36, RPC – Pardon; effects

Effects of pardon by the president: (1) A pardon shall not restore the right to hold public office or the right of suffrage. Exception: When any or both such rights is or are expressly restored by the terms of the pardon. (Absolute or conditional) Lasallian Commission on Bar Operations

(2)

It shall not exempt the culprit from the payment of the civil liability. Acceptance of pardon shall not operate as an abandonment of appeal or waiver of the appeal.

Limitations upon the exercise of the pardoning power: That the power can be exercised only after conviction “by final judgment”; That such power does not extend to cases of impeachment; No pardon, amnesty, parole or suspension of sentence for violation of election laws, rules, and regulation shall be granted by the president without the favorable recommendation of the COMELEC. General Rule: When the principal penalty is remitted by pardon, only the effect of that principal penalty is extinguished, but not the accessory penalties attached to it. Exception: When an absolute pardon is granted, it removes all the consequences of conviction, and it takes effect even after the term of imprisonment has expired. PARDON BY THE CHIEF EXECUTIVE [ART. 36]

PARDON BY THE OFFENDED PARTY [ART. 23]

As to the crime covered Can extend to any crime, Applies only to crimes unless otherwise provided against chastity under the by or subject to RPC and marital rape. conditions in the Constitution or the laws. As to the effect on civil liability Cannot affect the civil The offended party can liability ex delicto of the waive the civil liability. offender. As to extinguishment of criminal liability Extinguishes criminal Does NOT extinguish liability. criminal liability. Although it may constitute a bar to the prosecution of the offender in seduction, abduction and acts of lasciviousness by the valid marriage of the victim and the offender, and in adultery and concubinage, by the express or implied pardon by the offended spouses. When granted 59

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Can be extended only after conviction by final judgment of the accused.

Can be validly granted only before the institution of the criminal action

To whom granted To any or all of the In seduction, abduction accused. and acts of lasciviousness, it benefits the co principals, accomplices and accessories. In adultery and concubinage, it must include both offenders. As to whether it can be conditional May be absolute or Can be validly granted conditional. only before the institution of the criminal action Art. 37, RPC – Costs or costs of suit; defined These 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. The following are included in costs: (1) Fees, and (2) Indemnities, in the course of judicial proceedings. Costs are changeable to the accused only in cases of conviction. In case of acquittal, the costs are de officio, meaning each party bearing their own expenses No costs shall be allowed against the Republic of the Philippines, unless otherwise provided by law. The payment of cost is a matter that rests entirely upon the discretion of courts. The court cannot disregard the order of payment.

APPLICATION RPC PROVISIONS Art. 46, RPC – Imposable penalties on principals General rule: The penalty prescribed by law in general terms shall be imposed upon the principals for a consummated felony. Exception: When the penalty to be imposed upon the principal in a frustrated or attempted felony is fixed by law. Graduation of penalties: (1) By degrees – refers to: Stages of execution (consummated, attempted); and Lasallian Commission on Bar Operations

frustrated,

or

Degree of the criminal participation of the offender (whether as principal, accomplice or accessory).

(2) By periods - Refers to the proper period of the penalty which should be imposed when aggravating or mitigating circumstances attend the commission of the crime. SUSPENSION OF THE DEATH PENALTY Section 19 (1), Article III of the 1987 Constitution provides that: “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.” A reading of said Section will readily show that there is really nothing therein which expressly declares the abolition of death penalty. The 1987 Constitution merely suspended the imposition of the death penalty. R.A. NO. 7659 AND R.A. NO. 9346 Republic Act No. 7659 which took effect on December 31, 1993, restored the death penalty for certain heinous crimes. Republic Act No. 9346 which was enacted on June 24, 2006 prohibited the imposition of the death penalty, and provided for the imposition of the penalty of reclusion perpetua in lieu of death. • In other words, R.A. No. 7659 restored the death penalty while R.A. No. 9346 prohibited the imposition of the death penalty. Likewise, no death penalty shall be imposed upon children in conflict with law under Sec. 59, R.A. 9344. Penalty rules to be imposed upon the principals when the crime committed is different from that intended In cases in which the felony committed is different from that which the offender intended to commit, the following rules shall be observed: If the penalty for the felony committed be higher than the penalty for the offense which the accused intended to commit, the lower penalty shall be imposed in its maximum period. If the penalty for the felony committed be lower than the penalty for the offense which the accused intended to commit, the lower penalty shall be imposed in its maximum period. If the act committed also constitutes an attempt or frustration of another crime, and the law prescribes a higher penalty for either of the latter, the penalty for the attempted or frustrated crime shall be imposed in its maximum period. (Art. 49, RPC) 60

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ART. 49 APPLIES ONLY WHEN:

Note: For Articles 50-57 and 60, refer to Art. 61 herein provided.

(1)

(1)

(2)

There is a mistake in the identity of the victim of the crime, and the penalty for the crime committed is different from that for the crime intended to be committed.

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Article 49 cannot apply to cases involving aberratio ictus (mistake in blow) or praeter intentionem (where a more serious consequence not intended by the offender befalls the same person).

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However, in error in personae, since only one crime is produced by the act of the offender, there could be no complex crime, which presupposes the commission pf at least two crimes. It will be noted that only one person was affected by the single act of the offender; hence, only one crime was produced. For this reason, it is Article 49, and not Article 48, that is applicable. (Reyes, 2012, p. 709)

The intended crime and the crime actually committed are punished with different penalties. (i.e. qualified by relationship) The rules prescribed in paragraphs 1 and 2 of Article 49 contemplate of cases where the intended crime and the crime actually committed are punished with different penalties by reason of relationship between the offender and the offended party, which qualifies one of the crimes. If the intended crime and the crime actually committed are punished with same or equal penalties, Article 49 is not applicable. (Reyes, 2012, p. 710) DISTINCTION BETWEEN ARTICLES 48 & 49 Article 49

Article 48

Lesser penalty is imposed, to be applied in its maximum period.

Penalty for the more or most serious crime shall be imposed, to be applied in its maximum period.

RULE NO. 3 IN ARTICLE 49 The rule in paragraph 3 of Article 49 is not necessary because the cases contemplated in that paragraph may well be covered by Article 48, in view of the fact that the same act committed by the guilty person, which gives rise to one crime, also constitute(s) an attempt or a frustration of another crime. (Reyes, 2012)

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Additional penalties for public officers in section 58 who are guilty as accessories under paragraph 3 of article 19 Public officers who help the author of the crime by misusing their office and duties shall suffer the additional penalties of: Absolute perpetual disqualification if the principal offender is guilty of a grave felony; Absolute temporary disqualification if the principal offender is guilty of a less grave felony. (Sec. 58) This article applies only to public officers who abused their public functions. The additional penalty prescribed in this article will be imposed only on those accessories whose participation in the crime is characterized by the misuse of public office or authority. This is so because Article 58 says “who should act with abuse of their public functions.” (Reyes, 2012) BASIS FOR THE IMPOSITION OF PROPER PENALTY (1) Social danger; and (2) Degree of criminality shown by the offender. RULES FOR THE APPLICATION OF PENALTIES WITH REGARD TO THE MITIGATING AND AGGRAVATING CIRCUMSTANCES, AND HABITUAL DELINQUENCY Effects of the attendance of aggravating or mitigating circumstances or of habitual delinquency: Aggravating circumstances (generic and specific) have the effect of increasing the penalty, without however exceeding the maximum period provided by law. Mitigating circumstances have the effect of diminishing the penalty. Habitual delinquency has the effect, not only of increasing the penalty because of recidivism which is generally implied in habitual delinquency, but also of imposing an additional penalty. UNDER PARAGRAPH 1 OF ARTICLE 62: Aggravating circumstances which (a) in themselves constitute a crime especially punished by law (e.g. crime committed by means of fire is not considered aggravating in arson) or which (b) are included by the law in defining a crime and prescribing the penalty therefore are not to be taken into account to increase the penalty (e.g. abuse in confidence is not qualified theft committed with grave abuse of confidence). WHEN MAXIMUM PENALTY IMPOSED (1) When in the commission of the crime, advantage was taken by the offender of his public position; or 61

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(2)

If the offense was committed by any person who belongs to an organized/syndicated crime group which means a group of two or more persons collaborating confederating or mutually helping one another for purpose of gain in the commission of any crime.

UNDER PARAGRAPH 2 OF ARTICLE 62: The same rule applies with respect to aggravating circumstances which are inherent in the crime (e.g. evident premeditation is inherent in robbery and theft). UNDER PARAGRAPH 3 OF ARTICLE 62 (1) Aggravating or mitigating circumstances which arise from the following serve to aggravate or mitigate the liability of the principals, accomplices and accessories as to whom such circumstances are attendant:

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principal by induction when he left to the principal by direct participation the means, modes or methods of the commission of the felony. (Reyes, 2012, p. 731) The means employed to accomplish it When the offender did not know that the other offender employed an act not known by the former, such aggravating circumstance is only applicable to the latter. NO MITIGATING CIRCUMSTANCE RELATING TO THE MEANS EMPLOYED IN THE EXECUTION OF THE CRIME It is impossible to conceive of any mitigating circumstances which can properly be considered as to one of the defendants, but is not equally applicable to the others, even to those who had no knowledge of the same at the time of the commission of the crime, or their cooperation therein. (Reyes, 2012, p. 732) DIFFERENCE BETWEEN:

(2)

(3)

(4)

The moral attributes of the offender; or The state of the offender’s minds are different. Hence, when an offender used evident premeditation in killing the victim, it should affect and aggravate only his penalty, while when the other offender applied passion and obfuscation in the crime, only he will benefit in mitigating his liability. (Reyes, 2012, p. 730) From his private relations from the offended party; A, son of B, and C, father of B, inflicted slight physical injuries on B. In this case, the alternative circumstance of relationship as aggravating shall be taken into account against A only, because he is a relative of a lower degree than the offended party, B. Relationship is mitigating as regards C, he being a relative of a higher degree than the offended party, B. (Reyes, 2012, p. 730) Or from any other personal cause. A and B committed a crime. A was under 16 years of age and B was a recidivist. (Reyes, 2012, p.730)

UNDER PARAGRAPH 4 OF ARTICLE 62: The circumstances which consist in the following shall serve to aggravate or mitigate the liability only of those persons who had knowledge of them at the time of the execution of the act or their cooperation therein: Material execution of the act; or When the offender was present and had knowledge of the treachery with which the crime was committed by the other offenders, he is also liable for murder, qualified by treachery. However, such circumstance should not be considered against the Lasallian Commission on Bar Operations

CIRCUMSTANCE RELATING TO THE PERSONS PARTICIPATING IN THE CRIME

CIRCUMSTANCES CONSISTING IN THE MATERIAL EXECUTION OR MEANS EMPLOYED

Do not affect all the participants in the crime, but only those to whom they particularly apply.

Have a direct bearing upon the criminal liability of the defendants who had knowledge thereof at the time of the commission of the crime, or their cooperation therein.

UNDER PARAGRAPH 5 OF ARTICLE 62: Habitual Deliquency, defined A person is a habitual delinquent if within a period of ten years from the date of his (last) release or last conviction of the crimes of (1) serious or less serious physical injuries, (2) robo, (3) hurto, (4) estafa, or (5) falsificación, he is found guilty of any of said crimes a third time or oftener. Requisites of habitual delinquency (1) That the offender had been convicted of any of the crimes of: • Serious or less serious physical injuries, • Robbery, • Theft, • Estafa, or • Falsification. Note: The crimes are specified in habitual delinquency. If not among those enumerated, offender cannot be a habitual delinquent even if he was convicted for the third time. 62

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(2)

(3)

That after conviction or after serving his sentence, he again committed, and within 10 years from his last release of first conviction, he was again convicted of any of the said crimes for the second time. That 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.

Computation of ten year period The law expressly mentions the defendant’s last conviction OR (last) release as the starting point from which the tenyear period should be counted. If the starting point is only the date of the last conviction, there will be a case where the offender cannot be considered a habitual delinquent.

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Habitual Delinquency

Recidivism

As to the CRIMES committed The crimes are specified

It is sufficient that the accused on the date of his trial, shall have been previously convicted by final judgment of another crime embraced in the same title.

As to the PERIOD of time the crimes are committed The offender is found guilty within ten years from his last release or last conviction.

No period of time between the former conviction and the last conviction.

As to the NUMBER of crimes committed ADDITIONAL PENALTY FOR HABITUAL DELINQUENCY: Upon 3rd conviction Culprit shall be sentenced to the penalty provided by law for the last crime of which he is found guilty and to the additional penalty of prision correccional in its medium and maximum periods. Upon a 4th conviction The culprit shall be sentenced to the additional penalty of prision mayor in its minimum and medium periods. Upon 5th or additional conviction The culprit shall be sentenced to the additional penalty of prision mayor in its maximum period to reclusion temporal in its minimum period. NOTE: total of the two penalties [(1) the penalty for the last crime found guilty and (2) the additional penalty for being a habitual delinquent]. shall not exceed 30 years. Reason for imposing additional penalty He is deemed to have shown a dangerous propensity to crimes. Hence, he is punished with a severer penalty for committing any of those crimes the third time or oftener. Subsequent crime must be committed after conviction of former crime In order that an accused may be legally deemed a habitual criminal, it is necessary that he committed the second crime after his conviction of, or after service of the sentence for, the first crime; that he committed the third crime after his conviction of, or after the service of sentence for the second crime and so on. (Reyes, 2012) Recidivist, defined 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. Lasallian Commission on Bar Operations

The accused must be found guilty the third time or oftener of the crimes specified.

The second offense is for an offense found in the same title.

As to their EFFECTS If not offset by a mitigating circumstance, it serves to increase the penalty only to the maximum. AND an additional penalty is also imposed.

If not offset by a mitigating circumstance, it serves to increase the penalty only to the maximum.

RULINGS ON HABITUAL DELINQUENCY ! Ten year period computed either from last conviction or last release. ! Ten year period is counted not to the date of commission of subsequent offense, but to the date of conviction thereof in relation to the date of his last release or last conviction. ! When an offender has committed several crimes mentioned in the definition of habitual delinquent, without being first convicted of any of them before committing the others, he is not a habitual delinquent. ! Convictions on the same day or about the same time are considered as one only. ! Crimes committed on the same date, although convictions on different dates are considered only one. ! Previous convictions are considered every time a new offense is committed. ! The commission of any of those crimes need not be consummated. 63

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! ! ! !

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Habitual delinquency applies to accomplices and accessories. The imposition of the additional penalty prescribed by law is mandatory. Modifying circumstances applicable to additional penalty. Habitual delinquency is not a crime but simply a fact or circumstance which gives rise to the imposition of additional penalties. Penalty for habitual delinquency is a real penalty that determines jurisdiction. A habitual delinquent is necessarily a recidivist. But a convict can be a habitual delinquent without being a recidivist when no two of the crimes committed are embraced in the same title of the RPC. But in imposing the additional penalty, recidivism is not aggravating because inasmuch as recidivism is a qualifying or inherent circumstance in habitual delinquency, it cannot be considered an aggravating circumstance at the same time. (Reyes, 2012, 739-744)

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One aggravating only No mitigating aggravating

Greater Penalty nor

One mitigating only Mitigating and aggravating

Lesser penalty

Lesser penalty Courts allow them to offset one another

WHEN ARTICLE 63 NOT APPLIED Article 63 does not apply when the penalty prescribed by the Code is reclusion temporal in its maximum period to death, because although the penalty includes the two indivisible penalties of death and reclusion perpetua, it has three periods; namely, the minimum (reclusion temporal maximum), medium (reclusion perpetua) and maximum (death). Hence, in that case, Article 64 shall apply.

IMPOSABLE PENALTY, DEFINED The penalty that will be imposed after applying the RPC and ISL.

GENERAL RULE: When the penalty is composed of two indivisible penalties, the penalty cannot be lowered by one degree, no matter how many ordinary mitigating circumstances are present.

PRESCRIBED PENALTY, DEFINED The penalty prescribed by the RPC after considering the mitigating and aggravating circumstances.

EXCEPTION: When a privileged mitigating circumstance under Article 68 or Article 69 is present.

OUTLINE OF THE RULES UNDER ARTICLE 63 (1) When the penalty is single indivisible, it shall be applied regardless of any mitigating (except if privileged mitigating) or aggravating circumstances. (2) When the penalty is composed of two indivisible penalties, the following rules shall be observed: A. When there is only one aggravating circumstance, the greater penalty shall be imposed. B. When there is neither mitigating nor aggravating circumstances, the lesser penalty shall be imposed. C. When there is a mitigating circumstance and no aggravating circumstance, the lesser penalty shall be imposed. D. When both mitigating and aggravating circumstances are present, the court shall allow them to offset one another. Note: Moral value, not numerical weight, of circumstances should prevail under (d).

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WHEN ARTICLE 64 IS APPLIED It is applied when the penalty prescribed by law for the offense is reclusion temporal, prision mayor, prision correccional, arresto mayor, arresto menor, or prision correccional to reclusion temporal because they are divisible into three periods; namely, minimum, medium and maximum. WHEN 64 NOT APPLICABLE It does not apply to (1) indivisible penalties, (2) penalties prescribed by special laws, and (3) fines. OUTLINE OF THE RULES (1) No aggravating and no mitigating Medium period. (2) Only mitigating Minimum period. (3) Only aggravating Maximum period. (4) Where there are aggravating and mitigating The court shall offset those of one class against the other according to their relative weight. 5) Two or more mitigating and no aggravating 64

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Penalty next lower, in the period applicable, according to the number and nature of such circumstances (6) If there are three mitigating circumstances but two aggravating circumstances The court shall offset those of one class against the other according to their relative weight. (7) No penalty greater than the maximum period of the penalty prescribed by law shall be imposed, no matter how many aggravating circumstances are present. (8) The court can determine the extent of the penalty within the limits of each period, 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. MEANING OF THE RULE UNDER ARTICLE 65 Compute and determine the first three periods of the entire penalty. The time included in the penalty prescribed should be divided into three equal portions, after subtracting the minimum (eliminate the 1 day) of the given penalty. The minimum of the minimum period should be the minimum of the given penalty (including the 1 day). The quotient should be added to the minimum prescribed (eliminate the 1 day) and the total will represent the maximum of the minimum period. Take the maximum of the minimum period, add 1 day and make it the minimum of the medium period; then add the quotient to the minimum (eliminate the 1 day) of the medium period and the total will represent the maximum of the medium period. Take the maximum of the medium period, add 1 day and make it the minimum of the maximum period; then add the quotient to the minimum (eliminate the 1 day) of the maximum period and the total will represent the maximum of the maximum period. OUTLINE OF THE PROVISIONS UNDER ARTICLE 66 (1) The court can fix any amount of the fine within the limits established by law. (2) The court must consider: A. The mitigating and aggravating circumstances; B. More particularly, the wealth or means of the culprit. (3) The court may also consider: A. The gravity of the crime committed; B. The heinousness of its perpetration; and C. The magnitude of its effect on the offender’s victim. (People vs. Manuel CA-G.R. Nos. 1464861-R, July 6, 1957) Lasallian Commission on Bar Operations

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When the minimum of the fine is not fixed by law, the determination of the amount of fine is left to the sound discretion of the court, provided it shall not exceed the maximum authorized by law. The courts are not bound to divide the amount of fine prescribed by law into three equal portions as in the case of imprisonment imposed in relation to a divisible penalty. Wealth or means of culprit is the main consideration in the imposition of fines because a fixed amount of fine for all offenders of a particular crime, will result in an inequality. Where a person found guilty is a man of standing or station in the community, the maximum penalty should be imposed. WHEN ARTICLE 67 IS APPLIED It applies only when all the requisites of the exempting circumstance of accident are not present. The following conditions are necessary to exempt from liability under Subsection 4 of Article 12: (1) That the act causing the injury be lawful; that is, permitted not only by law but also by regulations. (2) That it be performed with due care; (3) That the injury be caused by mere accident, by an unforeseen event. (4) That there be no fault or intention to cause injury. If not all the conditions necessary to exempt from liability under art 12 (4) are present, the act should be considered as: Reckless imprudence if the act is executed without taking those precautions or measures which the most common prudence would require; and Simple imprudence if it is a mere lack of precaution in those cases where either the 2threatened harm is not imminent or the danger is not openly visible. The penalty provided in Article 67 is the same as that in Article 365.

Penalty to be imposed when the crime committed is not wholly excusable under article 69 Lower by one or two degrees than that prescribed by law. WHEN ARTICLE 69 IS APPLIED When there is a lack of some of the conditions required to justify the deed or to exempt from criminal liability in the several cases mentioned in Arts. 11 and 12; PROVIDED THAT, majority of such conditions be present. When two of the essential requisites for justification are present, the penalty lower by two degrees may be 65

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imposed. Where only unlawful aggression is present, the penalty next lower may be imposed. When the majority of the requisites of self-defense and two mitigating circumstance without aggravating circumstances are present, the penalty is three degrees lower.

Imprisonment must be served before destierro. Arresto menor is more severe than destierro.

OUTLINE OF THE PROVISIONS OF ARTICLE 70 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 order of their severity (under this article) shall be followed. The respective severity of the penalties is as follows: A. Death, B. Reclusion perpetua, C. Reclusion temporal, D. Prision mayor, E. Prision correccional, F. Arresto mayor, G. Arresto menor, H. Destierro, I. Perpetual absolute disqualification, J. Temporary absolute disqualification, K. Suspension from public office, the right to vote and be voted for, the right to follow a profession or calling, and L. Public censure.

CONCEPT OF INDETERMINATE SENTENCE - is a sentence with a minimum term and a maximum term which, the court is mandated to impose for the benefit of a guilty person who is not disqualified therefore, when the maximum imprisonment exceeds one (1) year. It applies to both violations of Revised Penal Code and special laws.

(1)

(2) (3)

PENALTIES WHICH MAY BE SIMULTANEOUSLY SERVED ARE THE FOLLOWING: Perpetual absolute disqualification, Perpetual special disqualification, Temporary absolute disqualification, Temporary special disqualification, Suspension, Destierro, Public censure, Fine and bond to keep the peace, Civil interdiction, and Confiscation and payment of costs.

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The above-listed penalties can be simultaneously served with imprisonment except for destierro.

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If the sum total of all the penalties does NOT exceed the most severe of all the penalties multiplied by three, the three-fold rule does NOT apply.

INDETERMINATE SENTENCE LAW (ISL) Act No. 4103 as amended by Act No. 4225

In sentencing a convict, there is a need for specifying the minimum and maximum periods of the indeterminate sentence. It is to prevent the unnecessary and excessive deprivation of liberty and to enhance the economic usefulness of the accused, since he may be exempted from serving the entire sentence, depending upon his behavior and his physical, mental and moral record. The requirement of imposing an indeterminate sentence in all criminal offenses whether punishable by the RPC or by special laws, with definite minimum and maximum terms, as the court deems proper within the legal range of the penalty specific by the law, must be deemed mandatory. SENTENCE IN THE ISL If the penalty is imposed by the RPC

If the penalty is imposed by Special Penal Laws

Maximum Term That which could be Must not exceed the properly imposed under maximum term fixed by the RPC, considering the said law. aggravating and mitigating circumstances Minimum term

ORDER OF RESPECTIVE SEVERITY OF PENALTIES SHALL BE FOLLOWED Thus, where the convict was sentenced on different dates, it was held that he should serve the two terms successively and the time of the second sentence did not commence to run until the expiration of the first. Lasallian Commission on Bar Operations

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Within the range of the penalty one degree lower than that prescribed by the RPC, without considering the circumstances Note: BUT when there is a privileged mitigating circumstance, so that the penalty has to be lowered by one degree, the STARTING POINT for determining the minimum term of the indeterminate penalty is the penalty next lower than that prescribed by the Code for the offense.

Criminal Law

Must not be less than the minimum term prescribed by the same. Note: For special laws, it is anything within the inclusive range of the prescribed penalty. Courts are given discretion in the imposition of the indeterminate penalty. The aggravating and mitigating circumstances are not considered unless the special law adopts the same terminology for penalties as those used in the RPC (such as reclusion perpetua and the like)

The modifying circumstances are considered only in the imposition of the maximum term of the indeterminate sentence. They are NOT considered in fixing the minimum WHEN BENEFIT OF THE ISL IS NOT APPLICABLE: (1) Those sentenced to death penalty, reclusion perpetua, or life imprisonment; (2) Those convicted of treason, or conspiracy or proposal to commit treason; (3) Those convicted of misprision of treason, rebellion, sedition or espionage; (4) Those convicted of piracy; (5) Habitual delinquents; (6) Those who have escaped from confinement as a prisoner, or evaded sentence; (7) Those granted with conditional pardon by the president, but subsequently violated the terms thereof; (8) Those with a maximum term of imprisonment actually imposed does not exceed 1 year; (9) Those sentenced to the penalty of destierro or suspension only. ILLUSTRATION OF APPLICATION OF THE INDETERMINATE SENTENCE LAW Under the Revised Penal Code: A penalty of reclusion temporal was imposed upon the individual X for committing homicide. There is a mitigating or aggravating circumstance • Maximum term – reclusion temporal which should be imposed in the medium period. [Art 64 par. 1] Lasallian Commission on Bar Operations

•

Minimum term – anywhere within the range of prision mayor the penalty next lower from reclusion temporal.

There is one ordinary mitigating circumstance • Maximum term - reclusion temporal, in its minimum period, after considering the mitigating circumstance. • Minimum term- anywhere within the range of prision mayor without reference to any of its periods. There is one aggravating circumstance • Maximum term – reclusion temporal in its maximum period after considering the aggravating circumstance. • Minimum term anywhere within the range of prision mayor without reference to any of its periods. Under special law/s: Individual X is convicted of illegal possession of firearms, which is punishable by 1 year and 1 day to 5 years of imprisonment. • Maximum term – shall not exceed 5 years as fixed by law. • Minimum term – shall not be less than the minimum of 1 year and 1 day prescribed by said law. Release of the prisoner on parole The Boards of Pardons and Parole may authorize the release of a prisoner on parole, after he shall have served the minimum penalty imposed on him, PROVIDED that: (1) Such prisoner is fitted by his training for release; (2) There is reasonable probability that he will live and remain at liberty without violating the law (3) Such release will not be incompatible with the welfare of society. Entitlement to final release and discharge If during the period of surveillance, such paroled prisoner shall: (1) Show himself to be law-abiding citizen; and (2) Shall not violate any law. The board may issue a final certification in his favor of his final release and discharge. Sanction for violation of condition of the parole When the paroled prisoner shall violate any of the conditions of his parole: (1) The board may issue an order for his arrest; and thereafter, (2) The prisoner shall serve the remaining unexpired portion of the maximum sentence for which he was originally committed to prison.

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THREE-FOLD RULE (3–4–40)

SUBSIDIARY IMPRISONMENT SUBSIDIARY PENALTY, DEFINED

If the convict is to serve 4 or more sentences successively, observe the following rules — (1) The maximum duration of the convict’s sentence shall NOT be more than 3 times the length of the time corresponding to the most severe of the penalties imposed upon him. (2) In no case will such maximum duration exceed 40 years NOTE: The law has limited the duration of the maximum term of imprisonment to not more than 40 years, hence the accused will have to suffer 40 years only. (3)

(4)

This rule shall apply only when the convict is to serve at least four or more sentences successively or the sum total of all the penalties exceed the most severe one multiplied by 3. Subsidiary penalty forms part of the penalty. NOTE: The imposition of three-fold maximum penalty under Article 70 does not preclude subsidiary imprisonment for failure to pay a fine. The rule is to multiply the highest penalty by 3 and the result will be the aggregate principal penalty which the prisoner has to serve, plus the payment of all indemnities with or without subsidiary imprisonment, provided the principal penalty does not exceed six years.

NOTE: If the sum total of all the penalties does not exceed the most severe of all the penalties, multiplied by 3, then the 3-fold rule does NOT apply. The 3-fold rule applies only when the convict has to serve continuous imprisonment for several offenses. If the convict already served sentence for one offense, that imprisonment will NOT be considered. Example: X is sentenced to suffer 14 years, 8 month, and 1 day for homicide; 17 years, 4 months and 1 day in another case; 14 years and 8 months in a third case, and 12 years in a fourth case. The total is 59 years, 8 months and 2 days. The most severe of those penalties is 17 years, 4 months and 1 day. Three times that penalty is 52 years and 3 days. But since the law has limited the duration of the maximum term of imprisonment to not more than 40 years, the accused will have to suffer 40 years only.

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It is a subsidiary 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 eight pesos (P8.00), subject to the rules provided for in Art. 39. !

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Subsidiary penalty shall be proper only if the accused has no property with which to pay the fine and not as a matter of choice on his part by opting to go to jail instead of paying. There is no subsidiary penalty for nonpayment of: (1) the reparation of the damage caused; (2) indemnification of consequential damages; and (3) the costs of the proceedings. (Ramos vs. Gonong) A fine, whether imposed as a single or as an alternative penalty, should not and cannot be reduced or converted into a prison term. There is no rule for transmutation of the amount of a fine into a term of imprisonment. (People vs. Dacuycuy, 1989) Subsidiary penalty is NOT AN ACCESSORY PENALTY, hence it must be SPECIFICALLY imposed by the court in its judgment. Therefore, the culprit cannot be made to undergo subsidiary imprisonment unless the judgment expressly so provides. (People v. Fajardo)

Rules as to subsidiary liability in RPC PENALTY IMPOSED 1. Prision

correccional or arresto AND fine

2. Fine only

3. Higher than

SUBSIDIARY PENALTY Subsidiary imprisonment is not to exceed 1/3 of the term of the sentence, and in no case is it to continue for more than one year. A fraction or a part of a day is not counted. Subsidiary imprisonment: a. Not to exceed 6 months if the culprit is prosecuted for a grave or less grave felony, and b. Not to exceed 15 days if prosecuted for a light felony. No subsidiary imprisonment.

prision correccional 4. If the penalty imposed is not to be executed by confinement, but of fixed duration with fine.

Subsidiary penalty shall consist in the same deprivation as those of the principal penalty, under the same rules as No. 1, 2 and 3 above.

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Criminal Law

In case the financial circumstances of the convict should improve, he shall pay the fine, notwithstanding the fact that the convict suffered subsidiary personal liability therefore. When the penalty prescribed for the offense is imprisonment, it is the penalty actually imposed by the Court, not the penalty provided for by the Code, which should be considered in determining whether or not subsidiary penalty should be imposed. R.A. 10159 has already amended Art. 39 of the RPC. It now provides minimum wage rate of the region, instead of P8.00. RULES AS TO SUBSIDIARY LIABILITY IN SPECIAL LAWS (ACT. 1732 OF PHILIPPINE COMMISSION) PENALTY IMPOSED Fine only

Fine and imprisonment

Violation of any municipal ordinance or ordinance of the City of Manila

SUBSIDIARY PENALTY Subsidiary liability shall not exceed 6 months, at the rate of one day of imprisonment for every P2.50. The subsidiary penalty shall not exceed 1/3 of the term of imprisonment, and in no case shall it exceed 1 year. The rate is one day for every P1.00, until the fine is satisfied, provided, that the total subsidiary imprisonment does not exceed 6 months, if the penalty imposed is fine alone, and not more than 1/3 of the principal penalty, if it is imposed together with imprisonment.

No subsidiary penalty shall be imposed where: (1) The penalty imposed is higher than prision correccional or 6 years; Additional penalty for habitual delinquency should be included in determining whether or not subsidiary penalty should be imposed. (2) For nonpayment of reparation of the damage caused, indemnification of consequential damages and the cost of the proceedings; (3) Where the penalty imposed is a fine and another penalty without fixed duration, like censure; and (4) The subsidiary penalty, through properly imposable is not expressly stated in the judgment. Note: The rules on subsidiary penalty in Art. 39 are applicable to crimes punishable by special laws by force of Article 10 of this Code.

GRADUATION OF PENALTIES Lasallian Commission on Bar Operations

RULES FOR APPLICATION OF PENALTIES TO THE PERSONS CRIMINALLY LIABLE AND FOR THE GRADUATION OF THE SAME GENERAL RULE: The penalty prescribed by law in general terms shall be imposed upon the principals for a consummated felony. EXCEPTION: When the penalty to be imposed upon the principal in a frustrated or attempted felony is fixed by law. GRADUATION OF PENALTIES By degrees – refers to: Stages of execution (consummated, frustrated, or attempted); and Degree of the criminal participation of the offender (whether as principal, accomplice or accessory). By periods Refers to the proper period of the penalty which should be imposed when aggravating or mitigating circumstances attend the commission of the crime. RULES FOR GRADUATING PENALTIES IN RULE 61 According to Article 46, the penalty prescribed by law in general terms shall be imposed upon the principal in a consummated felony. According to Articles 50-57, the penalty prescribed by law for the felony shall be lowered by one or two degrees, as follows: For the principal in frustrated felony One degree lower; For the principal in attempted felony Two degrees lower; For the accomplice in consummated felony One degree lower; For the accessory in consummated felony Two degrees lower;

DIAGRAM OF THE APPLICATION OF ARTS. 50-57 Consummated

Frustrated

Attempted

Principal

0

1

2

Accomplice

1

2

3

Accessory

2

3

4 69

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In this diagram, “0” represents the penalty prescribed by law in defining a crime, which is to be imposed on the principal in a consummated offense, in accordance with the provisions of Art. 46. The other figures represent the degrees to which the penalty must be lowered, to meet the different situations anticipated by law. Bases for the determination of the extent of penalty to be imposed under the RPC: Stage reached by the crime in its development (attempted, frustrated or consummated). Participations therein of the persons liable. Aggravating or mitigating circumstances which attended the commission of the crime. DEGREE, DEFINED One unit of the penalties enumerated in the graduated scales provided for in Art. 71. When there is mitigating or aggravating circumstance, the penalty is lowered or increased by period only; PERIOD, DEFINED One of the three equal portions, called minimum, medium and maximum, of a divisible penalty. EXCEPTIONS TO THE RULES ESTABLISHED IN ARTICLES 50-57 (ARTICLE 60) Articles 50 to 57 shall NOT apply to cases where the law expressly prescribes the penalty for a frustrated or attempted felony, or to be imposed upon accomplices or accessories. [Art. 60] GENERAL RULE: An accomplice is punished by a penalty one degree lower than the penalty imposed upon the principal. EXCEPTIONS: The following accomplices are punished with the same penalty imposed upon the principal: The ascendants, guardians, curators, teachers, and any person who by abuse of authority or confidential relationship, shall cooperate as accomplices in the crime of rape, acts of lasciviousness, seduction, corruptions of minors, white slave trade or abduction [Art. 346]; and One who furnished the place for the perpetration of the crime of slight illegal detention. (Art. 268, RPC) ILLUSTRATION OF THE RULES

FIRST RULE When penalty prescribed is single and indivisible such as that found in Scale No. 1 of Article 71, the penalty immediately following reclusion perpetua (for the crime of kidnapping and failure to return a minor) is reclusion temporal. The penalty next lower in degree, therefore, is

reclusion temporal. Lasallian Commission on Bar Operations

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SECOND RULE One divisible penalty to be imposed to its full extent is reclusion temporal; and two divisible penalties to be imposed to their full extent are prision correccional to prision mayor. The penalty immediately following the divisible penalty of reclusion temporal in Scale No. 1 of Article 71 is prision mayor; and the penalty immediately following the lesser of the penalties of prision correccional to prision mayor is arresto mayor.

THIRD RULE When the penalty prescribed is composed of two indivisible penalties and one divisible penalty in its maximum period – the penalty next lower in degree shall be composed of the medium and minimum of the proper divisible penalty and the maximum of the penalty immediately following in the graduated scale;

SIMPLIFIED RULES FOR FOURTH AND FIFTH RULE If the penalty prescribed by the code consists in three periods, corresponding to different divisible penalties, the penalty next lower in degrees is the penalty consisting in the three periods down in the scale; If the penalty prescribed by the Code consists of two periods, the penalty next lower in degree is the penalty consisting in the three periods down in the scale; If the penalty prescribed by the code consists of only one period, the penalty next lower in degree is the next period down in the scale. MITIGATING AND AGGRAVATING CIRCUMSTANCES ARE DISREGARDED IN THE APPLICATION OF THE RULES FOR GRADUATING PENALTIES ! It will be noted that each paragraph of Article 61 begins with the phrase, “when the penalty prescribed for the felony” or “crime”. Hence, in lowering the penalty, the penalty prescribed by the Revised Penal Code for the crime is the basis, without regard to the mitigating or aggravating circumstance which attended the commission of the crime. ! It is only after the penalty next lower in degree is already determined that the mitigating and/or aggravating circumstances should be considered. APPLY ARTICLE 71 IN DETERMINING THE PROPER DEGREE WHERE THE LAW PRESCRIBES A PENALTY LOWER OR HIGHER BY TWO OR MORE DEGREES THAN ANOTHER GIVEN PENALTY (1) (2) (3) (4) (5)

SCALE NO. 1 Death

Reclusion perpetua Reclusion temporal Prision mayor Prision correccional

SCALE NO. 2 (1) Perpetual absolute disqualification (2) Temporary absolute disqualification (3) Suspension from 70

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(6) (7) (8) (9) (10)

Arresto mayor Destierro Arresto menor Public censure Fine

All personal penalties such as deprivation of life and liberty are grouped together.

Criminal Law

public office, the right to vote and be voted for, and the right to follow a profession or calling (4) Public censure Fine All penalties consisting in deprivation of political rights are grouped together.

DEATH IN THE GRADUATED SCALES (1) Since R.A. No. 9346 unequivocally bars the application of the death penalty, as well as expressly repeals all such statutory provisions requiring the application of the death penalty, such effect necessarily extends to its relevance to the graduated scale of penalties under Article 71. (2) Henceforth, “death”, as utilized in Article 71 of the Revised Penal Code, shall no longer form part of the equation in the graduation of the penalties. (People vs.

Bon, 2006)

DESTIERRO NEXT IN DEGREE FROM ARRESTOR MAYOR • The scale of penalties in Article 71 which places destierro below arresto mayor cannot be disregarded and the respective severities of arresto mayor and destierro must not be judged by the duration of each of these penalties, but by the degree of deprivation of liberty involved. The penalty next lower in degree from arresto mayor is destierro. (Uy

Chin Hua vs. Dinglasan) •

•

Destierro, although a correctional penalty consisting in banishment with a duration of 6 months and 1 day to 6 years is considered not higher than arresto mayor which is imprisonment of 1 month and 1 day to 6 months. Under B.P. Blg. 129, MTCs shall exercise exclusive original jurisdiction over all offenses punishable with imprisonment not exceeding 6 years irrespective of the amount of fine, etc.

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ARTICLES 25, 70 AND 71, COMPARED ARTICLE 25

ARTICLE 70

ARTICLE 71

Penalties are classified into principal and accessory penalties. The principal penalties are subdivided into capital, afflictive, correctional and light.

Penalties are classified for the purpose of the successive service of sentences according to their severity.

Provides for the scales which should be observed in graduating the penalties by degrees in accordance with Article 61.

Destierro

Destierro placed

is under

Destierro

placed

arresto

menor

is above arresto menor, because it is classified as a correctional penalty.

according to their respective severity. Destierro is considered lighter than arresto menor. This speaks of severity.

is above arresto menor. Reason for which is that destierro being classified as a correctional penalty is higher than arresto menor, a light penalty. This speaks of lower or higher. placed

The different penalties provided for in Article 25 are classified and grouped into two graduated scales.

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ACCESSORY PENALTIES EFFECT OF ACCESSORY PENALTIES Perpetual or Temporary Absolute Disqualification (Art. 30) (1) The deprivation of the public offices and employments which the offender may have held even if conferred by popular election (2) The deprivation of the right to vote in any election for any popular office or to be elected to such office (3) The disqualification for the offices or public employments and for the exercise of any of the rights mentioned (4) The loss of all rights to retirement pay or other pension for any office formerly held Perpetual or Temporary Special Disqualification (Art. 31, 32) Perpetual or temporal special disqualification for public office, profession or calling — (1) The deprivation of the office, employment, profession or calling affected (2) The disqualification for holding similar offices or employments either perpetually or during the term of the sentence according to the extent of such disqualification Perpetual or temporary special disqualification for the exercise of the right of suffrage — (1) The deprivation of the offender perpetually or during the term of the sentence, according to the nature of said penalty, of the right to vote in any popular election for any public office or to be elected to such office (2) The offender shall not be permitted to hold any public office during the period of his disqualification (1)

(2)

Suspension (Art. 33) The offender is disqualified from holding such office or exercising such profession or calling or right of suffrage during the term of the sentence. The person suspended from holding public office shall not hold another having similar functions during the period of his suspension

Criminal Law

Indemnification Includes the consequential damage caused the injured party and those suffered by his family or by a third person by reason of the crime. Confiscation and Forfeiture of the Proceeds or Instruments of the Crime Forfeiture of the proceeds of the crime and the instruments or tools with which it was committed NOTE: Every penalty imposed for the commission of a felony shall carry with it the accessory penalty of forfeiture or confiscation. Such proceeds and instruments or tools shall be confiscated and forfeited in favor of the Government, unless they be property of a third person not liable for the offense, but those articles which are not subject of lawful commerce shall be destroyed. PAYMENT OF COSTS Includes fees and indemnities in the course of the judicial proceedings — whether they be fixed or unalterable amounts previously determined by law or regulations in force, or amounts not subject to schedule. OUTLINE OF ACCESSORY PENALTIES INHERENT IN PRINCIPAL PENALTIES UNDER ARTICLE 40 TO 44

(1) Death, when not executed by reason of commutation or pardon A. B.

Perpetual absolute disqualification; and Civil interdiction during 30 years, if not expressly remitted in the pardon.

(2) Reclusion perpetua and reclusion temporal A. B.

Civil interdiction for life or during the sentence; and Perpetual absolute disqualification, unless expressly remitted in the pardon of the principal penalty.

(3) Prision mayor Temporary absolute disqualification; and Perpetual special disqualification from suffrage, unless expressly remitted in the pardon of the principal penalty.

Civil Interdiction (Art. 34) The offender, during the time of his sentence, is deprived of — (1) The rights of parental authority, or guardianship, either as to the person or property of any ward, (2) Marital authority (3) The right to manage his property (4) The right to dispose of such property by any act or any conveyance inter vivos Lasallian Commission on Bar Operations

(4) Prision correccional A. B.

Suspension from public office, profession or calling; and Perpetual special disqualification from suffrage, if the duration of imprisonment exceeds 18 months, unless expressly remitted in the pardon of the principal penalty. Note: There is a perpetual special disqualification from suffrage, only when the 72

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Criminal Law

duration of the imprisonment exceeds 18 months.

are not the subject of lawful commerce, the judgment of acquittal shall order the forfeiture for appropriate disposition.

(5) Arresto COMPUTATION OF PENALTIES

Suspension of the right to hold office and the right of suffrage during the term of the sentence. Note: The code does NOT provide for any accessory penalty for destierro.

RULES FOR THE COMPUTATION OF PENALTIES (TO BE DONE BY the DIRECTOR OF PRISONS OR WARDEN) •

Distinguish reclusion perpetua from life imprisonment Reclusion Perpetua

Life Imprisonment

Has a specific duration of 20 years and 1 day to 40 years.

Has no definite term.

Imposable on felonies punished by the RPC.

Imposable punishable laws.

Carries with it accessory penalties.

Does not carry with it accessory penalties.

•

• on by

crimes special

OUTLINE OF THE PROVISION OF ARTICLE 45 ON CONFISCATION AND FORFEITURE OF THE PROCEEDS OR INSTRUMENTS OF THE CRIME (1) Every penalty imposed carries with it the forfeiture of the proceeds of the crime and the instruments or tools used in the commission of the crime. (There can be no forfeiture when there is no criminal case filed.) (2) The proceeds and instruments or tools of the crime are confiscated and forfeited in favor of the Government. (3) Property of a third person not liable for the offense is not subject to confiscation and forfeiture. (4) Property not subject of lawful commerce, whether it belongs to the accused or to third person, shall be destroyed. When provisions of Article 45 cannot apply (1) The instruments belonging to innocent third parties; (2) Such properties which have not been placed under the jurisdiction of the court because they must be presented in evidence and identified in judgment; and (3) The provisions of Article 45 also cannot apply when its application is legally or physically impossible. NOTE: This accessory penalty presupposes a judgment of conviction. However, even if the accused is acquitted on reasonable doubt, but the instruments or proceeds Lasallian Commission on Bar Operations

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When the offender is in prison – the duration of temporary penalties starts from the day the judgment of conviction becomes final. Applies in cases of temporary penalties and the offender is under detention (under preventive imprisonment) When the offender is not in prison – the duration of penalties consisting in deprivation of liberty, starts from the day that the offender is placed at the disposal of judicial authorities for the enforcement of the penalty. Applies in cases of penalties consisting in deprivation of liberty and the offender is not in prison. The duration of other penalties – the duration starts from the day on which the offender commences to serve his sentence. Applies in cases of: o Penalties consisting in deprivation of liberty and the offender are undergoing preventive imprisonment; but the offender is entitled to a deduction of the entirety of the time spent in detention (should the detention prisoner agree, in writing and with counsel, to abide by the same disciplinary rules imposed upon convicted prisoners) or 4/5ths of the time of his detention (should the detention prisoner not agree to the same, also in writing and with counsel). o Temporary penalties and the offender is not under detention because the offender is released on bail.

Preference in the payment of the civil liability under Article 72 (1) Civil liability is satisfied by following the chronological order of the dates of the final judgment. (2) While criminal liability is satisfied by successive service of sentences in the order of respective severity (Art. 70), civil liability is satisfied by the following the chronological order of the dates of the final judgment. When applied This applies when the offender who is found guilty of two or more offenses is required to pay the corresponding civil liabilities resulting from different offenses. 73

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Presumption in regard to the imposition of accessory penalties under article 73 ! Accessory penalties are also deemed imposed upon the convict without the necessity of making an express announcement of their imposition. ! However, subsidiary imprisonment is not an accessory penalty and therefore, the judgment of conviction must expressly state that the offender shall suffer subsidiary imprisonment in case of insolvency. (People vs. Fajardo) Penalty higher than reclusion perpetua in certain cases under article 74 ! The penalty higher than reclusion perpetua, when death is not provided by law shall be the same penalty and the accessory penalties of Article 40. ! Furthermore, the penalty of death must be specifically imposed by law as a penalty for a given crime. HOW APPLIED The Code has meant to say here that the judgment should provide that the convict should not be given the benefit of Article 27 until 40 years have elapsed; otherwise, there would be no difference at all between reclusion perpetua when imposed as the penalty next higher in degree and when it is imposed as the penalty fixed by law. In this opinion, the given penalty is reclusion perpetua. (Reyes,

2012) Increasing or reducing the penalty of fine by one or more degrees When necessary, the penalty of fine shall be increased or reduced for each degree, by ¼ of the maximum amount prescribed by law, without however, changing the minimum. Fines are graduated into degrees for the accomplices and accessories and for the principals in frustrated and attempted felonies. Distinction between fine with a minimum and fine without a minimum: • In both, the law fixes the maximum of the fine. • When the law fixes the minimum of the fine, the court cannot change the minimum; whereas, when the law does not state the minimum of the fine but only the maximum, the court can impose any amount not exceeding such maximum. • When the law fixes both the minimum and the maximum, the court can impose an amount higher than the maximum; whereas, when only the maximum is fixed, it cannot impose an amount higher than the maximum. Lasallian Commission on Bar Operations

Period

Degree

Each of the three equal parts of a divisible penalty.

The diverse penalties mentioned by name in the Revised Penal Code.

Complex penalty, defined A penalty prescribed by law composed of three distinct penalties, each forming a period; the lightest of them shall be the minimum, the next the medium, and the most severe, the maximum period. When the penalty is composed of three distinct penalties When the law prescribes a penalty composed of three distinct penalties, each one shall form a period. PECUNIARY LIABILITIES UNDER ARTICLE 38 Pecuniary liabilities in the following order: • Civil A. The reparation of the damage caused. B. Indemnification of the consequential damages • Pecuniary • Fine • Costs of proceedings. When article 38 is applied It is applicable in case the property of the offender should not be sufficient for the payment of all his pecuniary liabilities. The order of payment is provided in this article. Hence, if the offender has sufficient or no property, there is no use for Article 38.

EXECUTION AND SERVICE

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WHEN AND HOW PENALTY IS TO BE EXECUTED UNDER ARTICLE 78 Only penalties by final judgment can be executed. Paragraph 1 of the Article provides that no penalty shall be executed except by virtue of a final judgment. It shall be executed in accordance to the form prescribed by law and with any circumstances or incidents expressly authorized thereby. SUSPENSION OF THE EXECUTION AND SERVICE OF THE PENALTIES IN CASE OF INSANITY UNDER ARTICLE 79

GUIDELINES: (1) When a convict becomes insane or imbecile after the final sentence has been pronounced, the 74

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(2)

(3)

(4)

execution of such sentence is suspended only as regards the personal penalty. In the event that the offender has recovered reason, his sentence shall be executed unless the penalty has prescribed. The above provisions shall be observed even if the convict only becomes insane or imbecile while serving his sentence. The obligation to pay his civil liability or pecuniary liabilities shall not be suspended.

The provisions of Article 80 of the Revised Penal Code have been repealed by P.D. 603 (The Child and Youth Welfare Code) and by the provisions of R.A. 9344 or the Juvenile Justice & Welfare Code. Youthful offender, defined A child, 15 years of age or below is exempt from criminal liability. If the child is over 15 but less than 18 years of age, he is likewise exempt from criminal liability unless the child acted with discernment. GUIDELINES: (1) If the court finds that the youthful offender committed the crime charged against him, it shall determine the imposable penalty and the civil liability chargeable against him. (2) The court may not pronounce judgment of conviction but instead, suspend all further proceedings. (3) The youthful offender shall be returned to the committing court for the pronouncement of judgment, when the youthful offender: (1) has been found incorrigible, or (2) has wilfully failed to comply with the conditions of his rehabilitation programs; or (3) when his continued stay in the training institution would be inadvisable. (4) When the youthful offender has reached the age of eighteen (18) while in commitment, the court shall determine whether: A. To dismiss the case, if the youthful offender has behaved properly and has shown his capability to be a useful member of the community; or B. To pronounce the judgment of conviction if the above mentioned conditions were not met. (5) Considering the latter case, the convicted offender may apply for probation and the youthful offender shall be credited in the service of his sentence with the full time spent in actual commitment and detention. (6) The final release of a youthful offender, based on good conduct as provided in Art. 196 shall not obliterate his civil liability for damages.

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Criminal Law

DESTIERRO, DEFINED Any person sentenced to destierro shall not be permitted to enter the place or places designated in the sentence, nor within the radius therein specified, which shall be not more than 250 and not less than 25 kilometers from the place designated. This penalty is considered as a principal correctional and divisible penalty. Therefore, jurisdiction over crimes punishable with destierro lies with the Municipal Trial Court. Application Only the following cases impose the penalty of destierro: (1) Death or serious physical injuries is caused or are inflicted under exceptional circumstances [Art. 247]; (2) Failure to give bond for good behaviour in grave and light threats [Art. 284]; (3) Penalty for the concubine in the crime of concubinage [Art. 334]; (4) When, after reducing the penalty by one or more degrees, destierro is the proper penalty. ARRESTO MENOR Guidelines:

Arresto menor shall only be served in the following venues: Municipal jail; or House of the defendant under the surveillance of an officer of law only when the court so provides in its decision. PROBATION LAW OF 1976: P.D. 968, as amended Probation, defined 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. CONCEPT Probation is NOT an absolute right. It is a mere privilege which rests upon the discretion of the trial court. Its grant is subject to certain terms and conditions that may be imposed by the trial court. Having the power to grant the probation, it follows that the trial court also has the power to order its revocation in a proper case and under proper circumstances.

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APPLICATION This shall apply to all offenders except those entitled to benefits under PD 603 and similar laws. May be granted even if the sentence is a fine only, but with subsidiary imprisonment in case of insolvency. 75

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WHERE AND WHEN TO FILE THE APPLICATION ! An APPLICATION for probation shall be filed by the defendant with the trial court within the period for perfecting an appeal. ! NO application for probation shall be entertained or granted if the defendant has PERFECTED AN APPEAL from the judgment of conviction.

(1) (2) (3)

(4)

EFFECTS OF FILING AND GRANT/DENIAL OF APPLICATION Filing of application for probation operates as a waiver of the right to appeal. The order granting or denying probation shall not be appealable. Accessory penalties are deemed suspended once probation is granted and are fully restored upon final discharge of probationer. Final discharge of probationer totally extinguishes criminal liability for the offense subject of the probation [RA 10707, a July 27, 2015 amendment to

this law] (5)

Civil liability is not affected by the suspension of the sentence imposed on the accused that is granted probation; court must hear the civil aspects. NOTE: 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 his/her sentence, taking into account the best interests 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. [Sec. 42, R.A. 9344,

Juvenile Delinquency Law] POST-SENTENCE INVESTIGATION The convict is not immediately placed on probation. There shall be a prior investigation by the probation officer and a determination by the court. He may, however, be released under his bail filed in the criminal case or on recognizance. CRITERIA FOR PLACING AN OFFENDER ON PROBATION The court shall consider: (1) All information relative to the character, antecedents, environment, mental, and physical condition of the offender; (2) Available institutional and community resources.

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PROBATION SHALL BE DENIED IF THE COURT FINDS THAT (1) The offender is in need for correctional treatment that can be provided effectively by his commitment to an institution; (2) There is undue risk of committing another crime; (3) Probation will depreciate the seriousness of the offense committed.

DISQUALIFIED OFFENDERS The benefits of the Decree shall NOT be extended to those: (1) Sentenced to serve a maximum term of imprisonment of more the 6 years; (2) Convicted of any crime against the national security; (3) Who have previously been convicted by final judgment of an offense punished by imprisonment of more than six months and one day and/or a fine not less than P1,000.00; (4) Once placed on probation; (5) Who appealed; (6) Convicted of drug trafficking or drug pushing; (7) Convicted of election offenses under the Omnibus Election Code. Note: No. 5 does not apply to minor offenders. A child in conflict with law can apply probation ANYTIME. HOWEVER, if through an appeal or review, a nonprobationable penalty is modified to a probationable penalty, the defendant shall be allowed to apply for probation based on the modified decision before it becomes final, provided he does not seek an appeal for the same. Such application shall be made in the trial court imposing the non-probationable penalty. [RA

10707, a July 27, 2015 amendment to this law]

CONDITIONS OF PROBATION TWO KINDS OF CONDITIONS IMPOSED: (1) Mandatory or general – once violated, the probation is cancelled. They are: A. Probationer: Presents himself to the probation officer designated to undertake his supervision, at such place as may be specified in the order, within 72 hours from receipt of order; B. He reports to the probation officer at least once a month. (2) Discretionary or special – additional conditions listed, which the court may additionally impose on the probationer towards his correction and rehabilitation 76

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outside prison. HOWEVER, the enumeration is not exclusive. Probation statutes are liberal in character and enable the courts to designate practically any term it chooses, as long as the probationer’s constitutional rights are not jeopardized. Also, they must not be unduly restrictive of probationer, and not incompatible with the freedom of conscience of probationer. PERIOD OF PROBATION For how long may a convict be placed on probation? i. If the convict is sentenced to a term of imprisonment of NOT more than one year, the period of probation shall not exceed 2 years. ii. In all other cases, if he is sentenced to more than one year, said period shall not exceed 6 years. When the sentence imposes a fine only and the offender is made to serve subsidiary imprisonment. The period of probation shall be twice the total of the number of days of subsidiary imprisonment. PARDON Includes any crime and is exercised individually by the President. Exercised when the person is already convicted. Merely looks forward (prospective) and relieves the offender from the consequences of an offense of which he has been convicted; it does not work for the restoration of public office, or the right of suffrage, unless such rights are expressly restored by means of pardon. Does not alter the fact that the accused is a recidivist as it produces only the extinction of the personal effects of the penalty. Does not extinguish the civil liability of offender. Being a private act by the President, it must be pleaded and proved by the person pardoned

PROBATION Exercised individually by the trial court. Must be exercised within the period for perfecting an appeal. It promotes the correction and rehabilitation of an offender by providing him with individualized treatment; provides an opportunity for the reformation of a penitent offender which might be less probable if he were to serve a prison sentence; and prevent the commission of offenses. Does not alter the fact that the accused is a recidivist as it provides only for an opportunity of reformation to the penitent offender. Does not extinguish the civil liability of the offender. Being a grant by the trial court; it follows that the trial court also has the power to order its

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revocation in a proper circumstances. ARTICLE 68 IN RELATION TO RA 9344 OR THE JUVENILE AND JUSTICE WELFARE ACT APPLICATION OF ARTICLE 68: This article is NOT immediately applicable to a minor under 18 years of age, because when such minor is found guilty of the offense charged, the court shall determine the penalty in the judgment of conviction but shall suspend the promulgation (not the execution) and orders commitment to a reformatory institution, if the court there for approves his application Upon the recommendation of the social worker who has custody of the child, the court shall dismiss the case against the child and shall order the final discharge of the child if it finds that the objective of the disposition measures have been fulfilled This article has been repealed or amended in the sense that the accused in par. 1 thereof is completely absolved from criminal liability under R.A. 9344, hence there is no basis for considering any privileged mitigating circumstance in his favor. That circumstance may, however, be involved in its par. 2 where the accused is over 15 and below 18 years of age but he acted with discernment, and he is returned to the other correlative proceeding, if any have not achieved their purposes and, in effect, the accused has been found to be incorrigible. [Regalado] If the court finds that the objective 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 promulgation (not execution) of judgment. If said child in conflict with the law has reached eighteen (18) years of age while under suspended sentence, the court shall determine whether to discharge the child, to order execution of sentence, or to extend the suspended sentence for a certain specified period or until the child reaches the maximum age of twenty-one (21) years. [R.A. 9344]

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D. EXTINCTION OF CRIMINAL LIABILITY TOTAL EXTINCTION OF CRIMINAL LIABILITY GUIDELINES (0)

Means of totally extinguishing criminal liability: (MAD-SPAM) a.

b. c. d. e. f. g.

(1)

Death of the convict – Personal liabilities shall be extinguished while pecuniary liability shall only be extinguished when the death of the offender occurs before final judgment. Service of sentence – This does not extinguish civil liabilities. Amnesty – The penalty imposed and all its effects are totally extinguished. Absolute Pardon - The penalty imposed and all its effects are totally extinguished. Prescription of the crime Prescription of penalty Marriage of the offended woman with the offender – Only applicable in good faith and applicable only in crimes of rape, seduction and abduction or acts of lasciviousness.(Art. 89, RPC)

Extinction of criminal liability does not extinguish civil liability. NOTE: The extinction of the penal action does not carry with it the extinction of the civil action. However, the civil action based on delict shall be deemed extinguished if there is a finding in a final judgment in the civil action that the act or omission from where the civil liability may arise does not exist.

(Quinto v. Andres) (2)

Death of the offended party does not extinguish the criminal liability of the accused even in private offenses.

(3)

Civil liability is extinguished only when death occurs before final judgment. NOTE: A judgment only becomes final if the following conditions have been satisfied:

a.

After the lapse of the period for perfecting an appeal;

b.

When the sentence has been partly or totally satisfied or served; The defendant has expressly waived in writing his right to appeal.

c.

EFFECT OF DEATH OF THE ACCUSED PENDING APPEAL Lasallian Commission on Bar Operations

General Rule: Death of the accused pending appeal of his conviction extinguishes the offender’s criminal liability as well as his civil liability based solely on the offense committed. Exception: Death does not extinguish civil liability arising from sources other than the crime committed survives, and may be pursued in a separate civil action. Sources of civil liability other than crime are law, contracts, quasi contracts and quasi delicts. AMNESTY, DEFINED Amnesty is an act of the sovereign power granting oblivion or a general pardon for a past offense. It is rarely, if ever, exercised in favor of a single individual, and is usually extended in behalf of certain classes of persons, whether or not they have already been convicted. PARDON

AMNESTY

Includes any crime and is exercised individually by the President.

Considered as a “blanket” of pardon to classes of persons or communities who may be guilty of a class of offenses, usually political in nature.

Exercised only after the conviction of the offender.

May be exercised before the trial or investigation.

Prospective

Retroactive

Does not obliterate previous records of conviction (except if it is an absolute pardon).

Obliterates the last vestige of crime.

Does not extinguish civil liability of the offender (except if it is an absolute pardon) The offender must plead and prove the Pardon since this is considered a Private Act of the President.

This a public act. Concurrence of the Congress would be necessary prior to proclamation.

PARDON, DEFINED Pardon refers to an act of grace proceeding from the power entrusted with the execution of the laws. This exempts the individual on whom it is bestowed from the punishment provided for by the law for the crime committed. Pardon can only be given after final judgment; otherwise, there will be violation of the Doctrine of Separation of Powers. 78

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ABSOLUTE PARDON

CONDITIONAL PARDON

Total extinction of criminal liability, without any condition. Restores to the individual his civil and political rights and remits the penalty imposed for the particular offense he/she is convicted of.

Exemption of individual from the punishment which the law inflicts for the offense committed resulting in the partial extinction with certain conditions.

PRESCRIPTION OF CRIMES, DEFINED Pertains to the forfeiture or loss of the right of the State to prosecute the offender after the lapse of a certain time. In prescription of crimes, it is the penalty prescribed by law that should be considered. In computing for the prescription, the first day is to be executed and the last day included.

(1)

(2)

(1)

(2)

Offenses of oral defamation and slander by deed = 6 months a. Simple Slander = 6 months b. Grave Slander = 2 months Light offenses = 2 months Crimes punishable by fines b. Afflictive Fines = 15 years c. Correctional Fines = 10 years d. Light Fines = 2 months

(1)

(2)

(3)

COMMENCEMENT OF PRESCRIPTION Felonies under the Revised Penal Code — For all criminal offenses, the period of prescription shall commence to run from the day on which the crime is discovered by the offended party, the authorities, or their agents Criminal Offences punished by Special Laws — Prescription shall begin to run from the day of the commission of the violation of the law, and if the same be not known at the time, from the discovery thereof (Blameless ignorance doctrine) SUSPENSION OF PRESCRIPTION Felonies under the Revised Penal Code — The term of prescription shall not run when the offender is absent from the Philippine Archipelago. Criminal Offenses punished by Special Laws — no similar provision like the RPC NOTE: The running of the prescription of an offense punished by a special law is not tolled by the absence of the offender from Philippine soil.

PRESCRIPTIVE PERIODS OF CRIMES Crimes punishable by: a. Death, reclusion perpetua, and reclusion temporal = 20 years b. Afflictive Penalties = 15 years c. Correctional Penalties = 10 year except those punishable by arresto mayor which shall prescribe in 5 years. Crime of libel = 1 year

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(4)

GUIDELINES When the last day of prescriptive period falls on a Sunday or a holiday – the information can no longer be filed on the next day as the crime has already prescribed. The period will not be prolonged because doubt should be resolved in favor of the accused. Compound Crimes –When the penalty is a compound one, the highest penalty is the basis of application of the rules in Article 90. Violations penalized by special laws – unless otherwise provided by the special laws, the following rules shall govern: a. After 1 year for offenses punished only by a fine or by imprisonment for not more than one (1) month, or both; b. After 4 years for those punished by imprisonment for more than one (1) month but less than two (2) years; c. After 8 years for those punished by imprisonment for two (2) years or more, but not less than six (6) years; and d. After 12 years for any other offense punished by imprisonment for six (6) years or more, except the crime of treason, which shall prescribe after twenty (20) years. e. Any violations penalized by municipal ordinances shall prescribe after two (2) months. f. After 5 years for offenses punished under the Internal Revenue Law. g. After 2 months for violations of the regulations or conditions of certificate of convenience by the Public Service Commission When the prescription is interrupted – It shall be interrupted only when the proceedings are instituted against the guilty party and shall being to run again if the proceedings are dismissed for reasons not constituting jeopardy.

COMPUTATION OF THE PRESCRIPTION OF PENALTIES (1) Period of prescription commences to run from the date when the culprit evaded the service of his sentence. 79

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(2)

(3)

(4)

Criminal Law

There is an interruption in case of the following circumstances: a. Culprit gives himself up; b. Culprit gets captured; c. Culprit goes to a foreign country with which the Philippines has no extradition treaty; or if there is an extradition treaty, the same does not include the crime committed by the culprit; d. Culprit commits another crime before the expiration of the period of prescription. e. Culprit makes an acceptance of conditional pardon (People v. Puntillas). Penalties must be imposed after final judgment. If a convict appeals and then flees, the penalty imposed cannot prescribe since no final judgment has been rendered If the accused was never arrested to serve the sentence, the prescriptive period cannot commence to run.

Prescription of the Crime

Prescription of the Penalty

The forfeiture or loss of the right of the State to

The forfeiture or loss of the right of the government to execute the final sentence.

prosecute. It is the penalty prescribed by law that should be considered.

It is the penalty imposed that should be considered.

PARTIAL EXTINCTION OF CRIMINAL LIABILITY CRIMINAL LIABILITY IS PARTIALLY EXTINGUISHED THROUGH (1) (2) (3) (4) (5)

Conditional pardon; Commutation of sentence; Good conduct allowances which the offender may earn while serving his sentence; Parole; and By probation (Art. 94) CONDITIONAL PARDON

Given after judgment

PAROLE

final

Given after service of the minimum penalty

Granted by Chief Executive

Given by the Board of Pardons and Parole

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For violations, convict may be prosecuted under Art. 159

For violations, may be rearrested, convict serves remaining sentence

ALLOWANCE FOR GOOD CONDUCT (1) (2) (3)

(4) (5)

First two (2) years of imprisonment = deduction of 5 days for each month of good behavior. 3rd to 5th years of imprisonment = deduction of 23 days for each month of good behavior. Following years until the 10th year of imprisonment = deduction of 25 days for each month for good behavior. 11th and successive years of imprisonment = deduction of 30 days for each month of good behavior. In addition to numbers 1 to 4, the study, teaching, or mentoring service time rendered = deduction of 15 days (Art. 97).

SPECIAL TIME ALLOWANCE FOR LOYALTY, DEFINED Pertains to the deduction of 1/5th of the period of the sentence of a prisoner who, having evaded the service of his sentence during a calamity or catastrophe, gives himself up within 48 hours following the proclamation by the President announcing the passing away of the calamity or catastrophe. The deduction will be 2/5ths if the prisoner stays in his place of confinement. (Art. 98, RPC) Time allowance is only granted exclusively by the Director of Prison and once granted, shall not be revoked. EVASION OF SERVICE ON OCCASION OF DISORDER, CONFLAGRATIONS, EARTHQUAKES, OR OTHER CALAMITIES A convict shall suffer an increase of one-fifth of the time still remaining to be served under the original sentence, which in no case shall exceed six months if he: a. evades the service of his sentence, b. by leaving the penal institution where he shall have been confined, c. on the occasion of disorder resulting from a conflagration, earthquake, explosion, or similar catastrophe, or during a mutiny in which he has not participated, and d. he shall fail 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. (Art. 158, RPC).

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NOTE: A convict who gives himself up to the authorities within the 48 hour period shall be entitled to the deduction under Art. 98 (Special time allowance for loyalty)

Criminal Law

(2)

TAVERN KEEPERS AND PROPRIETORS OF ESTABLISHMENTS. (ART. 102, RPC)

E. CIVIL LIABILITY IN CRIMINAL CASES ART. 100 Every person criminally liable for a felony is also civilly liable.

(1)

RULES REGARDING CIVIL LIABILITY IN CERTAIN CASES General Rule: Civil liability is still imposed in cases falling under those exempting circumstances enumerated in Art. 12. Exceptions: (1) No civil liability in par. 4 of Art. 12 which provides for the injury caused by mere accident. (2) No civil liability in par. 7 of Art. 12 which provides for failure to perform an act required by law when prevented by some lawful or insuperable cause. PERSONS LIABLE FOR INSANE OR MINOR EXEMPT FROM CRIMINAL LIABILITY (1)

(2)

The person having legal capacity or control over them, if the latter are the ones at fault or negligent – they are primarily liable. If no fault or negligence on their part, or even if at fault or negligent but insolvent, or should there be no person having such authority or control, the insane, imbecile, or such minor shall respond with their own property, not exempt from execution (U.S. v. Baggay, 20 Phil. 142, 146-147).

PERSONS CIVILLY LIABLE FOR ACTS OF MINOR OVER 15 YEARS OF AGE WHO ACT WITH DISCERNMENT (Art. 201, Child and Youth Welfare Code, Arts. 2180 & 2182, Civil Code). (1) (2) (3)

Offender’s father; Mother, in case of father’s death or incapacity; Guardian, in the case of mother’s death or incapacity.

PERSONS CIVILLY LIABLE FOR ACTS COMMITTED BY PERSONS ACTING UNDER IRRESISTIBLE FORCE OR UNCONTROLLABLE FEAR (1)

The person using violence or causing the fear are primarily liable.

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If there be no such persons, those doing the act shall be secondarily liable. SUBSIDIARY CIVIL LIABILITY OF INNKEEPERS,

Elements of Paragraph 1: a. The innkeeper, tavern keeper or proprietor of establishment or his employee committed a violation of a municipal ordinance or some general or special police regulation. b. The crime committed in such inn, tavern, or establishment. c. The person criminally liable is insolvent or absent. ! Concurrence of all elements makes the innkeeper, tavern keeper or proprietor of the establishment civilly liable. ! This liability, however, is subsidiary in nature, hence the requisite of the offender’s insolvency.

[Reyes, p. 924] (2)

Elements of Paragraph 2: a. The guests notified in advance the innkeeper or the person representing of the deposit of their goods within the inn or house. b. The guests followed the direction of the innkeeper or his representative with respect to the care of and 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. ! No liability shall attach in the case of robbery with violence against or intimidation of persons, unless committed by the innkeeper’s employees. ! The effects of the guest be actually delivered to the innkeeper is immaterial. EFFECTS ON CIVIL LIABILITY (1) Extinction of the penal action - does not carry with it the extinction of the civil action, unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil liability might arise did not exist. (2) Dismissal of the information or the action - does not affect the right of the offended party to institute or continue the civil action already instituted arising from the offense since such dismissal or extinction of the penal action does not carry with it the extinction of the civil action. NOTE THAT: Where the dismissal of the case stems from the fact that the prosecution has failed 81

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to prove the guilt of the accused beyond reasonable doubt, a civil suit may be instituted, which may demand a lesser quantum of evidence. (3) Death of the offender - Civil liability ex-delicto is extinguished if death of the offender happened prior to the institution of action or prior to the finality of judgment. CHAPTER TWO: WHAT CIVIL LIABILITY INCLUDES CIVIL LIABILITY INCLUDES (1) (2) (3)

!

!

Restitution; Reparation of the damage caused; Indemnification for consequential damages.

RESTITUTION Restitution of an object(s) must be made whenever possible even when found in the possession of a third person except when acquired by such person in any manner and under the requirements which, by law, bar an action for recovery. Art. 104 may be distinguished from Art. 38 in the sense that Art. 38 refers to the order in which pecuniary liabilities, among which it includes fines and the cost of proceedings, are to be paid, whereas Art. 104 refers to the composition of civil liability which Art. 38 calls convicts to pay.

SCOPE OF RESTITUTION (1) Cannot be ordered before final judgment. (2) The liability to return an object must arise from a criminal act, not from a contract. (3) Can be ordered even if accused was acquitted but the object was proved to belong to a third party. (4) In addition to the returning of the object, the offender must also pay an amount representing the deterioration of diminution of value, if any. (5) Limited to crimes against property except in: treason cases where money was acquired; and abduction cases where ransom was paid. ! Generally, the owner of the thing taken may recover regardless of who is in possession of the thing, except in cases where the third party has acquired the same in good faith at a public auction, (Art. 559, Civil Code) in which case, the original owner may only recover the thing by paying the purchase price. REPARATION OF DAMAGES If restitution is not possible, reparation of damages will be ordered by the court. The court shall determine the amount of damage while considering the price of the object and its sentimental value to the injured party. Lasallian Commission on Bar Operations

Criminal Law

!

If no evidence is available as to the value of the property unrecovered, reparation cannot be made.

SCOPE OF REPARATION Only applies to crimes against property. INDEMNIFICATION OF DAMAGES Indemnification includes not only those caused the injured party, but also, those suffered by his family or a third party by reason of the crime. ! This is considered a remedy granted to the victims of crimes against persons.

SCOPE OF INDEMNIFICATION: (1) Both reparation and indemnification for damages may be claimed by the accused and his/her heirs. (2) Contributory negligence on the part of the offended party reduces civil liability of the offender. (3) 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 or indemnification descends to the heirs of the person injured. COMPUTING LOSS OF THE VICTIM’S EARNING CAPACITY

Net Earning Capacity = Life Expectancy x (Gross Annual Income – Living Expenses)

! ! !

Life Expectancy = 2/3 x (80-age of the deceased at the time of death) Gross Annual Income = Monthly Earnings x Number of Months Living Expenses = In the absence of proof, 50% of Gross Annual Income. [People vs. Lara]

CHAPTER THREE: EXTINCTION AND SURVIVAL OF CIVIL LIABILITY

(1) (2) (3) (4) (5) (6)

CIVIL LIABILITY IS EXTINGUISHED BY: Payment or performance; Loss of the thing due; Condonation or remission of the debt; Confusion or merger of the rights of the creditor and debtor; Compensation; Novation; 82

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(7)

Criminal Law

Other cause of extinguishment of obligations, such as annulment, rescission, fulfilment of a resolutory condition and prescription.

General Rule: Civil liability in criminal cases is not extinguished by the loss of the object due to reparation will be ordered by the court in such cases. Exception: The offender shall continue to be obliged to satisfy the civil liability arising from the crime committed by him.

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CRIMES AGAINST NATIONAL SECURITY AND THE LAW OF NATIONS CHAPTER ONE: Crimes Against National Security Section 1: Crimes against Security Art. 114. Treason Art 115.Conspiracy and Proposal to Commit Treason Art 116. Misprision of Treason Art 117. Espionage Section 2: Crimes against the Law of Nations Art. 118. Inciting to war or giving motives for reprisals Art. 119. Violation of neutrality Art. 120. Correspondence with hostile country Art. 121. Flight to enemy’s country Section 3: Piracy and mutiny on the high seas in Philippine waters Art. 122. Piracy in general and mutiny on the high seas or in Philippine waters Art. 123. Qualified Piracy

CRIMINAL LAW II

Crimes under this title can be prosecuted even if the criminal act(s) were committed outside the Philippine territorial jurisdiction. Provided, that the offender is within Philippine territories or brought to the Philippines pursuant to an extradition treaty. However, when the crimes committed are Crimes against the Law of Nations (Art. 118, 119, 120, 121, 122, and 123), the offender can be prosecuted wherever he may be found because these crimes are regarded as committed against humanity in general.

CHAPTER ONE: CRIMES NATIONAL SECURITY

AGAINST

SECTION 1: CRIMES AGAINST SECURITY ART. 114. TREASON TREASON A breach of allegiance to government, committed by a person who owes allegiance to it. ALLEGIANCE An 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.

(1) Lasallian Commission on Bar Operations

ELEMENTS OF TREASON Offender is a Filipino citizen or an alien residing in the Philippines. 84

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(2) (3)

There is war in which the Philippines is involved. Offender either – A. Levies war against the government: i. Actual assembling of men ii. For the purpose of executing a treasonable design by force B. Adheres to the enemies and gives them aid or comfort. i. Adherence to the enemy – there is intent to betray ii. Adherence and aid or comfort – performance of an act which strengthens the enemy

MODE 1: LEVYING WAR Elements: (a) Offender is a Filipino or resident alien (b) There is a war in which the Philippines is involved (c) The offender levies war against the government There must be an actual assembling of men. The mere acceptance of the commission from the secretary of war of the Katipunan by the accused, nothing else having been done, was not an overt act of treason within the meaning of the law. (U.S. vs. De los Reyes) The levying of war must be directed against the government. It must be with intent to overthrow the government as such, not merely to resist a particular statute or to repel a particular officer. (Reyes, 2012, citing

3 Wharton’s Criminal Law, 12th Ed.)

Criminal Law

against the traitor’s country and an act which weakens or tends to weaken the power of the traitor’s country to resist or to attack the enemy.

(Cramer vs. US) When there is no adherence to the enemy, the act which may do aid or comfort to the enemy does not amount to treason. (Reyes, 2012) Proving adherence (1) By one witness (2) From the nature of the act itself (3) From the circumstances surrounding the act Specific Acts of Aid or Comfort (1) Serving as informer and active member of Japanese Military police (2) Serving in the Japanese Army as agent or spy and participating in raids (3) Acting as “finger women” (People vs Nunez) (4) Taking active part in the mass killings of civilians by the Japanese soldiers by personally tying the hands of the victims (5) Giving information to, or commandeering foodstuffs for the enemy WAYS OF PROVING TREASON (1) (2)

The levying of war must be in collaboration with a foreign enemy. If the levying of war is merely a civil uprising, without any intention of helping an external enemy, the crime is not treason. The offenders may be held liable for rebellion under Art. 135 in relation to Art. 134 of the RPC. MODE 2: ADHERENCE TO THE ENEMY AND GIVING AID OR COMFORT Elements: (a) Offender is a Filipino or resident alien (b) There is a war in which the Philippines is involved (c) That the offender adheres to the enemies, giving them aid or comfort Adherence and giving aid or comfort must concur. • Adherence to the enemy means there is 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 Lasallian Commission on Bar Operations

Testimony of at least 2 witnesses to the same overt act; or Confession of the accused in open court (judicial confession) ● The defendant should be acquitted if only one of the two witnesses is believed by the court. ● It is sufficient that the witnesses are uniform in their testimony on the overt act; it is not necessary that there be corroboration between them on the point they testified. ● Extrajudicial confession or confession made before the investigators is not sufficient to convict a person of treason. AGGRAVATING CIRCUMSTANCES IN TREASON

(1) (2)

Cruelty (barbarous forms of torture before putting them to death) and Ignominy Rape, wanton robbery for personal gain, brutality ● Defense of suspended allegiance and change of sovereignty is not accepted. ● Defense of obedience to a de facto Government is a good defense. ● General Rule: Defense of loss of citizenship by joining the army of the enemy, cannot protect him from punishment 85

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ART. 116. MISPRISION OF TREASON

Exception: If the fear of immediate death forced him to join the army. NOTE: ● No complex crime of treason with murder, physical injuries, etc. (People vs Prieto) ● There is no attempted treason, mere attempt only already consummates the crime. ● Treason is a wartime crime, therefore, cannot be committed in time of peace. ● In treason by levying war, it is not necessary that there be a formal declaration of the existence of a state of war. (US vs. Lagnason) ● Treason by Filipino citizen can be committed outside of the Philippines. Treason by an alien must be committed in the Philippines. ● Treason is a continuous crime thus the offender can still be prosecuted even when the war has ended.

ART. 115. CONSPIRACY AND PROPOSAL TO COMMIT TREASON ELEMENTS OF CONSPIRACY TO COMMIT TREASON a. b. c.

d.

In time of war There are two or more persons Such persons come to an agreement: i. To levy war against the government; or ii. To adhere to the enemies and give them aid or comfort They decide to commit the agreement

ELEMENTS OF PROPOSAL TO COMMIT TREASON

“MISPRISION OF TREASON” An act of concealing or not disclosing knowledge of any conspiracy to commit treason. ELEMENTS OF MISPRISION OF TREASON (1) (2) (3)

Offender owes allegiance to the Government, and is not a foreigner; He has knowledge of conspiracy to commit treason against the Government; He conceals or does not disclose and make known the same as soon as possible to the governor or fiscal of the province, or the mayor or fiscal of the city in which he resides.

NOTE: • It can only be committed by a Filipino citizen and during a war in which the Philippines is involved. • The offender is punished as an accessory to Treason but principal in the crime of Misprision of Treason • 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. • Art. 116 does not apply when treason has already been committed by someone and the accused does not report the commission to the authorities. • “To report within a reasonable time” depends on time, place and circumstance. • Article 116 is an exception to the rule that mere silence does not make a person criminally liable.

(US vs. Caballeros) a. b.

c.

In time of war A person who has decided to levy war against the government or adhere to enemies and give them aid and comfort Proposes its execution to some other person or persons

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, 2012) The two-witness rule does not apply to conspiracy or proposal to commit treason because this is a separate and distinct offense from that of treason. (US vs. Bautista) Lasallian Commission on Bar Operations

ART. 117. ESPIONAGE ESPIONAGE An offense of gathering, transmitting or losing information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the Philippines or to the advantage of any foreign nation.

(1)

TWO WAYS OF COMMITTING ESPIONAGE Entering, without authority, 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. Elements: a. Offender enters a warship, fort, etc. b. He has no authority to do so. c. For the purpose of obtaining any information, 86

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plans, photos, and other confidential data. o If the accused has no such intention, he is not liable. o It is not necessary that the information, etc. is obtained. It is sufficient that the offender has the purpose to obtain them. o Offender may be a private person or a public officer, citizen or foreigner. (2)

Disclosing to the representative of a foreign nation the contents of article, data or information which offender has in his possession by reason of his public office. Elements: a. Offender is a public officer. b. He has in his possession articles, data, etc. by reason of his public office. c. He discloses their contents to a representative of a foreign nation. o It is not necessary that the information is obtained (Intent is sufficient).

NOTE: 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. ESPIONAGE TREASON ART. 117 ART. 114 Not conditioned on the citizenship of the offender May be committed Committed only in times of both in times of war war and in times of peace Limited only to two ways of committing the crime: levying May be committed in of war and adhering to the many ways enemy giving him aid or comfort

SECTION 2: CRIMES AGAINST LAW OF NATIONS ART. 118 INCITING TO WAR OR GIVING MOTIVES FOR REPRISALS

NOTE: ● Intent is immaterial. ● It must be committed in time of peace. ● Penalty is higher when committed by a public officer or employee. ● The intention of the offender is immaterial. The law considers the effects produced by the acts of the accused. (Reyes, 2012l citing Albert)

ART. 119. VIOLATION OF NEUTRALITY NEUTRALITY When a nation or power takes no part in a contest of arms going on between others it is referred to as neutral. There must be regulation issued by competent authority for the enforcement of neutrality. ELEMENTS a. b.

c.

ART. 120. CORRESPONDENCE WITH HOSTILE COUNTRY CORRESPONDENCE A communication by means of letters; or it may refer to letters which pass between those who have friendly or business relations. ELEMENTS a. b.

c. ELEMENTS (1) (2)

Offender performs unlawful or unauthorized acts; The acts provoke or give occasion for: a. A war involving or liable to involve the Philippines; or b. Expose Filipino citizens to reprisals on their persons or property

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There is a war in which the Philippines is not involved. There is a regulation issued by competent authority for the purpose of enforcing neutrality. NOTE: Competent authority includes the President of the Philippines, Secretary of National Defense, or the Chief of Staff of the AFP. Offender violates such regulation.

Time of war in which the Philippines is involved; Offender makes correspondence with an enemy country or territory occupied by enemy troops; and Correspondence is either – i. Prohibited by the government; ii. Carried on in ciphers or conventional signs; iii. Containing notice or information which might be useful to the enemy.

It is still punishable even if the correspondence contains innocent matters, as long as correspondence has been prohibited by the government. 87

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Criminal Law

QUALIFYING CIRCUMSTANCES UNDER INSTANCE 3 -

ELEMENTS

THE FOLLOWING MUST CONCUR: a. (1)

That the notice or information might be useful to the enemy; and That the offender intended to aid the enemy.

b.

NOTE: 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.

c.

(2)

ART. 121. FLIGHT TO ENEMY’S COUNTRY ELEMENTS a. b. c. d.

There is war in which the Philippines is involved. Offender owes allegiance to the Government. Offender attempts to flee or go to enemy country. Going to enemy country is prohibited by competent authority.

NOTE: An alien resident may be guilty of flight to enemy country. The law does not say “not being a foreigner.” Hence, the allegiance contemplated in this article is either natural or temporary allegiance. (Reyes, 2008)

SECTION 3: PIRACY AND MUTINY ON THE HIGH SEAS IN PHILIPPINE WATERS Art. 122. PIRACY PIRACY The Robbery or forcible depredation on the high seas, without lawful authority and done with animo furandi and in the spirit and intention of universal hostility. HIGH SEAS Any waters on the sea coast which are without the boundaries of low-water mark, although such waters may be in the jurisdictional limits of a foreign government. MUTINY The unlawful resistance to a superior officer or the raising of commotions and disturbances on board a ship against the authority of its commander. 2 WAYS OF COMMITTING PIRACY (1) (2)

By attacking or seizing a vessel on the high seas or in the Philippine waters (PD 532) By seizing the whole or part of the cargo of said vehicles, its equipment or personal belongings of its complement or passengers

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Vessel is on the high seas or in Philippine Waters; NOTE: High seas may mean within the territory of another country (People vs. Lol-lo, et al., 43 Phil 19) Piracy: Offenders are non-members of its complement or non-passengers of the vessel; Mutiny: Offenders are members of the crew or passengers; and Offenders either: i. Attack or seize the vessel; ii. Seize the whole or part of the cargo of the said vessel, its equipment or personal belongings of its complement or passengers.

PIRACY Persons who attack the vessel or seize its cargo are strangers to said vessels Intent to gain is essential.

Robbery or forcible degradation on the high seas, without lawful authority and done with animo furandi and in the spirit and intention of universal hostility

MUTINY Persons who attack the vessel or seize its cargo are members of the crew or passengers In mutiny, the intention is to ignore the ship’s officer or desire to commit plunder. Unlawful resistance to a superior officer, or the raising of commotion and disturbances on board a ship against the authority of its commander

SEE ALSO: P.D NO. 532 (PIRACY BY ANY PERSON) Piracy is defined as any attack upon or seizure of any vessel, or the taking away of the whole or part thereof or its cargo, equipment, or the personal belongings of 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. Piracy is considered an act of Terrorism when it sows or creates 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.

ART. 123. QUALIFIED PIRACY ELEMENTS a. b.

The vessel is on the high seas or Philippine waters; Offenders may or may not be members of its complement, or passengers of the vessel; 88

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c.

Offenders either: i. Attack or seize the vessel; or ii. Seize the whole or part of its cargo, its equipment, or personal belongings of its crew or passengers. d. The preceding was committed under any of the following circumstances: i. Whenever they have seized a vessel by boarding or firing upon the same; ii. Whenever the pirates have abandoned their victims without means of saving themselves; or iii. Whenever the crime is accompanied by murder, homicide, physical injuries or rape. ACTS QUALIFYING PIRACY (1) (2) (3)

Boarding or firing upon the vessel; Abandonment of victims without means of saving themselves; or Crime is accompanied by murder, homicide, physical injuries or rape (regardless of number of victims)

Murder, rape, homicide, and physical injuries are mere circumstances qualifying piracy and cannot be punished as separate crimes, nor can they be complexed with piracy. Any person who aids or protects pirates or abets the commission of piracy shall be considered an accomplice: (1) Giving information about the movement of police; (2) Acquires or receives property taken by such pirates or in any manner derives benefit therefrom. SEE ALSO: RA 7659 Piracy in general and mutiny on the high seas or in Philippine waters. — The penalty of reclusion perpetua shall be inflicted upon any person who, on the high seas, or in Philippine waters, shall attack or seize a vessel or, not being a member of its complement nor a passenger, shall seize the whole or part of the cargo of said vessel, its equipment or passengers. The same penalty shall be inflicted in case of mutiny on the high seas or in Philippine waters. All offenses under this title can ONLY be committed by public officers, except: (1) Offending the religious feelings under Article 133; (2) Or when he conspires with a public officer; or (3) When he becomes an accomplice or accessory to said crimes.

Criminal Law

CRIMES AGAINST FUNDAMENTAL LAWS OF THE STATE CHAPTER ONE: Arbitrary Detention or Expulsion, Violation of Dwelling, Prohibition, Interruption, and Dissolution of Peaceful Meetings and Crimes Against Religious Worship Section 1: Arbitrary detention and Expulsion Art.124: Arbitrary detention Art.125: Delay in the delivery of detained persons to the proper judicial authorities Art.126: Delaying release Art.127: Expulsion Section 2: Violation of domicile Art.128: Violation of domicile Art.129: Search warrants maliciously obtained and abuse in the service of those legally obtained Art.130: Searching domicile without witnesses Section 3: Prohibition, interruption, and dissolution of peaceful meetings Art.131: Prohibition, interruption, and dissolution of peaceful meetings Section 4; Crimes against religious worship Art. 132: Interruption of religious worship Art. 133: Offending religious feelings

CHAPTER ONE: ARBITRARY DETENTION OR EXPULSION, VIOLATION OF DWELLING, PROHIBITION, INTERRUPTION, AND DISSOLUTION OF PEACEFUL MEETINGS SECTION 1: ARBITRARY DETENTION AND EXPULSION ART. 124. ARBITRARY DETENTION ELEMENTS a. b. c.

Offender is a public officer or employee with authority to detain or order detention; He detains a person; and The detention is without legal grounds as: i. No crime was committed by the detained; ii. There is no violent insanity of the detained person; and iii. The person detained has no ailment which requires compulsory confinement in a hospital.

DETENTION 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 when:

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(1)

(2)

Criminal Law

When he has not committed any crime or, at least, there is no reasonable ground for suspicion that he has committed a crime; or When he is not suffering from violent insanity or any other ailment requiring compulsory confinement in a hospital.

NOTE: ● Public officer one acting within the bounds of his official authority or function. ● Not all public officers can commit it the crime. Only those public officers whose official duties carry with it the authority to make an arrest and detain persons can be guilty of this crime. Cause of arbitrary detention: Warrantless Arrest: (1) In the presence of the peace officer, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (2) An offense has just been committed and the peace officer has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; or (3) the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending or has escaped while being transferred from one confinement to another. ARBITRARY DETENTION ARTICLE 124 Public officer who has authority to make arrests and detain persons Denies the offender his liberty

ILLEGAL DETENTION ARTICLE 267 Private person OR Public officer acting in private capacity/ beyond the scope of his official duty Denies the offender his liberty

UNLAWFUL ARREST ARTICLE 269 Any person

Accuses the offended party of a crime he did not commit Delivers him to proper authority and files the necessary charges to incriminate him

Arbitrary detention imprudence.

can

be

committed

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through

ART. 125. DELAY IN THE DELIVERY OF DETAINED PERSONS TO THE PROPER JUDICIAL AUTHORITIES DELAY IN DELIVERY Detaining for more than the period allowed by law without filing a charge, of a person lawfully arrested without warrant. The crime is committed when there is a delay in the filing of the complaint or information against the person arrested with the corresponding Court, and NOT the physical delivery of the person arrested to the Judge or Court. (Sayo v. Chief of Police) ELEMENTS a. b. c.

Offender is a public officer; He detains a person for some legal ground; and He fails to deliver such person to the proper judicial authorities within: i. 12 hours for light penalties. ii. 18 hours for correctional penalties. iii. 36 hours for afflictive or capital penalties.

Circumstances considered in determining liability of officer detaining a person beyond legal period (1) Means of communication; (2) Hour of arrest; (3) Other circumstances such as the time of surrender and the material possibility for the fiscal to make the investigation and file in time the necessary information. (Sayo vs Chief Police) NOTE: • Nighttime and holidays are not included in the computation of the period. • When a judge is unavailable, and the maximum hours have prescribed, the officer is duty-bound to release the detainee. • Art. 125 does not apply when the arrest is by warrant of arrest. • If the offender is a private person, the crime is Illegal Detention. ARBITRARY DETENTION ARTICLE. 124 Detention is illegal from the beginning

DELAY IN THE DELIVERY OF DETAINED PERSONS TO THE JUDICIAL AUTHORITIES ARTICLE. 125 Detention is legal from the beginning, but becomes illegal due to the failure to deliver to proper authorities 90

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(1) (2) (3)

Criminal Law

ART. 126: DELAYING RELEASE

(2)

ACTS PUNISHED

(3)

Delaying the performance of a judicial or executive order for the release of a prisoner; Unduly delaying the service of the notice of such order to said prisoner; or Unduly delaying the proceedings upon any petition for the liberation of such person.

ELEMENTS a. b. c.

Offender is a public officer or employee. He commits any of the 3 acts punished He is not authorized by judicial order to enter the dwelling or to make a search therein for papers or other elements.

ELEMENTS a. b.

Offender is a public officer or employee; There is a judicial or executive order for the release of a prisoner or detention prisoner or that there is a proceeding upon a petition for the liberation of such person; and Offender, without good reason, delays the – i. Service of the notice of such order to the prisoner; ii. Performance of such judicial or executive order for the release of the prisoner; or iii. Proceedings upon a petition for the release of such person.

c.

Most likely committed by Wardens and Jail Guards and Police Officers who oversee the custody of the prisoners.

ART. 127: EXPULSION ELEMENTS a. b.

Offender is a public officer; He commits any of the two acts: a. Expels any person from the Philippines; or b. Compels a person to change his residence; Offender is not authorized by law to do so.

c.

NOTE: ● Offended party may be a Filipino or a foreigner. ● Only the President of the Republic of the Philippines has the power to deport aliens. ● Only the Court, by final judgment, can order a person to change his residence.

SECTION 2: VIOLATION OF DOMICILE

CIRCUMSTANCES QUALIFYING THE OFFENSE (1) (2)

ACTS PUNISHED Entering any dwelling against the will of the owner;

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Offense is committed at nighttime. Papers or effects not constituting evidence of a crime not be returned immediately.

NOTE: • Authorized by judicial order means armed with a search warrant. • If the public officer has stealthily entered the dwelling and when discovered immediately went out of the same, he is not liable. However, if he is required to leave and he refuses to do so, he becomes liable. • No liability if officer, having given notice of arrest, breaks into a premise after a person to be arrested enters the said premise and closes it. § Reason: “while it may be true in general that a ‘man’s house is his castle,’ it is equally true that he may not use that castle as a citadel for aggression against his neighbors, nor can he, within its walls, create such disorder as to affect peace.” (US vs Vallejo)

ART. 129. SEARCH WARRANTS MALICIOUSLY OBTAINED AND ABUSE IN THE SERVICE OF THOSE LEGALLY OBTAINED ACTS PUNISHED (1)

Procuring a search warrant without just cause Elements: a. offender is a public officer b. he procured a search warrant c. there is no just cause

(2)

Exceeding authority by using unnecessary severity in executing a search warrant legally produced

ART. 128. VIOLATION OF DOMICILE

(1)

Searching papers or other effects found therein, without the previous consent of such owner; Refusing to leave the premises, after surreptitiously entering said dwelling and after having been required to leave the same.

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ART. 130. SEARCHING DOMICILE WITHOUT WITNESSES.

Elements: a. offender is a public officer or employee b. he has legally procured a search warrant c. he exceeded his authority or used unnecessary severity in executing the same SEARCH WARRANT An order in writing issued in the name of the People of the Philippines, signed by a judge directed to a public officer, commanding him to search for personal property described therein and bring it before the court

ELEMENTS a. b. c. d.

PROCEDURE FOR SECURING A SEARCH WARRANT (1)

(2)

(3) (4)

(5) (6) (7)

Application is made by a police officer based on personal knowledge of a crime committed in a specific place. ● Must specify the offense, place, and things to be seized ● Property to be seized: a. Subject of the offense, b. Proceeds, fruits, or things used to commit OR c. Intended to be used as the means of committing the offense. Judge makes personal determination of PROBABLE CAUSE after examination of complainant and other witnesses. Officer brings 2 witnesses of sufficient age Conducts the search a. Usually daytime b. Must be conducted without force, except if the owner prevents entry or officer is refused admittance after giving notice of his purpose and authority, or he and his aides are unlawfully detained in the house (may break open door or window or any part of a house). Officer issues a detailed receipt of property seized; must be signed by the owner or employees. Officer delivers inventory and property seized to the judge. Delivery of evidence of seizure (photographs, documents, reports). EXCEPTIONS TO REQUIREMENT OF A SEARCH WARRANT (1) (2) (3) (4) (5) (6)

Search incidental to a lawful arrest; Search of moving vehicles; Evidence in plain view; Stop and frisk; Customs searches (vessels and aircraft); or Consented warrantless searches

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Offender is a public officer; He is armed with a legally procured search warrant; He searches the domicile, papers and other belongings of any person; and The owner, or the member of his family, or 2 witnesses residing in the same locality are not present.

INSTANCE WHEN OFFICER MAY BREAK OPEN ANY OUTER OR INNER DOOR OR WINDOW OF A HOUSE OR ANY PART OF A HOUSE OR ANYTHING THEREIN WHEN (1) (2)

(3)

He is refused admittance to the place of directed search; His purpose is to execute the warrant to liberate himself or any person lawfully aiding him when unlawfully detained therein; and He has given notice of his purpose and authority.

NOTE: This article only applies to lawfully obtained search warrants.

SECTION 3: PROHIBITION, INTERRUPTION, AND DISSOLUTION OF PEACEFUL MEETINGS ART. 131. PROHIBITION, INTERRUPTION AND DISSOLUTION OF PEACEFUL MEETINGS ELEMENTS a.

b.

Offender is a public officer; NOTE: If offender is a private individual, the crime is punished under Art 153: Tumults and other disturbances of public order Commits any of the following acts: i. Prohibit or interrupt or dissolve the holding of a peaceful meeting, without any legal ground. ii. Hinder any person from joining any lawful association or attending any of its meetings. iii. Prohibit or hinder any person from addressing (alone or with others) any petition to the authorities for the correction of abuses or redress of grievances.

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If a public officer disrupts a religious gathering, but the circumstances do not fall under Interruption of Religious Worship or Offending Religious Feelings, the crime may be interruption or dissolution of peaceful meetings. If in the course of the assembly which started out peacefully, participants commit illegal acts like oral defamation or inciting to sedition. Two criteria to determine whether this article would be violated: (1) Dangerous tendency rule – applied during times of national unrest such as to prevent coup d’état. (2) Clear and present danger rule – applied during times of peace. Stricter rule.

SECTION 4: CRIMES RELIGIOUS WORSHIP

AGAINST

ART. 132. INTERRUPTION OF RELIGIOUS WORSHIP ELEMENTS a. b. c.

Offender is a public officer or employee. Religious ceremonies or manifestations of any religion are about to take place or are going on. Offender prevents or disturbs the same.

faithful, directed against religious tenet DETERMINATION OF WHETHER AN ACT IS NOTORIOUSLY OFFENSIVE: (1)

Determined in view of the nature of the acts committed and after scrutiny of all facts and circumstances, and would not hinge on the subjective characterization of the act from the point of view of the religious denomination or sect. (People

vs. Tengson) (2) (3)

Offense to feelings is judged from complainant’s point of view, not from the offender. (People vs. Baes) Act must be intentionally done to offend. (People vs.

Nanoy) INTERRUPTION OF RELIGIOUS WORSHIP ARTICLE 132

PROHIBITION, INTERRUPTION, DISSOLUTION OF PEACEFUL MEETINGS ARTICLE 131

TUMULTS AND OTHER DISTURBANCES ARTICLE 153

Public Officer Prevents or disturbs religious ceremonies and manifestations

Public Officer Prohibits, interrupts or dissolves a peaceful meeting without legal ground

Private Person Interrupts or disturbs performances, functions or gatherings or peaceful meetings (not included in 131 and 132)

EXAMPLES OF RELIGIOUS WORSHIP: Mass, baptism, marriage

Creates a serious disturbance in a public place, office or establishment

QUALIFYING CIRCUMSTANCE: if the crime is committed with violence or threats.

ART. 133. OFFENDING THE RELIGIOUS FEELINGS ELEMENTS a.

b.

c. d.

Acts complained of were performed either i. A place devoted to religious worship; ii. During the celebration of any religious ceremony Acts are notoriously offensive to the feelings of the faithful NOTE: NOTORIOUSLY OFFENSIVE - Acts directed against religious practice or dogma or ritual for the purpose of mocking or scoffing at or attempting to damage an object of religious veneration. (People vs. Mandoriao) Offender is any person There is deliberate intent to hurt the feelings of the

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OFFENDING RELIGIOUS FEELINGS ARTICLE 133 Act done is notoriously offensive to the faithful

Done with Intent to offend the feelings of the faithful

UNJUST VEXATION Any act committed without violence, but which unjustifiably annoys or vexes an innocent person amounts to light coercion Committed against one specific person

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CRIMES AGAINST PUBLIC ORDER CHAPTER ONE: Rebellion, Coup d’etat, Sedition and Disloyalty Section 1: Arbitrary detention and Expulsion Art. 134. Rebellion or Insurrection Art. 134-A. Coup d’etat Art. 135. Penalty for Rebellion, Insurrection or Coup d’etat Art. 136. Conspiracy and Proposal to Commit Coup d’etat, Rebellion or Insurrection Art. 137. Disloyalty of Public Officers or Employees Art. 138. Inciting to Rebellion or Insurrection Art. 139. Sedition Art. 140. Penalty for Sedition Art. 141. Conspiracy to Commit Sedition Art. 142. Inciting to Sedition CHAPTER TWO: Crimes against popular representation Section 1: Crimes against legislative bodies sand similar bodies Art. 143. Acts Tending to Prevent the Meeting of the Assembly Art. 144. Disturbance of Proceedings Section 2: Violation of Parliamentary Immunity Art. 145. Violation of Parliamentary Immunity CHAPTER THREE: Illegal Assemblies and Associations Art. 146. Illegal Assemblies Art. 147. Illegal Associations CHAPTER FOUR: Assault upon, and resistance and disobedience to persons in authority and their agents Art. 148. Direct Assaults Art. 149. Indirect Assaults Art. 150. Disobedience to summons issued by the National Assembly, its committee or subcommittees, by the Constitutional Commissions, its committees, subcommittees or divisions Art. 151. Resistance and Disobedience to a Person in Authority or the Agents of Such Person Art. 152. Persons in Authority and Agents in Authority CHAPTER FIVE: Public Disorders Art. 153. Tumults and Other Disturbances of Public Order – Tumultuous Disturbance or Interruption Liable to Cause Disturbance Art. 154. Unlawful Use of Means of Publication and Unlawful Utterances Art. 155. Alarms and Scandals Art. 156. Delivering Prisoners from Jail CHAPTER SIX: Evasion of Service of Sentence Art. 157. Evasion of Service of Sentence Art. 158. Evasion of Service of Sentence on the Occasion of Disorders, Conflagrations, Earthquakes, or Other Calamities Art. 159. Other cases of Evasion of Service of Sentence CHAPTER SEVEN: Commission of another crime during service of penalty imposed for another previous offense Lasallian Commission on Bar Operations

Criminal Law

Art. 160. Commission of Another Crime During Service of Penalty Imposed for Another Previous Offense

CHAPTER ONE: REBELLION, COUP D’ETAT, SEDITION AND DISLOYALTY SECTION 1: ARBITRARY DETENTION AND EXPULSION ART. 134. REBELLION OR INSURRECTION; HOW COMMITTED DEFINITION “REBELLION” A crime of masses, a vast movement of men and a complex net of intrigues and plots where the object of the movement is completely to overthrow and supersede the existing government. “INSURRECTION” A movement which seeks merely to effect some change of minor importance, or to prevent the exercise of government authority with respect to particular matters or subjects. “TERRORISM” When a person commits rebellion or insurrection sowing and creating a condition of widespread and extraordinary fear and panic to coerce the government to give in to an unlawful demand. ELEMENTS a. b.

There must be a public uprising and taking up arms against the Government; Purpose of the uprising is political, either: i. To remove from the allegiance to said Government or its laws: ● Territory of the Philippines or any part thereof; ● Any body of land, naval or other armed forces. ii. To deprive the Chief Executive or Congress, wholly or partially, any of their powers or prerogatives.

REBELLION ARTICLE 134 Levying of war during time of peace Always involves the taking up of arms

TREASON ARTICLE 114 Levying of war wen performed to aid Done by mere adherence to the enemy giving him aid or comfort

NOTE: • Hernandez Ruling (1956): Rebellion cannot be 94

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•

• •

•

•

complexed with other crimes, such as murder and arson. Rebellion in itself would include and absorb the said crimes. § Common crimes involving killings or destruction or property, even though committed by rebels in furtherance of rebellion shall bring about the complex crimes of rebellion with murder/homicide, or rebellion with robbery, or rebellion with arson Enrile v. Salazar (1990): Expanded the Hernandez doctrine to prohibit the complexing of rebellion with other common crimes committed, both in furtherance of and on the occasion of rebellion. Rebellion is a crime of masses. There must be public uprising and the taking up of arms. Mere giving of aid or comfort is not criminal in the case of rebellion. Merely sympathizing is not participation, there must be actual participation. A private crime may be committed during rebellion. Examples: killing, possessions of firearms, illegal association are absorbed. However, Rape, even if not in furtherance of rebellion CANNOT be complexed. If killing, robbing was done for private purposes or for profit, without any political motivation, the crime would be separately be punished and would not be embraced by rebellion (People vs Fernando).

Criminal Law

ART. 134-A: COUP D’ ETAT ELEMENTS a.

b. c.

d. e. f.

ART. 135. PENALTY FOR REBELLION, INSURRECTION OR COUP D'ETAT PERSONS LIABLE FOR REBELLION, INSURRECTION OR

COUP D' ETAT (1)

PERSON DEEMED LEADER OF REBELLION IN CASE HE IS UNKNOWN: Any person who in fact: (1) directed the others; (2) spoke for them; (3) signed receipts and other documents issued in their name; (4) performed similar acts on behalf of the rebels.

(2)

PERSONS LIABLE FOR REBELLION: Any person who (1) promotes; (2) maintains; or (3) heads a rebellion or insurrection; or Any person who, while holding any public office or employment, takes part therein by: (1) engaging in war against the forces of the government; (2) destroying property or committing serious violence; (3) exacting contributions or diverting public funds from the lawful purpose for which they have been appropriated. Lasallian Commission on Bar Operations

Offender is a person or persons belonging to – i. the military or police; or ii. holding any public office or employment; Committed swift attack, accompanied by violence, intimidation, threat, strategy or stealth; Directed against: i. duly constituted authorities; ii. any military camp or installation; iii. communication networks or public utilities, other facilities needed for the exercise and continued possession of power. Singly or simultaneously carried out anywhere in the Philippines; Purpose of seizing or diminishing state power; With or without civilian support or participation.

(3)

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' etat; c. In the absence of known leaders, any person who in fact directed the others, spoke for them, signed receipts and other documents issued in their name, as performed similar acts, on behalf or the rebels. THE PARTICIPANTS: a. Any person who participates or executes the commands of others in rebellion, insurrection or coup d' etat; b. Any person not in the government service who participates, supports, finances, abets or aids in undertaking a coup d' etat. PRIVATE INDIVIDUALS supports, finances, abets or aids in undertaking a coup d’etat.

ART. 136. CONSPIRACY AND PROPOSAL TO COMMIT COUP D’ ETAT, REBELLION OR INSURRECTION. CONSPIRACY TO COMMIT REBELLION: when two or more persons come to an agreement to rise publicly and 95

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Criminal Law

take arms against the government for any of the purposes specified and decide to commit it. PROPOSAL TO COMMIT REBELLION: when a person who has decided to rise publicly and take arms against the government for any of the purposes specified, proposes its execution to another person.

ART. 137. DISLOYALTY OF PUBLIC OFFICERS OR EMPLOYEES. ELEMENTS a. b. c.

Existence of rebellion; Offender must be a public officer or employee; and Offender commits any of the following acts: i. fails to resist a rebellion by all means in their power; ii. continues to discharge the duties of their office under the control of the rebels; or iii. accepts an appointment to office under the rebels.

NOTE: • The crime presupposes the existence of rebellion • Offender must be a public officer or employee and there must be a rebellion to be resisted. • Offender must not be in conspiracy with the rebels or coup plotters • If there are means to prevent the rebellion but the officer did not resist, he becomes criminally liable for disloyalty. However, if there are no means to resist, the officer is at no fault.

ART. 138. INCITING A REBELLION OR INSURRECTION

another has decided to commit rebellion himself Proposal usually done privately (only between the one who proposes and another) or via secret means

The act of inciting is done publicly by means of speeches, proclamations, writings

Umil v. Ramos The crimes of rebellion, subversion, conspiracy or proposal to commit such crimes constitute direct assaults against the State and are in the nature of continuing crimes. The arrest of persons involved in these crimes is more an act of capturing them in the course of an armed conflict, to quell the rebellion, than for the purpose of immediately prosecuting them in court for a statutory offense. The absence of a judicial warrant is no legal impediment to arresting or capturing persons committing overt acts of violence against government forces, or any other milder acts but equally in pursuance of the rebellious movement. The arrest is thus impelled by the exigencies of the situation that involves the very survival of society and its government and duly constituted authorities. The act of urging all drivers and operators to go on nationwide strike to force the government to give in to their demands to lower the prices of spare parts, commodities, water and the immediate release from detention of the president of PISTON, and attending a gathering of drivers and sympathizers where he urged “pagpapalaya sa ating pinuno na si Ka Roda hanggang sa magkagulo na” constituted inciting to sedition.

People v. Lovedioro ELEMENTS a. b.

c.

Offender does not take up arms or is not in open hostility against the government Incites others to rise publicly and take arms against the government for any of the purposes of rebellion; and Inciting is done by means of speeches, proclamations, writings, emblems, banners or other representations tending to the same end.

PROPOSAL TO COMMIT REBELLION Person who proposes has decided to commit rebellion

INCITING TO REBELLION Not a requirement that the person who induces

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In deciding if the crime committed is rebellion and not murder, the Courts must ascertain whether or not the act was done in furtherance of a political end. The political motive of the act should be conclusively demonstrated, and this burden must fall on the defense, motive being a state of mind of the accused. Both purpose and overt acts are essential components of the crime. Political motive should be established before a person charged with a common crime can claim rebellion. If no such political motive is established and proved, the accused should be convicted of the common crime and not of rebellion. Motive relates to the act, and mere membership in an organization dedicated to the furtherance of rebellion would not, by and of itself, suffice.

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Sole, unsupported, and vague testimony by the accused of membership in a rebellious group is not sufficient proof.

ART. 139. SEDITION

a.

b. c.

ELEMENTS Offenders rise – i. publicly and ii. tumultuously (caused by more than 3-armed mean or provided with means of violence; There is employment of force, intimidation, or other means outside of legal methods Offenders employ any of those means to attain any of the following objects: i. To prevent the promulgation or execution of any law or the holding of any popular election; ii. To prevent the national government or any provincial or municipal government, or any public officer from exercising its or his function or prevent the execution of an administrative order; iii. To commit, for any political or social end, any act of hate or revenge against private persons or any social classes; iv. To commit, for any political or social end any act of hate or revenge upon the person or property of any public officer or employee; or v. 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.

Purpose: political or social If the uprising be for the attainment of a purpose enumerated in Art. 139 and accomplished by means of force, intimidation or means outside of legal methods. It is Sedition when the object of the uprising was to inflict an act of hate or revenge upon the persons of the policemen who were public officers or employees.

ART. 140. PENALTY FOR SEDITION. PERSONS LIABLE (1) (2)

ELEMENTS a. b.

ART. 142. INCITING TO SEDITION ELEMENTS a. b. c.

Comprehensive Reviewer in Criminal Law) SEDITION ARTICLE 139 There must be a public uprising – but there is no war

REBELLION ARTICLE 134 There must be a public uprising – there is a war

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Agreement and decision to rise publicly; and For the purpose of attaining an object of sedition.

NOTE: There is no crime of Proposal to commit sedition.

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. 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,

Leader of the sedition. Other person participating in the sedition.

ART. 141. CONSPIRACY TO COMMIT SEDITION

TUMULTUOUS If caused by more than three persons who are armed or provided with the means of violence. (Art. 163)

Purpose: always political If it be against the government and for a purpose enumerated in Art. 134, the crime is rebellion;

The offender does not take a direct part in the crime of sedition He incites others to the accomplishment of any of the acts which constitute sedition That the inciting is done by means of speeches, proclamations, writing, emblems, cartoons, banners, or other representations tending to the same end (purpose: cause commotion not exactly against the government; actual disturbance not necessary) DIFFERENT ACTS IN INCITING TO SEDITION

(1)

inciting others by means of speeches, proclamations, writings, emblems, cartoons, banners, or other 97

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(2)

(3)

(4)

Criminal Law

representations; uttering seditious words or speeches which tend to disturb or obstruct any lawful officer in executing the functions of his office, instigate others to cabal and meet together for unlawful purposes, suggest or incite rebellious conspiracies or riots or lead or tend to stir up the people against the lawful authorities; writing, publishing or circulating scurrilous (low, vulgar, mean or foul) libels against the government or any of the duly constituted authorities thereof, which tend to disturb the public peace; or knowingly concealing such evil practices; and

members of the council, which was not apparent, but required an investigation before it could be determined.

(People vs Alipit)

ART. 144. DISTURBANCE OF PROCEEDINGS ELEMENTS a.

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

vs. People)

CHAPTER TWO: CRIMES POPULAR REPRESENTATION

AGAINST

b.

NOTE: ● One who disturbs the proceedings of the National Assembly may also be punished for contempt by the Assembly (Lopex vs de los Reyes). ● The complaint for disturbance of proceedings may be filed by a member of a legislative body (People

vs Lapid).

SECTION 2: VIOLATION PARLIAMENTARY IMMUNITY

SECTION 1: CRIMES AGAINST LEGISLATIVE BODIES SAND SIMILAR BODIES

ACTS PUNISHABLE (1)

a.

b.

There be a projected or actual meeting of the National Assembly or any of its committees or subcommittees, constitutional committees or division thereof, or any provincial board or city or municipal council or board; and Offender who may be any person prevents such meeting by force or fraud.

NOTE: Any stranger, even if he be the municipal president himself or the chief of the municipal police, must respect the meeting of the municipal council presided over by the vice president and he has no right to dissolve it through violence under the pretext of lack of notice to some Lasallian Commission on Bar Operations

OF

ART. 145. VIOLATION OF PARLIAMENTARY IMMUNITY

ART. 143. ACTS TENDING TO PREVENT THE MEETING OF THE ASSEMBLY AND SIMILAR BODIES. ELEMENTS

There be a meeting of the National Assembly, its committees or subcommittees, constitutional commissions or committees or divisions thereof, or of any provincial board or city or municipal council or board; and The offender does any of the following acts: i. disturbs any of such meetings; ii. behaves so as to interrupt its proceedings or to impair the respect due it, while in the presence of such bodies.

By using force, intimidation, threats, or frauds to prevent any member of Congress from – A. attending the meeting of the assembly or any of its committees, constitutional commissions or committees or divisions thereof, or from B. expressing his opinions or C. casting his vote ELEMENTS: a. That the offender uses force, intimidation, threats or fraud b. That the purpose of the offender is to prevent any member of the national assembly from – i. Attending the meetings of the assembly or of any of its subcommittees or ii. Expressing his opinion; or iii. Casting his vote 98

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By arresting or searching any member thereof while Congress is in a regular or special session, except in case such member has committed a crime punishable under the code by a penalty higher than prision mayor ELEMENTS: a. That the offender is a public officer or employee b. That he arrests or searches any member of Congress c. That Congress, at the time of arrest or search, is in a regular or special session d. That the member searched has not committed a crime punishable under the code by a penalty higher than prision mayor

(2)

(2)

PERSONS LIABLE (1)

NOTE: • Parliamentary Immunity (Sec. 11. Article VI 1987 Constitution): It does not protect members from responsibility before the legislative body itself

(Osmena Jr. vs Pendatun) •

•

punishable by penalty of prision correcional (6months and 1day to 6years) or lower; Members of Congress are immune from arrest Offense

while congress is in session. Offense punishable by penalty of prision mayor (6years and 1day to 12years) or higher; Legislator may be arrested even while congress is in session. NOTE: To be consistent with the 1987 Constitution, the phrase “by a penalty higher than Prision Mayor” in Art. 145 should be amended to read “by the penalty of Prision Mayor or higher.”

A meeting in which the audience, whether armed or not, is incited to the commission of the crimes of treason, sedition or assault upon a person in authority or his agent. Elements: a. Meeting, gathering or group of persons whether in a fixed place or moving b. Audience whether armed or not, is incited to the commission of the crime of treason, rebellion or insurrection, sedition or direct assault.

(2)

The organizers or leaders thereof; (law imposes a heavier penalty upon the organizers or leader) and Those merely attending

Presumption: Where a person carries an unlicensed firearm in said meeting: a. That the purpose of the meeting as so far as he is concerned, is to commit acts punishable under this Code; and b. He shall be considered as the leader or organizer of the meeting. NOTE however that not all present at the meeting of the first form of illegal assembly must be armed. Those who, by means of speeches, printed matter or other means of representation, appear to have instigated the proceeding are the leaders or organizers of the meeting. RESPONSIBILITY OF PERSONS MERELY PRESENT

CHAPTER THREE: ILLEGAL ASSEMBLIES AND ASSOCIATIONS

AT THE MEETING (1) (2)

ART. 146. ILLEGAL ASSEMBLIES MEETING A gathering or group, whether in a fixed place or moving.

(1)

ILLEGAL ASSEMBLIES A meeting attended by armed persons for the purpose of committing any of the crimes punishable under this Code. Elements: a. Meeting, gathering or group of persons whether in a fixed place or moving b. Purpose: to commit any of crimes punishable under the code c. Attended by at least 4 armed persons

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If they are not armed: Arresto Mayor; If they carry arms like bolos or knives, or licensed firearms: Prision Correccional.

IF ANY PERSON CARRIES UNLICENSED FIREARM: (1) It is presumed that the purpose of the meeting insofar as he is concerned, is to commit acts punishable under the Code; and (2) He is considered as a leader or organizer of the meeting.

ART. 147. ILLEGAL ASSOCIATIONS

(1)

(2)

ILLEGAL ASSOCIATION Those totally or partially organized for the purpose of committing any of the crimes punishable under this Code; and Those totally or partially organized for some 99

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purpose contrary to public morals.

c.

“PUBLIC MORALS” Acts that affect the interest of society and public convenience. It is not confined to the limited concept of “good customs” and covers a system of judicial precepts founded on human nature that regulate public convenience. It refers to acts that are in accordance with natural and positive laws. PERSONS LIABLE (1) (2)

The founders, directors and president; and The members ILLEGAL ASSEMBLY ARTICLE 146

There is an actual meeting Act of forming or organizing and membership in the association Persons liable: leaders and those present Purpose is to commit felonies under the RPC; if not armed, individuals are incited to commit treason, rebellion, sedition or assault upon a person in authority or his agent.

ILLEGAL ASSOCIATION ARTICLE 147 Not necessary that there is a meeting It is the meeting and the attendance at such that are punished Founders, directors, president and members May also include crimes punishable under special laws.

CHAPTER FOUR: ASSAULT UPON, AND RESISTANCE AND DISOBEDIENCE TO PERSONS IN AUTHORITY AND THEIR AGENTS ART. 148. DIRECT ASSAULTS FORMS OF DIRECT ASSAULT 1st form – Without public uprising, by employing force or intimidation for attaining rebellion or sedition ELEMENTS a. That the offender employs force or intimidation. b. That the aim of the offender is to attain any of the purposes of the crime of rebellion or any of the objects of the crimes of sedition. Lasallian Commission on Bar Operations

That there is no public uprising ● It is not necessary that the offended party in the first form be a person in authority or his agent. The stature of the offended person is immaterial. The crime is manifested by the spirit of lawlessness. ● Accused prevents by force, the holding of a popular election in certain precincts, without public uprising.

2nd form - Without public uprising, by attacking, by employing force, or by seriously intimidating or seriously resisting any person in authority or his agents, while engaged in the performance of official duties ELEMENTS: a. There is no public uprising b. Offender – i. makes an attack; ii. employs force iii. makes a serious intimidation, or iv. makes a serious resistance. c. The person assaulted is a person in authority or his agent. d. At the time of the assault the person in authority or his agent is engaged in the actual performance of official duties (motive is not essential), or that he is assaulted by reason of the past performance of official duties (motive is essential). e. The offender knows that the one he is assaulting is a person in authority or his agent in the exercise of his duties. QUALIFIED DIRECT ASSAULT (1) (2) (3)

when the assault is committed with a weapon when the offender is a public officer or employee when the offender lays hand upon a person in authority

When the person in authority or the agent provoked or attacked first, the innocent party is entitled to defend himself and cannot be held liable for assault or resistance, neither for physical injuries, because he acts in legitimate self-defense. DIRECT ASSAULT Intends to punish acts that are done in the spirit of lawlessness for the first form of direct assault, or contempt or hatred for the authority or the rule of law in the second form of direct assault. The only time when it is not complexed with material consequence is a light felony, that is, slight physical injury. 100

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agent of the person in authority. He does not become another agent of the person in authority.

Direct assault absorbs the lighter felony; the crime of direct assault cannot be separated from the material result of the act.

DURING: DIRECT ASSAULT It is enough that the offender knew that the person in authority was performing an official function whatever may be the reason for the attack, although what may have happened was a purely private affair. May simply be the material consequence of the unlawful act of murder or homicide. For the crime to be direct assault, the attack must be by reason of his official function in the past. Hence, it is not necessary that the person in authority or his agent is in the actual performance of his official duty when attacked or seriously intimidated. There can be no direct assault upon or disobedience to one authority by another when they both contend in the

exercise of their respective duties. Two kinds of assault in the second form: • Simple • Qualified MURDER/HOMICIDE A judge was killed while walking home, because of an unpaid debt.

DIRECT ASSAULT WITH MURDER/HOMICIDE The offender killed the judge because the judge is so strict in the fulfillment of his duty.

Illustration: • It is not indirect assault if a private individual who is aiding a policeman in making a lawful arrest is attacked by the person to be arrested. This is because the policeman who is being aided is not a victim of direct assault. • The private individual in such a case is not coming to the aid of a person in authority, the policeman being an agent of a person in authority under Art. 152, par. 2. Hence, the crime is also not direct assault; the person attacked not being an agent of a person in authority.

ART. 150. DISOBEDIENCE TO SUMMONS ISSUED BY CONGRESS, ITS COMMITTEES OR SUBCOMMITTEES, BY THE CONSTITUTIONAL COMMISSIONS, ITS COMMITTEES, SUBCOMMITTEES OR DIVISIONS. ACTS PUNISHED (1)

(2)

ART. 149. INDIRECT ASSAULTS (3) ELEMENTS a. b. c.

A person in authority or his agent is the victim of any of the forms of direct assault defined in Article 148; A person comes to the aid of such authority or his agent; and Offender makes use of force or intimidation upon such person coming to the aid of the authority or his agent.

NOTE: • There is no indirect assault when there is no direct assault. • Due to the amendment of Article 152, without the corresponding amendment in Article 150, the crime of indirect assault can only be committed when assault is upon a civilian giving aid to an Lasallian Commission on Bar Operations

(4) (5)

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; By refusing to be sworn or placed under affirmation while being before such legislative or constitutional body or official; 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; By restraining another from attending as a witness in such legislative or constitutional body; or By inducing disobedience to a summons or refusal to be sworn by any such body or official.

NOTE: • The National Assembly is now the Congress of the Philippines, consisting of the Senate and the House of Representatives. • Power of inquiry, with process to enforce it, is an essential and appropriate auxiliary to the legislative functions • But when the investigation is for the purpose of passing a legislative measure, such investigation 101

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• • •

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comes under the province of the committee of the House or Senate. Any of the acts punished by Art. 150 may also constitute contempt of the National Assembly. Only disobedience without legal excuse is punishable (Arnault v. Nazareno) Art. 150 may not apply when the papers or documents may be used in evidence against the owner thereof, because it would be equivalent to compelling him to be witness against himself (Uy

Kheytin v. Villareal).

ART. 151. RESISTANCE AND DISOBEDIENCE TO A PERSON IN AUTHORITY OR THE AGENTS OF SUCH PERSON

Committed only by resisting or seriously disobeying a person in authority or his agent.

(The 2nd form) is committed in four ways: 1) attacking, 2) employing force, 3) seriously intimidating, 4) seriously resisting a person in authority or his agent.

(Against an agent) There is force employed, but the use of force in resistance is not so serious, as there is no manifest intention to defy the law and the officers enforcing it.

(Against an agent) The attack or employment of force which gives rise to the crime of direct assault must be serious and deliberate; otherwise, even a case of simple resistance to an arrest, which always requires the use of force of some kind, would constitute direct assault and the direct assault and the lesser offense of resistance or disobedience in Art. 151 would entirely disappear.

If NO force is employed by the offender in resisting or disobeying a person in authority, the crime committed is resistance or serious disobedience under the first paragraph of Art. 151.

When the one resisted is a person in authority, the use of any kind or degree of force will give rise to direct assault.

Intent is to defy the authorities

Intent is to defy the law

ELEMENTS OF RESISTANCE AND SERIOUS DISOBEDIENCE, 1ST PARAGRAPH a.

b. c.

A person in authority or his agent is engaged in the performance of official duty or gives a lawful order to the offender; Offender resists or seriously disobeys such person in authority or his agent; The act of the offender is not included in the provision of Articles148, 149 and 150.

ELEMENTS SIMPLE DISOBEDIENCE, 2ND PARAGRAPH a.

b. c.

An agent of a person in authority is engaged in the performance of official duty or gives a lawful order to the offender; Offender disobeys such agent of a person in authority; Such disobedience is not of a serious nature.

The order given must be lawful; otherwise, the resistance is justified. When the attack or employment of force is not deliberate, the crime is only resistance or disobedience. RESISTANCE / SERIOUS DISOBEDIENCE ARTICLE 151 The person in authority or his agent must be in actual performance of his duties.

DIRECT ASSAULT ARTICLE 148 The person in authority or his agent must be engaged in the performance of official duties or that he is assaulted by reason thereof.

NOTE: • The act of lying on the road and refusing, despite the order of the PC Major to get out therefrom, constitutes the crime of simple disobedience. • Picketing may be considered a nuisance if it constitutes an obstruction to the free use of property so as substantially to interfere with the comfortable enjoyment of life or property, or if it constitutes an unlawful obstruction to the free passage or use, in the customary manner, of a street. • No peaceful picketing (People vs Macapuno). • The accused bit a policeman on the right forearm and gave him a blow in another part of the body, which severely injured the policeman, and it required two policemen to subdue him. He was guilty of resistance and serious disobedience (People vs

Veloso). •

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An attack or employment of force considered only as resistance or serious disobedience When the attack 102

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or employment of force was not serious and deliberate and was only done to resist and not to purposely injure the person in authority or his agent.

(People v. Cauan)

ART. 152. PERSONS IN AUTHORITY AND AGENTS OF PERSONS IN AUTHORITY; WHO SHALL BE DEEMED AS SUCH.

Criminal Law

CHAPTER FIVE: PUBLIC DISORDERS THE CRIMES CLASSIFIED UNDER PUBLIC DISORDERS: (1) Tumults and other disturbances of public order.

(Art. 153) (2) (3) (4)

PERSONS IN AUTHORITY Any person directly vested with jurisdiction, whether as an individual or as a member of some court or governmental corporation, board or commission: (1) Barangay captain (2) Barangay chairman (3) Teachers (4) Professors (5) Persons charged with the supervision of public or duly recognized private schools, colleges and universities (6) Lawyers in the actual performance of their professional duties or on the occasion of such performance

Unlawful use of means of publication and unlawful utterances. (Art. 154) Alarms and scandals. (Art. 155) Delivering prisoners from jails. (Art. 156)

ART. 153. TUMULTS AND OTHER DISTURBANCE OF PUBLIC ORDERS; TUMULTUOUS DISTURBANCE OR INTERRUPTION LIABLE TO CAUSE DISTURBANCE. ACTS PUNISHED (1) (2)

Causing any serious disturbance in a public place, office or establishment; Interrupting or disturbing performances, functions or gatherings, or peaceful meetings, if the act is not included in Articles 131 and 132; Making any outcry tending to incite rebellion or sedition in any meeting, association or public place; Displaying placards or emblems which provoke a disturbance of public order in such place; and Burying the pomp the body of a person who has been legally executed.

AGENT OF PERSON IN AUTHORITY

(3)

Any person who, by direct provision of law/by election/appointment by competent authority, is charged with the maintenance of public order and protection and security of life and property: (1) Barrio councilman (2) Barrio policeman (3) Barangay leader (4) Any person who comes to the aid of persons in authority

(4)

Section 388 of the Local Gov’t Code: “For purposes of the RPC, the punong barangay, sangguniang barangay members and members of the lupong tagamapayaan in each barangay shall be deemed as persons in authority in their jurisdictions, while other barangay officials and members who may be designated by law or ordinance and charged with the maintenance of public order, protection and the security of life, property, or the maintenance of a desirable and balanced environment, and any barangay member who comes to the aid of persons in authority shall be deemed agent of persons in authority.”

If the act of disturbing or interrupting a meeting or religious worship is committed by a private individual, or even by a public officer, but he is a participant in the

(5)

The essence is creating public disorder. The crime is brought about by creating serious disturbances in public places, public buildings, and even in private places where public functions or performances are being held.

meeting or religious worship which he disturbs or interrupts, Art. 153, not Art. 131 or 132 (which punish the same acts if committed by public officers who are not participants in the meeting or religious worship), is

applicable. If done unconsciously or without intent to incite the listeners to rise to sedition or rebellion, this article applies. The “serious disturbance” in the first act punished must be planned or intended.

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The penalty next higher in degree shall be imposed upon persons causing any disturbance of a tumultuous character. It is “tumultuous” if caused by more than three persons who are armed or provided with means of violence.

“Armed” does not refer to bearing firearms but includes even big stones, anything that is capable of causing grave injury. “Outcry” means shouting provocative or subversive words tending to stir up the people to obtain, by means of force or violence, any of the objects of rebellion or sedition. If a convict legally put to death is buried with pomp, it is also disturbance of public order. He should not be made out as a martyr, as it might incite others to hatred. The one who fired the submachine gun committed two offenses: causing serious disturbance in a public place, the people present becoming panicky and terrified, and serious physical injuries through reckless imprudence), although they arose from the same act of the offender. (People vs. Bacolod, 1951)

ART. 154. UNLAWFUL USE OF MEANS OF PUBLICATION AND UNLAWFUL UTTERANCES

The offender must know that the news is false. If the offender does not know that the news is false, he is not liable under this article, there being no criminal intent on his part. If there is no possibility of danger to the public order or of causing damage to the interest or credit of the state then Art. 154 is not applicable. Example: Defendant distributed leaflets urging the people to disobey and resist the execution of that portion of the National Defense Act requiring compulsory training. The crime is not inciting to sedition. The acts charged which are subversive in nature fall under paragraph 2 of Art. 154. (People vs. Arogante) RA No. 248 prohibits the reprinting, reproduction or republication of government publications and official documents without previous authority.

ART. 155. ALARMS AND SCANDALS ACTS PUNISHED (1)

(2)

ACTS PUNISHED (1)

(2)

(3)

(4)

Any person who by means of printing, lithography, or any other means of publication shall publish or cause to be published as news any false news which may endanger the public order, or cause damage to the interest or credit of the State; Any person who by the same means, or by words, utterances or speeches shall encourage disobedience to the law or to the constituted authorities or praise, justify, or extol any act punished by law; Any person who shall maliciously publish or cause to be published any official resolution or document without proper authority, or before they have been published officially; or Any person who shall print, publish, or distribute or cause to be printed, published, or distributed books, pamphlets, periodicals, or leaflets which do not bear the real printer's name, or which are classified as anonymous.

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. Lasallian Commission on Bar Operations

(3)

(4)

Discharging any firearm, rocket, firecracker, or other explosives within any town or public place calculated to cause alarm or danger; Instigating or taking active part in any charivari or other disorderly meeting offensive to another or prejudicial to public tranquility. Disturbing the public peace while wandering about at night or while engaged in any other nocturnal amusement; Causing any disturbance or scandal in public places while intoxicated or otherwise, provided the act is not covered by Art 153 (tumult)

In the first act punished, the discharge of the firearm should not be aimed at a person; otherwise the offence would fall under Art. 254, punishing the discharge of firearm. Mere discharge of firearm towards another with intent to kill already amounts to attempted homicide or attempted murder or attempted parricide. It cannot be frustrated because the offended party is not mortally wounded. It is the result, not the intent that counts. The act must produce arm or danger as a consequence.

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In the opinion of Viada, (3 Viada, Codigo Penal, 4th Ed.) this article does not apply for firecrackers and rockets discharged during fiestas or festive occasions.

Correlate the crime of delivering persons from jail with infidelity in the custody of prisoners punished under Articles 223, 224 and 225.

Even if the persons involved are engaged in nocturnal activity like those playing patintero at night, or selling balut, if they conduct their activity in such a way that disturbs public peace, they may commit the crime of alarms and scandals.

The crime under Art. 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.

Scandal here does not refer to moral scandal, as that one is grave scandal in Art. 200. The essence of the crime is disturbance of public tranquility. “CHARIVARI” A mock serenade wherein the supposed serenaders use broken cans, broken pots, bottles or other utensils, creating discordant notes. It is actually producing noise, not music.

If the public officer has the custody of the prisoner when such prisoner escaped he is liable under Art. 223 for Infidelity in the custody of a prisoner. If the accused removed from jail or penal establishment a person confined therein or helped the latter’s escape by means of violence, intimidation, or bribery, the penalty is higher. Hence, it is not an element of the offense. DELIVERY OF PRISONERS FROM JAILS ARTICLE 156

If the annoyance is intended for a particular person, the crime is unjust vexation. The act of a person who hurled a general insult at everybody, there being 30 persons in the hall, and challenged the owner of the billiard hall to a fight, causing commotion and disorder so that the billiard game had to be stopped momentarily, constitutes merely a violation of Art. 155, part. 4, not of Art. 153. While the billiard hall is a public place, there was no serious public disorder. (People

vs. Gangay)

ART. 156. DELIVERY OF PRISONER FROM JAILS ELEMENTS a. b.

There is a person confined in a jail or penal establishment; and Offender removes therefrom such person or helps the escape of such person.

Any person – private citizen and public officer

Any person – private citizen and public officer

Helps convict or detention prisoner

Helps convict or detention prisoner

Offender is NOT THE CUSTODIAN of the prisoner or not at the time the prisoner was made to escape

Offender has CUSTODY of the prisoner at the time of escape

May be held an accessory

May be held an accessory

LIABILITY OF THE PRISONER OR DETAINEE WHO ESCAPED 1.

The person confined may be a mere detention prisoner. Of course, the prisoner may also be by final judgment. A hospital or asylum is considered an extension of the penal institution.

2.

The offender is usually an outsider. But the provision does not exclude public officers, therefore, offenders may be private persons or public officers. Violence, intimidation or bribery is not necessary, but if such was employed, the penalty is higher. Lasallian Commission on Bar Operations

INFIDELITY IN THE CUSTODY OF PRISONERS

3.

CONVICT SERVING SENTENCE BY FINAL JUDGMENT The crime of evasion of service of sentence is committed by the prisoner who escapes, if such prisoner is a convict serving sentence by final judgment. ONLY A DETENTION PRISONER 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 he knows and cooperates therein by escaping, he himself becomes liable for delivering prisoners from jail as a principal by indispensable cooperation. IF THREE PERSONS ARE INVOLVED 105

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A stranger, the custodian and the prisoner – three crimes are committed: • Infidelity in the custody of prisoners; • Delivery of prisoners from jail; and • Evasion of service of sentence. The person who substituted for a prisoner by taking his place in jail is liable under this article because the removal of the prisoner from jail is by other means, that is, by deceit. A policeman assigned to the city jail as a guard, who, while he was off duty, brought recently released prisoner inside the jail to substitute for a detention prisoner who he later on brought out of jail, returning said prisoner inside the jail after 5 hours, may be held liable under this crime. (People

vs. Del Barrio (CA, 60 OG 3908))

CHAPTER SIX: EVASION OF SERVICE OF SENTENCE THREE KINDS OF EVASION OF THE SERVICE OF THE SENTENCE (1) (2) (3)

Evasion of service of sentence by escaping during the term of his sentence. (Art. 157) Evasion of service of sentence on the occasion of disorders. (Art. 158) Other cases of evasion of service of sentence, by violating the conditions of conditional pardon. (Art.

159)

ART. 157. EVASION OF SERVICE OF SENTENCE ELEMENTS a. b. c.

Offender is a convict by final judgment; He is serving sentence, which consists in the deprivation of liberty; and 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; (2) By breaking doors, windows, gates, walls, roofs, or floors; (3) By using picklock, false keys, disguise, deceit, violence or intimidation; or Lasallian Commission on Bar Operations

(4)

Through connivance with other employees of the penal institution.

convicts

or

The crime of evasion of service of sentence can be committed only by a convict of final judgment. If the accused escaped while the sentence of conviction was under appeal, he is not liable under Art. 157, the judgment not having been final, and this is true even if his appeal was later dismissed because he had escaped. (Curiano vs. CFI) Art. 157 is not applicable in sentence executed by deportation because the convict was not sentenced to imprisonment. Art. 157 is applicable in destierro because destierro is a deprivation of liberty, though partial. In leaving or escaping from jail or prison, that the prisoner immediately returned is immaterial. His voluntary return may only be mitigating, being analogous to voluntary surrender. But the same will not absolve his criminal liability. Detention prisoners are not convicts by final judgment since they are only detained pending the investigation or the trial of the case against them. On unlawful entry: The crime is committed is qualified if committed by climbing or scaling the wall, as the Spanish text uses the word “escalamiento.” The appellant is guilty of evasion of service of sentence, in that during the period of his sentence of destierro by virtue of final judgment wherein he was prohibited from entering the City of Manila, he entered said city. (People

vs. Abilong)

ART. 158. EVASION OF SERVICE OF SENTENCE ON THE OCCASION OF DISORDER, CONFLAGRATIONS, EARTHQUAKES, OR OTHER CALAMITIES ELEMENTS a. b.

c.

Offender is a convict by final judgment who is confined in a penal institution; There is disorder, resulting from – i. Conflagration; ii. Earthquake; iii. Explosion; or iv. Similar Catastrophe; or v. Mutiny in which he has not participated; He evades the service of his sentence by leaving the penal institution where he is confined, on the occasion of such disorder or during mutiny; and 106

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d.

Criminal Law

He fails to give himself up to the authorities within 48 hours following the issuance of proclamation by the Chief Executive announcing the passing away of such calamity.

Although Art. 158 is silent, it is required that the convict must be one by final judgment, because only a convict by final judgment can “evade the service of his sentence”. The leaving from the penal establishment is not the basis of criminal liability, but the failure to return within 48 hours after the passing of the calamity, conflagration or mutiny had been announced. 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 not to exceed 6 months. But if the prisoner fails to return within said 48 hours, an added penalty, also 1/5 shall be imposed, but the 1/5 penalty is based on the remaining period of sentence, not on the original sentence. But if the prisoner decided to stay despite the chance to evade, he will not be entitled for the 1/5 deduction.

ART. 159. OTHER CASES OF EVASION OF SERVICE OF SENTENCE

The violation of a conditional pardon is a distinct crime. The violation of a conditional pardon is committed in the place where the subsequent offence is perpetuated. The court cannot require the convict to serve the unexpired portion of his original sentence, if it does not exceed six years. Article 159 does not provide that the accused shall serve such. The remedy is left to the President who has the authority to recommit him to serve the unexpired portion of his original sentence. In violation of a 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. Under Art. 159, when the sentence remitted by the conditional pardon does not exceed six years, the penalty of the grantee who violates any of the conditions of such pardon is prison correccional in its minimum period. It is only when the penalty remitted by the pardon is higher than 6 years that the convict shall then suffer the unexpired portion of his original sentence. Since destierro has a duration of 6 months and 1 day to 6 years, under no circumstance may the penalty for violation of the conditional pardon be destierro. In the case of People vs. Jose (1945), Violation of the conditional pardon is not substantive offense because the penalty imposed for such violation is the unexpired portion of the punishment in the original sentence.

ELEMENTS a. b. c.

Offender was a convict; He was granted pardon by the Chief Executive; and He violated any of the conditions of such pardon. CONDITIONAL PARDON IS A CONTRACT

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, not as he chooses, but according to its strict terms. (People vs. Pontillas, 1938) TWO PENALTIES ARE PROVIDED FOR IN THIS ARTICLE (1)

Prison correccional in its minimum period- if the

(2)

penalty remitted does not exceed 6 years. The unexpired portion of his original sentence- if the penalty is higher than 6 years.

Lasallian Commission on Bar Operations

CHAPTER SEVEN: COMMISSION OF ANOTHER CRIME DURING SERVICE OF PENALTY IMPOSED FOR ANOTHER OFFENSE ART. 160. COMMISSION OF ANOTHER CRIME DURING SERVICE OF PENALTY IMPOSED FOR ANOTHER OFFENSE ELEMENTS a. b.

Offender was already convicted by final judgment of one offense; He committed a new felony before beginning to serve such sentence or while serving the same.

The second crime must be a felony. But the first crime for which the offender is serving sentence need not be a felony. Thus, if a prisoner serving sentence for one crime is found to be in possession of a firearm without a license, 107

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this article does not seem to apply because the law punishing illegal possession of firearm is a special law. The new offense need not be of different character from that of the former offense.

Number of crimes committ ed.

Commits a felony before or while serving sentence.

Guilty the third time or oftener.

The second conviction for an offense embraced in the same title of this Code.

Their effects

Special Aggravatin g; Max Penalty.

An additiona l penalty shall be imposed.

If not offset by any mitigating circumsta nce, increase the penalty only to the maximum.

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 special aggravating circumstance of quasi-recidivism cannot be offset by any ordinary mitigating circumstance because Art. 160 specifically provides that the offender “shall be punished by the maximum period of the penalty prescribed by law for the new felony.”

But if he is a minor under 16, the penalty can be lowered by at least one degree. Minority is a privileged mitigating circumstance.

The previous and subseque nt offenses must NOT be embraced in the same title of the Code. Not always an aggravati ng circumsta nce.

When he is a habitual criminal, a quasi-recidivist may not be pardoned even if he has reached the age of 70, and already served out his original sentence. Quasi Recidivism Crimes committ ed

Period of time the crimes are committ ed.

Convicted of a felony or offense by final judgment.

Habitual Delinque

Quasi Recidivis

Habitual Delinque

ncy

m

ncy

Convicte d thrice of the crimes specified:

Crimes committed

Convicted of a felony or offense by final judgment.

Within 10 years from his last release or convictio n

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CRIMES AGAINST PUBLIC INTEREST 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. CHAPTER ONE: Forgeries Section 1: Forging the Seal of the Government of the Philippine Islands, the Signature or Stamp of the Chief Executive Art. 161. Counterfeiting the great seal of the Government of the Philippine Islands, forging the signature or stamp of the Chief Executive Art. 162. Using forged signature or counterfeit seal or stamp Section 2: Counterfeiting Coins Art. 163. Making and Importing and Uttering False Coins Art. 164. Mutilation of Coins Art. 165. Selling of False or Mutilated Coin, Without Connivance Section 3: Forging treasury or bank notes, obligations and securities; importing and uttering false or forged notes, obligations and securities Art. 166. Forging treasury or bank notes on other documents payable to bearer; importing, and uttering such false or forged notes and documents Art. 167. Counterfeiting, importing and uttering instruments not payable to bearer Art. 168. Illegal possession and use of false treasury or bank notes and other instruments of credit Art. 169. How forgery is committed Section 4: Falsification of legislative, public, commercial, and private documents, and wireless, telegraph, and telephone message Art. 170. Falsification of legislative documents Art. 171. Falsification by public officer, employee or notary or ecclesiastic minister Art. 172. Falsification by private individual and use of falsified documents Art. 173. Falsification of wireless, cable, telegraph and telephone messages, and use of said falsified messages Section 5: Falsification of medical certificates, certificates of merit or services and the like Art. 174. False medical certificates, false certificates of merits or service, etc. Art. 175. Using false certificates Section 6: Manufacturing, importing and possession of instruments or implements intended for the commission of falsification Art. 176. Manufacturing and possession of instruments or implements for falsification CHAPTER TWO: Other Falsifications Section 1: Usurpation of authority, rank, title, and improper use of names, uniforms and insignia Art. 177. Usurpation of authority or official functions Art. 178. Using fictitious name and concealing true name Art. 179. Illegal use of uniforms or insignia Section 2: False testimony Art. 180. False testimony against a defendant Art. 181. False testimony favorable to the defendants Lasallian Commission on Bar Operations

Criminal Law

Art. 182. False testimony in civil cases Art. 183. False testimony in other cases and perjury in solemn affirmation Art. 184. Offering false testimony in evidence CHAPTER THREE: Frauds Section 1: Machinations, monopolies and combinations Art. 185. Machinations in public auctions Art. 186. Monopolies and combinations in restraint of trade Section 2: Frauds in Commerce and Industry Art. 187. Importation and disposition of falsely marked articles or merchandise made of gold, silver, or other precious metals or their alloys Art. 188. Subsisting and altering trade-mark, tradenames, or service marks Art. 189. Unfair competition, fraudulent registration of trade-mark, trade-name or service mark, fraudulent designation of origin, and false description

CHAPTER ONE: FORGERIES SECTION 1: FORGING THE SEAL OF THE GOVERNMENT OF THE PHILIPPINE ISLANDS, THE SIGNATURE OR STAMP OF THE CHIEF EXECUTIVE ART. 161. COUNTERFEITING THE GREAT SEAL OF THE GOVERNMENT OF THE PHILIPPINE ISLANDS, THE SIGNATURE OR STAMP OF THE CHIEF EXECUTIVE

(1) (2)

(3)

ACTS PUNISHED Forging the great seal of the Government of the Philippines; Forging the signature of the President; • Counterfeiting, or making an imitation of the signature of the Chief Executive on what is made to appear as an official document. • If the signature was placed in a blank document, and the document was written above it, then it is not punishable under Art. 161. but Art. 171 or 172. Forging the Stamp of the President. • Custody of the great seal of the Government of the Philippines: • Sec. 19 of the Revised Administrative Code: The Great Seal shall remain in the custody of the President and shall be affixed to or placed upon all commissions signed by him, other official documents and papers, or as may be required by custom and usage.

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ART. 162: USING FORGED SIGNATURE OR COUNTERFEIT SEAL OR STAMP

●

Guarantee of the State: that the currency is backed up by something of value. KINDS OF COINS THE COUNTERFEITING OF WHICH IS PUNISHED

ELEMENTS a.

b. c.

The great seal of the Republic was counterfeited, or the signature or stamp of the Chief Executive was forged by another person; Offender knew of the counterfeiting or forgery; Used the counterfeit seal or forged signature or stamp. • Offender under this article should not be the forger, he only uses the forged effects. • If the offender is the forger, Art. 161 will apply. • 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.

SECTION 2: COUNTERFEITING COINS ART. 163: MAKING AND IMPORTING AND UTTERING FALSE COINS ELEMENTS a. b. c.

Existence of false or counterfeited coins; Offender made or imported or uttered such coins; In case of uttering such false coins, he connived with counterfeiters or importers.

COIN Piece of metal stamped with certain marks and made current at a certain value.

(1) (2) (3)

Counterfeiting demonetized coins is still punishable. The intent of legislature in punishing the counterfeiting of coins is not alone the harm caused to the public by the fact that a counterfeit may go into circulation, but the danger that a counterfeiter produces by his stay in the country, and the possibility that he may later apply his trade to the making of coins in actual circulation. (People vs. Kong

Leon) Counterfeiting of coins or blank notes which are not current is not an offense; the reason for such a rule is that no person is defrauded if the coin is not in circulation. However, in this case, collectors were to be defrauded as the purpose of fabrication appeared to be the sale of such coins to the Moros who valued them as relics or rare objects. (People vs. Kong Leon) Whether it is the currency of the Philippines or the United States, or any other foreign country, it will still be punishable (for acts described in Art. 163) as what is intended to be protected are not only the coins but also the public in general (People v. Tin Ching, 90 Phil. 870).

ART. 164: MUTILATION OF COINS; IMPORTATION AND UTTERANCE OF MUTILATED COINS

COUNTERFEITING The imitation of a design of a legal or genuine coin.

● ●

● ● ●

COUNTERFEIT COIN Not authorized by the government as legal tender, regardless of its intrinsic value. There is counterfeiting when a spurious coin is made. There must be an imitation of the peculiar design of a genuine coin. (US vs. Basco, 6 PHIL 110) IMPORTATION The bringing of fake coins into port. Importation is complete before entry at the Customs House. (US vs. Lyman, 26 Fed. Cas. 1024) To utter is to pass counterfeited coins, including their delivery or the act of giving them away. (Decisions of the Supreme Court of Spain of January 11, 1913)

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Silver coins of the Philippines or coins of the Central Bank of the Philippines; Coins of the minor coinage of the Philippines or of the Central Bank of the Philippines; Coin of the currency of a foreign country.

ACTS PUNISHED (1)

Mutilating coins of the legal currency, with the further requirement that there be intent to damage or to defraud another; • Requirement that the mutilation be done on coin that is legal currency. (People vs Tin

Ching Ting) • •

(2) (3)

Must be a coin of the Philippines, not foreign. Offender gains from the precious metal dust abstracted from the coin. Importing or uttering such mutilated coins in connivance with mutilators or importers. Mutilation is the only article which requires: 110

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a. b.

Criminal Law

Legal Currency (“Legal Tender”) Philippine Coin MUTILATION

Take off part of the metal either by filing it or substituting it for another metal or inferior quality. Diminish by ingenious means the metal in the coin, to appropriate it. The coin’s intrinsic value diminishes.

(People vs Tin Ching Ting, supra)

ART. 165: SELLING OF FALSE OR MUTILATED COIN, WITHOUT CONNIVANCE ACTS PUNISHED (1)

Possession of a coin mutilated or counterfeited by another, with intent to utter, knowing that the coin is false or mutilated; NOTE: Constructive Possession includes: Subjection of the thing to one’s control.

(2)

Actually uttering such false or mutilated coin, knowing the same to be false or mutilated. ● As distinguished from Art. 164, there is no connivance required in Art. 165. ● If the coin was a false coin, such acts described in Art. 165 is still punishable, even if the false coin was not of legal tender. But, if it was a mutilated coin, it must be of legal tender for such acts to be punishable under Art. 165. ● The offender must not be the counterfeiter. ● If counterfeiter/mutilator is found in possession of the coins, the offense of counterfeiting or mutilation. Possession is not a separate offense.

(Decision of the SC of Spain, June 28, 1877)

PD 247: PROHIBITING AND PENALIZING DEFACEMENT, MUTILATION, TEARING, BURNING OR DESTRUCTION OF CENTRAL BANK NOTES AND COINS WHEREAS, Central Bank notes and coins are issued for circulation as medium of exchange and to utilize them for other purposes does not speak well of the due respect and dignity befitting our currency; and

lifetime, and such acts unfavorably reflect on the discipline of our people and create a bad image for our country; That it shall be unlawful for any person to wilfully deface, mutilate, tear, burn or destroy, in any manner whatsoever, currency notes and coins issued by the Central Bank of the Philippines; That any person who shall violate this Decree shall, upon conviction, be punished by a fine of not more than twenty thousand pesos and/or by imprisonment of not more than five years. Punishes defacing or mutilating Philippine legal currency: ● Paper/Notes ● Coins Without intent to collect dust from mutilation of coins.

SECTION 3: FORGING TREASURY OR BANK NOTES, OBLIGATIONS AND SECURITIES; IMPORTING AND UTTERING FALSE OR FORGED NOTES, OBLIGATIONS AND SECURITIES ART. 166. FORGING TREASURY OR BANK NOTES ON OTHER DOCUMENTS PAYABLE TO BEARER; IMPORTING, AND UTTERING SUCH FALSE OR FORGED NOTES AND DOCUMENTS ACTS PUNISHED (1) (2) (3)

Forging or falsification of treasury or bank note or other documents payable to bearer; Importation of false or forged obligations or notes; Uttering of false or forged obligations or notes, in connivance with the forgers or importers.

FORGERY The giving to a treasury or bank note or any instrument payable to the bearer the appearance of a true and genuine document. (Bar 1999) FALSIFICATION The erasing, substituting, counterfeiting or altering by any means, the figures, letters, words, or signs contained therein. (Bar 1999)

WHEREAS, defacing, mutilating, tearing, or partially burning or destroying our currency by any means renders it unfit for circulation, thereby unduly shortening its Lasallian Commission on Bar Operations

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Serial No. F79692619 of a genuine treasury note so as to read 0. (Del Rosario vs People)

ART. 167: COUNTERFEITING, IMPORTING AND UTTERING INSTRUMENTS NOT PAYABLE TO BEARER

IMPORTATION The bringing notes forged or falsified in a foreign country into the Philippines.

ELEMENTS

Example: Accused erased and changed the last digit 9 of

UTTERANCE The offering obligations or notes as genuine, knowing them to be false or forged, with intent to defraud, whether the offer is accepted or not. (26 CJ 924) More severe penalties are meted out for forgeries and falsifications of obligations of notes because these bring such documents into discredit to the prejudice of the interests of the State, and it is easier to accomplish such forgeries as compared to making counterfeit coins. Also, more profit can be derived from falsifying notes, etc. (Hence, penalties depend on what kind of document is forged, or falsified.)

a. b. c.

PAYABLE TO ORDER ●

● ●

The Code punishes forging or falsification of bank notes and of documents of credit payable to bearer and issued by the State more severely than it does the counterfeiting of coins. (US v. Gardner) NOTES AND OTHER OBLIGATIONS THAT MAY BE FORGED OR FALSIFIED UNDER ART. 166 (1) (2) (3) (4)

Treasury or bank notes; Certificates; Other obligations and securities payable to bearer; PNB checks are commercial documents and are not covered by Art. 166. (People v. Samson) PAYABLE TO BEARER

(1) (2) (3)

(4) (5)

When expressed to be so payable When payable to a person named therein or bearer When payable to the order of a fictitious or nonexisting person, and such fact was known to the person making it so payable When the name of the payee does not purport to be the name of any person 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.

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Existence of an instrument payable to order or, other document not payable to bearer; Offender either forged, imported, or uttered such instrument; and In case of uttering, offender connived with the forger or importer.

Drawn payable to the order of a specified person or to him or his order and negotiated by indorsement and delivery Application of Art. 167 is limited to instruments payable to order. This article covers foreign instruments from the government or the bank.

ART. 168: ILLEGAL POSSESSION AND USE OF FALSE TREASURY OR BANK NOTES AND OTHER INSTRUMENTS OF CREDIT ELEMENTS a.

b. c.

Any treasury or bank note or certificate or other obligations and securities either payable to bearer or payable to order or other documents not payable to bearer is forged or falsified by another person; Offender knows that such instrument is forged or falsified; He performs any of the following: i. Using any such forged/falsified instrument; ii. Possessing with intent to use such instrument.

A person in possession of falsified documents and who makes use of the same is presumed to be the material author of the falsification. (People vs Sendaydiego) The burden of giving a satisfactory explanation of his possession of forged bills. (People vs Dela Roca) Possession of false treasury or bank notes alone is not a criminal offense, there must be intent to to use said false treasury or bank notes. (People vs Digoro)

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Art. 168 includes possession of counterfeit US dollars.

(People vs Perez).

a.

ART. 169: HOW FORGERY IS COMMITTED ACTS PUNISHED (1)

(2)

Forgery/Counterfeiting By giving to a treasury or bank note or any instrument the appearance of a true genuine document. Falsification Erasing, substituting, counterfeiting or altering by any means the figures, letters, words or signs contained therein.

The essence of forgery is giving a document the appearance of a true and genuine document. One of the ways forgery can be accomplished is by erasing, substituting, counterfeiting or altering by any means figures, letters, words or signs contained therein. Possession of such forged notes knowingly is punishable.

(Del Rosario vs. People) The unauthorized addition of the word “Victory” at the back of the certificate was made for no other purpose than to give to it the appearance of a true legal tender of the current bills, and so cause its acceptance as legal tender. The forgery is akin to, if not worse than, affixing a seal to a genuine signature on a document which is invalid without a seal. (People vs. Galano) The alteration or even destruction of demonetized paper bills would harm no one but the holder and would not constitute a crime but for the utterance of the bill so altered. Its utterance by giving it the appearance of a true and genuine legal tender of the Victory series shows the intention to deceive and defraud the Government in its duty to protect not only the public but also the paper bills legally issued.

A bill, resolution or ordinance enacted or approved or pending approval by either House, or any provincial board or municipal council; Offender alters the same; He has no proper authority to do so; and The alteration has changed the meaning of the document.

b. c. d.

THE WRITING MUST BE a. b.

Complete in itself; and Either: i. capable of extinguishing an obligation or creating rights; or ii. capable of becoming evidence of the facts stated therein. ●

● ●

ART. 171: FALSIFICATION BY PUBLIC OFFICER, EMPLOYEE OR NOTARY OR ECCLESIASTIC MINISTER ELEMENTS a.

Offender is: i. public officer or employee; ii. notary public; iii. ecclesiastical minister if he commits a falsification affecting the civil status of persons;

b.

He takes advantage of his official position: i. offender has the duty to make or to prepare or otherwise to intervene in the preparation of the document; ii. offender has the official custody of the document which he falsifies (People vs Uy); iii. if he did not take advantage of his official position, then Art. 172.

c.

Falsifies a document by committing any of the following: i. Counterfeiting or imitating any handwriting, signature or rubric;

SECTION 4: FALSIFICATION OF LEGISLATIVE, PUBLIC, COMMERCIAL, AND PRIVATE DOCUMENTS, AND WIRELESS, TELEGRAPH, AND TELEPHONE MESSAGE ART. 170: FALSIFICATION OF LEGISLATIVE DOCUMENTS ELEMENTS Lasallian Commission on Bar Operations

Art. 170 only punishes alteration without authority. All other acts of falsification are punished under the next articles The bill, resolution or ordinance must be genuine. The offender can be a private or public individual/officer.

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ii.

iii.

iv. v. vi.

vii.

viii.

Criminal Law

Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate; Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them; Making untruthful statements in a narration of facts Altering true dates; Making any alteration or intercalation in a genuine document which changes its meaning; 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; or Intercalating any instrument or note relative to the issuance thereof in a protocol, registry, or official book

ELEMENTS: a. Offender caused it to appear in a document that a person or persons participated in an act or a proceeding; b. Such person/s did not in fact so participate; c. Attributing to persons who have participated in any act or proceeding, statements other than those in fact made by them. (3)

NOTE: • Only a requirement if document falsified is a private document. • There must be a law requiring the disclosure of the truth, and the person must be aware of the falsity. Hence, Good faith is a defense. • If there is colorable truth to the facts, then it is not punished as facts must be absolutely false to be punished. • Wrongful intent not essential when the document falsified is public document and done by a public officer.

NOTE: In case the offender is an ecclesiastical minister, the act of falsification is committed with respect to any record or document of such character that its falsification may affect the civil status of persons. There is no crime of attempted or frustrated falsification of public document DOCUMENT Any writing or instrument by which a fact may be proven or affirmed, rights and duties established. (People vs

Moreno)

(4)

MODES OF FALSIFYING A DOCUMENT Counterfeiting or imitating handwriting, signature or rubric

(feigning)

any

“Counterfeiting” the imitating of any handwriting, signature or rubric

(5)

Altering True Dates 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.

(6)

Issuing in authenticated form a document purporting to be a copy of an original, when no such 114

“ Feigning” simulating a signature, handwriting, or rubric out of one of which does not in fact exist. (2)

Causing to appear that persons have participated in an act or a proceeding.

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Attributing to persons who have participated in any act or proceeding statements other than those in fact made by them ELEMENTS: a. That a person or persons participated in act or proceeding; b. That such person or persons made statements in that act or proceeding; c. That the offender in making a document, attributed to such person, statements other than those in fact made by such person or persons

NOTE: No crime of Estafa through falsification of private document because the two felonies have the same element: the intent to damage. But there is Estafa through falsification of public Document

(1)

Making untruthful statements in a narration of facts. ELEMENTS: a. Offender makes in a document statements in a narration of facts; b. He has a legal obligation to disclose the truth of the facts narrated by him; c. Facts narrated by the offender are absolutely false; and d. Perversion of truth in the narration of facts was made with the wrongful intent of injuring a third person.

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Criminal Law

original exists, or including in such a copy a statement contrary to or different from, that of the genuine. NOTE: Can be committed only by a public officer or notary public who takes advantage of his official position, since authentication of a document can only be done by the custodian. (7)

Issuing in authenticated form a document purporting to be a copy of an original when no such original exists Including in such a copy a statement contrary to or different from the genuine (requires genuine document).

(8)

Intercalating any instrument or note relative to the issuance: 1. Defacing original; 2. Only for those who have custody.

NOTE: An Information must list down as many acts of falsification as are applicable, but even if all are proven, the accused can be convicted only of one crime of falsification. An accused cannot be convicted however, of falsification through an act different from the one charged in the information.

b. c.

d.

NOTE: Since damage is not an element of falsification of a public document, it could be complexed with estafa as a necessary means to commit the latter. Further, good faith is a defense. (2)

ACTS PUNISHED FALSIFICATION OF A PUBLIC, OFFICIAL OR COMMERCIAL DOCUMENT BY A PRIVATE INDIVIDUAL;

NOTE: In cases of public, official or commercial documents: damage does not need to be material. Profiting from the crime or hoping to do the same is not required. And such falsification can be complexed with estafa.

Elements: a. Offender is a private individual or public officer or employee who did not take advantage of his official position; b. Committed any of the acts of falsification enumerated; c. Falsification was committed in a public, official or commercial document.

In case of a private document, intent and damage must be proved. This cannot be complexed with estafa as there is no estafa through falsification of a private document. Why? In the former case, what is punished is the violation of public faith and perversion of truth. In the latter case, what is punished is prejudice to a third party.

FOUR KINDS OF DOCUMENTS a.

“Public” Created, executed, issued by a public official in response to the exigencies of public service; OR any instrument authorized by a

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FALSIFICATION OF A PRIVATE DOCUMENT BY ANY PERSON; Elements: a. Offender committed any of the 8 acts of falsification, except Paragraph 7 enumerated in Art. 171; b. Falsification was committed in any private document; c. Falsification caused damage to a third party, or was committed with intent to cause damage.

ART. 172: FALSIFICATION BY PRIVATE INDIVIDUAL AND USE OF FALSIFIED DOCUMENTS

(1)

notary public or a competent public official, with the solemnities required by law. (US vs Asensi) “Official” Document issued by a public official in the exercise of the functions of his office “Private” Deed or instrument executed by a private person without the intervention of a notary public or any other individual authorized to so. (US vs Orera) “Commercial” i. Used by merchants or businessmen to promote or facilitate trade or credit transactions (People vs Co Beng) ii. Element of damage is unnecessary because of the nature of the documents involved; damage is presumed to be against public interest.

(3)

USE OF FALSIFIED DOCUMENT; 1. Introducing in a judicial proceeding; Elements: 115

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a. b.

c.

Offender knew that a document was falsified by another person; False document is embraced in Art 171 (POC) Paragraph 1 and 2 of Art. 172 (private document and POC); Offender introduced said document in evidence in any judicial proceeding. NOTE: Damage is NOT NECESSARY.

2.

Use in any other transaction; Elements: a. Offender knew that a document was falsified by another person; b. False document is embraced in Art 171 (POC) or Paragraph 1 and 2 of Art. 172 (private and POC); c. Offender used such document (not in judicial proceedings); d. Use of the false document caused damage to another or it was used to cause such damage. NOTE: If the person who used the falsified document is the same person who falsified it, the crime is only falsification and the use of the same is not a separate crime. PRESUMPTIONS: 1. A person in possession of the falsified document is presumed to be the author thereof; 2. The user of the falsified document is deemed the author of the falsification if: ● The use was so closely connected in time with the falsification; ● User had the capacity of falsifying the documents.

(4)

FALSIFICATION OF WIRELESS / CABLE / TELEGRAPH AND TELEPHONE MESSAGE AND USE OF FALSIFIED MESSAGES 1. Uttering fictitious, wireless, telegraph or telephone message 2. Falsifying wireless, telegraph or telephone message Elements: a. That the offender is an officer or employee of the government or an officer or employee of a private corporation, engaged in the service of sending or receiving wireless, cable or telephone message b. That the accused commits any of the following acts:

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Criminal Law

3.

i. uttering fictitious wireless, cable, telegraph, or telephone message, or ii. falsifying wireless, cable, telegraph, or telephone message Using such falsified message Elements: a. That the accused knew that wireless, cable, telegraph, or telephone message was falsified by any of the person specified in the first paragraph of art. 173. b. That the accused used such falsified dispatch. c. That the use of the falsified dispatch resulted in the prejudice of a third party, or that the use thereof was with intent to cause such prejudice. FALSIFICATION AND OTHER CRIMES

Complex crimes: Falsification as a necessary means to commit other crimes. Estafa through falsification of a public, official, or commercial document Before the falsified document is actually utilized to defraud another, the crime of falsification has already been consummated. The element of damage or intent to cause damage, not being an element of the crime of falsification of P, O and C documents, is caused by the commission of estafa. There is no crime of estafa through falsification of a private document unless another act independent of the falsification caused the damage. the crime is only falsification (being more specific). If the falsification is used TO CONCEAL the crime (e.g. misappropriation of funds), the crime is merely estafa. THEFT THROUGH FALSIFICATION Malversation through falsification of a public document. E.g. falsification of the purchase order, an official document, was a necessary means to commit the crime of theft. FALSIFICATION THROUGH RECKLESS IMPRUDENCE OF PUBLIC, OFFICIAL OR COMMERCIAL DOCUMENTS

116

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E.g. Cashier who identified as payee of the PNB check a person whom he did not know, but without malice.

Criminal Law

Document was official, and there was a legal obligation to disclose the truth

(Samson vs CA) Reckless imprudence in the falsification of a private document is untenable since the element of damage or malice is necessary. No complex crime of estafa through falsification of a private document because the immediate effect of falsification of a private document is the same as that of estafa. It cannot be said to be a means to commit estafa because the fraudulent gain obtained through deceit in estafa, in the commission of which a private document was falsified, is nothing more nor less than the very damage caused by the falsification of such document.

The existence of a wrongful intent to injure a third person is not necessary when the falsified document is a public document Since an official document was falsified, there was no need to prove damage to the government or to a third party.

ART. 173: FALSIFICATION OF WIRELESS, CABLE, TELEGRAPH AND TELEPHONE MESSAGES, AND USE OF SAID FALSIFIED MESSAGES. ACTS PUNISHED

People v. Romualdez Multiple Acts of Falsification must each be specified = 1 crime of falsification committed.

(1)

Beradio v. CA

ELEMENTS: a. Offender is an employee or officer or employee of the Government OR Any private corporation or concern engaged in the service of sending or receiving wireless, cable or telephone message; b. Offender commits any of the following acts: i. Uttering fictitious wireless, telegraph or telephone message of any system; ii. Falsifying the same;

Absolute Falsity Required: Depending on the nature of the document. There must be no color of truth to the falsification.

Cabigas v. People Where the document was not a public or official document of the government, even if such a document was used in a government office, the same would not constitute falsification. If the alteration was made to speak the truth, there is no falsification.

People v. Sendaydiego Falsification was used to conceal the malversation, thus falsification not being a necessary means to commit, the crime is not complex, but separate crimes. E.g. 6 documents, 6 separate crimes of malversation. INQUIRY: How were the falsified documents used? Presumption: A person in possession of a falsified document is the material author of the falsification, in the absence of satisfactory explanation – especially if the uttering was so closely connected in time with the forgery.

Siquian v. People The Mayor had the duty to know the budget situation of the municipality, and so issuing official certifications of availability of funds when there were none amounted to falsification through negligence.

Lasallian Commission on Bar Operations

Uttering a fictitious wireless, telegraph or telephone message;

(2)

Using falsified dispatch; ELEMENTS: a. Offender knows that the message was falsified; b. Uses such falsified dispatch; c. To the prejudice of a third party or with intent to cause such prejudice.

NOTE: • Private individual cannot be a principal by direct participation in falsification of telegraphic dispatches. • He may be liable as principal by inducement. • Act No. 1851, Sec 4 punishes private individual who forge or alter telegram.

117

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Criminal Law

SECTION 5: FALSIFICATION OF MEDICAL CERTIFICATES, CERTIFICATES OF MERIT OR SERVICES AND THE LIKE

certificates for the transfer of livestock, is guilty of making instrument for falsification of certificates.

(US vs Angeles)

•

A person who possessed an iron brand to be used in falsifying the official brand of a municipality for cattle branding is guilty of illegal possession of instrument for falsification (need not be a complete set). (People vs Magpale)

ART. 174: FALSE MEDICAL CERTIFICATES, FALSE CERTIFICATES OF MERITS OR SERVICE, ETC PERSONS LIABLE (1) (2) (3)

False medical certificate by a physician; False certificate of merit or service by a public officer; and False medical certificate by a private individual or false certificate of merit or service by a private individual.

Art. 175: Using False Certificates

CHAPTER TWO: OTHER FALSIFICATIONS SECTION 1: USURPATION OF AUTHORITY, RANK, TITLE, AND IMPROPER USE OF NAMES, UNIFORMS AND INSIGNIA ART. 177: USURPATION OF AUTHORITY OR OFFICIAL FUNCTIONS.

ELEMENTS a.

b. c.

Certificate was falsified by person mentioned in Art. 174 (physician, surgeon, public officer, private person); Offender knew that the certificate was false; and Offender used the certificate.

ACTS PUNISHED (1)

SECTION 6: MANUFACTURING AND POSSESSION OF INSTRUMENTS OR IMPLEMENTS FOR FALSIFICATION ART. 176: MANUFACTURING AND POSSESSION OF INSTRUMENTS OR IMPLEMENTS FOR FALSIFICATION

Usurpation of Authority The mere act of knowingly and falsely representing oneself to be an officer, agent or representative of any departments of the Government is sufficient to hold him liable. It is not necessary that he performs an act pertaining to a public officer. (People vs Bueza) Elements: a. Offender knowingly and falsely represents himself; and b. As an officer, agent or representative of any department or agency of the Philippine government or of any foreign government. ●

Mere representation is sufficient to be punished, even without the subsequent acts.

ACTS PUNISHED (2) (1)

(2)

Making or introducing into the Philippines any stamps, dies, marks or other instruments or implements for counterfeiting or falsification. Possessing with intent to use the instruments or implements for counterfeiting made in or introduced into the Philippines by another person.

NOTE: • Punishes not only casual but constructive possession. (People vs Andrada) • A person who manufactured a seal in imitation of the seal of Lipa, Batangas, for making false Lasallian Commission on Bar Operations

Usurpation of Official Functions; It is essential that the offender shall have performed an act pertaining to a person in authority or public officer under pretense of official position without being lawfully entitled thereto (People vs Bueza) Elements: a. Offender performs any act; b. Pertaining to any person in authority or public officer of the Philippine government or any foreign government, or any agency thereof; c. Under pretense of official position; and d. Without being lawfully entitled to do so. 118

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Criminal Law

NOTE: ● There must be positive express and explicit representation. (People vs Calinisan) ● Cannot allege both acts in one information. ● False representation may be shown by acts. Thus, even in the absence of evidence that he represented himself as a police officer, his acts in blowing his whistle, stopping buses and ordering drivers to step down their passenger vehicles and produce their driver’s license, sufficiently establishes his culpability of the crime. (People vs Reyes)

People v. Cortez Usurpation of authority may be complexed with other crimes e.g. usurpation of authority through falsification of a public document by a private individual.

Gigantoni v. People One suspended retains his status but loses authority to exercise functions. He therefore does not “knowingly and falsely represent himself to be an officer, etc.” but he does perform an act pertaining to any public officer, under pretense of official position, without being lawfully entitled to do so.

General Rule: No person shall use any name different from the one with which he was: (1) Registered at birth in the Office of the Local Civil Registry; (2) With which he was registered in the Bureau of Immigration upon entry; and (3) Such substitute name as may have been authorized by a competent court. Exception: (1) Pseudonym solely for literary, cinema, television, radio or other entertainment; and (2) In athletic events where the use of pseudonym is a normally accepted practice. Art. 379, Civil Code: The employment of pen names or stage names is permitted provided it is done in good faith and there is no injury to third persons. Pen names and stage names cannot be usurped.

ART. 179. ILLEGAL USE OF UNIFORMS OR INSIGNIA ELEMENTS

ART. 178. USING FICTITIOUS NAME AND CONCEALING TRUE NAME ACTS PUNISHED (1)

USING FICTITIOUS NAME Fictitious Name - Any other name which a person publicly applies to himself without authority of law.

(US vs To Lee Piu) Elements: a. Offender uses a name other than his real name; b. He uses the fictitious name publicly; and c. Purpose of use is to conceal a crime, to evade the execution of a judgment or to cause damage to public interest. (2)

CONCEALING TRUE NAME AND OTHER PERSONAL CIRCUMSTANCES Elements: a. Offender conceals his true name AND other personal circumstances; and b. Purpose is only to conceal his identity

CA 142 AMENDED BY RA 60805: REGULATING THE USE OF ALIASES Lasallian Commission on Bar Operations

a. b. c.

Offender makes use of insignia, uniform or dress; The said insignia, uniform or dress pertains to an office not held by the offender; and Said insignia uniform or dress is used publicly and improperly (with intent to deceive).

RA 75: An Act to Penalize Acts Which Would Impair The Proper Observance By The Republic And Inhabitants of the Philippines of the Immunities, Right, And Privileges Of Duly Accredited Foreign Diplomatic And Consular Agents In The Philippines Section 1 penalizes any person who falsely assume and take upon himself as an official of a foreign government duly accredited to the Government of the Philippines with intent to defraud or to obtain money, paper, document or other thing. Section 3 punishes any person who wear any naval, military, police or other uniform with intent to deceive or mislead. RA 493: An Act To Prohibit The Use Or Conferring Of Military Or Naval Grades Or Titles By Or Upon Persons Not In The Service Of The Armed Forces Of The PH Or The Philippine Constabulary, To Regulate The Wearing, Use, Manufacture And Sale Of Insignias, Decorations and Medals, Badges, Patches and

119

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Criminal Law

Identification Cards Prescribed for the Said Armed Forces or Constabulary, and for Other Purposes It provides that it shall be unlawful for any person not in the service of the Armed Forces of the Philippines or the Philippine to use or wear the duly prescribed insignia, badge or emblem or rank of the members of the Armed Forces of the Philippines or the Philippine Constabulary, or any colorable imitation thereof.

SECTION 2: 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.

b.

Offender testifies falsely under oath IN FAVOR of the defendant; Offender who gives false testimony knows that it is false; and Trial need not be terminated.

c. d.

Reason: It is punished not because of the effect it actually produces but because of its tendency to favor or to prejudice the defendant. (Decision of SC of Spain, 1904) ● It is not necessary that the testimony influenced the decision. Also, it is enough that there is intent for such testimony to favor the defendant, even if such testimony did not benefit him. ● Conviction or acquittal is also not necessary.

ART. 182: FALSE TESTIMONY IN CIVIL CASES

3 FORMS OF FALSE TESTIMONY (1) (2) (3)

a. b. c. d.

False testimony in criminal cases under Article 180 and 181. False testimony in civil case under Article 182. False testimony in other cases under Article 183.

a.

c. d.

ELEMENTS

e.

There be a criminal proceeding; Offender testifies falsely under oath against defendant; Offender who gives false testimony knows that it is false; and Defendant in the case is either acquitted or convicted by final judgment.

ART. 181: FALSE TESTIMONY FAVORABLE TO THE DEFENDANTS ELEMENTS There be a criminal proceeding;

Lasallian Commission on Bar Operations

Testimony is given in a civil case (ordinary, not special proceedings); Testimony must relate to the issues presented in said case; Testimony must be false; False testimony must be given by the defendant, knowing the same to be false; and Testimony must be malicious and given with an intent to affect the issues presented in the case

b.

ART. 180: FALSE TESTIMONY AGAINST A DEFENDANT

NOTE: • Penalty depends upon the sentence of the defendant against whom false testimony was given. • The witness who gave false testimony is liable even if his testimony was not considered by the court. • He must testify on material matters. Even if he lied during his testimony on immaterial matters like his age, this article is not violated.

a.

ELEMENTS

NOTE: If false testimony is committed in Special Proceedings, Art. 183 applies.

ART. 183: FALSE TESTIMONY IN OTHER CASES AND PERJURY IN SOLEMN AFFIRMATION TWO WAYS OF COMMITTING PERJURY (1) (2)

By falsely testifying under oath; and By making a false affidavit. ELEMENTS

a.

Accused made a statement under oath or executed an affidavit before a competent officer, authorized to receive and administer oath. • Statement made must be upon any material matter • Any fact or circumstance which tends to corroborate or strengthen the testimony relative to the subject of the injury 120

Green Notes 2019

b. c.

d.

Statement was made before a competent officer, authorized to receive and administer the oath. In that statement or affidavit, accused made a willful and deliberate assertion of a falsehood. • No perjury through negligence or imprudence. • Good faith is a defense Sworn statement or affidavit containing the falsity is required by law. • It is sufficient that statement or affidavit is made for a legal purpose, even if there is no law requiring such statement to be made under oath. • If two sworn statements are contradictory, prosecution must prove which one is false by other evidence. Why? This is important because if the statement before the FISCAL is false, then Art. 183 applies. If the testimony before the court is false, then Art. 181 – 182 applies.

TEST OF MATERIALITY Whether evidence if admitted could properly influence the result of the trial OATH Any form of attestation by which a person signifies that he is bound in conscience to perform an act faithfully and truthfully. It involves the idea of calling on God to witness what is averred as truth, and it is supposed to be accompanied with an invocation of His vengeance, or a renunciation of His favor in the event of falsehood. MATERIAL MATTER Main fact which is the subject of the inquiry or any circumstance which tends to prove that fact, or any fact or circumstance which tends to corroborate or strengthen the testimony relative to the subject of inquiry, or which legitimately affects the credit of any witness who testifies.

(US vs Estrano)

Criminal Law

Two contradictory sworn statements is not sufficient to convict perjury. The prosecution must prove which of the two statements is false, and must show that the statement to be false by other evidence than the contradictory statement. (US vs Capistrano)

People v. Abaya Good faith or lack of malice is a defense in perjury. The accused did not act with malice. The accused who could not be expected to determine the property, from a legal point of view of the inclusion, merely stated a fact in said inventory

Diaz v. People Although the crime of falsification may have also been committed when the offender commits forgery through a sworn statement, the fact that the document was sworn under oath (becomes affidavit), the crime committed is perjury (being the more specific crime).

ART. 184: OFFERING FALSE TESTIMONY IN EVIDENCE ELEMENTS a. b. c.

NOTE: The one who made the testimony is liable under either Art. 180, 181, 182 or 183.

CHAPTER THREE: FRAUDS SECTION 1: MACHINATIONS, MONOPOLIES AND COMBINATIONS ART. 185: MACHINATIONS IN PUBLIC AUCTIONS

Subornation of perjury ● Committed by a person who knowingly and willfully procures another to swear falsely and the witness suborned does testify under circumstances rendering him guilty of perjury.

(US vs Ballena) ●

Not expressly penalized in the RPC but the direct induction of a person by another to commit perjury may be punished under Art 183 in relation to Art 17 (will be principals by inducement and direct participation). (People vs

Pudol) Lasallian Commission on Bar Operations

Offender offered in evidence a false witness or false testimony; The lawyer knew the witness, or the testimony was false; and Offer was made in a judicial or official proceeding.

ACTS PUNISHED (1)

SOLICITING ANY GIFT OR PROMISE AS A CONSIDERATION FOR REFRAINING FROM TAKING PART IN ANY PUBLIC AUCTION; Elements: a. There be a public auction; b. Offender solicited any gift or promise as consideration for refraining to take part; and 121

Green Notes 2019

c.

(2)

Criminal Law

commerce or to increase the market price of the

Accused had the intent to cause the reduction of the price of the thing auction

merchandise

NOTE: Mere solicitation consummates the crime. (Attempting to cause bidders to stay away from an auction by threats, gifts, promises or any other artifice)

PERSONS LIABLE: 1. Manufacturer, 2. producer, 3. processor or importer.

ATTEMPTING TO CAUSE BIDDERS TO STAY AWAY FROM AN AUCTION BY THREATS, GIFTS, PROMISES OR ANY OTHER ARTIFICE; Elements: a. There be a public auction; b. Offender attempted to cause bidders to stay away from the auction; c. Attempt was done through threats, gifts or promises; and d. Offender had the intention to cause the reduction of the price.

CRIME IS COMMITTED BY: 1. Conspiring, 2. Combining, or 3. Agreeing with any person. PURPOSE: 1. To make transactions prejudicial to lawful commerce; or 2. To increase market price. QUALIFIED: If offense affects any food substance or other article of prime necessity.

NOTE: Mere attempt consummates the crime REASON FOR THE PROVISION: Execution sales should be opened to free and full competition in order to secure the maximum benefit for the debtors. (Diaz vs Kapunan)

ART. 186. MONOPOLIES AND COMBINATIONS IN RESTRAINT OF TRADE ACTS PUNISHED (1)

(2)

(3)

Combination to prevent free competition in the market; a. Entering into a contract or agreement, or taking part in any conspiracy or combination; b. In restraint of trade or commerce; or c. To prevent by artificial means free competition in the market Monopoly to restrain free competition in the market; a. Monopolizing any merchandise or product; or b. Combining with any other person or persons to monopolize said merchandise or object in order to alter the price. Manufacturer, producer or processor or importer combining, conspiring or agreeing with any person to make transactions prejudicial to lawful

Lasallian Commission on Bar Operations

If the monopolies and combinations in restraint of trade affect any food substance, motor fuel or lubricants or other article of prime necessity, it is sufficient for the imposition of a higher penalty that the initial steps have been taken toward carrying out the purpose of combination. General Rule: When committed by a corporation or association, the president and directors or managers are liable as principals when they: 1. Knowingly permitted, 2. Failed to prevent the commission of such offense. Exception: Exception to rule that a director or other officer of a corporation is not liable criminally for the corporate acts performed by other officers or agents thereof as held in the case of People vs Montilla.

SECTION 2: FRAUDS IN COMMERCIAL AND INDUSTRY ART. 187: IMPORTATION AND DISPOSITION OF FALSELY MARKED ARTICLES OR MERCHANDISE MADE OF GOLD, SILVER, OR OTHER PRECIOUS METALS OR THEIR ALLOYS ELEMENTS (1)

Offender knowingly: 122

Green Notes 2019

(2) (3)

Criminal Law

a. Imports, b. Sells, c. Disposes; Any article or merchandise made of gold, silver, or other precious metals or their alloys; and Which fail to indicate the actual fineness or quality of said metals a. Gold: Less by more than .5 karat b. Silver: Less by more than .004 c. Flatware made of gold: Less by more than .003

MARK, TRADE-NAME OR SERVICE MARK, FRAUDULENT DESIGNATION OF ORIGIN, AND FALSE DESCRIPTION ACTS PUNISHED: (1)

NOTE: Manufacturer who alters the quality or fineness of said merchandise is liable under estafa. (Article 315, subdivision 2 (b) of the Code)

ART. 188: SUBSTITUTING AND ALTERING TRADEMARKS, TRADENAMES OR SERVICE MARKS INFRINGEMENT The use of another’s registered trademark and trade name.

(2) (3)

ACTS PUNISHED (1)

(2)

(3)

(4)

NOTE: ●

●

Substituting the tradename or trademark of some other manufacturer or dealer or a colorable imitation thereof, for the tradename or trademark of the real manufacturer or dealer, upon any article or commerce and selling the same; Selling or offering for sale such articles of commerce, knowing that the tradename or trademark has been fraudulently used; Using or substituting the service mark of some other person, or a colorable imitation of such mark in the sale and advertising of his services; and Printing or lithographing or reproducing tradename, trademark of service mark of one person or a colorable imitation thereof, to enable another person to fraudulently use the same, knowing the fraudulent purpose for which it is to be used.

Trade mark or tradename must be registered otherwise, there can be no infringement of the same. The differences need not be glaring and striking to the eye. Mere colorable imitation is sufficient.

ART. 189. UNFAIR COMPETITION, FRAUDULENT REGISTRATION OF TRADELasallian Commission on Bar Operations

(4) (5)

Unfair Competition; a. Selling goods, giving them the general appearance of goods of another manufacturer or dealer; b. Sale of goods similar enough to cause confusion in the minds of the general public; ● Whether certain goods have been clothed with an appearance which is likely to deceive the ordinary purchaser exercising ordinary care, and not whether a certain limited class of purchasers with special knowledge not possessed by the ordinary purchaser could avoid mistake by the exercise of this special knowledge. Fraudulent description or origin or false description; Affixing to his goods or using in connection with his services a false designation of origin or any false description or representation; and Selling such goods or services. Fraudulent registration. ● Procuring fraudulently from the patent office the registration of a tradename, trademark or service mark.

“UNFAIR COMPETITION” Consists in employing deception or any other means contrary to good faith by which has shall pass off the goods manufactured by him or in which he deals, or his businesses, or services for those of the one having established such goodwill, or who shall commit any acts calculated to produce said result. “MARK” Any visible sign capable of distinguishing the goods (Trademark) or services (Service mark) of an enterprise and shall include a stamped or marked container. “TRADEMARK” Name or designation identifying or distinguishing the enterprise. ELEMENTS OF UNFAIR COMPETITION a. b.

Confusing similarity in the general appearance of the goods; and Intent to deceive the public and defraud a competitor. 123

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Criminal Law

ELEMENTS OF TRADEMARK INFRINGEMENT a.

b. c.

Validity of plaintiff’s mark; ● Trademark or tradename must not be merely descriptive or generic. Plaintiff’s ownership of the mark; and The use of the mark or its colorable imitation by the alleged infringer results in likelihood of confusion.

TESTS IN DETERMINING CONFUSING SIMILARITY 1.

DOMINANCY TEST - Focuses on the similarity of the prevalent features of the competing trademarks which might cause confusion or deception and thus infringement. NOTE: If the competing trademark contains the main, essential or dominant features of another, and confusion or deception is likely to result, infringement takes place. Duplication or imitation is not necessary; nor is it necessary that the infringing label should suggest and effort to imitate. The only question is whether the use of the said marks involved is likely to cause confusion or mistake in the mind of the public or deceive purchasers. ((Emerald

CRIMES AGAINST PUBLIC MORALS CHAPTER ONE: Gambling and Betting Art. 195. Gambling. Art. 196. Importation, sale and possession of lottery tickets or advertisements. Art. 197. Betting in sports contests. Art. 198. Illegal betting on horse race. Art. 199. Illegal cockfighting. CHAPTER TWO: Offenses Against Decency and Good Customs Art. 200. Grave Scandal Art. 201. Immoral doctrines, obscene publications and exhibitions Art. 202. Vagrants and prostitutes; penalty.

CHAPTER BETTING

HOLISTIC TEST - Requires that the entirety of the marks in question be considered in resolving confusing similarity. Comparison of words is not the only determining factor. NOTE: The discerning eye of the observer must focus not only on the predominant words but also on the other features appearing in both labels in order that he may draw his conclusion whether one is confusingly similar to the other. (Emerald Garment

ACTS PUNISHED (1)

First registration

First Use

Use of trademark or tradename of another or colorable imitation

Selling goods similar enough in appearance with goods of another

May be goods of different categories

Must be similar enough to cause confusion to the ordinary buyer

Lasallian Commission on Bar Operations

Directly or indirectly taking part in the gambling; “GAMBLING” - Any game or scheme the result of which depends wholly or chiefly upon chance or hazard and wherein wagers consisting of money, articles of value, or representative of value are made.

(2) (3) (4)

UNFAIR COMPETITION

AND

ART. 195. WHAT ACTS ARE PUNISHABLE IN GAMBLING

Manufacturing Corp. vs CA) INFRINGEMENT

GAMBLING

NOTE: PD 1602 repealed Articles 195-199 insofar as they are inconsistent with said Act.

Garment Manufacturing Corp. vs CA) 2.

ONE:

Knowingly permitting gambling to take place in an inhabited or uninhabited place; Acting as maintainer, conductor or banker in any game of jueteng or any similar game; and Knowingly and illegally possessing lottery list, paper or other matter pertaining to the game of jueteng or any similar game. GAMES THAT CONSTITUTE GAMBLING

(1) (2) (3) (4) (5)

Monte; Jueteng; Any form of lottery, policy, banking, or percentage game; Dog races; “Pinball machines” or slot machines in the different forms in which they are operated as gambling devices because the winning therein depends wholly upon chance or hazard; (Uy Ha vs. City Mayor et.al) 124

Green Notes 2019

(6)

Criminal Law

Any other mechanical invention or contrivance to determine by chance the loser or winner of money or any object or representative of value.

d.

ART. 197. BETTING IN SPORTS CONTESTS

“GAME OF CHANCE” -That which depends more on chance or hazard than on skill or ability. GAMES TO BE HELD TO BE GAMES OF CHANCE: (1) Cuajo (2) Draw poker (3) Black Jack (4) Pigeon lottery (5) Teji (6) Bancabanca (7) Yampong or liampo (8) Nones y pares LOTTERY A species of gaming which may be deemed as a scheme for the distribution of prizes by chance among persons who had paid, or agreed to pay, a valuable consideration for the chance to obtain a prize. A scheme by which the result is reached by some action or means, taken, and which result man’s choice or will has no part, nor can human reason, foresight, sagacity, or design enable him to know or determine such result until the same has been accomplished.

ACTS PUNISHED (1)

(2)

(3)

(4)

ELEMENTS OF LOTTERY a. b. c.

Consideration; Chance; Prize, or some advantage or inequality in amount or value which is in the nature of a prize.

NOTE: There is no lottery when the person gets the full value for his money. If the prizes do not come out of the funds or contributions of the participants, there is no lottery. (Uy v. Palomar)

ART. 196: IMPORTATION, SALE AND POSSESSION OF LOTTERY TICKETS OR ADVERTISEMENTS ACTS PUNISHED a. b. c.

Importation of lottery tickets; Sale or distribution of such tickets in connivance with the importer; Illegal possession of lottery ticket; and

Betting money or any object or article of value of representative value upon the result of any game, races and other sports contests; Game-fixing any arrangement, combination, scheme or agreement by which the result of any game, races, or sports contests shall be predicated and/or known other than on the basis of the honest playing skill or ability of the players or participants; Point-shaving any such arrangement combination, scheme or agreement by which the skill or ability of any player or participant in a fame, races, or sports contests to make points of scores shall be limited deliberately in order to influence the result thereof in favor of one or other team, player or participant; and Game-machinations any other fraudulent, deceitful, unfair or dishonest means, method, manner or practice employed for the purpose of influencing the result of any game, races or sport contest.

ART. 198. ILLEGAL BETTING ON HORSE RACE ACTS PUNISHED (1) (2)

Betting on horse races on days not allowed by law; Maintaining or employing a totalizer or other device for betting on horse races or for profit on days not allowed by law.

NOTE: Any race held on the same day and at the same place shall be considered as a separate offense and if committed by a corporation, partnership, or association, the president and directors or managers thereof who consented to or tolerated its commission are deemed principals. WHEN HORSE RACES ARE NOT ALLOWED (1) (2)

Lasallian Commission on Bar Operations

Sale of lottery ticket without connivance with importers

Birthday of the Philippines July 4 (Republic Act No.137); Rizal Day December 30 (Republic Act No. 229); 125

Green Notes 2019

(3) (4)

Criminal Law

Any registration or voting days (Republic Act No. 180, Revised Election Code); and Holy Thursday and Good Friday (R.A. 946).

ART. 199. ILLEGAL COCKFIGHTING ACTS PUNISHED (1) (2) (3)

(4)

Betting money or things of value or representative of value in cockfighting on days not permitted by law; Organizing cockfights at which bets are made on days not allowed by law; Betting money or thing of value or representative of value on cockfights at a place other than a licensed cockpit; and Organizing cockfights at a place other than a licensed cockpit.

PRESIDENTIAL DECREE NO. 449; COCKFIGHTING LAW OF 1974 Law governing the establishment, operation, maintenance, and ownership of cockpits. All laws, decrees, rules and regulations, or orders which are inconsistent with this Decree are hereby repealed or modified accordingly.

(1)

(2)

(3)

(4)

(5)

(6)

RULES Only Filipino citizens not otherwise inhibited by existing laws shall be allowed to own, manage and operate cockpits. Cooperative capitalization is encouraged. 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. Cockpits shall be constructed and operated within the appropriate areas as prescribed in Zoning Law or Ordinance. Cockfighting shall be allowed only in licensed cockpits during Sundays and Legal Holidays and during local fiestas for not more than 3 days. During provincial, city or municipal, agricultural, commercial or industrial fair, carnival or exposition for a similar period of 3 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. If the purpose is for the entertainment of foreign dignitaries or for tourists, or for returning balikbayans, or for the support of national fundraising 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.

Lasallian Commission on Bar Operations

COCKFIGHTING NOT ALLOWED ON: (1) Rizal Day (December 30) (2) Independence Day (June 12) (3) National Heroes Day (November 30) (4) Holy Thursday (5) Good Friday (6) Election or Referendum Day (7) Registration days for referendums and elections 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. COCKFIGHTING OFFICIAL Gaffers, referees, bet takers, or promoters shall not act as such in any cockfight herein authorized, without first securing a license renewable every year on their birth month 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. NOTE: The spectators in a cockfight are not liable. PRESIDENTIAL DECREE NO. 1602: SIMPLIFYING AND PROVIDING STIFFER PENALTIES FOR VIOLATIONS OF PHILIPPINE GAMBLING LAWS 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; g. Dog racing, boat racing, car racing and other forms of races; h. Basketball, boxing, volleyball, bowling, ping-pong 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 upon chance or skill, wherein wagers consisting of money, articles of value or representative of value are at stake or made; 126

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(2)

(3)

(4)

(5)

Any person who shall knowingly permit any form of gambling referred to in the preceding subparagraph to be carried on in inhabited or uninhabited place or in any building, vessel or other means of transportation owned or controlled by him. If the place where gambling is carried on 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 malefactor shall be punished by prision correccional in its maximum period and a fine of six thousand pesos. Penalty of prision correccional in its maximum period or a fine of six thousand pesos shall be imposed upon the maintainer or conductor of the above gambling schemes. The penalty of prision mayor in its medium period with temporary absolute disqualification or a fine of six thousand pesos shall be imposed if the maintainer, conductor or banker of said gambling schemes is a government official, or where such government official, or where such government official is the player, promoter, referee, umpire, judge or coach in case of game fixing, point shaving and machination. The penalty of prision correccional in its medium period or a fine ranging from four hundred to two thousand pesos shall be imposed upon any person who shall, knowingly and without lawful purpose in any hour of any day, possess any lottery list, paper or other matter containing letters, figures, signs or symbols pertaining to or in any manner used in the games of jueteng, jai-alai or horse racing bookies, and similar games of lotteries and numbers which have taken place or about to take place. The penalty of temporary absolute disqualification shall be imposed upon 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.

(6)

The penalty of prision correccional in its maximum period or a fine ranging from five hundred pesos to two thousand pesos shall be imposed upon 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.

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Criminal Law

CHAPTER TWO: OFFENSES AGAINST DECENT AND GOOD CUSTOMS ART. 200. GRAVE SCANDAL ELEMENTS a. b. c. d. e.

Offender performs an act; Act must be highly scandalous; Must offend against decency or good customs; Act not expressly falling within any other article of the Code; and Publicly committed or within the knowledge and view of the public NOTE: The public view is not required, it is sufficient if in public place. For public knowledge, it may occur even in a private place; the number of people who sees it is not material

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,

Comprehensive Reviewer in Criminal Law) 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. ACTS PUNISHED Those by which by their character and nature cause scandal among the persons witnessing them, besides being contrary to morals and good customs and committed publicly or within the knowledge or view of the public.

(People vs. Dumlao)

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ART. 201. IMMORAL DOCTRINES, OBSCENE PUBLICATIONS AND EXHIBITIONS, AND INDECENT SHOWS PERSONS LIABLE (1) (2) (3)

(4)

Those who shall publicly expound or proclaim doctrines openly contrary to public morals; Authors of obscene literature published with their knowledge and editors publishing them; Those who exhibit indecent or immoral plays, scenes, acts or shows is theatres, fairs, or other public places; and Those who sell, give away or exhibit prints, engravings, sculptures or literature’s offensive to morals. ELEMENTS

Prosecution must prove that: a. The materials, publication, picture or literature are obscene; and b. The offender sold, exhibited, published or gave away such materials. OBSCENITY Something which is offensive to chastity, decency, or delicacy. TEST TO DETERMINE THE EXISTENCE OF OBSCENITY Whether the matter tends to deprave or corrupt minds of those who are open to such immoral influences and into whose minds hands a publication or other article charged as being obscene may fall. A matter can also be considered obscene if it “shocks the ordinary and common sense of men as an indecency.” It must depend upon the circumstances of the case, and that ultimately, the question is to be decided by the judgment of the aggregate sense of the community reached by it.

(Fernando v. Court of Appeals citing People v. Kottinger) Obscenity is an issue proper for judicial determination – there is no perfect definition of “obscenity” but the latest word is that of Miller v. California which established guidelines: (1) Whether the average person, applying contemporary standards would find the work, taken as a whole, appeals to the prurient interest; (2) Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and Lasallian Commission on Bar Operations

(3)

Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Publicity is required. Mere possession of obscene materials, without intention to sell, exhibit, or give them away, is not punishable under article 201, considering the purpose of the law is to prohibit the dissemination of obscene materials to the public. The law does not require that a person be caught in the act of selling, giving away or exhibiting obscene materials to be liable, for as long as the said materials are offered for sale, displayed, or exhibited to the public.(Fernando vs.

Court of Appeals) Offense punished. The public showing of indecent or immoral plays, scene, acts or shows not just motion pictures. It is mala in se in which criminal intent is an indispensable ingredient. (People vs. City of Manila) Paragraph 4 punishes the giving away of incident literature, etc., to the public and not isolated, casual or occasional act of giving the same to a single individual, since the purpose of the law is to protect public morals and not the morals of a single individual. (People vs.

Tempongko) GIVE AWAY Includes the term exhibition because when one gives away an obscene picture or literature, he has the intention and purpose of exhibiting or showing the same to the recipient. OBSCENE PUBLICATIONS AND INDECENT SHOWS UNDER REPUBLIC ACT NO. 7610: Any person who shall hire, employ, use, persuade, induce or coerce a child to perform in obscene exhibitions and indecent shows, whether live or in video, or model in obscene publications or pornographic materials or to sell or distribute the said materials shall suffer the penalty of prision mayor in its medium period. (2) If the child used as a performer, subject or seller/distributor is below twelve (12) years of age, the penalty shall be imposed in its maximum period. (3) Any ascendant, guardian, or person entrusted in any capacity with the care of a child who shall cause and/or allow such child to be employed or to participate in an obscene play, scene, act, movie or show or in any other acts covered by this section shall suffer the penalty of prision mayor in its medium period. (Sec. 9, R.A. 7610) (1)

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ART. 202. VAGRANTS AND PROSTITUTES Republic Act 10158 or “An Act Decriminilizing Vagrancy” repealed ‘VAGRANTS’ from this Article. NOTE: Joblessness is not tantamount to vagrancy. What the law penalizes is the neglect and refusal to work, and loitering in or about public places without giving a good account of his presence therein. PROSTITUTION When a woman who, for money or profit habitually indulge in sexual intercourse or lascivious conduct. VAGRANT When a man who engages in the same conduct – sex for money – is not a prostitute, but a vagrant. NOTE: When there is a city or municipal ordinance that covers male as a prostitute, he cannot be punished under this article as a prostitute. He can, however, be prosecuted under the said ordinance. PIMP One who provides gratification for the lust of others. PURPOSE OF THE LAW Not simply to punish a person because he has no means of livelihood, but it is to prevent further criminality. Any person found wandering in an estate belonging to another, whether public or private, without any lawful purpose also commits vagrancy, unless his acts constitute some other crime in the Revised Penal Code. 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. Even millionaires or one who has more than enough for his livelihood can commit vagrancy by habitually associating with prostitutes, pimps, ruffians, or by habitually lodging in houses of ill-repute. Habituality is the controlling factor; it has to be more than one time.

There is no 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. Q: What are the crimes committed by: (1) X, a recruiter who offered the services of G to Y for sexual activies for pay; and (2) Y; and (3) G? A: Both X and Y are guilty of violating Sec. 3(a) of RA 9208 or for Trafficking person. X for recruiting; while Y for using persons for prostitution; while G is liable under Art. 202 for prostitution.

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Criminal Law

CRIMES COMMITTED OFFICERS

BY

PUBLIC

CHAPTER ONE: Preliminary Provisions Art. 203. Who are public officers CHAPTER TWO: Malfeasance and Misfeasance in Office Section 1: Dereliction of Duty Art. 204. Knowingly rendering unjust judgment Art. 205. Judgment rendered through negligence Art. 206. Unjust interlocutory order Art. 207. Malicious delay in the administration of justice Art. 208. Prosecution of offenses; negligence and tolerance Art. 209. Betrayal of trust by an attorney or solicitor Section 2: Bribery Art. 210. Direct bribery Art. 211. Indirect bribery Art. 212. Corruption of public officials CHAPTER THREE: Frauds And Illegal Exactions And Transactions Art. 213. Frauds against the public treasury and similar offenses Art. 214. Other frauds Art. 215. Prohibited transactions Art. 216. Possession of prohibited interest by a public officer CHAPTER FOUR: Malversation of Public Funds or Property Art. 217. Malversation of public funds or property Art. 218. Failure of accountable officer to render accounts Art. 219. Failure of a responsible public officer to render accounts before leaving the country Art. 220. Illegal use of public funds or property Art. 221. Failure to make delivery of public funds or property Art. 222. Officers included in the preceding provisions CHAPTER FIVE: Infidelity of Public Officers Section 1: Infidelity in the custody of prisoners Art. 223. Conniving with or consenting to evasion Art. 224. Evasion through negligence Art. 225. Escape of prisoner under the custody of a person not a public officer Section 2: Infidelity in the custody of document Art. 226. Removal, concealment or destruction of documents Art. 227. Officer breaking seal Art. 228. Opening of closed documents Section 3: Revelation of Secrets Art. 229. Revelation of secrets by an officer Art. 230. Public officer revealing secrets of private individual CHAPTER SIX: Infidelity of Public Officers Art. 231. Open disobedience Art. 232. Disobedience to order of superior officers, when said order was suspended by inferior officer Art. 233. Refusal of assistance Art. 234. Refusal to discharge elective office. Art. 235. Maltreatment of prisoners 129

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Section 2: Anticipation, Prolongation And Abandonment Of The Duties And Powers Of Public Office Art. 236. Anticipation of duties of a public office. Art. 237. Prolonging performance of duties and powers Art. 238. Abandonment of office or position Section 3: Usurpation of powers and unlawful appointments Art. 239. Usurpation of legislative powers Art. 240. Usurpation of executive functions Art. 241. Usurpation of judicial functions Art. 242. Disobeying request for disqualification Art. 243. Orders or requests by executive officers to any judicial authority Art. 244. Unlawful appointments Section 4: Abuses against chastity Art. 245. Abuses against chastity

CHAPTER ONE: PROVISIONS

from the President down to the garbage collector if employed and paid by the government come within this term PUBLIC OFFICERS UNDER RA NO. 3019 Includes elective and appointive officials and employees, permanent or temporary, whether in the unclassified or classified or exempted service receiving compensation, even nominal, from the government. Even an emergency helper in the Bureau of Treasury can be considered a public officer having been entrusted with the custody of official documents. (People vs. Ireneo) PUBLIC OFFICER MUST DERIVE HIS AUTHORITY FROM

PRELIMINARY

ART. 203. WHO ARE PUBLIC OFFICERS Art. 203 obliterates the standard distinction in the law of public officers between “officer” and “employee” as the definition is quite comprehensive to embrace every public servant from the highest to the lowest. (Maniego vs.

People) PUBLIC OFFICERS Those endowed with the exercise of sovereign executive, legislative, or judicial functions. The explication of the term is also consistent with the Court’s pronouncement in Quimpo that, in the case of officers/employees in GOCCs, they are deemed “public officers” if their corporations are tasked to carry out governmental functions. (Khan Jr. vs. Office of the

Ombudsman) Public Officers are those: (1) Taking part in the performance of public functions in the government; (2) Performing in said government or in any of its branches public duties as an employee, agent or subordinate official, of any rank or class; (3) His authority to take part in the performance of public functions or to perform public duties must be: a. By direct provision of the law; b. By popular election; or c. By appointment by competent authority

(1) (2) (3)

Direct provision of law; Popular election; or Appointment by competent authority.

CHAPTER TWO: MALFEASANCE AND MISFEASANCE IN OFFICE “MALFEASANCE” The performance of some act which ought not to be done. “MISFEASANCE” The improper performance of some act which might lawfully be done. “NONFEASANCE” The omission of some act which ought to be performed.

SECTION ONE: DERELICTION OF DUTY ART. 204. KNOWINGLY RENDERING UNJUST JUDGMENT ELEMENTS a. b. c. d.

The offender is a judge; He renders a judgment in a case submitted to him for decision; Said judgment is unjust; and He knows that said judgment is unjust.

The term “public officers” embraces every public servant from the highest to the lowest rank. All public servants Lasallian Commission on Bar Operations

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HOW TO HOLD A JUDGE LIABLE It must be shown that the judgment is unjust and that it was made with conscious and deliberate intent to do injustice. Good faith is a defense to the charge knowingly rendering an unjust judgment remains the law. (Diego vs. Judge

final and authoritative judicial declaration that the decision or order in question is unjust. Pronouncement may result from: a. Action of certiorari or prohibition in higher court impugning the validity of the judgment; or b. An administrative proceeding in the Supreme Court against the judge precisely for promulgating an Unjust Judgment or Order. (De Vera vs. Pelayo et. Al.)

Castillo) Knowingly means consciously, intelligently, willfully or intentionally. This article does not apply to the members of a collegiate court such as the Supreme Court or its Divisions who reach their conclusion in consultation and accordingly render their collective judgment after due deliberation. Bad faith is the ground of liability: if in rendering judgment, the judge fully knew that the same was unjust in the sense aforesaid, then he acted maliciously and must have been actuated and prevailed upon by hatred, envy, revenge, greed, or some other similar motive. There must be evidence that the judgment is unjust. It cannot be presumed.

ART. 206. UNJUST INTERLOCUTORY ORDER INTERLOCUTORY Provisional; interim; temporary; not final. Something intervening between the commencement and the end of a suit which decides some point or matter but is not a final decision of the whole controversy. An interlocutory order or decree is one which does not finally determine a cause of action but only decides some intervening matter pertaining to the cause, and which requires further steps to be taken in order to enable the court to adjudicate the cause on the merits. (Bustamante

vs. Bonifacio)

ART. 205. JUDGMENT RENDERED THROUGH NEGLIGENCE ELEMENTS a. b. c. d.

Offender is a judge; He renders a judgment in a case submitted to him for decision; Said judgment is manifestly unjust; and It was committed through inexcusable negligence or ignorance MANIFESTLY UNJUST JUDGMENT

A judgment which cannot be explained with a reasonable interpretation or is a clear inconvertible and notorious violation of a legal precept. It must be patently contrary to law if rendered due to ignorance or inexcusable negligence. The test to determine whether an order or judgment is unjust may be inferred from the circumstances that it is contrary to law or is not supported by evidence. (Louis

Vuitton SA v. Judge Villanueva) NOTE: For Arts. 204 and 205, before a civil or criminal action against a judge can be entertained, there must be a Lasallian Commission on Bar Operations

ELEMENTS a. b.

That the offender is a judge; That he performs any of the following acts: i. Knowingly rendering an unjust interlocutory order; or ii. Rendering a manifestly unjust interlocutory order by inexcusable negligence or ignorance.

When the offense is committed by culpa, the penalty is suspension only.

ART. 207. MALICIOUS DELAY IN THE ADMINISTRATION OF JUSTICE ELEMENTS a. b. c. d.

Offender is a judge; There is a proceeding in his court; He delays in the administration of justice; The delay is malicious, that is, with deliberate intent to inflict damage on either party in the case.

A mere court personnel cannot be made liable under this article. 131

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There must be an allegation that the delay, if any, was borne of malicious intent.

c.

Malice connotes that the act complained of must be the result of a deliberate evil intent and does not cover a mere voluntary act. (Van Der Mee vs. Resurreccion)

ART. 209. BETRAYAL OF TRUST BY AN ATTORNEY OR SOLICITOR

It must also be committed with deliberate intent to prejudice a party in a case. (Magdamo v. Pahimulin)

ART. 208. PROSECUTION OF OFFENSES; NEGLIGENCE AND TOLERANCE

ACTS PUNISHED (1) (2) (3) (4)

ACTS PUNISHED

Offender acts with malice and deliberate intent to favor the violator of the law.

Malicious breach of professional duty; Inexcusable negligence or ignorance; Revelation of secrets learned in his professional capacity (damage is not necessary); and Undertaking the defense of the opposite party in a case without the consent of the first client whose defense has already been undertaken.

Maliciously refraining from institution of prosecution for the punishment of violators of the law; and Tolerating the commission of offenses.

NOTE: The client consents to the attorney’s taking the defense of the other party, there is no crime.

NOTE: “maliciously” must be strictly construed. The action complained of must be the result of a deliberate evil intent and does not cover a mere voluntary act.

When the attorney acts with malicious abuse of his employment or inexcusable negligence or ignorance, there must be damage to his client.

(1) (2)

The word “negligence” in the title of the article means neglect of the duties of his office by maliciously failing to move the prosecution and punishment of the delinquent PERSONS LIABLE (1) (2)

Any public officer; or Officer of the law.

These officers are charged by law to prosecute offenses.

Malice is an integral element. Lack of zeal or any delay in the performance of duties does not constitute the crime. There must be bad faith or criminal intent to favor the offender. NOTE: This article is NOT applicable to officers, agents, or employees of the Bureau of Internal Revenue. ELEMENTS a.

b.

Offender is a public officer or officer of the law who has a duty to cause the prosecution of, or to prosecute, offenses; 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;

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Under the rules on evidence, communications made with prospective clients to a lawyer with a view to engaging his professional services are already privileged even though the client-lawyer relationship did not eventually materialize because the client cannot afford the fee being asked by the lawyer. The lawyer and his secretary or clerk cannot be examined thereon.

PROCURADOR JUDICIAL A person who had some practical knowledge of law and procedure, but not a lawyer, and was permitted to represent a party in a case before an inferior court. Under the Rules of Court, on the court of a justice of the peace, a party may conduct his litigation in person, with the aid of an agent or friend or with the aid of an attorney. PREJUDICE TO THE CLIENT

Essential when there is malicious breach of professional duty to inexcusable negligence or ignorance.

Not essential in the case of revelation of secrets or in the representation of conflicting interests. To prejudice is equivalent to causing material or moral damage to client. Revelation of secret signifies a communication of the same to another. 132

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The secrets which should not be revealed are not limited to those learned by the lawyer in connection with a case he is intervening but also includes all other secrets learned from a client in the course of professional relationship.

SECTION TWO: BRIBERY KINDS OF BRIBERY: (1) Direct Bribery (Art.210) (2) Indirect Bribery (Art. 211)

ART. 210. DIRECT BRIBERY

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). ESSENTIAL ELEMENTS OF CRIME OF CORRUPTION OF PUBLIC OFFICIAL BY MEANS OF BRIBERY PENALIZED IN 2ND PARAGRAPH

PERSONS LIABLE a. (1) (2)

Public officers; or Assessors, arbitrators, commissioners, experts, performing public duties.

appraisal and claim or any other person

b.

c. Bribery cannot be committed by a private person. If he offers to bribe a public officer, he is liable for corruption of public officials (Art. 212). d. MODES OF COMMITTING DIRECT BRIBERY (1)

(2)

(3)

Agreeing to perform, or by performing in consideration of any offer, promise, gift, or present – an act constituting a crime, in connection with the performance of his official duties 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 Agreeing to refrain, or by refraining from doing something which it is his official duty to do, in consideration of a gift or promise ELEMENTS OF DIRECT BRIBERY

a. b. c.

d.

Offender is a public officer; Offender accepts an offer or a promise or receives a gift or present by himself or through another Such offer or promise be accepted, or gift or present received by the public officer – i. With a view to committing some crime; or ii. In consideration of an execution of an act which does not constitute a crime, but the act must be unjust; iii. To refrain from doing something which is his official duty to do; and That the crime or act relates to the exercise of his functions as a public officer.

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Person receiving the bribe shall be a public officer as defined in Art. 203; That said officer shall have actually received, whether personally or by another, gifts or presents, or accepted offers or promises; That such reception or acceptance shall have been for the purpose of executing as act, which may or may not be accomplished, but not constituting a crime; That the person offering the gift or making the promises shall be a private individual.

CONVICTION OF A PERSON IN BRIBERY In the FIRST MODE of direct bribery, the act need not be actually committed. Mere agreement to execute the act is sufficient. US vs. Alban) As regards to the second kind, mere agreement to execute the act does not suffice. If a public officer (e.g. Prosecutor or a Judge) receives money from a party litigant so that he would decide the case in favor of said party litigant, the Prosecutor or the Judge shall not be liable for direct bribery if he decides in favor of said party litigant if the party litigant, by the evidence adduced, deserves to win. (Sandoval)

Direct bribery is a crime involving moral turpitude Moral turpitude can be inferred from the third element of the offense. The fact that the offender agrees to accept a promise or gift and deliberately commits an unjust act or refrains from performing an official duty in exchange for some favors, denotes a malicious intent on the part of the offender to renege on the duties which he owes his fellowmen and society in general. Also, the fact that the offender takes advantage of his office and position is betrayal of the trust reposed on him by the public. It is a conduct clearly contrary to the accepted rules of right and duty, justice, honesty, and good morals. In all respects, 133

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direct bribery is a crime involving moral turpitude. (Magno

vs. COMELEC)

indirect bribery is committed and not direct bribery under par. 2 or the preceding article.

DIRECT BRIBERY AND ROBBERY, DISTINGUISHED DIRECT BRIBERY ARTICLE 210 The person arrested has committed a crime and he is threatened to give money so as not to be prosecuted. The transaction generally is mutual and voluntary.

ROBBERY ARTICLE 293 The person arrested has not committed a crime.

The transaction is neither voluntary nor mutual but consummated by the use of force or intimidation.

DIRECT BRIBERY ARTICLE 210 There is an agreement between the public officer and the giver of the gift or present. The offender agrees to perform or performs an act or refrains from doing something, because of the gift or promise.

ART. 211. INDIRECT BRIBERY

Offender is a public officer; He accepts the gifts; The gifts are offered to him by reason of his office.

Mere promise is not sufficient; the offender must have accepted or received the present or gift. DIRECT BRIBERY AND INDIRECT BRIBERY DISTINGUISHED The principal distinction between direct and indirect bribery is that in the direct bribery, the officer agrees to perform or refrain from doing an act in consideration of the gift or promise. In indirect bribery, it is not necessary that the officer should do any act. It is sufficient that he accepts the gift offered by reason of his office. The essential ingredient of indirect bribery is that the public officer concerned must have accepted the gift or material consideration. (Garcia vs. Sandiganbayan) It is not necessary that the public officer should do any particular act or even promise to do an act, it is enough that he accepts gifts offered to him by reason of his office.

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It is not necessary that the officer should do any particular act or even promise to do an act, as it is enough that he accepts gifts offered to him by reason of his office.

PERSONS LIABLE Public officers entrusted with law enforcement. HOW IT IS COMMITTED Public officer refrains from arresting or prosecuting an offender who has committed a crime punishable by reclusion perpetua and/or death in consideration of any offer, promise, gift or present; Public officer asks or demands such gift or present. PENALTY Public officer shall suffer penalty for the offense which was not prosecuted; NOTE: The crime is considered a capital offense, hence, bail is not a matter of right. Death penalty was abolished by R.A No. 9346, so the penalty of death in this crime is reduced to reclusion

perpetua.

ART. 212. CORRUPTION OF PUBLIC OFFICIALS

The gift is made to anticipate a favor from the public officer in connection with his official duties or to reward past favors in connection with official duties. The act performed by the public officer is not unjust, so that even if there is an agreement between the public officer and the giver regarding the performance thereof,

Usually, no such agreement exists.

ART. 211-A. QUALIFIED BRIBERY

ELEMENTS a. b. c.

INDIRECT BRIBERY ARTICLE 211

ELEMENTS a.

Offender makes offers or promises or gives gifts or presents to a public officer; 134

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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 gifts or offeror of promise.

CHAPTER THREE: FRAUDS AND ILLEGAL EXACTIONS AND TRANSACTIONS ART.213. FRAUDS AGAINST THE PUBLIC TREASURY AND SIMILAR OFFENSES

The public officer sought to be bribed is not criminally liable, unless he accepts the gift or consents to the offer of the offender.

ACTS PUNISHED 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; 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; 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; and 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.

(1) Article 212 punishes the person who made the offer or promise or gave the gift, even if the gift was demanded by the public officer and the offer was not made voluntarily prior to the said demand by the public officer. Bribery is usually proved by evidence acquired in entrapment. The following are 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. Article 210, 211, and 212 of the Revised Penal Code; B. Anti-Graft and Corrupt Practices Acts (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. (Sec. 1, PD 749) DIRECT BRIBERY The public officer agrees to perform an act either constituting or not constituting a crime, in consideration of any offer, promise, gift or present received by such officer. Only the public officer may be indicted and be held liable for Direct Bribery under 210

CORRUPTION OF PUBLIC OFFICIALS The person who conspired with the public officer, who made the promise, offer, or gave the gifts or presents, may be indicted only under Article 212 for Corruption of Public Officials, regardless of any allegation of conspiracy.

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(2)

(3)

(4)

ELEMENTS OF FRAUD AGAINST PUBLIC TREASURY a. Offender is a public officer; b. He should have taken advantage of his public office, that is, he intervened in the transaction in his official capacity; c. He entered into an agreement with any interested party or speculator or made use of any other scheme with regard to: i. Furnishing supplies; ii. The making of contracts; iii. The adjustment or settlement of accounts relating to public property or funds d. Accused had intent to defraud the Government. NOTE: The crime is committed by mere agreement as long as the purpose is to defraud the government. ELEMENTS OF ILLEGAL EXACTIONS a. b.

Offender is a public officer entrusted with the collection of taxes, liens, fees, imports He is guilty of any of the acts or omissions

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i.

ii. iii.

Criminal Law

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

NOTE: The first kind of illegal exaction is committed by a mere demand for the payment of larger sums than that authorized by law. Even if the public officer does not receive the excessive amount or sums demanded, the crime is already committed. So if the said sums are received without demanding the same, the felony is not committed; but if the same were given as a sort of a gift or gratification because of his office, indirect bribery may be committed. (Ramiscal vs. Sandiganbayan) Criminal intent must be shown in the sense that the sums were demanded by the public officer knowing them to be excessive. If good faith is present, there is no criminal liability.

ART. 214. OTHER FRAUDS The public officer who, by taking advantage of his official position, commits estafa or deceits embraced in Chapter VI, Title X, Book II, of the Penal Code, suffers the additional penalty imposed by this article. ELEMENTS a. b. c.

Offender is a public officer; He takes advantage of his official position; and He commits any of the frauds or deceits mentioned in Article 315 to 318 (estafa, other forms of swindling, swindling a minor, other deceits).

NOTE: The public officer must take advantage of his official position

ART. 215. PROHIBITED TRANSACTIONS

d.

ACTS PUNISHED The act of taking part in any business for gain or profit or of dedicating to commerce, the operations of which are subject to the jurisdiction of the public officer. NOTE: Actual Fraud is not required. The act is being punished for the possibility that fraud may be committed or that the officer might place his own interest above that of the government. Examples of transactions of exchange or speculation: 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. What the appointive public officer may not do is to buy regularly securities for the purpose of profiting by a resale thereof or devote himself to commerce. The offender may also be held liable under RA 3019 Sec 3(i). AMENDMENTS UNDER RA. 10951: Under Sec. 38, the fines now range from Php 40,000.00 to Php 200,000.00.

ART. 216. POSSESSION OF PROHIBITED INTEREST BY A PUBLIC OFFICER PERSONS LIABLE (1)

(2)

ELEMENTS a.

b.

c.

Offender is an appointive public officer; Ex: Justices, judges, fiscals, and employees engaged in the collection and administration of public funds During his incumbency, he becomes interested, directly or indirectly, in any transaction of exchange or speculation; Within the territory of his jurisdiction; and

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He becomes interested in the transaction during his incumbency.

(3)

Public officer who, directly or indirectly, became interested in any contract or business in which it was his official duty to intervene; Experts, arbitrators and private accountants, who, in like manner, took part in any contract or transaction connected with the estate or property in the appraisal, distribution or adjudication of which they have acted; and Guardians and executors with respect to the property belonging to their wards or the estate. NATURE OF THE CRIME

The mere violation of the prohibition is punished although no fraud occurs therefrom because the probability that fraud may be perpetuated does exist or at least the public 136

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officer may defer the State’s interest to his own. (US vs.

which the public officer is accountable. (Salamera vs.

Ubarde)

Sandiganbayan)

It is not enough to be a public official to be subject to this crime, it is necessary that by reason of his office, he has intervened in said contracts or transactions, and hence, the official who intervenes in contracts or transactions which have no relation to his office cannot commit this crime.

CHAPTER FOUR: MALVERSATION OF PUBLIC FUNDS OR PROPERTY ART. 217. MALVERSATION OF PUBLIC FUNDS OR PROPERTY; PRESUMPRION IF MALVERSATION ELEMENTS a. b. c. d.

Offender is a public officer; He had the custody or control of funds or property by reason of his duties; Such funds or property were public funds or public property That he committed any of the following acts: i. Appropriating public funds or property; ii. Taking or misappropriating the same; iii. Consenting or through abandonment or negligence, permitting any person to take the same; and iv. Misappropriation or malversation of such public funds or property.

“MALVERSATION” Consists in misappropriation or conversion of public funds or property to one’s personal use or in knowingly, or through abandonment or negligence allowing others to misappropriate them. It is otherwise called embezzlement. “EMBEZZLEMENT” Refers to malversation and estafa by conversion. One essential element of malversation is that a public officer must take public funds, money or property, and misappropriate it to his own private use or benefit. The key word in Art. 217 of the Revised Penal Code is “take” and there must be asportation of public funds or property, akin to the taking of another’s property in theft. The funds, money or property taken must be public funds or private funds impressed with public attributes or character for Lasallian Commission on Bar Operations

WHAT NEEDS TO BE PROVED (1) (2) (3) (4)

That the accused received public funds or property; That he could not account for them; That he did not have them in his possession; and That he could not give reasonable excuse for the disappearance of the same. ACCOUNTABLE PUBLIC OFFICER

One who has custody or control of public funds or property by reason of the duties of his office. To be liable for malversation, an accountable officer need not be a bonded official. The name or relative importance of the office or employment is not the controlling factor. What is decisive is the nature of the duties that he performs and that as part of, and by reason of said duties, he receives public money or property which he is bound to account. (Quinon vs. People) Malversation may be committed either through a positive act of misappropriation of public funds or property or passively through negligence by allowing another to commit such misappropriation. To sustain a charge of malversation, there must be either criminal intent or criminal negligence and while the prevailing facts of a case may not show that deceit attended the commission of the offense, it will not preclude the reception of evidence to prove the existence of negligence because both are equally punishable in Art. 217 of the Revised Penal Code. The felony involves breach of public duty, and whether it is committed through deceit or negligence, the law makes it punishable and prescribes a uniform penalty therefor. Even when the information charges willful malversation, conviction for malversation through negligence may still be adjudged if the evidence ultimately proves that the mode of commission of the offense. (People vs. Uy, Jr.) A public officer having only a qualified charge of government property without authority to part with physical possession of it unless upon order from his immediate superior, cannot be held liable for malversation

(U.S. v. Webster) 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 137

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presumption that he had converted the same to his own use. (Waacon vs. People) There must be indubitable proof that thing unaccounted for exists.

whom the fund had been paid was entitled thereto, the accused is deemed to have acted in good faith; hence, there is no criminal intent, and therefore no malversation.

(People vs. Fabian) While demand is not an element of the crime of malversation, it is a requisite for the application of the presumption. (Munib vs. People) General Rule: malversation.

A

private

person

cannot

commit

Exceptions: (1) If such private person who in any capacity whatever has charge of any insular, provincial, or municipal funds, revenues or property. (Art. 222,

People vs. Luz) (2) If such private person takes a direct participation in the commission of the malversation of public funds or property by a public officer or cooperates in the commission of the same, he is guilty as a coprincipal. (U.S v. Ponte citing Groizard and Viada)

PRIVATE FUNDS OR PROPERTY MAY ALSO BE SUBJECT OF MALVERSATION Art. 222 provides that malversation may be committed upon property placed in the custody of public officers by reason of their office even if such property belongs to a private individual. Such phrase denotes the express intention of the Code to make accountable for public officers guilty of malversation of private funds or property as long as such were placed in their custody. Even if the funds belong to a private individual, they become impressed with the characteristics of public funds or partake of the characteristics of public funds, when they are entrusted to an accountable public officer for his official custody. While malversation may be committed through negligence, not all abandonment or negligence constitutes malversation but only such that approximates intent and malice. To render such element a basis for conviction, the negligence must be positively and clearly shown to be inexcusable, approximating malice or fraud. The public officer must adopt the necessary precaution and zeal demanded by the circumstances. (People vs. Dela

Cerna) Good faith or honest mistake is a defense in malversation Payment in good faith even if unauthorized as long as there is reasonable ground to believe that the public officer to Lasallian Commission on Bar Operations

Demand is not necessary to constitute malversation It is merely a rule of evidence and no more, since, without demand, affirmative proofs must be presented to show actual malversation but the moment it is shown that the accountable officer does not have the funds where he says he has them, malversation is committed. (People vs.

Tolentino) CONTROLLING TEST The nature of duties of the public officer and not the importance of his position. PRIMA FACIE EVIDENCE OF MALVERSATION The failure of a public officer to have duly forthcoming any public fund or property with which he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal uses. (Candao v. People) An accountable public officer may be convicted of malversation even if there is no direct evidence of misappropriation and the only evidence is that there is shortage in his accounts which he has not been able to explain satisfactorily. (Quizo vs. Sandiganbayan) MALVERSATION (ART.

217) Funds or property are usually public. Offender is usually an accountable public officer for the public funds/property.

Crime is commited by appropriating, taking, or misappropriating or consenting or through abandonment or negligence, permitting any other person to take the public funds or property. No element of damage. Demand not necessary.

ESTAFA WITH ABUSE OF CONFIDENCE (ART. 315) Funds or property are always private. Offender is a private individual or even a public officer who is not accountable for public funds/property who acts in a private capacity. Crime is committed by misappropriating, converting, or denying having received money, goods or other personal property.

There is damage. There is a need for prior demand. 138

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If a private person in conspiracy with an accountable

officer is accused of malversation and the public officer is acquitted, the private person may be convicted for the crime of estafa as such offense is necessarily included in malversation. (people vs. Salazar) RETURN OR REIMBURSEMENT Return: Mitigating circumstance if promptly returned. (People vs. Velaszquez) However, it is not a mitigating circumstance if the return is made after sometime as it cannot then be considered analogous to voluntary surrender. (People vs. Amante) Only the civil liability will be extinguished. Reimbursement: Mere failure of an accountable public officer to produce funds under his custody on demand by any officer authorized to examine his account, is prima facie evidence of conversion and its refund even before commencement of criminal prosecution does not exempt

him from criminal liability. (People vs. Delevorio)

ART. 218. FAILURE OF ACCOUNTABLE OFFICER TO RENDER ACCOUNTS

employment. Misappropriation is not necessary. If there is misappropriation, he would be liable also for malversation under Article 217. The design of the law is to impart stability to the good order and discipline which should prevail in the organization and workings of the public service by punishing the employee who should disobey a law or regulation, lawfully made by a competent officer for the rendition of accounts. (US vs. Sebron) The presumption of conversion incarnated in Art. 217, par. 4 of the Revised Penal Code is – by its very nature – rebuttable. To put it differently, the presumption under the law is not conclusive but disputable by satisfactory evidence to the effect that the accused did not utilize the public funds or property for his personal use, gain, or benefit.

ART. 219. FAILURE OF A RESPONSIBLE PUBLIC OFFICER TO RENDER ACCOUNTS BEFORE LEAVING THE COUNTRY. ELEMENTS

ELEMENTS a. a.

b. c. d.

Offender is a public officer whether in the service or separated therefrom by resignation or any other cause; He is accountable for public funds or property; He is required by law or regulation to render account to the Auditor General or to a Provincial Auditor; and He fails to do so for a period of two (2) months after such accounts should be rendered.

“TO RENDER ACCOUNT XXX TO PROVINCIAL EDITOR” Means that the accounts should be rendered at the office of the Provincial Auditor and hence, the failure to render the account must be deemed committed in the same place.

b. c.

Demand for accounting is not necessary. It is also not essential that there be misappropriation because if present, the crime would be malversation. NOTE: The act of leaving the country must be unauthorized or not permitted by law.

(People vs. Batog) Article 218 does not require that there be a demand by the Commission on Audit or provincial auditor that the public officer should render an account.

This is a felony by omission and misappropriation is not necessary – the reason for this is that the law does not so much contemplate the possibility of malversation as the need of enforcing by a penal sanction the performance of the duty incumbent upon every public employee who handles government funds, as well as every depositary or administrator of another’s property, to render an account of all he receives or has in his charge by reason of his Lasallian Commission on Bar Operations

Offender is a public officer whether in active service or not; He is accountable for public funds or property; and He leaves or attempts to unlawfully leave the country without clearance from the Commission on Audit that his accounts have been settled.

ART. 220. ILLEGAL USE OF PUBLIC FUNDS OR PROPERTY This felony is known as “technical malversation” – a penal sanction to the constitutional provision that no money shall be paid out of the treasury except in pursuance of an appropriation made by law. (Sec. 29(1), Art. VI, 1987

Constitution) ELEMENTS a.

Offender is an accountable public officer; 139

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b. c. d.

Criminal Law

ELEMENTS

There is public fund or property under his administration; Such fund or property were appropriated by law or ordinance; and The public use for which the public funds or property were applied is different from the purpose for which they were originally appropriated.

a. b.

Damage is not an essential element and the offender derives no benefit. However, if no damage or embarrassment to the public service resulted, the penalty is a fine only from 5 to 50 per cent of the sum misapplied. TECHNICAL MALVERSATION ARTICLE 220 Offenders are accountable public officer. The offender derives no personal gain or benefit from the commission of the act. The object to which the fund or property is applied is also public but different from that provided by law.

MALVERSATION OF PUBLIC FUNDS ARTICLE 217 Offender is a public officer. There is, generally, a personal benefit derived from the proceeds of the crime. The conversion is for the personal interest of the offender.

For technical malversation to exist, it is necessary that public funds or properties were diverted to any public use other than that provided for by law or ordinance. To constitute a crime, there must be a diversion of the funds from the purpose for which they had been originally appropriated by law or ordinance. (Tetangco vs.

Ombnudsman) There must be a law or ordinance appropriating public funds or property for a specific purpose which the accused has violated. (People vs. Montemayor) In technical malversation, lack of intent is not a defense because it is malum prohibitum. It is the commission of an act as defined by the law, and not the character or effect thereof, that determines whether the provision has been violated. Hence, malice or criminal intent is completely irrelevant.

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

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c.

The public officer has Government funds in his possession; He is under obligation to either – i. Make payment of such funds ii. Delivery property in his custody or administration when ordered by competent authority He maliciously fails or refuses to do so

ART. 222. OFFICERS INCLUDED IN THE PRECEDING PROVISIONS PERSONS LIABLE (1)

(2)

Private individual who, in any capacity, have charge of any national, provincial or municipal funds, revenue, or property. Administrator or depositary of funds or property that has been attached, seized or deposited by public authority, even if owned by a private individual.

This article extends the application of the provisions on malversation to private individuals who have charge of public funds or property if entrusted to the custody of a public officer for which he becomes accountable. To be accountable, the private individual must have charge of any national, provincial or municipal funds, revenues or property. “Administrator or Depositary” Refers to those persons who have charge of funds or property attached or seized or deposited by public authority. “Sheriffs and receivers” Fall under the term administrator. A judicial administrator in charge of settling the estate of the deceased is not covered by this article.

CHAPTER FIVE: INFIDELITY OF PUBLIC OFFICERS SECTION ONE: INFIDELITY CUSTODY OF PRISONERS

IN

THE

KINDS OF INFIDELITY OF PUBLIC OFFICERS: (1) Infidelity in the custody of prisoners. (2) Infidelity in the custody of documents. (3) Revelation of secrets. 140

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a. b.

c. d.

Criminal Law

ART. 223. CONNIVING WITH OR CONSENTING TO EVASION

ART. 224. EVASION THROUGH NEGLIGENCE

ELEMENTS

ELEMENTS

The offender is a public officer; He has under his custody or charge a prisoner serving sentence by final judgment or a detention prisoner; Such prisoner escaped from his custody; and He connives with or consent to the escape of such prisoner. CLASSES OF PRISONERS INVOLVED

(1) (2)

Those who have been sentenced by final judgment to any penalty; and Detention prisoners who are temporarily held in custody for any crime or violation of law or municipal ordinance.

This includes allowing prisoners to sleep and eat in the officer‘s house or utilizes the prisoner‘s services for domestic chores. The 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. Without connivance in the escape of the prisoner on the part of the person in charge, this crime is not committed.

a. b. c.

Not every mistake is negligence under this article. There must have been definite laxity amounting to deliberate non-performance of duty. This is the distinction between neglect that is properly dealt with administratively, and neglect that gives rise to the crime of infidelity in the custody of prisoners through negligence. (People v. Flosa,

citing People v. Nava) This covers only positive carelessness and definite laxity which amounts to deliberate non-performance of duties. If a policeman who was on guard duty unlocked the door of the jail to let a detention prisoner go out and clean the premises, but on the latter’s third trip to a nearby faucet, he walked behind the police headquarters, climbed over the wall and escaped, the crime of Evasion through negligence is not committed by the police on guard duty.

(People vs. Solis, CA 43 O.G. 50) The fact that the public officer recaptured the prisoner who had escaped from his custody does not afford complete exculpation.

Mere leniency or laxity in the performance of duties does not constitute infidelity. Infidelity in the Custody of Detained Persons under Republic Act No. 9372 Any public officer who has direct custody of a detained person or under the provisions of R.A No. 9372 and who by his deliberate act, misconduct, or inexcusable negligence causes or allows the escape of such detained person shall be guilty of an offense and shall suffer the penalty of: (1) Detained person has already been convicted and sentenced in a final judgment of a competent court; Twelve 12 years and one 1 day to twenty 20 years of imprisonment (2) Detained person has not been convicted and sentenced in a final judgment of a competent court. Six 6 years and one 1 day to twelve 12 years of imprisonment Lasallian Commission on Bar Operations

Offender is a public officer; He is charged with the conveyance or custody of a detention prisoner or prisoner by final judgment; The escape occurs through his negligence.

THE LIABILITY OF AN ESCAPING PRISONER (1) (2)

If he is a prisoner by final judgment, he is liable for evasion of service (Art. 157); If he is a detention prisoner, he does not incur criminal liability (unless cooperating with the offender).

ART. 225. ESCAPE OF PRISONER UNDER THE CUSTODY OF A PERSON NOT A PUBLIC OFFICER ELEMENTS a. b. c. d.

Offender is a private person; The conveyance or custody of a prisoner or person under arrest is confided to him; The prisoner or person under arrest escapes; and Offender consents to the escape, or that the escape takes place through his negligence. 141

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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

are secreted away in a place where they could not be found.

crime is delivering prisoners from jail under Article 156.

Documents as used here have the same meaning as that which has been defined and explained in the crime of falsification. It also includes “papers” entrusted to the public officer, which may include papers missing contained in an envelope received by a postmaster for transmission to another. If the postmaster abstracted the money, infidelity is committed.

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.

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. The offender is not the one who arrested the escaping prisoner but the one who agreed to have the custody or charge of the same. AS AN ACT OF NEGLIGENCE Policeman escorted detained prisoner 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. (People vs. Rodillas)

SECTION TWO: INFIDELITY CUSTODY OF DOCUMENT

IN

ELEMENTS

c. d.

The damage to third persons or to the public must be actual but need not be pecuniary or material. Mere alarm to the public or in the alienation of its confidence in any branch of the government service is sufficient. It is essential that there be damage or intent to cause said damage, although need not be serious, to a third person or to public interest. Without any damage, the crime is not committed. The crime is consummated the moment the documents under the custody of the public officer are removed from the place where they are kept.

THE

ART. 226. REMOVAL, CONCEALMENT, OR DESTRUCTION OF DOCUMENTS

a. b.

It is not necessary that the act of removal be coupled with proof of intention to conceal.

Offender is a public officer; He abstracts, destroys, or conceals documents or papers; Such documents or papers were entrusted to him by reason of his office; and Damage to a third party or to the public.

WHEN OFFENDER IS A PRIVATE INDIVIDUAL A private individual who conspires with a mail carrier in the offense of removing, concealing and destroying mail matters, may be convicted or infidelity in the custody of

the documents following the doctrine that even private parties who participates with a public officer in committing malversation can also be punished for the offense. (People vs. Agustin) But a private individual who conceals, removes, destroys official documents or papers with intent to defraud commits estafa. (Art. 315, paragraph 3)

ART. 227. OFFICER BREAKING SEAL

“REMOVAL” Presupposes appropriation of the official documents. The removal, however, must be for an illicit purpose. (Manzarinis vs. People) “DESTRUCTION” Equivalent to rendering useless or the obliteration of said documents; the complete destruction thereof is necessary.

ELEMENTS a. b. c. d.

“CONCEALMENT” Means that the documents are not forwarded to their destination; it is not necessary that they Lasallian Commission on Bar Operations

Offender is a public officer; He has custody of papers or property; Such papers or property have been sealed by authority; and Offender breaks the seals or permits them to be broken without any authority.

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NOTE: •

d. In "breaking of seal", the word "breaking" should not be given a literal meaning. If the custodian managed to open the parcel without breaking the seal, breaking is present. Damage is not an element. The crime may be committed through negligence.

•

ART. 228. OPENING OF CLOSED DOCUMENTS ELEMENTS a. b.

Offender is a public officer; He is not included in the provisions of Art. 229 (Revelation of secrets by an officer); He is entrusted with the custody of closed papers, documents or objects; and He opens or permits the same to be opened without proper authority.

c. d.

NOTE: •

•

•

•

If the closed document is sealed and in opening it the seal is broken, the act is punished under Art. 227 (Breaking of seal) If the opening of the closed document, the public officer abstracted its contents, the crime of theft is committed. The closed document that was opened must be entrusted to the public officer by reason of his office. Damage also not necessary. Mere opening of the closed document constitutes the crime.

SECTION SECRETS

THREE:

REVELATION

OF

ART. 229. REVELATION OF SECRETS BY AN OFFICER ACTS PUNISHED (1)

REVEALING ANY SECRETS KNOWN TO THE OFFENDING PUBLIC OFFICER BY REASON OF HIS OFFICIAL CAPACITY;

Elements: a. Offender is a public officer; b. He knows of a secret by reason of his official capacity; c. He reveals such secret without authority or justifiable reasons; and Lasallian Commission on Bar Operations

(2)

Damage, great or small, is caused to the public interest.

WRONGFULLY DELIVERING PAPERS OR COPIES OF PAPERS OF WHICH HE MAY HAVE CHARGE, AND WHICH SHOULD NOT BE PUBLISHED Elements: a. Offender is a public officer; b. He has charge of papers; c. Those papers should not be published; d. He delivers those papers or copies thereof to a third person; e. The delivery is wrongful; and f. Damage is caused to public interest.

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. The secrets referred to in this article are those which have an official or public character, the revelation of which may prejudice public interest. They refer to secrets relative to the administration of the government. These secrets do not include military secrets or those affect the security of the State as the latter may constitute espionage. Damage is also not an essential element although a higher penalty is imposed where the act has caused serious damage to public interest. ART 229 AND ART 226, DISTINGUISHED

REVELATION OF SECRETS BY AN OFFICER

(ART. 229) 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.

REMOVAL, CONCEALMENT OR DESTRUCTION OF DOCUMENTS (ART. 226) The papers do not contain secrets but their removal is for an illicit purpose.

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ART. 230. PUBLIC OFFICER REVEALING SECRETS OF PRIVATE INDIVIDUAL ELEMENTS a. b. c.

Offender is a public officer; By reason of his office he came to know of the secrets of a private person; and He reveals such secrets without authority or wrongfully delivers said papers.

The secrets referred to in this article are those which have an official or public character, the revelation of which may prejudice public interest. They refer to secrets relative to the administration of the government. These secrets do not include military secrets or those which affect the security of the State as the latter may constitute espionage.

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 229. It is not necessary that damage be suffered by private individual, although a higher penalty is imposed where the act has caused serious damage to public interest.

The reason for this provision is to uphold faith and trust in public service.

CHAPTER SIX: OTHER OFFENSES OR IRREGULARITIES BY PUBLIC OFFICERS ART. 231. OPEN DISOBEDIENCE ELEMENTS a. b.

c.

Offender is any judicial or executive officer; There is judgment, decision or order of a superior authority made within the scope of the jurisdiction of the latter and issued with all legal formalities; and Offender openly refuses to execute such judgment, decision or order.

OPENLY According to its grammatical meaning means, “without reservation”, “frankly” or “decisively”. The refusal must be clear, manifest, and decisive or a repeated and obstinate disobedience in the fulfillment of an order. Lasallian Commission on Bar Operations

The refusal must be intentional and must not be confused with omission arising from oversight, mistake or erroneous interpretation of the order. Open disobedience is committed by any judicial or executive officer who shall openly refuse to execute the judgement, decision, or order of any superior authority

ART. 232. DISOBEDIENCE TO ORDER OF SUPERIOR OFFICERS, WHEN SAID ORDER WAS SUSPENDED BY INFERIOR OFFICER ELEMENTS a. b.

Offender is a public officer; For a reason, he has suspended the execution of an order of his superior; The superior has disapproved the said suspension; Offender still disobeys his superior’s disapproval.

c. d.

The order of the superior must be legal or issued within his authority. The disobedience must be open and repeated. What is punished by the law is insubordination of the act or defying the authority which is detrimental to public interest. If the suspension is disapproved by the superior officer, and the subordinate persists in his disobedience, it is necessary that the superior reiterates compliance of the order disobeyed before the act punished in this article can be committed. What is punished by the law is insubordination or the act of defying the authority which is detrimental to public interest.

ART. 233. REFUSAL OF ASSISTANCE ELEMENTS a. b. c.

Offender is a public officer; He fails to lend his cooperation towards the administration of justice or other public service; Said failure or refusal was made upon demand of competent authority.

Damage is not an element. Serious damage to public interest or a third person merely aggravates the imposition of the penalty.

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The accused public officer should be under the obligation by reason of his office to render the required assistance to the administration of justice or any public service. The

refusal, however, must be positively malicious.

ii.

(2) Inflicting such authorized punishment in a cruel and humiliating manner. By maltreating such prisoner to extort a confession or to obtain some information from the prisoner.

The request must come from one public officer to another.

If he receives consideration therefore, bribery is committed.

“Under his charge” means actual charge, not one which is by legal fiction. (People vs. Javier)

But mere demand will fall under the prohibition under the provision of Republic Act No. 3019.

If the public officer is not the custodian of the prisoner, and he manhandles the latter, the crime is physical injuries.

Any refusal by a public officer to render assistance when demanded by competent public authority, as long as the assistance requested from him is within his duty to render and that assistance is needed for public service, constitutes refusal of assistance. Investigators and medico-legal officers who refuse to appear to testify in court after having been subpoenaed may also be held liable under this article.

ART. 234. REFUSAL TO DISCHARGE ELECTIVE OFFICE ELEMENTS a. b.

Offender was elected by popular election to a public officer; and He refuses without legal motive to be sworn in or to discharge the duties and 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.

ART. 235 MALTREATMENT OF PRISONERS

The offended party must be a convict by final judgment or a detention prisoner. If the person is not a convict or a detention prisoner, the crime committed would either be coercion or physical injuries: (1) Coercion: If the person not yet confined in jail is maltreated to make him confess his guilt. (2) Physical injuries: If the person maltreated has already been arrested but is not yet booked in the office of the police and put in jail. The maltreatment must relate to (1) the correction or handling of the prisoner or (2) for extorting a confession. If it is due to a personal grudge against the prisoner, the crime is physical injuries. Offender may also be held liable for physical injuries or damage caused. See: Human Security Act of 2007 (R.A. 9372) Section 24 thereof prohibits the use of torture or coercion in the investigation and interrogation of the detained persons. Evidence obtained in violation of such will be inadmissible in any proceedings and the person who will use torture or coercion shall suffer the penalty of twelve (12) years and one day to twenty (20) years of imprisonment as provided under Section 25.

ELEMENTS a. b. c.

Offender is a public officer or employee; He has under his charge a prisoner or detention prisoner; and That he maltreats such prisoner in either of the following manners: i. By overdoing himself in the correction or handling of a prisoner or detention prisoner under his charge either by(1) Imposition of punishment not authorized by regulation, or

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SECTION TWO: ANTICIPATION, PROLONGATION AND ABANDONMENT OF THE DUTIES AND POWERS OF PUBLIC OFFICE ART. 236 ANTICIPATION OF DUTIES OF A PUBLIC OFFICE:

The crime is qualified if the office is abandoned to evade the discharge of the duties of preventing, prosecuting or punishing any of the crime falling within Title One and Chapter One of Title Three of the Code. (Treason, conspiracy to commit treason, espionage, piracy or mutiny on the high seas, etc. rebellion, sedition, inciting to rebellion or sedition, etc.) ABANDONMENT OF OFFICE OR POSITION DERELICTION OF DUTY DISTINGUISHED:

AND

ELEMENTS a.

Offender is entitled to hold a public office either by appointment or election; The law requires that offender should be first sworn to or should first give a bond; and That offender assumes performance of said duties without first being sworn to or without first giving a bond

b. c.

Offender is suspended from office until he shall be sworn or until he gives a bond. Penalty is fine from P40,000 to P100,000 as provided under R.A. No. 10951.

ART. 237 PROLONGING PERFORMANCE OF DUTIES AND POWERS ELEMENTS a. b.

Offender is a public officer; and He continues to exercise the duties and powers of his office, employment or commission, beyond the period provided by law, regulations or special provisions applicable to the case.

NOTE: The offenders contemplated here can be those suspended, separated, declared over-aged, or dismissed.

ABANDONMENT OF OFFICE OR POSITION (ART. 238) Committed by any public officer.

There is actual abandonment through resignation to evade the discharge of duties.

ART. 239 USURPATION OF LEGISLATIVE POWERS ELEMENTS a. b.

ART. 238 ABANDONMENT OF OFFICE OR POSITION.

a. b. c. d.

Offender is a public officer; He has tendered his resignation from his position; His resignation has not yet been accepted; and He abandons his office to the detriment of public service.

There must be a written formal resignation. It is indispensable to a resigning employee. Lasallian Commission on Bar Operations

(ART. 208) Committed only by public officers who have the duty to institute prosecution for the punishment of violations of the law. 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

c.

ELEMENTS

DERELICTION OF DUTY

Offender is an executive or judicial officer; He encroaches upon the powers of the legislative branch of the government; and Such usurpation consists in making general rules or regulations beyond the scope of his authority by attempting to repeal a law or suspending the execution thereof.

ART. 240. USURPATION OF EXECUTIVE FUNCTIONS ELEMENTS a. b.

Offender is a judge; and He assumes any power pertaining to the executive authorities or obstructs the latter in the lawful exercise of their powers.

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ART. 241. USURPATION OF JUDICIAL FUNCTIONS ELEMENTS a. b.

Usurpation of one officer of a given department of the power of another officer in the same department is not covered, like the exercise by a bureau employee of the powers of his directors. Legislative officers are not punished for crimes under Articles 239 to 241.

ART. 242. DISOBEYING REQUEST FOR DISQUALIFICATION ELEMENTS

d.

ART. 244. UNLAWFUL APPOINTMENTS ELEMENTS

Offender is an officer of the executive branch of the government; and He assumes judicial powers or obstructs the execution of any order or decision rendered by a judge within his jurisdiction.

NOTE: Article 239 to 241 punish interference by officers of one of the three departments of the government with the functions of an official of another department to maintain the separation and independence of the three departments.

a. b. c.

NOTE: The purpose is to maintain the independence of the judiciary from executive dictations.

Offender is any public officer; There is a proceeding pending before him; He has been lawfully required to refrain from taking cognizance of such proceeding; and He continues such proceeding before the question of jurisdiction has been decided.

NOTE: The disobedient officer is liable even if the jurisdictional question is resolved in his favor.

ART. 243. ORDERS OR REQUESTS BY EXECUTIVE OFFICERS TO ANY JUDICIAL AUTHORITY

a. b. c. d.

NOTE: • The offense is committed by nominating or appointing. Recommending, knowing that the person recommended is not qualified is not a crime. • There must be a law providing for the qualifications of a person to be nominated or appointed to a public office. • In addition to a penalty under this act, penalties under RA 3019 may be imposed when the act constitutes graft and corrupt practices.

SECTION FOUR: CHASTITY

c.

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AGAINST

ACTS PUNISHED (1)

(2) (3)

Offender is an executive officer; He addresses any order or suggestion to any judicial authority; and Such refers to any case or business coming within the exclusive jurisdiction of the court.

ABUSES

ART. 245. ABUSES AGAINST CHASTITY; PENALTIES.

ELEMENTS a. b.

Offender is a public officer; He nominates or appoints a person to a public office; Such person lacks the legal qualifications for the office; and He has the knowledge of the lack of qualifications of said person.

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; Soliciting or making immoral or indecent advances to a woman under the offender’s custody; and 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

a.

Offender is a public officer;

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b. c.

He solicits or makes immoral or indecent advances to a woman; Such woman is – i. 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 ii. 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 iii. the wife, daughter, sister or relative within the same degree by affinity of the person in the custody of the offender.

Solicit means to propose earnestly and persistently something unchaste and immoral to a woman. The advances must be immoral or indecent. The crime is consummated by mere proposal. However, there must be proof of such solicitation or advances. Proof of solicitation is not necessary when there is sexual intercourse The advances must be made to a woman as defined under the article. (See element 3) If the Immoral or indecent advances to the mother of the person in the custody of the public officer is not covered by this article. However, the offender may be prosecuted under RA 3019 (Anti-Graft and Corrupt Practices Act). The offender must be the custodian of the person under arrest. If the offender was not the custodian, the crime would also fall under Republic Act No. 3019. Abuse against chastity is not absorbed in rape because the basis of penalizing the acts is different from each other. The essence of the crime is the mere making of immoral or indecent solicitation or advances.

Criminal Law

CRIMES AGAINST PERSONS CHAPTER ONE: Destruction of Life Section 1: Parricide, murder, homicide Art. 246. Parricide Art. 247. Death or physical injuries inflicted under exceptional circumstances Art. 248. Murder Art. 249. Homicide Art. 250. Penalty for frustrated parricide, murder or homicide Art. 251. Death caused in a tumultuous affray Art. 252. Physical injuries inflicted in a tumultuous affray Art. 253. Giving assistance to suicide Art. 254. Discharge of firearms Section 2: Infanticide and abortion Art. 255. Infanticide Art. 256. Intentional abortion. Art. 257. Unintentional abortion Art. 258. Abortion practiced by the woman herself or by her parents Art. 259. Abortion practiced by a physician or midwife and dispensing of abortive Section 3: Duel Art. 260. Responsibility of participants in a duel Art. 261. Challenging to a duel CHAPTER TWO: Physical Injuries Art. 262. Mutilation Art. 263. Serious physical injuries Art. 264.Administering injurious substances or beverages Art. 265. Less serious physical injuries Art. 266. Slight physical injuries and maltreatment CHAPTER THREE: Rape Art. 266-A. Rape, When and How committed Art. 266-B. Penalties Art. 266-C. Effect of pardon Art. 266-D. Presumptions

CHAPTER ONE: DESTRUCTION OF LIFE SECTION ONE: HOMICIDE

PARRICIDE, MURDER,

ART. 246 PARRICIDE ELEMENTS a. A person is killed; b. Deceased is killed by the accused; and c. Deceased is the father, mother or child, whether legitimate or illegitimate, or a legitimate ascendant or descendant, or legitimate spouse of the accused.

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ESSENTIAL ELEMENT OF PARRICIDE The key element in parricide is the relationship of the offender with the victim. Ergo, the fact of the relationship should be alleged in the information. (People vs. Dalag) THE RELATIONSHIP OF OTHER ASCENDANT OR DESCENDANT MUST BE LEGITIMATE However, proof of legitimacy is not required if the deceased is either the father, mother or the child of the accused. (People vs. Euasbalido)

Criminal Law

If the child is exactly three (3) days old, the crime is parricide. PARRICIDE IS COMMITTED, BUT THE PENALTY WILL NOT BE THAT WHICH IS PROVIDED IN ART. 246, IN THREE CASES (1) (2) (3)

Error in Personae, Art. 49 Pars. 1 And 2; Death under exceptional circumstances. Art. 247; and Parricide through negligence. PARRICIDE THROUGH RECKLESS IMPRUDENCE

The killing of an adopted child even if adoption confers on the adopted all the rights and privileges of a legitimate child could not be parricide. It is either murder or homicide.

May be committed as when the accused, struggling for the possession of a gun with his children, pulled the trigger and accidentally hit his wife, who was then approaching them. (People vs. Recote)

The relationship, except the spouse, must be in direct line and by blood.

Stranger cooperating in the commission of parricide is guilty of homicide or murder only because of the absence of relationship. It is immaterial that he knew of the relationship between the other accused and the deceased. (People v. Patricio) This applies whether the stranger cooperated as a co-principal or accomplice.

PARRICIDE OF SPOUSE Parricide of spouse requires proof of marriage. (People vs. Berang) The best proof of the relationship is marriage certificate. However, parricide may be proven even if no marriage contract was presented, provided there is other evidence proving the fact of marriage. (People vs.

If the natural father kills his child, there can be no indemnity considering that the accused id the presumptive heir of the deceased. (People vs. Berang)

Borromeo) The mere fact that no record of marriage exists in the registry of marriage does not invalidate said marriage, as long as in the celebration thereof, all requisites for its validity are present. (Pugeda vs. Trias) Persons living together in apparent matrimony are presumed to be in fact married. (San Gui vs. Gupeco) When the accused hanged his wife from the branch of a jackfruit tree who was five (5) months pregnant killing her and the fetus, the crime committed is Parricide with Unintentional Abortion. (People v. Desalisa) Where the wife conspired with strangers to kill her husband, the wife is guilty of parricide, but the stranger committed murder or homicide as the case may be.

(People v Patricio) THE CHILD SHOULD NOT BE LESS THAN THREE DAYS OLD If the child killed by his parent is less than three (3) days old, the crime is Infanticide. (Art. 255) (Reyes) Lasallian Commission on Bar Operations

BASIS

As to basis

As to commission

As to application of conspiracy

PARRICIDE Its basis is the relationship between the offender and the victim. It can be committed only by the relatives enumerated.

Conspiracy cannot be applied because the relationship of the offender and the victim is an essential element. A separate information must be filed for the parricide and the murder or homicide on the part of the non-relative conspirator.

INFANTICIDE The basis is the age of the child- victim. Infanticide may be committed by any person whether relative or not of the victim. Conspiracy is applicable because the circumstance of age pertains to the victim; only one information shall be prepared for all the conspirators. 149

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ART. 247. DEATH OR PHYSICAL INJURIES INFLICTED UNDER EXCEPTIONAL CIRCUMSTANCES ELEMENTS a.

b.

c.

That a legally married person (or parent) surprises his spouse (or his daughter under 18 years of age, and living with him) in the act of committing sexual intercourse with another person; That he or she kills any or both of them of inflicts upon any or both of them any serious physical injuries in the act or immediately thereafter; and That he has not promoted or facilitated the prostitution of his wife (or daughter) or that he or she has not consented to the infidelity of the other spouse. (People v. Talisic)

This provision does not define a felony. This article does not define a crime. It is an exempting circumstance. The penalty of destierro is intended for the protection of the accused him from acts of reprisal by relatives of dead spouse. As it is not a felony and having admitted the killing, it is incumbent upon the accused to prove the exempting circumstance. It must be proved by clear and convincing evidence. (People vs. Takbobo) The spouse and the paramour must be caught “in the act of sexual intercourse” Does not include the killing of the wife (1) When the husband upon arriving home one night, saw a man jump out of the window; (People vs.

Marquez) (2) (3)

(4)

Sleeping in the same bed; (People vs. Butuanan) Lying down on their sides for this position does not warrant the conclusion that a carnal act is being committed; (People vs. Wong) Seeing the wife raising up and the man buttoning his drawers, as that is a situation after the act.

(People vs. Ginzales) Surprise means to come upon suddenly and unexpectedly. Article does not apply: If the surprising took place before any actual sexual intercourse could be done. Immediately thereafter the discovery, the escape, the pursuit and the killing must form part of one continuous act. Lasallian Commission on Bar Operations

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 vs. Puedan) The killing must be the direct result of the outrage suffered by the cuckolded husband.

People vs. Abarca Although about one hour had passed between the time the accused discovered his wife having sexual intercourse with the victim and the time the latter was killed, it was held that Article 247 was applicable, as the shooting was a continuation of the pursuit of the victim by the accused.

Inflicting death under exceptional circumstances is not murder. 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. However, in this case the court held him liable for less serious physical injuries through simple imprudence or negligence.

In case a 3rd person is caught in the crossfire and suffers physical injuries, the accused is not liable. The principle that one is liable for the consequences of his felonious act is not applicable because he is not committing a felony

ART. 248. MURDER ELEMENTS a. A person was killed; b. The accused killed him; c. The killing is attended by any of the following qualifying circumstance: i. 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; ii. In consideration of a price, reward or promise; iii. 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; iv. On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, 150

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destructive cyclone, epidemic, or any other public calamity; v. With evident premeditation; vi. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim or outraging or scoffing at his person or corpse. Any of the qualifying circumstances enumerated in Art. 248 must be alleged in the information.

“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.

Rules for the application of the circumstances which qualify the killing to murder: (1) One attendant circumstance is enough to qualify the crime as murder and any other will be considered as generic aggravating. (2) When the other circumstances are absorbed or included in one qualifying circumstance, they cannot be considered ass generic aggravating. (3) Any of the qualifying circumstances enumerated in Article 248 must be alleged in the information.

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 Article 326, which is death as a consequence of arson.

TREACHERY The essence of treachery is that the offended party was denied the chance to defend himself because of the means, methods, deliberately adopted by the offender and were not merely incidental to the killing. Killing of a child of tender age is murder qualified by treachery. Abuse of superior strength is inherent in and comprehended by the circumstance of treachery or forms part of treachery. There is treachery where the attack, although frontal, is sudden and perpetrated in a manner tending directly and specially to insure its execution, free from danger and without risk to oneself, that the victim might defend himself. (People vs. Maraccubo) The circumstance of abuse of superior strength is deemed absorbed in treachery (People v. Cawaling) so with the aggravating circumstances of aid of armed men (People v. Lapay) as well as nighttime or nocturnity since it was evidently integral part of the peculiar treacherous means and manner adopted to ensure the execution of the crimes or that it facilitated the treacherous character of the attack. (People v. Tabag) “WITH THE AID OF ARMED MEN” The accused must avail himself of the aid or rely upon them when the crime is committed. “BY MEANS OF FIRE, POISON, EXPLOSION ETC.” To qualify killing to murder by means of inundation, fire, poison, explosion, shipwreck, etc., the offender’s purpose and design must be to kill the victim in employing the various modes. Lasallian Commission on Bar Operations

“FIRE” To be considered as a qualifying circumstance for murder, the primordial criminal intent of the offender must be to kill, and the fire was only used as a means to do so.

“ON THE OCCASION OF INUNDATION, SHIPWRECK, ETC.” If the killing is on the occasion of earthquake, eruption of a volcano, destructive cyclone or other calamities, the offender must have taken advantage of the same, and the resultant condition. EVIDENT PREMEDITATION For evident premeditation to qualify killing to murder, there must be proof, as clear as the evidence of the crime itself of the following elements: a. The time when the offender determined to commit the crime; b. An act manifestly indicating that the offender clung to his or her determination; and c. A lapse of time between the determination and the execution sufficient to allow the offender to reflect upon the consequences of his act. The essence of evident premeditation is that the execution of the criminal act is preceded by cool thought and reflections upon the resolution to carry out the criminal intent during the space of time sufficient to arrive at a calm judgment. (People v. Bibat) Evident premeditation 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. (U.S. vs. Manalinde) CRUELTY There is cruelty when other injuries or wounds are inflicted deliberately by the offender, which are not necessary for the killing of the victim. The victim be alive when the cruel wounds were inflicted.

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SCOFFING OR DECRYING THE CORPSE OF THE VICTIM Any act that would amount to scoffing or decrying the corpse of the victim will qualify the killing to murder.

Outraging means to commit an extremely vicious or deeply insulting act.

Scoffing means to jeer and implies a showing of irreverence. Examples: (1) the act of having anal intercourse with the woman after killing her (2) the corpse was dismembered with the cutting of the head and limbs and the opening up of the body to remove the intestines, lungs and liver. CRUELTY UNDER ART. 248 Aside from cruelty, any act that would amount to scoffing or decrying the corpse of the victim will qualify the killing to murder.

CRUELTY UNDER ART. 14 Requires that the victim be alive, when the cruel wounds were inflicted and, therefore, there must be evidence to that effect.

ART. 249. HOMICIDE It is an unlawful killing of a person not constituting murder, parricide or infanticide. ELEMENTS a. b. c. d.

Person was killed; Offender killed him without any justifying circumstances; 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.

INTENT TO KILL IS CONCLUSIVELY PRESUMED WHEN DEATH RESULTED The law looks particularly to the material results following the unlawful act and it holds the aggressor responsible for all the consequences thereof. (U.S. vs. Gloria) The killing of a peace officer who was fully aware of the risks in pursuing the malefactors when done in a spur of the moment is only Homicide. (People v. Porras) Lasallian Commission on Bar Operations

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. THERE IS NO OFFENSE OF FRUSTRATED HOMICIDE THROUGH IMPRUDENCE. Accused pharmacist prepared the medicine on prescription but erroneously used a highly poisonous substance. When taken by the patient, the latter nearly died. Accused is guilty only of reckless imprudence resulting in serious physical injuries. If the injuries were mortal but those were due to negligence, the crime committed will be serious physical injuries through reckless imprudence because the element of intent to kill in frustrated homicide is incompatible with negligence or imprudence. (People vs. Castillo) Physical injuries are included as one of the essential elements of frustrated homicide. ATTEMPTED / FRUSTRATED HOMICIDE There is intent to kill. However, if as a result of the physical injuries inflicted, the victim died, the crime will be homicide because the law punishes the result and not the intent of the act.

PHYSICAL INJURIES There is NO intent to kill. Where the intent to kill is not manifest, the crime committed has been generally considered as physical injuries and not attempted or frustrated murder or homicide.

In all crimes against persons in which the death of the victim is an element, there must be satisfactory evidence of the fact of death and the identity of the victim.

ART. 250 PENALTY FOR FRUSTRATED PARRICIDE, MURDER OR HOMICIDE The Courts, in view of the facts of the case, may impose a penalty: (1) 2 degrees lower for frustrated parricide, murder, or homicide (2) 3 degrees lower for attempted parricide, murder, or homicide.

ART. 251 DEATH CAUSED IN A TUMULTUOUS AFFRAY ELEMENTS a.

That there be several persons; 152

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b.

c. d. e. f.

Criminal Law

That they did not compose of groups organized for the common purpose of assaulting and attacking each other reciprocally; That these several persons quarreled and assaulted one another in a confused and tumultuous manner; That someone was killed in the course of the affray; That it cannot be ascertained who actually killed the deceased; and That the person or persons who inflicted serious physical injuries or who used violence can be identified. TUMULTUOUS AFFRAY

•

• • •

It takes place when a quarrel occurs between several persons not composing organized groups, and they engage in a fight in a confused and tumultuous manner, in the course of which some persons are killed or wounded and the author thereof cannot be ascertained. Considering the use of the word “tumultuous” the participants must be at least four (4). If the killer can be identified, the crime is Homicide or Murder. The person killed may be a participant in the affray or one who is not.

CIRCUMSTANCES

CRIME COMMITTED

The commotion is not only tumultuous but confused, to such an extent that it would not be possible to identify who the killer is, if death results, or who inflicted the serious physical injury or injuries, but the person or persons who use violence are known or can be identified. If it can be ascertained who actually killed the deceased If there is conspiracy If there is a concerted fight between two organized groups.

Tumultuous affray

If he is not known nor the one who inflicted serious physical injuries or violence

ART. 252. PHYSICAL INJURIES INFLICTED IN A TUMULTUOUS AFFRAY

a. b. c. d.

ELEMENTS There is tumultuous affray; That a participant suffers serious or less serious physical injuries The person who inflicted the injuries is not known; The all those who appear to have used violence upon the person of the offended party is known.

NOTE: This article will not apply when a person is killed. If during the tumultuous affray, only serious or less serious physical injuries are inflicted upon a participant, those

who used violence upon the person of the offended party shall be held liable under this Article. The offended party must be participant in the affray. 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. Slight physical injury is considered as inherent in a tumultuous affray.

Only those who used violence is liable. Where the participants who inflicted the serious physical injuries are identifiable, then they will be held liable for serious physical injuries unless intent to kill is shown, in which case, the crime is frustrated Homicide. The others who inflicted the less serious or slight physical injuries are liable for such offenses.

ART. 253 GIVING ASSISTANCE TO SUICIDE Simple homicide Murder or homicide Might be disturbance of public order if participants are armed, it could be tumultuous disturbance if property was destroyed, it could be malicious mischief No one will be held responsible for the death of the victim.

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ACTS PUNISHED (1) (2)

Assisting another to commit suicide, whether the suicide is consummated or not; and Lending his assistance to another to commit suicide to the extent of doing the killing himself. GIVING ASSISTANCE TO SUICIDE

Consists of giving means (arms, poison, etc.) or whatever manner of positive and direct cooperation (intellectual aid, suggestions regarding the mode of committing suicide, etc.). 153

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If the person does the killing himself, the penalty is similar to that of homicide, which is reclusion temporal. The crime is frustrated if the offender gives the assistance by doing the killing himself as firing upon the head of the victim but who did not die due to medical assistance. The person attempting to commit suicide is not liable if he survives. The reason is that he should be pitied and not punished. The accused is liable if he kills the victim, his sweetheart, because of a suicide pact. (People vs. Marasigan) There can be no qualifying circumstance because the determination to die must come from the victim. The law is silent if the one who assists the person attempting a suicide is the spouse, or parent, or the relatives mentioned in Article 246 penalizing Parricide. EUTHANASIA OR MERCY KILLING EUTHANASIA

CRIME COMMITTED

If without consent If with consent

Murder Covered by Giving assistance to suicide

A doctor who resorts to euthanasia of his patient may be liable for murder. Euthanasia is not lending assistance to suicide. In euthanasia, the victim is not in a position to commit suicide. But if the patient himself asks to be killed by his doctor, this Article applies.

ART. 254. DISCHARGE OF FIREARMS

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. If the firearm used is unlicensed, the crime of Illegal Possession of firearm is absorbed and the offender cannot be punished separately for that offense. (People v.

Ladjaalam) CIRCUMSTANCES OF DISCHARGING OF FIREARMS The accused shot at another with a firearm with no intent to kill, just to merely frighten. Aimed at someone with intent to kill If the discharge is not directed to any person but places the public in danger If serious physical injuries resulted from the discharge

If less serious physical injuries resulted from the discharge

The accused shot at another with a firearm; He had no intent to kill; and Unless the facts of the case are such that the act can be held to constitute frustrated or attempted parricide, murder, homicide or any other crime for which a higher penalty is prescribed by any of the articles of this Code.

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Discharge of firearms

Attempted parricide, murder, or homicide Alarm or scandal

Complex crime of serious physical injuries with illegal discharge of firearm Complex crime of less serious physical injuries with illegal discharge of firearm

No presumed intent to kill if the distance is 200 meters. This crime cannot be committed through imprudence because it requires that the discharge must be directed at another. Firing a gun at a person even if merely to frighten him constitutes illegal discharge of firearms. (People vs.

Ramirez)

SECTION TWO: ABORTION

ELEMENTS a. b. c.

CRIME COMMITTED

INFANTICIDE

AND

ART. 255 INFANTICIDE ELEMENTS a. b. c.

A child was killed by the accused; The deceased child was less than 3 days old, and That the accused killed the said child.

NOTE: The penalty will correspond to that of parricide if the accused is related to the child within the degree of relationship defined in parricide and if the offender is a stranger, the penalty corresponding to that of murder. 154

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CIRCUMSTANCES If the child is abandoned without any intent to kill and death resulted If the purpose of the mother is to conceal her dishonor

Criminal Law

ELEMENTS

CRIME COMMITTED Abandonment under Art. 276. a. b. Infanticide but the purpose may mitigate the liability of the mother or maternal grandparents who committed the crime.

c.

d.

There is a pregnant woman; Violence is exerted, or drugs or beverages administered, or that the accused otherwise acts upon such pregnant woman; 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; and The abortion is intended.

It is NOT Infanticide through

imprudence

If the child is born dead, or if the child is already dead

Because the purpose of concealing the dishonor is incompatible with the absence of malice in culpable felonies. NOT Infanticide At most, there may be a violation of the laws relating to the burial of the dead of the child was placed in a shallow pit containing a little water to save trouble of digging a grave. An impossible crime may be committed because infanticide is a crime against persons.

Concealment of dishonor is not an element of infanticide. It merely lowers the penalty. (US vs. Vedra) If the crime is committed by the mother of the child for the purpose of concealing her honor, she shall suffer the penalty of prision mayor in its medium and maximum periods and if the said crime be committed for the same purpose by the material grandparents or either of them, the penalty shall be reclusion temporal.

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.

WAYS OF COMMITTING INTENTIONAL ABORTION (1) (2) (3)

Using violence upon the person of the pregnant woman; By administering drugs and beverages upon the pregnant woman, without her consent; or By acting, with the consent of the pregnant woman (by administering drugs/beverages)

IN ALL THESE CASES THERE MUST BE INTENT TO MAKE THE PREGNANT WOMAN ABORT. The woman who consented to the abortion will be liable under Art. 258 (Abortion practiced by the woman herself of by her parents) In intentional abortion, the offender must know of the pregnancy because the criminal intent is to cause an abortion “CONSUMMATED ABORTION” The fetus must be dead. “FRUSTRATED ABORTION” It is committed when 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. If the means are not sufficient or adequate, the crime would not be an impossible crime of abortion. “CO-PRINCIPAL” One who persuades to abort

ART. 256 INTENTIONAL ABORTION

“ACCOMPLICE”One who looks for a physician for abortion

Abortion is the willful killing of the fetus in the uterus, or the violent expulsion of the fetus from the maternal womb.

Physician will be punished under Art. 259 (Abortion practiced by a physician)

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ABORTION Fetus could not sustain independent life. No legal viability.

INFANTICIDE Fetus could sustain an independent life after separation from the mother‘s womb.

If the mother because of abortion suffers death or physical injuries, you have a complex crime of murder or physical injuries and 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. If she dies or suffers injuries, the crime will be homicide, serious physical injuries, etc. INFANTICIDE VIS-À-VIS PARRICE IF THE OFFENDER IS A BLOOD RELATIVE BASIS

As to age of victims

As to liability in conspiracy

Concealment as mitigating circumstances

INFANTICIDE The age of the victim is less than three days old. If done in conspiracy with a stranger, both the parent and the coconspirator are liable for infanticide. Concealment of dishonor in killing the child is mitigating.

PARRICIDE The victim is at least three days old. The coconspirator is liable for murder because of the absence of relationship.

Concealment of dishonor in killing the child is not a mitigating circumstance.

In both, there is intent to kill the child.

ART. 257 UNINTENTIONAL ABORTION

It is the willful killing of the fetus in the uterus, or the violent expulsion of the fetus from the maternal womb that results in the death of the fetus. The violence must be physical and must have been deliberate and voluntary. (People vs. Palencia) Unintentional abortion may be committed through negligence as it is enough that the use of violence be voluntary. Unintentional abortion requires physical violence inflicted deliberately and voluntarily by a third person upon the pregnant woman, without intention to cause the abortion. Unintentional abortion may be committed through negligence as it is enough that the use of violence be voluntary. 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. CIRCUMSTANCES

CRIME COMMITTED

Violence is employed upon a pregnant woman; and which causes the offended party to abort without, however, intending it.

Unintentional Abortion

If the pregnant woman aborted because of intimidation,

Light threats

If the pregnant woman was killed by violence by her husband

complex crime of parricide with unlawful abortion.

NOT unintentional abortion because there is no violence

Jose is declared guilty of the crime of unintentional abortion through reckless imprudence for having bumped a calesa which resulted in a pregnant woman bumping her abdomen against the wall of the calesa and eventually led to an abortion. (People vs. Jose)

ELEMENTS a. b. c. d.

There is a pregnant woman Violence is used upon such pregnant woman without intending an abortion. The violence is intentionally exerted. That as a result of the violence the fetus dies, either in the womb or after having been expelled therefrom.

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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. The accused must have merely intended to kill the victim but not necessarily to cause abortion. The accused is liable for complex crime of parricide with unintentional abortion for it was merely incidental to the killing. (People vs. Salufrania) 156

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d. For the crime of abortion, even unintentional, to be held committed, the accused must have known of the pregnancy. (People vs. Carnaso)

ART. 258 ABORTION PRACTICED BY THE WOMAN HERSELF OR BY HER PARENTS ELEMENTS a.

There is a pregnant woman who has suffered an abortion; Abortion is intended; Abortion is caused by – i. The pregnant woman herself; ii. Any other person, with her consent; or iii. Any of her parents, with her consent for the purpose of concealing her dishonor.

b. c.

NOTE: • The pregnant woman either practices the abortion upon herself or consents that another person should do so. • Where the purpose of the abortion is to conceal her dishonor, the offense is mitigated. However, if the abortion is performed by the parents of the pregnant woman or either of them and the pregnant woman consented for the purpose of concealing her dishonor, the penalty imposed on the offending parents shall be the same as that imposed upon the woman who practiced the abortion upon herself.

•

Q: What crime is committed when a pregnant woman tries to kill herself but survives and the fetus dies? A: None. A person is liable for the direct, natural and logical consequence of one’s felony. However committing suicide is not a felony, thus, the woman is not liable for its consequences.

ACTS PUNISHED (1)

(2)

THERAPEUTIC ABORTION If the abortion is produced by a physician to save the life of the mother, there is no liability. But abortion without medical necessity to warrant it, is punishable even with the consent of the woman or her husband. (Geluz vs. Court of Appeals)

SECTION THREE: DUEL ART. 260 RESPONSIBILITY OF PARTICIPANTS IN A DUEL ACTS PUNISHED (1) (2) (3)

(1)

b. c.

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Killing one’s adversary in duel; Inflicting upon such adversary physical injuries; and Making a combat although no physical injuries have been inflicted. PERSONS LIABLE

ELEMENTS There is a pregnant woman who has suffered an abortion; The abortion is intended; Offender, who must be a physician or midwife, caused or assisted in causing the abortion;

Causing an abortion or assisting in causing the same by a physician or midwife by taking advantage of their scientific knowledge or skill; and Dispensing of an abortive by a pharmacist without the proper prescription from a physician. a. The offender is a pharmacist; b. There is no proper prescription from a physician; c. The offender dispenses any abortive.

NOTE: It is not necessary that the pharmacist knew that the abortive would be used to cause abortion. What is punished is the act of dispensing an abortive without proper prescription.

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

a.

Said physician or midwife took advantage of his or her scientific knowledge or skill.

(2)

Principals – person who killed or inflicted physical injuries upon his adversary, or both combatants in any other case; Accomplices – as seconds

DUEL A formal or regular combat previously consented between two parties in the presence of two or more seconds of

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lawful age on each side, who make the selection of arms and fix all the other conditions of the fight. The participant who shall kill the adversary is punished with reclusion temporal and if he merely inflicts physical injuries upon the latter, he shall suffer the penalty thereof according to their nature. If no physical injuries are inflicted, the combatants are punished arresto mayor.

CHAPTER TWO: PHYSICAL INJURIES

(1) (2) (3) (4)

KINDS OF PHYSICAL INJURIES: Mutilation; Serious physical injuries; Less serious physical injuries; Slight physical injuries.

THE SECONDS ARE PUNISHED AS ACCOMPLICES

ART. 262. MUTILATION

A mere fight as a result of an agreement is not necessarily duel because a duel “implies or means an agreement to fight under determined conditions and with the participation and intervention of seconds, who fix such conditions”. (US vs. Navarro)

Mutilation is the chopping or the clipping off of some parts of the body which are not susceptible to growth again.

There is no such crime nowadays because people hit each other even without entering into any pre-conceived agreement. This is an obsolete provision. If these are not the conditions of the fight, it is not a duel in the sense contemplated in the Revised Penal Code.

ACTS PUNISHED (1)

Elements: a. There be castration, i.e. mutilation of organs necessary for generation (such as the penis or ovarium); b. The mutilation is caused purposely and deliberately.

It will be a quarrel and anyone who killed the other will be liable for homicide or murder, as the case may be.

ART. 261. CHALLENGING TO A DUEL ACTS PUNISHED (1) (2) (3)

(2)

Challenging another to a duel; Inciting another to give or accept a challenge to a duel; and Scoffing at or decrying another publicly for having refused to accept a challenge to fight a duel. PERSONS LIABLE

(1) (2)

Instigators; Challenger

If one challenges another to a duel by shouting, “Come down, Ramon, 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. If the challenge is only to fight, without the challenger having in mind a formal combat to be agreed upon with the assistance of seconds as contemplated under the law, the crime committed will only be grave or light threat, as the case may be.

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Mutilation or intentionally mutilating another by depriving him, either totally or partially, of some essential organ for reproduction.

Mayhem or 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. 2 KINDS OF MUTILATION

(1) (2)

Castration is mutilation of reproductive organ, either totally or partially Mayhem is mutilation of any other organ

Castration must be made purposely. Otherwise, it will be considered as mutilation of second kind. This cannot be committed through criminal negligence. Intent to mutilate must be established. If there is no

intent, the crime is only serious physical injury. The common mistake is to associate this with reproductive organs only. Mutilation includes any part of the human body that is not susceptible to grow again. If what was cut off was a reproductive organ, the penalty is much higher than that for homicide. 158

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ART. 263 SERIOUS PHYSICAL INJURIES (1) (2) (3) (4)

Ways of committing serious physical injuries Beating; Assaulting; Wounding; Administering noxious substances.

There must be an intent to injure. The offender is always liable for the direct and logical consequence thereof even though not intended. This felony may be committed through negligence. KINDS OF SERIOUS PHYSICAL INJURIES (1) (2)

(3)

(4)

Where the injured person shall become insane, imbecile, impotent or blind; Where the injured person – a. loses the use of speech, b. power to hear, c. power to smell, or d. lost an eye, a hand, foot, arm, leg or use of any such member or e. become incapacitated for the work in which he was theretofore habitually engaged; Where the injured person a. become deformed, or b. shall have lost any other part of his body, or the use thereof, or c. shall have been ill or incapacitated for the performance of work in which he was habitually engaged for more than 30 days; Where the injured person shall have become ill or incapacitated for labor for more than 30 days (but not more than 90 days), as a result of the physical injuries inflicted.

“DEFORMITY” Means disfigurement. ELEMENTS OF DEFORMITY a. b. c.

Injury must produce ugliness; Visible; and Permanent meaning ugliness will not disappear through natural healing process

What is considered in law is not the artificial treatment, but the natural healing process. Serious physical injuries are punished with higher penalty in the following cases: (1) If it is committed against any of the persons referred to in Art. 246 (parricide); Lasallian Commission on Bar Operations

Criminal Law

(2)

If any of the circumstances qualifying murder attended its commission.

RA 8049 (The Anti-Hazing Law) The law penalizes hazing which is defined as initiation rite or practice as a prerequisite for admission into membership in a fraternity, sorority or organization by placing the recruit, neophyte or applicant in some embarrassing or humiliating situations such as forcing him to do menial, silly, foolish and other similar tasks or activities or otherwise subjecting him to physical or psychological suffering or injury. RA 9745 (The Anti-Torture Law) It penalizes torture and other cruel, inhuman and degrading treatment. It treats torture as a separate and independent crime.

ART. 264. ADMINISTERING INJURIOUS SUBSTANCES OR BEVERAGES ELEMENTS a. b.

c.

Offender inflicted upon another any serious physical injury; It was done by knowingly administering to him any injurious substance or beverages or by taking advantage of his weakness of mind or credulity; He had no intent to kill.

TO ADMINISTER AN INJURIOUS SUBSTANCE OR BEVERAGE Administering means introducing into the body the substance. • Directing or causing said substance or beverage to be taken orally by the injured person, who suffers serious physical injuries as a result. • Throwing of the acid in the face is not contemplated. PHYSICAL INJURIES The offender inflicts physical injuries. Offender has no intent to kill the offended party

ATTEMPTED OR FRUSTRATED HOMICIDE Attempted homicide may be committed, even if no physical injuries are inflicted. The offender has intent to kill the offended party.

The reason why there is NO attempted or frustrated crime of physical injuries is because this felony is defined by the gravity of the injury. It is a crime of result. As long 159

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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, you do not consider the period of medical treatment. You only consider the period when the offended party is rendered incapacitated for labor. When the injury created a deformity upon the offended party, you disregard the healing duration, or the period of medical treatment involved. It is automatically considered serious physical injuries. Deformity requires the concurrence of the following conditions: a. The injury must produce ugliness; b. It must be visible; c. The ugliness will not disappear through natural healing process.

(2)

(3)

This article does not deal with a crime. It refers to means of committing serious physical injuries. When there is intent to kill, it is frustrated murder.

ART. 265 LESS SERIOUS PHYSICAL INJURIES ELEMENTS a.

b.

Offended party is – i. incapacitated for labor for 10 days or more (but not more than 30 days), or ii. needs medical attendance for the same period of time; The physical injuries must not be those described in the preceding articles. QUALIFIED AS TO PENALTY

(1)

(2)

A fine not exceeding P 500.00, in addition to arresto mayor, when: i. There is a manifest intent to insult or offend the injured person; or ii. There are circumstances adding ignominy to the offense. A higher penalty is imposed when the victim is either i. The offender‘s parents, ascendants, guardians, curators or teachers; or ii. Persons of rank or person in authority provided the crime is not direct assault.

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These physical injuries are not covered in Art. 263 and 264. If the physical injuries do not incapacitate the offended party for labor nor is there medical attendance, slight physical injuries are committed. But the physical injuries heal after 30 days, serious physical injuries are committed under par. 4 of Art. 263.

ART. 266 SLIGHT PHYSICAL INJURIES AND MALTREATMENT ACTS PUNISHED (1)

(2)

(3)

Physical injuries incapacitated the offended party for labor from 1-9 days, OR required medical attendance during the same period; Physical injuries which did not prevent the offended party from engaging in his habitual work or which did not require medical attendance (ex. Black-eye); Ill-treatment of another by deed without causing any injury (ex. Slapping but without causing dishonor).

If there is no evidence regarding actual injury or where the deceased died of other causes and there is no evidence as to how many days the deceased lived after injury, the crime is slight physical injuries as the wounds inflicted by the accused could not have caused death. (People vs.

Amarao) The crime is also slight physical injuries if there is no proof as to the period of the offended party’s incapacity for labor or of the required medical attendance. (People vs.

Aranchado) Slapping the face of a person is an example of ill-treatment because the act does not cause injury. 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. 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. NOTE: In all these cases, there must be no intent to kill otherwise, the offense would be Attempted or Frustrated 160

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Homicide, Murder or Parricide as the case may be. When the victim becomes deformed, the crime is Serious Physical Injuries. Deformity means physical ugliness which must be conspicuous and visible. It must also be permanent and definite abnormality. RA 7610 (Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act) For purposes of this Act, the penalty 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.

of work in which he was habitually engaged for more than 30 days; and (4)

DEGREES OF PHYSICAL INJURIES SERIOUS (Art. 263) Physical injuries resulted to: (1) insanity, imbecility, impotence or blindness; (2)

(3)

lost use or power of speech, hear, smell, or shall have lost an eye, hand, foot, arm, leg or use of any such member or shall have become incapacitated for the work in which he was habitually engaged;

LESS SERIOUS (Art. 265) Not among those described in the preceding article and the offended party is incapacitated for labor for 10 days or more (but not more than 30 days)

become deformed, or shall have lost any other part of his body, or the use thereof, or shall have been ill or incapacitated for the performance

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SLIGHT (Art. 266) Physical injuries: (1) Incapacitate d the offended party for labor from 1 to 9 days or shall require medical attendance during the same period. (2)

(3)

Did not prevent the offended party from engaging in his habitual work or which did not require medical attendance Illtreatment of another by deed without causing any injury

Injured person becomes ill or incapacitated for labor for more than 30 days (must not be more than 90 days)

DIFFERENCE Any of the circumstances enumerated above. Medical attendance is not required under paragraph (4) but there must be incapacity for more than 30 days.

Not among the enumeration in the preceding article.

Medical attendance or incapacity is required.

Medical attendance or incapacity is not required.

CHAPTER THREE: RAPE ART. 266-A. RAPE: WHEN AND HOW COMMITTED ART. 266-B. RAPE: PENALTIES: ACTS PUNISHED (1)

Rape through sexual intercourse without consent of the woman: (Traditional Rape) ELEMENTS: a. Offender is a man; b. Offender had carnal knowledge of a woman; c. Such act is accomplished under any of the following circumstances: i. By using force, threat or intimidation; ii. When the woman is deprived of reason or is otherwise unconscious; iii. By means of fraudulent machination or grave abuse of authority; 161

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iv. When the woman is under 12 years of age (Statutory Rape) or is demented,

even though none of the circumstances mentioned above are present (2)

Rape Through Sexual Assault ELEMENTS: a. Offender commits an act of sexual assault; b. The act of sexual assault is committed by any of the following means: i. By inserting his penis into another person's mouth or anal orifice of another person; ii. By inserting any instrument or object into the genital or anal orifice of another person. c. The act of sexual assault is accomplished under any of the following circumstances: i. By using force or intimidation; or ii. When the woman is deprived of reason or otherwise unconscious; or iii. By means of fraudulent machination or grave abuse of authority; or iv. When the woman is under 12 years of age or demented. CLASSIFICATION OF RAPE

(1)

(2)

Traditional Rape Offended party is always a woman Offender is always a man. Sexual assault 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.

Inserting a finger inside the genital of a woman is rape through sexual assault within the context of “object”. There should be evidence of at least the slightest penetration of the sexual organ and not merely a brush or graze of its surface. (People v. Dela Cruz) PENALTIES Traditional Rape In general: Reclusion

perpetua

Sexual Assault In general: Prision mayor

A. Committed: 1) with the use of a deadly weapon; or 2) by 2 or more persons

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Reclusion perpetua to

Prision mayor to reclusion death temporal A. Victim becomes insane by reason or on the occasion of rape Reclusion perpetua to Reclusion temporal death B. Rape is attempted & homicide is committed by reason or on the occasion thereof Reclusion perpetua to Reclusion temporal to death reclusion perpetua C. Rape is consummated & homicide is committed by reason or on the occasion thereof (a special complex crime) Death Reclusion perpetua COMMITTED WITH ANY OF THE FF. AGGRAVATING CIRCUMSTANCES On the victim: (1) Victim 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. (2) Victim is under the custody of the police military authorities/ law enforcement agency. (3) Victim is a religious and such legitimate vocation is known by the offender before or at the time of rape. (4) Victim is a child below 7 yrs. old. (5) Victim suffered permanent or physical mutilation or disability by reason or on the occasion of rape On the offender: (1) Offender is afflicted with a sexually transmissible disease & the virus / disease is transmitted to the victim. (2) Offender is a member of the AFP / PNP / any law enforcement agency / penal institution & took advantage of his position. (3) Offender knew of the pregnancy of the offended party at the time of the commission of rape. (4) Offender knew of the mental disability, emotional disorder, & / or physical handicap of the offended party at the time of the commission of rape. On 3rd persons Rape is committed in full view of the of the spouse, parent, any of the children, or other relatives w/in the 3rd civil degree of consanguinity.

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OLD ANTI-RAPE LAW

RA 8353

Crime against chastity

Crime against persons

May be committed by a man against a woman only.

Under the 2nd type, sexual assault may be committed by any person against any person. May be prosecuted even if the woman does not file a complaint. (Public Crime)

Complaint must be filed by the woman or her parents, grandparents or guardian if the woman was a minor or incapacitated. (Private Crime) Marriage of the victim with one of the offenders benefits not only the principal but also the accomplices and accessories.

Marriage of the victim with 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 co- principals in case of multiple rape. Marital rape is recognized.

Complete penetration is NOT necessary. The slightest penetration—contact with the labia—will consummate the rape. Rape must have specific intent or lewd design. A soldier raped a 19-year old student by poking a knife on her neck. Only a portion of his penis entered her vagina because the victim kept on struggling until she was able to escape. The accused was convicted of frustrated 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

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 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 proving resistance. Rape by means of fraudulent machinations and grave abuse of authority absorbs the crime of qualified and simple seduction.

Statutory rape is consummated when the victim is below 12 yrs. old. Victim‘s consent is immaterial. Offender‘s knowledge of the victim‘s age is immaterial in statutory rape.

Carnal knowledge of a child below 12 yrs. old even if she is engaged in prostitution is still considered statutory rape. (People vs. Campuhan) A 16-year old mental retardate, who has the intellectual capacity of a 9, was repeatedly raped by the accused.

(People vs. Atento) The accused was found guilty of raping a woman deprived of reason or otherwise unconscious, and was also held liable for rape under the provision that pertains to a victim under 12 notwithstanding the victim‘s actual age. Age requirement was subsequently amended to refer also to mental age. Incestuous rape refers to rape committed by an ascendant of the offended woman. Gallo was found guilty of the crime of qualified rape with the penalty of death. (People vs. Gallo)

vs. Orita) The accused had his pants down and was on top of the 4year old child when the child‘s mother arrived. Medical findings showed no signs of genital injury and the victim‘s hymen was intact. 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.

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The information filed against him does not allege his relationship with the victim, his daughter, thus, it CANNOT be considered as a qualifying circumstance. Special qualifying circumstances have to be alleged in the information for it to be appreciated. The case was reopened, and the judgment is modified from death to reclusion perpetua. A 14-year old was raped by her brother-in-law. (People vs.

Berana) 163

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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) (2)

The accused is legally married to the victim‘s sister; and The victim and the accused‘s wife are full or halfblood siblings.

Since relationship qualifies the crime of rape, there must be clearer proof of relationship and in this case, it was not adequately substantiated. EVIDENCE WHICH MAY BE ACCEPTED IN THE PROSECUTION OF RAPE (1)

(2)

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

circumstances to exculpate him from criminal liability was thereby shifted to him. (De Leon v. People) HOMICIDE Direct evidence of the crime is not the only matrix wherefrom a trial court may draw its conclusion and finding of guilt. The rules of evidence allow a trial court to rely on circumstantial evidence to support its conclusion of guilt. Circumstantial evidence is that evidence which proves a fact or series of facts from which the facts in issue may be established by inference. At times, resort to circumstantial evidence is imperative since to insist on direct testimony would, in many cases, result in setting felons free and deny proper protection to the community. All the circumstances must be consistent with one another, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with the hypothesis that he is innocent. Thus, conviction based on circumstantial evidence can be upheld, provided that the circumstances proven constitute an unbroken chain which leads to one fair and reasonable conclusion that points to the accused, to the exclusion of all others, as the guilty person. (Salvador v.

Character of the offended woman is immaterial in rape.

People)

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.

MURDER Murder is committed by any person who, not falling within the provisions of Article 246 of the Revised Penal Code (RPC), kills another, if the killing is committed with treachery. The essence of treachery is the sudden and unexpected attack by an aggressor on an unsuspecting victim, depriving the latter of any real chance to defend himself and thereby ensuring its commission without risk to himself.

An accused may be considered a principal by direct participation, by inducement, or by indispensable cooperation. This is true in a charge of rape against a woman, provided, a man is charged together with her. EFFECT OF PARDON (1)

(2)

Subsequent valid marriage between the offender and the offended party shall extinguish the criminal action or the penalty imposed. 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. JURISPRUDENCE

FRUSTRATED HOMICIDE By invoking self-defense, accused, in fact, admitted that he inflicted injuries on the victim. The burden of proving with clear and convincing evidence the justifying Lasallian Commission on Bar Operations

The killing occurred at around two o‘clock in the morning, an hour when generally people are asleep and the victim was shot at the back. (People v. Bohol) QUALIFIED RAPE There is qualified rape when the facts alleged in the Information and the facts proven in court establish the qualifying circumstances of minority and relationship.

(People v. Abellano) A stepfather, who exercises moral and physical ascendancy over his stepdaughter, need not make any threat against her because the latter is cowed into submission when gripped with the fear of refusing the advances of a person she customarily obeys. Rape may, likewise, be committed in a room adjacent to where the victim's family is sleeping, or even in a room 164

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shared with other people. There is no rule that rape can only be committed in seclusion. (People v. Glivano)

CRIMES AGAINST PERSONAL LIBERTY AND SECURITY

RAPE Physical resistance need not be established in rape when intimidation is exercised upon the victim who submits against her will to the rapist‘s lust because of fear for her life or personal safety. 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. Because of the victim‘s youthfulness, coupled with the fact that the assailant is her stepfather, it was easy for her to believe that appellant would make good his threat to kill her should she resist.

CHAPTER ONE: Crimes against Liberty Section 1: Illegal detention Art. 267. Kidnapping and serious illegal detention Art. 268. Slight illegal detention Art. 269. Unlawful arrest Section 2: Kidnapping of minors Art. 270. Kidnapping and failure to return a minor Art. 271. Inducing a minor to abandon his home Section 3: Slavery and servitude Art. 272. Slavery Art. 273. Exploitation of child labor Art.274. Services rendered under compulsion in payment of debt CHAPTER TWO: Crimes against securities Section 1: Abandonment of helpless persons and exploited minors Art. 275. Abandonment of person in danger and abandonment of one's own victim Art. 276. Abandoning a minor Art. 277. Abandonment of minor by person entrusted with his custody; indifference of parents Art. 278. Exploitation of minors Art. 279. Additional penalties for other offenses Section 2: Trespass to dwelling Art. 280. Qualified trespass to dwelling. Art. 281. Other forms of trespass. Section 3: Threats and coercion Art. 282. Grave threats. Art. 283. Light threats. Art. 284. Bond for good behavior. Art. 285. Other light threats. Art. 286. Grave coercions. Art. 287. Light coercions. Art. 288. Other similar coercions; Art. 289. Formation, maintenance and prohibition of combination of capital or labor through violence or threats. CHAPTER THREE: Discovery And Revelation Of Secrets Art. 290. Discovering secrets through seizure of correspondence Art. 291. Revealing secrets with abuse of office Art. 292. Revelation of industrial secrets

(People v. Tuazon) An information is valid as long as it distinctly states the elements of the offense and the acts or omissions constitutive thereof. The precise time or date of the commission of an offense need not be alleged in the complaint or information, unless it is an essential element of the crime charged. In rape, it is not. The gravamen of rape is carnal knowledge of a woman through force and intimidation. In fact, the precise time when the rape takes place has no substantial bearing on its commission. As such, the date or time need not be stated with absolute accuracy. It is sufficient that the complaint or information states that the crime has been committed at any time as near as possible to the date of its actual commission.

(People v. Domingo) RAPE BY A MINOR The accused at the time of the commission of the offense was only 13 years old and it occurred prior to RA 9344 or the Juvenile Justice and Welfare Act of 2006. The subsequently enacted law should be construed to retroact in favor of the accused. While the latter is now 25 years old as of this decision, he is still exculpated from criminal liability. However, RA 9344 does not relieve the minor of civil liability arising from the offense. (Ortega v. People)

CHAPTER LIBERTY

ONE:

CRIMES

AGAINST

SECTION ONE: ILLEGAL DETENTION ART. 267 KIDNAPPING AND SERIOUS ILLEGAL DETENTION

Lasallian Commission on Bar Operations

Where the person kidnapped or detained is a minor and the accused is any of his parents, there is no crime of kidnapping. 165

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ELEMENTS a. b. c. d.

Offender is a private individual; He kidnaps or detains another, or in any other manner deprives the latter of his liberty; The act of detention or kidnapping must be illegal; In the commission of the offense, any of the following circumstances* is present (becomes serious): i. The kidnapping lasts for more than 3 days; ii. it is committed simulating public authority; iii. Any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or iv. The person kidnapped or detained is a minor (except if parent is the offender), female, or a public officer

* alternative not cumulative QUALIFYING CIRCUMSTANCES (1) (2) (3) (4)

Purpose is to extort ransom; When the victim is killed or dies as a consequence of the detention; When the victim is raped; When victim is subjected to torture or dehumanizing acts.

The offenders here are private individuals or public officers acting in their private capacity. If they are public officers, they are covered by the crimes under Title 2. When a public officer conspires with a private person in the commission of any of the crimes under Title IX, the crime is also one committed under this title and not under Title II.

The purpose is immaterial when any of the circumstances in the first paragraph of Art. 267 is present. Essential element: deprivation of liberty. RANSOM It is the money, price or consideration paid or demanded for redemption of a captured person or persons, a payment that releases a person from captivity. When the kidnapping was done to extort ransom, it is not necessary that one or any of circumstances enumerated be present.

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Actual demand for ransom not necessary, as long as it can be proven that the kidnapping was done for the purpose of extorting money. Whether or not the ransom is actually paid to or received by the perpetrator is of no moment. (People v. Jatulan) The victim’s lack of consent is also a fundamental element of kidnapping and serious illegal detention. (People v.

Cortez) Essential: 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. CIRCUMSTANCES

CRIME COMMITTED

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. 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. If a woman is transported just to restrain her of her liberty. There is no lewd design or lewd intent. If a woman is carried away just to break her will, to compel her to agree to the demand or request by the offender.

Special complex crime of Kidnapping with Murder

Forcible abduction

Serious illegal detention

Grave coercion

ILLEGAL DETENTION

ARBITRARY DETENTION

Committed by a private individual who unlawfully deprives a person of his liberty Crime against personal liberty

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, 166

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since no deprivation of liberty was involved. (People v

(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.

Padica) 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) The duration of the detention even if only for a few hours does not alter the nature of the crime committed. (People

v Pavillare) 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) The elements of kidnapping for ransom under Article 267 of the Revised Penal Code (RPC), as amended by Republic Act (R.A.) 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) Article 267 has been modified by Republic Act No. 7659 (AN ACT TO IMPOSE THE DEATH PENALTY): (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.

KIDNAPPING WITH RAPE Lewd design came after the intent to kidnap the victim. If there is an attempted rape, it shall be considered as a separate crime. FORCIBLE ABDUCTION WITH RAPE There is already lewd design before the kidnapping. If there is an attempted rape, the crime committed is only forcible abduction, the former being an expression of a lewd design.

ART. 268. SLIGHT ILLEGAL DETENTION ELEMENTS a. b.

c. d.

Offender is a private individual; He kidnaps or detains another, or in any other manner deprives him of his liberty / furnished the place for the perpetration of the crime The act of kidnapping or detention is illegal; The crime is committed without the attendance of any of the circumstances enumerated in Article 267.

NOTE: This felony is committed if any of the five circumstances in the commission of kidnapping or detention enumerated in Article 267 is not present. THE PENALTY IS LOWERED IF (1) (2) (3)

The offended party is voluntarily released within three days from the start of illegal detention; Without attaining the purpose; AND Before the institution of the criminal action.

The period of 3 days must be computed by days of 24 hours and from that moment of the deprivation of liberty until it ceases. The prevailing rule now is Asistio v. Judge, which provides that voluntary release will only mitigate criminal liability if crime was slight illegal detention. If serious, it has no effect.

(4) The amendment introduced in our criminal statutes the concept of "special complex crime" of kidnapping with murder or homicide. Lasallian Commission on Bar Operations

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The liability of one who furnishes the place where the offended party is being held captive is that of a principal and not of an accomplice.

ART. 269. UNLAWFUL ARREST

SECTION MINORS

TWO:

KIDNAPPING

OF

ART. 270 KIDNAPPING AND FAIULURE TO RETURN A MINOR

ELEMENTS ELEMENTS a. b. c.

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

a.

The offender is entrusted with the custody of a minor; and He deliberately fails to restore the minor to his parents or guardians.

b.

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. ACT COMMITTED Arrest made without a warrant and under circumstances not allowing a warrantless arrest If the person arrested is not delivered to the authorities Where person making the arrest is a private individual offender is a public officer

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

CRIME Unlawful arrest

Illegal detention under Article 267 or 268. Arbitrary detention under Article 124. Art. 125 (Delaying Release)

NOTE: The refusal, however, must be deliberate and persistent to oblige the parents or the guardian to seek the aid of the courts to obtain the custody of the minor. If any of the elements is absent, the kidnapping of the minor will fall under Art. 267 (Kidnapping and serious illegal detention). If the accused is any of the parents, Article 267 does not apply; Articles 270 and 271 apply. If the taking is with the consent of the parents, the crime in Article 270 is committed. 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)

ART. 271. INDUCING A MINOR TO ABANDON HIS HOME

NOTE: This felony may also be committed by public officers. (People v. Malasugui) Delay in Delivery of Detained Persons and Unlawful arrest

ELEMENTS a.

DELAY IN THE DELIVERY OF DETAINED PERSONS (ART. 125) Detention is for some legal ground. Crime is committed by failing to deliver such person to the proper judicial authority within a certain period.

UNLAWFUL ARREST (ART. 269) b. Detention is not authorized by law. Committed by making an arrest not authorized by law

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The minor is living in the home of his parents or guardians or the person entrusted with his custody; and The offender induces a minor to abandon such home. INDUCEMENT MUST BE

(1) (2)

Actual; and Committed with criminal intent (determined will to cause damage).

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Where the victims abandoned their respective homes out of an irresponsible spirit of restlessness and adventure, the crime is not committed. 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 his home of his guardian, and it is not necessary that the minor actually abandons the home. 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 felony is committed by anyone who shall induce a minor to abandon the house of his parents or guardian or the person entrusted with his custody. It is mitigated if induced by father or mother. The article is intended to discourage and prevent disruption of filial relationship and undue interference with the parents’ right and duty to the custody of their minor children and to rear them. The mere commission of any act which tends to influence, persuade or prevail on a minor to abandon his home is what constitutes the crime. Its effect on the minor is immaterial. (People v. Apolinar)

The crime is committed by mere inducement of the minor to abandon the house of his parents.

SECTION THREE: SERVITUDE

SLAVERY

AND

ART. 272 SLAVERY a. b.

ELEMENTS Offender purchases, sells, kidnaps or detains a human being; and 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. QUALIFYING CIRCUMSTANCE If the purpose of the offender is to assign the offended party to some immoral traffic (prostitution), the penalty is higher CIRCUMSTANCES If the purpose of the kidnapping or detention is to enslave the offended party Lasallian Commission on Bar Operations

CRIME COMMITTED Slavery

if the offender is not engaged in the business of prostitution. if the offender is engaged in the business of prostitution.

Slavery White slave trade under Article 341.

This is distinguished from illegal detention by the purpose. If the purpose of the kidnapping or detention is to enslave the offended party, slavery is committed. 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 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: Sec. 4, 5 (prohibited acts) of RA 9208 (AntiTrafficking of Persons Act)

ART. 273 EXPLOITATION OF CHILD LABOR ELEMENTS a. b. c.

Offender retains a minor in his services; It is against the will of the minor; 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.

The existence of an indebtedness constitutes no legal justification for holding a person and depriving him of his freedom to live where he wills. NOTE: If the minor agrees to serve the accused, no crime is committed, even if the service is rendered to pay an ascendant’s alleged debt. ANTI-CHILD LABOR ACT OF 2003 (RA 9231) RA 9231 amended RA 7610 by imposing heavier penalties on parents, guardians and employers of children 18 yrs. And below who commit any of the following acts: (1) Making the child work beyond the maximum no. of working hours provided by said law; (2) Misappropriating the earnings of the child and/or failure to set up a trust fund for the latter and render a semi-annual accounting of such; (3) Using, procuring or offering the child for purposes of prostitution or pornographic activities; 169

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(4)

(5) (6)

Criminal Law

Using, procuring or offering the child for illicit activities, such as trafficking of drugs and other illegal substances; Making the child work in hazardous working conditions; Subjecting the child to various forms of slavery as defined in RA 9208, incl. Trafficking of children, recruitment of child soldiers, etc.

ART. 274 SERVICES RENDERED UNDER COMPULSION IN PAYMENT OF DEBT

CHAPTER TWO: SECURITIES

CRIMES

AGAINST

SECTION ONE: ABANDONMENT OF HELPLESS PERSONS AND EXPLOITED MINORS ART. 275 ABANDONMENT OF PERSON IN DANGER AND ABANDONMENT OF ONE’S OWN VICTIM

ELEMENTS ACTS PUNISHED a. b. c.

Offender compels a debtor to work for him, either as a household servant or farm laborer; It is against the debtor‘s will; Purpose is to require or enforce the payment of debt

(1)

RA 9231 (Anti-Child Labor Act of 2003) Sec. 12-D thereof prohibits “worst forms of child labor” which includes: (1) All forms of slavery, as defined under the "Antitrafficking in Persons Act of 2003", or practices similar to slavery such as sale and trafficking of children, debt bondage and serfdom and forced or compulsory labor, including recruitment of children for use in armed conflict; or (2) The use, procuring, offering or exposing of a child for prostitution, for the production of pornography or for pornographic performances; or (3) The use, procuring or offering of a child for illegal or illicit activities, including the production and trafficking of dangerous drugs and volatile substances prohibited under existing laws; or (4) Work which by its nature or the circumstances in which it is carried out, is hazardous or likely to be harmful to the health, safety or morals of children. SERVICES UNDER COMPULSION AND ANTI-CHILD LABOR ACT DISTINGUISHED SERVICES UNDER COMPULSION

RA 9231 (ANTI-CHILD LABOR ACT OF 2003)

Victim is not necessarily a minor The debtor is the one compelled to work for the offender

Victim must be a minor

Limited to household work or farm labor

There is no limitation as to the form of service

Minor is compelled to render services for the supposed debt of his parents or guardian

Lasallian Commission on Bar Operations

Failing to render assistance to any person whom the offender finds in an uninhabited place wounded or in danger of dying when he can render such assistance without detriment to himself, unless such omission shall constitute a more serious offense. Elements a. The place is not inhabited; b. Accused found there a person wounded or in danger of dying; c. Accused can render assistance without detriment to himself; d. Accused fails to render assistance. NOTE: The offender is liable only when he can render such assistance without detriment to himself, unless the omission constitutes a more serious offense. Where the person is already wounded and already in danger of dying, there is an obligation to render assistance only if he is found in an uninhabited place.

(2) (3)

Failing to help or render assistance to another whom the offender has accidentally wounded or injured; 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 take him to a safe place. NOTE: It is immaterial even if the offender has no knowledge that the child is under seven years of age.

This does not apply where a person intentionally wounds another and leaves the offended party in an uninhabited place. An uninhabited place is determined by possibility of person receiving assistance from another. Even if there are many houses around, the place may still be uninhabited if possibility of receiving assistance is remote. 170

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If what happened was an accident at first, there would be no liability pursuant to Article 12 (4) of the Civil Code – damnum absque injuria. But if you abandon your victim, you will be liable under Article 275. Here, the character of the place is immaterial. As long as the victim was injured because of the accident caused by the offender, the offender would be liable for abandonment if he would not render assistance to the victim.

c.

(2)

ART. 276 ABANDONING A MINOR ELEMENTS a. b. c. d.

Offender has the custody of a child; The child is under seven years of age; He abandons such child; He has no intent to kill the child when the latter is abandoned.

(1) (2)

When the death of the minor resulted from such abandonment; or 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. It must be conscious, deliberate, and permanent. Intent to kill cannot be presumed from the death of the child. 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.

ART. 277 ABANDONMENT OF MINOR BY PERSON ENTRUSTED WITH HIS CUSTODY; INDIFFERENCE OF PARENTS

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 a. Offender has charge of the rearing or education of a minor; b. He delivers said minor to a public institution or other persons;

Lasallian Commission on Bar Operations

His station in life requires such education and his financial condition permits it.

“Indifference of parents” – while financially capable of supporting the needs of children, the parents deliberately neglect to support the educational requirements of the children through plain irresponsibility caused by wrong social values. ABANDONMENT OF MINOR BY PERSONS ENTRUSTED WITH CUSTODY (ART. 277) The custody of the offender is specific, that is, the custody for the rearing or education of the minor Minor is under 18 yrs. of age Minor is delivered to a public institution or other person

ACTS PUNISHED (1)

Neglecting his (offender’s) children by not giving them the education which their station in life requires and financial condition permits. Elements a. Offender is a parent; b. He neglects his children by not giving them education; NOTE: Failure to give education must be due to deliberate desire to evade the obligation. If the parents cannot give education because of insufficient means, they will not be liable. c.

QUALIFYING CIRCUMSTANCES

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.

ABANDONMENT OF MINOR (ART. 276) The custody of the offender is stated in general

Minor is under 7 years of age Minor is abandoned in such a way as to deprive him of the care and protection that his tender years need

ART. 278 EXPLOITATION OF MINORS ACTS PUNISHED (1)

(2)

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; Employing children under 16 years of age who are not 171

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(3)

(4)

(5)

Criminal Law

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; 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; Delivering a child under 16 years of age gratuitously to any person following any of the callings enumerated in paragraph 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; and 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.

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.

CIRCUMSTANCE QUALIFYING THE OFFENSE

(1)

If the delivery of the child to any person following any of the calling of acrobat, gymnast, rope-walker, diver, wild-animal tamer or circus manager or to any habitual vagrant or beggar is made in consideration of any price, compensation or promise, the penalty is higher. (2) The offender is engaged in a kind of business that would place the life or limb of the minor in danger, even though working for him is not against the will of the minor.

Illustration: The owner of a circus employed a child under 16 years of age to do a balancing act on the tightrope. The crime committed is exploitation of minors (unless the employer is the ascendant of the minor who is not below 12 years of age). If the child fell and suffered physical injuries while working, the employer shall be liable for said physical injuries in addition to his liability for exploitation of minors.

ART. 279 ADDITIONAL PENALTIES FOR OTHER OFFENSES ADDITIONAL PENALTIES FOR OTHER OFFENSES

(1)

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.

(2)

The imposition of the penalties provided in the preceding articles shall not prevent the imposition upon the same offender for any other felony punished by the Code. Under Art. 60 of the Pres. Decree 603, the acts mentioned in Art. 59 committed by the parents and guardians are punished with imprisonment from 2 to 6 months or a fine not exceeding P500 or both, unless a higher penalty is provided in the Revised Penal Code or special laws.

SECTION TWO: DWELLING

TRESPASS

TO

ART. 280 QUALIFIED TRESPASS TO DWELLING ELEMENTS

AGE: Must be below 16 years. At this age, the minor is still growing.

If the employer is an ascendant, the crime is not committed, unless the minor is less than 12 years old. Because if the employer is an ascendant, the law regards that he would look after the welfare and protection of the child; hence, the age is lowered to 12 years. Below that age, the crime is committed. Article 278 has no application if minor is 16 years old and above. But the exploitation will be dealt with by Republic Act No. 7610. Lasallian Commission on Bar Operations

a. b. c.

Offender is a private person; He enters the dwelling of another; Such entrance is against the latter’s will. TWO FORMS OF TRESPASS

(1) Qualified trespass to dwelling This may be committed by any private person who shall enter the dwelling of another against the latter’s will. The house must be inhabited at the time of the trespass although the occupants are out. Or offender breaks in with force and violence (Article 280). 172

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(2) Trespass to property Offender enters the closed premises or fenced estate of another; such close premises or fenced estate is uninhabited; there is a manifest prohibition against entering such closed premises or fenced estate; and offender has not secured the permission of the owner or caretaker thereof (Article 281).

(1)

See: Presidential Decree No. 1227 regarding unlawful entry into any military base in the Philippines. Section 1 provides that any person, without express or implied permission or authority of the base commander or his duly authorized representatives, who re-enters or is found within any military base after having been removed and ordered not to re-enter by the base commander or his duly authorized representative, shall be punished with imprisonment and fine, or both, as provided under the law

Trespass may be committed by the owner of a dwelling.

DWELLING It means any building or structure exclusively devoted for rest and comfort. 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. So, a person’s room in a hotel may be considered a dwelling. It also includes a room where one resides as a boarder.

Firing a revolver in the air by persons attempting to force their way into a house. The flourishing of a bolo against inmates of the house upon gaining an entrance

(2)

Prohibition is not necessary when violence or intimidation is employed by the offender.

QUALIFIED TRESPASS TO DWELLING AND VIOLATION OF DOMICILE, DISTINGUISHED Unlike qualified trespass to dwelling, violation of domicile may be committed only by a public officer or employee and the violation may consist of any of the three acts mentioned in Article 128 – (1) Entering the dwelling against the will of the owner without judicial order; (2) Searching papers or other effects found in such dwelling without the previous consent of the owner thereof; and (3) Refusing to leave the dwelling when so requested by the owner thereof, after having surreptitiously entered such dwelling. CASES WHEN ARTICLE 280 DOES NOT APPLY

NOTE: • 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 of whom was injured by him, the crime committed will be trespass to dwelling and frustrated homicide, 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. Examples of Trespass by means of Violence (1) Pushing the door violently and maltreating the occupants after entering. (2) Cutting of a ribbon or string with which the door latch of a closed room was fastened. The cutting of the fastenings of the door was an act of violence. (3) Wounding by means of a bolo, the owner of the house immediately after entrance Examples of Trespass by Means of Intimidation Lasallian Commission on Bar Operations

When the purpose of the entrance is to prevent serious harm to himself, the occupant or third persons; When the purpose of the offender in entering is to render some service to humanity or justice; Anyone who shall enter cafes, taverns, inns and other public houses while they are open.

(1)

(2) (3)

Pursuant to Section 6, Rule 113 of the Rules of Court, 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.

ART. 281 OTHER FORMS OF TRESPASS ELEMENTS a. b. c. d.

Offender enters the closed premises or the fenced estate of another; The entrance is made while either of them is uninhabited; The prohibition to enter is manifest; and The trespasser has not secured the permission of the owner or the caretaker thereof. 173

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QUALIFIED TRESPASS TO DWELLING AND OTHER

(2)

Making such threat without the offender attaining his purpose;

(3)

Threatening another with the infliction upon his person, honor or property or that of his family of any wrong amounting to a crime, the threat not being subject to a condition.

FORMS OF TRESPASS, DISTINGUISHED QUALIFIED TRESSPASS TO DWELLING (ART. 280) Offender is a private person Offender enters a dwelling house

Place entered is inhabited Act constituting the crime is entering the dwelling against the will of the owner Prohibition to enter is express or implied

OTHER FORMS OF TRESPASS (ART. 281) The offender is any person (either private individual or public officer) Offender enters closed premises or fenced estate without securing the permission of the owner or caretaker thereof Prohibition to enter must be manifest It is the entering the closed premises or the fenced estate without securing the permission of the owner or caretaker thereof Prohibition to enter must be manifest

“Premises” Signifies distinct and definite locality. It may mean a room, shop, building or definite area, but in either case, locality is fixed.

SECTION THREE: COERCION

THREATS

AND

Elements a. That the offender threatens another person with the infliction upon the latter’s person, honor or property, or upon that of the latter’s family, of any wrong; b. That such wrong amounts to a crime; c. That the threat is not subject to a condition NOTE: 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. “THREAT” - A declaration of an intention or determination to injure another by the commission upon his person, honor or property or upon that of his family of some wrong which may or may not amount to a crime. “INTIMIDATION” - An indispensable element in the crime of threat. The very essence of threat is to sow fear, anxiety and insecurity in the mind of the offended party. It is done by threatening to commit the crime upon the person, honor, and property of the offended party. There is a

promise of some future harm or injury.

ART. 282 GRAVE THREATS ACTS PUNISHED (1)

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 a. That the offender threatens another person with the infliction upon the latter’s person, honor or property, or upon that of the latter’s family, of any wrong; b. That such wrong amounts to a crime; c. That there is a demand for money or that any other condition is imposed, even though not unlawful; d. That the offender attains his purpose

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To constitute grave threats, the threats must refer to a future wrong and is committed by acts or through words of such efficiency to inspire terror or fear upon another. It is, therefore, characterized by moral pressure that produces disquietude or alarm. The crime is consummated as soon as the threats came to the knowledge of the offended party. QUALIFYING CIRCUMSTANCE (1) If threat was made in writing; or (2) Through a middleman. THREAT

COERCION

Intimidation is essential

The essence of coercion is violence or intimidation.

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Intimidation is future and conditional

Force or violence must be imminent, actual, and immediate Intimidation is directed against the victim only

Intimidation is directed against the victim or his family THREAT In threat, the danger to the victim is not instantly imminent nor the gain of the culprit immediate.

As to intimidation The intimidation is future and conditional.

ROBBERY In robbery, the robber makes the danger involved in his threats directly imminent to the victim and the obtainment of his gain immediate, thereby also taking rights to his person by the opposition or resistance which the victim might offer Intimidation is actual and immediate

As to nature of intimidation It may be through Intimidation is personal an intermediary As to subject matter May refer to the Refers to personal property person, honor or property. As to intent to gain Intent to gain is not an essential element.

d.

Offender has attained his purpose or, that he has not attained his purpose.

A person may be convicted of light threats if although the harm threatened is not in the nature of crime but there is a demand for money or any other condition is imposed, even though lawful. Thus, if X would threaten Y, a physician, who is not paying taxes to the Government to report to the BIR unless said physician would come across with P5,000, this crime is committed. The threat to report to the BIR does not amount to a wrong constituting a crime. Blackmailing may be punished under Article 283.

ART. 284 BOND FOR GOOD BEHAVIOR The law imposes the penalty of bond for good behavior only in case of grave and light threats. If the offender cannot post the bond, he will be banished by way of destierro to prevent him from carrying out his threat. WHEN A PERSON IS REQUIRED TO GIVE BAIL BOND (1)

(2) There is intent to gain

When he threatens another circumstances mentioned in Art. Threats). When he threatens another circumstances mentioned in Art. Threats).

under the 282 (Grave under the 283 (Light

This is an additional penalty. GRAVE THREATS (ART.

LIGHT THREATS (ART.

282)

283)

Acts threatened amounts to a crime.

Acts threatened does not amount to a crime. Even if the harm intended is in the nature of a crime, if made orally and in the heat of anger and after the oral threat, the issuer of the threat did not pursue the act, the crime is only other light threats under Article 283.

BOND TO KEEP THE PEACE (ART. 35)

BOND FOR GOOD BEHAVIOR (ART. 365)

It is applicable to any particular case.

It is applicable only to cases of grave threats and light threats. If the offender fails to give the bond, he shall be sentenced to destierro.

If the offender fails to give bond, he shall be detained for a period not exceeding 6 months.

ART. 285 OTHER LIGHT THREATS ACTS PUNISHED

ART. 283 LIGHT THREATS ELEMENTS a. Offender makes a threat to commit a wrong; b. The wrong does not constitute a crime; c. There is a demand for money or that other condition is imposed, even though not unlawful; Lasallian Commission on Bar Operations

(1)

(2)

Threatening another with a weapon, or by drawing such weapon in a quarrel, unless it be in lawful selfdefense; Orally threatening another, in the heat of anger, with some harm constituting a crime, without persisting in 175

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the idea involved in his threat; Orally threatening to do another any harm not constituting a felony.

(3)

another had not the authority of law or the right to do so, or in other words, that the restraint shall not be made under authority of law or in the exercise of any lawful right.

WITHOUT BEING INCLUDED IN THE PROVISIONS OF THE NEXT PRECEDING ARTICLE

PURPOSE OF THE LAW

There must be no demand for money or there is no condition imposed. It must likewise be not punished under paragraph 2 of Article 282.

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.

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.

Grave coercion arises only if the act which the offender prevented another to do is not prohibited by law or ordinance. If the act prohibited was illegal, he is not liable for grave coercion.

NOTE: Whether it is grave or light threats, the crime is

committed even in the absence of the person to whom the threat is directed. GRAVE THREATS AND LIGHT THREATS (ART.

OTHER LIGHT THREATS (ART. 283)

282 & ART. 283) In certain cases, demand for money is necessary In certain cases, condition is imposed Threat is deliberate

No demand for money No condition is imposed Threat is not deliberate

ART. 286 GRAVE COERCIONS ACTS PUNISHED Preventive – Preventing another, by means of violence, threats or intimidation, from doing something not prohibited by law; Compulsive – Compelling another, by means of violence, threats or intimidation, to do something against his will, whether it be right or wrong.

(1)

(2)

ELEMENTS

Illustration: Compelling the debtor to deliver some of his properties to pay a creditor will amount to coercion although the creditor may have a right to collect payment from the debtor, even if the obligation is long overdue. The violence employed in grave coercion must be immediate, actual, or imminent. In the absence of actual or imminent force or violence, coercion is not committed. The essence of coercion is an attack on individual liberty. The physical violence is exerted to: 1. Prevent a person from doing something he wants to do; 2. Compel him to do something he does not want to do. If a man compels another to show the contents of the latter’s pockets, and takes the wallet, this is robbery and not grave coercion. The intimidation is a means of committing robbery with violence or intimidation of persons. Violence is inherent in the crime of robbery with violence or intimidation upon persons and in usurpation of real properties because it is the means of committing the crime. Exception to the rule that physical violence must be exerted: where intimidation is so serious that it is not a threat anymore – it approximates violence. WHEN PRISION MAYOR SHALL BE IMPOSED

a. b. c.

d.

A person prevented another from doing something not prohibited by law, or That he compelled him to do something against his will; be it right or wrong; The prevention or compulsion be effected by violence, threats or intimidation control the will of the offended party; and The person that restrained the will and liberty of

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If the coercion is committed in violation of the exercise of the right of suffrage. (2) If the coercion is committed to compel another to perform any religious act. (3) If the coercion is committed to prevent another from performing any religious act (1)

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INTERRUPTION OF RELIGIOUS WORSHIP, ACT TENDING TO PREVENT THE METTING OF THE ASSEMBLY AND SIMILAR BODIES, VIOLATION OF PARLIAMENTARY IMMUNITY, AND LIGHT COERCION, DISTINGUISHED CIRCUMSTANCES A public officer who shall prevent by means of violence or threats the ceremonies or manifestations of any religion Any person who, by force, prevents the meeting of a legislative body 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 when the violence is employed to seize anything belonging to the debtor of the offender

CRIME COMMITTED Interruption of religious worship (Art 132)

Act tending to prevent the meeting of the Assembly and similar bodies (Art 143) Violation of parliamentary immunity

In the other light coercions or unjust vexation embraced in the second paragraph, violence is absent UNJUST VEXATION Any act committed without violence, but which unjustifiably annoys or vexes an innocent person amounts to light coercion. (People vs. Gozum) 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. It is distinguished from grave coercion under the first paragraph by the absence of violence. Illustration: Persons stoning someone else’s house. So long as stoning is not serious and it is intended to annoy, it is unjust vexation. It disturbs the peace of mind. PURPOSE

(Art 145)

light coercion (Art. 287)

The owner of a thing has no right to prohibit the interference of another, if the interference is necessary to avert an imminent danger and the threatened damage, compared to the damage arising to the owner from the interference, is much greater. (Art. 432, CC

The main purpose of the statute penalizing coercion and unjust vexation is precisely to enforce the principle that no person may take the law into his hands and that our government is one of laws, not of men. The essence of the crimes is the attack on individual liberty.

ART. 288 OTHER SIMILAR COERCIONS; (COMPULSORY PURCHASE OF MERCHANDISE AND PAYMENT OF WAGES BY MEANS OF TOKENS) ACTS PUNISHED (1)

Forcing or compelling, directly or indirectly, or knowingly permitting the forcing or compelling of the laborer or employee of the offender to purchase merchandise of commodities of any kind from him; Elements a. Offender is any person, agent or officer of any association or corporation; b. He or such firm or corporation has employed laborers or employees; c. He forces or compels, directly or indirectly, or knowingly permits to be forced or compelled, any of his or its laborers or employees to purchase merchandise or commodities of any kind from him or from said firm or corporation

(2)

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.

ART. 287 LIGHT COERCIONS ELEMENTS a. b. c.

d.

Offender must be a creditor; He seizes anything belonging to his debtor; The seizure of the thing be accomplished by means of violence or a display of material force producing intimidation; The purpose of the offender is to apply the same to the payment of the debt.

The first paragraph 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.

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ACTS PUNISHED Elements a. Offender pays the wages due a laborer or employee employed by him by means of tokens or object; b. Those tokens or objects are other than the legal tender currency of the Philippines; c. Such employee or laborer does not expressly request that he be paid by means of tokens or objects. As a 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) 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,

The organizing, maintaining or preventing coalitions of capital or labor, strike, or lockout through violence or threats. The act should not be a more serious offense. If death or some serious physical injuries are cause in an effort to curtail the exercise of the rights of the laborers and employers, the act should be punished in accordance with the other provisions of the Code.

(1)

(2)

Peaceful picketing is part of the freedom of speech and is not covered by this article. Preventing employees or laborers from joining any registered labor organization is punished under Art. 248 of the Labor Code.

CHAPTER THREE: DISCOVERY REVELATION OF SECRETS

ART. 290 DISCOVERING SECRETS THROUGH SEIZURE OF CORRESPONDENCE

Labor Code) Compelling an employee to purchase merchandise or commodities of the employer or compelling him to receive tokens or objects in payment of his wages are punished under the Revised Penal Code.

ELEMENTS a.

Inducing an employee to give up any part of his wages by force, stealth, intimidation, threat or by any other means is unlawful under Article 116 of the Labor Code, not under the Revised Penal Code.

b. c. d.

ART. 289 FORMATION, MAINTENANCE AND PROHIBITION OF COMBINATION OF CAPITAL OR LABOR THROUGH VIOLENCE OR THREATS *Repealed by the labor code* ELEMENTS a.

b.

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; The purpose is to organize, maintain or prevent coalitions of capital or labor, strike of laborers or lockout of employees.

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AND

Offender is a private individual or even a public officer not in the exercise of his official function; He seizes the papers or letters of another; The purpose is to discover the secrets of such another person; Offender is informed of the contents of the papers or letters seized.

Seize means to place in the control of someone a thing or to give him the possession thereof. Purpose: 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, believes otherwise. This is not applicable to parents with respect to minor children. The last paragraph of Article 290 expressly makes the provision of the first and second paragraph thereof inapplicable to parents, guardians, or persons entrusted 178

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with the custody of minors placed under their care or custody, and to the spouses with respect to the papers or letters of either of them. The teachers or other persons entrusted with the care and education of minors are included in the exceptions. In a case decided by the Supreme Court, a spouse who rummaged and found love letters of husband to mistress does not commit this crime, but the letters are inadmissible in evidence because of unreasonable search and seizure. The ruling held that the wife should have applied for a search warrant. CIRCUMSTANCES If the act had been executed with intent of gain If the purpose was not to defraud, but only to cause damage to another’s 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

CRIME COMMITTED Estafa would merit the qualification of damage to property Unjust Vexation

Revelation of secrets discovered not an element of the crime but only increases the penalty. An Act To Prohibit And Penalize Wire Tapping And Other Related Violations Of The Privacy Of Communication, And For Other Purposes (RA No. 4200) Section 1. Unlawful acts by any person or participant, not authorized by all the parties to any private communication or spoken word. (1) To tap any wire or cable; (2) To use any other device or arrangement to secretly overhear, intercept or record such communication by using a device known as dictaphone, dictagraph, detectaphone, walkietalkie or tape-recorder; (3) To knowingly possess any tape/wire or disc record, or copies of any communication or spoken word; (4) To replay the same for any person or persons; (5) To communicate the contents thereof, verbally or in writing; (6) To furnish transcriptions thereof, whether complete or partial. Exception: When a peace officer is authorized by written order from the court. Lasallian Commission on Bar Operations

Any recording, communication or spoken word obtained in violation of the provisions of this Act – inadmissible in evidence in any judicial, quasi-judicial or administrative hearing or investigation.

ART. 291 REVEALING SECRETS WITH ABUSE OF OFFICE ELEMENTS a. b. c.

Offender is a manager, employee or servant; He learns the secrets of his principal or master in such capacity; He reveals such secrets.

SECRET MUST BE LEARNED BY REASON OF THEIR EMPLOYMENT 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 the principal or master suffered damages. The 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. No one has a right to the personal privacy of another.

ART. 292 REVELATION OF INDUSTRIAL SECRETS ELEMENTS a.

b.

c. d.

Offender is a person in charge, employee or workman of a manufacturing or industrial establishment; 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.

A business secret must not be known to other business entities or persons. It is a matter to be discovered, known and used by and must belong to one person or entity exclusively. The secrets here must be those relating to the manufacturing processes invented by or for a manufacturer and used only in his factory or in a limited 179

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number of them, otherwise, as when such processes are generally used, they will not be a secret. The act constituting the crime is revealing the secret of the industry of employer. When, the offender used for his own benefit, without revealing it to others, he is not liable under this article.

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CRIMES AGAINST PROPERTY CHAPTER ONE: Robbery in General Art. 293. Who are guilty of robbery Section 1: Robbery with violence against or intimidation of persons Art. 294. Robbery with violence against or intimidation of persons; Penalties Art. 295. Robbery with physical injuries, committed in an uninhabited place and by a band, or with the use of firearm on a street, road or alley Art. 296. Definition of a band and penalty incurred by the members thereof Art. 297. Attempted and frustrated robbery committed under certain circumstances Art. 298. Execution of deeds by means of violence or intimidation Section 2: Robbery by the use of force upon things Art. 299. Robbery in an inhabited house or public building or edifice devoted to worship Art. 300. Robbery in an uninhabited place and by a band Art. 301. What is an inhabited house, public building or building dedicated to religious worship and their dependencies Art. 302. Robbery is an uninhabited place or in a private building Art. 303. Robbery of cereals, fruits, or firewood in an uninhabited place or private building Art. 304. Possession of picklocks or similar tools Art. 305. False keys CHAPTER TWO: Brigandage Art. 306. Who are brigands; Penalty Art. 307. Aiding and abetting a band of brigands CHAPTER THREE: Theft Art. 308. Who are liable for theft Art. 309. Penalties Art. 310. Qualified theft Art. 311. Theft of the property of the National Library and National Museum CHAPTER FOUR: Usurpation Art. 312. Occupation of real property or usurpation of real rights in property Art. 313. Altering boundaries or landmarks CHAPTER FIVE: Culpable Insolvency Art. 314. Fraudulent insolvency CHAPTER SIX: Swindling and other deceits Art. 315. Swindling (estafa) Art. 316. Other forms of swindling Art. 317. Swindling a minor Art. 318. Other deceits CHAPTER SEVEN: Chattel Mortgage Art. 319. Removal, sale or pledge of mortgaged property CHAPTER EIGHT: Arson and Other Crimes Involving Destructions Art. 321. Other forms of arson Art. 322. Cases of arson not included in the preceding articles Art. 323. Arson of property of small value Art. 324. Crimes involving destruction Art. 325. Burning one's own property as means to commit arson 180

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Art. 326. Setting fire to property exclusively owned by the offender Art. 326-A. In cases where death resulted as a consequence of arson Art. 326-B. Prima facie evidence of arson CHAPTER NINE: Malicious Mischief Art. 327. Who are liable for malicious mischief Art. 328. Special Cases of Malicious Mischief Art. 329. Other mischiefs Art. 330. Damage and obstruction to means of communication Art. 331. Destroying or damaging statues, public monuments or paintings CHAPTER TEN: Exemption from Criminal Liability In Crimes Against Property Art. 332. Persons exempt from criminal liability

CHAPTER ONE: ROBBERY IN GENERAL ART. 293 WHO ARE GUILTY OF ROBBERY ROBBERY It is the taking of personal property belonging to another with intent to gain, by means of violence against, or intimidation of any person or using force upon anything. CLASSIFICATION OF ROBBERY Robbery with violence against, or intimidation of persons. (Arts. 294, 297, 298) Robbery by use of force upon things. (Arts. 299 & 302)

(1) (2)

ELEMENTS OF ROBBERY IN GENERAL a. b. c. d.

That there be personal property belonging to another; That there is unlawful taking of that property; That the taking must be with intent to gain; and That there is violence against or intimidation of any person or force upon things

“TAKING” Means depriving the offended party of possession of the thing taken with the character of permanency. Taking of personal property need not be immediately after the intimidation. PROPRERTY MUST BE PERSONAL PROPERTY Property taken must be personal property, for if real property is occupied or real right is usurped by means of violence against or intimidation of person, the crime is usurpation. (Art. 312) Prohibitive articles may be the subject matter of robbery, such as opium. Lasallian Commission on Bar Operations

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The person from whom the personal property is taken need not be the owner. Possession of the property is sufficient. A co-owner or a partner cannot commit robbery or theft with regard to the co-ownership or partnership property. As a general rule, the unlawful taking of personal property belonging to another involves intent to gain on the part of the offender. Absence of intent to gain will make the taking of personal property grave coercion if there is violence used. (Art. 286) Exists when it causes the fear or fright of the victim. It is not necessary that violence or intimidation is present from the beginning. The violence of intimidation must be present before the taking of personal property is complete. When the violence results in: (1) Homicide; (2) Rape; (3) Intentional mutilation; or (4) Any of the serious physical injuries penalized in paragraphs 1 and 2 of Art. 263, It will be robbery complexed with any of those crimes under Art. 294, even if the taking was already complete when the violence was used by the offender. Use of force upon things will not make the taking of personal property robbery, if the culprit never entered a house or building. But such entrance is not necessary when the robbery is committed by breaking wardrobes, chests, or any other kind of locked or sealed furniture or receptacle inside an inhabited house, a public building or edifice devoted to religious worship, or by taking such furniture or objects away to be broken or forced open outside (subdivision (b) of Art. 299) or when the robbery in an uninhabited building, other than a public building or edifice devoted to religious worship, is committed by breaking any wardrobe, chest, or any sealed or closed furniture or receptacle, or by removing a closed or sealed receptacle even if the same be broken open elsewhere.

(pars. 4 and 5 of Art. 302) WHEN IS UNLAWFUL TAKING COMPLETE ROBBERY WITH VIOLENCE AGAINST OR INTIMIDATION OF PERSONS The unlawful taking is complete even if the culprit has no

ROBBERY WITH FORCE UPON THINGS

The thing must be taken out of the building in 181

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opportunity to dispose the property.

order to be considered consummated.

ART. 294 ROBBERY WITH VIOLENCE AGAINST OR INTIMIDATION OF PERSONS

There is NO frustrated stage

There is a frustrated stage

This article punishes robbery with homicide, rape, intentional mutilation, arson, serious physical injuries or with clearly unnecessary violence. These offenses are known as special complex crimes.

VIOLENCE AGAINST OR INTIMIDATION OF PERSONS Taking of personal property belonging to another is always robbery.

Value of personal property taken is immaterial. Penalty depends – (a) on the result of the violence used; and (b) on the existence of intimidation.

USE OF FORCE UPON THINGS Taking is robbery only if the force is used either to enter the building or to break doors, wardrobes, chests, or any other kind of locked or sealed furniture or receptacle inside the building or to force them open outside after taking the same from the building. (Arts. 299 and 302) Value of personal property taken is material.

On the occasion and by reason mean that homicide or serious physical injuries must be committed in the course or because of the robbery. ACTS PUNISHED UNDER ART. 294 (1) (2) (3) (4) (5) (6)

Robbery with homicide Robbery with rape Robbery with intentional mutilation Robbery with arson Robbery with serious physical injuries Simple robbery

Inhabited Bldg.:

ROBBERY WITH HOMICIDE

Penalty is based – (a) on the value of the property taken; and (b) on whether the offenders carry arms.

a.

Uninhabited Bldg.: Penalty is based only on the value of the property taken.

b. c. d.

RA 6539 or the Anti-Carnapping Act of 1972 applies when the property taken in robbery is a motor vehicle. Section 2 defines “carnapping" as 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. On the other hand, a “motor vehicle" is any vehicle propelled by any power other than muscular power using the public highways, but excepting road rollers, trolley cars, street-sweepers, sprinklers, lawn mowers, bulldozers, graders, fork-lifts, amphibian trucks, and cranes if not used on public highways, vehicles, which run only on rails or tracks, and tractors, trailers and traction engines of all kinds used exclusively for agricultural purposes. Trailers having any number of wheels, when propelled or intended to be propelled by attachment to a motor vehicle, shall be classified as separate motor vehicle with no power rating.

SECTION 1: ROBBERY WITH VIOLENCE AGAINST OR INTIMIDATION OF PERSONS Lasallian Commission on Bar Operations

ELEMENTS The taking of personal property with violence or intimidation against persons; That the property taken belongs to another; The taking was done with animo lucrandi; and On the occasion of the robbery or by reason thereof, homicide was committed. (People vs.

Baccay) “Homicide” is used in its generic sense; it incudes parricide and murder. Hence, there is no Robbery with Murder as the crime is still Robbery with Homicide. Homicide may precede robbery or may occur after robbery. What is essential is that the offender must have intent to take personal property before the killing. The original criminal design of the offender must be to rob, and the killing was perpetrated with a view to the consummation of Robbery. Where the offender’s intention to take personal property of the victim arises as an afterthought, where his original intent was to kill, he is guilty of two separate crimes of homicide or murder, as the case may be, and theft. There is robbery with homicide even if the person killed was a bystander and not the person robbed or even if it was one of the offenders. The law does not require the victim of the robbery be also the victim of homicide. 182

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Robbery with homicide exists even if the death of the victim supervened by mere accident. It is sufficient that a homicide resulted by reason or on the occasion of the robbery. ROBBERY WITH RAPE The offender must have the intent to take the personal property belonging to another with intent to gain, and such intent must precede the rape. All the robbers may be held liable for robbery with rape even if not all of them committed the crime of rape based on the concept of conspiracy. This article also applies even if the victim of the rape committed by the accused was herself a member of the gang of robbers. There is no crime of Robbery with Multiple Homicide or Robbery with Multiple Counts of Rape. Although there is more than one instance of homicide/murder or rape, they shall be considered as embraced under one special complex crime of either Robbery with Homicide or Robbery with Rape. Neither shall the additional rape/s or homicide/s be considered aggravating. If the primary intent was to rape and the taking away of the belongings of the victim was only a mere afterthought, two separate felonies are committed: Rape and Theft or Robbery (People v. Naag) ROBBERY WITH INTENTIONAL MUTILATION Robbery and intentional mutilation must both be consummated to be classified as robbery with intentional mutilation. There must be intent to mutilate, for if mutilation merely resulted as a consequence of the injury inflicted, the crime would be robbery with serious physical injuries. ROBBERY WITH ARSON In the case of robbery with arson, it is essential that the robbery precedes the arson. There must be intent to commit robbery and no killing, rape or intentional mutilation should be committed in the course of the robbery, or else, arson will only be considered an aggravating circumstance of the crime actually committed. ROBBERY WITH SERIOUS PHYSICAL INJURIES Lasallian Commission on Bar Operations

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To be considered as Robbery with Physical injuries, the injuries inflicted must be serious, otherwise, they shall be absorbed in the robbery. 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 becomes ill or incapacitated for labor for more than 30 days. However, if the less serious or slight physical injuries were committed, that would constitute a separate offense. When by reason or on occasion of robbery the physical injuries results to insanity, imbecility, impotency, or blindness. 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. SIMPLE ROBBERY Involves slight or less serious physical injuries, which are absorbed in the crime of robbery as an element thereof. Violence or intimidation may enter at any time before the owner is finally deprived of his property. This is so because asportation is a complex fact, a whole divisible into parts, a series of acts, in the course of which personal violence or intimidation may be injected.

ART. 295 ROBBERY WITH PHYSICAL INJURIES, COMMITTED IN AN UNINHABITED PLACE AND BY A BAND, OR WITH THE USE OF FIREARM ON A STREET, ROAD, OR ALLEY Robbery with violence against or intimidation of persons under Par. 3, 4, 5 (serious physical injuries, clearly unnecessary violence, OR simple robbery) of Article 294 is Qualified if 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 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, the offender shall be punished by the maximum periods of the proper penalties prescribed in 294. 183

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Art. 295 speaks of aggravating circumstances applicable when physical injuries mentioned in paragraphs 2, 3, and 4 were inflicted by reason or on occasion of robbery or where only intimidation was used in the commission of Robbery. As special aggravating circumstances they must be alleged in the information otherwise, even if proven, they can be offset by an ordinary mitigating circumstances having been reduced into the class of generic aggravating circumstances. Conspiracy is presumed when robbery is by band.

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

There is attempted or frustrated robbery A homicide is committed on the same occasion.

(1) (2)

SPECIAL COMPLEX CRIME When robbery is attempted or frustrated but homicide is attendant. The penalty is the same whether robbery is attempted or frustrated. The word “homicide” is used in its generic sense. It thus includes multiple homicides, murder, parricide, or even infanticide.

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

ROBBERY BY A BAND, WHEN COMMITTED a. b.

When at least four armed malefactors take part in the commission of a robbery, it is deemed committed by a band. Even though only two of the malefactors were armed, it is deemed to be committed by a band. PENALTY When any of the firearms used in the commission of robbery is not licensed, the 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. REQUISITES FOR LIABILITY OF ACTS OF OTHER MEMBERS a. b. c. d.

Member of the band; Present at the commission of robbery; Other members committed an assault; and He did not attempt to prevent the assault.

c.

This is Robbery by the employment of violence or intimidation and the purpose is not to take personal property but to compel a person to sign a document. It could be public instrument or private document since the Spanish text says “escritura publico o documento” the word public describing only the word instrument. (See Reyes, RPC) There must be intent to defraud another by means or through the contents of the document so that the instrument or document must not be a void document. Art. 298 applies to private or commercial document, but it shall not apply of the document is void. When the offended party is under the obligation to sign, execute or deliver the document under the law, the crime committed is grave coercion.

If the mentioned requisites are present, the member(s) shall be punished as principal of any of the assaults committed by the band.

SECTION 2: ROBBERY BY THE USE OF FORCE UPON THINGS

There is no crime as “robbery with homicide in band”. Band is only ordinary aggravating circumstance in robbery with homicide.

ART. 297 ATTEMPTED AND FRUSTRATED ROBBERY COMMITTED UNDER CERTAIN CIRCUMSTANCES ELEMENTS Lasallian Commission on Bar Operations

That the offender has intent to defraud another; That the offender compels him to sign, execute, or deliver any public instrument or document; and That the compulsion is by means of violence or intimidation

ART. 299 ROBBERY IN AN INHABITED HOUSE OR PUBLIC BUILDING OR EDIFICE DEVOTED TO WORSHIP I.

ROBBERY WITH FORCE UPON THINGS UNDER SUBDIVISION A Elements a. The offender entered – 184

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b.

c.

i. An inhabited house; ii. A public building or iii. An edifice devoted to religious worship The entrance was effected by any of the following means: i. Through an opening not intended for entrance or egress; ii. By breaking any wall, roof, floor, door or window; iii. By using false keys, picklocks or similar tools; or iv. By using any fictitious name or pretending the exercise of public authority. That once inside the building, the offender took personal property belonging to another with intent to gain.

NOTE: • The whole body of the culprit must be inside the building to constitute entering. • 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. • Uninhabited house means any shelter, ship or vessel constituting the dwelling of one or more persons even though the inhabitants thereof are temporarily absent when the robbery was committed. II. ROBBERY WITH FORCE UPON THINGS UNDER SUBDIVISION B Elements a. Offender is inside a dwelling house, public building or edifice devoted to religious worship, regardless of the circumstances under which he entered; b. The offender takes personal property belonging to another with intent to gain under any of the following circumstances: i. By the breaking of doors, wardrobes, chests or any other kind of sealed furniture or receptacle; ii. By taking such furniture or objects away to be broken or forced open outside the place of the robbery; iii. If the locked or sealed receptacle is not forced open, crime is estafa or theft.

ART. 300 ROBBERY IN AN UNINHABITED PLACE AND BY A BAND

Criminal Law

If committed in an uninhabited place and by a band is punished by the maximum period of the penalty involved, as distinguished from Qualified Robbery with Violence or Intimidation of Persons (Article 295) which is committed in an uninhabited place or by a band. “UNINHABITED PLACE” One where there are no houses at all, a place at a considerable distance from the town, or where the houses are scattered at a great distance from each other.

ART. 301 WHAT IS AN INHABITED HOUSE, PUBLIC BUILDING, OR 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 shall temporarily be absent therefrom when the robbery is commited. “DEPENDANCIES OF AN INHABITED HOUSE, PUBLIC BUILDING OR BUILDING DEDICATED TO RELIGIOUS WORSHIP” All interior courts, corrals, warehouses, granaries, barns, coach-houses, stables, or other departments, or enclosed places – a. contiguous to the building or edifice, b. having an interior entrance connected therewith and c. which form part of the whole, shall be deemed dependencies of an inhabited house, public building, or building dedicated to religious worship. Orchards and other lands used for cultivation or production are not included in the terms of the next preceding paragraph, even if closed, contiguous to the building, and having direct connection therewith. "PUBLIC BUILDING" includes 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.

ART. 302 ROBBERY IN AN UNINHABITED PLACE OR IN A PRIVATE BUILDING ELEMENTS a.

b. Lasallian Commission on Bar Operations

Offender entered an uninhabited place or building which was not a dwelling house, not a public building, or not an edifice devoted to religious worship; That any of the following circumstances was present: 185

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Entrance was effected through an opening not intended for entrance or egress; ii. A wall, roof, floor, or outside door or window was broken; iii. Entrance was effected through the use of false keys, picklocks or other similar tools; iv. A door, wardrobe, chest, or any sealed or closed furniture or receptacle was broken; or v. A closed or sealed receptacle was removed, even if the same be broken open elsewhere. With intent to gain, the offender took therefrom personal property belonging to another.

ART. 305 FALSE KEYS

i.

c.

“BUILDING” Includes any kind of structure used for storage or safekeeping of personal property, such as (a) freight car and (b) warehouse.

INCLUSIONS Tools not mentioned in the next preceding article; Genuine keys stolen from the owner; Any keys other than those intended by the owner for use in the lock forcibly opened by the offender.

(1) (2) (3)

When the servant opens his master’s room using a key voluntarily delivered to him by the master and takes away personal property owned by his master, he is guilty of theft and not robbery. (U.S. vs. Gernale, 23 Phil 474)

CHAPTER TWO: BRIGANDAGE ART. 306 BRIGRANDS – PENALTY

“RECEPTACLE” A container which must be “closed” or “sealed.”

ART. 303 ROBBERY OF CEREALS, FRUITS, OR FIREWOOD IN AN UNINHABITED PLACE OR BUILDING

ELEMENTS a. b. c.

In the cases enumerated in Articles 299 and 302, when the robbery consists in the taking of cereals, fruits, or firewood, the culprit shall suffer the penalty next lower in degree than that prescribed in said articles. 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.

There be at least four armed persons; They formed a band of robbers; The purpose is any of the following: i. To commit robbery in a highway; or ii. To kidnap persons for the purpose of extortion or to obtain ransom; or iii. To attain by means of force or violence any other purpose

Purpose: Mere formation is punished as the main object of the law is to prevent the formation of band of robbers. BRIGANDAGE VS ROBBERY BY A BAND

ART. 304 POSSESSION OF PUCKLOCKS OR SIMILAR TOOLS ELEMENTS a. b. c.

Purpose

That the offender has in his possession picklocks or similar tools; That such picklocks or similar tools are specially adopted to the commission of robbery; That the offender does not have lawful cause for such possession.

NOTE: Mere possession of such tools, without lawful cause, is punished. If the person who makes such tools is a locksmith, the penalty is higher.

Lasallian Commission on Bar Operations

Proof

BRIGANDAGE (ART. 306) (1) Commit robbery in a highway; (2) Kidnap to extort or get ransom; (3) Any other purpose to be achieved by means of force or violence Mere formation of a band is sufficient.

ROBBERY BY A BAND (ART. 296) Commit robbery and not necessarily in a highway

It is necessary to prove that the band actually committed the robbery. 186

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ART. 307 AIDING AND ABETTING A BAND OF BRIGANDS ELEMENTS a. b. c.

There is a band of brigands Offender knows the band to be of brigands Offender does any of the following acts: i. He is any manner aids, abets or protects such band of brigands; or ii. He gives them information of the movements of the police or other peace officers; or iii. He acquires or receives the property taken by such brigands. WHO ARE CONSIDERED ACCOMPLICES

Presidential Decree No. 532 or the Anti-Piracy and AntiHighway Robbery Law of 1974 provides that any person who knowingly and in any manner aids or abets the commission of highway robbery or brigandage such as (1) Giving information about the movement of police or other peace officers of the government; (2) Acquires or receives property taken from such brigands; (3) In any manner derives any benefit therefrom; (4) Directly or indirectly abets the commission of highway robbery Shall be considered as an accomplice of the principal offenders and be punished in accordance with the Rules prescribed by the Revised Penal Code. It shall be presumed that the person performing any of the acts provided in this article has performed them knowingly, unless the contrary is proven.

CHAPTER THREE: THEFT ART. 308 WHO ARE LIABLE FOR THEFT ELEMENTS a. b. c. d. e.

That there be taking of personal property; That said property belongs to another; That the taking be done with intent to gain; That the taking be done without the consent of the owner; That the taking be accomplished without the use of violence against or intimidation of persons or force upon things.

Lasallian Commission on Bar Operations

PERSONS LIABLE 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) Any person who, having found lost property, shall fail to deliver the same to the local authorities or to its owner; (1)

The following must be proven: a. Time of the seizure of the thing; b. It was a lost property belonging to another; and c. 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. (3) Any person who, after having maliciously damaged the property of another, shall remove or make use of the fruits or objects of the damage caused by him; and (4) Any person who shall enter an enclosed estate or a field where trespass is forbidden, or which belongs to another and without the consent of its owner, shall hunt or fish upon the same or shall gather fruits, cereals, or other forest or farm products. Elements: a. That there is an enclosed estate or a field, where trespass is forbidden, or which belongs to another; b. Offender enters the same; c. Offender hunts or fishes upon the same or gather fruits, cereals or other forest or farm products in the estate or field; and d. That the hunting or fishing or gathering of products is without the consent of the owner. “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. To establish theft by failure to deliver or return lost property, the following must be proven: (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. NOTE: • No frustrated theft. The mere possession of the thing, or even afterwards the offender decided to return it, it is already consummated. • The law does not require knowledge of the owner of the property 187

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INTENT TO GAIN (5) Intent being a state of mind, intent to gain must be presumed from the actual taking of personal property. THEFT AND ROBBERY, DISTINGUISHED What distinguishes THEFT from ROBBERY is that, in theft, the offender does not use violence or does not enter a house or building through any of the means specified in Article 299 or Article 302 in taking personal property of another with intent to gain. THEFT AND ESTAFA, DISTINGUISHED If possession was only material or physical, the crime is theft. If possession was juridical, the crime is estafa.

(6)

the premises of plantation; If the property stolen is fish taken from a fishpond or fishery; If property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance.

If any of the mentioned instances are present, the crime of theft shall be punished by the penalties next higher by two degrees than those specified in the next preceding article. 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.

CORPUS DELICTI

Theft by domestic servant is always qualified. There is no need to prove grave abuse of confidence.

To be caught in the possession of the stolen property is not an element of the corpus delicti. Corpus delicti means the body or substance of the crime, an in its primary sense, refers to the fact that the crime has been actually committed.

ART. 311 THEFT OF THE PROPERTY OF THE NATIONAL LIBRARY AND NATIONAL MUSEUM

In theft, corpus delicti has two elements: (1) that the property was lost by the owner, and (2) that it was lost by felonious taking

ART. 309 PENALTIES The basis of the penalty in theft is (1) The value of the thing stolen; (2) The value and nature of the property taken; or (3) The circumstances that impelled the culprit to commit the crime 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.

ART. 310 QUALIFIED THEFT INSTANCES OF QUALIFIED THEFT (1) (2) (3) (4)

If theft is committed by a domestic servant; If committed with grave abuse of confidence; If the property stolen is a motor vehicle, mail matter, or large cattle; If the property stolen consists of coconuts taken from

Lasallian Commission on Bar Operations

RA 10951 amended ART. 311 Theft of property of the National Museum and National Library shall be punished by a penalty of arresto mayor or a fine ranging from ₱40,000 to ₱100,000, or both, unless a higher penalty should be provided under other provisions of the Code. Anti-Cattle Rustling Law of 1974 (PD 533 )

“Cattle Rustling” The taking away by any means, method or scheme, without the consent of the owner/raiser, of any of the animals (classified as large cattle) whether for profit or gain, or whether committed with or without violence against or intimidation of any person or force upon things. It includes the killing of large cattle, or taking its meat without the consent of the owner/raiser. Anti-Fencing Law (PD 1612) “Fencing” The act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell, or dispose of, or shall buy and sell, or in any other manner deal 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.

188

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Robbery, theft and fencing are separate and distinct offenses. b. 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. Any person who fails to secure the required clearance/permit shall also be punished as a fence.

“Alter” may include: (1) destruction of stone monument; (2) taking it to another place; or (3) removing a fence This does not require intent to gain.

CHAPTER FIVE: CULPABLE INSOLVENCY

CHAPTER FOUR: USURPATION

ART. 314 FRAUDULENT INSOLVENCY

ART. 312 OCCUPATION OF REAL PROPERTY OR USURPATION OF REAL RIGHTS IN PROPERTY

ELEMENTS a. b. c.

ACTS PUNISHABLE Taking possession of any real property belonging to another by means of violence against or intimidation of persons Usurping any real rights in property belonging to another by means of violence against or intimidation of persons

(1)

(2)

b. c.

d.

Abscond does not require that the debtor should depart and physically conceal his property.

CHAPTER SIX: SWINDLING AND OTHER DECEITS

That the offender takes possession of any real property or usurps any real right in property; That the real property or real rights belong to another; That violence against or intimidation of persons is used by the offender in occupying real property or usurping real property or usurping real rights in property; That there is intent to gain.

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. Criminal action for usurpation of real property is not a bar to civil action for forcible entry.

ART. 313 ALTERING BOUNDARIES OR LANDMARKS ELEMENTS a.

That there be boundaries marks or monuments of

Lasallian Commission on Bar Operations

That the offender is a debtor; That he absconds with his property; That there be prejudice to his creditors.

Actual prejudice, not intention alone, is required.

ELEMENTS a.

towns, provinces, or estates, or any other marks intended to designate the boundaries of the same; That the offender alters said boundaries marks

ART. 315. SWINDLING (ESTAFA) ELEMENTS IN GENERAL a. b.

I.

That the accused defrauded another by abuse of confidence, or by means of deceit; That damage or prejudice capable of pecuniary estimation is caused to the offended party or third persons

ESTAFA WITH UNFAITHFULNESS OR ABUSE OF CONFIDENCE Elements of Art. 315, No. 1 A (A) ALTERING SUBSTANCE, QUANTITY OR QUALITY OF OBJECT SUBJECT OF OBLIGATION TO DELIVER a. That the offender has an onerous obligation to deliver something of value; b. That he alters its substance, quantity or quality; c. That damage or prejudice is caused to another. NOTE: Deceit is not an essential element of estafa with abuse of confidence. 189

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Estafa may even arise even if the thing delivered is not subject of lawful commerce, such as opium. Elements of 315, No. 1 B (B) MISAPPROPRIATION AND CONVERSION a. That money, goods, or other personal property be received by the offender in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return, the same; b. That there be misappropriation or conversion of such money or property by the offender, or denial on his part of such receipt; c. That such misappropriation or conversion or denial is to the prejudice of another; d. That there is demand made by the offended party to the offender. NOTE: Money, goods, or other personal property must be received by the offender under certain kinds of transaction transferring juridical possession to him. Check is included in the word money. JURIDICAL POSSESSION 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 remained with the owner. The phrase “or under any obligation involving the duty to make delivery of, or to return the same” includes quasicontracts and certain contracts of bailment. The obligation to return the thing must be contractual but without transferring to the accused the ownership of the thing. ESTAFA WITH ABUSE OF CONFIDENCE (ART. 315, NO. 1(B)) There must be juridical possession of a thing misappropriated Offender receives the thing from the victim ESTAFA WITH ABUSE OF CONFIDENCE (ART.

THEFT (ART. 308)

Only physical/material possession of a thing misappropriated Offender takes the thing from the victim MALVERSATION (ART.

217)

315, NO. 1(B)) Funds or property involved are private

Funds or property involved are usually public

Lasallian Commission on Bar Operations

Offender is a private individual or public officer not accountable for public funds or property Committed by misappropriating, converting, or denying having received money or other personal property

Offender is a public officer who has custody or control of the public funds or property by reason of his office for which he was accountable Committed by taking, misappropriating, consenting or thru abandonment or negligence, permitting other persons to take the public funds or property

3 WAYS OF COMMITTING ESTAFA WITH ABUSE OF CONFIDENCE UNDER ART. 315 NO. 1 PAR. B (1) Misappropriating the thing received. (2) Converting the thing received. (3) Denying that the thing was received. There is no estafa through negligence. Element of 315, No. 1 C (C) Taking advantage of signature in blank a. That the paper with the signature of the offended party be in blank; b. That the offended party should have delivered it to the offender; c. That above the signature of the offended party a document is written by the offender without authority to do so; d. That the document so written creates a liability of, or causes damage to the offended party or any third person. II. ESTAFA BY MEANS OF DECEIT ELEMENTS OF 315, NO. 2 a. That there must be false pretense, fraudulent act or fraudulent means; b. That such false pretense, fraudulent act or fraudulent means must be made or executed prior to or simultaneously with the commission of fraud; c. That the offended party must have relied on the false pretense, fraudulent act, or fraudulent means, that is, he was induced to part with his money or property because of it; d. That 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. 190

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ELEMENTS OF 315, NO. 2 (A): USING OF FICTITIOUS

BOUNCING CHECKS LAW (BP 22)

NAME OR FALSE PRETENSES a. By using a fictitious name; b. By falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions; c. By means of other similar deceits.

TWO OFFENSES PUNISHED: (1) Making or drawing and issuing a check knowing at the time of issue that he does not have sufficient funds. ELEMENTS A. That a person draws a check; B. That the check is made or drawn and issued to apply on account or for value; C. That the person knows that at the time of issue he does not have sufficient funds in or credit with the drawee bank for the payment of such check upon its presentment; D. That the check is subsequently dishonored by the drawee bank for the insufficiency of funds or would have been dishonored for the same reason had not the drawer, without any valid reason ordered the bank to stop payment.

The false statement or fraudulent representation of the accused must be made prior to, or, at least simultaneously with the representation or the delivery of the thing by the complainant. HOW TO COMMIT 315, NO. 2 (B): By altering the quality, fineness or weight of anything pertaining to his business. HOW TO COMMIT 315, NO. 2 (C): By pretending to have bribed any Government employee. Person would ask money from another for the alleged purpose of bribing a government employee but just pocketed the money. ELEMENTS OF 315, NO. 2 (D): POSTDATING A CHECK OR ISSUING A BOUNCING CHECK (1) That the offender postdated a check, or issued a check in payment of an obligation; (2) That 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. 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 a pre-existing obligation.

(2)

Failing to keep sufficient funds to cover check if presented within a period of 90 days from the date appearing thereon. ELEMENTS: A. That a person has sufficient funds with the drawee bank when he makes or issues a check; B. That he fails to keep sufficient funds or to maintain a credit to cover the full amount if presented within a period of 90 days from the date appearing thereon; C. That the check is dishonored.

Prosecution under BP 22 shall be without prejudice to any liability for any violation in the RPC. The fine under BP 22 is based on the amount of the check and is without regard to the amount of damaged caused. BP 22 AND ESTAFA (ART 315, NO. 2(D)) DISTINGUISHED BP 22

RPC (Estafa)

Exceptions: (1) When postdated checks are issued and intended by the parties only as promissory notes; or (2) When the check is issued by a guarantor

Endorsers are not liable.

Endorsers who acted with deceit knowing that the check is worthless will be criminally liable.

Malum prohibitum.

Malum in se.

Republic Act No. 4885 (RA 4885) which amended par. D, Section 2 of Article 315, provided that the failure of the drawer to deposit the amount needed to cover his check within 3 days from receipt of notice from the bank and/or the payee or holder that said check has been dishonored for lack or insufficiency of funds shall be prima facie evidence of deceit constituting false pretense or fraudulent act.

Issuance of check is for value or on account.

It is the means to obtain the valuable consideration from the payee (debt is not preexisting).

Lasallian Commission on Bar Operations

A crime against public interest because it affects the entire banking system. Deceit and damage are not elements of the crime; the gravamen of

A crime against property. False pretenses or deceit and damage or at least intent to cause damage are 191

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the offense is the issuance of the check.

Criminal Law

essential and the false pretenses must be prior to or simultaneous with the damage caused.

The drawer is given 5 days after receiving notice of dishonor within which to pay or make arrangements for payments.

Given 3 days after receiving notice of dishonor.

That there are no funds or there are insufficient funds at the time of issuance.

That there are no funds or no sufficient funds at the time of issuance or at the time of presentment if made within 90 days.

Double jeopardy does not apply because estafa in RPC is a distinct crime from B.P. 22. Deceit and damage are essential elements of RPC, which are not required in BP 22. HOW TO COMMIT 315, NO. 2 (E): (1) By obtaining food, refreshment or accommodation at any establishment without paying therefor, with intent to defraud the proprietor or manager thereof; (2) By obtaining credit at any establishments by the use of any false pretense; (3) By abandoning or surreptitiously removing any part of his baggage from any establishment after obtaining credit, food, refreshment or accommodation therein, without paying. III. ESTAFA BY FRAUDULENT MEANS Elements of 315, No. 3 (A): Inducing another through deceit to sign any document (1) That the offender induced the offended party to sign a document; (2) The deceit be employed to make him sign the document; (3) That the offended party personally signed the document; (4) That prejudice be caused. How to commit 315, No. 3 (B): By resorting to some fraudulent practice to insure success in a gambling game. Elements of 315, No. 3 (C): removing, concealing or destroying any court record, office files, document or any other papers (1) That there be court record, office files, documents or any other papers; (2) That the offender removed, concealed or destroyed any of it; Lasallian Commission on Bar Operations

(3)

That the offender had intent to defraud another.

If there is no malicious intent to defraud, the destruction of court record is malicious mischief. If there is neither deceit nor abuse of confidence, it is not estafa, even if there is damage. There is only civil liability. Estafa (Art. 315, no .3(C)) and Removal, concealment or destruction of documents (Art. 226), distinguished Estafa

(Art 315, no.3 C)

Infidelity in Custody of Document (Art 226)

The offender is a private individual who is not officially entrusted with the documents.

The offender is a public officer who is officially entrusted with the document.

RA 10951 amended ART. 315 (1) The penalty of prisión correccional in its maximum period to prisión mayor in its minimum period, if the amount of the fraud is over ₱2,400,000 but does not exceed ₱4,400,000, and if such amount exceeds the latter sum, the penalty of prisión correccional in its maximum period, adding one year for each additional ₱2,000,000; but the total penalty which may be imposed shall not exceed 20 years. In such cases, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of the Code, the penalty shall be termed prisión mayor or reclusion temporal, as the case may be. (2) The penalty of prisión correccional in ßits minimum and medium periods, if the amount of the fraud is over ₱1,200,000 but does not exceed ₱2,400,000. (3) The penalty of arresto mayor in its maximum period to prisión correccional in its minimum period, if such amount is over ₱40,000 but does not exceed ₱1,200,000. (4) By arresto mayor in its medium and maximum periods, if such amount does not exceed ₱40,000. In cases of false pretenses or fraudulent acts as defined in No. 2(D), the following penalty shall be followed: (1) The penalty of reclusion temporal in its maximum period, if the amount of fraud is over ₱4,400,000 but does not exceed ₱8,800,000. If the amount exceeds the latter, the penalty shall be reclusion perpetua. (2) The penalty of reclusion temporal in its minimum and medium periods, if the amount of 192

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the fraud is over ₱2,400,000 but does not exceed ₱4,400,000. (3) The penalty of prisión mayor in its maximum period, if the amount of the fraud is over ₱1,200,000 but does not exceed ₱2,400,000. (4) The penalty of prisión mayor in its medium period, if such amount is over ₱40,000 but does not exceed ₱1,200,000. (5) By prisión mayor in its minimum period, if such amount does not exceed ₱40,000.

NOTE: Actual proof of deceit or misrepresentation is not essential, it is sufficient that the offender takes advantage of the inexperience or emotions of the minor. Real property is not included because it is not included in the enumeration and a minor cannot convey real property without judicial authority.

ART. 318. OTHER DECEITS HOW COMMITTED

ART. 316. OTHER FORMS OF SWINDLING PERSONS LIABLE Any person who, pretending to be the owner of any real property, shall convey, sell, encumber or mortgage the same; Any person who, knowing that real property is encumbered, shall dispose of the same, although such encumbrance be not recorded; The owner of any personal property who shall wrongfully take it from its lawful possessor, to the prejudice of the latter or any third person; Any person who, to the prejudice of another, shall execute any fictitious contract; Any person who shall accept any compensation given under the belief that it was in payment of services rendered or labor performed by him, when in fact he did not actually perfrom such services or labor; Any person who, while being a surety in a bond given in criminal or civil action, without express authority from the court or before the cancellation of his bond or before being relieved from the obligation contracted by him, shall sell, mortgage, or, in any other manner, encumber the real property or properties with which he guaranteed the fulfillment of such obligation.

(1)

(2)

(3)

(4) (5)

(6)

ART. 317. SWINDLING A MINOR ELEMENTS a. b.

c. d.

That the offender takes advantage of the inexperience or emotions or feelings of a minor; That he induces such minor to assume an obligation, or to give release, or to execute a transfer of any property right; That the consideration is some loan of money, credit, or other personal property; That the transaction is to the detriment of such minor.

Lasallian Commission on Bar Operations

(1) (2)

By defrauding or damaging another by any other deceit not mentioned in the preceding articles; By interpreting dreams, by making forecasts, by telling fortunes, by taking advantage of the credulity of the public in any other similar manner, for profit or gain.

CHAPTER SEVEN: CHATTEL MORTGAGE ART. 319. REMOVAL, SALE OR PLEDGE OF MORTGAGED PROPERTY ELEMENTS PAR 1 a. Personal property mortgaged under Chattel Mortgage Law; b. Offender knows such mortgage; c. He removes personal property to any province or city other than the one in which it was located at the time of the execution of the mortgage; d. Removal is permanent; e. No written consent of mortgagee, executers, administrators or assigns to such removal. PURPOSE: To protect the mortgagee who should have access to, and easy reach of the property mortgaged. ELEMENTS PAR 2: a. Personal property pledged under Chattel Mortgage Law; b. Offender, who is the mortgagor, sells or pledges the same property or any part thereof; c. No consent of mortgagee written at the back of mortgage and noted on the record thereof in the Office of the Register of Deeds; d. Damage to the mortgagee not essential

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CHAPTER EIGHT: ARSON AND OTHER CRIMES INVOLVING DESTRUCTIONS

SPECIAL AGGRAVATING CIRCUMSTANCES IN ARSON

* ARTICLES 320 TO 326-B ARE REPEALED BY PD NO. 1613 (AMENDING THE LAW ON ARSON)

(1) (2) (3)

ARSON When any person burns or sets fire to the property of another; or to his own property under circumstances which expose to danger the life or property of another.

(4) •

KINDS OF ARSON (1) (2) (3)

Simple Arson (Sec. 1, PD No. 1613) Destructive Arson (Art. 320, as amended by RA No. 7659) Other cases of arson (Sec. 3, PD No. 1613) DESTRUCTIVE ARSON

(1)

(2)

(3)

(4) (5)

(6)

(7)

Any ammunition factory and other establishment where explosives, inflammable or combustible materials are stored; Any archive, museum, whether public or private, or any edifice devoted to culture, education or social services; Any train, airplane or any aircraft, vessel or watercraft, or conveyance for transportation of persons or property; Any church or place of worship or other building where people usually assemble; Any building where evidence is kept for use in any legislative, judicial, administrative or other official proceeding; Any hospital, hotel, dormitory, lodging house, housing tenement, shopping center, public or private market, theater or movie house or any similar place or building; Any building, whether used as dwelling or not, situated in a populated or congested area. OTHER CASES OF ARSON

(1) (2) (3) (4) (5) (6)

Any building used as offices of the Government or any of its agencies; Any inhabited house or dwelling; Any industrial establishment, shipyard, oil well or mine shaft, platform or tunnel; Any plantation, farm, pasture land, growing crop or grain field, orchard, bamboo grove or forest; Any rice mill, sugar mill, or mill central; Any railway or bus station, airport, wharf, or warehouse.

Lasallian Commission on Bar Operations

•

•

•

If committed with intent to gain; If committed for the benefit of another; If the offender be motivated by spite or hatred towards the owner or occupant of the property burned; If committed by a syndicate. The offense is committed by a syndicate if it is planned or carried out by a group of three or more persons. If a part of a building is burning, the crime is already consummated arson, without regard to the extent of the fire. When there is fire, the crime committed is either frustrated or consummated arson, never attempted. Fire is not necessary in attempted arson. Mere conspiracy to commit arson is punishable.

DESTRUCTIVE ARSON VS. SIMPLE ARSON The acts committed under Art. 320 of The Revised Penal Code constituting Destructive Arson are characterized as heinous crimes "for being grievous, odious and hateful offenses and which, by reason of their inherent or manifest wickedness, viciousness, atrocity and perversity are repugnant and outrageous to the common standards and norms of decency and morality in a just, civilized and ordered society." On the other hand, acts committed under PD 1613 constituting Simple Arson are crimes with a lesser degree of perversity and viciousness that the law punishes with a lesser penalty. In other words, Simple Arson contemplates crimes with less significant social, economic, political and national security implications than Destructive Arson.

(Buebos v. People) MALICIOUS MISCHIEF The willful damaging of the property of another for the purpose of causing damage due to hate, revenge or the other evil motive.

CHAPTER NINE: MALICIOUS MISCHIEF ART. 327. WHO ARE LIABLE FOR MALICIOUS MISCHIEF ELEMENTS a.

That the offender deliberately caused damage to the property of another; 194

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b. c.

Criminal Law

That such act does not constitute arson or other crimes involving destruction; That the act of damaging another’s property be committed merely for the sake of damaging it.

ART. 331. DESTROYING OR DAMAGING STATUTES, PUBLIC MONUMENTS, OR PAINTINGS PERSONS LIABLE

If malice is not present, the obligation to repair or to pay is only civil. (1)

ART. 328. SPECIAL CASES OF MALICIOUS MISCHIEF HOW COMMITTED (1) (2) (3) (4)

Causing damage to or obstructing the performance of public functions; Using poisonous or corrosive substances; Spreading any infection or contagion among cattle; Causing damage to the property of the National Museum or National Library, or to any archive or registry, waterworks, road, promenade, or any other thing used in common by the public.

(2)

The penalty is lower if the thing destroyed is a public painting, rather than a public monument.

CHAPTER TEN: EXEMPTION FROM CRIMINAL LIABILITY IN CRIMES AGAINST PROPERTY ART. 332. PERSONS EXEMPT FROM CRIMINAL LIABILITY

Qualified Malicious Mischief or special cases of malicious mischief specify the purposes as well as the object of destruction.

(1) (2) (3)

ART. 329. OTHER MISCHIEFS Mischief not included in the next preceding article. Punished according to the 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.

PERSON LIABLE Any person who shall damage any railway, telegraph or telephone line. QUALIFYING CIRCUMSTANCE The offense is qualified if the damage shall result in the derailment of cars, collision or other accident.

CRIMES INVOLVED Theft Swindling (estafa) Malicious Mischief PERSONS EXEMPTED

(1) (2)

ART. 330. DAMAGE AND OBSTRUCTION TO MEANS OF COMMUNICATION

Any person who shall destroy or damage statues or any other useful or ornamental public monuments; Any person who shall destroy or damage any useful or ornamental painting of a public nature.

(3)

Spouses, ascendants and descendants, or relatives by affinity on the same line; The widowed spouse with respect to the property which belonged to the deceased spouse before the same shall have passed to the possession of another; Brothers and sisters and brother-in-law and sisterin-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 liability, only civil. The article applies to a step-parents, adopted parents, natural children, common-law spouses, concubine and paramour. The exemption established by this article shall not be applicable to strangers participating in the commission of the crime.

Lasallian Commission on Bar Operations

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CRIMES AGAINST CHASTITY

For the paramour to be guilty of adultery, he must have the knowledge of the married status of the offender woman.

Chapter One: Adultery and Concubinage Art. 333. Who are guilty of adultery Art. 334. Concubinage Chapter Two: Rape And Acts Of Lasciviousness Art. 335. When and how rape is committed Art. 336. Acts of lasciviousness Chapter Three: Seduction, Corruption of Minors And White Slave Trade 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 Chapter Four: Abduction Art. 342. Forcible abduction Art. 343. Consented abduction Chapter Five: Provisions Relative To The Preceding Chapters Of Title Eleven Art. 344. Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and acts of lasciviousness. Art. 345. Civil liability of persons guilty of crimes against chastity. Art. 346. Liability of ascendants, guardians, teachers, or other persons entrusted with the custody of the offended party.

CHAPTER 1: CONCUBINAGE

ADULTERY

AND

ART. 333. WHO ARE GUILTY OF ADULTERY ELEMENTS a. b. c.

That a woman is married; That she has sexual intercourse with a man not her husband; That as regards to the man with whom she has sexual intercourse, he must know her to be married.

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 of his own.

Nonetheless, a paramour who is a married man, even if he does not know that the woman is married, may be still held liable for concubinage. 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). Each sexual intercourse constitutes a crime of adultery, being an INSTANTANEOUS crime. Hence, it is not a CONTINUING offense. EFFECT OF PARDON (1) (2)

(3) (4)

The pardon must come before the institution of the criminal prosecution; and Both the offenders must be pardoned by the offended party. Act of sexual intercourse subsequent to adulterous conduct is considered as an implied pardon. Pardon of the offenders by the offended party is a bar to prosecution for adultery or concubinage. 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 co-defendant, did nothing to interfere with their relations or to assert his rights as husband. The second charge of adultery should be dismissed because of consent. (People v. Sensano) 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 THE OFFENDED PARTY

The essence of adultery: violation of the marital vow. A woman must be LEGALLY married with the offended husband at the time of the filling of the complaint, even if the marriage be subsequently declared void. Lasallian Commission on Bar Operations

The proceedings may continue. Art. 353 seeks to protect the honor and reputation not only of the living but dead persons as well. 196

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Criminal Law

Express Pardon – applies to concubinage as well.

ART. 344 (PROSECUTION OF CRIMES AGAINST CHASTITY) REQUIRES a.

That the pardon must come before the institution of the criminal prosecution; That the offended party must pardon both the offenders.

b.

Q; Is there implied pardon? A; YES.. This happens when an offended husband have sex with his unfaithful wife subsequent to the adulterous act of the latter. NOTE: The pardon by the husband only extinguishes the adulterous act committed by the wife before such pardon has been actually given. Therefore, it has no effect on those adulterous acts committed by the wife subsequent to such pardon. OTHERS: • Abandonment of the wife by the husband without justification is only a mitigating circumstance. • Under the law, there is no accomplice in adultery, although there can be in fact. • Delay in the filing of complaint, if satisfactorily explained, does not indicate pardon. • A husband who gives consent to his adulterous wife is barred from instituting a complaint of adultery. • Agreement to separate may also be considered as CONSENT.

ART. 334. CONCUBINAGE ELEMENTS a. b.

c.

That the man must be married; That he committed any of the following acts (three ways of committing concubinage): i. Keeping a mistress in the conjugal dwelling; ii. Having sexual intercourse under scandalous circumstances with a woman who is not his wife; iii. Cohabiting with her in any other place; As regards to the woman, she must know him to be married.

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It is the same as adultery which is a violation of marital vows. However, the infidelity of the husband does not bring into the family spurious offspring because it is only a man who can impugn the paternity and filiation of a child. In the 3rd way of committing the crime: mere cohabitation is sufficient; Proof of scandalous circumstances not necessary. The concubine becomes liable only when she has knowledge that the man who she is having sexual intercourse with is married prior to the actual commission of the crime. A married man is not liable for concubinage for mere sexual relations with a woman not his wife if he has not committed any of the three acts specified 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. On the other hand, if the woman knows that the man is married, she may be held liable for concubinage as well. It is necessary that the woman is taken by the accused into the conjugal dwelling. “MISTRESS” A woman who is taken by the accused into the conjugal dwelling with the intention of treating such woman as a concubine. “CONJUGAL DWELLING” Home of the husband and wife even if the wife happens to be temporarily absent on any account. It must be constructed from the proceeds of the sale of their conjugal properties. The fact that the wife never had a chance to reside therein and that the husband used it with his mistress instead, does not detract from its nature. (Peoeple v. Codrova) “COHABIT” To dwell together, in the manner of husband and wife, for some period of time (i.e. a week, a month, year or longer) “SCANDAL” Consists in any way 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) Qualifying expression: Sexual act which may be proved by circumstantial evidence.

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SCANDAL PRODUCED BY THE CONCUBINAGE OF THE OFFENDER HUSBAND (1) (2) (3)

A husband who is living with a woman not his wife in the same room; Both are seen in the public together; They perform acts in the sight of the community which give rise to criticism and general protest among the neighbors.

OTHERS: • Offense is not a single act of adultery. Each sexual intercourse produces adulterous acts. • Adultery is more severely punished than concubinage because adultery makes possible the introduction of another man’s blood into the family so that the offended husband may have another man’s son bearing his (husband’s) name and receiving support from him. • No concubinage in a case where a married man is surprised in the act of sexual intercourse with another woman (not his wife) in a hotel.

CHAPTER 2: RAPE AND ACTS OF LASCIVIOUSNESS ART. 335. RAPE Repealed by RA 8353 (Anti-Rape Law of 1997). New provisions on Rape are found in Article 226-A to 266-D under Crimes Against Person

ART. 336. ACTS OF LASCIVIOUSNESS ELEMENTS a. b. c.

That the offender commits any act of lasciviousness of lewdness. That the act of lasciviousness is committed against a person of either sex. That it is done under any of the following circumstances: i. By using force or intimidation; or ii. When the offended party is deprived of reason or otherwise unconscious; iii. By means of fraudulent machination or grave abuse of authority; iv. When the offended party is under 12 years of age or is demented.

“LEWD” Obscene, lustful, indecent, lecherous. It signifies the form of immorality which has relation to moral impurity; or that which is carried on a wanton manner. Lasallian Commission on Bar Operations

Motive of lascivious acts is not important because the essence of lewdness is in the very act itself. Example: embarrassing, kissing and holdings girl’s breast is act of lasciviousness but in some cases, touching of breast of a woman is considered unjust vexation only. The existence or absence of lewd design is determined from the nature of the acts and the environmental circumstances. Kissing and embracing when prompted by lust or lewd design are acts of lasciviousness. No attempted or frustrated crime of acts of lasciviousness. If the victim is a child below 18 years of age is exploited in prostitution or subjected to other sexual abuse, the applicable law is RA No. 7610 (An Act for Stronger Deterrence and Special Protection against Child Abuse, Exploitation and Discrimination, and for other purposes) Acts of Lasciviousness

Grave Coercion

Compulsion or force is included in the constructive element of force. Must be accompanied by acts of lasciviousness or lewdness.

Compulsion or force is the very act constituting the offense of grave coercion.

Acts of Lasciviousness The manner of committing the crime is the same (intimidation, fraudulent machinations. Offended party is a person of either sex. No intent to have carnal knowledge of the offended woman.

Attempted rape

Offenses against Chastity Committed by a private individual, in most cases.

Moral compulsion amounting to intimidation is sufficient.

The acts performed by the offender clearly indicate that his purpose was to lie with the offended woman. The lascivious acts are but the preparatory acts to the commission of rape. Abuses against Chastity Committed by a public officer only.

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Some act of lasciviousness should have been executed.

Criminal Law

Mere immoral or indecent proposal made earnestly and persistently is sufficient.

Q: A was found guilty under Special Protection of Children against Abuse, Exploitation and Discriminatory Act by the RTC. A appealed before the CA on the ground that he is innocent. CA found A guilty of Acts of Lasciviousness. Instead of further appealing the case, A filed before the CA a manifestation with motion to allow him to apply for probation upon remand of the case to the RTC. Will the application for probation prosper? A: No. The Probation Law prohibits an appeal from the judgment of conviction, which involves a review of the merits of the case and the determination of whether the accused is entitled to acquittal. It is apparent that A anchored his appeal on a claim of innocence and/or lack of sufficient evidence to support his conviction of the offense charged support his conviction of the offense charged, which is clearly inconsistent with the tenor of the Probation Law. ( Dimakuta vs. People)

If there is no sexual intercourse and only acts of lewdness are performed, it is act of lasciviousness. The accused charged with rape cannot be convicted of qualified seduction under the same information. OFFENDERS IN QUALIFIED SEDUCTION (1)

(2)

THOSE WHO ABUSED CONFIDENCE REPOSED IN THEM (1) (2) (3)

1. 2.

TWO CLASSES OF QUALIFIED SEDUCTION

(2)

Seduction of a virgin over 12 years and under 18 years of age by persons who abuse their authority or the confidence reposed. Elements: a. Offended party is a virgin, which is presumed if she is unmarried and of good reputation; b. She is over 12 and under 18 yrs. of age; (13-17 years 11 months 29 days) c. Offender has sexual intercourse with her; d. There is abuse of authority, confidence, or relationship on the part of the offender. Seduction of a sister by her brother or descendant by her ascendant, regardless of her age and reputation. (Age, reputation and virginity is irrelevant. The relationship may not be legitimate.) Elements: a. Offended party need not be a virgin or she may be over 18 years old; b. Offender has sexual intercourse with her; c. Offender is her brother or ascendant by consanguinity, whether legitimate or illegitimate.

Virgin – a woman of chaste character and of good reputation. She need not be physically a virgin. Lasallian Commission on Bar Operations

Priest. House Servant Domestic

THOSE WHO ABUSED THEIR RELATIONSHIP

ART. 337. QUALIFIED SEDUCTION

(1)

Those who abused their authority a. Person in public authority b. Guardian c. Teacher Person, who in any capacity, is entrusted with the education or custody of the woman seduced

Brother who seduced his sister. Ascendant who seduced his descendant.

“DOMESTIC” Person usually living under the same roof, pertaining to the same house. Deceit is not an element of qualified seduction. It is replaced by abuse of confidence. The fact the girl gave consent to the sexual intercourse is not a defense.

ART. 338. SIMPLE SEDUCTION ELEMENTS a. b. c. d.

That the offended party is over 12 and under 18 years of age; That she must be of good reputation, single or widow; That the offender has sexual intercourse with her; That is was committed by means of deceit.

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 required but there must be sexual intercourse. 199

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Criminal Law

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. Promise of marriage after sexual intercourse does not constitute deceit. Promise of marriage by a man is not a deceit, if the woman knew him to be married. Without sexual intercourse but only acts of lewdness, the crime is acts of lasciviousness. Seduction is not a continuing offense because a woman cannot lose her virginity twice.

ART. 339. ACTS OF LASCIVIOUSNESS WITH THE CONSENT OF THE OFFENDED PARTY ELEMENTS a. b.

c.

That the offender commits acts of lasciviousness or lewdness; That the acts are committed upon a woman who is a virgin or a widow of good reputation, under 18 years of age but over 12 years, or a sister or descendant regardless of her reputation or age; That the offender accomplishes the acts by abuse of authority, confidence, relationship or deceit.

Male or female may be the offended party

Only female can be the offended party.

ART. 340. CORRUPTION OF MINORS The article no longer requires habitually or abuse of authority or confidence unlike under the original provision. Thus, Batas Pambansa Blg. 92 provides a more severe penalty in view of wide-spread prostitution of minors in our country. What the law punishes is the act of a pimp who facilitates corruption of the minor and not the performance of unchaste acts. Age of Victim – Article 402 of the Civil Code provides that “Majority commences upon the attainment of the age of 21 years of age”. The offended party must be of good reputation, not a prostitute or corrupted person. See: Child Prostitution and Attempt to Commit Child PROSTITUTION (RA NO. 7610): Section 5 states that when a child indulges in sexual intercourse or lascivious conduct in consideration of money, profit or due to coercion or influence of any adult or group, the child is already deemed exploited in prostitution and other sexual abuse.

ART. 341. WHITE SLAVE TRADE PROHIBITED ACTS

The offended party may have consented to the acts of lasciviousness being performed on her persons but the consent is obtained by abuse of authority, confidence, relationship or deceit. The penalty when the victim is under 12 years of age is one (1) degree higher than that imposed by law. (Sec. 10 of R. A.

7610) Art. 336 – Acts of Lasciviousness Acts are committed under circumstances which, had there been carnal knowledge, would amount to rape.

Art. 339 – Acts of Lasciviousness with consent Committed under the circumstances which, had there been carnal knowledge, would amount to either qualified seduction or simple seduction.

Lasallian Commission on Bar Operations

(1) (2) (3)

Engaging in the business of prostitution; Profiting by prostitution; Enlisting the services of women for the purpose of prostitution.

The mere enlisting of the services of women for the purpose of prostitution whether the offender profits or not is punishable. Habituality is not a necessary element of white slave trade. ‘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. Offender need not be the owner of the house. Maintainer or manager of house of ill-repute need not be present therein at the time of raid or arrest. 200

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CHAPTER FOUR: ABDUCTION ART. 342. FORCIBLE ABDUCTION ELEMENTS a. b. c.

That the person abducted is a woman; That the abduction is against her will; That the abduction is with lewd design.

"ABDUCTION” The taking away of a woman for the purpose of taking her to another place with intent to marry or to corrupt her. CRIMES AGAINST CHASTITY WHERE AGE AND REPUTATION ARE IMMATERIAL (1) (2) (3)

Acts of lasciviousness against the will or without the consent of the offended party Qualified seduction of sister or descendant Forcible abduction

Conviction of acts of lasciviousness is not a bar to conviction of forcible abduction. Age and reputation of the victim are immaterial. The taking must be against the victim’s will. The taking away of the woman may be accomplished by means of deceit first and then by means of violence and intimidation. If the female abducted is under 12 years of age, the crime is forcible abduction, even if she voluntarily goes with her abductor. 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.

Attempted rape is absorbed by forcible abduction as the former constitutes the element of lewd design. There is no complex crime of forcible abduction with attempted rape. Nature of the crime: the act of the offender is violative of the individual liberty of the abducted, her honor and reputation, and public order. Forcible Abduction There is violence or intimidation by the offender The offended party is compelled to do something against her will Abduction is characterized by lewd design

Lasallian Commission on Bar Operations

No lewd design, provided that there is deprivation of liberty for an appreciable length of time

Forcible Abduction

Corruption of Minors

Purpose is to affect his lewd designs on the victim

Purpose is to lend the victim to illicit intercourse with others

Forcible Abduction There is violence or intimidation by the offender

Serious Illegal Detention There is deprivation of liberty and no lewd designs

Forcible Abduction with Rape Purpose is to affect his lewd designs on the victim Crime against chastity

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 There can only be one complex crime of forcible abduction with rape.

ART. 343. CONSENTED ABDUCTION

Rape may absorb forcible abduction, if the main objective was to rape the victim. 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.

Grave Coercion

ELEMENTS a. b. c.

That the offended party must be a virgin; That she must be over 12 and under 18 years of age; That the taking away of the offended party must be with her consent, after solicitation or cajolery from the offender; 201

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d.

That the taking away of the offended party must be 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 If a girl is under 12, always FORCIBLE ABDUCTION. CRIMES AGAINST CHASTITY WHERE AGE AND REPUTATION OF THE VICTIM ARE IMMATERIAL (1) (2) (3)

Acts of lasciviousness against the will of the offended party; or against a sister or descendant; Qualified seduction of sister or descendant; Forcible abduction

Q: When is there forcible abduction only, or rape only? A: If there was abduction but the resistance of the woman to the alleged rape was not tenacious (not easily stopped: firm or strong), so can easily be stopped, the accused would be guilty only of abduction (People v. Lopez, C.A., 41 O.G. 1310). It is Rape if the main objective was to have carnal knowledge the victim taking into consideration the facts (People v. Toledo, 83 Phil. 777). Q: Can there be Forcible Abduction with Multiple counts of rape? A: There can only be one (1) complex crime of forcible abduction with rape. The crime of forcible abduction was only necessary for the FIRST RAPE. Thus, the subsequent acts of rape can no longer be considered as separate complex crimes of forcible abduction with rape. They should be detached from and considered independently of forcible abduction. Therefore, accused should be convicted of ONE COMPLEX CRIME of forcible abduction with rape and three separate acts of rape (People v. Garcia, et. al., G.R. No.: 41125).

Lasallian Commission on Bar Operations

Criminal Law

Q: The accused, who previously made an attempt upon the chastity of the offended girl, tried to take her away in carriage, while she was standing at the door of her house. The accused did not succeed in taking away of the girl because of the girl’s resistance and because of the intervention of a policeman. What crime was committed? A: The offense was attempted abduction. The lewd designs were indicated by the holding of the girl around her waist and by the attempt of the accused upon the chastity of the girl (US v. Luna).

ART. 344. PROSECUTION OF THE CRIMES OF ADULTERY, CONCUBINAGE, SEDUCTION, ABDUCTION, RAPE AND ACTS OF LASCIVIOUSNESS Nature of the complaint: The complaint must be filed in court, not with the fiscal. In case of complex crimes, where one of the component offenses is a public crime, the criminal prosecution may be instituted by the fiscal. The court motu propio 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. PROSECUTION OF THE CRIMES OF ADULTERY AND CONCUBINAGE Who may file: both crimes must be prosecuted upon complaint signed by the offended spouse. Both the offender and the paramour/mistress must be included in the complaint even if one of them is not guilty. Prosecution of seduction, abduction and acts of lasciviousness must be prosecuted upon the complaint signed by 1. Offended party – when the offended party is a minor, her parents may file the complaint 2. Parents, grandparents or guardian in that order •

•

When the offended party is of age and is in complete possession of her mental and physical faculties, she alone can file the complaint. When the offended is a minor or incapacitated and refuses to file the complaint, any of the persons mentioned can file.

The term “guardian” refers to legal guardian. He must be legally appointed by the Court. 202

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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. CONSENT AND PARDON IN ADULTERY AND CONCUBINAGE Consent or pardon may be express or implied. It bars the offended party from filing a complaint. However, condonation or forgiveness of one act of adultery or concubinage is not a bar to prosecution of similar acts that may be committed by the offender in the future.

Criminal Law

(2) (3)

ART. 346. LIABILITY OF ASCENDANTS, GUARDIANS, TEACHERS, OR OTHER PERSONS ENTRUSTED WITH THE CUSTODY OF THE OFFENDED PARTY (1)

PARDON IN SEDUCTION, ABDUCTION, OR ACTS OF LASCIVIOUSNESS Express pardon of the offender is required to bar prosecution. Condonation is not pardon in concubinage or adultery because any subsequent act of the offender showing that there was no repentance will not bar the prosecution of the offense. Pardon by the offended party who is a minor must have the concurrence of parents, except when the offended party has no parents. Offended party cannot institute criminal proceedings if the offender has been EXPRESSLY pardoned by the offended party, or her parents, grandparents or guardian.

To acknowledge the offspring, unless the law should prevent him from doing so. In every case, to support the offspring.

(2)

(3)

Person who cooperate as accomplices but are punished as principals: a. Ascendants, b. Guardians, c. Curators, d. Teachers, e. Any person, who cooperates as accomplice with abuse of authority or confidential relationship. The teachers or persons entrusted with education and guidance of the youth shall also be penalized with disqualification Any person falling within the terms of this article, and any other person guilty of corruption of minors for the benefit of another, shall be punished by special disqualification from filing the office of guardian.

Pardon by the parent, grandparent, or guardian must be accompanied by the express pardon of the offended woman. 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. General rule: Marriage of the offender with the offended party benefits the co-principals, accomplices and accessories. Exception: In rape Because it is already a crime against person; marriage obliterates criminal liability as to the husband only.

ART. 345. CIVIL LIABILITY OF PERSONS GUILTY OF CRIMES AGAINST CHASTITY PERSONS WHO ARE GUILTY OF RAPE, SEDUCTION, OR ABDUCTION SHALL ALSO BE SENTENCED (1)

To indemnify the offended woman.

Lasallian Commission on Bar Operations

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CRIMES AGAINST THE CIVIL STATUS OF PERSONS CHAPTER ONE: Simulation of Births and Usurpation of Civil Status Art. 347. Simulation of births, substitution of one child for another and concealment or abandonment of a legitimate child Art. 348. Usurpation of civil status CHAPTER TWO: Illegal Marriages Art. 349. Bigamy Art. 350. Marriage contracted against provisions of laws Art. 351. Premature marriages Art. 352. Performance of illegal marriage ceremony

CHAPTER ONE: SIMULATION OF BIRTHS AND USURPATION OF CIVIL STATUS ART. 347. SIMULATION OF BIRTHS, SUBSTITUTION OF ONE CHILD FOR ANOTHER, AND CONCEALMENT OR ABANDONMENT OF A LEGITIMATE CHILD The object of the crime under this article is the creation of false or the causing of the loss of civil status. ACTS PUNISHABLE (1) (2) (3)

Simulation of birth. Substitution of one child for another. Concealing or abandoning any legitimate child with intent to cause such child to lose its civil status.

Crime is qualified if the purpose is to defraud offended parties and heirs. There must be intent to enjoy the rights arising from the civil status of another.

ART. 349. BIGAMY ELEMENTS a. b.

c. d.

That the offender is legally married. That the marriage has not been dissolved or, in case the spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code. That he contracts a second marriage or subsequent marriage. That the second or subsequent marriage has all the essential requisites for validity.

The offender must be legally married at the time of the commission of the crime. The subsequent declaration of the first marriage’s nullity or its being void shall not bar the filing of a complaint against the second marriage for being bigamous. In case, one of the spouses is absent and the other contracts a subsequent marriage, the latter may be held liable for the crime of bigamy. To avoid any criminal liability, the surviving spouse must first secure a judicial declaration of the presumptive death of the absent spouse before he can legally get married.

Good faith is not a defense in bigamy.

“Abandon” as used in Art. 347: the practice of abandoning newly born infants and very young child at the door of hospitals and churches.

When a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall likewise have capacity to remarry under Philippine law. (Art. 26, par.2, Family Code)

A physician or surgeon or public officer, who cooperates in the execution of these crimes, is also liable if he acts in violation of the duties of his profession or office.

The second spouse who knew of the first marriage is an accomplice, as well as the person who vouched for the capacity of either of the contracting parties.

ART. 348. USURPATION OF CIVIL STATUS

Failure to exercise due diligence to ascertain the whereabouts of the first wife is bigamy through reckless imprudence.

The unlawful sale of a child by his father is not a crime under this article.

Usurping the civil status of another is committed by assuming the filiations or the parental or conjugal rights of another with intent to enjoy the rights arising from the civil status of the latter. Lasallian Commission on Bar Operations

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 204

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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 second spouse is not necessarily liable for bigamy. Bigamy is not a private crime. Q: H, a married man, contacted a second marriage. His first wife came to know of the second marriage and filed a case for bigamy against H and the second wife. If you are the judge, how would you rule? A: Only H is guilty of Bigamy. He contracted a second marriage despite the existence of his first marriage. The second wife cannot be guilty of Bigamy because she was only married once. If she knew that H was married, then the knowledge of the second wife of the fact of her spouse's existing prior marriage constitutes an indispensable cooperation in the commission of bigamy, which makes her responsible as an accomplice. (Santiago v. People, GR No. 200233, 2015) If she did not know, then she would not be criminally liable.

CHAPTER TWO: ILLEGAL MARRIAGES ART. 350. MARRIAGE CONTRACTED AGAINST PROVISIONS OF LAWS ELEMENTS a. b.

That the offender contracted marriage. That he knew at the time that i. the requirements of the law were not complied with; or ii. 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 the 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. QUALIFYING CIRCUMSTANCE If either of the contracting parties obtains the consent of the other by means of violence, intimidation or fraud. Lasallian Commission on Bar Operations

ART. 351. PREMATURE MARRIAGES PERSONS LIABLE (1)

(2)

A widow who 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 is liable under this article. A woman whose marriage having been annulled or dissolved, married before delivery or before expiration of the period of 301 days after the date of legal separation.

The Supreme Court considered the reason behind making such marriages within 301 days criminal, that is, because of the probability that there might be a confusion regarding the paternity of the child who would be born. Period may be disregarded if the first husband was impotent or sterile.

ART. 352. PERFORMANCE OF ILLEGAL MARRIAGE CEREMONY Persons liable: Priests or a minister of any religious denomination or sect, or civil authorities who shall perform or authorize any legal marriage ceremony is liable. Q: Differentiate Bigamy from Illegal Marriage. A: Bigamy Illegal Marriage Elements: Elements: 1. That the offender has 1. That the offender been legally married; contracted marriage; 2. That the marriage has 2. That he entered into said not been legally dissolved contract with knowledge or in case his/her spouse is that the requirements of absent, the absent spouse the law have not been could not yet be presumed complied with or that the dead according to the Civil marriage is in disregard of a Code; legal impediment; and 3. That he contracts a 3. That the act of the second or subsequent offender does not marriage; and constitute bigamy under 4. That the second or Article 349 (People v. subsequent marriage has all Salazar); the essential requisites for validity. Q: Are Premature Marriages still criminalized? A: No. it has been repealed. It is no longer a crime when a widower marries within 301 days from the date of the husband’s death, or before having delivered a baby, if pregnant at the time. (RA 10655)

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CRIMES AGAINST HONOR CHAPTER ONE: Libel Section 1: Definitions, forms, and punishment of this crime Art. 353. Definition of libel Art. 354. Requirement for publicity Art. 355. Libel means by writings or similar means Art. 356. Threatening to publish and offer to present such publication for a compensation Art. 357. Prohibited publication of acts referred to in the course of official proceedings Art. 358. Slander Art. 359. Slander by deed Section 2: General provisions Art. 360. Persons responsible Art. 361. Proof of the truth Art. 362. Libelous remarks CHAPTER TWO: Incriminatory Machinations Art. 363. Incriminating innocent person Art. 364. Intriguing against honor

CHAPTER ONE: LIBEL SECTION 1: DEFINITIONS, FORMS, AND PUNISHMENT OF THIS CRIME ART. 353. DEFINITION OF LIBEL ELEMENTS a.

b. c. d. e.

That there must be an imputation of a crime, or a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance; That the imputation must be made publicly; That it must be malicious; That the imputation must be directed at a natural person or a juridical person, or one who is dead; That the imputation must tend to cause the dishonor, discredit, or contempt of the person defamed.

NOTE: There must be a defamatory imputation THE IMPUTATION MAY COVER (1) (2) (3)

Crime allegedly committed by the offended party; Vice or defect, real or imaginary, of the offended party; Any act, omission, condition, status of, or circumstances relating to the offended party.

RATIONALE: The enjoyment of a private reputation is a constitutional right. Lasallian Commission on Bar Operations

WHO IT CAN BE COMMITTED AGAINST: A natural or juridical person or one who is dead. TEST OF DEFAMATORY CHARACTER OF THE WORDS USED: Words used are construed in their entirety and taken in their plain, natural and ordinary meaning as they would naturally be understood by persons reading them, unless it appears that they were used and understood in another sense. The meaning of the writer is immaterial. It is not the intent of the writer or the speaker which the actionable quality of the words is to be determined, but the meaning of the words in fact conveyed on the minds of persons of reasonable understanding. TWO TYPES OF MALICE: (1) Malice in Fact ● Shown by proof of ill-will, hatred, or purpose to injure; also known as express malice. (2) Malice in Law ● Presumed from defamatory imputation; proof is not required because it is presumed to exist from the defamatory imputation. When the communication is privileged, malice is not presumed from the defamatory words. Defamatory remarks directed at group of persons is not actionable unless the statements are all embracing or sufficiently specific for the victim to be identifiable. Libel publication in different parts may be taken together to establish the identification of the offended party. An imputation will be sufficient if it tends to cause – A. The dishonor, B. Discredit, or C. Contempt of a natural or juridical person, or D. To blacken the memory of one who is dead. In order to maintain a libel suit, it is essential that the victim be identifiable although it is not necessary that he be named. It must be shown that at least a third person could identify him as the object of the libelous publication

(Borjal v. CA, 1999). If the utterance is made but once against a family of lawyers, designated by their common surname, not separately mentioned, there is only one offense. Q: Who are the persons liable for libel? A: (1) The person who publishes, exhibits or causes the 206

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(2) (3) (4)

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.

Q: Who shall be liable for defamation under the Revised Penal Code? A: Not only is the person who published, exhibited or caused the publication or exhibition of any defamation in writing shall be responsible for the same, all other persons who participated in its publication are liable, including the editor or business manager of a daily newspaper, magazine or serial publication, who shall be equally responsible for the defamations contained therein to the same extent as if he were the author thereof. The liability which attaches to petitioners is, thus, statutory in nature. (Bautista vs.

Cuneta-Pangilinan, 2012) Q: When may “truth” be a defense in libel case? A: Under Article 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. (Vasquez vs. Court of Appeals, 314 SCRA

Criminal Law

It is not necessary that the libelous article must be published; communication of the defamatory matter to some third persons is sufficient. THE PRESUMPTION IS REBUTTED IF IT IS SHOWN BY THE ACCUSED THAT (1) (2) (3)

MALICE IS NOT PRESUMED (1)

(2)

(3)

(1)

The test is the “reckless disregard” test and Tulfo failed to meet the test. In this test, what is important is to determine whether the defamatory statement was made with actual malice, that is, with knowledge that it was false or with reckless disregard of whether it was false or not. The trial court found that Tulfo had in fact written and published the subject articles with reckless disregard of whether the same were false or not. There was the finding that Tulfo failed to verify the information on which he based his writings, and that the defense presented no evidence to show that the accusations against Atty. So were true. Tulfo cannot argue that because he did not know Atty. So personally there was no malice attendant in his articles (Tulfo v. People)

Malice in law. Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention or justifiable motive is shown Lasallian Commission on Bar Operations

Private communication made by any person to another in the performance of any legal, moral or social duty. A fair and true report of any judicial, legislative, or other proceedings which are not of confidential nature. Any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions. KINDS OF PRIVILEGED COMMUNICATIONS

460, G.R. No. 118971 September 15, 1999)

ART. 354. REQUIREMENT OF PUBLICITY

The defamatory imputation is true, in case the law allows proof of the truth of the imputation. It is published with good intention. There is justifiable motive for making it.

Absolute It is not actionable, even if its author has acted in bad faith. It is limited to legislative and judicial proceedings and other acts of state, including the communications made in the discharge of a duty under express authority of law, by or to heads of executive departments of the state, and matters involving military affairs. Absolute privileged communication also includes: a. Allegations or statements made by the parties or their counsel in their pleadings or motions or during the hearing of judicial proceedings; b. Answers given by witnesses in reply to questions propounded to them, in the course of said proceedings, provided that said allegations or statements are relevant to the issues, and the answers are responsive or pertinent to the questions propounded to said witnesses (Alcantara v. Ponce).

(2)

Conditional or qualified Although containing defamatory imputations, it would not be actionable unless made with malice or bad faith.

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REQUISITES OF PRIVILEGED COMMUNICATION

Q: Is a communication made out legal, moral, or social

UNDER ART 354, PAR 1

duty, when it was published and circulated among the public, covered by qualified or conditional privileged communication? A: No, communication made out of legal, moral, or social duty, when it was published and circulated among the public, is not covered by qualified or conditional privileged communication.

a.

b.

c.

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; That the communication is addressed to an officer or a board, or superior, having some interest or duty in the matter; That the statements in the communication are med in good faith without malice (in fact).

Unnecessary publicity destroys good faith. The privileged character simply does away with the presumption of malice. It does not mean that it is not actionable. TO OVERCOME THE DEFENSE OF PRIVILEGED COMMUNICATION UNDER ART 354, PAR 1 (1) (2)

Criminal Law

Show that the defendant acted with malice in fact, or; There is no reasonable ground for believing the charge to be true.

FAIR AND TRUE REPORT OF OFFICIAL PROCEEDINGS UNDER ART 354, PAR 2. Conditions for it to be considered privileged: (1) That is fair and true report of a judicial, legislative, or other official proceedings which are not of confidential 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) It is made in good faith without any comments or remarks. The defense of privileged communication will be rejected if it can be proven that the defendant acted with malice in fact or if there is no reasonable ground for believing that charge to be true. DOCTRINE OF FAIR COMMENT While in general, every discreditable imputation publicly made is deemed false, it is not necessarily actionable. To be actionable, it must either be a false allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably have inferred from the facts. Lasallian Commission on Bar Operations

MULTIPLE PUBLICATION RULE IN LIBEL A single defamatory statement, if published several times, gives rise to as many offenses as there are publications. For purposes of Art. 360 of RPC, as amended, every time the same written matter is communicated such communication is considered a distinct and separate publication of libel (Soriano v. IAC). The law requires that for a defamatory imputation made out of a legal, moral or social duty to be privileged, such statement must be communicated only to the person or persons who have some interest or duty in the matter alleged, and who have the power to furnish the protection sought by the author of the statement. Thus, a written letter containing libelous matter cannot be classified as privileged when it is published and circulated among the public. (Buatis, Jr. v. People) Republic Act No. 10175 or the Cybercrime Prevention Act of 2012 is the first law in the Philippines which specifically criminalizes computer crime with the purpose to address legal issues concerning internet in the Philippines; and to prevent misuse, abuse and illegal access of the internet. SEC. 4 - CYBERCRIME OFFENSES Offenses against the confidentiality, integrity and availability of computer data and systems, include, among others: (1) Illegal Access, Illegal Interception, Data Interference, System Interference, Misuse of Devices, Cyber-Squatting; (2) Computer-related Offenses; (3) Forgery, Fraud, Identity Theft; (4) Content-related Offenses; (5) Cybersex, Child Pornography (an offense under R.A. no. 9779), (6) Unsolicited Commercial Communications. SEC. 6. All crimes defined and penalized by the Revised Penal Code, 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.

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Q: May a person who liked or commented a Facebook post be liable for libel under Cybercrime Prevention Act of 2012? A: As distinguished from libel punishable under RPC, it should be noted that the person who may be held criminally liable for “cyber libel” is only the author of the defamatory imputation, not those who may have “liked” or “commented” on or even shared a post. (Disini Jr. et al. vs.

The Secretary of Justice)

ART. 355. LIBEL BY MEANS OF WRITINGS OR SIMILAR MEANS COMMITTED BY MEANS OF (1) (2) (3) (4) (5) (6) (7) (8) (9) (10)

Writing; Printing; Lithography; Engraving; Radio; Phonograph; Painting; Theatrical exhibition; Cinematographic exhibitions or; Similar means.

Defamation made in television program is libel. While television is not expressly mentioned among the means specified in law, it easily qualifies under the general provision “or any similar means”. Defamation through amplifier is not libel, but oral defamation (People v. Santiago). A civil action for damages may be filed simultaneously or separately with the criminal action. Art 355 provides for the penalty for libel. Nonetheless, fine is the preferred penalty in libel cases. ADMINISTRATIVE CIRCULAR NO. 08-2008 (SUBJECT: GUIDELINES IN THE OBSERVANCE OF A RULE OF PREFERENCE IN THE IMPOSITION OF PENALTIES IN LIBEL CASES) Article 355 of the Revised Penal Code penalizes libel with prision correctional in its minimum and medium periods or fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party. This Administrative Circular does not remove imprisonment as an alternative penalty for the crime libel under Article 355 of the Revised Penal Code; Lasallian Commission on Bar Operations

Criminal Law

The Judges concerned may, in the exercise of sound discretion, and taking into consideration the peculiar circumstances of each case, determine whether the imposition of a fine alone would best serve the interests of justice or whether forbearing to impose imprisonment would depreciate the seriousness of the offense, work violence on the social order, or otherwise be contrary to the imperative of justice; Should only a fine be imposed and the accused be unable to pay the fine, there is no legal obstacle to the application of the Revised Penal Code provision on subsidiary imprisonment.

ART. 356. THREATENING TO PUNISH AND OFFER TO PRESENT SUCH PUBLICATION FOR A COMPENSATION PROHIBITED ACTS: (1) Threatening another to publish a libel concerning him, or his parents, spouse, child or other members of the family. (2) Offering to prevent the publication of such libel for compensation or money consideration Felonies where blackmail is possible: (a) Light threats (Article 283) (b) Threatening to publish, or offering to prevent the publication of, a libel for compensation (Art. 356) BLACKMAIL Any unlawful extortion of money by threats of accusation or exposure. Two words are expressive of the crime—hash money. (U.S. v. Eguia, et al., 38 Phil 857)

ART. 357. PROHIBITED PUBLICATION OF ACTS REFERRED TO IN THE COURSE OF OFFICIAL PROCEEDINGS ELEMENTS a. b. c.

The offender is a reporter, editor or manager of a newspaper, daily or magazine. He publishes facts connected with the private life of another. Such facts are offensive to the honor, virtue and reputation of said person.

The prohibition applies even though said publication be made in connection with or under the pretext that it is necessary in the narration of any judicial or administrative proceedings wherein such facts have been mentioned. 209

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c. Imputation must be malicious; d. Imputation must be directed at a natural or juridical person, or one who is already dead; e. Imputation must tend to cause the dishonor, discredit or contempt of the person defamed.

“GAG LAW” The provisions of Article 357 is what so-called the “Gag Law”. Newspaper reports on cases pertaining to adultery, divorce, issues about the legitimacy of children, etc., will necessarily be barred from publication. This article requires two things to constitute a violation of the prohibition: (1) That the article published contains facts connected with the private life of an individual; and (2) That such fact is offensive to the honor, virtue and reputation of said person. Source of news report may not be revealed unless the court or a House or Committee of Congress finds that such revelation is demanded by the security of the State.

ART. 358. SLANDER SLANDER Oral defamation; Libel committed by oral (spoken) means, instead of in writing; the speaking of base and defamatory words which tend to prejudice another in his reputation, office, trade, business or means of livelihood. (Villanueva v.

(People v. Maratas) The imputation must be verbally made or orally uttered. The slanderous remarks need not to be heard by the offended party as long as they are uttered in the presence of a third person.

ART. 359. SLANDER BY DEED SLANDER BY DEED A crime against honor which is committed by performing any acts which cast, dishonor, discredit, or contempt upon another person. ELEMENTS a. b. c.

People)

KINDS OF SLANDER BY DEED

KINDS OF SLANDER: (1) Simple slander; (2) Grave slander, when it is of a serious and insulting nature. FACTORS THAT DETERMINE THE GRAVITY OF ORAL DEFAMATION 1. 2. 3. 4. 5.

That the offender performs any act not included in any other crime against honor; That such act is performed in the presence of other persons; That such act cast dishonor, discredit, or contempt upon the offended party.

(1) Simple slander by deed; (2) Grave slander by deed. Slander by deed refers to performance of an act, not use of words. Common element of slander by deed and unjust vexation is irritation or annoyance. Without any other concurring factor, it is only unjust vexation.

Expressions used On the personal relations of the accused and the offended party. Circumstances surrounding the case. (People v.

If the purpose is to shame or humiliate, Slander by deed.

Jaring)

Motita)

Social standing and the position of the offended party. (People v. Boiser) The slander need not be heard by the offended party. (People v. Clarin; People v Atencio)

The nature and effects of the maltreatment determine the crime committed.

ELEMENTS a. There must be an imputation of a crime, or a vice or defect, real or imaginary, or any act, omission, condition, status or circumstances; b. Imputation must be made publicly; Lasallian Commission on Bar Operations

If with lewd designs and circumstances provided in art 335, the crime would be acts of lasciviousness. (People v.

If the offended party suffered from shame or humiliation cause by the maltreatment, it is slander by deed. Whether a certain slanderous act constitutes slander by deed of a serious nature or not, depends on the social standing of the offended party, the circumstances under which the act was committed, the occasion, etc. 210

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SECTION 2: GENERAL PROVISIONS ART. 360. PERSONS RESPONSIBLE PERSONS LIABLE (1)

Any person who shall publish, exhibit or cause the publication or exhibit of any defamation in writing or by similar means; The author, editor of the book or pamphlet; The editor or business manager of newspaper or magazine, responsible to the same extent as if he were the author; Owner of the printing plant which publishes the libelous article and all persons who in any way participated in or have connection with its publication;

(2) (3)

(4)

Liability of the editor is the same as that of the author.

Retraction may mitigate the damages. It should contain an admission of the falsity of the libelous publication and evince a desire to repair the wrong occasioned thereby. The publication of the article was an honest mistake is not a complete defense but serves only to mitigate damages where the article is libelous per se.

ART. 362. LIBELOUS REMARKS Libelous remarks or comments connected with the matter privileged under the provisions of Article 354, if made with malice, shall not exempt the author thereof nor the editor or managing editor of a newspaper from criminal liability.

CHAPTER TWO: MACHINATIONS

ART. 363. INCRIMINATING INNOCENT PERSON

ART. 361. PROOF OF TRUTH WHEN PROOF OF TRUTH IS ADMISSIBLE When the act or omission imputed constitutes a crime regardless whether the offended party is a private individual or a public officer. 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.

(1)

(2)

REQUISITES OF DEFENSE IN DEFAMATION a. b. c. d. e.

If it appears that the matters charged as libelous is true; It was published with good motives; If it is for a justifiable end; If the act or omission constituting a crime; and If the act or omission of a public officer which, although not constituting a crime, is related to the discharge of his duties.

Good motives and justifiable ends constitute a defense insofar as they negative malice. There is no libel if there is no malice. Proof of truth is not enough. It is also required that the matter charged as libelous was published with good motives and for justifiable ends.

Lasallian Commission on Bar Operations

INCRIMINATORY

ELEMENTS a. b.

c.

That the offender performs an act; That by such act he directly incriminates or imputes to an innocent person the commission of a crime; That such act does not constitute perjury.

Limited to acts of planting evidence and the like, which do not in themselves constitute false prosecution but tend directly to cause false prosecution. (People v. Rivera) One who falsely accuses another of a crime may be held liable either for liber or for perjury, depending upon the manner or form in which the act is committed. (Lu Chu

Sing and Lu Tian Chiong v. Lu Tiong Gui) INCRIMINATING INNOCENT PERSONS Limited to the acts of planting evidence and the like in order to incriminate an innocent person. It is committed by performing an act by which the offender directly incriminates or imputes to an innocent person the commission of a crime.

PERJURY BY MAKING FALSE ACCUSATION Giving of false statement under oath or making a false affidavit, imputing to the person the commission of a crime. It is committed when the imputation was falsely made before an office.

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INCRIMINATING MACHINATIONS Offender does not avail himself of written or spoken word in besmirching the victim’s reputation. Imputation made by the offender need not be public and malicious. Imputation made by offender need not be made to cause the dishonor, discredit or contempt of the aggrieved party.

DEFAMATION Offender avails himself of written or spoken word in besmirching the victim’s reputation. Imputation made by the offender must be public and malicious. Imputation made by offender must be made to cause the dishonor, discredit or contempt of the aggrieved party.

ART. 364. INTRIGUING AGAINST HONOR

Defendant borrows the derogatory information, without subscribing to the truth, passes it to another.

QUASI-OFFENSES CRIMINAL NEGLIGENCE ART. 365. IMPRUDENCE AND NEGLIGENCE FOUR WAYS OF COMMITTING QUASI-OFFENSES (1)

HOW IT IS COMMITTED (2) It is committed by any person who shall make any intrigue which has for its principal purpose to blemish the honor or reputation of another.

(3)

INTRIGUING AGAINST HONOR (4) Any scheme or plot by means which consist of some trickery. It is akin to slander by deed, in that the offender does not avail directly of written or spoken words, pictures or caricatures to ridicule his victim but of some ingenious, crafty and secret plot, producing the same effect. INCRIMINATING AN INNOCENT PERSON Offender performs an act by which he directly incriminates or imputes an innocent person the commission of a crime.

INTRIGUING AGAINST HONOR Offender resorts to an intrigue for the purpose of blemishing the honor or reputation of another person.

Intriguing Against Honor Source of derogatory statements cannot be determined. Consists of some tricky and secret plot. Passes such utterances without subscribing to the truth of the remarks.

Defamation Source is known.

Intriguing Against Honor Source is not known.

Committed in a public and malicious manner. The remarks made are claimed to be true.

Slander

Defendant passes the derogatory information to another for the purpose of causing dishonor to reputation.

By committing through reckless imprudence any act which, had it been intentional, would constitute a grave or less grave felony or light felony; By committing through simple imprudence or negligence an act which would otherwise constitute a grave or less serious felony; By causing damage to the property of another through reckless imprudence or simple imprudence or negligence; By causing through simple imprudence or negligence some wrong which, if done maliciously, would have constituted a light felony.

Imprudence or negligence is not a crime in itself. It is simply a way of committing a crime. IMPRUDENCE

NEGLIGENCE

They are not crimes. They merely determine a lower degree of criminal liability. They are means of committing a crime. Deficiency of action. Failure in precaution. To avoid wrongful acts: one must take the necessary precaution once they are foreseen.

Deficiency of perception. Failure in advertence To avoid wrongful acts: paying proper attention and using due diligence in foreseeing them.

RECKLESS IMPRUDENCE Consists in voluntarily, but without malice, doing or failing to do an act from which material damage results nu reason of inexcusable lack of precaution on the part of the person performing or failing to perform such act, taking into consideration his employment or occupation, degree of

Source is known.

Lasallian Commission on Bar Operations

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intelligence, physical condition and other circumstances regarding person, time and place. SIMPLE IMPRUDENCE Consists in the lack of precaution displayed in those cases in which the damage impending to be caused is not immediate nor the damage clearly manifest. ELEMENTS OF RECKLESS IMPRUDENCE a. b. c. d. e.

RECKLESS IMPRUDENCE Immediate personal harm or damage to property or persons is preventable by the exercise of reasonable care. Defendant failed to use reasonable care to prevent injury.

That the offender does or fails to do an act; That the doing of or the failure to do that act is voluntary; That it be without malice; That material damage results; That there be inexcusable lack of precaution on the part of the person performing or failing to perform such act taking into consideration.

• • •

*Degree of intelligence, physical condition. The profession of pharmacy demands care and skill; and druggist must exercise care of especially high degree, the highest degree of care known to practical men, so that human life may not constantly be exposed to the danger flowing from the substitution of deadly poisons for harmless medicine. (People v. Castillo, et al., 42 O.G. 1914).

Defense of contributory negligence is not applicable to criminal cases through reckless imprudence. One cannot allege the negligence of another to evade the effects of his own negligence. ELEMENTS OF SIMPLE IMPRUDENCE a. b.

Facts: A motorist who was travelling at a speed of 15-20 kph was overtaking another vehicle when he suddenly collided with a 60-year old woman. As a result, the old woman died.

TEST OF NEGLIGENCE Would 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 about to be pursued?

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Reckless imprudence consists in doing or failing to do an act. The doing of the act or the failure to do the act must be voluntary. There must be injury to person or damage to property as a consequence of reckless or simple imprudence. DEFENSE OF CONTRIBUTORY NEGLIGENCE

Art. 64, relative to mitigating and aggravating circumstances, is not applicable to crimes committed through negligence.

Held: Although the motorist was within the speed limit, he is still guilty of reckless imprudence for not observing due care. The court had taken into consideration the surrounding circumstances of persons, time and place. At the time of the accident, it was dizzling and the road was slippery. (People v. Azaola, C.A., 47 O.G. 2458)

FORCE MAJEURE Event which cannot be foreseen, or which being foreseen is inevitable. Extraordinary circumstance independent of the will of the actor.

That there is lack of precaution on the part of the offender. That the damage impending to be caused is not immediate nor the danger clearly manifest.

THE PENALTIES PROVIDED FOR IN ARTICLE 356 ARE NOT APPLICABLE WHEN (1)

(2)

The penalty provided for the offense is equal to or lower than those provided in the first two paragraph of Article 365. By imprudence or negligence, and with violation of the Automobile Law, the death of a person shall be caused.

Qualifying circumstance: when the offender fails to lend help to the injured parties. Q: Differentiate imprudence.

reckless

impudence

from

simple

A: Reckless imprudence consists in voluntary, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution 213

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on the part of the person performing or failing to perform such act, taking into consideration his employment or occupation, degree of intelligence, physical condition and other circumstances regarding persons, time and place. On the other hand, simple imprudence consists in the lack of precaution displayed in those cases in which the damage impending to be caused is not immediate nor the danger clearly manifest. (Art. 365, RPC)

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ANTI-ARSON LAW (PD AMENDED BY PD 1744)

1613,

AS

ARSON; PUNISHABLE ACTS (1) (2)

burning or setting fire to the property of another setting fire to own property under circumstances which expose to danger the life or propery of another (Sec. 1, PD 1613) DESTRUCTIVE ARSON

SPECIAL PENAL LAWS

Where the property is burned with: (1) Any ammunition factory and other establishment where explosives, inflammable or combustible materials are stored; (2) Any archive, museum, whether public or private, or any edifice devoted to culture, education or social services; (3) Any church or place of worship or other building where people usually assemble; (4) Any train, airplane or any aircraft, vessel or watercraft, or conveyance for transportation of persons or property; (5) Any building where evidence is kept for use in any legislative, judicial, administrative or other official proceedings; (6) Any hospital, hotel, dormitory, lodging house, housing tenement, shopping center, public or private market, theater or movie house or any similar place or building; (7) Any building, whether used as a dwelling or not, situated in a populated or congested area. (Sec. 2,

PD 1613) OTHER CASES OF ARSON Where the property burned is: (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; (6) Any railway or bus station, airport, wharf or warehouse. (Sec. 3, PD 1613) SPECIAL AGGRAVATING CIRCUMSTANCES (1) (2) Lasallian Commission on Bar Operations

If committed with intent to gain; If committed for the benefit of another; 215

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(3)

(4)

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If the offender is motivated by spite or hatred towards the owner or occupant of the property burned; If committed by a syndicate (planned or carried out by a group of 3 or more persons)

NOTE: The penalty shall be imposed in its maximum period. (Sec. 4, PD 1613) Q: What crime is committed when both death and burning occur? A: It depends. The main objective of the accused is to be examined. (1) If the main objective is the burning of the building or edifice, but death results by reason or on the occasion of arson, the crime is simply arson, and the resulting homicide is absorbed. (2) If, on the other hand, the main objective is to kill a particular person who may be in a building or edifice, when fire is resorted to as the means to accomplish such goal the crime committed is murder only. (3) Lastly, if the objective is, likewise, to kill a particular person, and in fact the offender has already done so, but fire is resorted to as a means to cover up the killing, then there are two separate and distinct crimes committed — homicide/murder and arson

(People v Cacho) 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, PD 1613). There is no complex crime of arson with homicide because the crime of arson absorbs the resultant death or is a separate crime altogether. (People v. Malngan) HOW TO PROVE ARSON Establish: (1) The corpus delicti, that is, a fire because of criminal agency; (2) The identity of the defendant as the one responsible for the crime.

Corpus delicti is satisfied by proof of the bare fact of the fire and of it having been intentionally caused. Even the uncorroborated testimony of a single eyewitness, if credible, is enough to prove the corpus delicti and to warrant conviction. (Gonzales v. People) SIMPLE ARSON V. DESTRUCTIVE ARSON Simple Arson PD 1613

Destructive Arson Article 320, RPC

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Crimes with a lesser degree of perversity and viciousness that the law punishes with a lesser penalty

Heinous crimes for being grievous, odious and hateful. There is an inherent or manifest wickedness, viciousness, atrocity and perversity

Contemplates crime with a lesser significant social, economic, political, and natural security implications.

Contemplates crime with a great significant social, economic, political, and natural security implications.

Acts falling under Simple Arson may nevertheless be converted into Destructive Arson depending on the qualifying circumstances present. (People vs. Macabando)

ANTI-CHILD PORNOGRAPHY LAW (R.A. NO. 9775) CHILD Refers to a person: (1) Below eighteen (18) years of age or; (2) Over, 18 years of age 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. A child shall also refer to: (1) A person regardless of age who is presented, depicted or portrayed as a child as defined herein; (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 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. EXPILICIT SEXUAL ACTIVITY Includes actual or simulated – (1) Sexual intercourse or lascivious acts including 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; 216

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(5) (6)

Lascivious exhibition of the genitals, buttocks, breasts, pubic area and/or anus; or Use of any object or instrument for lascivious acts

Criminal Law

NOTE: 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.

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; NOTE: 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; (12) To possess any form of child pornography (Sec. 4,

RA 9775); (13) Syndicated child pornography (Sec. 5, RA 9775);

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(14) Willfully and knowingly failing to comply with the notice and installation requirements of an internet service provider (Sec. 9, RA 9775); (15) Willfully and knowingly failing to comply with the notice requirements by any mall owner- operator and owner or lessor of other business establishments (Sec. 10, RA 9775); (16) Knowingly, willfully and intentionally violating duties of an internet content host (Sec. 11, RA 9775); (17) Violation of the right to privacy of the child at any stage of the investigation, prosecution and trial of an offense under this Act (Sec. 13, RA 9775).

ANTI-FENCING LAW (PD 1612) FENCING; DEFINED The act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, 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. (Sec. 2, PD 1612) FENCE; DEFINED Includes any person, firm, association corporation or partnership or other organization who/which commits the act of fencing. (Sec. 2, PD 1612) 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. (Sec. 5,

PD 1612) Except when there is a clearance of permit to sell. NOTE: All stores, establishments or entities dealing in the buy and sell of any good, article item, object of anything of value obtained from an unlicensed dealer or supplier thereof, shall 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, before offering the same for sale to the public. The Chief of Constabulary/Director General, Integrated National Police shall promulgate such rules and 217

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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.

(Sec. 6, PD 1612) ELEMENTS OF FENCING a. b.

c. d.

A robbery or theft has been committed; The accused, who took no part in the robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any article or object taken during that robbery or theft; The accused knows or should have known that the thing derived from that crime; and He intends by the deal he makes to gain for himself or for another (Cahulogan vs. People)

FENCING IS A SEPARATE OFFENSE FROM ROBBERY The crimes of robbery and fencing are 2 distinct offenses. The law on fencing does not require the accused to have participated in the criminal design to commit, or to have been in any wise involved in the commission of, the crime of robbery or theft. Neither is the crime of robbery or theft made to depend on an act of fencing in order that it can be consummated. (People v. De Guzman)

ANTI-GRAFT AND CORRUPT PRACTICES ACT (RA 3019, AS AMENDED) WHO ARE COVERED (1) (2) (3) (4)

Public Officers (Sec. 3); Private Individuals (Sec. 4); Certain Relatives (Sec. 5); Members of the Congress (Sec. 6); CORRUPT PRACTICES OF PUBLIC OFFICERS

(A)

1. Persuading, inducing or influencing another public officer to: i. perform an act constituting a violation of rules and regulations duly promulgated by competent authority or ii. an offense in connection with the official duties of the latter, 2. Allowing himself to be persuaded, induced, or influenced to commit such violation or offense.

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NOTE: The accused must have acted for a consideration and had intended to obtain personal gain or advantage. (B)

Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other person, in connection with any contract or transaction between the Government and any other part, wherein the public officer in his official capacity has to intervene under the law. NOTE: Public officer liable under Sec. 3(b) are those, who in his official capacity, has to intervene under the law in any contract or transaction between the Government and any other party. Elements: a. The offender is a public officer; b. He requested and/or received, directly or indirectly, a gift, present or consideration; c. The gift, present or consideration was for the benefit of the said public officer or for any other person; d. It was requested and/or received in connection with a contract or transaction with the Government; and e. The public officer has the right to intervene in such contract or transaction in his official capacity. Q: Hilario, an Assistant Principal, informed the classroom teachers of the approval of the release of their salary differentials. They all agreed that Hilario would follow-up the papers in Manila in exchange for an amount of money. Is Hilario liable for violating Sec. 3(b) of RA 3019? A: NO. While Hilario indeed is a public officer and he received amounts from the classroom teachers which were in the concept of a gift or benefit, his position did not vest him with the power to intervene in the payment of the salary differentials of the classroom teachers. In his official capacity as assistant principal, he is not required by law to intervene in the payment of the salary differentials. Sec. 3(b) of RA 3019, refers to a public officer whose official intervention is required by law in a contract or transaction. Hilario does not fall within this purview, thus he cannot be said to have violated the law.

(Jaravata vs. Sandiganbayan)

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(C) Directly or indirectly requesting or receiving any gift, present or other pecuniary or material benefit, for himself or for another, from any person for whom the public officer, in any manner or capacity, has secured or obtained, or will secure or obtain, any Government permit or license, in consideration for the help given or to be given, without prejudice to Section 13. Elements: a. The accused is a public officer; b. That in any manner or capacity he secured or obtained, or would secure or obtain, for a person any government permit or license; c. That he directly or indirectly requested or received from said person any gift, present or other pecuniary or material bene t for himself or for another; and d. That he requested or received the gift, present or other pecuniary or material benefit in consideration for the help given or to be given.

(Tecson vs. Sandiganbayan). (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. Elements: a. The public officer accepted, or having any of his family member accept any employment in a private enterprise; b. Such private enterprise has a pending official business with the public officer; and c. It was accepted during: i. The pendency thereof; or ii. Within 1 year after its termination. (E)

Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.

b. c. d.

e.

(F)

administrative, judicial or official functions; He must have acted with manifest partiality, evident bad faith or inexcusable negligence; and That his action caused any undue injury to any party, including the government; That such injury is caused by giving unwarranted benefits, advantage or preference to such parties; and That the public officers have acted with manifest partiality, evident bad faith or gross inexcusable negligence.

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. Elements: a. Offender is a public officer; b. Public officer neglected or refused to act without sufficient justification after due demand or request has been made on him; c. Reasonable time has elapsed from such demand or request without the public officer having acted on the matter pending before him; and d. Such failure to act is for the purpose of: i. Obtaining (directly or indirectly) from any person interested in the matter some pecuniary or material benefit or advantage; ii. Favoring his own interest; or iii. Giving undue advantage in favor of; or iv. Discriminating against any other interested party

(G) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby.

NOTE: The last sentence of Sec. 3€ does not make a distinction, it merely emphasized that officers and employees included are covered. The provision applies to any public officer.

Elements: a. Accused is a public officer; b. The public officer entered into a contract or transaction on behalf of the government; and c. Such contract or transaction is grossly and manifestly disadvantageous to the government.

Elements: a. The accused must be a public officer discharging

(H) Director or indirectly having financing or pecuniary interest in any business, contract or transaction in

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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. NOTE: There are two modes of violating 3(h):

Elements of 1st mode of 3(H): a. b.

c.

The accused is a public officer; He has a direct or indirect financial or pecuniary interest in any business, contract, or transaction, whether or not prohibited by law; and He intervenes or takes part in his official capacity in connection with such interest.

Elements of 2nd mode of 3(H) a. b. c.

(I)

The accused is a public officer; He has a direct or indirect financial or pecuniary interest in any business, contract or transaction; He is prohibited from having such interest by the Constitution or any law

Directly or indirectly becoming interested, for personal gain, or having a material interest in any transaction or act requiring the approval of a board, panel or group of which he is a member, and which exercises discretion in such approval, even if he votes against the same or does not participate in the action of the board, committee, panel or group. Interest for personal gain shall be presumed against those public officers responsible for the approval of manifestly unlawful, inequitable, or irregular transaction or acts by the board, panel or group to which they belong.

(J)

Knowingly approving or granting any license, permit, privilege or benefit in favor of: i. any person not qualified for or not legally entitled to such license, permit, privilege or ii. advantage, or of a mere representative or dummy of one who is not so qualified or entitled.

(K) 1. Divulging valuable information of: i. confidential character ii. acquired by his office or by him on account of his official position to unauthorized persons, or 2. Releasing such information in advance of its authorized release date. (Sec. 3, RA 3019) Q: Can an accused be convicted of both Direct Bribery and a violation of Sec. 3(b) of RA 3019 arising from the same transaction? Lasallian Commission on Bar Operations

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A: YES. There is no double jeopardy for a charge or conviction under R.A. No. 3019 and the RPC for the same delictual act. The violation of Sec. 3(b) is neither identical nor necessarily inclusive of direct bribery. While they have common elements, not all the essential elements of one form part of the other. The same act or transaction gave rise to two separate and distinct offenses. (Merencillo vs.

People)

ANTI-HAZING ACT OF 2018 (RA 8049, AS AMENDED) HAZING An initiation rite or practice as a prerequisite for admission into membership in a fraternity, sorority or organization by placing the recruit, neophyte or applicant in some embarrassing or humiliating situations such as forcing him to do menial, silly, foolish and other similar tasks or activities or otherwise subjecting him to physical or psychological suffering or injury. (Sec. 1, RA 8049) WHEN INITIATION RITES ALLOWED No hazing or initiation rites in any form or manner by a fraternity, sorority or organization shall be allowed without prior written notice to the school authorities or head of organization 7 days before such initiation. The written notice shall: (1) indicate the period of the initiation activities which shall not exceed three (3) days, (2) include the names of those to be subjected to such activities, (3) further contain an undertaking that no physical violence be employed by anybody during such initiation rites. (Sec. 2, RA 8049) The head of the school or organization or their representatives must assign at least two (2) representatives of the school or organization, as the case may be, to be present during the initiation. It is the duty of such representative to see to it that no physical harm of any kind shall be inflicted upon a recruit, neophyte or applicant. (Sec. 3, RA 8049) PUNISHABLE ACTS AND PENALTIES If the person subjected to hazing or other forms of initiation rites suffers any physical injury or dies as a result thereof, the officers and members of the fraternity, sorority or organization who actually participated in the infliction of physical harm shall be liable as principals.

(Sec. 4, RA 8049) 220

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The responsible officials of the school or of the police, military or citizen's army training organization, may impose the appropriate administrative sanctions on the person or the persons charged even before their conviction. The maximum penalty shall be imposed in any of the following instances: (1) When the recruitment is accompanied by force, violence, threat, intimidation or deceit on the person of the recruit who refuses to join; (2) When the recruit, neophyte or applicant initially consents to join but upon learning that hazing will be committed on his person, is prevented from quitting; (3) When the recruit, neophyte or applicant having undergone hazing is prevented from reporting the unlawful act to his parents or guardians, to the proper school authorities, or to the police authorities, through force, violence, threat or intimidation; (4) When the hazing is committed outside of the school or institution; or (5) When the victim is below twelve (12) years of age at the time of the hazing. (Sec. 4, RA 8049) WHO CAN BE HELD RESPONSIBLE (A)

(B)

The owner of the place where hazing is conducted shall be liable as an accomplice, when he has actual knowledge of the hazing conducted therein but failed to take any action to prevent the same from occurring. If the hazing is held in the home of one of the officers or members of the fraternity, group, or organization, the parents shall be held liable as principals when they have actual knowledge of the hazing conducted therein but failed to take any action to prevent the same from occurring. The school authorities including faculty members who consent to the hazing or who have actual knowledge thereof, but failed to take any action to prevent the same from occurring shall be punished as accomplices for the acts of hazing committed by the perpetrators.

(C) The officers, former officers, or alumni of the organization, group, fraternity or sorority who actually planned the hazing although not present when the acts constituting the hazing were committed shall be liable as principals. A fraternity or sorority's adviser who is present when the acts constituting the hazing were committed and failed to take action to prevent the same from occurring shall be liable as principal. (D) The presence of any person during the hazing is prima facie evidence of participation therein as principal unless Lasallian Commission on Bar Operations

Criminal Law

he prevented the commission of the acts punishable herein. (E)

Any person charged under this provision shall not be entitled to the mitigating circumstance that there was no intention to commit so grave a wrong.

(F)

This section shall apply to the president, manager, director or other responsible officer of a corporation engaged in hazing as a requirement for employment in the manner provided herein.

ANTI-HIJACKING LAW (RA 6235) PUNISHABLE ACTS It shall be unlawful for any person to: (1) 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). NOTE: An aircraft is in flight from the moment all of its external doors are closed following embarkation until any of such doors is opened for disembarkation. Defense that the plane is not in flight during the commission of any of the punishable acts under R.A. 6235 is untenable. (2)

(3)

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). To ship, load or carry in any passenger aircraft operating as a public utility within the Philippines, and explosive, flammable, corrosive or poisonous substance or material (Sec. 3, RA 6235). AGGRAVATING CIRCUMSTANCES

When the person committing the violation employed 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). 221

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(2)

ANTI-PHOTO AND VIDEO VOYEURISM ACT (RA 9995) DEFINITION OF TERMS “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. "PHOTO OR VIDEO VOYEURISM" means: i. the act of taking photo or video coverage of a person or group of persons performing sexual act or any similar activity or; ii. 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 iii. 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 person's. "UNDER CIRCUMSTANCES IN WHICH A PERSON HAS A REASONABLE EXPECTATION OF PRIVACY" means i. belief that he/she could disrobe in privacy, without being concerned that an image or a private area of the person was being captured; or ii. 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 PROHIBITED ACTS (1)

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;

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(3)

(4)

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; 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 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. NOTE: The prohibition under paragraphs (2), (3) and (4) shall apply notwithstanding that consent to record or take photo or video coverage of the same was given by such person/s.

ANTI-PLUNDER ACT (RA 7080, AS AMENDED) 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. (Sec. 1, RA 7080) NATIONAL GOVERNMENT Includes the National Government, and any of its subdivisions, agencies or instrumentalities, including government-owned or -controlled corporations and their subsidiaries. (Sec. 1, RA 7080) PERSON Includes any natural or juridical person, unless the context indicates otherwise. (Sec. 1, RA 7080) ILL-GOTTEN WEALTH Any asset, property, business enterprise or material possession of any person, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes: (1)

(2)

Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; 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; 222

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(3)

(4)

(5)

(6)

Criminal Law

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; 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; 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 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.

iii.

iv.

by obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking; v. 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; vi. 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; and That the aggregate amount or total value of the illgotten wealth amassed, accumulated or acquired is at least P50 million (Enrile v. People)

(Sec. 1, RA 7080) PLUNDER “PLUNDER” is a crime committed by a public officer by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, by amassing, accumulating or acquiring ill-gotten wealth through a combination or series of overt acts in the aggregate amount or total value of at least P50 million Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. (Sec.

2, RA 7080, as amended by RA 7659)

c.

RULE OF EVIDENCE 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)

ELEMENTS OF PLUNDER

ANTI-SEXUAL HARASSMENT ACT (RA 7877)

a. That the offender is a public officer who acts by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates, or other persons;

WORK, EDUCATION OR TRAINING-RELATED SEXUAL HARASSMENT

b. That he amassed, accumulated or acquired illgotten wealth through a combination or series of the following overt or criminal acts: i. through misappropriation, conversion, mis use, or malversation of public funds or raids on the public treasury;

ii.

by receiving, directly or indirectly, any commission, gift, share, percentage, kickback or any other form of pecuniary benefits from any person and/or entity in connection with any government contract or

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project or by reason of the office or position of the public officer concerned; by the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities of government-owned or -controlled corporations or their subsidiaries;

PERSONS LIABLE (1)

In a work, education or training-related environment, sexual harassment may be committed by an: a. an employer, employee, manager, supervisor, agent of the employer, b. teacher, instructor, professor, coach, trainor, c. or any other person who, having authority, 223

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(2)

Criminal Law

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. WHEN COMMITTED

(A) In a work-related or employment environment, sexual harassment is committed when: i. The sexual favor is made as a condition in: a. the hiring or in the employment, reemployment or continued employment of said individual, or b. in granting said individual favorable compensation, terms of conditions, promotions, or privileges; or c. 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; ii. The above acts would impair the EE's rights or privileges under existing labor laws; or iii. The above acts would result in an intimidating, hostile, or offensive environment for the employee. (B)

In an education or training environment, sexual harassment is committed i. Against one who is under the care, custody or supervision of the offender; ii. Against one whose education, training, apprenticeship or tutorship is entrusted to the offender; iii. 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 iv. When the sexual advances result in an intimidating, hostile or offensive environment for the student, trainee or apprentice.

(C) When any person directs or induces another to commit any act of sexual harassment as defined, or cooperates in the commission thereof without which it would not have been committed (Sec. 3, RA 7877) The employer or head of office, educational or training institution shall be solidarily liable for damages arising from the acts of sexual harassment committed if the Lasallian Commission on Bar Operations

employer or head of office, educational or training institution is informed of such acts by the offended party and no immediate action is taken. (Sec. 5, RA 7877) THREE-FOLD LIABILITY RULE An action of sexual harassment may give rise to civil, criminal, and administrative liability on the part of the offender, and each proceeding can proceed independently of the others. (Domingo v. Rayala)

ANTI-TORTURE ACT (RA 9745) DEFINITIONS “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: a. obtaining from him/her or a third person information or a confession; b. punishing him/her for an act he/she or a third person has committed or is suspected of having committed; or c. intimidating or coercing him/her or a third person; or d. for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or e. at the instigation of or with the consent or acquiescence of a person in authority or agent of a person in authority. NOTE: It does not include pain or Buffering arising only from, inherent in or incidental to lawful sanctions. “OTHER CRUEL, INHUMAN AND DEGRADING TREATMENT OR PUNISHMENT” Refers to: a. a deliberate and aggravated treatment or punishment not enumerated under Section 4 of this Act, b. Inflicted by a person in authority or agent of a person in authority against a person under his/her custody, c. which attains a level of severity causing suffering, gross humiliation or debasement to the latter. ACTS OF TORTURE (1)

Physical torture is a form of punishment that causes severe pain, exhaustion, disability or dysfunction of one or more parts of the body, such as: A. Systematic beating, headbanging, punching, kicking, striking with truncheon or rifle butt or other similar objects, and jumping on the stomach; 224

Green Notes 2019

B. Food deprivation or forcible feeding with spoiled food, animal or human excreta and other stuff or substances not normally eaten; C. Electric shock; D. 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); E. The submersion of the head in water or water polluted with excrement, urine, vomit and/or blood until the brink of suffocation; F. Being tied or forced to assume fixed and stressful bodily position; G. Rape and sexual abuse, including the insertion of foreign objects into the sex organ or rectum, or electrical torture of the genitals; H. Mutilation or amputation of the essential parts of the body such as the genitalia, ear, tongue, etc.; I. Dental torture or forced extraction of the teeth; J. Pulling out of fingernails; K. Harmful exposure to the elements such as sunlight and extreme cold; L. The use of plastic bag and other materials placed over the head to the point of asphyxiation; M. The use of psychoactive drugs to change the perception, memory. alertness or will of a person, such as: i. The administration or drugs to induce confession and/or reduce mental competency; or ii. The use of drugs to induce extreme pain or certain symptoms of a disease; N. Other analogous acts of physical torture; (Sec. 3,

RA 9745) Mental/Psychological Torture are acts committed calculated to affect or confuse the mind and/or undermine a person's dignity and morale, such as: A. Blindfolding; B. Threatening persons or his/her relatives with bodily harm, execution or other wrongful acts; C. Confinement in solitary cells or secret detention places; D. Prolonged interrogation; E. Preparing a prisoner for a "show trial", public display or public humiliation of a detainee or prisoner; F. Causing unscheduled transfer of a person deprived of liberty from one place to another, creating the belief that he/she shall be summarily executed; G. Maltreating a member/s of a person's family; H. Causing the torture sessions to be witnessed by the person's family, relatives or any third party; Lasallian Commission on Bar Operations (2)

Criminal Law

I. J.

Denial of sleep or rest; 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; K. Deliberately prohibiting the victim to communicate with any member of his/her family; L. Other analogous acts of mental/psychological torture. (Sec. 3, RA 9745) (3)

Other Cruel, Inhuman and Degrading Treatment or Punishment (Sec. 5, RA 9745) APPLICATION

RULE: 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) EXCLUSIONARY RULE GENERAL RULE: Any confession, admission or statement obtained as a result of torture shall be inadmissible in evidence in any proceedings. EXCEPTION: If the same is used as evidence against a person or persons accused of committing torture (Sec. 8,

RA 9745). TORTURE AS A SEPARATE AND INDEPENDENT CRIME Torture as a crime shall not absorb or shall not be absorbed by any other crime or felony committed as a consequence, or as a means in the conduct or commission thereof. In which case, torture shall be treated as a separate and independent criminal act whose penalties shall be imposable without prejudice to any other criminal liability provided for by domestic and international laws (Sec. 15,

RA 9745).

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ANTI-TRAFFICKING IN PERSONS ACT (RA 9208, AS AMENDED) DEFINITION “TRAFFICKING IN PERSONS” – a. recruitment, obtaining, hiring, providing, offering, transportation, transfer, maintaining, harboring, or receipt of persons with or without the victim’s consent or knowledge, within or across national borders b. 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 c. 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. NOTE: The recruitment, transportation, transfer, harboring, adoption or receipt of a child for the purpose of exploitation or when the adoption is induced by any form of consideration for exploitative purposes shall also be considered as ‘trafficking in persons’ even if it does not involve any of the means set forth in the preceding paragraph (Sec. 3, as amended). “CHILD” - a person: a. below eighteen (18) years of age or b. one who is over eighteen (18) but is unable to fully take care of or protect himself/herself from abuse, neglect, cruelty, exploitation, or discrimination because of a physical or mental disability or condition (Sec. 3, as amended). “PROSTITUTION” - 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 (Sec. 3, as amended). “ FORCED LABOR” - the extraction of work or services from any person by means of enticement, violence, intimidation or threat, use of, force or coercion, including deprivation of freedom, abuse of authority or moral ascendancy, debt-bondage or deception including any work or service extracted from any person under the menace of penalty (Sec. 3, as amended).

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“SLAVERY” - the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised (Sec. 3, as amended). “INVOLUNTARY SERVITUDE” –a condition of enforced and compulsory service induced by means of any scheme, plan or pattern, intended to cause a person to believe that if he or she did not enter into or continue in such condition, he or she or another person would suffer serious harm or other forms of abuse or physical restraint, or threat of abuse or harm, or coercion including depriving access to travel documents and withholding salaries, or the abuse or threatened abuse of the legal process. (Sec. 3,

as amended). “SEX TOURISM” - a program organized by travel and tourism-related establishments and individuals which consists of tourism packages or activities, utilizing and offering escort and sexual services as enticement for tourists. This includes sexual services and practices offered during rest and recreation periods for members of the military (Sec. 3, as amended). “SEXUAL EXPLOITATION” – refers to: a. participation by a person in prostitution, pornography or the production of pornography, in exchange for money, profit or any other consideration or b. where the participation is caused or facilitated by any means of intimidation or threat, use of force, or other forms of coercion, abduction, fraud, deception, debt bondage, abuse of power or of position or of legal process, taking advantage of the vulnerability of the person, or giving or receiving of payments or benefits to achieve the consent of a person having control over another person; or c. in sexual intercourse or lascivious conduct caused or facilitated by any means as provided in this Ac

(Sec. 3, as amended). “DEBT BONDAGE” - the pledging by the debtor of his/her personal services or labor or those of a person under his/her control as security or payment for a debt, when the length and nature of services is not clearly defined or when the value of the services as reasonably assessed is not applied toward the liquidation of the debt (Sec. 3, as

amended). “PORNOGRAPHY” - any representation, through publication, exhibition, cinematography, indecent shows, information technology, or by whatever means, of a person engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a person for primarily sexual purposes (Sec. 3, as amended). 226

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PUNISHABLE ACTS (1)

Acts of Trafficking of Persons (Sec. 4, as amended). a. To recruit, obtain, hire, provide, offer, transport, transfer, maintain, harbor, 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, or sexual exploitation; 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 labor, slavery, involuntary servitude or debt bondage; c. 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; d. 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; e. To maintain or hire a person to engage in prostitution or pornography; f. 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; g. To adopt or facilitate the adoption of persons for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; h. 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; i. 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; j. 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: i. To believe that if the person did not perform

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such labor or services, he or she or another person would suffer serious harm or physical restraint; or ii. To abuse or threaten the use of law or the legal processes; and

(2)

k.

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: i. 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; ii. The use, procuring or offering of a child for prostitution, for the production of pornography, or for pornographic performances; iii. The use, procuring or offering of a child for the production and trafficking of drugs; and iv. 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

l.

To organize or direct other persons to commit the offenses defined as acts of trafficking under this Act.

Attempted Trafficking in Person a. 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. b. When any of the following acts is committed and the victim is a child: i. 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; ii. Executing, for a consideration, an affidavit of consent or a written consent for adoption; iii. Recruiting a woman to bear a child for the purpose of selling the child; 227

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iv. Simulating a birth for the purpose of selling the child; and v. Soliciting a child and acquiring the custody thereof through any means from among hospitals, clinics, nurseries, daycare centers, refugee or evacuation centers, and lowincome families, for the purpose of selling the child. (Sec. 4-A, as amended). (3)

Accomplice - any person who knowingly aids, abets, cooperates in the execution of the offense by previous or simultaneous acts defined in this Act (Sec. 4-B, as

amended). (4)

Accessories - whoever has the knowledge of the commission of the crime, and without having participated therein, either as principal or as accomplices, take part in its commission in any of the following manners: a. By profiting themselves or assisting the offender to profit by the effects of the crime; b. By concealing or destroying the body of the crime or effects or instruments thereof, in order to prevent its discovery; c. By harboring, concealing or assisting in the escape of the principal of the crime, provided the accessory acts with abuse of his or her public functions or is known to be habitually guilty of some other crime (Sec. 4-C, as amended). QUALIFIED TRAFFICKING IN PERSONS

(1) (2)

(3) (4)

(5)

(6) (7)

(8)

The trafficked person is a child; The inter-country adoption is effected for purposes of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude and debt bondage; Trafficking is committed by a syndicate (large-scale); 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; Trafficking is made for purposes of engaging in prostitution with law enforcement/military 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,

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Criminal Law

(9)

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 (Sec. 6, as

amended).

ANTI-VIOLENCE AGAINST WOMEN AND THEIR CHILDREN ACT (RA 9262) VIOLENCE AGAINST WOMEN AND THEIR CHILDREN Refers to any act or a series of acts 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 against: a. a woman who is his wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or b. her child whether legitimate or illegitimate, within or without the family abode It includes, but is not limited to, the following acts: A. "Physical Violence" refers to acts that include bodily or physical harm; B. "Sexual violence" refers to an act which is sexual in nature, committed against a woman or her child. It includes, but is not limited to: i. Rape, sexual harassment, acts of lasciviousness, treating a woman or her child as a sex object, making demeaning and sexually suggestive remarks, physically attacking the sexual parts of the victim's body, forcing her/him to watch obscene publications and indecent shows or forcing the woman or her child to do indecent acts and/or make films thereof, forcing the wife and mistress/lover to live in the conjugal home or sleep together in the same room with the abuser; ii. Acts causing or attempting to cause the victim to engage in any sexual activity by force, threat of force, physical or other harm or threat of physical or other harm or coercion; iii. Prostituting the woman or child. C.

"Psychological violence" refers to acts or omissions causing or likely to cause mental or emotional suffering of the victim such as but not limited to intimidation, harassment, stalking, 228

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Criminal Law

damage to property, public ridicule or humiliation, repeated verbal abuse and mental infidelity. It includes causing or allowing the victim to witness the physical, sexual or psychological abuse of a member of the family to which the victim belongs, or to witness pornography in any form or to witness abusive injury to pets or to unlawful or unwanted deprivation of the right to custody and/or visitation of common children D.

"Economic abuse" refers to acts that make or attempt to make a woman financially dependent which includes, but is not limited to the following: i. Withdrawal of financial support or preventing the victim from engaging in any legitimate profession, occupation, business or activity, except in cases wherein the other spouse/partner objects on valid, serious and moral grounds as defined in Article 73 of the Family Code; ii. Deprivation or threat of deprivation of financial resources and the right to the use and enjoyment of the conjugal, community or property owned in common; iii. Destroying household property; iv. Controlling the victims' own money or properties or solely controlling the conjugal money or properties. DEFINITION

"BATTERY" - an act of inflicting physical harm upon the woman or her child resulting to the physical and psychological or emotional distress. "BATTERED WOMAN SYNDROME" - a scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of cumulative abuse. "STALKING" - an intentional act committed by a person who, knowingly and without lawful justification follows the woman or her child or places the woman or her child under surveillance directly or indirectly or a combination thereof. "DATING RELATIONSHIP" - refers to a situation wherein the parties live as husband and wife without the benefit of marriage or are romantically involved over time and on a continuing basis during the course of the relationship. A casual acquaintance or ordinary socialization between two individuals in a business or social context is not a dating relationship. Lasallian Commission on Bar Operations

"SEXUAL RELATIONS" - a single sexual act which may or may not result in the bearing of a common child. "SAFE PLACE OR SHELTER" - any home or institution maintained or managed by the Department of Social Welfare and Development (DSWD) or by any other agency or voluntary organization accredited by the DSWD for the purposes of this Act or any other suitable place the resident of which is willing temporarily to receive the victim. "CHILDREN" - refers to those below eighteen (18) years of age or older but are incapable of taking care of themselves as defined under Republic Act No. 7610. It includes the biological children of the victim and other children under her care. (Sec. 3) PUNISHABLE ACTS (1) Causing physical harm to the woman or her child; (2) Threatening to cause the woman or her child physical harm; (3) Attempting to cause the woman or her child physical harm; (4) Placing the woman or her child in fear of imminent physical harm; (5) Attempting to compel or compelling the woman or her child to engage in conduct which the woman or her child has the right to desist from or desist from conduct which the woman or her child has the right to engage in, or attempting to restrict or restricting the woman's or her child's freedom of movement or conduct by force 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: a. Threatening to deprive or actually depriving the woman or her child of custody to her/his family; b. 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; c. Depriving or threatening to deprive the woman or her child of a legal right; d. 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; 229

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(6) Inflicting or threatening to inflict physical harm on oneself for the purpose of controlling her actions or decisions; (7) Causing or attempting to cause the woman or her child to engage in any sexual activity which does not constitute rape, by force or threat of force, physical harm, or through intimidation directed against the woman or her child or her/his immediate family; (8) Engaging in purposeful, knowing, or reckless conduct, personally or through another, that alarms or causes substantial emotional or psychological distress to the woman or her child. This shall include, but not be limited to, the following acts: a. Stalking or following the woman or her child in public or private places; b. Peering in the window or lingering outside the residence of the woman or her child; c. Entering or remaining in the dwelling or on the property of the woman or her child against her/his will; d. Destroying the property and personal belongings or inflicting harm to animals or pets of the woman or her child; and e. Engaging in any form of harassment or violence; (9) Causing mental or emotional anguish, public ridicule or humiliation to the woman or her child, including, but not limited to, repeated verbal and emotional abuse, and denial of financial support or custody of minor children of access to the woman's child/children. BATTERED WOMEN’S 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. (Sec. 26) NOTE: 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, courts shall be assisted by expert psychiatrists/ psychologists. (Sec. 26)

ELEMENTS: a. A person draws a check; b. The check is made or drawn and issued to apply on account or for value; c. The person knows that at the time of issue he does not have sufficient funds in or credit with the drawee bank for the payment of such check upon its presentment; (2)

The check is subsequently dishonored by the drawee bank for the insufficiency of funds or would have been dishonored for the same reason had not the drawer, without any valid reason ordered the bank to stop payment.

(3)

Failing to keep sufficient funds to cover check if presented within a period of 90 days from the date appearing thereon. ELEMENTS: a. A person has sufficient funds with the drawee bank when he makes or issues a check; b. He fails to keep sufficient funds or to maintain a credit to cover the full amount if presented within a period of 90 days from the date appearing thereon; c. The check is dishonored. (Sec.1, BP 22) CONSPIRACY IN BP 22

If there is no express proscription of the supplementary application of the provisions including the rule on conspiracy, such rule may be applied supplementarily.

[Go-Tan v Tan, 2008] NOTE: Prosecution under this law shall be without prejudice to any liability for any violation in the RPC.

COMPREHENSIVE DANGEROUS DRUGS ACT (RA 9165, AS AMENDED) SALE, TRADING, ADMINISTRATION, DISPENSATION, DELIVERY, DISTRIBUTION AND TRANSPORTATION OF DANGEROUS DRUGS AND/OR CONTROLLED PRECURSORS AND ESSENTIAL CHEMICALS (SEC. 5)

BOUNCING CHECKS LAW (B.P. BLG. 22) PUNISHABLE ACTS (1)

Making or drawing and issuing a check knowing at the time of issue that he does not have sufficient funds.

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(1)

PUNISHABLE ACTS Selling Act of giving away any dangerous drug and/or controlled precursor and essential chemical whether for money or any other consideration

(Sec. 3 [ii], RA 9165). 230

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(2)

(3)

(4)

(5)

Criminal Law

Trading Transactions involving the illegal trafficking of dangerous drugs and/or controlled precursors and essential chemicals using electronic devices such as, but not limited to, text messages, e-mail, mobile or landlines, two-way radios, internet, instant messengers and chat rooms or acting as a broker in any of such transactions whether for money or any other consideration in violation of this Act (Sec. 3 [jj], RA 9165). Administering Act of introducing any dangerous drug into the body of any person, with or without his/her knowledge, by injection, inhalation, ingestion or other means, or of committing any act of indispensable assistance to a person in administering a dangerous drug to himself/herself unless administered by a duly licensed practitioner for purposes of medication. (Sec. 3 [a], RA 9165). Dispensing Act of giving away, selling or distributing medicine or any dangerous drug with or without the use of prescription. (Sec. 3 [m], RA 9165). Delivering Any act of knowingly passing a dangerous drug to another, personally or otherwise, and by any means, with or without consideration (Sec. 3 [k],

RA 9165). (6) (7)

(8)

Giving away to another; Distributing dispatch in transit or Transporting any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity involved, or shall act as a broker in any of such transactions. (Sec. 5)

ILLEGAL SALE OF DANGEROUS DRUGS (SEC. 5) ELEMENTS 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

(People v. Manansala) ILLEGAL POSSESSION OF DANGEROUS DRUGS (SEC. 11) ELEMENTS a.

identified as a prohibited drug; b. such possession was not authorized by law; and c. the accused freely and consciously possessed the said drug (People v. Manansala). NOTE: Possession of equipment, instrument, apparatus and other paraphernalia fit or intended for use shall be prima facie evidence that the possessor has smoked, consumed, administered to himself/herself, injected, ingested or used a dangerous drug and shall be presumed to have violated Section 15 of RA 9165. (Sec. 12,

RA 9165) ILLEGAL USE OF DANGEROUS DRUGS (SEC. 15) USE Any act of injecting, intravenously or intramuscularly, of consuming, either by chewing, smoking, sniffing, eating, swallowing, drinking or otherwise introducing into the physiological system of the body, any of the dangerous drugs (Sec. 3 [kk], RA 9165). ELEMENTS a. b. c.

a person is apprehended or arrested; the said person was subjected to a drug test; and the person tested positive for use of any dangerous drug after a confirmatory test (People v. Sullano)

CUSTODY AND DISPOSITION OF CONFISCATED, SEIZED AND/OR SURRENDERED DANGEROUS DRUGS (SEC. 21, as amended) DUTY OF PDEA: 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: (1) The apprehending team having initial custody and control of the dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment shall, i. (Rule on Inventory and Photography) Immediately after seizure and confiscation, conduct a physical inventory of the seized items and photograph the same ii. (Rule on Witnesses) In the presence of the following persons who shall be required to sign the copies of the inventory and be given a copy thereof

the accused was in possession of an item or object

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a. accused or the person/s from whom such items were confiscated and/or seized, or; his/her representative or counsel, b. with an elected public official; and c. a representative of the National Prosecution Service or the media NOTE: (a) if prior to the amendment of RA 9165 by RA 10640 (June 7, 2002) - "a representative from the media and the DOJ, and any elected public official"; (b) if after the amendment of RA 9165 by RA 10640, - an elected public official and a representative of the National Prosecution Service or the media." iii. (Rule on Venue) Conduct a physical inventory and photograph at: a. the place where the search warrant is served; or b. at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures

Criminal Law

the media and the DOJ, civil society groups and any elected public official (5) Issuance by the Board of a sworn certification of the fact of destruction or burning of the subject items (6) After promulgation and judgment in the criminal case, the trial prosecutor shall inform the Board of the final termination of the case and, 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. CHAIN OF CUSTODY The (D-R-A-M-S) duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/ confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. LINKS IN THE CHAIN OF CUSTODY

seizure and marking by the apprehending officer

iv. Noncompliance of the requirements shall not render void and invalid such seizures and custody over said items, as long as prosecution proves: a. there is a justifiable ground for noncompliance; and b. the integrity and evidentiary value of the seized items are properly preserved NOTE: Non-compliance refer mainly to the Rule on Witnesses. (2) Submission to the PDEA Forensic Laboratory for a qualitative and quantitative examination within 24 hours upon confiscation or seizure of the dangerous drug and the instruments or paraphernalia (3) Issuance of a certification of the forensic laboratory examination results, done under oath by the forensic laboratory examiner, immediately after the receipt of the subject items (Sec. 21, RA 10640). (4) i. Conduct of an ocular inspection of the confiscated, seized and/or subject items after the filing of the criminal case by the Court ii. Destruction or burning of the subject items of the PDEA within 24 hours, in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from Lasallian Commission on Bar Operations

Turnover by apprehending officer to the investigating officer Turnover by investigating officer to the forensic chemist for examination Turnover and submission from the forensic chemist to the court

MARKING Placing by the arresting officer of his/her initials and signature on the items after seizure. Marking is vital since the succeeding handlers will use the markings as reference. Marking must be done: (1) In the presence of the apprehended violator, and (2) Immediately upon confiscation NOTE: Marking in the nearest police station contemplates a case of warrantless searches and seizures. (People vs.

Gayoso) Guidelines in order that the provisions of Sec. 21 of R.A. 9165 must be well-enforced and duly proven in courts: (1) In the sworn statements/affidavits, the apprehending/seizing officers must state their

232

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(2)

(3)

(4)

Criminal Law

compliance with the requirements of Section 21 (1) of R.A. No. 9165, as amended, and its IRR. In case of non-observance of the provision, the apprehending/seizing officers must state the justification or explanation therefor as well as the steps they have taken in order to preserve the integrity and evidentiary value of the seized/confiscated items. If there is no justification or explanation expressly declared in the sworn statements or a davits, the investigating fiscal must not immediately le the case before the court. Instead, he or she must refer the case for further preliminary investigation in order to determine the (non) existence of probable cause. If the investigating fiscal filed the case despite such absence, the court may exercise its discretion to either refuse to issue a commitment order (or warrant of arrest) or dismiss the case outright for lack of probable cause in accordance with Section 5, Rule 112, Rules of Court. (People vs. Romy Lim)

COMPREHENSIVE FIREARMS AND AMMUNITION REGULATION (RA 10591) LOOSE FIREARM An unregistered rearm, an obliterated or altered rearm, rearm which has been lost or stolen, illegally manufactured rearms, registered rearms 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]). PUNISHABLE ACTS (1) (2)

Unlawfully acquiring or possessing a small arm; Unlawfully acquiring or possessing 3 or more small arms or Class-A light weapons (3) Unlawfully acquiring or possessing a Class-A light weapon; (4) Unlawfully acquiring or possessing a Class-B light weapon; (5) A penalty of one 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: a. Loaded with ammunition or inserted with a loaded magazine; b. 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; c. Fitted or mounted with sniper scopes, rearm muffler or rearm silencer; Lasallian Commission on Bar Operations

d. e.

(6) (7)

(8) (9)

Accompanied with an extra barrel; and Converted to be capable of firing full automatic bursts. Unlawfully acquiring or possessing a major part of a small arm; Unlawfully acquiring or possessing ammunition for a small arm or Class-A light weapon. NOTE: 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; Unlawfully acquiring or possessing a major part of a Class-A light weapon; Unlawfully acquiring or possessing ammunition for a Class-A light weapon. NOTE: 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;

(10) Unlawfully acquiring or possessing a major part of a Class-B light weapon; and (11) Unlawfully acquiring or possessing ammunition for a Class-B light weapon. NOTE: 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. 28, RA 10591) RULES ON USE OF LOOSE FIREARMS (1) When the use of a loose firearm is inherent in the commission of a crime punishable under the RPC or other Special laws, such use shall be considered as an aggravating circumstance (2) 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. NOTE: Penalty for illegal possession of firearm is Prision mayor in its medium period (8 years 1 day to 10 years) (3) 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 233

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Criminal Law

mayor in its minimum period shall be imposed in

(b)

addition to the penalty for the crime punishable under RPC or other special laws of which he/she is found guilty (4) If the violation of this Act is in furtherance of, or incident to, or in connection with the crime of rebellion or 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. (5) If the crime is committed by the person without using the loose firearm, the violation shall be considered as a distinct and separate offense. (Sec. 29, RA 10591)

f.

CYBERCRIME PREVENTION ACT (RA 10175) PUNISHABLE ACTS 1. OFFENSES AGAINST THE CONFIDENTIALITY, INTEGRITY AND AVAILABILITY OF COMPUTER DATA AND SYSTEMS: (Sec. 4[a], RA 10175) a. Illegal Access. — The access to the whole or any part of a computer system without right. 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. c. 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. 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. i. The use, production, sale, procurement, importation, distribution, or otherwise making available, without right, of: (a) A device, including a computer program, designed or adapted primarily for the purpose of committing any of the offenses under this Act; or Lasallian Commission on Bar Operations

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 purpose of committing any of the offenses under this Act. ii. The possession of an item 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 pro t, mislead, destroy reputation, and deprive others from registering the same, if such a domain name is: i. Similar, identical, or confusingly similar to an existing trademark registered with the appropriate government agency at the time of the domain name registration; ii. Identical or in any way similar with the name of a person other than the registrant, in case of a personal name; and iii. Acquired without right or with intellectual property interests in it.

2. COMPUTER-RELATED OFFENSES: (Sec. 4[b], RA

10175) a.

b.

c.

Computer-related Forgery. i. 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; or ii. The act of knowingly using computer data which is the product of computer-related forgery as defined herein, for the purpose of perpetuating a fraudulent or dishonest design. 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 NOTE: If no damage has yet been caused, the penalty imposable shall be one (1) degree lower. 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 NOTE: If no damage has yet been caused, the penalty imposable shall be one (1) degree lower. 234

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3. CONTENT-RELATED OFFENSES: (Sec. 4[c], RA 10175) a.

b.

a.

c.

4.

5.

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. 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. 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: i. There is prior affirmative consent from the recipient; or ii. The primary intent of the communication is for service and/or administrative announcements from the sender to its existing users, subscribers or customers; iii. The following conditions are present: a. The commercial electronic communication contains a simple, valid, and reliable way for the recipient to reject receipt of further commercial electronic messages (opt-out) from the same source; b. The commercial electronic communication does not purposely disguise the source of the electronic message; and c. 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. 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.

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. (Sec. 5) 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, RA 10175)

Lasallian Commission on Bar Operations

APPLICABILITY OF RA 10175 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. NOTE: 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,

RA 10175) CONSTITUTIONAITY OF CYBER LIBEL The Cybercrime law (on libel) is constitutional. The law provides for presumed malice on the part of the individual who shares defamatory articles in the cyberspace, he cannot make a general denial that there is no malice on his part. Relief is also provided for in the RPC. The law merely specified what is already indicated in the RPC. (Disini v. Secretary of Justice). PRESCRIPTIVE PERIOD Libel in relation to RA 10175 prescribes in 15 years. Although the RA 10175, does not categorically state the prescriptive period for such action, the new prescriptive period for the crime of libel in relation to RA No. 10175 can be derived from the penalty imposed on the said crime. Section 6 of RA 10175 provides that the "penalty to be imposed shall be 1 degree higher than that provided for by the RPC, as amended, and special laws, as the case may be." As such, the former penalty of prision correccional in its minimum and medium periods is increased to prision correccional in its maximum period to prision mayor in its minimum period. The new penalty, therefore, becomes afflictive, following Section 25 of the RPC. Corollarily, following Article 90 of the RPC, the crime of libel in relation to RA 10175 now prescribes in 15 years. (Tolentino vs.

People, 2018). Q: Which court has jurisdiction to hear violations of RA 10175? A: Any RTC. Section 21 of RA 10175 vests the RTC with jurisdiction without any qualification as to the place where the same should be filed. This is in accordance with Section 2, Rule 4 of the ROC, which provides that: “all other actions may be commenced and tried where the plaintiff or any of the principal plaintiffs reside, or where the defendant or any of the principal defendants reside, or in the case of a non- resident defendant where he may be found, at the election of the plaintiff." (Tolentino vs.

People, 2018). 235

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HUMAN SECURITY ACT (RA 9372)

ACCOMPLICE (1)

PUNISHABLE ACTS (1)

Committing any of the following acts 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):

(2)

UNDER RPC

UNDER SPL

i. Piracy in General and Mutiny in the High Seas or in the Philippine Waters; ii. Rebellion or Insurrection; iii. Coup d' Etat, including acts committed by private persons; iv. Murder; v. Kidnapping and Serious Illegal Detention vi. Crimes Involving Destruction

i. Law on Arson; ii. Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990; iii. Atomic Energy Regulatory and Liability Act of 1968; iv. Anti-Hijacking Law; v. Anti-Piracy and AntiHighway Robbery Law of 1974; vi. Decree Codifying the Laws on Illegal and Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunitions or Explosives

Conspiring to Commit Terrorism(Sec. 4, RA 9372) NOTE: 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. ELEMENTS OF TERRORISM

a.

b.

c.

Offender commits an act punishable under any of the cited provisions of the RPC, or under any of the enumerated special penal laws; The commission of the predicate crime sows and creates a condition of widespread and extraordinary fear and panic among the populace; The offender is actuated by the desire to coerce the government to give in to an unlawful demand.|||

(Sourthern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council) Lasallian Commission on Bar Operations

(2)

(3)

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. (Sec. 5, RA 9372)

ACCESSORY Any person who: a. having knowledge of the commission of the crime of terrorism or conspiracy to commit terrorism, and b. without having participated therein, either as principal or accomplice under Articles 17 and 18 of the Revised Penal Code, c. takes part subsequent to its commission in any of the following manner: i. by profiting himself or assisting the offender to profit by the effects of the crime; ii. by concealing or destroying the body of the crime, or the effects, or instruments thereof, in order to prevent its discovery; iii. by harboring, concealing, or assisting in the escape of the principal or conspirator of the crime NOTE: 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 subpar (a). (Sec. 6 RA 9372) ABSORPTION PRINCIPLE When a person has been prosecuted under a provision of this Act, 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)

NEW ANTI-CARNAPPING ACT OF 2006 (RA 10883) UNLAWFUL ACTS (1) (2) (3)

Carnapping Concealment of Carnapping Defacing or Tampering with Serial Numbers of Motor Vehicle Engines, Engine Blocks and Chassis 236

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(4) (5) (6)

Criminal Law

Identity Transfer Transfer of Vehicle Plate without securing the proper authority from the LTO Sale of Second Hand Spare Parts taken from a carnapped vehicle

CARNAPPING 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. (Sec. 3, RA 10883)

in the violation. Any public official or employee who directly commits the unlawful acts 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. (Sec. 4, RA 10883)

OBSTRUCTION OF JUSTICE LAW (PD 1829)

PENALTY FOR CARNAPPING CRIME

PERIOD

Carnapping, regardless of the value of the motor vehicle, where carnapping is committed without violence against or intimidation of persons, or force upon things carnapping is committed by means of violence against or intimidation of persons, or force upon things

imprisonment for not less than twenty (20) years and one (1) day but not more than thirty (30) years

When the owner, driver, or occupant of the carnapped motor vehicle is killed or raped in the commission of the carnapping

imprisonment for not less than thirty (30) years and one (1) day but not more than forty (40) years life imprisonment

OFFENDER Any person who knowingly or willfully obstructs, impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal cases PUNISHABLE ACTS (1)

i.

(2)

Altering, destroying, suppressing or concealing any paper, record, document, or object a. with intent to impair its verity, authenticity, legibility, availability, or admissibility as evidence in any investigation of or official proceedings in, criminal cases, or b. to be used in the investigation of, or official proceedings in, criminal cases;

(3)

i. Harboring, concealing, facilitating the escape of: a. any person he knows, or b. has reasonable ground to believe or suspect has committed any offense under existing penal laws ii. in order to prevent his arrest prosecution and conviction;

(4)

Publicly using a fictitious name for the purpose of: a. concealing a crime, b. evading prosecution or c. the execution of a judgment, or d. concealing his true name and other personal circumstances for the same purpose or purposes;

(5)

Delaying the prosecution of criminal cases by 237

(Sec. 3, RA 10883) 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) CONCEALMENT OF CARNAPPING Any person who conceals carnapping shall be punished with imprisonment of 6 years up to 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. NOTE: If the person violating is a juridical person, the penalty 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 Lasallian Commission on Bar Operations

Preventing witnesses from: a. testifying in any criminal proceeding or b. reporting the commission of any offense or c. the identity of any offender/s ii. By means of bribery, misrepresentation, deceit, intimidation, force or threats;

Green Notes 2019

obstructing the service of process or court orders or disturbing proceedings in the fiscal's offices, in Tanodbayan, or in the courts; (6)

Making, presenting or using any record, document, paper or object with knowledge of its falsity and with intent to affect the course or outcome of the investigation of, or official proceedings in, criminal cases;

(7)

Soliciting, accepting, or agreeing to accept any benefit in consideration of abstaining from, discounting, or impeding the prosecution of a criminal offender;

(8)

i. Threatening directly or indirectly another with the infliction of any wrong upon: a. his person, honor or property or b. that of any immediate member or members of his family ii. 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, iii. in order to prevent a person from appearing in the investigation of or in official proceedings in, criminal cases;

(9)

Giving of false or fabricated information to mislead or prevent the law enforcement agencies from apprehending the offender or from protecting the life or property of the victim; or fabricating information from the data gathered in confidence by investigating authorities for purposes of background information and not for publication and publishing or disseminating the same to mislead the investigator or to the court.

ANTI-CHILD ABUSE LAW (R.A. NO. 7610, AS AMENDED)

CHILDREN Refers to persons: a. below eighteen (18) years of age or b. those over 18 years of age 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 (Sec. 3[a], RA 7610).

Lasallian Commission on Bar Operations

Criminal Law

CHILD PROSTITUTION AND OTHER SEXUAL ABUSE CHILDREN EXPOLITED IN PROSTITUTION AND OTHER SEXUAL ABUSE (CEPOSA) A child is deemed exploited in prostitution or subjected to other sexual abuse, when the child indulges in sexual intercourse or lascivious conduct a. for money, profit, or any other consideration; or b. under the coercion or influence of any adult, syndicate or group (Sec. 5, RA 7610). PROHIBITED ACTS (1)

Engaging in or promoting, facilitating or inducing child prostitution which include, but are not limited to, the following: a. Acting as a procurer of a child prostitute; b. Inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means; c. Taking advantage of influence or relationship to procure a child as prostitute; d. Threatening or using violence towards a child to engage him as a prostitute; or e. Giving monetary consideration, goods or other pecuniary bene t to a child with intent to engage such child in prostitution.

(2)

Committing the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse NOTE: If the victim is under 12 years of age, the perpetrator shall be prosecuted under the RPC for rape or lascivious conduct, as the case may be.

(3)

Deriving profit or advantage, whether as manager or owner of the establishment where the prostitution takes place, or of the sauna, disco, bar, resort, place of entertainment or serving as a cover or which engages in prostitution in addition to the activity for which the license has been issued to said establishment. (Sec. 5, RA 7610). ELEMENTS OF SEXUAL ABUSE UNDER SEC. 5(A)

NOTE: Acts punished pertain to or are connected with child prostitution where the child is abused primarily for profit a. Accused commits the act of sexual intercourse or lascivious conduct. b. 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 18 238

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Criminal Law

years of age. (Olivarez v. Court of Appeals) ELEMENTS OF LASCIVIOUS CONDUCT UNDER SEC. 5(B)

(2)

NOTE: punishes sexual intercourse or lascivious conduct committed on a child subjected to other sexual abuse. (1)

The offender commits any act of lasciviousness or lewdness; NOTE: Lascivious conduct is defined as the intentional touching, either directly or through clothing, of the genitalia of any person, with intent to abuse or gratify sexual desire (Section 32, Article XIII,

(3)

(4)

IRR of R.A. 7610). (2)

(3)

That it be done under any of the following circumstances: a. Through force, threat, or intimidation; b. When the offended party is deprived of reason or otherwise unconscious; c. By means of fraudulent machination or grave abuse of authority; d. When the offended party is under 12 years of age or is demented, even though none of the circumstances mentioned above be present; That said act is performed with a child exploited in prostitution or subjected to other sexual abuse; NOTE: a child is deemed exploited when the child indulges in sexual intercourse or lascivious conduct (a) for money, profit or any other consideration; or (b) under the coercion or any influence of any adult, syndicate or group.

(4)

That the offended party is a child, whether male or female, below 18 years of age (People vs. Macapagal). CHILD TRAFFICKING

Trading and dealing with children including, but not limited to, the act of buying and selling of a child for money, or for any other consideration, or barter (Sec. 7, RA

7610). OTHER ACTS OF ABUSE Other acts of neglect, abuse, cruelty or exploitation and other conditions prejudicial to the child's development: (1) Committing any other acts of child abuse, cruelty or exploitation or to be responsible for other Lasallian Commission on Bar Operations

(5)

conditions prejudicial to the child's development including those covered by Article 59 of Presidential Decree No. 603, as amended, but not covered by the Revised Penal Code, as amended Keeping or having as 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 Inducing, delivering or offering a minor to any one prohibited by this Act to keep or have in his company a minor as provided in the preceding paragraph 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 Using, coercing, forcing or intimidating a street child or any other child to; a. Beg or use begging as a means of living; b. Act as conduit or middlemen in drug trafficking or pushing; or c. Conduct any illegal activities (Sec. 10, RA

7610). Section 10(a) punishes 4 distinct offenses: (1) child abuse; (2) child cruelty; (3) child exploitation, and (4) being responsible for conditions prejudicial to the child’s development. An accused can be prosecuted and be convicted under Section 10(a), Article VI of Republic Act No. 7610 if he commits any of the four acts therein. The prosecution need not prove that the acts of child abuse, child cruelty and child exploitation have resulted in the prejudice of the child because an act prejudicial to the development of the child is different from the former acts (People vs. Lucido). Q: When is an accused liable for lascivious conduct under RA 7610, and not under Art. 336 of the RPC? A: RA 7610 finds application when the victims of abuse, exploitation or discrimination are children. (Orsos vs.

People). Q: Can an accused be charged for both Rape under the RPC and Sexual Abuse under RA 7610? A: YES. The provisions of the RPC and RA 7610 show that 239

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rape and sexual abuse are two (2) separate crimes with distinct elements. Charging an accused with rape, under the Revised Penal Code, and with sexual abuse, under RA 7610, in case the offended party is a child 12 years old and above, will not violate the right of the accused against double jeopardy (People v Udang, Sr.)

AGE OF VICTIM

Under 12 y.o or demented

12 y.o. or below 18, or 18 but unable

18 y.o. and above

Acts of Lascivious ness committed against CEPOSA Sexual Assault committed against CEPOSA Sexual Intercours e committed against CEPOSA Rape by Carnal Knowledge

Acts of Lasciviousness under the RPC in relation to Sec. 5(b) of R.A. 7610:

Lascivious conduct 75 under Section 5 (b) of R.A. No. 7610

N/A

Sexual Assault under the RPC in relation to Sec. 5 (b) of R.A. 7610:

Lascivious Conduct under Section 5 (b) of R.A. No. 7610

N/A

Rape under the RPC

Sexual Abuse under Sec. 5(b) of R.A. No. 7610

N/A

Rape under the RPC

Rape under the RPC

Rape by Sexual Assault

Sexual Assault under the RPC in relation to Sec. 5 (b) of R.A. 7610

Rape under Art. 266-A (1) in relation to Art. 266- B of the RPC Lascivious Conduct under Section 5 (b) of R.A. No. 7610

CRIME

Sexual Assault the RPC

(People vs. Tulagan)

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240