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From some Reyes, mostly Boado, Justice Callejo’s lectures, Rosie (02-03) elements table and Glenn Tuazon’s Tuazon’s brilliant notes! Good luck! Have fun! And be sure to take breaks! breaks! (No stamping please!)
BOOK TWO CRIMES AND PENALTIES Title One CRIMES AGAINST NATIONAL SECURITY AND THE LAW OF NATIONS Chapter One CRIMES AGAINST NATIONAL SECURITY Section One. — Treason and espionage Art. 114. Treason. Treason . — Any person who, owing allegiance to (the United States or) the Government of the Philippine Islands, not being a foreigner, levies war against them or adheres to their enemies, giving them aid or comfort within the Philippine Islands or elsewhere, shall be punished by reclusion temporal to death and shall pay a fine not to exceed P20,000 pesos. No person shall be convicted of treason unless on the testimony of two witnesses at least to the same overt act or on confession of the accused in open court. Likewise, an alien, residing in the Philippine Islands, who commits acts of treason as defined in paragraph 1 of this Article shall be punished by prision mayor to death and shall pay a fine not to exceed P20,000 pesos. (As amended by E.O. No. 44, May 31, 1945). •
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Elements: Offender is a Filipino citizen or an alien residing in the Philippines o There is a war in which the Philippines is involved o The offender either o Levies war against the government, or Adheres to the enemies, giving them aid or comfort Who may be liable for treason? Filipinos, where ever they may be o Aliens, who reside here, even temporarily (codal and Laurel v Misa) o How come? come? Becaus Because e of allegi allegianc ance e to the country, country, whethe whetherr tempora temporary ry (alien (aliens) s) or permanent (Filipinos) Allegiance: obligation for fidelity and obedience which the individual owes to his government or to his sovereign in return for the protection which he receives Are dual citizens liable for treason? Yes. Dual citizenship is not a defense. There must have been a prior (to the treasonous act) renunciation of citizenship to serve as a valid defense to treason. (D’Aquino v US, Kawakita v US). So if you’re a Filipino-Malaysian who helps Malaysians during a war between the Philippines and Malaysia, you’ll be liable for treason. Relate to Art 2 (extra-territoriality principle) Two modes of committing treason: Levying war against the Philippines o Adhering to the enemy, by giving aid or comfort within the Philippines or elsewhere o First mode: levying war against the Philippines Means an assemblage of armed men committing acts of violence for the purpose of overthrowing o the government Mere conspiracy is not enough There must be actual assemblage of men for the purpose of executing the treasonous design by force No need to be with high-powered guns, enough that they constitute enough men to overthrow the government (hence, the number is the determining factor) The capability to overthrow is NOT important, the probability is immaterial No need for the act to be consummated, meaning, no need for the government to be actually overthrown. •
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Second mode: adhering to the enemy, giving them aid or comfort within the Philippines or elsewhere Must have adhered to the enemy AND enemy AND given them aid or comfort o Both must concur. He must translate his “adherence” to overt acts. The requirement of the overt act of giving aid or comfort is to make sure that the crime of treason has moved from the realm of through to the realm of action. Enemy here is a foreign power, foreign country. o Cannot refer to rebels under Art 135. “Adhering” – emotionally or intellectually favors the enemy, harbors sympathies disloyal to his o own country This mental act need not be testified to by 2 witnesses Overt acts enough even if it did not succeed in helping the enemy o The overt act must be testified to by 2 witnesses As long as you performed an overt act, there is treason already. o No accomplices or accessories in treason. So if you hide traitors or helped them by giving arms, there is treason already. Treason differs from other crimes because all persons are regarded as principals. Even those playing a small part are considered principals. (Corpus Juris) o Treason is delito continuado. continuado. It contemplates a series of acts committed over time, but only instigated by a single criminal o resolution. Either a single act, or a series of acts impelled by one criminal intent. Treason is a specific intent crime. It can only be done by dolo. o The specific intent is to deliver the country to the enemy. o If you don’t intend to deliver the country to an enemy, then it’s mere rebellion. Treason is a war crime. It cannot be committed during time of peace. o It may be incubated during peace, but once a war commences, treason may blossom into a o crime. Only then will it be considered treason. No need for a declaration of state of war. As long as there is actual war going on. o NO complex crime of treason with rape, murder, etc. Treason is a POLITICAL crime and thus absorbs these other component acts. o These crimes are essential elements of treason, without these, treason could not be committed. o On the two-witness rule Not an element of the crime, but a REQUIREMENT to prosecute. o No person shall be convicted convicted of treason treason unless on the testimony testimony of two witnesses witnesses to the SAME o overt act. If the overt act is separable, two witnesses must also testify to each part of the overt act for conviction. (P v Adriano) In these cases, no need to prove the entire composite act, enough to have the witnesses prove each component. (P v Deguyo) The two witness rule is the only provision in the RPC that is based on the US Constitution and o not borrowed from Spain. The purpose is to prevent the possible fabrication of evidence to p rosecute a person. o The two witnesses must be credible. Just because there are two witnesses testifying doesn’t o mean that sure conviction, they must be credible. What if there were no witnesses, is there any other way to convict one for treason? Yes. If he confesses in OPEN COURT. o Extra-judicial confessions NOT enough. Treasonous or not? Acceptance of public office/duties in de facto government during occupation: NOT treason o Unless you do other acts to show sympathy to the enemy Getting women to satisfy sexual urges of enemy soldiers: NOT treason (P v Perez, Lozano) o J-Call DISAGREES. This should fall under aid and comfort. Being part of the Philippine constabulary during enemy occupation: NOT treason (P v Recode, o since not aid or comfort) •
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Second mode: adhering to the enemy, giving them aid or comfort within the Philippines or elsewhere Must have adhered to the enemy AND enemy AND given them aid or comfort o Both must concur. He must translate his “adherence” to overt acts. The requirement of the overt act of giving aid or comfort is to make sure that the crime of treason has moved from the realm of through to the realm of action. Enemy here is a foreign power, foreign country. o Cannot refer to rebels under Art 135. “Adhering” – emotionally or intellectually favors the enemy, harbors sympathies disloyal to his o own country This mental act need not be testified to by 2 witnesses Overt acts enough even if it did not succeed in helping the enemy o The overt act must be testified to by 2 witnesses As long as you performed an overt act, there is treason already. o No accomplices or accessories in treason. So if you hide traitors or helped them by giving arms, there is treason already. Treason differs from other crimes because all persons are regarded as principals. Even those playing a small part are considered principals. (Corpus Juris) o Treason is delito continuado. continuado. It contemplates a series of acts committed over time, but only instigated by a single criminal o resolution. Either a single act, or a series of acts impelled by one criminal intent. Treason is a specific intent crime. It can only be done by dolo. o The specific intent is to deliver the country to the enemy. o If you don’t intend to deliver the country to an enemy, then it’s mere rebellion. Treason is a war crime. It cannot be committed during time of peace. o It may be incubated during peace, but once a war commences, treason may blossom into a o crime. Only then will it be considered treason. No need for a declaration of state of war. As long as there is actual war going on. o NO complex crime of treason with rape, murder, etc. Treason is a POLITICAL crime and thus absorbs these other component acts. o These crimes are essential elements of treason, without these, treason could not be committed. o On the two-witness rule Not an element of the crime, but a REQUIREMENT to prosecute. o No person shall be convicted convicted of treason treason unless on the testimony testimony of two witnesses witnesses to the SAME o overt act. If the overt act is separable, two witnesses must also testify to each part of the overt act for conviction. (P v Adriano) In these cases, no need to prove the entire composite act, enough to have the witnesses prove each component. (P v Deguyo) The two witness rule is the only provision in the RPC that is based on the US Constitution and o not borrowed from Spain. The purpose is to prevent the possible fabrication of evidence to p rosecute a person. o The two witnesses must be credible. Just because there are two witnesses testifying doesn’t o mean that sure conviction, they must be credible. What if there were no witnesses, is there any other way to convict one for treason? Yes. If he confesses in OPEN COURT. o Extra-judicial confessions NOT enough. Treasonous or not? Acceptance of public office/duties in de facto government during occupation: NOT treason o Unless you do other acts to show sympathy to the enemy Getting women to satisfy sexual urges of enemy soldiers: NOT treason (P v Perez, Lozano) o J-Call DISAGREES. This should fall under aid and comfort. Being part of the Philippine constabulary during enemy occupation: NOT treason (P v Recode, o since not aid or comfort) •
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Unless you yourself tortured the Filipinos. Making speeches to support the enemy: TREASON (Gillard v US) o Aid and comfort may be made by speech Broadcasting messages over the radio which discourages your troops: TREASON. (D’Aquino v o US) Letting one’s son (who is aligned with the enemy) work in a weapons firm during the time of o war: TREASON (Haut v US) Giving aid and comfort to the enemy. Will Art 12 defenses apply? YES! Uncontrollable fear, etc will apply. o Will the ISL apply to treason? No! By express provision of law. o What about minors? They can avail of the privileged mitigating circumstance of minority. (P v Nunez) o Art 13 and 14 are not applicable to treason. The penalty does not depend on Art 13 and 14 but on the nature of the crime committed. The SC will not apply these articles but assess the crime according to the barbarity. o Use of unlicensed firearms are NOT aggravating.
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Art. 115. Conspiracy and proposal to commit treason; Penalty. — The conspiracy or proposal to commit the crime of treason shall be punished respectively, by prision mayor and a fine not exceeding P10,000 pesos, and prision correccional and a fine not exceeding P5,000 pesos. •
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Conspiracy or proposal to commit treason is a crime in itself. (Relate to Art 8) But when the acts of treason are carried out, the conspiracy loses juridical existence and become o mere modes to commit treason. Unlike treason, conspiracy and proposal to commit treason may be committed during times of peace. But see Reyes who said that it must be committed in time of war. (so I don’t know. Follow J-Call) o
Art. 116. Misprision of treason. treason. — Every person owing allegiance to the Government of the Philippine Islands, without without being being a foreigne foreigner, r, and having knowledge knowledge of any conspiracy conspiracy against them, conceals conceals or does 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, as the case may be, shall be punished as an accessory to the crime of treason. •
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Elements: Offender must owe allegiance to the Government, and is not a foreigner o He has knowledge of any conspiracy (to commit treason) against the Government o He conceals or does not disclose and make known the same asap to the governor or fiscal of the o province or the mayor or fiscal of the city in which he resides Mispris Misprision ion of treaso treason n is the failure failure of a citize citizen n to rep report ort asap a conspi conspirac racy, y, which which comes comes to his knowledge, against the government. Gravamen of crime: WILLFUL or MALICIOUS concealment. Hence, crime by DOLO. Only committed by Filipinos, not foreigners. Dual citizens may NOT be liable for misprision of treason. (Remember this!) o Two-witness rule does not apply. Misprision of treason is different from being an accessory-after-the-fact. The latter hides the principal. (But remember, no accessories in treason!) o Misprision hides the conspiracy. o Misprision is punished two degrees lower than treason since the person who committed it is “punished as an accessory to the crime of treason.” But he is still a PRINCIPAL of misprision of treason. Boado says there must be a war in which the Philippines is involved. (not sure about this though because J-Call said conspiracy to commit treason may be committed during times of peace) Art 20 does not apply.
Art. 117. Espionage. — The penalty of prision correccional shall be inflicted upon any person who: 1. Without authority therefor, enters 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 Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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the Philippine Archipelago; or 2. Being in possession, by reason of the public office he holds, of the articles, data, or information referred to in the preceding paragraph, discloses their contents to a representative of a foreign nation. The penalty next higher in degree shall be imposed if the offender be a public officer or employee. •
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Offenses: Without authority, entering warship, fort, naval or military establishment to obtain any o information, plans, etc of a confidential nature relative to the defense of the Philippines As long as there is intent, accused will be held liable. No need to actually obtain such plans Possessing by reason of public office such information and disclosing them to a foreign o representative Elements of 1st way: Offender enters any of the places mentioned therein o He has not authority therefore o His purpose is to obtain information, plans, photographs or other data of a confidential nature o relative to the defense of the Philippines Elements of 2nd way: Offender is a public officer o He has in his possession the articles, data or information referred in the paragraph 1, by reason o of the public office he holds He discloses their contents to a representative of a foreign nation o Can be committed even in times of peace
Section Two. — Provoking war and disloyalty in case of war Art. 118. Inciting to war or giving motives for reprisals. — The penalty of reclusion temporal shall be imposed upon any public officer or employee, and that of prision mayor upon any private individual, who, by unlawful or unauthorized acts provokes or gives occasion for a war involving or liable to involve the Philippine Islands or exposes Filipino citizens to reprisals on their persons or property. •
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Elements: Offender performs unlawful or unauthorized acts o Such acts provoke or give occasion for a war involving or liable to involve the Philippines or o expose Filipino citizens to reprisals on their persons or property Done in times of peace
Art. 119. Violation of neutrality . — The penalty of prision correccional shall be inflicted upon anyone who, on the occasion of a war in which the Government is not involved, violates any regulation issued by competent authority for the purpose of enforcing neutrality. •
Elements: There is a war in which the Philippines is not involved o There is a regulation issued by competent authority for the purpose of enforcing neutrality o Offender violates such o
Art. 120. Correspondence with hostile country . — Any person who in time of war, shall have correspondence with an enemy country or territory occupied by enemy troops shall be punished: 1. By prision correccional, if the correspondence has been prohibited by the Government; 2. By prision mayor, if such correspondence be carried on in ciphers or conventional signs; and 3. By reclusion temporal, if notice or information be given thereby which might be useful to the enemy. If the offender intended to aid the enemy by giving such notice or information, he shall suffer the penalty of reclusion temporal to death. •
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Elements: Time of war in which the Philippines is involved o The offender makes correspondence with an enemy country or territory occupied by enemy o troops The correspondence is either o Prohibited by the Government, or Carried on in ciphers or conventional signs, or Containing notice or information which might be useful to the enemy Qualified when:
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Notice or information might be useful to the enemy, and Offender intended to aid the enemy
Art. 121. Flight to enemy country. — The penalty of arresto mayor shall be inflicted upon any person who, owing allegiance to the Government, attempts to flee or go to an enemy country when prohibited by competent authority. •
Elements: There is a war in which the Philippines is involved o Offender must owe allegiance to the Government o Offender attempts to flee or go to enemy country o Going to such enemy country is prohibited by competent authority o
Section Three. — Piracy and mutiny on the high seas or in Philippine waters Art. 122. Piracy in general and mutiny on the high seas. — The penalty of reclusion temporal shall be inflicted upon any person who, on the high seas or in Philippine waters, shall attack or seize a vessel or, not being a member of its complement nor a passenger, shall seize the whole or part of the cargo of said vessel, its equipment, or personal belongings of its complement or passengers. The same penalty shall be inflicted in case of mutiny on the high seas or in Philippine waters. (As amended by Sec 3, RA 7659) •
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Two modes of committing piracy: Attacking or seizing a vessel on high seas or Philippine wares o Seizing the vessel whole/part of its cargo, equipment or personal belongings or complement or o passengers while in high seas or Philippine waters Elements: Vessel is on the high seas or in Philippine waters o Offenders are not members of its complement or passengers of the vessel o Offenders: o Attack or seize the vessel, or Seize the whole or part of the cargo of said vessel, its equipment or personal belongings of its complement or passengers The offenders must not be members of the complement or passengers Complement: all persons on board, from the captain to the cabin boy o If those who take the cargo or implements are part of the complement and they are in the high seas, the act is robbery under Art 293, 294 If in Philippine waters, you can charge them with PD 532, because under that PD, the offenders can be members of the complement or the passengers 1 Can you still charge Art 122 even if the complement took the cargo? o Yes. If they conspired with the people outside the ship who participated. Is there a conflict between PD 532 and Art 122 (as amended by RA 7659)? No. All the PD did was to widen the coverage of the law, in keeping with the intent to protect the o citizenry as well as neighboring states for crimes against the law of nations. (P v Tulin) How do you distinguish between PD 532 and Art 122 (as amended)? In PD 532, one must prove that the perpetrators were purposely organized not just for one act o of robbery, but several indiscriminate commissions thereof. There must be evidence of similar attempts or takings before. (P v Puno, this was actually a highway robbery case, but it is applicable to piracy under PD 532 as well) If just one act, and done in the highway, crime is only robbery. If just one act, and done in Philippine waters or high seas, charge under Art 122/123. In P v Tulin, J-Call said that it was proved in the RTC decision that the pirates engage in several o indiscriminate commissions in the past. It was just not written into the SC decision. If piracy was committed outside the Philippine waters, will the Philippine courts have jurisdiction over the offense? Yes. Under Art 2. o •
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d. Piracy. Any attack upon or se izure of any vessel, or the taking away of the whole or part thereof or its cargo, equipment, or t he personal belongings of its complement or passengers, irrespective of the value thereof, by means of violence against or intimidation of persons or force upon things, committed by any person, including a passenger or member of the complement of said vessel, in Philippine waters, shall be considered as piracy. The offenders shall be considered as pirates and punished as hereinafter provided. Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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The same rule will apply even when charged with PD 532, which penalizes piracy in Philippine waters. PD 532 should be applied with more force since is purpose is precisely to discourage and prevent piracy in Philippine waters. Moreover, it is well-settled that regardless of the law penalizing the same, piracy is a o reprehensible crime against the whole world (hostes humani generis) Piracy on the high seas is a crime against the law of nations. (P v Lol-lo) It has two aspects o Violation of the common right of nations Criminal liability of the pirates may be imposed by the municipal law of the country where the pirates are found In P v Tulin, Hiong (the person who supervised the transfer of the stolen goods to another ship o in Singapore waters) claimed the courts had no jurisdiction over him since the disposition was done outside the Philippine waters. He was charged with PD 532. SC said that although PD 532 requires that the attack and seizure of the vessel be in Philippine waters, the disposition by the pirates of the vessel and its cargo is still deemed part of piracy, hence the same need not be committed in the Philippine waters. Moreover, piracy is an exception to the rule on territoriality. Regardless of the law penalizing piracy, it remains to be a reprehensible crime against the whole world. Relate piracy with terrorism. Piracy in Philippine waters or high seas (both Art 122 and PD 532) are predicate crimes of o terrorism. If these are committed for purpose of sowing terror in the population, then terrorism is o committed, with piracy as predicate crimes. But once you are charged with terrorism, you can no longer be charged with piracy. 2 o Terrorism is a crime against the law of nations and against humanity. o It says so in Sec 2 of RA 9372. Aircraft highjacking (RA 6235) is also a predicate crime for terrorism. o Using an illegal firearm when highjacking a plane is neither a separate crime nor an aggravating circumstance. Vessel: Any vessel or watercraft used for transport of passengers and cargo from one place to another through Philippine Waters. It shall include all kinds and types of vessels or boats used in fishing. (PD 532, hence it includes a banca) Distinguish Art 19, PD 1612, PD 1829 and Art 122/123. Art 19 – talks of accomplices and accessories o Will apply to Art 122 PD 1612 (Anti-Fencing) – will only apply to robbery and theft cases 3 o PD 1829 (Obstruction of Justice) – can be charge in lieu of Art 19, since PD 1829 also talks of o harboring or concealing escapees Will apply to Art 122 Take note of PD 532, as related to Art 19 o In PD 532, those who acquire or receive property taken by pirates or brigands or benefits therefrom are considered accomplices (not accessories!) 4 Take note that MUTINY is also punished Piracy Mutiny Offenders are neither members of the Offenders are the passengers and may complement of the vessel nor passengers include the members of the complement (under Art 122) of the vessel Essence: robbery where the taking is the Essence: to protest or to go against the o
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SEC. 49 . Prosecution Under This Act Shall Be a Bar to Another Prosecution Under the Revised Penal Code or Any Special Penal Laws. – When a person has been prosecuted under a provision of this Act, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for any offense or felony which is necessarily included in the offense charged under this Act. 3 "Fencing" is the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft. 4 Section 4. Aiding pirates or highway robbers/brigands or abetting piracy or highway robbery/brigandage. Any person who knowingly and in any manner aids or protects pirates or highway robbers/brigands, such as giving them information about the movement of police or other peace officers of the government, or acquires or receives property taken by such pirate s or brigands or in any manner derives any benefit therefrom; or any person who directly or indirectly abets the commission of piracy or highway robbery or brigandage, shall be considered as an accomplice of the principal offenders and be punished in accordance with the Rules prescribed by the Revised Penal Code.
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seizure of the vessel or cargo or personal belongings of the passengers
lawful command of the captain employing violence and endangering the safety of passengers. Gain is merely incidental.
Art. 123. Qualified piracy. — The penalty of reclusion temporal to death shall be imposed upon those who commit any of the crimes referred to in the preceding article, under any of the following circumstances: 1. Whenever they have seized a vessel by boarding or firing upon the same; 2. Whenever the pirates have abandoned their victims without means of saving themselves; or 3. Whenever the crime is accompanied by murder, homicide, physical injuries or rape. •
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Piracy is qualified when: The offenders have seized a vessel by boarding or firing upon the same, o The pirates have abandoned their victims without any means of saving themselves, or o The crime is accompanied by murder, homicide, physical injuries or rape o For the 1st paragraph Even if the pirates used unlicensed firearms, there is no violation of RA 8294 5. (“no other crime o was committed”) Can the use of unlicensed firearms be used as an aggravating circumstance to piracy? No. It can only be aggravating in homicide or murder. For the 2nd paragraph In Titanic v Random Iceberg, was there qualified piracy since Jack and Rose were left without o any means of saving themselves? No. There were no pirates. It sank because of an iceberg. For the 3rd paragraph Includes frustrated or attempted stages; used in its generic term o For these common crimes to be an element of qualified piracy, they must accompany the crime o of piracy. There is NO complex crime of piracy with rape, murder, homicide, or PI. There is only one crime of piracy. It is a single indivisible offense. Art 48 will NOT apply. Even if a lot of people were killed or raped, there is still one crime of piracy. HOWEVER, if the acts were done AFTER piracy had been committed, consider them as separate crimes. When the crimes other than murder, homicide, rape or PI is committed, such are crimes in o themselves and not qualifying circumstances. (Boado) So you can have piracy with direct assault. Under PD 532, there is piracy even when the offender did not seize the vessel but merely o boarded it and inflicted physical injuries on the occupant or owner. (P v Catantan) Is there qualified mutiny? Yes. But only the 2 nd and 3rd qualifying circumstances will apply to it since in mutiny, the o offenders are already on board. •
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Title Two CRIMES AGAINST THE FUNDAMENTAL LAWS OF THE STATE Chapter One ARBITRARY DETENTION OR EXPULSION, VIOLATION OF DWELLING, PROHIBITION, INTERRUPTION, AND DISSOLUTION OF PEACEFUL MEETINGS AND CRIMES AGAINST RELIGIOUS WORSHIP Section One. — Arbitrary detention and expulsion Art. 124. Arbitrary detention. — Any public officer or employee who, without legal grounds, detains a person, shall suffer; 1. The penalty of arresto mayor in its maximum period to prision correccional in its minimum period, if the detention has not exceeded three days; 2. The penalty of prision correccional in its medium and maximum periods, if the detention has continued 5
Remember that the peculiar situations of unlicensed-licensed only apply to firearms, not explosives.
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more than three but not more than fifteen days; 3. The penalty of prision mayor, if the detention has continued for more than fifteen days but not more than six months; and 4. That of reclusion temporal, if the detention shall have exceeded six months. 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. •
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Elements: Offender is a public officer or employee o Detains a person o Detention is without legal ground (Astorga v People) o Gravamen: detention without legal grounds by public officer or employee of another person Pubic officers liable under this article are those whose official duties give them the authority to effect arrest and detain persons Those who are authorized to detain another person o Includes: o PNP, NBI, even judges acting in official capacity punong barangays, members of the sangguniang barangays, members of the lupong tagapamayapa6 But they are limited to their jurisdiction or their respective barangays. If they arrest beyond their barangays, they are not public officers under this provision barangays captains, barangays councilmen, barrio policemen (because of Art 152) district foresters authorized to enforce the Forestry Code but are limited to violations of the Forestry Code members of the CAFGU since they are authorized to carry firearms, complement the operations of the PNP and given that under EO 264, they may arrest. (P v Flores) school heads, supervisors and teachers, but only for the purpose of enforcing the DDA within school premises or outside school premises in an official school activity A person is deemed a public officer when he is acting within the bounds of his official authority or o function If not, he acts in his private capacity, hence crime is illegal detention If committed by other kinds public officers, the crime is illegal detention o Can a private person be liable for arbitrary detention? o Yes, if he connives with a public official/person in authority. (Cuello Callon) Detention, what is it? The curtailment of the victim’s liberty need not involve any physical restraint upon the victim’s o person. Includes psychological restraint in whatever form for whatever length of term. (P v Olivia) o If the acts and actuations of the accused can produce such fear in the mind of the victim sufficient to paralyze the latter, to the extent that the victim is compelled to limit his own actions and movements in accordance with the wishes of the accused, then the victim is detained against his will. (Astorga v People, wherein the Mayor told the victims not to leave the barangay. The victims could roam around the barangay, but they could not leave. If they did, they would be harmed.) In arbitrary detention, the detention at the very start is unlawful because there is no warrant of arrest and there is no lawful cause as provided in the Rules on warrantless arrests There is no warrant of arrest to begin with. o A detention without lawful cause by barangays officials constitutes arbitrary detention because o they are persons in authority or agents of persons in authority If the offender falsely imputes a crime against a person to be able to arrest him and appears not o determined to file a charge against him, the crime is arbitrary detention through unlawful arrest If they planted evidence to effect the arrest, it is arbitrary detention through incriminating o innocent persons •
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LGC SEC. 388. Persons in Authority. - For purposes of the Revised Penal Code, the punong barangay, sangguniang barangay members, and members of the lupong tagapamayapa in each barangay shall be deemed as persons in authority in their jurisdictions, while other barangay officials and members who may be designated by law or ordinance and charged with the maintenance of public order, protection and security of li fe and property, or the maintenance of a desirable and balanced environment, and any barangay member who comes to the aid of persons in authority, shall be deemed agents of persons in authority. Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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When can you validly arrest someone without a warrant? Art 124 gives legal grounds for detention: o Commission of a crime Violent insanity or any other ailment requiring the compulsory confinement of the patient in a hospital The ROC also gives valid grounds7 o A person evading his sentence may be arrested on the run without a warrant because he is o committing an offense in flagrante delicto (Parulan v Director) J-Call: If merely evading his detention (as in, he’s merely a detention prisoner), a new arrest warrant must be issued But see ROC codal, lawful warrantless arrest can be done even on one “temporarily confined while his case is pending” Being a member of the NPA is a continuing offense and he can be arrested without a warrant, o provided that the warrantless arrest still be based on probable cause (Umil v Ramos) Hot pursuit based on actual facts with the use of the senses of the policemen, with reasonable o basis to believe that the person arrested is the author of the crime is valid ground for a warrantless arrest (P v Lozada) Person arrested need not actually be convicted as having committed a crime, enough that the o nature of his deed, and how the officer at the moment characterized the act. Arbitrary detention may be committed by dolo or culpa. Culpa, how? By following orders (which were wrong) by the superior officer, or just plain o mistake. Example: re-arresting a person who was released by means of order of the court. (P v Misa) May there be a complex crime of arbitrary detention with physical injuries? Oh yes! When excessive means is employed in the arrest. o The periods provided are NOT essential elements of the crime. They exist as a guide for calculating the sentence. Compare with unlawful arrest (Art 269) and kidnapping (Art 267) Arbitrary detention is committed by a public officer authorized to arrest and detain a person but o he does so without lawful cause Unlawful arrest is committed by either a private individual or public officer who feigned to arrest o a person without any legal cause, the purpose is to bring him to authority and file a charge If the charge is filed, the detention is deemed an incident of the arrest and the filing of charges against him In kidnapping, the offender is a private person and the purpose is to deprive the victim of his or o her liberty. •
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Art. 125. Delay in the delivery of detained persons to the proper judicial authorities. — The penalties provided in the next preceding article shall be imposed upon the public officer or employee who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of; twelve (12) hours, for crimes or offenses punishable by light penalties, or their equivalent; eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or their equivalent and thirty-six (36) hours, for crimes, or offenses punishable by afflictive or capital penalties, or their equivalent. In every case, the person detained shall be informed of the cause of his detention and shall be allowed upon his request, to communicate and confer at any time with his attorney or counsel. (As amended by E.O. Nos. 59 and 272, Nov. 7, 1986 and July 25, 1987, respectively). •
Elements: Offender is a public officer or employee o Detained a person legally o Fails to deliver person to proper judicial authorities within proper time period o
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Sec. 5. Arrest without warrant; when lawful . – A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112. Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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Gravamen: failure to deliver persons to proper judicial authorities within given time period Applies only to WARRANTLESS arrests Delivery means the filing of correct information with the proper court Constructive delivery, when the complaint or information is filed with the court for appropriate o judicial proceedings Must be to the MTC, RTC, Family Court, SB (trial courts!) o Not to the SC or CA as they are not trial courts Boado, however, says otherwise. He says included CA or SC. Follow J-Call. If the case is cognizable by the OMB or SB, there is an agreement between OMB and DOJ where the DOJ can conduct PI but they have to submit findings to the OMB. (?) What if delivered to the fiscal, not to the court? o The clock will still keep ticking. The inquest8 made by the fiscal must be terminated within the periods given in the article. Or else, the fiscal can be held liable. What if delivered to the clerk of court? o Clock will still keep ticking. In Albior v Auguis, the prisoner was delivered to the clerk who had the prisoner detained. The clerk was found guilty of Art 125. The clerk has no power to issue detention orders. The good faith of the clerk does not excuse his behavior. If there is no judge, the detaining officer must release the accused upon the expiration of the maximum period of detention in Art 125. Applies both to RPC and SPL (Boado since law says “equivalent”) J-Call: depends if the penalties used by the SPL follow the nomenclature of the RPC o Detention becomes arbitrary only when the time required for the delivery of prisoner to the judicial authority lapses Article contemplates that there was a legal cause for arresting but without a warrant of arrest o If the arrest is based on a warrant, Art 125 does not apply o How do you determine the imposable penalty? 12 hours – light o 18 hours – correctional o 36 hours – afflictive o Basis: what crime as it appeared to the arresting officer, and not what the crime actually turned o out Arresting officer thought it was murder, turns out it was merely physical injuries Period is not strict, it depends on the situation of the arresting officer. o Are holidays included in counting? No. Election days, special holidays are NOT included in counting since these are no office days. o (Soria v Desierto) The 12-18-36 hours do not run when the courts are not open to receive the complaint or o information being filed. (So, I guess weekends are not counted as well) Art 12, Par 7 applies a defense. There can be defense of insuparable cause for delay in delivery. Good faith is also a defense. o Can be committed by dolo or culpa. Culpa, how? If by order of superior. o What if done by a private person? Delay in delivery of a prisoner arrested lawfully by a private person amounts to illegal detention, o not arbitrary detention. Failure of officer to comply with Art 125 does not affect the legality of the confinement. During confinement, can the access to counsel be regulated to work hours? Yes, because of security •
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Sec. 7. When accused lawfully arrested without warrant. – When a person is lawfully arrested without a warrant involving an offense which requires a preliminary investigation, the complaint or information may be filed by a prosecutor without need of such investigation provided an inquest has been conducted in accordance with existing rules. In the absence or unavailability of an inquest prosecutor, the complaint may be filed by the offended party or a peace officer directly wit h the proper court on the basis of the affidavit of the offended party or arresting officer or person. Before the complaint or information is filed, the person arrested may ask for a preliminary investigation in accordance with this Rule, but he must sign a waiver of the provision of Article 125 of the Revised Penal Code, as amended, in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the investigation must be terminated within fifteen (15) days from its inception. After the filing of the complaint or information in court without a preliminary investigation, the accused may, within five (5) days from the time he learns of its filing, ask for a preliminary investigation with the same right to adduce evidence in his defense as provided in this Rule. Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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reasons. Moreover, opening and reading of non-confidential letters is allowed. When it comes to confidential letters (like to a lawyer), the guards can open them, but not read them. (Alejano v Cabuay) Relate to the Anti-Terrorism/Human Security Act, RA 9372: When it comes to terrorism, the period for lawful detention prior to reporting is a maximum of 3 o days.9 The arrest must be made after surveillance (Sec 7) or after authorized inquiry into bank deposits (Sec 27) The 3-day period can be extended upon order by authorities in the event of an actual or o imminent terrorist attack.10 Ra 9372 is more expansive than RA 7438. Why? o Before detaining a person after a warrantless arrest for terrorism, he must first deliver the person to the nearest office or residence of a judge, so the judge can: Ascertain the identity of the officer and the arrested person Determine the circumstances behind the arrest Check for torture or other abuses11 Then the judge delivers within 3 days to the nearest court with jurisdiction his report. o Read RA 9372 for the penalties for the violations. o • • •
Art. 126. Delaying release. — The penalties provided for in Article 124 shall be imposed upon any public officer or employee who delays for the period of time specified therein the performance of any judicial or executive order for the release of a prisoner or detention prisoner, or unduly delays the service of the notice of such order to said prisoner or the proceedings upon any petition for the liberation of such person. • • •
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Crime by omission Follows the same periods as Art 124 Penalizes the delay in the following: Performance of any judicial or executive order for the release of a prisoner or detention prisoner, o Service of the notice of such order to said prisoner, or o Proceedings upon any petition for the liberation of such person o Elements: Offender is a public officer or employee o There is a judicial or executive order for the release of a prisoner or detention prisoner, or there o is a proceeding upon a petition for the liberation of such person The offender without good reason delays in any of the abovementioned situations o Proceedings: habeas corpus
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SEC. 18. Period of Detention Without Judicial Warrant of Arrest. The provisions of Article 125 of the Revised Penal Code to the contrary notwithstanding, any police or law enforcement personnel, who, having been duly authorized in writing by the Anti-Terrorism Council has taken custody of a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism shall, without incurring any criminal liability for delay in the delivery of detained persons to the proper judicial authorities, deliver said charged or suspected person to the proper judicial authority within a period of three (3) days counted from the moment the said charged or suspected person has been apprehended or arrested, detained, and taken into custody by the said police, or law enforcement personnel: Provided, That the arrest of those suspected of the crime of terrorism or conspiracy to commit terrorism must result from the surveillance under Section 7 and examination of bank deposits under Section 27 of this Act. 10 SEC. 19 . Period of Detention in the Event of an Actual or Imminent Terrorist Attack. In the event of an actual or imminent terrorist attack, suspects may not be detained for more than three (3) days without the written approval of a municipal, city, provincial or regional official of a Human Rights Commission or judge of the municipal, regional trial court, the Sandiganbayan or a justice of the Court of Appeals nearest the place of the arrest. If the arrest is made during Saturdays, Sundays, holidays or after office hours, the arresting police or law enforcement personnel shall bring the person t hus arrested to the residence of any of the officials mentioned above that is nearest the place where the accused was arrested. The approval in writing of any of the said officials shall be secured by the police or law enforcement personnel concerned within five (5) days after the date of the detention of the persons concerned: Provided, however, That within three (3) days after the detention the suspects, whose connection with the terror attack or threat is not established, shall be released immediately. 11 Sec 18. xxx the police or law enforcement personnel concerned shall, before detaining the person suspected of the crime of terrorism, present him or her before any judge at the latter’s residence or office nearest the place where the arrest took place at any time of the day or night. It shall be the duty of the judge, among other things, to a scertain the identity of the police or law enforcement personnel and the person or persons they have arrested and presented before him or her, to inquire of them the reasons why they have arrested the person and determine by questioning and personal observation whether or not the suspect has been subjected to any physical, moral or psychological torture by whom and why. The judge shall then submit a written report of what he/she had observed when the subject was brought before him to the proper court that has jurisdiction over the case of the person thus arrested. the judge shall forthwith submit his/her report within three (3) calendar days from the time the suspect was brought to his/her residence or office. Immediately after taking custody of a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism, the police or law enforcement personnel shall notify in writing the judge of the court nearest the place of apprehension or arrest: Provided, That where the arrest is made during saturdays, sundays, holidays or after office hours, the written notice shall be served at the residence of the judge nearest the place where the accused was arrested. The penalty of ten (10) years and one day to twelve (12) years of imprisonment shall be imposed upon the police or law enforcement personnel who fails to notify any judge as provided in the preceding paragraph. Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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Offenders: Heads of jail or penal establishment o Custodial guards o Who may order release of prisoner? Courts o Prosecutor o Director of Bureau of Prisons o Police leaders o Same penalty as Art 124 because failure to release is tantamount to arbitrary detention. Can be done by culpa or dolo (Cuello Callon) Before the filing of information against Draco, Police Chief Dumbledore told Hagrid to release o Draco. Hagrid didn’t want because he wanted to beat Draco up. He kept Draco in his jail hut for 5 days. What is Hagrid liable for? Delay in the delivery to judicial authorities (Art 125), and Refusal to release (Art 126) Not complex since the delay was already committed before the refusal to release •
Art. 127. Expulsion. — The penalty of prision correccional shall be imposed upon any public officer or employee who, not being thereunto authorized by law, shall expel any person from the Philippine Islands or shall compel such person to change his residence. •
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Two acts punished: Expelling a person from the Philippines o Compelling a person to change his residence o Elements: Offender is a public officer or employee o He expels ay person from the Philippines, or compels a person to change his residence o Offender is not authorized to do so by law o Can only apply to public officers or employees To be liable: there must be force, violence or other measures to compel another to change his residence against his will In relation to DDA: In addition to the penalty provided for in DDA, any alien who violates the provision must be o deported immediately without further proceedings12 In relation to the Probation law. The court may require the probationer to reside in a place designated by court and may not o change residence without prior notice. (Sec 10) Destierro is a valid order to compel persons to change their residences. The President has authority to prohibit people from entering the Philippines. (Marcos v Manglapus) Also has the power to deport, with respect to aliens through the deportation board. o If there is an extradition treaty with another country, a person may be compelled to be deported and extradited. In relation to terrorism: One charged with terrorism may be granted bail, but placed under house arrest under usual o place of residence until further order of the court.13
Section Two. — Violation of domicile Art. 128. Violation of domicile. — The penalty of prision correccional in its minimum period shall be imposed upon any public officer or employee who, not being authorized by judicial order, shall enter any dwelling against the will of the owner thereof, search papers or other effects found therein without the previous 12
Section 31. Additional Penalty if Offender is an Alien. – In addition to the penalties prescribed in the unlawful act committed, any alien who violates such provisions of this Act shall, after service of sentence, be deported immediately without further proceedings, unless the penalty is death. 13 SEC. 26 . Restriction on Travel. – In cases where evidence of guilt is not strong, and the person charged with the crime of terrorism or conspiracy to commit terrorism is entitled to bail and is granted the same, the court, upon application by the prosecutor, shall limit the right of travel of the accused to within the municipality or city where he resides or where the case is pending, in the interest of national security and public safety, consistent with Article III, Section 6 of the Constitution. Travel outside of said municipality or city, without the authorization of the court, shall be deemed a violation of the terms and conditions of his bail, which shall then be forfeited as provided under the Rules of Court. He or she may also be placed under house arrest by order of the court at his or her usual place of residence. Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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consent of such owner, or having surreptitiously entered said dwelling, and being required to leave the premises, shall refuse to do so. If the offense be committed in the night-time, or if any papers or effects not constituting evidence of a crime be not returned immediately after the search made by the offender, the penalty shall be prision correccional in its medium and maximum periods. •
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Acts punished: Entering any dwelling against the will of the owner o Searching papers or other effects found therein without the previous consent of such o wner o Refusing to leave the premises, after having surreptitiously entered said dwelling and after o having been required to leave the same Common elements of the three: Offender is a public officer or employee o He is not authorized by judicial order to enter the dwelling and/or to make a search therein for o papers or other effects Note: if all three modes are committed, there is still just ONE CRIME committed. Gravamen: entering without authority by pubic officers to arrest or to search If the purpose of entering is to commit another crime, no more violation of Art 128 (hence, no more Art 48), but dwelling becomes an aggravating circumstance. Public officer enters the house of the victim to shoot him. NO violation of Art 128, dwelling is o considered aggravating/qualifying for the muder. Public officer A went into B’s house without B’s knowledge. A conducted search and found a o licensed fiream. A brought gun with him and never returned. A is guilty of violation of domicile and theft (since intent to gain is presumed) But if A’s original intent was to rob B of his gun, A will be guilty of robbery (not sure if dwelling is absorbed since robbery with force upon things, or dwelling as aggravating, either way, violation of domicile will no longer be considered). “Against the will” covers when the offender ignores the prohibition of the owner which may be express or implied as when the door is closed even though not locked. If entry is made through a way not intended for ingress, there is entry against the will of the o owner (denial here is implied) (US v Panes) Implied denial will cover entry when: o The door is closed The offender unlocks a chained door If the door is open, no more implied objection. But in this case, objection can still be expressly o given. “Owner” includes lessee of a house Residence under this provision is the place where the person is habitually present, and from o where he departs and intends to return. Permission once given cannot be recalled as to constitute violation of the article. When he is asked to leave and refuses to leave, it is unjust vexation. o When he is admitted and he starts to search, the owner must stop him; otherwise, permission is deemed granted and it will be construed as a consented search. If he stops the public officer and the latter continues to search, there is violation of domicile. o When the entry is done surreptitiously and the owner ordered the public officer to leave, refusal would amount to violation of domicile. If the public officer is one whose function does not include the duty to effect search and seizure, the crime is trespass to dwelling. If private individual, crime is also trespass to dwelling. o Art 128 will not apply to public officer or employees who entered dwelling of another in hot pursuit. (US v Valerio delos Reyes) •
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Art. 129. Search warrants maliciously obtained and abuse in the service of those legally obtained. — In addition to the liability attaching to the offender for the commission of any other offense, the penalty of arresto mayor in its maximum period to prision correccional in its minimum period and a fine not exceeding P1,000 pesos shall be imposed upon any public officer or employee who shall procure a search warrant without just cause, or, having legally procured the same, shall exceed his authority or use unnecessary severity in executing the same. •
Cannot be done by culpa. Maliciously obtained nga eh.
Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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Acts punishable: Procuring search warrant without just cause o Elements: Offender is a public officer or employee Procures a search warrant No just cause Exceeding authority or using unnecessary severity in executing legal search warrant o Elements: Offender is a public officer or employee Legally procured a search warrant Exceeds his authority or uses unnecessary severity in executing the sam e Art 129 is an EXCEPTION to Art 48 because of the statement “in addition to the liability attaching to the offender for the commission of any other offense.” Hence, when two crimes are committed, no complex, but treat as separate crimes. o So when a public officer obtains maliciously a search warrant by submitting a perjurious o affidavit, there are two crimes committed: Perjury Malicious procurement of a search warrant On the second mode In United Labs v Shalimar/Isip, the search warrant described property to be seized, but the o items seized were not in the warrant. Exception: you can seize items even if not in warrant if in plain view. Like seeing drugs out in the open may be seized. If not in plain view, he exceeded his authority. In United Labs, the plain view doctrine was not applicable because the o boxes seized were actually sealed boxes. The illegality of such were not readily apparent. In enforcing a search warrant, the officer may break open the door if he is refused entry ipon o knocking and identifying himself as an officer. (P v Hua) “Knock and announce rule”: knock first before breaking a door breaking includes lifting a latch, unlocking a hatch, turning knob Even with the knock and announce rule, is unannounced intrusions permissible? o Yes! in the following cases: When the party refuses upon demand to open it When the party already knew of the identity of the officers and of their authority and persons When the officers are justified in the honest belief that there is an imminent peril to life or limb When those in the premises, aware of the presence of someone outside, are engaged in activity which justifies the officers to believe that an escape or the destruction of evidence is being attempted (P v Hua, list is not exclusive) Even if both modes are committed, still considered as just 1 crime. Art 129 does not apply to searches made by employees of the BOC because their authority is based on Art 2203 of the Tariff and Customs Code BOC officials do not possess authority to do searches in domicile. 14 o • • •
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Sec. 2203. Persons Having Police Authority. — For the enforcement of the customs and tariff laws, the following persons are authorized to effect searches, seizures and arrests conformably with the provisions of said laws: a. Officials of the Bureau of Customs, collectors, assistant collectors, deputy collectors, surveyors, security and secret-service agents, inspectors, port patrol officers and guards of the Bureau of Customs. b. Officers of the Philippine Navy when authorized by the Commissioner. c. Any person especially authorized in writing by the Commissioner. d. Officers generally empowered by law to effect arrests and execute processes of courts, when acting under direction of the Collector. e. Any person especially authorized by a Collector, subject to the restrictions stated in the next succeeding section. Persons exercising the powers hereinabove conferred shall, in the exercise thereof, have the same a uthority, be entitled to the proper protection, and shall be governed by the same law, not inconsistent with the provisions of this section, as other officers exercising police authority in general. Sec. 2204. Place Where Authority May Be Exercised. — Persons acting under authority conferred pursuant to subsection (e) of the preceding section may exercise their authority within the limits of the collection district only and in or upon the particular vessel or aircraft, or in the particular place, or in respect to the particular article specified in the appointment. All such appointments shall be in writing, and the original shall be filed in the customhouse of the district where made. Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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Policeman filed for application of search warrant with judge. He attached C & D’s affidavit. Police wanted to extort money from victim. Judge granted, not knowing the purpose of the policeman, C & D. solve. Upon procuring, even without enforcement, policeman liable for Art 129. o C & D, private individuals also liable for Art 129 because of conspiracy. Perjury for C & D, as PDP. o Subornation of perjury for policeman, as PDI. What if during the searching questions, the judge learned of the motive but still issued because o he was bribed? Solve. Judge liable for: Bribery. Unjust interlocutory order (? – in my notes, J-Call said judgment rendered through negligence which is Art 205, so I’m not sure!) Malicious procurement (? As a PIC? Not sure either!) Policeman who bribed: corruption of public officers When policeman went to the victim, the victim refused to give the money and be extorted. So o the policeman hits E, which resulted into less serious physical injuries. Solve. Policeman liable for: Less serious physical injuries Malicious procurement (just 1 count) Even if search warrant is maliciously procured and there was excessive o severity in its application (hence, 2 modes), still just 1 crime is committed. (J-Call) • •
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Art. 130. Searching domicile without witnesses. — The penalty of arresto mayor in its medium and maximum periods shall be imposed upon a public officer or employee who, in cases where a search is proper, shall search the domicile, papers or other belongings of any person, in the absence of the latter, any member of his family, or in their default, without the presence of two witnesses residing in the same locality. •
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Elements: Offender is a public officer or employee o Armed with search warrant legally procured o Searches the domicile, papers or other belongings of any person o Owner, any member of his family, or two witnesses residing in the same locality are not present o Compare 128, 129 and 130 Art 128: no warrant o Art 129: public officer is armed with a warrant but it was maliciously obtained o Art 130: abuse in the implementation of a valid warrant o
Section Three. — Prohibition, interruption and dissolution of peaceful meetings Art. 131. Prohibition, interruption and dissolution of peaceful meetings. — The penalty of prision correccional in its minimum period shall be imposed upon any public officer or employee who, without legal ground, shall prohibit or interrupt the holding of a peaceful meeting, or shall dissolve the same. The same penalty shall be imposed upon a public officer or employee who shall hinder any person from joining any lawful association or from attending any of its meetings. The same penalty shall be imposed upon any public officer or employee who shall prohibit or hinder any person from addressing, either alone or together with others, any petition to the authorities for the correction of abuses or redress of grievances. •
Acts punished: Prohibiting or interrupting or dissolving the holding of a peaceful meeting o Hindering nay person from joining any lawful association or from attending any of its meetings o Prohibiting or hindering any person from addressing, either alone or together with others, any o petition to the authorities for the correction of abuses or redress of grievances
All other persons exercising the powers hereinabove conferred may exercise the same at any place within the jurisdiction of the Bureau of Customs. Sec. 2205. Exercise of Power of Seizure and Arrest. — It shall be within the power of a customs official or person authorized as aforesaid, and it shall be his duty, to make seizure of any vessel, aircraft, cargo, articles, animal or other movable property when the same is subject to forfeiture or liable for any fine imposed under customs and tariff laws, and also to arrest any person subject to arrest for violation of any customs and tariff laws, such power to be exercised in conformity with the la w and the provisions of this Code. Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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Common elements of the three: Offender is a public officer or employee o He performs any of the acts mentioned above o Only committed by public officers. If done by a private person, it is disturbance of public order. o Must be done by a stranger to the meeting. (P v Calera wherein the accused was the chief of police who was attending the municipal meeting. He got into a heated argument with someone, the people got scared and the meeting was dissolved) If done by a member of the meeting, it is unjust vexation. o Why wasn’t Calera guilty of Art 144 (disturbance of proceedings) instead? Because it was not a meeting of a municipal council (which is what’s covered by Art 144). It was just a meeting called by the Mayor. What if an undercover agent part of the meeting breaks up the peaceful meeting? Not 131, since o he is not a stranger to the meeting. (J-Call) If the meeting is not peaceful, it can be lawfully broken up. The assembly must be peaceful and for a legal purpose. If it was not for a legal purpose, Art 146 is committed by the assembly-goers. o If initially it was peaceful but becomes illegal, Art 146 is also committed and the meeting may be o lawfully dissolved. The right of the government to require permit for regulatory purposes (time and place) is allowed. Remember the cases of David v Arroyo (“Oust GMA!”) and KMP v Ermita (calibrated preemptive response) •
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Section Four. — Crimes against religious worship Art. 132. Interruption of religious worship. — The penalty of prision correccional in its minimum period shall be imposed upon any public officer or employee who shall prevent or disturb the ceremonies or manifestations of any religion. If the crime shall have been committed with violence or threats, the penalty shall be prision correccional in its medium and maximum periods. •
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Art. 133. Offending the religious feelings. — The penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon anyone who, in a place devoted to religious worship or during the celebration of any religious ceremony shall perform acts notoriously offensive to the feelings of the faithful. •
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Elements: Acts complained of were performed o In a place devoted to religious worship, or During the celebration of any religious ceremony Acts were notoriously offensive to the feelings of the faithful o Ridicules or makes light of anything constituting religious dogma, mocks or scoffs, plays with or destroys any object of veneration
Title Three CRIMES AGAINST PUBLIC ORDER Chapter One REBELLION, SEDITION AND DISLOYALTY Art. 134. Rebellion or insurrection; How committed. — The crime of rebellion or insurrection is committed by rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Philippine Islands or any part thereof, of any body of land, naval or other armed forces, depriving the Chief Executive or the Legislature, wholly or partially, of any of Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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their powers or prerogatives. (As amended by R.A. 6968). •
Elements: There is a public uprising and taking arms against the Government o The purpose is either o To remove from the allegiance to said Government or its laws The territory of the Philippines or any part thereof, or Any land, naval or other armed forces To deprive the President or Congress, wholly or partially, of any of their powers or prerogatives Rebellion is committed by rising publicly and taking up arms against the government for any of the purposes specified in Art 134 which are political in nature. Gravamen: rising publicly and taking up arms against the government • •
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Rebellion Object is to completely overthrow and supersede the existing government
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Rebellion is a vast movement of people, it involves multitudes. It can: Cover Any part of the country, or even the whole country o Be committed by private or public individuals o Rebellion is a continuing crime. May be committed by a single or a series of acts for achieving any or all of the purposes stated o in Art 134. Hence, no need for warrant of arrest. o Mere membership in the NPA constitutes rebellion. o No frustrated rebellion. Not necessary that the purpose of rebellion be accomplished. o As long as the intent and the overt acts are present, the crime is consummated. No need for actual clash with Government forces. o Rebellion is a political crime. Political crimes are those directly aimed against the political order, as well as such common o crimes as may be committed to achieve a political purpose The burden to prove the political nature is on the defense. o As such, it absorbs common crimes. o So, murder, rape, robbery, etc are absorbed by rebellion. You can’t charge them separately or charge them as a complex crime. Hence, in political crimes, motive is important to determine. What about SPLs, does it abzzzorb SPLs? o Yes. all crimes, whether punishable under a special law or general law, which are mere components or ingredients, or committed in furtherance thereof, become absorbed in rebellion and can not be isolated and charged as separated crimes in themselves. (Enrile v Amin) Hence, obstruction of justice (PD 1829) is abzzzorbed by rebellion. Does it absorb the crime of unlicensed firearms? Yes. 15 o Does it absorb the crime of unlicensed explosives? No. Because of RA 9516, which amended RA o 8294. It removed the part in RA 8294 which talks of use of explosives being absorbed by rebellion, sedition, attempted coup d’etat.16
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RA 8294. "If the violation of this Sec. is in furtherance of or incident to, or in connection with the crime of rebellion or insurrection, sedition, or attempted coup d'etat, such violation shall be absorbed as an element of the crime of rebellion, or insurrection, sedition, or attempted coup d'etat. 16 Section 3. Unlawful Manufacture, Sales, Acquisition, Disposition, Importation or Possession of an Explosive or Incendiary Device. - The penalty of reclusion perpetua shall be imposed upon a ny person who shall willfully and unlawfully manufacture, assemble, deal in, acquire, dispose, import or possess any explosive or incendiary device, with knowledge of its existence and its explosive or incendiary character, where the explosive or incendiary device is capable of producing destructive effect on contiguous objects or causing injury or death to any person, including but not limited to, hand grenade(s), rifle grenade(s), 'pillbox bomb', 'molotov cocktail bomb', 'fire bomb', and other similar e xplosive and incendiary devices. "Provided, That mere possession of any explosive or incendiary device shall be prima facie evidence that the person had knowledge of the existence and the explosive or incendiary character of the device. Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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Hence, use of explosives is NOT abzzzorbed by rebellion. Can you get convicted of both rebellion and use of unlicensed explosives? NO! You can only be convicted of either rebellion or use of unlicensed o firearms. Conviction or acquittal on one will bar conviction based on the other.17 But remember that even if common crimes are absorbed by the political crime, there may be o civil liability for these predicate crimes. There is no longer a crime of subversion. Relate rebellion to terrorism (see table for differences between terrorism, rebellion, coup d’etat) In terrorism, there must be (elements) o a predicate crime (which includes rebellion) widespread and extraordinary panic and fear, and an unlawful demand against the government this unlawful demand need not be political. It can be purely monetary. In rebellion, there is no unlawful demand against the government. The objectives are those o stated in the codal. Can there be a crime of terrorism complexed with rebellion? No. Rebellion is a predicate crime. o Is there frustrated terrorism? No. o Terrorism is also a continuing crime. o Terrorism is a crime against national security and the law of nations. o There can be a crime of international terrorism, it is a crime much like international piracy, where anyone may capture the suspected terrorist anywhere.
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Article 134-A. Coup d'etat; How committed. — The crime of coup d'etat is a swift attack accompanied by violence, intimidation, threat, strategy or stealth, directed against duly constituted authorities of the Republic of the Philippines, or any military camp or installation, communications network, public utilities or other facilities needed for the exercise and continued possession of power, singly or simultaneously carried out anywhere in the Philippines by any person or persons, belonging to the military or police or holding any public office of employment with or without civilian support or participation for the purpose of seizing or diminishing state power. (As amended by R.A. 6968). •
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Elements: Offender is a person or persons belonging to the military or police or holding any public office or o employment Committed by means of a swift attack accompanied by violence, intimidation, threat, strategy or o stealth Attack is directed against o duly constituted authorities 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 Purpose of the attack is to seize or diminish state power o Coup d’etat may be committed with or without civilian participation Interesting because it can be done singly So one guy can commit coup d’etat o Also a political crime Specific intent crime: The intent is to diminish state power (i.e. eminent domain, taxation and police power) o Utilities are those which maintain the power of the government.
"Provided, however, That a temporary, incidental, casual, harmless, or transient possession or control of any explosive or incendiary device, without the knowledge of its existence or its explosive or incendiary character, shall not be a violation of this Section. "Provided, Further, That the temporary, incidental, casual, harmless, or transient possession or control of a ny explosive or incendiary device for the sole purpose of surrendering it to the proper authorities shall not be a violation of this Section. "Provided, finally, That in addition to the instances provided in the two (2) immediately preceeding paragraphs, the court may determine the absence of the intent to possess, otherwise referred to as 'animus possidendi", in accordance with the facts and circumstances of each case and the a pplication of other pertinent laws, among other things, Articles 11 and 12 of the Revised Penal Code, as amended." 17 RA 9516 "SEC. 3-D. Former Conviction or Acquittal; Double Jeopardy. - Subject to the provisions of the Rules of Court on double jeopardy, if the application thereof is more favorable to the accused, the conviction or acquittal of the accused or the dismissal of the case for violation of this Decree shall be a bar to another prosecution of the same accused for any offense where the violation of this Decree was a necessary means for committing the offense or in furtherance of which, incident to which, in connection with which, by reason of which, or on occasion of which, the violation of this Decree was committed, and vice versa. Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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Remember that coup d’etat does NOT absorb ALL common crimes Rape is not absorbed by coup d’etat. Rape will not forward the intent of diminishing state power. o Murder, however, is absorbed since it helps further the intent. o Illegal firearms also absorbed. o Illegal explosives NOT absorbed. Because of RA 9516. See previously cited footnote. NO frustrated crime of coup d’etat. The moment there is intent and swift attack, the crime is consummated, even if the purpose is o not achieved. There can, however, be attempted coup d’etat. o In fact, attempted coup d’etat absorbs illegal firearms. Rebellion (134) Public order
Crime Against
Purpose
Overthrow the Government (Political crime)
How?
Through violence
Number people Offenders
of
Ability absorb common crimes
to
Multitude people Private public officers
of or
Generally, yes. Murder, rape, robbery absorbed. Illegal firearms absorbed.
Conspiracy and proposal
Conspiracy and proposal punished (136)
Inciting
Inciting punished (138) All continuing crimes
Mickey Ingles 4C 2012 Justice Callejo No stamping please!
Terrorism (RA 9372) National security and law of nations Unlawful demand against the government (need not be political) Through predicate crimes and by widespread and extraordinary panic and fear Can be singly or a lot Private or public officers Yes, absorbs predicate crimes like rebellion, coup d’etat, murder. Illegal firearms absorbed. Conspiracy only punished (Sec 4, nothing on proposal) Not punished
Coup d’etat (134-A) Public order
Diminish inherent powers of the State (Political crime) Need not be through force or violence, can be by threat, intimidation, strategy or stealth Can be singly or a lot Public officers only (unless private with conspiracy) Yes, but must be related to political purpose. Rape is not absorbed. Illegal firearms absorbed. Conspiracy and proposal punished (136)
Not punished
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Accomplices?
No accomplices (135)
Accomplices punished (Sec 5 of RA 9372)
No accomplices (135)
Art. 135. Penalty for rebellion, insurrection or coup d'etat. — Any person who promotes, maintains, or heads rebellion or insurrection shall suffer the penalty of reclusion perpetua. Any person merely participating or executing the commands of others in a rebellion shall suffer the penalty of reclusion temporal. Any person who leads or in any manner directs or commands others to undertake a coup d'etat shall suffer the penalty of reclusion perpetua. Any person in the government service who participates, or executes directions or commands of others in undertaking a coup d'etat shall suffer the penalty of prision mayor in its maximum period. Any person not in the government service who participates, or in any manner supports, finances, abets or aids in undertaking a coup d'etat shall suffer the penalty of reclusion temporal in its maximum period. When the rebellion, insurrection, or coup d'etat shall be under the command of unknown leaders, any person who in fact directed the others, spoke for them, signed receipts and other documents issued in their name, as performed similar acts, on behalf or the rebels shall be deemed a leader of such a rebellion, insurrection, or coup d'etat . (As amended by R.A. 6968, approved on October 24, 1990). • •
This article shows that there are no accomplices in rebellion, coup d’etat or insurrection. If the leader is not known, the following are deemed leaders: Those who directed others, spoke for them, signed receipts and other documents issued in their o name o
Art. 136. Conspiracy and proposal to commit coup d’etat, rebellion or insurrection. — The conspiracy and proposal to commit coup d’etat shall be punished by prision mayor in minimum period and a fine which shall not exceed eight thousand pesos (P8,000.00). The conspiracy and proposal to commit rebellion or insurrection shall be punished respectively, by prision correccional in its maximum period and a fine which shall not exceed five thousand pesos (P5,000.00) and by prision correccional in its medium period and a fine not exceeding two thousand pesos (P2,000.00). (As amended by R.A. 6968, approved October 24, 1990). •
Conspiracy to commit rebellion or coup d’etat is a continuing crime.
Art. 137. Disloyalty of public officers or employees. — The penalty of prision correccional in its minimum period shall be imposed upon public officers or employees who have failed to resist a rebellion by all the means in their power, or shall continue to discharge the duties of their offices under the control of the rebels or shall accept appointment to office under them. (Reinstated by E.O. No. 187). •
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This only applies to rebellion If someone accepts a position in coup d’etat, you charge them under Art 135 o Elements: Offender is a public officer or employee o Commits any of the following acts of disloyalty: o Failing to resist a rebellion by all the means in their power; Continuing to discharge the duties of their offices under the control of the rebels; Accepting appointment to office under them Acceptance of public position or continuing to discharge functions amounts to disloyalty Motive of public officer is immaterial But if he commits overt acts of rebellion, then the crime becomes rebellion, not disloyalty Ex: public officer who continues his officer, and then commits malversation to give funds to the o rebels Can be committed by omission: by failing to resist the rebellion within one’s powers Valid defense: art 12 (fear, force, etc)
Art. 138. Inciting a rebellion or insurrection. — The penalty of prision mayor in its minimum period shall be imposed upon any person who, without taking arms or being in open hostility against the Government, shall incite others to the execution of any of the acts specified in article 134 of this Code, by means of speeches, proclamations, writings, emblems, banners or other representations tending to the same end. (Reinstated by E.O. No. 187). •
Elements: Offender does not take arms or is not in open hostility against the government o
Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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He incites others to the execution of any of the acts of rebellion The inciting is done by means of speeches, proclamations, writings, emblems, banners or other o representations tending to the same end Writings or speech must be done with intent to induce the readers or listeners to commit rebellion or insurrection If the listeners are not incited, they are not guilty of any crime. Only the person speaking is guilty of inciting. o Example: Bellatrix gives a passionate speech to rebel against the Ministry. But the people in the Leaky Cauldron were all just, like, “meh,” and continued downing some firewhiskies. Only Bellatrix is guilty of inciting a rebellion. But if the listenrs are incited to commit rebellion and commit rebellion, all of them (including the o incited) are all principals for REBELLION. Inciter (bellatrix) – PDI Listeners (rebels) – PDP Inciting to Rebellion Proposal to Commit Rebellion Here, the inciter has yet to decide to Here, the one proposing has already commit rebellion decided to commit rebellion Done in public Usually done in secret There is no crime of inciting to coup d’etat. o
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Art. 139. Sedition; How committed. — The crime of sedition is committed by persons who rise publicly and tumultuously in order to attain by force, intimidation, or by other means outside of legal methods, any of the following objects: 1. To prevent the promulgation or execution of any law or the holding of any popular election; 2. 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; 3. To inflict any act of hate or revenge upon the person or property of any public officer or employee; 4. To commit, for any political or social end, any act of hate or revenge against private persons or any social class; and 5. To despoil, for any political or social end, any person, municipality or province, or the National Government (or the Government of the United States), of all its property or any part thereof. Art. 140. Penalty for sedition. — The leader of a sedition shall suffer the penalty of prision mayor in its minimum period and a fine not exceeding 10,000 pesos. Other persons participating therein shall suffer the penalty of prision correccional in its maximum period and a fine not exceeding 5,000 pesos. (Reinstated by E.O. No. 187). •
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Elements: The offenders rise publicly and tumultuously o They employ force, intimidation, or other means outside of legal methods o The offenders employ any of those means to attain any of the following objects: o Prevent the promulgation or execution of any law or the holding of any popular election Prevent the National Gov’t, or any provincial or municipal gov’t, or any public officer thereof from freely exercising its or his functions, or prevent the execution of any administrative order Inflict any act of hate or revenge upon the person or property of any public officer or employee Commit, for any political or social end, any act of hate or revenge against private persons or any social class; and Despoil, for any political or social end, any person, municipality or province, or the national gov’t of all its property or any part thereof Ultimate objective of sedition: violation of the public peace It is a crime against public order and the tranquility of the general public. o The key term here is: rising publicly and tumultuously Tumultuously: full of public commotion or uproar o The essence of sedition: intent to attain any of the objectives and a tumultuous appraising There is a tumultuous public uprising when more than 3 persons are armed, or have means of o violence. (from Art 153) But take note that in sedition, it is not an essential element that there be violence. Since
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it can be done by intimidation or by other means outside of legal methods. In both rebellion and sedition, there is public uprising. o But in rebellion: the purpose is political and they take up arms In sedition: the purpose can be political or social, no need to take up arms since they do not intend to overthrow the government. Can sedition be committed at night? Yes. it doesn’t matter what time of day it is committed. o The test is, “is it private or public?”, or whether or not the actuations may be seen or can be o seen. If done during the day, but no one can see it because the perpetrators did it in private or hidden, o then no sedition. First motive: Prevent the promulgation or execution of any law or the holding of any popular election “Laws” include political laws, even civil and criminal laws; also includes ordinances of municipal o or provincial boards Second motive: Prevent the National Gov’t, or any provincial or municipal gov’t, or any public officer thereof from freely exercising its or his functions, or prevent the execution of any administrative order “Officers” include: o judges, justices, and constitutional officers; municipal councils, provincial government or board but does NOT include barangays councils or officials (they are included in the 3 rd motive) Third motive: Inflict any act of hate or revenge upon the person or property of any public officer or employee What is an act of hate o r revenge? o These will include crimes against persons (murder, physical injuries), property (arson, usurpation of real rights), special penal laws GR: in criminal law, motive is not important, right? But when it comes to sedition (also in o rebellion and direct assault), motive is important. If the act was not motivated by hate or revenge, it may be another crime. o A mayor evicted 100 families from their homes. The families nagwelga and engaged in an o uprising. They killed the mayor while was sleeping. What crimes were committed? Sedition (because the motive was for revenge) Direct Assault with homicide Note: the direct assault here refers to the direct assault in the second form (ie when a public officer is attacked, etc), not the first form (employing force or intimidation without a public arising) Regarding the 1st form of direct assault, Boado says the crime of direct o assault cannot be committed when there is rebellion or sedition because public uprising is an element thereof which is required to be absent in direct assault. Fourth motive: commit, for any political or social end, any act of hate or revenge against private persons or any social class Act of hate or revenge applies here as well, but here the victims are private persons or any o social class Shows that sedition is not a political crime only, since the acts can be for a social end o For example, farmers rising publicly and tumultuously against landowners Fifth motive: Despoil, for any political or social end, any person, municipality or province, or the national gov’t of all its property or any part thereof To despoil is to destroy o Important: common crimes like murder, homicide, PI, arson, are NOT abzzzorbed by sedition. (P v Camlon) NEITHER are they complexed. Art 48 will NOT apply. o They are SEPARATE and INDEPENDENT crimes. (P v Camlon, where the court said that o kidnapping with murder was not absorbed sedition because sedition was a crime directed against the State, the government and public tranquility, while murder was a crime against the lives of people) That’s why those who killed the mayor while he was sleeping were charged with separate •
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crimes of sedition and direct assault with homicide. It is, however, possible to have a complex crime of sedition with prevention of board/Congress o meeting. (Art 143/144) What about illegal firearms? Use of illegal firearms is ABSZSZORBED by sedition. o Consummated upon the concurrence of the intent and the overt acts of rising publicly and tumultuously. Leaders are punished more harshly than their minions. (Art 140)
Art. 141. Conspiracy to commit sedition. — Persons conspiring to commit the crime of sedition shall be punished by prision correccional in its medium period and a fine not exceeding 2,000 pesos. (Reinstated by E.O. No. 187). •
There is no crime of proposal to commit sedition. (compare to rebellion and coup d’etat!)
Art. 142. Inciting to sedition. — The penalty of prision correccional in its maximum period and a fine not exceeding 2,000 pesos shall be imposed upon any person who, without taking any direct part in the crime of sedition, should incite others to the accomplishment of any of the acts which constitute sedition, by means of speeches, proclamations, writings, emblems, cartoons, banners, or other representations tending to the same end, or upon any person or persons who shall utter seditious words or speeches, write, publish, or circulate scurrilous libels against the Government (of the United States or the Government of the Commonwealth) of the Philippines, or any of the duly constituted authorities thereof, or which tend to disturb or obstruct any lawful officer in executing the functions of his office, or which tend to instigate others to cabal and meet together for unlawful purposes, or which suggest or incite rebellious conspiracies or riots, or which lead or tend to stir up the people against the lawful authorities or to disturb the peace of the community, the safety and order of the Government, or who shall knowingly conceal such evil practices. (Reinstated by E.O. No. 187). •
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Three acts punished: Inciting to Sedition to Accomplish any of its Objects: o Offender does NOT take direct part in the crime of sedition He incites others to the accomplishment of any of the acts which constitute sedition The inciting is done by means of speeches, proclamation, writings, emblems, cartoons, banners, or other representations tending to the same end Uttering seditious words or speeches which tend to disturb the public peace o Writing, publishing or circulating scurrilous libels against the government or any of the duly o constituted authorities thereof, which tend to disturb the public peace Offender does NOT take direct part in the crime of sedition Commits any of the following acts of sedition either 2 or 3 nd rd In the 2 and 3 punishable acts, no need to have any o f the enumerated purposes of sedition Enough that they tend to disturb the public peace o “Concealing such evil practices” is NOT an act of an accessory in this case, but an act of a principal. (compare with Art 19!) Shouting “let’s chop off [insert public officer’s name here]’s head!” in public will get you slapped with Inciting to Sedition (P v Perez, where he wanted to chop off General Wood’s head) But wearing a shirt that says “Oust [insert public officer’s name here]!” is not inciting to sedition, o or sedition (David v Arroyo) Freedom of speech does not protect inciting to sedition
Chapter Two CRIMES AGAINST POPULAR REPRESENTATION Section One. — Crimes against legislative bodies and similar bodies Art. 143. Act tending to prevent the meeting of the Assembly and similar bodies. — The penalty of prision correccional or a fine ranging from 200 to 2,000 pesos, or both, shall be imposed upon any person who, by force or fraud, prevents the meeting of the National Assembly (Congress of the Philippines) or of any of its committees or subcommittees, constitutional commissions or committees or divisions thereof, or of any provincial board or city or municipal council or board. (Reinstated by E.O. No. 187). •
Elements: There be a projected or actual meeting of Congress or any of its committees or subcommittees, o constitutional committees or divisions thereof, or of any provincial board or city or municipal council or board The offender who may be any person prevents such meeting by force or fraud o
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Meeting of barangays council is not included here Those who disturb barangays council meetings are liable for grave coercion under Art 286 o Any stranger may be held liable for this act So public officers or employees who are strangers to such meetings can be held liable under Art o 143
Art. 144. Disturbance of proceedings. — The penalty of arresto mayor or a fine from 200 to 1,000 pesos shall be imposed upon any person who disturbs the meetings of the National Assembly (Congress of the Philippines) or of any of its committees or subcommittees, constitutional commissions or committees or divisions thereof, or of any provincial board or city or municipal council or board, or in the presence of any such bodies should behave in such manner as to interrupt its proceedings or to impair the respect due it. (Reinstated by E.O. No. 187). •
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Elements: There be a meeting of Congress or any of its committees or subcommittees, constitutional o commissions or committees or divisions thereof, or of any provincial board or city or municipal council or board The offender does any of the following acts: o He disturbs any of such meetings 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. Offender must NOT be a member of the body disturbed, he must be a stranger to the deliberative body What if he’s not a stranger to the meeting? o If those who disturb the proceedings commit crimes of violence like homicide to disturb the meeting, Art 48 will apply Barangays council meetings are not covered by this provision So are meetings called by the mayor but are not municipal council meetings (P v Calera) o
Section Two. — Violation of parliamentary immunity Art. 145. Violation of parliamentary immunity. — The penalty of prision mayor shall be imposed upon any person who shall use force, intimidation, threats, or fraud to prevent any member of the National Assembly (Congress of the Philippines) from attending the meetings of the Assembly (Congress) or of any of its committees or subcommittees, constitutional commissions or committees or divisions thereof, from expressing his opinions or casting his vote; and the penalty of prision correccional shall be imposed upon any public officer or employee who shall, while the Assembly (Congress) is in regular or special session, arrest or search any member thereof, except in case such member has committed a crime punishable under this Code by a penalty higher than prision mayor.
Should be read with the 1987 Constitution. Parliamentary immunity only applies up to prision correctional.18 Two acts punishable: Using force, intimidation, threats or frauds to prevent any member of the National Assmebly o from either attending the meetings of the Assembly, its committees, or subcommittees, constitutional commissions or committees or divisions thereof, or from expressing his opinions, or casting his vote Elements of first form: The offender (any person) uses force, intimidation, threats or fraud. The purpose of the offender is to prevent any member of Congress from: Attending the meetings of Congress or any of its committees, etc.; or o Expressing his opinion; or o Casting his vote o By arresting or searching any member thereof while Congress is in regular or speacial session, o except in case such member has committed a crime punishable under the Code by a penalty higher than prision correctional. Elements of second form: Offender is a public officer or employee He arrests or searches any member of Congress • •
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Section 11. A Senator or Member of the House of Representatives shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest while the Congress is in session. No Member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof. Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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Congress, at the time of arrest or search, is in regular or special session The member arrested or searched has not committed a crime punishable under the Code by a penalty higher than prision correctional If a congressman is in possession of a low-caliber illegal gun, he is protected (since this is up to 6 years only) But if it’s a high power gun, he is not immune! o They are also immune from searches under this provision. But it is not in the Constitution! In the ConCom deliberations, searches do not prevent their o functions. So the Constitution does not protect searches. Possible thesis topic? Don’t care, tapos na tayo sa thesis eh! Woohoo! • •
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Chapter Three ILLEGAL ASSEMBLIES AND ASSOCIATIONS Art. 146. Illegal assemblies. — The penalty of prision correccional in its maximum period to prision mayor in its medium period shall be imposed upon the organizers or leaders of any meeting attended by armed persons for the purpose of committing any of the crimes punishable under this Code, or of any meeting in which the audience is incited to the commission of the crime of treason, rebellion or insurrection, sedition or assault upon a person in authority or his agents. Persons merely present at such meeting shall suffer the penalty of arresto mayor, unless they are armed, in which case the penalty shall be prision correccional. If any person present at the meeting carries an unlicensed firearm, it shall be presumed that the purpose of said meeting, insofar as he is concerned, is to commit acts punishable under this Code, and he shall be considered a leader or organizer of the meeting within the purview of the preceding paragraph. As used in this article, the word "meeting" shall be understood to include a gathering or group, whether in a fixed place or moving. (Reinstated by E.O. No. 187). •
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Gravamen: mere gathering for unlawful purpose which must relate to a crime under the RPC If the offense is punishable under SPL, the offense of illegal assembly is not committed o Two ways of committing illegal assembly Gathering of persons, any or some of whom are armed, for the purpose of committing any crime o under the code Elements: there is a meeting, a gathering or group of persons, whether in a fixed place or moving 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 Gathering of persons where the audience is incited to commit treason, rebellion or insurrection, o sedition, or assault upon a person in authority or his agents, even without the attendance of armed men Elements: there is a meeting, a gathering or group of persons, whether in a fixed place or moving the audience, whether armed or not, is incited to the commission of the crime of treason, rebellion or insurrection, sedition or direct assault (TRISDA) How many people are required to form a meeting? No specific number specified, but Reyes and Senator Francisco say that there must be more than o 3 people. Who are deemed leaders of these illegal assemblies? See Art 135, J-Call that also applies. o Whoever has an unlicensed firearm. o Is this carrier of an unlicensed firearm be liable for RA 8294? No, because he is committing another crime (illegal assembly!) In the first form, what if they actually commit the crime they were talking about in the meeting? No more crime of illegal assembly. It loses its juridical existence and is considered a mere o preparatory act. In the second form, all authors agree that inciting to commit such crimes is an element of the second form. •
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But there is disagreement as to the liability of the inciter. Some say the crime is inciting to rebellion or sedition. However, the problem is, that’s already an element of Art 146, so how can one commit inciting to rebellion or sedition when it’s already considered an element? J-Call: if the inciter’s not a member of the assembly (a stranger/one who is merely invited to talk), he is liable for inciting. if the one inciting is a member, the government has two options: charge with illegal assembly as a leader, or o charge with inciting to rebellion or sedition o A called 5 people to a meeting to incite them to commit rebellion. The 5 were like, “We ain’t o shufflin’ to yo beat” and didn’t do anything. Reyes: A is deemed leader 5: no crime. Francisco: A: inciting to rebellion or illegal assembly 5: illegal assembly (parang mali!) A called 5 people to a meeting to commit direct assault. A urged all of them, but they were like o “meh!”. What happens? No liability for A, since there’s no crime for inciting to direct assault. No liability for the 5, since no purpose to commit the crime. What if the 5 do decide to commit direct assault and in fact, commit direct assault? o A liable for direct assault as PDI. 5 liable for direct assault as PDP. No illegal assembly since it has lost its juridical existence. (Cuello Callon) The presence of a person who carries an unlicensed firearm gives rise to two presumptions: The meeting, as far as he is concerned, is illegal o He is a leader or organizer of such meeting o o
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Art. 147. Illegal associations. — The penalty of prision correccional in its minimum and medium periods and a fine not exceeding 1,000 pesos shall be imposed upon the founders, directors, and presidents of associations totally or partially organized for the purpose of committing any of the crimes punishable under this Code or for some purpose contrary to public morals. Mere members of said associations shall suffer the penalty of arresto mayor. •
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Gravamen: forming an organization, corporation or association for the purpose of criminal activities prohibited by the Code or by special laws against public morals or any act prejudicial to public welfare Two types of illegal associations: Associations totally or partially organized for the purpose of committing any of the crimes o punishable under the Code Associations totally or partially organized for some purpose contrary to public morals o Persons liable: Founders, directors and president of the association o Mere members of the association o Includes private corporations because purpose can be seen in actions of the associations “Public morality”: those which are detrimental or dangerous to conditio ns for the advancement of society (Estrada v Escritor) Not religious morality, but secular morality o Some illegal associations by SPL: RA 9208 (Anti-Trafficking Act): associations organized to propagate or promote immoral o doctrines, obscene publications or shows, sex tourism, sexual exploitation, pornography RA 9372 (Anti-Terrorism Act): the DOJ may petition to the RTC that an association may be o declared as one composed of those conspiring to commit terrorism 19
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SEC. 17. Proscription of Terrorist Organizations, Association, or Group of Persons. – Any organization, association, or group of persons organized for the purpose of engaging in terrorism, or which, alt hough not organized for that purpose, actually uses the acts to terrorize mentioned in this Act or to sow and create 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, upon application of the Department of Justice before a competent Regional Trial Court, with due notice and opportunity to be heard given to the organization, association, or group of persons concerned, be declared a s a terrorist and outlawed organization, association, or group of persons by the said Regional Trial Court.
Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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RA 9516 (Illegal Explosives: officers are liable for their associations involved in making illegal explosives20
Chapter Four ASSAULT UPON, AND RESISTANCE AND DISOBEDIENCE TO, PERSONS IN AUTHORITY AND THEIR AGENTS Art. 148. Direct assaults. — Any person or persons who, without a public uprising, shall employ force or intimidation for the attainment of any of the purpose enumerated in defining the crimes of rebellion and sedition, or shall attack, employ force, or seriously intimidate or resist any person in authority or any of his agents, while engaged in the performance of official duties, or on occasion of such performance, shall suffer the penalty of prision correccional in its medium and maximum periods and a fine not exceeding P1,000 pesos, when the assault is committed with a weapon or when the offender is a public officer or employee, or when the offender lays hands upon a person in authority. If none of these circumstances be present, the penalty of prision correccional in its minimum period and a fine not exceeding P500 pesos shall be imposed. Art. 152. Persons in authority and agents of persons in authority; Who shall be deemed as such. — In applying the provisions of the preceding and other articles of this Code, any person directly vested with jurisdiction, whether as an individual or as a member of some court or governmental corporation, board, or commission, shall be deemed a person in authority. A barrio captain and a barangay chairman shall also be deemed a person in authority. A person who, by direct provision of law or by election or by appointment by competent authority, is charged with the maintenance of public order and the protection and security of life and property, such as a barrio councilman, barrio policeman and barangay leader and any person who comes to the aid of persons in authority, shall be deemed an agent of a person in authority. In applying the provisions of Articles 148 and 151 of this Code, teachers, professors and persons charged with the supervision of public or duly recognized private schools, colleges and universities, and lawyers in the actual performance of their professional duties or on the occasion of such performance, shall be deemed persons in authority. (As amended by PD No. 299, Sept. 19, 1973 and Batas Pambansa Blg. 873, June 12, 1985). •
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Forms of direct assault Without public uprising, by employing force or intimidation for the attainment of any of the o purposes enumerated in defining the crimes of rebellion and sedition By attacking, employing force or by seriously intimidating or by seriously resisting any person in o authority or any of his agents, while engaged in the performance of official duties, or on the occasion of such performance First form: employing violence or force with the end in view of attaining any of the purposes of rebellion or sedition, without a public uprising Elements: o
the offender employs force or intimidation the aim of the offender is to attain any of the purposes of the crime of rebellion or any of the objects of crime of sedition
there is no public uprising this form rarely occurs o Second form: attacking or laying hands upon a person in authority or an agent of a person in authority Elements: o the offender makes an attack, employs force, makes a serious intimidation, or makes a serious resistance the person assaulted is a person in authority or his agent at the time of the assault the person in authority or his agent is engaged in the actual performance of official duties, or that he is assaulted by reason of the past performance of official duties the offender knows that the one he is assaulting is a person in authority or his agent in the exercise of his duties Who may be liable under the second form? Anyone. o
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"SEC. 3-B. Penalty for the Owner, President, Manager, Director or Other Responsible Officer of Any Public or Private Firm, Company, Corporation or Entity. - The penalty of reclusion perpetua shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any explosive or incendiary device or parts thereof owned or controlled by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs. Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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“Seriously” qualifies only “intimidate” and “resist” but not attack or the use of force. In these latter cases, mere laying of hands will suffice. Force or intimidation is sufficient depending on the circumstances of the event. Intimidation is producing intense fear in the mind of the victim. (P v Alfeche) Motive is important when the PIA or agent is not performing his duty, since the reason of the assault is by reason of his past performance of official duties In the second form of direct assault, the assault is done: While the PIA or agent is engaged in the actual performance of official duties In P v Recto, a barangay tanod (an agent of a PIA) was hit by a bullet while he was sitting down. The SC held that there was no direct assault for the injury of the chief tanod because at the time he was hit, he was a mere bystander. He was not acting and had no occasion to act in the performance of his official duties. So when a public officer goes into a locality to solemnize a marriage, and then as he is going back to his office to work, he was struck on the head, there is direct assault because going back to work was part of his official duty. HOWEVER, the public officer must NOT exceed his power in the exercise of his functions of office. If he does, and then the accused strikes him, it is not direct assault. See in P v Chan Fook, where the accused struck a customs agent who o wanted to search him twice. The SC held that the second search exceeded the authority of the agent so Chan Fook’s actions were an adequate defense to repel the ‘aggression’ of the agent. it was a valid defense of the most highly esteemed of individual rights. By reason of the past performance of official duties: Hence, when a district supervisor was struck by the accused because the former refused to accommodate a friend, the accused was held liable for direct assault. The impelling motive of the attack was the performance of official duty. (Justo v CA, where the two agreed to fight but Justo struck first. Even if they fought as planned, there is still direct assault. The private complainant’s actions can not bind the State) The person must be aware before or at the time of the assault that the victim was a PIA or an agent thereof. Or at least, the person must OUGHT to HAVE KNOWN that the person assaulted was a PIA or an agent. (because of the uniform of the person, etc) Mistake of fact is a defense: The offender does not have to know that the victim is included in Art 152 as long as he knows that is a public officer which is a question of fact, ignorance of which negatives liability for direct assault but not for the material result of the assault. (can just be physical i njuries instead) Hence, when an officer in civilian clothes was doing surveillance in a public market and then he was assaulted, there was no direct assault because the accused did not know that the police officer was on duty. (P v Villasenor) Person in authority: any public officer vested with jurisdiction, recognized in law and clothed with authority in law, whether individually or as a member of board or corporate body. Includes a barangays chairman, punong barangays, sanggu barangays members and members of the lupong tagapamayapa (LGC) Teachers, lawyers and heads of schools but only for purposes of Art 152 in relation to Art 148 and 151 Hence, if a crime was committed in front of the teacher, the AC of disregard of public authority will not be appreciated. (P v Tac-an) Teachers and professors are PIAs when performing their duties for the DDA Agent of a person in authority – any person who, by direct provision of law, by election of appointment by competent authority is charged with the maintenance of order and the protection and security of life and property; and any person who comes to the aid of a PIA Includes police, municipal treasurer, postmaster, rural policemen, sheriff, BIR agents, Malacanang confidential agent The character of a PIA or agent is not laid off at will, it attaches until one ceases to be in office (Justo v CA) •
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Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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Do you have to actually inflict a wound on the officer? No. even if you miss, it will still be considered an “attack” hence DA. Qualified when: Committed with a weapon o Offender is a public officer or employee o Offender lays a hand upon the PIA (not the agent!) o Important: even if all 3 are present, you don’t add them all up. The penalty is still PC max-med. Qualifying 1: committed with a weapon Not enough to merely carry a weapon. He must use the weapon to assault the victim. o He doesn’t have to fire the weapon. Mere aiming of a gun to a PIA is qualified direct assault o because there is intimidation with use of a weapon. What What if unlice unlicense nsed d firear firearm? m? You can’t can’t file a separa separate te case case for illega illegall posses possessio sion n of unlicensed firearm. Qualifying 2: offender is a public officer or employee Is Sarah Duterte liable for qualified qualified direct assault for striking striking the deputy sheriff? sheriff? Is the deputy o sheriff a PIA or an agent? Qualifying 3: lay a hand upon the PIA Important: lay a hand only applies to PIA, not to agents of a PIA (see codal) o Lay a hand means to inflict a physical attack. Can be holding, shoving, with an intent to cause o evil or injury Not necessary to ascertain what force the law requires, since the law itself defines the force by o providing the term “laying a hand.” (US v Gamban, wherein the accused slapped the municipal president) There can be a complex crime of direct assault with another felony. (direct assault with murder, etc) In P v Ladjaa Ladjaalam, lam, the crime crime was complex: complex: direct direct assaul assaultt with multiple multiple attemp attempted ted homicide (where the accused fired on the mayor and police officers attempting to serve a warrant) Also complex crime of DA with serious disturbance of proceedings. (Villanueva v Ortizz wherein election inspectors’ meeting was disturbed by an assault) BUT if direct assault is committed and only slight PI results, results, there is just the crime of direct direct o assault. Solve: A fat mayor was on the way home or going to the office. The accused robbed the mayor o and killed him. Just robbery with homicide. DA absorbed by robbery with homicide, since robbery with homicide absobrs crimes committed pursuant to such. Any person who strikes or assaults an ambassador or a public minister is liable under RA 75 in addition to the penalties which may be imposed by the RPC.21 Wait! How do you reconcile this provision with Art 265, which provides a distinct penalty if the victim is PIA? In Art 265, the laying of hands upon a person in authority is a qualifying circumstance provided o that the crime committed is not direct assault (meaning it was not by reason of his being a PIA or on the performance of his functions.) The crime would be qualified less serious physical injuries. If the laying of hands is during or by reason of the performance of duties of a PIA (not an agent) o and results to less serious physical injuries,t he crime is the complex crime of DA with less serious physical injuries. Mindmelting problems: RTC Judge A was going to read out his decision in court. C (the accused) had his 5 friends there o in the courtroom to support him. Other people were also there watching. While the decision was being read, the 5 friends simultaneously shouted, “Gago ka! Nabili ka na! Mukha ka pang itlog!” and proceeded to assault him. People scampered away and the judge died. What are the criminal liabilities of the 5 friends? Direct assault with homicide/murder Sedition o
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Section 6. Any person who assaults, strikes, wounds, imprisons or in any other manner offers violence to the person of an ambassador or a public minister, in violation of the law of nations, shall be imprisoned not more than three years, and fined not exceeding two hundred pesos, in the discretion of the court, in addition to the penalties that may be imposed under the Revised Penal Code.
Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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Serious disturbance under Art 153, qualified by tumults There was a city council session. Harry, a private person who had nothing to do with the meeting, enters the room and fires his gun. Everyone scampers away like rabbits. What is Harry liable for? Disturbance of proceedings with discharge of firearms (not sure)
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Art. 149. Indirect 149. Indirect assaults. assaults. — The penalty of prision correccional in its minimum and medium periods and a fine not exceeding P500 pesos shall be imposed upon any person who shall make use of force or intimidation upon any person coming to the aid of the authorities or their agents on occasion of the commission of any of the crimes defined in the next preceding article. •
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Elements: An agent is the victim of any of the forms of direct assault defined in Article 148 o A person comes to the aid of such agent o The offender makes use of force or intimidation upon such person coming to the aid of the o authority or his agent Why only agent? Why not those who come to the aid of PIAs? Because of RA 1978, one who comes to the aid of a PIA becomes an agent of authority. So if he o is himself attacked, the crime is direct assault. Hence, there is only indirect assault if the private person comes to the aid of the agent of the o PIA. Accused stabbed policeman B. C, a hero, helps B, but is also stabbed by A. B dies. C gets a mortal wound. As to stabbing B, accused is liable for direct assault with homcide. o As to stabbing C, indirect assault with frustrated homicide. o
Art. 151. Resistance and disobedience disobedience to a person in authority or the agents of such person. — The penalty of arresto mayor and a fine not exceeding 500 pesos shall be imposed upon any person who not being included in the provisions of the preceding articles shall resist or seriously disobey any person in authority, or the agents of such person, while engaged in the performance of official duties. When the disobedience to an agent of a person in authority is not of a serious nature, the penalty of arresto menor or a fine ranging from 10 to P100 pesos shall be imposed upon the offender. •
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Resistance and Serious Disobedience (Par.1): A person in authority or his agent is engaged in the performance of official duty or gives a lawful o order to the offender The offender resists or seriously disobeys such person in authority or his agent o The act of the offender is not included in the provisions of Articles 148, 149, and 150 o Simple Disobedience (Par. 2): An agent of a person in authority is engaged in the performance of official duty or gives a lawful o order to the offender The offender disobeys such agent of a person in authority o Such disobedience is not of a serious nature o For one not to be liable for resistance, the resistance must be co-extensive with the excess of authority, and just sufficient to repel the excess or abuse
Art. 150. Disobedience to summons issued by the National Assembly, its committees or subcommittees, by the Constitutional Commissions, its committees, subcommittees or divisions. — The penalty of arresto mayor or a fine ranging from two hundred to one thousand pesos, or both such fine and imprisonment shall be imposed imposed upon any person person who, having having been duly summone summoned d to attend as a witness witness before the Nationa Nationall Assem Assembly bly,, (Cong (Congres ress), s), its specia speciall or stand standing ing commit committee tees s and and subco subcommi mmitte ttees, es, the the Consti Constitut tution ional al Commission Commissions s and its committe committees, es, subcommi subcommittee ttees, s, or division divisions, s, or before before any commissio commission n or committe committee e chairman or member authorized to summon witnesses, refuses, without legal excuse, to obey such summons, or being present before any such legislative or constitutional body or official, refuses to be sworn or placed under affirmation or to answer any legal inquiry or to produce any books, papers, documents, or records in his possession, when required by them to do so in the exercise of their functions. The same penalty shall be imposed imposed upon any person person who shall shall restrain restrain another another from attendin attending g as a witness, witness, or who shall induce disobedience to a summon or refusal to be sworn by any such body or official. •
Acts punished: By refusi refusing, ng, without without legal legal excuse excuse,, to obey obey summons summons of Congre Congress, ss, its special special or standin standing g o
Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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committees and subcommittees or divisions, or by any commission or committee chairman or member authorized to summon witnesses By refusi refusing ng to be sworn sworn or placed placed under affirmati affirmation on while while being being before before such legisl legislati ative ve or o constitutional body or official By refusing to answer any legal inquiry or to produce any books, papers, documents, or records o in his possession, when required by them to do so in the exercise of their functions By restraining another from attending as a witness in such legislative or constitutional body o By inducing disobedience to a summons or refusal to be sworn by any such body or official o The President and SC justices are exempt from powers of inquiry. (Senate v Ermita) Grounds for a justified refusal: Wiretapping o RA 9372 (info secured in violation of the anti-terrorism law is inadmissible in evidence in any o juidicial, qj, legislative or admin proceeding) Executive privilege o Bank records o Privileged communications o Informer’s privilege o Newsmen’s privilege o
Chapter Five PUBLIC DISORDERS Art. 153. Tumults and other disturbance of public orders; Tumultuous disturbance or interruption liable to cause disturbance. — The The pena penalty lty of arrest arresto o mayor mayor in its medium medium period period to prisi prision on correc correccio ciona nall in its minimum period and a fine not exceeding 1,000 pesos shall be imposed upon any person who shall cause any serio serious us distur disturba bance nce in a publi public c place place,, office office,, or establ establish ishmen ment, t, or shall shall inter interrup ruptt or distur disturb b publi public c performances, functions or gatherings, or peaceful meetings, if the act is not included in the provisions of Articles 131 and 132. The penalty next higher in degree shall be imposed upon persons causing any disturbance or interruption of a tumultuous character. The disturbance disturbance or interruption interruption shall be deemed to be tumultuous if caused by more than three persons who are armed or provided with means of violence. The penalty of arresto mayor shall be imposed upon any person who in any meeting, association, or public place, shall make any outcry tending to incite rebellion or sedition or in such place shall display placards or emblems which provoke a disturbance of the public order. The penalty of arresto menor and a fine not to exceed P200 pesos shall be imposed upon these persons who in violation of the provisions contained in the last clause of Article 85, shall bury with pomp the body of a person who has been legally executed. •
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Acts punished: Causing any serious disturbance in a public place, office or establishment o Interrupting or disturbing performances, functions or gatherings, or peaceful meetings, if the act o is not included in Articles 131 and 132 Making any outcry tending to incite rebellion or sedition in any meeting, association or public o place Displaying placards or emblems which provoke a disturbance of public order in such place o Burying with pomp the body of a person who has been legally executed o First act: serious disturbance Check the gravity, the place, and the intent. o The disturbance must be serious to fall under this article. o Look at that facts and circumstances surrounding the causing of disturbance and the effect to the people to determine if it’s serious If not serious, it will be alarms or scandals under 155. Public places are those open to the public, as distinguished from domiciles which are exclusive o It can be committed by a public officer who is part of the assembly o Cannot be committed by culpa o There must be intent to seriously disturb Second act: interrupting or disturbing public performances, functions or gatherings not covered by 131 (peaceful meetings) or 132 (religious worship) There must be a public performance or function which is not under 131 or 132 o •
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Hence, this will cover disturbance of court proceedings (P v Adugan) or proceedings held by the Comelec. (Villanueva v Ortiz) Can be committed by anyone, participant or not o Can be committed by private or public officers o There was a public rally of Iglesia ni Cristo and there was serious disturbance. What crime do o you charge – 131, 132 or 153? 131! Not 132 because it’s not a religious ceremony. 131 because it’s a rally. Not 153 because 131 applies already. This is a crime against public order, as against 131 which is a crime against the fundamental law o of the State. So this really is just for normal gatherings and not those subject to fundamental rights. The disturbance is deemed tumultuous if: o Caused by more than 3 armed men or those provided with means of violence. Presumption won’t apply if there is actually a tumultuous disturbance. Third act: making any outcry tending to incite to rebellion or sedition How do you determine if the crime charged should be inciting to rebellion/sedition or Art 153 o (tending to incite)? Intent controls. For inciting, there has to be intent in the first place. If the person who makes statements tending to incite the listeners to rise to rebellion or sedition had that original criminal intent, charge with inciting to rebellion/sedition. For 153, there’s just the tendency to incite. Fourth act: displaying placards or emblems which disturb the public order Fifth act: burying with pomp the body of a person legally executed Not really applicable because no one is executed now. o Important: Even if there are two or three modes/acts done, there is still just one crime since the law only gives one penalty. So if you seriously disturb a court proceeding (second mode) by shouting stuff which tend to o incite rebellion (third act) and you carry placards which disturb the public order (fourth mode), you can only be charged of one crime of 153. Art 48 WILL apply. In Villanueva v Ortiz, during election canvassing, someone assaulted the inspector, killed him o thus causing a serious disturbance. Accused charged with serious disturbance with direct assault.
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Art. 154. Unlawful use of means of publication and unlawful utterances. — The penalty of arresto mayor and a fine ranging from P200 to P1,000 pesos shall be imposed upon: 1. Any person who by means of printing, lithography, or any other means of publication shall publish or cause to be published as news any false news which may endanger the public order, or cause damage to the interest or credit of the State; 2. Any person who by the same means, or by words, utterances or speeches shall encourage disobedience to the law or to the constituted authorities or praise, justify, or extol any act punished by law; 3. Any person who shall maliciously publish or cause to be published any official resolution or document without proper authority, or before they have been published officially; or 4. Any person who shall print, publish, or distribute or cause to be printed, published, or distributed books, pamphlets, periodicals, or leaflets which do not bear the real printer's name, or which are classified as anonymous. •
Acts punished: Publishing or causing to be published, by means of printing, lithography or any other means of o publication, as news any false news which may endanger the public order, or cause damage to the interest or credit of the State Here, there is no requirement that the act causes damage or injury. It is enough that it endangers public safety or order The publisher or person must be aware of the falsity of the news By encouraging disobedience to the law or to the constituted authorities or by praising, justifying o or extolling any act punished by law, by the same means or by words, utterances or speeches The acts must pose danger to the public order In a case where leaflets were distributed encouraging people to disregard the law, this article was used (P v Arogante)
Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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By maliciously publishing or causing to be published any official resolution or document without proper authority, or before they have been published officially By printing, publishing or distributing (or causing the same) books, pamphlets, periodicals, or leaflets which do not bear the real printer’s name, or which are classified as anonymous
Art. 155. Alarms and scandals. — The penalty of arresto menor or a fine not exceeding P200 pesos shall be imposed upon: 1. Any person who within any town or public place, shall discharge any firearm, rocket, firecracker, or other explosives calculated to cause alarm or danger; 2. Any person who shall instigate or take an active part in any charivari or other disorderly meeting offensive to another or prejudicial to public tranquility; 3. Any person who, while wandering about at night or while engaged in any other nocturnal amusements, shall disturb the public peace; or 4. Any person who, while intoxicated or otherwise, shall cause any disturbance or scandal in public places, provided that the circumstances of the case shall not make the provisions of Article 153 applicable. •
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Acts punished: Discharging any firearm, rocket, firecracker, or other explosive within any town or public place, o which produces alarm or danger Instigating or taking an active part in any charivari or other disorderly meeting offensive to o another or prejudicial to public tranquility Disturbing the public peace while wandering about at night or while engaged in any other o nocturnal amusements Causing any disturbance or scandal in public places not amounting to tumults o Not a specific intent crime. It is the RESULT, not the intent that controls. o “Calculated to cause alarm or danger” is an erroneous translation. o Hence, can be committed by culpa. o If there is discharge of firearm but no alarm caused, then there is no crime under Art 155. o What if the firearm was unlicensed? Still can’t be charged under RA 8294, since another crime was committed. What if you discharge a firearm during a fiesta? Viada says no 155. (seems wrong!) Charivari: a mock serenade where the offender actually disturbs the peace by using cans, pans, utensils, cauldrons. If you’re noisy and annoying, what can you be charged with? Alarms and scandals: if you disturb the public at night o Unjust vexation: if the noise is directed to a particular person or family o Pagiging kupal . o Boado summarizes the variant crimes that can arise from the use of firearms: Alarms and scandals: if discharges in public but not pointed to anyone and produces alarm or o danger Illegal discharge of firearms (254): if directed to a person who was not hit if intent to kill was not o proved Attempted or frustrated homicide or murder: attempt (if with intent to kill), frustrated (if mortal o wound) Physical injuries: person hit but no intent to kill o Threat: if not discharged but merely pointed to another o Grave coercion: if threat was direct, immediate and serious and the person is compelled or o prevented to do something against his will Illegal possession of firearm: if unlicensed and no other crime was committed by means of such o firearm •
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Art. 156. Delivery of prisoners from jails. — The penalty of arresto mayor in its maximum period of prision correccional in its minimum period shall be imposed upon any person who shall remove from any jail or penal establishment any person confined therein or shall help the escape of such person, by means of violence, intimidation, or bribery. If other means are used, the penalty of arresto mayor shall be imposed. Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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If the escape of the prisoner shall take place outside of said establishments by taking the guards by surprise, the same penalties shall be imposed in their minimum period. •
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This article focuses on the person who helps the escaping prisoner. For the liability of the prisoner, see Art 157. Elements: There is a person confined in a jail or penal establishment o The offender removes therefrom such person, o r helps the escape of such person o The offender is any person who is NOT the custodian of the prisoner. Who are these? o Those helping a co-prisoner Employees of penal establishment, if without custody of the prisoner Private persons If he were the custodian who connived in the escape or was negligent, he is liable for infidelity in o the custody of prisoner either through dolo or negligence. (Art 223-225). Is it possible that a person with custody of a prisoner be liable for delivery of prisoners and not infidelity? Yes, if he was off-duty. (Cuello Callon) What is punished: Any person who o removes from jail or penal establishment a person confined therein, or helps the escape of such person, by means of violence, intimidation or bribery. If through other means, lower penalty. If by taking guards by surprise outside the establishment, lowest penalty. Who are delivered out of jail? Both detention prisoners and convicts. o Read with next article. Hence, if convict escapes, liable for evasion of sentence. If detainee escapes, not liable for anything. He is presumed innocent. Unless he is in conspiracy with the one who helped in his escape. Unless he commits another crime in trying to escape, he will be liable for that crime. (If he beats up a guard as he tries to escape) Those charged with Art 156 are principals under 156 (compare to Art 19) Can’t be done by culpa. No frustrated delivery from jail. But there’s attempted delivery from jail. o Crime consummated the moment he steps out of the building where the cell is, however brief it may be. Hence, even if prisoner had a change of heart and returned, the deliverer is still liable. o If a mental retardate is transferred to a hospital from a jail, and the mental retardate is delivered from the hospital, is there a crime? Yes. the hospital is an extension of prison. o What if a person is in his house, can there be delivery from prison? Yes. House arrest is a form of arresto menor. o If the prisoner who escapes is a detention prisoner, and he is convicted later on for the crime for which he was detained, is he entitled to ISL? No. Disqualified from the ISL are also those who have escaped from “confinement.” o In the Anti-terrorism act, the custodian who lets the prisoner escape is liable. Applies to both detention prisoners and convicts. 22 (Read with Art 223-225). Applies even to culpa, as long as inexcusable negligence. o A is serving time for terrorism charges. B, his custodian, helped him escape. Solve. o A can be charged with 157. (also 156 if he conspired with B) B can be charged with RA 9372, Sec 44. But take note of Sec 49, prosecution under RA •
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SEC. 44. Infidelity in the Custody of Detained Persons. – Any public officer who has direct custody of a detained person under the provisions of this Act and who by his deliberate act, misconduct, or inexcusable negligence causes or allows the escape of such detained person shall be guilty of an offense and shall suffer the penalty of: (a) twelve (12) years and one day to twenty (20) years of imprisonment, i f the detained person has already been convicted and sentenced in a final judgment of a competent court; and (b) six (6) years and one day to twelve (12) years of imprisonment, if the detained person has not been convicted and sentenced in a final judgment of a competent court. Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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9372 is a bar to prosecution under RPC. If the detention prisoner is found guilty of parricide, and the person delivered him, can the person be charged as accessory under Art 19? Yes. The law provides that a person who helps escape a person who is guilty parricide, murder, o treason, escape, he can be an accessory under Art 19 to parricide, murder, treason.23 Prosecutor can choose between Art 19 or 156. He can only choose one. o But Art 19’s penalty is heavier. So choose 19. Bribery in this case can be deemed as a means to commit the crime of delivery. Take note of the person who is being bribed. If the public officer (who is not the custodian of the prisoner) accepts a bribe to release the detention prisoner, what are the crimes? One giving money corruption of public officers and delivery of prisoners from jail (by o conspiracy/PDI) One accepting bribery and delivery of prisoners from jail o Will Art 48 apply to the public officer accepting? No. See Art 210, bribery can be charged “in addition to…” What if bribery was towards another prisoner, what is the effect? Deemed as a means to commit the crime. o What about the co-prisoner who helped? o Law says “other means”, what does it mean? Craft, disguise, fraud, etc. o Effect: lowers penalty to arresto mayor. o If the other means used by the principal of delivery of prisoners is a felony, what happens? Art 48 applies. o Ex: direct assault with delivery of prisoner from jail, attempted homicide with delivery, delivery with use of false name, etc So, when does Art 48 not apply ? o If the means are already specifically provided in Art 156: Violence, intimidation, or bribery Other means that do not constitute crimes by themselves Slight physical injuries because J-Call says it’s abzzzorbed! • • •
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Boado summarizes who can be liable for delivery of prisoners from jail: Detention prisoners if he participated in the plan to make him escape or at least acquiesced thereto Convict whose conviction is not yet final or on appeal under the same condition Person rescuing from jail who is not the custodian. Can be a civilian or a public officer who is not the prisoner’s custodian.
Chapter Six EVASION OF SERVICE OF SENTENCE Art. 157. Evasion of service of sentence. — The penalty of prision correccional in its medium and maximum periods shall be imposed upon any convict who shall evade service of his sentence by escaping during the term of his imprisonment by reason of final judgment. However, if such evasion or escape shall have taken place by means of unlawful entry, by breaking doors, windows, gates, walls, roofs, or floors, or by using picklocks, false keys, deceit, violence or intimidation, or through connivance with other convicts or employees of the penal institution, the penalty shall be prision correccional in its maximum period. • •
Committed by one convicted by final judgment and escapes from prison. Elements (Tanega v Masacayan): Convict by final judgment o Serving of sentence which consists of deprivation of liberty o Escaping during sentence o Escape is the unlawful departure from the limits of his custody. One not arrested for service of fj cannot be held to have evaded service of sentence. (Del Castillo v Torrecampo)
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3. By harboring, concealing, or assisting in the escape of the principals of the crime, provided the accessory acts with abuse of his public functions or whenever the author of the crime is guilty of treason, parricide, murder, or an attempt to take the life of the Chief Executive, or is known to be habitually guilty of some other crime. Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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The prescription of penalties is suspended w hen one escapes from jail. Can he be arrested without warrant? Yes, on two grounds: o Warrantless arrest is allowed for tho se who escaped. Evasion of service of sentence is a continuing crime.24 Hence, officer arresting can not be charged with arbitrary arrest. o Can one be guilty of evasion of sentence, although not confined in a prison? Yes. o If arresto menor: if he leaves his house (and he was confined there) o If destierro: if she entered into the prohibited place o If confined in a hospital which is an extension of the penal institution o If the convict pretends to be insane, is brought to the hospital, and from there, he escapes. What aggravating circumstance will apply? Deceit. Is a person serving sentence for an SPL liable for evasion (ie, should the fj be a felony under the RPC)? Yes. as long as serving sentence, whether RPC or SPL. o So dude serving sentence for DDA can be liable for evasion if he escapes. o Under what circumstances may a prisoner not be liable for evasion of service of sentence? Detention prisoner o Deportee who violated deportation order o Youthful offender under RA 9344, since rehab center is not a penal institution and judgment is o suspended Supposing one is convicted for DDA, and ordered to suffer imprisonment and then deportation after serving of sentence. If he escapes while serving of sentence, liable for evasion of sentence. o If he escapes after serving of sentence, but before deportation, not evasion of service but just a o violation of deportation order. (US v Hoe) If one uses violation or intimidation, it is absorbed by Art 157. But if another felony is committed to evade, then Art 48 can apply. o Circumstances qualifying offense: Unlawful entry o Breaking doors, windows, etc o Using picklocks, false keys, disguise, deceit, violence, intimid ation, o Connivance with other convicts or employees of penal institution o What are possible aggravating circumstances that can come with this crime? Fraud, craft, deceit, disguise o Window, etc be broken o Disregard of rank o Problem: Sirius is serving sentence in Azkaban, a penal institution. As he was escaping, he kills the fat prison warden, a person in authority. What crimes did he commit? Evasion of service of sentence o Direct assault with murder/homicide o Is it possible that conspiracy or connivance be an aggravating circumstance? What is the effect if a coprisoner connives? (Art 157) For delivery of prisoners from jail, if there is connivance, it aggravates the punishment. Hence, o this is a third character of conspiracy (aside from mode and crime in itself) – it also becomes an aggravating circumstance. Whose punishment is aggravated? o The escapee since Art 157 focuses on the escapee. A, convicted for murder, pays B, an employee of the penal institution, to help him escape. A o escapes with B’s help. Hence, A is guilty of qualified evasion of sentence. What if A was a detention prisoner and pays B, an employee of the penal institution? o
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Sec. 5. Arrest without warrant; when lawful. – A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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A not liable for evasion of sentence since he is merely a detainee. So, the aggravating circumstance won’t apply to him. He could probably be liable for corruption of public officers and delivery of prisoners from jail (by conspiracy with B).
Art. 158. Evasion of service of sentence on the occasion of disorder, conflagrations, earthquakes, or other calamities. — A convict who shall evade the service of his sentence, by leaving the penal institution where he shall have been confined, on the occasion of disorder resulting from a conflagration, earthquake, explosion, or similar catastrophe, or during a mutiny in which he has not participated, shall suffer an increase of onefifth of the time still remaining to be served under the original sentence, which in no case shall exceed six months, if he shall fail to give himself up to the authorities within forty-eight hours following the issuance of a proclamation by the Chief Executive announcing the passing away of such calamity. Convicts who, under the circumstances mentioned in the preceding paragraph, shall give themselves up to the authorities within the above mentioned period of 48 hours, shall be entitled to the deduction provided in Article 98. •
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Elements: The offender is a convict by final judgment, who is confined in a penal institution o There is a disorder, resulting from: conflagration, earthquake, explosion, similar catastrophe, or o mutiny in which he has not participated The offender evades the service of his sentence by leaving the penal institution where he is o confined, on the occasion of such disorder or during the mutiny The offender fails to give himself up to the authorities within 48 hours following the issuance of a o proclamation by the chief executive announcing the passing away of such calamity Riots are not included in the coverage of Art 158. Mutiny, on the other hand, is included. So if a convict escapes during a riot, he can’t avail of Art 158 if he comes back. If the convict evaded on circumstances of a catastrophe, Doesn’t return but gets caught again, increase penalty by 1/5 of the remaining sentence, which o shouldn’t be more than 6 months Returns within 48 hours, decreases penalty by 1/5 of his total sentence o Convict must not have participated in the catastrophe. What if a detainee escapes, what will happen, can Art 98 and 99 apply? No. Art 98 talks of prisoners who have evaded the service of their sentence. 25 o
Art. 159. Other cases of evasion of service of sentence. — The penalty of prision correccional in its minimum period shall be imposed upon the convict who, having been granted conditional pardon by the Chief Executive, shall violate any of the conditions of such pardon. However, if the penalty remitted by the granting of such pardon be higher than six years, the convict shall then suffer the unexpired portion of his original sentence. •
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Elements: Offender was a convict o He was granted a conditional pardon by the Chief Executive o He violated any of the conditions of such pardon o Violation of conditional pardon is a felony. If the penalty remitted is more than 6 years, serve the balance for the previous crime. If the penalty remitted is 6 years or less, prison correctional in minimum period. Boado says that if the penalty remitted is 6 years or less, it becomes a substantive offense o because of the new penalty imposed. What do you mean by “penalty remitted by granting of such pardon”? It is the remaining period which he did not have to serve because of the pardon. (Reyes) o Example: accused was sentenced to a penalty of 6 years and 1 day of PM. He already served 2 o years, 5 months and 22 days when he was granted conditional pardon. The term remitted by the pardon is 3 years, 6 months and 8 days. Hence, he will serve PC in its minimum period.
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Art. 98. Special time allowance for loyalty. — A deduction of one-fifth of the period of his sentence shall be granted to any prisoner who, having evaded the service of his sentence under the circumstances mentioned in Article 58 of this Code, gives himself up to the authorities within 48 hours following the issuance of a proclamation announcing the passing away of the calamity or catastrophe to in said article. Art. 99. Who grants time allowances. — Whenever lawfully justified, the Director of Prisons shall grant allowances for good conduct. Such allowances once granted shall not be revoked. Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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What is the relation of these penalties for the 3-fold rule? Don’t know. o Remember that the President has a choice to either order the immediate arrest of the person (under the Admin Code) or use this article. A violator of the conditions of pardon is NOT entitled to the ISL. Usually, the condition that comes with a conditional pardon is that the accused should not commit another crime. What if he does? He must be convicted of the crime before he is tried or convicted of violation of his conditional o pardon. It’s like a prejudicial question because if he is acquitted for the crime, then he can’t really be violating Art 159. Example: condition was not to commit another crime. Draco beats Hermione with his wand and o she suffers serious physical injuries. Draco must first be convicted of serious physical injuries before he is tried for Art 159. How long does the condition remain? The duration of the conditions annexed to a pardon would be limited to the remaining period of o the prisoner’s sentence, unless an intention to extend it beyond that time was manifest from the nature of the condition or the language in which it was imposed. (Infante v Provincial Warden) When do you start counting for prescription purposes – from commission of the felony which breaches the conditional pardon or the conviction of the felony which breached the pardon? From the conviction of the felony which breached the pardon. o So if in 2008, Harry violated his conditional pardon by shooting Draco, and he was convicted of o physical injuries only in 2011, the prescription period will only start in 2011. Problem: In 2000, Harry was convicted of abduction in Manila. In 2008, he was granted conditional pardon – with the condition that he shouldn’t commit any crime. In 2009, Harry murdered Draco in Batangas and was convicted in Batangas. Where should the information for violation of conditional pardon be filed – in Batangas or in Manila? In Batangas. o Parole Pardon Minimum sentence must be served Service not required for grant Granted by law By Pres If violated, convict must serve remainder If violated, service of sentence will of sentence depend on remitted sentence
Boado summarizes who can be liable for evasion of service of sentence: Prisoner confined by final judgment Pardonee violating the conditions of his pardon Convict sentenced to destierro/arresto menor who enters the prohibited area/leaves his house
Chapter Seven COMMISSION OF ANOTHER CRIME DURING SERVICE OF PENALTY IMPOSED FOR ANOTHER PREVIOUS OFFENSE Art. 160. Commission of another crime during service of penalty imposed for another offense; Penalty. — Besides the provisions of Rule 5 of Article 62, any person who shall commit a felony after having been convicted by final judgment, before beginning to serve such sentence, or while serving the same, shall be punished by the maximum period of the penalty prescribed by law for the new felony. Any convict of the class referred to in this article, who is not a habitual criminal, shall be pardoned at the age of seventy years if he shall have already served out his original sentence, or when he shall complete it after reaching the said age, unless by reason of his conduct or other circumstances he shall not be worthy of such clemency. •
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Quasi-recidivism is the commission of another crime before beginning to serve the convict’s final sentence or while serving the same. Quasi-recidivism is not a crime but a special aggravating circumstance. Can’t be offset! o A quasi-recidivist who is not a habitual criminal shall be pardoned at the age of 70 years if he shall have already served out his original sentence, or when he shall complete it after reaching said age (unless he
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is not deemed worthy of such clemency). Upon the age of 70, pardon is for the first crime. (J-Call) o Does the second crime have to be a felony? Yes. It cannot be an SPL. o Except if the law uses nomenclature of penalties in RPC. Rapist found selling marijuana in jail is considered a quasi-recidivist because the DDA follows the nomenclature of the penalties in the RPC. What if the second crime’s penalty is only reclusion perpetua, is he a quasi-recidivist? o No, since reclusion perpetua does not have a maximum period. Art 160 is not applicable. He is considered just a recidivist (if the other requisites to be considered such will apply) (P v Mayuri) Does the first crime have to be a felony? No. it can be an SPL. o If the second crime has an aggravating circumstance, what is the effect to the penalty? Since it is in the maximum, then the aggravating circumstance will result into the maximum of o the maximum. What if he commits another penalty, is he a quasi-recidivist again? Yes, he is a quasi-recidivist again and again. If he is not a quasi-recidivist for the second time, o he can commit another crime with impunity. (Justice Regalado) What if he is a recidivist and a quasi-recidivist? Since recidivism is an AC too, it leads to the maximum of the maximum. o Does the law talk of any other offender? Yes, Art 62 (5) – when one is a habitual offender. (FRETSeL, 10 years, already served) o Can you make quasi-recidivism an aggravating circumstance, given that both have the same element of committing a crime again? Venerable Anj Atadero: Yes. (check this!) o Is a convict who escapes from jail a quasi-recidivist? No. The very act of evasion of sentence is an element of the AC of quasi-recidivism. Under Art 62 o (1), if the aggravating circumstance in itself constitutes a crime punishable by law, it is not taken into account. (Justice Regalado) The eminent J-Call agrees. o Can one be a quasi-recidivist or recidivist at the same time? Yes. A difference is that recidivism can be offset by generic mitigation, quasi-recidivism cannot o be offset. Another difference is that in recidivism, the second crime must be from the same title of the o code as the first one. What if while serving sentence, a convict commits a complex crime, w hat is the effect? Maximum of the maximum of the more serious crime. (Viada and J-Call) o The best evidence to prove prior conviction is the court judgment. Difference between reiteracion (Art 14, Par 10) and quasi-recidivism: Reiteracion: needs final service of two or more lesser crimes, or one graver or equal crime. o •
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Title Four CRIMES AGAINST PUBLIC INTEREST Chapter One FORGERIES Section One. — Forging the seal of the Government of the Philippine Islands, the signature or stamp of the Chief Executive. Art. 161. Counterfeiting the great seal of the Government of the Philippine Islands, forging the signature or stamp of the Chief Executive. — The penalty of reclusion temporal shall be imposed upon any person who shall forge the Great Seal of the Government of the Philippine Islands or the signature or stamp of the Chief Executive. •
What are forged? Great Seal of the government of the Philippines o
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Signature of the President Stamp of the President o Cannot be committed by culpa. There must be knowledge and intent to use the signature or great seal. o Presumption: possession of a document bearing the forged signature or seal deemed to be the o one who committed the forgery What if he forged 1 document in 3 ways – he forged the great seal, the signature and the stamp – how many crimes are committed? Just 1. 1 crime per document. o o
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Art. 162. Using forged signature or counterfeit seal or stamp. — The penalty of prision mayor shall be imposed upon any person who shall knowingly make use of the counterfeit seal or forged signature or stamp mentioned in the preceding article. •
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Elements: Great Seal was counterfeited, or signature or stamp of the President was forged by another o Offender knew of the counterfeiting or forgery o He used the counterfeit seal or forged signature or stamp o Cannot be committed by culpa. Can only be committed with criminal intent, because the law uses the word “knowingly.” o Offender here is not the forger, but the one who uses the counterfeit seal or forged signature, etc. Mere possession of document with forgery is not enough. This article requires that the possessor must be aware of the forgery.
Section Two. — Counterfeiting Coins Art. 163. Making and importing and uttering false coins. — Any person who makes, imports, or utters, false coins, in connivance with counterfeiters, or importers, shall suffer: 1. Prision mayor in its minimum and medium periods and a fine not to exceed P10,000 pesos, if the counterfeited coin be silver coin of the Philippines or coin of the Central Bank of the Philippines of ten centavo denomination or above. 2. Prision correccional in its minimum and medium periods and a fine of not to exceed P2,000 pesos, if the counterfeited coins be any of the minor coinage of the Philippines or of the Central Bank of the Philippines below ten-centavo denomination. 3. Prision correccional in its minimum period and a fine not to exceed P1,000 pesos, if the counterfeited coin be currency of a foreign country. (As amended by R.A. No. 4202, approved June 19, 1965). •
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Elements: There be false or counterfeited coins o The offender either made, imported or uttered such coins o That in case of uttering such false or counterfeited coins, he connived with the counterfeiters or o importers Three means to commit the crime of counterfeiting coins: Makes o Imports o Utters o If foreign currency, amount is immaterial. If it was legal tender at that time, but is not legal tender anymore, there can still be a violation of Art. 163. (P v Rion) So, making a 1-centavo coin can still be punished. o Hence, no need for it to be legal tender. o If accused imported false foreign currency, he can still be liable. It does not matter if it’s still legal tender or not, or the denomination falsified. (P v de Leon) What is punished is the possibility of the accused causing such in the future. For the first mode (making), may be frustrated if the imitation is so imperfect , although all acts were committed. Can be attempted, if failed to perform all acts of execution, for reasons except for his o spontaneous desistance. Consummated if by its (the coins) appearance, it can be place in circulation. o For the second mode (importing), there is consummation when the boat enters port or the plane enters
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airspace, even if they are not unloaded or brought to customs. Frustrated if before they cross territorial waters of Philippines, they are caught. o For the third mode (uttering), what does uttering mean? To offer the forged document, knowing it to be false, whether accepted or not, with o representation that is genuine, with intent to defraud. The offender must be any person except the maker. o The maker will be liable under the first mode Damage is not an essential element of utterance. o How many crimes are committed if the offender makes 1,000 counterfeit 10-centavo coins and 500 5peso coins? Two! o One crime for the 10-centavo coins, and One crime for the 5-centavo coins There are as many crimes as denominations counterfeited. (Cuello Callon) o Can be prosecuted even if done abroad. (Art 2)
Art. 164. Mutilation of coins; Importation and utterance of mutilated coins. — The penalty of prision correccional in its minimum period and a fine not to exceed P2,000 pesos shall be imposed upon any person who shall mutilate coins of the legal currency of the United States or of the Philippine Islands or import or utter mutilated current coins, or in connivance with mutilators or importers. •
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Amended by PD 247, which punishes: Willful defacement o Mutilation o Tearing o Burning o Destroying currency notes or coins 26 o Must be of legal tender Only provision in this part that requires legal tender o Mutilation of foreign currency are not included in this article
Art. 165. Selling of false or mutilated coin, without connivance. — The person who knowingly, although without the connivance mentioned in the preceding articles, shall possess false or mutilated coin with intent to utter the same, or shall actually utter such coin, shall suffer a penalty lower by one degree than that prescribed in said articles. • • •
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There must be knowledge of the counterfeit Possession includes constructive or physical possession of counterfeit or mutilated coins (P v Umali) Two acts punished: Possession of false/mutilated coin with intent to utter o Actual utterance of the coin o If the one possessing is also the counterfeiter, this crime is absorbed under Art 163.
Section Three. — Forging treasury or bank notes, obligations and securities; importing and uttering false or forged notes, obligations and securities. Art. 166. Forging treasury or bank notes on other documents payable to bearer; importing, and uttering such false or forged notes and documents. — The forging or falsification of treasury or bank notes or certificates or other obligations and securities payable to bearer and the importation and uttering in connivance with forgers or importers of such false or forged obligations or notes, shall be punished as follows: 1. By reclusion temporal in its minimum period and a fine not to exceed P10,000 pesos, if the document which has been falsified, counterfeited, or altered, is an obligations or security of the United States or of the Philippines Islands. The word "obligation or security of the United States or of the Philippine Islands" shall be held to mean all bonds, certificates of indebtedness, national bank notes, fractional notes, certificates of deposit, bills, checks, or drafts for money, drawn by or upon authorized officers of the United States or of the 26 1. That it shall be unlawful for any person to willfully deface, mutilate, tear, burn or destroy, in any manner whatsoever, currency notes and coins issued by the Central Bank of the Philippines; and 2. That any person who shall violate this Decree shall, upon conviction, be punished by a fine of not more than twenty thousand pesos and/or by imprisonment of not more than five years.
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Philippine Islands, and other representatives of value, of whatever denomination, which have been or may be issued under any act of the Congress of the United States or of the Philippine Legislature. 2. By prision mayor in its maximum period and a fine not to exceed P5,000 pesos, if the falsified or altered document is a circulating note issued by any banking association duly authorized by law to issue the same. 3. By prision mayor in its medium period and a fine not to exceed P5,000 pesos, if the falsified or counterfeited document was issued by a foreign government. 4. By prision mayor in its minimum period and a fine not to exceed P2,000 pesos, when the forged or altered document is a circulating note or bill issued by a foreign bank duly authorized therefore. •
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Three acts punished: Forging or falsification of treasury/bank notes/documents payable to bearer o Importing false or forged bank notes o Uttering these in connivance with forgers or importers o A PCSO ticket is a government obligation. If the accused bore a PCSO ticket, wore in ink the number purported to win, then he is guilty of attempted estafa, because he was not able to encash it before being caught. (P v Balmores) Blank forms of postal money orders are not official forms. Unless they are filled up. o A treasury warrant is a government obligation and is therefore covered by Art 169. (P v Samson)
Art. 167. Counterfeiting, importing and uttering instruments not payable to bearer. — Any person who shall forge, import or utter, in connivance with the forgers or importers, any instrument payable to order or other document of credit not payable to bearer, shall suffer the penalties of prision correccional in its medium and maximum periods and a fine not exceeding P6,000 pesos. • •
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Art. 168. Illegal possession and use of false treasury or bank notes and other instruments of credit. — Unless the act be one of those coming under the provisions of any of the preceding articles, any person who shall knowingly use or have in his possession, with intent to use any of the false or falsified instruments referred to in this section, shall suffer the penalty next lower in degree than that prescribed in said articles. •
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Elements: Treasury/bank note/security payable to bearer or order is forged or falsified by another person o Offenders know it was it was falsified o Used or possession with intent to use o Possession must be with intent to use!!! One may be liable under this provision of fake dollar bills, but it msut be coupled with either actual use or intent to use the fake dollar bills Possession alone, without use or intent to use, is NOT a crime under Art 168. Under the Access Devise Law which penalizes counterfeit of access device 27, any prosecution shall be without prejudice for liabilities for violations of RPC. 28 For forgery of passports under RA 8239, if the act is also punishable under the RPC and the RPC has higher penalty, impose the higher penalty. But only one crime is committed.29 o
Art. 169. How forgery is committed. — The forgery referred to in this section may be committed by any of the following means: 1. By giving to a treasury or bank note or any instrument, payable to bearer or order mentioned therein, the 27
Means any card, plate, code, a ccount number, electronic serial number, personal identification number, or other telecommunications service, equipment, or instrumental identifier, or other means of account access that can be used to obtain money, good, services, or any other thing of value or to initiate a transfer of funds (other than a transfer originated solely by paper instrument) 28 Section 17. Liability under the Revised Penal Code and other laws. – Prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code or any other law. 29 In case any of the offenses prohibited in this Act constitutes a violation of the Revised Penal Code and the penalty imposed in said Code is heavier than that in this Act, the latter penalty shall be imposed. Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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appearance of a true genuine document. 2. By erasing, substituting, counterfeiting or altering by any means the figures, letters, words or signs contained therein. •
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Ways of committing forgery: Giving a treasury or bank note or any instrument the appearance of a true genuine document o Erasing, substituting or counterfeiting or altering by any means the figures, letters, words, signs o in the instrument Where does bank note fall under, is it included in Art 166 or 169 of the RPC? SC ruled that false bank notes are included in the phrase “and other representative of whatever o domination” in Art 166. However, blank forms of postal money orders are not official, public documents, or treasury/bank notes. They are not certificates of obligations until they are filled up. Possession of genuine treasury notes of the Philippines with any figures, letters, or words altered or erased with full knowledge of such alteration is punishable under 168, in relation to 166. Difference between forgery and falsification Forgery counterfeiting of treasury, bank notes, instruments payable to bearer or to order Falsification legislative, public or official, commercial, private documents, wireless or telegraph messages Five classes of falsification Of legislative documents (Art 170) A document by a public officer, employee or notary public (Art 171) Of a public or official, or commercial document by a private individual (Art 172, 1) Of a private document by any person (Art 172, 2) Of wireless, telegraph and telephone messages (Art 173)
Section Four. — Falsification of legislative, public, commercial, and privatedocuments, and wireless, telegraph, and telephone message. Art. 170. Falsification of legislative documents. — The penalty of prision correccional in its maximum period and a fine not exceeding P6,000 pesos shall be imposed upon any person who, without proper authority therefor alters any bill, resolution, or ordinance enacted or approved or pending approval by either House of the Legislature or any provincial board or municipal council. •
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Elements: Bill, resolution or ordinance enacted, approved or pending approval by either House or any o provincial or municipal council (includes city council) Offender alters the same o He has no proper authority therefore o Alteration changed the meaning of the document o Bill, resolution or ordinance altered must be genuine Offender may be a private individual or public officer. What if he simulates the bill, and not merely alters it? Go for Art 171. Art 170 only refers to alteration (Justice Regalado) o
Art. 171. Falsification by public officer, employee or notary or ecclesiastic minister. — The penalty of prision mayor and a fine not to exceed P5,000 pesos shall be imposed upon any public officer, employee, or notary who, taking advantage of his official position, shall falsify a document by committing any of the following acts: 1. Counterfeiting or imitating any handwriting, signature or rubric; 2. Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate; 3. Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them; 4. Making untruthful statements in a narration of facts; 5. Altering true dates; 6. Making any alteration or intercalation in a genuine document which changes its meaning; 7. Issuing in an authenticated form a document purporting to be a copy of an original document when no Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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such original exists, or including in such a copy a statement contrary to, or different from, that of the genuine original; or 8. Intercalating any instrument or note relative to the issuance thereof in a protocol, registry, or official book. The same penalty shall be imposed upon any ecclesiastical minister who shall commit any of the offenses enumerated in the preceding paragraphs of this article, with respect to any record or document of such character that its falsification may affect the civil status of persons. •
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Elements: Offender is a public officer, employee, or notary public o He takes advantage of his official position o He falsifies a document by committing any of acts enumerated o In case the offender is an ecclesiastical minister, the act of falsification is committed with respect o to any record or document of such character that its falsification may affect the civil status of persons Gravamen: What is penalized is the violation of the faith or trust of the public and the destruction of the truth as therein solemnly proclaimed. Revocation of a falsified document is immaterial. o Can falsification be committed through culpa? For public documents, yes. o So, when a public officer endorses a check without verifying the identity of the endorsees, he can be held liable for falsification of public documents. (Samson v CA) For private documents, no (since for private documents, there must be an element of intent to o cause damage). A public officer is any public servant who is performing service to the government or any of its branches or instrumentality. He takes advantage of his official position by falsifying to falsify a document when He has the duty to make or to prepare or otherwise intervene in the preparation of the o document, or He has the official custody of the document which he falsifies. (Adaza v Sandiganbayan, wherein o the court said the element of “taking advantage of one’s position” becomes relevant only in the case, not for the purpose of determining whether the Sandiganbayan has jd, but for purposes of determining whether the accused should be liable under 171 or 172) When a Mayor makes it seem that a non-existent position appeared to exist, he is taking advantage of his public position. (Siquian v People, wherein the Mayor appointed a girl to a position that did not exist) Test: if he uses influence, prestige, or ascendancy of his office to commit the crime. o If a public officer or employee falsifies a document, and it is not part of his duties, he does not abuse his public position. He will not be guilty under Art 171, but under Art 172 (falsification by private individuals) o Hence, if a notary public falsifies a document outside his territorial jurisdiction, he did not abuse o he is not a notary public outside his jurisdiction. Charge him with Art 172. A document is any writing capable of creating rights or extinguishing obligations. It is something by which something is proved, established, or set forth. (P v Andaya) Hence if it is incapable of producing legal effects, it cannot be a foundation of a right and thus cannot be subject of falsification. So, a document which contains illegal acts can’t be the subject of falsification. (contract to sell shabu can’t be falsified) Under the German RPC, it includes every inanimate object which may be perceived by the senses to prove the existence of another thing. (Cuello Callon, a sheet of tin may be considered a document) It must be complete. o Hence, no falsification with respect to documents which are incomplete or unfilled-up forms. Basic rule: o in falsification of private documents, damage or intent to damage is an element; in falsification of public documents, damage or intent to damage is NOT necessary unnecessary that there be present the idea of gain or the intent to injure a third person, for the reason, that the principal thing punished is the violation of the public faith and the destruction of the truth as therein solemnly proclaimed •
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4 kind of documents: Private – deed between private individuals by which something is proved, evidenced or set forth and for which a notary public or authorized person has not intervened. Examples cash disbursement receipt (Batulanon), o document notarized without a commission (but can still be prosecuted o under Art 171 since it is destined to be such – Heck v Santos, the document remains private but the crime is falsification of public document) disbursement voucher (Andaya v People, wherein accused substituted o names in a voucher in order for his friend to get his commission tax-free) Public – private document that has either been notarized or has become part of the public record See ROC definition of public and private documents.30 Examples: pleadings of parties and papers filed by them which are submitted to the o custody of the court (Vermejo v Bayus), roll of attorneys o notarized deeds of sale o barangay resolutions (Goma v CA, not sure if this public or official, but o either way, SC here considered it as a “public document” using the Rules of Evidence) Official – issuance is mandated by law and in the performance of official duty Examples: Passports o Daily time reports in government offices (Flores v Layosa) o Booklets or papers submitted to the CSC (P v Leonidas) o Commercial – one that is prepared in accordance with mercantile laws; used by merchants or business to promote or facilitate trade or credit transactions Example: sales invoice (Monteverde) Documents also refer to electronic documents. o What if the document was falsified before being submitted to the government, as required by o law? Falsification of a private document before submission may nevertheless by falsification of public of official documents because it is destined to be such. (Monteverde v People) If the document is intended by law to be part of the public or official record, the preparation of which being in accordance with the rules and regulations issued by the government, the falsification of that document, although it was a private document at the time of its falsification, is regarded as falsification of public or official document. (Monteverde) So, if you falsified the personal data sheet which is required to be submitted to the CSC for appointment to the public position, the crime committed is falsification of public documents because the document is destined to be part of public record. (CVC v Acevedo) Also, if you falsify stuff in the application for a driver’s license before submission, it is also falsification of public document. The blank form becomes a public document the moment it is accomplished and submitted to the LTO. (Dava v P) Layug, Flores, Beragio, XXX, Coral, Heck cases (see footnotes, digests care of Glenn, sir didn’t discuss this with us na eh.)31 o
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Sec. 19.Classes of Documents. — For the purpose of their presentation evidence, documents are either public or private. Public documents are: (a)The written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country; (b)Documents acknowledge before a notary public except last wills and testaments; and (c)Public records, kept in the Philippines, of private documents required by law to the entered therein. All other writings are private. 31 Layug: an ordinary government employee has a time record measured through Bundy clock. Layug is a teacher in Davao national high school. He said in his record that he went to class and taught from 8:30-11:30, 1:30-4:30. But some of the time, he spent in the library. He was charged for falsification, because he said in his time record that he taught in certain times, but he was just in the library. No question, the time record is a public document. He was Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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Consummated the moment the genuine public or official document is altered, or the moment the false document is executed Even if the document is not put to illegal use o Hence, no attempted or frustrated falsification of public/official document o Unless the falsification is imperfect Can be committed by omission. (P v Dizon – falsification by omission by not indicating in the ledger his purchase of goods) May someone be convicted based solely on presumptions? Yes. One found in possession of falsified document is presumed to be the author. (Caubang v o People, wherein the accused submitted falsified documents to the SEC registration and was not able to sufficiently explain himself) In the absence of a satisfactory explanation, one in possession of such is presumed to be the o author thereof. HOWEVER, before this presumption will be applied, it is imperative that the document was o falsified (or there was a falsified document) in the first place. The falsification must be proven beyond reasonable doubt. (Monteverde, wherein the Court said that the document in question was not proven to be falsified in the first place) Take note that there are as many counts of falsification as documents falsified. In Lastrilla v Granda, there were 3 deeds of sale falsified in one occasion. Each deed of sale o contained several parcels of land. But only 3 counts of falsification were charged, since it is based on the documents falsified, and not the contents therein. But see Mallari v People, wherein the accused falsified two documents over two parcels of land as security for loans from two people. He made it appear that the owners of the land mortgaged the property to the two people from whence he got the loan. The SC considered it as only one crime because they were done in only one occasion (same date, place and time). There was only one deceit practiced by petitioner on the two victims. P v Pomferada: accused falsified roll of attorneys by inserting three persons in the roll. Accused held to have committed 3 counts of falsification, even if made on the same roll of attorneys. Take note that even if multiple modes were used to falsify a document, only one crime of falsification is committed because only one single criminal intent moved the falsification. In Lastrilla, Lastrilla imitated a signature, made it appear that a dead person participated, and o altered true dates, but was only charged for one count of falsification per document falsified. The following modes are also applicable to Art 172 – the difference lying on two spheres: the offender (either public officer or private individual) and the type of document (public document or private document). Hence, the following modes can also be used in falsifying private documents.
charged for falsification of a public document ELEVEN times. But he did not get his salary for the time he was not teaching. QUESTION: Is he guilty for falsification of public document even if there is no damage to the government? HELD: Layug was acquitted. In the prosecution of cases involving falsification of time records, there must be proof of damage to the government (e.g. salary paid for services not rendered). BUT this is weird, because usually, damage is not an element of falsification of public document. Flores: The falsification of a daily time record automatically results in financial losses to the government because it enables the employee to be paid salary and earn leave credits for services never rendered. Contrast: In Flores, damage is not an element, because potentially, the government can be damaged. Beragio v. CA: J Callejo agrees with this A COMELEC registrar, who was also a lawyer, was allowed by COMELEC to appear for poor litigants. He submitted a DTR saying that he was in the office, but he was actually in court attending to poor litigants. He was charged with falsification. HELD: Even if he was not in the office at that time, the COMELEC allowed him to appear for poor litigants. He was performing a duty authorized by the COMELEC. There was no falsification. XXX v. CA–Spouse is a janitor, but before the janitor died, he received his check. Before the check became due, the janitor died. The widow already received it. She cashed it, thinking it was leave credits value. The check was worth X amount, though the janitor had leave credits exceeding the amount of the check. She was charged with falsification. HELD: Acquitted. She was acting in good faith. There was no damage to government; in fact, the government owed the janitor pa. P v. Coral – Got a warrant of arrest, falsified signature of the judge, and had his wife arrested. He claimed he was not guilty of falsification because it was a spurious document in the first place. HELD: Convicted. There can be falsification even if it is a spurious document. Cannot use own acts of falsification as a defense against prosecution. Heck v. Santos and Buzon v. Baltazar The notarization of a lawyer by a private document without requisite commission [meaning, it does not become a public document] is still liable for falsification of public document.
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1. Counterfeiting or imitating any handwriting, signature or rubric; • • •
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Imitating is an inaccurate translation. It should be read to mean “feigning” Feigning means the forgery of a signature that does not in fact exist. Necessary that: There be an intent to imitate, or an attempt to imitate, and o The two signatures or handwritings (the genuine and the fake), bear some resemblance to each o other Lack of either can result to Par 2 of Art 171. Not necessary that the imitation of writing, handwriting, or signature be perfect. (P v Rampas) No falsification of public document unless there is an attempt to imitate the genuine signature of another. (US v Femur?) One is guilty of falsification even if he did not imitate the signature of the person in the document, as long as there is a difference between the genuine signature of another and the falsification. (P v Isla) Even if the statements are true, one can still be guilty of falsification if the signature is false. It is immaterial whether or not the contents set forth in the forged statement were false, so long o as the signature of another was counterfeited. (Caubang v People)
2. Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate; •
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Requisites: Offender caused it to appear in a document that a person or persons participated in an act or a o proceeding, and Such person or persons did not in fact so participate in the act or proceeding o Documents include spurious documents made to appear as genuine documents (Goma v CA 32) Hence, if an accused makes a false order of release from a judge when faced with a warrant of o arrest, he is liable for falsification. Seen in the following cases: Bernardino v People, wherein the acting committee secretary made it appear that a COA o representative attended a public bidding when in fact, the latter did not. Lastrilla v Granda, wherein the accused falsified 3 deeds of sale and made it appear that dead o people sold him the land (see notes above) Cuello Callon doesn’t agree that this paragraph will apply if the people are dead. But our SC did not agree with him on this point. Abubakr v People, wherein the accused was a COMELEC registrar who made it appear that o certain people appeared in the voters list, when in fact, they did not. Guilty under Art 171 and Omnibus Election Code People v Leonidas, wherein the accused paid someone else to take his exam for him. He made it o appear that another person participated in the exam, when in fact, that someone else did not. Mallari v People, see notes above. o Crime can be committed to conceal another crime In P v Villanueva, Villanueva (a public officer) misappropriated funds of the government. To o conceal his malversation, he falsified receipts to show that people received some money, when in fact, they did not. Guilty of two crimes: o Malversation Falsification of official documents Why not complex? Because second crime was used to conceal, not to commit it o •
3. Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them; •
Requisites: Person or persons participated in an act or proceeding o
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“And it bears to stress that in falsification under Art. 171(2) of the RPC, it is not necessary that there be a genuine document; it is enough that the document fabricated or simulated has the appearance of a true and genuine document or of apparent legal efficacy.” Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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Such person or persons made statements int aht act or proceeding, and The offender, in making a document, attributed to such person or persons statements other than o those in fact made by such person or persons See in P v Stella Romualdez, wherein the accused changed the answers of a Bar examinee and then corrected the answers. Bar examinee guilty as an accomplice by knowing that Romualdez committed the crime. o o
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4. Making untruthful statements in a narration of facts; •
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Requisites: Offender makes in a document statements in a narration of facts o He has a legal obligation to disclose the truth of the facts narrated by him o The facts narrated are absolutely false, and o Perversion of truth in the narration of facts was made with the wrongful intent of injuring a third o person (seems like this last requisite is not applicable if what is falsified is a public document, on the strength of P v Po Giok To) Narration of facts: merely an account or description of the particulars of an event or occurrence. (Galeos/Ong v People) Compare with conclusions of law, which is the determination of a judge on the law to be applied o to a set of facts. No falsification in the making of untruthful statements or erroneous statements in a conclusion of law. Hence, in P v Yanza, the accused certified that she was “eligible” for a certain position when in fact she wasn’t. SC said no falsification because eligibility is a conclusion of law – even if it was erroneous or incorrect, and not a narration of facts. Legal obligation to disclose the truth means that there is a law requiring the disclosure of the truth of the facts narrated. Can also be based on rules and regulations promulgated by authorities. o So if an accused falsified a personal data sheet which was required by the rules of the CSC, she is guilty of falsification (even if she was not hired afterwards) (Lamacanas v Inta) Or an ordinance. o In P v Go Kiok To, the Chinaman misrepresented his nationality to get a residence certificate. He o was held liable because of Sec 3 of Commonwealth Act 465 which stated that the residence certificate must contain, among others, the citizenship of the applicant. What did Justice Albert say i n this case? He said that only paragraphs 1, 5 and 6 can be done by a private individual. Did SC agree with dear Justice Albert? It impliedly agreed with Albert. However, they said that a private individual can be liable for Paragraph 4 as being a principal by direct inducement. Was the clerk liable for falsification? No. he had no criminal intent and relied on the Go Kiok To. If there is colorable truth to the statement, one is not criminally liable. Hence, good faith can be considered as a defense. o For example, if you said in a public document that you owned a banca because you really thought it was yours, hindi pala, you can’t be held liable. (US v San Jose) There is no falsification of public document if acts of accused are consistent with good faith, even o if it may be false. (Jamora v Sandiganbayan) If the document was altered to speak the truth, there is no falsification. o There is alteration, but no falsification. Includes the omission of material facts. In the recent case of Galeos v P & Ong v P (Feb 9, 2011), the accused Galeos left blank certain o questions regarding his relationship with Ong in the Statement of Assets, Liabilities and Net Worth required by law to be submitted by permanent government officers. He did not admit that he was related to Ong, which was prohibited by nepotism laws. The SC said that as to Galeos, he was guilty of falsification in the accomplishment of his information and personal data sheet because he withheld material facts which would •
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have affected the approval of his appointment and/or promotion to a government position. As to Ong, he too was found guilty of falsification of public document because by certifying said SALN, he affirmed the truth of the facts stated therein. He took advantage of his official position as the appointing authority. Also seen in Concerned Employees v Generoso, wherein judicial staff officer Generoso falsely stated in his ITR that he had 2 dependents (to save on tax) when in fact, he only had 1. He claimed that he did it in good faith because he was eager to have one more son. SC said his defense of good faith was unavailing – he deliberately intended to make untruthful statements. Remember that good faith as a defense will only apply if there is colorable truth to the o statements. What Generoso here did was a blatant lie.
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Dates altered must be essential It must either affect the veracity of the document or the effects thereof. Seen in Lastrilla, wherein the accused ante-dated the sale to a date when the purported vendors were still alive and kickin. Can’t be committed by culpa. Intent essential. (Cuello Callon)
6. Making any alteration or intercalation in a genuine document which changes its meaning; •
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Requisites: Alteration or intercalation (insertion) on a document o Made on a genuine document o Alteration or intercalation changed the meaning of the document o Change made the document speak something false o Alterations consist of erasures, interlineations, additions, substitution of any material matter Gives the document a different legal effect; affects the legal identity of the document; affects the o rights/liabilities of the parties involved If the alteration or intercalation was made to make the document speak the truth, it is not a crime. Cannot be committed by culpa. There must be criminal intent. Seen in: Garcia v CA (but this was actually a falsification of a private document case), wherein Garcia o altered a receipt for P5,000 to make it appear to be P55,000. Garcia made a down payment to a vendor of land for P5,000. When the deal went sour, he wanted a refund of P55,000 (which was obviously altered). As an aside, the court considered as damage (which is an element in falsification of private document) the fact that Garcia made it appear that the vendor received P55,000 when in fact he did not. P v Romualdez, wherein the Romualdez changed the grades of a bar examinee. (Also liable o under par 3) Panuncio, where the MVRR was altered (but under Art 172, falsification of public documents by o private individuals) Not all alterations are criminal. If the alteration does not change the meaning, then it’s not criminal o Alterations or intercalations on the face of a document are, in the absence of evidence relation to o them, are presumed to have been made prior to the execution of a document. One making the alteration must explain the same.
7. Issuing in an authenticated form a document purporting to be a copy of an original document when no such original exists, or including in such a copy a statement contrary to, or different from, that of the genuine original; •
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Example: making a copy of a deed of sale, when no deed of sale really existed Including in a copy a statement contrary to, or different from, that of the genuine original o Example: civ registrar stating in a certified copy of a birth certificate that the person was legitimate, when in fact, he wasn’t Can’t be done by culpa. Done with dolo or deliberate intent.
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8. Intercalating any instrument or note relative to the issuance thereof in a protocol, registry, or official book. • • •
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Intercalating must be false and change the sense of the document or official book. Protocol is the original document kept by the notary public. (recheck) Failure by the notary public to enter chronologically in the protocol: falsification of public documents. A word on falsification of passports There are as many number of crimes as the number of fake passports used. Making false statements in the application for passports with the intent to induce the issuance of a passport is a crime.33 So is the forgery or mutilation or alteration of a passport. 34 Do you charge violation of RA 8239 or falsification of official/public documents? RA 8239 states: In case any of the offenses prohibited in this Act constitutes a violation of the o Revised Penal Code and the penalty imposed in said Code is heavier than that in this Act, the latter penalty shall be imposed. J-Call says that if one is already convicted with RA 8239, he should no longer be charged with o falsification because the courts are mandated to consider the penalty of falsification under RPC to determine what the heavier penalty should be. It will be tantamount to double jeopardy if he is charged again with falsification.
Art. 172. Falsification by private individual and use of falsified documents. — The penalty of prision correccional in its medium and maximum periods and a fine of not more than P5,000 pesos shall be imposed upon: 1. Any private individual who shall commit any of the falsifications enumerated in the next preceding article in any public or official document or letter of exchange or any other kind of commercial document; and 2. Any person who, to the damage of a third party, or with the intent to cause such damage, shall in any private document commit any of the acts of falsification enumerated in the next preceding article. Any person who shall knowingly introduce in evidence in any judicial proceeding or to the damage of another or who, with the intent to cause such damage, shall use any of the false documents embraced in the next preceding article, or in any of the foregoing subdivisions of this article, shall be punished by the penalty next lower in degree. •
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There are 3 acts punished under 172: (b) Offenses Relating to False Statements; Penalties. — Any person who willfully and knowingly:
1. Makes any false statement in any application for passport with the intent to induce or secure the issuance of a passport under the authority of the Philippine Government, either for his own use or the use of another, contrary to this Act or rules a nd regulations prescribed pursuant hereto shall be punished by a fine of not less than Fifteen thousand pesos (P15,000) nor more than Sixty thousand pesos (P60,000) and imprisonment of not less than three (3) years nor more than ten (10) years: or 2. Uses or attempts to use any passport which was secured in any way by reason of any false statements, shall be punished by a fine of not less that Fifteen thousand pesos (15,000) nor more than Sixty thousand pesos (60,000) and imprisonment of not less that three (3) years, but not more than ten (10) years; or 3. Travel and recruitment agencies whose agents, liaison officers or representatives are convicted of offenses relating to false statements shall in addition to the fines and penalties above-mentioned have their license revoked with all deposits, escrow accounts or guarantee funds deposited or made as a requirement of their business forfeited in favor of the government without prejudice t o the officials of the branch office or of the agency being charged as accessories to the offense and upon conviction barred from engaging in the t ravel agency business. 34 (c) Offenses Relating to Forgery; Penalties. — Any person who: 1. Falsely makes, forges, counterfeits, mutilates or alters any passport or travel documents or any supporting document for a passport application, with the intent of using the same shall be punished by a fine of not less than S ixty thousand pesos (P60,000) nor more than One hundred fifty thousand pesos (150,000) and imprisonment of not less than six (6) years nor more than fifteen (15) years; or 2. Willfully or knowingly uses or atte mpts to use or furnishes to another for use any such false, forged, counterfeited, mutilated or altered passport or travel document or any passport validly issued which has become void by the occurrence of any condition therein prescribed shall be punished by a fine of not less than Sixty thousand pesos (60,000) nor more than One hundred and fifty thousand pesos (P150,000) and imprisonment of not less than six (6) years nor more than fifteen (15) years: Provided, however, That officers of corporations, agencies or entities licensed in the travel and recruitment industry would be held similarly as their agents, liaison officers or representatives: Provided, finally, That forgeries of five or more passports or travel documents, would be considered as massive forgery tantamount to national sabotage and shall be punished by a fine of not less than T wo hundred and fifty thousand pesos (P250,000) nor more than One Million pesos (1,000,000) and imprisonment of not less than seven (7) years nor more than seventeen (17) years. Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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Falsification of public, official, or commercial document by a private individual Falsification of private document by any person Use of falsified document
1. Any private individual who shall commit any of the falsifications enumerated in the next preceding article in any public or official document or letter of exchange or any other kind of commercial document; •
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Elements: Offender is a private individual or a public officer or employee who DID NOT take advantage of o his official position He committed any of the acts of falsification in 171 o Falsification was done in a public, official, or commercial document o Here, no need for damage or intent to damage. Remember, as long as what was falsified was a public document, no need for damage. o Falsification of a private document
2. Any person who, to the damage of a third party, or with the intent to cause such damage, shall in any private document commit any of the acts of falsification enumerated in the next preceding article. •
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Elements: Offender committed any of the acts of falsification (except par 7) in Art 171 o Falsification was committed in any private document o Falsification caused damage to a 3rd party or at least done with intent to cause such damage o Gravamen: damage or intent to cause damage to 3 rd party Damage includes material damage and damage to the credit or honor of a private person (Cuello Callon) What if the offender did not gain any profit from the falsification, how is intent established? There must be evidence independent of the fal sification to establish intent. o This may consist in an attempt to encash or use the document, or verbal or physical acts o indicating intention behind falsification. Consummated upon falsification of the private document. Immaterial if damage actually caused, since intent to cause damage enough. o Take note of the case of Batulanon v People. Here, the accused was charged with estafa through falsification of private documents (cash o disbursement receipts). The SC said you can’t do that since they share the same element of damage. Hence, Batulanon was found guilty of: 3 counts of falsification of private documents (she falsified 3 cash disbursement receipts), and 1 separate count of estafa (because she said she received the money on behalf of her son, when in fact she didn’t, and that she did not falsify her son’s signature, hence nothing falsified) Use of a falsified document
Any person who shall knowingly introduce in evidence in any judicial proceeding or to the damage of another or who, with the intent to cause such damage, shall use any of the false documents embraced in the next preceding article, or in any of the foregoing subdivisions of this article, shall be punished by the penalty next lower in degree. • •
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Here, the document is any document – doesn’t matter if public or private document Important: under this paragraph, the person using the document is NOT the author of the falsification. If the falsifier himself uses the document, he is liable for falsification (either under 171 or 172, o Par 1 & 2) and not for the use Why? The penalty for use is already integrated in 171 and 172 (Par 1 & 2) (Cuello Callon) o Hence, if a private individual falsifies a public document and then uses it in a judicial proceeding, he is liable under Par 1 of Art 171, not for the use of such document. Falsified document is used either in a judicial proceeding or in any other transaction Elements if used in a judicial proceeding: Offender knew that a document was falsified by another person o False document is embraced in 171 or 172 o Introduced said document in evidence in any judicial proceeding o If used in a judicial proceeding, NO need for damage Elements if used in any other transaction
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Offender knew that the document was falsified by another person False document is embraced in 171 or 172 He used such document (not in judicial proceedings) The use of the false document caused damage to another or at least it was used with intent to cause such damage
Art. 173. Falsification of wireless, cable, telegraph and telephone messages, and use of said falsified messages. — The penalty of prision correccional in its medium and maximum periods shall be imposed upon officer or employee of the Government or of any private corporation or concern engaged in the service of sending or receiving wireless, cable or telephone message who utters a fictitious wireless, telegraph or telephone message of any system or falsifies the same. Any person who shall use such falsified dispatch to the prejudice of a third party or with the intent of cause such prejudice, shall suffer the penalty next lower in degree. •
Acts punished: Uttering fictitious wireless, telegraph or telephone m essage o That the offender is an officer or employee of the government or of a private corporation, engaged in the service of sending or receiving wireless, cable or telephone message That the offender commits any of the following acts: uttering fictitious wireless, cable, telegraph or telephone message falsifying wireless, cable, telegraph or telephone message Falsifying wireless, telegraph or telephone message o same as above Using such falsified message o that the accused knew that wireless, cable, telegraph, or telephone message was falsified by any of the person specified in the 1 st paragraph of Article 173 that the accused used such falsified dispatch that the use of the falsified dispatch resulted in the prejudice of a 3 rd party, or that the use thereof was with intent to cause such prejudice need for intent to cause damage can NOT be done by culpa o • •
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Section Five. — Falsification of medical certificates, certificates of merit or services and the like. Art. 174. False medical certificates, false certificates of merits or service, etc. — The penalties of arresto mayor in its maximum period to prision correccional in its minimum period and a fine not to exceed P1,000 pesos shall be imposed upon: 1. Any physician or surgeon who, in connection, with the practice of his profession, shall issue a false certificate; and 2. Any public officer who shall issue a false certificate of merit of service, good conduct or similar circumstances. The penalty of arresto mayor shall be imposed upon any private person who shall falsify a certificate falling within the classes mentioned in the two preceding subdivisions. Art. 175. Using false certificates. — The penalty of arresto menor shall be imposed upon any one who shall knowingly use any of the false certificates mentioned in the next preceding article. •
Persons liable: Physician or Surgeon: for falsifying a medical certificate, must relate to illness/health o applies to both private and public practice. Public Officer: for falsifying a certificate of merit of service, good conduct or similar o circumstances Private person: for falsifying the certificates above o Includes the instance when a private person represents himself as a doctor and gives/falsifies a certificate Don’t charge with usurpation of authority or official functions, sir said the penalty in Art 174 already includes that The certificates need not be notarized The one who uses such false certificates must KNOW that the certificates are false. •
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If the author uses it also, charge him only as an author, not anymore as a user.
Section Section Six. — Manufac Manufacturi turing, ng, importing importing and possession possession of instrume instruments nts or implemen implements ts intended intended for the commission of falsification. Art. 176. Manufact Manufacturing uring and possessio possession n of instrument instruments s or implement implements s for falsificat falsification. ion. — The penalty of prision correccional in its medium and maximum periods and a fine not to exceed P10,000 pesos shall be imposed upon any person who shall make or introduce into the Philippine Islands any stamps, dies, marks, or other instruments or implements intended to be used in the commission of the offenses of counterfeiting or falsification mentioned in the preceding sections of this Chapter. Any person who, with the intention of using them, shall have in his possession any of the instruments or implements mentioned in the preceding paragraphs, shall suffer the penalty next lower in degree than that provided therein. •
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Acts punished: Making or introducing in to the Philippines any stamps, dies, marks or other instruments or o implements for counterfeiting or falsification Possessing with intent to use the instruments or implements for counterfeiting or falsification o made in or introduced into the Philippines by another person Need for intention to use for forgery or falsification What if the instruments imported could not be used for the intended purpose, is it an impossible crime or a crime under 176? Still 176, as long as there was intent to use and there was importation. o Although the Spanish SC says it’s an impossible crime. In P v Santiago (CA case), court said no need to import a complete set. If it can be used o alongside other instruments, there is violation of the law. Importing marks or stamps, etc are mere preparatory acts. o Possession includes actual or constructive possession.
Chapter Two OTHER FALSIFICATIONS Sec. One. — Usurpation of authority, rank, title, and improper use of names, uniforms and insignia. Art. 177. Usurpatio Usurpation n of authority authority or official official functions. functions. — Any Any person person who who shall shall knowin knowingly gly and and falsel falsely y represent himself to be an officer, agent or representative of any department or agency of the Philippine Government or of any foreign government, or who, under pretense of official position, shall perform any act perta pertaini ining ng to any any perso person n in autho authorit rity y or publi public c office officer r of the Phili Philipp ppine ine Govern Governme ment nt or any any foreig foreign n government, or any agency thereof, without being lawfully entitled to do so, shall suffer the penalty of prision correccional in its minimum and medium periods. •
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Two acts punished: By knowingly and falsely representing oneself to be an officer, agent or representative of any o department or agency of the Philippine Government or any foreign government In usurpation of authority, the mere act of knowingly and falsely representing oneself to be an officer, etc. is sufficient; it is not necessary that he performs an act pertaining to a public officer By performing any act pertaining to any person in authority or public officer of the Philippine o Govern Governmen mentt or of a foreign foreign govern governmen mentt or any agency agency thereo thereof, f, under under pre preten tense se of officia officiall position, and without being lawfully entitled to do so In usurpation of official functions, it is essential that the offender should have performed an act act pert pertai aini ning ng to a pers person on in auth author ority ity or publ public ic offi office cer, r, in addit addition ion to othe otherr requirements Usurpation of authority Elements: o Accused is aware he is not a public officer He falsely represents himself to be such (explicit representation) Such person has performed an act pertaining to a public officer or agent of PIA Can only be committed by dolo. o Good faith is a defense. Examples: o
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Notary public who notarizes a document when his commission has expired violated this provision (P v Baltazar) A man who pretended to be a public office to officiate a marriage of a girl so that he could have sex with her was guilty of the complex crime of usurpation of public authority with seduction A man who pretended to be a BIR agent and showed a falsified BIR ID was guilty of the complex crime of usurpation of public authority with falsification But take note of: o Art 299 299-A -A (4): robbery robbery may be committ committed ed through through pretense pretense of exe exerci rcise se of public public authority In this case, no complex crime. No 177 either since it’s already an element of Art 299-A (4). Art 267: kidnapping by pretending to be a public officer. Again, no complex crime since usurpation of authority is a mode of committing the crime of kidnapping. What if you falsely assume to be a foreign diplomat, what are you liable for? o RA 75, and Usurpation of public authority You can be charged with both because RA 75 (Sec 6) says, “ in addition to…” (see to…” (see comments on direct assault) A person pretending to be authorized to issue passports is liable under RA 8239. 35 o Remember what J-Call said about the passport act and how the judge should already consider the penalty in the RPC, hence the accused shouldn’t be charged twice. That was his opinon. Usurpation of functions Person performs functions pertaining to public officer under false pretense of public authority. o Without false pretense, there is no crime of usurpation of authority but mere civic spirit. This is the reason why civilians who direct traffic to unwind some mess are not liable under this provision. When a public officer or employee has already retired or resigned but continues to do his duties, o is he liable for usurpation of functions? Yes!!!! What if he acts outside his jurisdiction? Still liable. Once outside his jurisdictio jurisdiction, n, he acts as a private individual. individual. (Cuello Callon)
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Art. 178. Using fictitious name and concealing true name. — The penalty of arresto mayor and a fine not to exceed 500 pesos shall be imposed upon any person who shall publicly use a fictitious name for the purpose of concealing a crime, evading the execution of a judgment or causing damage. Any person who conceals his true name and other personal circumstances shall be punished by arresto menor or a fine not to exceed 200 pesos. •
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Two acts punished: Using a fictitious name for purposes enumerated o Concealing his true name or other o ther personal circumstances o First mode: using a fictitious name Elements: o The offender uses a name other than his real name He uses that fictitious name publicly The purpose of the offender is: to conceal a crime, to evade the execution of a judgment, or to cause damage to public interest • • •
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Acting or claiming to act in any capacity of office under the Republic of the Philippines, without lawful authority, grants, issues or verifies any passport or travel document to any or for any person whomsoever shall be punished by a fine of not less than Fifteen thousand pesos (P15,000) nor more than Sixty thousand pesos (P60,000) and imprisonment of not less than eighteen (18) months nor more than six (6) years. In case any of the offenses prohibited in this Act constitutes a violation of the Revised Penal Code and the penalty imposed in said Code is heavier than that in this Act, the latter penalty shall be imposed.
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if a person uses a fictitious name publicly, but without these purposes, the same crime is committed, just under the 2nd mode. “Publicly” includes use in an official or public document o “Damage” means damage to the public interest. o Public interest is something which the public, community at large, has some pecuniary interest by which some legal rights are affects. “Evasion of judgment” includes civil or criminal. Law does not distinguish. o If I use my fictitious name (Cutie McPoopy) to defraud another, what crime is commited? o Estafa. If I use my fictitious name (Handsome McWeewee) to gain entry to the house of another to rob o him, what crime is committed? Robbery. Not complex, complex, not separa separate. te. Use of fictit fictitious ious name is mode to commit commit the robbery. If I use my fictitious name (Gorgeous (Gorgeous McHearthrob) McHearthrob) in a narration of facts in a public or official official o document, what crime is committed? Falsfication of public, commercial, or official document. The penalty of 178 is already … ABZORBED in the former. (Cuello “I know everything” Callon) J-Call’s favorite: A is a convict serving sentence in Muntinlupa. B, another inmate, substitutes for o A, to allow A to escape. B took A’s place and claimed to be A by stating his name to the chubby warden. What crime did the A commit? Evasion of service with use of fictitious name. What if the warden did not ask the name of the replacement? (B was just sleeping like a baby) J-Call’s answer: o If no fictitious name used: A liable for evasion of sentence B liable for delivery from prison If fictitious name used: A liable liable for evasio evasion n of senten sentence ce with use of fictit fictitiou ious s name B liable liable for delive delivery ry from from prison prison with with use of fictit fictitious ious name Second mode: concealing his name If use was done but not for the enumerated purposes, you use this paragraph o There can be as many crimes as the number of fictitious names used If a person uses a fictitious name to obstruct justice or uses a fictitious name in a passport? Liable under PD 182936 (for obstruction) or RA 8239 (passport) o Can you charge both PD 1829/RA 8239 (as the case may be) and 178? No! Same logic as explained earlier. Court should impose the higher penalty of 1829/RA 8239 or 178. So J-Call says if already already charged with PD 1829/RA 8329, 37 you can’t charge 178 na. na. o
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Art. 179. Illegal use of uniforms or insignia. insignia. — The penalty of arresto mayor shall be imposed upon any person who shall publicly and improperly make use of insignia, uniforms or dress pertaining to an office not held by such person or to a class of persons of which he is not a member. •
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Elements: That the offender makes use of insignia, uniform or dress o That the insignia, uniform or dress pertains to an office not held by the offender or to a class of o persons of which he is not a member That said insignia, uniform or dress is used publicly and improperly o What if you wear the uniform of the Ministry of Magic? Not liable. Wearing the uniform of an imaginary office is not punishable (yes, Harry Potter is not o real.)
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(d) publicly using a fictitious name for the purpose of concealing a crime, evading prosecution or the execution of a judgment, or concealing his true name and other personal circumstances for the same purpose or purposes; 37 PD 1829 If any of the acts mentioned herein is penalized by any other law with a higher penalty, the higher penalty shall be imposed. Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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Section Two. — False testimony Art. 180. False testimony against a defendant. — Any person who shall give false testimony against the defendant in any criminal case shall suffer: 1. The penalty of reclusion temporal, if the defendant in said case shall have been sentenced to death; 2. The penalty of prision mayor, if the defendant shall have been sentenced to reclusion temporal or reclusion perpetua; 3. The penalty of prision correccional, if the defendant shall have been sentenced to any other afflictive penalty; and 4. The penalty of arresto mayor, if the defendant shall have been sentenced to a correctional penalty or a fine, or shall have been acquitted. In cases provided in subdivisions 3 and 4 of this article the offender shall further suffer a fine not to exceed 1,000 pesos. Art. 181. False testimony favorable to the defendants. — Any person who shall give false testimony in favor of the defendant in a criminal case, shall suffer the penalties of arresto mayor in its maximum period to prision correccional in its minimum period a fine not to exceed 1,000 pesos, if the prosecution is for a felony punishable by an afflictive penalty, and the penalty of arresto mayor in any other case. •
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Elements (180 and 181): There be a criminal proceeding o The offender testifies falsely under oath against the defendant therein o The offender who gives false testimony knows that it is false o The defendant against whom the false testimony is given is either acquitted or convicted in a o final judgment 180: against the defendant 181: for the defendant This only applies if the crime is based on the RPC But it can also apply to SPLs if it follows the nomenclature of the RPC o If it doesn’t, go for 182 There must be criminal intent. Only committed through dolo. o GF is a defense. How do you prove that he knew that the testimony is false? o Can be determined by the things he states or does, proof of motive to lie, and objective falsity itself, or proof from other facts. For 180, 181, and 182, the testimony must be complete. Must have been subjected to direct and cross-examination. o Unless other party waived right to cross-examine. Once the testimony is complete, the crime is consummated. o Retraction done after his testimony does not extinguish the crime already committed. Unless it was done in the same testimony. (example: he lied during direct, but retracted during cross) o No attempted or frustrated. But J-Call disagrees. There is attempted, no frustrated. Nag-oath na eh. Nagsimula na ang overt acts! The false statement must be related to the subject of inquiry, which legitimately affects the defendant. Not necessary that the witness’s testimony directly affects the decision. It just needs to affect a o material fact. Material fact: related to inquiry or the fact in issue There must be judgment of conviction or acquittal because penalty depends on the penalty imposed on the convict. Does this provision include testimony on qualifying and aggravating? Yes! Not only on the merits, but on those circumstances as well! (Cuello Callon) o Will not apply if accused in main case is convicted only for a penalty less than correctional or a fine. But the liar can be prosecuted for perjury. o “Witness” includes the injured party, expert witness, and even state witness (an accused!) if the accused gave false testimony in favor of himself, is he liable under 181? No. (Cuello Callon) o •
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BUT! Our SC said that he is liable under 181 if he not only disclaimed guilt but pinned the crime on another. (P v Soliman) For prescription: For 180: period will only begin from the finality of the decision o For 181: period will begin right after the witness falsely testifies o Relate to RA 6981 (Witness Protection Program), Sec 13: person in WPP who testifies falsely loses immunity and be liable for Art 180/181 as the case may be. Relate to RA 9372 (Human Security Act), Sec 47: person who knowingly furnishes false testimony in any proceeding involving terrorism is NOT liable under 180-182 but for violation of Sec 47 o
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Art. 182. False testimony in civil cases. — Any person found guilty of false testimony in a civil case shall suffer the penalty of prision correccional in its minimum period and a fine not to exceed 6,000 pesos, if the amount in controversy shall exceed 5,000 pesos, and the penalty of arresto mayor in its maximum period to prision correccional in its minimum period and a fine not to exceed 1,000 pesos, if the amount in controversy shall not exceed said amount or cannot be estimated. •
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Elements be given in a civil case o False testimony must relate to the issues presented in said case o That the false testimony must be given by the defendant knowing the same to be false o That the testimony must be malicious and given with an intent to affect the issues presented in o said case Civil cases include Ordinary actions o Arbitration o Special civil actions o Supplementary proceedings (execution of judgment, prohobition) o Art 182 does not apply to Special proceedings o Naturalization proceedings (Chua v P) o Petition to annul judgment (rule 47) o In these cases, go for perjury. Pending determination of the falsity of the subject testimonies of private respondents in the civil case, the criminal action for false testimony must perforce be suspended. (Ark Express v Judge, read for the bar!)
Art. 183. False testimony in other cases and perjury in solemn affirmation. — The penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon any person, who knowingly makes untruthful statements and not being included in the provisions of the next preceding articles, shall testify under oath, or make an affidavit, upon any material matter before a competent person authorized to administer an oath in cases in which the law so requires. Any person who, in case of a solemn affirmation made in lieu of an oath, shall commit any of the falsehoods mentioned in this and the three preceding articles of this section, shall suffer the respective penalties provided therein. •
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Perjury applies in: Light felonies o SPL’s which do not follow RPC nomenclature o Special proceedings o Non-judicial proceedings (Congress hearings, etc) o Naturalization (Chua v People) o Other proceedings not under 180-182 o Two ways of Committing Perjury By falsely testifying under oath; and o By making a false Affidavit o Elements That the accused made a statement under oath or executed an affidavit upon a material matter o That the statement or affidavit was made before a competent officer, authorized to receive and o administer oath
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That in the statement or affidavit, the accused made a willful and deliberate assertion of a falsehood; and That the sworn statement or affidavit containing the falsity is required by law o Must be on a material matter. Can only be done by dolo. Must be with evil intent and malice. o A petition filed court where false statements are made will give rise to perjury. NOT falsification. Why? o Because of Padua v Paz, where a verified complaint had false allegations, and Asturias v Serrano where a petition to annul judgment contained false statements. In both these cases, the Court considered the crime as perjury. Perjury even if said petition was withdrawn. (Chua v P, where the petition for naturalization was o withdrawn) Prejudicial question doctrine applies. (see 182) Subornation of perjury (considered as perjury) One who induces one to lie: PDI o One who lies: PDP o o
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Art. 184. Offering false testimony in evidence. — Any person who shall knowingly offer in evidence a false witness or testimony in any judicial or official proceeding, shall be punished as guilty of false testimony and shall suffer the respective penalties provided in this section. •
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Elements That the offender offered in evidence a false witness or false testimony o That he knew the witness or the testimony was false o That the offer was made in a judicial or official proceeding o The party who is liable is the party who offers the false testimony/false witness in evidence He must know that the document is false o The falsity must be made by another o What if the author offers his own false testimony? He is guilty as a PDP of false testimony or perjury, as the case may be. Applies to offering in judicial, quasi-judicial, official, or admin proceedings o Relate to RA 9372, Sec 38: false testimony by law enforcement on terrorism, liable under RA 9372, not under perjury38 The penalties in 184 are the same as the preceding articles because the one who uses such falsities knowingly adopts 183. •
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Chapter Three FRAUDS Section One. — Machinations, monopolies and combinations Art. 185. Machinations in public auctions. — Any person who shall solicit any gift or promise as a consideration for refraining from taking part in any public auction, and any person who shall attempt to cause bidders to stay away from an auction by threats, gifts, promises, or any other artifice, with intent to cause the reduction of the price of the thing auctioned, shall suffer the penalty of prision correccional in its minimum period and a fine ranging from 10 to 50 per centum of the value of the thing auctioned. •
Acts punished and elements By soliciting any gift or promise as a consideration for refraining from taking part in any public o auction That there be a public auction That the accused solicited any gift or promise from any of the bidders That such gift or promise was the consideration for his refraining from taking part in that public auction That the accused had the intent to cause the reduction of the price of the thing auctioned By attempting to cause bidders to stay away from an auction by threats, gifts, promises or any o
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SEC. 38. Penalty for False or Untruthful Statement or Misrepresentation of Material Fact in Joint Affidavits. Any false or untruthful statement or misrepresentation of material fact in the joint affidavits required respectively in Section 12 and Section 32 of this Act shall constitute a criminal offense and the affiants shall suffer individually the penalty of ten (10) years and one day to twelve (12) years of imprisonment. Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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other artifice That there be a public auction That the accused attempted to cause the bidders to stay away from the public auction That is was done by threats, gifts, promises or any other artifice That the accused had the intent to cause the reduction of the price of the thing auctioned Art. 186. Monopolies and combinations in restraint of trade. — The penalty of prision correccional in its minimum period or a fine ranging from 200 to 6,000 pesos, or both, shall be imposed upon: 1. Any person who shall enter into any contract or agreement or shall take part in any conspiracy or combination in the form of a trust or otherwise, in restraint of trade or commerce or to prevent by artificial means free competition in the market; 2. Any person who shall monopolize any merchandise or object of trade or commerce, or shall combine with any other person or persons to monopolize and merchandise or object in order to alter the price thereof by spreading false rumors or making use of any other article to restrain free competition in the market; 3. Any person who, being a manufacturer, producer, or processor of any merchandise or object of commerce or an importer of any merchandise or object of commerce from any foreign country, either as principal or agent, wholesaler or retailer, shall combine, conspire or agree in any manner with any person likewise engaged in the manufacture, production, processing, assembling or importation of such merchandise or object of commerce or with any other persons not so similarly engaged for the purpose of making transactions prejudicial to lawful commerce, or of increasing the market price in any part of the Philippines, of any such merchandise or object of commerce manufactured, produced, processed, assembled in or imported into the Philippines, or of any article in the manufacture of which such manufactured, produced, or imported merchandise or object of commerce is used. If the offense mentioned in this article affects any food substance, motor fuel or lubricants, or other articles of prime necessity, the penalty shall be that of prision mayor in its maximum and medium periods it being sufficient for the imposition thereof that the initial steps have been taken toward carrying out the purposes of the combination. Any property possessed under any contract or by any combination mentioned in the preceding paragraphs, and being the subject thereof, shall be forfeited to the Government of the Philippines. Whenever any of the offenses described above is committed by a corporation or association, the president and each one of its agents or representatives in the Philippines in case of a foreign corporation or association, who shall have knowingly permitted or failed to prevent the commission of such offense, shall be held liable as principals thereof. • •
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Sir just said to read the following cases to understand monopoly: Gokongwei v SEC: An express agreement is not necessary for the existence of a combination or conspiracy in o restraint of trade. It is enough that a concert of action is contemplated and that the defendants conformed to the arrangements, and what is to be considered is what the parties actually did and not the words they used. Monopoly is the concentration of business in the hands of a few. Not necessary that prices are o raised, enough that the few have the power to raise such prices. Rivera v Solidbank (which talked of restraints in contracts and pension plans) 39: A restriction in the contract that does not preclude the employee from engaging in competitive o activity, but simply provides for the loss of rights or privileges if he does so is not in restraint of trade. A post-retirement competitive employment restriction is designed to protect the employer o against competition by former employees who may retire and obtain retirement or pension benefits and, at the same time, engage in competitive employment. Avon v Luna (on exclusivity contracts, here, the SC said the contract was valid, it did not foreclose competition): Contracts requiring exclusivity are not per se void. Each contract must be viewed vis-à-vis all the o circumstances surrounding such agreement in deciding whether a restrictive practice should be prohibited as imposing an unreasonable restraint on competition. The main objection to exclusive dealing is its tendency to foreclose existing competitors or new o entrants from competition in the covered portion of the relevant market during the term of the
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the distinction between restrictive covenants barring an employee to accept a post-employment competitive employment or restraint on trade in employment contracts and restraints on post-retirement competitive employment in pension and retirement plans either incorporated in employment contracts or in collective bargaining agreements between the employer and the union of employees, or separate from said contracts or collective bargaining agreements which provide that an employee who accepts post retirement competitive employment will forfeit retirement and other benefits or will be obliged to restitute the same to the employer. The strong weight of authority is that forfeitures for engaging in subsequent competitive employment included in pension and retirement plans are valid even though unrestricted in time or geography. Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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agreement. Only those arrangements whose probable effect is to foreclose competition in a substantial share of the line of commerce affected can be considered as void for being against public policy. The foreclosure effect, if any, depends on the market share involved. If it doesn’t really affect competition, then it’s valid. Section Two. — Frauds in commerce and industry Art. 187. Importation and disposition of falsely marked articles or merchandise made of gold, silver, or other precious metals or their alloys. — The penalty of prision correccional or a fine ranging from 200 to 1,000 pesos, or both, shall be imposed on any person who shall knowingly import or sell or dispose of any article or merchandise made of gold, silver, or other precious metals, or their alloys, with stamps, brands, or marks which fail to indicate the actual fineness or quality of said metals or alloys. Any stamp, brand, label, or mark shall be deemed to fail to indicate the actual fineness of the article on which it is engraved, printed, stamped, labeled or attached, when the rest of the article shows that the quality or fineness thereof is less by more than one-half karat, if made of gold, and less by more than four onethousandth, if made of silver, than what is shown by said stamp, brand, label or mark. But in case of watch cases and flatware made of gold, the actual fineness of such gold shall not be less by more than three onethousandth than the fineness indicated by said stamp, brand, label, or mark.
188 and 189 repealed by Intellectual Property Code.
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190 – 194 repealed by the DDA. DDA lecture notes. Shabu is a dangerous drug. (Navotas v Judge) Sec 36 (f) and (g) are unconstitutional in so far as it adds qualifications for Congress and mandates drug testing to those charged with crimes. 40 Drug testing must be RANDOM and SUSPICIONLESS. o So, constitutional as to students, d river’s license applicants and police officers. DDA is mala prohibita. No need to prove intent. With regard to buy-bust operations, the prosecution must comply with the objective test in buy-bust operations. They must prove how the operation originated, what took place, and the subsequent seizure of drugs and the offender. “Frame-up” (instigation) defense are taken with a grain of salt. o “Importation” from a foreign country is consummated the m oment the airplane/ship enters the territorial air/sea of the Philippines as defined by the UNCLOS. 41
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Section 36. Authorized Drug Testing . – Authorized drug testing shall be done by any government forensic laboratories or by any of the drug testing laboratories accredited and monitored by the DOH to safeguard the quality of test results. The DOH shall take steps in setting the price of the drug test with DOH accredited drug testing ce nters to further reduce the cost of such drug test. The drug test ing shall employ, among others, two (2) te sting methods, the screening test which will determine the positive result as well as the type of the drug used and the confirmatory test which will confirm a positive screening test. Drug test certificates issued by accredited drug testing centers shall be valid for a one-year period from the date of issue which may be used for other purposes. The following shall be subjected to undergo drug testing: (a) Applicants for driver's license. – No driver's license shall be issued or renewed to any person unless he/she presents a certification that he/she has undergone a mandatory drug test and indicating thereon that he/she is free from the use of dangerous drugs; (b) Applicants for firearm's license and for permit to carry firearms outside of residence. – All applicants for firearm's license and permit to carry firearms outside of residence shall undergo a mandatory drug test to ensure that they are free from the use of dangerous drugs: Provided , That all persons who by the nature of their profession carry firearms shall undergo drug testing; (c) Students of secondary and tertiary schools. – Students of secondary and tertiary schools shall, pursuant to the related rules and regulations as contained in the school's student handbook and with notice to the parents, undergo a random drug testing: Provided , That all drug testing expenses whether in public or private schools under this Section will be borne by the government; (d) Officers and employees of public and private offices. – Officers and employees of public and private offices, whether domestic or overseas, shall be subjected to undergo a random drug test as contained in the company's work rules and regulations, which shall be borne by the employer, for purposes of reducing the risk in the workplace. Any officer or employee found positive for use of dangerous drugs shall be dealt with administratively which shall be a ground for suspension or termination, subject to the provisions of Article 282 of the Labor Code and pertinent provisions of the Civil Service Law; (e) Officers and members of the military, police and other law enforcement agencies. – Officers and members of the military, police and other law enforcement agencies shall undergo an annual mandatory drug test; (f) All persons charged before the prosecutor's office with a criminal offense having an imposable penalty of imprisonment of not less than six (6) years and one (1) day shall have t o undergo a mandatory drug test; and (g) All candidates for public office whether appointed or elected both in the national or local government shall undergo a mandatory drug test. In addition to the above stated penalties in this Section, those found to be positive for dangerous drugs use shall be subject to the provisions of Section 15 of this Act. 41 Section 4. Importation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals.- .The penalty of life imprisonment to death and a ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall import or bring into the Philippines any dangerous drug, regardless of the quantity and purity involved, including any and all species of opium poppy or any part thereof or substances derived therefrom even for floral, decorative and c ulinary purposes. xxx
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No need to actually bring into the port. Importation can not be done through land since we are an archipelago. o “Possession” can be actual or constructive.42 Constructive: actual control of the ho use where the drugs are contained/hidden. o If drug is found in one’s house, it is presumed that the head of the family is liable. Possession need not be exclusive. (P v Tira) To be guilty of possession (Sec 11): o In possession of a DD Not authorized by law/authority Intent to posses Accused has knowledge that drug is illicit Possessed freely Presumption: one in possession of a DD is presumed to have knowledge that drug is illicit o “Not authorized by law”; are their drugs authorized to be possessed? o Yes, those in hospitals. And those p ossessed by the police for buy-bust purposes. Accused has burden of prove to show that the he is authorized by law to possess such drug. Two presumptions: o One in possession knows that drug is illicit No authority to hold such DD If one is charge of use of DD, can he be charged separately of possession? No.43 o If one is charged of delivery of DD, can he be charged separately of possession? No. Possession already an element in delivery. o “Sale of drugs” 44 Elements: (P v dela Cruz) o identification of buyer/seller object of sale consideration delivery Presumption: one caught selling is presumed to know that the drug is illegal o Consummated upon the perfection of the contract of sale of illegal drugs. Even if consideration o has not yet been paid. But better if the drug has been delivered for evidence purposes. Prosecution must prove: o Corpus delicti The buy & sell The drug subject of the sale Chain of evidence rule (Sec 21) 1st link: drug with the team who caught the dealer 2nd link: drug turned over to the police investigator 3rd link: drug turned over to the crime lab in the Alabang Boys case, prosecution failed to show that the drug was o brought to the police investigator, because the drugs were instead brought to the media o
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Section 11. Possession of Dangerous Drugs. - The penalty of life imprisonment to death a nd a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten milli on pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall possess any dangerous drug in the following quantities, regardless of the degree of purity thereofxxx 43 Section 15. Use of Dangerous Drugs. – A person apprehended or arrested, who is found to be positive for use of any dangerous drug, after a confirmatory test, shall be imposed a penalty of a minimum of six (6) months rehabilitation in a government center for the first offense, subject to the provisions of Article VIII of this Act. If apprehended using any dangerous drug for the second time, he/she shall suffer the penalty of imprisonment ranging from six (6) years and one (1) day to twelve (12) years and a fine ranging from Fifty thousand pesos (P50,000.00) to Two hundred thousand pesos (P200,000.00): Provided, That this Section shall not be applicable where the person tested is also found to have in his/her possession such quantity of any dangerous drug provided for under Section 11 of this Act, in which case the provisions stated therein shall apply. 44 Section 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. - The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give a way to another, distribute dispatch in transit or transport any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity i nvolved, or shall act as a broker in any of such transactions. xxx Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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what if no inventory/pictures of the drugs? Not a problem! As long as the chain is pvoed. (P v Llamado) Is it necessary to show the buy money or the informant or the surveillance tema in court? No. Delivery includes constructive delivery o In case, the agreement was to place the drugs in a cabinet. This was constructive delivery. (P v Lacap) One who delivered but did not sell the drugs is also liable. (P v Petilla) “Transportation” of drugs consummated even if the drugs do not reach the intended destination. (See footnote on sale) But there is also “attempt to deliver” as was seen in the case of P v Marti, where the courier o opened a box which was to be sent to Europe. A sold to B ½ kg of marijuana. He had ½ kg left with him. Solve. 2 separate crimes: o Sale of drugs Possession Sec 27 is peculiar because it gives a specific penalty for the malversation of drugs or other stuff confiscated. 45 The RPC provision on malversation will not apply because the RPC does not apply to DDA except o as therein provided. “Planting of evidence” is a crime under Sec 29.46 Sir digressed and talked of planting of evidence under 9516 (illegal explosives) which is also a o crime. Is there command responsibility under the DDA? Under Sec 91, it seems so but only when any member of law enforcement agencies fail to appear o as witnesses. Their superiors are held liable as well if they did not exert efforts to present their subordinates in court. 47 Sir digressed again and said that there is also command responsibility under 9516. o Under Sec 98, the RPC does NOT apply unless 9165 says so. 48
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Section 27. Criminal Liability of a Public Officer or Employee for Misappropriation, Misapplication or Failure to Account for the Confiscated, Seized and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment Including the Proceeds or Properties Obtained from the Unlawful Act Committed. – The penalty of life imprisonment t o death and a fine ranging from F ive hundred thousand pesos (P500,000.00) to Ten mill ion pesos (P10,000,000.00), in addition to absolute perpetual disqualification from any public office, shall be imposed upon any public officer or e mployee who misappropriates, misapplies or fails to account for confiscated, seized or surrendered dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment including the proceeds or properties obtained from the unlawful acts as provided for in this Act. Any elective local or national official found to have benefited from the proceeds of the trafficking of dangerous drugs as prescribed in this Act, or have received any financial or material contributions or donations from natural or juridical persons found guilty of trafficking dangerous drugs as prescribed in this Act, shall be removed from office and perpetually disqualified from holding any e lective or appointive positions in the government, its divisions, subdivisions, and intermediaries, including government-owned or –controlled corporations. 46 Section 29. Criminal Liability for Planting of Evidence. – Any person who is found guilty of "planting" any dangerous drug and/or controlled precursor and essential chemical, regardless of quantity and purity, shall suffer the penalty of death. 47 Employees in Testifying as Prosecution Witnesses in Dangerous Drugs Cases. – Any member of law enforcement agencies or any other government official and employee who, after due notice, fails or refuses intentionally or negligently, to appear as a witness for the prosecution in any proceedings, involving violations of this Act, wit hout any valid reason, shall be punished with imprisonment of not less than twelve (12) years and one (1) day to twenty (20) years and a fine of not less than Five hundred thousand pesos (P500,000.00), in addition to the administrative liability he/she may be meted out by his/her immediate superior and/or appropriate body. The immediate superior of the member of the law enforcement agency or any other government employee mentioned in the preceding paragraph shall be penalized with imprisonment of not less than two (2) months and one (1) day but not more than six (6) years and a fine of not less than Ten thousand pesos (P10,000.00) but not more than Fifty thousand pesos (P50,000.00) and in addition, perpetual absolute disqualification from public office if despite due notice to them and to the witness concerned, the former does not exert reasonable effort to present the latter to the court. The member of the law enforcement agency or any other government employee mentioned in t he preceding paragraphs shall not be transferred or reassigned to any other government office located in another territorial jurisdiction during the pendency of the case in court. However, the concerned member of the law enforcement agency or government employee may be transferred or re-assigned for compelling reasons: Provided, That his/her immediate superior shall notify the court where the case is pending of the order to tra nsfer or re-assign, within twenty-four (24) hours from its approval; Provided, further, That his/her immediate superior shall be penalized with imprisonment of not less than two (2) months and one (1) day but not more than six (6) years and a fine of not less than Ten thousand pesos (P10,000.00) but not more than Fifty thousand pesos (P50,000.00) and in addition, perpetual absolute disqualification from public office, should he/she fail to notify the court of such order to transfer or re-assign. Prosecution and punishment under this Section shall be without prejudice to any liability for violation of any existing law. 48 Section 98. Limited Applicability of the Revised Penal Code. – Notwithstanding any law, rule or regulation to the contrary, the provisions of the Revised Penal Code (Act No. 3814), as amended, shall not apply to the provisions of t his Act, except in the case of minor offenders. Where the offender is a minor, the penalty for acts punishable by life imprisonment to death provided herein shall be reclusion perpetua to death.
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Sample of a situation where RPC will apply: When the offender is a minor who acted with discernment, the minor is entitled to the privileged mitigating circumstance of minority under Art 68 of the RPC. Conspiracy and attempted stage are also contemplated by the DDA. 49 Subsidiary imprisonment does not apply. o Probation allowed EXCEPT: In pushing or trafficking, even if less than 6 years. 50 o The ISL is also applicable (not sure if this is still true since 9165 reverted back to non-RPC nomenclature) o
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Title Six CRIMES AGAINST PUBLIC MORALS Chapter One GAMBLING AND BETTING
195 – 199 (gambling stuff) not discussed by J-Call. Chapter Two OFFENSES AGAINST DECENCY AND GOOD CUSTOMS Art. 200. Grave scandal. — The penalties of arresto mayor and public censure shall be imposed upon any person who shall offend against decency or good customs by any highly scandalous conduct not expressly falling within any other article of this Code. •
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Elements: Offender performs an act or acts o Such act or acts are highly scandalous as offending against decency or good customs o The highly scandalous conduct is not expressly falling within any other article of the Code o The act or acts complained of be committed in a public place or within the public knowledge or o view Offense must be directed to the sense of decency or good customs If directed against property (like scattering poo on buildings), not grave scandal o Probably other mischiefs If committed in a public place, deemed to be committed in public view because of the possibility of being witnessed by 3rd persons If done in a private place, the act must be committed in public view (more than one person witnessed the act) Hence, if accused and paramour were doing the deed in a private place, without anyone seeing o them, not grave scandal If act falls under another article of the code, that article must be used Two people groping each other lustfully in public: grave scandal o One person intimidating another and then groping that someone in public: acts of lasciviousness o
Art. 201. Immoral doctrines, obscene publications and exhibitions and indecent shows. — The penalty of prision mayor or a fine ranging from six thousand to twelve thousand pesos, or both such imprisonment and fine, shall be imposed upon: (1) Those who shall publicly expound or proclaim doctrines openly contrary to public morals; (2) (a) the authors of obscene literature, published with their knowledge in any form; the editors publishing such literature; and the owners/operators of the establishment selling the same; 49
Section 26. Attempt or Conspiracy. – Any attempt or conspiracy to commit the following unlawful acts shall be penalized by the same penalty prescribed for the commission of the same as provided under this Act: (a) Importation of any dangerous drug and/or controlled precursor and essential chemical; (b) Sale, trading, administration, dispensation, delivery, distribution and transportation of any dangerous drug and/or controlled precursor and essential chemical; (c) Maintenance of a den, dive or resort where any dangerous drug is used in a ny form; (d) Manufacture of any dangerous drug and/or controlled precursor and essential chemical; and (e) Cultivation or culture of plants which are sources of dangerous drugs. 50 Section 24. Non-Applicability of the Probation Law for Drug Traffickers and Pushers. – Any person convicted for drug trafficking or pushing under this Act, regardless of the penalty imposed by the Court, cannot avail of the privilege granted by the Probation Law or Presidential Decree No. 968, as amended.
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(b) Those who, in theaters, fairs, cinematographs or any other place, exhibit, indecent or immoral plays, scenes, acts or shows, whether live or in film, which are prescribed by virtue hereof, shall include those which (1) glorify criminals or condone crimes; (2) serve no other purpose but to satisfy the market for violence, lust or pornography; (3) offend any race or religion; (4) tend to abet traffic in and use of prohibited drugs; and (5) are contrary to law, public order, morals, and good customs, established policies, lawful orders, decrees and edicts; (3) Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are offensive to morals. (As amended by PD Nos. 960 and 969). •
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Publicity is essential. Art 201 only applies when there is publicity. It must be distributed widespread or to many people, because if isolated, it does not disturb the o law. (P v Tinpongco) Test of obscenity: whether it shocks the ordinary and common sense of men. Whether the tendency of the matter is to deprave or corrupt those whose minds are open to those immoral influences. (US v Kottinger) Mere nudity in pictures or paintings not an obscenity. Can be a work of art. But if there’s a woman dancing with almost nothing on, and the people are shouting o “nakakalibog!” it’s clear that the dancing was indecent and erotic. (P v Aparici, CA) If nude representations are sold for commercial purposes and not the sake of art, it may fall o under Art 201. What if people decide to have sex in public? It’s a crime under this provision, no art involved. Read with RA 9995 which punishes photo and video voyeurism 51 Reasonable expectation of privacy – person believes that he can disrobe in privacy without being o concerned that she would be captured in photo or video52 Private area of the person means the naked or undergarment-clad genitals, pubic area, buttocks o or female breast Female breast means any portion of the breast o The photo or video is inadmissible in evidence53 o Does this mean no more sex tapes or worse yet, Cheater episodes??? o Yes. EVER? No. police can apply to court for an order to take a photo or video of a couple for investigation and apprehension of those committing this crime. 54 Break muna. o •
Art. 202. Vagrants and prostitutes; penalty. — The following are vagrants: 1. Any person having no apparent means of subsistence, who has the physical ability to work and who neglects to apply himself or herself to some lawful calling; 2. Any person found loitering about public or semi-public buildings or places or trampling or wandering about the country or the streets without visible means of support; 3. Any idle or dissolute person who ledges in houses of ill fame; ruffians or pimps and those who habitually associate with prostitutes; 51
Section 4. Prohibited Acts. - It is hereby prohibited and declared unlawful for any person: (a) To take photo or video coverage of a person or group of persons performing sexual act or any similar activity or to capture an ima ge of the private area of a person/s such as the naked or undergarment clad genitals, public area, buttocks or female breast without the consent of the person/s involved and under circumstances in which the person/s has/have a reasonable expectation of privacy ; (b) To copy or reproduce, or to cause to be copied or reproduced, such photo or video or recording of sexual act or any similar activity with or without consideration; (c) To sell or distribute, or cause to be sold or distributed, such photo or video or recording of sexual act, whether it be the original copy or reproduction thereof; or (d) To publish or broadcast, or cause t o be published or broadcast, whether in print or broadcast media, or show or exhibit the photo or video coverage or recordings of such sexual act or any similar activity t hrough VCD/DVD, internet, cellular phones and other similar means or device. 52 (f) "Under circumstances in which a person has a reasonable expectation of privacy" means believe that he/ she could disrobe in privacy, without being concerned that an image or a private area of the person was being captured; or circumstances in which a reasonable person would believe that a private area of the person would not be visible to the public, regardless of whether that person is in a public or private place. 53 Section 7. Inadmissibility of Evidence. - Any record, photo or video, or copy thereof, obtained or secured by any person in violation of the preceding sections shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation. 1avvphi1 54
Section 6. Exemption. - Nothing contained in this Act, however, shall render it unlawful or punishable for any peace officer, who is authorized by a written order of the court, to use the record or any copy thereof as evidence in any civil, criminal investigation or trial of the crime of photo or video voyeurism: Provided, That such written order shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he/she may produce, and upon showing that there are reasonable grounds to believe that photo or video voyeurism has been committed or is about to be committed, and that the evidence to be obtained is essential to the conviction of any person for, or to the solution or prevention of such, crime. Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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4. Any person who, not being included in the provisions of other articles of this Code, shall be found loitering in any inhabited or uninhabited place belonging to another without any lawful or justifiable purpose; 5. Prostitutes. For the purposes of this article, women who, for money or profit, habitually indulge in sexual intercourse or lascivious conduct, are deemed to be prostitutes. Any person found guilty of any of the offenses covered by this articles shall be punished by arresto menor or a fine not exceeding 200 pesos, and in case of recidivism, by arresto mayor in its medium period to prision correccional in its minimum period or a fine ranging from 200 to 2,000 pesos, or both, in the discretion of the court. •
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Vagrants are those who loiter around public or private places without any visible means of support but who are physically able to work and do not apply themselves to some lawful calling. Includes ruffians and pimps who habitually associate themselves with prostitutes. o Loitering around constitutes vagrancy unless such act is not punishable under other articles of o this code. When a person enters the estate of another he may commit: o Vagrancy if the estate is not enclosed or fenced because entry is not prohibited in such case, hence, trespass is not committed Trespass to property when the estate or premises is uninhabited and there is manifest prohibition against entry (Art 281) Theft when a person enters a fenced or enclosed estate without the consent of the owner or overseer to hunt, fish, or gather plant products (Art 308) Prostitution Any lascivious or lewd act habitually done for profit by a woman. o Elements are: o Offender is a woman Habitually indulges in sexual intercourse or lascivious conduct, and Does so for money or profit Habitually associating with prostitutes is vagrancy but when the offender engages in the o business or profits by prostitution or enlists the services of any other person for the purpose of prostitution, the crime is white slavery. Juvenile Justice Act: Persons below 18 are exempt from vagrancy, prostitution or mendicancy o Anti-Child Abuse Act, Sec 5: pimps are liable, and those other persons that procure child prostitutes or encourage them, and those who engage in sexual intercourse with children, and those deriving profit or advantage (e.g. owners of establishment) 55 VAWC – violence against women and their children includes sexual and psychological violence 56
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Section 5. Child Prostitution and Other Sexual Abuse . – Children, whether male or female, who for money, profit, or any other consideration or due t o the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or la scivious conduct, are deemed to be children exploited in prostitution and other sexual abuse. The penalty of reclusion temporal i n its medium period to reclusion perpetua shall be imposed upon the following: (a) Those who engage in or promote, facilitate or induce child prostitution which include, but are not limited to, the following: (1) Acting as a procurer of a child prostitute; (2) Inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means; (3) Taking advantage of influence or relationship to procure a child as prostitute; (4) Threatening or using violence towards a child to engage him as a prostitute; or (5) Giving monetary consideration goods or other pecuniary benefit to a child with intent to engage such child in prostitution. (b) Those who commit the act of sexual intercourse of lascivious conduct with a child exploited in prostitution or subject to other sexual abuse; Provided, That when the victims is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; and (c) Those who derive profit or advantage therefrom, whether as manager or owner of the establishment where the prostitution takes place, or of the sauna, disco, bar, resort, place of entertainment or establishment serving as a cover or which engages in prostitution in addition to the activity for which the license has been issued to said establishment. 56 B. "Sexual violence" refers to an act which is sexual in nature, committed against a woman or her child. It includes, but is not limited to: a) rape, sexual harassment, acts of lasciviousness, treating a woman or her child as a sex object, making demeaning and sexually suggestive remarks, physically attacking the sexual parts of the victim's body, forcing her/him to watch obscene publications and indecent shows or forcing the woman or her child to do indecent acts and/or make films thereof, forcing the wife and mistress/lover to live in the conjugal home or sleep together in the same room with the abuser; b) acts causing or attempting to cause the victim to engage in any sexual activity by force, threat of force, physical or other harm or threat of physical or other harm or coercion; c) Prostituting the woman or child.
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Anti-trafficking of Persons Act – covers sex-tourism, qualified trafficking of persons Qualified when: o Victim is a child (under 18 or over 18 but has mental or physical defect), the crime is qualified If offender is military or law enforcement If the victim dies, becomes insane, gets AIDS/HIV, is mutilated Civil liabilities: o Offender is liable to the trafficked person If insolvent, take value from those proceeds and instruments derived from trafficking that are confiscated There can be independent civil action for civil liabilities under this law Exempt from filing fees •
Title Seven CRIMES COMMITTED BY PUBLIC OFFICERS Chapter One PRELIMINARY PROVISIONS Art. 203. Who are public officers. — For the purpose of applying the provisions of this and the preceding titles of this book, any person who, by direct provision of the law, popular election or appointment by competent authority, shall take part in the performance of public functions in the Government of the Philippine Islands, of shall perform in said Government or in any of its branches public duties as an employee, agent or subordinate official, of any rank or class, shall be deemed to be a public officer. •
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To be a public officer, one must be Taking part in the performance of public functions in the Gov, or performing in said Gov or any o of its branches public duties as an subordinate official, employee, or agent, of any rank or class, (SEA-RC) and His authority to perform such must be by: (LEA) o Direct provision of the law Popular election Appointment by competent authority Definition is extensive and comprehensive. Embraces all public servants, from highest to lowest. (P v Maniego) Removes distinction between officers and employees. o Includes: o Contractual, temporary employees of the government Subsidiaries of GOCCS, created under the corp code or original charters (Agbayani v Sayo) GSIS, DBP, Postal Service, Philippine Postal Savings Bank (P v Sandiganbayan) Corporations, stock or non-stock, vested with function relating to public needs (governmental or proprietary), owned by the government wholly or partially (P v Sandiganbayan)
Chapter Two MALFEASANCE AND MISFEASANCE IN OFFICE • • •
Malfeasance – doing something which in the first place should not be done because it is wrong Misfeasance – performance of an act which the officer may perform but he does so erroneously (miser!) Nonfeasance – omission to do the act which the officer should perform but does not do so
Section One. — Dereliction of duty C. " Psychological violence" refers to acts or omissions causing or likely to cause mental or emotional suffering of the victim such as but not limited to intimidation, harassment, stalking, damage to property, public ridicule or humiliation, repeated verbal abuse and mental infidelity. It includes causing or allowing the victim to witness the physical, sexual or psychological abuse of a member of the family to which the victim belongs, or to witness pornography in any form or to witness abusive injury to pets or to unlawful or unwanted deprivation of the right to custody and/or visitation of common children.
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Art. 204. Knowingly rendering unjust judgment. — Any judge who shall knowingly render an unjust judgment in any case submitted to him for decision, shall be punished by prision mayor and perpetual absolute disqualification. •
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Elements: Offender is a judge o Renders a judgment in a case submitted to him for decision o Judgment is unjust o Judge knows that his judgment is unjust o Applies only to the judges of the first and second levels (MTC, RTC) (Cortes v Chico-Nazario, In Re: Borromeo) Not to collegiate courts (SC, CA, Sandiganbayan) o Judge must commit breach of positive statutory duty or performance of a discretionary act with improper or corrupt motive (Valdez v Judge) To convict, need for actual evidence, not mere speculations (Ang v Aris) “Unjust” – contrary to law, not supported by evidence, made with conscious and deliberate intent to do injustice Intent and overt act must concur o There must be INTENT on the part of the judge to do the injustice – not enough that the judgment is contrary to law or is not supported by evidence Hence, can only be done by dolo, not by culpa. (compare with 205) Good faith a defense. Judgment must have become final and executory before judge can be charged under Art 204 What proceedings are contemplated? There must be a decision of an appellate court, in prohibition/certiorari/appeal, impugning the o validity of the decision, or There is an administrative charge against the judge for promulgating the unjust order o Both a criminal and administrative infraction However, admin complaint can’t be pursued simultaneously with judicial remedies accorded to o the aggrieved by his erroneous order or judgment (like appeals, etc) Admin remedies are neither alternative nor cumulative to judicial review where such review is o available to the aggrieved and the same has not been resolved with finality. Until there is a final declaration by the appellate court that the challenged order or judgment is o manifestly erroneous, there will be no basis to conclude whether judge is administratively liable. (Tan v Adre)
Art. 205. Judgment rendered through negligence. — Any judge who, by reason of inexcusable negligence or ignorance shall render a manifestly unjust judgment in any case submitted to him for decision shall be punished by arresto mayor and temporary special disqualification. • •
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Compare to Art 204: here, a judge may be liable by CULPA Elements Offender is a judge o Renders a judgment in a case submitted to him for decision o Judgment is manifestly unjust o Due to inexcusable negligence or ignorance o Gross ignorance of the law: error must be gross or patent, malicious, deliberate or in evident bad faith There is inexcusable negligence if the mistake of the judge cannot be explained Manifest injustice: even a person having a meager knowledge of the law cannot doubt the injustice Judgment unjust when it is contrary to evidence on record or law Defenses for judge: Good faith, absence of malice or improper considerations (Diego v Castillo) o Mere error of judgment cannot serve as basis for a charge of knowingly rendering an unjust judgment where there is no proof or even allegation of bad faith, ill motive, or improper consideration
Art. 206. Unjust interlocutory order. — Any judge who shall knowingly render an unjust interlocutory order or decree shall suffer the penalty of arresto mayor in its minimum period and suspension; but if he shall have acted by reason of inexcusable negligence or ignorance and the interlocutory order or decree be manifestly Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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unjust, the penalty shall be suspension. •
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Elements: Offender judge o He: o Knowingly renders unjust interlocutory order or decree, or Renders a manifestly unjust interlocutory o rder or decree through inexcusable negligence or ignorance Hence, can be done by dolo or culpa. An interlocutory order does not dispose of the case. A judge was held to have violated this position when he allowed bail to an accused charged with murder without any hearing to determine whether the evidence of guilt was strong. (Layola v Gabo)
Art. 207. Malicious delay in the administration of justice. — The penalty of prision correccional in its minimum period shall be imposed upon any judge guilty of malicious delay in the administration of justice. •
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Elements: Offender judge o There is a proceeding in his court o He delays the admin of justice o Delay is malicious – caused by the judge with deliberate intent to inflict damage on either party o in the case Only done by dolo. Must be committed with corrupt motives or malice. Mere delay is not enough, there must be intent to deliberately delay. (Magdango v Judge)
Art. 208. Prosecution of offenses; negligence and tolerance. — The penalty of prision correccional in its minimum period and suspension shall be imposed upon any public officer, or officer of the law, who, in dereliction of the duties of his office, shall maliciously refrain from instituting prosecution for the punishment of violators of the law, or shall tolerate the commission of offenses. • •
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Prevaricacion Acts punishable: Maliciously refraining from instituting prosecution against violators of the law o Maliciously tolerating the commission of offenses o Elements: Offender is a public officer or officer of the law who has a duty to cause the prosecution of, or to o prosecute offenses Dereliction of duties, meaning he knew of the commission of crime but he does not cause the o prosecution of the criminal or tolerates its commission Offender acts with malice and deliberate intent to favor the violator of the law o The officers liable here are either public officers or officers of the law. Basically, those in charge of the institution or filing of the criminal complaint against the violators o of the law. Those duty-bound to cause the the prosecution and punishment of the offenders PDEA, NBI agents, prosecutors, OMB, special prosecutor, chief of police, barrio captain, etc Does not include those charged with enforcement of tax laws o Malum in se! Need for intent! Dolo only! Malice needed. (P v Malabanan) o Applies both to violations of the RPC and SPL Although the crime may be committed by tolerance, the law expressly requires that the public officer maliciously refrains from instituting or prosecuting violations of the law. Before the public officer may be charged of prevaricacion, the offender whom the public officer refused to charge/prosecute must FIRST be prosecuted and convicted for that crime tolerated or let pass by the public officer. (US v Mendoza, in this case the police office was charged as an accessory to the crime of arson, but the principal was acquitted, hence he was acquitted as well.) This is a condition sine qua non to prevaricacion. o Take note of this case! o What about public officers and employees not tasked with instituting criminal actions? Go for either: o
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PD 1829 – obstruction of justice Art 19 – accessories Can also go for violation of Anti-Graft and Corrupt Practices Law, in addition to liability under Art 208. 57 Does command responsibility apply? Yes, under the Anti-Torture Act. 58 o Can the officer be liable for Anti-Torture and 208? Yes! Violations of the Anti-Torture Act are separate and independent from the RPC.59 Prevaricacion is an element of qualified bribery under Art 211-A.
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Art. 209. Betrayal of trust by an attorney or solicitor. — Revelation of secrets. — In addition to the proper administrative action, the penalty of prision correccional in its minimum period, or a fine ranging from 200 to 1,000 pesos, or both, shall be imposed upon any attorney-at-law or solicitor ( procurador judicial) who, by any malicious breach of professional duty or of inexcusable negligence or ignorance, shall prejudice his client, or reveal any of the secrets of the latter learned by him in his professional capacity. The same penalty shall be imposed upon an attorney-at-law or solicitor ( procurador judicial ) who, having undertaken the defense of a client or having received confidential information from said client in a case, shall undertake the defense of the opposing party in the same case, without the consent of his first client. •
Forms: Client prejudiced by malicious breach of professional duty or inexcusable negligence or ignorance of lawyer Lawyer reveals secrets learned by him in his professional capacity o Undertaking the defense of the opposing client without consent of the first client o “Prejudice”: material or moral damage Seen in US v Laranja where the lawyer was for the prosecution and the defense (simplified facts) o
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Section Two. — Bribery Art. 210. Direct bribery. — Any public officer who shall agree to perform an act constituting a crime, in connection with the performance of this official duties, in consideration of any offer, promise, gift or present received by such officer, personally or through the mediation of another, shall suffer the penalty of prision mayor in its medium and maximum periods and a fine [of not less than the value of the gift and] not less than three times the value of the gift in addition to the penalty corresponding to the crime agreed upon, if the same shall have been committed. If the gift was accepted by the officer in consideration of the execution of an act which does not constitute a crime, and the officer executed said act, he shall suffer the same penalty provided in the preceding paragraph; and if said act shall not have been accomplished, the officer shall suffer the penalties of prision correccional, in its medium period and a fine of not less than twice the value of such gift. If the object for which the gift was received or promised was to make the public officer refrain from doing 57
Sec. 3. Corrupt practices of public officers. - In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: 58 Sec 13. The immediate commanding officer of the unit concerned of the AFP or the immediate senior public official of the PNP and other law enforcement agencies shall be held liable as a principal to the crime of torture or other cruel or inhuman and degrading treatment or punishment for any act or omission, or negligence committed by him/her that shall have led, assisted, abetted or allowed, whether directly or indirectly, the commission thereof by his/her subordinates. If he/she has knowledge of or, owing to the circumstances at the time, should have known that acts of torture or other cruel, inhuman and degrading treatment or punishment shall be committed, is being committed, or has been committed by his/her subordinates or by others within his/her area of responsibility and, despite such knowledge, did not take preventive or corrective action either before, during or immediately a fter its commission, when he/she has the authority to prevent or investigate allegations of torture or other cruel, inhuman and degrading treatment or punishment but failed to prevent or investigate allegations of such act, whether deliberately or due to negligence shall also be liable as principals. Any public officer or employee shall be liable as an accessory if he/she has knowledge that torture or other cruel, inhuman and degrading treatment or punishment is being committed and without having participated therein, either as principal or accomplice, takes part subsequent to its commission in any of the following manner: (a) By themselves profiting from or assisting the offender to profit from the e ffects of the act of torture or other cruel, inhuman and degrading treatment or punishment; (b) By concealing the act of torture or other cruel, inhuman and degrading treatment or punishment and/or destroying the effects or instruments thereof in order to prevent its discovery; or (c) By harboring, concealing or assisting in the escape of the principal/s in the act of torture or other cruel, inhuman and degrading treatment or punishment; provided, that the accessory acts are done with the abuse of the official’s public functions. 59 Section 15. Torture as a Separate and Independent Crime . - Torture as a crime shall not absorb or shall not be absorbed by any other crime or felony committed as a consequence, or as a means in the conduct or commission thereof. In which case, torture shall be treated as a separate and independent criminal act whose penalties shall be imposable without prejudice to any other criminal liability provided for by domestic and international laws. Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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something which it was his official duty to do, he shall suffer the penalties of prision correccional in its maximum period and a fine [of not less than the value of the gift and] not less than three times the value of such gift. In addition to the penalties provided in the preceding paragraphs, the culprit shall suffer the penalty of special temporary disqualification. The provisions contained in the preceding paragraphs shall be made applicable to assessors, arbitrators, appraisal and claim commissioners, experts or any other persons performing public duties. (As amended by Batas Pambansa Blg. 872, June 10, 1985). •
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Bribery is the crime of the public officer who receives a gift, present, offer or promise by reason or in connection with the performance of his official duties. It is the crime of the receiver. The crime of the giver: corruption of public officers o Three kinds of direct bribery: 1st kind: agreement to perform a criminal act in connection with official duties o 2nd kind: acceptance of a gift, etc to do an unjust act in connection with official duties o 3rd kind: acceptance of a gift, etc to not perform an act which the officer is obliged to perform o 1st kind: agreement to perform a criminal act in connection with official duties Elements: o Accused is a public officer Received by himself or thru another, some gift or present, offer or promise, Such gift, present, offer or promise has been given in consideration of his commission or any act not constituting a crime, and Crime or act relates to the exercise of his functions/duties Consummated upon the acceptance of the off er/promise. o It does not matter whether the offered thing is actually given to the officer – as long as there is offer and acceptance, there is consummation. Acceptance can be express or implied. Even a wink can show acceptance! What if the public officer doesn’t do the criminal act? o Still liable. It does not matter if he actually commits the crime or not. What if briber told officer to consummate the crime, but PO only attempted? o PO still liable. Crime here talks of RPC and SPL. Law doesn’t distinguish, then why the hell should we? o Is it necessary the PO be convicted of the other crime before Art 210 can be charged? o No. The two crimes can be filed simultaneously. (J-Call cites Merencillo, but Merencillo talks of RA 3019. But codal supports J-Call! J-Call will ask this! He mentioned it in class!) EXCEPT: If the other crime is Art 208 (prevaricacion) o In this case, you need to prove Art 208 first before filing for Art 210. J-Call uses People v Mendoza as his basis. So, if Harry murders a sad-looking Hufflepuff, and then pays off Mad-Eye (Public Officer) to turn a blind eye, Mad-Eye can only be charged with Art 210 after 1) Harry is convicted of murder and 2) Mad-Eye is convicted of Art 208. Comment: However, P v Mendoza only applies to Art 208. It never mentioned Art 210. The sine qua non requirement talked of the conviction of the person who was set free by the public officer. So, it makes more sense that once you can charge the officer prevaricacion, you should also be able to charge 210. The logic of P v Mendoza should only apply to prevaricacion, not to Art 210. But that’s just me. Follow J-Call! 2nd kind: acceptance of a gift to do an unjust act in connection with official duties Elements: o accused is a public officer officer accepts the gift act in consideration for which the gift, etc was given does not constitute a crime •
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act of crime relates to the public officer’s exercise of functions For the accused to be liable under this kind, the act does not constitute a crime, but the act o should still be unjust In Mamba v Garcia, the judge was held to be an accomplice when he allowed the settlement of a criminal case to be perfected in his chambers. But if a judge acted as the broker in the bribery, he should be held as a principal by direct participation. (Velez v Flores) In Marifosque v People, a cop accepted a bribe in order to recover stolen property of the victim. This was unjust and he was guilty of direct bribery, 2 nd kind. J-Call: There was an obligation to return the property. It was his duty to do so, his refusal to do so is not a crime, but is unjust. A sheriff who receives a bribe to enforce a judgment is guilty under this kind. Whether the unjust act is committed or not affects the penalty (compare with 1 st kind) o In this kind, the mere promise to give a gift is not sufficient. The gift must have been received o by the public officer. The officer must accept the gift, mere agreement not enough. 3rd kind: the object for which the gifts is received or promised is to make the public officer refrain from doing something which it is his official duty to do If by refraining to do an act he commits a crime, it will be under the 1 st kind. o Hence, if by refraining the public officer commits a crime (which would most probably be Art 208, prevaricacion), the PO can be liable for both Art 208 and Art 210, subject to the rules stated by J-Call The difference between prevaricacion and bribery is that in the latter, there is the element of gift giving and acceptance Common stuff: “In connection with performance of duties” o Act ultimately relates or is linked with the public officer’s functions, duties, or position If the act to be done by the public officer was not related to his official functions, what happens? Not bribery. Probably estafa. The giving of the bribe is mere inducement. Sample case: People v Tady-y – accused said he could issue a permit and would only do so if he was paid money, but in reality, it wasn’t part of his powers. He was not liable for direct bribery. Accepting a bribe by a fiscal to file an information is bribery under 210, not under RA 3019 (Anti-Graft and Corrupt Practices Act). The latter will only apply if the public officer is involved in a contract or transaction. Filing of an information is not a contract or transaction. (Soriano v People) What will constitute a gift or a present? Can it be services? o Yes. the gift or present may be in the form of services to be rendered by the bribe giver. A promise to do an act that would have pecuniary gain to the PO is a present. It is enough if a reward or personal advantage would accrue to the PO for the performance of an act, and that the PO values it highly (Commonwealth v Albert) But the codal talks of a fine to be computed using the value of the gift, how do you value if the gift was a service? The value is the usefulness of the gif t. If the gift is incapable of being measured in a monetary sense, the court need not impose a fine. (Commonwealth v Albert) What about acceptance, what will constitute acceptance? (read with indirect bribery) o Mere physical receipt without any other act or sign showing acceptance cannot lead the court to conclude that bribery was committed. There must be a physical act indicating acceptance. There must be clear intention on the part of the public officer to take the gift and consider the same as his own property. (Formilleza, which was actually an indirect bribery case) Is duration material to determining acceptance? No. The duration of the possession is not the controlling element in determining
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receipt or acceptance. (Peligrino v People, where the accused received an envelope with marked money, looked inside it, closed it, and then placed it on a table. His act of receiving lasted only 40 seconds but the SC considered it receipt) Usually, the PO will be guilty of bribery, while the private person will be guilty corruption of o public officers Upon conviction, should he return the gift? o No, it will be forfeited to the government. Can a private individual be liable for bribery? o Yes, in the case of Acejas v People, the accused was a practicing lawyer who had a Japanese client. He told the client that there was a complaint against him and that he had to pay of immigration agents. The immigration agents told the Jap that he had to pay or else they’ll expose his connections with the deadly YAKUZA. The lawyer connived with the public officers and encouraged his client to give his money. The SC held that the private person was liable for bribery for acting in conspiracy with public officers. J-Call: I do NOT agree. The Japanese dude gave his money because he was afraid to be charged. The crime should be robbery/extortion. There was psychological force involved. Bribery must be given and accepted voluntarily. There lies the difference o with robbery/extortion. Bribery (voluntary giving) – robbery/extortion (involuntary, through o threat) So, in the exam, J-Call will be happy if we answer robbery/extortion instead. He even assigned a case with similar facts but which bolstered his o enlightened conclusion – Sazon v Sandiganbayan, which involved illegal lumber and a public official who imposed his will to get some grease money. Is there such a thing as attempted or frustrated robbery? o Cases would seem to point to the conclusion that yes, there is. In these cases, the public officer accepts the money/gift but use such as evidence to charge the giver. The court in these cases came up with attempted bribery. (See US v Te Tong, and People v Ng Pek) It must be noted though that bribery pertains to a public officer, not to o the giver. In these cases, the SC seemed to make a mistake, the crimes should have been attempted corruption of public officers. There are as many crimes of direct bribery as the number of times a bribe is offered and o received/accepted. Under RA 3019, is demand necessary? No. Mere receipt of a gift or any other benefit is enough, even without any express demand for o it. The duration of the possession is not controlling. (Peligrino v People) Can one be charged of RA 3019 and Art 210 simultaneously? o Yes! No double jeopardy. Sec 3 of RA 3019 states that “in addition to acts or omissions of public officers already penalized by existing law…” There is neither identity nor necessary inclusion between RA 3019 and Art 210. (Merencillo v People) J-Call did not discuss RA 3019, but he will ask something very basic on this in relation to the o Merencillo case. •
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Art. 211. Indirect bribery. — The penalties of prision correccional in its medium and maximum periods, and public censure shall be imposed upon any public officer who shall accept gifts offered to him by reason of his office. (As amended by Batas Pambansa Blg. 872, June 10, 1985). •
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Elements: Offender is a public officer o He accepts gifts o Said gifts are offered to him by reason of his office o Mere acceptance of the gift because of his position constitutes indirect bribery. If there’s a favor for the giver, it becomes direct bribery. o
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It’s a unilateral act by the giver in favor of the public officer. But the public officer must still accept it. Acceptance is needed/essential. (Formilleza v Sandiganbayan) There must be a clear intention on the part of the public officer to take the gift so offered and o consider the same as his own property from then on, such as putting away the gift for safekeeping or pocketing the same. Mere physical receipt unaccompanied by any other sign, circumstance or act to show such o acceptance is not sufficient. To hold otherwise will encourage frame-ups. Direct Officer must do or omit the doing or something in consideration of the gift If act agreed upon amounts to a crime, mere agreement consummates the crime
Indirect None Public officer must accept the gift to consummate the crime
Art. 211-A. Qualified bribery – If any public officer is entrusted with law enforcement and he refrains from arresting or prosecuting an offender who has committed a crime punishable by reclusion perpetua and/or death in consideration of any offer, promise, gift or present, he shall suffer the penalty for the offense which was not prosecuted. If it is the public officer who asks or demands such gift or present, he shall suffer the penalty of death. •
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Elements: Offender is a public officer entrusted with law enforcement o Offender refrains from arresting or prosecuting an offender who has committed a crime o punishable by RP and/or death Offender refrains from arresting or prosecuting the offender in consideration of any promise, gift, o or present Relate with Art 208 Using J-Call’s theory on Mendoza, the officer must first be convicted for prevaricacion, prior to o conviction for qualified bribery Will only apply if the crime is based on the RPC, since it uses “reclusion perpetua” EXCEPT if the SPL uses the nomenclature of the RPC o If not RP or death, it’s Art 208 and Art 210 (Par 1). If no consideration, it’s just Art 208.
Art. 212. Corruption of public officials. — The same penalties imposed upon the officer corrupted, except those of disqualification and suspension, shall be imposed upon any person who shall have made the offers or promises or given the gifts or presents as described in the preceding articles. •
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Elements: Offender makes offers or promises or gives gifts or presents to a public officer o That the offers or promises are made or the gifts or presents given to a public officer, under o circumstances that will make the public officer liable for direct or indirect bribery. Must be by reason of public office. Can there be attempted corruption of pubic officers? Yes. When the officer refused to be corrupted. o No frustrated corruption or frustrated bribery because these crimes involve concurrence of the will of the corruptor and the public officer. If the public officer refused to be corrupted, the corruption is merely attempted but there is no o bribery on the part of the officer who refused to be corrupted.
Chapter Three FRAUDS AND ILLEGAL EXACTIONS AND TRANSACTIONS Art. 213. Frauds against the public treasury and similar offenses. — The penalty of prision correccional in its medium period to prision mayor in its minimum period, or a fine ranging from 200 to 10,000 pesos, or both, shall be imposed upon any public officer who: 1. In his official capacity, in dealing with any person with regard to furnishing supplies, the making of contracts, or the adjustment or settlement of accounts relating to public property or funds, shall enter into an
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agreement with any interested party or speculator or make use of any other scheme, to defraud the Government; 2. Being entrusted with the collection of taxes, licenses, fees and other imposts, shall be guilty or any of the following acts or omissions: (a) Demanding, directly, or indirectly, the payment of sums different from or larger than those authorized by law. (b) Failing voluntarily to issue a receipt, as provided by law, for any sum of money collected by him officially. (c) Collecting or receiving, directly or indirectly, by way of payment or otherwise things or objects of a nature different from that provided by law. When the culprit is an officer or employee of the Bureau of Internal Revenue or the Bureau of Customs, the provisions of the Administrative Code shall be applied. •
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Paragraph 1: by dolo Consummated by mere entering into agreement by public officer/employee with interested party o or speculator – no need for damage to be proven Paragraph 2: mere demand of sums different or mere failure to issue receipts Paragraph 2 is mala prohibita (Justice Regalado) o Not required for State to suffer damage o If accountable officer demands amount in excess of what is due to the government, the amount o due to the government is still public property but the excess is private property Victim owed P1k to the government. Public officer asked for P2k. He issued a receipt of P1k. He used the money to watch a movie starring Rene Requiestas. What are the crimes? Art 213 for demanding. Malversation for the P1k. Estafa for the 1k. What if he issued a receipt of P2k? 213 for demanding. Malversation for the P2k. Since the issuance of the receipt over the entire amount will make it public funds. May private individuals be liable under Art 213? Yes. See US v Ponte, where the private individual janitor was held to be liable with the public o officer. • • •
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Art. 214. Other frauds. — In addition to the penalties prescribed in the provisions of Chapter Six, Title Ten, Book Two, of this Code, the penalty of temporary special disqualification in its maximum period to perpetual special disqualification shall be imposed upon any public officer who, taking advantage of his official position, shall commit any of the frauds or deceits enumerated in said provisions. Art. 215. Prohibited transactions. — The penalty of prision correccional in its maximum period or a fine ranging from 200 to 1,000 pesos, or both, shall be imposed upon any appointive public officer who, during his incumbency, shall directly or indirectly become interested in any transaction of exchange or speculation within the territory subject to his jurisdiction. Art. 216. Possession of prohibited interest by a public officer. — The penalty of arresto mayor in its medium period to prision correccional in its minimum period, or a fine ranging from 200 to 1,000 pesos, or both, shall be imposed upon a public officer who directly or indirectly, shall become interested in any contract or business in which it is his official duty to intervene. This provisions is applicable to experts, arbitrators and private accountants who, in like manner, shall take part in any contract or transaction connected with the estate or property in appraisal, distribution or adjudication of which they shall have acted, and to the guardians and executors with respect to the property belonging to their wards or estate. Chapter Four MALVERSATION OF PUBLIC FUNDS OR PROPERTY Art. 217. Malversation of public funds or property; Presumption of malversation. — Any public officer who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same or shall take or misappropriate or shall consent, through abandonment or negligence, shall permit any other person to take such public funds, or property, wholly or partially, or shall otherwise be guilty of the Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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misappropriation or malversation of such funds or property, shall suffer: 1. The penalty of prision correccional in its medium and maximum periods, if the amount involved in the misappropriation or malversation does not exceed two hundred pesos. 2. The penalty of prision mayor in its minimum and medium periods, if the amount involved is more than two hundred pesos but does not exceed six thousand pesos. 3. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum period, if the amount involved is more than six thousand pesos but is less than twelve thousand pesos. 4. The penalty of reclusion temporal, in its medium and maximum periods, if the amount involved is more than twelve thousand pesos but is less than twenty-two thousand pesos. If the amount exceeds the latter, the penalty shall be reclusion temporal in its maximum period to reclusion perpetua. In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special disqualification and a fine equal to the amount of the funds malversed or equal to the total value of the property embezzled. The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal use. (As amended by RA 1060). •
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Elements: Offender is a public officer o He has custody or control of funds or property by reason of the duties of his office o The funds or property involved are public funds or property for which he is accountable o He has: o Appropriated, taken or misappropriated, or Consented to, or through abandonment or negligence, permitted the taking by another person of such funds or property An accountable officer is a public officer who, in the discharge of his office, receives money or property of the government which he is bound to later account for. Simply put, by reason of his office, is accountable for public funds or property. o Any officer of the local government whose duty permits or requires possession/custody of public o funds are accountable officers. (LGC) A mayor who got cash advances but fails to render an account was held liable under Art 218 because the LGC requires accountable officers to render an account. (Frias v P) It is the nature of the duties, not the nomenclature used for, or the relative significance of the o title to, the position which controls in the determination. Hence, a municipal accountant, although not obliged to received public money, can still be held liable for malversation if she is entrusted with public funds and misappropriates the same. (Barriga v SB) Also, a barangay captain can be held liable if he has taken custody of seized logs and negligently allowed them to be used. (Arriola v SB) Art 217 and 220 hold persons who are not accountable officers as such when they are, o nonetheless, accountable for specific public property as when they have a duty to return the same or to dispose thereof as provided by law or by lawful regulation or orders of their superiors. Like policemen with their weapons, computer operators for their laptops, etc Can a non-accountable public officer or private person be convicted for malversation? o Yes, if he conspired with an accountable public officer. What if merely profited from the fruits of the malversed funds? Liable as an accessory for malversation. o Public property or funds, what are they? Public funds owned by national government or any of its agencies, including LGUs, GOCCs, under o the custody of the accountable officers So long as the money in the hands of the disbursing officer, still money of the state. (P v Enfermo, where there was a double issuance of checks but only one disbursement voucher) Under the Admin Code, except as otherwise provided, all money or property officially received by a public officer in any capacity or in any occasion must be accounted for as government funds or property. Funds or property under custodia legis which are attached, seized, or deposited with private o individuals or public authorities under the law or by orders of the courts or executive officers even if such funds belong to private individuals There is a distinction between property in custody and property in custodia legis. •
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Custody of things means to have them in charge of safekeeping and implies temporary control. Property in custodia legis are those which have been lawfully seized and taken by legal process and authority, and placed in the possession of a public officer. (Castillo v Buencillo wherein the SC said that P70k settlement money which was voluntarily deposited to the Clerk of Court was not custodia legis and never became public funds) Money and property is under custodia legis if taken through official o judicial processes. Hence, a sheriff can be held liable for malversation for property taken o under his official duties. Includes fiduciary funds of the courts (like bail bonds, funds from extrajudicial foreclosure even if destined for a private person since it is momentarily entrusted to the one conducting public auction) Funds and properties of public corporations or special instrumentalities like o the PCSO the PNRC (Baluyot v Holganza) However, money loaned to private individuals by GOCCs are private loans and are therefore NOT public property or funds (Ocampo v P, wherein the governor was charged for malversation thru negligence for issuing out loans which were misappropriated by his subordinate. The governor was acquitted on two grounds – first, not public funds since loan to private persons and two, he set proper safeguards in releasing the loans) What about donations made by private individuals to government, are they public o funds/property? Yes, whether domestic or foreign source, when duly accepted by government (because these are remitted to the national treasury and for which a general fund is provided for). Even the proceeds are public funds or property. (Manhit v OMB) Bottomline: property or funds impressed with public attributes are public funds or property o (Salamera v SB) What about drugs? o See Sec 27 of the DDA, and comments earlier. You can only charge under DDA, not under Art 217. To appropriate: to use public funds or property for himself or convert the same for his personal advantage Includes any attempt to dispose of public funds or property without any legal right o Hence, when an old clerk deposited a cash bond after only 5 months and that there was no proof that he appropriated such amount, he was not guilty of malversation. There was mere delay in the deposit and no misappropriation. (Aquino v Olivares, but the clerk was held administratively liable) But when a court aide brought jueteng money home for safekeeping but used the money for a family emergency, this was tantamount to malversation. (San Jose v Camurongan, actually an admin case, Court actually called it theft, but it’s more like malversation) To take: concept of taking in malversation is the same concept as taking in theft or robbery Once a public officer has possession of public property, however brief it may be, and disposes o such, he is liable for malversation. The taking of funds is completed and is consummated even if the severance of the funds from o the possession was only for an instant. (Pondevida v SB, where the municipal treasurer issued checks involving public funds, to the 3rd parties. Even if he received the money a day after the checks were encashed, malversation had already been consummated.) Restitution after the consummation of the crimes is not a ground for acquittal. What about using public money for the vale system, ie public officer using public funds to give cash advances to fellow employees? The grant of loans through the vale system is a clear case of an accountable officer consenting to o the improper or unauthorized use of public funds by other persons. To tolerate such is to give a license to every disbursing officer to conduct a lending operation with the use of public funds. (Chan v SB) Compare this to the Rueda v SB case wherein the cash advances were made before municipal o •
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treasurer Rueda received the money. Rueda, instead, received the vales (receipts) which evidenced the advances. The Court acquitted him on two grounds: first, the presumption was rebutted because the accounts were fully restituted before the start of the preliminary investigation, and second, Rueda did not actually receive the money, but the chits and vales. The money did not reach his hands, and were therefore not part of his cash accountability. Take note that whether the malversation was done by dolo or culpa, the penalty is the same. No such thing as reckless imprudence resulting to malversation. o Culpa as a mode already part of malversation. Different from 365 which punishes the mental state. Here, what is punished is malversation itself. The dolo or culpa present in the offense is only a modality in the perpetration of the felony. o Even if the mode charged differs from the mode proved, the same offense of malversation is o involved and conviction thereof is proper. An accused charged with willful malversation can be validly convicted of the same offense of malversation through negligence where the evidence sustains the latter mode of perpetrating the offense. Restitution of the amount does not affect criminal liability. At best, it merely mitigates. o Only the civil liability is erased. But it seems, that restitution within a reasonable time (Quizo) or before the preliminary o investigation begins (like in Rueda) will dispute the presumption of malversation. All that is necessary to prove is: Defendant received in his possession public funds o He could not account for them and did not have them in his possession, and o He could not give reasonable excuse for the disappearance of the same. o An accountable officer may be convicted even if there is no direct evidence of misappropriation and the only evidence is that there is shortage of his accounts which he has not been able to explain satisfactorily. Condition precedent for any taking, etc to amount to malversation: evidence of shortage Hence, if no evidence of shortage, no malversation. (Enriquez v Cruz) o Demand is not an element of malversation. It merely raises a prima facie presumption that missing funds have been put to personal use. o Even without a demand, malversation can still be committed when enough facts are present to o prove it. The presumption of malversation arises when: The audit is complete, accurate and reliable o The amount of accountability has b een duly established (there is shortage) o Demand is made on the accountable officer, and o The funds or property is not duly forthcoming and he cannot explain the reason therefore. o Presumption is merely prima facie. Hence if the accused adduces evidence showing that he has not put said funds or property to o personal use, then that presumption is at an end and the prima facie case destroyed. (Quizo v SB, wherein the accused was able to reimburse the full amount within a reasonable time from demand) If one misappropriates different types of property: guns, money, motorcycles, etc, how many crimes are committed? If he did everything in one occasion, just one crime. o If multiple occasions, as many crimes of malversation as the number of times he o misappropriated. Abuse of confidence and taking advantage of public position are inherent in the crime of malversation. Problems: There are two officers: one accountable, one not. They used public funds to go to GER and drink o beer. Solve. Accountable officer: malversation Non-accountable officer: theft (unless he conspired with the accountable officer) Clerk of court had custody of 100k consigned in court. The sheriff stole it when the clerk wnet o •
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out for lunch. Is the sheriff guilty of malversation? No. He is not the accountable off icer. The sheriff is liable for theft. If the clerk was negligent, he is liable for malversation through negligence. Arias case: no malversation because loss (?) w as because of the negotiations, so no malversation. Moreover, high-ranking officers can not be expected to go through every receipt or paper that they have to sign for. It’s just too much. (see Crim 1 notes on this) • •
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Malversation Estafa Qualified Theft Can be committed by public officers over public funds, except that in malversation, it cannot be committed against private property except for private property in custodia legis. Offender must be Must NOT be Must not be accountable over the accountable accountable funds Taking of public funds Taking of public funds If the offender who is malversation if the is estafa if he has has mere physical or public officer is acquired juridical material possession accountable therefor possession of it took the property with possession and took it abuse of confidence with abuse of confidence or deceit Art. 218. Failure of accountable officer to render accounts. — Any public officer, whether in the service or separated therefrom by resignation or any other cause, who is required by law or regulation to render account to the Insular Auditor, or to a provincial auditor and who fails to do so for a period of two months after such accounts should be rendered, shall be punished by prision correccional in its minimum period, or by a fine ranging from 200 to 6,000 pesos, or both. •
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Elements: That the offender is a public officer, whether in the service or separated therefrom o That he must be an accountable officer for public funds or property o That he is required by law or regulation to render accounts to the COA, or to a provincial auditor o That he fails to do so for a period of two months after such accounts should be rendered o Used in Frias v SB, there the law which required Frias to account was the LGC and a COA circular In Campomames v P, there was no law which required him to account. Hence, he was acquitted. (Case involved disbursement of funds by the Phil Sports Commission to an International Chess Federation).
Art. 219. Failure of a responsible public officer to render accounts before leaving the country. — Any public officer who unlawfully leaves or attempts to leave the Philippine Islands without securing a certificate from the Insular Auditor showing that his accounts have been finally settled, shall be punished by arresto mayor, or a fine ranging from 200 to 1,000 pesos or both. Art. 220. Illegal use of public funds or property. — Any public officer who shall apply any public fund or property under his administration to any public use other than for which such fund or property were appropriated by law or ordinance shall suffer the penalty of prision correccional in its minimum period or a fine ranging from one-half to the total of the sum misapplied, if by reason of such misapplication, any damages or embarrassment shall have resulted to the public service. In either case, the offender shall also suffer the penalty of temporary special disqualification. If no damage or embarrassment to the public service has resulted, the penalty shall be a fine from 5 to 50 per cent of the sum misapplied. • •
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More popularly known as technical malversation Elements: That the offender is a public officer o That there is public fund or property under his administration o That such public fund or property has been appropriated by law or ordinance o That he applies the same to a public use other than that for which such fund or property has o been appropriated by law or ordinance As compared to Art 217, the offender here does not use the money for himself Gravamen: use or application of funds/property for some other purpose than that provided by law or ordinance
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Separate and independent crime from Art 217 malversation What if the funds were appropriated by the provincial board, but the offender uses it for a purpose other than that provided by board? J-Call: Should be included under Art 220, because “ordinance” can include appropriations even o by boards Does the presumption of criminal intent automatically apply to technical malversation? No because disbursement of public funds for public use is per se not an unlawful act. (Abdulla v o P, in this case, accused used public money to pay for employee benefits. She was acquitted because she used funds from savings and not from appropriations. Court also said that orders by the DBM are not “laws or ordinances” as contemplated by Art 220)
Art. 221. Failure to make delivery of public funds or property . — Any public officer under obligation to make payment from Government funds in his possession, who shall fail to make such payment, shall be punished by arresto mayor and a fine from 5 to 25 per cent of the sum which he failed to pay. This provision shall apply to any public officer who, being ordered by competent authority to deliver any property in his custody or under his administration, shall refuse to make such delivery. The fine shall be graduated in such case by the value of the thing, provided that it shall not less than 50 pesos.
Art. 222. Officers included in the preceding provisions. — The provisions of this chapter shall apply to private individuals who in any capacity whatever, have charge of any insular, provincial or municipal funds, revenues, or property and to any administrator or depository of funds or property attached, seized or deposited by public authority, even if such property belongs to a private individual. •
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Malversation can be committed by a private person in the following cases: Conspiracy with a public officer to commit malversation o As an accomplice or accessory o When he was constituted a custodian in whatever capacity even without a public officer involved o and he misappropriated the same Where the officer was constituted a custodian of the fund or property subject of seizure or attachment, such becomes custodia legis and impresses the fund/property with the character of public property, hence the officer can be liable for malversation, not qualified theft. Does the private individual become a public officer? No. Nowhere is it expressed or implied that a private individual falling under Art 222 is to be deemed a public officer. (Azarcon v Batausa)
Chapter Five INFIDELITY OF PUBLIC OFFICERS Section One. — Infidelity in the custody of prisoners Art. 223. Conniving with or consenting to evasion. — Any public officer who shall consent to the escape of a prisoner in his custody or charge, shall be punished: 1. By prision correccional in its medium and maximum periods and temporary special disqualification in its maximum period to perpetual special disqualification, if the fugitive shall have been sentenced by final judgment to any penalty. 2. By prision correccional in its minimum period and temporary special disqualification, in case the fugitive shall not have been finally convicted but only held as a detention prisoner for any crime or violation of law or municipal ordinance. Art. 224. Evasion through negligence. — If the evasion of the prisoner shall have taken place through the negligence of the officer charged with the conveyance or custody of the escaping prisoner, said officer shall suffer the penalties of arresto mayor in its maximum period to prision correccional in its minimum period and temporary special disqualification. •
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Relate with 156 and 157. 156: delivery – by a private person o 223-225: infidelity – by an officer-custodian o Here, public officer is liable for the escape of a prisoner, it doesn’t matter if detention prisoner or convict. Infidelity in the custody of prisoners can be committed via dolo (223) or culpa (224) Infidelity via dolo elements: That the offender is a public officer o
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That he had in his custody or charge, a prisoner, either detention prisoner or prisoner by final judgment That such prisoner escaped from his custody o That he was in connivance with the prisoner in the latter’s escape o Infidelity via culpa That the offender is a public officer o That he is charged with the conveyance or custody of a prisoner, either detention prisoner or o prisoner by final judgment That such prisoner escapes thru his negligence o Negligence here is one which approximates malice or deliberate non-performance of duty. Laxity or negligence amounting to deliberate non-performance of duty example: allowing prisoner to have lunch with his family when the prisoner was supposed to be in jail No need for connivance in infidelity via culpa. But what is the liability of the prisoner who escapes? Convict by final judgment – 157 o Detention prisoner – none. o Can infidelity be committed by private persons? Yes, see next article. o o
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Art. 225. Escape of prisoner under the custody of a person not a public officer. — Any private person to whom the conveyance or custody or a prisoner or person under arrest shall have been confided, who shall commit any of the offenses mentioned in the two preceding articles, shall suffer the penalty next lower in degree than that prescribed for the public officer. •
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Elements Offender is a private person o The conveyance or custody of a prisoner or person under arrest is confided to him o The prisoner or person under arrest escapes o The offender consents to the escape of the prisoner or person under arrest, or that the escape o takes place thru his negligence Hence, can be committed through dolo or culpa If the escape was with consideration, bribery is committed in addition because he was performing a public function, hence is, at that instance, deemed to be a public officer. (Boado said this, not sure if it’s jurisprudence though) It is not “delivering” under 156 because at that time, he was performing a public function.
Section Two. — Infidelity in the custody of document Art. 226. Removal, concealment or destruction of documents. — Any public officer who shall remove, destroy or conceal documents or papers officially entrusted to him, shall suffer: 1. The penalty of prision mayor and a fine not exceeding 1,000 pesos, whenever serious damage shall have been caused thereby to a third party or to the public interest. 2. The penalty of prision correccional in its minimum and medium period and a fine not exceeding 1,000 pesos, whenever the damage to a third party or to the public interest shall not have been serious. In either case, the additional penalty of temporary special disqualification in its maximum period to perpetual disqualification shall be imposed. •
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Elements: Offender be a public officer o He abstracts, destroys or conceals documents or papers o Said documents or papers should have been entrusted to such public officer by means of his o office Damage, whether serious or not, to a third party or to the public interest should have been o caused Acts punished: Removing o Concealing o Destroying o
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Art. 227. Officer breaking seal. — Any public officer charged with the custody of papers or property sealed by proper authority, who shall break the seals or permit them to be broken, shall suffer the penalties of prision correccional in its minimum and medium periods, temporary special disqualification and a fine not exceeding 2,000 pesos. Art. 228. Opening of closed documents. — Any public officer not included in the provisions of the next preceding article who, without proper authority, shall open or shall permit to be opened any closed papers, documents or objects entrusted to his custody, shall suffer the penalties or arresto mayor, temporary special disqualification and a fine of not exceeding 2,000 pesos. •
Breaking the seal (227) and opening without authority closed papers entrusted to a public officer’s custody (228) are also forms of infidelity in the custody of documents Infidelity Mail matter is entrusted to the official custodian, and it’s deemed a document
Crime against public interest
Qualified theft Mail matter not entrusted; but in the course of the performance of the duty of the public employee (he handles mail and he misappropriates the same); mail matter considered property Can also be committed by a private person who takes mail matter, since it’s considered property
Section Three. — Revelation of secrets Art. 229. Revelation of secrets by an officer. — Any public officer who shall reveal any secret known to him by reason of his official capacity, or shall wrongfully deliver papers or copies of papers of which he may have charge and which should not be published, shall suffer the penalties of prision correccional in its medium and maximum periods, perpetual special disqualification and a fine not exceeding 2,000 pesos if the revelation of such secrets or the delivery of such papers shall have caused serious damage to the public interest; otherwise, the penalties of prision correccional in its minimum period, temporary special disqualification and a fine not exceeding 50 pesos shall be imposed. Art. 230. Public officer revealing secrets of private individual. — Any public officer to whom the secrets of any private individual shall become known by reason of his office who shall reveal such secrets, shall suffer the penalties of arresto mayor and a fine not exceeding 1,000 pesos. Chapter Six OTHER OFFENSES OR IRREGULARITIES BY PUBLIC OFFICERS Art. 231. Open disobedience. — Any judicial or executive officer who shall openly refuse to execute the judgment, decision or order of any superior authority made within the scope of the jurisdiction of the latter and issued with all the legal formalities, shall suffer the penalties of arresto mayor in its medium period to prision correccional in its minimum period, temporary special disqualification in its maximum period and a fine not exceeding 1,000 pesos. •
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Elements: Offender is a judicial or executive officer o There is a judgment, decision or order of a superior authority o Such judgment, decision or order was made within the scope of the jurisdiction of the superior o authority and issued with all legal formalities Offender without any legal justification openly refuses to execute the said judgment, decision or o order, which he is duty bound to obey Openly refusing: promptly and unreservedly refusing to execute judgment, decision or order Clear and manifest refusal o There must be criminal intent to defy superior authority Disobedience to void or invalid decision is not a crime.
Art. 232. Disobedience to order of superior officers, when said order was suspended by inferior officer. — Any public officer who, having for any reason suspended the execution of the orders of his superiors, shall disobey such superiors after the latter have disapproved the suspension, shall suffer the penalties of prision correccional in its minimum and medium periods and perpetual special disqualification. Art. 233. Refusal of assistance. — The penalties of arresto mayor in its medium period to prision correccional Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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in its minimum period, perpetual special disqualification and a fine not exceeding 1,000 pesos, shall be imposed upon a public officer who, upon demand from competent authority, shall fail to lend his cooperation towards the administration of justice or other public service, if such failure shall result in serious damage to the public interest, or to a third party; otherwise, arresto mayor in its medium and maximum periods and a fine not exceeding 500 pesos shall be imposed. Art. 234. Refusal to discharge elective office. — The penalty of arresto mayor or a fine not exceeding 1,000 pesos, or both, shall be imposed upon any person who, having been elected by popular election to a public office, shall refuse without legal motive to be sworn in or to discharge the duties of said office.
Art. 235. Maltreatment of prisoners. — The penalty of arresto mayor in its medium period to prision correccional in its minimum period, in addition to his liability for the physical injuries or damage caused, shall be imposed upon any public officer or employee who shall overdo himself in the correction or handling of a prisoner or detention prisoner under his charge, by the imposition of punishment not authorized by the regulations, or by inflicting such punishment in a cruel and humiliating manner. If the purpose of the maltreatment is to extort a confession, or to obtain some information from the prisoner, the offender shall be punished by prision correccional in its minimum period, temporary special disqualification and a fine not exceeding 500 pesos, in addition to his liability for the physical injuries or damage caused. •
Elements: That the offender is a public officer or employee o That he has under his charge a prisoner or detention prisoner o That he maltreats such prisoner in either of the following manner: o By overdoing himself in the correction or handling of a prisoner or detention prisoner under his charge either – by the imposition of punishments not authorized by the regulations, or by inflicting such punishments (those authorized) in a cruel and humiliating manner By maltreating such prisoner to extort a confession or to obtain some information from the prisoner (penalty is higher) Who are the public officers liable here? Those with custody or in charge of the prisoner o Custody must be actual and not just by fiction of law o The victim here can be a prisoner, a detention prisoner, or a convict If he inflicts physical injuries without intent to kill, or he kills the prisoner, he may be guilty of maltreatment of prisoners and either PI or homicide/murder, as the case may be Two crimes are not to be complexed because the law specified that the penalty for o maltreatement shall be “in addition to his liability for the physical injuries or damage caused.” Read with RA 9745 (Anti-Torture Act) Remember, torture under RA 9745 is a separate and independent crime as that of the RPC. So o you can be charged for both RA 9745 and Art 235. 60 • •
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Section Two. — Anticipation, prolongation and abandonment of the duties and powers of public office. Art. 236. Anticipation of duties of a public office. — Any person who shall assume the performance of the duties and powers of any public officer or employment without first being sworn in or having given the bond required by law, shall be suspended from such office or employment until he shall have complied with the respective formalities and shall be fined from 200 to 500 pesos. Art. 237. Prolonging performance of duties and powers. — Any public officer shall continue to exercise the duties and powers of his office, employment or commission, beyond the period provided by law, regulation or special provisions applicable to the case, shall suffer the penalties of prision correccional in its minimum period, special temporary disqualification in its minimum period and a fine not exceeding 500 pesos. Art. 238. Abandonment of office or position. — Any public officer who, before the acceptance of his 60
Section 15. Torture as a Separate and Independent Crime . - Torture as a crime shall not absorb or shall not be absorbed by any other crime or felony committed as a consequence, or as a means in the conduct or commission thereof. In which case, torture shall be treated as a separate and independent criminal act whose penalties shall be imposable without prejudice to any other criminal liability provided for by domestic and international laws. Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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resignation, shall abandon his office to the detriment of the public service shall suffer the penalty of arresto mayor. If such office shall have been abandoned in order to evade the discharge of the duties of preventing, prosecuting or punishing any of the crime falling within Title One, and Chapter One of Title Three of Book Two of this Code, the offender shall be punished by prision correccional in its minimum and medium periods, and by arresto mayor if the purpose of such abandonment is to evade the duty of preventing, prosecuting or punishing any other crime. • •
A judge who continues to exercise functions of an abolished position in good faith is a de facto officer Abandonment must be total and under such circumstances indicating absolute relinquishment.
Section Three. — Usurpation of powers and unlawful appointments Art. 239. Usurpation of legislative powers. — The penalties of prision correccional in its minimum period, temporary special disqualification and a fine not exceeding 1,000 pesos, shall be imposed upon any public officer who shall encroach upon the powers of the legislative branch of the Government, either by making general rules or regulations beyond the scope of his authority, or by attempting to repeal a law or suspending the execution thereof. Art. 240. Usurpation of executive functions. — Any judge who shall assume any power pertaining to the executive authorities, or shall obstruct the latter in the lawful exercise of their powers, shall suffer the penalty of arresto mayor in its medium period to prision correccional in its minimum period. Art. 241. Usurpation of judicial functions. — The penalty of arresto mayor in its medium period to prision correccional in its minimum period and shall be imposed upon any officer of the executive branch of the Government who shall assume judicial powers or shall obstruct the execution of any order or decision rendered by any judge within its jurisdiction. •
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These three articles cover the usurpation of government department fo the powers of another It does not cover the usurpation within the same department. Different provisions cover such o usurpation. As can be seen, usurpation under 239-241 can NOT be committed by a legislative officer. In such cases, Art 171 (usurpation of authority/official functions) will apply. o
Art. 242. Disobeying request for disqualification. — Any public officer who, before the question of jurisdiction is decided, shall continue any proceeding after having been lawfully required to refrain from so doing, shall be punished by arresto mayor and a fine not exceeding 500 pesos. Art. 243. Orders or requests by executive officers to any judicial authority . — Any executive officer who shall address any order or suggestion to any judicial authority with respect to any case or business coming within the exclusive jurisdiction of the courts of justice shall suffer the penalty of arresto mayor and a fine not exceeding 500 pesos. Art. 244. Unlawful appointments. — Any public officer who shall knowingly nominate or appoint to any public office any person lacking the legal qualifications therefor, shall suffer the penalty of arresto mayor and a fine not exceeding 1,000 pesos. •
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Elements: Offender is a public officer o He nominates or appoints a person to a public office o Such person lacks the legal qualifications therefore o The offender knows that his nominee or appointee lacks the qualifications at the time he made o the nomination or appointment Offender MUST be aware that the person nominated or appointed does not have the legal qualifications Good faith is a defense Recommending is not a crime under 244, only nominating is.
Section Four. — Abuses against chastity Art. 245. Abuses against chastity; Penalties. — The penalties of prision correccional in its medium and maximum periods and temporary special disqualification shall be imposed: 1. Upon any public officer who shall solicit or make immoral or indecent advances to a woman interested in matters pending before such officer for decision, or with respect to which he is required to submit a report to or consult with a superior officer; 2. Any warden or other public officer directly charged with the care and custody of prisoners or persons under Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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arrest who shall solicit or make immoral or indecent advances to a woman under his custody. If the person solicited be the wife, daughter, sister of relative within the same degree by affinity of any person in the custody of such warden or officer, the penalties shall be prision correccional in its minimum and medium periods and temporary special disqualification. • •
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Offended here is a woman. Three ways that crime is committed: A public officer solicits or makes immoral or indecent advances to a woman interested in o manners pending before such officer for a decision, or with respect to which he is required to submit a report to or consult with a superior officer. Here, not required that the solicitation be accepted. Mere soliciting consummates the crime. The solicitation is the persistent and threatening kind, implying that he decision will be adverse if the woman does not comply A warden or other public officer directly charged with the care and custody of prisoners or o persons under arrest who shall solicit or make immoral or indecent advances to a woman under his custody. Won’t apply if the feeling is mutual. (MU doctrine) The jail warden makes immoral advances or solicitation to the wife, daughter, sister or relative o within the same degree of affinity of any person in the custody of such warden or officer. Prisoner here can be male (if the person object of solicitation is the wife) but the solicitation is on his female relatives. Note that the mother of the prisoner is not included. Offended party in this case can be male. If a crime against chastity or person (like rape) is committed, then Art 245 is absorbed. Public authority can be appreciated as an AC.
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Crimes which involve killing and physical injuries are covered by crimes against persons. The difference lies with respect to intent to kill. (Killing has intent to kill, PI does not) o Intent to kill is immediately and conclusively presumed when death occurs for it has been held o that death is the best evidence of intent to kill. But for the presumption to apply, there must be an unlawful act. Intent to kill cannot be manifested by oral threats ( papatayin kita, gagoh!). It must be o manifested by overt acts. When consummated, intent to kill is a general criminal intent which is presumed and hence need not be established. When victim does not die, intent to kill becomes a specific criminal intent which must be o established beyond a reasonable doubt. If not, physical injuries. o When death supervenes, intent to kill is presumed form the voluntary commission of an unlawful act.
Chapter One DESTRUCTION OF LIFE Section One. — Parricide, murder, homicide Art. 246. Parricide. — Any person who shall kill his father, mother, or child, whether legitimate or illegitimate, or any of his ascendants, or descendants, or his spouse, shall be guilty of parricide and shall be punished by the penalty of reclusion perpetua to death. •
Elements: Person is killed o The deceased is killed by the accused o The deceased is the: o Father or mother, or Child, whether legitimate or illegitimate, or
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A legitimate ascendant or descendant, or Lawful spouse of the accused Legitimacy does not matter except for ascendants or descendants (other than the parents or the child) Relationship is an essential element of the crime. It’s not an alternative circumstance. The relationship must be characterized by the following: o Legitimate Except for parent/child where relationship may either be legit or illegit Incestuous, sacrilegious relationships included In the direct line Either ascending or descending No parricide in the killing of brothers and sisters, uncles/aunts, nieces/nephews since those are collateral By blood Except for spouses No parricide in the killing of: adopter by adopted or vice versa o step-father and stepchild o Important: it is NOT necessary that the offender is aware of the relationship. o Because relationship is essential, it will only apply to the accused who has a tie with the victim. o The mother of Harry and her brother conspired to kill Harry. They killed him in a treacherous manner. Mother: parricide Her brother: murder For spouse, the spouse must be the lawful spouse. Best evidence: marriage certificate o But without marriage certificate, oral evidence can be considered. o If accused admitted himself, it’s an admission against penal interest. o If the child is less than 3 years old when killed, crime is infanticide. Penalties are the same though. o Can be committed by dolo or culpa. Culpa: reckless imprudence resulting in parricide o Can be complexed with unintentional abortion. (P v Paycana, Jr, wherein the husband stabbed the wife who was pregnant at that time. Court said that Art 48 will apply – single act resulting into two crimes. JCall likes this case a lot.) Can also be complexed with murder. (P v Matuldo, wherein the accused threw a grenade to a group of people, killing both his father and other people) No such crime as robbery with parricide. Always robbery with homicide, since homicide is used in the generic sense. o If the victim did not die, either attempted or frustrated. If no intent to kill, physical injuries (serious, or less serious, as the case may be) Relate to Art 263 (last paragraph) wherein relationship is considered a special aggravating o circumstance to P.I.
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Parricide (for babies) Basis: relationship Committed only by the relatives enumerated Conspiracy cannot be applied because relationship is an essential element To conceal dishonor of the mother is not mitigating
Infanticide Basis: age of the baby Can be committed even by strangers Conspiracy applicable To conceal mothers (and maternal grandparents’) dishonor is mitigating
Art. 247. 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 injury, shall suffer the penalty of destierro. Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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If he shall inflict upon them physical injuries of any other kind, he shall be exempt from punishment. These rules shall be applicable, under the same circumstances, to parents with respect to their daughters under eighteen years of age, and their seducer, while the daughters are living with their parents. Any person who shall promote or facilitate the prostitution of his wife or daughter, or shall otherwise have consented to the infidelity of the other spouse shall not be entitled to the benefits of this article. • • • •
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Defines a felony but there is absolutory/exempting circumstance. No civil liability as well. If in arraignment, the accused admits, then he has the burden to prove that 247 will apply. Requisites: A legally married person surprises his spouse in the act of committing sexual intercourse with o another person He kills any or both of them in the act or immediately thereafter o He has not promoted or facilitated the prostitution of this wife or that he has no consented to the o infidelity of the other spouse Elements, according to J-Call: Actual and consensual sex, and o Injuries committed in flagrante delicto or immediately thereafter o Two time periods to be considered: Time of surprising the paramours which must be in the act itself of sexual intercourse o Surprising must be at the moment the sexual congress is taking place If it is only about to take place or has already taken place, no benefit can be availed Hence, when the husband saw his wife and her paramour starting to put on their underwear behind some banana leave, and then killed them, Art 247 will not apply. (P v Alano) Justice Laurel dissents: Um, logic please. Ano pa ba ginagawa nila? o Naglalaba? Time of the killing or infliction of the physical injuries which must also be in the act or o immediately thereafter Killing after discovery is ok, but it must be done immediately thereafter. How long is “immediately thereafter?” Some interval of time, case-to-case provided the killing is the PROXIMATE RESULT of the outrage overwhelming the accused after chancing upon his spouse in the basest act of infidelity (that bitch!). The killing must be the direct byproduct of the outrage of the accused spouse. (P v Abarca) The accused and the victim spouse must be VALIDLY married. Sexual intercourse between the spouse and the paramo ur must be consensual. Even if not consensual, Art 247 CAN still apply if the accused acted due to mistake of fact. o Sexual intercourse, what does it cover? Covers only cases where the penis and the vagina meet and become best friends. o Does not apply to cases covered by sexual assault (like sodomy, fingering, oral sex) o J-Call believes that RA 8353 did not amend Art 247. Destierro is not a penalty but for the protection of the husband. Relate with Art 11. Offended spouse can invoke Art 11 if he wants. o Relatives can not invoke Art 247 because it only applies to the offended spouse. o Some cases: Husband stabbed paramour, who struck back. The wife tried to save the paramour. So husband o killed wife as well. Art 247 applies for both attacks. (P v Oyanib, although J-Call says that Art 247 shouldn’t apply to attack on the wife because the reason the husband attacked her was because she was protecting the paramour) Husband caught wife, told her to leave. Wife went inside to get her jewelry. Husband told her, o “umalis ka! Winasak mo na nga ang puso ko, kukunin mo pa yung mga alahas na binigay ko sa iyo. Umalis ka na, parang awa mo na. Gago!” The wife tried to stab the husband, so the husband stabbed her. Art 247 does NOT apply because he was only protecting himself. Art 11 applies. As can be seen, Art 11 can be used by the offended spouse. But what should you use? (Exam question) Go for Art 11 since there’s no penalty. If Art 247, you’ll get banished pa. o Same rules will apply if the parents catch their daughter having sex with someone else, provided that: •
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Daughter is below 18, and Living with their parents. o Doesn’t apply to parents catching their teenage sons having sex. Take note that Art 247 can’t apply if the accused consented to such sex or pimped his wife or daughter out. Relate to RA 7610, Sec 5. 61 What if while enraged the offended spouse starts shooting and hits some random people in the crossfire? Liable to those who were hit for Art 365 (negligence resulting to less serious physical injuries) o (see P v Abarca) One committing an offense is liable for all the consequences of his act, but inflicting death under o exceptional circumstances is NOT murder. o
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Art. 248. Murder . — Any person who, not falling within the provisions of Article 246 shall kill another, shall be guilty of murder and shall be punished by reclusion temporal in its maximum period to death, if committed with any of the following attendant circumstances: 1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense or of means or persons to insure or afford impunity. 2. In consideration of a price, reward, or promise. 3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a street car or locomotive, fall of an airship, by means of motor vehicles, or with the use of any other means involving great waste and ruin. 4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic or other public calamity. 5. With evident premeditation. 6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse. •
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Murder: homicide plus one qualifying circumstance under Art 248. Killing should be homicide. If parricide or infanticide, then those articles will apply. o The qualifying circumstances are each an element of murder, depending on the case. o Only one circumstance will suffice to qualify homicide to murder. o The second circumstance will just be a generic AC . Take note that homicide can be upgraded to murder even after the killing – like when the o accused outraged or scoffed at the corpse. Dwelling and nocturnity are not qualifying circumstances. o However, nocturnity can be a form of treachery. But in that case, treachery will be the qualifying circumstance, not nocturnity. Torture and cruelty are different. (?) Cruelty is the deliberate and inhumane augmenting of the suffering of the victim. o Chopping of one’s head, penis Outrage: to subject to gross insult the victim or the corpse Scoff: to show contempt by derisive acts and language Killing the victim and throwing the corpse into the river o Is the use of poison treachery? If use with intent to kill. o See the case of P v Galura (CA) wherein the accused use poison to arouse the sexual tendency o
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Section 5. Child Prostitution and Other Sexual Abuse. – Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse. The penalty of reclusion temporal i n its medium period to reclusion perpetua shall be imposed upon the following: (a) Those who engage in or promote, facilitate or induce child prostitution which include, but are not limited to, the following: (1) Acting as a procurer of a child prostitute; (2) Inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means; (3) Taking advantage of influence or relationship to procure a child as prostitute; (4) Threatening or using violence towards a child to engage him as a prostitute; or (5) Giving monetary consideration goods or other pecuniary benefit to a child with intent to engage such child in prostitution. (b) Those who commit the act of sexual intercourse of lascivious conduct with a child exploited in prostitution or subject to other sexual abuse; Provided, That when the victims is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; and (c) Those who derive profit or advantage therefrom, whether as manager or owner of the establishment where the prostitution takes place, or of the sauna, disco, bar, resort, place of entertainment or establishment serving as a cover or which engages in prostitution in addition to the activity for which the license has been issued to said establishment.
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of his girlfriend. She eventually died because of the poison. CA held not murder since intent was to arouse sex, not to kill. CA just considered it as homicide. The use of explosives in murder is a qualifying circumstance because of the amendments made by RA 9516 on the old firearms/explosives law. P v Cumadre did not involve RA 9516. o Remember the lessons of Malngan. If intent to burn the building and death is a result, just arson. Resulting homicide is absorbed. o If intent to kill and fire resorted to as means to kill, murder only. o If intent to kill (and he has done so) then fire used to cover up the killing, then two distinct o crimes, homicide/murder and arson. No such thing as complex crime of arson with multiple homicide. o
Art. 249. Homicide. — Any person who, not falling within the provisions of Article 246, shall kill another without the attendance of any of the circumstances enumerated in the next preceding article, shall be deemed guilty of homicide and be punished by reclusion temporal. •
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Homicide is the killing of any person, which does not constitute parricide, murder or infanticide and is not attended by any justifying circumstance. No such thing as frustrated/attempted homicide through reckless imprudence because intent is inherent in frustrated or attempted homicide. What crime then? Reckless imprudence resulting to physical injuries. o Remember P v Pugay (two guys setting a mental retardate on fire) where one can be guilty of homicide by culpa and one by dolo on only one victim. Is euthanasia homicide or murder? Murder. Victim is so helpless and is unknown to him, it’s treacherous, so it’s murder. It’s not assistance to suicide either since victim does not want to die. Sec 10, RA 7610: if the victim of the violence is a child under 12, the penalty is RP. 62 Under the VAWC, Sec 6: if there is intent to kill but the victim does not die, the RPC will apply. VAWC won’t apply because it says so itself. 63
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For purposes of this Act, the penalty for the commission of acts punishable under Articles 248, 249, 262, paragraph 2, and 263, paragraph 1 of Act No. 3815, as amended, the Revised Penal Code, for the crimes of murder, homicide, other intentional mutila tion, and serious physical injuries, respectively, shall be reclusion perpetua when the victim is under twelve (12) years of age. The penalty for the commission of acts punishable under Article 337, 339, 340 and 341 of Act No. 3815, as ame nded, the Revised Penal Code, for the crimes of qualified seduction, acts of la sciviousness with the consent of the offended party, corruption of minors, and white slave trade, respectively, shall be one (1) degree higher than that imposed by law when the victim is under twelve (12) years age. 63 SECTION 5. Acts of Violence Against Women and Their Children.- The crime of violence against women and their children is committed through any of the following acts: (a) Causing physical harm to the woman or her child; (b) Threatening to cause the woman or her child physical harm; (c) Attempting to cause the woman or her child physical harm; (d) Placing the woman or her child in fear of imminent physical harm; (e) Attempting to compel or compelling the woman or her child to engage in conduct which the woman or her child has the right to desist from or desist from conduct which the woman or her child has the right to engage in, or attempting to restrict or restricting the woman's or her child's freedom of movement or conduct by force or threat of force, physical or other harm or t hreat of physical or other harm, or intimidation directed against the woman or child. This shall include, but not limited to, the following acts committed with the purpose or effect of controlling or restricting the woman's or her child's movement or conduct: (1) Threatening to deprive or actually depriving the woman or her child of custody to her/his family; (2) Depriving or threatening to deprive the woman or her children of financial support legally due her or her family, or deliberately providing the woman's children insufficient financial support; (3) Depriving or threatening to deprive the woman or her child of a legal right; (4) Preventing the woman in engaging in a ny legitimate profession, occupation, business or activity or controlling the victim's own mon4ey or properties, or solely controlling the conjugal or common money, or properties; (f) Inflicting or threatening to inflict physical harm on oneself for the purpose of controlling her actions or decisions; (g) Causing or attempting to cause the woman or her child to engage in any sexual activity which does not constitute rape, by force or threat of force, physical harm, or through intimidation directed against the woman or her child or her/his immediate family; (h) Engaging in purposeful, knowing, or reckless conduct, personally or through another, that alarms or causes substantial emotional or psychological distress to the woman or her child. This shall include, but not be limited to, the following acts: (1) Stalking or following the woman or her child in public or private places; (2) Peering in the window or lingering outside the residence of the woman or her child; (3) Entering or remaining in the dwelling or on the property of the woman or her child against her/his will; (4) Destroying the property and personal belongings or inflicting harm to animals or pets of the woman or her child; and (5) Engaging in any form of harassment or violence; (i) Causing mental or emotional anguish, public ridicule or humiliation to the woman or her child, including, but not limited to, repeated verbal and emotional abuse, and denial of financial support or custody of minor children of access to the woman's child/children. SECTION 6. Penalties.- The crime of violence against women and their children, under Section 5 hereof shall be punished according to the following Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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Art. 250. Penalty for frustrated parricide, murder or homicide. — The courts, in view of the facts of the case, may impose upon the person guilty of the frustrated crime of parricide, murder or homicide, defined and penalized in the preceding articles, a penalty lower by one degree than that which should be imposed under the provision of Article 50. The courts, considering the facts of the case, may likewise reduce by one degree the penalty which under Article 51 should be imposed for an attempt to commit any of such crimes. Art. 251. Death caused in a tumultuous affray . — When, while several persons, not composing groups organized for the common purpose of assaulting and attacking each other reciprocally, quarrel and assault each other in a confused and tumultuous manner, and in the course of the affray someone is killed, and it cannot be ascertained who actually killed the deceased, but the person or persons who inflicted serious physical injuries can be identified, such person or persons shall be punished by prision mayor. If it cannot be determined who inflicted the serious physical injuries on the deceased, the penalty of prision correccional in its medium and maximum periods shall be imposed upon all those who shall have used violence upon the person of the victim. Art. 252. Physical injuries inflicted in a tumultuous affray . — When in a tumultuous affray as referred to in the preceding article, only serious physical injuries are inflicted upon the participants thereof and the person responsible thereof cannot be identified, all those who appear to have used violence upon the person of the offended party shall suffer the penalty next lower in degree than that provided for the physical injuries so inflicted. When the physical injuries inflicted are of a less serious nature and the person responsible therefor cannot be identified, all those who appear to have used any violence upon the person of the offended party shall be punished by arresto mayor from five to fifteen days. • •
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Article will not apply if the killer is known, even if the fighting was tumultuous. Elements for 251: Several persons involved (more than 2 in each group) o Do not compose groups organized for the purpose of attacking another o Persons attack one another in a tum ultuous and confused manner o Cannot be determined who killed the deceased o Person who inflicted physical injuries to the deceased can be identified o A tumultuous affray takes place when a quarrel occurs between several persons in a confused tumultuous manner, in the course of which a person is killed or wounded and the author thereof cannot be ascertained. Article will also not apply if the one group so organized attacked another group and the other group only defended themselves All of the members of the attacking group ate liable for all injuries because of conspiracy o Elements for 252: That there is a tumultuous affray as referred to in the preceding article o That a participant(s) thereof suffer serious physical injuries or physical injuries of a less serious o nature only That the person responsible therefore cannot be identified o That all those who appear to have used violence upon the person of the offended party are o known Injuries must be serious or less serious. If only slight, no crime is committed but if the offender is known, he will be prosecuted for slight o physical injuries. Difference between 251 and 252: Victim of killing in 251: “someone” – can be a participant or passerby o Victim of physical injuries in 252: “participant” – so no passersby; only participants are victims o
rules: (a) Acts falling under Section 5(a) constituting attempted, frustrated or consummated parricide or murder or homicide shall be punished in accordance with the provisions of the Revised Penal Code. If these acts resulted in mutilation, it shall be punishable in accordance with the Revised Penal Code; those constituting serious physical injuries shall have the penalty of prison mayor; those constituting less serious physical injuries shall be punished by prision correccional; and those constituting slight physical injuries shall be punished by arresto mayor. Acts falling under Section 5(b) shall be punished by imprisonment of two degrees lower than t he prescribed penalty for the consummated crime as specified in the preceding paragraph but shall in no case be lower than arresto mayor. Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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Art. 253. Giving assistance to suicide. — Any person who shall assist another to commit suicide shall suffer the penalty of prision mayor; if such person leads his assistance to another to the extent of doing the killing himself, he shall suffer the penalty of reclusion temporal. However, if the suicide is not consummated, the penalty of arresto mayor in its medium and maximum periods, shall be imposed. •
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Acts punished: By assisting another to commit suicide, whether the suicide is consummated or not o By lending his assistance to another to commit suicide to the extend of doing the killing himself o Person trying to commit suicide does not commit a crime, even if he fails to kill himself This article will apply to euthanasia if the idea came from the dying person. If the idea to kill was from the accused without the consent of the dying person, that’s murder. If suicidal person jumps to kill himself, but lands on another and kills that person. Is there a crime? Some believe he can be liable. (Art 365 perhaps?) o Some believe he can’t. o
Art. 254. Discharge of firearms. — Any person who shall shoot at another with any firearm shall suffer the penalty of prision correccional in its minimum and medium periods, unless the facts of the case are such that the act can be held to constitute frustrated or attempted parricide, murder, homicide or any other crime for which a higher penalty is prescribed by any of the articles of this Code. •
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Elements: That the offender discharges a firearm against or at another person o That the offender has no intention to kill that person o Usually, the purpose is to scare another, not to kill or to harm (Dado v P) If with intent to kill, it can be homicide or murder at any of its stages o If no intent to kill, but dude is hit, physical injuries. o If he fires it to the air, it can be Art 153 (alarms) No distinction between licensed or unlicensed. If unlicensed and another crime committed, remember, not guilty under RA 8294! o This article can be complexed with serious or less serious physical injuries Dude shot at Draco to scare him. However, the bullet hit Mila who was standing behind Draco. o One bullet, two crimes.
Section Two. — Infanticide and abortion. Art. 255. Infanticide. — The penalty provided for parricide in Article 246 and for murder in Article 248 shall be imposed upon any person who shall kill any child less than three days of age. If the crime penalized in this article be committed by the mother of the child for the purpose of concealing her dishonor, she shall suffer the penalty of prision correccional in its medium and maximum periods, and if said crime be committed for the same purpose by the maternal grandparents or either of them, the penalty shall be prision mayor. •
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Elements: That a child was killed o That the deceased child was less than 3 days (72 hours) of age o That the accused killed the said child o Pivotal: age of child, regardless of relationship Hence, even if parent kills child, as long as less than 3 days old, infanticide is the crime. o What if woman abandons 2-day old child with intent to kill and child days? Infanticide. o If no intent to kill, abandonment of child. (not homicide?) Father rapes his pregnant daughter. Daughter delivered child and father took it away and buried it alive. (P v Morales) Solve: Rape o Infanticide with abuse of superior strength (but J-Call says abuse of superior strength inherent in o suicide) Child must be born alive and viable (capable of independent existence) The fetus must already be viable; otherwise, the crime is not infanticide but abortion. o If the fetus had an intra-uterine life of less than 7 months and it was destroyed within 24 hours after its separation from the womb, following the Civil Code, it is still abortion. (Boado)
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Extenuating circumstance of concealment of dishonor is available only to the: Mother o Maternal grandparents o
Art. 256. Intentional abortion. — Any person who shall intentionally cause an abortion shall suffer: 1. The penalty of reclusion temporal, if he shall use any violence upon the person of the pregnant woman. 2. The penalty of prision mayor if, without using violence, he shall act without the consent of the woman. 3. The penalty of prision correccional in its medium and maximum periods, if the woman shall have consented. •
Two different kinds of abortion: Intentional abortion o Includes abortion practiced: by the prego or her parents, and by a physician or midwife Unintentional abortion o Elements: That there is a pregnant woman That violence is exerted, or drugs or beverages administered, or that the accused otherwise acts upon such pregnant woman That as a result of the use of violence or drugs or beverages upon her, or any other act of the accused, the fetus dies, either in the womb or after having been expelled therefrom That the abortion is intended Committed in three ways: Use of any violence upon the person of the pregnant woman (with violence) Without using violence, the offender shall act without the consent of the woman (without violence/without consent) With consent of the woman In last two ways, it’s done by administering drugs or beverages on her So long as the fetus dies due to violence or drug administered even if the fetus is in full term, it is abortion. (Viada!) May there be frustrated abortion? Yes! (Justice Regalado) Preggy takes an effective abortive, but the abortion is averted due to medical intervention. What if lady is not pregnant? Impossible crime o If non-pregnant woman suffered PI, then PI. • •
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Abortion Fetus is still drawing life from its mother, Or not yet breathing on its own, Or baby had an intra-uterine life of less than 7 months and is killed within 24 hours
Infanticide Victim is already a person, or The umbilical cord is already cut and the infant is breathing on its own, or The baby had an intra-uterine life of less than 7 months and it is killed after 24 hours.
Art. 257. Unintentional abortion. — The penalty of prision correccional in its minimum and medium period shall be imposed upon any person who shall cause an abortion by violence, but unintentionally. •
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Elements: That there is a pregnant woman o That violence is used upon such pregnant woman without intending an abortion o That the violence is intentionally exerted o That as a result of the violence, the fetus dies, either in the womb or after having been expelled o therefrom Important that the abortion is NOT intended. No unintentional abortion through intimidation. Can only be committed from physical violence. o Pointing a gun against a pregnant woman in a quarrel which caused abortion would give rise to o
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the crime of other light threats, not unintentional abortion. (but shouldn’t Art 4 apply? - Mickey) Unintentional abortion is: By violence (physical) and intimidation, and o By another person, not by the preggy o May be committed by culpa (P v Paycana) There can be a complex crime of unintentional abortion and parricide (P v Paycana, see comments on parricide) Intentional With or without violence By another person or by woman herself Offenders knows of the pregnancy of the woman Always by dolo Kaya pa?
Unintentional With physical violence By other than the preggy Offender may or may not know of the pregnancy Dolo or culpa Kaya pa!
Art. 258. Abortion practiced by the woman herself of by her parents. — The penalty of prision correccional in its medium and maximum periods shall be imposed upon a woman who shall practice abortion upon herself or shall consent that any other person should do so. Any woman who shall commit this offense to conceal her dishonor, shall suffer the penalty of prision correccional in its minimum and medium periods. If this crime be committed by the parents of the pregnant woman or either of them, and they act with the consent of said woman for the purpose of concealing her dishonor, the offenders shall suffer the penalty of prision correccional in its medium and maximum periods. Art. 259. Abortion practiced by a physician or midwife and dispensing of abortives. — The penalties provided in Article 256 shall be imposed in its maximum period, respectively, upon any physician or midwife who, taking advantage of their scientific knowledge or skill, shall cause an abortion or assist in causing the same. Any pharmacist who, without the proper prescription from a physician, shall dispense any abortive shall suffer arresto mayor and a fine not exceeding 1,000 pesos. •
High degree of education is an element of the crime, hence same shall no longer be considered as generic AC.
Section Three. — Duel Art. 260. Responsibility of participants in a duel. — The penalty of reclusion temporal shall be imposed upon any person who shall kill his adversary in a duel. If he shall inflict upon the latter physical injuries only, he shall suffer the penalty provided therefor, according to their nature. In any other case, the combatants shall suffer the penalty of arresto mayor, although no physical injuries have been inflicted. The seconds shall in all events be punished as accomplices. Art. 261. Challenging to a duel . — The penalty of prision correccional in its minimum period shall be imposed upon any person who shall challenge another, or incite another to give or accept a challenge to a duel, or shall scoff at or decry another publicly for having refused to accept a challenge to fight a duel. •
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Elements Previous agreement to engage in combat o Two or more seconds for such combatant o The choice of arms and other terms of agreement must be agreed upon by the seconds o Not any pre-agreed fight is a duel because the elements above must be complied with. Both persons who are part of the duel can be charged. Pari delicto does NOT apply. The State can NOT be bound by the acts of private persons o Both are considered unlawful aggressors.
Chapter Two PHYSICAL INJURIES Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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Physical injuries is a formal crime because it is penalized on the basis of the gravity of the injury. What is punished is the result or consequence and not the stage of execution. o No attempted or frustrated stage. o
Art. 262. Mutilation. — The penalty of reclusion temporal to reclusion perpetua shall be imposed upon any person who shall intentionally mutilate another by depriving him, either totally or partially, or some essential organ of reproduction. Any other intentional mutilation shall be punished by prision mayor in its medium and maximum periods. •
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Acts punished: By intentionally mutilating another by depriving him, either totally or partially, of some essential o organ for reproduction That there be castration (mutilation of organs necessary for generation such as a penis or ovarium) That the mutilation is caused purposely or deliberately, that is, to deprive the offended party of some essential organ for reproduction By intentionally making other mutilation, that is, by lopping or clipping off any part of the body o of the offended party, other than the essential organ for reproduction, to deprive him of that part of his body. What if the wife who discovers her husband in the act of making love to a 3 rd party grabs a pair of scissors and proceeds to cut off her husband’s weiner-schnitzel? No liability. Art 247 will apply. What if victim was a woman or her child? Do you charge the offender under VAWC (RA 9262) or under the RPC? (Question will come out in the exam) Under the RPC! 64 o
Art. 263. Serious physical injuries. — Any person who shall wound, beat, or assault another, shall be guilty of the crime of serious physical injuries and shall suffer: 1. The penalty of prision mayor, if in consequence of the physical injuries inflicted, the injured person shall become insane, imbecile, impotent, or blind; 2. The penalty of prision correccional in its medium and maximum periods, if in consequence of the physical injuries inflicted, the person injured shall have lost the use of speech or the power to hear or to smell, or shall have lost an eye, a hand, a foot, an arm, or a leg or shall have lost the use of any such member, or shall have become incapacitated for the work in which he was therefor habitually engaged; 3. The penalty of prision correccional in its minimum and medium periods, if in consequence of the physical injuries inflicted, the person injured shall have become deformed, or shall have lost any other part of his body, or shall have lost the use thereof, or shall have been ill or incapacitated for the performance of the work in which he as habitually engaged for a period of more than ninety days; 4. The penalty of arresto mayor in its maximum period to prision correccional in its minimum period, if the physical injuries inflicted shall have caused the illness or incapacity for labor of the injured person for more than thirty days. If the offense shall have been committed against any of the persons enumerated in Article 246, or with attendance of any of the circumstances mentioned in Article 248, the case covered by subdivision number 1 of this Article shall be punished by reclusion temporal in its medium and maximum periods; the case covered by subdivision number 2 by prision correccional in its maximum period to prision mayor in its minimum period; the case covered by subdivision number 3 by prision correccional in its medium and maximum periods; and the case covered by subdivision number 4 by prision correccional in its minimum and medium periods. The provisions of the preceding paragraph shall not be applicable to a parent who shall inflict physical injuries upon his child by excessive chastisement. •
Paragraph 1: victim becomes: Insane o Mental disturbance is caused Includes nervous breakdowns
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SECTION 6. Penalties.- The crime of violence against women and their children, under Sec tion 5 hereof shall be punished according to the following rules: (a) Acts falling under Section 5(a) constituting attempted, frustrated or consummated parricide or murder or homicide shall be punished in accordance with the provisions of the Revised Penal Code. If these acts resulted in mutilation, it shall be punishable in accordance with the Revised Penal Code; those constituting serious physical injuries shall have the penalty of prison mayor; those constituting less serious physical injuries shall be punished by prision correccional; and those constituting slight physical injuries shall be punished by arresto mayor. Acts falling under Section 5(b) shall be punished by imprisonment of two degrees lower than t he prescribed penalty for the consummated crime as specified in the preceding paragraph but shall in no case be lower than arresto mayor.
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Imbecile Impotent o Loss of the power to procreate, and not only power to copulate If castration was done solely to deprive the victim the power of generation then Art 262 will apply (intent to mutilate here was present) Blind o Must be complete blindness (either loss of sight or loss of both eyes) Mere weakness of vision will not go under this paragraph Paragraph 2: Loses the power of speech, hearing or smell o Loses the uses of an eye, hand, foot, arm or leg o Loses an eye, hand, foot, arm or leg o If only a single finger was lost, then it’s not serious PI. But if it’s a thumb or 4 fingers lost, then serious PI. (P v Rogelio) Permanently incapacitated for the work in which he was habitually engaged o Paragraph 3: Deformity o Visible ugliness on the offender which can NOT be repaired by natural healing So, even if nagpa-Belo after the incident, still serious PI Loss of any other part than in par 2 or its use o Ill or incapacity for work he was habitually engaged in for more than 90 days o Paragraph 4: Illness or incapacity for labor more than 30 days o If med cert states that healing period is one month, the crime is less serious physical injuries. When we speak of month, it is understood to mean 30 days. Labor should relate to any physical activity, not to gainful employment, otherwise, those who are unemployed could not be victims under Par 4. J-Call said not going to school is included. Qualifying circumstances: Victim is any of those of parricide o Except in the case of parents when the injuries are inflicted due to excessive chastisement Presence of any of the qualifying circumstances for murder. o If victim is under 12, RA 7610 makes the penalty reclusion perpetua. See footnote for similar crimes! 65 Relate physical injuries to robbery with physical injuries under 294 (2-4): 294 (2-4) classifies the severity of the crime of robbery with PI vis-à-vis par 1-4 of Art 263: o Art 294 Art 263 Infliction of injuries Par 2 Par 1 By reason or on occasion of robbery 3 2 By reason or on occasion of robbery 4 3 In course of execution of robbery Significance is that 295 and 296 shall apply if the robbery with PI shall be under paragraphs 3 o and 4 of 294 which in turn depends upon the nature of the injury which should fall within paragraphs 2, 3, and 4 of 263. (ano to, choose your own adventure?!) o
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Art. 264. Administering injurious substances or beverages. — The penalties established by the next preceding article shall be applicable in the respective case to any person who, without intent to kill, shall inflict upon another any serious, physical injury, by knowingly administering to him any injurious substance or beverages or by taking advantage of his weakness of mind or credulity. •
Elements: That the offender inflicted upon another any serious physical injury o
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RA 7610, Sec 10. For purposes of this Act, the penalty for the commission of acts punishable under Articles 248, 249, 262, paragraph 2, and 263, paragraph 1 of Act No. 3815, as amended, the Revised Penal Code, for the crimes of murder, homicide, other intentional mutilation, and serious physical injuries, respectively, shall be reclusion perpetua when the victim is under twelve (12) years of age. Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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That it was done by knowingly administering to him any injurious substance or beverages or by taking advantage of his weakness of mine or credulity That he had no intent to kill o Injurious substances must be introduced or injected into the body of the victim. SHOULD result to serious physical injury If it only less serious physical injuries are inflicted, Art 265 will apply. o If there’s intent to kill, it can be murder, homicide, parricide. If there was an intent to kill, but the quantity was not enough to kill: not an impossible crime; o either serious or less serious physical injuries Can NOT be committed by culpa, since need for intentional introduction of the substance If the offender not aware that the substance is injurious, can result to reckless imprudence resulting to serious physical injuries (CJ Aquino) o
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Art. 265. Less serious physical injuries. — Any person who shall inflict upon another physical injuries not described in the preceding articles, but which shall incapacitate the offended party for labor for ten days or more, or shall require medical assistance for the same period, shall be guilty of less serious physical injuries and shall suffer the penalty of arresto mayor. Whenever less serious physical injuries shall have been inflicted with the manifest intent to kill or offend the injured person, or under circumstances adding ignominy to the offense in addition to the penalty of arresto mayor, a fine not exceeding 500 pesos shall be imposed. Any less serious physical injuries inflicted upon the offender's parents, ascendants, guardians, curators, teachers, or persons of rank, or persons in authority, shall be punished by prision correccional in its minimum and medium periods, provided that, in the case of persons in authority, the deed does not constitute the crime of assault upon such person. •
Par 1: Injuries not described in 263-264 and Incapacitates from labor for 10-30 days Requires medical attendance for same period Par 2: qualified Elements: o there is manifest intent to insult or offend the injured person there are circumstances adding ignominy to the offense Par 3: qualified Elements: o Victim is the offender’s parents, ascendants, guardians, curators, teachers or persons of rank, or persons in authority Not direct assault, ie, injury inflicted not on the occasion of the performance of function of PIA or offender does not know victim is a pubic officer. Foreign consul is a person in rank. o o
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Art. 266. Slight physical injuries and maltreatment . — The crime of slight physical injuries shall be punished: 1. By arresto menor when the offender has inflicted physical injuries which shall incapacitate the offended party for labor from one to nine days, or shall require medical attendance during the same period. 2. By arresto menor or a fine not exceeding 20 pesos and censure when the offender has caused physical injuries which do not prevent the offended party from engaging in his habitual work nor require medical assistance. 3. By arresto menor in its minimum period or a fine not exceeding 50 pesos when the offender shall ill-treat another by deed without causing any injury. •
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Par 2: Physical injuries which did not prevent the offended party from engaging in his habitual work or which did not require medical attendance Par 3: Ill-treatment of another by deed without causing any injury Problems: Accused slapped the victim. Victim did not sustain any physical injury or need any medical o attendance. What crime? Slight physical injuries. (Art 266, Par 2) o
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But if purpose was to humiliate the victim, crime is slander by deed. What if the victim sustains less serious physical i njuries? Then less serious physical injuries (Art 265, Par 2: ignominy) What if victim sustains serious physical injuries (victim becomes deformed because of the slap)? Then serious physical injuries. But if the slapping was done with intent to humiliate, then serious o physical injuries with AC of ignominy. Accused slapped his teacher, resulting into less serious physical injuries. What crime was o committed? If teacher in performance of duty, then direct assault with less serious physical injuries (complex). If not in performance of duty, then qualified less serious physical injuries. Injury may not be serious at the onset but later on becomes serious. The crime committed can change depending on the ultimate injury caused. •
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Article 266-A. Rape: When And How Committed. Rape is Committed 1) By a man who shall have carnal knowledge of a woman under any of the following: Through force, threat, or intimidation; When the offended party is deprived of reason or otherwise unconscious; By means of fraudulent machination or grave abuse of authority; and When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present. 2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another person's mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person. •
Rape is now a crime against persons The charge may be filed now by the public prosecutor o The consent of the offended party is no longer needed o There is now an impossible crime of rape o Husbands may now be liable of sexual assault of their lawful wives. o The husband has the right to persuade the wife, but he cannot use force, threat or intimidation Sexual relations must always be consensual Wife can resist if they are legally separated or the husband has AIDS Two acts punished: Rape o Sexual Assault o Rape: Elements: o Committed by a man who shall have carnal knowledge of a woman under any of the following circumstances: Through force, threat, or intimidation; When the victim is deprived of reason or otherwise unconscious; By means of fraudulent machination or grave abuse of authority; or When the offended party is under 12 or is demented even though none of the circumstances above are present Carnal knowledge: sexual intercourse o Only a man can be a PDP under rape o A woman can be liable, but only as a PDI or PIC. Sexual assault: Elements: o Committed by a person (man or woman) Through any of the above circumstances Inserts: His penis (man) into another person’s (man or woman) mouth or anal orifice, or •
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Any instrument or object into the genital or anal orifice of another person (man or woman) May be committed by a man or a woman o If a man inserts his finger and then his penis into a woman’s vagina, one count of sexual assault o and one count of rape “Instrument” – can be part of the human body (finger, tongue) or o ther objects o Lewd design is inherent in both crimes. Inherent is the desire of the offender to get sexual gratification by the insertion of his organ or any instrument into his victim. No frustrated rape or sexual assault Enough that a part of the object or organ pass through the genital, anal orifice, mouth. o As long as the penis enters/penetrates the labia majoria, already consummated. (bombardment o of the drawbridge doctrine) Penis must be erect (P v Brioso) But touching not enough, the touching must be in relation with the intent to have carnal o knowledge of the woman and there must have been penetration, however slight. Hence, grazing and mere stroking not enough.66 (P v Campuhan) Circumstances which bring about rape or sexual assault Force or violence (Par 1) o Can be actual or constructive What is pivotal is the offender was able to achieve his purpose by employing such Relative to the victim, need not to be so overpowering or irresistible All that is necessary is that fo rce used was sufficient to consummate the evil purpose Fear or threat (Par 1) o Includes fear of death, bodily harm, such as to surrender to the desires of the offender Intimidation (Par 1) o Viewed in the eyes of the victim Must be such as to cause fear in the part of the victim Like threatening with a knife Includes moral ascendancy or parental authority Like when a father raped his daughter and he claims she didn’t resist, moral ascendancy and parental authority were held to have substituted for violence, threat, etc Same rule if accused was the uncle, stepfather or common-law husband of the victim’s mother Deprived of reason (Par 2) o Intellectually weak to the extent that she is not capable of giving consent Covers insane, idiotic, mental retardates, mental abnormality Deprivation of reason need not be complete; borderline mental deficiency is enough Otherwise unconscious (Par 2) o Covers those who are sleeping or who feel drowsy, whether naturally or artificially Includes cases where a drug was injected into a woman’s body; her ability to tresist was taken away even if the woman was awake at the time of the of intercourse Fraudulent machinations (Par 3) o Twin brother has sex with his brother’s wife by pretending to be the husband Grave abuse of authority (Par 3) o Teacher on a student; employer on employee; doctor on a patient Offended is under 12 (statutory rape) or is demented o Even if with the consent of the victim, still rape So sweetheart defense is immaterial No need for violence or intimdation If girl is over 12, but has the mental age of 12, not statutory rape, but can still be considered rape Mental retardates are not considered demented, but they fall under Par 2 (P v Magabo) •
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Touching when applied to rape cases does not simply mean epidermal contact, stroking or grazing of organs, a slight brush or a scrape of the penis on the external layer of the victim’s vagina, or the mons pubis – there must be sufficient and convincing proof that the penis indeed touched the labias or slid into the female organ, and not merely stroked the external surface thereof, for an accused to be convicted of consummated rape. Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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To be held liable under RA 7610 (Child Abuse Act), the following must concur: The accused commits the act of sexual intercourse or lascivious conduct. o 2. The said act is performed with a child exploited in prostitution or subjected to other sexual o abuse. 3. The child, whether male or female, is below 18 years of age. (Olivarez v CA) o However, if the child victim is under 12, the accused will be prosecuted under RPC. 67
Article 266-B. Penalty . - Rape under paragraph 1 of the next preceding article shall be punished by reclusion perpetua. Whenever the rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death. When by reason or on the occasion of the rape, the victim has become insane, the penalty shall become reclusion perpetua to death. When the rape is attempted and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion perpetua to death. When by reason or on the occasion ofthe rape, homicide is committed, the penalty shall be death. The death penalty shall also be imposed if the crime of rape is committed with any of the following aggravating/qualifying circumstances: l) When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim; 2) When the victim is under the custody of the police or military authorities or any law enforcement or penal institution; 3) When the rape is committed in full view of the spouse, parent, any of the children or other relatives within the third civil degree of consanguinity; 4) When the victim is a religious engaged in legitimate religious vocation or calling and is personally known to be such by the offender before or at the time of the commission of the crime; 5) When the victim is a child below seven (7) years old; 6) When the offender knows that he is afflicted with the Human Immuno-Deficiency Virus (HIV)/Acquired Immune Deficiency Syndrome (AIDS) or any other sexually transmissible disease and the virus or disease is transmitted to the victim; 7) When committed by any member of the Armed Forces of the Philippines or para-military units thereof or the Philippine National Police or any law enforcement agency or penal institution, when the offender took advantage of his position to facilitate the commission of the crime; 8) When by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation or disability; 9) When the offender knew of the pregnancy of the offended party at the time of the commission of the crime; and 10) When the offender knew of the mental disability, emotional disorder and/or physical handicap of the offended party at the time of the commission of the crime. Rape under paragraph 2 of the next preceding article shall be punished by prision mayor. Whenever the rape is committed with the use of a deadly weapon or by two or more persons, the penalty shall be prision mayor to reclusion temporal. When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be reclusion temporal. When the rape is attempted and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion temporal to reclusion perpetua. When by reason or on the occasion of the rape, homicide is committed, the penalty shall be reclusion perpetua. Reclusion temporal shall be imposed if the rape is committed with any of the ten aggravating/ qualifying circumstances mentioned in this article. •
Qualifying circumstances: only one is needed to qualify the crime. NOTE: Do NOT use others a generic aggravating circumstance Use of a weapon o Any instrument made or designed for the infliction of injury or is likely to produce death or physical harm Mere possession not enough. It must be used to intimidate the woman. Doesn’t matter if licensed or unlicensed. Even if unlicensed, still won’t be aggravating or
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(b) Those who commit the act of sexual intercourse of lascivious conduct with a child exploited in prostitution or subject to other sexual abuse; Provided, That when the victims is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious c onduct, as the case ma y be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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separate because rape (“other crime”) was commi tted By 2 or more persons o Victim becomes insane on the occasion or by reason of the rape o Rape is attempted/consummated and a homicide is committed by reason or on occasion thereof o (see comments below) Victim is under 18 and the offender is a o Parent Ascendant Step-parent Guardian Legal or judicial Relative by consanguinity or affinity within the 3rd civil degree Common-law spouse of the parent of the victim Stepsiblings not included Victim is under the custody of the police or military or any law enforcement or penal institution o Rape committed in full view of the spouse, parent, any of the children or other relatives within o the 3rd civil degree of consanguinity (no affinity!) Victim is a religious engaged in legitimate religious vocation and is personally known to be such o by the offender before or during the rape Victim is below 7 years old o To prove age (same rules as to prove below 12): show birth certificate Baptismal certificate not enough Can, however, be stipulated in pretrial Judicial notice can allowed but hearing must first be conducted. Basing age on the appearance of the victim is NOT enough Rapist has AIDS or STD and is transmitted to the victim o Offender must know he/she has AIDS or STD Raped by the police, AFP, paramilitary units, when the offender took advantage of his position o Victim suffered permanent physical mutilation or disability o Offender knew of the pregnancy of the victim o Offender knew of the mental disability, emotional disorder and/or physical handicap of the victim o Special complex crime of rape with homicide/sexual assault with homicide Homicide used in its generic term o No such thing as homicide with murder “On the occasion”: there must be a logical connection between homicide and rape o there must be an intimate relation between the two crimes examples: rapist killed the victim to shut her up rapist had AIDS, and the victim dies long after still rape with homicide Homicide must be consummated o If not, separate crimes of rape and attempted/frustrated homicide/murder. Two rapists, only one stabbed the victim to death: BOTH are liable for rape with homicide o Three rapists, each took turns raping the victim, then killed her: all three are liable for 3 counts o of rape with homicide. (P v Dino) What if the rapist shoots the victim in order to rape her? o Art 48 will apply. Commission of one crime to commit the other. Interplay between forcible abduction and rape: Intent to rape: simple rape. Taking incidental. o Intent to take woman against her will with lewd designs: forcible abduction with rape o (information must allege lewd designs) If multiple rapes, complex crime of forcible abduction with rape, then other rapes file separately. Intent was to kidnap for ransom, but after rape was committed as an afterthought: special o complex crime of kidnapping with rape How many counts of rape? Each penetration equals one count of rape. o •
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Rapist ejaculated twice but never put it out. One count of rape (P v Orilla) Rapist inserted his penis twice, and inserted his finger twice. Two counts of rape, two counts of sexual assault. (P v Intong) See P v Dino above.
Article 266-C. Effect of Pardon. - The subsequent valid marriage between the offended party shall extinguish the criminal action or the penalty imposed. In case it is the legal husband who is the offender, the subsequent forgiveness by the wife as the offended party shall extinguish the criminal action or the penalty: Provided, That the crime shall not be extinguished or the penalty shall not be abated if the marriage is void ab initio. Article 266-D. Presumptions. - Any physical overt act manifesting resistance against the act of rape in any degree from the offended party, or where the offended party is so situated as to render her/him incapable of giving valid consent, may be accepted as evidence in the prosecution of the acts punished under Article 266A. •
VALID marriage between offender and offended party in rape or sexual assault will extinguish criminal liability and o even the penalty already imposed. o So even if the convict is already serving sentence, marriage with the victim will extinguish his criminal liability. If there are 3 accused: PDP, PIC, and an accomplice, will the marriage between the victim and o the PDP extinguish the liability of the other accused? Yes. This was the intent of the Senate when they removed the original proviso stating that the co-principal, etc are not benefited, as manifested by Senator Enrile’s statement in SB 950. Marriage must be valid. If void, no extinguishment of crim liability. (Upon declaration of the o court that it was void, does the accused go back to prison?) What if accused raped multiple victims, but he gets married to one of them? Pardon won’t o extinguish rape of other victims. He will have to marry all of them. (How?!?!) In rape cases, is the pardon of the parents of the victim without the concurrence of the minor o victim herself effective? Boado says no. Offended minor must also give her express pardon.
Title Nine CRIMES AGAINST PERSONAL LIBERTY AND SECURITY Chapter One CRIMES AGAINST LIBERTY Art. 267. Kidnapping and serious illegal detention. — Any private individual who shall kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death: 1. If the kidnapping or detention shall have lasted more than five days. 2. If it shall have been committed simulating public authority. 3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained; or if threats to kill him shall have been made. 4. If the person kidnapped or detained shall be a minor, female or a public officer. The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person, even if none of the circumstances above-mentioned were present in the commission of the offense. When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to torture or dehumanizing acts, the maximum penalty shall be imposed. (As amended by Sec 8, RA 7659) •
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Essence: victim must have been restrained or deprived of his liberty, or that he was transported away against his will with the primary or original intent to effect that restraint Specific intent crime: intent to deprive liberty of another Kidnapping: taking of the victim; serious illegal detention: consists in mere deprivation of liberty What is important to determine and prove is the fact of the seizure. Subsequent disappearance of the victim will not exonerate an accused from prosecution therefor. o Elements: That the offender is a private individual o
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That he kidnaps or detains another, or in any other manner deprives the latter of his liberty That the act of detention or kidnapping must be illegal o That in the commission of the offense, any of the fol lowing circumstances are present: o The kidnapping or detention lasts for more than 3 days or; It is committed simulating public authority or; Any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or The person kidnapped or detained is a minor (except when the accused is any of the parents), female or a public officer. Duration or length of time is IRRELEVANT if any of the circumstances in Par 2 to 4 of Art 267 Length of time only relevant for Par 1 o Par 2: If the private individual pretended to be a police officer, it is not a complex crime with usurpation as the usurpation is a mode of committing the kidnapping (it’s abb… wait for it… zzzorbed!!!) Par 3: No crime of serious PI and kidnapping as infliction of serious PI is a mode of kidnapping (it’s abzzzorbed!) Does kidnapped have to be enclosed or trapped? Deprivation not only includes lock-up or imprisonment, but deprivation of liberty in whatever o form for whatever length of time Spanish version uses the term “lockup” (encerrar) rather than “kidnap” (secuestar or raptar). o If at the onset, the victim agreed to go with the offender, but is thereafter prevented with use of force from leaving the place, and there was deprivation of liberty, there is kidnapping. (P v Picarel) Qualified when: Ransom is demanded o Victim is killed or dies as a consequence o Victim raped, or o Victim is subjected to torture or dehumanizing acts o On ransom Ransom includes not only money but also things of value, price or condition, even benefits which o may accrue to the kidnapper, even without pecuniary value. Mere demand for ransom is enough, no need that it be paid. o J-Call: actually even if without demand, as long as there is intent to demand The fact alone that ransom is demanded would not per se qualify the act of preventing the o liberty of movement of the victim into the crime of kidnapping, unless the victim is actually restrained or deprived of his liberty for some appreciable period of time or that such restraint was the basic intent of the accused. Even if what is demanded is due to the offender (like debt or rent money), it is still ransom if o predicated on the release of the victim. (P v Tomio) If ransom note is late (victim already rescued), crime is still kidnapping, just not qualified. o Special complex crime of KIDNAPPING WITH RAPE or KIDNAPPING WITH HOMICIDE There must be a logical connection or intimate relation between the kidnapping and the rape, o homicide, or torture Even if the rape or killing is merely an afterthought, the special complex crime of kidnapping with rape or homicide is committed (P v Larranaga) Even if the victim dies of fright, still special complex crime since there is still a logical connection. Even if the victim dies because of a firefight between the police and the kidnappers, still special complex crime. (P v Job) In fact, it doesn’t matter who kills the victim, as long as there’s a logical connection to the kidnapping. Even if there are multiple rapes on one victim, still kidnapping with rape. o Excess rapes are absorbed. Not considered as aggravating. Homicide or rape must be CONSUMMATED. No kidnapping with attempted rape, or kidnapping o with frustrated/attempted homicide. Depending on the facts, you can go for either: Art 48 (kidnapping complex with attempted/frustrated homicide, attempted rape, as the case may be. Can also be kidnapping with physical injuries) or Separate crimes (kidnapping and attempted/frustrated homicide or attempted o
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rape) for example, kidnapper inflicted injuries on victim with intent to kill, but victim did not die. May one be liable for murder and kidnapping as separate crimes? (aside from the example given above) Yes. In P v Baldogo, kidnapper murdered the father of the victim, kidnapped the victim and then sold the victim. Baldogo liable for 1) murdering the father and 2) kidnapping. If two or more persons were killed by reason or on the occasion of the kidnapping, there are as many crimes as there are the number of persons kidnapped. So if there are two persons kidnapped, and both died, then two counts of kidnapping with homicide. Problem: Kidnapper A and Kidnapper B took Clara and Dora and deprived them of their liberty. A raped Clara. B killed Dora. What is A and B liable for? They are EACH liable for kidnapping with homicide (for Clara) and kidnapping with rape (for Dora). Problem: A kidnapped and raped a pregnant woman. Pregnant woman had an abortion. What crime/s were committed? Kidnapping with rape and unintentional abortion (?) If someone dies or is raped and the victim was taken away beforehand, is this automatically kidnapping? No. Primary purpose of the offender is material in determining the crime. If deprivation is merely incidental to other criminal intents, then the deprivation is ABZZZZORBED by that other crime. If primary purpose is killing/rape, murder/rape; Girl locked up in a room to rape her? Then rape. o If deprivation of liberty then killed victim, kidnapping with homicide. o
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At the outset, NO lewd designs Rape here not a separate crime, but a QUALIFYING circumstance Even if there are multiple rapes on same victim, only one kidnapping with rape. Excess rapes are absorbed. If rape was merely attempted, two separate crimes.
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Forcible Abduction with Rape Complex under Art 48 since forcible abduction necessary means to commit rape At the outset, there is LEWD design Rape here is also a crime, not merely qualifying There are multiple rapes on one victim, only the first rape shall be complexed. Other rapes will be treated as separate crimes. If rape merely attempted, there is only forcible abduction. The attempt to rape is deemed merely a manifestation of lewd designs.
Torture or dehumanizing acts Removing qualities of human compassion (?) o Handcuffing, gagging, blindfolding them, forcing them to dance naked (P v Larranaga) What if numerous qualifying modes committed? Just choose one to charge them with. Same penalty anyway. (J-Call) o Kidnapper demanded for ransom, raped the victim, and then killed her. o Choose kidnapping for ransom, kidnapping with rape or kidnapping with homicide. For the special complex crimes of kidnapping with homicide, rape, or torture, the kidnap victim himself was killed, raped or tortured. Compare with robbery with homicide where it does not matter whether it is the victim or one of o the robbers who is killed. If the one killed were a third person, there will be two separate crimes and if such third person is o a policeman rescuing the victim, the second crime will be direct assault with homicide. Remember: there are as many crimes of kidnapping as the number of victims kidnapped.
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When a person is prevented from leaving or going to another place, the crime could either be kidnapping or grave coercion. The difference would depend on whether or not there is an actual confinement or lockup of the o victim. (P v Astorga, wherein the accused led the victim to another town. Victim child wanted to leave but accused did not let her.) Relate with PD 532: To be under 532, the seizure must be directed not only against specific or preconceived persons, o but against anyone. Remember, PD 532 applies to INDISCRIMINATE kidnapping, robbery, or piracy.
Art. 268. Slight illegal detention. — The penalty of reclusion temporal shall be imposed upon any private individual who shall commit the crimes described in the next preceding article without the attendance of any of circumstances enumerated therein. The same penalty shall be incurred by anyone who shall furnish the place for the perpetration of the crime. If the offender shall voluntarily release the person so kidnapped or detained within three days from the commencement of the detention, without having attained the purpose intended, and before the institution of criminal proceedings against him, the penalty shall be prision mayor in its minimum and medium periods and a fine not exceeding seven hundred pesos. •
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Elements: Offender is a private individual o Kidnaps or detains another or otherwise deprives him of liberty o Detention illegal o None of the circumstances in 267 o Day=24 hours of deprivation Escape or rescue of victim is not an exempting circumstance Voluntary release is not an exempting circumstance, only serves to reduce the penalty In 267, voluntary release does not reduce the penalty Requisites for voluntary release: o Release should have been made within 3 days from the start of the detention Release must be made before the offender has accomplished his purpose, and Must be made before criminal prosecution has been commenced Crime should only be slight illegal detention Person who furnishes place of detention is an accomplice If ransom is demanded, automatically 267.
Art. 269. Unlawful arrest. — The penalty of arresto mayor and a fine not exceeding 500 pesos shall be imposed upon any person who, in any case other than those authorized by law, or without reasonable ground therefor, shall arrest or detain another for the purpose of delivering him to the proper authorities. •
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Purpose must be made for delivering the person arrested to the proper authorities but was made without any reasonable ground therefore. Elements: That the offender arrests or detains ano ther person o That the purpose of the offender is to deliver him to the proper authorities o That the arrest or detention is not authorized by law or there is no reasonable ground therefore o Offender: private persons and o public officers other than those tasked to arrest o That’s the distinction with 124. If the offender did not turn over the arrested to the judicial authority, the crime will be kidnapping because the element of turnover of the victim to the judicial authorities is missing. Proper authorities are those authorized to arrest another and file the appropriate charges
Section Two. — Kidnapping of minors Art. 270. Kidnapping and failure to return a minor. — The penalty of reclusion perpetua shall be imposed upon any person who, being entrusted with the custody of a minor person, shall deliberately fail to restore the Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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latter to his parents or guardians. •
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Elements: That the offender is entrusted with the custody of a minor o That he deliberately fails to restore the said minor to his parents or guardians o Gravamen: deliberate failure or refusal of the custodian of the minor to restore the latter to his parents or guardians Refusal must be deliberate, premeditated, obstinate, headstrong, foolishly daring, intentnional or o malicious Does not amend Art 267 (4) because intent is different Intent here is the deliberate refusal or failure to return the minor to his parents or guardian o Different from 267 because here, the offender is entrusted with the care of the minor o Can only be committed by DOLO Can also be committed by parents if they are not vested by law for custody Example: offender tasked to bring the child to the hospital, but he refused to give the child back until he was paid or given assistance.
Art. 271. Inducing a minor to abandon his home. — The penalty of prision correccional and a fine not exceeding seven hundred pesos shall be imposed upon anyone who shall induce a minor to abandon the home of his parent or guardians or the persons entrusted with his custody. If the person committing any of the crimes covered by the two preceding articles shall be the father or the mother of the minor, the penalty shall be arresto mayor or a fine not exceeding three hundred pesos, or both. Art. 272. Slavery . — The penalty of prision mayor and a fine of not exceeding 10,000 pesos shall be imposed upon anyone who shall purchase, sell, kidnap or detain a human being for the purpose of enslaving him. If the crime be committed for the purpose of assigning the offended party to some immoral traffic, the penalty shall be imposed in its maximum period. Art. 273. Exploitation of child labor. — The penalty of prision correccional in its minimum and medium periods and a fine not exceeding 500 pesos shall be imposed upon anyone who, under the pretext of reimbursing himself of a debt incurred by an ascendant, guardian or person entrusted with the custody of a minor, shall, against the latter's will, retain him in his service. Art. 274. Services rendered under compulsion in payment of debt. — The penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon any person who, in order to require or enforce the payment of a debt, shall compel the debtor to work for him, against his will, as household servant or farm laborer.
Chapter Two CRIMES AGAINST SECURITY Section One. — Abandonment of helpless persons and exploitation of minors. Art. 275. Abandonment of person in danger and abandonment of one's own victim. — The penalty of arresto mayor shall be imposed upon: 1. Any one who shall fail to render assistance to any person whom he shall find in an uninhabited place wounded or in danger of dying, when he can render such assistance without detriment to himself, unless such omission shall constitute a more serious offense. 2. Anyone who shall fail to help or render assistance to another whom he has accidentally wounded or injured. 3. Anyone who, having found an abandoned child under seven years of age, shall fail to deliver said child to the authorities or to his family, or shall fail to take him to a safe place. •
Different kinds of abandonment: Failure to render assistance to a person f ound in an uninhabited place o Abandonment of one’s own victim in an accident o Failure to render assistance to a child below 7 years o If child is 7 years old or over, the liability of the offender will be under RA 7610 (Child Abuse Law)
Art. 276. Abandoning a minor. — The penalty of arresto mayor and a fine not exceeding 500 pesos shall be imposed upon any one who shall abandon a child under seven years of age, the custody of which is incumbent Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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upon him. When the death of the minor shall result from such abandonment, the culprit shall be punished by prision correccional in its medium and maximum periods; but if the life of the minor shall have been in danger only, the penalty shall be prision correccional in its minimum and medium periods. The provisions contained in the two preceding paragraphs shall not prevent the imposition of the penalty provided for the act committed, when the same shall constitute a more serious offense. Art. 277. Abandonment of minor by person entrusted with his custody; indifference of parents. — The penalty of arresto mayor and a fine not exceeding 500 pesos shall be imposed upon anyone who, having charge of the rearing or education of a minor, shall deliver said minor to a public institution or other persons, without the consent of the one who entrusted such child to his care or in the absence of the latter, without the consent of the proper authorities. The same penalty shall be imposed upon the parents who shall neglect their children by not giving them the education which their station in life require and financial conditions permit. Art. 278. Exploitation of minors. — The penalty of prision correccional in its minimum and medium periods and a fine not exceeding 500 pesos shall be imposed upon: 1. Any person who shall cause any boy or girl under sixteen years of age to perform any dangerous feat of balancing, physical strength, or contortion. 2. Any person who, being an acrobat, gymnast, rope-walker, diver, wild-animal tamer or circus manager or engaged in a similar calling, shall employ in exhibitions of these kinds children under sixteen years of age who are not his children or descendants. 3. Any person engaged in any of the callings enumerated in the next paragraph preceding who shall employ any descendant of his under twelve years of age in such dangerous exhibitions. 4. Any ascendant, guardian, teacher or person entrusted in any capacity with the care of a child under sixteen years of age, who shall deliver such child gratuitously to any person following any of the callings enumerated in paragraph 2 hereof, or to any habitual vagrant or beggar. If the delivery shall have been made in consideration of any price, compensation, or promise, the penalty shall in every case be imposed in its maximum period. In either case, the guardian or curator convicted shall also be removed from office as guardian or curator; and in the case of the parents of the child, they may be deprived, temporarily or perpetually, in the discretion of the court, of their parental authority. 5. Any person who shall induce any child under sixteen years of age to abandon the home of its ascendants, guardians, curators, or teachers to follow any person engaged in any of the callings mentioned in paragraph 2 hereof, or to accompany any habitual vagrant or beggar. Art. 279. Additional penalties for other offenses. — The imposition of the penalties prescribed in the preceding articles, shall not prevent the imposition upon the same person of the penalty provided for any other felonies defined and punished by this Code. Section Two. — Trespass to dwelling Art. 280. Qualified trespass to dwelling. — Any private person who shall enter the dwelling of another against the latter's will shall be punished by arresto mayor and a fine not exceeding 1,000 pesos. If the offense be committed by means of violence or intimidation, the penalty shall be prision correccional in its medium and maximum periods and a fine not exceeding 1,000 pesos. The provisions of this article 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 service to humanity or justice, nor to anyone who shall enter cafes, taverns, inn and other public houses, while the same are open. Art. 281. Other forms of trespass. — The penalty of arresto menor or a fine not exceeding 200 pesos, or both, shall be imposed upon any person who shall enter the closed premises or the fenced estate of another, while either or them are uninhabited, if the prohibition to enter be manifest and the trespasser has not secured the permission of the owner or the caretaker thereof. •
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Elements: That the offender is a private person o That he enters the dwelling of another o That such entrance is against the latter’s will o How do you determine if it’s trespass to dwelling or trespass to property? Look at the condition of the place. o As long as inhabited: trespass to dwelling o If not inhabited at time of trespass: trespass to property o Even if residential area, as long as not inhabited, trespass to property. (vacant apartment, etc)
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A store used as dwelling will not give rise to trespass to dwelling if the store is open for business. But if the portion used as dwelling is separate, entry therein will give rise to trespass to dwelling. “Against the will”: prohibition against entering Need not be express o Like whenever one enters through an opening not intended for entering o Even if occupant only a tenant, boarder or lessee, still trespass. If he enters dwelling to commit a crime, and commits such crime, no trespass to dwelling. Dwelling is treated as an AC. All depends on intention. o If intent was to kill: murder, dwelling considered AC If he entered and then decided to do a crime while he was inside: crime committed and trespass to dwelling/property (not complex ah!) When is entering not a crime? If the entrance to another’s dwelling is made for the purpose of preventing some serious harm to o himself, the occupants of the dwelling or a 3rd person If the purpose is to render some service to humanity or justice o If the place where entrance is made is a café, tavern, inn, and other public houses, while the o same are still open If café, taverns, etc are closed and entry was made, crime is trespass to property (not trespass to dwelling) If someone enters a house, what crimes may be committed? Violation of domicile o But if public officer is not authorized to serve a warrant of arrest or search warrant or to enter the place, trespass to dwelling Unjust vexation or light coercion o Theft o If purpose was to fish or harvest stuff Vagrancy o If the property is not fenced and no prohibition to enter
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Section Three. — Threats and coercion Art. 282. Grave threats. — Any person who shall threaten another with the infliction upon the person, honor or property of the latter or of his family of any wrong amounting to a crime, shall suffer: 1. The penalty next lower in degree than that prescribed by law for the crime be threatened to commit, if the offender shall have made the threat demanding money or imposing any other condition, even though not unlawful, and said offender shall have attained his purpose. If the offender shall not have attained his purpose, the penalty lower by two degrees shall be imposed. If the threat be made in writing or through a middleman, the penalty shall be imposed in its maximum period. 2. The penalty of arresto mayor and a fine not exceeding 500 pesos, if the threat shall not have been made subject to a condition. Art. 283. Light threats. — Any threat to commit a wrong not constituting a crime, made in the manner expressed in subdivision 1 of the next preceding article, shall be punished by arresto mayor. Art. 284. Bond for good behavior . — In all cases falling within the two next preceding articles, the person making the threats may also be required to give bail not to molest the person threatened, or if he shall fail to give such bail, he shall be sentenced to destierro. Art. 285. Other light threats. — The penalty of arresto menor in its minimum period or a fine not exceeding 200 pesos shall be imposed upon: 1. Any person who, without being included in the provisions of the next preceding article, shall threaten another with a weapon or draw such weapon in a quarrel, unless it be in lawful self-defense. 2. Any person who, in the heat of anger, shall orally threaten another with some harm not constituting a crime, and who by subsequent acts show that he did not persist in the idea involved in his threat, provided that the circumstances of the offense shall not bring it within the provisions of Article 282 of this Code. 3. Any person who shall orally threaten to do another any harm not constituting a felony. • •
Gravamen: existence of threat or intimidation for FUTURE harm Acts punished:
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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 thought not unlawful, and the offender attained his purpose That the offender threatens another person with the infliction upon the latter’s person, honor or property, or upon that of the latter’s family, of any wrong That such wrong amounts to a crime That there is a demand for money or that any other condition is imposed, even though not unlawful That the offender attains his purpose By making such threat without the offender attaining his purpose o By threatening another with the infliction upon his person, honor or property or that of his family o of any wrong amounting to a crime, the threat not being subject to a condition That the offender threatens another person with the infliction upon the latter’s person, honor, or property, or upon the latter’s family, of any wrong That such wrong amounts to a crime That the threat is not subject to a condition Grave threats are those made with deliberate purpose of creating in the mind of the victim a belief that the threat will be carried out. Intimidation here is conditional, and not necessarily personal. It may be coursed through an intermediary. If there’s no condition, the threat must be serious and deliberate. o If grave threats used to intimidate in order to commit another crime, said threats are absorbed. Like threatening a girl in order to rape her, the grave threats are abzzorbed in rape o Relate nga to 312! Sige nga! Relate mo nga! o Grave threats compared to robbery/extortion Grave threats: used to obtain a certain end or goal in the future o Robbery with extortion: used to get property on the spot o Remember Fortuno v People (silent policeman who got watch of two people)? That was robbery/extortion. Number of counts of grave threats depends on the number of people threatened So if accused threatens two people, he is guilty of two counts of grave threats o o
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Art. 286. Grave coercions. — The penalty of arresto mayor and a fine not exceeding 500 pesos shall be imposed upon any person who, without authority of law, shall, by means of violence, prevent another from doing something not prohibited by law, or compel him to do something against his will, whether it be right or wrong. If the coercion be committed for the purpose of compelling another to perform any religious act or to prevent him from so doing, the penalty next higher in degree shall be imposed. •
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Elements: That a person prevented another from doing something not prohibited by law, or that he o compelled him to do something against his will, be it right or wrong That the prevention or compulsion be effected by violence, threats or intimidation o That the person that restrained the will and liberty of another had not the authority of law or the o right to do so, or, in other words, that the restraint shall not be made under authority of law or in the exercise of lawful right If it is compulsion, even if the offender has the right to compel the doing of the act, there could o be coercion. (Lee v CA) Two kinds of grave coercion: Preventive: offender uses violence or intimidation to prevent the victim from doing what he o wants to do Act prevented is NOT prohibited by law. (P-NOT) If the act prevented is prohibited by law, there is no grave coercion, but some other crimes may be committed (PI or unjust vexation). Compulsive: offender uses violence or intimidation to do what he does not want to do o Act compelled may or may not be prohibited by law If the act compelled is prohibited by law, grave coercion is still committed. Whether act is prohibited or not is immaterial. o •
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Coercion may NOT be in writing since it must be direct, immediate and personal. Only threats can be in writing since threat is inherently future and conditional. o Coercion Threat Threatened harm is immediate, personal Threatened harm is future and and direct conditional Cannot be done by intermediary or in May be done through an intermediary or writing in writing Committed by violence, although it may Committed by means of intimidation be brought about also by intimidation if which is future and conditional serious enough, direct, immediate, and personal. Threat is not future and conditional. Coercion Serious Illegal Detention No intent to deprive another of his liberty Intimidation and deprivation of liberty What different crimes can arise from intimidation? Robbery, if the intimidation is immediate but conditional coupled with demand for money or any o consideration Threat, if it is future or conditional o Coercion, if it is direct, immediate, and personal or serious enough like threatening with a gun o Disturbance or prevention of peaceful meeting, if used to prevent people from seeking grievance o or peacefully assembling Usurpation of real rights over real property, if threatened owner of property with the intent to o take the real property away from him Forcible abduction, if there is lewd design o Man went up to another and pointed a weapon to him and told him to give him his wallet. Guy didn’t have a wallet. What crime? Grave coercion.
Art. 287. Light coercions. — Any person who, by means of violence, shall seize anything belonging to his debtor for the purpose of applying the same to the payment of the debt, shall suffer the penalty of arresto mayor in its minimum period and a fine equivalent to the value of the thing, but in no case less than 75 pesos. Any other coercions or unjust vexations shall be punished by arresto menor or a fine ranging from 5 pesos to 200 pesos, or both. • •
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Crime of dolo. Elements: That the offender must be a creditor o That he seizes anything belonging to his debtor o That the seizure of the thing be accomplished by means of violence or a display of material force o producing intimidation That the purpose of the offender is to apply the same to the payment of the debt o Seizure of the property of a debtor may amount to: Light coercion, if by means of violence, the property is applied to the debt. o Robbery, if the value of the property seized is greater than that of the debt and violence or o intimidation is employed. Estafa, if there is no obligation on the part of the offended but was only feigned. Deceit o employed. Unjust vexation is a form of light coercion. It is any form of annoyance of another person. Crime against personal security and not against property. o Malicious mischief is a crime against property. The unjust vexation must not amount to dishonor of another, otherwise, the crime is slander by o deed. Other light coercions and unjust vexation includes human conduct which, while not leading to physical harm or without use of force or intimidation, is annoying, irritating or disturbing to the victim. Unjust vexation or acts of lasciviousness may be deemed preparatory acts for rape. Big J kisses his crush in public, what are the possible crimes for this public display of unwanted affection? Unjust vexation if the purpose is to annoy his crush o
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Acts of lasciviousness if with lewd intent Slander by deed if the purpose is to humiliate the victim
Art. 288. Other similar coercions; (Compulsory purchase of merchandise and payment of wages by means of tokens.) — The penalty of arresto mayor or a fine ranging from 200 to 500 pesos, or both, shall be imposed upon any person, agent or officer, of any association or corporation who shall force or compel, directly or indirectly, or shall knowingly permit any laborer or employee employed by him or by such firm or corporation to be forced or compelled, to purchase merchandise or commodities of any kind. The same penalties shall be imposed upon any person who shall pay the wages due a laborer or employee employed by him, by means of tokens or objects other than the legal tender currency of the laborer or employee. Art. 289. Formation, maintenance and prohibition of combination of capital or labor through violence or threats. — The penalty of arresto mayor and a fine not exceeding 300 pesos shall be imposed upon any person who, for the purpose of organizing, maintaining or preventing coalitions or capital or labor, strike of laborers or lock-out of employees, shall employ violence or threats in such a degree as to compel or force the laborers or employers in the free and legal exercise of their industry or work, if the act shall not constitute a more serious offense in accordance with the provisions of this Code. Chapter Three DISCOVERY AND REVELATION OF SECRETS Art. 290. Discovering secrets through seizure of correspondence. — The penalty of prision correccional in its minimum and medium periods and a fine not exceeding 500 pesos shall be imposed upon any private individual who in order to discover the secrets of another, shall seize his papers or letters and reveal the contents thereof. If the offender shall not reveal such secrets, the penalty shall be arresto mayor and a fine not exceeding 500 pesos. The provision shall not be applicable to parents, guardians, or persons entrusted with the custody of minors with respect to the papers or letters of the children or minors placed under their care or study, nor to spouses with respect to the papers or letters of either of them. Art. 291. Revealing secrets with abuse of office. — The penalty of arresto mayor and a fine not exceeding 500 pesos shall be imposed upon any manager, employee, or servant who, in such capacity, shall learn the secrets of his principal or master and shall reveal such secrets. Art. 292. Revelation of industrial secrets. — The penalty of prision correccional in its minimum and medium periods and a fine not exceeding 500 pesos shall be imposed upon the person in charge, employee or workman of any manufacturing or industrial establishment who, to the prejudice of the owner thereof, shall reveal the secrets of the industry of the latter. •
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Elements: That offender is a person in charge, employee or workman of a manufacturing or industrial o establishment That the manufacturing or industrial establishment has a secret of the industry which the o offender has learned The offender reveals such secrets o That prejudice is caused to the owner o Includes revelation of trade secrets: A trade secret is defined as a plan or process, tool, mechanism or compound known only to its o owner and those of his employees to whom it is necessary to confide it Extends to a secret formula or process not patented, but known only to certain individuals using it in compounding some article of trade having a commercial value. A trade secret may consist of any formula, pattern, device, or compilation of information that: (1) is used in one's business; and (2) gives the employer an opportunity to obtain an advantage over competitors who do not possess the information. Generally, a trade secret is a process or device intended for continuous use in the operation of the business, for example, a machine or formula, but can be a price list or catalogue or specialized customer list. (Air Phil v Pennswell)
Title Ten CRIMES AGAINST PROPERTY
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Chapter One ROBBERY IN GENERAL Art. 293. Who are guilty of robbery. — Any person who, with intent to gain, shall take any personal property belonging to another, by means of violence or intimidation of any person, or using force upon anything shall be guilty of robbery. •
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Robbery and theft are analogous crimes involving taking with intent to gain of personal property. Hence, for the basic points of Art 293 (like taking, intent to gain, when consummated), keep in o mind that this apply to Theft as well. It is robbery if committed: With violence against or intimidation upon person; or o With force upon things. o Absent these two, it is theft. Note: robbery if there are acts of violence or intimidation before asportation, to enable the person to take the property. If violence/intimidation done after possession was taken, only liable for theft, grave coercion, or o physical injuries as the case may be. (theft for stealing, then another crime of PI if thief hurts the victim after) EXCEPT: in robbery with homicide and robbery with rape (will be discussed later) Asportation is the taking of personal property out of the possession of the owner, without his privity and consent and without animus revertendi . (essence of robbery/theft) It is present once the property is in fact taken from the owner. o The element of taking or asportation is completed once the property is in fact taken from the o owner, even for just an instant. Taking need not be permanent. Even brief possession consummates the crime. The subsequent disposition of the property taken, or the failure to dispose of the same, is of no o moment. Hence, a person can still be held guilty of theft/robbery even if the ting stolen is not offered in evidence. It can be destroyed for all we know. As long as the corpus delicti is proved (the unlawful taking of the personal property), one can be guilty. (P v de Jesus) In robbery or theft, once the offender takes complete control of the property, the crime is consummated. There is complete control when the offender ahs acquired and substituted his will over the o property. It is not necessary that the offender has taken away the property or used the same. o NO FRUSTRATED THEFT/ROBBERY. o What can be stolen? What does personal p roperty include? Does it include services? Yes! In Laurel v Judge Abrogar, accused placed overseas call to Japan, connected through o Philippines (ex. PLDT). The accused set up a corporation and put implements on the underground cables to divert the call, so they wouldn’t pass through the PLDT, and instead pass through the corporation. What is taken here are services provided by PLDT. The deprivation is for services to collect cost o of calls. What else can be stolen? As long as personal property (Not included in the enumeration of real properties) and capable of o appropriation Includes electricity, phone services, cell phone load, commercial documents like promissory o notes, Can drugs be subject to theft/robbery? o Before the DDA, yes. J-Call: Even with the DDA, it’s still possible to be subject of theft. In that case, the thief/robber will be guilty of possession of drugs under DDA and theft/robbery. Can property already stolen be stolen too? o Yes. Does the offender need to use his hands for the taking? No. it can be done using mechanical devices (like in Laurel) or access devise cards (credit cards) o •
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or the diversion of overseas calls, etc. It can even be done using jumper cables in the theft of electricity. Usually done by placing a o jumper between the meters of the consumer and the place where the electricity is to be diverted. That’s theft, boys. Can an owner of the property be liable for theft or robbery? Yes, if the property is in the custody of a bailee. o Can a non-owner be the victim of theft or robbery? Yes. Not necessary that the person divested be the owner of the property. o Actual possession of the property by the person dispossessed thereof suffices. Intent to gain is presumed from taking another person’s property without consent. Not necessary that offender actually gains from the taking, because mere intent to gain is o enough. That’s why a momentary taking already consummates the crime. What is love? Baby don’t hurt me, don’t hurt me, no more. What is gain? Not limited to just pecuniary benefit, but also utility, satisfaction, enjoyment, and pleasure. o Even mere use of property taken is already “gain” under the law. o Ex: Gasoline boy took a parked car and went on a joy ride. He claimed that he did not intend to take it. But here, there was gain because there was enjoyment, utility, satisfaction, and pleasure. Stealing something to conceal a crime is theft/robbery. “Gain” rebutted by evidence that he took property because he claims to be the owner of the o property. The person is exempt from theft or robbery, even if it turned out not to be his. If the claim is made in BF, then it is theft or robbery. If claim made in GF, it is just coercion. Intimidation is unlawful coercion, duress, or putting the owner/possessor in fear Attempt to take property of another with threats of bodily harm o No requirement of material violence – it is NOT indispensable for there to be intimidation o Is snatching theft or robbery? Depends if there was violence or intimidation involved. o Presumption: One in possession of recently stolen property is presumed to be the author of the crime of theft/robbery. (Mabunga v. P) How recent is recent? – case-to-case. Possession may be actual or constructive. The property may be in the actual physical control of o the offender or in the possession of another, but under the control of the offender. Ex. I stole something but pinatago ko sa kaibigan ko Accused must not be able to explain his possess satisfactorily o
Art. 294. Robbery with violence against or intimidation of persons - Penalties. - Any person guilty of robbery with the use of violence against or intimidation of any person shall suffer: 1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the crime of homicide shall have been committed, or when the robbery shall have been accompanied by rape or intentional mutilation or arson. 2. The penalty of reclusion temporal in its medium period to reclusion perpetua, when or if by reason or on occasion of such robbery, any of the physical injuries penalized in subdivision I of Article 263 shall have been inflicted. 3. The penalty of reclusion temporal, when by reason or on occasion of the robbery, any of the physical injuries penalized in subdivision 2 of the article mentioned in the next preceding paragraph, shall have been inflicted. 4. The penalty of prision mayor in its maximum period to reclusion temporal in its medium period, if the violence or intimidation employed in the commission of the robbery shall have been carried to a degree clearly unnecessary for the commission of the crime, or when in the course of its execution, the offender shall have inflicted upon any person not responsible for its commission any of the physical injuries covered by subdivisions 3 and 4 of said Article 263. 5. The penalty of prision correccional in its maximum period to prision mayor in its medium period in other cases. •
Acts punished: Robbery with homicide o Robbery with rape o Robbery with intentional mutilation (because of RA 7659) o
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Robbery with arson Robbery with physical injuries under o Art 263 (1) Art 263 (2) Art 263 (3-4) Robbery in other cases or simple robbery where the violence against or intimidation of persons o cannot be subsumed by or where it is not sufficiently specified so as to fall under the first four paragraphs First 5 are special complex crimes (not Art 48 complex). Fifth is just considered as robbery. The above order should be observed. o If both homicide and rape/arson are present, crime is robbery with homicide. The rape is NOT aggravating. No such thing as robbery with homicide and rape/arson Important: As long as there is homicide, it is ALWAYS just robbery with homicide. If no homicide, but there was rape and arson, should be robbery with rape (arson absorbed) If robbery accompanied by intentional mutilation and then arson? Robbery with intentional mutilation (arson absorbed). [J-Call] If robbery accompanied by arson and then intentional mutilation? Robbery with arson (IM absorbed). [J-Call] Important: All elements MUST be consummated. If not, Art 48 or separate crimes will be o considered. Art 48: robber tried to kill victim to get watch. Watch stolen but victim survived. Robbery complexed with attempted homicide. Separate crimes: robber tried to kill victim. And as victim was lying conscious, decided to steal the watch. Robbery and attempted homicide. Primordial consideration: there must be an INTENT TO ROB, even if it’s not the sole motive of o the accused Robbery with homicide As long as there was an intent to rob and someone dies, it’s robbery with homicide. o “Homicide” is used in its generic term. o There is no robbery with infanticide, parricide, murder. Absorbs physical injuries committed together with homicide on the occasion or by reason of the robbery. Important: Extra killings are NOT aggravating. It’s just robbery with homicide. o There is no robbery with multiple homicide. Homicide can be done by reason or on the occasion of the robbery. o What do you mean “by reason… of the robbery”? o The homicide/other constituent crime was not committed in the course of robbery, or shortly thereafter, but there is a LEGAL connection, intimate relation in the commission of robbery It doesn’t matter if the killing happens before, during, or after Killing the victim to prevent the person from reporting to the authorities Killed noisy neighbor who shouted “magnanakaw!” A group of robbers were robbing in Makati. One of the robbers was shot. There was a chase all the way to Laguna, where a shoot out happened. Another robber got shot by the police. SC said robbery with homicide EVEN IF the shoot out happened in some other place, it was intimately connected to the robbery. Also, it does not matter that it was a robber that got killed. Who must be killed? o It doesn’t matter. It can be the robber, the victim, a bystander, or a policeman. If policeman was killed, the robber is liable for robbery with homicide (Direct Assault is ABSORBED by robbery with homicide) Who must the killer be? o It doesn’t matter either. For example, police came to help, and the police shot the robber, but killed the victim. Police not liable because doing his duty o
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Robbery still liable for robbery with homicide. Must intent to gain be the sole purpose in order that robbery with homicide can be appreciated? o No. There can be another motive (like revenge). As long as there is intent to rob, even if there are other motives, it is robbery with homicide. (People v Alberca) See: P v Tidong - X is employee of Juan, who fired him. X seeks to recover unpaid wages; Juan refused. X said “kung di mo ako bayaran, sasaksakin ko anak niyo.” X got the money, then killed the child. SC said Robbery with homicide, because there was intent to rob. J-Call does not agree because the wages are his in the first place. o If homicide is committed by one robber, ALL of them are liable for robbery with homicide. o Any crime committed by the conspirator incidental to the execution of the common design is included in the crime. Even look-out is a PDP under conspiracy rules. EXCEPT: when one of the robbers overtly attempts to prevent the killing. Even if UNSUCCESFUL in his attempt, he is still just liable for robbery. Applies also to robbery with rape, physical injuries, etc Is there theft with homicide? No, silly! o Is there a crime of robbery with force upon things complex with robbery with homicide/rape? No. o It’s absorbed by the special complex crimes. Dwelling can be appreciated in robbery with homicide, since it’s inherent only in robbery in an o inhabited house. What if there’s treachery, can it be used as a generic aggravating circumstance? o Yes. It becomes robbery with homicide, with the generic AC of treachery. (P v Escote) 68 Robbery with rape AS LONG AS THE ORIGINAL intent is to rob o Even if the rape was committed even before asportation o The intention to rob must precede the rape, even if the actual robbery comes after. o Thus, if the accused raped the victim and just he took the jewelry as a memento, there are two crimes of theft and rape (since intimidation/force pertained to the rape, not to the taking) But if intent to rape, raped the girl, then as an afterthought punched the girl to get her watch, then two crimes of robbery and rape. Sexual assault is absorbed by robbery with rape. o In P v Suyo, accused robbed the victim, raped her twice, then inserted his finger in her vagina. SC said robbery with rape. Second rape and insertion of the finger are abzzzzorbed! Sexual assault (fingering!) absorbed. (Will be asked in the exam) Even if there are multiple rapes, it is just robbery with rape. o Extra rapes NOT aggravating or separate. Compare with forcible abduction with rape. (extra rapes considered separate crimes) Even if each of the accused raped the victim, there is only one crime of robbery with rape. No robbery with multiple rapes. GR: even if rape is in a place other than the situs of the taking, it’s still considered robbery with o rape (J-Call) Except: In P v Angeles, where three robbers took victim of robbery in a taxi, went to Quiapo. One robber made the other two go down, then he took the woman to a motel. SC said all of them were guilty of robbery. The other one is also liable for rape, separately. If the place of the rape is far from the situs of the robbery, there are TWO crimes, but not robbery with rape. (Will be asked in the exam) No crime of attempted robbery with rape. o Robbery and rape must BOTH be consummated. (Compare to robbery with homicide •
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In fine, in the application of treachery as a generic aggravating circumstance to robbery with homicide, the law looks at the constituent crime of homicide which is a crime against persons and not at the constituent crime of robbery which is a crime against property . Treachery is applied to the constituent crime of “homicide” and not to the constituent crime of “robbery” of the special complex crime of robbery with homicide. The crime of robbery with homicide does not lose its classification as a crime against property or as a special complex and single and indivisible crime simply because treachery is appreciated as a generic aggravating circumstance. Treachery merely increases the penalty for the crime conformably with Article 63 of the Revised Penal Code absent any generic mitigating circumstance. Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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which has attempted robbery with homicide (297)) Robbery with intentional mutilation Both must be consummated o There must be an intent to mutilate, for if mutilation merely resulted as a consequence of the o injury inflicted, the crime would be robbery with SPI. Robbery with arson There must be violence and intimidation upon persons first, and thereafter, the premises are o burned, and there is no killing, rape, or mutilation. If robbery with force upon things and then house burned down to cover, two crimes are o committed: Robbery Arson Not robbery with arson because that special complex crime only applies to robbery with violence and intimidation, not robbery with force upon things Robbery with SPI Must be serious o In par 4, the SPI covered by Art 263 (3 and 4) must be inflicted when robbery was not yet o consummated. (note “in the course of its execution”) If inflicted after the robbery was consummated, two separate crimes: Art 294 (5) simple robbery SPI If what was inflicted is less serious or slight PI, absorbed by simple robbery. o GR: doesn’t matter who gets killed or injured, right? o EX: par 4 because law says injuries should be inflicted while robbery is not yet consummated and on the persons not responsible for the crime. So if robber gets injured under Par 4, no robbery with PI Boado mind benders: Bad man raped then killed the girl. Then decided to rob the place. o Rape with homicide Robbery Evil person raped, then killed the girl, and took her jewelry and her cellphone. o Rape with homicide Theft (since a dead person can no longer be intimidated; taking was an afterthought) Wicked human robbed, raped, then killed the girl. o Robbery with homicide (rape absorbed) Awful imp raped, robbed then killed her. o Robbery with homicide (rape absorbed. Unless force or violence was no longer applied to perform the taking as the victim is no longer capable of resistance then rape with homicide and theft) Zombie eats brains. o Yummeh. •
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Art. 295. Robbery with physical injuries, committed in an uninhabited place and by a band, or with the use of firearm on a street, road or alley. — If the offenses mentioned in subdivisions three, four, and five of the next preceding article shall have been committed in an uninhabited place or by a band, or by attacking a moving train, street car, motor vehicle or airship, or by entering the passenger's compartments in a train or, in any manner, taking the passengers thereof by surprise in the respective conveyances, or on a street, road, highway, or alley, and the intimidation is made with the use of a firearm, the offender shall be punished by the maximum period of the proper penalties. In the same cases, the penalty next higher in degree shall be imposed upon the leader of the band. Art. 296. Definition of a band and penalty incurred by the members thereof. — When more than three armed malefactors take part in the commission of a robbery, it shall be deemed to have been committed by a band. When any of the arms used in the commission of the offense be an unlicensed firearm, the penalty to be imposed upon all the malefactors shall be the maximum of the corresponding penalty provided by law, without prejudice of the criminal liability for illegal possession of such unlicensed firearms. Any member of a band who is present at the commission of a robbery by the band, shall be punished as principal of any of the assaults committed by the band, unless it be shown that he attempted to prevent the same. Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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Robbery qualified when committed in an uninhabited place, or o by a band, or o by attacking a moving train, street car, motor vehicle or airship, or o by entering passengers’ compartments in a train, or in any manner taking the passengers o thereof by surprise in the respective conveyances on a street, road, highway, or alley, and the intimidation is made with the use of firearms o Qualifying circumstances here only apply to robbery with physical injuries under Par 3, 4, and 5 of Art 294. Qualifying so it can’t be offset by generic mitigating. Hence, not qualifying circumstance under robbery with homicide, rape, intentional mutilation, o arson and lesiones gaves resulting in insanity, imbecility, impotency or blindness. In those cases, the qualifying circumstances (like by a band) would only be a generic aggravating circumstance which can be offset b y generic mitigating circumstances. Band: more than 3 armed malefactors If a member of the band prevents or tries to prevent the robbery, he is not liable for robbery, o even if he is not successful. Uninhabited “place” should actually read uninhabited “house” (P v Jaranilla) Art 296 provides that if any of the firearms used is unlicensed, the penalty is the maximum period. This has been amended by RA 8294. The unlicensed firearm then will NOT increase the penalty o to its maximum period anymore. Not aggravating. Relate to PD 532 (Highway Piracy, etc) In PD 532, there must be evidence of indiscriminate robbery. (no specific victims in mind) (P v o Puno) But see the stray case of P v San Juan, where robber accosted a girl, poked her with a gun, took her money, and then left. Afterwards, he came back to steal more of her stuff. He also poked her again – this time not with his gun, but with his penis, i.e. rape. SC said PD 532 for the first incident and then robbery with rape for the 2 nd incident. J-Call: PD 532 should not apply. No indiscriminate robbery in the first instance – should just be robbery. For the second instance, PD 532 can apply but there’s need for evidence. •
Art. 297. Attempted and frustrated robbery committed under certain circumstances. — When by reason or on occasion of an attempted or frustrated robbery a homicide is committed, the person guilty of such offenses shall be punished by reclusion temporal in its maximum period to reclusion perpetua, unless the homicide committed shall deserve a higher penalty under the provisions of this Code. • •
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No more frustrated robbery. Homicide must be consummated. J-Call says that homicide is used in its generic form. o Boado, however, says no. If it’s murder, parricide or infanticide, must consider it as separate o crimes because of the phrase “unless the homicide committed shall deserve a higher penalty under the provisions of this Code.” Follow J-Call for the exam. Who should the killer be? Must be one of the robbers. (unlike Art 294) o Art 297 says “the person guilty of such offenses” o The deceased, however, can be anyone. P v dela Cruz: accused barged into the house, demand money but the people refused, so he shot people death and others sustained PI. SC: attempted robbery with double homicide and slight physical injuries. J-Call does not agree. Should be attempted robbery with homicide only. But he said to follow the o SC. P v Dagundung: accused entered the property, killed victim but did not find any property there. Not frustrated robbery but attempted robbery – wala naman nakuha eh.
Art. 298. Execution of deeds by means of violence or intimidation. — Any person who, with intent to defraud another, by means of violence or intimidation, shall compel him to sign, execute or deliver any public instrument or documents, shall be held guilty of robbery and punished by the penalties respectively
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Covers public documents only. (J-Call said private documents included but codal says public instrument or document) Elements: That the offender has intent to defraud another o That the offender compels him to sign, execute, or deliver any public instrument or document o That the compulsion is by means of violence or intimidation o If document is void, is it still robbery since he won’t lose anything? No more, it’s grave coercion. But if he inflicts PI, still governed by Art 298 in relation to Art 294 (3-5). o If victim dies, still governed by Art 298 in relation with 294 (1). o Difference with estafa: estafa is done by deceit and to defraud another. Difference with usurpation of real rights: usurpation of real rights treats of actually taking possession of real property; here, it specifically deals with the mode of defrauding another by making the victim sign, execute or deliver
Section Two. — Robbery by the use of force upon things Art. 299. Robbery in an inhabited house or public building or edifice devoted to worship. — Any armed person who shall commit robbery in an inhabited house or public building or edifice devoted to religious worship, shall be punished by reclusion temporal, if the value of the property taken shall exceed 250 pesos, and if: (a) The malefactors shall enter the house or building in which the robbery was committed, by any of the following means: 1. Through a opening not intended for entrance or egress. 2. By breaking any wall, roof, or floor or breaking any door or window. 3. By using false keys, picklocks or similar tools. 4. By using any fictitious name or pretending the exercise of public authority. Or if — (b) The robbery be committed under any of the following circumstances: 1. By the breaking of doors, wardrobes, chests, or any other kind of locked or sealed furniture or receptacle; 2. By taking such furniture or objects to be broken or forced open outside the place of the robbery. When the offenders do not carry arms, and the value of the property taken exceeds 250 pesos, the penalty next lower in degree shall be imposed. The same rule shall be applied when the offenders are armed, but the value of the property taken does not exceed 250 pesos. When said offenders do not carry arms and the value of the property taken does not exceed 250 pesos, they shall suffer the penalty prescribed in the two next preceding paragraphs, in its minimum period. If the robbery be committed in one of the dependencies of an inhabited house, public building, or building dedicated to religious worship, the penalties next lower in degree than those prescribed in this article shall be imposed. •
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Elements of (a): That the offender entered (a) an inhabited house, or (b) public building, or (c) edifice devoted to o religious worship That the entrance was effected by any of the following means: o Thru an opening not intended for entrance or egress, or By breaking any wall, roof, or floor or breaking any door or window, or By using false keys, picklocks, or similar tools, or By using fictitious name or pretending the exercise of public authority That once inside the building, the offender took personal property belonging to another with intent to gain Elements of (b): That offender is inside a dwelling house, public building, or edifice devoted to religious worship, o regardless of the circumstances under which he entered it ; That the offender takes personal property belonging to another, with intent to gain, under any of o the following circumstances: by the breaking of doors, wardrobes, chests, or any other kind of locked or sealed furniture or receptacle by taking such furniture or objects away to be broken or forced open outside the place of the robbery
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Boado clears the whole mess up. Three ways of committing robbery under this Article. Offenders entered the premises where personal property were taken and in entering the same, o they used constructive force (like entering through an opening not intended for ingress/egress, use of fake name) or actual force (like breaking down walls, roofs) Basis: mode of entering Whole body must be inside! If guy breaks a window and slips his arm inside to steal an iPhone on the table, only theft. Entered without force but while inside, he broke stuff to extract personal property. Inside, actual o force is required, not constructive. Hence, if picklocks and similar tools were used inside the house, theft only. Use of such tools will be robbery only if used to enter the premises. Brought of the premises locked or sealed receptacles for the purpose of breaking them outside. o The mere bringing out of the furniture consummates the robbery since force will necessarily be employed to open it. Outside of these three situations, there will only be theft. These will apply when the place robbed is an: Inhabited house Public building Edifice devoted to worship (IPE) If not any of those buildings, go for Art 302. The circumstances there are o the same except there is no simulation of authority or use of fictitious name. If entry under Art 302 was effected through simulation of public authority, the crime is theft only. (dude entering a warehouse to get goods by pretending he was a customs official) Picklocks and fake keys include using the master key. 69 In the use of a fake name, do you apply Art 48 in relation to Art 178? No. It’s already an element powz . Using the fake name must have been the necessary means to enter the premises. Use thereof o inside the premises will not elevate theft into robbery. What if your sibling breaks your cabinet to steal your diary, what crime is committed? Robbery with force upon things, not qualified theft because what qualifies the taking is the force o upon things. Robbery is committed not only by strangers but also by household members. o Distinction is significant because of Art 332 which only covers theft and not robbery. When the taker is a domestic servant, the crime is qualified theft unless the taking is o characterized by violence under 299 (b), in which case, it shall be robbery with force upon things. • •
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Art. 300. Robbery in an uninhabited place and by a band. — The robbery mentioned in the next preceding article, if committed in an uninhabited place and by a band, shall be punished by the maximum period of the penalty provided therefor. •
Note the use of “and” so uninhabited place AND by a band should concur. (Different with robbery with violence and intimidation)
Art. 301. What is an inhabited house, public building or building dedicated to religious worship and their dependencies. — Inhabited house means any shelter, ship or vessel constituting the dwelling of one or more persons, even though the inhabitants thereof shall temporarily be absent therefrom when the robbery is committed. All interior courts, corrals, waterhouses, granaries, barns, coach-houses, stables or other departments or inclosed places contiguous to the building or edifice, having an interior entrance connected therewith, and which form part of the whole, shall be deemed dependencies of an inhabited house, public building or building dedicated to religious worship. Orchards and other lands used for cultivation or production are not included in the terms of the next preceding paragraph, even if closed, contiguous to the building and having direct connection therewith. The term "public building" includes every building owned by the Government or belonging to a private person not included used or rented by the Government, although temporarily unoccupied by the same. 69
On the Master Lock! WWE reference right there.
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Inhabited House – any shelter, ship or vessel constituting the dwelling or one or more persons even though the inhabitants thereof are temporarily absent there from when the robbery is committed Dependencies – are all interior courts, corrals, warehouses, granaries or enclosed places contiguous to the building or edifice, having an interior entrance connected therewith, and which form part of the whole Not Included as Dependencies – orchards or other lands used for cultivation or production are not included in the terms of the next preceding paragraph, even if closed, contiguous to the building, and having direct connection therewith Public Building – every building owned by the government or belonging to a private person but used or rented by the government, although temporarily unoccupied by the same
Art. 302. Robbery is an uninhabited place or in a private building. — Any robbery committed in an uninhabited place or in a building other than those mentioned in the first paragraph of Article 299, if the value of the property taken exceeds 250 pesos, shall be punished by prision correccional if any of the following circumstances is present: 1. If the entrance has been effected through any opening not intended for entrance or egress. 2. If any wall, roof, flour or outside door or window has been broken. 3. If the entrance has been effected through the use of false keys, picklocks or other similar tools. 4. If any dorm, wardrobe, chest or by sealed or closed furniture or receptacle has been broken. 5. If any closed or sealed receptacle, as mentioned in the preceding paragraph, has been removed even if the same to broken open elsewhere. When the value of the property takes does not exceed 250 pesos, the penalty next lower in degree shall be imposed. In the cases specified in Articles 294, 295, 297, 299, 300, and 302 of this Code, when the property taken is mail matter or large cattle, the offender shall suffer the penalties next higher in degree than those provided in said articles. • •
Same circumstances as Art 299 EXCEPT use of fictitious name or simulation of authority Uninhabited place should be read to be uninhabited house
Art. 303. Robbery of cereals, fruits, or firewood in an uninhabited place or private building. — In the cases enumerated in Articles 299 and 302, when the robbery consists in the taking of cereals, fruits, or firewood, the culprit shall suffer the penalty next lower in degree than that prescribed in said articles. Art. 304. Possession of picklocks or similar tools. — Any person who shall without lawful cause have in his possession picklocks or similar tools especially adopted to the commission of the crime of robbery, shall be punished by arresto mayor in its maximum period to prision correccional in its minimum period. The same penalty shall be imposed upon any person who shall make such tools. If the offender be a locksmith, he shall suffer the penalty of prision correccional in its medium and maximum periods. Art. 305. False keys. — The term "false keys" shall be deemed to include: 1. The tools mentioned in the next preceding articles. 2. Genuine keys stolen from the owner. 3. Any keys other than those intended by the owner for use in the lock forcibly opened by the offender.
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306 – 307 These articles have been amended by PD 532. In PD 532, the number of robbers is no longer essential, as long as the robberies are done in an indiscriminate manner. The accused are organized specifically for the purpose of committing robbery indiscriminately. o Indiscriminate means that the victim is not predetermined and that the malefactors have been o habitually engaged in depredation of innocent inhabitants who travel from place to place. If purpose is only a particular robbery, crime is only robbery or robbery in band (if 4 or more o armed participants). See notes on piracy for more on PD 532. o
Chapter Three THEFT Art. 308. Who are liable for theft. — Theft is committed by any person who, with intent to gain but without violence against or intimidation of persons nor force upon things, shall take personal property of another Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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without the latter's consent. Theft is likewise committed by: 1. Any person who, having found lost property, shall fail to deliver the same to the local authorities or to its owner; 2. Any person who, after having maliciously damaged the property of another, shall remove or make use of the fruits or object of the damage caused by him; and 3. Any person who shall enter an inclosed estate or a field where trespass is forbidden or which belongs to another and without the consent of its owner, shall hunt or fish upon the same or shall gather cereals, or other forest or farm products. Art. 309. Penalties. — Any person guilty of theft shall be punished by: 1. The penalty of prision mayor in its minimum and medium periods, if the value of the thing stolen is more than 12,000 pesos but does not exceed 22,000 pesos, but if the value of the thing stolen exceeds the latter amount the penalty shall be the maximum period of the one prescribed in this paragraph, and one year for each additional ten thousand pesos, but the total of the penalty which may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be. 2. The penalty of prision correccional in its medium and maximum periods, if the value of the thing stolen is more than 6,000 pesos but does not exceed 12,000 pesos. 3. The penalty of prision correccional in its minimum and medium periods, if the value of the property stolen is more than 200 pesos but does not exceed 6,000 pesos. 4. Arresto mayor in its medium period to prision correccional in its minimum period, if the value of the property stolen is over 50 pesos but does not exceed 200 pesos. 5. Arresto mayor to its full extent, if such value is over 5 pesos but does not exceed 50 pesos. 6. Arresto mayor in its minimum and medium periods, if such value does not exceed 5 pesos. 7. Arresto menor or a fine not exceeding 200 pesos, if the theft is committed under the circumstances enumerated in paragraph 3 of the next preceding article and the value of the thing stolen does not exceed 5 pesos. If such value exceeds said amount, the provision of any of the five preceding subdivisions shall be made applicable. 8. Arresto menor in its minimum period or a fine not exceeding 50 pesos, when the value of the thing stolen is not over 5 pesos, and the offender shall have acted under the impulse of hunger, poverty, or the difficulty of earning a livelihood for the support of himself or his family. •
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Elements: That there be taking of personal property o That the said property belongs to another o That the taking be done with intent to gain (animus lucrandi ) o That the taking be done without the consent of the owner o That the taking be accomplished without the use of violence against or intimidation of persons or o force upon things GR: there must be no violence or intimidation or force upon things in theft. EXC: when the violence committed was not for the purpose of taking the thing. o Like when a person was killed first, then as an afterthought the criminal took the property. (But isn’t the guy dead already? Yes, but the items should have gone to his heirs so it’s still tehft) separate crimes of homicide and theft If a lady is sashaying her way down the mall and the accused grabs her, hurts her and steals her watch, it’s robbery. There’s violence. Modes to commit theft: Taking another person’s property without his consent o Finding lost property and not returning it to the owner or the local authorities o Only by dolo. There must be deliberate refusal to return or deliver to authorities. Generic term: includes misplacing stuff, even when the thief loses the stolen goods Returning the property will negate any intent to gain. Property must have an owner or claimant. No theft if res nullius. Maliciously damaging the property of another and then removing or making use of the fruits or o objects of the damage caused by him Entering an enclosed estate or a field where trespass is forbidden, or without the consent of the o owner, and then hunting, fishing or gathering. Read Art 293 (Robbery) for stuff on intent to gain, gain, taking, when consummated, presumption of theft, what can be taken (gas, electricity, promissory notes, etc). Man steals bread to give to his hungry daughter. SC: Sorry, it’s theft.
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Man steals a gun to conceal a crime. SC: Theft. Relate with estafa In theft: only material or physical possession (de facto possession) is given to the transferee o who takes it In estafa: both material and juridical possession is given to the transferee who takes it o Juridical possession gives the transferee the right over the property which the transferee can set up versus the transferor A bank teller receives a deposit, and instead of giving it to the bank, she takes it. Solve. o Theft. As a mere employee of the bank, she only got de facto possession of the deposit. (Galang v People – why not qualified theft?) Person receives property to be used f or a specific purpose. He does not return it. That’s theft. o Problem (will be asked in the exam!!!): Clerk of court was given custody of money as evidence in a case. He left in on his table and went out for lunch. The court janitor came in the room and stole the money. Solve. (San Jose v Camurongan) Janitor: theft o Clerk of court: malversation by culpa, since he was in the custody of such money o Mang Jun owns a car, he delivers it to a repair shop to have it fixed. The repairman sells it. What crime? Theft. Only de facto possession. o But doesn’t the repairman have a lien over it? No, he hasn’t worked on it, he just sold it. SC said estafa but J-Call doesn’t agree. With the enactment of the Anti-Carnapping Law, it should be considered carnapping (but I’m not o sure!) In relation to finding lost property. Mellistrode saw a cellphone on the street and did not know who owned it. She gave it to the o policeman who stole the property. What is the crime of the cop? SC said theft. (P v Avila) J-Call: Malversation, since cop was an accountable officer who had custodia legis over the property. (Answer this and you’ll get full credit!)
Art. 310. Qualified theft. — The crime of theft shall be punished by the penalties next higher by two degrees than those respectively specified in the next preceding article, if committed by a domestic servant, or with grave abuse of confidence, or if the property stolen is motor vehicle, mail matter or large cattle or consists of coconuts taken from the premises of the plantation or fish taken from a fishpond or fishery, or if property is taken on the occasion of fire, earthquake, typhoon, volcanic erruption, or any other calamity, vehicular accident or civil disturbance. •
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Theft is qualified when: Committed by domestic servant o Committed with grave abuse of confidence o Property stolen is a (a) motor vehicle (see Anti-Carnapping Act), (b) mail matter, or (c) large o cattle (see Anti-Cattle Rustling Law) Property stolen consists of coconuts taken from the premises of a plantation o Property stolen is fish taken from a fishpond or fishery o Property taken is on occasion of fire, earthquake, typhoon, volcanic eruption, or any other o calamity, vehicular accident or civil disturbance This article has been amended by the Anti-Cattle Rustling Law and The Anti-Carnapping Law Grave abuse of confidence: there must be a special relation of intimacy, a position of UTMOST TRUST Examples: o Branch manager or bank teller stole the jewelry under his custody. Guy being helped by another guy steals from the good guy. (P v Flores) Cashier/entrusted teller of a corporation stealing (P v Rebucan) Compare to a commission salesman, only simple theft since no confidence reposed by employer on him since commission salesman lang. (P v Maglaya) Not enough that the offender and victim are housemates, the relationship must be characterized o by dependence, confidence, and vigilance. If there is conspiracy, but one is a trusted employee and the other is not, what is the crime? o Trusted employee: qualified theft Not trusted employee: theft •
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Grave abuse of confidence applicable only to the person to whom confidence is reposed (exception to the rule of conspiracy: act of one, act of all) Mail matter: Any matter that is deposited with the Phil. Postal Corporation which are delivered through postal service. Includes mail matters, parcels, money orders, printed materials, etc. Even if private postal corporation o Mail matter, regardless who stole it, even if private individual. o Theft of coconuts: If the coconuts are taken when they are still on the tree, or deposited on the ground the crime is o qualified theft. If any other place, simple theft. o •
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Carnapping, RA 6539 Elements: Taking of a motor vehicle which belongs to another o Taking is without the consent of the owner or by means of violence against or intimidation of o persons or by using force upon things, and Done with the intent to gain70 o Basically follows the same principles as theft/robbery, but the object of the crime is different: a motor vehicle Carnapping is a malum prohibitum. There are two kinds of penalties provided by the law. 71 Those which follow the RPC nomenclature: RP to death if special complex crime of carnapping o with homicide or rape. 72 Those which do NOT follow the RPC nomenclature: qualified carnapping and simple carnapping o Hence, the RPC will only have suppletory effect when the special complex crime is present. Someone committed qualified carnapping (14 y 7 – 17 y 4 penalty) and then sold the car to another person. Is he an accessory under Art 19 of the RPC? NO. The nomenclature does not follow the RPC. Hence, can’t apply o suppletorily. But he can be a principal for FENCING. o Will the ISL apply? Yes. Because the ISL will apply if there is a range for the penalty. (P v Bustinera) If there is no person killed or raped, and there is only PI or attempted/frustrated homicide or murder or rape – the crime is QUALIFIED carnapping There is special complex crime of carnapping with homicide or rape or murder. It is a single and indivisible offense. Here, the owner, driver, or occupant of the car is killed or raped. Just once counrt regardless of how many people killed or raped. o “If committed on the occasion of the carnapping,” even if the principal crime here is an SPL o crime If the person killed is anyone other than the owner, driver, or occupant of the car, then it is a o separate crime. (Ex. Bystander) IMPORTANT: For this to committed, the homicide, murder, or rape must be CONSUMMATED. o If the homicide or murder is merely attempted or frustrated, then the crime is qualified carnapping. Like robbery with homicide/rape, the original intention must be to CARNAP in order for the o special complex crime to be appreciated. Immediately after a taxi stopped, the accused poked his gun at a passenger so the victim gave him his wallet. He then killed the passenger. He boarded the taxi and •
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"Carnapping" is the taking, with intent to gain, of a motor vehicle belonging to another without the latter's consent, or by means of violence against or intimidation of persons, or by using force upon things. 71 Section 14. Penalty for Carnapping. Any person who is found guilty of carnapping, as this term is defined in Section two of this Act, shall, irrespective of the value of motor vehicle taken, be punished by imprisonment for not less than fourteen years and eight months a nd not more than seventeen years and four months, when the carnapping is committed without violence or intimidation of persons, or force upon things; and by imprisonment for not less than seventeen years and four months and not more t han thirty years, when the carnapping is committed by means of violence against or intimidation of any person, or force upon things; and the penalty of life imprisonment to death shall be imposed when the owner, driver or occupant of the carnapped motor vehicle is killed in the commission of the carnapping. 72 Boado actually calls this “qualifying” but J-Call called it special complex. So I’m following J-Call. Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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ordered the driver to drive him to the next province to escape. Solve. Robbery with homicide, and Carnapping Taking of the car was a mere afterthought o DO NOT apply Art. 48 of the RPC. o Motor Motor veh vehicl icle e is any vehicle vehicle propell propelled ed by any power apart apart from from muscul muscular ar power power using using the public 73 highways Motorcycle, tricycle included. Pedicabs and bicycles are not (theft yan!) o Ther There e are are othe otherr vehi vehicl cles es whic which h are are expr expres essl sly y exemp exempte ted. d. Thes These e are are subj subjec ects ts of eith either er o theft/robbery. See footnote. Value of the vehicle is NOT important. The penalty depends on the injuries inflicted on the driver. If the initial possession is lawful (like a rented the car), by killing the driver of the car and then taking it for their own, it is carnapping carnapping with homicide. homicide. Even if the car was taken from from the driver and not the owner, it is still taking because there is no consent by the owner. In P v. Bustinera, the accued was hired as a taxi driver to drive the car for a fixed period of time. He did not return return it. The taxi taxi was found abandone abandoned d in a place. place. HELD: Although Although there there was initiall initially y lawful possession, it transformed to illegal possession when he abandoned it in a secluded place: carnapping. Crime is consummated even if the carnappers abandoned the car after. o The offenders stole a truck and the personal effects contained therein. therein. What is the crime? Two crimes: o Carnapping as to the truck Theft as to the personal effects The SC was wrong here, because it said qualified theft. o • •
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Cattle Rustling (PD 533) yee-haw! Cattle rustling is taking any large cattle. It includes killing cattle or taking its meat or hide without the consent of the owner/raiser. 74 Malum in se. May there be cattle rustling even if cattle is not taken? Even if large cattle is not taken, there can be cattle rustling if it is killed and its meat is taken. o There There may be a specia speciall comple complex x crime crime of cattle cattle rustling rustling with homicide homicide if a per person son is killed killed on the occasion of cattle rustling.75 Boado said killing is absorbed, but it seems like he’s wrong. o RPC has suppletory application cattle-rustling since penalties follow nomenclature of the RPC. Forestry Code (PD 705) Malum prohibitum. Offenses under Sec 68 of PD 705: Cutting, gathering, collecting and removing timber or other forest products from any forest land, o or timber from alienable or disposable public land or from private land, without any authority; and Possession of timber or other forest products without legal documents required under existing o forest law regulations.76 (Merida v People)
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"Motor vehicle" is any vehicle propelled by any power other than muscular power using the public highways, but excepting road rollers, trolle y cars, street-sweepers, sprinklers, lawn mowers, bulldozers, graders, fork-lifts, amphibian trucks, and cranes if not used on public highways, vehicles, which run only on rails or tracks, a nd tractors, trailers and traction engines of all kinds used exclusively for agricultural purposes. Trailers having any number of wheels, when propelled or intended to be propelled by attachment to a motor vehicle, shall be classified as separate motor vehicle with no power rating. 74 Cattle rustling is the taking away by any means, method or scheme, without the consent of the owner/raiser, of any of the above-mentioned animals whether or not for profit or gain, or whether committed with or without violence against or intimidation of any person or force upon things. It includes t he killing of large cattle, or taking its meat or hide without the consent of the owner/raiser. 75 Section 8. Penal provisions. Any person convicted of cattle rustling as herein defined shall, irrespective of the value of the large cattle involved, be punished by prision mayor mayor in its maximum period to reclusion temporal in its medium period if the offense is committed committed without violence against or intimidation of persons or force upon things. If t he offense is committed with violence against or intimidation of persons or force upon things, the penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed. If a person is seriously injured or killed as a result or on the occasion of the commission of cattle rustling, the penalty of reclusion perpetua to death shall be imposed. When the offender is a government official or employee, he shall, in addition to the foregoing penalty, be disqualified from voting or being voted upon in any election/referendum and from holding any public office or e mployment. When the offender is an alien, he shall be deported immediately upon the completion of the service of his sentence without further proceedings. lawphi1™
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Section 68. Cutting, gathering and/or collecting timber or other products without license. Any person who shall cut, gather, collect, or remove timber
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Remember Tigoy? Court applied conspiracy even if malum prohibitum. What if what’s removed is lumber, not timber? Insofar as possession of timber of timber without without the required legal documents is concerned, Section 68 of o P.D. No. 705, as amended, makes no distinction between raw or processed timber (which is lumber).
Art. 311. Theft of the property of the National Library and National Museum. — If the property stolen be any property of the National Library or the National Museum, the penalty shall be arresto mayor or a fine ranging from 200 to 500 pesos, or both, unless a higher penalty should be provided under other provisions of this Code, in which case, the offender shall be punished by such higher penalty.
Chapter Four USURPATION Art. 312. Occupation of real property or usurpation of real rights in property. property. — Any person who, by means of violence against or intimidation of persons, shall take possession of any real property or shall usurp any real rights in property belonging to another, in addition to the penalty incurred for the acts of violence executed by him, shall be punished by a fine from 50 to 100 per centum of the gain which he shall have obtained, but not less than 75 pesos. If the value of the gain cannot be ascertained, ascertained, a fine of from 200 to 500 pesos shall be imposed. •
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Crimes punished: Taking possession of real property of another o Usurping any real rights in property of another o The article provides of a two-layered penalty: Penalty of fine for the usurpation, and o The penalty for the acts of violence. o If the usurpation was committed with killing or PI, the penalty for robbery with homicide or robbery with SPI will be imposed in addition to the fine. (Penalty will be imposed, not charging of a different crime.) (P v Alfeche) The Court called this two-tiered penalty incremental penalty. 77 Intimdation or violence is a way of accomplishing the crime and should NOT be considered as a separate crime. Not a complex crime under Art 48 either because the article itself provides that the fine for o usurpation usurpation will be “in addition” addition” to the PENALTY for the consequenc consequence e of violence violence or intimidation intimidation committed. Not a special complex crime either because no single penalty for the resulting crime is given. o It is uniquely one crime with two penalties corresponding to the usurpation and its result. o •
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or other forest products from any forest land, or timber from alienable and disposable public lands, or from private lands, without a ny authority under a license agreement, lease, license or permit, shall be guilty of qualified theft as defined and punished under Articles 309 and 310 of the Revised Penal Code; Provided, That in the case of partnership, association or corporation, the officers who ordered the c utting, gathering or collecting shall be liable, and if such officers are aliens, they shall, in addition to the penalty, be deported without further proceedings on the part of the Commission on Immigration and Deportation. 77 Article 312 may also be considered as defining and penalizing the single, special and indivisible crime of occupation of real property or usurpation of real rights in property by means of violence against or intimidation of persons. It is likewise not a complex crime as defined under Article 48. However, while Article 294 provides a single penalty for each class of crime therein defined, Article 312 provides a single, albeit two-tiered, penalty consisting of a principal penalty, which is that incurred for for the acts of violence, and an additional additional penalty of fine based on the value value of the gain obtained by the accused. accused. This is clear from the clause " in addition to the penalty incurred for the acts of violence executed by him ." For want of a better term, the additional penalty may be designated as an incremental penalty What Article 312 means then is that when the occupation of real property is committed by means of violence against or intimidation of persons, the accused may be prosecuted under an information for the violation thereof, and not for a separate crime involving violence or intimidation. But, whenever, appropriate, he may be sentenced to suffer the penalty for the acts of violence and to pay a fine based on the value of the gain obtained. Thus, if by reason or on the occasion of such occupation or usurpation, the crime of homicide, or a ny of the physical injuries penalized in either subdivisions 1 or 2 of Article 263 is committed; or when the same shall have been accompanied by rape or intentional mutilation; or when, in the course of its execution, the offender shall have inflicted upon any person not responsible for its commission any of the physical injuries covered by subdivisions 3 and 4 of Article 263; or when it is committed through intimidation or through the infliction of physical injuries not covered by subdivisions 1 to 4 of Article 263 of the Revised Penal Code, i e ., physical injuries penalized under Articles 265 and 266 of the Revised Penal Code, the accused may be convicted for the violation of Article 312. However, he shall be sentenced: (a) to suffer the penalty for homicide, rape, intentional mutilation and physical injuries provided under subdivisions 1 to 4 of Article 263, other physical injuries or for the intimidation , which may fall under Article 282 (Grave Threats) or Article 286 (Grave Coercion) of the Revised Penal Code, as the case may be, and (b) and (b) to pay a fine based on the value of the gain obtained by him, which shall be an amount equivalent to 50 to 100 per 100 per centum of such gain, but in no c ase less than seventy-five (P75.000) pesos, provided, pesos, provided, however, that if such value cannot be ascertained, the fine shall be from 200 to 500 (P200.00 to P500.00) pesos Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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Hence, only one information must be filed.
Art. 313. Altering 313. Altering boundaries boundaries or landmarks. landmarks. — Any person who shall alter the boundary marks or monuments of towns, provinces, or estates, or any other marks intended to designate the boundaries of the same, shall be punished by arresto menor or a fine not exceeding 100 pesos, or both. Chapter Five CULPABLE INSOLVENCY Art. 314. Fraudulent insolvency. — Any person who shall abscond with his property to the prejudice of his creditors, shall suffer the penalty of prision mayor, if he be a merchant and the penalty of prision correccional in its maximum period to prision mayor in its medium period, if he be not a merchant.
Chapter Six SWINDLING AND OTHER DECEITS Art. 315. Swindling (estafa). (estafa). — Any person person who shall shall defraud defraud another another by any of the means mentioned mentioned hereinbelow shall be punished by: 1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory penalties which may be imposed under the provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be. 2nd. The penalty of prision correccional in its minimum and medium periods, if the amount of the fraud is over 6,000 pesos but does not exceed 12,000 pesos; 3rd. The penalty of arresto mayor in its maximum period to prision correccional in its minimum period if such amount is over 200 pesos but does not exceed 6,000 pesos; and 4th. By arresto mayor in its maximum period, if such amount does not exceed 200 pesos, provided that in the four cases mentioned, the fraud be committed by any of the following means: •
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Elements of Estafa in General: That the accused defrauded another (a) by abuse of confidence or (b) by means of deceit; and o That damage or prejudice capable of pecuniary estimation is caused to the offended party or 3 rd o person Basically, there are two forms or ways of committing estafa: With abuse of confidence or unfaithfulness (under no 1 of 315); and o Through deceit or false pretense (under 2 and 3 of 315) o Both involve damage Damage Damage is not limite limited d to materi material al damage damage;; any disturba disturbance nce or pre prejud judice ice is constitutive of damage Let’s tackle abuse of confidence or unfaithfulness fi rst •
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1. With unfaithfulness or abuse of confidence, namely: (a) By altering the substance, quantity, or quality or anything of value which the offender shall deliver by virtue of an obligation to do so, even though such obligation be based on an immoral or illegal consideration. (b) By misappropriating or converting, to the prejudice of another, money, goods, or any other personal property property received received by the offender offender in trust trust or on commission, commission, or for administrat administration, ion, or under under any other obligation involving the duty to make delivery of or to return the same, even though such obligation be totally or partially guaranteed by a bond; or by denying having received such money, goods, or other property. (c) By taking undue advantage of the signature of the offended party in blank, and by writing any document above such signature in blank, to the prejudice of the offended party or of any third person. •
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Three modes of estafa through abuse of confidence or unfaithfulness Altering substance of anything with value that offender should deliver based on an obligation o Misappropriation or conversion of property received in trust o Taking undue advantage of the signature of the offended party in blank o Mode 1: altering the subtance of anything with value that the offender should deliver based on an obligation Elements o Offender has an onerous obligation to deliver something of value He alters its substance, quantity or quality
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Damage or prejudice is caused to another Law applies even if the property the offender is bound to deliver something illegal/obscene o For example, altered drugs to the prejudice of the obligee. Estafa (and also liable under the DDA) Mode 2: misappropriation or conversion of property received in trust Elements: o That money, goods, or other personal property be received by offender in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return, the same That there be misappropriation/conversion of such money or property by offender, or denial on his part of such receipt That such misappropriation or conversion or denial is to the prejudice of another That there is demand made by the offended party to the offender There must be a FIDUCIARY relationship between the offender and the offender party. (“in trust, o or on commission, or for administration…”) There must be an agreement to return the same thing or money Doesn’t matter if the obligation is guaranteed by a bond or not Without this relationship, no estafa The duty to return the same is based on either MUTUAL AGREEMENT or by LAW “Any obligation to make delivery of o r to return” o It refers to contracts of bailment, lease of personal property, deposit, commodatum Under any of these provisions, there is JURIDICAL POSSESSION by the depositary. The transaction must not transfer ownership to the offender Here, the one in possession must return the SAME thing/money borrowed. So in a loan of money, no estafa since you don’t have to return the exact o bills or coins, just the amount. Also, in a loan transaction, ownership of the borrowed cash is transferred to the borrower. No estafa in the following cases: o Money market placements Bank deposits So if the teller misappropriates bank deposits, theft Earnest money (since part of the purchase price) Cash advances (failure to liquidate only gives rise to civil liability) But malversation if by an accountable officer (remember the vale system) See notes on robbery/theft for difference between juridical possession and material possession Robbery/theft: material possession only o Estafa: juridical possession o Conversion: presupposes that the thing has been devoted to a purpose or use different from that o agreed upon Using or disposing of another’s property as if it were one’s own Misappropriating: includes not only conversion to one’s personal advantage, but also every o attempt to dispose the property of another without right to own, to take something for one’s own benefit Offender need not actually have gained. o Even a temporary disturbance constitutes misappropriation. Does not need to be permanent. (Salazar v People) Example of conversion and misappropriation: o In bank loan transactions, usually, the borrower is required to produced “show money” to establish that she can repay the loan. But in Acejo v People, she borrowed the “show money” from someone else. She used it for her own benefit. SC held she was guilty of estafa. It was received in trust for a particular purpose, and there is obligation to return. By misappropriating it, she is guilty of estafa. Does the owner have to be the offended? o No. Law says “prejudicial to another” so it can be another person, as long as there is
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damage caused. “Demand” need not be used to show that demand had indeed been made upon the person charged of the offense. A query as to the whereabouts of the money is tantamount to demand. In fact, demand is NOT essential as long as there is proof that the goods were misappropriated. What if it is the sub-agent which misappropriated or converted the goods? GR: Agent not liable EXCEPT: Conspired with the sub-agent, or o There was a prohibition against the agent and he did not follow it o Examples: A person was assigned jewelry to sell, with commission. He was not prohibited from appointing a sub-agent, so he got one. The sub-agent stole the jewelry. SC said that the agent was acquitted because he did not convert or misappropriate the jewelry. Moreover, there was no abuse since there was no prohibition in appointing a sub-agent. Also, NO estafa by culpa. (Serona v CA) Accused was assigned jewelry to sell by commission again. He asked a friend to sell jewelries to act like a sub-agent. The sub-agent stole the jewelry. SC said the agent was acquitted because he did not profit or gain. (Lim v CA) NO ESTAFA BY CULPA More examples of estafa by misappropriation/conversion: Guy delivers his car to a motor shop for repairs. Repairman repaired car. Guy hasn’t paid, so repairman misappropriated it. Estafa because he had juridical possession of the car (lien for the payment of the repairs). (Libuit v CA) If he had material possession only, is it carnapping? Seems like it. Accused was a sales agent selling residential lots on behalf of a corporation. He was authorized to sell the lots, but NOT collect the monthly amortizations from the lot buyers. However, he received these and worse, he failed to remit these. HELD: Accused is guilty of two sets of estafa: As regards the lot buyers, he committed estafa through fraud or misrepresentation because he claimed that he could receive monthly amortizations. As many counts of estafa as the number of times he collected from the o lot buyers. As regards the employer, estafa with abuse of confidence, because he did not remit. (Ilagan v CA) As many counts of estafa as the number of times he was obliged to o account to his employer. Collection agent who was obliged to remit did not. Estafa (Pucay v CA) How many counts of estafa? GR: depends on number of offended parties/victims. BUT if committed on different dates or occasions, there are as many counts of estafa as the number of transactions. See Ilagan v CA. Returning the money will not free the accused from criminal liability. Rleate to PD 115 (Trust Receipts Law) will be asked in the exam A trust receipt transaction imposes upon trustee to give the price sold if sold, or if the goods are not sold, return them to the entrustor. Penal clause includes the failure of the offender to return to the bank the component parts of the equipment covered by the trust receipt. (Ching v CA) 78 •
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The Court takes judicial notice of customary banking and business practices where trust receipts are used for importation of heavy equipment, machineries and supplies used in manufacturing operations. We are perplexed by the statements in the assailed DOJ resolution that the goods subject of the instant case are outside the ambit of the provisions of PD 115 albeit covered by trust receipt agreements ( 17 February 1988 resolution) and that not all transactions covered by trust receipts may be considered as trust receipt transactions defined and penalized under P.D. 115 (11 January 1988 resolution). A construction should be avoided when it affords an opportunity to defeat compliance with the terms of a statute. xxx......xxx......xxx "The penal provision of P.D. 115 encompasses any act violative of an obligation covered by the trust receipt; it is not limited to transactions in goods which are to be sold (retailed), reshipped, stored or processed as a component of a product ultimately sold." Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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Violation of the TPL constitutes estafa. 79 It is malum prohibitum. The only thing to be established: prejudice caused to another. Mere failure to deliver already constitutes the criminal offense. (Metrobank v Tola) When a person participates in the commission of a crime, he CANNOT escape liability due solely to the fact that he was acting as an agent of another party. The NCC provisions on agency do not apply to criminal cases. Mode 3: taking undue advantage of the signature of the offended party in blank documents Elements: o Paper with the signature of the offended party be in blank Offended party should have delivered it to the offender Above the signature of offended party a document is written by the offender without authority to do so Document so written creates a liability of, or causes damage to, the offended party or any 3rd person Now, let’s tackle estafa through fraud
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2. By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud: (a) By using fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of other similar deceits. (b) By altering the quality, fineness or weight of anything pertaining to his art or business. (c) By pretending to have bribed any Government employee, without prejudice to the action for calumny which the offended party may deem proper to bring against the offender. In this case, the offender shall be punished by the maximum period of the penalty. (d) By post-dating a check, or issuing a check in payment of an obligation when the offender therein were not sufficient to cover the amount of the check. The failure of the drawer of the check to deposit the amount necessary to cover his check within three (3) days from receipt of notice from the bank and/or the payee or holder that said check has been dishonored for lack of insufficiency of funds shall be prima facie evidence of deceit constituting false pretense or fraudulent act. (e) By obtaining any food, refreshment or accommodation at a hotel, inn, restaurant, boarding house, lodging house, or apartment house and the like without paying therefor, with intent to defraud the proprietor or manager thereof, or by obtaining credit at hotel, inn, restaurant, boarding house, lodging house, or apartment house by the use of any false pretense, or by abandoning or surreptitiously removing any part of his baggage from a hotel, inn, restaurant, boarding house, lodging house or apartment house after obtaining credit, food, refreshment or accommodation therein without paying for his food, refreshment or accommodation. •
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The acts covered in estafa through fraud share the same elements: That there must be false pretense, fraudulent act or fraudulent means o That such false pretense, fraudulent act or fraudulent means must be made or executed prior to o or simultaneously with the commission of the fraud The offended party must have relied on the false pretense, fraudulent act, or fraudulent means, o that is, he was induced to part with his money or property because of the false pretense, fraudulent act or fraudulent means As a result thereof, the offended party suffered damage o The acts punished are: Using fictitious name, falsely pretending to possess power, influence, qualifications, etc, or by o means of other similar deceits Altering the quality, fineness, or weight of anything pertaining to art or business o Pretending to have bribed any government employee o Postdating a check or issuing a check knowing that he had no funds in the bank or the funds o were insufficient
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Section 13. Penalty clause. The failure of an entrustee to turn over the proceeds of the sale of the goods, documents or instruments covered by a trust receipt to the extent of the amount owing to the entruster or as appears in the trust receipt or to return said goods, documents or instruments if they were not sold or disposed of in accordance with the terms of the trust receipt shall constitute the crime of estafa, punishable under the provisions of Article Three hundred and fifteen, paragraph one (b) of Act Numbered Three thousand eight hundred and fifteen, as amended, otherwise known as the Revised Penal Code. If the violation or offense is committed by a corporation, partnership, association or other juridical entities, the penalty provided for in this Decree shall be imposed upon the directors, officers, employees or other officials or persons therein responsible for the offense, without prejudice to the civil liabilities arising from the criminal offense.
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Obtaining food or accommodation in a hotel, inn, restaurant, etc without paying therefor with intent to defraud, or obtaining credit, or surreptitiously abandoning or removing luggage from the establishment without paying Fraud: anything calculated to deceive Includes all multifarious means o Deceit: false representation of a fact whether by conduct, false allegations or concealment that should have been disclosed I’ll mortgage you my land, it has lots of mangoes, wala pala. (Vasquez v P) o I will sell you my property. It wasn’t mine. (Arecheta v P) o Complainant must have suffered the deceit or fraud by the accused Act 1: Using fictitious name, falsely pretending to possess power, influence, or by similar means Accused must have actually made false representations which caused the victim to part with his o money. The fraud must be alleged to have been personally committed by respondent prior to or o simultaneously with the payment or delivery of money. If there be no such prior or simultaneous false statement or fraudulent representation, any subsequent act of the accused, however fraudulent or suspicious it may appear, cannot serve as basis for prosecution fo r that class of estafa. (RCL Feeders v Perez) Act 2: Altering the quality, fineness, or weight of anything pertaining to art or one’s business Caveat emptor doctrine does not apply. You cannot invoke the fact that the victim was himself o negligent. It doesn’t apply to criminal cases. Act 3: Pretending to have bribed a Government employee Act 4: Postdating a check or issuing a check knowing that he had no funds in the bank or the funds were insufficient Elements o A check is drawn or postdated in payment of an obligation contracted at the time the check was issued No funds sufficient to cover the check Payee sustains damage thereby The check must be issue concurrently with, and in exchange for, a material gain to make it o punishable. The fraud must be committed prior to or upon the issuance of the check. o It is necessary that the payee would not have release his consideration for the check if not for o the check issued. Important: If the issuance of the check was to pay a pre-existing obligation, no liability under RPC. Why? Since the obligation sought to be settled is already incurred and outstanding before the check is issued. So when the goods have already been delivered, no estafa, since when a seller parts with his goods even without the payment, it is a credit accommodation. Must the check be negotiable? o Negotiability of a check is NOT the gravamen of the crime, but the fraud or deceit in knowingly issuing a worthless check. Who can be liable? o Drawer Indorser or even a co-conspirator Post-dating of a check, as long as when it is due, there are funds, is not estafa, even when there o are no funds at the time it was issued. If the check is issued as a guaranty to secure a loan, there is no estafa. o Issuing a check in exchange for cash: estafa, because you received something in exchange o How do you prove knowledge that there were no funds? o Direct evidence Notice of dishonor from drawee bank duly received by the drawer of the check and failure to deposit money to cover the amount Depositing required amount within 3 days of notice of dishonor – no liability What is the effect of failure to deposit within 3 days? Failure to deposit the amount will give rise to presumption of deceit. (Vallarta v CA, wherein accused argued that her check was for a pre-existing sale, but SC said no meeting of the minds, so it was actually to o
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incur an obligation) In closed accounts, is demand necessary? o In P v Ojeda (2004, Third Division), Court said yes. Here, the accused drew and delivered several post-dated checks in payment of the goods, at that time that the check was issued, the account was closed but didn’t disclose this. There was a notice of dishonor, the accused paid the amount by installment (Ninoy died, so the economy was crazy), then charged w/ estafa. Defense: acted in good faith, because paid on installment, said not receive any notice of dishonor as required by law and which deprived of opportunity to pay w/in 3 days SC said: the accused acted in good faith, from date of check, tried to pay by installment, though not able to complete the same, because of the havoc on the economy. Also said there was no notice of dishonor and this failure of the bank deprived the petitioner of the chance to pay the amount of the check. Since deprived because of absence of notice, there can be deceit under the circumstances. SC: even if the account is closed, still need to issue notice of dishonor to allow person to pay, if not given notice, fatal! Accused was acquitted. In Lopez v People (2008, First Division), Court said no. Here, a check was issued but the account had already been closed. Court said: if the account is already closed, there is no more need to issue a notice of dishonor. The drawer of the check had no right to be given a copy of the notice because there was no use of giving it since there was no deposit in the first place. Court also said: all the 3-day notice does is raise the presumption of deceit. It is not an element of the crime. Prosecution can prove deceit in another manner. In this case, the check was issued 2 months after the account was closed. So he was convicted. BP 22 o Estafa BP 22 Check issued concurrently and Even if check issued for pre-existing reciprocally in payment of the exchange obligation, liability is incurred consideration Damage to the offended and deceit of Damage or deceit immaterial the accused are essential Crime against property Crime against public interest Not only drawer can be liable, even the Only drawer is liable, or the officer of the indorser if he were aware at the time of company who signed. Indorser not liable the indorsement of the insufficiency of funds 3 days from notice of dishonor to make 5 days from notice of dishonor to make good the cash value good the cash value Malum in se Malum prohibitum One can be charged under estafa and BP 22, no double jeopardy o Requirements for presumption of knowledge of insufficiency of funds to arise: o Check presented within 90 days from date of the check Notice of dishonor given Fails to pay, or make arrangements to pay within 5 full banking days Under BP 22 check is stale after more than 90 days, is there a need to issue a notice of dishonor o at the time it was presented for payment? Only consequence is no prima facie presumption of knowledge of no funds, still be held liable if able to prove had knowledge (Bautista v People) Notice of dishonor must be in writing. Oral notice is not sufficient. o BP 22 is a continuing crime. o Venue is determined by the place where the elements of making, issuing or drawing of the check and delivery thereof are committed. Act 5: Obtaining food or accommodation in a hotel, inn, restaurant, etc without paying therefor with •
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intent to defraud, or obtaining credit, or surreptitiously abandoning or removing luggage from the establishment without paying And the third way of committing estafa
3. Through any of the following fraudulent means: (a) By inducing another, by means of deceit, to sign any document. (b) By resorting to some fraudulent practice to insure success in a gambling game. (c) By removing, concealing or destroying, in whole or in part, any court record, office files, document or any other papers. • •
So you can be charged with estafa, even in gambling! Break muna!
Art. 316. Other forms of swindling. — The penalty of arresto mayor in its minimum and medium period and a fine of not less than the value of the damage caused and not more than three times such value, shall be imposed upon: 1. Any person who, pretending to be owner of any real property, shall convey, sell, encumber or mortgage the same. 2. Any person, who, knowing that real property is encumbered, shall dispose of the same, although such encumbrance be not recorded. 3. The owner of any personal property who shall wrongfully take it from its lawful possessor, to the prejudice of the latter or any third person. 4. Any person who, to the prejudice of another, shall execute any fictitious contract. 5. Any person who shall accept any compensation given him under the belief that it was in payment of services rendered or labor performed by him, when in fact he did not actually perform such services or labor. 6. Any person who, while being a surety in a bond given in a criminal or civil action, without express authority from the court or before the cancellation of his bond or before being relieved from the obligation contracted by him, shall sell, mortgage, or, in any other manner, encumber the real property or properties with which he guaranteed the fulfillment of such obligation. •
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Selling without disclosing the encumbrance would not give rise to estafa per se. What brings about criminal liability is the deceit in selling the property. Gravamen of the crime is the disposition of legally encumbered property w/ express o representation that property was not encumbered. There must be express representation; without which, no estafa In Mallari v People, the SC considered estafa through falsification of public documents a delito o continuado because there was a singularity of the criminal impulse when Mallari defrauded two victims on the same date, same p lace, and same occasion. Under the 3rd paragraph, the owner can be guilty of estafa involving his own property.
Art. 317. Swindling a minor . — Any person who taking advantage of the inexperience or emotions or feelings of a minor, to his detriment, shall induce him to assume any obligation or to give any release or execute a transfer of any property right in consideration of some loan of money, credit or other personal property, whether the loan clearly appears in the document or is shown in any other form, shall suffer the penalty of arresto mayor and a fine of a sum ranging from 10 to 50 per cent of the value of the obligation contracted by the minor.
Art. 318. Other deceits. — The penalty of arresto mayor and a fine of not less than the amount of the damage caused and not more than twice such amount shall be imposed upon any person who shall defraud or damage another by any other deceit not mentioned in the preceding articles of this chapter. Any person who, for profit or gain, shall interpret dreams, make forecasts, tell fortunes, or take advantage of the credulity of the public in any other similar manner, shall suffer the penalty of arresto mayor or a fine not exceeding 200 pesos. •
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Elements: false pretense, fraudulent act or pretense other than those in the preceding articles; o such false pretense, fraudulent act or pretense must be made or executed prior to or o simultaneously with the commission of the fraud; and as a result, the offended party suffered damage or prejudice. o Catch-all provision for estafa. Seen in Guinhawa v People, penned by J-Call himself (so remember this!), wherein Guinhawa was found guilty as the owner of an establishment selling cars. He displayed the car, making it seem brand new and kept quiet of its damaged past. The car was in fact an old damaged car that had already figured in
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an accident. He did not tell the buyers that the van was already old and damaged. There was fraudulent nondisclosure here. 80 o Also showed that caveat emptor does not apply. o Fortune telling is a crime!
Chapter Seven CHATTEL MORTGAGE Art. 319. Removal, sale or pledge of mortgaged property. — The penalty or arresto mayor or a fine amounting to twice the value of the property shall be imposed upon: 1. Any person who shall knowingly remove any personal property mortgaged under the Chattel Mortgage Law to any province or city other than the one in which it was located at the time of the execution of the mortgage, without the written consent of the mortgagee, or his executors, administrators or assigns. 2. Any mortgagor who shall sell or pledge personal property already pledged, or any part thereof, under the terms of the Chattel Mortgage Law, without the consent of the mortgagee written on the back of the mortgage and noted on the record hereof in the office of the Register of Deeds of the province where such property is located.
Art. 320. Destructive Arson. - The penalty of reclusion perpetua to death shall be imposed upon any person who shall burn: 1. One (1) or more buildings or edifices, consequent to one single act of burning, or as a result of simultaneous burnings, committed on several or different occasions. 2. Any building of public or private ownership, devoted to the public in general or where people usually gather or congregate for a definite purpose such as, but not limited to, official governmental function or business, private transaction, commerce, trade, workshop, meetings and conferences, or merely incidental to a definite purpose such as but not limited to hotels, motels, transient dwellings, public conveyances or stops or terminals, regardless of whether the offender had knowledge that there are persons in said building or edifice at the time it is set on fire and regardless also of whether the building is actually inhabited or not. 3. Any train or locomotive, ship or vessel, airship or airplane, devoted to transportation or conveyance, or for public use, entertainment or leisure. 4. Any building, factory, warehouse installation and any appurtenances thereto, which are devoted to the service of public utilities. 5. Any building the burning of which is for the purpose of concealing or destroying evidence of another violation of law, or for the purpose of concealing bankruptcy or defrauding creditors or to collect from insurance. Irrespective of the application of the above enumerated qualifying circumstances, the penalty of reclusion perpetua to death shall likewise be imposed when the arson is perpetrated or committed by two (2) or more persons or by a group of persons, regardless of whether their purpose is merely to burn or destroy the building or the burning merely constitutes an overt act in the commission or another violation of law. The penalty of reclusion perpetua to death shall also be imposed upon any person who shall burn: 1. Any arsenal, shipyard, storehouse or military powder or fireworks factory, ordnance, storehouse, archives or general museum of the Government. 2. In an inhabited place, any storehouse or factory of inflammable or explosive materials. If as a consequence of the commission of any of the acts penalized under this Article, death results, the mandatory penalty of death shall be imposed
Read with PD 1613 (see footnote)81 80
Fraudulent nondisclosure and fraudulent concealment are of the same genre. Fraudulent concealment presupposes a duty to disclose the truth and that disclosure was not made when opportunity to speak and inform was presented, and that the party to whom the duty of disclosure, as to a material fact was due, was induced thereby to act to his injury. 81 Section 1. Arson. Any person who burns or sets fire to the property of another shall be punished by Prision Mayor. The same penalty shall be imposed when a person sets fire to his own property under circumstances which expose to danger the life or property of another. Section 2. Destructive Arson. The penalty of Reclusion Temporal in its maximum period to Reclusion Perpetua shall be imposed if the property burned is any of the following: 1. Any ammunition factory and other establishment where explosives, inflammable or combustible materials are stored. 2. Any archive, museum, whether public or private, or any edifice devoted to culture, education or social services. 3. Any church or place of worship or other building where people usually assemble. 4. Any train, airplane or any aircraft, vessel or watercraft, or conveyance for transportation of persons or property 4. Any building where evidence is kept for use in any legislative, judicial, administrative or other official proceedings. 5. Any hospital, hotel, dormitory, lodging house, housing tenement, shopping center, public or private market, theater or movie house or any similar place or building. 6. Any building, whether used as a dwelling or not, situated in a populated or congested area. Section 3. Other Cases of Arson. The penalty of Reclusion Temporal to Reclusion Perpetua shall be imposed if the property burned is any of the following: Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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Arson is the destruction of property by fire. As long as fire or pyrotechnic material is used to destroy any property, arson yon! o Corpus delicti: fire and of its having been intentionally caused There is reckless imprudence resulting to arson (man burns trash, then fire gets blown to other areas because of a strong wind) No frustrated arson. As soon as the fire occurs, no matter how small, consummated. o The property burned may be the offender’s or owners. Arson is committed even if offender burned his own property if burning was made under o circumstances which exposed the property or life of another to danger. A person acting under one criminal impulse who burns several buildings commits not distinct arson but only one crime of destructive arson. Only one crime of arson, no matter how many houses were burned. o Remember the lessons of Malngan. If intent to burn the building and death is a result, just arson. Resulting homicide is absorbed. o If intent to kill and fire resorted to as means to kill, murder only. o If intent to kill (and he has done so) then fire used to cover up the killing, then two distinct o crimes, homicide/murder and arson. No such thing as complex crime of arson with multiple homicide or arson with homicide. o Discussion on RA 8294 (putting this here since J-Call said he’ll ask questions on 8294 and 9516): Unlicensed Firearms Homicide or Special AC murder Political crimes Absorbed Used in other Not AC, not even crime separate offense Take note that if unlicensed firearm is used to commit murder or homicide, it is merely an o aggravating circumstance. The murder or homicide must be consummated. If crime merely attempted or frustrated, this AC does not apply.
1. Any building used as offices of the government or any of its agencies; 2. Any inhabited house or dwelling; 3. Any industrial establishment, shipyard, oil well or mine shaft, platform or tunnel; 4. Any plantation, farm, pastureland, growing crop, grain field, orchard, bamboo grove or forest; 4. Any rice mill, sugar mill, cane mill or mill central; and 5. Any railway or bus station, a irport, wharf or warehouse. Section 4. Special Aggravating Circumstances in Arson. The penalty in any case of arson shall be imposed in its maximum period; 1. If committed with intent to gain; 2. If committed for the benefit of another; 3. If the offender is motivated by spite or hatred towards the owner or occupant of the property burned; 4. If committed by a syndicate. The offense is committed by a syndicate if its is planned or carried out by a group of three (3) or more persons. Section 5. Where Death Results from Arson. If by reason of or on the occasion of the arson death results, the penalty of Reclusion Perpetua to death shall be imposed. Section 6. Prima Facie evidence of Arson. Any of the following circumstances shall constitute prima facie evidence of arson: 1. If the fire started simultaneously in more than one part of the building or establishment. 2. If substantial amount of flammable substances or materials are stored within the building note necessary in the business of the offender nor for household us. 3. If gasoline, kerosene, petroleum or other flammable or combustible substances or materials soaked therewith or containers thereof, or any mechanical, electrical, chemical, or electronic contrivance designed to start a fire, or ashes or traces of any of the foregoing are found in the ruins or premises of the burned building or property. 4. If the building or property is insured for substantially more than its actual value at the time of the issuance of the policy. 4. If during the lifetime of the corresponding fire insurance policy more than two fires have occurred in the same or other premises owned or under the control of the offender and/or insured. 5. If shortly before the fire, a substantial portion of the effects insured and stored in a building or property had been withdrawn from the premises except in the ordinary course of business. 6. If a demand for money or other valuable consideration was made before the fire in exchange for the desistance of the offender or for the safety of the person or property of the victim. Section 7. Conspiracy to commit Arson. Conspiracy to commit arson shall be punished by Prision Mayor in its minimum period. Section 8. Confiscation of Object of Arson. The building which is the object of arson including the land on which it is situated shall be confiscated and escheated to the State, unless the owner thereof can prove that he has no participation in nor knowledge of such arson despite the exercise of due diligence on his part. Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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Take note of the phrase “that no other crime was committed.” This means that if an unlicensed firearm is used in the commission of any crime (not murder or homicide since it has its own paragraph), there can be no separate offense of simple illegal possession of firearms. Hence, if the crime was direct assault and multiple attempted homicide, the accused can no longer be charged with the separate offense of illegal possession of firearms, even if its penalty is heavier than direct assault. (P v Ladjaalam) Nor can use of an unlicensed firearm be used as an AC against him (since it only pertains to murder and homicide). But the use of arms can be used against him homicide with use of weapon. (P v Ladjaalam) Moreover, an accused may evade conviction for illegal possession by using such weapons in committing an even lighter offense, like alarm and scandal or slight physical injuries. Remedy is with Congress. Note that the person must first be convicted for that other crime, before this anomaly in the law can be used by the accused. “Murder or homicide” includes parricide or infanticide. (P v. Mendoza, where husband shot wife. But can be argued that the broad interpretation is wrong. Interpretation of doubts must be always for the accused.) What if robbery with homicide? The use of illegal firearms is not an AC. Only considered if murder or homicide. That’s it. (P v. Sabadao) But in People v. Abdul (2000), the SC 1st division affirmed the RTC ruling which considered it as o an AC. This is wrong. In People v. Domacyong (2003), the SC ruled that that the AC of illegal possession can be o considered in robbery with homicide. This is wrong. (The Court was right though for acquitting them of the separate charge of illegal possession) Security agency has license to possess firearm, guard does not. Guard uses gun to commit o murder. AC? Yes, guard has no license to possess that firearm, only the employer. (Catalina v Decano, “Pursuant to Section 1 in relation to Section 5, the firearm used in an unauthorized manner shall be considered an aggravating circumstance. We are in agreement that even if the firearm used was properly licensed to the security agency, its unauthorized use by the appellant aggravated his offense.”) Compare to Cuenca v People (1970), where security guard was charged for illegal possession. He did not know that agency did not have the proper license. He was acquitted. Does the firearm have to be presented during trial? o No! The corpus delicti is the possession of the firearm. Not the firearm. You just have to prove possession without license. You can do this through a certification from the PNP that accused did not have a license. Are paltiks covered? Yes. o You have a license, but no permit to bring it out of your house, and then you bring it out. What o happens? Liable ka boy. (Pastrano v CA) Accused in possession of two guns, one high-powered and the other low-powered. Can he be o charged for 2 crimes? Yes! Different penalty for high-powered and low-powered eh! What if he has 3 high-powered guns, can he be charge for 3 crimes? No, just 1 crime. Since it only has one penalty! Gun ban during election, right? Accused brings out his unlicensed firearm. Solve. o Not AC (not murder or homicide) and not even considered separate (used in other crime eh!) Guilty of violating the gun ban. RA 9516 Covers unlicensed explosives o No longer absorbed by political crimes (see comments on political crimes) o Can now be considered aggravating even if no one died since RA 8294 was amended in this o respect. (Correct?)
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Chapter Nine MALICIOUS MISCHIEF
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Art. 327. Who are liable for malicious mischief . — Any person who shall deliberately cause the property of another any damage not falling within the terms of the next preceding chapter shall be guilty of malicious mischief. Art. 328. Special cases of malicious mischief. — Any person who shall cause damage to obstruct the performance of public functions, or using any poisonous or corrosive substance; or spreading any infection or contagion among cattle; or who cause damage to the property of the National Museum or National Library, or to any archive or registry, waterworks, road, promenade, or any other thing used in common by the public, shall be punished: 1. By prision correccional in its minimum and medium periods, if the value of the damage caused exceeds 1,000 pesos; 2. By arresto mayor, if such value does not exceed the abovementioned amount but it is over 200 pesos; and 3. By arresto menor, in such value does not exceed 200 pesos. Art. 329. Other mischiefs. — The mischiefs not included in the next preceding article shall be punished: 1. By arresto mayor in its medium and maximum periods, if the value of the damage caused exceeds 1,000 pesos; 2. By arresto mayor in its minimum and medium periods, if such value is over 200 pesos but does not exceed 1,000 pesos; and 3. By arresto menor or fine of not less than the value of the damage caused and not more than 200 pesos, if the amount involved does not exceed 200 pesos or cannot be estimated. Art. 330. Damage and obstruction to means of communication. — The penalty of prision correccional in its medium and maximum periods shall be imposed upon any person who shall damage any railway, telegraph or telephone lines. If the damage shall result in any derailment of cars, collision or other accident, the penalty of prision mayor shall be imposed, without prejudice to the criminal liability of the offender for the other consequences of his criminal act. For the purpose of the provisions of the article, the electric wires, traction cables, signal system and other things pertaining to railways, shall be deemed to constitute an integral part of a railway system. Art. 331. Destroying or damaging statues, public monuments or paintings. — Any person who shall destroy or damage statues or any other useful or ornamental public monument shall suffer the penalty of arresto mayor in its medium period to prision correccional in its minimum period. Any person who shall destroy or damage any useful or ornamental painting of a public nature shall suffer the penalty of arresto menor or a fine not exceeding 200 pesos, or both such fine and imprisonment, in the discretion of the court. Chapter Ten EXEMPTION FROM CRIMINAL LIABILITY IN CRIMES AGAINST PROPERTY Art. 332. Persons exempt from criminal liability . — No criminal, but only civil liability, shall result from the commission of the crime of theft, swindling or malicious mischief committed or caused mutually by the following persons: 1. Spouses, ascendants and descendants, or relatives by affinity in the same line. 2. The widowed spouse with respect to the property which belonged to the deceased spouse before the same shall have passed into the possession of another; and 3. Brothers and sisters and brothers-in-law and sisters-in-law, if living together. The exemption established by this article shall not be applicable to strangers participating in the commission of the crime. •
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Those exempted from certain crimes Spouses, ascendants and descendants, or relatives by affinity in the same line o Should include stepparents and stepchildren (since affinity) Widowed spouse with respect to the p roperty which belonged to the deceased spouse before the o same shall have passed into the possession of ano ther The property belongs to deceased spouse It has not passed into the possession of a 3 rd person Brothers and sisters and brothers-in-law and sisters-in-law, if living together o Includes illegitimate and half-siblings Not applicable to strangers participating in the commission of the crime. Exempted from what crimes? Theft (including qualified theft) but not robbery o Estafa but if complexed with other crimes (falsification of public documents), no exemption o Malicious mischief. o But if relative burns something, that’s arson. No exemption.
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Title Eleven CRIMES AGAINST CHASTITY Chapter One ADULTERY AND CONCUBINAGE Art. 333. Who are guilty of adultery . — Adultery is committed by any married woman who shall have sexual intercourse with a man not her husband and by the man who has carnal knowledge of her knowing her to be married, even if the marriage be subsequently declared void. Adultery shall be punished by prision correccional in its medium and maximum periods. If the person guilty of adultery committed this offense while being abandoned without justification by the offended spouse, the penalty next lower in degree than that provided in the next preceding paragraph shall be imposed. •
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Elements: That the woman is married o That she has sexual intercourse with a m an not her husband o That as regards the man with whom she has sexual intercourse, he must know her to be married o The man who knows she is married is also guilty of adultery. Effect of acquittal by one does not mean other one should be acquitted. Like when guy does not know that the hot woman he just slept with was married. o What if the girl just slept with the guy because she was having a sad marriage where her husband just cares about his work and neglects her everyday? Still adultery. Married woman may be liable for adultery even if marriage is declared null and void after commission of adultery because nullity of marriage after adultery does not affect criminal liability of accused. By time judgment final, adultery already committed. Adultery not continuing crime. Each sexual intercourse consummates crime. Single impulse test NOT applicable. Sex 5 times, adultery 5 times. o Every sex, 1 adultery. o No frustrated adultery. Attempted adultery? Yes. (Caught in the hotel undressing) o
Art. 334. Concubinage. — Any husband who shall keep a mistress in the conjugal dwelling, or shall have sexual intercourse, under scandalous circumstances, with a woman who is not his wife, or shall cohabit with her in any other place, shall be punished by prision correccional in its minimum and medium periods. The concubine shall suffer the penalty of destierro. •
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Acts punished: By keeping a mistress in the conjugal dwelling; or o By having sexual intercourse, under scandalous circumstances, with a woman who is not his o wife; or By cohabiting with her in any other place o Elements: That the man must be married o That he committed any of the said acts o That as regards the woman, she must know him to be married o Woman who knew guy was married is also liable “Cohabitation” or “living together as husband and wife” means not only residing under one roof, but also having repeated sexual intercourse. Means more than sexual intercourse, especially when one of the parties is already old and may o no longer be interested in sex. At the very least, cohabitation is the public assumption by a man and a woman of the marital relation, and dwelling together as man and wife, thereby holding themselves out to the public as such. (Arcaba v Bataocael) In adultery or concubinage, the complaint must come from the offended spouse. Complainant must be a spouse at the time of the complaint. o
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Married man sleeps with a married woman in a scandalous manner. What crimes are committed by the married man? Adultery o Concubinage o Scandal – any reprehensible word or deed that offends public conscience, redounds to the detriment of the feelings of honest persons, and gives occasion to the neighbors’ spiritual damage or ruin
Art. 336. Acts of lasciviousness. — Any person who shall commit any act of lasciviousness upon other persons of either sex, under any of the circumstances mentioned in the preceding article, shall be punished by prision correccional. Art. 339. Acts of lasciviousness with the consent of the offended party . — The penalty of arresto mayor shall be imposed to punish any other acts of lasciviousness committed by the same persons and the same circumstances as those provided in Articles 337 and 338. •
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Elements of acts of lasciviousness: That the offender commits any act of lasciviousness or lewdness o That the act of lasciviousness is committed against a person of either sex o That it is done under any of the following circumstances: o By using force or intimidation When offended party is deprived of reason or otherwise unconscious By means of fraudulent machination or grave abuse of authority When offended party is under 12 years of age or is demented Difference from attempted rape: in attempted rape, the intent was to lie with the woman. (Remember Lizada v P, where guy was naked, but had not yet put his thing into the girls’ vajayjay. That was attempted rape because of the clear intention to sleep with her.) Lewd design: something indecent, obscene, designed to incite crude sexual design Relate with 7610: RA 7160 penalizes acts of lasciviousness with a minor as child abuse. For prosecution under the o special law, the elements of acts of lasciviousness must be proved as well as the elements of sexual abuse under Sec 5 of RA 7610: Accused commits the act of l ascivious conduct Said act is performed with a child exploited in prostitution or subjected to other sexual abuse The child, whether male or female, is below 18 years of age. If the child is under 12, the offender shall be prosecuted under the Code but the penalty shall be o reclusion temporal instead of prision correccional .82 (Remember this when sir asks if victim under 12, what law shall apply?) (Laudes v People) Elements of consented acts of lasciviousness: That the offender commits acts of lasciviousness or lewdness o That the acts are committed upon a woman who is a virgin or single or widow of good o reputation, under 18 years of age but over 12 years, or a sister or descendant regardless of her reputation or age That the offender accomplishes the acts by abuse of authority, confidence, relationship, or deceit o Acts of lasciviousness Committed under circumstances of rape (without consent, etc) Victim male or female Female need not be a minor or virgin
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(b) Those who commit the act of sexual intercourse of lascivious conduct with a child exploited in prostitution or subject to other sexual abuse; Provided, That when the victims is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious c onduct, as the case ma y be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; Mickey Ingles 4C 2012 Justice Callejo No stamping please!
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Chapter Three SEDUCTION, CORRUPTION OF MINORS AND WHITE SLAVE TRADE Art. 337. Qualified seduction. — The seduction of a virgin over twelve years and under eighteen years of age, committed by any person in public authority, priest, home-servant, domestic, guardian, teacher, or any person who, in any capacity, shall be entrusted with the education or custody of the woman seduced, shall be punished by prision correccional in its minimum and medium periods. The penalty next higher in degree shall be imposed upon any person who shall seduce his sister or descendant, whether or not she be a virgin or over eighteen years of age. Under the provisions of this Chapter, seduction is committed when the offender has carnal knowledge of any of the persons and under the circumstances described herein. Art. 338. Simple seduction. — The seduction of a woman who is single or a widow of good reputation, over twelve but under eighteen years of age, committed by means of deceit, shall be punished by arresto mayor. •
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Two classes of qualified seduction: Seduction of a virgin over 12 and under 18 years of age by certain persons, such as, a person in o authority, priest, teacher, etc. Seduction of a sister by her brother, or descendant by her ascendant, regardless of her age or o reputation First mode: elements of qualified seduction: That the offended party is a virgin, which is presumed if she is unmarried and of good reputation o That she must be over 12 and under 18 years of age o That the offender has sexual intercourse with her o That there is abuse of authority, confidence or relationship on the part of the offender o Virginity not physical but moral - virginity includes a virtuous woman of good reputation If child is under 12, that’s statutory rape If 12 – 18 with force or intimidation: rape o If 12 – 18 with cajolery: qualified seduction, provided virgin o If exactly 12 through cajolery or deceit: Child Abuse Law o Second mode: if the offender is a brother or an ascendant, the age and moral reputation of the girl is not material Abuse of confidence is inherent, not AC Simple seduction elements: That the offended party is over 12 and under 18 years of age o That she must be of good reputation, single or widow (not sure if widow still applies as you can’t o get married under 18) That the offender has sexual intercourse with her o That it is committed by means of deceit o Qualified Seduction Simple Seduction Virgin Single (or a widow) of good reputation Offender is public authority, priest, house Offender may be any person servant, domestic, guardian, teacher or any person entrusted with the education or custody of the woman seduced When the offender is the brother or an Victim cannot be over 18 ascendant, victim may be over 18
Art. 340. Corruption of minors. — Any person who shall promote or facilitate the prostitution or corruption of persons underage to satisfy the lust of another, shall be punished by prision mayor, and if the culprit is a pubic officer or employee, including those in government-owned or controlled corporations, he shall also suffer the penalty of temporary absolute disqualification. (As amended by Batas Pambansa Blg. 92). Art. 341. White slave trade. — The penalty of prision mayor in its medium and maximum period shall be imposed upon any person who, in any manner, or under any pretext, shall engage in the business or shall profit by prostitution or shall enlist the services of any other for the purpose of prostitution (As amended by Batas Pambansa Blg. 186.)
Chapter Four
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ABDUCTION Art. 342. Forcible abduction. — The abduction of any woman against her will and with lewd designs shall be punished by reclusion temporal. The same penalty shall be imposed in every case, if the female abducted be under twelve years of age. Art. 343. Consented abduction. — The abduction of a virgin over twelve years and under eighteen years of age, carried out with her consent and with lewd designs, shall be punished by the penalty of prision correccional in its minimum and medium periods. •
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Elements of forcible abduction: That the person abducted is any woman, regardless of her age, civil status, or reputation o That the abduction is against her will o That the abduction is with lewd designs o Different intent: Arbitrary detention: detain without legal grounds o Kidnapping: deprive of liberty o Forcible abduction: lewd designs o Interplay with rape: If the intent was to rape, and the victim was brought to a place to rape her, no complex crime of o forcible abduction with rape. Only rape. Abduction is absorbed by rape. (P v Almanzor) Victim was abducted and brought to a grassy area near her house. She was raped. Abduction was absorbed. (P v Mojerada) Victim brought 600m from her house where she was raped. Abduction still absorbed by rape. (P v Godinez) But when is it not absorbed?! o Abducted to place 100m from her house. Court said forcible abduction with rape. (P v Abarquez) Main determinant is the specific intention of the offender, and not the di stance. o What if there was abduction (which was necessary to commit the rape) and then there were o three rapes done after? The moment the first rape was committed, then forcible abduction with rape was consummated. The second and third rapes were separate crimes. Hence, one complex crime of forcible abduction with rape, and then two separate simple crimes of rape. (P v Garcia, P v Caraang) Rules to follow (this looks familiar because it was in the Crim 1 notes and already cited above. But just for repetition because it’s important: Intent to rape: simple rape. Taking incidental. o Intent to take woman against her will with lewd designs: forcible abduction with rape o (information must allege lewd designs) If multiple rapes, complex crime of forcible abduction with rape, then for the other rapes file separately. Intent was to kidnap for ransom, but after rape was committed as an afterthought: special o complex crime of kidnapping with rape
Chapter Five PROVISIONS RELATIVE TO THE PRECEDING CHAPTERS OF TITLE ELEVEN Art. 344. Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and acts of lasciviousness. — The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse. The offended party cannot institute criminal prosecution without including both the guilty parties, if they are both alive, nor, in any case, if he shall have consented or pardoned the offenders. The offenses of seduction, abduction, [rape] or acts of lasciviousness, shall not be prosecuted except upon a complaint filed by the offended party or her parents, grandparents, or guardian, nor, in any case, if the offender has been expressly pardoned by the above named persons, as the case may be. In cases of seduction, abduction, acts of lasciviousness and rape, the marriage of the offender with the offended party shall extinguish the criminal action or remit the penalty already imposed upon him. The provisions of this paragraph shall also be applicable to the co-principals, accomplices and accessories after the fact of the above-mentioned crimes. •
RA 8353 did not repeal this article, merely amended it.
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Rape can now be filed even without the consent of the victim (since now private crime.) GR: Pardon must be given before the prosecution of the crime. EXC: in rape, because not a crime against person and RA 8353 states that the penalty imposed o shall be remitted, meaning that pardon is effective even if judgment had already been rendered 83 For rape, see notes on Rape. Adultery or Concubinage – bars prosecution of crime Must be made: o Before the institution of the criminal action, and Both offenders must be pardoned by both parties Acts of Lasciviousness, Seduction and Abduction – bars prosecution of crime Must be EXPRESS o Before the institution of criminal action o Only offended party may pardon Pardon of offended party who is a minor must have concurrence of parents (except: when she o has no parents) Condonation is not pardon in concubinage or adultery; any act of infidelity subsequent to condonation constitutes a new offense Since it is only the offended spouse can file the complaint, condonation or consent to the illicit o affair of the other spouse will bar prosecution. But won’t apply to acts of infidelity after such condonation. Who should file? Adultery or Concubinage o Only offended spouse can file the complaint Both parties, if both alive, must be included in complaint Both parties must be included even if one of them is not guilty Seduction, Abduction or Acts of Lasciviousness o The right to file action granted to parents, grandparents or guardian shall be exclusive of all other persons and shall be exercise successively It is exclusive, because if the parent, f or example, refuse to file, the grandparents cannot file the complaint When offended party is a minor, her parents may file complaint When offended party is of age, and she is complete possession of her mental and physical faculties, she alone can file the compl aint The father, if living, is not necessarily preferred to the mother in filing the complaint o
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Art. 345. Civil liability of persons guilty of crimes against chastity . — Person guilty of rape, seduction or abduction, shall also be sentenced: 1. To indemnify the offended woman. 2. To acknowledge the offspring, unless the law should prevent him from so doing. 3. In every case to support the offspring. The adulterer and the concubine in the case provided for in Articles 333 and 334 may also be sentenced, in the same proceeding or in a separate civil proceeding, to indemnify for damages caused to the offended spouse. •
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Civil liability for rape, seduction or abduction: Indemnify the offended woman o Acknowledge the offspring, unless the law should prevent him from doing so o In every case, support the offspring o Acts of lasciviousness not included In rape, no more need to acknowledge the offspring as seen in P v Magtibay: With the passage of the Family Code, the classification of acknowledged natural children and o natural children by legal fiction was eliminated and they now fall under the specie of illegitimate children. Since parental authority is vested by Article 176 of the Family Code upon the mother and o
83 Article 266-C. Effect of Pardon. The subsequent valid marriage between the offender and the offended party shall extinguish the criminal action or the penalty imposed. In case it is the legal husband who is the offender, the subsequent forgiveness by the wife as the offended party shall extinguish the criminal action or the penalty: Provided, That the crime shall not be extinguished or the penalty shall not be abated if the marriage is void ab initio.
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considering that an offender sentenced to reclusion perpetua automatically loses parental authority over his children, no “further positive act is required of the parent as the law itself provides for the child’s status.” Hence, rapist (even if married) should only be ordered to indemnify and support the victim’s child. However, the amount and terms of support shall be determined by the trial court after due notice and hearing in accordance with Article 201 of the Family Code. No more need for the prohibition against acknowledgment of the offspring of the offender who is a married man which would vest parental authority in him. (P v Bayani)
Art. 346. Liability of ascendants, guardians, teachers, or other persons entrusted with the custody of the offended party . — The ascendants, guardians, curators, teachers and any person who, by abuse of authority or confidential relationships, shall cooperate as accomplices in the perpetration of the crimes embraced in chapters, second, third and fourth, of this title, shall be punished as principals. Teachers or other persons in any other capacity entrusted with the education and guidance of youth, shall also suffer the penalty of temporary special disqualification in its maximum period to perpetual special disqualification. Any person falling within the terms of this article, and any other person guilty of corruption of minors for the benefit of another, shall be punished by special disqualification from filling the office of guardian. Title Twelve CRIMES AGAINST THE CIVIL STATUS OF PERSONS Chapter one SIMULATION OF BIRTHS AND USURPATION OF CIVIL STATUS Art. 347. Simulation of births, substitution of one child for another and concealment or abandonment of a legitimate child. — The simulation of births and the substitution of one child for another shall be punished by prision mayor and a fine of not exceeding 1,000 pesos. The same penalties shall be imposed upon any person who shall conceal or abandon any legitimate child with intent to cause such child to lose its civil status. Any physician or surgeon or public officer who, in violation of the duties of his profession or office, shall cooperate in the execution of any of the crimes mentioned in the two next preceding paragraphs, shall suffer the penalties therein prescribed and also the penalty of temporary special disqualification. Art. 348. Usurpation of civil status. — The penalty of prision mayor shall be imposed upon any person who shall usurp the civil status of another, should he do so for the purpose of defrauding the offended part or his heirs; otherwise, the penalty of prision correccional in its medium and maximum periods shall be imposed. •
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Simulation of birth must be made in the birth certificate. If in another document, that’s falsification. o Under RA 7610, child trafficking is the crime if the parents agree to the adoption of their child for a consideration, or when the physician falsely made it appear in the record of birth that the supposed parents are the natural parents.
Chapter Two ILLEGAL MARRIAGES Art. 349. Bigamy. — The penalty of prision mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings. •
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Elements: That the offender has been legally m arried o That the marriage has not been legally dissolved or, in case his or her spouse is absent, the o absent spouse could not yet be presumed dead according to the CC That he contracts a second or subsequent marriage o That the second or subsequent marriage has all the essential requisites for validity o There must be a judicial declaration of absolute nullity of marriage before contracting another. (Mercado v Tan) If none or it comes subsequent to the marriage, bigamy. o Bigamy consummated upon the celebration of the 2nd marriage. (Tenebro v CA) o Must there be a declaration of presumptive death? Yes! (Manuel v People, where the other spouse was absent for 21 years and was used as a o
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