Lecture Notes In Criminal Law Review By Judge Leonido

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LECTURE NOTES IN CRIMINAL LAW REVIEW By: Judge EDGARDO C. LEONIDO MTCC-Maasin City

There are basically four (4) kinds of questions asked in the BAR: (1) Is there a crime? (2) Is the accused liable? (3) What is the crime committed? (4) Is the charge correct?

My advice: Always form your opening statements in a direct and concise manner, then follow up with your arguments. If the question is answerable by “yes” or “no”, immediately say so, as the case may be, then your arguments.

CRIMINAL LAW- is that branch of Municipal law which defines crimes, treats of their nature and provides for their punishment. It is termed as municipal law from the view point of international law.

Characteristics of Criminal Law: (1) GENERALITY – which means that our criminal law, particularly the RPC, covers all persons, regardless of sex, age, religion or creed. This means all persons who reside or sojourn in the Philippines. Exceptions: (1) Article 14 of the New Civil Code which provides: “Penal laws and those of public security and safety shall be obligatory upon all who live or sojourn in the Philippine territory, subject to the principles of public international law and to treaty stipulations”. By principles of international law, the following are exempt from criminal prosecution: sovereigns or heads of states, ambassadors, ambassadors plenipotentiary and monsters-resident, charges d’affairs and attaches. By treaty stipulations : P.I. – U.S.Military Bases Agreement. (2) Article IV, Section 11, 1987 Philippine Constitution granting immunity to members of congress from libel or slander suits in connection with any speech delivered on the floor of the house during a regular or special session. (3) Voluntary act of government: Republic Act 75, which extends immunity to the domestics or domestics servants of duly accredited ambassadors, if registered in the Department of Foreign Affairs. This is applicable only in cases where the country of the diplomatic representative adversely affected has provided for similar protection to duly accredited representatives of the Republic of the Philippines.

Jurisdiction of Civil Courts Over Offenses Committed by Person Subject to Military Law. 1. The Civil Courts have concurrent jurisdiction with the military court or general court martial as the jurisdiction of civil tribunals is unaffected by the military character of the person brought before them for trial. (U.S. vs. Sweet, 1 Phil 18). 2. The jurisdiction of a military court over a soldier is not exclusive of the civil courts even in time of war, if the soldier is stationed in a place where the civil courts are functioning and where no actual hostilities are in progress. ( Valdez vs. Lucero, 76 Phil. 356).

Persons subject to military law:

a) All officers, members of the nurse corps and soldiers belonging to the regular forces of the Philippine army, all reserves from the date of their call to active duty and while on such active duty; all trainees undergoing military instructions; and all other persons lawfully called;

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b) Cadets, flying cadets and probationary third lieutenants; all trainers of the camp and all persons accompanying or serving with the army of the Philippines in the field of war or when martial law is declared through not otherwise wise subject to these articles; c) All persons under sentence adjudged by court martial. (2) TERRITORIALITY – which means that our penal law is applicable to all crimes committed within the limits of the Philippine territory, which includes the atmosphere, interior waters and maritime zone. NOTE: a. If crime is committed within the Philippine Territory – INTRATERRITORIAL APPLICATION. b. If committed outside our territory – EXTRATERRITORIAL APPLICATION. These acts are subject to the RPC only when they are committed not within the territory of another sovereign. The general rule is that when the act is committed in the jurisdiction of another country, the laws of that country shall apply in view of the territoriality of its laws. Exception: The Revised Penal Code may be applied outside Philippine territory against those: (a) Should commit an offense while on a Philippine ship or airship. 1.1 Provided the Philippine ship or airship must be duly registered under the Philippine laws. 1.2 The reason for the exception is that when such vessel is beyond the maritime zone it is considered an extension of Philippine national territory. 1.3 But if the said vessel or aircraft is within the territory of a foreign country when the crime is committed, the laws of that country will apply as a rule. 1.4 But if the accused in a registered Philippine vessel committed homicide on board said vessel while in the territorial waters of a foreign country, like Vietnam, was not prosecuted before a Vietnam court, he could be tried in our court. (People vs. Togoto, CA, 68 Off. Gaz. 8317). (b) Should forge or counterfeit any coin or currency note or any obligation or security of the Philippine government; (c) Should be liable for acts connected with the introduction into the country of the obligations and securities afore-stated. Reason (b&c): To preserve and maintain the financial credit and stability of the state. A sweepstake ticket is an obligation of the Philippine government. (d) While being public officers or employees, should commit an offense in the exercise of their functions, like the disbursing official of a Philippine embassy and it must refer to the discharge of his function. 1.1

The General Rule: RPC applies only to public officers and employees if the offense committed pertains to the exercise of official duties. Example: Malversation, Illegal Exaction, and Bribery.

There are even offenses which are not connected with their function and yet, the general will apply: Ex. Acts of Lasciviousness (where he attempts his secretary while in office). If crime is committed outside, determine first if it was connected with the discharge of his public duties. If connected, RPC will apply. If not, foreign law will apply. Exception: If it is committed within the Philippine embassy, regardless of the nature, the RPC will govern, because the embassy grounds are considered to be an extension of Philippine jurisdiction in a foreign country. Problem (For Assignment): A deposition was supposed to be taken in Singapore and the consul assigned there did it. The deponent requested the daughter of said consul to prevail over her father to alter the deposition in consideration of certain sum of money. The daughter agreed and succeeded in convincing her father. What crime is committed and who shall be liable? Answer: The crimes committed are falsification and bribery for accepting the consideration. The daughter shall be guilty for corruption for corrupting her father under Sec. 3A of the Anti-Graft and Corrupt Practices Act. (e) Should commit any crime against national security and the law of nations as defined in Title I, Book II of the Code (Article 2)

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Reason: To safeguard the existence of the state. Example: ESPIONAGE. Example of crimes against law of nations: PIRACY and MUTINY. Piracy is triable anywhere. Jurisdiction over crimes committed on board foreign vessels while in Philippine waters. 1. If the foreign vessel is a warship – our courts have no jurisdiction. REASON: The vessel is an extension of the territory of the country to which it belongs and is not subject to the laws of another state. (U.S. vs Fowler, 1Phil.614).

Rules on Merchant Vessels:

FRENCH RULE: The law to be applied is that of the nationality of the vessel. (Law of the Flag State). The foreign country where the crime is committed shall consider the vessel as an extension of the territory of the country whose flag it flies. The foreign country will not apply its criminal law, unless the crimes affects the national security or public order of such foreign country. ENGLISH RULE/ANGLO-AMERICA RULE: The emphasis is on the territory where the crime is committed. (The Coastal State).The foreign country where the crime is committed shall apply its own laws for as long as the vessel was in the territorial waters when the offense was committed, unless the crime pertains only to the internal management of the vessel in which case the laws of the flag state shall govern. The Anglo-American rule is followed in our jurisdiction. (U.S. vs. Bull, 15 Phil. 7).

Comments: In (U.S. vs. Look Chow, 18 Phil. 573), and in the commentaries of Antonio Gregorio, it would seem that the French Rule was applied in this case, thus: “The legal application of the rule is that the crime committed on board a foreign vessel in transit in Philippine waters must affect a breach of public order to be triable by our courts. Hence, the rule does not apply to a case involving mere possession of opium on board a foreign vessel in transit in Philippines waters as such does not involve a breach of public order unless the opium is landed on Philippines soil”. In the case of (U.S. vs. Wong Cheng, 46 Phil. 729): “ The rule, however, applies to a case regarding smoking of opium on board said vessel as such already involves a breach of public order because it causes such drug to produce its pernicious effects within our country”. Clearly it is the French Rule that is applied in these two cases. But look at in the case of (U.S. vs. Ah Singh, 36 Phil. 978), it says: “ But of the foreign vessel is not in transit and a Philippine port is its destination, any crime committed on board said vessel, like possession of opium is triable by our courts, except if the crimes involves the internal management of the vessel”. ( underlining supplied).

Theories of Criminal Law and their Characteristics:

A. CLASSICAL THEORY/PHILOSOPHY (1) The penalty is imposed for retribution; to make the wrongdoer pay for the wrong he has done. Make his suffer what the victim suffered. (2) The penalty is applied on a mechanical manner. What you do to other will be done unto you. Ex. “an eye for an eye”. (3) Emphasis on the crime, not on the criminal. There is a scant regard for human element. It does not consider the reasons of the offender for doing it. (4) the man is considered a moral creature who understands what is right and what is wrong such that of he does something wrong he must be prepared the suffer the consequences of such act.

B. POSITIVIST PHILOSOPHY (1) The purpose of the penalty is reformation. To correct.

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(2) Before the penalty prescribed is applied, the offender is first examined by a panel of social scientists who determines why the offender committed the crime. (psychologists, psychiatrists, priests, even lawyers). (3) Emphasis is on the criminal, not the crime. There is a high regard to the human element. The offender is regarded as socially seek who needs treatment in an asylum. (just like hospital, the offenders are kept there because they are psychologically and emotionally sick) . To correct not to punish. (4) Man is regarded as inherently good but crimes are social phenomenon which constrained man to do wrong, although not of his own liking. Crimes are regarded as inevitable and brought about by the environment.

C. THE ECLECTIC PHILOSOPHY (1) It does away with the extreme features of the first 2 philosophy. Only the constructive characteristics are combined. (2) More modern countries are unwittingly moving towards this philosophy. They classify commonly committed crimes using statistics. Penalty is applied depending on the frequency of the commission of a particular offense; light penalty is applied if theft of food is committed by poor people. Philosophy adopted in the Philippines Although originally our criminal law is classical because our RPC was merely adapted from the Spanish Codigo Penal, which in turn was copied from the French Penal Code, which was the forerunner of the classical philosophy, our RPC contains provision based on the positivist philosophy, that is, Article 13, par. 7 on the mitigating circumstances of voluntary surrender and plea of guilty. Reclusion Perpetua is predominantly classical. (3) IRRETROSPECTIVITY OR PROSPECTIVITY – That the law does not have any retroactive effect, except if it favors the offender unless he is a habitual delinquent (Art. 22) or the law otherwise provides. 1. Three rules are to be observed: First, a penal law does not have retroactive effect; second, if favorable to the accused, a penal law may be given retroactive effect; and third, even of favorable to the accused, a penal law cannot be given retroactive effect if the accused is a habitual delinquent or the law so expressly provides. (Art. 22, RPC; Tavera vs. Valdez, I Phil 468). The effect of express or implied repeal of penal laws on the principles of irretrospectivity: 1. If the repeal is express: (a) All pending prosecutions under the repealed shall be dismissed regardless of whether the accused is a habitual criminal or not under a previous conviction or otherwise. (b) Those already convicted and serving sentence under the repealed law may apply for their discharge because the penalty imposed shall be remitted, provided that the convict is not a habitual delinquent or provided there is nothing in the repealing law which provides against its retroactive application. 2. If the repeal is implied: (a) Pending prosecution shall continue and if the accused would be convicted, the repealing law will be applied to him if it more lenient than the repealed law. Otherwise it will still be the repealed law that will be applied. (b) Those already convicted shall continue serving the sentence but the repealing law may be applied to those convicts who are not habitual delinquent if the repealing law provides for a lighter penalty than the repealed law. Provided the repealing law does not provide against the retroactivity thereof.

Distinction between acts punished under the RPC and those punished under the special laws:

REVISED PENAL CODE

SPECIAL LAWS

Criminal liability is based on the criminal intent

Liability arises only bec. The act done is

of the offender unless the crime results from

prohibited by law; and so criminal negligence is

criminal negligence.

not covered. There is no culpa.

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Good faith or lack of criminal intent is a

Good faith or lack of criminal intent is not a

defense unless the crime is the result of

defense. It is enough that the act was

criminal negligence.

voluntarily done.

Degree of participation in the commission of

No classification of offenders – only those who

the offense is considered in imposing the

perpetrated the act incurs the liability.

penalty. Principal, accomplice, accessory. Degree of accomplishment is considered.

Punished only when consummated unless the

Attempted,

law specifically punish for an attempt.

frustrated

and

consummated

crimes. Modifying circumstances are considered –

Modifying circumstances are not considered.

mitigating and aggravating circumstances.

Crimes punished under the RPC are generally referred to as MALA IN SE; but it does not follow that all crimes punished under special laws are all MALA PROHIBITA. MALA IN SE – literally means the act is inherently evil or bad, i.e., wrongful per se. MALA PROHIBITA – the wrong arises only because it is prohibited by law, but the act is not inherently evil. Question: Is the act of omitting the name of a voter from the voter’s list, which is punished by Election Code, (a special law) mala prohibita or mala in se? Answer: Mala in se. The Sc held that the act of omitting a name from the voter’s list cannot be considered a wrong simply because it is punished by a special law. The act being inherently wrong is therefore a mala in se and not malum prohibitum. Being a mala in se, there must be evidence of malice or criminal intent on the part of the accused. (Pp. vs Sunico). Mere carrying of firearm within a polling place is punishable by the RPC irrespective of whether or not the offender had the intention to violate the law. (Pp. vs. Bayona, 61 Phil. 181). But it is essential that the act must be committed consciously, freely and voluntarily. (U.S. vs Chico, 14 Phil. 128). Good faith and absence of criminal intent are not valid defenses. ( Pp. vs. Neri, 140 SCRA 750).

Anti-graft Law partakes of an act malum prohibitum. ( Pp. vs. Court of Appeals, 135 SCRA 372, 1985).

Article 3, RPC (definition of felony) Felony – any act or omission punishable by law (referring to the Revised Penal Code). The elements are: (a) act or omission; (b) punishable by the Revised Penal Code; and (c) committed either by culpa or dolo.

Elements of Dolo (Intentional Felonies) (1) Freedom of action When a person acts without freedom, he is not a human being but a tool. Thus, irresistible force and uncontrollable fear is a defense. (Article 12, pars. 5& 6,RPC). (2) Intelligence Intelligence is the moral capacity to determine what is right and wrong and to realize the consequences of his act. Thus, minority, insanity and imbecility are valid defenses.

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(3) Intent (dolo) Intent is presumed from the commission of the act. Mistake of facts is a valid defense

Elements of Culpa (Culpable Felonies) (1) Freedom of Action (2) Intelligence and (3) Negligence or Imprudence or Lack of Foresight or Lack of skill Negligence is deficiency of perception; while imprudence deficiency of action. The foregoing elements must concur depending on the kind of felony committed. Note that in both cases there is the element of VOLUNTARINESS, be it culpable or intentional. Otherwise there will be no dolus or culpas and therefore no felony.

Problem: A and B while hunting passed by the house of C who pointed them where boars roam around. A shot at the bushes where C pointed but the bullet pivoted and hit C. Is A liable? Answer: No he is not liable because it is purely accidental. A was performing a lawful act. He shall incur no liability whether civil or criminal. Neither the element of intent or negligence is present in the case.

Problem: Eduardo contracted a second marriage with Tina believing in good faith that his first marriage was invalid. He did not know that he had to go to court to seek nullification of his first marriage before marrying Tina. Is Eduardo liable?

Ruling: Indeed, a felony cannot exist without intent. Since a felony by dolo is classified as intentional felony, it is deemed voluntary. Although the words with malice do not appear in Article 3 of the Revised Penal Code, such phrase is included in the word “voluntary”. Malice is a mental state or condition prompting the doing of an overt act without legal excuse and justification from which another suffers injury. When the act or omission defined by law as a felony is proved to have been done or committed by the accused, the law presumes it to be intentional. Indeed, it is a legal presumption of law that every man intends the natural or probable consequence of his voluntary act in the absence of proof to the contrary and such presumption must prevail unless a reasonable doubt exist from a consideration of the whole evidence. The petitioner is presumed to have acted with malice or evil intent when he married the private complainant. As a general rule mistake of fact and good faith is a valid defense on a prosecution for felony by dolo; such defense negates malice and criminal intent. However, ignorance of the law is not an excuse because everyone is presumed to know the law. (Eduardo Manuel vs. Pp. G.R. No. 165842, Nov. 29, 2005).

Distinction between dolo and culpa:

1) In intentional crime (dolo) the act itself is punished; in negligence or imprudence (culpa) what is penalized is the mental attitude and condition behind the acts, the dangerous recklessness, lack of care and foresight. ( Tabuena vs. Sandiganbayan, 103501-03, Feb. 17, 1997). 2. In intentional felonies, the act or omission of the offender is malicious. In the language of Art. 3 RPC, the act is performed with deliberate intent (with malice). The offender, in performing the act or in incurring the omission has the intention to cause the injury to another. In culpable felonies, the act or omission of the offender is not malicious. The injury caused by the offender to another is unintentional, it being simply the incident of another act preformed without malice. ( Roliie Calimutan vs. People, et al., G.R. No. 152133.

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Distinction between motive and intent:

1) Motive is the reason which impels one to commit an act for a definite result; while intent is the purpose to use a particular means to effect such result. Ex. “A” wanted to kill “B” because the latter killed his brother. Motive – revenge for the death of his brother. Intent – to kill 2) Intent is an element of the crime; motive is not. 3) Motive may become necessary to be proved only in case there is doubt whether the accused has committed the crime or not (U.S. vs. McMan, 4 Phil. 161, People vs. Rogales, L-17531, Nov. 30, 1962); intent is necessary to prove the crime. But the absence of apparent motive to commit the crime charged would upon the principles of logic create a presumption of innocence of the accused, since, in terms of logic, an action without a motive would in effect without cause (Pp. vs. Aguilar, L-32041, Jan. 20, 1982, 111SCRA 222).

Defense in intentional felony: MISTAKE OF FACTS

Mistake of facts- it is an act or omission which is the result of a misapprehension of facts that is voluntary but not intentional. The actor performed an act which would have been lawful had it been true as he believed it to be. Ex. “A’ stabbed “B” whom he believed as in intruder but turned out to be his room mate “C”- mistake of facts due to good faith and exempted him from criminal liability (see U.S. vs. Ah Chong, 15 Phil. 488). Note: For mistake of facts to be exempting the act must not be attended with negligence; otherwise criminal responsibility results. See Pp. vs. Fernando, 49 Phil. 75 and compare the same with Ah Chong. MISTAKE OF IDENTITY – not a defense

Mistake of identity is not a defense because intent is present. Ex.: If A shot B believing him to be C, there is mistake of identity and not of fact. The act of shooting B is unlawful. Mistake of identity is merely the consequence of the intentional act of shooting the intended victim. (See Pp. vs Oanis, 74 Phil. 257). Is the crime reckless imprudence? No. Where an unlawful act is willfully done, a mistake in the identity of the intended victim cannot be considered reckless imprudence. (Pp. vs. Oanis, supra).

Article 4, RPC (How criminal liability is incurred). This provision stemmed from the principle that “one is liable for all the direct and natural consequences of his unlawful act, even if the ultimate result had not been intended. ( Pp. vs. Narciso, CA-G.R. No. 13532-CR, Jan. 13, 1964), and from the latin maxim: “he who is the cause of the cause is the cause of the evil caused”. Our penal law looks particularly to the material result following the unlawful act and holds the aggressor responsible for the consequence thereof. (Pp. vs. Buyco, 45 O.G. 2893). Thus, one may be liable for homicide or murder even if there is no intention to kill as long as it is the result of a felonious act. For the article to apply two elements are needed: (a) a felony is committed; (b) the wrong done must be the direct, natural and logical consequence of the felony committed (resulting felonious act) even though different from that intended. Thus, if the act is lawful, even though an injury results, there is no criminal liability. (Pp. vs. Bindoy, 56 Phil. 151), except if the act is committed with negligence. Ex: A fired his gun in self defense at his aggressors but instead hit a bystander. Is A liable? No! because when A fired his gun was not committing a felony. Therefore he can’t be liable for the resulting act. (there is no negligence).

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But if the gun was not aimed at the aggressor but indiscriminately fired the same hitting innocent persons whom the one firing knew were around, he is liable for the resulting act because in defending himself he acted with negligence. (Pp. vs Galacgac, 54 O.G. 1027). Examples of the second element – the wrong done is the direct, natural and logical consequence of the felonious act even though different from that intended:

(1) Where the offenders after robbing the victim, tied her hands and feet and stabbed her and stuffed her mouth with a piece of pandesal to prevent her from screaming and the victim of asphyxiation as the pandesal slid into her neckline caused by the movements of the victim. It was held that the death of the victim is the direct consequence of felonious acts committed by the offenders – praeter intentionem. (Pp. vs Opero, 105 SCRA 40 (1981). (2) A victim who jumped into the river and was drowned because he was threatened or chased by the accused with a knife. (U.S. vs Valdez, 42 Phil. 497). (3) A victim who died because he removed the bandage from a wound inflicted by the accused as it produced extreme pain. (Pp. vs. Quaizon, 62 Phil. 162). (4) If death results as long as the wound inflicted is mortal even there was an erroneous, unskillful medical or surgical treatment. ( Pp. vs. Moldes, 61 Phil. 3) because he who inflicts the injury is not relieved of responsibility if the wound inflicted is dangerous, that is, calculated to destroy or endanger life, even though the immediate cause of death was erroneous and unskillful medical or surgical treatment. (Pp. vs Abejuela, 92 SCRA 903 [1979]). Even if the victim refused or there was no medical treatment. (U.S. vs. Marasigan, 27 Phil. 614). For research: ; Pp. vs. Reloi, 43 SCRA 526, 532; Pp. vs. Rodriguez, 23 Phil. 22; and Pp. vs. red, C.A., 43 O.G. 5072; . Second element not applicable – if there is an intervening cause.

Ex: (1) A victim who received slight physical injuries in his arm which became serious because he deliberately immersed his wounded arm in a poll of stagnant water. (U.S. vs. delos Santos, G.R. No. 13309). (2) If the blow is not the direct cause of death as in the case of a boy who was struck in the mouth by the accused and who died 2 days thereafter because of fever prevalent in the community, (Pp. vs. Palalon, 49 Phil. 177). Reason: The felony is not the direct and proximate cause of the injury, which is defined as “that cause, which in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury, and without which the result would not have occurred. ( Villanueva vs. Medina, 102 Phil. 186). If an active force intervened between the felony and the injury which is a distinct act foreign to the crime, there is no liability for such injury. (Pp. vs. Cardenas, 56 SCRA 631). In the foregoing examples, does that mean that the offender has no criminal liability? No. In all cases wherein the injury is not the direct an logical consequence of the felony committed, the offender is not liable for the said injury, but only for the felony committed. In the above example the offender is liable only for physical injuries. Where the accused wounded the victim at the back of the hand and three weeks later the victim died due to tetanus infection of the wound as he returned to work in his farm with bare hands exposing the wound to tetanus germs, it was held that the remote cause of death was the wound inflicted and the proximate cause was the infected wound for which the accused had nothing to do and hence was not criminally liable. (Urbana vs. IAC, L-43964, Jan. 7, 1988).

Instances where the wrongful act different from what is intended:

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(1) Aberratio Ictus – mistake in the blow. It arises when where the offender delivers the blow but it landed on a rd

3 party. This will result in a complex crime.

Ex: A saw his enemy B and thereupon fired at him. It was C who was hit and fatally wounded. What are the crimes committed?

Insofar as B is concerned, attempted murder; insofar as C is concerned Serious Physical Injuries. Both were results of a single act; both were less grave or less grave. With respect to C only physical injuries because there is no intent to kill. (2) Error in Personae – there is mistake in identity. This may mitigate the criminal liability if the crime is different from what intended.

Note: Art. 49- whichever of the two crimes carry a lesser penalty, the lesser penalty shall be imposed but in its maximum period. But if the crime intended and committed are he same, then error en personae shall not be mitigating circumstance and shall not affect the liability of the offender.

(3) Praeter Intentionem- where the consequence went beyond that intended. Art. 13, par. 3, this is a mitigating circumstance as he did not intend to commit so grave a wrong as that committed. This applies only where the resulting felony cannot be generally anticipated or from the means employed by the offender in the commission of the crime. It means committing it can generally be expected to produce the felony which resulted, the offender cannot validly claim the he did not intend t to commit so grave a wrong as that committed.

Example: (a) If the offender stabbed the victim in the neck with the handle of a pointed comb, it cannot be said that he did not intend to commit so grave a wrong as that committed. When uses a pointed instrument on a vital part of a body, he can and should be expected a fatal consequence. (b) A son in the heat of anger because his mother was not able to prepare food, got hold of his mother’s neck which resulted her death. The son is liable because death is expected in strangling – no mitigating circumstance.

Impossible crime (Art. 4, RPC, par. 2)

Elements: (a) acts are performed which would be a crime against person or property; (b) there is criminal intent; (c) it is not accomplished because inherent impossibility or the means employed is inadequate or ineffectual. Reason for punishing impossible crime: The commission of an impossible crime is indicative of criminal propensity or criminal tendency on the part of the actor. Such person is a potential criminal. According to positive thinking, the community must be protected from anti-social activities, whether actual or potential, of the morbid type of man called “socially dangerous person.” (RPC by Luis B. Reyes, 2008 edition)

Rules: (1)

If the acts performed constitute another distinct felony, an impossible crime is not committed because objectively a crime is committed.

Ex: Accused administered abortive drugs upon his girlfriend whom he believed it to be pregnant, which turned out not true, but the woman became ill for more than 30 days, the accused will be liable for serious physical injuries under Art. 264 of the Code and not for impossible crime of abortion.

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(2) Inherent impossibility- Ex 1: stabbing a person already dead. Ex 2: A with intent to gain, took a watch from the pocket of B, which turned out to be his own watch which he had lost days ago. The act performed would have been theft if the watch had been the property of B. There is legal impossibility in accomplishing the crime because in theft the personal property taken must belong to another. Ineffectual means – Ex: giving a drink to another which was mixed wth salt believing it to be poison. Inadequate means – Ex: if it were poison, the quantity was not sufficient. (3) For impossible crime to apply, the offender believed that the person he stabbed was not dead or the mixture was really poison or the means employed was sufficient, otherwise, there would be no criminal liability for impossible crime as evil intent would be absent.

(4) If there is adequate or effectual means although the crime is not produced, it cannot be impossible crime but a frustrated felony. Ex: If sufficient quantity of poison was administered to the victim to kill him but he did not die, the felony was not produced due to his impossible immunity to the poison, which is an act independent of the will of the offender.

(5) When the rule speaks of “crimes against persons”, it does not mean that the victim must be a person, the crime must be within Title 8, Book II of RPC. Ex: A, while driving his car in Luneta, met B when the latter tried to hitch a ride. Somewhere in Baclaran, A turned the car to a secluded area and started kissing B who turned out to be also a male. Is there impossible crime? Answer: NO! there is none because had the crime been consummated, it would have been a crime against chastity, not against persons. The crime here is acts of lasciviousness if committed with violence against “B” (Art. 336 RPC). If there is none, the crime is unjust vexation if B was annoyed of the kissing.

(6) The offender is made liable for an impossible crime only as a last resort when he cannot be punished under any provision of law. The purpose is to teach the offender a lesson for being criminally pervert although objectively no crime is committed.

Ex: A & B are constantly quarrelling neighbors and it is only a matter of time that one would kill the other. A though of killing B before the latter could kill him. One evening while B was already asleep, A climbed into the room of B, entering it trough an open window. Upon seeing B, A stabbed B on the chest not knowing that B had died earlier of cardiac arrest. Therafter, A fled through the same window.

(a)

Is an impossible crime committed? Yes. B was already dead when A stabbed him with the intent of killing him, not knowing that he was already dead. It would have been murder, which is a crime against person, were it not for B’s being a corpse at the time of the stabbing.

(b)

Is A criminally liable for impossible crime? No, although an impossible crime was committed, A should be prosecuted for qualified trespass to dwelling, as he entered through a window which is not for that purpose.

592 scra 426 The principle here is that the wrongdoer shall be punished for impossible crime only when his acts cannot be punished any other provisions of RPC.

Duty of Courts (Art. 5)

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(1) This article has no application to the violation of another piece of legislation like illegal possession of forearms, as it refers to penalties provided in the Revised Penal Code. (Pp. vs. Salazar, L-7490, (1958). Hence, nor applicable to crimes mala prohibita provided for in special legislation. (Pp. vs. Quebral, CA-G.R. No. 22120-R, February 28, 1961). See also the case of Pp. vs. Manlapas, 88 SCRA 104 and Pp. vs. Valera, 90 SCRA 400. Stages of Execution of a Felony (Art. 6). The stages of execution of a felony – attempted, frustrated and consummated – are punishable under Art. 6 of RPC. (1) ATTEMPTED – when the offender commences the commission of the felony DIRECTLY BY OVERT ACTS and does not perform all the acts of execution which should have produced the felony by reason of some cause or causes or accident other by his own spontaneous desistance. 1.1 “Spontaneous desistance” cannot be used in frustrated crimes because it is no longer possible in the frustrated stage as the offender has already lost control his acts because he has already performed all the acts of execution. Hence, there can be no spontaneous desistance. Case: With intent to kill A fired at B who was not mortally wounded. A aimed again and said: “Now I will kill you”. B begged so hard so much so that A changed his mind and walked away. Is there a desistance? Will A be liable?

Answer: On the first shooting, A shall be liable for attempted homicide. The act of shooting completed the first attempt – there is no desistance made. However, on the second aiming of the gun, there is desistance. But this desistance will not exempt him from his liability under the first act. The desistance refers to the crime he intended to commit and not to the crime actually committed before the desistance. ( Pp. vs. Palomares, 75 O.G. 5739).

1.2. If on the attempted stage, the offender desisted- there is no attempted felony. Reason: it is a sort of reward granted by law to one having one foot on the verge of crime, heed the call of his conscience and return to the path of righteousness. (viada). However, even if the offender desisted from performing the act he intended to commit if the act so far has already constituted another offense, the offender shall be liable for such other crime. Ex: A wanted to kill B by entering the latter’s house through an open window into B’s room who was sleeping, but he noticed on the latter’s face to be that of a miserable man and so left the room through the same window. Is there an attempted crime? What is the felony committed?

Answer: There is no attempted crime of murder because of the desistance. He already began the acts of execution and could have performed all the acts but he desisted. The crime already committed is qualified trespass to dwelling.

Meaning of OVERT ACTS: Overt act- is some physical activity or deed, indicating the intention to commit a particular crime, more than a mere planning or preparation, which if carried to its complete termination following its natural course, without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete offense. (RPC, Luis B. Reyes, 2008 Ed.).

Rules: (1) A felony is committed directly by overt acts if the following requisites are present: a) That there be an internal acts; b) Such external acts have direct connection with the crime intended to be committed. (2) Preparatory acts do not have direct connection with the crime which the offender intends to commit.

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Ex. 1: If A bought poison from a drug store in preparing for the killing of B by means of a poison – preparatory acts – not an overt act because it has no direct connection with the crime of murder which A intended to commit. The poison purchased may, after all, be used by A to kill insects. Hence, the act of buying poison did not disclose necessarily an intention to kill a person with it. But if A mixed the poison with the food intended for B, and the latter without knowing that it contained a poison took it, the act of A is more than planning or preparation for the commission of a murder. The buying of poison and mixing it with it with the food of B who later put into his mouth part of it, taken together, constituted an overt acts of murder. If for some reason B threw away the poison from his mouth, A is liable for attempted murder. Ex. 2: Drawing or trying to draw a pistol is not an overt act of homicide. ( Pp. vs. Tabago, et al., 48 O.G. 3419). Ex. 3: Raising a bolo as if to strike the offended party is not an overt at of homicide. (U.S. vs. Simeon, 3 Phil. 688).

Definition of subjective phase: It is that portion of the acts constituting the crime, starting from the point where the offender begins the commission of the crime to the point where he has still control over his acts, including their natural cause. If between these two points the offender is stopped by any cause other that his own voluntary desistance, the subjective has not been passed and it is an attempt. If he is not stopped but continues until her performs the last act, it is frustrated, if the crime is not produced by cause/s independent of the will of the offender. The acts then of the offender reached the objective phase of the offense.

CASES HELD TO BE ATTEMPTED. Pp vs Palomares pp. vs valeros jr. Homicide/Murder/Physical Injuries (a) U.S. vs. Bien, 20 Phil. 354. Where the accused threw a Chinaman into the deep water and as the Chinaman did not know how to swim, he mad efforts to keep himself afloat and seized the gunwale of the boat, but the accused tried to loosen the hold of the victim with the oar. The accused was prevented from striking the latter by other persons. Intent to kill is apparent, attempted homicide was committed. (b) Pp. vs Kalalo, et al., 59 Phil.75. Where the accused fired four successive shots at the offended party, while the latter was fleeing to escape from his assailants and saved his own life. Not having hit the offended party, either because of his poor aim or because his intended victim succeeded in dodging the shots, the accused failed to perform all the acts of execution by reason of cause other than his own spontaneous desistance. (see also Pp. vs. Aban, C-G.R. No. 10344-R, Nov. 30, 1954).

(c) Pp. vs. Fernando Costales, G.R. No. 141154, Jan. 15, 2002. Where the injuries, though no doubt serious, were not proved fatal, such that without timely medical intervention, they would have caused death, the crime committed was attempted murder. Where there is nothing in the evidence to show that the wound would be fatal if not medically attended, the character of the wound is doubtful; hence the doubt should be resolved in favor of the accused and the crime committed may be declared as attempted.

(d) Pp. vs Marcos Asuela, et al., G.R. No. 140393-94, Feb. 4, 2002. Where there is intent to kill and the wounds are not fatal, say the wounds would last for less than nine (9) days Slight Physical Injuries is committed.

(f) Pp. vs. Sy Pio, G.R. No. L-5848, April 30, 1954). Even if the victim was hit when the accused fired at him but the victim was able to run away which fact must have produced the mind of the accused that he had not actually performed all the acts of execution necessary to kill the victim, the crime is attempted.

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(g) Pp. vs. Umaguing, 107 SCRA 166, 1981. Where the accused, a janitor in a hospital, removed the endotracheal tube which was inserted in the mouth of a patient suffering from a cerebral hemorrhage, and as a result, the patient bled in the mouth and had convulsions, but the tube was restored by the resident physician who was notified of what happened, it was held that the overt act committed by the accused was malicious and felonious and constituted attempted murder since he was not able to perform all the acts of execution necessary to consummate the crime because the tube was reinserted into the victim’s mouth.

RAPE (h) Pp. vs. Nopia, 113 SCRA 599, April 28, 1982. Rape is attempted if the organ of the accused could hardly enter the sexual organ of a 12 year old girl although the girl felt it touched her organ.

(i) Pp. vs. Briton, 364 Phil. 731, 748 (1999). Consumated rape to be established what is essential is that there must be penetration of the female organ no matter how slight.

( j) Pp. vs. Campuhan, G.R. No. 129433, March 30, 2000. ( Gr 1728734 Thus, a grazing of the surface of the female organ or touching the mone pubis of the pudendum is not sufficient to constitute rape absent any showing of any slightest penetration of the female organ, i.e., touching of either labia of the pudendum by the penis, there can be no consummated rape, at most it can only be attempted, if not acts of lasciviousness. Judicial depiction of consummated rape has not been confined to the oft-quoted “touching of the female organ” has also progressed into being described as the introduction of the male organ into the labia of the pudendum; or the bombardment of the drawbridge. But to our mind, the case at bar merely constitutes shelling of the castle of orgasmic potency, or as earlier stated, a straffing of the citadel of passion. See Pp. vs. Alfredo Bon, G.R. No. 166401, Oct. 30, 2006.

(k) Pp. vs. Alibuyog Bulala, G.R. No. 144976, March 11, 2004. While the appellant was doing the push and pull movement, his pants was still on and his organ did not penetrate her vagina but only touched it, he is liable only for Attempted Rape. For conviction of consummated rape to prosper, complete and full penetration is not necessary because mere introduction of the male organ into the labia majora of the victim’s genitalia consummates the crime. What is fundamental, moreover, is that the entry or at least the introduction of the male organ into the labia of the pudendum must be convincingly proved. Of critical importance is that there must be sufficient proof that the penis indeed traveled even just the labia or slid into the victim’s organ, and not merely strike the external surface thereof. ARSON

(l) U.S vs. Valdez, 39 Phil. 240. Although all the acts necessary to burn the building have already been performed as setting on fire some rags soaked in gasoline to burn the building but no portion of the building was burned, the arson is frustrated. But see the subsequent case. Note: Even if only a portion of the building is burned, arson is consummated. The total burning of the building is not necessary to consummate the crime. (Pp. vs Hernandez, 54 Phil. 122)

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(m) Pp. vs. Garcia, 49 O.G. 558. But of the overt acts directly connected with the burning of the building have not been performed, as burning all the office supplies and hospital equipment inside the office building, without burning the building the crime is attempted arson. The reason is that if no part of the building is burned, n one could truthfully or successfully maintain that the offender had performed all the acts of execution which would produce the felony of arson as a consequence because the element of burning is still missing and the result was no more than an attempt to commit the offense. (this ruling eliminates frustrated arson).

(n) Pp. vs. Baisa, G.R. No. 20304-R, June 18, 1959. Where the defendant threw a flaming torch at the roof of the complainant’s house, which did not however burn, because the torch rolled and fell to the ground, the crime committed is attempted arson.

(o) Pp. vs. Go Kay, CA, 54 O.G. 2225 Even of there is no blaze, attempted arson may committed when the offender poured gasoline under the house of another and was about to strike the match to set the fire when he was apprehended, attempted arson is committed.

THEFT, ROBBERY & ESTAFA

(p) Pp. vs. De la Cruz, 43 O.G. 3202. If the offender commenced by overt acts directly connected with the felony intended to be committed but did not perform all the acts of execution due to an external cause, as when the lock of a jeep was already broken but he was caught before he succeeded in driving away the jeep, the theft is attempted.

(q) Pp. vs. Dio, 130 SCRA 151. Where the killing of the victim was merely incidental to and an offshoot of the plan to carry out the robbery, which however, was not consummated, because of resistance by the deceased, the crime is only attempted robbery with homicide.

(r) U.S. vs Villanueva, `1 Phil. 370. If the offender has performed all the acts of deceits as by trying to collect a fee from the offended party but the fraudulent scheme was not realized because of the inability of the offended party to pay the said fee, estafa is attempted. (2) FRUSTRATED – the offender performed all the acts of execution to produce the crime but the crime was not produced due to causes independent of the will of the perpetrator. 2.1 All the acts of execution performed by the offender could have produced the felony as a consequence. Ex. 1 When A approached B stealthily from behind and made a movement with his right hand to strike B with a deadly knife, but the blow, instead of reaching the spot intended, landed on the frame of the back of the chair on which B was sitting at the time and did not cause the slightest physical injury on B. (Pp. vs. Borinaga, 55 Phil. 433).

Comment: Highly criticized ruling. It should have only been attempted murder because without inflicting a deadly wound upon a vital spot of which B should have died, the crime of murder would not have been produced as a consequence. What was prevented by the back of the chair was the wounding and not the victim’s death. (Justice Villareal’s dissenting opinion). The ruling in Borinaga was later on superseded by Pp. vs Kalalo, 59 Phil. 715 which rules: In crimes against persons, such as murder, which require that the victim should die to consummate the felony, it is necessary for the frustration of the same that a mortal wound is inflicted.

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2.3 Belief of the accused that he had performed all the acts of execution n some cases was considered by the Supreme Court.

Ex. 1: Deadly weapons were used, blows were directed at the vtial parts of the body, the aggressors stated their purpose to kill and though they had killed. The subjective phase of the crime was entirely passed, and subjecrively speaking, the crime was complete. The felony is not produced by reason of causes independent of the will of the perpetrators; in this instance, the playing possum by the victim, that is, he escaped from the aggressors by the ruse of feigning death. ( Pp. vs. Dagman, 47 Phil. 770). See also U.S. vs. Lim San, cited in Dagman and U.S. vs. Eduave, 36 Phil. 210. 2.4 The belief of the accused need not be considered. What should be considered is whether all the acts of execution performed by the offender “would produce the felony as a consequence”. See Pp. vs Kalalo, supra and Pp. vs. Guihama, et al., 13 CA. Rep. 557.

2.5 If the crime is not produced because the offender himself prevented its consumation, there is no frustrated felony, for the fourth element is absent.

Ex. A doctor conceived the killing of his wife, and to carry out his plan, he mixed arsenic with the soup of his victim. Immediately after the victim took the poisonous food, the offender suddenly felt such a twinge of conscience and he himself washed out the stomach of the victim and administer to her the adequate antidote. Would this be a frustrated parricide? Certainly not, for even though the subjective phase of the crime had already been passed, the most important requisite of a frustrated crime i.e., that the cause which prevented the consummation of the offense be independent of the will of the perpetrator, was lacking. (Guevara). He committed Physical Injuries.

CASES HELD TO BE FRUSTRATED

Homicide, Murder and Physical Injuries

(a) Pp. vs. Hondrada, 51 Phil. 112. Where the accused stabbed the offended party in the abdomen, penetrating the liver, and in the chest. It was only the prompt and skillful medical treatment which the offended party received that saved his life.

(b) Pp. vs Mercado, 51 Phil. 99. Where the accused wounded the victim in the left abdomen with a sharp-edged weapon, causing a wound in the peritoneal cavity, serious enough to have produced death.

(c) Pp. vs. David, 60 Phil. 93. Where the accused in firing his revolver at the offended party hit him in the upper side of the body, piercing it from side to side and perforating the lungs, The victim was saved due to adequate and timely intervention of medical science.

Theft, Estafa & Robbery

(d) Pp. vs. Dino, C.A. 45 O.G. 3446. A truck loaded with stolen boxes of rifles was on the way out of the check point in South Harbor surrounded by a tall fence when an MP guard discovered the boxes on the truck. It was held that the crime committed was frustrated theft, because the timely discovery of the boxes on the truck before it could pass the check point. Compare this case with Pp. vs Espiritu, et al., CA-G.R. No. 2107, May 31, 1949: In the Supply Depot at Quezon City, the accused removed from the

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pile nine pieces of hospital linen and took them to their truck where they were found by a corporal of the MP guards when they tried to pass the check point. It was held that the crime committed was consummated theft. Distinguish the two cases: In Espiritu case, it was consummated theft because the thieves were able to take or get hold of the hospital linen and that they only thing that was frustrated, which does not constitute the element pf theft, is the use or benefit that the thieves expected to derive from the commission of the offense. In Dino case, it was frustrated theft because the fact determinative of consummation in the crime of theft is the ability of the offender to dispose freely of the articles stolen, even if it were more or less momentarily.

The Dino ruling was reaffirmed in the subsequent CA ruling: (e) Pp. vs. Flores, 6 CAR 834. The theft of bulky goods is frustrated when the intervening act which literally frustrated the theft was the inspection of the truck by a third person and not any spontaneous desistance on the part of the accused and it was not consummated since the truck was not able to leave the compound wherefrom the goods were taken, so that the accused was never placed in a situation where they could dispose the goods at once.

(f) Empelis, et al., vs IAC, L-68138, Spt. 28, 1984. Where the accused was seen carrying

away fifty coconuts while they were still in the premises of the

plantation, the crime is Frustrated Qualified Theft because the accused were not able to perform all the acts of execution which would have produced the felony as a consequence. They were not able to carry the coconut away from the plantation due to the timely arrival of the owner. Note; The reason is inaccurate because a felony is frustrated if all the acts of execution o produce the felony have been performed.

(g) U.S vs. Dominguez, 41 Phil. 409. Where a defendant, a salesman, pocketed part of the sales amount instead of giving it to the cashier, but who discovered it on time, the estafa committed is frustrated. The rule thus, in THEFT: While the offender may not take the personal property away, if he already took hold of it, and the taking is already complete, theft is already consummated. It is not necessary that the offender be able to carry away the personal property, It is a matter of whether the offender has GAINED COMPLETE CONTROL such that he could simply dispose the property at will. There is complete control where he is in a position to subject the property to his own will instead of the will of the owner or possessor thereof. When the possessor gained control of the personal property with a certain degree of permanence, even though he may later change his mind and return it, the return is not desistance anymore. In criminal law, desistance is not available in frustrated stage.

COMPLETE CONTROL means the thing is totally removed from the enclosure, container, or receptacle where the owner keeps the thing.

(7) CONSUMATED

`

1) A felony is consummated when all the elements necessary for its execution and accomplishment are proved.

Every crime has its own elements which must all be present to constitute culpable violation of a precept law.

1.2 In arson, it is not necessary that the property is totally destroyed by fire It is consummated even if only a portion of the wall or any part of the house is burned. The consummation of the crime of arson does not depend upon the extent of the damaged caused. (Pp. vs Hernandez, 54 Phil. 22).

1.3 In theft, the crime is consummated when the thief is able to take or get hold of the thing belonging to another, even if he is not able to carry it away. Ex: A customs inspector abstracted a leather belt from the baggage of

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a Japanese and secreted it in the drawer of his desk in the Customs house, where it was found by other customs employees. Consummated because all the elements for its commission and accomplishment are present. (U.S. vs Adiao,, 38 Phil. 754). Distinguish this case with Domiguez case, supra. The difference lies on the elements of the two crimes. In estafa, the offended party must be actually prejudiced or damaged. This element is lacking in Domiguez. In theft, the mere removal of the personal property belonging to another with intent to gain is sufficient.

1.4 In rape, entry of the labia or lips of the female organ without rupture of the hymen or laceration of the vagina is generally sufficient to warrant conviction of consummated rape. (Pp. vs Hernandez, 49 Phil 980, 982).

Light Felonies (Art. 7, RPC)

1) General rule: Light felonies are punishable only when they are consummated. Exception: Light felonies committed against person or property. Reason: Light felonies produce such light, such insignificant moral and material injuries that public conscience is satisfied with providing a light penalty for their consummation. If they are not consummated, the wrong done is so light that here is no need of providing a penalty at all. (Albert).

2. The light felonies under the Revised Penal Code: a) Slight Physical Injuries (Art. 266); b) Theft, (Art. 309, par. 7&8); c) Alteration of boundary marks. (Art. 313);d) Malicious mischief; and e) Intriguing against honor ( Art. 364)

Conspiracy ( Art. 8 RPC)

1) Conspiracy and proposal to commit a felony are not punishable, except as provided for bylaw. 2) There are only three (3) conspiracies to commit a crime that are punished in the RPC, to wit: a) Conspiracy to commit treason (Art. 115); b) conspiracy to commit rebellion (Art. 136); and c) conspiracy to commit sedition ( Art. 141).

3) In P.D 1613, conspiracy to commit arson; and P.D. 1728, conspiracy to maliciously damage any building or personal property by explosives or incendiary device. 4) Conspiracies punished in special laws: a) Comm. Act. No. 616, (An act to Punish Espionage of other Offenses Against National Security); b) Conspiracy to commit offenses under the Dangerous Drugs Act.

ESTRADA VS SANDIGAN BAYAN Senator Tañada was only saying that where the charge is conspiracy to commit plunder, the prosecution need not prove each and every criminal act done to further the scheme or conspiracy, it being enough if it proves beyond reasonable doubt a pattern of overt or ciminal acts indicative of the overall unlawful scheme or conspiracy. As far as the acts constituting the pattern are concerned, however, the elements of the crime must be proved and the requisite mens rea must be shown.

Indeed, §2 provides that -

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. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the court.

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The application of mitigating and extenuating circumstances in the Revised Penal Code to prosecutions under the AntiPlunder Law indicates quite clearly that mens rea is an element of plunder since the degree of responsibility of the offender is determined by his criminal intent. It is true that §2 refers to "any person who participates with the said public officer in the commission of an offense contributing to the crime of plunder." There is no reason to believe, however, that it does not apply as well to the public officer as principal in the crime.

As Justice Holmes said: "We agree to all the

generalities about not supplying criminal laws with what they omit, but there is no canon against using common sense in construing laws as saying what they obviously mean PP VS FERNAN AND TORREVILLA

The nuclei of this massive conspiracy, namely: Rolando Mangubat, Jose Sayson, and Edgardo Cruz, all of MPH Region VII, were found guilty in all 119 counts and were accordingly sentenced by the SB. The other conniver, Delia Preagido, after being found guilty in some of the cases, became a state witness in the remainder. On the basis of her testimony and pertinent documents, Informations were filed, convictions were obtained, and criminal penalties were imposed on the rest of the accused.

On the other hand, petitioners were both Civil Engineers of the MPH assigned to the Cebu First Highway Engineering District. Petitioner Fernan, Jr. was included among the accused in Criminal Case Nos. 2879, 2880, 2881, 2885, 2914, and 2918 allegedly for having signed six (6) tally sheets or statements of deliveries of materials, used as bases for the preparation of the corresponding number of general vouchers. Fund releases were made to the suppliers, contractors, and payees based on these general vouchers.

Petitioners vigorously claim error on the part of the lower court when it made the finding that they were co-conspirators with the other parties accused despite the dearth of evidence to amply demonstrate complicity.

In Estrada v. Sandiganbayan, we categorized two (2) structures of multiple conspiracies, namely: (1) the so-called “wheel” or “circle” conspiracy, in which there is a single person or group (the “hub”) dealing individually with two or more other persons or groups (the “spokes”); and (2) the “chain” conspiracy, usually involving the distribution of narcotics or other contraband, in which there is successive communication and cooperation in much the same way as with legitimate business operations between manufacturer and wholesaler, then wholesaler and retailer, and then retailer and consumer.[51] We find that the conspiracy in the instant cases resembles the “wheel” conspiracy. The 36 disparate persons who constituted the massive conspiracy to defraud the government were controlled by a single hub, namely: Rolando Mangubat (Chief Accountant), Delia Preagido (Accountant III), Jose Sayson (Budget Examiner), and Edgardo Cruz (Clerk II), who controlled the separate “spokes” of the conspiracy. Petitioners were among the many spokes of the wheel.

5) Conspiracy cannot exist in case of negligence. In conspiracy it involves meeting of the minds to commit a crime while negligence denotes absence of intent. (Pp. vs. Narvasa, et al., ca 16013-CR 75 OG No. 42200).

6) To establish conspiracy it is not necessary to prove previous agreement to commit a crime if there be proof that the malefactors have acted in concert and in pursuance of the same objective. Conspiracy may be inferred from the acts of the accused themselves when such point to a joint purpose and design. Their actions must be judged not by what they say, for what men do is the best index of their intention. (Pp. Mada-ISantalani, et al., Sept. 28, 1979).

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7) It is not enough that the person supposedly engaged or connected with the criminal plan be present when the crime was perpetrated. There must be logical relation between the commission of the crime and the acts of the supposed conspirators, evidencing a clear and intimate connection between and among the latter, such that their overt acts appear to have been done in pursuance of a common criminal design. ( Pp. vs. Aniel, et al., 96 SCRA 199 [1980]); Pp. vs. Realon, et al., 99 SCRA 422 (1980).

8) Overt acts in furtherance of a conspiracy consist inactively participating in the actual commission of the crime, in lending moral assistance to his co-conspirators, by being present at the scene of the crime, in exerting moral ascendancy over the rest of the conspirators as to move them to executing the conspiracy. (Pp. vs Peralta, 25 SCRA 759).

9) Conspiracy may be inferred from close association among the accused and their concerted efforts to liquidate the victim, an indication of community of design. (Pp. vs. Medrano, 114 SCRA 335, May 31, 1982).

10) Conspiracy must be proved by positive and convincing evidence. Mere suspicion, relationship, association and companionship do not prove conspiracy. (Pp. vs. Sosing, 111 SCRA 368, Jan. 30, 1982). Ex. 1: An accused who was present when the other accused met in is house to plan a bank robbery and who told them that he cannot join because of a foot injury which would make him only a liability, such did not make him a conspirator as he did not take an active part in the talk among the malefactors in his house. ( Pp. vs. Doble, 114 SCRA 631, May 31, 1982). Ex. 2: Where only one of the persons who raped the victim killed her, he alone should be guilty of the crime of rape with homicide as there is no plan to do away with the victim after raping her. (Pp. vs. Viscara, 115 SCRA743, July 30, 1982). The passive presence of the accused at the moment the accused suddenly strangled the victim does not make him liable for the act of their co-accused. (Ibid.)

CASES

a) Pp. vs Cantuba, 183 SCRA 289, 298 Where the accused was knew of the plot to assassinate the victim as he too had been ordered to scout for a man who could do the job; he also knew exactly the place where the killing was to take place and also the date and approximate time of the assault. There is conspiracy there is unity of purpose and unity in the execution of the unlawful act.

b) Pp. vs. Pugay, 167 SCRA 439. Where one of the accused poured a gasoline to the victim after they made fun of him, and the other accused set the victim on fire, each of them shall be liable only for the act committed by him as there is no sowing that there was previous conspiracy or unity of criminal purpose between the accused immediately before the commission of the crime.

ESTRADA VS SANIGANBAYAN FEB 6, 2002 GR145927 REVILLA VS PP.

JUSTIFYING CIRCUMSTANCES (Art. 11) Gr 188602 pp. vs guiterrez 1.

Where the accused invokes self-defense, it is incumbent upon him to prove by clear and convincing evidence that he indeed acted in defense of himself. He must rely on the strength of his own evidence and not on the weakness of the prosecution. For even if the prosecutions evidence is weak, it could not

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be disbelieved after the accused himself had admitted the killing. (Pp. vs. Sazon, 189 SCRA 700, 704, Sept. 18, 1990).

2.

Requisites of self-defense: a) unlawful aggression; b) reasonable necessity of the means employed to prevent or repel it; and c) lack of sufficient provocation on the part of the person defending himself. ( Pp. vs Uribe, 182 scra 624, 630-631).

3.

The aggression must be unlawful. Ex. 1: The act of a chief of police who used violence by throwing stones at the accused when the latter was running away from him to elude arrest for a crime committed in his presence, is not unlawful aggression, it appearing that the purpose of the police officer was to capture the accused and place him under arrest. (Valcorza vs. People, 30 SCRA 143, 149, Oct. 31, 1969).

4.

Unlawful aggression is equivalent to assault or at least threatened assault of an immediate and imminent kind. (Pp. vs. Alconga, 78 Phil. 366). There is unlawful aggression when the peril to one’s limb or right is either actual or imminent. There must be actual force or actual use of weapon. ( Pp. vs Crisostomo, 108 SCRA 288, 298, Oct. 31, 1981). See Pp. vs. Jose Laurel, 22 Phil. 252.

5.

Imminent – that the danger is on the point of happening. It is not required that the attack already begins, for it may too late. Ex.: While inside the boat with some women and children, including the family of the accused, the deceased who was also a passenger, upon reaching a place of great depth, rocked the boat which started it to take water, and the accused fearing that the boat might capsize asked the accused not to do it, but the deceased paid no attention and continued rocking the boat, so the accused struck him on his forehead with an oar and the deceased fell into the water. But a little while the deceased re appeared and held the side of the boat, saying that he was going to capsize the boat and moved, seeing which the women began to cry, whereupon the accused struck him on the neck with the same oar that resulted the death of the deceased. Held: Due to the condition of the river at the point when the deceased started to rock the boat, if it had capsized, the passengers would have run the risk of losing their lives. The conduct of the deceased gave rise to the belief on the part of the accused that it would capsize if he had not separated the deceased from the boat to give him no time to accomplish his purpose. For this purpose, the blow given him by the accused on the forehead with an oar was the least that he could reasonably have been done. And this consideration militates with greater weight with respect to the second blow given in his neck with the same oar because the danger was greater than the boat might upset, especially as the deceased had expressed his intention to upset it. ( Pp. vs. Cabungcal, 51 Phil. 803)

6. Unlawful aggression presupposes an actual, sudden, and unexpected attack, or imminent danger thereof, and not merely a threatening or intimidating attitude, or imaginary. ( Pp. vs. Pasco Jr., 137 SCRA 137, June 24, 1985), Ex. Aiming a revolver at another with intent to shoot or opening a knife and making a motion as if to attack. (Pp. vs. Resurreccion, G.R. No. 0048-R, Feb. 4, 1962), or brandishing a knife with which to stab or pointing a gun to the accused. (Pp. vs Lacheca, L-38175, Sept. 28, 1984). But a mere threatening attitude of the victim such as pressing his right hand to his hip where a revolver was holstered, accompanied by an angry countenance or like aiming to throw a pot is not unlawful aggression. (Pp. vs. Lavinia, 115 SCRA 223).

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7.

Slap on the face constitutes unlawful aggression. Reason: The face represents a person and his dignity, slapping it is a serious personal attack. It is physical assault coupled with a willful disregard, nay, a defiance, of an individual’s personality. It may therefore, be frequently regarded as placing in real danger a person’s dignity, rights and safety. (Pp. vs. Sabio, G.R. No. L-23734, April 27, 1967).

8.

A public officer exceeding his authority may become an unlawful aggressor. Ex. A provincial sheriff who, in carrying out a writ of execution, exceeded his authority by taking against the will of the judgment debtor personal property with sentimental value to the latter, although other personal property sufficient to satisfy the claim of the plaintiff was made available to the sheriff, was an unlawful aggressor and the debtor had the right to repel the unaleful aggression. (Pp. vs Hernandez).

9.

The Rule now is “ stand ground when in right”. The ancient common law rule in homicide denominated “retreat to the wall, has now given way to the new rule “stand ground when in the right” (Reyes). So, where the accused is where he has the right to be, the law does not require him to retreat when his assailant is rapidly advancing upon him with a deadly weapon. ( U.S. vs. Domen, 37 Phil 57). Reason: If one flees from an aggressor, he runs the risk of being attacked in the back by the aggressor. (Reyes).

10.

The rule is more liberal if the person attacked is a peace officer in the performance of a duty, who must stand his ground and who cannot, like a private person, take refuse in flight. (U.S. vs. Mojica, 42 Phil. 784). His duty requires him to overcome his opponent and the force which he may exert may differ that which ordinarily may be offered in self-defense. (Pp. vs. Papileta, G.R. No. 03948-CR, July 16, 1968).

11.

The belief of the accused may be considered in determining the existence of unlawful aggression. Ex. 1: A, in the peaceable pursuit of his affairs, sees B rushing rapidly towards him, with an outstretched arm and a pistol in his hand, and using violent menaces against his life as he advances. Having approached him near enough in the same attitude, A, who has a club in his hand strikes B over the head which caused his death. It turns out that the pistol was loaded with powder only, and the real design of B was only to terrify A. The killing is justified, otherwise, the man so attacked must, before he strikes the assailant, stop and ascertain how the pistol is loaded? (Reyes). Ex. 2: Crispin’s gun which turned out to be a toy pistol is inconsequential, considering its strikingly similar resemblance to a real one and defendant-appellant’s belief that a real gun was being aimed at him. (Pp. vs. Boral, 11 CA Rep. 914).

Reasonableness of the means employed (second requisite).

1.

Whether or not the means employed is reasonable, will depend upon the nature and quality of the weapon used by the aggressor, his physical condition, character, size and other circumstances, and those of the person defending himself, and also the place and occasion of the assault. (Reyes).

2.

Perfect equality between the weapon used by one defending himself and that of the aggressor is not required, because the person defending himself does not have sufficient tranquility of mind to think, to calculate and to choose which weapon to use. ( Pp. vs. Padua, C.A. 40 O.G. 998).

3.

Reasonable necessity of the means employed does not imply material commensurability between the means of the attack and defense. What the law requires is rational equivalence, in the consideration of which will enter as principal factors the emergency, the imminent danger to which the person attacked is exposed, and the instinct, more than reason, that moves or impels the defense, and the proportionateness thereof does not depend upon the harm done, but rests upon the imminent danger of such injury. (Pp. vs Encomienda, 46 SCRA 522, 534, Aug. 18, 1972). Ex. 1: An unarmed man was

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being mauled with fistic blows by the deceased and his companions for refusing to their offer to drink wine, picked up a lead pipe within his reach and struck the deceased with it on the forehead resulting the death of the deceased. The use of the lead pipe under the circumstances is reasonable. That accused did not select a lesser vital portion of the body of the deceased to hit is reasonably to be expected, for in such a situation, the accused has to move fast, or in split seconds, otherwise, the aggression on his person would have continued and his life endangered. ( Pp. vs Ocana, C.A. 67 O.G. 3313).

No necessity of the course of action taken.

1.

When the deceased who had attacked Alconga ran away, there was necessity for Alconga to pursue and kill the deceased. ( Pp. vs. Alconga, 78 Phil. 366).

2.

The theory of self-defense is based on the necessity on the part of the person attacked to prevent or repel the unlawful aggression, and when the danger or risk on his part disappeared, his stabbing the aggressor while defending himself should have stopped. ( Pp. Calavagan, C.A. G.R. No. 12952-R. Aug. 10, 1955).

3.

When the accused succeeded in disarming the victim of the piece of wood which the latter was allegedly carrying, the stabbing of such frequency, frenzy and force can no longer be considered as reasonably necessary. (Pp. vs Masangcay, 155 SCRA 113, 122, Oct. 27, 1987).

Necessity of the means used.

1. The means employed by the person must be rationally necessary to prevent or repel an unlawful aggression. Thus, in the following cases, there was no rational necessity to employ the means used: Ex. 1. A sleeping woman, who was awakened by her brother-in-law grasping her arm, was not justified in using a knife to kill him as the latter did not perform any other act which could be construed as an attempt against her honor. ( U.S. vs. Apego, 23 Phil. 391). Ex. 2, When a person was attacked with fists blows only, there was no reasonable necessity to inflict upon the assailant a mortal wound with a dagger. (Pp. vs. Montalbo, 56 Phil. 443). Lack of sufficient provocation on the part of the person defending himself (third requisite in self-defense).

1.

To be entitled to the benefit of justifying circumstance 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. (Reyes).

2.

Even if there is provocation but not sufficient, the third requisite is applicable. Ex. A having discovered that B built a part of his fence on A’ land, asked why he had done so. This question angered B who immediately attack A. If A would kill B to defend himself, the third requisite is present because even if it is true that the question of A angered B, thereby making B attack A, such provocation is not sufficient. ( Pp. vs. Pascua, 28 Phil. 222). See Pp. vs. Genosa, G.R. No. 135981, Jan. 15, 2004)

EXEMPTING CIRCUMSTANCE

The reason for the exemption in exempting circumstance is absence of volutariness or some of its ingredients, namely: criminal intent, intelligence, or freedom of action on the part of the offender, or absence of negligence, imprudence or lack of foresight or lack of skill, in case of Culpable felony.

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Imbecility or insanity.

In imbecility, there is complete absence of intelligence. An imbecile is a person whose mental development is like that of a child between 2 to 7 years of age. It has an IQ of only 7. The deficiency is permanent. Thus, there is no lucid interval.

In insanity that is exempting is limited only to mental aberration or disease of the mind and must completely impair the intelligence of the accused. Emotional or spiritual insanity are not exempting in our jurisdiction, unlike in other common law countries.

The test of insanity as held in Pp. vs. Rafana, Nov. 21, 1991 to be exempting: 1. The test of cognition, or whether the accused acted with complete deprivation of intelligence in committing the said crime; 2. The test of volition, or whether the accused acted in total deprivation will. Age under nine years of age. (Par. 2).

1. Age of absolute irresponsibility raised to fifteen years of age. Republic Act No. 9344 otherwise known as Juvenile Justice and Welfare Act of 2006 raised the age of absolute irresponsibility from nine (9) to fifteen (15) years of age. Under Sec. 6 of the said law, a child fifteen (15) years of age or under at the time of the commission of the crime shall be exempt from criminal liability. However, the child shall be subject to an intervention program as provided under Section 20 of the same law. 2. A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from criminal liability and be subjected to an intervention program unless he/she has acted with discernment, in which case, such child shall be subject to appropriate proceedings in accordance with said act. 3. Discernment, meaning. It’s the mental capacity to understand the difference between right and wrong; and such capacity may be known and should be determined by taking into consideration all the facts and circumstances afforded by the records in each case, the very appearance, the very attitude, the very comportment and behavior of said minor, not only before and during the commission of the act, but also after and even during the trial. (Guevarra vs. Almodovar, 169 SCRA 476, 481). Any person who, performing a lawful act with due care, causes an injury by mere accident without fault or intention of causing it. (Par. 4)

Elements: a) A person is performing a lawful act; b) with due care; c) he causes an injury by mere accident; and d) without fault or intention of causing it. Case: While defending himself against the unjustified assault upon his person made by the assailant, appellant Galacgac fired his revolver at random, wounding two innocent persons. Held: The discharge of firearm in a thickly populated place in the City of Manila being prohibited and penalized by Art. 155 of RPC, the appellant was not performing a lawful act, hence, the exempting circumstance in Art. 12, par. 4 is not applicable. (Pp. vs. Galacgac, 54 OG 1027). Illustration: A person driving his car within the speed limit, while considering the condition of the traffic and the pedestrians at that time, tripped on a stone with on his car tires. The stone hit a pedestrian on the head and suffered profused bleeding. Answer: The driver has no criminal and civil liability, while generally in exempting circumstance, the offender while exempted from criminal responsibility is civilly liable.

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How about if he abandoned his victim, is there a liability of the driver? Ans.: The driver would be liable under Article 275, par. 2 RPC. How about if at the start the driver was driving beyond the speed limit and did not take into consideration the condition of the traffic and the pedestrian? Anw.: The driver is liable under Art. 365 of RPC, and the penalty is qualified to a higher degree.

Accident and Negligence distinguished.

In Jarco Marketing Corp. vs. CA, 321 SCRA 375, the Supreme Court held that an accident is a fortuitive circumstance, event or happening; an event happening without any human agency, or if happening wholly or partly through human agency, an even which under the circumstances is unusual or unexpected by the person to whom it happens. Negligence, on the other hand, is the failure to observe, for the protection of the interest of another person, that degree of care, precaution and vigilance which the circumstances justly demand without which such other person suffers injury. (Pp. vs. Fallorina, GR No. 137347, March 4, 2004).

Any person who acts under the compulsion of an irresistible force. (Par. 5).

1. Force considered irresistible. For a force to be considered irresistible, it must be such that, in spite of the resistance of the person on whom it operates, it compels his members to act and his minds to obey. Such a force can never consist in anything which springs from primarily from the man himself; it must be a force which acts upon him from the outside and by a third person. (U.S. vs. Elicanal, 35 Phil. 209). In other words the offender must be totally deprived of freedom. If the offender still has freedom of choice, whether to act or not, even if the force was employed on him, or even if he is suffering from an uncontrollable fear, he is not exempt from criminal liability. Because he is still possessed with voluntariness. In exempting circumstance, the offender must act without voluntariness or freedom. Case: Where the accused was threatened with a gum by his friend, the mastermind, to perform the crime is not exempting when he himself has a rifle. Meaning there is no total deprivation of freedom. (Pp. vs. Sarip, 88 SCRA 666, Feb. 28, 1979). Case: Where the accused in his testimony said that he was intimidated into committing the crime, but it is was established that he had the opportunity to leave the gang, par. 5 is not available to him. (Pp. vs. Parulan, 88 Phil. 615). Case: Where the accused allegedly under compulsion of an irresistible force when he committed the crime is incredible when he had the opportunity to run or resist the possible aggression because he was also armed. (Pp. vs. Abanes, 73 SCRA 44,47). 2. A Threat of future injury is not enough. The compulsion must be of such a character as to leave no opportunity to the accused for escape or self-defense in equal combat. (Pp. vs. Loreno, 130 SCRA 311, 321-322, July 9, 1984). Any person who acts under the impulse of an uncontrollable fear of an equal or greater injury. (Par. 6). 1. Requisites: For an uncontrollable fear to be invoked successfully, the following requisites must concur: (a) existence of an uncontrollable fear; (b) the fear must be real and imminent; and (c) the fear of an injury is greater than or at least equal to that committed. (Pp. vs. Petenia, 143 SCRA 361, 369). Case: Liberato Exaltacion and Buenaventura Tanchinco were compelled to under fear of death to swear allegiance to the Katipunan whose purpose was to overthrow the government by the force of arms. Held: The accused cannot be criminally liable for rebellion, because they joined the rebels under the imoulse of an uncontrollable fear of an equal or greater injury. (U.S. vs. Exaltacion, 3 Phil. 339). The penalty for rebellion is prision mayor or imprisonment from 6 yrs. And 1 day to 12 years and fine against death if they do not join the rebellion.

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Example: If A had threatened to burn the house of B should the latter not kill his B’s father, and killed his father for fear that A might burn his (B’s) house, B is not exempt from criminal liability for the reason that the evil with which he was threatened was much less than that killing his father. 2. Nature of duress as a valid defense. Duress as a valid defense should be based on real, imminent, or reasonable fear for one’s life or limb and should not be speculative, fanciful, or remote fear. (Pp. vs. Borja, 91 SCRA 340, 355, July 12, 1979). Case: A person who was ordered to kill the victims executed the order because the one who made the order ( a Japanese officer) made a threat that he would come along with them if he will not comply. Held: The threat is not of such serious character and imminence as to create in the mind of the defendant an uncontrollable fear that an equal or greater evil or injury would be inflicted upon him if he did not comply with the alleged order to kill the deceased. (Pp. vs. Moreno, 77 Phil. 549). Any person who fails to perform an act required by law, when prevented by some lawful or insuperable cause. (Par. 7) 1. 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 perform such act was due to some lawful or insuperable cause. 2. When prevented by some lawful cause, meaning. Ex. A person who confessed before a priest being in conspiracy wit other persons against the government. The priest has no criminal liability for failing to report of such conspiracy to the governor or the fiscal of the province where he resides under Art. 116 because under the law, the priest cannot be compelled to reveal any information which he came to know by reason of the confession made to him in his professional capacity. 3. When prevented by some insuperable cause, meaning. Case: The Municipal president who detained the offended party for three days because to take him to the nearest justice of the peace required a journey of three days by boat as there was no other means of transportation. There is no violation of Art. 125 of RPC requiring the delivery of a person arrested to the nearest judicial authority within 36 hours, otherwise the officer will be liable for arbitrary detention. The distance requiring three (3) days journey is insuperable cause. (U.S. vs. Vicentillo, 19 Phil. 118, 119). Case: A mother who at the time of childbirth was overcame by sever dizziness and extreme debility, and left the child in thicket where the child died, is not liable for infanticide because it was physically impossible for her to take her home the child. The dizziness and extreme debility of the woman constitute insuperable cause. (Pp. vs. Bandian, 63 Phil. 530-535). 4. Absolutory causes defined. Absolutory causes are those where the act committed is a crime but for reasons of public policy and sentiment there is no penalty imposed. Other absolutory causes: Art. 6 – The spontaneous desistance of the person who commenced the commission of a felony before he could perform all the acts of execution. Art. 20 – Accessories who are exempt from criminal liability. 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 with the provisions of par. 1 of the next preceding article.

The provision of par. 1 of Art. 19 read as follows: “By profiting themselves or assisting the offenders to profit by the effects of the crime.” Art. 124, last paragraph. – The commission of a crime, or violent insanity or any other ailment requiring the compulsory confinement of the patient in a hospital, shall be considered legal grounds for the detention of any person. Art. 247, pars. 1 and 2. – Death or physical injuries inflicted under exceptional circumstances. - Any legally married person who, having surprised his spouse in the act of committing sexual intercourse with another person, shall kill any of them or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injuries, shall suffer a penalty of destierro.

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If he shall inflict upon them physical injuries of any other kind, he shall be exempted from criminal punishment. Art. 280, par. 3. – The provision of this article (on trespass to dwelling) shall not be applicable to any person who shall enter 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 services to humanity or justice, nor to anyone who shall enter cafes, taverns, inns and other public houses, while the same are open. Art. 332. – Persons exempt from criminal liability. – No criminal, but only civil, liability shall result from the commission of the crime of theft, swindling or malicious mischief committed or caused mutually by the following persons: 1. Spouses, ascendants and descendants, or relatives by affinity in the same line; 2. The widowed spouse with respect to the property which belonged to the deceased spouse before the same shall have passed into the possession of another; and 3. Brothers and sisters and brothers-in-law and sisters-in-law, if living together. Art. 344, par 4. - In cases of seduction, abduction, acts of lasciviousness and rape, the marriage of the offender with the offended party shall extinguish the criminal action or remit the penalty already impose upon him. The provision of this paragraph shall also be applicable to the co-principals, accomplices and accessories after the fact of the abovementioned crimes. 4. Instigation an absolutory cause. Reason: A sound public policy requires that the courts shall condemn this practice (instigation) by directing the acquittal of the accused. Instigation takes place when a peace officer induces a person to commit a crime. Without inducement, the crime would not have been committed. Hence, it is exempting by reason of public policy. Otherwise, the peace officer would be a co-principal. 4.1

If the person who instigated is a private person he will be liable as a principal by inducement. (Art. 17, par.

2). Ex. A policeman induced a person to import opium which he made him believe he would buy and when the opium imported was delivered he made the arrest. Held: There is an instigation. Without the inducement the opium would not have been imported. (Pp. vs. Lua Chu, et al., 56 Phil. 52).

5. Entrapment not an absolutory cause. Entrapment –signifies the ways and means devised by a peace officer to entrap or apprehend a person who has committed a crime. With or without the entrapment, the crime has been committed already. Hence, entrapment is not mitigating. Case: So, if the offender was suspected of selling medicine at a price higher than the fixed by law, and a policeman pretended to be a buyer, bought some of the medicine and paid the offender with the marked money, since the offender sold the medicine to the policeman at price higher than the selling price, there is no instigation but entrapment, as the price was fixed and collected by the offender. (Pp. vs. Tia, 51 O.G. 1863) Case: The accused wrote to his correspondent in Hongkong to send to him a shipment of opium. The opium had been in Hongkong for sometime, awaiting for a ship that would go direct to Cebu. The Collector of Customs of Cebu received information that the accused was intending to land opium in the port. The Collector of custom promised the accused that he would remove all the difficulties in the way, and for this purpose agreed to receive P 2,000.00. Juan Samson, a secret serviceman, pretended to smooth the way for the introduction of the prohibited drug. The accused started landing the opium and had the accused prosecuted. Held: It is true that Juan Samson smoothed the way of the introduction of the prohibited drug, but after the accused had already planned the importation and ordered for the said drug. (Pp. vs. Valmorfes, et al. 122 SCRA 922, June 26, 1983). Distinction between Entrapment and Instigation:

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In entrapment, a criminal design is already in the mind of the person entrapped. It did not emanate from the mind of the law enforcer entrapping him. Entrapment involves only ways and means which are laid down or resorted to facilitate the apprehension of the culprit. In instigation, on the other hand, the criminal plan or design exists in the mind of the law enforcer with whom the person instigated cooperated so it is said that the person instigated is acting only as a mere instrument or toll of the law enforcer in the performance of his duties. If the instigator is the law enforcer, the person instigated is not criminally liable, because it is the law enforcer who planted that criminal mind in him to commit the crime, without which he would not have been a criminal. If the instigator is not a law enforcer, then both will be criminally liable. It would be contrary to public policy to prosecute a citizen who only cooperated with the law enforcer because he believes that it is his civil duty to cooperate. So that, if the person instigated does not know that the person instigating him is a law enforcer or he known him not to be a law enforcer, it is not a case of instigation. This is a case of inducement, both will be criminally liable. 6. Distinctions between justifying circumstances and exempting circumstances. In justifying circumstance1. The circumstance affects the act, not the actor; 2. The act complained of is considered to have been done within the bounds of the law; hence, it is legitimate and lawful in the eyes of the law; 3. Since the act is considered lawful, there is no crime, and because there is no crime there is no criminal; 4. Since there is no crime or criminal, there is no criminal liability as well as civil liability. IN exempting circumstance1. The circumstance affects the actor, not the act; 2. The act complained of is actually wrongful but the actor acted without voluntariness. He is a mere tool or instrument of the crime; 3. Since the act complained of is actually wrongful, there is a crime. But, because the actor acted without voluntariness, there is absence of dolo or culpa. There is no criminal; 4. Since there is a crime committed but there is no criminal, there is civil liability for the wrong done. But there is no criminal liability. However, in pars. 4 & 7 of Article 12, there is no criminal or civil liability (Accident and insuperable cause)

MITIGATING CIRCUMSTANCES (Art. 13 of RPC)

1. Mitigating circumstance are those which, it present in the commission of the crime, do not entirely free the actor from criminal liability, but serve only to reduce the penalty. 2. Basis: Mitigating circumstances are based on the diminution of either freedom of action, intelligence, or intent, or on the lesser perversity of the offender. 3. Classes of mitigating circumstances. a) Ordinary mitigating circumstances: Those enumerated in subsections 1 to 10 of Article 13. b) Privileged mitigating circumstances: a) Art. 68. (Penalty to be imposed upon a person under eighteen years (as amended by R.A 9344); b) Art. 69. (Penalty to be imposed when the crime committed is not wholly excusable; and c) Art. 64. ( Rules for the application of penalties which contain three periods). 4. Distinctions. a) Ordinary mitigating circumstances is susceptible of being offset by any aggravating circumstances; while privileged mitigating circumstances cannot be offset by aggravating circumstance. b) Ordinary mitigating, if not offset by an aggravating circumstance, produces only the effect of applying the penalty provided by law for the crime in its minimum period, in case of divisible penalty; whereas, privileged mitigating produces the effect of imposing upon the offender the penalty by one or two degrees than that provided by law for the crime.

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The privileged mitigating circumstances of incomplete justifying or exempting circumstance (Par. 1, Art. 13, RPC)

1. In self-defense, defense of relative or defense of stranger, it is essential that unlawful aggression be present; otherwise there can be no such defense, whether complete or complete. (Pp. vs Rosal, G.R. No. L-5355). Case: The deceased was about to set on fire the house of the accused. They grappled and then the accused boloed to death the deceased. Held: There was unlawful aggression on the part of the deceased, but there is absence of reasonable necessity of killing the aggressor as he was already driven out of the house and was prostrate on the ground. Accused is entitled to privilege mitigating circumstance. 2. Incomplete justifying circumstance of performance of duty. Case: The deceased was killed was asleep, the crime committed was murder qualified by alevosia. The duty of the accused was to arrest Balagtas or to get him dead or alive if resistance is offered by him and they are overpowered. But through impatience or over anxiety or their desire to take no chance, they have exceeded in the fulfillment of such duty by killing the person whom they believed as Balagtas. (Pp. vs. Oanis, supra).

Paragraph 2, Art. 13 RPC impliedly repealed by RA 9344.

1. A child above fifteen (15) years but below eighteen (18) years of age shall be exempt from criminal liability unless he/she acted with discernment. (Sec. 6, RA 9344). If he acted with discernment, such child in conflict with the law shall undergo diversion program under Chapter 2 of RA 9344. 2. The offender who is over 70 years of age is only a generic mitigating circumstance as Article 68, providing for privileged mitigating circumstances does not include the case of offenders over 70 years old.

That the offender had no intention to commit so grave a wrong as that committed. (Par. 3).

1. This circumstance is 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 acts and its consequences. (U.S. vs. Reyes, 36 Phil. 904, 907).See also Pp. vs. Amit, 32 SCRA 95. 2. The intention, as an internal act, is judged not only by the proportion of the means employed by him to the evil produced by his act, but also b the fact that the blow was or was not aimed at a vital part of the body. Case: It may be deduced from the proven facts that the accused had no intention to kill the victim, his design being only to maltreat him, such that when he realized the fearful consequence of his felonious act, he allowed the victim to secure medical treatment at the municipal dispensary. (Pp. vs Ural, No. L-30801, March 27, 1974, 56 SCRA 138, 146). 3. Intention may also be judged by considering the weapon used, the injury inflicted, and his attitude of mind when the accused attack the deceased. Case: The accused a heavy club in attacking the deceased whom he followed some distance, without giving him the opportunity to defend himself, is to be believed that he intended to do exactly what he did and must be held responsible for the result, without the benefit of the mitigating circumstance. (Pp. vs. Flores, 50 Phil. 548, 551). 4. Art. 13, par. 3 is not applicable when the offender employed brute force. Case: Accused who is a man, knew that the victim was a girl of tender age (6 years old), weak in body, helpless and defenseless, should have known the natural and inevitable result of his act of strangulation the victim. He cannot claim that he had no intention to kill the victim. ( Pp. vs. Yu, 1 SCRA 199, 204). 5. Art. 13, par. 3 applicable to felonies where the intention of the offender is immaterial. Case: In unintentional abortion, where the abortion that resulted is not intended by the offender, the mitigating circumstance that the offender had no intention to commit so grave a wrong as that committed is not applicable. (Pp. vs.

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Cristobal, C.A., G.R. No. 8739, Oct. 31, 1942. But, Case: Where the accused pulled the hair of the complainant who was three months pregnant causing her to fall on her buttocks on the cement floor causing her foetus to fall from her womb, the mitigating circumstance is applicable, her intention was merely to maltreat. (Pp, vs,. Flameno, C.A. 58 O.G. 4060).

Sufficient provocation or threat on the part of the offended party immediately precede the act. (Par. 4).

1. By provocation is understood any unjust or improper conduct or act of the offended party, capable of exciting, inciting, or irritating anyone. 2. Provocation in order to be mitigating must be sufficient and immediately preceding the act. (Pp. vs. Pagal. 77 SCRA 570, 575-576). 3. The word “sufficient” means adequate to excite a person to commit the wrong and must accordingly be proportionate to its gravity. (Pp. vs. Nabora, 73 Phil. 434, 435). Case: The deceased one of the laborers in the line to receive their wages, left his place and forced his way into the file. The accused, who was the foreman ordered him out, but he persisted, and the accused gave him a blow on the right of the head. Held: When the aggression is in retaliation for an insult or injury or threat, the offender cannot claim selfdefense, but can avail of the mitigating circumstance. There is provocation. (U.S. vs. Carrero, 9Phil544,545-546). Case: When in his house, the accused saw an unknown person jumped out of the window and his wife begged for his pardon on her knees, he killed her. Held” The conduct on the part of the wife constitutes sufficient provocation to the accused. (Pp. vs. Marquez, 53 Phil. 133, 135).

4. Provocation must originate from the offended party. Hence, when the alleged provocation did not come from the deceased but form the latter’s mother, the same may not be appreciated in favor of the accused. (Pp. vs. Reyes, 69 SCRA 474, 481). Ex.: A and B were together. A hit C on the head with a piece of stone from his sling-shot and ran away. As he could not overtake A, C faced B and assaulted the latter. In this case, C is not entitled to this mitigating circumstance, because B never gave provocation or took part in it. 5.. As to whether or not provocation is sufficient depends upon the act constituting the provocation, the social standing of the person provoked, the place and time when the provocation is made. (Reyes). 6. Provocation must be immediate to the commission of the crime. Between the provocation by the offended party and the commission of the crime by the person provoked, there should not be any interval of time. Reason: When there is an interval of time between the provocation and the commission of the crime, the conduct of the offended party could not have excited the accused to the commission of the crime, he having had time to regain his reason and to exercise selfcontrol. (Reyes). Case: Where the accused shot the victim one day after the former was provoked by the latter. Held: The accused was not sufficiently provoked at the time the alleged provocation was made. It was a deliberate act of vengeance and not a natural reaction of a human being to immediately retaliate when provoked. (Pp. vs. Benito, 62 SCRA 351, 357, Feb. 13, 1975). Case: The accused after being provoked by the deceased when he was accused of having stolen two (2) jackfruits from the latter’s tree, went home and later returned fully armed and killed the deceased. Held: Provocation should be considered mitigating in favor of the accused Comments: The accusation of the victim should be considered as a grave offense under par. 5 instead of provocation, because an interval of time between the grave offense and time is allowed. 7. Threat immediately preceded the act. Thus, if A was threatened by B with bodily harm and because of the threat, A immediately attacked and injured B, there was a mitigating circumstance of threat immediately preceding the act. 8. The threat should not be offensive and positively strong, because, if it is, the threat to inflict injury is an unlawful aggression which gave rise to self-defense. (U.S. vs. Guysayco, 13 Phil. 292, 295-296)

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The act was committed in the immediate vindication of a grave offense to the one committing the felony (delito), his spouse, ascendants, descendants, legitimate, natural or adopted brothers or sisters, or relatives by affinity within the same degree. (Par. 5)

1. Requisites: a) That there be a grave offense done to the one committing the felony, his spouse, ascendants, descendants, legitimate, natural or adopted brothers r sisters, or relatives by affinity within the same degree; b) That the felony is committed in vindication of such grave offense. A lapse of time is allowed between the vindication and the doing of the grave offense. Case: Stabbing to death the son of the accused which most naturally and logically must have enraged and obfuscated him that, seized by that feeling of hatred and rancor, he stabbed indiscriminately the people around. (Pp. vs. Doniego, 9 SCRA 541, 546, 547). Case: The remarks made by the victim in the presence of the guests during a celebration that the accused lived at the expense of his wife, under the circumstances were highly offensive to the accused or to any other person in his place. (Pp. vs. Rosal, 68 Phil. 323).

2. A lapse of time is allowed between the grave offense and the vindication. Case: The fact that the accused was slapped by the deceased in the presence of many persons a few hours before the former killed the latter, was considered mitigating circumstance. It was held that the influence of the slapping by reason of its gravity and the circumstances under which it was inflicted, lasted until the moment the crime was committed. (Pp. vs. Parana, 64 Phil. 331, 337).

Case: The killing of the paramour by the offended husband one day after the adultery was considered still proximate. (Pp. vs. Palaan, G.R. No. 34976). Ex. 3: The lapse of time between the grave offense (Abduction of the daughter of the accused) and the vindication (Killing of the deceased) was two or three days. It was held that although the th

elopement took place on Jan. 4, 1935, and the aggression on the 7 of said month and year, the offense did not cease while the daughter’s whereabouts remained unknown and her marriage to the deceased unlegalized – there was no interruption. 3. Cases when interval of time negates vindication: Case: Approximately 9 months before the killing, the deceased boxed the accused several times in the face resulting in the conviction of the deceased, there was no immediate or a proximate vindication of the first incident. (Pp. vs. Lumayag, 13 SCRA 502, 507-508). Case: The deceased uttered the following remarks at 11 o’ clock in the morning in the presence of the accused and his officemates: “Nag iistambay pala dito ang magnanakaw” and at 5:00 o’ clock in the afternoon the accused killed the victim. Held: no mitigating circumstance. (Pp. vs. Benito, 74 SCRA 271). Ex. 3: The accused heard the deceased say that the daughter of the former is a flirt and stabbed the victim two months later, no mitigating circumstance because he had sufficient time to recover his serenity. (Pp. vs. Lopez, G.R. No. 136861, Nov. 15, 2000).

4. The basis to determine the gravity of the offense in vindication depends on the social standing of the person, the place, and the time when the insult was made. (See Pp. vs. Ruiz, 93 SCRA 739 where the rule was applied).

Case: During a fiesta, an old man 70 years of age asked the deceased for some roast pig. In the presence of many guests, the deceased insulted the accused, saying: “There is no more. Come here and I will make roast pig of you”. A little later, while the deceased was squatting down, the old man came up behind him and struck him on the head with an ax. Held: While it may trifle to an average person, it evidently was a serious matter to an old man, to be made the butt of a joke in the presence of so many guests. (U.S. vs. Ampar, 37 Phil. 201).

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That of having acted upon an impulse so powerful as naturally to have produced passion or obfuscation. (Par. 6)

1. Requisites: a) That there be an act, both unlawful and sufficient to produce such condition of mind; and b) That the act which produced the obfuscation was not far removed from the commission of the crime by a considerable length of time, during which the perpetrator might recover his normal equanimity. (Pp. vs Gravino, 122 SCRA 123, 134, May 16, 1983) . Case: The act of a common-law wife, who left the common home, refused to go home with the accused, was acting within her rights, and the accused (common law husband) had no legitimate right to compel her to go with him. The act of the deceased, although provocative, nevertheless was insufficient to produce the passion and obfuscation that the law contemplates. ( Pp. vs. Quijano, 50 O.G. 5819) .

Case: But where the accused killed his wife on the occasion when she visited her aunt’s husband, this mitigating

circumstance is applicable, having in mind the jealousy of the accused and her refusal to return to his house until after the arrival of her uncle. (U.S. vs Ortencio, 38 Phil. 341, 344-345). 2. Passion or obfuscation is mitigating only when it arose from a lawful sentiments or legitimate feelings. (Pp. vs. Echaluce, 66 SCRA 221) and not from vicious, unworthy or immoral passion. (U.S. vs. Hicks, 14 Phil. 217). Case: Killing the deceased with whom the offender lived for several years because she left him to live with another man, is not the passion that is mitigating because it did not originate from a legitimate feeling. (U.S. vs. Hicks, supra). Case: If the accused injured the offended party who made indecent propositions to a woman with whom the accused had illicit relations, the obfuscation of the accused is not mitigating because his relationship with the woman is illegitimate. (Pp. vs. Olgado, G.R. No. L-4406, March 31, 1952). 3. There could be no mitigating circumstance of passion or obfuscation when more than 24 hours elapsed between the alleged insult and the commission of the felony. (Pp. vs. Sarikala, 37 Phil. 486, 490), or if several hours passed between the cause of the passion or obfuscation and the commission of the crime. (Pp. vs. Aguinaldo, 92 Phil, 583, 588), or when at least half an hour intervened between the previous fight and the subsequent killing of the deceased by the accused. (Pp. vs. Matbagon, 60 Phil. 887, 890). 4. Passion or obfuscation may lawfully arise from causes existing only in the honest belief of the offender. Case: The belief of the defendant that the deceased had caused his dismissal from his employment is sufficient to confuse his reason and impel him to commit the crime. (u.S. vs. Ferrer, 1Phil. 56, 62). Case: The belief entertained in good faith by the defendant that the deceased cast upon their mother a spell of witchcraft which was the cause of her serious illness, is so powerful a motive as to naturally produce passion or obfuscation. (U.S. vs Macalintal, 2 Phil. 448, 451; Pp. vs. Zapata, 107 Phil. 103, 109). That the offender had voluntarily surrender himself to a person in authority or his agents, or that he had voluntarily confessed his guilt before the court prior to the presentation of the evidence for the prosecution. (Par. 7). 1. Voluntary surrender must be made to a person in authority or his agent. It may be present if made after the issuance of a warrant of arrest but before the actual arrest is made. (Pp. vs Turalba, L-29118, Feb. 28, 1974; Pp. vs. de la Cruz, L-45485, Sept. 19, 1978). 2. But if the accused surrendered after the issuance of warrant of arrest as he had found it futile to continue being a fugitive from justice, such surrender is not mitigating. (Pp. vs. Rodriguez, 119 SCRA 254, Dec. 15, 1982). 3. A surrender is not voluntary when forced by the circumstances. To be voluntary, a surrender must be spontaneous, i.e., there must be an intent to submit oneself to the authorities, either because he acknowledges his guilt or because he wishes to save them from the trouble and expense to be necessarily incurred in his search and capture. (Pp. vs. Reyes, L-30668, July 29, 1979).

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4. The surrender is not voluntary if the offender was merely forced by circumstances because he could not live any longer in hostility as the agents of the law did not give him peace for a moment. (Pp. vs. Sakam, 61 Phil. 27, Pp. vs. Sabater, et al., 74 O.G. 4560, Feb. 28, 1978). Voluntary plea of guilty

1. To be mitigating, the plea of guilty must be: a) made in open court; b) spontaneous; c) prior to the presentation of evidence for the prosecution. An extra-judicial confession is not mitigating. (Pp. vs. Undong, 66 SCRA 386). 2. A plea of guilty made after arraignment and after trial had begun does not entitle the accused to have such plea considered as a mitigating circumstance. (Pp. vs. Lungbos, 162 SCRA 383,388-389, June 21, 1988; Pp. vs. Verano, Jr., L-45589, July 28, 1988, 163 SCRA 614, 621). 3. Death penalty changed to life imprisonment because of plea of guilty, even if done during the presentation of evidence. 31. While the accused entered a plea of guilty only during the trial so that under this circumstances may not, under the law, be considered mitigating, however, such admission of guilt indicates his submission to the law and a moral disposition on his part to reform, hence, the death penalty is changed to life imprisonment. (Pp. vs. Coronel, 17 SCRA 509, 513). 4. Plea of guilty to amended information mitigating. Case: Trial had already begun on the original information for murder and frustrated murder. However, in view of the willingness of the accused to plead guilty for a lesser offense, the prosecution, with leave of court, amended said information to make it for homicide and frustrated homicide, and the accused pleaded guilty thereto. That was an entirely new information and no evidence was presented in connection with the charges made therein before the accused entered his plea of guilty. The accused is entitled to the mitigating circumstance of plea of guilty. (Pp. vs. Ortis, 15 SCRA352, 354, Nov. 29, 1965).See Pp. vs. Intal, 101 Phil. 306, 307-308. 5. Plea of guilty to lesser offense not mitigating circumstance because to be voluntary, the plea of guilty must be to the offense charged. (Pp. vs. Noble, 77 Phil. 93). Or if the voluntary confession is conditional or qualified, it is not mitigating. (Pp. vs. Gano, G.R. No. 134373, Feb. 28, 2001). 6. A case where qualified plea of guilty considered mitigating. Case: The defendant pleaded guilty, however, manifesting that evident premeditation alleged in the information did not attend the commission of the crime. The Court required the presentation of evidence to prove evident premeditation and the prosecution failed. Held: The plea of guilty is mitigating, because although the confession was qualified and the introduction of evidence became necessary, the qualification did not deny the defendant’s guilt and, what is more, was subsequently justified. It was not the defendant’s fault that aggravating circumstances were erroneously alleged in the information. (Pp. vs. Yturriaga, 68 Phil. 534, 539; Pp. vs. Ong, 62 SCRA 174, 216, Jan. 30, 1975).

The offender is deaf and dumb, blind or otherwise suffering from some physical defect which thus restricts his means of action, defense, or communication with his fellow beings. (Par. 8) 1. In a criminal case charging robbery in an inhabited house, the accused is deaf and dumb. Whether the accused is educated or not is immaterial as the law does not distinguish. (Pp. vs. Nazario, 97 Phil. 990). 2. Physical defects referred to in this paragraph is such as being armless, cripple, or a stutterer, whereby his means of act, defend himself or communication with his fellow being are limited. (Albert). 3. In the crime of treason, the physical infirmities of the accused were not considered mitigating as he had shown such fire of purpose, zeal and vigor in the execution of his treasonous activities. (Pp. vs. Garillo, L-30281, Aug. 2, 1978).

Such illness of the offender as would diminish the exercise of the will-power of the offender without however depriving him consciousness of his acts. (par. 9)

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1. Disease of the mind, body, the nerves or moral faculty and the accused who committed the crime while suffering from any of these illnesses is entitled to mitigation of his penalty. (Pp. vs. Francisco, 78 Phil 694). 2. Illness of the offender considered as mitigating: Case 1: The mistaken belief of the accused that the killing of witch was for public good may be considered a mitigating circumstance for the reason that those who have obsession that witches are to be eliminated are in the same condition as one who, attacked with a morbid infirmity but still retaining consciousness of his act, does not have real control over his will. (Pp. vs. Balneg, et al., 79 Phil. 805). Case 2: An offender who is mentally sane is entitled to mitigating circumstance because of his misfortunes and weak character brought about by a mild behaviour disorder as a consequence of an illness she had in early life. (Pp. vs Amit, 82 Phil 820). Case 3: One who is suffering from acute neurosis which made him ill-tempered and easily angered is entitled to this mitigating circumstance, because such illness diminished his exercise of will power. (Pp. vs. Carpenter, C.A. G.R. No. 4168, April 22, 1940). A feeblemind is entitled to the mitigating circumstance under this paragraph. (Pp. vs Formigones, 87 Phil. 658). And finally, any other circumstance of a similar nature or analogous to those abovementioned. (Par. 10). 1. Over 60 years old with failing sight, similar to over 70 years of age mentioned in par. 2. (Pp. vs. Reantillo and Ruiz, C.A., G.R. No. 301, July 27, 1938). 2. Outraged feeling of owner of animal taken for ransom analogous to vindication of a grave offense. (Pp. vs. Monaga, No. L-38528, Nov. 19, 1982, 118 SCRA 466, 476). 3. A person who killed his debtor who tried to escape and refused to pay his debt is entitled to mitigating circumstance similar to passion and obfuscation. (Pp. vs. Merenillo, CA, 36 OG 2283). Impulse of jealous feeling, similar to passion and obfuscation. (Pp. vs. Ubengen, CA, 36OG 763). 4. Manifestation of Battered Wife Syndrome, analogous to an illness that diminishes the exercise of will power. (Pp. vs. Genosa, G.R. No. 135981, Jan. 14, 2004). 5. Voluntary restitution of the property stolen by the accused or immediately reimbursing the amount malversed is mitigating circumstance analogous to voluntary surrender. (Pp. vs. Luntao, CA, 50OG1182). 6. Extreme poverty and necessity, similar to incomplete justification based on state of necessity. Case: The accused, on account of extreme poverty and of the economic difficulty then prevailing, was found to pilfer two sacks of paper valued at P 10.00 from the customhouse. He sold the two sacks of paper for P 2.50. Held: The right to life is more sacred than a mere right to property. This is not to encourage or even countenance theft, but merely to dull somewhat the keen and pain-producing edges of the stark realities of life. (Pp. vs. Macbul, 74 Phil. 436, 438-439). 7. Testifying for the prosecution, analogous to plea of guilty. (Pp. vs. Narvasa, 76 SCRA 70, 81, March 15, 1977). Extenuating circumstances.

The effect of this circumstance is to mitigate the criminal liability of the offender. In other words, this has the effect as mitigating circumstance, only you don’t call it mitigating because this is not found in Article 13. Illustrations: An unwed mother killed her child in order to conceal a dishonor. The concealment of dishonor is an extenuating circumstance insofar as the unwed mother or the maternal grandparents are concerned, but not as far as the father is concerned. The penalty is lowered by two degrees.

The concealment of honor by mother in the crime of infanticide is extenuating circumstance but not in the case of parricide when the age of the victim three days old and above. IN the crime of adultery on the part of a married woman abandoned by her husband. At the time she was abandoned by her husband she needs the company of another man.

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AGGRAVATING CIRCUMSTANCES (Art. 14 RPC). 1. Definition. Aggravating circumstance are 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. 2. BASIS. They are based on the greater perversity of the offender manifested in the commission of the felony as shown by: (1) the motivating power itself; (2) the place of commission; (3) the ways and means employed; (4) the time; or (5) the personal circumstances of the offender, or of the offended party. (reyes). 3. Kinds of aggravating circumstances. a) Generic – Those that can generally apply to all crimes. In Art. 14, the circumstances in paragraphs no. 1,2,3 (dwelling),4,5,6,9,10,14,18,19, and 20, except “by means of motor vehicle” are generic aggravating circumstances. b) Specific – Those that applies only to particular crimes. The circumstances in par. 3 (except dwelling), 15, 16, 17 and 21 are specific aggravating circumstances. c) Qualifying – Those that change the nature of the crime. Art. 248 enumerates the qualifying circumstances which qualify the killing to murder. d) Inherent – Those that must of necessity accompany the commission of the crime. (Art. 62, par. 2). Ex. Evident premeditation is inherent in the crime of robbery, theft, estafa, adultery and concubinage. 4. Qualifying aggravating circumstance distinguished from generic aggravating circumstance. a) The effect of a generic circumstance, not offset by mitigating circumstance, is to increase the penalty which should be imposed upon the accused to the maximum period, but without exceeding the limit prescribed by law; while that of a qualifying circumstance is not only to give the crime its proper and exclusive name but also to place the author thereof in such a situation as to deserve no other penalty than that specifically prescribed by law for said crime. (Pp. vs. Bayot, 64 Phil. 269, 273). b) A qualifying circumstance cannot be offset by a mitigating circumstance; a generic aggravating circumstance may be compensated by a mitigating circumstance. c) A qualifying circumstance to be such must be alleged in the information. If it is not alleged, it is a generic aggravating circumstance only. 5. Effect of aggravating circumstance not alleged in the information. An aggravating circumstance, even if not alleged in the information, may be proved over the objection of the defense (Pp. vs. Gabitanan, CA, 43 OG 3209; Pp. vs martinez Godinez, 106 Phil 606-807), and such evidence may be appreciated in imposing the sentence. Such evidence merely forms part of the proof of the actual commission of the offense and does not violate the constitutional right of the accused to be informed of the nature of the cause of accusation against him. (Pp. vs. Ang, 139 SCRA 115, 121, Oct. 8, 1985); while a qualifying aggravating circumstance must be alleged in the information because it is an integral part of the offense; otherwise it will only be a generic aggravating circumstance. (Pp. vs. Abella, CA 45 OG1802). 6. Treachery is generic aggravating circumstance if not alleged in the information. (Pp. vs. Jovellano, 56 SCRA 156, 163, March 27, 1974; Pp. vs. Estillore, 141 SCRA 456, 461, March 4, 1986; Pp. vs, Cantre, 186 SCRA 76, 79, June 4, 1990). That advantage be taken by the offender of his public position. (par. 1). 1. Meaning of “advantage be taken by the offender of his public office”. The public officer must use the influence, prestige or ascendancy which his office gives him as a means by which he realizes his purpose. The essence of the matter is presented in the inquiry, “Did the accused abuse his office in order to commit the crime?” (U.S. vs. Rodriguez, 19 Phil. 150, 156-157). Case 1: The accused, who is a policeman, the guard on duty and had access to the cell where the victim was confined and under his custody took advantage of his position when he maltreated the victim. (Pp. vs. Ural, 56 SCRA 138, 145, March 27, 1974).

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Case 2: Where the accused, a police officer in the course of the investigation of a charge against him for grave threats shot the complainant in a treacherous manner. (Pp. vs. Reyes, 69 SCRA 474, 480-481, March 27, 1974). Case 3: Where the accused used their authority as members of the police and constabulary to disarm the victim before shooting him. (Pp. vs. Asuncion, 179 SCRA 396, 402, Nov. 14, 1989). Case 4: The three accused who are all police officers ordered the Montecillos to board the mobile patrol car and forced them to hand over their money took advantage of their public positions. It was on account of their authority that the Montecillos believed that Mario committed a crime and would be brought to the police station for investigation unless they gave them what they demanded. (Fortuna vs. People, G.R. No. 135784, Dec. 4, 2000). That the crime be committed in contempt of or with insult to the public authorities. (Par.2). 1. Basis. This is based on the greater perversity of the offender, as shown by his lack of respect for the public authorities. 2. The crime should not be committed against the public authority while he is in the performance of his duty; otherwise the offender commits direct assault (Art. 148). 3. The above rule was not followed in the case of Pp. vs. Santok, G.R. No. L-18226, May 30, 1963 where it was held that the crime committed was homicide with the aggravating circumstance of the commission of the offense in contempt of the public authority, since the deceased was shot while in the performance of his duty as barrio lieutenant. 4. Knowledge that a public authority is present is essential. Thus, if A killed B in the presence of the town mayor, but A did not know that of the presence of the town mayor, this aggravating circumstance is not applicable.

That the act 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. (par. 3).

1. If the four aggravating circumstances are present in the commission of the crime should be considered as one. (Gregorio; Albert). But in Pp vs. Santos, 91 Phil. 320, 327-328, the Supreme Court of Spain held that its former decision did not declare an absolute and general rule which would exclude the possibility of their being considered separately when their elements are distinctly perceived and can subsist independently, revealing greater degree of perversity. Note: the same Supreme Court earlier ruled that the four circumstances constitute only one aggravating circumstance. Thus, in Pp. Cunanan, 110 Phil. 313, 318, night time and band were considered separately. Also in the case of Pp. vs. Taga, 53 Phil. 273 it was held that the aggravating circumstances of sex and age of the injured party as well as those of dwelling place and nighttime must also be taken into account. 2. Disregard of the respect due the offended party on account of his rank, age or sex may be taken into account only in crimes against person or honor. It is not proper to consider this aggravating circumstance in crimes against property. Robbery with Homicide is primarily a crime against property and not against person. Homicide is mere incident of the robbery, the latter being the main purpose and object of the criminal. (Pp. vs. Pagal, 79 SCRA 570, 576-577, Oct. 25, 1977). See also Pp. vs. Nabaluna, 142 SCRA 446, 458, July 7, 1986. 3. Cases in disregard of the rank of the offended party: Case 1: A pupil who attacked or injured his teacher. (U.S. vs Cabiling, 7 Phil. 469, 474). Case 2: Killing a judge because he was strict or because of resentment which the accused harbored against him as a judge. (Pp. vs. Valeriano, 90 Phil. 15, 34-35). Case 3: An attempt against the life of a General of the Philippine army. (Pp. vs. Torres, G.R. No. L-4642, May 29, 1953). 4.In disregard of the rank there must be a difference in the social condition of the offender and the offended party. (reyes). Dwelling

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7. “Dwelling” includes dependencies, staircase, and enclosures under the house. (Pp. vs. Alcala, 40 Phil. 739). 8. For dwelling to be aggravating, the offended party must not give provocation. When it is the offended party who has provoked the incident, he loses his right to the respect and consideration due him in his own house. (Pp. vs. Ambis, 68 Phil. 635, 637). See Pp. vs. Atienza, 116 SCRA 379, 385). 9. The above rule shall apply if there is a close relation between provocation and commission of crime in the dwelling of the person from whom the provocation came. (Pp. vs Dequina, 60 Phil. 279, 288). 10. For aggravating to be inapplicable, provocation must be immediate to the crime committed in the dwelling. Case: The defendant learned that the deceased and the former’s wife were maintaining illicit relations. One night, he went to the house of the deceased and killed him then and there. During the trial of the case, the defense contended that the deceased provoked the crime by his illicit relations with the defendant’s wife. Held: The provocation (the illicit relations) was not given immediately prior to the commission of the crime. Dwelling is still aggravating. (Pp. vs. Dequina, 60 Phil. 279, 288-289). If the defendant surprised the deceased and the wife of the defendant in the act of adultery in the house of the deceased, the aggravating circumstance of dwelling would not exist. (Pp. vs. Dequina, supra). Case: Where the victim was killed inside his house when he gave provocative and insulting words against the accused before the commission of the crime, dwelling is not aggravating because the deceased lost his right to the respect and consideration due him in his house. (Pp. vs. Atienza, supra. 11.

Dwelling was found aggravating in the following cases although the crimes were committed not in the

dwelling of the victim: Case 1: The victim was raped in the boarding house where she was a bedspacer. Her room constituted a dwelling. (Pp. vs. Daniel, 86 SCRA 511, 531). Case 2: The victim was killed in the house of her aunt where she was living with her niece. Dwelling was considered aggravating because dwelling may mean temporary dwelling. (Pp. vs. Badilla, 185 SCRA 554, 570, May 21, 1990). Case 3: The victims were sleeping as guests in the house of another person, were shot to death in the house. Dwelling was held aggravating. The code speaks of dwelling, not domicile. (Pp. vs. Basa, 83 Phil. 622, 624).

The act committed with (1) abuse of confidence or (2) obvious ungratefulness. (Par. 4)

Abuse of confidence.

1. This circumstance exists only when the offended party has trusted the offender who later abuses such trust by committing the crime. The abuse of confidence must be a means of facilitating the commission of the crime, the culprit taking advantage of the offended party’s belief that the former would not abuse said confidence. (Reyes). Case: A jealous lover, who had already determined to kill his sweetheart, invited her to a ride in the country. The girl unsuspecting of his plans, went with him. While they were in the car, the jealous lover stabbed her. It was held that this aggravating circumstance was present. (Pp. vs Marasigan, 70 Phil. 583, 594). 2. Betrayal of confidence not aggravating. Case: The offended was living in the house of the accused, her parents having entrusted to the care of said accused. One day the accused took the offender by the arm and forcibly led her to an isolated place where she was raped by the accused. Held: There is no showing that the accused was able to commit the crime by abusing the confidence reposed upon him by the offended party. The accused betrayed the confidence reposed in him by the parents of the girl. But this is not an aggravating circumstance. It must be an abuse of confidence that facilitated the commission of the crime which is aggravating. (Pp. vs. Arthur Crumb, C.A. 46 OG 6163). Case: The killer of the child, nine-month old, is the domestic servant of the family and is sometimes the deceased child’s amah, the aggravating circumstance of grave abuse of confidence is present. (Pp. vs. Caliso, 58 Phil. 283, 294).

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Compare the Crumb and Caliso case. In Crumb case, the confidence reposed by the parents of the girl in the offender could not have facilitated the commission of the crime, because the offended girl could resist, although unsuccessfully, the commission of the crime. In Caliso case, the victim, being a nine-month old child, could not resist the commission of the crime. The confidence reposed by the parents of the child in the offender facilitated the commission of the crime. (reyes). 3. The confidence between the offender and the offended party must be immediate and personal. Case: The mere fact that the voters had reposed confidence in the defendant by electing him to the public office does not mean that he abused their confidence when he committed estafa against them. (U.S. vs. Torrida, 23 Phil. 189, 192).

Obvious ungratefulness.

1. Ungratefulness must be obvious, i.e., manifest and clear. Case: Where the accused killed his father-in-law in whose house he lived and who partially supported him. (Pp. vs. Floresca, 99 Phil. 244, May 31, 1956). Case: Where the victim was suddenly attacked while in the act of giving their assailant bread and coffee for their breakfast. Instead of being grateful to the victim, they took advantage of his helplessness when his two arms were used in carrying their food, thus, preventing him from defending himself from the sudden attack. (Pp. vs. Bautista, 65 SCRA 460, 470).

That the crime be committed in the palace of the Chief Executive, or in his presence, or where public authorities are engaged in the discharge of their duties, or in a place dedicated to religious worship. (Par. 5).

1. If the place of the commission of the felony is in Malacanang palace or a church, is aggravating, regardless of whether State or official or religious functions are being held. The Chief Executive need not be in Malacanang palace. His presence alone in any place where the crime is committed is enough to constitute the aggravating circumstance. This aggravating circumstance is present even if he is not engaged in the discharge of his duties in the place where the crime is committed. (reyes). 2. Other public authorities must be actually engaged in the performance of duty. (reyes) Case: Where the accused and the decease who were respectively plaintiff and defendant in a civil case in the court of justice of the peace, having gotten into some trouble, left the courtroom and went into an adjoining room, where the accused, without any warning, attacked the deceased with a knife and killed him on the spot, it has been held that it was error to consider the aggravating circumstance of having committed the offense in the place where the public authority was exercising his function, because the court had already adjourned and the attack was made in the adjoining room. (U.S. vs. Punsalan, Phil. 260, 261). Case: A murder committed in an electoral precinct or polling place on election day, this aggravating circumstance will apply. (Pp. vs. Canoy,L-6037, Sept. 30, 1954). 3. Offender must have the intention to commit a crime when he entered the place. Case: At the time of the commission of the crime, both the deceased and the defendant were inside the chapel. The deceased placed his hand on the right thigh of the defendant girl, who pulled out a knife and stabbed him. Held: The aggravating circumstance that the killing was done in a place dedicated to religious worship cannot be legally considered, where there is no evidence to show that the defendant had murder in her heart when she entered the chapel on the fatal night. (Pp. Jaurigue, 76 Phil. 174, 182).

That the crime be committed (1) in the nighttime, or (2) in an unihabited place, or (3) by a band, whenever such circumstance may facilitate the commission of the offense. ( Par. 6).

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1. If the three aggravating circumstances are present in the commission of the crime should be considered as one. (Gregorio; Albert). In Pp vs. Santos, 91 Phil. 320, 327-328, the Supreme Court of Spain held that its former decision did not declare an absolute and general rule which would exclude the possibility of their being considered separately when their elements are distinctly perceived and can subsist independently, revealing greater degree of perversity. Note: the same Supreme Court earlier ruled that the four circumstances constitute only one aggravating circumstance. Thus, in Pp. Cunanan, 110 Phil. 313, 318, night time and band were considered separately. 2. When nighttime, uninhabited place and band aggravating. Nighttime, uninhabited place or band is aggravating: (1) when it facilitated the commission of the crime; or (2) when especially sought for by the offender to insure the commission of the crime or for the purpose of impunity. (Pp. vs Pardo, 79 Phil. 568, 578); © when the offender took advantage thereof for the purpose of impunity. (U.S. vs. Billedo, 32 Phil. 574, 579; Pp. vs. Matbagon, 60 Phil. 887, 893). Ex. A, with intent to kill B, had hidden behind a tree and availed himself of the darkness to prevent his being recognized, or to escape more readily. As soon as b came, A stabbed him to death. Nighttime may facilitate the commission of the crime, when because of the darkness of the night the crime can be perpetrated unmolested, or interference can be avoided, or there would be greater certainty in attaining the ends of the offender. (Pp. vs. Matbagon, supra.) Case: Where the accused waited for the night before committing the robbery with homicide, nighttime is especially sought for. (Pp. vs. BArredo, 87 Phil. 800). Case: Where the accused who was living only 150 meters away from the victim’s house and evidently waited for nightfall to hide his identity and facilitate his escape, knowing that most barrio folks are already asleep, or getting ready to sleep at 9:00 p.m. (Pp. vs. Baring, 187 SCRA 629, 636, July 20, 1990). Case: Where the accused lingered for almost three hours in the evening at the restaurant before carrying out their plan to rob it. (Pp. vs. Lungbos, 162 SCRA 383, 388).

Nighttime.

3. By the word nighttime, should be understood, according to Viada, that period of darkness beginning at end of dusk and ending at dawn. Nights are from m sunset to sunrise. 4. If nighttime is merely incidental to the commission of the crime, not aggravating. Case: At nighttime, the collision of the two vehicles occurred which caused the heated argument and the eventual stabbing of the victim, nighttime is not aggravating. To be aggravating, the prosecution must show that the accused purposely sought to commit the crime at nighttime in order to facilitate the achievement of his objective, prevent discovery or evade capture. (Pp. vs. Velaga, Jr., 199 SCRA 518, 523-524, July 23, 1991).

Uninhabited place

1. uninhabited place defined. uninhabited place is one where there are no house at all, a place at a considerable distance from town, or where the houses are scattered at a great distance from each other. (reyes). Case: Where the place where the crime was committed could be seen and the voice of the deceased could be heard from a nearby house, this aggravating circumstance should not be considered. (Pp. vs. Laoto, 52 Phil. 401, 408). 2. Whether or not the place is uninhabited is determined, not by the distance of the nearest house to the scene of the crime, but whether or not in the place of its commission, there was reasonable possibility of the victim receiving some help.

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Case: This aggravating circumstance is applicable where the crime was committed during nighttime, in a sugarcane plantation about a hundred meters from the nearest house, and the sugarcane in the field was tall enough to obstruct the view of the neighbors and passersby. (Pp. vs Damaso, 75 OG 4979, No. 25, June 18, 1979). Case: Where the crime was committed in the open sea, where no help could be expected by the victim from other persons and the offenders could easily escape punishment. (Pp. vs. Arpa, 27 SCRA 1037, 1044, Aug. 31, 1987). 3. Solitude must be sought to better attain the criminal purpose. (Pp. vs. Aguinaldo, 55Phil. 610, 616). Case : For uninhabited place to apply the offenders must choose the place as an aid either (1) to an easy and uninterrupted accomplishment of their criminal designs, or (2) to insure concealment of the offense, that he might thereby be better secured against detection and punishment. (Pp. vs Andaya, 152 SCRA 570, 578). See Pp. vs. Deguia, 88 Phil. 520, 526).

By a Band.

1. Band defined. Whenever more than three armed malefactors shall have acted together in the commission of an offense, it shall be deemed to have been committed by a band. (reyes). Hence, even of there 20 persons, but only three are armed, the aggravating circumstance by a band cannot be considered. (Pp. vs. Ga, 186 SCRA 790, 797, June 27, 1990). 2. “Stone” is included in the term “arms”. (Pp. vs. Manlolo, GR No. 40778, Jan. 26, 1989). 3. If one of the four armed persons is a principal by inducement, they do not form a band. At least four in number must take direct part in the execution of the criminal act. (Gamara vs. Valero, 51 SCRA 322, 326, June 25, 1973).See. Pp. vs. Robiego, Nov. 1993. 4. “By a band’ is not applicable to crimes against chastity. (Pp. vs. Corpus). 5. Abuse of superior strength and use of firearms, absorbed in aggravating circumstance of “by a band”.(Pp. vs. Escabarte, G.R. No. 42964, March 14, 1988). That the crime be committed on the occasion of a conflagration, shipwreck, earthquake, epidemic or other calamity or misfortune. (Par. 7) 1. “Chaotic condition” after liberation is not included under this paragraph. Pp. vs. Corpus, CA, 43 OG 2249). But in Pp. vs Penjan, CA, 44 OG 3349, the chaotic condition resulting for the liberation of San Pablo was considered a calamity. 2. A banca which developed engine trouble at sea is a misfortune but is not within the terms “other calamity or misfortune” as used in Par. 7, Art. 14 of RPC. (Pp. vs. Arpa, 27 SCRA 1037, 1045, April 25, 1969).

That the crime be committed with the aid of armed men, or (2) persons who insure or afford impunity. (par. 8). 1. Example of “with the aid of armed men” Case” A, in order to get rid of her husband, secured the services of other moros with a promise of a reward and had them killed her husband. A even supplied the rope with which to tie her husband. Held: This aggravating circumstance is present. (Pp. vs. Elane. G.R. No. L-45902). See also the case of Pp. vs. Ortiz, 103 Phil. 944, 949). 2. Exceptions: a)

This aggravating circumstance shall not be considered when both the attacking party and the party

attacked were equally armed. (Albert). b)

When the accused as well as those who cooperated with him in the commission of the crime acted under

the same plan and for the same purpose. (Pp. vs. Piring, 63 Phil. 546, 553, Pp. vs. Candado, 84 SCRA 508, 524). That the accused is a rescidivist. (Par. 9). 1. Who is a recidivist?

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A recidivist is one who, at the time of his trial for one crime, shall have previously been convicted by final judgment of another crime embraced in the same title of the Revised Penal Code. (Pp. vs. Lagarto, 196 SCRA 611, 619, May 6, 1991). 2. No recidivism if the subsequent conviction is for an offense committed before the offense involved in the prior conviction. Case: The accused was convicted if robbery with homicide committed on December 23, 1947. He was previously convicted of theft committed on December 30, 1947. Held: The accused was not a recidivist. (Pp. vs. Baldera, 86 Phil. 189). Ex. The accused was prosecuted and tried for theft, estafa and robbery. Judgment for the tree offenses were read on the same day. The accused is not a recidivist because the judgment in any of the first two offenses was not yet final when he was tried for the third offense. 2. Pardon does not obliterate the fact that the accused was a recidivist; but amnesty extinguishes the penalty and its effect As held in U.S vs Sotelo, 28 Phil. 147, 160, Article 89 extinguishes the penalty and all its effects. There is no such provision with respect to pardon. Thus, pardon does not prevent a former conviction from being considered as an aggravating circumstance. Case: The accused-appellant admitted during the trial that the was once convicted of the crime of homicide but he was pardon. Recidivism is applicable since pardon for a preceding offense does not obliterate the fact that the accused is a recidivist upon his conviction of a second offense embraced in the same title of the Revised Penal Code. (Pp. vs. Lacao, 201 SCRA 317, 330, Sept. 4, 1991).

That the offender has been previously punished for an offense to which the law attaches an equal or greater penalty or for two or more crimes to which it attaches a lighter penalty. (Par. 10).

1. Requisites: 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 equal or greater penalty, or for two or more crimes to which it attaches lighter penalty than for the new offense; and c) That he is convicted for the new offense. 2. “Punished for an offense to which the law an equal x-x-x penalty” , meaning. Ex.: A served sentence for Forcible Abduction (Art. 342) punishable by reclusion temporal, that is, from 12 yrs., 1 day to 20 years. Later after was A released from prison, he committed homicide (Art. 249) punishable also by reclusion temporal. The Court should consider habituality. 3. “Punished for an offense to which the law attaches x-x-x greater penalty”, meaning. Ex: The accused once served sentence for homicide punishable by a penalty ranging from 12 yrs., 1 day to 20 yrs. Now he is convicted of falsification punishable by a penalty ranging from 6 years and 1 day to 12 years. Reiteracion or habituality is present because the penalty for homicide for which he served sentence is greater than that for the new offense (Falsification). 4. “Punished x-x-xfor two or more crimes to which it attaches a lighter penalty”, meaning. Ex.: A served 30 days imprisonment for theft; later 2 months for estafa; now he is tried for homicide which is punishable by reclusion temporal, that is from 12 yrs. And 1 day to 20 years.

5. In retiracion or habituality, it is the penalty attached to the offense that is considered and not the penalty actually imposed. (reyes).

That the crime committed in consideration of a price, reward or promise. (Par. 11). 1. When this aggravating circumstance is present it affects not only the person who received the price or the reward, but also the person who gave it.(U.S. vs. Paro, 36 Phil. 923, 924; U.S. vs. Maharaja Alim, 38 Phil. 1, 7).

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2. But in the case of Pp. vs. Talledo andTimbreza, 85 Phil. 539, it was held that the aggravating circumstance of price or reward cannot be considered against the other accused for the reason that it was not she who committed the crime in consideration of price or reward. (I agree). 3. Price or reward must be for the purpose of inducing another to perform the deed. (Pp. vs. Gamao, 23 Phil. 81). Case: If without previous promise it was given voluntarily after the crime had been committed as an expression of his appreciation for the sympathy and aid shown by the other accused, it should not be taken into consideration for the purpose of increasing the penalty. (U.S. vs. Flores, 28 Phil. 29, 34).

That the crime be committed by means of inundation, fire, poison, explosion, stranding of a vessel or intentional damage thereto, derailment of a locomotive, or by the use of any other artifice involving great waste and ruin. (Par. 12).

1. To be aggravating, either generic or qualifying, any of the circumstances in paragraph 12 must be used by the offender to accomplish a criminal purpose. Case: When the crime intended to be committed is arson and somebody dies as a result thereof, the crime is simply arson and the act resulting in the death of that person is not even an independent crime of homicide, it being absorbed. (Pp. vs. Paterno, et al., 85 Phil. 722). On the other hand, if the offender had the intent to kill the victim, burned the house where the latter was, and the victim died as a consequence, the crime is murder, qualified by the circumstance that the crime was committed by means of fire. (Art. 248, Par. 3). Case: If the house was set on fire after the killing of the victim, there would be two separate crimes of arson and murder or homicide. (Pp. vs. Bersabal, 48 Phil. 439, 441; Pp. vs. Piring, 63 Phil. 546, 552).

That the act be committed with evident premeditation. (Par. 13).

1. The essence of premeditation is that the execution of the criminal act must be preceded by cool thought and reflection upon the resolution to carry out the criminal intent during the space of time sufficient to arrive a calm judgment. (Pp. vs. Durante, 53 Phil. 363, 369). See also Pp. vs. Escabarte, No. L-42964, March 14, 1988, 158 SCRA 602, 612). 2. Evident premeditation may not be appreciated absent any proof as to how and when the plan to kill was hatched or what time elapsed before it was carried out. Pp. vs. Panones, 200 SCRA 624, 635, Aug. 16, 1991). See also Pp. vs. Samonte, 64 SCRA 319, 326, June 11, 1975. 3. Requisites of evident premeditation: 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; and c) 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. (Pp. vs. Lagarto, 196 SCRA 611, 619-620, May 6, 1991). Case: Accused confessed that after the death of his wife he was directed by Datto Mupuck to go huramentado and to kill the two persons he would meet in the town, and if he would be successful, he would be given a pretty woman. In order to carry out his intention to kill two persons he provided himself with a kris, which he concealed in the banana leaves; that he traveled for a day and a night from his home; that upon reaching the town, he attacked a Spaniard, and then attacked a chinaman. Held: The facts established evident premeditation. U.S. Manalinde, 14 Phil. 77). In this case the three requisites are present: First requisite- When Manalinde accepted the proposition on a certain date, he is said to have determined to commit the crime; Second requisite – His journey for a day and night to comply therewith and provided himself with a weapon indicate that the offender clung to his determination to commit the crime; and Third requisite – After the journey for a day and night, he killed the victims. One and night constitute a sufficient lapse of time for the offender to realize the consequences of his contemplated act. See also Pp. vs. Renegado, 57 SCRA 275, 290, May 31, 1974.

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Case: Where on the night when the deceased slapped the accused and asked him to kneel down, the latter made it clear that he would avenge his humiliation; when two days later accused looked inside a bus for the deceased and not finding him there said that if the deceased were there, he had something for him. Accused found the deceased seated in a jeep and stabbed him. Held: There is evident premeditation. (Pp. vs. Mojica, 70 SCRA 502, 508-509, April 30, 1976). 4. The premeditation must be based upon an external acts and not presumed from the mere lapse of time. (Pp. vs. Ricafort, 1 Phil. 173, 176) Case: Although in the offender’s confession there is a statement that, on the morning of June 29, when he heard Calma was at large, he proposed to kill him, there is an entire absence of evidence showing that he meditated and reflected on his intention between the time it was conceived and the time the crime was actually perpetrated. No evident premeditation (Pp. v. Carillo, 77 Phil. 572). Illustration: A and B fought on Monday but because A suffered so many blows, he told B, “this week shall not pass, I will kill you”. On Friday, A killed B. Is there evident premeditation? None. What condition is missing? Evidence to show that between Monday and Friday, the offender clung to his determination to kill the victim, acts in indicative of his having clung to his determination to kill B. 5. Mere threat without the second element does not show evident premeditation. Case: A treat to kill, unsupported by other evidence which would disclose the true criminal state of mind of the accused, will only be construed as a casual remark naturally emanating from a feeling of rancor and not a resolution of the character involved in evident premeditation. (Pp. vs Fuentesuela, GR No. L-48273, April 22, 1942). Case: The fact that the accused in is extra-judicial confession stated that as soon as he heard that the deceased had escaped from the army stockade he prepared to kill him, is not sufficient to establish evident premeditation. It is necessary to establish that the accused meditated on his intention between the time it was conceived and the time the crime was actually perpetrated. Defendant’s proposition was nothing but an expression of his own determination to commit the crime which is entirely different from premeditation. (Pp. vs. Carillo, 77 Phil. 572). 6. Nursing a grudge or resentment against the deceased is not conclusive proof evident premeditation. (Pp. vs. Lacao, L-32078, Sept. 30, 1974). 7. What is sufficient lapse of time? There is no exact time fixed by law and jurisprudence constituting “sufficient lapse of time”. In Pp. vs. Lazafin, 92 Phil. 668, 670, 3 days was held sufficient; Pp. vs. Mojica, 70 Phil. 502, 508-509, 1 month is sufficient; Pp. vs. Diaz, 55 SCRA 178, 188, Jan. 21, 1974, one-day is sufficient; U.S vs Blanco, 18 Phil. 206, 208, quarter of an hour was sufficient; Pp. vs. Pantoja, 25 SCRA 468, 471, half an hour is sufficient; But in the case of Pp. vs. Crisostomo, 108 SCRA 288, 297, Oct. 23, 1981, 2 hours is not sufficient. 8. When victim is different from that intended, premeditation is not aggravating. Case: Evident premeditation may not be properly taken into account when the person whom the defendant proposed to kill was different from the actual victim. (Pp. vs. Hilario,et al., GR No. 128083, March 16, 2001). Case: Evident premeditation is present even if a person other than the intended victim was killed, if it is shown that the conspirators were determined to kill not only the intended victim but also any one who may help him put a violent resistance. (Pp. vs. Timbol, et. Al., GR No. L-47471-47473, Aug. 4, 1944). 9. It is not necessary that there is a plan to kill a particular person. Case: when the criminal intent was to be carried out the first two (2) persons whom the accused will meet, evident premeditation is present. (Pp. Manalinde, supra). Case: A general attack upon a village having been premeditated and planned, the killing of any individual during the attack is attended by evident premeditation. (U.S. vs. Butag, 38 Phil. 746, 747). 10. Evident premeditation is inherent in robbery, but may be aggravating in Robbery with Homicide if the killing of the victim was included in the premeditation.(Pp. vs. Nabual, 28 SCRA 747, 752). Thus, if the killing of the victim was only incidental, evident premeditation is not present. (Pp. vs. Pagal, 97 SCRA 570, 576, Oct. 25, 1977). That (1) craft, (2) fraud, (3) disguise be employed.

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1. CRAFT- involves use of intellectual trickery and cunning on the part of the accused. (Pp. vs. Juliano, 95 SCRA 511, 526). It is a chicanery resorted to by the accused to aid in the execution of his criminal design. It is employed as a scheme in the execution of the crime. Case: Where the regular driver of the victim feigned illness to enable another driver to drive for the victim who drove the vehicle first to the house of the regular driver who said he was already well and so he boarded with his coaccused, took over the driver’s seat, and during the trip shot the victim who was also on board the vehicle. Held: Craft is not attendant. (Pp. vs. Zea, 130 SCRA 77, 81, 90, June 29, 1984). Case: The act of the accused in pretending to be bonafide passengers in the taxi cab driven by the deceased, when they were not so in fact, in order not to arouse his suspicion, and then killing him, constitute craft. (Pp. vs. Daos, 60 Phil. 143, 154). Case: Where the defendants pretended to be constabulary soldiers to gain entry into the place of the victims, craft is properly appreciated as an aggravating circumstance. (Pp. vs. Saquing, 30 SCRA 834, 844, Dec. 26, 1969). Case: Where all the accused intending to kill the victim pretended to accompany the latter in a friendly manner in going home and in order to lure him into a false sense of security and making him unmindful of the tragedy that would befall him, one of them even placed his hands on the shoulder of the victim while walking. Craft was attendant. (Pp. vs. Molleda, 86 SCRA 667, 705, Nov. 21, 1978).craft should be the means of the crime 2. Craft is not attendant where the unlawful scheme could have been carried out just the same even without the pretense.(Pp. vs. Aspili, 191 SCRA 530, 543, Nov. 21, 1990). 3. FRAUD – insidious words or machinations used to induce the victim to act in a manner which would enable the offender to carry out his design. Case: Where the defendants induced their victims to give up their arms upon a promise that no harm should be done to them, and when the latter gave up their arms, the former attacked and killed them. Held: Fraud was present. (U.S. vs. Abelinde, 1 Phil. 568, 574). Case: Where the defendants, upon the pretext of wanting to buy a bottle of wine, induced the victim to go down to the lower story of his dwelling where the wine was stored, entered it when the door was opened to him, and there commenced the assault which ended in his death. Held: Fraud was present. (U.S. vs. Bundal, 3 Phil. 89, 90, 98). Case: The accused, stepfather of the offended party, taking advantage of the absence of the girl’s mother, went to the house and took the young girl away, telling the latter that she was to be taken to her godmother’s house. The accused, however, took the girl to another house were he ravished her. Held: The accused committed rape, employing fraud. (Pp. vs. De Leon, 50 Phil. 539, 545). 3. CRAFT distinguished FRAUD. Craft is an act to prevent suspicion, fraud uses insidious words When there is a direct inducement by insidious words or machinations, fraud is present; otherwise, the act of the accused done in order not to arouse suspicion of the victim constitutes craft. 4. DISGUISE – resorting to any device to conceal identity. Case: The use of an assumed name in the publication of libel constitutes disguise. (Pp. vs. Adamos, CA, GR No. 43808, Aug. 20, 1936). Case: Where the defendant used a handkerchief in covering his face before committing the crime, disguise is present. (Pp. vs. Piring, 63 Phil. 546, 553). Case: If is inspite of the use of handkerchief to cover their faces, the culprits were recognized by the victim, the disguise was not considered aggravating. (Pp. vs. Sonsona, GR No. L-8966, May 25, 1956). But in the later case: Where the masks worn by the accused subsequently fell down, thus, paving the way for this one’s identification does not render the aggravating circumstance of disguise applicable. (Pp. vs. Cabato, 160 SCRA 98, 110, April 15, 1988). Case: Where the accused was wearing masks and wore sunglasses to conceal identity, but he was readily recognizable because his face could easily be seen together with the identifying feature of his mustache. (Pp. vs. Reyes, GR No. 118649, March 9, 1998).

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That (1) advantage be taken of superior strength, or (2) means be employed to weaken the defense. (Par. 15)

1. To take advantage of superior strength means to use purposely excessive force out of proportion to the means of defense available to the person attacked.(Pp. vs. Moka, 196 SCRA 378, 387, April 26, 1991). Case: The deceased Tomas Martir was unarmed, under the influence of liquor. He was much smaller than Navarra. Navarra’s attack came after he (Martir) was pushed to the wall by Antonio Santiago. Not content with this and after Martir tried to escape, Virgilio fired at him. Not only that, this was followed by two other shots from Navarra. Held: Since the aggressors were police officers fully armed, and the deceased was defenseless and under the influence of liquor , a clear case of abuse superior strength is present. The two took advantage of these circumstances to consummate the offense. (Pp. vs. Navarra, 25 SCRA 491, 497, Oct. 14, 1968). 2. To be aggravating, there must be evidence that the accused were physically superior and that they abused such superiority.(Pp. vs. Diokno, 63 Phil. 601, 607). Case: The fact that there were two (2) male persons who attacked the victim does not per se establish that the crime was committed with abuse of superior strength there being no proof of the relative strength of the aggressors and the victim. (Pp. vs. Carpio, 191SCRA 108, 119, Oct. 31, 1990). Case: Where three persons armed with bolos attacked another who was armed with a revolver, it was held that there was no abuse of superior strength, as their strength was almost balanced, a revolver being as effective, if not more so, than the three bolos. (Pp. vs. Antonio, 73 Phil. 421, 424-425). That the act be committed with treachery (alevosia) – Par. 16.

1. Meaning of treachery. There is treachery when the offender commits any of the crimes against the person, employing means, methods or forms in the execution which tend directly and specially to insure its execution, without risk to himself arising fro the defense which the offended party might make. (Pp. vs. Lacao, 201 SCRA 317, 330, Sept. 4, 1991),or that the offended party was not given the opportunity to make a defense. (Pp. vs. Tiozon, 198 SCRA 368, 387, July 23, 1991). Question: Is it necessary that the mode of attack insures the accomplishment of the crime? Answer: No. It is not necessary that the means, methods or forms employed in the execution of the crime insure its accomplishment, as the law says, “To insure its execution” only. In other words, it is the means, methods and forms employed that it considered and not the result. Thus, treachery is considered in attempted or frustrated stage, or even if the offense was not consummated. 2. The means of the attack must be consciously adopted. The suddenness of attack does not, of itself, suffice to support a finding of alevosia, even if the purpose was if the purpose was to kill, so long as the decision was made all of a sudden and the victim’s helpless position was only accidental. Pp. vs. Narit, 197 SCRA 334, May 23, 1991). The accused must make some preparation to kill the deceased in such a manner as to insure the execution of the crime or to make it impossible or hard for the person attacked to defend himself or retaliate. (Pp. vs. Iligan, 191 SCRA 643, 653, Nov. 26, 1990). 3. Treachery cannot be presumed. Even if the wound of the victim is at the back where it is not known as the manner in which the aggression was made or how the act which resulted the death of the deceased began and developed. The wound at the back might have been the last one inflicted or might have been inflicted by accident in the course of the fight. (U.S. vs. Panagilion, 34 Phil. 786, 792-793). 4. Exceptions, or cases, in which treachery may be presumed: Case: When the victim was tied elbow to elbow, his body with many wounds and his head cut off, treachery may be considered, though no witnesses saw the killing. (U.S. vs. Santos, 1 Phil. 222, 224-225).

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Case: The killing of a child is murder qualified by treachery, even if the manner of the attack was not shown. (Pp. vs. Laggui, CA 34 OG 1708). See also Pp. vs. Valerio, Jr., 112 SCRA 231, Feb. 25, 1982), because the weakness of the child due to his tender age results in the absence of any danger to the accused. (U.S. vs Oro, 19 Phil. 548, 554). 5. Treachery must be proved by clear and convincing evidence. Treachery is not to be presumed or taken fro granted from the mere statement of a witness that the attack was so sudden. There must be a clear showing from the narration of facts why the attack or assault is said to be sudden. The reason is that treachery, like any element of the crime, must be proved by clear and convincing evidence. (Pp vs. Santos, 85 SCRA 630, 639, Oct. 23, 1978). 6. Treachery may exist even if the attack is face to face. Treachery should be taken into account even if the deceased was face to face with his assailant as at the time the blow was delivered, where it appears that the attack was not preceded by a dispute and the offended party was unable to prepare himself for his defense. (U.S. vs Cornejo, 28 Phil. 457, 461). Case: the victim approached the driver of a pick up and, as he approached the pick up, the victim was met with gun fire which was followed by two more successive shots. Held: Treachery is present although the shooting was frontal, as the attack was so sudden and unexpected that the victim was not in a position to offer an effective defense. (Pp. vs. Cuadra, 85 SCRA 576, 595). See also Pp vs. Listo, 179 SCRA 415, 421.

7. Mere sudden and unexpected attack does not necessarily give rise to treachery. It does not always follow that because the attack is sudden and unexpected it is tainted with treachery. Indeed, it could have been done on impulse, as a reaction to an actual or imagined provocation offered by the victim. (Pp. vs. Sabanal, 172 SCRA 430, 434). Case: The assailant called out “Fiscal” and when the latter turned his head to find who was calling him, the assailant fired immediately, rendering no opportunity for the victim to defend himself. Held: The fact tat the assailant called “fiscal” before shooting the victim does not negate the presence of treachery. The assailant being a hired killer, he wanted to insure that he was shooting the correct person. (Pp. vs. Magdueno, 144 SCRA 210, 217-218). 8. Treachery may be taken into account even if the victim of the attack was not the person whom the accused intended to kill. (Pp. vs. Trinidad, 162 SCRA 714, 725, April 16, 1968).

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Reason: When there is treachery, it is impossible for either the intended victim or the actual victim to defend himself against the aggression. (Pp. vs. Andaya, CA 40 OG Sup. 12, 141). That means be employed or circumstances brought about which add ignominy to the natural effects of the act. (par. 17).

1. Ignominy, defined. Ignominy is a circumstance pertaining to the moral order, which adds disgrace and obloquy to the material injury caused by the crime. (Pp. vs. Acaya, 163 SCRA 768, 774). 2. Ignominy is applicable to crimes against chastity, less serious physical injuries, light or grave coercion, and murder. Case: Where the accused raped a woman after winding cogon grass around his genital organ, he thereby augmented the wrong done by increasing pain and adding ignominy thereto. (Pp. vs. Torrefiel, et al., CA 45 OG 803). Case: Where the accused raped one of the victims in the presence of her husband, and the others successively raped by five men. (Pp. vs. Detuya, 154 SCRA 410, 426, Sept. 30, 1987). Case: Where the accused used not only the missionary position, i.e., male superior, female inferior, but also dog style of sexual intercourse, i.e., entry from behind. (Pp. vs. Saylan, 28 SCRA 159, 167, June 29, 1984). Case: Where the accused used a flashlight and examined the genital of the victim before he ravished her, and committed the bestial deed in the presence of the victim’s old father. (Pp. vs. Bumidag, GR No. 130630, Dec. 4, 2000). 3. Cases where ignominy is not present: Case: The accused sliced and took the flesh form the thighs, legs and shoulders of the victim after killing her by the use of a knife does not add ignominy to the natural effects of the act. (Pp. vs. Ferrera, 151 SCRA 113. 140, June 18, 1987). It is necessary that the offense be committed in a manner that tends to make its effect more humiliating to the victim, that is, add to his moral suffering. (Pp. vs. Carmina, 193 SCRA 429, 436, Jan. 28, 1991). That the crime be committed after an unlawful entry. (Par. 18). 1. Unlawful entry is inherent in Robbery with force upon things under Art. 299, par. (a), and Art. 302 of the Code, but not in Robbery with violence against or intimidation of persons, because unlawful entry in not inherent inthis kind of robbery. If the crime charged is theft, unlawful entry is aggravating if it is proved during trial. (Pp. vs. Sunga, 43 Phil. 205). 2. Dwelling and unlawful entry taken separately in murders committed in a dwelling. Case: When the accused gained access to the dwelling by climbing through the window and once inside, murdered certain persons in the dwelling, there are two aggravating circumstances which attended the commission of the crimes-dwelling and unlawful entry. (Pp. vs. Barruga, 61 Phil. 318, 331).

That as a means to the commission of a crime, a wall, roof, floor, door, or window be broken. (Par. 19).

Case: It was considered aggravating in murder where the accused cut the ropes at the rear filed tent sand killed two soldiers inside the tent. (U.S. Matanug, 11 Phi. 188, 189, 192). Case: Breaking of the shutters and the framing of the door to insure elements of surprise does not aggravate the commission of the crime. (Pp. vs. Capillas, 108 SCRA 173, 187, Oct. 23, 1981).

That the crime be committed (1) with the aid of persons under fifteen years of age, or (2) by means of motor vehicles, airships, or other similar means. (Par. 20).

1. Motor vehicle to be considered must be used to facilitate the commission of the offense. This circumstance will be considered when there is a showing that the motor vehicle was purposely used to facilitate the commission of the offense or when it is shown that without it the offense charged could not have been

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committed or was intentionally sought to insure the success of the nefarious enterprise. (Pp. vs. Jaranilla, 55 SCRA 563). Thus, it is not present where the motor vehicle was used to facilitate the escape of the accused. (Pp. vs. Veloso, 112 SCRA 173), or its use is merely incidental and not purposely sought to facilitate the commission of the crime. (Pp. vs. Garcia, 80 OG 115, April 9, 1984).

That the wrong done in the commission of the crime be deliberately augmented by causing other wrong not necessary for its commission. (par. 21).

1. There is cruelty when the culprit enjoys and delights in making his victim suffer slowly and gradually, causing unnecessary moral and physical pain in the consummation of the criminal act which he intended to commit. (Pp. s. Dayug, 49 Phil. 423; Pp. vs. Gatcho, L-27251, Feb. 28, 1981). Case: Gagging of the mouth of a three years old child with stockings, dumping him with head downward into a box, and covering the box with sacks and other boxes, causing slow suffocation, and as a result the child died, constitutes cruelty. (Pp. vs. Lora, 113 SCRA 316, March 30, 1982). Case: After hog-tying the victim, the accused extracted the victim’s eyes from its socket with the pointed end of his cane and also stuffed the victim’s mouth with mud. Held: there is cruelty. (Pp. vs. Mariquina, 84 Phil. 39, 40-41, 43, 33). 2. Cruelty refers to the suffering of the victim purposely intended by the offender. (Pp. vs. Gatcho, supra). Cruelty cannot be inferred from the fact that the body of the victim was dismembered and placed inside a sack in the absence of proof that this was done while the deceased was still alive. (Pp. vs. Pascual, -SCRA 722 [1980]). 3. Cruelty requires deliberate prolongation of the suffering of the victim (Pp. vs. Dayug, supra). It cannot be presumed. (Pp. vs. Pp. vs. Atieda, 90 SCRA 144). So, throwing the body of the baby outside the window after it was hacked, cruelty cannot be inferred. (Pp. vs Gacho, supra). Also inflicting various successive wounds in order to cause the death of the victim, no appreciable time intervening between the infliction of one and that of another, is not necessarily cruelty. The number of wounds does not by itself indicate cruelty as it is essential to show that the wounds were inflicted unnecessarily while the victim was still alive to prolong his physical suffering. (Pp. vs Magistrado L-62833, Oct. 8, 1985).

ALTERNATIVE CIRCUMSTANCES (Art. 15).

1. Alternative circumstances are those which must be taken into consideration as aggravating or mitigating according to the nature and effects of the crime and other conditions attending its commission. 2. There are three alternative circumstances to wit: (a) relationship; (b) intoxication; (c) degree of instruction and education of the offender. Relationship –is taken into consideration when the offended party is the spouse, ascendant, descendant legitimate, natural or adopted brother or sister or relative by affinity in the same degree. 1. Relationship is mitigating in rimes against property by analogy to the provision of Art. 332. But in theft, estafa and malicious mischief, relationship is exempting. Thus, relationship is mitigating in the crimes of robbery (Art. 294-302), usurpation (Art. 312), fraudulent insolvency ( Art. 314), and Arson (Arts. 312-322, 325-326). 2. Relationship is aggravating in crimes against person if the offended party is a relative of a higher degree or when the offender and the offended party are relatives of the same level, as killing a brother-in law. (Pp. vs. Mercado, 51 Phil. 99), a brother (Pp. vs. Alisub, 69 Phil. 362, 364). 3. But when the crime against person is any of the serious physical injuries (Art. 263), even if the offended party is descendant of the offender, relationship is an aggravating circumstance

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4. When the crime committed is less serious physical injuries (Art. 265); or slight physical injuries (Art. 266), relationship is a mitigating circumstance, if the offended party is a relative of a lower degree of the offender, and an aggravating circumstance if the offended party is a relative of a higher degree of the offender. 5. But if the crime against persons is homicide or murder, relationship is aggravating even if the victim of the crime is a relative of lower degree. Thus, the killing of a stepfather by her stepmother is attended by the aggravating circumstance of relationship which is considered as aggravating. (Pp. vs. Portento,CA 38 OG 467). 6. In crimes against chastity, relationship is always aggravating, regardless of whether the offended party is a relative of a higher or lower degree of the offended party. (See Pp. vs. Lucas, 181 SCRA 316, 327, Jan. 22, 1990).

Intoxication

1. Intoxication is mitigating if it is not habitual or it is not subsequent to the plan of the commission of the felony. It is aggravating if it is habitual or intentional. 2. By intoxication is meant that the offender’s mental faculties must be affected by drunkenness. The state of intoxication must be proved. (Pp. vs. Apduhan, 24 SCRA 798). Mere drinking of liquor prior to the commission of the crime does not necessarily produce a state of intoxication. 3. If one had plotted to kill the victim, had drunk wine in order to embolden him in carrying the out his evil plan, drunkenness is not mitigating.(Pp. vs. Hernandez, No.L-3391, May 23, 1952). But if one is somewhat drunk at the time of the incident for having drunk tuba, drunkenness is mitigating. (Pp. Calinawan, CA-GR No. 21413, July 21, 1958). 4. a habitual drunkard is one given to intoxication by excessive use of intoxicating drinks. The habit should be actual and confirmed. It is unnecessary that it be a matter of daily occurrence. It lessens individual resistance to evil thought and undermines will power, making the victim a potential evil doer. (Pp. vs. Fuentes, 121 SCRA 252).

Degree of Instruction and Education/Lack of Education.

1. In the degree of instruction and education of the offender, the court considers not only illiteracy but the lack of intelligence of the offender. If one is unable to write but is highly and exceptionally intelligent or mentally alert that he easily realizes the significance of his act, there is no mitigating circumstance.(Pp. vs. Gorospe, 105 Phil. 184; Pp. vs. Geronimo, 55 SCRA 246, Oct. 23, 1973). But where the accused studied up to sixth grade, lack of instruction cannot be considered in his favor. (Pp. Pujinio, 27 SCRA 1185, April 29, 1969). 2. Lack of instruction or a low degree of intelligence is, generally mitigating in all crimes. Exception: Pp. vs Mutya, L-11255-56, Sept. 30, 1959, the SC Held: Such is not mitigating in murder because to kill is forbidden by natural law which every natural being is endowed to know and feel; Pp. vs. Dejaresco, L-32701, June 19, 1984, not mitigating in crimes against property like robbery or theft; Pp. vs. Lopez. L-14347, April 29, 1960, not mitigating in crimes against chastity like rape. Reason: No one, however, unschooled he may be ignorant as to know that theft or robbery or assault upon a person in authority in inherently wrong and violation of the law. (Pp. vs. Magistrado, L-62833, Oct. 8, 1985). But in Pp. vs. Maqui, 27 Phil. 97, 101, lack of instruction was mitigating in theft of large cattle committed by member of an uncivilized tribe of Igorots or in Igorot land. But in Pp. vs. Macatanda, 109 SCRA 35, 38, 39, where the accused claimed to be a Moslem belonging to cultural minority, the SC held: Membership in cultural minority does not per se imply being an uncivilized or semiuncivilized state of the offender (the basis in applying lack of instruction as mitigating in Maqui case). Reason of the Maqui case, which is the only ruling of the SC is that the case was decided in 1914 when the state of civilization of the Igorots has not advanced as it had in its present state, when certainly it can no longer be said that any member of a cultural minority in the country is uncivilized or semi-uncivilized.

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IN Robbery with Homicide, where the accused was illiterate, lack of instruction was held to be mitigating. (Pp. vs. Mantawar, 80 Phil. 817, 823). 3. Lack of instruction must be proved positively and directly and cannot be based on mere deduction or inference. (Pp. vs. Bernardo, CA 40 OG 1707) 4. High degree of instruction is aggravating. Example: A lawyer, who, with abuse of his education and learning, commits estafa – aggravating. But mitigating where a lawyer commits physical injuries, as he did not take advantage of his high degree of education. (Pp. vs. Sulit, CA-G.R. No. 21102-R, Sept. 29, 1959).

PERSON CRIMINALLY LIABLE FOR FELONIES (Title Two)

1. Who are persons criminally liable? For Grave or less grave felonies: a) Principals, b) Accomplices, and c) Accessories. For Light Felonies: a) Principals and b) Accomplices. 2. Who are principals? They are: a) Those who take part in the execution of the act (Principal by direct participation); b) Those who directly force or induce another to commit it (Principal by inducement); and c) Those who cooperate in the commission of the offense by another without which it would have been accomplished (Principal by indispensable cooperation). Principal by direct participation 1. Two or more persons who may take direct part in the execution of the act, in which case they may be principals by direct participation, when the following requisites are present:.(Pp. vs Castillo, et al., 17 SCRA 721). a) That they participated in the criminal resolution; b) That they carried out their plan and personally took part in its execution by acts which directly tended to the same end. (Pp. vs. Ong Lay, 60 Phil. 788, 790).

Principal by inducement

1. there is only principal by inducement or by induction if it is shown that the crime was actually committed by another who was induced. (Pp. vs. Ong Lay, supra). 2. Regarding induction, it is essential that (a) it be made directly with the intention of procuring the commission of the crime; and (b) that such inducement be the determining cause of the said commission by the induced. (Pp. vs. De la Cruz, 97 SCRA 385). Thus, an induced or ill-conceived advice without any intention that such would be followed or that it would produce any result is not inducement because such is not made with the intention of making the one advised to commit a crime. (U.S. vs. Indanan, 24 Phil. 203); Ex.: A person who advised a married woman whose husband was so stringy and treated her badly that the only thing for her to do is was to rob him, was not guilty of the crime of robbery by inducement, for the reason that an imprudent and ill-conceived advice is not sufficient. (cited in the case of U.S. vs Indiana, supra). Reason: The person who gave the advice did not have the intention to procure the commission of the crime. 2. or if the one induced has a personal reason to commit the crime so that he would commit it just the same whether or not there is inducement x-x3. For an act to be considered an inducement, it is necessary that such advise or such words have great dominance and great influence over the person who acts, that it is necessary that they be a direct, as efficacious, as powerful as physical or moral coercion or as violence itself. (Pp. vs. Ulip, et al., 89 Phil. 629). 4.. If the principal by inducement did not include the means to be employed in the commission o the crime like treachery, such will not affect him. (U.S. vs. Gamaco, 23 Phil. 81).

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Principals by indispensable participation

1.There must be immediate participation in the criminal design of the principal by direct participation by an act without which the crime would not have been committed. The cooperation of this principal is by an act indispensable to the commission of the felony. To cooperate means to desire or wish in common a thing. The common purpose does not necessarily mean previous understanding, for it can be inferred from the circumstances of each case. (Pp. vs. Aplegido, et al., 76 Phil. 571). Case: Where one who knowingly contributes money for the purpose of buying weapon to be used by another in killing a third person is principal for having cooperated with an act without which the crime could not have been committed. (Pp. vs Ulip, supra). Case: Where one of the accused removed the panties of the offended party and held her feet while the sexual act was performed by the other accused, the first accused is a principal by indispensable cooperation since considering the extent of the cooperation, without his aid, the crime of rape could not have been committed. (Pp. vs. Tigalo, et al., L34334, Nov. 7, 1979). 2. But any cooperation, even done with knowledge of criminal intent of an accused, if not indispensable to the commission of the crime, will make one liable as accomplice. So if the accused knowingly aided the killers by casting stones at the victim (Pp. vs Tatlonghari, 27 SCRA 728) or the act of giving the victim fist blow after he was stabbed by the other accused, the liability will be that of an accomplice. (Pp. vs. Vistido, 70 SCRA 719).

ACCOMPLICES

Who are accomplices? (Art. 18)

1. The are those, who not being principals, cooperate in the execution of the offense by previous or simultaneous act. (Art. 18) 2. In the case of accomplices, there is no conspiracy. An accomplice has knowledge of the criminal design of the principal and all that he does is to concur with the latter in his purpose, by cooperating in the execution of the crime by previous or simultaneous acts, for the purpose of supplying material or moral aide to the principal in an efficacious way. (Pp. vs. Halili, et al., GR No. 14044, Aug. 5, 1966). 3. A relation must exist between the act of the principal and that committed by the accomplice. (Pp. vs. Tamayo, 44 Phil. 38). It is essential that the accomplice must know of the criminal design of the principal and thereby cooperates knowingly or intentionally by an act which even though not rendered, the crime would be committed just the same. Case: The driver of the taxicab knowing that hi co-accused were going to commit robbery permitted them to use the taxicab in going to the place where the robbery was committed ins an accomplice. (Pp. vs. Lingadd, 51 OG 6191). Case: A while choking B, C suddenly appears and stab B mortally. If A continues choking B after the mortal wound is inflicted, A will be an accomplice. His act is concurrence in the criminal design of C to kill B. Case: Where the victim was mortally wounded and was prostrate on the ground and while in that condition the third accused threw stones on the victim, he should be guilty as an accomplice, for it is apparent that he shared the criminal act, although the means employed may have been distinct and separate. PP. vs Sarmiento, CA Gr No. 00170-Cr, Feb. 27, 1964). 4. In case of doubt whether the participation of the offender will be considered that of an accomplice rather than that of a principal. Case: While Carlos and Pascual joined their borhter in the pursuit of the fleeing Matnog, and in the attack on im as he fell, yet the prosecution witness was unable to assert positively that the two managed to hit the fallen man. There being no showing of conspiracy, and the extent of their participation in the homicide being uncertain, they should be given the benefit of doubt and declared as mere accomplices. (Pp vs Clemente, 21 SCRA 261, 270-271).

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5. Distinction between accomplice and conspirator. Conspirators and accomplices have pone ting in common: they know and agree with the criminal design. Conspirators, however, know the criminal intention because they themselves have decided upon such course of action. Accomplices came to know about it after the principals have reached the decision, and only then do they agree to cooperate in its execution. Conspirators decide that a crime should be committed; conspirators merely concur init. Accomplices do not decide whether the crime should be committed; they merely assent to the plan and cooperate in its accomplishment. Conspirators are authors of the crime; accomplices are merely instrument who perform acts not essential to the perpetration of the offense. (Pp. vs. de Vera, GR No. 128966, 18 Aug. 1999). 6. Co-conspirator may be held liable. Pp. vs. Anin, 64 SCRA 729, 736, it was held that if the overt acts of the accused, although done with the knowledge of the criminal intent of his co-accused was not indispensable to the homicidal assault, the accused should be held liable as an accomplice in the killing of the victim. Pp. vs. Niera, 76 OG 6600, No. 37, Sept. 15, 1980, it was held that in some exceptional situations, having community of design with the principal does not prevent a malefactor from being regarded as an accomplice if his role in the perpetration of the homicide or murder was, relatively speaking, of a minor character. But in Pp. vs. Manzano, 58 SCRA 250, it was held that appellants alternative contention tha he should be regarded only as an accomplice is untenable once it is postulated that he conspired with Bernardo and Delfin to kill Jose Santos. Pp. vs. Mendoza, it was held that the role of a malefactor in the perpetration of the homicide or murder was of a minor character is of no consequence, since having been in conspiracy with the others, the act of one is the act of all. 7. The following requisites must concur for a person to be considered an accomplice: a) There must be community of design; that is knowing the criminal design of the principal by direct participation, he concurs with the latter in his purpose; b) That he cooperates in the execution of the offense by previous or simultaneous act, with the intention of supplying material or moral aid in the execution of the crime in an efficacious way; and c) That there be a relation between the acts done by the principal and those attributed to the person charged as accomplice. (Pp. vs. Tamayo, 44 Phil. 38). 8. The cooperation which the law punishes is the assistance which is knowingly or intentionally given and which is not possible without previous knowledge of the criminal purpose.(Pp. vs. Cruz, 191 SCRA 377, Nov. 14, 1990). Case: The sentry improperly permitted certain convicts to go out of jail, accompanied by the corporal of the guards. The convicts committed robbery. Held: When the sentry permitted the convicts to go at large, the sentry had no knowledge of their intention to commit any crime. (U.S. vs. Bello, 11Phil. 526). Case: A taxi cab driver who, knowing that his co-accused were going to make a hold-up, permitted them to use the taxi cab driven by him in going to a store where his said co-accused staged the hold up, and waited for them until after the hold up, is an accomplice of the crime of robbery.(PP. vs. Lingad, 98 Phil. 5, 12).

9. An accomplice may be liable for a crime different from that which the principal committed.

Case: A attacked B with treachery, the attack being sudden and unexpected. When B was mortally wounded, C, father of A appeared, placed himself on top of B’s abdomen, and held his hands, Later D also appeared and held both knees of B. C and D made it possible for A to search the body of B for the latter’s revolver. It was not shown that that C and D knew of the manner A attacked B. What they knew was that A had unlawfully attacked B. Held: A was guilty of murder qualified by treachery. C and D were guilty as accomplice in the crime of homicide. (Pp. vs. Babiera, 52 Phil. 98).

ACCESSORIES (Art. 19)

An accessory does not participate in the criminal design, nor cooperate in the commission of the felony, but, with knowledge of the commission of the crime, he subsequently takes part in three ways: (a) by profiting from the effects of the crime; (b) by concealing the body, effects or instruments of the crime in order to prevent its discovery; and (c) by

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assisting in the escape or concealment of the principal of the crime, provided he acts with abuse of his public functions or the principal 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. (Pp. vs. Versola, No. L-35022, Dec. 21, 1977, 80 SCRA 600, 608). 1. If the principal author of the robbery has already been convicted and there is no proof that the alleged accessory knew of the commission of the crime and that he profited himself by its proceeds does not make an accessory by his mere possession of the stolen property. (Pp. vs. Racimo, CA 40 OG 279). Note: If there has been no one convicted as a thief, the possessor should be prosecuted as principal in the crime of theft. 2. Knowledge of the commission of the crime may be acquired subsequent to the acquisition of the stolen property. Case: The robbers took and carried away carabaos belonging to another. These animals were found in the possession of A who acquired them without knowing that they had been illegally taken. When the owners of the carabaos informed A that they were illegally deprived of their animals, A demanded the payment of one-half of what he had for them. The owners promised to comeback with the money. When the owners came back, A informed them that he had returned the animals to the person from whom he had bought them. Held: A is an accessory even if he acquired knowledge that the carabaos were stolen after he acquired the same. It is sufficient that he concealed or disposed the same, depriving the owner thereof. ( U.S. vs. Montano, 3 Phil. 110).

SPECIFIC ACTS OF ACCESSORIES: By profiting themselves or assisting the offender to profit by the effects of the crime. Case: A person who received any property from another, and used it, knowing that the same had been stolen, is guilty of the crime of theft as an accessory. (Pp. vs. Tanchoco, 76 Phil. 436, 437). Case: In murder, one who shared in the reward given for the commission of the crime is an accessory. U.S. vs. Empainado, 9 Phil. 613) But one who received P 200 from the owner of a stolen jeep, as a reward for locating it in possession of someone who had bought it, is not an accessory, because the amount of P 200 was in the nature of a reward and not fruits or effects of the crime. (Pp. vs. Yatco, CA 51 OG 260). Question: If A took the stolen property form the principal B without the latter’s consent, is A an accessory? Answer: No, he is a principal in the crime of theft. Case: IN kidnapping for ransom, those who acted as runners or couriers in obtaining the ransom money is an accessory as he assisted the offenders to profit by the effects of the crime. ( Pp. vs. Magsin, GR No. L-3649, Jan. 29, 1954). Case: those who assisted in the burial of the victim of homicide to prevent the discovery of the crime incur the responsibilities of accessories because they conceal or destroy the body of the crime to prevent its discovery. (U.S. vs. Leal, 1 Phil. 118). 3. One who kept silent with regard to the crime he witnessed is not an accessory. Case: A person who knew the commission of a murder, by another whom he knew, kept silent with regard to it, and did not report it to any of the authorities is not liable even as an accessory. (U.S. vs. Callapag, 21 Phil. 262). Reason: Such omission is not harboring, or concealing or assisting in the escape of the principal. But if the person went to the authorities and volunteered false information which tend affirmatively to deceive the prosecuting authorities and thus to prevent the detection of the guilty parties and to aid them in escaping discovery and arrest, he is liable as an accessory. (U.s vs. Romulo, 15 Phil. 408, 415). 3. Accessories’ liability is subordinate and subsequent. Case: If the principal was acquitted, it is neither proper nor possible to convict the defendant as accessory. The responsibility of the accessory is subordinate to that of the principal in a crime, because the accessory’s participation therein is subsequent to its commission, and his guilt is directly related to that of the principal delinquent in the punishable act. If then the facts alleged are not proven in the prosecution instituted, or do not constitute a crime, no legal grounds

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exist for convincing the defendant as an accessory after the fact for a crime not perpetrated. (U.S. vs. Mendoza, 23 Phil. 194, 196). In Mendoza case supra, it was held that the acquittal of the principal in an arson case must likewise result in acquittal of the accessory where it was shown that no crime was committed in as much as the fire was the result of an accident. But if the crime was in fact committed, but the principal was not held criminally liable, because of an exempting circumstance such as insanity or minority, an accessory may be held as such because in exempting circumstance, there is a crime committed. Hence, there is a basis for convicting the accessory. See U.S. vs. Villaluz, 32 Phil. 376).

Accessories who are exempt from criminal liability (Art. 20) An accessory is exempt from criminal liability, when the principal is his(1) spouse, or (2) ascendant, or (3) descendant, or (4) legitimate, natural or adopted brother, sister or relative by affinity within the same degree. Exception: If the accessory took part subsequent to the commission of the crime by (a) profiting by the effects of the crime, and (b) assisting the offender to profit by the effects of the crime. Question: Suppose a husband conceals the property stolen by his wife in order to profit it later, is he liable as accessory? Answer: Yes, because he said act is prompted not by affection but by a detestable greed. The purpose of concealing the property is not to prevent the discovery of the crime. Question: A who committed parricide by killing his wife, went to his adopted brother to hide in the latter’s house and his adopted brother harbored and concealed A because he gave his adopted brother P1,000.00. Is the adopted brother an accessory? Answer: Yes having harbored and concealed A. But he is not criminally liable because he did not profit by the effects of the crime. The P 1,000.00 he received by him from A was not the effect of the crime of parricide.

PENALTIES

Penalties in general Constitutional restriction on penalties. Excessive fines shall not be imposed, nor cruel and unusual punishment inflicted. The punishment is “cruel and unusual” when it is so disproportionate to the offense committed as to shock the moral sense of all reasonable men as to what is right and proper under the circumstances.

Justification of death penalty. When a person proved himself to be a dangerous enemy of society, the latter must protect itself from such enemy by taking his life in retribution for his offense and as an example and warning to others. (Pp. vs. Carillo, 85 Phil. 611, 635). No felony shall be punishable by any penalty not prescribed by law prior to its commission (Art. 21). This article is a declaration that no person shall be subject to criminal prosecution for any act of his until after the State defined the crime and has fixed a penalty therefore. (U.S. vs Parrone, 24 Phil. 29, 35).

Reason for the provision. An act or omission cannot be punished by the State if at the time it was committed there was no law prohibiting it, because a law cannot be raionally obeyed unless it is first shown, and a man cannot be expected to obey an order that has not been given. Thus, subsidiary imprisonment for a crime cannot be imposed, it it was not prescribed by law prior to its commission. (U.S. vs Macasaet).

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Retroactive effect of penal laws (Art. 22).

Penal shall have retroactive effect in so far as they favor the person guilty of felony; provided that the person is not a habitual criminal.

(already discussed in the early chapters) Effect of pardon by the offended party (Article 23)

1. Generally, a pardon by the offended party does not extinguish criminal liability. Even if the injured party already pardoned the offender, the prosecutor can still prosecute the offender. Such pardon by the offended party is not even a ground for the dismissal of the complaint or information. Reason: A crime committed is an offense against the state. IN criminal cases, the intervention of the aggrieved parties is limited to being witnesses for the prosecution. ( Pp. vs. Despavellador, 53 OG 21797). Only the Chief Executive can pardon the offenders. (Art. 36). 2. Compromise does not extinguish criminal liability. It is well settled that criminal liability for estafa is not affected by compromise, for it is a public offense which must be prosecuted and punished by the government on its own motion even though complete reparation should have been made of the damage suffered by the offended party. (Pp. vs. Benitez, 59 OG 1407). There may be a compromise upon the civil liability arising from an offense; 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 criminal liability is void. The consideration of the subject matter is illegal. (See Articles 1306, 1352 and 1409 of the New Civil Code). 3. Except as provided in Art. 344 of this code. The offended party in the crimes of adultery and concubinage cannot institute criminal prosecution, if he shall have consented or pardoned the offenders. (Art. 344, par. 2). The pardon here may be implied, as continued inaction of the offended party after learning the offense. IN the crimes of seduction, abduction, rape or acts of lasciviousness, there shall be no criminal prosecution if the offended party or her parents, grandparents, or guardian as the case may be. The pardon here must be expressed. 4. Pardon under Art. 344 must be made before the institution of criminal prosecution. But the pardon afforded the offenders must come before the institution of the criminal prosecution. (Pp. vs. Infante, 57 Phil. 138-adultery. The only act that extinguishes the penal action after the institution of the criminal action, is the marriage between the offender and the offended party. (Art. 344). But civil liability with regard to the interest of the injured party is extinguished by his express waiver. Art. 24 – measures of prevention or safety which are not considered penalties. (just read the provision. Nothing much to discuss)

Art. 25. Penalties which may be imposed.

SCALE PRINCIPAL PENALTIES Capital punishment: Death Afflictive penalties: Reclusion perpetua

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Reclusion temporal Perpetual or temporary absolute disqualification Perpetual or temporary special disqualification Prision mayor Correctional penalties: Prision correctional Arresto mayor Suspension Destiero Light Penalties Arresto menor Public censure Penalties common to the three preceding clauses: Fine, and bond to keep the peace

ACCESSORY PENALTIES

Perpetual or temporary absolute disqualification Perpetual or temporary special disqualification Suspension from public office, the right to vote and be voted for, the Profession or calling Civil interdiction Indemnification Forfeiture or confiscation of instruments and proceeds of the offense Payment of cost

1. The penalties which may be imposed, according to this codex-x-x are those included in Art. 25 only. Thus, a sentence of five years in Bilibid prison is defective, because it does not specify the exact penalty described in RPC .(U.S. vs. Avillar, 28 Phil. 131, 134-135). The penalty of hard labor in addition to imprisonment cannot be imposed because it is not authorized by the RPC. (Pp. vs. Limaco, 88 Phil. 35, 43-44). The penalty of “life imprisonment” or “cadena perpetua” imposed is erroneous designation. The correct term is “reclusion perpetua”. (Pp. vs. Abletes, 58 SCRA 241, 248). 3. Classification of Penalties 1. Principal Penalties –those expressly imposed by the court in the judgment of conviction. 2. Accessory penalties – those that are deemed included in the imposition of the principal penalties. Principal penalties may be classified: According to their divisibility. 1. Divisible – are those that have fixed duration and are divisible into three periods. 2. Indivisible – penalties which have no fixed duration. The are: Death, Reclusion Perpetua, Perpetual absolute or special disqualification, and public censure. Classification according to subject matter: 1. Corporal (death) 2. Deprivation of freedom (reclusion, prision, arresto) 3. Restriction of freedom (destiero) 4. Deprivation of rights (disqualification and suspension) 5. Pecuniary (fine)

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Classification of penalties according to their gravity. 1. Capital 2. Afflictive 3.

Correctional

4. Light “Censure”, being a penalty, is not proper in acquittal (Pp. vs. Abellera, 69 Phil. 623, 625). Thus, if person is found not guilty, not court has the power to mete punishment . (Gomes vs. Concepcion, 47 Phil. 717, 723). But a competent court, while acquitting the accused, may permit itself nevertheless to criticize or reprehend his acts and conduct in connection with the transaction out of which the accusation arose by expressing its approval or reprehension of those acts to avoid the impression that by acquitting the accused it approves or admires his conduct.

Art. 26. Fine- when afflictive, correctional, or light penalty. 1. Afflictive – over P 6,000 2. Correctional – 200 to P 6,000 3. Light penalty – less than P200 Fine may be imposed as a single penalty or as an alternative penalty.

Duration of each of different penalties (Art. 27). 1. Reclusion perpetua – 20 yrs. And 1 day to 40 yrs. (RA 7659) 2. Reclusion temporal – 12 yrs. And 1 day to 20 yrs. 3. Prision mayor and temporary disqualification - 6yrs and 1 day to 12 yrs.,

except when disqualification is an

accessory penalty, in which case its duration is that pf the principal penalty. 4. Prision correccional, suspension and destiero – 6 mos. And 1 day to 6 yrs., except when suspension is an accessory penalty, in which case its duration is that of the principal penalty. 5. Arresto mayor – 1 mp. And 1 day to 6 mos. 6. Arresto menor – 1 day to 30 days. 7. Bond to keep the peace – the period is discretionary upon the court. 1. The accessory penalties follow the principal penalty and need not be stated in the sentence. Thus, the court will specify only the principal penalty, accessory penalties to the prescribed penalties are deemed imposed although they are not stated in the judgment. 3. Penalties in which other accessory penalties are inherent: Death – perpetual absolute disqualification, and civil interdiction during 30 yrs. Following date of sentence. (Art. 40). Reclusion perpetua and reclusion temporal – civil interdiction for life or during the period of the sentence, as the case may be, and perpetual absolute disqualification. (Art. 41). Prision mayor – temporary absolute disqualification from the right of suffrage. (Art. 42). Prision correccional – suspension from public office, from the right to follow a profession or calling, and perpetual special disqualification from the right of suffrage if the duration of the imprisonment shall exceed 18 months. (Art. 43). Arresto – suspension of the right to hold office and the right of suffrage during the term of the sentence. 4. Distinction between bond to keep the peace from bond for good behavior. 1. Failure to post a bond to keep the peace is imprisonment either for 30 days or 6 months, depending on whether the felony committed is grave or less grave on the one hand, or it is light only on the other hand. 2. Failure to post bond for good behavior is destierro under Art. 284. Bond for good behavior is imposed in the crimes of grave threats and light threat in Art. 25, but you can’t find this penalty in Art. 25. What is provided in Art. 25 is bond to keep the peace but there is offense in the revised penal code which imposes this penalty.

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Art. 28. Computation of penalties.

1. Rules for the computation of penalties. 1. When the offender is in prison – the duration of temporary penalties is from the day on which the judgment becomes final. 2. When the offender is not imprison – the duration of the penalty consisting of deprivation of liberty, is from the day the offender is placed at the disposal of the judicial authorities for the enforcement of the penalty. 3. The duration of other penalties – the duration is from the day on which the offender commences to serve his sentence. If the accused, who was in custody, appealed, his service of sentence

should commence from the date of the

promulgation of the decision of the appellate court, not from the date the judgment of the trial court was promulgated. (Ocampo vs. CA, 97 Phil. 949). The service of sentence of one in prison begins only on the day the judgment becomes final. (Baking vs. Director of prison, 28 CRA 851, 856). If the offender is under preventive imprisonment, rule no. 3 applies, that is the duration of the penalty shall be computed from the day on which the defendant commences to serve his sentence.

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

1. The rule: shall be credited in the service of his sentence with the full time during which they have undergone preventive imprisonment, if the detention prisoner agrees voluntarily in writing to abide by the same disciplinary rules imposed upon convicted prisoners; otherwise, entitled only to four-fifths (4/5). Exception: When they are recidivists, or have been convicted previously twice or more times of any crime; when upon being summoned for the execution of their sentence they have failed to surrender voluntarily. Whenever, the accused has undergone preventive imprisonment for a period equal to or more than the possible maximum imprisonment of the offense charged to which he may be sentenced and the case is not yet terminated, he shall be release immediately without prejudice to the continuation of trial thereof or the proceeding on appeal, if the same is under review. In case the maximum penalty to which the may be sentenced is destiero, he shall be released after 30 days of preventive imprisonment.

Effects of penalties according to their respective nature. (Art. 30-35).

1. Perpetual or temporary absolute disqualification for public office: (a) deprivation of public offices and employments, even if by election; (b) deprivation of right to vote or be elected; (c) disqualification for the offices or public employments and for the exercise of any rights mentioned; and (d) loss of right to retirement pay or pension for any office formerly held. (Art. 30). 2. Perpetual or temporary special disqualification for public office, profession or calling: (a) deprivation of the office, employment, profession or calling affected; and (b) disqualification for holding similar offices or employment perpetually or during the service of sentence. (Art. 31). 3. Perpetual or temporary special disqualification for the exercise of the right of suffrage: (a) deprivation of the right to vote or to be elected to any public office; and (b) cannot hold any public office during the period of disqualification. (Art. 32). 4. Suspension from public office, profession or calling or the right of suffrage: (a) disqualification from holding such office or exercising such profession or calling or right of suffrage during the term of the sentence; and (b) if

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suspended from public office, the offender cannot hold another office having similar functions during the period of suspension. (Art. 33). 5. Civil interdiction: (a) deprivation of the rights of parental authority or guardianship of any ward; (b) deprivation of marital authority; and (c) deprivation of the right to manage his property by any act or conveyance inter vivos. (Art. 34). Note: but he can dispose the property by will or donation mortis causa. 6. Bonds to keep the peace: (a) the offender must present two sufficient sureties who shall undertake that the offender will not commit the offense sought to be prevented, and that incase such offense is committed they will pay the amount determined by the court; or (b) the offender must deposit such amount with the clerk of court to guarantee said undertaking; or (c) the offender may be detained, if he cannot give the bond, for a period not to exceed 6 months if prosecuted for grave or less grave felony, or for a period not to exceed 30 days, if for light felony. (Art. 35).

Art. 36 (pardon; its effects)

1. Effects of pardon by the President. a) 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. b) It shall not exempt the culprit from the payment of the civil indemnity. The pardon cannot make an exception to this rule. 2. Limitations upon the exercise of the pardoning power: 1. That the power can be exercised only after conviction; 2. That such power does not extend to cases of impeachment. (Cristobal vs. Labrador, 71 Phil. 34, 38). If the accused appealed his conviction, the appeal must be withdrawn. (Pp. vs. Salle, Jr., 250 SCRA 592). 2. Pardon granted in general terms does not include accessory penalty. When the principal penalty is remitted by pardon, only the effect of that principal penalty is extinguished but not the accessory penalty, unless such right be expressly restored by the terms of the pardon. Exception: When an absolute pardon is granted after the term of imprisonment has expired, it removes all that is left of the consequences of conviction. (Cristobal vs. Labrador, supra). Art. 37 (cost). The following are included in the costs: 1. Fees, and 2. Indemnities, in the course of judicial proceedings. Payment of cost is discretionary upon the court. Appeal will hardly lie to interfere with the discretion. (Bacolod Murcia Planters’ Assn., Inc. vs. Chua, 84 Phil. 596, 599).

Art. 39. Subsidiary imprisonment.

1. What is a subsidiary penalty? 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, subject to the rules provided for in Art. 39. 2. No subsidiary imprisonment if not imposed in the judgment of conviction. An accused cannot be made to undergo subsidiary imprisonment in case of insolvency to pay the fine imposed upon him when the subsidiary imprisonment is not imposed in the judgment of conviction. (Ramos vs. Gonong, 72 SCRA 559, 565). 3. Rules as to subsidiary imprisonment:

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1. If the penalty imposed is prision correccional or arresto and fine – the subsidiary imprisonment, not to exceed 1/3 of the term of the sentence, and in no case to continue for more than one year. Fraction or part of a day, not included. 2. When the penalty imposed is fine only – subsidiary imprisonment, not to exceed 6 months, if the culprit is prosecuted for grave or less grave felony, and not to exceed 15 days, if prosecuted for light felony. 3. When the penalty imposed is higher than prission correccional – no subsidiary imprisonment. 4. If the penalty is not to be executed by confinement, but of fixed duration – subsidiary penalty shall consist in the same deprivation as those of the principal penalty, under the same rules as in Nos. 1,2 and 3 above. 5. 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 therefor. 4. Subsidiary imprisonment is not an accessory penalty. Therefore, the culprit cannot be made to undergo subsidiary imprisonment unless the judgment expressly so provides. (Pp. Fajarado, 65 Phil. 539, 542).

Art. 40-44 ( Penalties in which accessory penalties are inherent).

1. Outline of accessory penalties inherent in principal penalties: DEATH, when not executed by reason of commutation or pardon – (1) perpetual absolute disqualification; and (2) civil interdiction for 30 years, if not expressly remitted in the pardon. RECLUSION PERPETUA AND RECLUSION TEMPORAL – (1) civil interdiction for life or during the sentence; and (2) perpetual absolute disqualification, unless expressly remitted in the pardon of the principal penalty. PRISION MAYOR – (1) temporary absolute disqualification; and (2) perpetual special disqualification from suffrage, unless expressly remitted in the pardon of the principal penalty. PRISION CORRECCIONAL – (1) suspension from public office, profession or calling; and (2) perpetual special disqualification from suffrage, if the duration of the imprisonment exceeds 18 months, unless expressly remitted in the pardon of the principal penalty.

Note; There is perpetual special disqualification from suffrage, only when the duration of the imprisonment exceeds 18 months. ARRESTO – suspension of the right to hold office and the right of suffrage during the term of the sentence. Art. 45 – Confiscation and forfeiture of the proceeds or instruments of the crime.

Outline of the provision of this article. 1. Every penalty imposed carries with it the forfeiture of the proceeds of the crime and the instrument or tools used in the commission of the crime. 2. The proceeds and the instruments or tolls 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. 1. Confiscation and forfeiture are additional penalties. If the accused has already pleaded guilty to the charge and paid the fine, but the court did not order the confiscation of the money used in illegal gambling, the Court can no longer order their confiscation as the same would be an additional penalty, and as the sentence has become final, the same can no longer be modified, alter or change the sentence. (U.S vs. Hart, 24 Phil. 578, 581-582). Where the penalty imposed did not include the confiscation of the dollars involved, the confiscation or forfeiture of the said dollars as is sought in the government appeal, would be an additional penalty and would amount to an increase in

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the penalty already imposed, thereby placing the accused in double jeopardy. (Pp. vs. Alejandro Paet y Velasco, 100 Phil. 357, Pp. vs. Sanchez, 101 Phil. 745-748). But in the case of Pp. vs. Exconde, 101 Phil. 1125, the Supreme Court ruled that when the accused has appealed, confiscation and forfeiture not ordered by the trial court, may be imposed by the appellate court. How to reconcile the Paet and Exconde case? In Pp. vs. Paet, and Sanchez, the Supreme Court did not entertain the appeal of the government from the refusal of the court to decree such a forfeiture because in a criminal case wherein the accused did not appeal, no appeal can be taken by the government with a view to increasing the penalty imposed by the court below; and the confiscation being an additional penalty, the accused would be placed twice in jeopardy of punishment for the same offense, should the government appeal be entertained. But in the case of Exconde, the accused’s own appeal has removed all bars to the review and correction of the penalty imposed by the court below, even if an increase thereof should be the result.

Art. 48. Penalty for complex crime.

1. In complex crime at least two crimes must be committed. Art. 48 requires the commission of at least two crimes, that is, two or more grave or less grave felonies which resulted from a single act, or an offense must be necessary means for committing the other. 2. A complex crime is only one crime. Although there two or more crimes actually committed, they constitute only one crime in the eyes of the law as well as in the conscience of the offender. The offender has only one criminal intent. Even in the case where an offense is a necessary means for committing the other, the evil intent of the offender is only one. Hence, there is only one penalty imposed for the commission of a complex crime. (Pp. vs. Hernandez, 99 Phil. 515). 3. Two kids of complex crime: 1. When a single act constitute two or more grave or less grave felonies (compound crime). 2. When an offense is a necessary means for committing the other (complex crime proper). Case: Single act of throwing a highly explosive hand grenade at President Roxas resulting in the death of another person, committed several grave felonies. (Pp. vs. Guillen, 85 Phil. 307, 318). Case: Placing a time bomb in a plane, which caused it to explode in mid-air, killing 13 other persons therein, constitute a complex crime of multiple murder and destruction of property. (Pp. vs. Largo, 99 Phil. 1061 -1062). Case: Although several independent acts were performed by the accused in firing separate shots from their individual firearms, it was not possible to determine who among them actually killed victim Rolando Tugadi. Moreover, there is no evidence that accused appellants intended to fire at each and every one of the victims separately and distinctly from each other. On the contrary the evidence clearly shows a single criminal impulse to kill Marlon Tugad’s group as a whole. Thus, one of accused-appellants exclaimed in frustration after the ambush: “My gosh, we were not able to kill all of them.” Where a conspiracy animates several persons with a single purpose, their individual act in pursuance of that purpose are looked upon as a single act, the act of execution, giving rise to a single complex offense. (Pp. vs. Sanidad, GR No. 146099, April 30, 2003). Case: appellant’s single act of detonating an explosive device may quantitatively constitute a cluster of several separate and distinct offenses should be considered only as a single crime in law on which a single penalty is imposed because the offenders were impelled by a single criminal impulse which shows their lesser degree of perversity. (Dominador Malana, et al., vs. People of the Philippines, G.R. No. 173612, March 26, 2008). Case: the single act of throwing into the bedroom of the victims causing the death of three persons and injuries to one person constituted the complex crime of multiple murder and attempted murder. (Pp. vs. Carpo, et al., 356 SCRA 248 [2001]).

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4. Several shots from Thompson sub-machine gun causing several deaths, although caused by a single act of pressing the trigger, are considered several acts. Case: The accused fired his Thompson sub-machine gun at several persons. The first burst of shots hit three persons. The accused let loose a second burst of shots wounding two others. Held: For each death caused or physical injuries inflicted upon the victim corresponds a distinct and separate shot fired by the accused, who thus made himself criminally liable for as many offenses as those resulting from every single act that produced the same. (Pp. vs. Desierto, CA, 45 OG 4542).

4. Cases not held to be complex offenses.

Case: When the acts are wholly different, not only in themselves, but also because they are directed against two different persons, as when one fires his revolver in succession, killing one person and wounding another. (U.S. vs. Ferrer, 1 Phil. 56). Case: When two persons are killed one after the other, by different acts, although these two killings were the result of a single criminal impulse. (Pp. vs. Alfindo, 47 Phil. 1). Case: The appellant alone killed all the six victims, one after another, with one shot each. (Pp. vs. Remollino, 109 Phil. 607, 612). Compare Remollino, supra with Lawas case:, where the Supreme Court held: “If the act or acts complained of resulted from a single criminal impulse, it constitutes a single”. The Supreme Court continued by stating, “it may also be added that there is absolutely no evidence as to the number of persons killed by each and everyone of the appellants, so even if we were induced to hold each appellant responsible for each and every death caused by him, it is impossible to carry that desire into effect as it is impossible to ascertain the individual deaths caused by each and everyone. We are, therefore, forced to find the appellants guilty of only one offense of multiple homicide for which the penalty to be imposed should be in the maximum period. (Pp. vs. Lawas, GR L-7618, June 30, 1955). Note: The ruling of Lawas is applicable only when there is no evidence at all to show the number of persons killed by each of several defendants. 5. Several light felonies resulting from one single act – not complex. Case: A collision between two automobiles driven in a careless and negligent manner, resulting in the physical injuries of the passengers and light felony of damage to property, there is no complex crime, because the crime of slight physical injuries, as well as damage to property is light felony. (Pp. vs. Turla, 50 Phil. 1001, 1002). 6. Applicable to crimes through negligence. Case: A Municipal Mayor who accidentally discharge his re3volver during a school program killing a girl and injuring a boy requiring medical attendance for more than 30 days, was found guilty of complex crime of homicide with less serious physical injuries through reckless imprudence. (Pp. vs. Castro, 40 OG Supp. 12, 83). Case: A man while pouring a gasoline in the tank of his passenger bus in a garage used a candle to light the place. The gasoline caught fire and the house was burned. His mother-in-law, who jumped from a window during the fire, died due to burns and injuries and another person suffered serious physical injuries. Held: The crimes of arson, homicide, serious physical injuries, and damage to property constitute a complex crime within the meaning of Art. 48. (Pp. vs. Pacson, CA, 46 OG 2165). “When an offense is a necessary means for committing the other” Requisites: 1. That at least two offenses are committed. 2. That one or some of the offenses must be necessary to commit the other. 3. That both or all the offenses must be punished under the same statute. Abduction as a necessary means for committing rape.

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Case: A girl, 19 years of age, who had worked in the rice fields in Calamba Laguna, was on her way home in the afternoon. When in an uninhabited place, the two accused forcibly abducted her against her strong protest and resistance, took her to the woods in Silang, Cavite, and other places where she was raped by one of the accused while her hands were being held by the other. Held: the crime of forcible abduction was a necessary means for committing the crime of rape. (See Pp. vs. Manguiat, 51 Phil. 406).

7. In complex crime, when the offender executes various acts, he must have a single purpose. Case: The accused received 17 money orders with a letter, all in one envelope, addressed to the offended party. The accused presented them to the post office for cashing on one occasion, after having falsified the signature of the remitter on each and every one of the 17 money orders. Held: In all the acts performed, there was only one criminal intent. To commit estafa, the accused had to commit 17 falsifications. These falsifications were necessary means to commit estafa. (Pp. vs. Gallardo, CA 52 OG 3103). Case: But if a person falsified 27 vouchers, not to commit estafa or malversation, he is liable for 27 falsifications, because the various acts of falsifications were not executed for the attainment of a single purpose. (See Gonzales vs. City Fiscal, CA-GR. No. 19075-R, March 20, 1957).

8. Subsequent acts of intercourse, after forcible abduction with rape, are separate acts of rape. Case: The complaining witness was forcibly abducted by the four accused and violated on board a truck by one of them with the assistance of three others, and after reaching a house in the evening, the four of them alternatively ravished her inside the house three times each and one each the following morning. Held: There was only one forcible abduction with rape which was the on committed in the truck, and the subsequent acts of intercourse in the house against her will are separate acts of rape. Reason for the ruling: When the first act of rape was committed in the truck, the crime of forcible abduction was already consummated so that each of the succeeding rapes committed in the house cannot legally be considered as still connected with the abduction. The crimes committed are one (1) forcible abduction with rape and sixteen (16) separate rapes. (Pp. vs. Bohos, No. L-40995, June 25, 1980, 98 SCRA 353, 364).

9. No complex crime, when one offense is committed to conceal the other. Case: After committing homicide, the accused, in order to conceal the crime, set fire to the house where it had been perpetrated. (Pp. vs. Bersabal, 48 Phil. 439, 442). Note: Homicide nor arson was neither necessary to commit the other. Case: A postmaster received from the offended party P 1, 250 to be transmitted as a telegraph money order to a third person. He failed to send the money and when the complainant demanded its return, he returned only P 417, having already misappropriated the difference of P 833. He then forged the signature of the complainant to a receipt made by him, reciting therein that said complainant had already received from him the entire amount. Held: The amount appropriated for himself was in the possession and at the disposal of the accused and he could have appropriated it to himself without the necessity of the falsified document. Two crimes were committed. The falsification was a means to conceal, not to commit, the malversation. (U.S. vs. Geta, 43 Phil. 1009, 1013).

9. When a complex crime is charged and one offense is not proven, the accused can be convicted of the other. Case: When a complex crime is charged and the evidence fails to support the charge as to one of the component offenses, the defendant can be convicted of the other. ( Pp. vs. Maribung, NO. L-47500, April 29, 1987, 149 SCRA 292, 300-310, 304).

CONTINUING CRIME. A continued (continuous or continuing) crime is a single crime, consisting of a series of acts but all arising from a criminal resolution.

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A continuing offense 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. Although there is a series of acts, there is only one crime committed. Case: A thief who takes from the yard of a house two game roosters belonging to two different persons commits only one crime, for there is a unity of thought in the criminal purpose of the offender. There is no series of acts here for the accomplishment of different purposes, but only of one (purpose) which is consummated. (Pp. vs. de Leon, 49 Phil. 437, 439-441). In getting hold of the two roosters, it is not done by a single act of taking, but by two separate acts. There is, however, a unity of thought and action in taking the two roosters. Case: The taking of six roosters from coop is a single offense of theft. The assumption is that accused were animated by single criminal impulse. (Pp. vs. Jaranilla, No. L-28547, Feb. 22, 1974 55 SCRA 563, 575). Compare these two cases with Pp. vs. Enguero. Facts: Appellants were charged with the crime of robbery in band in three separate informations, committed by robbing one house, then proceeded to another house where the second robbery was committed and then to another house where the third robbery was committed. Held: Appellants argued that they are guilty of one crime only, citing in support of their contention the case of Pp. vs. De Leon, 49 Phil. 437. The contention is without merit. In the case cited, defendant entered the yard of a house where he found two fighting cocks belonging to different persons and took them. In the present case, appellants, after committing the first crime, went to another house where they committed the second and proceeded to another house where they committed the third. Obviously, the rule in the case cited cannot be invoked and applied to the present case. (Pp vs. Enguero, 100 Phil. 101). Compare Enguero with Pp. vs. Dela Cruz. Facts: While the in habitants of a barrio were working in a sugar mill, seven armed persons, who had a general plan to commit robbery against all those in the place, entered into the mill and while two of the bandits guarded the people with guns leveled at them, five of them ransacked the houses for their personal properties. Held: The several acts of ransacking the different houses were not unconnected and entirely distinct from one another. They formed component parts of the general plan to despoil all those within the vicinity. There is only one crime of robbery in this case. (Pp. vs. Dela Cruz, GR No. L-1745, May 23, 1950.) 10. The series of acts born of a single criminal impulse may be perpetrated during a long period of time. Case: A sent anonymous letter to B, demanding P 5,000.00 under threats of death and burning the latter’s house. B sent P 1,000 to A. Two months later, A sent again another letter to B, demanding the balance of P 4,000 and making the same threats. B sent P 2,000 to A. Four months later, A sent again another letter to B demanding the amount of P 2,000 and making the same threats. B sent P 1,000. Six months thereafter, A sent another letter to B, demanding the remaining of P 1,000 and making the same threats. This time a was arrested for grave threats. Held: The different acts of sending letters of demand for money with threats to kill and burn the house of the offended party constitute only one and the same crime of grave threats born of a single criminal impulse to attain a definite objective. ( Pp. vs. Moreno, CA, 34 OG 1767).

TRANSITORY CRIME (Moving crime)

Ex: Kidnapping for the purpose of ransom, by forcibly taking the victim from Manila to Bulacan where ransom was demanded. The offenders can be prosecuted and tried either in Manila or in Bulacan. When a transitory crime is committed, the criminal action may be instituted and tried in the court of the municipality, city or province wherein any of the essential ingredients thereof took place. The singleness of the crime, by committing two or more acts, is not considered. Art. 49. Penalty to be imposed upon the principals when the crime committed is different from that intended. The rules: 1. 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.

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2. 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. 3. If the act committed also constitute 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 the maximum period. 1. Art. 49 applies only when 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. (1) Aberration ictusEx.: A fired his gun at his father, with intent to kill him, but he missed and hit C, killing the latter. In this case, two crimes were actually committed: (1) homicide, of which C was the victim; and (2) attempted parricide, of which A’s father was the offended party. Thus, A committed a complex crime of homicide with attempted parricide. Art. 48 and not 49 is applicable. (2) Error in personaeEx.: A, thinking that the person walking in a dark alley was B, a stranger, fired at that person, who was killed as a result. It turned out that person was C, the father of A. In this case, the crime actually committed is parricide, punishable by reclusion perpetua to death. The crime which A intended to commit is homicide, punishable by reclusion temporal. The penalty for homicide shall be imposed in its maximum. (Art. 49, par. 1). But if A wanted to kill his father and waited for the latter to arrive in a dark alley; when a saw a person coming and thinking that he was his father, A shot him; and it turned out that the person is a stranger. A should be punished with the penalty for homicide in the maximum period. (8) Prater intentionemEx.: A, without intent to kill, boxed B from behind on the back part of the latter’s head. B fell to the cement pavement with his head striking it. B died due to the fracture of the skull. In this case, the death of B was not intended by A.

Book Two CRIMES AND PENALTIES

CRIMES AGAINST NATIONAL SECURITY Section One- Treason and Espionage Art. 114 - Treason. Elements of Treason: 1. That the offender owes allegiance to the Government of the Philippines. 2. That there is a war in which the Philippines is involved; 3. That the offender eithera. levies war against the government, or b. adheres to the enemies, giving them aid or comfort. Treason – is breach of allegiance to a government, committed by a person who owes allegiance to it. Allegiance- is the obligation of fidelity and obedience which the individuals owe to the government under which the individuals under which they live or to their sovereign, in return for the protection they receive.

The offender in treason is either a Filipino citizen or a resident alien. Thus, the offender is treason must be a Filipino citizen, as he should not be a foreigner. Now as amended by Executive Order No. 44, Revised Penal Code now punishes a resident alien who commits treason. (Pp. vs. Marcaida, 79 Phil. 283).

Allegiance may either be temporary (resident alien) or permanent.

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Temporary allegiance- is the obligation of fidelity and obedience which a resident alien owes to our government. (Laurel vs. Misa, 77 Phil. 956).

Treason can be committed in times of war only.

Treason is basically a war crime, it is punished by the state as a measure of self-defense and self-preservation. The law of treason is an emergency .measure. It remains dormant until the emergency arises. But as war starts, it relentlessly put into effect. (Concurring opinion of Justice Perfecto in Laurel vs. Misa, supra).

Two modes of committing treason 1. By levying war against the government. 2. By adhering to the enemies of the Philippines, giving them aid or comfort. Levying war – is the actual assembling of men for the purpose of executing a treasonable design by force. It is not necessary that there be a formal declaration of the existence of a state of war. It is not necessary that there be any formal declaration of the existence of a state of war. Actual hostilities may determine the commencement of war, (Justice Johneson, dissenting; U.S. vs. Lagnason, 3 Phil. 495). The levying of war must be in collaboration with a foreign enemy. If the levying of war is merely a civil uprising, without the intention of helping an external enemy, the crime is not treason. The offender may be held liable for rebellion. Adherence to the enemy – means to betray. When a citizen intellectually or emotionally favors the enemy and harbors sympathies or conviction disloyal to his country’s policy or interest. (Cramer vs. U.S., 65 Supt. Ct 918, April 23, 1945). Aid or comfort – means an act which strengthens or tends to strengthen the enemy in the conduct of war against the traitor’s country and an act which tends to weaken the power of the traitor’s country to resist or to attack the enemy. (Cramer vs. U.S., supra). Adherence alone without giving the enemy aid or comfort, does not constitute treason. Friendly relations with the Japanese during the war, openly revealing himself sympathetic to the cause of the enemy and also believing in the invincibility of the Japanese Armed Forces does not in itself constitute a treasonable act. The crime of treason must consist of two (2) elements: 1) adherence to the enemy; and 2) rendering him aid and comfort. (Pp. vs Tan, P.C., 42 OG 12 63, see also Pp. vs. Roble, 83 Phil. 1).

Where treason can be committed.

If the offender is a Filipino, treason can be committed outside of the Philippines, in the Philippines or elsewhere. If the offender is a alien residing in the Philippines, treason must be committed in the Philippines (E.O. No. 44).

Treason is a continuous offense. Treason is of such nature that it may be committed by a single act, by a series of acts, or by several series thereof, not only in a single time, but in different times, it being a continuous crime. (Pp. vs. Victoria, 78 Phil. 129).

Two-witness rule. The testimony of two witnesses is required to prove the overt act of giving aid or comfort. It is not necessary to prove adherence. The defendant should be acquitted if only one of the two witnesses is believed by the Court. (See. People vs. Adriano, 78 Phil. 563-567).

Reason for the two-witness rule.

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The special nature of the crime of treason that the accused be afforded a special protection not required in other cases so as to avoid a miscarriage of justice. The extreme seriousness of the crime, for which death is one of the penalties provided by law, and the fact that the crime is committed on abnormal times, when small differences may in mortal enmity wipe out all scruples in sacrificing the truth, require that, at least, two witnesses must testify to overt acts of treason, if the same should be accepted by the tribunals as legal basis to condemn a person as a traitor. (Pp. vs Marcaida, 79 Phil. 295, conurring opinion of Justice Perfecto).

Reason why two-witness rule not applicable in adherence to the enemy. It seems obvious that adherence, in the sense of a disloyal state of mind, cannot be, and is not required to be, proved by deposition of two witnesses, because what is designed in the mind of an accused never is susceptible of proof by direct testimony. ( Reyes). Art. 115 – Conspiracy and proposal to commit treason.

How are the crimes of conspiracy and proposal to commit treason committed? Conspiracy to commit treason is committed when in time of war, two or more persons come to an agreement to levy war against the Government or to adhere to the enemies and to give them aid or comfort, and decide to commit it. Two witness rule is not applicable in this offense as this is a separate and distinct offense from that of treason. (U.S. vs. Bautista, et al., 6 Phil. 581).

Art. 116. Misprision of treason. Elements: 1. That the offender must be owing allegiance to the Government, and not foreigner. 2. That he has knowledge of any conspiracy (to commit treason) against the government. 3. That 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.

Art. 116 does not apply when the crime of treason has already been committed. This is because Art. 116 speaks of “knowledge of any conspiracy against” the government of the Philippines, not knowledge of treason actually committed by another. Note: the offender in Art. 116 is a principal, not an accessory, but he is punished as an accessory of the crime of treason. He is a principal in Art. 116 but punished as an accessory.

Art. 117 – Espionage.

Two ways of committing espionage. 1. By entering, without authority therefore, a warship, fort, or naval or military establishment or reservation to obtain any information, plans, photographs or other data of a confidential nature relative to the defense of the Philippines. Elements: a) That the offender enters any of the places mentioned therein; b) That he has no authority therefore; c) That his purpose is to obtain information, plans, photographs or other data of a confidential nature relative to the defense of the Philippines. (Guevara).

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2. By disclosing to the representative of a foreign nation the contents of the articles, data or information referred to in paragraph No. 1 of Art. 117, by reason of the public office he holds; Elements: a)

That the offender is a public officer;

b) That he has in possession of the articles, data or information to in paragraph No. 1 of Art. 117, by reason of the public office he holds; c)

That he discloses their contents to a representative of a foreign nation.

It is not necessary that information, etc. is obtained. Under the first way of committing espionage, it is not necessary that the offender should have obtained any information, plan, etc. It is sufficient that he has the purpose to obtain any of them when he entered a warship, fort, naval or military establishment.If a private persons discloses such information he is liable in the first par

Other acts of espionage are punished by Com. Act No. 616. Art. 118. Inciting to war or giving motive for reprisal. Elements: 1. That the offender performs unlawful or unauthorized acts. 2. that such acts provoke or give occasion for a war involving or liable to involve the Philippines, or expose Filipino citizens to reprisals on their personal property. Examples: The raising, without sufficient authorization, of troops within the Philippines for the service of a foreign nation against another nation. The public destruction of the flag or seal of a foreign state or the public manifestation of hostility to the head or ambassador of another state. Reason for the law: Such acts might disturb the friendly relation that we have with a foreign country, and they are penalized even if they constitute a mere imprudence. (Albert).

The intention of the offender is immaterial. If the unlawful or unauthorized acts of the accused provoke or give occasion for a war or expose Filipino citizens to reprisals, the crime is committed regardless of his intention. The law considers the effects produced by the acts of the accused.

Art. 119. Violation of neutrality. Elements: 1. That there is a war in which the Philippines is not involved; 2. That there is a regulation issued by competent authority for the purpose of enforcing neutrality; 6. That the offender violates such regulations.

Art. 120. Correspondence with hostile country. Elements: 1. That it is time of war in which the Philippines is involved; 2. That the offender makes correspondence with an enemy country or territory occupied by any troops. 3. That the correspondence is either(a) prohibited by the Government, or (b) carried on in ciphers or conventional signs, or © containing notice or information which might be useful to the enemy. Even if correspondence contains innocent maters, if the correspondence has been prohibited by the Government, it is punishable.

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If the correspondence with an enemy country or territory occupied by enemy troops has been prohibited by the Government, the crime is committed even if the correspondence or letter contains innocent matters, because of the possibility that some information useful to the enemy might be revealed unwittingly. (Reyes). Prohibition by the Government is not essential in paragraphs 2 and 3 of Art. 120. (Reyes). Art. 121. Flight to enemy’s country.

Elements: 1.That there is a war in which the Philippines is involved; 2. That the offender must be owing allegiance to the Government; 1. That the offender attempts to flee or go to enemy country; 2. That going to enemy country is prohibited by competent authority. An alien resident may be guilty of flight to enemy country. An alien resident in the country can be held liable under this article. The law does not say “not being a foreigner.” Hence, the allegiance contemplated in this article is either permanent or temporary allegiance. (Reyes). Mere attempt to flee or go to enemy country consummates the crime. It should be noted that mere attempt to flee or go to enemy country when prohibited by competent authority consummate the felony. (Reyes).

Art. 122. Piracy in general and mutiny in the high seas or in Philippine water. Two ways or modes of committing piracy: 1. By attacking or seizing a vessel on the high seas or in Philippine waters; 2. By seizing in the vessel while on the high seas of in Philippine waters the whole or part of its cargo, its equipment or personal belongings of its complement or passengers. Elements of piracy: 1. That a vessel is on the high seas or in Philippine waters; 2. That the offenders are not members of its complement or passengers of the vessels; 3. That the offenders (a) attack or seize that vessel, or (b) seize the whole or part of the cargo of said vessel, its equipment or personal belongings of its complement or passengers. Meaning of “high seas” It does not mean that the crime be committed beyond the three-mile limit (now 12 miles) of any state. It means waters on the sea coast which are without the boundaries of low water mark, although such waters may be in the jurisdictional limit of a foreign government. (Pp. vs. Lo-lo, et al., 43 Phil. 19). Where piracy may be filed? Piracy may be punished in the competent tribunal of any country where the offender may be found or into which he may be carried. The jurisdiction of piracy unlike all other crimes has no territorial limits. (Pp. vs. Lo-lo, supra). Note: Piracy does not apply to an enemy vessel in time of war as such will be considered an act of war. This rule does not apply to an enemy vessel which is non-belligerent. Case: The act of compelling complainants to go elsewhere other than their place of destination is part of the act of seizing complainant’s boat. (Pp. vs. Catantan, G.R. No. 118075, September 5, 1997). Mutiny – is the unlawful resistance to a superior officer, or the raising of commotions and disturbance on board a ship against the authority of its commander. (Bouvier’s Law Dictionary, Vol. 2, p. 2283).

When Piracy and Mutiny considered as Terrorism under RA 9372?

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Under RA 9372, otherwise known as Human Security Act of 2007, approved on March 6, 2007, a person who commits an act punishable as piracy and mutiny under Art. 122, thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand shall be guilty of the crime of terrorism, and shall suffer the penalty of forty (40) years of imprisonment, without the benefit of parole. Art. 123. Qualified Piracy. Piracy or mutiny is, therefore, qualified of if any of the following circumstances is present: (a) Whenever the offenders have seized the vessel by boarding or firing upon the same; (b) Whenever the pirates have abandoned their victims without the means of saving themselves, or © Whenever the crime is accompanied by murder, homicide, physical injuries, or rape. Note: Qualified mutiny applies only to pars. 2 & 3 of Art. 123. P.D. No. 532 (1974) covers on piracy “any person” P.D. 532, issued in 1974, amended Art. 122 of RPC by embracing in its coverage “all persons”, including a passenger or member of the complement of said vessel in Philippine waters.

RA 7659 widened the coverage of Art. 122 to include offenses committed in Philippine waters.

Before the amendment of Art. 122 by RA 7659, only piracy and mutiny on high seas was covered by RPC. Now, it includes offenses committed on Philippine waters.

R.A. No. 62 35 (1971) Aircraft Piracy or Hijacking - It is committed by any person who compels a change in the course or destination of an aircraft of Philippine registry, or seizes or usurps the control thereof, while it is in flight. Aircraft is in flight from the moment all its external doors are closed following embarkation until any of such doors are opened for disembarkation. - It is also committed by any person who compels an aircraft of foreign registry to land in Philippine territory or seizes or usurps the control thereof while it is within the said territory. Penalty:1. not less than 12 yrs. But not more than 20 yrs., or fine of not less than P 20,000, but not more than P 40,000.00. 2. 15 yrs. to death, or fine of not less than P 25,000.00 but not more than P 50,000.00, if committed under 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. Title Two CRIMES AGAINST THE FUNDAMENTAL LAWS OF THE STATE Chapter One Art. 124. Arbitrary Detention. Elements: 1. That the offender is a public officer or employee. 2. That he detains a person. 3. That the detention is without legal grounds.

When is there a detention? Detention is defined as the actual confinement of a person in an enclosure, or in any manner detaining and depriving him of his liberty. (Pp. vs. Flores, GR No. 116488, May 31, 2001).

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Even if the person detained could move freely in and out of their prison cell and could take their meals outside the prison, nevertheless, if they were under surveillance of the guards and they could not escape for fear of being apprehended again, there would still be an arbitrary detention. (Pp. vs. Camerino, CA-GR No. 14207-R, Dec. 14, 1956).

Arbitrary detention may be committed thru imprudence. Where the Chief of Police rearrested a woman who had been released by means of verbal order of the justice of the peace. The accused acted without malice, but he should have verified the order of release before proceeding to make the re-arrest. The crime is arbitrary detention through simple imprudence punished under Art. 365 of RPC. (Pp. vs. Misa, CA 36 OG 3496). Art. 125. Delay in the delivery of detained person to the proper judicial authorities. Elements: 1. That the offender is a public officer or employee. 2. That he has detained a person for some legal ground. 3. That he fails to deliver such person to the proper judicial authorities within: (a) 12 hours, for crimes or offenses punishable by light penalties, or their equivalent; or (b) 18 hrs, for crimes or offenses punishable by correctional penalties; or (c) 36 hrs., for crimes or offenses punishable by afflictive penalty.

If the offender is a private person, the crime is illegal detention. A private individual who makes a lawful arrest must also comply with the requirements prescribed in Art. 125. If he fails to do so, he is liable for illegal detention (Art. 267 or 268), not arbitrary detention. (see Pp. vs. Sali, et al., CA 50 OG 5676). Art. 125 does not apply if the arrest is by virtue of a warrant of arrest. Art. 125 applies only when the arrest is made without a warrant of arrest. But the arrest must be lawful. “Delivery of arrested person to judicial authority”; construed. The delivery to the judicial authority of a person arrested without a warrant by a peace officer, does not consist in a physical delivery, but in making an accusation or charge or filing of an information against the person arrested with the corresponding court or judge, whereby the latter acquires jurisdiction to issue an order of release or of commitment of the prisoner, because the arresting officer can not transfer to the judge and the latter does not assume the physical custody of the person arrested. (Sayo vs. Chief of Police of Manila, 80 Phil. 859). “Proper Judicial Authorities.” “Proper Judicial Authorities”, as used in Art. 125 means the court of justice or judges of said courts vested with judicial power to order the temporary detention or confinement of a person charged with having committed a public offense, that is, the “Supreme Court and such inferior courts as may be established by law”. Fiscal of the City of Manila or any other city are not included because they cannot issue a warrant of arrest or of commitment for temporary confinement of a person surrendered to legalize the detention of the person arrest without warrant. (Sayo vs. Chief of Police, supra.) Fiscal not liable unless he ordered detention. If the City Fiscal does not file the information within the period prescribed by the law and the arresting officer continues holding the prisoner beyond the prescribed period, the fiscal will not be responsible for violation of Art. 125, because he is not the one who arrested and illegally detained the person arrested, unless he has ordered or induced the arresting officer to hold and not release the prisoner after the expiration of said period. ( Sayo, vs. Chief of Police of Manila, supra.) Thus, if no charge is filed by the fiscal in court within the period fixed in Art. 125, the arresting officer must release the detainee; otherwise, he will be guilty under Art. 125. Art. 126. Delaying release.

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Three acts are punishable under Art. 126. 1. By delaying the performance of a judicial or executive order for the release of a prisoner. 2. By unduly delaying the service of the notice of such order to said prisoner. 3. By unduly delaying the proceedings upon any petition for the liberation of such person. Elements: a. That the offender is a public officer or employee. b. That there is a judicial or executive order for the release of a prisoner or a detention prisoner, or that there is a proceeding upon a petition for the liberation of such person. c. That the offender without good reason delays (1) the service of the notice of such order to the prisoner, or (2) the performance of such judicial or executive order for the release of the prisoner, or (3) the proceedings upon a petition for the release of such person.

Art. 127. Expulsion. Two acts are punishable under Art. 127: 1. By expelling a person from the Philippines. 2. By compelling a person to change is residence. Elements: a. That the offender is a public officer or employee. b. That he expels any person from the Philippines, or compels a person to change his residence. c. That the offender is not authorized to do so by law. Who are authorized by law? 1. The President can expel undesirable alien pursuant to the procedure in Revised Administrative Code. 2. Courts by final judgment can order a person to change his residence. This is illustrated in ejectment proceedings, expropriation proceedings and in the penalty of destierro. Hence, the Mayor and the Chief of Police of Manila cannot force the prostitutes residing in that City to go and live in Davao against their will, there being no law that authorizes them to do so. These women, their being in a sense lepers of society, are nevertheless not chattels, but Philippine citizens, protected by the same constitutional guarantees as are other citizens. ( Villavicencio, et al., vs. Lukban, et al., 39 Phil. 778).

Section Two – Violation of Domicile

Art 128. Violation of Domicile. Acts punishable under Art. 128. 1. By entering any dwelling against the will of the owner thereof; or 2. By searching papers or other effects found therein without the previous consent of such owner; or 3. By refusing to leave the premises, after having surreptitiously entered said dwelling and after having been required to leave the same.

Elements common to the three acts: a. That the offender is a public officer or employee. b. That he is not authorized by judicial order to enter the dwelling and/or to make a search therein for papers or other effects.

The offender must be a public officer.

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If the offender who enters the dwelling against the will of the owner thereof is a private individual, the crime committees is trespass to dwelling. (Art. 280).

Search with previous consent of such owner, legal. When the detectives secured the previous consent of the owner of the house to the search without a warrant, they are not liable. (Pp. vs. Sane, CA, 40 OG Supp. 5, 113). When one voluntarily submits to a search or consents to have it made upon his person or premises he is precluded from later complaining thereof. The right to be secured from unreasonable search may, like every right, be waived and such waiver may be made either expressly or impliedly. (Pp. vs. Malasugui, 63 Phil. 221). Silence of the owner of the dwelling before and during the search, without warrant, by public officer, may show implied waiver. (Reyes).

Art. 129. Search warrants maliciously obtained, and abuse in the service of those legally obtained.

Acts punishable in this article. 1. By procuring a search warrant without just cause. 2. By exceeding his authority or by using unnecessary severity in executing a search warrant legally produced.

Elements of procuring a search warrant without just cause: a. That the offender is a public officer or employee. b. That he procures a search warrant c.

That there is no just cause.

Test of lack of just cause.

The true test of lack of just cause is whether the affidavit filed in support of the application for search warrant has been drawn in such a manner that perjury could be charged thereon and affiant be held liable for damage caused. The oath required must refer to the truth of the facts within the personal knowledge of the applicant for search warrant or his witnesses, not of the facts “reported to me by a person whom I consider to be reliable. (Alvarez. vs. Court, et al., 64 Phil. 33). Effects of the evidence seized by virtue of search warrant illegally procured. When papers or effects obtained during unreasonable search and seizure, or under a search warrant issued without probable cause and not in accordance with the procedure prescribed, or in violation of the privacy of communication and correspondence, the papers or effects thus obtained are not admissible if presented as evidence. (See, Alih vs. Castro, 151 SCRA 279 & Stonehill vs. Diokno, 20 SCRA 383). Elements of exceeding authority or using unnecessary severity in executing a search warrant legally procured: a. The offender is a public officer or employee. b. That he has legally procured a search warrant. c.

That he exceeds his authority or uses unnecessary severity in executing the same.

Example of exceeding authority in executing search warrant. If the public officer, in executing a search warrant for opium, seized books, personal letters, and other property having a remote or no connection with opium, even if he believed or suspected that they had some relation with opium, such public officer may be held liable under Art. 129. (Uy vs. Kheytin, et al., vs. Villareal, et al., 42 Phil. 886). But the possession of contraband articles, like firearms without license, is a flagrant violation of the law and the contraband can be seized without a writ. (Mangoncia vs. Palacio, 80 Phil. 770).

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Art. 130. Searching domicile without witnesses. Elements: 1. That the officer is a public employee. 2. That he is armed with search warrant legally procured. 3. The he searches the domicile, papers or other belongings of any person. 4. That the owner, or any member of his family, or two witnesses residing in the same locality are not present. Note: Art. 130 does not apply to searches of vehicles or other means of transportation, because the searches are not made in the dwelling. Section Three. – Prohibition, interruption, and dissolution of peaceful meetings.

Art. 131. Prohibition, interruption, and dissolution of peaceful meetings. Acts punishable in this article: 1. By prohibiting or by interrupting, without legal ground, the holding of a peaceful meeting, or by dissolving the same. 2. By hindering any person from joining any lawful association or from attending any of its meetings. 3. By prohibiting or hindering any person from addressing, either alone or together . Elements common to the three acts: 1. That the offender is a public officer or employee. 2. That he performs any of the acts mentioned above. A private individual cannot commit this offense. Only public officer or employee can commit this crime. If the offender is a private individual, the crime is disturbance of public order under Art. 153. Right to peaceful meeting not absolute. Right to peacefully assemble is not absolute for it may be regulated in order that it may not be injurious to the equal enjoyment of others having equal rights, nor injurious to the rights of the community or society, under the police power of the state. Thus, action taken by the respondent not to allow the use of the kiosk, part of the public plaza, by the members of the Watch Tower Bible and tract Society, whose tenets and principles are derogatory to those professed by the Catholics, is not unconstitutional as an abridgment of the freedom of speech, assembly, and worship, considering that in view of the proximity to the kiosk to the Catholic church, such meeting, if allowed, might result in the happening of untoward incidents and disturbance of peace and order. (Ignacio, et al., Ela, 99 Phil. 347). The offender must be a stranger, not participant, in the peaceful meeting. Thus, where during the meeting of municipal officials called by the mayor, the chief of police kept on talking although he had been asked by the mayor to sit down, and there was a heated exchange pf words among the mayor, a councilor and the chief of police, and in the ensuing confusion, the crowd watching the proceeding dispersed and the meeting was eventually dissolved, the chief of police is not guilty under Art. 131, but under Art. 287, for unjust vexation. (Pp. vs. Calera and Cantela, CA 45 OG 2576).

Interrupting and dissolving the meeting of municipal council by a public officer is a crime against a legislative body, not punished under Art. 131. The disturbance or interruption and the consequent dissolution of the meeting of the municipal council is violation of Sec. 1 of Act No. 1755, which is similar to Arts. 143 and 144 of the Revised Penal Code. (Pp. vs. Alipit, et al., 44 Phil. 910).

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Read: Evangelista vs. Earnshaw, 57 Phil. 225, Navarro vs. Villegas, 31 SCRA 371, Gallego vs. People, 8 SCRA 813, Primicias vs. Fugoso, 80 Phil. 71, Pp. vs. Yalung, CA 40 OG Supp, 11, 83.

Section four. – Crimes against religious worhip. Art. 132. Interruption of Religious worship. Elements: 1. That the offender is a public officer or employee. 2. That religious ceremonies or manifestations of any religion are about to take place or are going on. 3. That the offender prevents or disturbs the same.

Circumstances qualifying the offense. If the crime is committed with violence or threats. Preventing a religious ceremony that is to take place. In a barrio chapel, a priest was ready to say mass and a number of barrio folks were to hear the mass. The barrio lieutenant made an actual threat on the life of the priest should the latter persist in his intention to say the mass. As a result the mass was not celebrated. Held: The barrio lieutenant was guilty of violation of Art. 132. (See Pp. vs. Mejica, CA Gr No. 12980-R, Dec. 29, 1955). See also Pp. vs. Reyes, et al., CA-GR No. 13633-R, supra and US vs. Balcorta, 25 Phil. 279.

Art. 133. Offending the religious feelings. Elements: 1. That the acts complained of were performed (1) in a place devoted to religious worship, or (2) during the celebration of any religious ceremony. 2. That the acts must be notoriously offensive to the feelings of the faithful. - In a “place devoted to religious worship” it is not necessary that there is a religious ceremony going on when the offender performs the acts notoriously offensive to the feelings of the faithful; while “Celebration of any religious ceremony” need not be in a place devoted to religious worship. Ex. Of religious ceremony: Procession and special prayers for burying dead persons. (Albert).

Not religious ceremony. A religious rally in the public plaza is not a religious ceremony, even if the minister was then preaching (“that Jesus Christ was not God but only a man”). The rally was attended by persons who are not members of the sect. (Pp. vs. Mandoriao, Jr., CA 51 OG 4619). “Acts notoriously offensive to the feelings of the faithful.” The acts must be directed against religious practice or dogma or ritual for the purpose of ridicule, as mocking or scoffing at or attempting to damage an object of religious veneration. ( Viada; Pp. vs. Baes, 68 Phil. 203). Examples: 1. Throwing of stones at the minister of the Iglesia ni Cristo who was preaching his beliefs before a crowd notoriously offended the feelings of the minister and the members who witnessed the incident. (Pp. vs. Migallos, CA GR No. 13619, Aug. 5, 1955).

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2. Remarks that those who believed that Christ is God are anti-Christ, that all the members of the Catholic Church are marked by the demon, and the Pope is the commander of Satan are notoriously offensive to the feelings of the faithful. (Pp. vs. Mandorio).

To be liable there must be deliberate intent to hurt the feelings of the faithful. While the Catholic elements were having their procession and passing near the meeting place, the accused placed a picture of the pope on the wall of the house of one Vivencia Balaquit and shouted words offensive to the religious feelings of the catholic faithful. Held: In order to render defendant-appellant liable for the particular crime charged, it is indispensable that the said utterances were made when the defendant-appellant was actually in the place devoted to worship or in a place where the religious ceremony was being celebrated. In this case, it was the procession that approached the place where he was preaching or delivering a sermon on matters offensive to the feelings of the faithful Catholics. There is no evidence that defendant-appellant had purposely deviated from the topic of his preaching or sermon or that of the procession had not approached his meeting place, he would not have uttered the words herein complained of, to evidence his intention deliberately to hurt the feelings of those actually engaged in the celebration of a religious procession or ceremony. (Pp. vs. Gesulga, CA 57 OG 8494-8496). Not offensive to Religious feeling. The construction of a fence in front of the chapel, even though irritating and vexatious to those present in the “pabasa”, is not notoriously offensive to the feelings of the faithful. The crime committed is only unjust vexation defined and penalized in art. 287. (Pp. vs. Reyes). While the congregation of the Assembly of God was having its afternoon services in its chapel, the accused who was allegedly drunk entered with uplifted hands and attempted to grab the song leader who ran away from him. The other members of the sect also ran out of the church and the religious services were discontinued. Held: the accused is guilty of unjust vexation under Art. 287 RPC. (Pp. vs. Nanoy, CA 69 OG 8043).

Chapter One REBELLION, COUP D’ ETAT, SEDITION AND DISLOYALTY Rebellion or insurrection (Art. 134).

Elements: 1. That there be (a) public uprising, and (b) taking arms against the Government. 2. That the purpose of the uprising or movement is eithera. to remove from the allegiance to said government or its laws: (1) the territory of the Philippines or any part thereof; or (2) any body of land, naval or other armed forces; or (3) to deprive the Chief Executive or Congress, wholly or partially, of any of their powers or prerogatives. Rebellion and insurrection distinguished. Rebellion is used where the object of the movement is completely to overthrow and supersede the existing government; while insurrection is employed in reference to a movement which seek merely to effect some change of minor importance, or to prevent the exercise of governmental authority with respect to particular matters or subject.

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Nature of the crime of rebellion. The crime of rebellion or of inciting it is by nature a crime of masses, of a multitude. It is a vast movement of men and complete net of intrigues and plots. (Pp. vs. Almazan, CA, 37 OG 1932). The word rebellion evokes, not only a challenge to the constituted authorities, but also civil war on a bigger or lesser scale.(Pp. vs. Hernandez, 99 Phil. 515). Actual clash of arms with the forces of the Government, not necessary to convict the accused who is in conspiracy with others actually taking arms against the government. Thus, the mere fact that that the accused knowingly identified himself with Huk organization that was openly fighting to overthrow the government was enough to make him guilty of the crime of rebellion. (Pp. vs. Cube, CA, 46 OG 4412). There must conspiracy that must exist to convict a person It is not necessary that the purpose of the rebellion be accomplished. The crime of rebellion is complete the very moment a group of rebels rise publicly and take arms against the Government, for the purpose of overthrowing the same by force. It is not necessary, to consummate rebellion, that the rebels succeed in overthrowing the Government. Rising publicly and taking arms against the Government is the normative element of the offense, while the intent or purpose to overthrow the government is the subjective element. (Guevara). Giving aid and comfort is not criminal in rebellion. Unlike the crime of treason, the act of giving comfort or moral aid is not criminal incase of rebellion or insurrection, where the RPC expressly declares that there must be a public uprising and the taking up of arms. Note: The accused was not a member of the Huk movement. He did not take up arms against the government. The only acts he was shown to perform were the sending or furnishing of cigarettes and food supplies to the Huk leader; the changing of dollars into pesos for a top-level communist and helping of huks in opening accounts with the bank of which he was an official. (Carino vs. People., 7 SCRA 900, supra.) Rebellion or insurrection is considered Terrorism under Republic Act No. 9372 (Human Security Act of 2007, approved on March 6, 2007). Rebellion or insurrection is considered terrorism if 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. The penalty is forty (40) years of imprisonment, without the benefit of parole. Penalties in terrorism: 1. Those who conspired to commit crime of terrorism – 40 yrs. 2. Accomplice – 17 yrs, 4 months and 1 day – 20 yrs. 3. Accessories – 10 yrs. and 1 day – 12 yrs. Terrorist Organization or Association of Persons. Any organization, association, or group or person organized for the purpose of engaging in terrorism, or which although not organized for that purpose, actually uses acts mentioned in RA 9372. Art. 143-A. Coup d’etat.

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Elements: 1. That the offender is a person or persons belonging to the military or police or holding any public office or employment. 2. That it is committed by means of a swift attack accompanied by violence, intimidation, threat, strategy or stealth. 3. That the attack is directed against the duly constituted authorities of the Republic of the Philippines, or any military camp or installation, communication networks, public utilities or other facilities needed for the exercise and continued possession of power. Coup d’ etat may be committed with or without civilian participation. Art. 137. Disloyalty of public officers or employees. Acts punished: 1. By failing to resist a rebellion by all means in their power; or 2. By continuing to discharge the duties of their offices under the control of the rebel; or 3. By accepting appointment to office under them. To be liable under this article, there must be rebellion to be resisted or, at least, the place is under the control of the rebels. (U.S. vs Ravidas, 4 Phil. 273). Art. 138. Inciting to rebellion or insurrection. Elements: 1. That the offender does not take arms or is not in open hostility against the government. 2. That he incites others to the execution of any acts of rebellion; 3. That the inciting is done by means of speeches, proclamations, writings, emblems, banners or other representation tending to the same end. Inciting to rebellion distinguished from proposal to commit rebellion. 1. In both crimes, the offender induces another to commit rebellion. 2. In proposal, the person who proposes has decided to commit rebellion; in inciting to rebellion, it is not required that the offender has decided to commit rebellion. 3. In proposal, the person who proposes the execution of the crime uses secret means; in inciting to rebellion, the act of inciting is done publicly. Art. 139. Sedition – How committed. Elements: 1. That the offenders rise (1) publicly, and (2) tumultuously;

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2. That they employ force, intimidation, or other means outside of legal methods; 3. That the offenders employ any of those means to attain any of the following objectives: (a) To prevent the promulgation or execution of any law or the holding of any popular election; (b) To prevent the National Government, or any provincial or municipal government, or any public officer thereof from freely exercising its or his functions, or prevent the execution of any administrative order; (c) To inflict any act or hate or revenge upon the person or property of any public officer or employee; (d) To commit, for any political or social end, any act of hate o revenge against private persons or any social class; and (e) To despoil, for any political or social end, any person, municipality or province, or the National Government of all its property or any part thereof. Sedition is distinguished from rebellion by the purpose or object of the uprising. Case: Accused contended that the crime committed by him was only sedition, because the uprising took place only in a municipality, which was a small territory. Held: What distinguished sedition from rebellion is not the extent of the territory covered by the uprising but rather the object at which the uprising aims. The purpose of the Sakdal uprising was to obtain the independence of certain portions of the territory from the government and withdrawing it from the authority of the central government. It is not one of the object of sedition enumerated in Art. 139. (See League vs. People, 73 Phil. 155). Distinctions between sedition and rebellion. In both rebellion and sedition, there must be a public uprising. While in rebellion there must be taking up of arms against the government; in sedition, it is sufficient that the uprising is tumultuous. While in sedition, the purpose of the offender may be political or social, in rebellion, it is always political. If the purpose of the uprising is not exactly against the Government and not for the purpose of doing things defined in Art. 134 of the revised Penal Code, but merely to attain by force, intimidation, or by other means outside the legal methods, one object, to wit, to inflict an act of hate or revenge upon the person or property of a public official, like the town mayor, it is sedition. Facts: ON the eve of election, Congressman Umali instructed Pasumbat to contact Abeng, the Huk commander so that incumbent Mayor Punzalan will be killed feeling that the latter will win in the election and his death is the only way to win the election. Pasumbat reported to Umali that he contacted Abeng and agreed and even outlined the manner of attack. After sometimes, Abeng and his troops numbering about 50, armed with garands and carbines arrived. Congressman Umali, holding a revolver, was seen with the group of Torio and about 30 armed men. Then shots were heard. Afterwards Umali and his companions left. Held: The crime committed was sedition and not rebellion. The purpose of the uprising was not against the government. The object was to attain by means of force, intimidation, etc., on object to wit, to inflict the act of hate or revenge upon the person or property of a public official, Punzalan who was then the town mayor of Tiaong. (Pp. vs. Umali, 96 Phil. 185).

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Preventing public officers from freely exercising their functions. Facts: A warrant of arrest was to be executed against Datu Tahil by a group of soldier. The commander did not receive any reply upon his intimation, and instead a group of armed moros appeared at the left flank of the soldiers in the act of attacking, but were repelled. It was again intimated that Datu Tahil surrender, but again no answer was received, and then a large group of Moros appeared in an aggressive manner, but likewise repelled. Held: Having resisted the judicial warrant of arrest by means of force and thereby prevented the officers, charged with the duty of arresting them, from performing it, Datu Tahil and his men committed the crime of sedition. (Pp. vs. Tahil and Tarson, 52 Phil. 318). Inflicting an act of hate or revenge upon public officers (par. 3 of Art. 139). Facts: The group of constabulary soldier escaped from the barracks with their guns and made an attack upon the police force who had an earlier encounter with the constabulary soldiers resulting in the death of a private soldier. They fired in the direction of Calles Real and Cabildo, killing a policeman and a civilian. Held: the crime committed is sedition. 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. (Pp. vs, Cabrera, et al., 53 Phil. 64). Public uprising and an object of sedition must concur. 1. No public uprising – no sedition. Facts: While the Municipal council was in session, some 500 residents of the towns assembled near the municipal building, some of them crowded into the council chamber and demanded the dismissal from the office the municipal treasurer, the secretary and the chief of police, and the substitution on their places new officials. The persons who took part were wholly unarmed, except that a few carried canes. The crowd was fairly orderly and well behaved. The council acceded to their wishes and drew up a formal document, which was signed by the councilors and by several leaders of the crowd. Held: There was no sedition, because there was no public and tumultuous uprising. Are common crimes absorbed in sedition? In Pp. vs. Umali, the crimes committed were sedition, multiple murder, arson, frustrated murder and physical injuries. In Pp. vs. Cabrera, the constabulary men who murdered six policemen and two private citizens and seriously wounded three civilians were found guilty of the separate crimes of sedition in one case, and multiple murder with grave injuries in the other case. Art. 140. Penalty for sedition.-just read Art. 141. Conspiracy to commit sedition.-just read Art. 142. Inciting to sedition. Different acts of inciting to sedition.

1. Inciting others to the accomplishment of any of the acts which constitutes sedition by means of speeches, proclamations, writings, emblems, etc. 2. Uttering seditious words or speeches which tend to disturb the public peace. 3. Writing, publishing, or circulating scurrilous libels against the Government or any of the duly constituted authorities thereof, which tend to disturb public peace. Elements:

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1. That the offender does not take part in the crime of sedition. 2. that he incites others to the accomplishment of any of the acts which constitute sedition. 3. That the inciting is done by means of speeches, proclamations, writings, emblems, cartoons, banners, or other representations tending to the same end. Uttering seditious words or speeches. Facts: The accused, municipal secretary and another person, happened to meet in the municipal building of the town of Pilar, Sorsogon, and there they became engaged in a discussion regarding the administration of Governor General Wood, which resulted in the accused shouting number of times: “The Filipinos, like myself, must use bolos for cutting off Wood’s head for having recommended a bad thing to the Filipinos, for he has killed our independence.” Held: The accused uttered seditious words. His conviction must be sustained. (Pp. vs. Perez, 45 Phil. 599). See also Pp. vs. Nabong, 57 Phil. 455). Uttering seditious words or speeches and writing, publishing or circulating scurrilous libels are punishable, when – 1. They tend to disturb or obstruct any lawful officer in executing the functions of his office; or 2. They tend to instigate others to cabal and meet together for unlawful purposes; or 3. They suggest or incite rebellious conspiracies or riots; or 4. They lead or tend to stir up the people against the lawful authorities or disturb the peace of the community, the safety and order of the Government. Thus, a theatrical play or drama where the words uttered or speeches delivered are seditious may be punished under Art. 142. (See U.S. vs. Tolention, 5 Phil. 682). - Disturbance or disorder, not necessary in inciting to sedition. (See Pp. vs Nabong, supra.). - Proposal to throw hand grenades in a public place, intended to cause commotion and disturbance, as an act of revenge against the police force, where no harm could be done to any person, which was accomplished as planned is inciting to sedition and illegal possession of hand grenades. (Pp. vs. Quimpo, CA 46 OG 3784).

Chapter Two CRIMES AGAINST POPULAR REPRESENTATION Section One – Crimes against legislative bodies and similar bodies.

Art. 143. Acts tending to prevent the meeting of the Assembly and similar bodies. Elements: 1. That 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. 2. That the offender who may be any person prevents such meeting by force or fraud. Any person, even the chief of police or the Municipal President may be guilty Under Art. 243, if he prevents a meeting when the defect of the meeting is not manifest and requires an investigation before its existence can be determined. Facts: The election of the Municipal President was contested on the ground of minority. He yielded the chair to the vice-president. The meeting of the municipal council presided over by the vice president was stopped by the chief of police and the municipal president by arresting the vice president and threatening the councilors with arrest if they would continue holding the meeting. The councilor then dispersed, leaving the premises. Held: any stranger, even if he be the municipal president himself or chief of 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 members of the council, which was not apparent, but required an investigation before it could be determined. (Pp. vs. Alipit, et al., 44 Phil. 910).

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Art. 144. Disturbance of proceedings. Elements: 1. That there be a meeting of the National Assembly or any of its committees, constitutional commissions or committees or division thereof, or of any provincial board or city or municipal council or board. 2. That the offender does any of the following acts: (a) He disturbs any of such meetings. (b) He behaves while in the presence of any such bodies in such a manner as to interrupt its proceedings or to impair the respect due it. - It must be a meeting of a legislative body or of provincial board or city or municipal council or board which is disturbed. (See Pp. vs. Calera, CA 45 OG 2576).

Art. 145. Violation of Parliamentary immunity. Acts punished under Art. 145. 1) By using force, intimidation, threats, or frauds to prevent any member of the National Assembly from (1) attending the meetings of the assembly or any of its committees or subcommittees, constitutional commission or committees or division thereof, or from (2) expressing his opinions, or (3) casting his votes. Elements: 1. The offender uses force, intimidation, threats or fraud. 2. That the purpose of the offender is to prevent any member of the National Assembly from(a) attending the meeting of the Assembly or of any of its committees or constitutional commission, etc. (b) expressing his opinions; or © casting his vote. Note: The offender here is any person. 2) By arresting or searching any member thereof while the National Assembly is in regular or special session, except in case such member has committed a crime punishable under the Code by a penalty higher than prision mayor.

Elements: 1. That the offender is a public officer or employee; 2. That he arrests or searches any member of the National Assembly; 3. That the assembly, at the time of the arrest or search, is in regular or special session; 4. That the member arrested or searched has not committed a crime punishable under the Code by a penalty higher than prision mayor.

Chapter Three ILLEGAL ASSEMBLIES AND ASSOCIATIONS

Art. 146. Illegal Assemblies. Illegal assemblies are: 1. Any meeting attended by armed persons for the purpose of committing any of the crimes punishable under the Code. Requisites: a) That there is a meeting, a gathering or group of persons, whether in a fixed place or moving; b) That the meeting is attended by armed persons; © That the purpose of the meeting is to commit any of the crimes punishable under the Code.

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3. Any meeting in which the audience, whether armed or not, is incited to the commission of the crime of treason, rebellion or insurrection, sedition, or assault upon a person in authority or his agents. Requisites: a) That there is a meeting, a gathering or group of persons, whether in a fixed place or moving. b) That the audience, whether armed or not, is incited to the commission of the crime of treason, rebellion or insurrection, sedition or direct assault. Art. 147. Illegal associations. What are illegal associations? 1. Associations totally or partially organized for the purpose of committing any of the crime punishable under the Code. 2. Associations totally or partially organized for some purpose contrary to public morals. Persons liable? 1. Founders, directors and president of the association. 2. Mere members of the association. Distinctions between illegal association and illegal assembly. a) In illegal assembly, it is necessary that there is an actual meeting or assembly of armed persons for the purpose of committing any of the crimes punished under the Code, or of individuals who, although not armed, are incited to the commission of treason, rebellion, sedition, or assault upon a person in authority or his agent; in illegal association, it is not necessary that there be an actual meeting. b) In illegal assembly, it is the meeting and attendance at such meeting that are punished; in illegal association, it is the act of forming or organizing and membership in the association that are punished. c) In illegal assembly, the persons liable are: (1) organizers or leaders of the meeting, and (2) persons present at the meeting. In illegal association, the persons liable are: (1) the founders, directors and president, and (2) members.

Chapter Four. Assaults, etc.

Art. 148. Direct assaults. Two ways of committing the crime of direct assaults: 1. Without public uprising, by employing force or intimidation for the attainment of any of the purposes enumerated in defining the crime of rebellion and sedition. 2. Without public uprising, by attacking, by employing force, or by seriously intimidating or seriously resisting any person in authority or any of his agents, while engaged in the performance of official duties, or on the occasion of such performance. Elements of the first form of assault: 1. That the offender employs force or intimidation. 2. 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 crime of sedition. 3. That there is no public uprising. Examples of first form: Facts: The chief of police together with other policemen compelled the Municipal president by force to go to the municipal building and detained him there for hours because their salaries had been in arrears for sometimes. He was released when the relatives of the president sent him money to pay for the salaries. Held: That these facts constitute the commission of the crime charged in the complaint. There is force in this case. But there is no public uprising. When the accused, compelled by force the municipal president to go with them to the municipal building and detained him there, they inflicted an act of hate or revenge upon a public officer. This is one of the objects of sedition which the accused aimed to attain. (U.S. vs. Dirain, 4 Phil. 541).

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Direct assault to prevent a popular election. The act of the accused in preventing by force the holding of a popular election in certain precincts, without public uprising, is direct assault of the first form. (See Clarin vs. Justice of the Peace, GR No. L-7661, April 5, 1955). Elements of the second form of direct assault. 1. That the offender (a) makes an attack, (b) employs force, (c) makes a serious intimidation, or (d) makes a serious resistance. 2. That the person assaulted is a person in authority or his agent. 3. That at the time of the assault the person in authority or his agent (a) is engaged in the actual performance of official duties, or that he is assaulted, (b) by reason of the past performance of official duties. 4. That the offender knows that the one he is assaulting is a person in authority or agent in the exercise of his duties. 5. That there is no public uprising. Degree of force necessary in direct assault. If the offended party is only an agent of a person in authority, the force employed must be of serious character as to indicate determination to defy the law and its representative at all hazards. (Reyes) If the offended party is a person in authority the force employed need not be serious. (See U.S. vs. Gumban, 39 Phil. 76). Facts: The accused, while being placed under arrest by three policemen, hit one of them in the breast with his fist. Held: The words in Art 148 relating to the employment of force appear to have reference to something more dangerous to civil society than a simple blow with the hands at the moment a party is taken into custody. No direct assault. ( U.S. vs. Tabiana). Where a police officer tried to arrest the accused for violation of the chicken dung ordinance, and the accused punched the police officer on his face, particularly on his lip, and then grappled with a police officer, there was direct assault. (Rivera vs. People, G.R. No. 138553, June 30, 2005). Slapping the face of the municipal president while in the performance of his duty is direct assault, although the force employed is not serious. (U.S. vs. Gumban, supra). Intimidation or resistance must be serious whether the offended party is an agent only or he is a person in authority. The law, with regard to intimidation or resistance as other constitutive element of assault, expressly requires that they be serious in character. (U.S. vs. Gumban). Example of serious resistance. In the course of the quarrel between A and B, the latter called, “Police! Police!, and the policeman who went to the scene saw B getting up. When the policeman was about to arrest A, the latter said: “Don’t come near, because I will take your life.” As the policeman was approaching him, A struck him with a knife but was not hit. (U.S. vs. Samonte, 16 Phil. 516). Example of serious intimidation. Pointing a gun at a military police captain who is in the performance of his duty constitutes assault upon an agent of person in authority, because there is a serious intimidation. (Pp. vs. Diama, CA, 45 OG 838). It would seem threatening to give a fist blow, made to a policeman who was arresting the accused would not constitute direct assault by intimidation, because the intimidation is not serious. Intimidation must produce its effect immediately, for if threats be of some future evil, the act would not be direct assault. (Albert). - Knowledge of the accused that the victim is a person in authority or his agent is essential. (Pp. vs. Villasenor, 35 SCRA 460). - “On occasion of such performance” of official duty signifies “by reason” or “because” of the past performance of official duty, even if at the time of the assault no official duty was being discharged. (Justo vs. CA, 99 Phil. 453).

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-U.S. vs Garcia, 20 Phil. 358, where a judge was attacked by a person who earlier was order by the judge to step out of the court for uttering contemptuous remarks against the court although the judge was not in the actual performance of his duty, but he was assaulted by reason of the performance of official duty. Art. 149. Indirect Assault. Elements: 1. That a person in authority or his agent is the victim of any of the forms of direct assault defined in Art. 148. 2. That a person comes to the aid of such authority or his agent. 3. That the offender makes use of force or intimidation upon such a person coming to the aid of the authority or his agent. - Indirect assault is committed only when a direct assault is also committed. (reyes). - The offended party in indirect assault may be a private individual. - If a private individual was assaulted while aiding a policeman in arresting the accused is not indirect assault as the policeman is not a victim of direct assault.

Art. 150. Disobedience to summons issued by the National Assembly, etc. Art.151, Resistance and disobedience to a person in authority or the agents of such person.

Elements of resistance and serious disobedience: 1. That a person in authority or his agent is engaged in the performance of official duty or gives lawful order to the offender. 2. That the offender resists or seriously disobeys such person in authority or his agent. 3. That the act of the offender is included in the provisions of Arts. 148, 149 and 150). Examples: - U.S. vs. Tabiana, 37 Phil. 515 –where the accused struck a policeman on the breast with a fist when the latter was arresting the said accused. - Pp. vs. Baesa, CA 55 OG 10295, where the accused in the heat of the argument and under the impulse of obfuscation pulled the hand of a barrio lieutenant, causing him to fall to the ground, is guilty of resistance and serious disobedience under Art. 151, not direct assault because the employment of force is not deliberate. -Pp. vs. Veloso, 48 Phil. 182, where 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, it was held that the was guilty of resistance and serious disobedience because the employment of force is not deliberate. Simple disobedience. (par. 2). Pp. vs Bacani, CA 40 OG 981, where the court issued a writ of injunction against the accused not to enter the land in dispute, but he disobeyed despite being told by the sheriff not to enter the land claiming that he was the owner of the land, and advance towards the sheriff, but was intercepted by the policeman, is guilty of simple disobedience.

Art. 157. Evasion in the service of sentence. Elements: 1. That the offender is a convict by final judgment. 2. That he is serving his sentence which consists in deprivation of liberty. 3. That he evades the service of his sentence by escaping during the term of his sentence. The sentence must be by reason of final judgment. Thus, if the accused while the sentence of conviction was under appeal, he is not liable under this article because the judgment has not yet become final even if his appeal was later dismissed. (Curiano vs. CFI, GR L-8104, April 15, 1955). The term “escape”

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Mere loitering in the premises of the court house, without a guard or escort is not “escape” in contemplation of the law as the circumstances belie escape, or intention of the accused to escape as they certainly would not have loitered in the premises of the courthouse, just near the city jail, where they could easily be spotted. (Pp. vs. Lauron, et al., CA 60 OG 4983). Art. 158. Evasion of the service of sentence on the occasion of disorders, conflagrations, earthquakes , or other calamitites. Elements: 1. That the offender is a convict by final judgment, who is confined in a penal institution. 2. That there is disorder, resulting from: a. conflagration, b. earthquake, c. explosion, d. similar catastrophe, or e. mutiny in which he has not participated. 3. That the offender evades the service of his sentence by leaving the penal institution where he is confined, on occasion of such disorder or during the mutiny. 4. That the offender fails to give himself up to the authorities within 48 hours following the issuance of a proclamation by the Chief Executive announcing the passing away of such calamity.

The rules. - What is punished by this article is not the leaving of the penal institution, but the failure of the convict to give himself up to the authorities within 48 hours after the proclamation announcing the passing away of the calamity. - The penalty is that the accused shall suffer an increase of 1/5 of the time still remaining to be served under the original sentence, not to exceed six (6) months. - If the accused gives himself up to the authorities within 48 hours, he is entitled to a deduction of 1/5 of his sentence. Mutiny, meaning. Mutiny implies an organized unlawful resistance to a superior officer; a sedition; a revolt. ( Pp. vs. Padilla, CA 46 OG 2151). Art. 159. Other cases of evasion of service of sentence. (Violation of conditional pardon) Elements of violation of conditional pardon. 1. That the offender was a convict. 2. That he was granted a conditional pardon by the Chief Executive. 3. That he violated any of the conditions of such pardon. Nature of conditional pardon – it 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 condition and accept all its consequences, not as he chooses, but according to its term. (Pp. vs. Pontillas, 65 Phil. 659). Penalties: a.

Prision correccional in its minimum period – if the penalty remitted does not exceed 6 years.

b.

The unexpired portion of his original sentence – if the penalty remitted is higher than 6 years.

Illustration: The accused was sentenced to a penalty of 6 years and 1day of prision mayor. He served 2 years, 5 months and 22 days of the sentence and was granted conditional pardon. The term remitted by the pardon is 3 years, 6 months and 8 days. The penalty is prision correccional in its minimum period. ( Pp. vs. Sanares, 62 Phil. 825).

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- Offender must be found guilty of the subsequent offense before he can be prosecuted under Art. 159. (Torres vs. Gonzales, 152 SCRA 272). - Violation of conditional pardon is a distinct offense. (Pp. vs. Martin, 68 Phil. 122). Thus, violation of conditional pardon is committed in the place where the subsequent offense is perpetrated. - The time during which the convict was out of prison cannot be deducted from the unexecuted portion of his sentence. (Pp. vs. Tapel, 64 Phil. 112). Art. 160. Commission of another crime during the service of penalty imposed for another previous offense. (Quasi-recidivism). 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 same felony.

Elements: 1. That the offender was already convicted by final judgment of one offense. 2. That he committed a new felony before beginning to serve such sentence or while serving the same. - The second crime committed must be a felony, not punished by special law because the article speaks of “the maximum period” of the penalty prescribed by law for the new felony”. Penalty prescribed by special law has no three periods like the three periods of a divisible penalty prescribed in RPC. - But the first crime for which the offender is serving need not be a felony. (Pp. vs. Alicia, 95 SCRA 227). - The new offense need not be of different character from that of the former offense. Hence, even if the new offense is murder and he is serving sentence for homicide, this article applies. (Pp. vs. Yabut, 58 Ohil. 499). - Quasi-recidivism cannot be offset by ordinary mitigating circumstances 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. (See Pp. vs. Parete, 58 OG 8628). - A quasi-recidivist may be pardoned at the age of 70 years and has already served out his original sentence, or when he shall complete it after reaching such age, unless by reason of his conduct or other circumstances, he shall not be worthy of such clemency.

Title Four CRIMES AGAINST PUBLIC INTEREST. (Art. 161-174)

Art. 171. Falsification by pubic officer, employee or notary or ecclesiastical minister. Elements: 1. That the offender is a public officer, employee, or notary public. 2. That he takes advantage of his official position. 3. That he falsifies a document by committing any of the following acts: a. Counterfeiting or imitating any handwriting, signature or rubric. b. Causing it to appear that persons have participated in any act or proceeding when they did not in fact do so participate. c. Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them. d. Making untruthful statements in a narration of facts. e. Altering true dates. f. Making any alteration or intercalation in a genuine document which changes its meaning.

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g. Issuing in authenticated form a document purporting to be a copy of an original document when no such original exists, or including in such copy a statement contrary to, or different from, that of the genuine original. h. Intercalating any instrument or note relative to the issuance thereof in a protocol, registry or official book 4. In case the offender is an ecclesiastical minister, the act of falsification is committed with respect to any record or document of such character that its falsification may affect the civil status of persons. Definition of a document. A document is any written statement by which a right is established or an obligation extinguished.

(Pp vs.

Moreno, CA 38 OG 119. A document is a writing or instrument by which a fact may be proven and affirmed. Thus, a draft of a payroll because it has not been signed by the proper authority, can prove and affirmed nothing. (Pp. vs. Camacho, 44 Phil. 488). Pamphlets cannot be said to evidence a fact, agreement or disposition. They are rather merchandise as any other article. (Pp. vs. Agnis, 47 Phil. 945). - In falsification by (1) making alteration or intercalation, or (2) including in a copy a different statement, there must be a genuine document that is falsified. - In another paragraphs of Art. 117, falsification may be committed by simulating or fabricating a document. Illustration: To cause the arrest of his common-law wife, the accused simulated a warrant of arrest by making it appear that the same was signed and issued by the authority when in truth and in fact it was not. Held: It is not necessary that it be a real document, it is enough that it be given the appearance of a genuine document. Counterfeiting or imitating (feigning) any handwriting, signature or rubric. (Par. No. 1). -There are two ways of committing falsification under paragraph 1 of Art. 171. They are: (1) counterfeiting, which is imitating any handwriting, signature or rubric; and (2) feigning, which is simulating a signature, handwriting or rubric out of one which does not in fact exist. -In counterfeiting imitation of another’s signature need not be perfect. It is necessary only (1) that there be an intent to imitate, and (2) that the two signatures or handwritings, the genuine and forged, bear some semblance to each other. (U.S. vs. Rampas, 26 Phil. 189). - If there is no attempt whatsoever by the accused to imitate the signature of other persons so that they are entirely unlike the genuine signatures, the accused may be found guilty under par. 2, Art. 171, in causing it to appear that those persons have participated in the act when they did not in fact so participate. (U.S. vs. Freimuth, 3 Phil. 318, U.S. vs. Cinco, et al., 42 Phil. 839). - In feigning there is no original signature, handwriting or rubric, but a forgery of a signature, handwriting or rubric that does not exist. (See US vs. De los Angeles, et al., 4 Phil. 597). - Drawing up a will purporting to be that of a person who is already dead long before the date of the will is falsification by feigning. (U.S. vs. De los Angeles). Causing it to appear that persons have participated in an act or a proceeding. (Par. 2). Requisites: 1. That the offender caused it to appear in a document that a person or persons participated in an act or a proceeding; and 2. That such person did not in fact so participate in the act or proceeding. - That act of the defendant postmaster in forging the signatures of Irene Sanchez and Feliciano Isidro on the money orders to make it appear that said persons received the amounts corresponding to the money order is falsification under par. 2 by making it appear that the said persons intervened in the execution thereof by receiving the amount corresponding to the amount thereof, even if he did not imitate the signatures of the persons. (Pp. vs. Villanueva, 58 Phil. 671).

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- The placing by the accused of their thumb marks in the list of voters opposite the name of the electors who have not actually voted, thereby making it appear that those electors cast their votes when they did not in fact vote, is falsification under paragraph 2 of Art. 171, and the offenders who are private individuals are liable under Art. 172. (Pp. vs. Asa, et al., )

Attributing to persons who have participated in any act or proceeding statements other than those in fact made by them. (Par. 3). Requisites: 1. That a person or persons participated in an act or proceedings; 2. That such person or persons have made statements in that act or proceeding; and 3. That the offender in making a document, attributed to such person or persons statements other than those in fact made by such person or persons. - The accused, for the purpose of appropriating to himself a tract of land, drew a document setting forth the sale in his favor of the said land and let the owners signed thereon. However, it appears that the owner of the land did not sell, or that they executed in favor of the accused a Deed of Sale; that what they really did was to confer upon him (accused) a special power of attorney to represent them in a suit they had with another person. The crime committed is falsification under par. 3 of Art. 171. (U.S. vs. Capule, 24 Phil. 13).

Making untruthful statements in a narration of facts. (Par. 4). Requisites: 1. That the offender makes in a document statements in a narration of facts; 2. That he has a legal obligation to disclose the truth of the facts narrated by him; 3. That the facts narrated by the offender are absolutely false; and 4. That the perversion of truth in the narration of facts was made with the wrongful intent of injuring a third person. - The falsehood must involve statements of facts and not of law. Thus when the accused certified that she was eligible for the position, which turned out to be inexact or erroneous, she practically wrote a conclusion of law and not of fact, she may not be guilty of falsification. (Pp. vs. Yanza, GR No. L-12089, april 29, 1960). - There must be a legal obligation on the part of the accused to disclose the truth of the facts narrated. (Pp. vs. Quasha, 93 Phil. 333). - The accused, in compliance with the requirements of the Manila Police Dept. filled a Persona Data Sheet. On the blank space, where a questions is asked whether the applicant had previously been convicted of a criminal offense, he placed there “none”. Investigation disclosed that he had a previous conviction of the crime of theft. Held: The prosecution has failed to point to any law or ordinance imposing upon the defendant the obligation to reveal his previous conviction in filling in the personal data sheet which the members of the Manila Police Dept. are required to file. The accused was acquitted. (Pp. vs. Poserio, CA 53 OG 6159). - The narration of facts, to be liable for falsification under this paragraph must be absolutely false. Thus, where the accused, who was a janitor, marked with vertical lines in payroll opposite the names of some persons under his charge, to show that said person had performed their work during the days stated in the payroll and then certified that the payroll was correct, when as a matter of fact one of the men did his work before 8:00 o’ clock in the morning but absented himself during the whole day, is not guilty of falsification for the reason that the person really worked but not for the whole day. (U.S. vs. Bayot, 10 Phi. 518). - The rule is that if the statements are not altogether false, there being some colorable truth in such statements, the crime of falsification is not committed. (Pp. vs. Villena, et al., CA 51 OG 5691). - Legal obligation to disclose the truth in is inherent in residence certificate. (Pp. vs. Po Giok, 96 Phil. 913). Altering true dates. (Par. 5). - To violate this paragraph the date must be essential so that the alteration thereof must affect its veracity or the effects thereof. ( Pp. vs. Rodeca and Cordero, 62 Phil. 567).

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- The acts of the chief of police, in conspiracy with the justice of the peace, in altering the dates in the police blotter, book of records of arrest, bail bond, and the return of the warrant of arrest, in order to make it appear that the preliminary investigation of the case was disposed within ten days by the judge, is falsification under this paragraph. Date being essential here. (Pp. vs. Montano and Cabagsang, 57 Phil. 599). - Altering dates in official receipts, although does not affect the integrity of the document, is falsification if the purpose is to prevent the discovery of malversation. (Pp. vs. Belgica, CA, 40 OG, Supp. 4, 17).

Making alteration or intercalation in a genuine document which changes its meaning. (Par. 6). - When accused altered the copy of the Traffic Violation Report issued to him for traffic violation, as his temporary license, by erasing the originally written “III” and the word “three” after the words “pending cases” and by writing and superimposing thereon number “I” and the word “one” to hide his previous traffic violations, is falsification under this paragraph. (Pp. vs. Mansala, 105 Phil. 1253). - Alteration which speaks the truth is not falsification. Thus, a priest who altered his “cedula’ as to his age from 23 to 25, but it appeared that the accused’ real age is 25 is not falsification. (Arriola vs. Republic, 103 Phil. 730). - The alteration must affect the integrity or change the effects of the document; for unless that happens, there could not exist the essential elements of the intention to commit the crime. (Pp. vs. Pacana, 47 Phil. 48).

Issuing in 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 original document. (Par. 7).

- This kind of falsification can only be committed by pubic officer or notary public who takes advantage of his official position, since the authentication of a document can be made only by the custodian or the one who prepared and retained a copy of the original document. - Example of “purporting to be a copy of an original when no such original exists”: The notary public who made a supposed copy of a deed of sale which was never executed and of which he had no copy. - Example of “Including in a copy a statement contrary to, or different from, that of the genuine original.”: A Civil Registrar who stated in a certified copy of a record of birth that the person mentioned therein was legitimate when there was no such statement in the original.

Falsification by private individuals and use of falsified document. Art. 172). Acts punished under this article: 1. Falsification of public, official or commercial document by private individual. (par. 1) 2. Falsification of private document by any person. (par. 2) 3. Use of falsified document. (last par.) Any one of the modes of falsification in paragraphs 1 to 6 of Art. 171 must be employed by the offender in committing the crimes defined in par. Nos. 1 and 2 of Art. 172. Par. 7 of Art. 171 cannot be committed by a private individual. It can only be committed by a public officer or a notary public who takes advantage of his official position. - The possessor of a certificate of title is presumed to be the author of the falsification that made possible the transfer of title. (Pp. vs. Domingo, 49 Phil. 28). See also Pp. vs. Manansala, 105 Phil. 1253. - In par. 1, Art. 172, as in Art. 171, damage or intent to cause damage is not necessary. The subject of falsification here are public documents and the basis of the punishment is the violation of the public faith and the destruction of truth as therein solemnly declared. (See Pp. vs. Pacana, 47 Phil. 56). - Falsification under par. 2, Art. 172 is committed even if the act did not result in prejudice to a third party, if it has been done with the intention of causing such prejudice. (U.S. vs. Paraiso, 1 Phil. 127). - Damage to another need not be material. The law does not make any distinction. Damage to one’s honor is included. (U.S. vs. Infante, et al., 36 Phil. 146).

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- It is not necessary that the offender profited or hope to profit by the falsification, as all that the law is required is an intent to prejudice another person. (U.S. vs. Infante, et al., 36 Phil. 146). - When the offender commits on a document any of the acts of falsification enumerated in Art. 171 as a necessary means to commit another crime, like estafa, theft or malversation, the two crime form a complex crime under art. 148. However, the document falsified must be public, official or commercial. Use of falsified document. (last par.of Art. 172). -The falsified document may be introduced in a judicial proceedings, in which case, damage is not necessary. Or in another transaction, which requires at least intention to cause damage to another. Chapter Two OTHER FALSITIES Section Two.- False testimony. False testimony is committed by a person who, being under oath and required to testify to the truth of a certain matter at a hearing before a competent authority, shall deny the truth or say something contrary to it.

False testimony against a defendant. (Art. 180). Elements: 1. That there be a criminal proceeding. 2. That the offender testifies falsely under oath against the defendant therein. 3. That the offender who gives false testimony knows that it is false. 4. That the defendant against whom the false testimony is given is either acquitted or convicted by final judgment. False testimony favorable to the defendant. (Art. 181). -False testimony which either favor or against the accused is equally repugnant to the orderly administration of justice, and deserve to be rigorously repressed. (Pp. vs. Reyes, CA, 48 OG 1837). - The false testimony in favor of the defendant need not directly influence the decision of acquittal. Thus, when the accused falsely testified in another case in favor of an accused by not remembering anymore the face of the latter as robber and failed to elicit other data, and for which reason the accused in the robbery was acquitted, is guilty of false testimony, even if the reason for the dismissal of the case was the failure of the fiscal to call other witnesses. (Pp. vs. Reyes, CA, 48 OG 1837). - The false testimony need not benefit the defendant, say if the accused, notwithstanding the favorable testimony of the accused (in false testimony) was convicted, so long as the testimony was intended to favor the accused. (U.S. vs. Adolfo, 12 Phil. 296). - The defendant who falsely testified in is own behalf in a criminal case is guilty of false testimony favorable to the defendant. (U.S. vs. Soliman, 36 Phil. 5). - Rectification made spontaneously after realizing the mistake is not false testimony, there being no malice or criminal intention to testify falsely. (Pp. vs.Ambal. 69 Phil. 710). False testimony in other cases and perjury in solemn affirmation. (Art. 183). Elements: 1. That the accused made a statement under oath or executed an affidavit upon a material matter. 2. That the statement or affidavit was made before competent officer, authorized to receive and administer oath; 3. That in that statement or affidavit, the accused made a willful and deliberate assertion of a falsehood; and 4. That the sworn statement or affidavit containing falsity is required by law. - If the false testimony given by the witness is not important, essential or material to the principal matter under investigation, it cannot properly be held that perjury is committed. (U.S. vs. Jurado, 31 Phil. 491).

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- Good faith or lack of malice is a defense in perjury. (See Pp. vs. abaya, 74 Phil. 59). - Examples of cases where affidavits are required by law: (1) affidavit attached to the petition for receivership; (2) affidavit attached to the complaint for ejectment; (3) affidavit for application for marriage license. - Two contradictory statements are not sufficient to convict perjury. The prosecution must prove which of the two statements is false, and must show that statement to be false by other evidence than the contradictory statements. (U.S. vs. Capistrano, 40 Phil. 902).

Subornation of perjury. Subornation of perjury is committed by a person who knowingly and willfully procures another to swear falsely and the witness suborned does testify under circumstances rendering him guilty of perjury. (U.S. vs. Ballena, 18 Phil. 382). Note: This offense is omitted from the penal code. The one inducing another is principal by inducement and the latter as principal by direct participation.

Chapter Two MALFEASANCE AND MISFEASANCE INOFFICE Knowingly rendering unjust judgment. (Art. 204). Elements: 1. That the offender is a judge; 2. That he renders judgment in a case submitted to him for decision; 3. That the judgment is unjust; 4. That the judge knows that his judgment is unjust. Judgment- is the final consideration and determination of a court of competent jurisdiction upon the matters submitted to it, in an action or proceeding. Unjust judgment- is one which is contrary to law, or is not supported by evidence, or both. Unjust judgment is rendered knowingly when it is made deliberately and maliciously. th

“Knowingly” means consciously, intelligently, willfully, or intentionally. (Black’s Law Dictionary, 5 ed., 784). - Unjust judgment cannot be presumed-it must be supported with evidence. Thus, the mere fact that the judge promise to the other party that he would decide the case against the other party does not prove that judgment is unjust. The judgment may be supported with evidence. - Before a judge can be held liable under this article, it must be shown beyond reasonable doubt that the judgment is contrary to law, or is not supported with evidence, and the same was made with conscious and deliberate intent to do an injustice. (Sta. Maria vs. Ubay, 87 SCRA 179). - It is not the prosecutor who would pass the unjustness of the judgment but the proper appellate court with jurisdiction to review the same, either the court of appeals or the supreme court, and it also does not apply to collegiate court. (In Re: Joaquin T. Borromeo, AM, No. 93-7-6960, February 21, 1995). -Mere error of judgment cannot serve as a basis for a charge under this article when there is no proof or even allegation of bad faith, or ill motive, or improper consideration. ( Yaranon vs. Judge Rubio, 66 SCRA 67). Judgment rendered through negligence. (Art. 205) Elements: 1. That the offender is a judge; 2. That he renders a judgment in a case submitted to him for decision; 3. That the judgment is manifestly unjust; 4. That it is due to his inexcusable negligence or ignorance. -Abuse of discretion or mere error of judgment is not punishable as it odes not necessarily mean ulterior motive, arbitrary conduct or willful disregard of litigant’s right. (Evangelista vs. Hon. Baes, 61 SCRA 475).

Unjust interlocutory order. (Art. 206).

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Elements: 1. That the offender is a judge; 2. That he performs any of the following acts: a) knowingly renders unjust interlocutory order or decree; or b) renders a manifestly unjust interlocutory order or decree through inexcusable negligence or ignorance. - An interlocutory order is an order which is issued by the court between the commencement and the end of suit or action and which decides some point or matter, but which, however, is not a final decision of the matter in issue. (Bouvier’s Law Dictionary).

Malicious delay in the administration of justice. (Art. 2017) Prosecution of offenses; negligence and tolerance. (Art. 208). Acts punishable: 1. By maliciously refraining from instituting prosecution against violators of the law. 2. By maliciously tolerating the commission of the offense. -“negligence” as used in this article should not be understood merely as lack of foresight or skill but means “neglect of the duties of his office by maliciously failing to move the prosecution and punishment of the delinquent”. (U.S. vs. Mendoza, 23 Phil. 194).

Elements of dereliction of duty in the prosecution of offenses. 1. That the offender is a public officer or officer of the law who has a duty to cause the prosecution of, or to prosecute, offenses. 2. That there is dereliction of the duties of his office; that is, knowing the commission of the crime, he does not cause the prosecution of the criminal (Pp. vs. Rosales, GR No. 42648) or knowing that a crime is about to be committed, he tolerated its commission. 3. That the offender acts with malice and deliberate intent to favor the violator of the law.

Officers liable: - A chief of police, who, in breach of official duty, failed to prosecute a jueteng collector, in that he failed to file the corresponding criminal action against the latter who was caught possessing jeuteng lists, was held liable under Art. 208. ( Pp. vs. Mina, 65 Phil. 621). - A barrio lieutenant (now brgy. captain) who, in neglect of his duty, fails to move the prosecution of, and punishment for, a crime of arson, of which he is informed, would, in case the alleged crime was afterwards duly proven, be guilty of prevaricacion. (U.S. vs. Mendoza, 23 Phil. 194). - A fiscal who, knowing that the evidence against the accused is more than sufficient to secure his conviction in court, drops the case, is liable and may punished under Art. 208. - Malice is an important element of this article. Thus, the municipal president (now mayor) who held cockfights on the days not authorized by the law, to raise funds for the construction of a ward in the provincial hospital, was not liable under Art. 208 for the word “maliciously” means that the action complained of must be the result of a deliberate evil intent and odes not cover a mere voluntary act. The accused was convicted of illegal cockfighting. (Pp. vs. Malabanan, 62 Phil. 786). - The crime committed by the law-violator must be proved first. If the guilt of the law-violator is not proved, the person charged with dereliction of duty under this article is not liable. (U.S. vs. Mendoza, supra).

Betrayal of trust by an attorney or solicitor-revelation of secrets. (Art. 209). Acts punished as betrayal of trust by attorney.

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1. By causing damage to his client, either (1) by any malicious breach of professional duty, (2) by inexcusable negligence or ignorance. Note: When the attorney acts (1) with malicious abuse of his employment or (2) inexcusable negligence or ignorance, there must be damage to his clients. 2. By revealing any of the secrets of his client learned by him in his professional capacity. Note: Damage is not necessary. 3. By undertaking the defense of the opposing party in the same case, without the consent of his client, after having undertaken the defense of said first client or having received confidential information from said client. Note: If the client consents to the attorney’s taking the defense of the other party, there is no crime.

Section Two-Bribery Direct Bribery. (Art. 210). Acts punished punishable in direct bribery: 1. By agreeing to perform, or by performing, in consideration of any offer, promise, gift or present – an act constituting a crime, in connection with the performance of his official duties. 2. By accepting a gift in consideration of the execution of an act which does not constitute a crime, in connection with the performance of his official duty. 3. By 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: 1. That the offender be a public officer within the scope of Art. 203. 2. That the offender accepts an offer or a promise or receives a gift or present by himself or through another. 3. That such offer or promise be accepted, or gift or present be received by the public officer – (1) with a view to committing some crime; or (2) in consideration of the execution of an act which does not constitute a crime, but the act must be unjust; or (3) to refrain from doing something which is his official duty to do. 4. That the act which the offender agrees to perform or which he executes be connected with the performance of his official duties. - “public officer” as used in this title means every public servant from the highest to the lowest. For this purpose of the penal code, it obliterates the standard distinction in the law of public officers between “officer” and “employee”. -Thus, a laborer in the Bureau of Posts appointed by the acting director as sorter and filer of money orders and the sorting and filing of money orders are obviously a public function or duty. (Maniego vs. People, 88 Phil. 494). - A mere emergency helper of the Bureau of Treasury on a daily wage basis, without any appointment as a janitor or messenger, is a public officer having been entrusted wit the custody of official document.

(Pp. vs. Ireneo, CA 53 OG

2827). -Gift may not only be offered by a private person, but it may be solicited by the public officer himself. - The gift or promise must be accepted by the public officer; otherwise the one making the offer or gift is liable for attempted corruption of public officer. - A mere promise to give gift to, and a promise to commit an unlawful act, by a public officer is sufficient in direct bribery. Thus, a stenographer who accepted a promise of P100 from an individual and he promised to alter the notes taken by him during the trial is sufficient to hold him liable in direct bribery. Alteration of TSN is falsification of public document. - In other words, a promise from the circumstances of the case, may be implied. (U.S. vs. Richard, 6 Phil. 545). - The act which the public officer agrees to perform must be connected with the performance of his official duties. ( U.S. vs. Valdeheza, 4 Phil. 470). Direct bribery under 2

nd

paragraph of art. 210

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- Direct bribery under the first and the second paragraph have the same elements, but the act intended by the public officer in the second paragraph does not amount to a crime but is unjust. Examples: The treasurer who, in consideration of money or present, awards certain stalls in the public to a china man, inspite of the fact that there are Filipinos who have better rights. The act of the treasurer is not a crime but is unjust. -In Pp. vs. Gacutan, the act of a judge in rendering an unjust decision, knowing it to be unjust, in favor of a party who gave him a female carabao falls under this paragraph. Because when he decided the case in favor of the party is not criminal but is unjust, being in disregard of the evidence. -In Marifosque vs. People, GR No. 156685, July 27, 2004, the Police officer is guilty of direct bribery under the second paragraph when he received a bribe money for the recovery of stolen cylinder tanks, which was an act not constituting a crime, and his act of receiving money was in connection with his duty as a police officer. rd

Direct bribery under the 3 paragraph. Examples: A sanitary inspector who accepts a gift from the tenant of an unsanitary building and in consideration thereof refrain from performing his official his duty to report its condition to his superiors. (U.S. vs. Navarro, 3 Phil. 633). - If by refraining from doing an act the officer is committing a crime, he is punished not under par. 3 but under par. 1. Thus, if a public officer, for a gift or promise, abstain from instituting an action for the punishment of an offense, which is punished under Art. 208, he should be punished under par. 1, not under par. 3.

Indirect bribery (Art. 211). Elements: 1. That the offender is a public officer. 2. That he accepts gifts. 3. That the said gifts are offered to him by reason of his office. - There must be a clear intention on the part of the public officer to take the gift so offered and considered the same as his own property from then on, such as putting away the gift for safe keeping or pocketing them. Thus, mere physical receipt unaccompanied by any other sign, circumstances or act to show such acceptance is not sufficient to lead the court to conclude the crime of indirect bribery has been committed. To hold otherwise will encourage unscrupulous individuals to frame up public officers by simply putting within their physical custody some gift, money or other property. (Formileza vs. Sandiganbayan, 159 SCRA 1).

Art. 211-A Qualified bribery(as amended by RA 7659) . Elements: 1. That the offender is a public officer entrusted with law enforcement; 2. That the offender refrains from arresting or prosecuting an offender who has committed a crime punishable by reclusion perpetua and/or death; 3. That the offender refrains from arresting or prosecuting the offender in consideration of any promise, gift or present. Penalty: 1. Shall suffer the penalty for the offense which was not prosecuted. 2. If it’s the public officer who asks or demands such gift, the penalty is death.

Corruption of public officials. (Art. 212). Elements: 1. That the offender makes offers or promises or gives gift or presents to a public officer.

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2. That the offers or promises are made or the gifts or presents given to a public offer, under the circumstances that will make the public officer liable for direct bribery or indirect bribery. -Entrapment is usually a means of catching the briber. Thus, an NBI agent who, posing as interested in expediting the approval of license for firearm, gave P 50.00 to a public officer who had hinted that he was not averse to receiving some money for expediting the approval of licenses, merely resorted to ways and means to catch the public officer, it appearing that there was a ground of suspicion or belief of the existence of official graft in that office. (Pp. vs. Vinzol, CA 47 OG 294). P.D. No. 46 – Prohibits the giving and acceptance of gifts by a public officer or to a public officer, even during anniversary, or when there is an occasion like Christmas, New Year, or any gift-giving anniversary. The decree punishes both the giver and the receiver. - The giving and receiving of gifts must be by reason of official position, regardless of whether or not the same is for past or future favors. - The giving of parties by reason of the promotion of a public official is considered a crime even though it may call for a celebration. The giving of the party is not limited to the pubic officer only but also to any member of his family. P.D. 749. Granting immunity from prosecution to a private person or public officer who shall voluntarily give information and testify in a case involving a violation of the Anti-graft and Corrupt Practices Act. The giving of immunity to the bribe-giver requires the following: 1. He voluntarily discloses the transaction he had with the public officer constituting direct or indirect bribery, or any other corrupt transaction; 2. He must willing testify against the public officer involved in the case to be filed against the latter. - Before the bribe giver may be dropped from the information, he has to be charged first with the receiver. Before trial, the prosecutor may move for the dropping of the bribe-giver from the information and be granted immunity. But first the five condition must be met: 1) The information must refer to consummated bribery; 2) The information is necessary for the proper conviction of the public officer involved; 3) That the information to be given is not yet in the possession of the government or known to the government; 4) That the information can be corroborated in its material points; 5) That the informant has not been convicted previously for any crime involving moral turpitude. The immunity attached only if the information given turned out to be true and correct. If the same is false, the public officer may even file criminal and civil complaint against the informant for perjury.

ANTI-GRAFT AND CORRUPT PRACTICES ACT (R.A. No. 3019 as amended by R.A. No. 3047, P.D. No. 77 and B.P. Blg. 195) Sec. 3 – Corrupt Practices Act. Of Public Officers. (a) Persuading, inducing or influencing another public officer to perform an act constituting a violation of rules and regulations duly promulgated by competent authority or an offense in connection with the official duties of the latter, or allowing himself to be persuaded, induced, or influence to commit such violation or offense. - The persons liable are (1) the public officer who persuades, etc., and (2) the public officer who allows himself to be persuaded, induced or influenced. - Requesting or receiving any gift, present, or benefit is not required in this provision. - In the absence of any allegation or proof that the accused so acted for a consideration, payment or remuneration and that he intended to obtain personal gain, enrichment or advantage, the accused may not be convicted of violation of par. (a), Sec. 3 of RA 3019. ( PP. vs Bernales, 13 CA. Rep. 972; 67 O.G. 8316).

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(b) Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself of for any other person, in connection with any contract or transaction between the government and any other party, wherein the public officer in his official capacity has to intervene under the law.

-The person liable under this provision is the public officer, who in his official capacity, has to intervene under the law in any contract or transaction between the government and any other party and he directly or indirectly request, receive any gift, present, share percentage, or benefit, for himself of for any other person, in connection with that contract or transaction. - A preliminary investigation of a criminal complaint conducted by the fiscal is not a “contract or transaction” so as to bring it within the ambit of section 3 (b) of RA 3019. (Soriano vs. Sandiganbayan, 131 SCRA 184).

(c) Directly or indirectly requesting or receiving any gift, present or other pecuniary or material benefit, for himself or for another, for 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 of this Act. - The person liable under this provision is the public officer who, in any manner or capacity, has secured or obtained, or will secure or obtained, any Government permit or license for another person and he directly or indirectly request or receive any gift, present or other pecuniary or material benefit, for himself or for another in consideration for the help given or to be given. (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 his termination. -The person liable under this provision is a public officer who had or has pending official business with a private enterprise and he accepts or has any member of his family accept employment in that enterprise (1) during the pendency of the official business with him or (2) within one 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 excusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of license or permits or other concessions. -To be liable under this provision, the public officer must act thru manifest partiality, evident bad faith or gross excusable negligence. - The act constituting the crime is causing undue injury to any party, including the government, or giving any private party unwarranted benefits, advantage or preference in the discharge of the official administrative or judicial functions of the offending public officer. (f) Neglecting or refusing, after due demand or request, without sufficient justification, to act within a reasonable time on any matter pending before him for the purpose of obtaining directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage, or for the purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party. (e) Entering, on behalf of the government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby. - The person liable under this provision is any public officer who has the duty under the law to enter, in behalf of the Government, into any contract or transaction with any person, and he enters into such contract or transaction manifestly or grossly disadvantageous to the government. - It is not necessary that the public officer profited or will profit thereby. (h) Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having any interest.

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- The officer liable under this provision is any public officer who intervenes of takes part in his official capacity in any business, contract or transaction, or any public officer who is prohibited by the Constitution or by any law having any interest and he has financial interest directly or indirectly in that business, contract or transaction. - Actual intervention is what is required in the transaction in which one has financial or pecuniary interest in that business in order that the liability may attach. (Opinion No. 306, Series of 1961 and Opinion No. 94, series of 1972 of the Secretary of Justice). -The official need not dispose his shares in the corporation as long as he does not anything for the firm in its contract with the office. For the law aims to prevent the dominant use of influence, authority and power. (Trieste, Sr. vs. Sandiganbayan, 145 SCRA 508).

(i) Directly or indirectly becoming interested 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, panel or group.

Interest for persona gain shall be presumed against those public officers responsible for the approval of manifestly unlawful, inequitable, or irregular transactions or acts by the board, panel or group to which they belong. -The person liable under this provision is any public officer who is a member of the board, panel or group which exercises discretion in the approval of any transaction, and he is directly or indirectly becoming interested, for personal gain, or having any material interest in any transaction or act requiring the approval of such board, panel or group. He is liable even if he did not participate in the action of the board, group or panel, or even if he votes against it The public officer responsible for the approval of manifestly unlawful, inequitable or irregular transactions or acts by the board, panel or group to which they belong are presumed to have acquired interest for personal gain. (j) Knowingly approving or granting any license, permit, privilege or benefit in favor of any person not qualified for or not legally entitled to such license, permit, privilege or advantage, or of a mere representative or dummy of one who is not qualified or entitled. - The person liable under this provision is the public officer who has the duty of approving or granting any license, permit, privilege or benefit, and he knowingly approve or grant any license, permit or benefit in favor of any person not qualified for or not legally entitled to such license, permit or privilege or advantage, or of a mere representative or dummy of one who is not qualified or entitled. - Requesting or receiving any gift, present or benefit is not required in this provision. (k) Divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date. - The person liable under this provision is any public officer who, on account of his official position, or whose office, acquired valuable information of a confidential character, and he (1) divulged such valuable information to unauthorized persons, or (2) released such information in advance of its authorized released date. Sec. 4. Prohibition on private individual - It shall be unlawful for any person who has family or close relation with any public official who has to intervene in some business, transaction, application, request of contract of the government with any other person to capitalize or exploit or take advantage of such family or close personal relation by directly or indirectly requesting or receiving any present, gift, or material or pecuniary advantage from the person having the business, transaction, application, request or contract with the government. Sec. 5. Prohibition on certain relatives – just read. Sec. 6. Prohibition on Members of congress – just read. Sec. 7. Statements of Assets and liabilities – just read.

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Sec. 8. Prima facie evidence of and dismissal due to unexplained wealth- just read. Read up to Sec. 16. Chapter Four MALVERZATION OF PUBLIC FUNDS OR PROPERTY

Art. 217. Malversation of public funds or property. Acts punishable: 1. By appropriating public funds or property. 2. By taking or misappropriating the same. 3. By consenting, or through abandonment or negligence, permitting any other person to take such public funds or property. 4. By being otherwise guilty of the misappropriation or malversation of such funds or property. - The penalty for malversation is the same whether committed with malice or through negligence

Elements common to all acts of malversation under Art. 217. 1. That the offender be a public officer. 2. He had the custody or control of funds or property by reason of the duties of his office. 3. That those funds or property were public funds or property for which he was accountable. 4. That he appropriated, took, misappropriated or consented to or, through abandonment or negligence, permitted another person to take them. - It is the nature of the duties, not the relatively important name given to the office, which is the controlling factor in determining whether or not the accused is an accountable public officer. The vital fact is that he is an employee of, or in some way connected with, the government and that, in the course of his employment, he receives money or property belonging to the government for which he is bound to account. ( U.S. vs. Vlelasquez, 32 Phil. 157). - An emergency employee entrusted with the collection and/or custody of public funds may be held liable for malversation, if misappropriates such funds.

Illustrations: 1. An unlicensed firearm confiscated by a police officer, but instead of turning over the same to the property custodian for the prosecution of the offender, sold the firearm is guilty of malversation. 2. A government cashier did not bother to put the public fund in the public safe/vault but left it in the drawer of the table which has no lock and then somebody took the funds is guilty of malversation. Note: Malversation can be committed by negligence. 3. The Municipal President who spent for himself P 60.00 which he had received as rent for the house owned by the Municipality is guilty of malversation, said amount having received by him by reason of his office. (U.S. vs. Togonon, 12 Phil. 516). - If the officer is not accountable to the funds misappropriated the crime committed is theft. If there is abuse of confidence, it will be qualified theft. - To be liable for malversation funds or property must be received in official capacity. Thus, a municipal councilor who had no duty to collect or receive the slaughter fee received it from another person with a promise to secure a receipt therefore and misappropriated it is guilty of ESTAFA, not malversation. (U.S. vs. Radaza, 17 Phil. 286). See U.S. vs. Webster, 6Phil. 394 and U.S. vs. Wickersham, 20 Phil. 440. -Non-accountable officer of private individual may be liable for malversation if they conspired with a public officer guilty of malversation.

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Thus, a janitor an five policemen who aided the municipal treasurer in the commission of malversation by taking the safe containing the money from the municipal treasury and carrying it to another place and took the contents thereof are guilty of malversation although they are not accountable officer. (U.S. vs. Ponte, et al., 20 Phil. 379). See also Pp. vs Sendaydiego, 81 SCRA 120). -Lack of criminal intent or good faith is a defense in malversation not committed trough negligence. Thus, a municipal officer who in good faith paid out of public funds, persons who in accordance with the resolution of the municipal council, but the payments were made in violation of the law, because of insufficient vouchers or improper evidence, is only civilly liable there being no criminal intent. (See Pp. vs. Elvina, 2 Phil. 230; U.S. vs. Catolica, 18 Phil. 504). - Private property may be involved in malversation. It applies to administrator or depository of funds or property attached, seized, or deposited by public authority even if such property belongs to private individual. (see Pp. vs. De la Serna, CA, 40 OG Suppp.12 159). - Failure to account public funds or property upon demand by duly authorized officer is prima facie evidence that he has put such missing funds to personal uses. Thus, the failure or inability of the accused who was in custody of public funds or property to refund the shortage upon demand by the duly authorized office constitute prima facie evidence of malversation, notwithstanding the fact that such demand was made verbally. (U.S. vs. Kalingo, 46 Phil. 651). An accountable public officer is liable for malversation even if there is no direct evidence of misappropriation and the only evidence is that there is a shortage in his account which he has not been able to explain satisfactorily. - The presumption, however, may be rebutted. (see Magdarang vs. People GR No. 112314, March 28, 2001). - The return of the funds malversed is only mitigating, not exempting circumstance. Thus, when the books were examined by the auditor, the assistant cashier was not able to produce the amount, and later the assistant cashier offered and did actually return the money, it was held that the return of the money was merely mitigating circumstance. (Pp. vs. Velasquez, 72 Phil. 98). - But in another case where the officer who made the examination testified that at the very moment when the shortage was discovered and the treasurer was notified he at once paid the shortage out of the money from his pocket, it was held that no presumption of misappropriation can be established. (U.S. vs. Feleciano, 15 Phil. 147). Where, a treasurer covered his shortage out of the money borrowed from his clerk did not relieved him of his liability as he failed to explain satisfactorily why the amount which should be in his hands was in is clerk’s possession. (Pp. vs. Divino, CA-GR No. 428, Oct. 13, 1938). But when the accountable officer is obliged to go out of his office to borrow the sum allege to be the shortage and later the missing amount was found in some unaccustomed place in his office, is not liable for malversation. ( U.S. vs Pascual, 26 Phil. 234). -Demand is not necessary in malversation. It is not an element of the crime. It merely raises the presumption that missing funds have been put to personal use. (Morong Water District vs. Office of the Ombudsman, GR No. 116754, March 7, 2000). Art. 218-222 – just read.

Chapter Five INFIDELITY OF PUBLIC OFFICERS

Art. 223. Conniving with or consenting to evasion.

Elements: 1. That the offender is a public officer. 2. That he had in his custody or charge, a prisoner, either detention prisoner of prisoner by final judgment. 3. That such prisoner escaped from his custody.

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4. That he was in connivance with the prisoner in the latter’s escape. (U.S. vs Badino, 29 Phil.459). - A policeman who allowed a prisoner to go out and buy a cigarette at a nearby store, thereby making possible the escape of the prisoner, is not in connivance with the latter, the policeman not knowing that he would escape. - A detention prisoner is a person in legal custody, arrested for, and charged with, some crime or public offenses. Thus, a driver of a truck, driving without a license, met an accident and was taken to the hospital and, while being guarded by a policeman escaped, the policeman is not liable because the driver who was not actually arrested, was not a detention prisoner. An information for driving without license was filed against the driver two days after his escape. (Pp. vs. Liong, CA 47 OG 1321). - Release of a detention prisoner who could not be delivered to the judicial authority within the prescribed period is not infidelity in the custody of prisoner. (Pp. vs. Lancanan, 95 Phil. 375). - Laxity or leniency is not infidelity where the prisoner was allowed to eat in a restaurant near the municipal building or at his house during the town fiesta and was duly guarded all the time. (Pp. vs. Evangelista, CA 38 OG 158). - A guard who allowed a prisoner to sleep and eat at his house there being no provision for food of prisoner is infidelity. (See Pp. vs. Revilla, CA 37 OG 1896). - A municipal mayor who utilized a prisoner to do house chores at his house and served as a cook is infidelity. (See Pp. vs. Evanglista, supra.)

Art. 224. Evasion through negligence. Elements: 1. That the offender is a public officer. 2. That he is charged with the conveyance or custody of a prisoner, either detention prisoner or prisoner by final judgment. 3. That such prisoner escaped through negligence. Illustration of absence of 2

nd

element:

-If the custody of the prisoner was not yet transferred to the succeeding guard B who was still sleeping when his time take over came and during that time a prisoner escaped while guard A continued manning the post want for B to wake up, guard B cannot by liable for negligence as the custody of the prisoner has not yet been transferred to him when the evasion took place. (Pp. vs. Silvosa, CA GR No. 12736-R,April 30, 1955). Illustration of absence of the 3rd element: - A policeman was guard on duty. He unlocked the door of the jail to let a detention prisoner go out to clean the premises of the police headquarters. The prisoner went to a nearby faucet to wash the rags. Upon his third trip to the faucet, he walked behind the police headquarters, climber over the wall and escaped. Held: The policeman is not liable as he was not negligent. Not every little mistake or destraction of a guard leading to prisoner’s escape is negligent under Art. 224. (Pp. vs. Flosa, CA, 47 OG 2452). - Not every negligence or distraction of a guard is penalized; it is only that positive carelessness that is short of deliberate non-performance of his duties as a guard that is the gravamen of the crime of infidelity under Art. 224. (Pp. vs. Reyes, et al., CA 59 OG 6664).See. Pp. vs Nava, CA 36 OG 316.

Examples of Infidelity trough negligence: 1. A policeman who, assigned to guard a prisoner, falls asleep, which resulted in the escape of a prisoner is guilty of negligence. (Pp. vs. Guiab, GR No. 39631, May 6, 1934). 2. The guard who permitted a prisoner , who escaped, to gather gabi considering that the place was grassy and talahibs was growing therein is guilty of negligence. (Pp. vs. Lagata, 83 Phil. 159). -The recapture of the prisoner does not afford complete exculpation. (Pp. vs. Qiesel, CA 52 OG 6975). Art. 225. Escape of prisoner under the custody of a person not a public officer. – just read. Art. 226. Removal, concealment or destruction of documents.

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Elements: 1. That the offender is a public officer. 2. That he abstracts, destroys or conceals documents or papers. 3. That the said documents or papers should have been entrusted to such public officer by reason of his office. 4. That damage, whether serious or not, to a third party or to the public interest should have been caused. - The document must be complete and one by which a right could be established or an obligation could be extinguished. Thus, the municipal mayor who, in the fit of anger, mutilated the payroll of the town, is not guilty of infidelity as the payroll was not yet complete not having been signed yet by the mayor. (Pp. vs. Camacho, 44 Phil. 484). - This provision applies to private document entrusted to a public officer. Thus, a postmaster to whom a letter containing paper money was delivered to be forwarded by registered mail, opened said letter and abstracted money orders, or the money bills enclosed therein in guilty under this provision. (U.S. vs. Gorospe, 31 Phil. 285; U.S. vs. Filoteo, 14 Phil. 73). - The simple act of retaining the mail without forwarding the letters to their destination, even if he did not open and take the money they contained is guilty under this provision. (U.S. vs. Marino, 10 Phil. 652; U.S. vs. Pena, 12 Phil. 362). Art. 226-245- just read them.

Title Eight CRIMES AGAINST PERSONS

Art. 246. Parricide. Elements: 1. That a person is killed. 2. That the deceased is killed by the accused. 3. That the deceased is the father, mother, or child, whether legitimate or illegitimate, or a legitimate other ascendant or other descendant, or the legitimate spouse of the accused. - With respect to grand parents or grandchildren, to be liable for parricide, they must be legitimate. (other descendants or ascendants). But with respect to father, mother or child of the accused, proof pf legitimacy is not required. (Pp. vs. Embalido, 58 Phil. 154). - Relationship must be alleged in the information. If the accused is charged only with murder instead of parricide, he cannot be convicted for parricide, but relationship will be an aggravating circumstance of relationship. (Pp. vs. Jumawan, 116 SCRA 739). - If a person wanted to kill a stranger but by mistake killed his own father, the crime committed is parricide, but Art. 49 is the penalty.

Art. 247. Death or physical injuries inflicted under exceptional circumstances. Requisites: 1. That a legally married person or a parent surprises his spouse or his daughter, the latter under 18 years of age and living with him, in the act of committing sexual intercourse with another person. 2. that he or she kills any or both, of them or inflicts upon any or both of them any physical injury in the act or immediately thereafter; 3. That he has nor 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. - It is not required in this article that the parent-accused must be legitimate. It is merely required that the daughter must be 18 years of age, and living with her parents. - This does not apply to married daughter, although does not state “unmarried daughter”. This applies only to single daughter, she is under parental authority. If she is married, only her husband can claim the benefit.

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- The accused must have surprised his spouse or daughter (under 18 yrs of age and living with him ) in the act of sexual intercourse with another person. Thus, where a husband who, upon arriving home one night and seeing a man jump out of the window, killed his wife who was begging forgiveness is guilty of parricide. (Pp. vs. Marquez, 53 Phil. 260). - Merely sleeping on the same bed is not “in the act of sexual intercourse. (Pp. vs. Bituanan, 56 Phil. 23). -Also not included in the phrase where he surprised his wife after the act, as when he saw already rising up and the man buttoning hid drawer. (Pp. vs. Gonzales, 69 Phil. 66). - But is enough that the circumstances show reasonable that the carnal act is being committed or has just been committed. (Pp. vs. Gonzales, supra). In the above case, the paramour and the accused wife entered the room alone, undressed themselves, performs mutual acts of the character of lasciviousness all in the prelude to the carnal act when they were surprised by the offended husband and killed them. Majority of the justices held that there must be an act of sexual intercourse. In his dissenting opinion, Justice Laurel said: “Must the offended husband look on in the meantime and wait until the very physical act of coition take place. This interpretation is far from being rational and certainly does violence to the reason and purpose of the law. Meaning of the phrase “immediately thereafter” Case: While looking for his wife who did not return home, and o his way home, he surprised his wife and his paramour in the act of sexual intercourse, but they hurriedly stood up and the man started to run. The husband pursued the man but did not catch him and he then returned home where he found his wife in the act of climbing the stairs and killed her. Held: Although the wife was not killed in the very where she was caught, the assault upon the wife must be understood to be a continuation of the act of the wronged husband’s pursuit of her paramour. Art. 247 applies. ((U.S. vs. Alano, 32 Phil. 383-384). -The discovery, the escape, the pursuit and the killing must all form part of one continuous act. ( 79 Phil. 194). - Though a quite length of time, had passed between the accused surprised his wife the act of sexual intercourse and the time when the paramour was actually shot, the shooting must be understood to be the continuation of the pursuit of the victim by the accused. (Pp. vs. Abarca, 153 SCRA 735). - The killing must the be the by-product of the accused rage after surprising his wife and paramour in the act of sexual intercourse and mut not be influenced by external factors. (Pp. vs. abarca, supra). - Where physical injuries where committed as a result of the cross-fire, the accused will not be liable because the accused was not committing felony when he discharged his firearm. (Pp. vs. abarca, supra.) Unless he is guilty of negligence. -Destierro is not really intended to punish the killer of the spouse but merely to protect him form reprisal specially coming from the relatives of the deceased spouse. ( Pp. vs. Lauron, 57 OG 7367).

Art. 248. Murder.

- killing a person by means of fire is murder, only when there is actual design to kill on the part of the offender. (U.S. vs. Burns, 41 Phil. 418).This ruling is applicable to all other circumstances enumerated in paragraph No. 3 of Art. 248. - If the defendant had assaulted the victim in a treacherous manner, he is guilty of murder in view of the qualifying circumstance of treachery, even if he did not intend to kill the victim. (Pp. vs. Cagoco, 58 Phil. 530). This ruling may be applicable to all the circumstances in pars. Nos. 1,2,4,5 and 6 of Art. 248. The ruling is based on Art. 4, par. 1 of the RPC. - Murder will exist with only one of the circumstances described in Art. 248 (U.S. vs Labai, 17 Phil. 240). - When more than one of said circumstances are present, the others must be considered as generic aggravating. Thus, when the killing of the victim, the commission of the crime is attended by evident premeditation, treachery, and

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price, reward or promise, only one of them shall qualify the killing to murder and the other shall be considered as generic aggravating circumstances. (See pp. vs. Dueno, 90 SCRA 23). - Killing of a child is murder even if the manner of attack was not shown. Treachery or alevosia exists when an adult person attacks a child of tender years and causes his death. (Pp. vs. Valerio, 112 SCRA 231).

Art. 249. Homicide.

-When death resulted, even if there is no intent to kill, the crime is homicide. (U.S. vs Gloria, 3 Phil. 333). Because intent to kill is conclusively presumed when death resulted. - It is only in attempted or frustrated homicide that intent to kill is important. In attempted or frustrated homicide there must be intent to kill; otherwise he is liable for physical injuries only. - Usually intent to kill is shown by the kind of weapon used by the offender and the parts of the body of the victim at which the weapon was aimed, as shown by the wounds inflicted. But in the of Pp vs. Penesa, 81 Phil. 398 is the exception where the accused went to his wife, who was living separately from him, to entreat to live with him again, but a cousin of his wife provoked him that caused him to assault him (wife’s cousin) and the son of his wife by first marriage, with a bolo, inflicting physical injuries, caused indiscriminately and not deliberately, the purpose of the accused ingoing to the house, and not the kind of weapon he carried nor the parts of the body of the victims that were wounded, is indicative and determinative of his intention. - The wounds that caused the death were inflicted by two different persons, even they were not in conspiracy, each one of them is guilty of homicide. The burden of proof is on the accused to show that the wound inflicted by him did not cause the death of the victim. (Pp. vs. Abiog, 37 Phil. 137). Case: A shot B with a revolver in the latter’s abdomen, inflicting mortal wound. B fell to the ground, stunned for an instant, but soon got up and went to his house, procured a knife, and knowing that he would die anyway, cut his throat, and he died in five minutes. Held: The contention of the defense the B killed himself is untenable. When the death of B occurred, the wound inflicted by A did contribute to the event. B was actually dying when he cut his throat, B continued t languish from both wounds until his death. ( Pp. vs. Lewis, 124 Cal., 551, cited in US vs. Abiog).

Art. 255. Infanticide.

Elements: 1. That a child was killed. 2. That the deceased child was less than three days (72 hours) of age. 3. That the accused killed said child. - A stranger who cooperates in the perpetration of infanticide committed by the mother or grandparent on the mother side, is liable for infanticide, but he must suffer the penalty prescribed for murder. (U.S. vs Aquino,34 Phil. 813). - In Infanticide, the prosecution must prove that the mother gave birth to a living creature. (U.S. vs. Aquino, supra.), which means that the child must be borne alive and full developed, that is it must sustain an independent life. (U.S. vs. Vedra, 12 Phil. 96). A foetus about six months old cannot subsist by itself, outside the maternal womb. (Pp. vs. Detablan, CA 40 Og Supp. 5, 30).

Art. 256. Intentional abortion.

Abortion is defined as the willful killing of the foetus in the uterus, or the violent expulsion of the foetus from the maternal womb which results in the death of the foetus. - Foetus must die to consummate abortion. Thus, if the foetus survives in spite of the attempt to kill it or the use of violence, abortion is not consummated. If abortion is intended and the foetus did not die, it is frustrated intentional abortion when all the acts of execution have been performed by the offender.

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- If abortion is not intended and the foetus does not die, in spite of the violence intentionally exerted, the crime may only be physical injuries. - As long as the foetus dies as a result of the violence used or drugs adminisitered, the crime of abortion exists, even if the foetus is full term. (Viada).

Ways of committing intentional abortion: 1. By using any violence upon the person of the pregnant woman. 2. By acting, but without using violence, without the consent of the woman. ( By administering beverages or drugs upon such pregnant woman without her consent. 3. By acting (by administering drugs or beverages), with the consent of the pregnant woman. Elements: 1. That there is a pregnant woman; 2. That violence is exerted, or drugs or beverages administered, or that the accused otherwise acts upon such pregnant woman; 3. That as a result of the use of violence or drugs or beverages upon her, or any other act of the accused, the foetus dies, either in the womb or after having been expelled therefrom; 4. That the abortion is intended.

Abortion distinguished from infanticide. - Even if the foetus already acquired human form and about six months old when it was expelled from the womb but did not have its own life independent of its mother, or even if alive but could not subsist by itself outside the maternal womb, the crime committed is abortion. But if it could sustain an independent life, after its separation from the maternal womb, and it is killed, the crime committed is infanticide.

Art. 257. Unintentional abortion. Elements: 1. That there is a pregnant woman, 2. That violence is used upon such pregnant woman without intending an abortion. 3. That the violence is intentionally exerted. 4. That as a result of the violence the foetus dies, either in the womb or after having been expelled therefrom. - Unintentional abortion is committed only by means of violence, thus, where a man points a gun at a pregnant woman, at the same time telling her that eh will kill her, and because of the fright she absorbs, she suffers an abortion, the offender is guilty only of threats. (Dec. Supreme Court of Spain of Nov. 30, 1887). - The violence must be intentionally exerted. Thus, a man who struck a woman three months pregnant on her hip with a bottle, causing hemorrhage and miscarriage was held guilty of unintentional abortion. (U.S. vs. Jeffrey, 15 Phil/ 391). - The accused is still liable even if he did not know that the woman was pregnant. (U.S. vs Jeffrey, supra). Also incase of Pp. vs. Carnaso, CA, 61 OG 3623. - There can be complex crime of homicide with unintentional abortion. Thus, when a man struck the woman with his fist, causing her to fall to the ground, and when she got up, he gave another blow which caused her to fall again, causing the woman’s hemorrhage culminating the premature delivery of her twin babies, the other not having been born because the woman die, is guilty of complex crime of homicide with unintentional abortion. (Pp. vs. Genoves, 33 OG 2201). See Pp. vs. Salufrania, 159 SCRA 401). - A husband who, with violence kills his pregnant wife, thus occasioning the death of the foetus, is guilty of parricide with unintentional abortion. (Pp. vs. Villanueva, 242 SCRA 47).

Art. 258. Abortion practiced by the woman herself or by her parents.

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Art. 259. Abortion practiced by a physician or midwife and dispensing of abortives.

Chapter Two PHYSICAL INJURIES Art. 262. Mutilation. “Mutilation” means the lopping or the clipping off of some part of the body. Two kinds of mutilation: 1. By intentionally mutilating another by depriving him, either totally or partially, of some essential organ for reproduction. 2. By 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. Elements of mutilation of the first kind: 1. That there be a castration, that is, mutilation of organs necessary for generation, such as penis or ovarium. 2. That the mutilation is caused purposely and deliberately, that is, to deprive the offended party of some essential organ for reproduction. - The firs kind of mutilation is castration which must be made purposely. Thus, if by reason of the injury or attack, the person is deprived of organs of generation, the act, although voluntary, not being intentional to that end, would not come under the provision of this article. (U.S. vs. ESparcia, 36 Phil. 840). - If a mutilation is not caused purposely and deliberately so as to deprive the offended party of a particular part of his body, the crime could be physical injuries.

Art. 263. Serious physical injuries.

What are serious physical injuries? 1. When the injured person as a consequence of the injury inflicted becomes insane, imbecile, impotent or blind (two eyes). 2. When the injured person (a) losses the use of speech or the power to hear or to smell, or losses an eye, a hand, a foot, an arm, or a leg, or (b) loses the use of any such member, or (c) becomes incapacitated for the work in which he was theretofore habitually engaged, inconsequence of the physical injuries inflicted. 3. When the person injured (a) becomes deformed, or (b) loses other member of his body, or (c) loses the use thereof, or (d) becomes ill or incapacitated for the performance of the work in which he was habitually engaged for more than 90 days, in consequence of the physical injuries inflicted. 4. When the injured person becomes ill or incapacitated for labor for more than 30 days (but not be more than 90 days) as a result of the physical injuries inflicted. -In serious physical injuries there must be no intention to kill, otherwise, it will either be frustrated or attempted homicide, as the case may be. - The penalty for Article 262, paragraph I shall be reclusion perpetua if the victim is under 12 years of age. (Sec. 10, RA 7610). - It must be loss of power to hear of both ear to apply par. 2, otherwise if only one ear, par. 3 shall apply. - In order to sustain conviction under par. 2 of Art. 262, the prosecution must prove that the offended party cannot make use of his hands permanently; otherwise, accused is guilty under par. 3 thereof. (Pp. vs. Reli, CA, 53 OG 5695). - Par. 2 refers to principal members of the body. The arm is principal member of the body. (U.S. vs. Camacho, 8 Phil. 142). If the left arm becomes permanently maimed, the crime is serious physical injuries. (Pp. vs. Sto. Tomas, 138 SCRA 206). - Par. 3 covers any member which is not principal member of the body. Meaning, any member of the body which is not principal is covered by par. 3. (Pp. vs. Balubar, 23 Phil. 375).

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- Loss of “power to hear” must involve two ears; otherwise he has not lost poser to hear, but “lost the use of any part of his body”. (Pp. vs. Hernandez, 9 Phil. 49). -Medical attendance is not required in serious physical injuries, only illness or incapacity for labor. (Pp. vs. Obia, CA, 45 OG 2568). - Loss of one tooth which impaired appearance is deformity covered by par. 3, Art. 263. And front tooth is a member of the body other than the principal member of the body. (Pp. vs. Balubar, 60 Phil. 707).

For other physical injuries, just read them.

Republic Act. 9262 Anti-Violence Act Against Women and Their Children Act of 2004 March 8, 2004. “Violence against women and their children” refers to any act or a series of acts committed by any person against a woman who is his wife, former wife, or against a woman with whom

the person has or had a sexual or dating

relationship, or with whom he has a common child, or against his child whether legitimate or illegitimate, within nor without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty. It includes, but is not limited to, the following acts: a) Physical violence; b) Sexual violence; c) Psychological violence; and economic abuse. (Read further the law).

Chapter Three RAPE Art. 266-A. RAPE Elements of Rape under Par. 1 1) That the offender is a man; 2) That the offender has carnal knowledge of a woman. 3) That such act is accomplished under any of the following circumstances: (a) By using force or intimidation; or (b) When the woman is deprived of reason or otherwise unconscious; or (c) By means of fraudulent machination or grave abuse of authority; or (d) When the woman is under 12 years of age or demented. Elements of rape under par. 2 1) That the offender commits an act of sexual assault; 2) That the act of sexual assault is committed by any of the following means: (a) By inserting his penis into another person’s mouth or anal orifice; or (b) By inserting any instrument or object into the genital or anal orifice of another person; 3) That the act of sexual assault is accomplished under any of the following circumstances: (a) By using force or intimidation; (b) When the woman is deprived of reason or otherwise unconscious; or (c) By means of fraudulent machination or grave abuse of authority; or (d) When the woman is under 12 years of age. - Labia majora must be entered for rape to be consummated, and not merely for the penis to stroke the surface of the female organ. Thus, the grazing of the surface of the female organ or touching the mons pubis of the pudendum is not

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sufficient to constitute consummated rape. Absent any showing of the slightest penetration of the female organ, i.e., touching of either labia of the pudendum by the penis, there can be no consummated rape; at most, it can only be attempted rape if not acts of lasciviousness. (Pp. vs. Campuhan, G.R. No. 129433, March 30, 2000). - Finger is within the expanded definition of rape under RA No. 8353 (par. 2 of Art. 266-B). Obana vs. Hon. Soriano, CA-GR SP No. 60353, Aug. 29, 2001 and Pp. vs. Soriano, GR No. 142779-95, Aug. 29, 2002, 388 SCRA 140. Rules on force and intimidation: - A verbal refusal alone will not do. There must be physical struggle, taxing her power to the utmost. Thus, the mere initial resistance of the offended party in a rape case is not manifest and tenacious resistance that the law requires. (Pp. vs. Lago, CA, 45 OG 1356). - When the girl defended herself against the accused as long as she could, but he overpowered her and held her till her strength gave out, and then accomplished his purpose, there is evidence of sufficient force. (Pp. vs. Momo. 56 Phil. 86). The force need not be irresistible. It need not be present and so long as it brings the desired result, all consideration of whether it was more or less resistible is beside the point. (supra). - The force or violence necessary in rape is naturally a relative term, depending on the age, size and the strength of the parties and their relation to each other. (Pp. vs. Savellano, 57 SCRA 320). - Where resistance would be futile, offering none at all does not amount to consent to sexual assault. It is not necessary that the victim could have resisted to death or sustained physical injuries in the hands of the rapist. It is enough if sexual intercourse takes place against her will or if she yielded because of the genuine apprehension of harm to her if she did not do so. (Pp. vs. Las Penas, Jr. GR No. 133444, Feb. 20,2002). Indeed, the law does not impose upon a rape victim the burden of proving resistance. (Pp. vs. Sending, GR No. 141773-76, Jan. 20, 2003). - Intimidation must be viewed in the light of the victim’s perception and judgment at the time of rape and not by any hard and fast rule. It is enough that it produces fear – fear that if the victim does not yield to the bestial demands of the accused, something would happen to her at the moment or thereafter, as she when she is threatened with death if she reports the incident. ( Pp. vs. Tabugoca, 285 SCRA 312, 332 [199]). - Moral ascendance or influence is held to substitute for the element of physical force or intimidation. This rule was applied by the Supreme Court in the following cases: a) fathers against daughters (Pp. vs. Bazona, GR No. 133343-44, March 2, 2000; Pp. vs. Maglente, 306 SCRA 546, [1991]; Pp. vs. Panique, 316 SCRA 757 [1999]); b) step fathers against stepdaughters (Pp. vs. Vitor, 245 SCRA 392, [1995]; Pp. vs. Robles, 170 SCRA 557 [1989]) c) Godfathers against Goddaughters ( Pp. vs Casil, 241 SCRA 285 [1995] ). d) uncles against their nieces (Pp. vs. Betonio, 279 SCRA 532 [1997]); and e) the first cousin of the victim’s mother. (Pp. vs. Perez, 307 SCRA 276 [1999], Pp. vs. Dichoson, GR No. 11896-89, Feb. 19, 2001).

Chapter One CRIMES AGAINST LIBERTY Art. 267. Kidnapping and serious illegal detention. Elements: 1. The offender is a private individual. 2. That he kidnaps or detains another, or in any other manner deprives the latter of his liberty. 3. That in the commission of the offense, any of the following circumstances is present: a) That the kidnapping or detention lasts for more than 3 days; b) That it is committed simulating authority; c) That any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or

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d) That the person kidnapped or detained is a minor, female, or a public officer. - The offender under this article must be a private individual. If the offender is a public officer, the crime committed is arbitrary detention. - But if the public officer has no duty under the law to detain a person, such as a policemen, and he detains another, he is liable under this article. - Intention to deprive the victim of his liberty is essential in the crime of kidnapping. Case: The accused approached, took hold of, and dragged M, striking the latter with the butt of his rifle. The companions of M were told to continue on their way. Hardly had they walked one kilometer when they heard a gun report. M was found dead the following day with gun shot wound. Held: There was no evidence sufficient to prove to kidnap. The interval of time was so short tic include the presence of intention to detain. Her short detention was part of the perpetration of the crime of murder. (Pp. vs. Remalante, 92 Phil. 48; Pp. vs. Sacayanan, GR Nos. L-15024-25, Dec. 31, 1960). - Lack of motive to resort to kidnapping, no liability under this article. Case: Where the agents of the constabulary took the supposed victim from his house to make him answer for the murder of those persons who had disappeared, there was lack of motive to resort to kidnapping. Such agents are not liable for kidnapping. (Pp. vs. Soriano, et al., 51 OG 4513). -It is essential in the crime of illegal detention that there be actual confinement or restriction of the person of the offended party. (U.S. vs. Cabanag, 8 Phil. 64). Thus, if the alleged victim had freedom to leave the premises where she was allegedly confined, the crime of illegal detention cannot rise because she was not deprived of her liberty. (See U.S. vs. Quevenco, 2 Phil. 412, U.S. vs. Herrera, et al., 3 Phil. 515). Case: Where the offended party, although ordered not to go out of the agency or peeped out of the window. But there is no evidence that the door of the agency was closed to prevent her from going out had she wanted to. There is no evidenced that the accused conspired to instill fear in her mind to compel or force her to remain in the agency. Held: There is no illegal detention, because the element of detention or locking up is lacking. (Pp. vs. Ching Suy Siong, et al., GR No. L-6174, Feb. 28, 1955). -Leaving a child in a house of another, where he had freedom of locomotion but not the freedom to leave at will, deprive him of liberty. Because of the tender age and the fact that he did not know the way back home, he was then and there in a way deprived of his liberty. (Pp. vs. Acosta, et al., 60 OG 6999). - But the fact that the owners of a sugarcane plantation locked up in the lobby of their house a boy who had stolen some sugar canes from the plantation from 9:00 a.m. to 5:00 p.m, without giving him anything to eat does not constitute the crime of illegal detention. (Pp. vs. Tamorro, GR No. 25373, June 11, 1925). She was found guilty of light coercion. -When the kidnapping is for the purpose of extorting ransom, it is not necessary that any of the circumstances enumerated in the first paragraph enumerated in the first paragraph of Art. 267 be present. -Restraint by robbers to delay or prevent assistance being rendered by the authorities is not illegal detention. (U.S. vs. Sol, 9 Phil. 265). -Where the victim is taken from one place to another solely for the purpose of killing him, the crime committed is murder. (Pp. vs. Camo, et al., 91 Phil. 240). - If the primary and ultimate purpose of the accused is to kill the victim, the incidental deprivation of the victim’ s liberty does not constitute the felony of kidnapping but is merely a preparatory act to the killing, and hence, is merged into, or absorbed by, the killing of the victim. The crime committed would either be homicide or murder. (Pp. vs. Delim, GR No. 142773, January 28, 2003). - The maximum penalty is imposed which is death1) The purpose of kidnapping or detention is to extort ransom; 2) When the victim is killed or dies as a consequence of the detention; 3) When the victim is raped; 4) When the victim is subjected to torture or dehumanizing acts. (Note: RA 9346 prohibits the imposition of the death penalty).

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Art. 268. Slight illegal detention. Elements: 1) That the offender is a private individual. 2) That he kidnaps or detains another, or in any other manner deprives him of his liberty. 3) The act of kidnapping or detention is illegal. 4) That the crime is committed without the attendance of any of the circumstances enumerated in Art. 267. - If the offender (a) voluntarily releases the person so kidnapped or detained within three days from the commencement of the detention, (b) without having attained the purpose intended, and (c) before the institution of criminal proceedings against him, his liability is mitigated. In effect, it is a privileged mitigating circumstance because the penalty is lower by one degree. But to impose the lesser penalty, it must be shown by the offender that he was in a position to prolong the detention for more than three days and yet he released the person within that time.

Art. 280. Qualified trespass to dwelling. Elements: 1. That the offender is a private person. 2. That he enters the dwelling of another 3. That such entrance is against the latter’s will. -The offense is qualified if committed by means of violence or intimidation. -Dwelling place, as used in this article, means any building or structure exclusively devoted for rest and comfort, as distinguished from places devoted to business, offices, etc. - A store of cheap goods, which was also the dwelling place of the owner thereof, was considered a dwelling . (Pp. vs. Lamahang, 61 Phil. 703). - Where the accused is living in the same house with the victim whose room the accused entered is part, the room is dwelling under this article. (U.S. vs. Silvano, 31 Phil. 510). -“Against the will” should be distinguished from “lack of consent from the dweller”. A mere absence of dweller’s consent is not enough to constitute the crime of trespass to dwelling. To commit trespass, the entrance of the accused should be against the presumed or express prohibition of the occupant, and lack of permission should not be confused with prohibition. (Pp. De Peralta, 42 Phil. 69) - Lack of permission does not amount to prohibition.(supra). - But it is well settled that whoever enters the dwelling of another at the late hour of the night after the inmates have retired and close their doors does so against their will. Under this circumstances an express prohibition is not necessary, as it is presumed. (U.S. vs. Mesina, 21 Phil. 615; U.S. vs. Panes, 25 Phil, 292). Passing through the window, even if the same is open, there is implied prohibition when entrance is made through means not intended for ingress. (Pp. vs. Marcial, CA 50 O.G. 3122). Cases of trespass by means of violence (qualifying) 1. Pushing the door violently and maltreating the occupants after entering. (Pp. vs. Paray, 17 Phil. 378). 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. (U.S. vs. Lindio, 10 Phil. 192). 3. Wounding by means of a bolo, the owner of the house immediately after entrance. (U.S. vs Arceo, et al., 3 Phil. 381). By means of intimidation: 1. Firing a revolver in the air by persons attempting to force their way into a house. (U.S. vs. Ostrea, 10 Phil. 93). 2. The flourishing of a bolo against the inmates of the house upon gaining entrance. (U.S. vs. Lindio, 10 Phil. 192). - Trespass to dwelling may be committed by the owner of the dwelling against the actual occupant of the house. (Pp. vs. Almeda, et al., 75 Phil. 476).

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Case: The accused entered the dwelling of a captain by forcing his way through the window. When found inside by the occupants who tried to arrest him, the accused resisted arrest and stabbed the son of the captain, inflicting a mortal wound. In his effort to escape, he also assaulted the captain, his wife and daughter. Held: the crime committed by the accused are trespass to dwelling, through violence, frustrated homicide and less serious physical injuries. (Pp. vs. Medina, 59 Phil. 134). Note: If the purpose of the accused was to kill the person injured, it would be frustrated homicide only, the dwelling would be an aggravating circumstance.

Art. 282. Grave Threats. Acts punished as grave threats: 1. By threatening another with the infliction upon his person, honor or property or that of his family of any wrong amounting to a crime and demanding money or imposing any other condition, even though not unlawful, and the offender attained his purpose. 2. By making such threat without the offender attaining his purpose. 3. By 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. -The crime of grave threats is consummated as soon as threats come to the knowledge of the person threatened. (Pp. vs. Villanueva, et al., 48 OG 1376). - Threats made in connection with the commission of other crimes, are absorbed by the latter. Thus, where the defendants struck the offended party, saying at the same time that he would kill them if they would not return to him the jewelry which they had lost, it was held that the threat is part of the assault. The defendant was convicted of maltreatment. (U.S. vs. Sevilla, 1 Phil. 143). Case: Accused after kissing, embracing and touching the private parts of the woman who was resisting, threatened that if she would not accede, her husband would be killed by his companion who was guarding him. The crime committed is acts of lasciviousness. (Pp. vs. Timbol, CA, 47 OG 1868).

Art. 286. Grave Coercion Two ways of committing grave coercions. 1. By preventing another, by means of violence, threats or intimidation, from doing something not prohibited by law. 2. By compelling another, by means of violence, threats or intimidation, to do something against his will, whether it be right or wrong. Elements: 1. That a person prevented another from doing something not prohibited by law, or that he compelled him to do something against his will, be it right or wrong; 2. That the prevention or compulsion be effected by violence, threats or intimidation; and 3. That the person that restrained the will and liberty of another had not the authority of the law or the right to do so, in other words that the restraint shall not be made under the authority of law or in the exercise of any lawful right. (Timoner vs. People, 125 SCRA 830). - In grave coercion, the act of preventing by force must be made at the time the offended party was doing or about to do the act to be prevented. If the act was already done when violence is exerted the crime is unjust vexation, as when the offender who was told earlier by the accused not to go to work, but the former proceeded to work on the next day, and in the afternoon of that day the accused exerted violence on him, the crime committed is only unjust vexation. (Pp. vs. Madrid, CA OG 711). -There are acts of prevention or compelling which violate another crime: A public officer who shall prevent by means of violence or threats the ceremonies or manifestation of any religion is guilty of interruption of religious worship. (Art. 132)

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Any person who, by force, prevents the meeting of a legislative body is liable under Art. 143. Any person who shall use force or intimidation to prevent any member of Congress from attending the meetings thereof, expressing his opinions, or casting his votes is liable under Art. 145. A public officer, who not being authorized bylaw, compels a person to change his residence is liable for expulsion under Art. 127, not for coercion. Kidnapping the debtor to compel him to pay his debt is not only coercion, but kidnapping for ransom, because in effect, there is a demand for payment that release from captivity. (Art. 267). - Compelling another to do something includes the offender’s act of doing it himself while subjecting another to his will, as when the accused who tried to cross a private bridge which was closed, and was prevented by the caretaker, and the accused open the bridge, grabbed and pushed the care taker who fell to the ground, and one of the accused pulled a revolver ready to shoot, the crime committed is grave coercion. (Pp. vs. Juan, et al., CA 36 OG 3277). - Compelling another by means of violence, who is in actual possession of a thing, even if he has no right to such possession, and even by the owner himself, is grave coercion. (U.S. vs. Mena, 11 Phil. 543). - The taxi driver who threatened to bump his car to kill himself and his female passenger if she would not go with him to the night club is guilty of grave coercion, even if he did not succeed as the female passenger jumped out of the taxi. The intimidation that he would bumped the car is equivalent to violence because it was intended to control the will of the offended party. (Pp. vs. Rimando, CA, 56 OG, 1687). Unjust vexation – other light coercion (Art. 287, par. 2) Unjust vexation includes any human conduct which, although not productive of some physical or material harm would, however, unjustly annoy or vex an innocent person. The paramount consideration whether the offender’s act caused annoyance, irritation, vexation, torment, distress or disturbance to the mind of the person to whom it is directed. (Pp. vs. Gozum, CA, 54 OG 7409). - A man who kissed a girl and held her tightly to his breast is guilty of unjust vexation. (Pp. vs. Climaco, CA 46 OG 3186). - But if the conduct of the accused is lascivious, then he will be guilty of acts of lasciviousness. (Pp. vs. Anunuevo, CA 36 OG 2018).

Chapter One ROBBERY IN GENERAL

Art. 293. Who are guilty of robbery. Robbery is the taking of property belonging to another, with intent to gain, by means of violence against, or intimidation of any person, or using force upon thing. Classification of robbery. 1. Robbery with violence against, or intimidation of person (Art. 294, 297 and 298) 2. Robbery by the use of force upon things. (Art. 299 and 302). Elements of robbery in general: 1. That there be (a) a personal property; (2) belonging to another; 2. That there is (3) unlawful taking of that property; 3. That the taking must be (4) with intent to gain; and 4. That there is violence or against or intimidation of any person, or force upon thing. - prohibitive articles may be the subject matter of robbery, such as opium. (U.S. vs. Sana Lim, 28 Phil. 404). Case: While the information alleged that the property taken belonged to Roman Estriba, the proof showed that the person robbed was Juan Seran. For lack of conformity between the allegation and proof respecting the ownership of the property, it was held that it is hard to convict the accused of robbery. The accused are convicted of four separate homicides. (U.S. vs Lahoylahoy, 38 Phil. 330).

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- It would seem then, that if the crime charged is robbery with homicide, in view of the capital punishment attached to it, the name of the owner of the thing is a matter of essential description of the crime. Thus, if the intimidation or violence resulted only in physical injuries, or for robbery by the use of force upon things, the name of the real owner is not essential so long as the property does not belong to the accused. - Robbery with force upon things, is consummated if the thing is taken out of the building. Thus, when the accused who had already broken the floor of the bodega, had entered it and removed one sack of sugar from the pile, but was caught in the act of taking out the sack of sugar through the opening of the floor, it was frustrated robbery only. (Pp. vs. Del Rosario, CA, 46 OG 4332). Intent to gain- is presumed from the unlawful taking of personal property. (See Pp. vs. Sia Teb Ban, 54 Phil. 52). - The taking of personal property belonging to another should not be under claim of ownership. One who takes property openly and avowedly under claim of title proffered in good faith is not guilty of robbery even though the claim of ownership is untenable. (U.S. vs. Manluco, et al., 28 Phil. 360). - The violence or intimidation need not be present from the very beginning. It is enough that the same is present before the taking is complete. Thus, when the accused was about to take the money of the offended party, one of them struck the latter in the mouth when they were discovered. Held: the crime committed is robbery with violence. (Pp. vs Campa, CA 37 OG 1482; US vs. Nueca, 7 Phil. 511). - The taking of the property need not be immediately after the intimidation. Thus, when the accused intimidated the offended party that he will be deported out of the country for trying to send a letter outside the country, which the offended party thought was wrong; but if he will gave an amount of P2,000, the case will be dropped, which prompted the offended party to secure money from someone and gave it to the accused, robbery by means of intimidation was committed. (Pp. vs Chiong, CA 69 OG 8671). Note: If the property taken is a motor vehicle, RA 6539 is committed, known as carnapping. Art. 294. Robbery with violence against or intimidation of persons- penalties. -The crime defined in this article is a special complex crime. - Where the original design comprehends robbery, and homicide is perpetrated by reason or on occasion of the consummation of the former, the crime committed is robbery with homicide. (Pp. vs. Salazar, 277 SCRA 67 [1997]). - If the original design is not to commit robbery, but the robbery was committed as an afterthought and a minor incident in the homicide, the criminal acts should be viewed as two distinct offenses. (Pp. vs. Toleng, 91 SCRA 382). - Where injuries were committed apart from robbery and homicide, the crime is only robbery with homicide, physical injuries being absorbed by the former. (Pp. vs. Veloso, 112 SCRA 173). - Homicide may precede the robbery or may occur after the robeery, the crime is robbery with homicide, so long as the intention to take personal property preceded the killing. (U.S. vs. Ibanez, 19 Phil. 463). - There is Robbery with homicide if the latter was committed to defend possession of the stolen goods. Thus, where the accused were coming out of the store and were carrying away the stolen goods, the deceased stopped and attacked them, then, two or three of the offenders returned the attack and killed the deceased. (Pp. vs. Salamuden, 52 Phil. 670). - Robbery with homicide is committed even if the person killed is a robber himself. The law does not require that the person killed is the owner of the property. - There is robbery with homicide even if the person killed is an innocent bystander and not the person robbed. (Pp. vs. Disimban, 88 Phil. 120). - the law does not require that the victim of the robbery be also the victim of homicide. Pp. vs. Barut, 89 SCRA 16). -there is robbery with homicide even if the killing of a person is by mere accident. (Pp. vs. Mangulabnan, et al.,99 Phil. 992) -Robbery with homicide is committed even if the killing is not the place of the robbery if there is intention to rob the victim and his shooting was to eliminate the obstacle to consummate the criminal design. (Pp. vs. Libre, 93 Phil. 5).

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- There is no crime of robbery with murder. Thus, the qualifying circumstance of murder, such as treachery cannot qualify the killing to murder, but merely a generic aggravating circumstance in robbery with homicide. (Pp. vs. Abang, GR No. L-14623, Dec. 29, 1960). Robbery with rape. - Even if the rape was committed in another place, it is still robbery with rape. Thus, after the robbery, the accused compelled the women to go with them and while on their way to where their bancas were hidden, and by force and intimidation raped them. Robbery with rape was committed. (U.S. vs. Tiongco, et al., 37 Phil. 951). -If the primary intention of the accused was to take personal property, even if the rape took place before the taking of the property, the crime committed is robbery with rape. (Pp. vs. Canastre, 82 Phil. 482). - There is no such crime as robbery with attempted rape. (See. Pp. vs. Cariaga, 54 OG 4307). Robbery with serious physical injuries under Art. 263, par. 2 ( Art. 294, par. 3) Case: the accused assaulted the victim and robbed him of P 17.00. The victim lost the hearing of one ear, as a result of the blows he received from the accused. Held: the accused is guilty of robbery under Art. 294, par. 3, the physical injuries inflicted being covered by Art. 263, par. 2. (Pp. vs. Luncay, 49 Phil. 4640. Robbery with unnecessary violence and intimidation (Art. 294, par. 4) Case: Tying a victim after wounding him and leaving him tied to the trunk of a tree on the craggy ground after taking his money constitutes unnecessary violence and intimidation referred to in par. 4, of Art. 294. (Pp. vs. Manzanilla, et al., 43 Phil. 167). Robbery with the use of violence against or intimiation of any person under par. 5 of Art. 294. -The robbery under this paragraph is known as simple robbery, because the use of violence against any person does not result in homicide, rape, intentional mutilation, or any of the serious physical injuries defined under Art. 263, which may five rise to special complex crime. - If the injury inflicted upon the offended party on the occasion of robbery can be qualified only as less serious physical injuries (U.S. vs. Barroga, 21 Phil.161), or slight physical injuries, (Pp, vs. Mandia, 60 Phil. 372), the crime is that defined and penalized in par. 5 of Art. 294. - Snatching money from the hands of the victim and pushing her to prevent her from recovering the seized property covered by par. 5. (U.S. vs. Santos, 8 Phil. 286). - Grabbing pawn ticket from the hands of another an intimidating him. (U.S. vs. Blanco, 10 Phil. 298)

Art. 295. Robbery with physical injuries, committed in an uninhabited place and by a band, or with the use of firearms on a street, road or alley. -This article applies if any of the offenses defined in subsection 3,4 and 5 of Art. 294 is committed – 1) in an uninhabited place, or 2) by a band, or 3) by attacking a moving train, street car, motor vehicle or airship, or 4) be entering the passengers’ compartments in a train, or in any manner taking the passengers’ thereof by surprise in the respective conveyances, or 5) on a street, road, highway, or alley, and the intimidation is made with the use of firearms, the offender shall be punished by the maximum periods of the proper penalties prescribed under Art. 294. -Meaning, this article does not apply to robbery with homicide, or robbery with rape, or robbery with serious physical injuries under par. 1 of Art. 294. Thus, if robbery with homicide was committed by attacking a motor vehicle or moving train, or on a street, etc., the penalty under subdivision 1 of Art. 294 shall not apply (moving train, etc, not being qualifying circumstance). But if there is no mitigating circumstance to offset the same, the maximum penalty shall be applied as they will be treated as generic aggravating circumstances under Art. 14. (See Pp. vs. Salip Manla, 30 SCRA 389; Pp. vs. Damaso, 86 SCRA 370).

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Art. 296. Definition of a band and penalty incurred by the members thereof. Art. 297. Attempted and frustrated robbery committed under certain circumstances. -The term “homicide” in this article is used in its generic sense (Pp. vs. Manuel, 44 Phil. 333).Hence, it include, multiple homicides, murder, parricide, or even infanticide. The penalty is reclusion temporal in its maximum period to reclusion perpetua. Art. 299. Robbery in an inhabited place or public building or edifice devoted to worship. -“Inhabited house” is any shelter, ship or vessel constituting dwelling of one or more persons even though the inhabitants thereof are temporarily absent therefrom when the robbery was committed. (Art. 301). - “Public building” is 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. 301). Thus, it the building has already been delivered by the contractor to the government, the same is public building as the state has already title over it. (Pp. vs. Cosntantino, 46 Phil. 745).

Art. 301. What is an inhabited house, public building, or building dedicated to religious worship and their dependencies. Art. 302. Robbery in an uninhabited place or in a private building. Art. 308. Theft. - What distinguishes theft from robbery is that in theft, the offender does not use violence or intimidation or does not enter any house or building through any of the means specified in Art. 299 or Art. 302 in taking the personal property of another with intent to gain. -“intent to gain” is presumed in any unlawful taking of personal property belonging to another. - But if a person takes personal property from another believing it to be his own, the presumption of intent to gain is rebutted and, therefore, he is not guilty of theft. (U.S. vs. Viera, 1 Phil. 584). - One who takes personal property openly and avowedly under claim of title made in good faith is not guilty of theft even though the claim of ownership ia later found to be untenable. (Pp. vs. Lozada, CA-Gr No. 3147-R,, Dec. 21, 1949). -Joy ride or using a car of another to learn how to drive is “sufficient gain”. Satisfaction, enjoyment and pleasure are real gain. (Pp. vs. Fernandez, CA, 38 OG 985). -Theft is committed even if the accused did not take the property for his own use but gave it to another person. (Pp. vs. Santos, CA, 38 OG 985). Art. 310. Qualified theft. - Theft by a domestic helper is always qualified. It is not necessary to show that he committed the crime with abuse of confidence. (Pp. vs. Evangelista, 70 Phil. 122). - Use of safe combination learned by confidential clerk is a grave abuse of confidence. Hence, qualified theft. (Pp. vs. Valdellon, 46 Phil. 245).

Art. 3115 SWINDLING (estafa). -Estafa is classified into three different forms according to the means by the fraud is committed1) with unfaithfulness or abuse of confidence; 2) by means of false pretense or fraudulent acts; or 3) through fraudulent means. - Deceit is not an essential requisite of estafa with abuse of confidence. (U.S. vs. Pascual, 10 Phil. 621). - Money misappropriated must have been received by the defendant transferring juridical possession to him. If he takes it from another it will be theft. -juridical possession means a possession which gives the transferee a right over the thing which the transferee may set up against the owner.

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Ex: Renting the truck of another for a consideration for the use of the borrower within a certain period as agreed, the possession id juridical. (Pp. vs. Noveno, et al. 46 OG 1637). -There is estafa if the offender misappropriates the thing received by him in trust, on commission or for administration. (Pp. Carulasdulasan, et al., 95 Phil. 8).

LIBEL Art. 353. Definition of libel. - Imputation of a criminal intention is not libelous because intent to commit a crime is not libelous. This is more so, when it is a mere assertion or expression of opinion as to what will be the future conduct of another. (Pp. vs. Baja, CA 40 OG, Supp. 5, 2006). - An expression of opinion by one affected by the act of another and based on actual fact is not libelous. Thus, an expression of opinion that a person is unfair or partial in the distribution of her property, where it appears that the defendant has been deprived of her share is not libelous. (Pp. vs. Baja, supra). -“Malice in law”- is presumed from a defamatory imputation. Proof of malice is no longer required because it is presumed to exist from the defamatory imputation. But this principle does not apply where the communication is privileged under Art. 354. Hence, malice as a fact must be proved. (U.S. vs. Bustos, 37 Phil. 731). -“malice in fact” may be shown by proof of ill-will, hatred or purpose to injure. - Defamatory statements

on two or more persons contained in one writing and published by a single act

constitutes but one offense so as to warrant single indictment therefore. (Pp. vs. Aquino, 35 OG 8844). -Publication is the communication of the defamatory matter to some third person or persons. (Pp. vs. Atencion, CA-Gr Nos. 11351-R to 11353-R, Dec. 14, 1954). -Delivery of the article to the typesetter is sufficient publication. (U.S. vs. Crame, 10 Phil. 135). -Sending a letter not shown to have been sealed to the offended party charging the latter with having illicit relationship with her husband is publication. (Pp. vs. Silvela, 103 Phil. 773).

Art. 354 requirement for publicity. -Malice is not presumed in the following (privileged): 1. A private communication made by any person to another in the performance of any legal, moral or social duty (Art. 354, No. 1). 2. A fair and true report made in good faith, without any comments or remarks, of any judicial, legislative, or other official proceedings which are not confidential in nature, or of any statement, report, or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions. (Art. 354, No. 2). -But unnecessary publicity destroys good faith. (Pp. vs. Cruz, 40 OG Supp. 11, 15).