PAREDES After Midterm

Criminal Law Review 2008
4. any person who not being included in the provisions of the 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 this purpose, women who, for profit or money, habitually indulge in sexual intercourse or lascivious conduct, are deemed prostitutes. Article 202 Vagrants and prostitutes In prostitution, the crime can only be committed by a woman THERE IS HABITUALITY The woman is of age For money or profit RA 7610 as amended Child abuse act Can be committed by children whether male or female Even if committed once, offender is liable Still a child or minor For money, profit or any other consideration, or due to coercion of any adult or syndicate or group
ANTI-MENDICANCY LAW (PD 1563) This special law has been modified in part by RA 7610 with respect to children Any person who has no visible and legal means of support, or lawful employment and who is physically able to work but neglects to apply himself to some lawful calling and instead uses begging as a means of living is a MENDICANT. There is also a crime known as abetting mendicancy = giving alms directly to mendicants, exploited minors or infants on public roads, sidewalks, parks. So that if you give alms to mendicants in your house, you will not be liable for abetting mendicancy.
TITLE SEVEN CRIMES COMMITTED BY PUBLIC OFFICERS
Militis Lex Fraternity 09 (by EDLER)
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The designation of th public officer, when t crim The public off e.

Chapter One PRELIMINARY PROVISIONS
ARTICLE 203 WHO ARE PUBLIC OFFICERS Any person who, by direct provision of the law, popular election of appointment by competent authority, shall take part in the performance of public functions in the government, or shall perform in said government or any of its branches PUBLIC DUTIES as an employee, agent, or subordinate official, of any rank or classes, shall be deemed as public officers. Public officers and employees are defined in several laws. 1. Revised Penal Code (this article) 2. RA 3019 (ANTI GRAFT AND CORRUPTION PRACTICES ACT) "Public officer" includes elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exempt service receiving compensation, even nominal, from the government as defined in the preceding subparagraph. 3. RA 6713 (CODE OF CONDUCT) "Public Officials" includes elective and appointive officials and employees, permanent or temporary, whether in the career or non-career service, including military and police personnel, whether or not they receive compensation, regardless of amount. 4. RA 1379 (UNEXPLAINED WEALTH LAW) "Public officer or employee" means any person holding any public office or employment by virtue of an appointment, election or contract, and any person holding any office or employment, by appointment or contract, in any State owned or controlled corporation or enterprise. 5. RA 7080 (PLUNDER ACT) Public Officer means any person holding any public office in the Government of the Republic of the Philippines by virtue of an appointment, election or contract. Originally, Title VII used the phrase public officer or employee but the latter word has been held meaningless and useless because in criminal law, public officer covers all public servants, whether an official or an employee, from the highest to the lowest position regardless of rank or class; whether appointed by competent authority or by popular election or by direct provision of law. Under Republic Act No. 3019 (The Anti-Graft and Corrupt Practices Act), the term public officer is broader and more comprehensive because it includes all persons whether an official or an employee, temporary or not, classified or not, contractual or otherwise. Any person who receives compensation for services rendered is a public officer. Breach of oath of office partakes of three forms: (1) Malfeasance - when a public officer performs in his public office an act prohibited by law.
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In som cases, it can e e a prisoner where the
Example: bribery. (2) Misfeasance - when a public officer performs official acts in the manner not in accordance with what the law prescribes.
(3) Nonfeasance - when a public officer willfully refrains or refuses to perform an official duty which his office requires him to perform.
Chapter Two MALFEASANCE AND MISFEASANCE IN OFFICE

Section One. Dereliction of duty ARTICLE 204 KNOWINGLY RENDERING UNJUST JUDGEMENT A. ELEMENTS 1. Offender is a Judge 2. Renders a judgment in a case submitted to him for decision. 3. The judgment is unjust. 4. Judge knows that it is unjust. NOTA BENE: In Re: Joaquin Borromeo, A.M. No. 937696-0. February 21, 1995. A judge cannot be charged with knowingly rendering unjust judgement if there is a pending appeal or the judgement is not yet final. Take note of the word KNOWINGLY when done deliberately and maliciously. (very important). This crime cannot be committed by any member of a collegiate court like COURT OF APPEALS, SANDIGANBAYAN, SUPREME COURT. This is only applicable to a single judge court. In Re: Wenceslao Laureta G.R. No. 68635. March 12, 1987 "Respondents should know that the provisions of Article 204 of the Revised Penal Code as to "rendering knowingly unjust judgment," refer to an individual judge who does so "in any case submitted to him for decision" and even then, it is not the prosecutor who would pass judgment on the "unjustness" of the decision rendered by him but the proper appellate court with jurisdiction to review the same, either the Court of Appeals and/or the Supreme Court. Respondents should likewise know that said penal article has no application to the members of a collegiate court such as this Court or its Divisions who reach their conclusions in consultation and accordingly render their collective judgment after due deliberation. It also follows, consequently, that a charge of violation of the AntiGraft and Corrupt Practices Act on the ground that such collective decision is "unjust" cannot prosper. The crime of knowingly rendering an unjust judgment, or knowingly issuing an unjust interlocutory order, may be committed only by a judge of a trial court and never of an
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appellate court. The reason for this is that in appellate court, not only one magistrate renders or issues the interlocutory order. An appellate court functions as a division and the resolutions thereof are handed down only after deliberations among the members of a division so that it cannot be said that there is malice or inexcusable negligence or ignorance in the rendering of a judgment or order that is supposedly unjust as held by the Supreme Court in one administrative case. There is more injustice done in cases of judgment than mere interlocutory order that is why the penalty is higher in the first case. ARTICLE 205 JUDGEMENT RENDERED THROUGH NEGLIGENCE A. ELEMENTS 1. Offender is a Judge 2. Renders a judgment in a case submitted before him 3. The judgment is manifestly unjust. 4. That it is due to inexcusable negligence or ignorance. Any JUDGE who by reason of inexcusable negligence or ignorance, shall render a manifestly unjust judgement in any case submitted to him for decision shall be held liable under this article. manifestly unjust judgement: MANIFESTLY contrary to law, that even a person of meager knowledge of the law cannot doubt the injustice. ARTICLE 206 UNJUST INTERLOCUTORY ORDER A. Elements 1. Offender is a Judge 2. He performs the following acts a. knowingly renders an unjust interlocutory order or decree. b. Renders a manifestly unjust interlocutory order or decree through inexcusable negligence or ignorance. Any JUDGE who shall knowingly render an unjust interlocutory order or decree shall be liable under this article. However, if the said Judge shall have acted By reason of inexcusable negligence or ignorance and the interlocutory order or decree be manifestly unjust, he shall suffer the penalty of suspension. A final judgement is one that is subject to an execution An interlocutory order, there is still something to be done still with the case. Example: Preliminary Attachment. There are grounds to be observed to take into account before a writ of preliminary attachment can be ordered. If the judge, despite absence of any grounds issues the writ, then he is liable under article 206. Other examples: recovery of property with injunction, TRO ARTICLE 207 MALICIOUS DELAY IN THE ADMINISTRATION OF JUSTICE
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A. Elements 1. Offender is a judge 2. There is a proceeding in the court 3. Delays the administration of justice 4. Delay is malicious, that is, the delay is caused by the Judge with deliberate intent to inflict damage on either party in the case. Delay should be malicious. Delay is tainted with malice when calculated to cause harm or injury to persons or either party in the case.. Mere delay WITHOUT malice not necessarily punishable ARTICLE 208 PROSECUTION OF OFFENSES; NEGLIGENCE AND TOLERANCE A. Acts Punished 1. Maliciously refraining from instituting prosecution against violators of law. 2. Maliciously tolerating the commission of offense. B. Elements 1. Offender is a public officer or officer of the law, who has the duty to cause the prosecution of, or to prosecute offenses. 2. Knowing the commission of the crime, he does not prosecute the criminal or knowing that a crime is about to be committed tolerates its commission. 3. Offender acts with malice and deliberate intent to favor the violator of the law. Any public officer or officers of the law, who, in dereliction of the duties to his office, shall maliciously refrain from instituting prosecution for the punishment of the violators of the law, or shall tolerate the commission of offenses. Read case U.S. vs. Mendoza: The issue on guilt or the violation of the law is a prejudicial question and shall or must be established first prior to or before the prosecution. NOTA BENE: Mistaken notion of some lawyers --- they believe that the public officer liable is a policeman NO. only public prosecutors are liable. It is not the task of a policeman or police officer to prosecute, okay? So for instance, if a policeman caught a snatcher upon compliant of the victim, after the victim has left the scene, the policeman freed the snatcher. The policeman is not liable for violation of article 208 BUT he can be liable as an accessory to the crime of theft or robbery as the case may be. Offenders here: 1. public officers or 2. officers of the law A public officer engaged in the prosecution of offenders shall maliciously tolerate the commission of crimes or refrain from prosecuting offenders or violators of the law. This crime can only be committed by a public officer whose official duty is to prosecute offenders, that is, state prosecutors. Hence, those officers who are not duty bound to perform these obligations cannot commit this crime in the strict sense.
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When a policeman tolerates the commission of a crime or otherwise refrains from apprehending the offender, such peace officer cannot be prosecuted for this crime but they can be prosecuted as: (1) (2) (3) An accessory to the crime committed by the principal in accordance with Article 19, paragraph 3; or He may become a fence if the crime committed is robbery or theft, in which case he violates the Anti-Fencing Law; or He may be held liable for violating the Anti-Graft and Corrupt Practices Act.
However, in distant provinces or municipalities where there are no municipal attorneys, the local chief of police is the prosecuting officer. If he is the one who tolerates the violations of laws or otherwise allows offenders to escape, he can be prosecuted under this article. This is also true in the case of a barangay chairman. They are supposed to prosecute violators of laws within their jurisdiction. If they do not do so, they can be prosecuted for this crime. Prevaricacion This used to be a crime under the Spanish Codigo Penal, wherein a public officer regardless of his duty violates the oath of his office by not carrying out the duties of his office for which he was sworn to office, thus, amounting to dereliction of duty. But the term prevaricacion is not limited to dereliction of duty in the prosecution of offenders. It covers any dereliction of duty whereby the public officer involved violates his oath of office. The thrust of prevaricacion is the breach of the oath of office by the public officer who does an act in relation to his official duties. While in Article 208, dereliction of duty refers only to prosecuting officers, the term prevaricacion applies to public officers in general who is remiss or who is maliciously refraining from exercising the duties of his office. Illustration: The offender was caught for white slavery. The policeman allowed the offender to go free for some consideration. The policeman does not violate Article 208 but he becomes an accessory to the crime of white slavery. But in the crime of theft or robbery, where the policeman shared in the loot and allowed the offender to go free, he becomes a fence. Therefore, he is considered an offender under the Anti-Fencing Law. Relative to this crime under Article 208, consider the crime of qualified bribery. Among the amendments made by Republic Act No. 7659 on the Revised Penal Code is a new provision which reads as follows: Article. 211-A. Qualified Bribery If any public officer is entrusted with law enforcement and he refrains from arresting or prosecuting an
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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. Actually the crime is a kind of direct bribery where the bribe, offer, promise, gift or present has a consideration on the part of the public officer, that is refraining from arresting or prosecuting the offender in consideration for such offer, promise, gift or present. In a way, this new provision modifies Article 210 of the Revised Penal Code on direct bribery. However, the crime of qualified bribery may be committed only by public officers entrusted with enforcement whose official duties authorize then to arrest or prosecute offenders. Apparently, they are peace officers and public prosecutors since the nonfeasance refers to arresting or prosecuting. But this crime arises only when the offender whom such public officer refrains from arresting or prosecuting, has committed a crime punishable by reclusion perpetua and/or death. If the crime were punishable by a lower penalty, then such nonfeasance by the public officer would amount to direct bribery, not qualified bribery. If the crime was qualified bribery, the dereliction of the duty punished under Article 208 of the Revised Penal Code should be absorbed because said article punishes the public officer who maliciously refrains from instituting prosecution for the punishment of violators of the law or shall tolerate the commission of offenses. The dereliction of duty referred to is necessarily included in the crime of qualified bribery. On the other hand, if the crime was direct bribery under Article 210 of the Revised Penal Code, the public officer involved should be prosecuted also for the dereliction of duty, which is a crime under Article 208 of the Revised Penal Code, because the latter is not absorbed by the crime of direct bribery. This is because in direct bribery, where the public officer agreed to perform an act constituting a crime in connection with the performance of his official duties, Article 210 expressly provides that the liabilty thereunder shall be in addition to the penalty corresponding to the crime agreed upon, if the crime shall have been committed. Illustration: A fiscal, for a sum of money, refrains from prosecuting a person charged before him. If the penalty for the crime involved is reclusion perpetua, the fiscal commits qualified bribery. If the crime is punishable by a penalty lower than reclusion perpetua, the crime is direct bribery. In the latter situation, three crimes are committed: direct bribery and dereliction of duty on the part of the fiscal; and corruption of a public officer by the giver. ARTICLE 209 BETRAYAL OF TRUST BY AN ATTORNEY OF SOLICITOR REVELATION OF SECRETS
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A. Acts punished: Here, there must be damage to his 1. by causing damage to his client, either client a. by any malicious breach of professional duty b. by inexcusable negligence or ignorance 2. by revealing any of the secrets of his client learned by him in his professional capacity 3. by undertaking the defense of the opposing party in the same case, without the consent of his first client, after having undertaken the defense of the said first client or after having received confidential information from said client. B. Elements 1. Offender is an attorney 2. Causes damage to his client a) by malicious breach of professional duty. b) by inexcusable negligence or ignorance 3. Revealing the secret of his client learned by him (damage is not necessary) 4. Undertaking the defense of the opposing party in the same case, without the consent of his first client, after having undertaken the defense of the first client or after received confidential information from the said client. NOTA BENE: In addition to the criminal liability, he can also be held administratively like suspension from the practice of law Under the rules on evidence, communications made with prospective clients to a lawyer with a view to engaging his professional services are already privileged even though the client-lawyer relationship did not eventually materialize because the client cannot afford the fee being asked by the lawyer. The lawyer and his secretary or clerk cannot be examined thereon. That this communication with a prospective client is considered privileged, implies that the same is confidential. Therefore, if the lawyer would reveal the same or otherwise accept a case from the adverse party, he would already be violating Article 209. Mere malicious breach without damage is not violative of Article 209; at most he will be liable administratively as a lawyer, e.g., suspension or disbarment under the Code of Professional Responsibility. Illustration: B, who is involved in the crime of seduction wanted A, an attorney at law, to handle his case. A received confidential information from B. However, B cannot pay the professional fee of A. C, the offended party, came to A also and the same was accepted. A did not commit the crime under Article 209, although the lawyers act may be considered unethical. The client-lawyer relationship between A and B was not yet established. Therefore, there is no trust to violate because B has not yet actually engaged the services of the lawyer A. A is not bound to B. However, if A would reveal the confidential matter learned by him from B, then Article 209 is violated because it is enough that such confidential matters were communicated to him in his professional capacity, or it was made to him with a view to engaging his professional services.
note: damage here is not necessary
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Here, matters that are considered confidential must have been said to the lawyer with the view of engaging his services. Otherwise, the communication shall not be considered privileged and no trust is violated. Illustration: A went to B, a lawyer/notary public, to have a document notarized. A narrated to B the detail of the criminal case. If B will disclose what was narrated to him there is no betrayal of trust since B is acting as a notary public and not as a counsel. The lawyer must have learned the confidential matter in his professional capacity. Several acts which would make a lawyer criminally liable: (1) Maliciously causing damage to his client through a breach of his professional duty. The breach of professional duty must be malicious. If it is just incidental, it would not give rise to criminal liability, although it may be the subject of administrative discipline; Through gross ignorance, causing damage to the client; Inexcusable negligence; Revelation of secrets learned in his professional capacity; Undertaking the defense of the opposite party in a case without the consent of the first client whose defense has already been undertaken.
(2) (3) (4) (5)
Note that only numbers 1, 2 and 3 must approximate malice. A lawyer who had already undertaken the case of a client cannot later on shift to the opposing party. This cannot be done. Under the circumstances, it is necessary that the confidential matters or information was confided to the lawyer in the latters professional capacity. It is not the duty of the lawyer to give advice on the commission of a future crime. It is, therefore, not privileged in character. The lawyer is not bound by the mandate of privilege if he reports such commission of a future crime. It is only confidential information relating to crimes already committed that are covered by the crime of betrayal of trust if the lawyer should undertake the case of opposing party or otherwise divulge confidential information of a client. Under the law on evidence on privileged communication, it is not only the lawyer who is protected by the matter of privilege but also the office staff like the secretary. The nominal liability under this article may be constituted either from breach of professional duties in the handling of the case or it may arise out of the confidential relation between the lawyer and the client. Breach of professional duty
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Tardiness in the prosecution of the case for which reason the case was dismissed for being non-prosecuted; or tardiness on the part of the defense counsel leading to declaration of default and adverse judgment. Professional duties Lawyer must appear on time. But the client must have suffered damage due to the breach of professional duty. Otherwise, the lawyer cannot be held liable. If the prosecutor was tardy and the case was dismissed as non-prosecuted, but he filed a motion for consideration which was granted, and the case was continued, the lawyer is not liable, because the client did not suffer damage. If lawyer was neglectful in filing an answer, and his client declared in default, and there was an adverse judgment, the client suffered damages. The lawyer is liable. Breach of confidential relation Revealing information obtained or taking advantage thereof by accepting the engagement with the adverse party. There is no need to prove that the client suffered damages. The mere breach of confidential relation is punishable. In a conjugal case, if the lawyer disclosed the confidential information to other people, he would be criminally liable even though the client did not suffer any damage. The client who was suing his wife disclosed that he also committed acts of unfaithfulness. The lawyer talked about this to a friend. He is, thus, liable. Section Two. Bribery ARTICLE 210 DIRECT BRIBERY A. Acts punished: 1. AGREEING TO PERFORM, or by PERFORMING, in consideration of any offer, promise, gift or present an act constituting a crime, IN CONNECTION WITH THE PERFORMANCE OF THE public officers DUTY; 2. ACCEPTING a gift in consideration of the execution of an act which does not constitute a crime, in connection with the performance of his duty; 3. AGREEING TO REFRAIN, or by REFRAINING, from doing something which it is his official duty to do, in consideration of a gift or promise B. Elements 1. Offender is a public officer 2. Accepts an offer or a promise or receives gifts or present by himself or through another. 3. The offender was accepted in view of committing some crime, - in consideration of the execution of an act which does not constitute a crime, but the act must be unjust. - refrain from doing which it is his official duty to do so 4. The act which the offender agrees to perform must be connected with the performance of his official duties.
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NOTA BENE: Bribery cannot be complexed with and cannot be absorbed by other crimes, as the penalty of bribery is imposed as an addition to the penalties imposed with other crimes. Nota bene: There is no specific crime of extortion under the RPC. But there are crimes with the character of extortion like robbery, kidnapping, blackmail, grave or light threats. They are in the nature of extortion. There must be CONSIDERATION in the three acts punished because it is the consideration that makes it a crime. it is however necessary that the consideration be ACTUALLY DELIVERED and/or ACTUALLY RECEIVED by the public officer involved. 2 persons involved: a. the corruptor or giver
b.
the receiver or public officer(remember
that the acceptance must be in consideration or in
relation to his office.)
*IF THE ACT TO BE PERFORMED IS A CRIME, The moment that the agreement is definitely arrived at, bribery is committed. Mere agreement (mutuality of thinking) consummates the crime of bribery because even the REFRAINing itself is punishable as a crime. WHY? Because as long as there is mutuality of thinking, there is even no need for the actual delivery of the consideration as long as the act to be performed is a crime. *BUT IF THE ACT TO BE PERFORMED DOES NOT CONSTITUTE A CRIME, even if an agreement is made, there is no conspiracy, and so there is no subject for the bribery, unless the giver has actually delivered the consideration and the public officer already executed the act (so here, there must be execution because without execution of either side, you have no evidence of the crime of bribery) bribery is a crime from the viewpoint of the receiver or public officer; it is corruption of public official on the part of the corruptor or giver. Direct bribery Direct bribery is socalled because the consideration or gift or present is precisely for the act to be committed or which the public officer shall refrain to commit. There is agreement The offender public officer agrees to perform or performs an act or refrains from doing something because of the gift or promise Indirect bribery In indirect bribery the consideration , gift, or present is given not because of an act to be performed or which he which he should refrain from performing, rather it is given by reason of the of the office held by such public officer The corruptor simply gives without prior agreement It is not necessary that the offender should do any act or particular act or even promise to do an act because it is enough that he accepts gifts offered to him by reason of his office.
Q: is there a distinction between bribery and robbery? A: Illustration: A policeman went inside the store and found out that the store owner sells liquor without license. He said to the owner that if you will not give me 5 rims of cigarettes or two long-necked bottles of tanduay rum, I will arrest you. so the owner gave him. Is this bribery? NO! the crime is
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ROBBERY. There is a mistaken notion that robbery can only be committed with the use of a weapon either pistol, knife or any weapon. The essence of robbery is that due to force or intimidation, the offended party delivers because of the force and intimidation. So the distinction therefore is that in bribery, the gift or present or consideration is VOLUNTARILY GIVEN. In robbery, there is violence or intimidation. Read People vs.
Francisco 45 phil 819

Q: is there frustrated bribery? A: NONE. It is either attempted or consummated. It is not bribery if the act done is in discharge of a MORAL DUTY. Q: what is PREVARICACION? A: similar with the 3rd act punished in direct bribery The third form of direct bribery is committed by refraining from doing something which pertains to the official duty of the officer. PREVARICACION (article 208) is committed the same way. In this regard, the two felonies are similar. But they differ in that BRIBERY the offender refrained form doing his official duty in consideration of a gift received or promised. This element is not necessary in the crime of prevaricacion (the element of consideration is not so important in this crime) It is a common notion that when you talk of bribery, you refer to the one corrupting the public officer. Invariably, the act refers to the giver, but this is wrong. Bribery refers to the act of the receiver and the act of the giver is corruption of public official. Distinction between direct bribery and indirect bribery Bribery is direct when a public officer is called upon to perform or refrain from performing an official act in exchange for the gift, present or consideration given to him. If he simply accepts a gift or present given to him by reason of his public position, the crime is indirect bribery. Bear in mind that the gift is given "by reason of his office", not "in consideration" thereof. So never use the term consideration. The public officer in Indirect bribery is not to perform any official act. Note however that what may begin as an indirect bribery may actually ripen into direct bribery. Illustration: Without any understanding with the public officer, a taxi operator gave an expensive suiting material to a BLT registrar. Upon receipt by the BLT registrar of his valuable suiting material, he asked who the giver was. He found out that he is a taxi operator. As far as the giver is concerned, he is giving this by reason of the office or position of the public officer involved. It is just indirect bribery . If the BLT registrar calls up his subordinates and said to take care of the taxis of the taxi operator so much so that the registration of the taxis is facilitated ahead of the others, what originally would have been indirect bribery becomes direct bribery.
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In direct bribery, consider whether the official act, which the public officer agreed to do, is a crime or not. If it will amount to a crime, it is not necessary that the corruptor should deliver the consideration or the doing of the act. The moment there is a meeting of the minds, even without the delivery of the consideration, even without the public officer performing the act amounting to a crime, bribery is already committed on the part of the public officer. Corruption is already committed on the part of the supposed giver. The reason is that the agreement is a conspiracy involving the duty of a public officer. The mere agreement is a felony already. If the public officer commits the act which constitutes the crime, he, as well as the corruptor shall be liable also for that other crime. Illustrations: (1) If the corruptor offers a consideration to a custodian of a public record to remove certain files, the mere agreement, without delivery of the consideration, brings about the crime of direct bribery and corruption of public official. If the records were actually removed, both the public officer and the corruptor will in addition to the two felonies above, will also be liable for the crime committed, which is infidelity in the custody of the public records for which they shall be liable as principals; one as principal by inducement, the other as principal by direct participation. (2) A party litigant approached the courts stenographer and proposed the idea of altering the transcript of stenographic notes. The court stenographer agreed and he demanded P 2,000.00. Unknown to them, there were law enforcers who already had a tip that the court stenographer had been doing this before. So they were waiting for the chance to entrap him. They were apprehended and they said they have not done anything yet. Under Article 210, the mere agreement to commit the act, which amounts to a crime, is already bribery. That stenographer becomes liable already for consummated crime of bribery and the party who agreed to give that money is already liable for consummated corruption, even though not a single centavo is delivered yet and even though the stenographer had not yet made the alterations. If he changed the transcript, another crime is committed: falsification. The same criterion will apply with respect to a public officer who agrees to refrain from performing his official duties. If the refraining would give rise to a crime, such as refraining to prosecute an offender, the mere agreement to do so will consummate the bribery and the corruption, even if no money was delivered to him. If the refraining is not a crime, it would only amount to bribery if the consideration be delivered to him.
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If it is not a crime, the consideration must be delivered by the corruptor before a public officer can be prosecuted for bribery. Mere agreement, is not enough to constitute the crime because the act to be done in the first place is legitimate or in the performance of the official duties of the public official. Unless the public officer receives the consideration for doing his official duty, there is no bribery. It is necessary that there must be delivery of monetary consideration. This is so because in the second situation, the public officer actually performed what he is supposed to perform. It is just that he would not perform what he is required by law to perform without an added consideration from the public which gives rise to the crime. The idea of the law is that he is being paid salary for being there. He is not supposed to demand additional compensation from the public before performing his public service. The prohibition will apply only when the money is delivered to him, or if he performs what he is supposed to perform in anticipation of being paid the money. Here, the bribery will only arise when there is already the acceptance of the consideration because the act to be done is not a crime. So, without the acceptance, the crime is not committed. Direct bribery may be committed only in the attempted and consummated stages because, in frustrated felony, the offender must have performed all the acts of execution which would produce the felony as a consequence. In direct bribery, it is possible only if the corruptor concurs with the offender. Once there is concurrence, the direct bribery is already consummated. In short, the offender could not have performed all the acts of execution to produce the felony without consummating the same. Actually, you cannot have a giver unless there is one who is willing to receive and there cannot be a receiver unless there is one willing to give. So this crime requires two to commit. It cannot be said, therefore, that one has performed all the acts of execution which would produce the felony as a consequence but for reasons independent of the will, the crime was not committed. It is now settled, therefore, that the crime of bribery and corruption of public officials cannot be committed in the frustrated stage because this requires two to commit and that means a meeting of the minds. Illustrations: (1) If the public official accepted the corrupt consideration and turned it over to his superior as evidence of the corruption, the offense is attempted corruption only and not frustrated. The official did not agree to be corrupted. If the public officer did not report the same to his superior and actually accepted it, he allowed himself to be corrupted. The corruptor becomes liable for consummated corruption of public official. The public officer also becomes equally liable for consummated bribery. (2) If a public official demanded something from a taxpayer who pretended to agree and use marked money with the knowledge of the police, the crime of the public official is attempted bribery. The reason is that because the giver
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has no intention to corrupt her and therefore, he could not perform all the acts of execution. Be sure that what is involved is a crime of bribery, not extortion. If it were extortion, the crime is not bribery, but robbery. The one who yielded to the demand does not commit corruption of a public officer because it was involuntary.
Updates in BRIBERY
A comparison of the elements of the crime of direct bribery defined and punished under Article 210 of the Revised Penal Code and those of violation of Section 3 (b) of RA 3019 shows that there is neither identity nor necessary inclusion between the two offenses. Section 3 (b) of RA 3019 provides: Sec. 3. 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 unlawful: xxx xxx xxx (b) Directly or indirectly requesting or receiving any gift, present, share percentage or benefit, for himself or for any other person, in connection with any contract or transaction between the Government and any other party, wherein the public officer in his official capacity has to intervene under the law. xxx xxx xxx The elements of the crime penalized under Section 3 (b) of RA 3019 are: (1) the offender is a public officer; (2) he requested or received a gift, present, share, percentage or benefit; (3) he made the request or receipt on behalf of the offender or any other person; (4) the request or receipt was made in connection with a contract or transaction with the government and (5) the has the right to intervene, in an official capacity under the law, in connection with a contract or transaction has the right to intervene. On the other hand, direct bribery has the following essential elements: (1) the offender is a public officer; (2) the offender accepts an offer or promise or receives a gift or present by himself or through another; (3) such offer or promise be accepted or gift or present be received by the public officer with a view to committing some crime, or in consideration of the execution of an act which does not constitute a crime but the act must be unjust, or to refrain from doing something which it is his official duty to do and (4) the act which the offender agrees to perform or which he executes is connected with the performance of his official duties. Clearly, the violation of Section 3 (b) of RA 3019 is neither identical nor necessarily inclusive of direct bribery. While they have common elements, not all the essential elements of one offense are included among or form part of those enumerated in the other. Whereas the mere request or demand of a gift, present, share, percentage or benefit is enough to constitute a violation of Section 3 (b) of RA 3019, acceptance of a promise or offer or receipt of a gift or present is required in direct bribery. Moreover, the ambit of Section 3 (b) of RA 3019 is specific. It is limited only to contracts or transactions involving monetary consideration where the public officer has the authority to intervene under the law. Direct bribery, on the other hand, has a wider and more general scope: (a) performance of an act constituting a crime; (b) execution of an unjust act which does not constitute a crime and (c) agreeing to refrain or refraining from doing an act which is his official duty to do. Although the two charges against petitioner stemmed from the same transaction, the same act gave rise to two separate and distinct offenses. No double jeopardy attached since there was a variance between the elements of the offenses charged. 33 The constitutional protection against double jeopardy proceeds from a second prosecution for the same offense, not for a different one. o By analogy, reference may be made to Articles 210 (Direct Bribery) and 212 (Corruption of Public Officials) of the Revised Penal Code. In Direct Bribery, the public officer agrees to perform an act either constituting or not constituting a crime, in consideration of any offer, promise, gift or present received by such officer. Significantly, only the public officer may be indicted under and be held liable for Direct Bribery under Article 210, while the person who conspired with the public officer, who made the promise, offer, or gave the gifts or presents, may be indicted only under Article 212 for Corruption of Public Officials, regardless of any allegation of conspiracy.
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Indeed, it is axiomatic that all conspirators are criminally liable as co-principals. However, they may not be necessarily charged with violation of the same offense. The public officer may be charged under one provision while the private person is indicted under a different provision, although the offenses originate from the same set of acts. Thus, the public officer may be accused of Direct Bribery while the private person may be charged with corruption of public officials.
The crime of direct bribery as defined in Article 210 of the Revised Penal Code consists of the following elements: (1) that the accused is a public officer; (2) that he received directly or through another some gift or present, offer or promise; (3) that such gift, present or promise has been given in consideration of his commission of some crime, or any act not constituting a crime, or to refrain from doing something which it is his official duty to do; and (4) that the crime or act relates to the exercise of his functions as a public officer. Thus, the acts constituting direct bribery are: (1) by agreeing to perform, or by performing, in consideration of any offer, promise, gift or present an act constituting a crime, in connection with the performance of his official duties; (2) by accepting a gift in consideration of the execution of an act which does not constitute a crime, in connection with the performance of his official duty; or (3) by agreeing to refrain, or by refraining, from doing something which is his official duty to do, in consideration of any gift or promise. o In the case under consideration, there is utter lack of evidence adduced by the prosecution showing that petitioner committed any of the three acts constituting direct bribery. The two prosecution witnesses did not mention anything about petitioner asking for something in exchange for his performance of, or abstaining to perform, an act in connection with his official duty. In fact, Atty. Aurora Chiong, VicePresident and General Manager of the Company, testified that the Company complied with all the requirements of the LTO without asking for any intervention from petitioner or from anybody else from said office. 26 From the evidence on record, petitioner cannot likewise be convicted of Direct Bribery. The crime of direct bribery as defined in Article 210 of the Revised Penal Code consists of the following elements: (1) that the accused is a public officer; (2) that he received directly or through another some gift or present, offer or promise; (3) that such gift, present or promise has been given in consideration of his commission of some crime, or any act not constituting a crime, or to refrain from doing something which it is his official duty to do; and (4) that the crime or act relates to the exercise of his functions as a public officer. o There is no question that petitioner was a public officer within the contemplation of Article 203 of the Revised Penal Code, which includes all persons "who, by direct provision of law, popular election or appointment by competent authority, shall take part in the performance of public functions in the Philippine Government, or shall perform in said government or any of its branches, public duties as an employee, agent or subordinate official or any rank or class." At the time of the incident, petitioner was a police sergeant assigned to the Legazpi City Police Station. He directly received the bribe money from Yu So Pong and his daughter Hian Hian Yu Sy in exchange for the recovery of the stolen cylinder tanks, which was an act not constituting a crime within the meaning of Article 210 of the Revised Penal Code. The act of receiving money was connected with his duty as a police officer.
ARTICLE 211 INDIRECT BRIBERY A. Elements 1. The offender is a public officer 2. Accepts gifts 3. The gifts are offered to him by reason of his office Any public officer who shall accept gifts offered to him BY REASON of his office shall be liable for indirect bribery. NOTA BENE: This crime is always consummated. This is quite dangerous. Illustration: you are a commissioner of customs, somebody went inside your office and place something (gift) on you table. He then went out. QUERY: Was there indirect bribery? ANSWER:
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No! There is no intention to accept, or there is no clear acceptance to show signs of making his own the gift given or left by the person.
FORMILLEZA vs. SANDIGANBAYAN and PEOPLE G.R. No. L-75160. March 18, 1988 ACCEPTANCE OF GIFT OR CONSIDERATION, ESSENTIAL INGREDIENT. The essential ingredient of indirect bribery as defined in Article 211 of the Revised Penal Code is that the public officer concerned must have accepted the gift or material consideration. There must be a clear intention on the part of the public officer to take the gift so offered and 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 that the crime of indirect bribery has been committed. To hold otherwise will encourage unscrupulous individuals to frame up public officers by simply putting within their physical custody some gift money or other property. (otherwise there is a danger of being framed up)
Sometimes, indirect bribery may be converted to direct bribery. Illustration: there is a person who delivers a fleet of taxi to a transportation office officer. When he knew about it, he said, okay, prepare his license and all necessary requirements that he need. Here, it is already direct bribery. THERE IS A SPECIAL LAW: PD 749 GRANTING IMMUNITY FROM PROSECUTION TO GIVERS OF BRIBES AND OTHER GIFTS AND TO THEIR
ACCOMPLICES IN BRIBERY AND OTHER GRAFT CASES AGAINST PUBLIC OFFICERS.
Reason: who will testify if no immunity? Remember that bribery is done secretly. Only the giver can testify man. So PD 749 was decreed. Conditions: 1. the information must refer to consummated violations/bribery. 2. The information and testimony are necessary for conviction 3. The information and testimony are not yet in the possession of the state 4. Can be corroborated in each material points ( aside from the bribe giver there should be another witness who should corroborate the formers testimony) 5. The informant has not been previously convicted of the crime involving moral turpitude like theft, estafa, robbery The public official does not undertake to perform an act or abstain from doing an official duty from what he received. Instead, the official simply receives or accepts gifts or presents delivered to him with no other reason except his office or public position. This is always in the consummated stage. There is no attempted much less frustrated stage in indirect bribery. The Supreme Court has laid down the rule that for indirect bribery to be committed, the public officer must have performed an act of appropriating of the gift for himself, his family or employees. It is the act of appropriating that signifies acceptance. Merely delivering the gift to the public officer does not bring about the crime. Otherwise it would be very easy to remove a public officer: just deliver a gift to him.
Updates in INDIRECT BRIBERY

Indirect bribery is committed by a public officer who shall accept gifts offered to him by reason of his office. The essential ingredient of indirect bribery as defined in Article 211 27 of the Revised Penal Code is that the public officer concerned must have accepted the gift or material consideration. In the case at bar, was the prosecution able to show that petitioner indeed accepted a gift from the Company? The alleged borrowing of a vehicle by
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petitioner from the Company can be considered as the gift in contemplation of the law. To prove that petitioner borrowed a vehicle from the Company for 56 times, the prosecution adduced in evidence 56 delivery receipts 28 allegedly signed by petitioner's representative whom the latter would send to pick up the vehicle. o The prosecution was not able to show with moral certainty that petitioner truly borrowed and received the vehicles subject matter of the 56 informations. The prosecution claims that petitioner received the vehicles via his representatives to whom the vehicles were released. The prosecution relies heavily on the delivery receipts. We, however, find that the delivery receipts do not sufficiently prove that petitioner received the vehicles considering that his signatures do not appear therein. In addition, the prosecution failed to establish that it was petitioner's representatives who picked up the vehicles. The acquittal of one of the accused (Nery Tagupa) who allegedly received the vehicles from the Company further strengthens this argument. If the identity of the person who allegedly picked up the vehicle on behalf of the petitioner is uncertain, there can also be no certainty that it was petitioner who received the vehicles in the end.
ARTICLE 211-A QUALIFIED BRIBERY (added by RA 7659) A. Elements 1. Any public officer entrusted with law enforcement 2. Refrains from arresting or prosecuting an offender who has committed a crime punishable by RP and or death 3. In consideration of any - offer - promise - gift or - present * Public officer shall suffer the penalty for the offense which was not prosecuted. * If it is the public officer who asks or demands such gifts or present, he shall suffer the penalty of death. If any 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 he was not prosecuted. If it is a public officer who asks or demands such gift or present, he shall suffer the penalty of death. (in this 2nd paragraph, the imposition of death penalty is mandatory) A crime punishable by reclusion perpetua and/or death!!! 2 officers punished: 1. law enforcement officers 2. public prosecutors ARTICLE 212 CORRUPTION OF PUBLIC OFFICIALS A. Elements 1. The officer makes an offer or promise or gives gifts to a public officer 2. That the offer or promises are made or the gifts are given to a public officer, under the circumstances that will make the public officer liable for direct bribery or indirect bribery. Any person who shall have made the offers or promises or given the gifts or presents as describes in articles 210 (direct bribery), 211 (indirect bribery) and 211-A (qualified bribery) shall be liable under this article.
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Read PRESIDENTIAL DECREE NO. 749 GRANTING IMMUNITY FROM PROSECUTION TO GIVERS OF
BRIBES AND OTHER GIFTS AND TO THEIR ACCOMPLICES IN BRIBERY AND OTHER GRAFT CASES AGAINST PUBLIC OFFICERS
Also Read REPUBLIC ACT NO. 3019, Presidential Decree No. 46
ANTI-GRAFT AND CORRUPT PRACTICES ACT
Presidential Decree No. 46 prohibits giving and acceptance of gifts by a public officer or to a public officer, even during anniversary, or when there is an occasion like Christmas, New Year, or any gift-giving anniversary. The Presidential Decree punishes both receiver and giver. The prohibition giving and receiving gifts given by reason of official position, regardless of whether or not the same is for past or future favors. The giving of parties by reason of the promotion of a public official is considered a crime even though it may call for a celebration. The giving of a party is not limited to the public officer only but also to any member of his family. Presidential Decree No. 749 The decree grants immunity from prosecution to a private person or public officer who shall voluntarily give information and testify in a case of bribery or in a case involving a violation of the Anti-graft and Corrupt Practices Act. It provides immunity to the bribe-giver provided he does two things: (1) (2) He voluntarily discloses the transaction he had with the public officer constituting direct or indirect bribery, or any other corrupt transaction; He must willingly testify against the public officer involved in the case to be filed against the latter.
Before the bribe-giver may be dropped from the information, he has to be charged first with the receiver. Before trial, prosecutor may move for dropping bribe-giver from information and be granted immunity. But first, five conditions have to be met: (1) (2) (3) (4) (5) Information must refer to consummated bribery; Information is necessary for the proper conviction of the public officer involved; That the information or testimony to be given is not yet in the possession of the government or known to the government; That the information can be corroborated in its material points; That the information has not been convicted previously for any crime involving moral turpitude.
These conditions are analogous to the conditions under the State Witness Rule under Criminal Procedure.
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The immunity granted the bribe-giver is limited only to the illegal transaction where the informant gave voluntarily the testimony. If there were other transactions where the informant also participated, he is not immune from prosecution. The immunity in one transaction does not extend to other transactions. The immunity attaches only if the information given turns out to be true and correct. If the same is false, the public officer may even file criminal and civil actions against the informant for perjury and the immunity under the decree will not protect him. Republic Act No. 7080 (Plunder) Plunder is a crime defined and penalized under Republic Act No. 7080, which became effective in 1991. This crime somehow modified certain crimes in the Revised Penal Code insofar as the overt acts by which a public officer amasses, acquires, or accumulates ill-gotten wealth are felonies under the Revised Penal Code like bribery (Articles 210, 211, 211-A), fraud against the public treasury [Article 213], other frauds (Article 214), malversation (Article 217), when the ill-gotten wealth amounts to a total value of P50,000,000.00. The amount was reduced from P75,000,000.00 by Republic Act No. 7659 and the penalty was changed from life imprisonment to reclusion perpetua to death. Short of the amount, plunder does not arise. Any amount less than P50,000,000.00 is a violation of the Revised Penal Code or the Anti-Graft and Corrupt Practices Act. Under the law on plunder, the prescriptive period is 20 years commencing from the time of the last overt act. Plunder is committed through a combination or series of overt acts: (1) (2) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project by reason of the office or position of the public officer; By illegal or fraudulent conveyance or disposition of asset belonging to the national government or any of its subdivisions, agencies or instrumentalities or government-owned or controlled corporations and their subsidiaries; By obtaining, receiving, or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business or undertaking; By establishing agricultural, industrial, or commercial monopolies or other combinations and/or implementations of decrees and orders intended to benefit particular persons or special interests; or By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense
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(3)
(4)
(5)
(6)
and to the damage and prejudice of the Filipino people, and the Republic of the Philippines. While the crime appears to be malum prohibitum, Republic Act No. 7080 provides that in the imposition of penalties, the degree of participation and the attendance of mitigating and aggravating circumstances shall be considered by the court. Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act) The mere act of a public officer demanding an amount from a taxpayer to whom he is to render public service does not amount to bribery, but will amount to a violation of the Anti-graft and Corrupt Practices Act. Illustration: A court secretary received P500 .00 from a litigant to set a motion for an early hearing. This is direct bribery even if the act to be performed is within his official duty so long as he received a consideration therefor. If the secretary persuaded the judge to make a favorable resolution, even if the judge did not do so, this constitutes a violation of Anti-Graft and Corrupt Practices Act, SubSection A. Under the Anti-Graft and Corrupt Practices Act, particularly Section 3, there are several acts defined as corrupt practices. Some of them are mere repetitions of the act already penalized under the Revised Penal Code, like prohibited transactions under Article 215 and 216. In such a case, the act or omission remains to be mala in se. But there are acts penalized under the Anti-Graft and Corrupt Practices Act which are not penalized under the Revised Penal Code. Those acts may be considered as mala prohibita. Therefore, good faith is not a defense. Illustration: Section 3 (e) of the Anti-Graft and Corrupt Practices Act causing undue injury to the government or a private party by giving unwarranted benefit to the party whom does not deserve the same. In this case, good faith is not a defense because it is in the nature of a malum prohibitum. Criminal intent on the part of the offender is not required. It is enough that he performed the prohibited act voluntarily. Even though the prohibited act may have benefited the government. The crime is still committed because the law is not after the effect of the act as long as the act is prohibited. Section 3 (g) of the Anti-Graft and Corrupt Practices Act where a public officer entered into a contract for the government which is manifestly disadvantageous to the government even if he did not profit from the transaction, a violation of the Anti-Graft and Corrupt Practices Act is committed. If a public officer, with his office and a private enterprise had a transaction and he allows a relative or member of his family to accept employment in that enterprise,
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good faith is not a defense because it is a malum prohibitum. It is enough that that the act was performed. Where the public officer is a member of the board, panel or group who is to act on an application of a contract and the act involved one of discretion, any public officer who is a member of that board, panel or group, even though he voted against the approval of the application, as long as he has an interest in that business enterprise whose application is pending before that board, panel or group, the public officer concerned shall be liable for violation of the Anti-Graft and Corrupt Practices Act. His only course of action to avoid prosecution under the Anti-graft and Corrupt Practices Act is to sell his interest in the enterprise which has filed an application before that board, panel or group where he is a member. Or otherwise, he should resign from his public position. Illustration: Sen. Dominador Aytono had an interest in the Iligan Steel Mills, which at that time was being subject of an investigation by the Senate Committee of which he was a chairman. He was threatened with prosecution under Republic Act No. 3019 so he was compelled to sell all his interest in that steel mill; there is no defense. Because the law says so, even if he voted against it, he commits a violation thereof. These cases are filed with the Ombudsman and not with the regular prosecutors office. Jurisdiction is exclusively with the Sandiganbayan. The accused public officer must be suspended when the case is already filed with the Sandiganbayan. Under the Anti-Graft and Corrupt Practices Act, the public officer who is accused should not be automatically suspended upon the filing of the information in court. It is the court which will order the suspension of the public officer and not the superior of that public officer. As long as the court has not ordered the suspension of the public officer involved, the superior of that public officer is not authorized to order the suspension simply because of the violation of the Anti-Graft and Corrupt Practices Act. The court will not order the suspension of the public officer without first passing upon the validity of the information filed in court. Without a hearing, the suspension would be null and void for being violative of due process. Illustration: A public officer was assigned to direct traffic in a very busy corner. While there, he caught a thief in the act of lifting the wallet of a pedestrian. As he could not leave his post, he summoned a civilian to deliver the thief to the precinct. The civilian agreed so he left with the thief. When they were beyond the view of the policeman, the civilian allowed the thief to go home. What would be the liability of the public officer? The liability of the traffic policeman would be merely administrative. The civilian has no liability at all. Firstly, the offender is not yet a prisoner so there is no accountability yet. The term prisoner refers to one who is already booked and incarcerated no matter how short the time may be. The policeman could not be said as having assisted the escape of the offender because as the problem says, he is assigned to direct traffic in a busy corner street. So he cannot be considered as falling under the third 3rd paragraph of Article 19 that would constitute his as an accessory.
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The same is true with the civilian because the crime committed by the offender, which is snatching or a kind of robbery or theft as the case may be, is not one of those crimes mentioned under the third paragraph of Article 19 of the Revised Penal Code. Where the public officer is still incumbent, the prosecution shall be with the Ombudsman. Where the respondent is separated from service and the period has not yet prescribed, the information shall be filed in any prosecutions office in the city where the respondent resides. The prosecution shall file the case in the Regional Trial Court unless the violation carries a penalty higher than prision correccional, in which case the Sandiganbayan has jurisdiction. The fact that the government benefited out of the prohibited act is no defense at all, the violation being mala prohibita. Section 3 (f) of the Anti-Graft and Corrupt Practices Act where the public officer neglects or refuses to act on a matter pending before him for the purpose of obtaining any pecuniary or material benefit or advantage in favor of or discriminating against another interested party. The law itself additionally requires that the accuseds dereliction, besides being without justification, must be for the purpose of obtaining from any person interested in the matter some pecuniary or material benefit or for the purpose of favoring any interested party, or discriminating against another interested party. This element is indispensable. In other words, the neglect or refusal to act must motivated by gain or benefit, or purposely to favor the other interested party as held in Coronado v. SB, decided on August 18, 1993. Republic Act No. 1379 (Forfeiture of Ill-gotten Wealth) Correlate with RA 1379 -- properly under Remedial Law. This provides the procedure for forfeiture of the ill-gotten wealth in violation of the Anti-Graft and Corrupt Practices Act. The proceedings are civil and not criminal in nature. Any taxpayer having knowledge that a public officer has amassed wealth out of proportion to this legitimate income may file a complaint with the prosecutors office of the place where the public officer resides or holds office. The prosecutor conducts a preliminary investigation just like in a criminal case and he will forward his findings to the office of the Solicitor General. The Solicitor General will determine whether there is reasonable ground to believe that the respondent has accumulated an unexplained wealth. If the Solicitor General finds probable cause, he would file a petition requesting the court to issue a writ commanding the respondent to show cause why the ill-gotten wealth described in the petition should not be forfeited in favor of the government. This is covered by the Rules on Civil Procedure. The respondent is given 15 days to answer the petition. Thereafter trial would proceed. Judgment is rendered and appeal is just like in a civil case. Remember that this is not a criminal proceeding. The basic difference is that the preliminary investigation is conducted by the prosecutor.
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Chapter Three FRAUDS AND ILLEGAL EXACTIONS AND TRANSACTIONS

ARTICLE 213 FRAUDS AGAINST THE PUBLIC TREASURY AND SIMILAR OFFENSES A. Elements of FRAUDS AGAINST PUBLIC TREASURY: 1. Offender is a public officer 2. that he should have taken advantage of his office, that is, he intervened in the transaction in his official capacity 3. that he entered into an agreement with any interested party or speculator or made use of any other scheme with regard to a. furnishing supplies b. the making of contracts c. the adjustment or settlements of accounts relating to public property or funds 4. the accused had intent to defraud the government. The essence of this crime is making the government pay for something not received or making it pay more than what is due. It is also committed by refunding more than the amount which should properly be refunded. This occurs usually in cases where a public officer whose official duty is to procure supplies for the government or enter into contract for government transactions, connives with the said supplier with the intention to defraud the government. Also when certain supplies for the government are purchased for the high price but its quantity or quality is low. Illustrations: (1) A public official who is in charge of procuring supplies for the government obtained funds for the first class materials and buys inferior quality products and pockets the excess of the funds. This is usually committed by the officials of the Department of Public Works and Highways. Poorest quality of ink paid as if it were of superior quality. One thousand pieces of blanket for certain unit of the Armed Forces of the Philippines were paid for but actually, only 100 pieces were bought. The Quezon City government ordered 10,000 but what was delivered was only 1,000 T-shirts, the public treasury is defrauded because the government is made to pay that which is not due or for a higher price.
(2) (3) (4)
Not all frauds will constitute this crime. There must be no fixed allocation or amount on the matter acted upon by the public officer. The allocation or outlay was made the basis of fraudulent quotations made by the public officer involved. For example, there was a need to put some additional lighting along the a street and no one knows how much it will cost. An officer was asked to canvass the cost but he
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connived with the seller of light bulbs, pricing each light bulb at P550.00 instead of the actual price of P500.00. This is a case of fraud against public treasury. If there is a fixed outlay of P20,000.00 for the lighting apparatus needed and the public officer connived with the seller so that although allocation was made a lesser number was asked to be delivered, or of an inferior quality, or secondhand. In this case there is no fraud against the public treasury because there is a fixed allocation. The fraud is in the implementation of procurement. That would constitute the crime of other fraud in Article 214, which is in the nature of swindling or estafa. Be sure to determine whether fraud is against public treasury or one under Article 214. B. Elements of ILLEGAL EXACTIONS: 1. Offender is a public officer ENTRUSTED with the collection of taxes, licenses, fees, and other imposts 2. He is guilty of any of the following acts or omissions: 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 form that provided by law. The public officer referred to here is one who is or has an official duty to collect fees due to the government. Illustration: If a treasurer in a municipality fails to issue an official receipt because they ran out of receipt so he instead issues a temporary receipt HE IS NOT LIABLE under this article PROVIDED he will issue an official receipt later. If he receives money for tax payments and issues another receipt in his own form then he is guilty of illegal exaction. Reason for issuance of a receipt: - this is because the collection of public officers can only be accounted for thru official receipts that they issued. This can only be committed principally by a public officer whose official duty is to collect taxes, license fees, import duties and other dues payable to the government. Not any public officer can commit this crime. Otherwise, it is estafa. Fixers cannot commit this crime unless he conspires with the public officer authorized to make the collection. Also, public officers with such functions but are in the service of the Bureau of Internal Revenue and the Bureau of Customs are not to be prosecuted under the Revised Penal Code but under the Revised Administrative Code. These officers are authorized to
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make impositions and to enter into compromises. Because of this discretion, their demanding or collecting different from what is necessary is legal. This provision of the Revised Penal Code was provided before the Bureau of Internal Revenue and the Tariff and Customs Code. Now, we have specific Code which will apply to them. In the absence of any provision applicable, the Revised Administrative Code will apply. The essence of the crime is not misappropriation of any of the amounts but the improper making of the collection which would prejudice the accounting of collected amounts by the government. On the first form of illegal exaction In this form, mere demand will consummate the crime, even if the taxpayer shall refuse to come across with the amount being demanded. That will not affect the consummation of the crime. In the demand, it is not necessary that the amount being demanded is bigger than what is payable to the government. The amount being demanded maybe less than the amount due the government. Note that this is often committed with malversation or estafa because when a public officer shall demand an amount different from what the law provides, it can be expected that such public officer will not turn over his collection to the government. Illustrations: (1) A taxpayer goes to the local municipal treasurer to pay real estate taxes on his land. Actually, what is due the government is P400.00 only but the municipal treasurer demanded P500.00. By that demand alone, the crime of illegal exaction is already committed even though the taxpayer does not pay the P500.00. Suppose the taxpayer came across with P500.00. But the municipal treasurer, thinking that he would abstract the P100.00, issued a receipt for only P400.00. The taxpayer would naturally ask the municipal treasurer why the receipt was only for P400.00. The treasurer answered that the P100.00 is supposed to be for documentary stamps. The taxpayer left. He has a receipt for P400.00. The municipal treasurer turned over to the government coffers P400.00 because that is due the government and pocketed the P100.00. The mere fact that there was a demand for an amount different from what is due the government, the public officer already committed the crime of illegal exaction. On the P100.00 which the public officer pocketed, will it be malversation or estafa? In the example given, the public officer did not include in the official receipt the P100.00 and, therefore, it did not become part of the public funds. It remained
(2)
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to be private. It is the taxpayer who has been defrauded of his P100.00 because he can never claim a refund from the government for excess payment since the receipt issued to him was only P400.00 which is due the government. As far as the P100.00 is concerned, the crime committed is estafa. (3) A taxpayer pays his taxes. What is due the government is P400.00 and the public officer issues a receipt for P500.00 upon payment of the taxpayer of said amount demanded by the public officer involved. But he altered the duplicate to reflect only P400.00 and he extracted the difference of P100.00. In this case, the entire P500.00 was covered by an official receipt. That act of covering the whole amount received from the taxpayer in an official receipt will have the characteristics of becoming a part of the public funds. The crimes committed, therefore, are the following: (a) (b) Illegal exaction for collecting more than he is authorized to collect. The mere act of demanding is enough to constitute this crime. Falsification because there was an alteration of official document which is the duplicate of the official receipt to show an amount less than the actual amount collected. Malversation because of his act of misappropriating the P100.00 excess which was covered by an official receipt already, even though not payable to the government. The entire P500.00 was covered by the receipt, therefore, the whole amount became public funds. So when he appropriated the P100 for his own benefit, he was not extracting private funds anymore but public funds.
(c)
Should the falsification be complexed with the malversation? As far as the crime of illegal exaction is concerned, it will be the subject of separate accusation because there, the mere demand regardless of whether the taxpayer will pay or not, will already consummate the crime of illegal exaction. It is the breach of trust by a public officer entrusted to make the collection which is penalized under such article. The falsification or alteration made on the duplicate can not be said as a means to commit malversation. At most, the duplicate was altered in order to conceal the malversation. So it cannot be complexed with the malversation. It cannot also be said that the falsification is a necessary means to commit the malversation because the public officer can misappropriate the P100.00 without any falsification. All that he has to do is to get the excess of P100.00 and misappropriate it. So the falsification is a separate accusation. However, illegal exaction may be complexed with malversation because illegal exaction is a necessary means to be able to collect the P100.00 excess which was malversed. In this crime, pay attention to whether the offender is the one charged with the collection of the tax, license or impost subject of the misappropriation. If he is not the one authorized by disposition to do the collection, the crime of illegal exaction is not committed.
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If it did not give rise to the crime of illegal exaction, the funds collected may not have become part of the public funds. If it had not become part of the public funds, or had not become impressed with being part of the public funds, it cannot be the subject of malversation. It will give rise to estafa or theft as the case may be. (3) The Municipal Treasurer demanded P500.00 when only P400.00 was due. He issued the receipt at P400.00 and explained to taxpayer that the P100 was for documentary stamps. The Municipal Treasurer placed the entire P500.00 in the vault of the office. When he needed money, he took the P100.00 and spent it. The following crimes were committed: (a) (b) (c) Illegal exaction for demanding a different amount; Estafa for deceiving the taxpayer; and Malversation for getting the P100.00 from the vault.
Although the excess P100.00 was not covered by the Official Receipt, it was commingled with the other public funds in the vault; hence, it became part of public funds and subsequent extraction thereof constitutes malversation. Note that numbers 1 and 2 are complexed as illegal exaction with estafa, while in number 3, malversation is a distinct offense. The issuance of the Official Receipt is the operative fact to convert the payment into public funds. The payor may demand a refund by virtue of the Official Receipt. In cases where the payor decides to let the official to keep the change, if the latter should pocket the excess, he shall be liable for malversation. The official has no right but the government, under the principle of accretion, as the owner of the bigger amount becomes the owner of the whole. On the second form of illegal exaction The act of receiving payment due the government without issuing a receipt will give rise to illegal exaction even though a provisional receipt has been issued. What the law requires is a receipt in the form prescribed by law, which means official receipt. Illustration: If a government cashier or officer to whom payment is made issued a receipt in his own private form, which he calls provisional, even though he has no intention of misappropriating the amount received by him, the mere fact that he issued a receipt not in the form prescribed by law, the crime of illegal exaction is committed. There must be voluntary failure to issue the Official Receipt.
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On the third form of illegal exaction Under the rules and regulations of the government, payment of checks not belonging to the taxpayer, but that of checks of other persons, should not be accepted to settle the obligation of that person. Illustration: A taxpayer pays his obligation with a check not his own but pertaining to another. Because of that, the check bounced later on. The crime committed is illegal exaction because the payment by check is not allowed if the check does not pertain to the taxpayer himself, unless the check is a managers check or a certified check, amended already as of 1990. (See the case of Roman Catholic.) Under Article 213, if any of these acts penalized as illegal exaction is committed by those employed in the Bureau of Customs or Bureau of Internal Revenue, the law that will apply to them will be the Revised Administrative Code or the Tariff and Customs Code or National Revenue Code. This crime does not require damage to the government. ARTICLE 214 OTHER FRAUDS A. Elements: 1. that the offender is a public officer 2. that he takes advantage of his official position 3. that he commits any of the frauds or deceits enumerated in articles 315-318 A public officer takes advantage of his official position in committing: 1. estafa 2. other forms of swindling 3. swindling a minor 4. other deceits
ARTICLE 215 PROHIBITED TRANSACTIONS A. Elements: 1. that the offender is an appointive public official 2. that he becomes interested, directly or indirectly, in any transactions of exchange or speculations 3. that the transaction takes place within the territory subject to his jurisdiction 4. That he becomes interested in the transaction during his incumbency. NOTA BENE: Applicable only to appointed public officers
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Transactions are limited to exchange or speculations. Purchasing of stocks or shares therefore is not covered here, hence not punishable.
ARTICLE 216 POSSESSION OF PROHIBITED INTEREST BY A PUBLIC OFFICER A. Persons Liable for the possession of prohibited interest: 1. public officer who directly or indirectly became interested in any contract or business in which it was his official duty to intervene 2. experts, arbitrators and private accountants who, in like manner, took part in any contract or transactions connected with the estate or property in the appraisal, distribution or adjudication of which they had acted. 3. Guardians and executors with respect to the property belonging to their wards or the estate. Public officer here is appointed or elected RA 7080 AN ACT DEFINING AND PENALIZING THE CRIME OF PLUNDER = Ill gotten wealth amounts to 50,000,000.00 and above to come under this provision. = liable: may be a public officer or any private person who conspires with the public officer. Note: Q: If there is plunder and malversation how many informations should you file? A: only 1 because of section 1 (d) any combination or series of the following schemes: 1-6 ( judge believes that the crime of malversation is absorbed in plunder) RA 1379 AN ACT DECLARING FORFEITURE IN FAVOROF THE STATE ANY PROPERTY FOUND TO HAVE BEEN UNLAWFULLY ACQUIRED(UNEXPLAINED WEALTH) Remember this is not a criminal prosecution, this is an administrative proceeding. There is no penal sanction . there is a penalty but involving a past act. RA 1379 creates a presumption JURIS TANTUM against unexplained wealth of public officers and employees. See case in point below: Republic vs IAC and Simplicio Berdon G.R. No. 74225. April 17, 1989 The Court has carefully gone over the evidence presented by private respondents, and like the trial court and the Intermediate Appellate Court, finds the acquisition of the subject properties satisfactorily explained. While respondent spouses had acquired properties and constructed a house the costs of which were disproportionate to their combined incomes from their employment in the government, it had been proved that such were financed through a donation and loans. The Solicitor General also makes much of the fact that the statements of assets and liabilities filed by private respondent Simplicio Berdon covering the years material to the
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case did not accurately reflect the donation and the loans granted to private respondent spouses and that Simplicio's testimony in effect contradicts the entries in said statements. It must be emphasized, however, that in determining whether or not there is unexplained wealth within the purview of R.A. No. 1379 the courts are not bound by the statements of assets and liabilities filed by the respondent.* On the contrary, this statute affords the respondent every opportunity to explain, to the satisfaction of the court, how he had acquired the property in question [Sec. 5, R.A. No. 1379.] In sum, the presumption under Sec. 2 of R.A. No. 1379 that the subject properties were unlawfully acquired had been successfully rebutted by private respondents through competent evidence. Hence, the Intermediate Appellate Court did not err in affirming the trial court's decision dismissing the Republic's petition. The provisions of the law creates a presumption against the public officer or employee who acquires a property grossly disproportionate to his income, i.e. that the property was unlawfully acquired. However, this presumption is juris tantum. It may be rebutted by the public officer or employee by showing to the satisfaction of the court that his acquisition of the property was lawful.
Chapter Four MALVERSATION OF PUBLIC FUNDS OR PROPERTY

ARTICLE 217 MALVERSATION OF PUBLIC FUNDS OR PROPERTY A. ELEMENTS: 1. Offender: Public officer (PO) 2. PO had the custody or control of funds or property by reason of the duties of his
office
3. Funds or property were PUBLIC for which he was accountable 4. That the PO: a. appropriated b. took or misappropriated c. consented or, through abandonment or negligence, permitted another person to take them B. Acts Punished 1. By appropriating public funds or property 2. Taking or misappropriating the same 3. Consenting, or through abandonment or negligence by permitting any person to such public funds or property. 4. By otherwise being guilty of misappropriation or malversation of such funds or
take property.
Committed by 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, or 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 misappropriation or malversation of such funds or property. So the public officer is an accountable public officer. Q: what are the crimes called MALVERSATION OF PUBLIC FUNDS OR PROPERTY?
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A: they are: 1. malversation by appropriating, misappropriating or permitting any other person to take public funds or property (art 217) 2. failure of accountable officer to render accounts (art 218) 3. failure of a responsible public officer to render accounts before leaving the country (art 219) 4. illegal use of public funds or property (art 220) 5. failure to make delivery of public funds or property (art 221)
(also called as TECHNICAL MALVERSATION)
Two Modes of Commiting Malversation: 1. through deliberate acts 2. through negligence N.B. But whether deliberate or through negligence -- the penalty is the same. Malversation is otherwise called as EMBEZZLEMENT. Profit or Gain is immaterial in malversation PRESUMTPION OF MALVERSATION When failure of PO (in custody of the public funds or property) fails to produce the public funds or property upon demand, the presumption is that the PO malversed such property or fund. The accountable PO may be convicted of malversation even if there is no direct evidence in misappropriation and the only evidence is a shortage in his accounts which he has not been able to explain satisfactorily. (People v Mingoa, 92 Phil 856) CASE: PRESUMPTION OF GUILT REBUTTED ONCE SHORTGAGE IS SATISFACTORILY EXPLAINED PALMA GIL and PELAYO vs. PEOPLE G.R. No. 73642. September 1, 1989 The mayor satisfactorily explained that the donated logs were disposed of to construct municipal projects. Hence, it was incumbent upon the prosecution to prove otherwise This, it failed to do. There is absolutely no showing that the petitioners sold the excess lumber or used it for private purposes or otherwise profited from the same. On the contrary, he fully accounted for the lumber because the municipal projects where it was used were actually constructed. It is true that all that is needed to find a public officer guilty of malversation is a failure to produce funds or property for which he is accountable, on demand. However, if the funds or property were validly used for public purposes naturally they can no longer be produced. There being a satisfactory explanation of the shortage, the presumption of guilt disappears. WHO MAY COMMIT: General Rule:
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Accountable Public Officer Must be an accountable PO, otherwise the crime is something else. CASE: BABIDA vs PEOPLE and SANDIGANBAYAN G.R. No. 83946. September 29, 1989
The undisputed fact is that the City Auditor had found the accused short, as of September 16, 1986, of the sum of P69,721.64, a sum the latter could not or failed to return upon due demand. The latter's excuse, however, is that on the same date, September 16, 1986, on her way to deposit the money with the Development Bank of the Philippines, the same was purportedly stolen. According to her, she did not inform the City Auditor of it (the fact of robbery) on the spot (she submitted her explanation only on October 1, 1986), because she was supposedly consulting her lawyer. Also, so she claims, she was hospitalized on September 18, 1986, and discharged on September 21, 1986. SC convicted her of malversation. Exception: a. private individuals who in any capacity whatever, have charge of any national, provincial or municipal funds, revenues, or property; (Art 222) b. any administrator or depository of funds or property attached, seized or deposited by public authority, even if such property belongs to a private individual; (Art 222) c. private party is either a principal by direct participation or principal by indispensable cooperation. d. Private party is in conspiracy with the PO in committing the crime. - A private person INDUCING a public officer or by necessary act, AIDS a public officer in CONSENTING OR PERMITTING such public funds to fall into the hands of the SWINDLER ---- he must be held EQUALLY LIABLE for MALVERSATION as principal by induction. PUBLIC FUNDS OR PROPERTY Return of funds or property by the accused several days after demand does not negate criminal liability but mitigates the crime. Example Cases: Police man arrested a person for illegal possession of firearm. PO did not surrender the confiscated firearm but pocketed the same. PO in custody of the firearm is, in effect, accountable to the Government for it is now considered public property. PO can be charged with malversation. However, in SALAMERA vs. SANDIGANBAYAN, a licensed firearm was deposited for safekeeping with the mayor. Said firearm was lost. PO, in this case is not guilty of malversation because the licensed gun is not public property but still remained private property. SALAMERA vs. SANDIGANBAYAN G.R. No. 121099. February 17, 1999 One essential element of the crime of malversation is that a public officer must take public funds, money or property, and misappropriate it to his own private use or benefit. There must be asportation of public funds or property, akin to the taking of another's property in theft. The funds, money or property taken must be public funds or private
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funds impressed with public attributes or character for which the public officer is accountable. In this case, Antonio Benavidez voluntarily turned over the gun, a .38 caliber Smith & Wesson revolver, to petitioner mayor of the town of Casiguran, Aurora. Antonio surrendered the gun to the mayor. The gun was duly licensed. It was not seized or confiscated. Antonio obtained possession of the gun from Ponciano Benavidez, an uncle of his, who was the owner and licensee of the gun. Ponciano mortgaged it to Antonio. The question may be asked: Did Antonio's surrender of the gun to petitioner mayor invest the gun with public character sufficient to consider the gun as public property for which the mayor is accountable? We believe not. There was no reason to surrender or confiscate the gun. It was duly licensed to Ponciano Benavidez. The license is not transferable. Antonio could not validly possess the gun. He should have returned the gun to Ponciano, the licensed owner or surrendered it to the local police or to the Constabulary Provincial Commander. By turning over the gun to petitioner mayor, the gun did not become public property because it was not intended for public use or purpose nor was it lawfully seized. The gun continued to be private property, that is why the gun owner rightfully asked for its return to him, not to be turned over to the public coffer or treasury. Petitioner's failure to return the gun after demand by the private owner did not constitute a prima facie evidence of malversation. The property was private and the one who demanded its return was a private person, not a person in authority. The presumption of conversion will not apply. Note: In ATTACHMENT CASES, property becomes Custodia Legis - therefore it becomes Public Property to a certain extent. Therefore, even if such properties/funds belong to private individuals - as long as such property or funds are under CUSTODIA LEGIS, there can be malversation if such property/funds in misappropriated. IMPORTANT: In MALVERSATION, the Negligence of the accountable public official must be clearly shown to be inexcusable, approximating malice or fraud. Q: Is Demand necessary in malversation? A: Demand is only for the purpose of proving a Prima Facie case of Malversation.
CABELLO vs. SANDIGANBAYAN and PEOPLE G.R. No. 93885. May 14, 1991 Malversation may thus be committed either through a positive act of misappropriation of public funds or property of passively through negligence by allowing another to commit such misappropriation. Nonetheless, all that is necessary to prove in both acts are the following: (a) that the defendant received in his possession public funds or property (b) that he could not account for them and did not have them in his possession when audited; and (c) that he could not give a satisfactory or reasonable excuse for the disappearance of said funds or property. An accountable officer may thus be convicted of malversation even if there is no direct evidence of misappropriation and the only evidence is that there is a shortage in the officer's accounts which he has not been able to explain satisfactorily. PEOPLE vs VILLACORTA The presumption is deemed overthrown if the accountable public officer satisfactorily proves that not even a single centavo of the missing funds was used by him for his personal interest. But that the funds were extended as a cash advances to employees in good faith in the
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belief that they were for legitimate purposes, with no intent to gain and of goodwill considering that it was a practice tolerated in the office of said public officer. The ruling above has been abandoned! In MENESES vs. SANDIGANBAYAN and PEOPLE, G.R. No. 100625. May 20, 1994, the SC held: The grant of loans through the "vale" system is a clear case of an accountable officer consenting to the improper or unauthorized use of public funds by other persons, which is punishable by the law. To tolerate a such practice is to give a license to every disbursing officer to conduct a lending operation with the use of public funds. There is no law or regulation allowing accountable officers to extend loans to anyone against "vale" or chits given in exchange by the borrowers. On the other hand, in Cabello vs. Sandiganbayan, we held that the giving of "vales" by public officers out of their accountable funds is prohibited by P.D. No. 1145, otherwise known as the Government Auditing Code of the Philippines and Memorandum Circular No. 570, dated June 24, 1968 of the General Auditing Office. PEOPLE vs. CONSIGNA, ET AL. G.R. No. L-18087. August 31, 1965 ACQUITTAL OF WILLFUL ACT OF MALVERSATION INCLUDES SAME OFFENSE COMMITTED THROUGH NEGLIGENCE; Upon the other hand, it is also settled that under the information filed against Consigna, he could have been convicted not only of the willful offense expressly charged therein but also of the same offense of malversation through negligence. In a similar case, We held that, while a criminal negligent act is not a simple modality of a willful crime but a distinct crime in itself designated as a quasi-offense in our Penal Code, a conviction for the former can be had under an information exclusively charging the commission of a willful offense, upon the theory that the greater offense includes the lesser one. This is the situation obtaining in the present case where Consigna was charged with willful malversation of government property. Under the information filed he could have been convicted of the same offense but committed through negligence. PEOPLE vs DE GUZMAN In malversation, all that is necessary to prove is that the defendant received in his position public funds. A public officer maybe held guilty of malversation based on a preliminary audit report.
DIAZ vs. SANDIGANBAYAN G.R. No. 125213. January 26, 1999 Liquidation of obligations incurred by accountable public officials involves a long process; pertinent government accounting principles, require the (a) preparation of the disbursement voucher, (b) processing of the request for allotment supported by such documents as payrolls, disbursement vouchers, purchase/job orders, requisitions for supplies/materials, etc., and (c) issuance of the corresponding check. Each time, when accomplished, the corresponding amount is debited or deducted from the available funds of the agency which would then consider the claim settled and paid although there may have yet been no actual transfer of cash involved from the government to the payee of the check. The term "to liquidate" means to settle, to adjust, to ascertain or to reduce to precision in amount. "Liquidation" does not necessarily signify payment, and "to liquidate an account," can mean to ascertain the balance due, to whom it is due, and to whom it is payable; hence, an account that has been "liquidated" can also mean that the item has been made certain as to what, and how much, is deemed to be owing. MAGSUCI vs. SANDIGANBAYAN and PEOPLE
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G.R. No. L-101545. January 3, 1995 The actions taken by Magsuci involved the very functions he had to discharge in the performance of his official duties. There has been no intimation at all that he had foreknowledge of any irregularity committed by either or both Engr. Enriquez and Ancla. Petitioner might have indeed been lax and administratively remiss in placing too much reliance on the official reports submitted by his subordinate (Engineer Enriquez), but for conspiracy to exist, it is essential that there must be a conscious design to commit an offense. Conspiracy is not the product of negligence but of intentionality on the part of cohorts. In Arias vs. Sandiganbayan, G.R. No. 81563. December 19, 1989, this Court, aware of the dire consequences that a different rule could bring, has aptly concluded: "We would be setting a bad precedent if a head of office plagued by all too common problems - dishonest or negligent subordinates, overwork, multiple assignments or positions, or plain incompetence - is suddenly swept into a conspiracy conviction simply because he did not personally examine every single detail, painstakingly trace every step from inception, and investigate the motives of every person involved in a transaction before affixing his signature as the final approving authority. x x x. All heads of offices have to rely to a reasonable extent on their subordinates and on the good faith of those who prepare bids, purchase supplies, or enter into negotiations. x x x. There has to be some added reason why he should examine each voucher in such detail. Any executive head of even small government agencies or commissions can attest to the volume of papers that must be signed. There are hundreds of documents, letters, memoranda, vouchers, and supporting papers that routinely pass through his hands. The number in bigger offices or departments is even more appalling."
In short, a public officer cannot be held guilty of malversation if he relied in good faith on the representation made by the subordinate and provided that there was no conspiracy. This crime is predicated on the relationship of the offender to the property or funds involved. The offender must be accountable for the property misappropriated. If the fund or property, though public in character is the responsibility of another officer, malversation is not committed unless there is conspiracy. It is not necessary that the offender profited because somebody else may have misappropriated the funds in question for as long as the accountable officer was remiss in his duty of safekeeping public funds or property. He is liable for malversation if such funds were lost or otherwise misappropriated by another. There is no malversation through simple negligence or reckless imprudence, whether deliberately or negligently. This is one crime in the Revised Penal Code where the penalty is the same whether committed with dolo or culpa.
Question & Answer What crime under the Revised Penal Code carries the same penalty whether committed intentionally or through negligence? Malversation under Article 217. There is no crime of malversation through negligence. The crime is malversation, plain and simple, whether committed through dolo or culpa. There is no crime of malversation under Article 365 on criminal negligence because in malversation under Article 217, the same penalty is imposed whether the malversation results from negligence or was the product of deliberate act.
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The crime of malversation can be committed only by an officer accountable for the funds or property which is appropriated. This crime, therefore, bears a relation between the offender and the funds or property involved. The offender, to commit malversation, must be accountable for the funds or property misappropriated by him. If he is not the one accountable but somebody else, the crime committed is theft. It will be qualified theft if there is abuse of confidence. Accountable officer does not refer only to cashier, disbursing officers or property custodian. Any public officer having custody of public funds or property for which he is accountable can commit the crime of malversation if he would misappropriate such fund or property or allow others to do so.
Questions & Answers 1. An unlicensed firearm was confiscated by a policeman. Instead of turning over the firearm to the property custodian for the prosecution of the offender, the policeman sold the firearm. What crime was committed? The crime committed is malversation because that firearm is subject to his accountability. Having taken custody of the firearm, he is supposed to account for it as evidence for the prosecution of the offender. 2. Can the buyer be liable under the Anti-fencing law?
No. The crime is neither theft nor robbery, but malversation. 3. A member of the Philippine National Police went on absence without leave. He was charged with malversation of the firearm issued to him. After two years, he came out of hiding and surrendered the firearm. What crime was committed? The crime committed was malversation. Payment of the amount misappropriated or restitution of property misappropriated does not erase criminal liability but only civil liability. When private property is attached or seized by public authority and the public officer accountable therefor misappropriates the same, malversation is committed also. Illustration: If a sheriff levied the property of the defendants and absconded with it, he is not liable of qualified theft but of malversation even though the property belonged to a private person. The seizure of the property or fund impressed it with the character of being part of the public funds it being in custodia legis. For as long as the public officer is the one accountable for the fund or property that was misappropriated, he can be liable for the crime of malversation. Absent such relation, the crime could be theft, simple or qualified.
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Question & Answer There was a long line of payors on the last day of payment for residence certificates. Employee A of the municipality placed all his collections inside his table and requested his employee B to watch over his table while he goes to the restroom. B took advantage of As absence and took P50.00 out of the collections. A returned and found his money short. What crimes have been committed? A is guilty of malversation through negligence because he did not exercise due diligence in the safekeeping of the funds when he did not lock the drawer of his table. Insofar as B is concerned, the crime is qualified theft. Under jurisprudence, when the public officer leaves his post without locking his drawer, there is negligence. Thus, he is liable for the loss. Illustration: A government cashier did not bother to put the public fund in the public safe/vault but just left it in the drawer of his table which has no lock. The next morning when he came back, the money was already gone. He was held liable for malversation through negligence because in effect, he has abandoned the fund or property without any safety. A private person may also commit malversation under the following situations: (1) (2) (3) Conspiracy with a public officer in committing malversation; When he has become an accomplice or accessory to a public officer who commits malversation; When the private person is made the custodian in whatever capacity of public funds or property, whether belonging to national or local government, and he misappropriates the same; When he is constituted as the depositary or administrator of funds or property seized or attached by public authority even though said funds or property belong to a private individual.
(4)
Illustration: Municipal treasurer connives with outsiders to make it appear that the office of the treasurer was robbed. He worked overtime and the co-conspirators barged in, hogtied the treasurer and made it appear that there was a robbery. Crime committed is malversation because the municipal treasurer was an accountable officer. Note that damage on the part of the government is not considered an essential element. It is enough that the proprietary rights of the government over the funds have been disturbed through breach of trust.
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It is not necessary that the accountable public officer should actually misappropriate the fund or property involved. It is enough that he has violated the trust reposed on him in connection with the property. Illustration: (1) It is a common practice of government cashiers to change the checks of their friends with cash in their custody, sometimes at a discount. The public officer knows that the check is good because the issuer thereof is a man of name. So he changed the same with cash. The check turned out to be good. With that act of changing the cash of the government with the check of a private person, even though the check is good, malversation is committed. The reason is that a check is cleared only after three days. During that period of three days, the government is being denied the use of the public fund. With more reason if that check bounce because the government suffers. (2) An accountable public officer, out of laziness, declares that the payment was made to him after he had cleaned his table and locked his safe for the collection of the day. A taxpayer came and he insisted that he pay the amount so that he will not return the next day. So he accepted the payment but is too lazy to open the combination of the public safe. He just pocketed the money. When he came home, the money was still in his pocket. The next day, when he went back to the office, he changed clothes and he claims that he forgot to put the money in the new funds that he would collect the next day. Government auditors came and subjected him to inspection. He was found short of that amount. He claimed that it is in his house -- with that alone, he was charged with malversation and was convicted.
Any overage or excess in the collection of an accountable public officer should not be extracted by him once it is commingled with the public funds. Illustration: When taxpayers pay their accountabilities to the government by way of taxes or licenses like registration of motor vehicles, the taxpayer does not bother to collect loose change. So the government cashier accumulates the loose change until this amounts to a sizable sum. In order to avoid malversation, the cashier did not separate what is due the government which was left to her by way of loose change. Instead, he gets all of these and keeps it in the public vault/safe. After the payment of the taxes and licenses is through, he gets all the official receipts and takes the sum total of the payment. He then opens the public vault and counts the cash. Whatever will be the excess or the overage, he gets. In this case, malversation is committed. Note that the moment any money is commingled with the public fund even if not due the government, it becomes impressed with the characteristic of being part of public funds. Once they are commingled, you do not know anymore which belong to the government and which belong to the private persons. So that a public vault or safe should not be used to hold any fund other that what is due to the government. When does presumption of misappropriation arise?
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When a demand is made upon an accountable officer and he cannot produce the fund or property involved, there is a prima facie presumption that he had converted the same to his own use. There must be indubitable proof that thing unaccounted for exists. Audit should be made to determine if there was shortage. Audit must be complete and trustworthy. If there is doubt, presumption does not arise. Presumption arises only if at the time the demand to produce the public funds was made, the accountability of the accused is already determined and liquidated. A demand upon the accused to produce the funds in his possession and a failure on his part to produce the same will not bring about this presumption unless and until the amount of his accountability is already known. In Dumagat v. Sandiganbayan, 160 SCRA 483, it was held that the prima facie presumption under the Revised Penal Code arises only if there is no issue as to the accuracy, correctness and regularity of the audit findings and if the fact that public funds are missing is indubitably established. The audit must be thorough and complete down to the last detail, establishing with absolute certainty the fact that the funds are indeed missing. In De Guzman v. People, 119 SCRA 337, it was held that in malversation, all that is necessary to prove is that the defendant received in his possession the public funds and that he could not account for them and that he could not give a reasonable excuse for their disappearance. An accountable public officer may be convicted of malversation even if there is no direct evidence of misappropriation and the only evidence is the shortage in the accounts which he has not been able to explain satisfactorily. In Cabello v. Sandiganbaya, 197 SCRA 94, it was held it was held that malversation may be committed intentionally or by negligence. The dolo or culpa bringing about the offences is only a modality in the perpetration of the offense. The same offense of malversation is involved, whether the mode charged differs from the mode established in the commission of the crime. An accused charged with willful malversation may be convicted of Malversation through her negligee. In Quizo v. Sandiganbayan, the accused incurred shortage (P1.74) mainly because the auditor disallowed certain cash advances the accused granted to employees. But on the same date that the audit was made, he partly reimbursed the amount and paid it in full three days later. The Supreme Court considered the circumstances as negative of criminal intent. The cash advances were made in good faith and out of good will to co-employees which was a practice tolerated in the office. The actual cash shortage was only P1.74 and together with the disallowed advances were fully reimbursed within a reasonable time. There was no negligence, malice, nor intent to defraud. In Ciamfranca Jr. v. Sandiganbayan, where the accused in malversation could not give reasonable and satisfactory explanation or excuse for the missing funds or property accountable by him, it was held that the return of the funds or property is not a defense and does not extinguish criminal liability.
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In Parungao v. Sandiganbayan, 197 SCRA 173, it was held that a public officer charged with malversation cannot be convicted of technical malversation (illegal use of public funds under Article 220). To do so would violate accuseds right to be informed of nature of accusation against him. Technical malversation is not included in the crime of malversation. In malversation, the offender misappropriates public funds or property for his own personal use, or allows any other person to take such funds or property for the latters own personal use. In technical malversation, the public officer applies the public funds or property under his administration to another public use different from that for which the public fund was appropriated by law or ordinance. Recourse: File the proper information.
Updates in MALVERSATION
The elements of the offense of malversation of public funds are as follows: (1) the offender is a public officer; (2) he has the custody or control of the funds or property by reason of the duties of his office; (3) the funds or property involved are public funds or property for which he is accountable; and (4) he has appropriated, taken or misappropriated, or has consented to, or through abandonment or negligence, permitted the taking by another person of, such funds or property. 34 Concededly, the first three elements are present in this case. It is the last element, i.e., whether petitioner misappropriated said public funds, that serves as the petitioner's focus. He claims that he used the missing funds for disbursement of cash advances, and not for his personal use. The Sandiganbayan held that this defense is unacceptable, and indicative of petitioner's guilt. On this point, we are in agreement. o To begin with, this defense had been advanced in several cases before this Court, but has been found to be without merit. As held in Rueda, Jr. v. Sandiganbayan and other cases: o [T]he practice of disbursing public funds under the "vale" system is not a meritorious defense in malversation cases. The grant of loans through the "vale" system is a clear case of an accountable officer consenting to the improper or unauthorized use of public funds by other persons, which is punishable by law. To tolerate such a practice is to give a license to every disbursing officer to conduct a lending operation with the use of public funds. Malversation may be committed by appropriating public funds or property; by taking or misappropriating the same; by consenting, or through abandonment or negligence, by permitting any other person to take such public funds or property; or by being otherwise guilty of the misappropriation or malversation of such funds or property. 19 The essential elements common to all acts of malversation under Art. 217 of the Revised Penal Code 20 are: (a) That the offender be a public officer; (b) That he had the custody or control of funds or property by reason of the duties of his office; (c) That those funds or property were public funds or property for which he was accountable; STDEcA (d) That he appropriated, took, misappropriated or consented or, through abandonment or negligence, permitted another person to take them. 21 o There can be no malversation of public funds by petitioner Ocampo in the instant cases since the loan of P11.5 million transferred ownership and custody of the funds, which included the sum of money allegedly malversed, to LTFI for which Ocampo could no longer be held accountable. Thus, contrary to the allegation of the Office of the Special Prosecutor, petitioner Ocampo cannot be held culpable for malversation committed through negligence in adopting measures to safeguard the money of the Province of Tarlac, since the same were neither in his custody nor was he accountable therefor after the loan to LTFI. o Thus, petitioner Flores, as the executive director of LTFI, cannot also be held liable for malversation of public funds in a contract of loan which transferred ownership of the funds to LTFI making them private in character. Liwanag v. Court of Appeals 22 held: . . . in a contract of loan once the money is received by the debtor, ownership over the same is transferred. Being the owner, the borrower can dispose of it for whatever purpose he may deem proper. What is controlling in the instant cases is that the parties entered into a contract of loan for each release of NALGU funds. The second release on October 24, 1988 included the subject funds in controversy. By virtue of the contract of loan, ownership of the subject funds was transferred to LTFI making them private in character, and therefore not subject of the instant cases of malversation of public funds.
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Malversation is defined and penalized under Article 217 of the Revised Penal Code. The acts punished as malversation are: (1) appropriating public funds or property, (2) taking or misappropriating the same, (3) consenting, or through abandonment or negligence, permitting any other person to take such public funds or property, and (4) being otherwise guilty of the misappropriation or malversation of such funds or property. o Evidently, the first three elements are present in the case at bar. At the time of the commission of the crime charged, petitioner was a public officer, being then the acting municipal treasurer of Tubigon, Bohol. By reason of his public office, he was accountable for the public funds under his custody or control. o The question then is whether or not petitioner has appropriated, took or misappropriated, or consented or through abandonment or negligence, permitted another person to take such funds.
In malversation, all that is necessary to prove is that the defendant received in his possession public funds; that he could not account for them and did not have them in his possession; and that he could not give a reasonable excuse for its disappearance. An accountable public officer may be convicted of malversation even if there is no direct evidence of misappropriation and the only evidence is shortage in his accounts which he has not been able to explain satisfactorily. Verily, an accountable public officer may be found guilty of malversation even if there is no direct evidence of malversation because the law establishes a presumption that mere failure of an accountable officer to produce public funds which have come into his hands on demand by an officer duly authorized to examine his accounts is prima facie case of conversion. Because of the prima facie presumption in Article 217, the burden of evidence is shifted to the accused to adequately explain the location of the funds or property under his custody or control in order to rebut the presumption that he has appropriated or misappropriated for himself the missing funds. Failing to do so, the accused may be convicted under the said provision. However, the presumption is merely prima facie and a rebuttable one. The accountable officer may overcome the presumption by proof to the contrary. If he adduces evidence showing that, in fact, he has not put said funds or property to personal use, then that presumption is at end and the prima facie case is destroyed.
There can hardly be no dispute about the presence of the first three elements. Petitioner is a public officer occupying the position of a supply officer at the Office of the Provincial Engineer of Marinduque. In that capacity, he receives money or property belonging to the provincial government for which he is bound to account. It is the last element, i.e., whether or not petitioner really has misappropriated public funds, where the instant petition focuses itself on. In the crime of malversation, all that is necessary for conviction is sufficient proof that the accountable officer had received public funds, that he did not have them in his possession when demand therefor was made, and that he could not satisfactorily explain his failure to do so. Direct evidence of personal misappropriation by the accused is hardly necessary 16 as long as the accused cannot explain satisfactorily the shortage in his accounts. o In convicting petitioner, the Sandiganbayan cites the presumption in Article 217, supra, of the Revised Penal Code, i.e., 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, is prima facie evidence that he has put such missing fund or property to personal uses. The presumption is, of course, rebuttable. Accordingly, if the accused is able to present adequate evidence that can nullify any likelihood that he had put the funds or property to personal use, then that presumption would be at an end and the prima facie case is effectively negated. This Court has repeatedly said that when the absence of funds is not due to the personal use thereof by the accused, the presumption is completely destroyed; in fact, the presumption is never deemed to have existed at all. o Here, the return of the said amount cannot be considered a mitigating circumstance analogous to voluntary surrender considering that it took petitioner almost seven (7) years to return the amount. Petitioner has not advanced a plausible reason why he could not liquidate his cash advance which was in his possession for several years. As a last ditch effort to exonerate himself, petitioner anchored his defense on Madarang 24 and Agullo, 25 where public employees charged of malversation were cleared of criminal liability. o In these two (2) cases cited by petitioner, we elucidated the legal presumption of assumed criminal liability for accountable funds under the last paragraph of Article 217 of the Revised Penal Code. In Madarang, we explained:
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o o
Concededly, the first three elements are present in the case at bar. Lacking any evidence, however, of shortage, or taking, appropriation, or conversion by petitioner or loss of public funds, there is no malversation (Narciso vs. Sandiganbayan, 229 SCRA 229 [1994]). True, the law creates a presumption that the mere failure of an accountable officer to produce public funds which have come into his hand on demand by an officer duly authorized to examine his accounts is prima facie evidence of conversion. The presumption is, of course, rebuttable. Accordingly, if petitioner is able to present adequate evidence that can nullify any likelihood that he had put the funds or property to personal use, then that presumption would be at an end and the prima facie case is effectively negated. 26 In Agullo, we amplified that: Thus, in a string of categorical pronouncements, this Court has consistently and emphatically ruled that the presumption of conversion incarnated in Article 217, paragraph (4) of the Revised Penal Code is by its very nature rebuttable. To put it differently, the presumption under the law is not conclusive but disputable by satisfactory evidence to the effect that the accused did not utilize the public funds or property for his personal use, gain or benefit. Accordingly, if the accused is able to present adequate evidence that can nullify any likelihood that he had put the funds or property to personal use, then that presumption would be at an end and the prima facie case is effectively negated. This Court has repeatedly said that when the absence of funds is not due to the personal use thereof by the accused, the presumption is completely destroyed; in fact, the presumption is never deemed to have existed at all. 27 Unfortunately, petitioner's vaunted reliance on Madarang and Agullo does not provide legal relief as the facts in these cases are not on all fours with his case. The accused parties in said cases were able to produce satisfactory evidence ample enough to prove that the missing funds were not converted to their personal uses and thus, the legal presumption was effectively negated. In Madarang, the accused, based on the COA audit report, was charged with malversation of PhP 20,700.00 representing advance rental payments for the lease of real property owned by the City of Cebu for which he was responsible as a barangay captain. When the accused was asked to account for such missing funds, he introduced convincing evidence that the funds were utilized by the barangay for its projects and for the benefit of his constituents, namely: for materials for the water system of the barangay hall, barangay police uniforms, and payment for medicine. Therefore, the legal presumption was successfully overturned. Likewise, in Agullo, the accused, who was the disbursing officer of then Ministry of Public Works and Highways, Regional Office No. VIII, Candahug, Palo, Leyte, was charged based on audit, with malversation of PhP 26,404.26 representing the salaries of the personnel in her office. The accused admitted that the funds were lost; however, she was able to prove that she suffered a stroke while going to her office. This was corroborated by the barangay captain of the place where she suffered a stroke, as well as medical certificates to prove the illness. She was acquitted because the loss of funds was not due to malversation. In contrast, petitioner anchored his defenses solely on his own bare testimony unsubstantiated by other parol, documentary, or object evidence to prop up such self-serving allegations. Without doubt, the rulings in Madarang and Agullo cannot be considered precedents to the case at bar because the facts in said cases are not the same or substantially similar to petitioner Wa-acon's situation.
The felony consists not only in misappropriation or converting public funds or property to one's personal use but also by knowingly allowing others to make use of or misappropriate the same. 30 The felony may thus be committed by dolo or by culpa. The crime is consummated and the appropriate penalty is imposed regardless of whether the mode of commission is with intent or due to negligence. 31 An accountable officer may thus be convicted of malversation even if there is no direct evidence of misappropriation and the only evidence is that there is a shortage in the officer's account which he has not been able to explain satisfactorily. All that is essential is proof that the accountable officer has received public funds but that when demand therefor is made, he is unable to satisfactorily account for the same. o The law declares that the failure of the public officer to account for such public funds or property upon demand by any duly-authorized officer shall be prima facie evidence that he has appropriated the same for his personal use. A public officer may be liable for malversation even if he does not use public property or funds under his custody for his personal benefit, but consents to the taking thereof by another person, or, through abandonment or negligence, permitted such taking. o The prosecution is burdened to prove beyond reasonable doubt, either by direct or circumstantial evidence, that the public officer appropriated, misappropriated or consented or through abandonment or negligence, permitted another person to take public property or public funds under his custody.
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o o
Absent such evidence, the public officer cannot be held criminally liable for malversation. 27 Mere absence of funds is not sufficient proof of conversion; neither is the mere failure of the public officer to turn over the funds at any given time sufficient to make even the prima facie case. In fine, conversion must be proved. 28 However, an accountable officer may be convicted of malversation even in the absence of direct proof of misappropriation so long as there is evidence of shortage in his account which he is unable to explain. Demand to produce public funds under a public officer's custody is not an essential element of the felony. The law creates a prima facie presumption of connivance if the public officer fails to produce public funds under his custody upon demand therefor. However, the presumption may be rebutted by evidence that the public officer had fully accounted for the alleged cash shortage.
MALVERSATION OF PUBLIC FUNDS OR PROPERTY; ELEMENTS. The elements of malversation, essential for the conviction of an accused under the above penal provision are: 1. That the offender is a public officer; 2. That he has the custody or control of funds or property by reason of the duties of his office; 3. That the funds or property are public funds or property for which he is accountable; and 4. That he appropriated, took, misappropriated or consented or through abandonment or negligence, permitted another person to take them. AaECSH o ACCOUNTABLE OFFICER NEED NOT BE A BONDED OFFICIAL. An accountable public officer, within the purview of Article 217 of the Revised Penal Code, is one who has custody or control of public funds or property by reason of the duties of his office. To be liable for malversation, an accountable officer need not be a bonded official. The name or relative importance of the office or employment is not the controlling factor. What is decisive is the nature of the duties that he performs and that as part of, and by reason of said duties, he receives public money or property which he is bound to account. o POLICE OFFICER IS ACCOUNTABLE FOR THE FIREARMS ISSUED TO HIM WHEN HE FAILED TO PRODUCE IT UPON DEMAND BY THE PROPER AUTHORITY. In the case at bar, the delivery to petitioner of the firearms belonging to the Government, by reason of his office as Station Commander of Calinog, Iloilo, PC-INP, necessarily entailed the obligation on his part to safely keep the firearms, use them for the purposes for which they were entrusted to him, and to return them to the proper authority at the termination of his tenure as commander, or on demand by the owner, the duty to account for said firearms. Thus, in Felicilda v. Grospe, the Court held a police officer accountable for the firearms issued to him and consequently convicted him for malversation of public property when he failed to produce said firearms upon demand by the proper authority. It must be stressed that a public officer who is not in charge of public funds or property by virtue of her official position, or even a private individual, may be liable for malversation or illegal use of public funds or property if such public officer or private individual conspires with an accountable public officer to commit malversation or illegal use of public funds or property. o The Court has also ruled that one who conspires with the provincial treasurer in committing six counts of malversation is also a co-principal in committing those offenses, and that a private person conspiring with an accountable public officer in committing malversation is also guilty of malversation. o We agree with the petitioner's contention that under Section 474 of the Local Government Code, she is not obliged to receive public money or property, nor is she obligated to account for the same; hence, she is not an accountable officer within the context of Article 217 of the Revised Penal Code. Indeed, under the said article, an accountable public officer is one who has actual control of public funds or property by reason of the duties of his office. Even then, it cannot thereby be necessarily concluded that a municipal accountant can never be convicted for malversation under the Revised Penal Code. The name or relative importance of the office or employment is not the controlling factor. 24 The nature of the duties of the public officer or employee, the fact that as part of his duties he received public money for which he is bound to account and failed to account for it, is the factor which determines whether or not malversation is committed by the accused public officer or employee. Hence, a mere clerk in the provincial or municipal government may be held guilty of malversation if he or she is entrusted with public funds and misappropriates the same.
ARTICLE 218 FAILURE OF ACCOUNTABLE OFFICER TO RENDER ACCOUNTS A. Elements 1. Offender is a public officer, whether in the service or separated therefrom 2. He must be an accountable officer for public funds or property.
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3. Required by law or regulation to render account to the central or provincial auditor. been 4. That he fails to do so for a period of 2 months after such accounts should have rendered.
ARTICLE 219 FAILURE OF RESPONSIBLE PUBLIC OFFICER TO RENDER ACCOUNTS BEFORE LEAVING THE COUNTRY A. Elements 1. Offender is a public officer. 2. Accountable officer for public funds or property 3. He must have unlawfully left (or on the point of leaving) the Philippines without securing from the auditor general a certificate showing that his accounts have been settled. Note: This article only applies if the public officer leave or attempt to leave the country UNLAWFULLY. When an accountable officer leaves the country without first settling his accountability or otherwise securing a clearance from the Commission on Audit regarding such accountability, the implication is that he left the country because he has misappropriated the funds under his accountability. Who can commit this crime? A responsible public officer, not necessarily an accountable one, who leaves the country without first securing clearance from the Commission on Audit. The purpose of the law is to discourage responsible or accountable officers from leaving without first liquidating their accountability. Mere leaving without securing clearance constitutes violation of the Revised Penal Code. It is not necessary that they really misappropriated public funds ARTICLE 220 ILLEGAL USE OF PUBLIC FUNDS OR PROPERTY Kernel of the Provision: Money for public purpose is spent for another public purpose. A. Elements 1. Offender is a public officer 2. There is public funds or property under his administration. 3. That such public funds or property has been appropriated by law or ordinance. 4. He applies the same to public use other than for which such fund or property has been appropriated by law or ordinance. Q: A city engineer was given 200 bags of cement for the repair of a certain highway. However, the engineer used only 100 bags for the highway. The remaining bags , he used to construct a cemented road in a nearby barangay which according to him, needed more attention. Is he guilty of Technical Malversation? A: YES, the 200 bags was for the repair of the said highway. The Engr. cannot substitute his own judgment to that of the legislative body which appropriated the money for the public purpose intended.
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Q: Is damage to Government necessary? A: NO, even if the public official used the funds/property to an even greater use- hes still liable. It is not the damage that determine criminal liability - it is the fact that the offender used his discretion over and above what the law/ordinance had determined and for which it is appropriated. ACTUAL CASE: In an action for Replevin, plaintiff obtained a favorable judgment and accordingly, the local sheriff was tasked to recover the sports car which is the subject matter of the action. However, instead of depositing said car, the sheriff used the car and drove it to a beach resort. Along the way, one of the tires hit a nail and got flat. The sheriff took the car to a nearby vulcanizing shop and informed the mechanic that the car is government property. Yet, despite the sheriffs statement, the mechanic cannibalized the sports car. What crime did the sheriff commit? The Sheriff is guilty of MALVERSATION because he is accountable for the return/delivery of the sports car. Q: Isnt the sheriff guilty of theft? A: No. The sheriff would have been guilty of theft only if the element of Accountability is absent. Q: How about the mechanic who cannibalized the car? What crime did he commit? A: The mechanic is also guilty of Malversation because the sheriff had entrusted the car to said mechanic. IMPORTANT: PROPERTY UNDER CUSTODY= means that the keeper of the property has the authority to apply or appropriate the same. His duty is the safekeeping of the property. PROPERTY UNDER ADMINISTRATION= means that the administrator has to apply the property to purposes for which the same has been earmarked. Administration connotes application. NOTE: In Malversation, returning of the property which has been misappropriated has been considered as a mitigating circumstance. However, if the property is returned only after several years have elapsed from the time the property was misappropriated, it cannot anymore be considered as mitigating.(Quizo vs Sandiganbayan) * see ART 17 last paragraph - Presumption of malversation - thus an accountable public officer maybe convicted of malversation even if there is no Direct Evidence of Misappropriation i.e. the only evidence is that there is a shortage in his account which has not been able to explain satisfactorily.
PARUNGAO vs. SANDIGANBAYAN and PEOPLE G.R. No. 96025. May 15, 1991 DISTINGUISH MALVERSATION OF PUBLIC FUNDS AND TECHNICAL MALVERSATION; NOT INCLUDED IN NOR DOES IT NECESSARILY INCLUDE THE CRIME OF MALVERSATION OF PUBLIC FUNDS. A comparison of the two articles reveals that their elements are entirely distinct and different from the other. In malversation of public funds, the offender misappropriates public funds for his own personal use or allows any other person to take such public funds for the latter's personal use. In technical malversation, the public officer applies public funds under his administration not for his or another's personal use, but to a public use other than that for which the fund was appropriated by law or ordinance.
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Technical malversation is, therefore, not included in nor does it necessarily include the crime of malversation of public funds charged in the information. Since the acts constituting the crime of technical malversation were not alleged in the information, and since technical malversation does not include, or is not included in the crime of malversation of public funds, he cannot resultantly be convicted of technical malversation.
Illegal use of public funds or property is also known as technical malversation. The term technical malversation is used because in this crime, the fund or property involved is already appropriated or earmarked for a certain public purpose. The offender is entrusted with such fund or property only to administer or apply the same to the public purpose for which it was appropriated by law or ordinance. Instead of applying it to the public purpose to which the fund or property was already appropriated by law, the public officer applied it to another purpose. Since damage is not an element of malversation, even though the application made proved to be more beneficial to public interest than the original purpose for which the amount or property was appropriated by law, the public officer involved is still liable for technical malversation. If public funds were not yet appropriated by law or ordinance, and this was applied to a public purpose by the custodian thereof, the crime is plain and simple malversation, not technical malversation. If the funds had been appropriated for a particular public purpose, but the same was applied to private purpose, the crime committed is simple malversation only. Illustration: The office lacked bond papers. What the government cashier did was to send the janitor, get some money from his collection, told the janitor to buy bond paper so that the office will have something to use. The amount involved maybe immaterial but the cashier commits malversation pure and simple. This crime can also be committed by a private person. Illustration: A certain road is to be cemented. Bags of cement were already being unloaded at the side. But then, rain began to fall so the supervisor of the road building went to a certain house with a garage, asked the owner if he could possibly deposit the bags of cement in his garage to prevent the same from being wet. The owner of the house, Olive, agreed. So the bags of cement were transferred to the garage of the private person. After the public officer had left, and the workers had left because it is not possible to do the cementing, the owner of the garage started using some of the cement in paving his own garage. The crime of technical malversation is also committed. Note that when a private person is constituted as the custodian in whatever capacity, of public funds or property, and he misappropriates the same, the crime of malversation is also committed. See Article 222. Illustration:
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The payroll money for a government infrastructure project on the way to the site of the project, the officers bringing the money were ambushed. They were all wounded. One of them, however, was able to get away from the scene of the ambush until he reached a certain house. He told the occupant of the house to safeguard the amount because it is the payroll money of the government laborers of a particular project. The occupant of the house accepted the money for his own use. The crime is not theft but malversation as long as he knew that what was entrusted in his custody is public fund or property.
Question & Answer The sheriff, after having levied on the property subject of a judgment, conducted a public auction sale. He received the proceeds of the public auction. Actually, the proceeds are to be delivered to the plaintiff. The sheriff, after deducting the sheriffs fees due to the office, spent part of that amount. He gave the balance to the plaintiff and executed a promissory note to pay the plaintiff the amount spent by him. Is there a crime committed? The Supreme Court ruled that the sheriff committed the crime of malversation because the proceeds of the auction sale was turned over to the plaintiff, such proceeds is impressed with the characteristic of being part of public funds. The sheriff is accountable therefore because he is not supposed to use any part of such proceeds. ARTICLE 221 FAILURE TO MAKE DELIVERY OF PUBLIC FUNDS OR PROPERTY A. Acts Punished 1. By failing to make payment by a public officer who is under the obligation to make such payment from the Government funds in his possession. 2. By refusing to make delivery by a public officer who has been ordered by competent authority to delivery any property in his custody or under his administration. B. Elements 1. The public officer has Government funds in his possession. 2. That he is under obligation to make payment from such funds 3. Fails to make the payment maliciously ARTICLE 222 OFFICERS INCLUDED IN THE PRECEDING PROVISIONS The provisions of this chapter shall apply to: 1. Private individuals who in any capacity whatever, have charge of any insular, provincial or municipal funds, revenues, or property and 2. Administrator or depository of funds or property attached, seized or deposited by public authority, even if such property belongs to a private individual. - Sheriffs and receivers are considered administrators
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- Judicial administrator (appointed by the court to administer the estate of the deceased) not considered as administrator.
Chapter Five INFIDELITY OF PUBLIC OFFICERS

Section One. Infidelity in the custody of prisoners ARTICLE 223 CONNIVING WITH OR CONSENTING TO EVASION A. Elements 1. Offender is a public officer 2. Had in his custody or charge a prisoner, either detention prisoners or prisoner by final judgement 3. Such prisoner escaped from his custody 4. That he was in connivance with the prisoner in the latters escape
ARTICLE 224 EVASION THROUGH NEGLIGENCE A. Elements 1. Offender is a public officer 2. He is charged with the custody of a prisoner, either detention prisoners or prisoner by final judgement 3. That such prisoner escaped through his negligence ARTICLE 225 ESCAPE OF PRISONER UNDER THE CUSTODY OF A PERSON NOT A PUBLIC OFFICER A. Elements 1. Offender is a private person 2. That he has in his custody of a prisoner or person under arrest is confided to - thus, Art 225 not applicable if the private person makes the arrest 3. That the prisoner or person under arrest escapes 4. The offender consents to the escape of the prisoner or person under arrest, or escape takes place through his negligence The crime is infidelity in the custody of prisoners if the offender involved is the custodian of the prisoner. If the offender who aided or consented to the prisoners escaping from confinement, whether the prisoner is a convict or a detention prisoner, is not the custodian, the crime is delivering prisoners from jail under Article156.
him
that the
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The crime of infidelity in the custody of prisoners can be committed only by the custodian of a prisoner. If the jail guard who allowed the prisoner to escape is already off-duty at that time and he is no longer the custodian of the prisoner, the crime committed by him is delivering prisoners from jail. Note that you do not apply here the principle of conspiracy that the act of one is the act of all. The party who is not the custodian who conspired with the custodian in allowing the prisoner to escape does not commit infidelity in the custody of the prisoner. He commits the crime of delivering prisoners from jail.
Question & Answer If a private person approached the custodian of the prisoner and for a certain consideration, told the custodian to leave the door of the cell unlocked for the prisoner to escape. What crime had been committed? It is not infidelity in the custody of prisoners because as far as the private person is concerned, this crime is delivering prisoners from jail. The infidelity is only committed by the custodian. This crime can be committed also by a private person if the custody of the prisoner has been confided to a private person. Illustration: A policeman escorted a prisoner to court. After the court hearing, this policeman was shot at with a view to liberate the prisoner from his custody. The policeman fought the attacker but he was fatally wounded. When he could no longer control the prisoner, he went to a nearby house, talked to the head of the family of that house and asked him if he could give the custody of the prisoner to him. He said yes. After the prisoner was handcuffed in his hands, the policeman expired. Thereafter, the head of the family of that private house asked the prisoner if he could afford to give something so that he would allow him to go. The prisoner said, Yes, if you would allow me to leave, you can come with me and I will give the money to you. This private persons went with the prisoner and when the money was given, he allowed him to go. What crime/s had been committed? Under Article 225, the crime can be committed by a private person to whom the custody of a prisoner has been confided. Where such private person, while performing a private function by virtue of a provision of law, shall accept any consideration or gift for the non-performance of a duty confided to him, Bribery is also committed. So the crime committed by him is infidelity in the custody of prisoners and bribery. If the crime is delivering prisoners from jail, bribery is just a means, under Article 156, that would call for the imposition of a heavier penalty, but not a separate charge of bribery under Article 156.
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But under Article 225 in infidelity, what is basically punished is the breach of trust because the offender is the custodian. For that, the crime is infidelity. If he violates the trust because of some consideration, bribery is also committed. A higher degree of vigilance is required. Failure to do so will render the custodian liable. The prevailing ruling is against laxity in the handling of prisoners. Illustration: A prison guard accompanied the prisoner in the toilet. While answering the call of nature, police officer waiting there, until the prisoner escaped. Police officer was accused of infidelity. There is no criminal liability because it does not constitute negligence. Negligence contemplated here refers to deliberate abandonment of duty. Note, however, that according to a recent Supreme Court ruling, failure to accompany lady prisoner in the comfort room is a case of negligence and therefore the custodian is liable for infidelity in the custody of prisoner. Prison guard should not go to any other place not officially called for. This is a case of infidelity in the custody of prisoner through negligence under Article 224. Section Two. Infidelity in the custody of document ARTICLE 226 REMOVAL, CONCEALMENT OR DESTRUCTION OF DOCUMENTS A. Elements 1. Offender is a public officer 2. He abstracts, destroys or conceals a document or paper 3. That the said document or paper should have been entrusted to such officer by reason of his public office 4. The damage whether serious or not, to a third party or to the public interest should have been caused - Damage may mean mere alarm or in the alienation of its confidencein the govt Crimes falling under the section on infidelity in the custody of public documents can only be committed by the public officer who is made the custodian of the document in his official capacity. If the officer was placed in possession of the document but it is not his duty to be the custodian thereof, this crime is not committed. Illustration: A letter is entrusted to a postmaster for transmission of a registered letter to another. The postmaster opened the letter and finding the money, extracted the same. The crime committed is infidelity in the custody of the public document because under Article 226, the law refers also to papers entrusted to public officer involved and currency note is considered to be within the term paper although it is not a document.
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With respect to official documents, infidelity is committed by destroying the document, or removing the document or concealing the document. Damage to public interest is necessary. However, material damage is not necessary. Illustration: If any citizen goes to a public office, desiring to go over public records and the custodian of the records had concealed the same so that this citizen is required to go back for the record to be taken out, the crime of infidelity is already committed by the custodian who removed the records and kept it in a place where it is not supposed to be kept. Here, it is again the breach of public trust which is punished. Although there is no material damage caused, mere delay in rendering public service is considered damage. Removal of public records by the custodian does not require that the record be brought out of the premises where it is kept. It is enough that the record be removed from the place where it should be and transferred to another place where it is not supposed to be kept. If damage is caused to the public service, the public officer is criminally liable for infidelity in the custody of official documents. Distinction between infidelity in the custody of public document, estafa and malicious mischief In infidelity in the custody of public document, the offender is the custodian of the official document removed or concealed. In estafa, the offender is not the custodian of the document removed or concealed. In malicious mischief, the offender purposely destroyed and damaged the property/document.
Where in case for bribery or corruption, the monetary considerations was marked as exhibits, such considerations acquires the nature of a document such that if the same would be spent by the custodian the crime is not malversation but Infidelity in the custody of public records, because the money adduced as exhibits partake the nature of a document and not as money. Although such monetary consideration acquires the nature of a document, the best evidence rule does not apply here. Example, photocopies may be presented in evidence. ARTICLE 227 OFFICER BREAKING SEAL A. Elements 1. Offender is a public officer 2. Charged with the custody of papers or property 3. These papers or property are sealed by proper authority 4. He breaks the seal or permits it to be broken
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If the official document is sealed or otherwise placed in an official envelope, the element of damage is not required. The mere breaking of the seal or the mere opening of the document would already bring about infidelity even though no damage has been suffered by anyone or by the public at large. The offender does not have to misappropriate the same. Just trying to discover or look what is inside is infidelity already. The act is punished because if a document is entrusted to the custody of a public officer in a sealed or closed envelope, such public officer is supposed not to know what is inside the same. If he would break the seal or open the closed envelop, indications would be that he tried to find out the contents of the document. For that act, he violates the confidence or trust reposed on him. A crime is already committed regardless of whether the contents of the document are secret or private. It is enough that it is entrusted to him in a sealed form or in a closed envelope and he broke the seal or opened the envelop. Public trust is already violated if he managed to look into the contents of the document. Distinction between infidelity and theft There is infidelity if the offender opened the letter but did not take the same. There is theft if there is intent to gain when the offender took the money.
Note that he document must be complete in legal sense. If the writings are mere form, there is no crime. Illustration: As regard the payroll, which has not been signed by the Mayor, no infidelity is committed because the document is not yet a payroll in the legal sense since the document has not been signed yet. In "breaking of seal", the word "breaking" should not be given a literal meaning. Even if actually, the seal was not broken, because the custodian managed to open the parcel without breaking the seal. ARTICLE 228 OPENING CLOSED DOCUMENTS A. Elements 1. Offender is a public officer 2. The closed paper, document, or object are entrusted to his custody 3. That he opens or permits to be opened said closed papers, documents or objects 4. He does not have proper authority Section Three. Revelation of secrets ARTICLE 229 REVELATION OF SECRETS BY AN OFFICER
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A. Acts Punishable 1. By revealing any secret (secret must affect public interest) known to the offending public officer by reason of his official capacity a. Offender is a public officer b. Knows a secret by reason of his official capacity c. Reveals the secret without authority or justifiable reason d. The damage, great or small, be caused to the public interest and 2. By delivering wrongfully papers or copies of papers of which he may have charge which should not have been published a. Offender is a public officer b. Charge of papers c. That those papers should have not have been published d. He delivers those papers or copies thereof to a third person e. Delivery is wrongful f. Damage is caused to public interest
ARTICLE 230 PUBLIC OFFICER REVEALING SECRETS OF PRIVATE INDIVIDUAL A. Elements 1. Offender is a public officer 2. Knows a secret of a private individual by reason of his office 3. Reveals the secret without authority or justifiable reason
Chapter Six OTHER OFFENSES OR IRREGULARITIES BY PUBLIC OFFICERS

ARTICLE 231 OPEN DISOBEDIENCE A. Elements 1. The offender is a judicial or executive officer 2. That there is judgement, decision or order of a superior authority 3. That such judgement, decision or order was made within the scope of the jurisdiction of the superior authority and issued with all legal formalities 4. That the offender without any legal justification openly refuses to execute the said judgement, decision or order, which he is duty bound to obey ARTICLE 232 DISOBEDIENCE TO ORDER OF SUPERIOR OFFICERS, WHEN SAID ORDER WAS SUSPENDED BU INFERIOR OFFICER A. Elements 1. Offender is a public officer 2. An order was issued by his superior for execution 3. He has for any reason suspended the execution of the order 4. His superior disapproves the suspension of the execution of the order 5. The offender disobeys his superior despite the disapproval of the suspension
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- This article does not apply if the order of the superior is illegal ARTICLE 233 REFUSAL TO ASSISTANCE A. Elements 1. Offender is a public officer 2. That a competent authority demands from the offender that he lends his cooperation towards the administration of justice or other public service 3. Offender fails to comply maliciously Any public officer who, upon being requested to render public assistance within his official duty to render and he refuses to render the same when it is necessary in the administration of justice or for public service, may be prosecuted for refusal of assistance. This is a crime, which a policeman may commit when, being subpoenaed to appear in court in connection with a crime investigated by him but because of some arrangement with the offenders, the policeman does not appear in court anymore to testify against the offenders. He tried to assail the subpoena so that ultimately the case would be dismissed. It was already held that the policeman could be prosecuted under this crime of refusal of assistance and not that of dereliction of duty. Illustration: A government physician, who had been subpoenaed to appear in court to testify in connection with physical injury cases or cases involving human lives, does not want to appear in court to testify. He may be charged for refusal of assistance. As long as they have been properly notified by subpoena and they disobeyed the subpoena, they can be charged always if it can be shown that they are deliberately refusing to appear in court. It is not always a case or in connection with the appearance in court that this crime may be committed. Any refusal by the public officer to render assistance when demanded by competent public authority, as long as the assistance requested from them is within their duty to render and that assistance is needed for public service, the public officers who are refusing deliberately may be charged with refusal of assistance. Note that the request must come from one public officer to another. Illustration: A fireman was asked by a private person for services but was refused by the former for lack of consideration. It was held that the crime is not refusal of assistance because the request did not come from a public authority. But if the fireman was ordered by the authority to put out the fire and he refused, the crime is refusal of assistance.
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If he receives consideration therefore, bribery is committed. But mere demand will fall under the prohibition under the provision of Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act). ARTICLE 234 REFUSAL TO DISCHARGE ELECTIVE OFFICE A. Elements 1. Offender is elected by popular election to a public office 2. Refuses to be sworn in or to discharge the duties of said office 3. There is no legal motive for such refusal to be sworn in or discharge the duties of said office
ARTICLE 235 MALTREATMENT OF PRISONERS A. Elements 1. Offender is a public officer or employee 2. He has under his charge a prisoner or detention prisoner 3. He maltreats the prisoner in any of the following manner a. By overdoing himself in the correction or handling of a prisoner or detention prisoner under his charge, either: - imposition of punishments not authorized by the regulations - inflicting such punishments (those authorized) in a cruel and humiliating manner 4. maltreating such prisoner to extort a confession, or to obtain some information from the prisoner - Offender may also be liable for physical injuries or damage caused, aside from incurring liability from this article. This is committed only by such public officer charged with direct custody of the prisoner. Not all public officer can commit this offense. If the public officer is not the custodian of the prisoner, and he manhandles the latter, the crime is physical injuries. The maltreatment does not really require physical injuries. Any kind of punishment not authorized or though authorized if executed in excess of the prescribed degree. Illustration: Make him drink dirty water, sit on ice, eat on a can, make him strip, hang a sign on his neck saying snatcher. But if as a result of the maltreatment, physical injuries were caused to the prisoner, a separate crime for the physical injuries shall be filed. You do not complex the crime of physical injuries with the maltreatment because the way Article 235 is worded, it prohibits the complexing of the crime.
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If the maltreatment was done in order to extort confession, therefore, the constitutional right of the prisoner is further violated. The penalty is qualified to the next higher degree. The offended party here must be a prisoner in the legal sense. The mere fact that a private citizen had been apprehended or arrested by a law enforcer does not constitute him a prisoner. To be a prisoner, he must have been booked and incarcerated no matter how short it is. Illustration: A certain snatcher was arrested by a law enforcer, brought to the police precinct, turned over to the custodian of that police precinct. Every time a policeman entered the police precinct, he would ask, What is this fellow doing here? What crime has he committed?. The other policeman would then tell, This fellow is a snatcher. So every time a policeman would come in, he would inflict injury to him. This is not maltreatment of prisoner because the offender is not the custodian. The crime is only physical injuries. But if the custodian is present there and he allowed it, then he will be liable also for the physical injuries inflicted, but not for maltreatment because it was not the custodian who inflicted the injury. But if it is the custodian who effected the maltreatment, the crime will be maltreatment of prisoners plus a separate charge for physical injuries. If a prisoner who had already been booked was make to strip his clothes before he was put in the detention cell so that when he was placed inside the detention cell, he was already naked and he used both of his hands to cover his private part, the crime of maltreatment of prisoner had already been committed. After having been booked, the prisoner was made to show any sign on his arm, hand or his neck; Do not follow my footsteps, I am a thief. That is maltreatment of prisoner if the offended party had already been booked and incarcerated no matter how short, as a prisoner. Before this point in time, when he is not yet a prisoner, the act of hanging a sign on his neck will only amount to slander because the idea is to cast dishonor. Any injury inflicted upon him will only give rise to the crime of physical injuries. Section Two. Anticipation, prolongation and abandonment of the duties and powers of public office. ARTICLE 236 ANTICIPATION OF DUTIES OF A PUBLIC OFFICE A. Elements 1. The offender is entitled to hold public office or employment, either by election or appointment 2. That the law requires that he should be first sworn in and/or should first give a bond 3. That he assumes the performance of the duties and power of such office
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4. That he has not taken his oath of office and/or gives the bond required ARTICLE 237 PROLONGING PERFORMANCE OF DUTIES AND POWERS A. Elements 1. Offender is holding a public office, employment or commission 2. The period provided by law, regulation, or special provision for holding such office has already expired 3. That he continues to exercise the duties and powers of such office ARTICLE 238 ABANDONMENT OF OFFICE OR POSITION A. Elements 1. Offender is a public officer 2. He formally resigns from his position 3. His resignation has not yet been accepted 4. He abandons his office to the detriment of the public services - Offense is qualified if the purpose of the abandonment is to evade the discharge of the duties of preventing, prosecuting, or punishing any of the crimes falling under Crimes against National Security and the Law of Nations OR Rebellion, Sedition and Disloyalty
Abandonment under Art. 228 distinguished from Negligence and tolerance in prosecution under Art 208
Art 228 Who institute violations of the How or by offenses Abandons his office to evade the discharge of his duty ANY public officer
Art 208 Only public officers who have the duty to prosecution law Does not abandon his office but he fails to prosecute an offense by dereliction of duty malicious tolerance of the commission of for the punishment of
Section Three. Usurpation of powers and unlawful appointments ARTICLE 239 USURPATION OF LEGISLATIVE POWERS A. Elements 1. The offender is an executive or judicial officer 2. That he: a. makes general rules and regulations beyond the scope of his authority b. attempts to repeal a law c. suspends the execution thereof
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ARTICLE 240 USURPATION OF EXECUTIVE FUNCTIONS A. Elements 1. The offender is a judge 2. That he: a. assumes a power pertaining to the executive authorities b. obstructs the executive authorities in the lawful exercise of their power - Legislative officers are not liable for usurpation of powers ARTICLE 241 USURPATION OF JUDICIAL FUNCTIONS A. Elements 1. The offender is an executive officer 2. That he: a. assumes judicial powers b. obstructs the execution of any order or decision rendered by any judge within his jurisdiction ARTICLE 242 DISOBEYING REQUEST FOR DISQUALIFICATION A. Elements 1. The offender is a public officer 2. That a proceeding is pending before such public officer 3. That there is a question brought before the proper authority regarding his jurisdiction, which is not yet decided 4. That he has been lawfully required to refrain from continuing the proceeding 5. That he continues the proceeding ARTICLE 243 ORDERS OR REQUESTS BY EXECUTIVE OFFICERS TO ANY JUDICIAL AUTHORITY A. Elements 1. The offender is an executive officer 2. That he addresses any order or suggestion to any judicial authority 3. That the order or suggestion relates to any case or business coming within the exclusive jurisdiction of the courts of justice ARTICLE 244 UNLAWFUL APPOINMENTS A. Elements 1. The offender is a public offender
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2. That he nominates or appoints a person to a public office 3. That such person lacks the legal qualification therefore 4. That the offender knows that his nominee or appointee lacks the qualifications at the time he made the nomination or appointment
Nominate is different from recommend, the latter is not punishable. Section Four. Abuses against chastity ARTICLE 245 ABUSES AGAINST CHASTITY A. Elements 1. The offender is a public officer 2. That he solicits or makes immoral or indecent advances to a woman 3. That such woman must be: a. interested in matters pending before the offender for decision, or with respect to which he is required to submit a report to or consult with a superior officer b. under the custody of the offender who is a warden or other public officer directly charged with the care and custody of prisoners or persons under arrest c. the wife, daughter, sister or relatives within the same degree by affinity of the person in the custody of the offender - the mother of the person in the custody of the offender is not included - crime is consummated even by mere proposal - proof of solicitation is not necessary when there is sexual intercourse The name of the crime is misleading. It implies that the chastity of the offended party is abused but this is not really the essence of the crime because the essence of the crime is mere making of immoral or indecent solicitation or advances. Illustration: Mere indecent solicitation or advances of a woman over whom the public officer exercises a certain influence because the woman is involved in a case where the offender is to make a report of result with superiors or otherwise a case which the offender was investigating. This crime is also committed if the woman is a prisoner and the offender is her jail warden or custodian, or even if the prisoner may be a man if the jail warden would make the immoral solicitations upon the wife, sister, daughter, or relative by affinity within the same degree of the prisoner involved. Three instances when this crime may arise: (1) The woman, who is the offended party, is the party in interest in a case where the offended is the investigator or he is required to render a report or he is required to consult with a superior officer. This does not include any casual or incidental interest. This refers to interest in the subject of the case under investigation.
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If the public officer charged with the investigation or with the rendering of the report or with the giving of advice by way of consultation with a superior, made some immoral or indecent solicitation upon such woman, he is taking advantage of his position over the case. For that immoral or indecent solicitation, a crime is already committed even if the woman did not accede to the solicitation. Even if the woman may have lied with the hearing officer or to the public officer and acceded to him, that does not change the crime because the crime seeks to penalize the taking advantage of official duties. It is immaterial whether the woman did not agree or agreed to the solicitation. If the woman did not agree and the public officer involved pushed through with the advances, attempted rape may have been committed. (2) The woman who is the offended party in the crime is a prisoner under the custody of a warden or the jailer who is the offender. If the warden or jailer of the woman should make immoral or indecent advances to such prisoner, this crime is committed. This crime cannot be committed if the warden is a woman and the prisoner is a man. Men have no chastity. If the warden is also a woman but is a lesbian, it is submitted that this crime could be committed, as the law does not require that the custodian be a man but requires that the offended be a woman. Immoral or indecent advances contemplated here must be persistent. It must be determined. A mere joke would not suffice. Illustrations: (1) An investigating prosecutor where the woman is charged with estafa as the respondent, made a remark to the woman, thus: You know, the way of deciding this case depends on me. I can just say this is civil in character. I want to see a movie tonight and I want a companion. Such a remark, which is not discerned if not persistent will not give rise to this crime. However, if the prosecutor kept on calling the woman and inviting her, that makes the act determined and the crime is committed. A jailer was prosecuted for abuse against chastity. The jailer said, It was mutual on their part. I did not really force my way upon the woman. The woman fell in love with me, I fell in love with the woman. The woman became pregnant. The woman admitted that she was not forced. Just the same, the jailer was convicted of abuse against chastity.
(2)
Legally, a prisoner is an accountability of the government. So the custodian is not supposed to interfere. Even if the prisoner may like it, he is not supposed to do that. Otherwise, abuse against chastity is committed. Being responsible for the pregnancy is itself taking advantage the prisoner.
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If he forced himself against the will of the woman, another crime is committed, that is, rape aside from abuse against chastity. You cannot consider the abuse against chastity as absorbed in the rape because the basis of penalizing the acts is different from each other. (3) The crime is committed upon a female relative of a prisoner under the custody of the offender, where the woman is the daughter, sister or relative by affinity in the same line as of the prisoner under the custody of the offender who made the indecent or immoral solicitation. The mother is not included so that any immoral or indecent solicitation upon the mother of the prisoner does not give rise to this crime, but the offender may be prosecuted under the Section 28 of Republic Act No. 3019 (Anti-graft and Corrupt Practices Act). Why is the mother left out? Because it is the mother who easily succumbs to protect her child. If the offender were not the custodian, then crime would fall under Republic Act No. 3019 (The Anti-Graft and Corrupt Practices Act). Republic Act No. 7877 (Anti-Sexual Harassment Act) Committed by any person having authority, influence or moral ascendancy over another in a work, training or education environment when he or she demands, requests, or otherwise requires any sexual favor from the other regardless of whether the demand, request or requirement for submission is accepted by the object of the said act (for a passing grade, or granting of scholarship or honors, or payment of a stipend, allowances, benefits, considerations; favorable compensation terms, conditions, promotions or when the refusal to do so results in a detrimental consequence for the victim). Also holds liable any person who directs or induces another to commit any act of sexual harassment, or who cooperates in the commission, the head of the office, educational or training institution solidarily. Complaints to be handled by a committee on decorum, which shall be determined by rules and regulations on such. Administrative sanctions shall not be a bar to prosecution in the proper courts for unlawful acts of sexual harassment.
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Title Eight CRIMES AGAINST PERSONS

The essence of crime here involves the taking of human life, destruction of the fetus or inflicting injuries. As to the taking of human life, you have: (1) (2) (3) (4) (5) Parricide; Murder; Homicide; Infanticide; and Giving assistance to suicide.
Note that parricide is premised on the relationship between the offender and the offended. The victim is three days old or older. A stranger who conspires with the parent is guilty of murder. In infanticide, the victim is younger than three days or 72 hours old; can be committed by a stranger. If a stranger who conspires with parent, both commit the crime of infanticide.
Chapter One DESTRUCTION OF LIFE

Section One. Parricide, murder, homicide ARTICLE 246 PARRICIDE A. Elements 1. That a person is killed 2. That the deceased is killed by the accused 3. That the deceased is the father, mother or child, whether legitimate or illegitimate, or a legitimate other ascendant or other descendant, or the legitimate spouse, of the accused. The essential element is relationship! or any of his ascendants, or descendants, or his spouse- all of them must be legitimate. Note: Under Art. 246, the child killed must not be less than 3 days old because that would already fall under the crime of Infanticide. Note: In Parricide. Relationship must be alleged in the information because the accused is entitled to know the cause of the accusation against him. Failure to allege relationship in the information modifies the crime to either murder or homicide. Q: When X was born, his father and mother had already separated. X never knew or even saw his father. Celebrating his 21st birthday, X treated his friends to a drinking spree in a nearby club. In the course of their drinking session, X and his friends had an altercation with a group of men in another table. As a result thereof, a fight ensued and X was able to kill one of the men who turned out to be his real father Y. Is X guilty of parricide even if he didnt know that it was his father whom he killed?
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A: Yup, X is still guilty of Parricide under Art 246. Q: X wanted to kill his father B. He sought the help of Y, a close friend. Together, X and Y succeeded in killing B. What was the crime committed? A: X is guilty of parricide while Y is guilty of Murder or Homicide as the case may be. This is a crime committed between people who are related by blood. Between spouses, even though they are not related by blood, it is also parricide. The relationship must be in the direct line and not in the collateral line. The relationship between the offender and the offended party must be legitimate, except when the offender and the offended party are related as parent and child. If the offender and the offended party, although related by blood and in the direct line, are separated by an intervening illegitimate relationship, parricide can no longer be committed. The illegitimate relationship between the child and the parent renders all relatives after the child in the direct line to be illegitimate too. The only illegitimate relationship that can bring about parricide is that between parents and illegitimate children as the offender and the offended parties. Illustration: A is the parent of B, the illegitimate daughter. B married C and they begot a legitimate child D. If D, daughter of B and C, would kill A, the grandmother, the crime cannot be parricide anymore because of the intervening illegitimacy. The relationship between A and D is no longer legitimate. Hence, the crime committed is homicide or murder. Since parricide is a crime of relationship, if a stranger conspired in the commission of the crime, he cannot be held liable for parricide. His participation would make him liable for murder or for homicide, as the case may be. The rule of conspiracy that the act of one is the act of all does not apply here because of the personal relationship of the offender to the offended party. Illustration: A spouse of B conspires with C to kill B. C is the stranger in the relationship. C killed B with treachery. The means employed is made known to A and A agreed that the killing will be done by poisoning. As far as A is concerned, the crime is based on his relationship with B. It is therefore parricide. The treachery that was employed in killing Bong will only be generic aggravating circumstance in the crime of parricide because this is not one crime that requires a qualifying circumstance. But that same treachery, insofar as C is concerned, as a stranger who cooperated in the killing, makes the crime murder; treachery becomes a qualifying circumstance.
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In killing a spouse, there must be a valid subsisting marriage at the time of the killing. Also, the information should allege the fact of such valid marriage between the accused and the victim. In a ruling by the Supreme Court, it was held that if the information did not allege that the accused was legally married to the victim, he could not be convicted of parricide even if the marriage was established during the trial. In such cases, relationship shall be appreciated as generic aggravating circumstance. The Supreme Court has also ruled that Muslim husbands with several wives can be convicted of parricide only in case the first wife is killed. There is no parricide if the other wives are killed although their marriage is recognized as valid. This is so because a Catholic man can commit the crime only once. If a Muslim husband could commit this crime more than once, in effect, he is being punished for the marriage which the law itself authorized him to contract. That the mother killed her child in order to conceal her dishonor is not mitigating. This is immaterial to the crime of parricide, unlike in the case of infanticide. If the child is less than three days old when killed, the crime is infanticide and intent to conceal her dishonor is considered mitigating. ARTICLE 247 DEATH OF PHYSICAL CIRCUMSTANCES
INJURIES
INFLICTED
UNDER
EXECPTIONAL
A. Requisites for the application of Art. 247: 1. That a legally married person or a parent surprises his spouse or his daughter, the latter under 18 years of age and living with him, in the act of committing sexual intercourse with another person. 2. That he or she kills any or both, of them or inflicts upon any or both of them any serious physical injury in the act or immediate thereafter. 3. That he has not promoted or facilitated the prostitution of his wife or daughter, or that he or she has not consented to the infidelity of the spouse. * Take note of Art 11, par 1 Q: A suspected his wife B of having an extra marital affair with the neighbor next door. One day, A told his wife that he will be home late because of a business meeting. However, there was no business meeting at all - As intention was merely to let her wife B think that hes away for work so he can observe from a safe distance in order to confirm his suspicious about his wife. True enough, A watched as the paramour entered his house. After a few minutes, A followed and entered their house and caught his wife and the paramour having carnal knowledge. A immediately got his shotgun and blew the paramours head off. Then he turned to his wife and fired the remaining bullets at the latters body shredding the skin and shattering the bones of B - killing the latter. Is this a case of Death under exceptional circumstances under Art 247? A: NO, because A did not surprise his spouse. A actually planned all of it - telling B that he will be home late, etc. The crime is murder or homicide as the case maybe. Thus, in order to qualify under the article the innocent spouse with out any advanced planning, must have surprised the guilty spouse and the paramour.
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Note: Art 247 applies if the innocent spouse killed or inflicted upon the guilty spouse or the paramour Serious Physical Injuries. But if there was no killing and the injuries inflicted were not serious, the innocent spouse is EXEMPT from any criminal liability. Q: Under the 3rd paragraph of Article 247, must the daughter be legitimate or illegitimate? A: The law does not qualify so we should not qualify also. Surprise - to come upon suddenly and unexpectedly. Note: Art 247 is NOT APPLICABLE when the accused did not actually see his/her spouse having sexual intercourse with another. But this is a very restrictive rule. It is believed that it is enough that the circumstance show reasonably that the carnal act is being committed. Q: Does sexual intercourse include preparatory acts? A: In a case, SC held that THERE MUST BE ACTUAL SEXUAL INTERCOURSE Note: The killing/ inflicting of serious physical injuries must be done in the act of sexual intercourse or immediately thereafter. Q: Having surprised his wife and the paramour, A killed his wife but the paramour jumped off the window and ran. A gave chase and after a kilometer of running, caught up with the paramour and killed the latter. Is this death under exceptional circumstances. A: Yes, the discovery, the escape, the pursuit and the killing must all form part of one Continuous Act. Q: A, after having surprised his wife in the act of committing sexual intercourse with another, got his shotgun and fired at his wife. However, the wife was not hit - instead, their next door neighbor was hit by the bullet and died. Is A criminally liable for the death of the neighbor? A: NO, the accused cannot be held liable for injuries sustained by 3 rd persons because at the time of the firing, the accused was doing a lawful act. Two stages contemplated before the article will apply: (1) When the offender surprised the other spouse with a paramour or mistress. The attack must take place while the sexual intercourse is going on. If the surprise was before or after the intercourse, no matter how immediate it may be, Article 247 does not apply. The offender in this situation only gets the benefit of a mitigating circumstance, that is, sufficient provocation immediately preceding the act. When the offender kills or inflicts serious physical injury upon the other spouse and/or paramour while in the act of intercourse, or immediately thereafter, that is, after surprising.
(2)
You have to divide the stages because as far as the first stage is concerned, it does not admit of any situation less than sexual intercourse. So if the surprising took place before any actual sexual intercourse could be done because the parties are only in their preliminaries, the article cannot be invoked anymore.
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If the surprising took place after the actual sexual intercourse was finished, even if the act being performed indicates no other conclusion but that sexual intercourse was had, the article does not apply. As long as the surprising took place while the sexual intercourse was going on, the second stage becomes immaterial. It is either killing or inflicting physical injuries while in that act or immediately thereafter. If the killing was done while in that act, no problem. If the killing was done when sexual intercourse is finished, a problem arises. First, were they surprised in actual sexual intercourse? Second, were they killed immediately thereafter? The phrase immediately thereafter has been interpreted to mean that between the surprising and the killing of the inflicting of the physical injury, there should be no break of time. In other words, it must be a continuous process. The article presumes that a legally married person who surprises his or her better half in actual sexual intercourse would be overcome by the obfuscation he felt when he saw them in the act that he lost his head. The law, thus, affords protection to a spouse who is considered to have acted in a justified outburst of passion or a state of mental disequilibrium. The offended spouse has no time to regain his self-control. If there was already a break of time between the sexual act and the killing or inflicting of the injury, the law presupposes that the offender regained his reason and therefore, the article will not apply anymore. As long as the act is continuous, the article still applies. Where the accused surprised his wife and his paramour in the act of illicit intercourse, as a result of which he went out to kill the paramour in a fit of passionate outburst. Although about one hour had passed between the time the accused discovered his wife having sexual intercourse with the victim and the time the latter was actually killed, it was held in People v. Abarca, 153 SCRA 735, that Article 247 was applicable, as the shooting was a continuation of the pursuit of the victim by the accused. Here, the accused, after the discovery of the act of infidelity of his wife, looked for a firearm in Tacloban City. Article 247 does not provide that the victim is to be killed instantly by the accused after surprising his spouse in the act of intercourse. What is required is that the killing is the proximate result of the outrage overwhelming the accused upon the discovery of the infidelity of his spouse. The killing should have been actually motivated by the same blind impulse. Illustration: A upon coming home, surprised his wife, B, together with C. The paramour was fast enough to jump out of the window. A got the bolo and chased C but he disappeared among the neighborhood. So A started looking around for about an hour but he could not find the paramour. A gave up and was on his way home. Unfortunately, the paramour, thinking that A was no longer around, came out of hiding and at that moment, A saw him and hacked him to death. There was a break of time and Article 247 does not apply anymore because when he gave up the search, it is a circumstance showing that his anger had already died down.
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Article 247, far from defining a felony merely grants a privilege or benefit, more of an exempting circumstance as the penalty is intended more for the protection of the accused than a punishment. Death under exceptional character can not be qualified by either aggravating or mitigating circumstances. In the case of People v. Abarca, 153 SCRA 735, two persons suffered physical injuries as they were caught in the crossfire when the accused shot the victim. A complex crime of double frustrated murder was not committed as the accused did not have the intent to kill the two victims. Here, the accused did not commit murder when he fired at the paramour of his wife. Inflicting death under exceptional circumstances is not murder. The accused was held liable for negligence under the first part, second paragraph of Article 365, that is, less serious physical injuries through simple negligence. No aberratio ictus because he was acting lawfully. A person who acts under Article 247 is not committing a crime. Since this is merely an exempting circumstance, the accused must first be charged with: (1) (2) (3) (4) Parricide if the spouse is killed; Murder or homicide depending on how the killing was done insofar as the paramour or the mistress is concerned; Homicide through simple negligence, if a third party is killed; Physical injuries through reckless imprudence, if a third party is injured.
If death results or the physical injuries are serious, there is criminal liability although the penalty is only destierro. The banishment is intended more for the protection of the offender rather than a penalty. If the crime committed is less serious physical injuries or slight physical injuries, there is no criminal liability. The article does not apply where the wife was not surprised in flagrant adultery but was being abused by a man as in this case there will be defense of relation. If the offender surprised a couple in sexual intercourse, and believing the woman to be his wife, killed them, this article may be applied if the mistake of facts is proved. The benefits of this article do not apply to the person who consented to the infidelity of his spouse or who facilitated the prostitution of his wife. The article is also made available to parents who shall surprise their daughter below 18 years of age in actual sexual intercourse while living with them. The act should have been committed by the daughter with a seducer. The two stages also apply. The parents cannot invoke this provision if, in a way, they have encouraged the prostitution of the daughter. The phrase living with them is understood to be in their own dwelling, because of the embarrassment and humiliation done not only to the parent but also to the parental abode.
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If it was done in a motel, the article does not apply. Illustration: A abandoned his wife B for two years. To support their children, A had to accept a relationship with another man. A learned of this, and surprised them in the act of sexual intercourse and killed B. A is not entitled to Article 248. Having abandoned his family for two years, it was natural for her to feel some affection for others, more so of a man who could help her. Homicide committed under exceptional circumstances, although punished with destierro, is within the jurisdiction of the Regional Trial Court and not the MTC because the crime charged is homicide or murder. The exceptional circumstances, not being elements of the crime but a matter of defense, are not pleaded. It practically grants a privilege amounting to an exemption for adequate punishment.
ARTICLE 248 MURDER A. Elements: 1. That a person is killed 2. The accused killed him. 3. That the killing was attended by any of the following qualifying circumstances a. treachery, taking advantage of superior strength, with the aid of armed men, employing means to weaken the defense or means to insure impunity. b. in consideration of prize, reward or promise c. by means of inundation, fire, poison, shipwreck, etc. d. on occasion of any calamity e. with evident premeditation f. with cruelty, by deliberately and inhumanely augmenting the suffering of the victim, or outraging (to commit an extremely vicious or deeply insulting act) or scoffing (to jeer and implies a sharing of irreverence) at the person or corpse of the victim. 4. The killing is not parricide or infanticide. Q: If X burns the house of Y and the latter dies, whats the crime? A: ARSON is the crime. However, if X burned the house of Y for the purpose of killing Y, the crime is MURDER. Note: Killing a person with treachery is murder even if there is no intent to kill. Furthermore, if you kill a child of tender years, its murder because the child has no means of defense. RULES FOR THE APPLICATION OF CIRCUMSTANCES WHICH QUALIFY THE KILLING TO MURDER: 1. Only 1 qualifying circumstance. When more than one of the circumstances described are present, the others must be considered as generic aggravating. 2. That when the circumstances are absorbed or included in one qualifying circumstance, they cannot be considered as generics. 3. Any of the qualifying circumstances must be alleged in the information. Failure to allege reduces the crime to Homicide but the prosecution is still allowed to present evidence of aggravating circumstances to increase the penalty.
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OUTRAGING - to commit an extremely vicious act e.g. A was killed and his undergarments were stuffed inside his skull. B was killed and his sexual organ was placed in his mouth. SCOFFING - to jeer with irreverence Homicide is qualified to murder if any of the qualifying circumstances under Article 248 is present. It is the unlawful killing of a person not constituting murder, parricide or infanticide. In murder, any of the following qualifying circumstances is present: (1) Treachery, taking advantage of superior strength, aid or armed men, or employing means to waken the defense, or of means or persons to insure or afford impunity; There is treachery when the offender commits any of the crimes against the person employing means, methods or forms in the execution thereof that tend directly and especially to insure its execution without risk to himself arising from the defense which the offended party might make. This circumstance involves means, methods, form in the execution of the killing which may actually be an aggravating circumstance also, in which case, the treachery absorbs the same. Illustration: A person who is determined to kill resorted to the cover of darkness at nighttime to insure the killing. Nocturnity becomes a means that constitutes treachery and the killing would be murder. But if the aggravating circumstance of nocturnity is considered by itself, it is not one of those which qualify a homicide to murder. One might think the killing is homicide unless nocturnity is considered as constituting treachery, in which case the crime is murder. The essence of treachery is that the offended party was denied the chance to defend himself because of the means, methods, form in executing the crime deliberately adopted by the offender. It is a matter of whether or not the offended party was denied the chance of defending himself. If the offended was denied the chance to defend himself, treachery qualifies the killing to murder. If despite the means resorted to by the offender, the offended was able to put up a defense, although unsuccessful, treachery is not available. Instead, some other circumstance may be present. Consider now whether such other circumstance qualifies the killing or not. Illustration: If the offender used superior strength and the victim was denied the chance to defend himself, there is treachery. The treachery must be alleged in the information. But if the victim was able to put up an unsuccessful resistance, there is no more treachery but the use of superior strength can be alleged and it also qualifies the killing to murder.
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One attendant qualifying circumstance is enough. If there are more than one qualifying circumstance alleged in the information for murder, only one circumstance will qualify the killing to murder and the other circumstances will be taken as generic. To be considered qualifying, the particular circumstance must be alleged in the information. If what was alleged was not proven and instead another circumstance, not alleged, was established during the trial, even if the latter constitutes a qualifying circumstance under Article 248, the same can not qualify the killing to murder. The accused can only be convicted of homicide. Generally, murder cannot be committed if at the beginning, the offended had no intent to kill because the qualifying circumstances must be resorted to with a view of killing the offended party. So if the killing were at the spur of the moment, even though the victim was denied the chance to defend himself because of the suddenness of the attack, the crime would only be homicide. Treachery contemplates that the means, methods and form in the execution were consciously adopted and deliberately resorted to by the offender, and were not merely incidental to the killing. If the offender may have not intended to kill the victim but he only wanted to commit a crime against him in the beginning, he will still be liable for murder if in the manner of committing the felony there was treachery and as a consequence thereof the victim died. This is based on the rule that a person committing a felony shall be liable for the consequences thereof although different from that which he intended. Illustration: The accused, three young men, resented the fact that the victim continued to visit a girl in their neighborhood despite the warning they gave him. So one evening, after the victim had visited the girl, they seized and tied him to a tree, with both arms and legs around the tree. They thought they would give him a lesson by whipping him with branches of gumamela until the victim fell unconscious. The accused left not knowing that the victim died. The crime committed was murder. The accused deprived the victim of the chance to defend himself when the latter was tied to a tree. Treachery is a circumstance referring to the manner of committing the crime. There was no risk to the accused arising from the defense by the victim. Although what was initially intended was physical injury, the manner adopted by the accused was treacherous and since the victim died as a consequence thereof, the crime is murder -- although originally, there was no intent to kill. When the victim is already dead, intent to kill becomes irrelevant. It is important only if the victim did not die to determine if the felony is physical injury or attempted or frustrated homicide. So long as the means, methods and form in the execution is deliberately adopted, even if there was no intent to kill, there is treachery.
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(2) (3)
In consideration of price, reward or promises; 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 a motor vehicle, or with the use of other means involving great waste and ruin; The only problem insofar as the killing by fire is concerned is whether it would be arson with homicide, or murder. When a person is killed by fire, the primordial criminal intent of the offender is considered. If the primordial criminal intent of the offender is to kill and fire was only used as a means to do so, the crime is only murder. If the primordial criminal intent of the offender is to destroy property with the use of pyrotechnics and incidentally, somebody within the premises is killed, the crime is arson with homicide. But this is not a complex crime under Article 48. This is single indivisible crime penalized under Article 326, which is death as a consequence of arson. That somebody died during such fire would not bring about murder because there is no intent to kill in the mind of the offender. He intended only to destroy property. However, a higher penalty will be applied. In People v. Pugay and Samson, 167 SCRA 439, there was a town fiesta and the two accused were at the town plaza with their companions. All were uproariously happy, apparently drenched with drink. Then, the group saw the victim, a 25 year old retard walking nearby and they made him dance by tickling his sides with a piece of wood. The victim and the accused Pugay were friends and, at times, slept in the same place together. Having gotten bored with their form of entertainment, accused Pugay went and got a can of gasoline and poured it all over the retard. Then, the accused Samson lit him up, making him a frenzied, shrieking human torch. The retard died. It was held that Pugay was guilty of homicide through reckless imprudence. Samson only guilty of homicide, with the mitigating circumstance of no intention to commit so grave a wrong. There was no animosity between the two accused and the victim such that it cannot be said that they resort to fire to kill him. It was merely a part of their fun making but because their acts were felonious, they are criminally liable.
(4)
On occasion of any of the calamities enumerated in the preceding paragraph c, or an earthquake, eruption of volcano, destructive cyclone, epidemic or any other public calamity; Evident premeditation; and Cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse. Cruelty includes the situation where the victim is already dead and yet, acts were committed which would decry or scoff the corpse of the victim. The crime becomes murder. Hence, this is not actually limited to cruelty. It goes beyond that because even if the victim is already a corpse when the acts deliberately augmenting the
(5) (6)
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wrong done to him were committed, the killing is still qualified to murder although the acts done no longer amount to cruelty. Under Article 14, the generic aggravating circumstance of cruelty requires that the victim be alive, when the cruel wounds were inflicted and, therefore, must be evidence to that effect. Yet, in murder, aside from cruelty, any act that would amount to scoffing or decrying the corpse of the victim will qualify the killing to murder. Illustration: Two people engaged in a quarrel and they hacked each other, one killing the other. Up to that point, the crime is homicide. However, if the killer tried to dismember the different parts of the body of the victim, indicative of an intention to scoff at or decry or humiliate the corpse of the victim, then what would have murder because this circumstance is recognized under Article 248, even though it was inflicted or was committed when the victim was already dead. The following are holdings of the Supreme Court with respect to the crime of murder: (1) Killing of a child of tender age is murder qualified by treachery because the weakness of the child due to his tender age results in the absence of any danger to the aggressor. Evident premeditation is absorbed in price, reward or promise, if without the premeditation the inductor would not have induced the other to commit the act but not as regards the one induced. Abuse of superior strength is inherent in and comprehended by the circumstance of treachery or forms part of treachery. Treachery is inherent in poison. Where one of the accused, who were charged with murder, was the wife of the deceased but here relationship to the deceased was not alleged in the information, she also should be convicted of murder but the relationship should be appreciated as aggravating. Killing of the victims hit by hand grenade thrown at them is murder qualified by explosion not by treachery. Where the accused housemaid gagged a three year old boy, son of her master, with stockings, placed him in a box with head down and legs upward and covered the box with some sacks and other boxes, and the child instantly died because of suffocation, and then the accused demanded ransom from the parents, such did not convert the offense into kidnapping with murder. The accused was well aware that the child could be suffocated to death in a few minutes after she left. Ransom was only a part of the diabolical scheme to murder the child, to conceal his body and then demand money before discovery of the body.
(2)
(3 (4) (5)
(6) (7)
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The essence of kidnapping or serious illegal detention is the actual confinement or restraint of the victim or deprivation of his liberty. If there is no showing that the accused intended to deprive their victims of their liberty for some time and there being no appreciable interval between their being taken and their being shot, murder and not kidnapping with murder is committed. ARTICLE 249 HOMICIDE A. Elements 1. A person is killed 2. The accused killed the person without any justifying circumstance 3. The accused had the intention to kill, which is presumed. 4. The killing was not attended by any of the qualifying circumstances of murder or that of parricide or infanticide Note: In Homicide, intent to kill is conclusively presumed when there is death. However, Intent to kill is important in attempted or frustrated Homicide because if the prosecution fails to prove such intent, the crime may be reduced to physical injuries. Q: X stabbed Y. Instead of seeking medical attention, Y went home and personally treated the stab wound. Later the wound got infected and Y died. Is X liable? A: YES, X is liable for Homicide. Q: X intentionally cut the arm of Y. Y didnt die immediately. However, because the knife used by X was so rusty, Y suffered from TETANUS and consequently died. Is X still liable? A: YES. The rule is that the assailant is liable for all the NATURAL CONSEQUENCES of his own voluntary act. Note: The killing must not be justified under Art 249. There is no such thing as frustrated homicide thru imprudence because when you say frustratedthere must be intent to kill which is inconsistent with imprudence. Q: A and B stabbed C. The wound inflicted by A was not fatal while the wound inflicted by B was fatal. Are they both liable? A: YES. It is the burden of the defendants to show Homicide is the unlawful killing of a person not constituting murder, parricide or infanticide. Distinction between homicide and physical injuries: In attempted or frustrated homicide, there is intent to kill. In physical injuries, there is none. However, if as a result of the physical injuries inflicted, the victim died, the crime will be homicide because the law punishes the result, and not the intent of the act. The following are holdings of the Supreme Court with respect to the crime of homicide:
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(1) (2)
Physical injuries are included as one of the essential elements of frustrated homicide. If the deceased received two wounds from two persons acting independently of each other and the wound inflicted by either could have caused death, both of them are liable for the death of the victim and each of them is guilty of homicide. If the injuries were mortal but were only due to negligence, the crime committed will be serious physical injuries through reckless imprudence as the element of intent to kill in frustrated homicide is incompatible with negligence or imprudence. Where the intent to kill is not manifest, the crime committed has been generally considered as physical injuries and not attempted or frustrated murder or homicide. When several assailants not acting in conspiracy inflicted wounds on a victim but it cannot be determined who inflicted which would which caused the death of the victim, all are liable for the victims death.
(3)
(4)
(5)
Note that while it is possible to have a crime of homicide through reckless imprudence, it is not possible to have a crime of frustrated homicide through reckless imprudence. ARTICLE 250 PENALTY FOR FRUSTRATED PARRICIDE, MURDER OR HOMICIDE The meaning of CORPUS DELICTI in crimes against persons? It means the FACT of the commission of the crime. REQUISITES: a) Person is killed. b) Accused killed the person.
c)
TRUTH of death proven through DEATH CERTIFICATE or TESTIMONIES of
witnesses who saw the killing.
Case: The accused were seen bringing the victim to a sugar cane plantation. Thereafter, gunshots were heard in the area where the victim was brought. After the incident, the victim was never seen again. Thus a case was filed charging the accused with the crime of KIDNAPPING WITH MURDER. The prosecution merely relied on the fact that the victim was missing after that incident. Nobody saw the commission of the crime. No blood stains were found in the place where the victim was last seen. RTC convicted the accused for kidnapping with murder. SC reversed RTCs decision. Prosecution was not able to prove DEATH. Prosecution cannot rely alone on the PRESUMPTION OF DEATH. The accused is guilty only of KIDNAPPING.
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ARTICLE 251 DEATH CAUSED IN TUMULTUOUS AFFRAY A. Elements 1. There are several persons 2. They did not compose groups organized for the common purpose of assaulting attacking each other reciprocally 3. That these several persons quarreled and assaulted one another in a confused and tumultuous manner 4. Someone was killed in the course of the affray 5. It cannot be ascertained who actually killed the deceased 6. The person who inflicted serious physical injuries or who used violence can be
or
identified
TUMULTUOUS -- there must be at least four (4) persons in the affray. Example: In an inter-barangay basketball game, the supporters of both teams suddenly quarreled and fought each other using stones, wooden chairs, etc. in the course of the incident, A died. Thus, Art. 251 applies. IMPORTANT: Art. 251 DOES NOT APPLY when the 2 groups are identified and organized. The reason being that if the 2 groups are organized the principle on CONSPIRACY will apply ACT of one = ACT of all. PEOPLE vs. FERRER. SISON, ET AL G.R. No. 114931-33. November 16, 1995 Marcos loyalists were staging a rally at the Luneta Park when a DIE-HARD Coryfan passed by. Upon seeing the Cory-fan, the Marcos loyalists immediately ganged up on him and inflicted wounds which caused the ultimate demise of the Cory-fan. LOWER COURT convicted the Marcos loyalists with the crime of HOMICIDE. Marcos loyalists argued with the Supreme Court that the crime is NOT HOMICIDE but DEATH in a TUMULTUOUS AFFRAY. SC held that Art. 251 DOES NOT APPLY because there was ONLY one person vs. the Marcos loyalists. Further more, the Marcos loyalists were identified and organized! x x x For this article to apply, it must be established that: (1) there be several persons; (2) that they did not compose groups organized for the common purpose of assaulting and attacking each other reciprocally; (3) these several persons quarrelled and assaulted one another in a confused and tumultuous manner; (4) someone was killed in the course of the affray; (5) it cannot be ascertained who actually killed the deceased; and (6) that the person or persons who inflicted serious physical injuries or who used violence can be identified. A tumultuous affray takes place when a quarrel occurs between several persons and they engage in a confused and tumultuous affray, in the course of which some person is killed or wounded and the author thereof cannot be ascertained.
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The quarrel in the instant case, if it can be called a quarrel, was between one distinct group and one individual. Confusion may have occurred because of the police dispersal of the rallyists, but this confusion subsided eventually after the loyalists fled to Maria Orosa Street. It was only a while later after said dispersal that one distinct group identified as loyalists picked on one defenseless individual and attacked him repeatedly, taking turns in inflicting punches, kicks and blows on him. There was no confusion and tumultuous quarrel or affray, nor was there a reciprocal aggression at this stage of the incident. As the lower courts found, the victim's assailants were numerous by as much as fifty in number and were armed with stones with which they hit the victim. They took advantage of their superior strength and excessive force and frustrated any attempt by Salcedo to escape and free himself. They followed Salcedo from the Chinese Garden to the Rizal Monument several meters away and hit him mercilessly even when he was already fallen on the ground. There was a time Salcedo was able to get up, prop himself against the pavement and wipe off the blood from his face. But his attackers continued to pursue him relentlessly. Salcedo could not defend himself nor could he find means to defend himself. Sumilang tried to save him from his assailants but they continued beating him, hitting Sumilang in the process. Salcedo pleaded for mercy but they ignored his pleas until he finally lost unconsciousness. The deliberate and prolonged use of superior strength on a defenseless victim qualifies the killing to murder. Tumultuous affray simply means a commotion in a tumultuous and confused manner, to such an extent that it would not be possible to identify who the killer is if death results, or who inflicted the serious physical injury, but the person or persons who used violence are known. It is not a tumultuous affray which brings about the crime; it is the inability to ascertain actual perpetrator. It is necessary that the very person who caused the death can not be known, not that he can not be identified. Because if he is known but only his identity is not known, then he will be charged for the crime of homicide or murder under a fictitious name and not death in a tumultuous affray. If there is a conspiracy, this crime is not committed. To be considered death in a tumultuous affray, there must be: (1) (2) a quarrel, a free-for-all, which should not involve organized group; and someone who is injured or killed because of the fight.
As long as it cannot be determined who killed the victim, all of those persons who inflicted serious physical injuries will be collectively answerable for the death of that fellow. The Revised Penal Code sets priorities as to who may be liable for the death or physical injury in tumultuous affray: (1) (2) (3) The persons who inflicted serious physical injury upon the victim; If they could not be known, then anyone who may have employed violence on that person will answer for his death. If nobody could still be traced to have employed violence upon the victim, nobody will answer. The crimes committed might be disturbance of public
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order, or if participants are armed, it could be tumultuous disturbance, or if property was destroyed, it could be malicious mischief. The fight must be tumultuous. The participants must not be members of an organized group. This is different from a rumble which involves organized groups composed of persons who are to attack others. If the fight is between such groups, even if you cannot identify who, in particular, committed the killing, the adverse party composing the organized group will be collectively charged for the death of that person. Illustration: If a fight ensued between 20 Sigue-Sigue Gang men and 20 Bahala-Na- Gang men, and in the course thereof, one from each group was killed, the crime would be homicide or murder; there will be collective responsibility on both sides. Note that the person killed need not be a participant in the fight. ARTICLE 252 PHYSICAL INJURIES INFLICTED IN A TUMULTUOUS AFFRAY A. Elements 1. That there is a tumultuous affray as referred to in the preceding Article 2. That the participant or some participants thereof suffer serious physical injuries or physical injuries of a less serious nature only 3. That the person responsible therefore cannot be identified
NOTE: There is NO SLIGHT PHYSICAL INJURIES inflicted in a tumultuous affray because such kind of injury is INHERENT in a tumultuous affray. If in the course of the tumultuous affray, only serious or less serious physical injuries are inflicted upon a participant, those who used violence upon the person of the offended party shall be held liable. In physical injuries caused in a tumultuous affray, the conditions are also the same. But you do not have a crime of physical injuries resulting from a tumultuous affray if the physical injury is only slight. The physical injury should be serious or less serious and resulting from a tumultuous affray. So anyone who may have employed violence will answer for such serious or less serious physical injury. If the physical injury sustained is only slight, this is considered as inherent in a tumultuous affray. The offended party cannot complain if he cannot identify who inflicted the slight physical injuries on him. ARTICLE 253 GIVING ASSISTANCE TO SUICIDE A. Acts Punished 1. By assisting another to commit suicide, whether the suicide is consummated or not 2. By lending his assistance to another to the extent of doing the killing himself
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QUERY: Is the one who attempts to commit suicide liable under this article? Interestingly, NO. NOTE: Mercy killing or Euthanasia is ILLEGAL here in the Philippines!!! Giving assistance to suicide means giving means (arms, poison, etc.) or whatever manner of positive and direct cooperation (intellectual aid, suggestions regarding the mode of committing suicide, etc.). In this crime, the intention must be for the person who is asking the assistance of another to commit suicide. If the intention is not to commit suicide, as when he just wanted to have a picture taken of him to impress upon the world that he is committing suicide because he is not satisfied with the government, the crime is held to be inciting to sedition. He becomes a co-conspirator in the crime of inciting to sedition, but not of giving assistance to suicide because the assistance must be given to one who is really determined to commit suicide. If the person does the killing himself, the penalty is similar to that of homicide, which is reclusion temporal. There can be no qualifying circumstance because the determination to die must come from the victim. This does not contemplate euthanasia or mercy killing where the crime is homicide (if without consent; with consent, covered by Article 253). The following are holdings of the Supreme Court with respect to this crime: (1) The crime is frustrated if the offender gives the assistance by doing the killing himself as firing upon the head of the victim but who did not die due to medical assistance. The person attempting to commit suicide is not liable if he survives. The accused is liable if he kills the victim, his sweetheart, because of a suicide pact.
(2)
In other penal codes, if the person who wanted to die did not die, there is liability on his part because there is public disturbance committed by him. Our Revised Penal Code is silent but there is no bar against accusing the person of disturbance of public order if indeed serious disturbance of public peace occurred due to his attempt to commit suicide. If he is not prosecuted, this is out of pity and not because he has not violated the Revised Penal Code. In mercy killing, the victim is not in a position to commit suicide. Whoever would heed his advice is not really giving assistance to suicide but doing the killing himself. In giving assistance to suicide, the principal actor is the person committing the suicide.
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Both in euthanasia and suicide, the intention to the end life comes from the victim himself; otherwise the article does not apply. The victim must persistently induce the offender to end his life. If there is only slight persuasion to end his life, and the offender readily assented thereto. ARTICLE 254 DISCHARGE OF FIREARMS A. Elements 1. That the offender discharges a firearm against at or another person 2. That the person had no intention to kill that person NOTE: Under this Article, there is NO INTENT TO KILL. IMPORTANT: If you discharge your firearm, without aiming it at another person, in a VERY QUIET PLACE, the crime is NOT DISCHARGE OF FIREARM but ALARM!! QUERY: A, without intent to kill, discharged his firearm. The bullet accidentally hit B in the knee. Crime committed? Complex crime of DISCHARGE OF FIREARM with PHYSICAL INJURIES. QUERY: In the example above, what if A had the intent to kill and the wound sustained by B is not fatal, crime committed? ATTEMPTED HOMICIDE or ATTEMPTED MURDER as the case may be. BUT if the wound is serious or fatal. The crime is FRUSTRATED HOMICIDE or MURDER. IMPORTANT: If the firearm is NOT discharged at the person, there is NO CRIME under Art. 254. : Discharge towards the house of the victim is NOT illegal discharge. : Firing a gun towards a house at RANDOM, not knowing where the people inside were, is ALARM under Art. 155. This crime cannot be committed through imprudence because it requires that the discharge must be directed at another. If the firearm is directed at a person and the trigger was pressed but did not fire, the crime is frustrated discharge of firearm. If the discharge is not directed at a person, the crime may constitute alarm and scandal. The following are holdings of the Supreme Court with respect to this crime: (1) If serious physical injuries resulted from discharge, the crime committed is the complex crime of serious physical injury with illegal discharge of firearm, or if less serious physical injury, the complex crime of less serious physical injury with illegal discharge of firearm will apply. Firing a gun at a person even if merely to frighten him constitutes illegal discharge of firearm.
(2)
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Section Two --- Infanticide and abortion ARTICLE 255 INFANTICIDE A. Elements 1. A child was killed 2. That the deceased was less than 3 days of age 3. The accused killed the child NOTE: If the child is killed by the PATERNAL grandparents for the purpose of concealing dishonor -- NO MITIGATING CIRCUMSTANCE Concealing dishonor -- not an element of infanticide; used for purpose only of availing of mitigating circumstance. NOTE: It is always INFANTICIDE, regardless of whether the killer is related to the victim or not as long as the child is LESS THAN 3 DAYS OF AGE. This is a crime based on the age of the victim. The victim should be less than three days old. The offender may actually be the parent of the child. But you call the crime infanticide, not parricide, if the age of the victim is less than three days old. If the victim is three days old or above, the crime is parricide. Illustration: An unmarried woman, A, gave birth to a child, B. To conceal her dishonor, A conspired with C to dispose of the child. C agreed and killed the child B by burying the child somewhere. If the child was killed when the age of the child was three days old and above already, the crime of A is parricide. The fact that the killing was done to conceal her dishonor will not mitigate the criminal liability anymore because concealment of dishonor in killing the child is not mitigating in parricide. If the crime committed by A is parricide because the age of the child is three days old or above, the crime of the co-conspirator C is murder. It is not parricide because he is not related to the victim. If the child is less than three days old when killed, both the mother and the stranger commits infanticide because infanticide is not predicated on the relation of the offender to the offended party but on the age of the child. In such a case, concealment of dishonor as a motive for the mother to have the child killed is mitigating. Concealment of dishonor is not an element of infanticide. It merely lowers the penalty. If the child is abandoned without any intent to kill and death results as a consequence, the crime committed is not infanticide but abandonment under Article 276.
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If the purpose of the mother is to conceal her dishonor, infanticide through imprudence is not committed because the purpose of concealing the dishonor is incompatible with the absence of malice in culpable felonies. If the child is born dead, or if the child is already dead, infanticide is not committed. ARTICLE 256 INTENTIONAL ABORTION A. Elements 1. There is a pregnant woman 2. That violence is exerted, or drugs or beverages administered, or that the accused otherwise acts upon the pregnant woman 3. That as a result of the use of violence or drugs or beverages upon her, the fetus dies in the womb or after having expelled therefrom Abortion the killing of the foetus in the uterus or the violent expulsion of the foetus from the maternal womb, which results in the death of the foetus. NOTE: In abortion, the foetus must be capable of sustaining an independent life. : Abortion is not a crime against the pregnant woman rather it is a crime against a FOETUS which may be over or less than 6 months. Distinguish Abortion from Infanticide. NOTE: The crime is INFANTICIDE if the foetus: 1) Could sustain an independent life, after its separation from the maternal womb, and 2) It is killed. Abortion is the violent expulsion of a fetus from the maternal womb. If the fetus has been delivered but it could not subsist by itself, it is still a fetus and not a person. Thus, if it is killed, the crime committed is abortion not infanticide. Distinction between infanticide and abortion It is infanticide if the victim is already a person less that three days old or 72 hours and is viable or capable of living separately from the mothers womb. It is abortion if the victim is not viable but remains to be a fetus. Abortion is not a crime against the woman but against the fetus. If mother as a consequence of abortion suffers death or physical injuries, you have a complex crime of murder or physical injuries and abortion. In intentional abortion, the offender must know of the pregnancy because the particular criminal intention is to cause an abortion. Therefore, the offender must have known of the pregnancy for otherwise, he would not try an abortion. If the woman turns out not to be pregnant and someone performs an abortion upon her, he is liable for an impossible crime if the woman suffers no physical injury. If she does, the crime will be homicide, serious physical injuries, etc.
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Under the Article 40 of the Civil Code, birth determines personality. A person is considered born at the time when the umbilical cord is cut. He then acquires a personality separate from the mother. But even though the umbilical cord has been cut, Article 41 of the Civil Code provides that if the fetus had an intra-uterine life of less than seven months, it must survive at least 24 hours after the umbilical cord is cut for it to be considered born. Illustration: A mother delivered an offspring which had an intra-uterine life of seven months. Before the umbilical cord is cut, the child was killed. If it could be shown that had the umbilical cord been cut, that child, if not killed, would have survived beyond 24 hours, the crime is infanticide because that conceived child is already considered born. If it could be shown that the child, if not killed, would not have survived beyond 24 hours, the crime is abortion because what was killed was a fetus only. In abortion, the concealment of dishonor as a motive of the mother to commit the abortion upon herself is mitigating. It will also mitigate the liability of the maternal grandparent of the victim the mother of the pregnant woman if the abortion was done with the consent of the pregnant woman. If the abortion was done by the mother of the pregnant woman without the consent of the woman herself, even if it was done to conceal dishonor, that circumstance will not mitigate her criminal liability. But if those who performed the abortion are the parents of the pregnant woman, or either of them, and the pregnant woman consented for the purpose of concealing her dishonor, the penalty is the same as that imposed upon the woman who practiced the abortion upon herself . Frustrated abortion is committed if the fetus that is expelled is viable and, therefore, not dead as abortion did not result despite the employment of adequate and sufficient means to make the pregnant woman abort. If the means are not sufficient or adequate, the crime would be an impossible crime of abortion. In consummated abortion, the fetus must be dead. One who persuades her sister to abort is a co-principal, and one who looks for a physician to make his sweetheart abort is an accomplice. The physician will be punished under Article 259 of the Revised Penal Code. ARTICLE 257 UNINTENTIONAL ABORTION A. Elements 1. There is a pregnant woman 2. Violence is used upon the pregnant woman without intending an abortion 3, The violence is intentionally exerted
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4. The result of the violence, the fetus dies, either in the womb or after having expelled therefrom
NOTE: The violence must be INTENTIONALLY exerted. Example: In the heat of a n argument, H boxed his pregnant wife, W. W was hit in the stomach and consequently, the child was aborted. H is guilty of UNINTENTIONAL ABORTION. Q: Is the accused liable for ABORTION even if he did not know that the woman was pregnant? A: YES. NOTE: There is a complex crime of HOMICIDE with UNINTENTIONAL ABORTION and PARRICIDE with ABORTION. Distinction between intentional abortion and unintentional abortion: In INtentional Abortion, there is INTENT TO ABORT. In UNintentional Abortion, NO INTENT TO ABORT but violence is inflicted. Unintentional abortion requires physical violence inflicted deliberately and voluntarily by a third person upon the person of the pregnant woman. Mere intimidation is not enough unless the degree of intimidation already approximates violence. If the pregnant woman aborted because of intimidation, the crime committed is not unintentional abortion because there is no violence; the crime committed is light threats. If the pregnant woman was killed by violence by her husband, the crime committed is the complex crime of parricide with unlawful abortion. Unintentional abortion may be committed through negligence as it is enough that the use of violence be voluntary. Illustration: A quarrel ensued between A, husband, and B, wife. A became so angry that he struck B, who was then pregnant, with a soft drink bottle on the hip. Abortion resulted and B died. In US v. Jeffry, 15 Phil. 391, the Supreme Court said that knowledge of pregnancy of the offended party is not necessary. In People v. Carnaso, decided on April 7, 1964, however, the Supreme Court held that knowledge of pregnancy is required in unintentional abortion. Criticism: Under Article 4, paragraph 1 of the Revised Penal Code, any person committing a felony is criminally liable for all the direct, natural, and logical consequences of his felonious acts although it may be different from that which is intended. The act of employing violence or physical force upon the woman is already a felony. It is not material if offender knew about the woman being pregnant or not.
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If the act of violence is not felonious, that is, act of self-defense, and there is no knowledge of the womans pregnancy, there is no liability. If the act of violence is not felonious, but there is knowledge of the womans pregnancy, the offender is liable for unintentional abortion. Illustration: The act of pushing another causing her to fall is a felonious act and could result in physical injuries. Correspondingly, if not only physical injuries were sustained but abortion also resulted, the felonious act of pushing is the proximate cause of the unintentional abortion.
Questions & Answers 1. A pregnant woman decided to commit suicide. She jumped out of a window of a building but she landed on a passerby. She did not die but an abortion followed. Is she liable for unintentional abortion? No. What is contemplated in unintentional abortion is that the force or violence must come from another. If it was the woman doing the violence upon herself, it must be to bring about an abortion, and therefore, the crime will be intentional abortion. In this case, where the woman tried to commit suicide, the act of trying to commit suicide is not a felony under the Revised Penal Code. The one penalized in suicide is the one giving assistance and not the person trying to commit suicide. 2. If the abortive drug used in abortion is a prohibited drug or regulated drug under Presidential Decree No. 6425 (The Dangerous Drugs Act of 1972), as amended, what are the crimes committed? The crimes committed are (1) intentional abortion; and (2) violation of the Dangerous Drugs Act of 1972.
ARTICLE 258 ABORTION PRACTICED BY THE WOMAN HERSELF OR BY HER PARENTS A. Elements 1. That there is a pregnant woman who has suffered an abortion 2. The abortion is intended 3. That the abortion is caused by: a. the pregnant woman herself b. any other person with her consent c. any of her parents, with her consent for the purpose of concealing her dishonor NOTE: Abortion maternal grandparents can only claim mitigating circumstance if the MOTHER CONSENTED!!
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ARTICLE 259 ABORTION PRACTICED BY A PHYSICIAN OR MIDWIFE AND DISPENSING OF ABORTIVES A. Elements 1. That there is a pregnant woman who has suffered an abortion 2. The abortion is intended 3. The offender, who must be a physician or midwife, causes or assists in the causing the abortion 4. The physician or midwife takes advantage of his or her scientific knowledge or skill QUERY: Will the article apply if a NURSE assisted the doctor? The nurse will be held liable but the penalty will not be the same. Reason why maximum penalties are imposed: This is because of the use of scientific knowledge for the destruction of human life. Take note:
REPUBLIC ACT NO. 4729 AN ACT TO REGULATE THE SALE, DISPENSATION, AND/OR DISTRIBUTION OF CONTRACEPTIVE DRUGS AND DEVICES Sec. 1. It shall be unlawful for any person, partnership, or corporation, to sell, dispense or otherwise distribute whether for or without consideration, any contraceptive drug or device, UNLESS such sale, dispensation or distribution is by a duly licensed drug store or pharmaceutical company AND with the prescription of a qualified medical practitioner.
If the abortion is produced by a physician to save the life of the mother, there is no liability. This is known as a therapeutic abortion. But abortion without medical necessity to warrant it is punishable even with the consent of the woman or her husband. Illustration: A woman who is pregnant got sick. The doctor administered a medicine which resulted in Abortion. The crime committed was unintentional abortion through negligence or imprudence.
Question & Answer What is the liability of a physician who aborts the fetus to save the life of the mother? None. This is a case of therapeutic abortion which is done out of a state of necessity. Therefore, the requisites under Article 11, paragraph 4, of the Revised Penal Code must be present. There must be no other practical or less harmful means of saving the life of the mother to make the killing justified.
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Section Three. -- Duel ARTICLE 260 RESPONSIBILITY OF PARTICIPANTS IN A DUEL NOTE: Persons liable and the acts punishable. Q: Who are liable? 1) The person who killed or inflicted physical injuries upon his adversary, or both combatants in any other case, as principals. 2) The seconds, as accomplices. Acts punishable: 1) By killing ones adversary in a duel. 2) By inflicting upon such adversary physical injuries. 3) By making a combat although no physical injuries have been inflicted. ARTICLE 261 CHALLENGING TO A DUEL A. Acts Punishable 1. Challenging another to a duel 2. Inciting another to give or accept a challenge to a duel 3. By scoffing at or decrying another publicly for having refused to accept a challenge to fight a duel Note: both Arts. 260 and 261 are almost obsolete!! There is no such crime nowadays because people hit each other even without entering into any pre-conceived agreement. This is an obsolete provision. A duel may be defined as a formal or regular combat previously consented to by two parties in the presence of two or more seconds of lawful age on each side, who make the selection of arms and fix all the other conditions of the fight to settle some antecedent quarrel. If these are not the conditions of the fight, it is not a duel in the sense contemplated in the Revised Penal Code. It will be a quarrel and anyone who killed the other will be liable for homicide or murder, as the case may be. The concept of duel under the Revised Penal Code is a classical one. REPUBLIC ACT NO. 8049 AN ACT REGULATING HAZING AND OTHER FORMS OF INITIATION RITES IN FRATERNITIES, SORORITIES, AND ORGANIZATIONS AND PROVIDING PENALTIES THEREFOR Distinction: Homicide and Hazing? HAZING: Broader because it covers killing and infliction of physical injuries. Death is not result of intention. There is NO INTENTION TO KILL, but the defendant CANNOT impose the defense of no intention to commit so grave a wrong as that committed.
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HAZING -- initiation rite or practice as a PREREQUISITE for admission into membership in a fraternity, sorority or organization (thus, it may be a business organization) by placing the recruit, neophyte, or applicant in some embarrassing or humiliating situations such as forcing him to do any MENIAL, SILLY, FOOLISH and similar acts or activities or otherwise subjecting him to physical or psychological suffering or injury. Organization AFP, PNP, PMA, Officer and Cadet Corp of CMT/CAT. NOTE: Physical, mental/psychological training to determine the fitness of prospective member of AFP and PNP as approved by the Secretary of National Defense and National Police Commission duly recommended by Chief of Staff, AFP, and Director General of PNP shall NOT be considered HAZING under the act.
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Q: When is hazing punishable? A: Only when the victim suffers any physical injury or dies as a result thereof Q: Who are liable as principals: A: 1. Officer and members of the fraternity, sorority or organization who actually participated in the infliction of physical harm 2. Parents, if the hazing is held in the home of one of the officers or members of the fraternity, group, or organization, when they have actual knowledge of the hazing conducted therein but failed to take any action to prevent the same from occurring. 3. The officers, former officers, or alumni of the organization, group, fraternity, or sorority who actually planned the hazing although not present when the acts constituting the hazing were committed 4. Officers or members of an organization, group, fraternity, or sorority who knowingly cooperated in carrying out the hazing by inducing the victim to be present thereat 5. Fraternity or sorority's adviser who is present when the acts constituting the hazing were committed and failed to take any action to prevent the same from occurring 6. Any person present during the hazing is prime facie evidence of participation therein unless he prevented the commission of the acts punishable herein. 7. President, manager, director or other responsible officer of a corporation engaged in hazing as a requirement for employment in the manner provided herein. Q: Who are liable as accomplices? A: 1. Owner of the place where hazing is conducted when he has actual knowledge of the hazing conducted therein but failed to take any action to prevent the same from occurring 2. School authorities including faculty members who consent to the hazing or who have actual knowledge thereof but failed to take any action to prevent the same from occurring
Q: In what instances may the maximum penalty be imposed? A: 1. When the recruitment is accompanied by force, violence, threat, intimidation or deceit on the person of the recruit who refuses to join; 2. When the recruit, neophyte or applicant initially consents to join but upon learning that hazing will be committed on his person, is prevented from quitting. 3. When the recruit neophyte or applicant having undergone hazing is prevented from reporting the unlawful act to his parents or guardians, to the proper school authorities, or to the police authorities through force, violence , threat or intimidation; 4. When the hazing is committed outside of the school or institution: or 5. When the victim is below twelve (12) years of age at the time of the hazing.
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NOTE: Suppose hazing is committed in the RESIDENCE of any of the officers or members of the fraternity? What is the liability of parents? Liable as PRINCIPALS. REQUISITES: 1) Have actual knowledge of the hazing conducted in the house 2) Failed to take any action to prevent the same from occurring. NOTE: Liability of FACULTY who consent to the hazing who: 1) Have actual knowledge of the hazing conducted. 2) Failed to take any action to prevent the same from occurring. Liable as ACCOMPLICES. QUERY: Liability of FORMER officers, alumni who actually planned the hazing although NOT present when the acts constituting the hazing were committed? Liable as PRINCIPALS. QUERY: Liability of fraternity or sorority ADVISER who was present when the hazing was committed? Liable as PRINCIPAL when he failed to take any action to prevent the same from occurring. IMPORTANT: VERY DANGEROUS!!! The PRESENCE OF ANY PERSON during the hazing prima facie evidence of participation therein as PRINCIPAL unless he prevented the commission of the acts punishable therein. NOTE: Presence of any person without qualification OPINION on interpretation: Here, Person refers to the members, officers, school authorities, etc. It does NOT apply to strangers. NOTE: Any person charged under this provision shall NOT be entitled to the mitigating circumstance that there was no intention to commit so grave a wrong. NOTE: In case juridical persons are involved, e.g. corporations or organizations: PERSONS LIABLE: President, manager, director or other responsible officer of a corporation.
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REPUBLIC ACT NO. 6713 Code of Conduct and Ethical Standards for Public Officials and Employees NOTE: This is a unique law. It is addressed to the conscience of public officers and employees. NOTE: There are PENAL sanctions NOTE: To uphold the time-honored principle of PUBLIC OFFICE IS A PUBLIC TRUST. Granting incentives and rewards for exemplary services. Salient features of the law: SECTION 2 DECLARATION OF POLICY NOTE: Accountability to the people, responsibility, integrity, competence and loyalty, patriotism and justice, lead modest lives and uphold public interest over personal interest. TWO POINTS: MAIN point: Accountable to the people. Another: Public interest OVER private interest. EMPHASIS: Conflict of interest. NOTE: Conflict of interest is not emphasized in other laws including RA 3019. SECTION 3 DEFINITION OF TERMS PUBLIC OFFICIALS 6713: elective, appointive, permanent, temporary, whether in the career or non-career service including military and police personnel, whether or not they receive compensation regardless of amount. : the public officer may be receiving compensation or not receiving any at all. 3019: the public officer must at least receive NOMINAL compensation. GIFT refers to a thing or a right disposed of gratuitously or any act of liberality in favor of another who accepts it. It shall NOT include unsolicited gift of nominal or insignificant value not given in anticipation of or in exchange for, a favor from a public officer or employee. (RA 6713) NOTE: In indirect bribery, a person gives gift to a public officer, he ACCEPTS it because the giver is anticipating a favor in the future. NOTE: The gift is UNSOLICITED. It is not even necessary for acceptance to exist in the second sentence of the term GIFT. NOTE: Receiving a gift distinguish from RA 3019 RECEIVING ANY GIFT -- includes the act of accepting, directly or indirectly, a gift from a person other than a member of his family or relative, even on the occasion of a family celebration or national festivity like Christmas is the value of the gift neither nominal nor insignificant, o r the gift is given in the anticipation of, or in exchange for a favor. (RA 6713)
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3019: find the word manifestly excessive. 6713: value of gift is neither nominal or insignificant. FAMILY OF PUBLIC OFFICIALS OR PUBLIC EMPLOYEES -- means their spouses and unmarried children under 18 years of age. CONFLICT INTEREST [important definition unique u cannot find this any other penal law] -- arises when a public official or employee is a member of a board, an officer, or a substantial stockholder of a private corporation or owner or has a substantial interest in a business and the interest of such corporation or business, or his rights or duties therein , may be opposed to or affected by the faithful performance of official duty. NOTE: Private interest in conflict with your public position or duty. RELATIVES [peculiar definition] -- Refers to any and all persons related to a public official or employee within the fourth civil degree of consanguinity or affinity, including bilas, inso, and balae. Bilas in law Inso related through baptism etc. (godparents) Balae parents of husband and wife SECTION 4 NORMS OF CONDUCT OF PUBLIC OFFICIALS AND EMPLOYEES NOTE: NOT necessary to concentrate so much time on this. Never been asked in the BAR but just familiarize, enumerate. a) Commitment to public interest
b) c)
Professionalism they shall endeavor to discourage wrong perceptions of
their roles as dispensers or peddlers of undue patronage.
Justness and sincerity you shall not discriminate against anyone
especially the poor and underprivileged. They shall refrain from doing acts contrary to law, good morals, good customs, public policy, public order, public safety, public interest. They shall not dispense or extend undue favors on account of their offices to their relatives, whether by consanguinity or affinity, except the following: appointment of such relatives to positions strictly confidential. members of their personal staff whose terms are coterminous with theirs d) Political neutrality e) Responsiveness to the public
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f) g) h)
Nationalism and patriotism loyalty to the Republic and to the Filipino
people, promote the use of locally produced goods, resources and technology and encourage appreciation and pride of country and people.
Commitment to democracy commit themselves to the democratic way of
life and values, maintain the principle of public accountability, uphold the Constitution and put loyalty to country above loyalty to person.
Simple living they shall not indulge in extravagant or ostentatious
display of wealth. SECTION 5 DUTIES OF PUBLIC OFFICIALS AND EMPLOYEES. (a) Act promptly on letters and requests. NOTE: Par (a) is very important! Answer or reply is essential or else you will be brought before the ombudsman. (b) Submit annual performance reports. Rationale: There is SYSTEM OF REWARDS that is why there is rating on public officers merit system. (c) Process documents and papers expeditiously. (d) Act immediately on the publics personal transactions. (e) Make documents more accessible to the public. ALL public documents must be made accessible to, and readily available for inspection by the public within reasonable working hours. NOTE: Pursuant to constitutional provisions on access to public records. NOTE: READ!! SECTION 6 SYSTEM OF INCENTIVES AND REWARDS NOTE: Outstanding merits on the basis of standards set forth on the act. SECTION 7 PROHIBITED ACTS AND TRANSACTIONS
In addition to acts and omissions of public officials and employees now prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official and employee and are hereby declared to be unlawful: (a) Financial and material interest. - Public officials and employees shall not, directly or indirectly, have any financial or material interest in any transaction requiring the approval of their office. (b) Outside employment and other activities related thereto. - Public officials and employees during their incumbency shall not:
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(1) Own, control, manage or accept employment as officer, employee, consultant, counsel, broker, agent, trustee or nominee in any private enterprise regulated, supervised or licensed by their office unless expressly allowed by law; (2) Engage in the private practice of their profession unless authorized by the Constitution or law, provided, that such practice will not conflict or tend to conflict with their official functions; or (3) Recommend any person to any position in a private enterprise which has a regular or pending official transaction with their office. These prohibitions shall continue to apply for a period of one (1) year after resignation, retirement, or separation from public office, except in the case of subparagraph (b) (2) above, but the professional concerned cannot practice his profession in connection with any matter before the office he used to be with, in which case the one-year prohibition shall likewise apply. (c) Disclosure and/or misuse of confidential information. - Public officials and employees shall not use or divulge, confidential or classified information officially known to them by reason of their office and not made available to the public, either: (1) To further their private interests, or give undue advantage to anyone; or (2) To prejudice the public interest. (d) Solicitation or acceptance of gifts. - Public officials and employees shall not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan or anything of monetary value from any person in the course of their official duties or in connection with any operation being regulated by, or any transaction which may be affected by the functions of their office. As to gifts or grants from foreign governments, the Congress consents to: (i) The acceptance and retention by a public official or employee of a gift of nominal value tendered and received as a souvenir or mark of courtesy; (ii) The acceptance by a public official or employee of a gift in the nature of a scholarship or fellowship grant or medical treatment; or (iii) The acceptance by a public official or employee of travel grants or expenses for travel taking place entirely outside the Philippine (such as allowances, transportation, food, and lodging) of more than nominal value if such acceptance is appropriate or consistent with the interests of the Philippines, and permitted by the head of office, branch or agency to which he belongs. The Ombudsman shall prescribe such regulations as may be necessary to carry out the purpose of this subsection, including pertinent reporting and disclosure requirements. Nothing in this Act shall be construed to restrict or prohibit any educational, scientific or cultural exchange programs subject to national security requirements.
NOTE: DO not be confused. There are parallel provisions in 3019 as well as the RPC. IMPORTANT: What are the prohibited acts and transactions? (see provision) READ: Sec 3(h) of RA 3019!! This is a parallel provision! x
(h) Director or indirectly having financing or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having any interest.
QUERY: Teaching of law will it be in conflict with the function of a member of the judiciary? NO, because it is allowed by law. You have to ask permit from the office of the court administrator. This is private practice but NOT in conflict with a judges public duties. NOTE: Under the Local Government Code, there are some local government officials who cannot practice law. NOTE: Prejudice to public or private interest SECTION 8 STATEMENTS AND DISCLOSURES
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NOTE: Of assets and liabilities, net worth and financial and business interests. [A] NOTE: Prohibited acts. [D]
SECTION 9 DIVESTMENT IMPORTANT: What to do in case Conflict of Interest arises? 1) RESIGN from his position in any private business enterprise within 3o days from his assumption of office, or 2) DIVEST himself of shareholdings or interest within 60 days from such assumption. NOTE: Requirement of divestment. When not applied? 1) Those who serve the government in an honorary capacity. 2) To laborers and casual or temporary workers. SECTION 11 PENALTIES NOTE: Ombudsman can dismiss employees even without criminal proceedings. Is it possible? YES. Under Sec. 11 (b) of RA 6713. QUERY: May private individuals be held liable for violation of RA 6713? YES. Private individuals who participate in conspiracy as co-principals, accessories or accomplices.
PRESIDENTIAL DECREE NO. 1866 Illegal possession of firearm and explosives (As amended by RA 8294, reducing the penalty for illegal possession) NOTE: In relation to rebellion, insurrection, murder and homicide. Acts punished by PD 1866: 1) Unlawful manufacture of firearms or ammunitions 2) Sale of firearms or ammunitions 3) Acquisition of firearms or ammunitions 4) Disposition of firearms or ammunitions 5) Unlawful manufacture, sale, acquisition, disposition of explosives 6) Tampering of firearms serial number 7) Repacking or altering composition of lawfully manufactured explosives 8) Unauthorized issuance of authority to carry firearms and/or ammunitions outosde of residence. NOTE: Related BAN on the use of firearm during election GUN BAN LAW Q: if you carry firearm outside of your residence during elections, what crime is committed? A: TWO CRIMES are committed: a) PD 1866 and b) Comelec Resolution on Gun Ban
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Unlicensed firearm includes: 1. Possession of firearms with expired license. 2. Unauthorized use of licensed firearm in the commission of a crime. WHY? Is there authorized use of licensed in the commission of a crime? NONE. Can be that there is licensed firearm but it is used by another for the commission of a crime. PD 1866
Sec 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition The penalty of prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed. The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested. If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. If the violation of this Section is in furtherance of or incident to, or in connection with the crime of rebellion or insurrection, sedition, or attempted coup d'etat, such violation shall be absorbed as an element of the crime of rebellion, or insurrection, sedition, or attempted coup d'etat. The same penalty shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any of the firearms owned by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs or willfully or knowingly allow any of them to use unlicensed firearms or firearms without any legal authority to be carried outside of their residence in the course of their employment. The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal authority therefor. Sec. 2. Presumption of Illegal Manufacture of Firearms or Ammunition. - The possession of any machinery, tool or instrument used directly in the manufacture of firearms or ammunition, by any person whose business or employment does not lawfully deal with the manufacture of firearms or ammunition, shall be prima facie evidence that such article is intended to be used in the unlawful/illegal manufacture of firearms or ammunition. Sec 3. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Explosives. The penalty of prision mayor in its maximum period to reclusion temporal and a fine of not less than Fifty thousand pesos (P50,000) shall be imposed upon any person who shall unlawfully manufacture, assemble, deal in, acquire, dispose or possess hand grenade(s), rifle grenade(s), and other explosives, including but not limited to 'pillbox,' 'molotov cocktail bombs,' 'fire bombs,' or other incendiary devices capable of producing destructive effect on contiguous objects or causing injury or death to any person. When a person commits any of the crimes defined in the Revised Penal Code or special laws with the use of the aforementioned explosives, detonation agents or incendiary devices, which results in the death of any person or persons, the use of such explosives, detonation agents or incendiary devices shall be considered as an aggravating circumstance. If the violation of this Section is in furtherance of, or incident to, or in connection with the crime of rebellion, insurrection, sedition or attempted coup d'etat, such violation shall be absorbed as an element of the crimes of rebellion, insurrection, sedition or attempted coup d'etat. The same penalty shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any
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of the explosives owned by such firm, company, corporation or entity, to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs. Sec. 4. Presumption of Unlawful Manufacture. - The possession of any machinery, tool or instrument directly used in the manufacture of explosives, by any person whose business or employment does not lawfully deal with the manufacture of explosives shall be prima facie evidence that such article is intended to be used in the unlawful/illegal manufacture of explosives. Sec 5. Tampering of Firearm's Serial Number. The penalty of prision correccional shall be imposed upon any person who shall unlawfully tamper, change, deface or erase the serial number of any firearm. Sec 6. Repacking or Altering the Composition of Lawfully Manufactured Explosives. The penalty of prision correccional shall be imposed upon any person who shall unlawfully repack, alter or modify the composition of any lawfully manufactured explosives. Sec. 7. Unauthorized Issuance of Authority to Carry Firearm and/or Ammunition Outside of Residence. - The penalty of prision correccional shall be imposed upon any person, civilian or military, who shall issue authority to carry firearm and/or ammunition outside of residence, without authority therefor.
Forget the cases of PEOPLE vs. TAK-AN, PEOPLE vs. QUIJADA and ROAN vs. GONZALES which were abandoned by this new law PD 1866 Ownership here is not a defense. Cases:
PEOPLE vs. VERCHEZ, ET AL G.R. No. 82729-32. June 15, 1994 The possession of a firearm becomes unlawful when there is no permit or license for its holding. The law does not prescribe a minimum period of time for the holding of the firearm before its possession can be illegal. Appellants' allegation that they did not have control or management of the firearms is without merit. The records show that they knew where to find the firearms. Both Verchez and Aldave testified that they sought cover inside separate bedrooms when the lawmen fired at them. Thereafter, they retrieved the firearms from the cabinet in their respective rooms. Their story that their finding of firearms in the cabinets was a happenstance is simply incredible and not deserving the slightest consideration of this court. PEOPLE vs. VILLANUEVA G.R. No. 118078. July 15, 1997 In crimes involving illegal possession of firearm, the prosecution has the burden of proving the elements thereof, viz: (a) the existence of the subject firearm and (b) the fact that the accused who owned or possessed it (c) he does not have the corresponding license or permit to possess the same. The latter is a negative fact which constitutes an essential ingredient of the offense of illegal possession, and it is the duty of the prosecution not only to allege it but also to prove it beyond reasonable doubt. GONZALES vs. CA and PEOPLE G.R. No. 95523. August 18, 1997 As regards the penalty imposed by the trial court and affirmed by the appellate court, we reduce the same in view of the passage of R.A. No. 8294 wherein the penalty for simple illegal possession of firearms has been lowered.
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Since it is an elementary rule in criminal jurisprudence that penal laws shall be given retroactive effect when favorable to the accused, we are now mandated to apply the new law in determining the proper penalty to be imposed on the petitioner. PEOPLE vs. DELA ROSA, ET AL G.R. No. 84857. January 16, 1998 It is undisputed that accused-appellant Rodolfo dela Rosa and his companions were the ones who surrendered the subject firearm and explosives to Kagawad Rigor. However, Rodolfo dela Rosa denies that he was in possession of said ammunitions in the manner punishable by law. According to him, his real intention was merely to turn over the ammunitions, which were owned by Kumander Tamang, to the authorities. The trial court perceived otherwise. It declared that since Rodolfo dela Rosa joined the New People's Army (NPA), there is reason to conclude that he provided himself with arms. And since mere possession is sufficient to convict a person for crimes which are malum prohibitum like illegal possession of firearms, appellant dela Rosa must be convicted. It is of no moment that he surrendered the ammunitions to the authorities. We fail to see how appellant dela Rosa could be convicted of illegal possession of firearms based on the above reasoning. Section 1 of Presidential Decree No. 1866 punishes any person who shall ". . . unlawfully manufacture, deal in, acquire, dispose or possess any firearms, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition." Broken down into its salient elements, illegal possession of firearms is committed when the holder thereof: (i) possesses a firearm; and (ii) lacks the authority or license to possess it. In People v. de Gracia, we clarified the meaning of possession for the purpose of convicting a person under PD 1866, thus: "But, is the mere fact of physical or constructive possession sufficient to convict a person for unlawful possession of firearms or must there be an intent to possess to constitute a violation of the law? This query assumes significance for illegal possession of firearms is a malum prohibitum, punished by a special law, in which case good faith and absence of criminal intent are not valid defenses. "When a crime is punished by a special law, as a rule, intent to commit the crime is not necessary, it is sufficient that the offender has the intent to perpetrate the act prohibited by the special law. Intent to commit the crime and intent to perpetrate the act must be distinguished. A person may not have consciously intended to commit a crime but he intended to commit an act, and that act is by the very nature of things, the crime itself. In the first (intent to commit the crime), there must be criminal intent, in the second (intent to perpetrate the act) it is enough that the prohibited act is done freely and consciously. In the present case, a distinction should be made between criminal intent and intent to possess. While mere possession without criminal intent, is sufficient to convict a person for illegal possession of a firearm, it must still be shown that there was animus possidendi or an intent to possess on the part of the accused. Such intent to possess is, however, without regard to any other criminal or felonious intent which the accused may have harbored in possessing the firearm. Criminal intent here refers to the intention of the accused to commit an offense with the use of an unlicensed firearm. This is not important in convicting a person under Presidential Decree No. 1866. Hence, in order that one may be found guilty of a violation of the decree, it is sufficient that the accused had no authority or license to possess a firearm, and that he intended to possess the same, even if such possession was made in good faith and without criminal intent." In the early case of People v. Estoista, we held that a temporary, incidental, casual, or harmless possession of firearms is not punishable. We stated therein that: "The terms "control" and "dominion" themselves are relative terms not susceptible of exact definition, and opinions on the degree and character of control or dominion sufficient to constitute violation vary. The rule laid down in the United States Courts rule which we here adopt is that temporary, incidental, casual or harmless possession or control of a firearm is not a violation of a statute prohibiting the possessing or carrying of this kind of weapon. A typical example of such possession is where "a person picks up a weapon or hands it to another to examine or hold for a moment."
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Also, in People v. Remereta, where the question posed was whether an accused who stole a firearm could simultaneously be prosecuted for theft and illegal possession of firearms, we held that transient possession is not sufficient to convict one under the latter crime, thus: "While in stealing a firearm the accused must necessarily come into possession thereof, the crime of illegal possession of firearms is not committed by mere transient possession of the weapon. . . . Thus, stealing a firearm with intent not to use but to render the owner defenseless, may suffice for purposes of establishing a case of theft, but would not justify a charge for illegal possession of firearm, since intent to hold and eventually use the weapon would be lacking." Hence, the kind of possession punishable under PD No. 1866 is one where the accused possessed a firearm either physically or constructively with animus possidendi or intention to possess the same. It is not enough that the firearm was found in the person of the accused who held the same temporarily and casually or for the purpose of surrendering the same. Admittedly, animus possidendi is a state of mind. As such, what goes on into the mind of an accused, as his real intent, could be determined solely based on his prior and coetaneous acts and the surrounding circumstances explaining how the subject firearm came to his possession. Thus, in People v. Leo Lian, we rejected the argument of the accused that the charge against him should be dismissed because there was no animus possidendi on his part. In said case, the accused contended that he was on his way to the municipal hall to surrender the firearm when he met some of his friends. He then forgot about the firearm, until the police officer unceremoniously seized the same from him, affording him no chance to surrender it himself. In rejecting accused-appellant's claim, Justice Regalado wrote that: ". . ., the Court finds it hard to believe that appellant still had to hide the firearm in his waist before setting out to surrender it to the authorities when he could have taken the gun to the town hall in the same bag in which he found it, in which case it would have been safer and would have avoided detection. In fine, the indispensable elements of possession without the necessary authority or license and the corresponding attendance of animus possidendi have both been convincingly established by the prosecution to warrant appellant's conviction . . ." That animus possidendi is determinable from the prior and simultaneous acts of the accused is further exemplified by People v. Lubo. In this case, while accused-appellant pleaded lack of animus possidendi, his conduct belied the same. Accused-appellant Lubo was found to have secured a "temporary license" for the subject firearm. Under such circumstance, we held that accused-appellant intended to possess the subject firearm beyond reasonable doubt. Coming now to the case before us, it is undisputed that the police officers never really arrested Rodolfo dela Rosa, for the truth of the matter was that there was no need for such arrest. Dela Rosa and his companions had surrendered the ammunitions to Kagawad Rigor even before the police arrived. In fact, the police learned of the surrender because Kagawad Rigor reported it to the police station in Labrador. This is in contrast to People v. Leo Lian, where appellant Lian merely feigned intention to surrender the firearm which the police found in his possession. In the case at bar, appellant dela Rosa's intention to surrender the ammunitions was very clear from the beginning and he was able to execute the same. Corollarily, the Office of the Solicitor General's contention that dela Rosa was in constructive possession of the ammunitions is irrelevant for possession whether physical or constructive without animus possidendi is not punishable. Dela Rosa's possession was harmless, temporary and only incidental for the purpose of surrendering the ammunitions to the authorities. Consequently, the prosecution failed to establish the first element of animus possidendi.
PEOPLE vs. DE GRACIA, ET AL G.R. Nos. 102009-10. July 6, 1994 The court defines and clarified the meaning of possession in order for the purpose of convicting the accused under PD 1866. Appellant principally contends that he cannot be held guilty of illegal possession of firearms for the reason that he did not have either physical or constructive possession thereof considering that he had no intent to possess the same; he is neither the owner nor a tenant of the building where the ammunition and explosives were found; he was merely employed by Col. Matillano as an errand boy; he was guarding the explosives for and in behalf of Col. Matillano; and he did not have actual possession of the explosives. He
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claims that intent to possess, which is necessary before one can be convicted under Presidential Decree No. 1866, was not present in the case at bar. x x x The issue to be resolved is whether or not intent to possess is an essential element of the offense punishable under Presidential Decree No. 1866 and, if so, whether appellant De Gracia did intend to illegally possess firearms and ammunition. The rule is that ownership is not an essential element of illegal possession of firearms and ammunition. what the law requires is merely possession which includes not only actual physical possession but also constructive possession or the subjection of the thing to one's control and management. This has to be so if the manifest intent of the law is to be effective. The same evils, the same perils to public security, which the law penalizes exist whether the unlicensed holder of a prohibited weapon be its owner or a borrower. To accomplish the object of this law the proprietary concept of the possession can have no bearing whatsoever. But is the mere fact of physical or constructive possession sufficient to convict a person for unlawful possession of firearms or must there be an intent to possess to constitute a violation of the law? This query assumes significance since the offense of illegal possession of firearms is a malum prohibitum punished by a special law, 8 in which case good faith and absence of criminal intent are not valid defenses. When the crime is punished by a special law, as a rule, intent to commit the crime is not necessary. It is sufficient that the offender has the intent to perpetrate the act prohibited by the special law. Intent to commit the crime and intent to perpetrate the act prohibited by the special law. Intent to commit the crime and intent to perpetrate the act must be distinguished. A person may not have consciously intended to commit a crime; but he did intend to commit an act, and that act is, by the very nature of things, the crime itself. In the first (intent to commit the crime), there must be criminal intent; in the second (intent to perpetrate the act) it is enough that the prohibited act is done freely and consciously. In the present case, a distinction should be made between criminal intent and intent to possess. While mere possession, without criminal intent, is sufficient to convict a person for illegal possession of a firearm, it must still be shown that there was animus possidendi or an intent to possess on the part of the accused. Such intent to possess is, however, without regard to any other criminal or felonious intent which the accused may have harbored in possessing the firearm. Criminal intent here refers to the intention of the accused to commit an offense with the use of an unlicensed firearm. This is not important in convicting a person under Presidential Decree No. 1866. Hence, in order that one may be found guilty of a violation of the decree, it is sufficient that the accused had no authority or licensed to possess a firearm, and that he intended to possess the same, even if such possession was in good faith and without criminal intent. Concomitantly, a temporary, incidental, casual, or harmless possession or control of a firearm cannot be considered a violation of a statute prohibiting the possession of this kind of weapon, such as Presidential Decree No. 1866. Thus, although there is physical or constructive possession, for as long as the animus possidendi is absent, there is no offense committed. Coming now to the case before us, there is no doubt in our minds that appellant De Gracia is indeed guilty of having intentionally possessed several firearms, explosives and ammunition without the requisite license or authority therefor. His pretension of impersonal or indifferent material possession does not and cannot inspire credence. Animus possidendi is a state of mind which may be determined on a case to case basis, taking into consideration the prior and coetaneous acts of the accused and the surrounding circumstances. What exists in the realm of thought is often disclosed in the range of action. It is not controverted that appellant De Gracia is a former soldier, having served with the Philippine Constabulary prior to his separation from the service for going on absence without leave (AWOL). We do not hesitate, therefore, to believe and conclude that he is familiar with and knowledgeable about the dynamites, "molotov" bombs, and various kinds of ammunition which were confiscated by the military from his possession. As a former soldier, it would be absurd for him not to know anything about the dangerous uses and power of these weapons. A fortiori, he cannot feign ignorance on the import of having in his possession such a large quantity of explosives and ammunition. Furthermore, the place where the explosives were found is not a military camp or office, nor one where such items can ordinarily but lawfully be stored, as in a gun store, a arsenal or armory. Even an ordinarily prudent man would be put on guard and be suspicious if he finds articles of this nature in a place intended to carry out the business of selling cars and which has nothing to do at all, directly or indirectly, with the trade of firearms and ammunition. On the basis of the foregoing disquisition, it is apparent, and we sold hold, that appellant De Gracia actually intended to possess the articles confiscated from his person.
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ARTICLE 262 MUTILATION A. Elements 1. That there be a castration, that is: mutilation of organs necessary for regeneration, such as the penis or ovarium 2. That the mutilation is caused purposely and deliberately, that is, to deprive the offended party of some essential organ for reproduction Mutilation - the lopping or clipping off of some parts of the body NOTABENE: THIS CRIME IS ALWAYS INTENTIONAL In RA 7610 section 10 thereof= if the victim is below 12 years old, the penalty is higher If there is a duel (tinigbasay) between two men and the you know what of the other was hit, there is no mutilation. It is only serious physical injuries because it was accidental. Mutilation is the lopping or clipping off of some part of the body. The intent to deliberately cut off the particular part of the body that was removed from the offended party must be established. If there is no intent to deprive victim of particular part of body, the crime is only serious physical injury. The common mistake is to associate this with the reproductive organs only. Mutilation includes any part of the human body that is not susceptible to grow again. If what was cut off was a reproductive organ, the penalty is much higher than that for homicide. This cannot be committed through criminal negligence. ARTICLE 263 SERIOUS PHYSICAL INJURIES Q: how is the crime of serious physical injuries committed? A: It is committed by: 1. by wounding 2. by beating 3. by assaulting (article 263) or 4. by administering injurious substance (article 264) Q: what are serious physical injuries? A: they are: 1. when the injured person becomes insane, imbecile, impotent, or blind in consequence of the physical injuries inflicted 2. when the injured person:
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a.
loses the use of speech or the power to hear or to smell, or loses an eye, a hand, a foot, an arm, or a leg b. loses the use of any such member
habitually engaged, in consequence of the physical injuries inflicted 3. when the person injured a. becomes deformed b. loses any member of his body c. loses the use thereof
c.
becomes incapacitated for the work in which he was theretofore
d. 4.
becomes ill or incapacitated for the performance of the work in
which he was habitually engaged for more than 90 days, in consequence of the physical injuries inflicted
When the injured person becomes ill or incapacitated for labor for more
than 30 days (but must not be more than 90 days) as a result of the physical injuries inflicted. NOTA BENE: if the injury incapacitated the person for 15 days but requires medical attendance for 90 days the crime committed is NOT serious physical injuries because nowhere in the paragraphs under article 263 which requires medical attendance. The crime committed is LESS SERIOUS PHYSICAL INJURIES because in this case, the requirement for medical attendance is present. Q: if the physical injuries were inflicted during the time of hazing what is the crime committed? A: the crime is hazing. Deformity = physical ugliness, permanent and definite abnormality. It must be conspicuous and visible. illustration: if a person already suffering from physical deformity (hiwi iyang nawong) he was in a fist fight. When he was hit with a punch, the deformity was gone and his face was normal. Is there deformity within the meaning of Physical Injuries? A: None, Because there was no physical ugliness. And so if it heals, not deformity also. Furthermore, if the deformity is not conspicuous like it is found in the stomach, no deformity. QUALIFIED SERIOUS PHYSICAL INJURIES If the offense is committed: 1. Against any of the persons enumerated in the article defining the crime of parricide (article 246) OR 2. With attendance of any of the circumstances mentioned in the article defining the crime of murder (article 248) In one case, the accused, while conversing with the offended party, drew the latters bolo from its scabbard. The offended party caught hold of the edge of the blade of his bolo and wounded himself. It was held that since the accused did not wound, beat or assault the offended party, he can not be guilty of serious physical injuries.
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The crime of physical injuries is a crime of result because under our laws the crime of physical injuries is based on the gravity of the injury sustained. So this crime is always consummated, notwithstanding the opinion of Spanish commentators like Cuello Calon, Viada, etc., that it can be committed in the attempted or frustrated stage. If the act does not give rise to injuries, you will not be able to say whether it is attempted slight physical injuries, attempted less serious physical injuries, or attempted serious physical injuries unless the result is there. The reason why there is no attempted or frustrated physical injuries is because the crime of physical injuries is determined on the gravity of the injury. As long as the injury is not there, there can be no attempted or frustrated stage thereof. Classification of physical injuries: (1) Between slight physical injuries and less serious physical injuries, you have a duration of one to nine days if slight physical injuries; or 10 days to 20 days if less serious physical injuries. Consider the duration of healing and treatment. The significant part here is between slight physical injuries and less serious physical injuries. You will consider not only the healing duration of the injury but also the medical attendance required to treat the injury. So the healing duration may be one to nine days, but if the medical treatment continues beyond nine days, the physical injuries would already qualify as less serious physical injuries. The medical treatment may have lasted for nine days, but if the offended party is still incapacitated for labor beyond nine days, the physical injuries are already considered less serious physical injuries. (2) Between less serious physical injuries and serious physical injuries, you do not consider the period of medical treatment. You only consider the period when the offended party is rendered incapacitated for labor. If the offended party is incapacitated to work for less than 30 days, even though the treatment continued beyond 30 days, the physical injuries are only considered less serious because for purposes of classifying the physical injuries as serious, you do not consider the period of medical treatment. You only consider the period of incapacity from work. (3) When the injury created a deformity upon the offended party, you disregard the healing duration or the period of medical treatment involved. At once, it is considered serious physical injuries. So even though the deformity may not have incapacitated the offended party from work, or even though the medical treatment did not go beyond nine days, that deformity will bring about the crime of serious physical injuries. Deformity requires the concurrence of the following conditions: (1) (2) (3) The injury must produce ugliness; It must be visible; The ugliness will not disappear through natural healing process.
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Illustration: Loss of molar tooth This is not deformity as it is not visible. Loss of permanent front tooth This is deformity as it is visible and permanent. Loss of milk front tooth This is not deformity as it is visible but will be naturally replaced.
Question & Answer The offender threw acid on the face of the offended party. Were it not for timely medical attention, a deformity would have been produced on the face of the victim. After the plastic surgery, the offended party was more handsome than before the injury. What crime was committed? In what stage was it committed? The crime is serious physical injuries because the problem itself states that the injury would have produced a deformity. The fact that the plastic surgery removed the deformity is immaterial because in law what is considered is not the artificial treatment but the natural healing process. In a case decided by the Supreme Court, accused was charged with serious physical injuries because the injuries produced a scar. He was convicted under Article 263 (4). He appealed because, in the course of the trial, the scar disappeared. It was held that accused can not be convicted of serious physical injuries. He is liable only for slight physical injuries because the victim was not incapacitated, and there was no evidence that the medical treatment lasted for more than nine days. Serious physical injuries is punished with higher penalties in the following cases: (1) (2) If it is committed against any of the persons referred to in the crime of parricide under Article 246; If any of the circumstances qualifying murder attended its commission.
Thus, a father who inflicts serious physical injuries upon his son will be liable for qualified serious physical injuries. ARTICLE 264 ADMINISTERINGINJURIOUS SUBSTANCES OR BEVERAGES A. Elements 1. That the offender inflicted upon another any serious physical injury 2. That it was done by knowingly administering to him any injurious substances or beverages or by taking advantage of his weakness of mind or credulity 3. That he had no intent to kill - if there is intent to kill then it is frustrated murder/murder
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ARTICLE 265 LESS SERIOUS PHYSICAL INJURIES NOTA BENE: here, the element of MEDICAL ATTENDANCE is present. 1. That the offended party is incapacitated for labor for 10 to 30 days OR needs Medical Attendance for the same period of time. 2. That the physical injuries must not be those described in the preceding articles Q: When Qualified A: 1. The Penalty of arresto mayor, and a fine not exceeding 500 pesos shall be imposed. a. When there is a manifest intent to kill or offend the injured person, b. There are circumstances adding ignominy to the offense 2. When the victim is: a. the offender's parents, ascendants, guardians, or curators b. teachers, persons of rank, or persons in authority(provided the crime is not direct assault) If the physical injuries do not incapacitate the offended party nor necessitate medical attendance, slight physical injuries is committed. But if the physical injuries heal after 30 days, serious physical injuries is committed under Article 263, paragraph 4. Article 265 is an exception to Article 48 in relation to complex crimes as the latter only takes place in cases where the Revised Penal Code has no specific provision penalizing the same with a definite, specific penalty. Hence, there is no complex crime of slander by deed with less serious physical injuries but only less serious physical injuries if the act which was committed produced the less serious physical injuries with the manifest intent to insult or offend the offended party, or under circumstances adding ignominy to the offense. ARTICLE 266 SLIGHT PHYSICAL INJURIES AND MALTREATMENT A. Three Kinds: 1. Physical injuries which incapacitated the offended party for labor from 1 to 9 days, or shall require medical attendance during the same period. 2. Physical injuries which do not prevent the offended party from engaging in his habitual work nor require medical assistance. 3. Ill-treatment of another by deed without causing any injury. NOTA BENE: Incapacity of injured party lasted for 9 days or shall require medical attendance during the same period. Or even if such injury does not prevent the offended party form engaging in his habitual work nor require medical attendance. Punished also is the act of ill-treating another by deed without causing injury. This involves even ill-treatment where there is no sign of injury requiring medical treatment. Slapping the offended party is a form of ill-treatment which is a form of slight physical injuries.
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But if the slapping is done to cast dishonor upon the person slapped, the crime is slander by deed. If the slapping was done without the intention of casting dishonor, or to humiliate or embarrass the offended party out of a quarrel or anger, the crime is still ill-treatment or slight physical injuries. Illustration: If Hillary slaps Monica and told her You choose your seconds . Let us meet behind the Quirino Grandstand and see who is the better and more beautiful between the two of us, the crime is not ill-treatment, slight physical injuries or slander by deed; it is a form of challenging to a duel. The criminal intent is to challenge a person to a duel. The crime is slight physical injury if there is no proof as to the period of the offended partys incapacity for labor or of the required medical attendance. Republic Act No. 7610 (Special Protection of Children against Child Abuse, Exploitation and Discrimination Act), in relation to murder, mutilation or injuries to a child The last paragraph of Article VI of Republic Act No. 7610, provides: For purposes of this Act, the penalty for the commission of acts punishable under Articles 248, 249, 262 (2) and 263 (1) of Act No 3815, as amended of 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 years of age. The provisions of Republic Act No. 7160 modified the provisions of the Revised Penal Code in so far as the victim of the felonies referred to is under 12 years of age. The clear intention is to punish the said crimes with a higher penalty when the victim is a child of tender age. Incidentally, the reference to Article 249 of the Code which defines and penalizes the crime of homicide were the victim is under 12 years old is an error. Killing a child under 12 is murder, not homicide, because the victim is under no position to defend himself as held in the case of People v. Ganohon, 196 SCRA 431. For murder, the penalty provided by the Code, as amended by Republic Act No. 7659, is reclusion perpetua to death higher than what Republic Act no. 7610 provides. Accordingly, insofar as the crime is murder, Article 248 of the Code, as amended, shall govern even if the victim was under 12 years of age. It is only in respect of the crimes of intentional mutilation in paragraph 2 of Article 262 and of serious physical injuries in paragraph 1 of Article 263 of the Code that the quoted provision of Republic Act No. 7160 may be applied for the higher penalty when the victim is under 12 years old.
Jurisprudential Trend in PHYSICAL INJURIES (2000-2007)

Homicidal intent must be evidenced by the acts that, at the time of their execution, are unmistakably calculated to produce the death of the victim by adequate means. We cannot infer intent to kill from the appellant's act of hitting Piamonte in the head with a lead pipe. In the first place, wounds were not shown to have been inflicted because of the act. Secondly, absent proof of circumstances to show the intent to kill beyond reasonable doubt, this Court cannot declare that the same was attendant.
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When the offender shall ill-treat another by deed without causing any injury, and without
causing dishonor, the offense is Maltreatment under Article 266, 98 par. 3 of the Revised Penal Code. It was beyond reasonable doubt that by hitting Piamonte, appellant ill-treated the latter, without causing any injury. As we have earlier stated, no proof of injury was offered. Maltreatment is necessarily included in Murder, which is the offense charged in the Information. o We cannot convict appellant of Attempted or Frustrated Murder or Homicide. The principal and essential element of attempted or frustrated homicide or murder is the assailant's intent to take the life of the person attacked. 93 Such intent must be proved clearly and convincingly, so as to exclude reasonable doubt thereof. 94 Intent to kill may be proved by evidence of: (a) motive; (b) the nature or number of weapons used in the commission of the crime; (c) the nature and number of wounds inflicted on the victim; (d) the manner the crime was committed; and (e) words uttered by the offender at the time the injuries are inflicted by him on the victim. The only injury attributable to Li is the contusion on the victims right arm that resulted from Li striking Arugay with a baseball bat. In view of the victims supervening death from injuries which cannot be attributed to Li beyond reasonable doubt, the effects of the contusion caused by Li are not mortal or at least lie entirely in the realm of speculation. When there is no evidence of actual incapacity of the offended party for labor or of the required medical attendance, the offense is only slight physical injuries. However, we are not convinced that appellants should be held liable for frustrated murder. The evidence presented by the prosecution failed to show conclusively that the wounds inflicted on Anthony were fatal or serious. Dr. Jose Aladin Bongco, the doctor who had attended to Anthony at the Amang Rodriguez Medical Center, opined that all of the latter's wounds "can be fatal," 32 implying that the former was not sure of their gravity. The extent of the medical treatment Dr. Bongco gave the victim was limited to first aid stopping the flow of blood from the wounds as the latter had refused further medical examination and treatment. o In the absence of more convincing evidence, we hold that the prosecution failed to prove that appellants had fatally wounded Anthony Villanueva. Thus, they should be held liable only for slight physical injuries under Article 266 of the Revised Penal Code. 35 This is because his injuries lasted less than nine days.
ARTICLE 266-A
RAPE
RA 8353 AN ACT EXPANDING THE DEFINITION OF THE CRIME OF RAPE RECLASSIFYING THE SAME AS A CRIME AGAINST PERSONS 1) By a man who shall have carnal knowledge of a woman under any of the following circumstances: a) Through force, threat, or intimidation; b) When the offended party is deprived of reason or otherwise unconscious; c) By means of fraudulent machination or grave abuse of authority; and d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present. (Statutory Rape) 2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting: a. his penis (man) into another person's (man or woman) mouth or anal orifice, OR b. any instrument or object (by a man or woman) , into the genital or anal orifice of another person(man or woman) NOTA BENE:
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In the crime of rape, any circumstances which qualifies the crime of rape must be allege, otherwise, court will not impose the death penalty because the crime shall be treated only as simple rape. Q: when is rape qualified so that the court shall impose the penalty of reclusion perpetua to death? A: 1. whenever it is committed with the use of a deadly weapon OR by two or more persons (here the weapon must be used to consummate rape) 2. when by reason or on the occasion of the rape, the victim has become insane (people vs. cesar guy (1950s) === he raped antonietta cabahug, the woman became insane) 3. when the rape is attempted and a homicide is committed by reason of or on the occasion thereof (US vs Mangulabnan regarding robbery with homicide === homicide on the occasion of
robbery. The robber went inside the house and the owner of the house went up to the ceiling to hide. The robber fired shots in the air hitting the owner so killed. Is this robbery with homicide? Yes, because on the occasion of robbery a person died. Still another case decided by the SC, robber went inside the house and the owner had a heart attack and died, this is robbery with homicide. Still another case, robber went inside the house, the owner was about to shout for help when the robber place a bread PANDESAL in the mouth of the owner, which cause the latter to choke to death. This is robbery with homicide. In homicide it does not matter if the death is accidental, as long as it occurred on the occasion of robbery. BAR: robbery was actually committed, then there occurred an exchange of bullets. One of the companions of the culprits was hit and killed. The crime is robbery with homicide because it does not matter who was shot or killed, even if the person killed was one of the robbers. If a person dies in the occasion of robbery, the crime is robbery with homicide. SO APPLY THE SAME PRINCIPLES IN THE CRIME OF ATTEMPTED RAPE AND HOMICIDE === example: the would-be rapist entered in the room of the woman, attempted to rape her, but she escaped by jumping out of the window which killed her. The crime is attempted rape with homicide. Another example: a person attempted to rape the woman, the latter shouted. So he shot her but she wasnt hit, the bullet hit someone else. The crime is attempted rape with homicide.)
4. when by reason or on the occasion of the rape, homicide is committed NOTA BENE: Relationship of the victim and the culprit, and age of woman must be allege in the information, otherwise, death will not be imposed. According to the SC, the accused is entitled to know the cause and accusation against him. he pleaded not guilty to the allegation which constitutes simple rape, not qualified rape. So even if proven, if not allege, the crime is simple rape.
(mentioned in cases decided by SC year 1999-2000)
Under the new rape law, a husband can be charged of rape by a wife. NOTA BENE: In rape cases the victim is entitled to moral damages as an additional award to the victim aside from the indemnity as the court may deem as just without the need of pleading (allegation) or proof. Indeed the conventional requirement of allegata et probata in civil law should be dispensed with in criminal prosecutions for rape with the civil aspect included therein since no appropriate pleadings have been filed wherein such allegations can be made. SEE RA 7610 if the victim is a minor
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CASES:
People vs. Joven de la Cuesta (1999) Definition of guardian = it is restrictive since it refers to a legal or judicial guardian. This must be construed as such in order for the death penalty to be imposed in compliance with RA 7659. The mere fact that the mother of the victim asked Joven to look after her child while she is away did not constitute the relationship of guardian-ward as contemplated by the law. He was allowed to stay in the rented room for free of charge. At most he was a mere custodian or caretaker of the child on whom he exercise limited authority for a temporary period. People vs. Lorenzo Andaya Use of a deadly weapon = the victim here is deprived of reason, suffering from mental abnormality. The accused here offered marriage. The offer of marriage is an implied admission of guilt. People vs. Ffelixberto Fraga y Failon (2000) Use of a deadly weapon = it must be used to commit rape. Andal vs. People (1999) SC rejected argument about DNA test as a means of identification. DNA testing of semen of the accused to test whether it matched with that found in the victims vagina is not necessary. Presence of positive identification is there. People versus Vicente Valle (2000) Res gestae in rape = accused asked for forgiveness, an admission of guilt. People vs. Juan Mangasen Rape by Common law = People vs. Sharif Ali (1999) Iranian national who brought a woman to his apartment and he used a weapon. He didnt want the woman to leave the apartment. SC said forcible abduction is absorbed in the crime of rape if the main objective of the appellant is to rape the victim. Appellant used the knife NOT to consummate the crime the crime of rape but to threaten Gina (victim) not to leave the bedroom where she was locked up. SC held that behavioral psychology teaches us that people in similar situations react dissimilarly. There is no standard human behavior when confronted with shocking experiences/ incidents. The workings of the human mind when place under emotional stress are unpredictable. This court indeed has not laid down any rule on how a rape victim should behave immediately after she has been abused. This experience is relative and may be dealt with in any way by the victim depending on the circumstances. Thus, physical resistance is not the sole test to determine whether or not a woman involuntary succumb to the hands of the accused particularly when the accused employed drugs in order to rape the victim in an unconscious state. PEOPLE vs. ESTEBAN VICTOR y PENIS G.R. No. 127903. July 9, 1998 Furthermore, it is a reputable precept that testimonies of rape victims who are young or of tender age are credible. The revelation of an innocent child whose chastity was abused deserves full credit. Courts usually lend credence to the testimony of a young girl especially where the facts point to her having been a victim of sexual assault. For sure, the victim would not make public the offense, undergo the trouble and humiliation of a public trial and endure the ordeal of testifying to all its gory details if she had not in fact been raped, for no decent Filipina would publicly admit she had been raped unless it was the truth. As a rule, a victim of rape will not come out in the open if her motives were not to obtain justice. The willingness of the complainant to face police investigators and to submit to physical examination is a mute but eloquent testimony, of the truth of her complaint. People vs. Restituto Manghuyog
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Execution of an affidavit of desistance filed after the institution of a criminal action of crimes against chastity, even if done in an express pardon cannot be a ground to dismiss it. PEOPLE vs. FERMIN IGAT G.R. No. 122097. June 22, 1998 Intimidation in rape cases is not calibrated nor governed by hard and fast rules. Since it is addressed to the victim and is therefore subjective, it must be viewed in light of the victim's perception and judgment at the time of the commission of the crime. It is enough that the intimidation produced fear fear that if the victim did not yield to the bestial demands of the accused, something far worse would happen to her at that moment. Where such intimidation existed and the victim was cowed into submission as a result thereof, thereby rendering resistance futile, it would be the height of unreasonableness to expect the victim to resist with all her might and strength. If resistance would nevertheless be futile because of intimidation, then offering none at all does not mean consent to the assault so as to make the victim's submission to the sexual act voluntary. In any event, in a rape committed by a father against his own daughter, as in this case, the former's moral ascendancy or influence over the latter substitutes for violence or intimidation. People vs. Samuel Burse Rape with mutilation = the accused struck the victim with a bolo three times on the face and left her for dead. The victim sustained her wounds only as a result of a clear attempt of the accused to kill her and cover up his misdeed. The injury thus suffered by the complainant should not be taken as a circumstance ( the mutilation) which would cause to raise the penalty to death but should rightly be taken up unabsorbed in the crime of frustrated murder. No specific description having been given by the law to the word mutilation. Therefore it should be understood in its ordinary and generic usage. Webster dictionary defines mutilation as cutting off or permanently destroying an essential part of the body. Black defines mutilation in its criminal law concept as one that would deprive a person of the use of any lose of those limbs which may be useful to him. PEOPLE vs. JOSE DELEVERIO G.R. Nos. 118937-38. April 24, 1998 The mandatory death penalty is imposed under the first case, immediately above, when the victim is under eighteen 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." The trial court has thus held incorrectly in considering appellant, who is legally married to Roxan's natural grandmother, as among those named in the enumeration. Appellant is merely a step-grandparent who obviously is neither an "ascendant" nor a "step-parent" of the victim. Therefore, the crime of rape is not qualified. ALONTE vs. SAVELLANO JR., NBI and PEOPLE G.R. No. 131652. March 9, 1998 Firstly, the affidavit of desistance of Juvie-Lyn Punongbayan, hereinbefore quoted, does not contain any statement that disavows the veracity of her complaint against petitioners but merely seeks to "be allowed to withdraw" her complaint and to discontinue with the case for varied other reasons. Secondly, an affidavit of desistance by itself, even when construed as a pardon in the socalled "private crimes," is not a ground for the dismissal of the criminal case once the action has been instituted. The affidavit, nevertheless, may, as so earlier intimated, possibly constitute evidence whose weight or probative value, like any other piece of evidence, would be up to the court for proper evaluation. People vs. Honorable Lorenzo Veneracion Rape with homicide is punished with the mandatory penalty of death but the judge here refuse to impose it because it was contrary to his religious belief. SC said You must impose the supreme penalty of death regardless of religious belief.
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PEOPLE vs. SILVINO SALARZA, JR. G.R. No. 117682. August 18, 1997 The complainant here is a british stage and television actress. She took her vacation in palawan. The son of the owner (ricky) of the beach house became her boyfriend. The tourist guide (salarsa) who is the friend of the boyfriend-owner fell in love. One night there was a beach party, they drank. Afterwards, the woman went to her cottage, took a shower. The accused entered the womans room and began to undress the woman, the woman slightly spread her legs as she was half asleep. Then servino mounted, then he whispered saril, this is not ricky( the boyfriend) People v. Almasin Rape of a mental retardee. SC, she is qualified if he can make known her perception to others as long as he can communicate.
Prior to the amendment of the law on rape, a complaint must be filed by the offended woman. The persons who may file the same in behalf of the offended woman if she is a minor or if she was incapacitated to file, were as follows: a parent; in default of parents, a grandparent; in default or grandparent, the judicial guardian. Since rape is not a private crime anymore, it can be prosecuted even if the woman does not file a complaint. If carnal knowledge was made possible because of fraudulent machinations and grave abuse of authority, the crime is rape. This absorbs the crime of qualified and simple seduction when no force or violence was used, but the offender abused his authority to rape the victim. Under Article 266-C, the offended woman may pardon the offender through a subsequent valid marriage, the effect of which would be the extinction of the offenders liability. Similarly, the legal husband may be pardoned by forgiveness of the wife provided that the marriage is not void ab initio. Obviously, under the new law, the husband may be liable for rape if his wife does not want to have sex with him. It is enough that there is indication of any amount of resistance as to make it rape. Incestuous rape was coined in Supreme Court decisions. It refers to rape committed by an ascendant of the offended woman. In such cases, the force and intimidation need not be of such nature as would be required in rape cases had the accused been a stranger. Conversely, the Supreme Court expected that if the offender is not known to woman, it is necessary that there be evidence of affirmative resistance put up by the offended woman. Mere no, no is not enough if the offender is a stranger, although if the rape is incestuous, this is enough. The new rape law also requires that there be a physical overt act manifesting resistance, if the offended party was in a situation where he or she is incapable of giving valid consent, this is admissible in evidence to show that carnal knowledge was against his or her will. When the victim is below 12 years old, mere sexual intercourse with her is already rape. Even if it was she who wanted the sexual intercourse, the crime will be rape. This is referred to as statutory rape.
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In other cases, there must be force, intimidation, or violence proven to have been exerted to bring about carnal knowledge or the woman must have been deprived of reason or otherwise unconscious. Where the victim is over 12 years old, it must be shown that the carnal knowledge with her was obtained against her will. It is necessary that there be evidence of some resistance put up by the offended woman. It is not, however, necessary that the offended party should exert all her efforts to prevent the carnal intercourse. It is enough that from her resistance, it would appear that the carnal intercourse is against her will. Mere initial resistance, which does not indicate refusal on the part of the offended party to the sexual intercourse, will not be enough to bring about the crime of rape. Note that it has been held that in the crime of rape, conviction does not require medico-legal finding of any penetration on the part of the woman. A medico-legal certificate is not necessary or indispensable to convict the accused of the crime of rape. It has also been held that although the offended woman who is the victim of the rape failed to adduce evidence regarding the damages to her by reason of the rape, the court may take judicial notice that there is such damage in crimes against chastity. The standard amount given now is P 30,000.00, with or without evidence of any moral damage. But there are some cases where the court awarded only P 20,000.00. An accused may be convicted of rape on the sole testimony of the offended woman. It does not require that testimony be corroborated before a conviction may stand. This is particularly true if the commission of the rape is such that the narration of the offended woman would lead to no other conclusion except that the rape was committed. Illustration: Daughter accuses her own father of having raped her. Allegation of several accused that the woman consented to their sexual intercourse with her is a proposition which is revolting to reason that a woman would allow more than one man to have sexual intercourse with her in the presence of the others. It has also been ruled that rape can be committed in a standing position because complete penetration is not necessary. The slightest penetration contact with the labia will consummate the rape. On the other hand, as long as there is an intent to effect sexual cohesion, although unsuccessful, the crime becomes attempted rape. However, if that intention is not proven, the offender can only be convicted of acts of lasciviousness. The main distinction between the crime of attempted rape and acts of lasciviousness is the intent to lie with the offended woman. In a case where the accused jumped upon a woman and threw her to the ground, although the accused raised her skirts, the accused did not make any effort to remove her underwear. Instead, he removed his own underwear and placed himself on top of
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the woman and started performing sexual movements. Thereafter, when he was finished, he stood up and left. The crime committed is only acts of lasciviousness and not attempted rape. The fact that he did not remove the underwear of the victim indicates that he does not have a real intention to effect a penetration. It was only to satisfy a lewd design. Is there a complex crime under Article 48 of kidnapping with rape? Read kidnapping.
Jurisprudential Trend in RAPE (2000-2007)

On the degree of force as an element of rape, this Court finds it "not necessary to show that irresistible force or intimidation accompanied the crime of rape; it suffices to show that force or intimidation was present and did result in the accused copulating with the offended woman against her will." o [T]he victim's character in rape is immaterial. Even the fact that the offended party may have been of unchaste character constitutes no defense to the charge of rape, provided that it is proved that the illicit relations described in the complaint was committed with force and violence. o The defense goes on to harp on AAA's delay in reporting the incidents. 41 The oft-repeated observation of this Court that it is not unusual for a rape victim to conceal the incident at least momentarily should address this. The appellants point to the unusual manner of commission of the crime, involving as it did not only the sexual assault by the man but also the participation of his wife, to discredit the complainant's testimony. Under the Revised Penal Code, 29 however, an accused may be considered a principal by direct participation, by inducement, or by indispensable cooperation. This is true in a charge of rape against a woman, provided of course a man is charged together with her. Thus, in two cases this Court convicted the woman as a principal by direct participation since it was proven that she held down the complainant in order to help her co-accused spouse consummate the offense. o In People v. Villamala, 30 the Court found the husband and wife guilty for raping their neighbor and "kumare" in this factual setting, viz: the wife visited the victim at her home on the pretext of inquiring as to the whereabouts of her husband. Once inside, she whistled for her husband and he immediately appeared at the doorstep. The wife then suddenly pinned her "kumare" to the floor. The husband forcefully removed the victim's skirt and panties, removed his shorts, placed himself on top of the victim and consummated the rape. In the more recent People v. Saba, 31 the accused married couple victimized a fourteen (14) year-old epileptic who stayed at their home for treatment by the wife who was a reputed healer. On the pretext of conducting a healing session, the wife ordered the victim to lie down on the floor then pinned the victim's hands to the floor and covered her mouth while her husband removed his pants and briefs and the victim's panties and raped the young girl. These two cases show not only the possibility but the reality of rape committed by a woman together with a man. o The appellants argue that the prosecution failed to present any evidence of aberrant sexual behavior on their part that would justify the trial court's conclusion that the rape occurred as described by the complainant. This argument must fail since the sexual habits of the appellant-spouses do not constitute an essential element of the offense of rape. The prosecution only has to prove that there was carnal knowledge of the complainant and that it was done against her will. The trial court's evaluation of the evidence resulted in the appellants' conviction and a close scrutiny of its judgment leads us to affirm it. o Each and every charge of rape is a separate and distinct crime; hence, each of the eight other rape charges should be proven beyond reasonable doubt. The prosecution is required to establish, by the necessary quantum of proof, the elements of rape for each charge. Baby Jane's testimony on the first rape charge was explicit, detailing the participation of each appellant in the offense and clearly illustrating all the elements of the offense of rape. However her simple assertion that the subsequent rapes occurred in exactly the same manner as in previous incidents is clearly inadequate and grossly insufficient to establish to a degree of moral certainty the guilt of the appellants insofar as the eight rape charges are concerned. Her testimony was too general as it failed to focus on material details as to how each of the subsequent acts was committed. Even her testimony on cross-examination did not add anything to support her accusations of subsequent rape. Thus, only the rape alleged to have been committed on September 1992 was proven beyond reasonable doubt and the appellants may be penalized only for this offense. o Article 335 of the Revised Penal Code provides that whenever the crime of rape is committed with the use of a deadly weapon the penalty is reclusion perpetua to death. The use by the appellants of a bladed weapon, alleged in the Amended Complaint and sufficiently proven in this case, qualifies the rape. In
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the absence of any mitigating or aggravating circumstance, the penalty that the appellants shall suffer is the lesser penalty of reclusion perpetua. In reviewing rape cases, this Court is guided by three principles: (1) an accusation of rape can be made with facility and while the accusation is difficult to prove, it is even more difficult for the person accused, although innocent, to disprove; (2) considering the intrinsic nature of the crime, only two persons being usually involved, the testimony of the complainant should be scrutinized with great caution; (3) the evidence for the prosecution must stand or fall on its own merit, and cannot be allowed to draw strength from the weakness of the evidence for the defense. o In rape cases, the testimony of the victim alone, if credible, is sufficient to convict the accused of the crime. The medical certificate is presented merely to corroborate the victim's declaration that she was sexually molested. In fact, what is more telling in the medical findings proffered in evidence by the prosecution is the presence of hymenal lacerations in different positions in the victim's genitalia which is the best physical evidence of her forcible defloration. o A rape victim can easily identify her assailant especially if he is known to her because during the rape, she is physically close to her assailant, enabling her to have a good look at the latter's physical features. The doctrine consistently upheld by this Court is that alibi cannot prevail over the positive identification of the accused as the perpetrator of the crime. It is inherently a weak defense; and unless supported by clear and convincing evidence, it cannot prevail over the positive declaration of the victim. o In the present case, no birth certificate or any similar authentic document was presented and offered in evidence to prove Rachel's age. The only evidence of the victim's age is her testimony 57 and that of her mother's (Sally de Guzman's) Sinumpaang Salaysay, 58 which was adopted as part of the latter's direct testimony, 59 attesting to the fact that her five-year-old daughter was raped. o Sally's testimony regarding Rachel's age was insufficient, since Rachel was alleged to be already five years old at the time of the rape, and what is sought to be proved is that she was then less than seven years old. Her testimony will suffice only if it is expressly and clearly admitted by the accused. There is no such express and clear declaration and admission of the appellant that Rachel was less than seven years old when he raped her. Moreover, the trial court made no finding as to the victim's age. o It must be stressed that the severity of death penalty, especially its irreversible and final nature once carried out, makes the decision-making process in capital offenses aptly subject to the most exacting rules of procedure and evidence. 60 Accordingly, in the absence of sufficient proof of Rachel's minority, the appellant cannot be convicted of qualified rape and sentenced to suffer the death penalty. o However, Sally's testimony that her daughter was five years old at the time of the commission of the crime is sufficient for purposes of holding the appellant liable for statutory rape, or the rape of a girl below twelve years of age. Under the second paragraph of Article 266-B, in relation to Article 266-A(1) (d), carnal knowledge of a woman under twelve years of age is punishable by reclusion perpetua. Thus, the appellant should be sentenced to suffer reclusion perpetua, and not the death penalty. The elements of rape under the above provisions are: (1) the offender had carnal knowledge of a woman; and (2) such act was accomplished through force or intimidation; or when the victim is deprived of reason or otherwise unconscious; or when the victim is under 12 years of age or is demented. o We find, however, that the trial court erred in concluding that the crime committed by appellant is statutory rape. While the Information alleges that Imee was 10 years old when the crime was committed on February 6, 1994, the prosecution failed to present her Certificate of Live Birth or any other evidence to prove her age. o As regards appellant's second assigned error, we agree with his contention that the trial court erred in imposing upon him the penalty of death. The trial court considered the use of a piece of wood as a deadly weapon and, therefore, a qualifying circumstance. Suffice it to state that, as a rule, in order that a qualifying or aggravating circumstance may be appreciated, it must be alleged in the Information and proven during trial. 39 Here, no such circumstance has been alleged in the Information which justifies the imposition of death. Thus, the proper imposable penalty is reclusion perpetua as provided in Art. 335 of the Revised Penal Code, as amended, quoted earlier. The gravamen in the crime of rape is carnal knowledge. The prosecution must prove beyond reasonable doubt that the accused had sexual contact with the alleged victim. This, the prosecution failed to do in this case. While the complainant testified that appellant forced her into sexual intercourse on two occasions, the physical evidence clouds her testimony. Records show that the complainant was examined by several doctors. However, only the reports of the last two doctors who examined her were offered as evidence. The report of Dr. Annabel Soliman, Medico-Legal Officer of the NBI shows that there were no signs of injury in complainant's genitalia. In a later examination, however, conducted by Dr. Manuel Aves of the Bulacan Provincial Crime Laboratory Office, a healed superficial hymenal laceration at 12:00 position was found. Dr. Aves explained that the location of the
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laceration excludes sexual intercourse as possible cause thereof. Dr. Aves explained that lacerations found on the upper portion of the hymen are normally caused by instrumentation but not by sexual contact. o We are not unmindful of the Court's ruling that the absence of laceration in the hymen does not preclude the existence of rape and that when a woman states that she has been raped, she states all that is necessary to prove the offense. These principles, however, do not in themselves support a conviction. They must be weighed with the presumption of innocence of the accused. To support a finding of guilt, it is necessary that the complainant's story be believable in itself. o In rape cases, it is the primordial duty of the prosecution to present its case with clarity and persuasion to the end that conviction becomes the only logical and inevitable conclusion. Proof beyond reasonable doubt is required. Although the law does not demand absolute certainty of guilt, it nonetheless requires moral certainty to support a judgment of conviction. Where the inculpatory facts admit of several interpretations, one consistent with accused's innocence and another with his guilt, the evidence thus adduced fails to meet the test of moral certainty and it becomes the constitutional duty of the Court to acquit the accused. As the trial court ruled, the evidence for the prosecution has clearly established that Marietta, in all three instances, was forced to submit to appellant's bestial desires, the latter employing force and intimidation. In all the three (3) rape incidents, the appellant used physical violence upon the person of Marietta to consummate his purpose of copulating with the latter. Marietta put up a struggle every time the accused forced himself upon her, but in all instances, she was inevitably subdued by his strength. As we held in People vs. Baltazar, 14 nowhere is it required in law or jurisprudence that a woman must offer tenacious resistance to a sexual assault. The law does not impose on the rape victim the burden of proving resistance. In rape, the force and intimidation must be viewed in the light of the victim's perception and judgment at the time of the commission of the crime and not by any hard and fast rule. 15 Not all offended parties in the crime of rape react the same way. There are those who even freeze because of fright and shock, unable to move nor shout. We cannot fault the latter for not putting up a "tenacious" resistance. In the case at bar, we find that Marietta put up a good fight, but because of her mature age and the disparity between her and appellant's physical strength, she was easily subdued by her attacker. o It is settled that a person accused of rape can be convicted solely on the testimony of the victim if the trial court finds said testimony to be credible, natural, convincing, and consistent with human nature and the normal course of things. o On the other hand, evidence for the defense was anchored solely on the claim of the appellant that he and Merly were sweethearts. He alleged that the several incidents of sexual intercourse between him and Marietta, twice a week on the average, were consensual. We agree with the finding of the trial court that this "sweetheart defense" put up by the appellant was preposterous and concocted merely as an afterthought. No other evidence than the self-serving testimony of the appellant was presented to support such a defense, like love letters, pictures, mementos, etc. The supposedly corroborative testimony of Leticia dela Cruz did not say much. All she stated was that Marietta always gave money to the appellant since 1998, that Marietta always asked her to call the appellant, and that Marietta got angry with the appellant when the latter lived in with her friend Dory. 18 None of the latter statements could prove that Marietta and the appellant were sweethearts. As the trial court correctly observed, if the appellant were really her boyfriend, then Marietta would not have gone to the extent of bringing to court this criminal action which inevitably exposed her to the humiliation of recounting in public how she was abused. Unless truly wronged, she would not have instituted these cases. That she was already fifty-one (51) years old rendered her exposure to a public trial of rape all the more embarrassing and painful. o The prosecution, through Marietta's testimony, has clearly established that on at least three (3) occasions August 16, 1998, October 3, 1998, and March 15, 1999 the appellant Eduardo Fabian y Mari forced himself on Marietta and succeeded in having carnal knowledge with her. He employed physical force and intimidation, and even threatened her that he would kill her and her son if she reports to the police. The foregoing satisfy all the elements of rape as defined and penalized in Section 2 of Republic Act No. 8353, and warrant the imposition of the penalty of imprisonment of reclusion perpetua upon the accused for each of the three (3) counts of rape. Time and again, we stress the verity that in incestuous rape where the father/stepfather exercises moral dominance over his daughter/stepdaughter, the victim by the sheer force of this moral influence is reduced to a docile creature, vulnerable and submissive to the sexual depredations of her tormentor. o In a rape committed by a father against his own daughter, the former's moral ascendancy and influence over the latter substitutes for violence and intimidation. That ascendancy or influence necessarily flows from the father's parental authority, which the Constitution and the laws recognize, support and enhance, as well as from the children's duty to obey and to observe reverence and respect towards their parents. Such reverence and respect are deeply ingrained in the minds of Filipino children and are
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recognized by law. Abuse of both by a father can subjugate his daughter's will, thereby forcing her to do whatever he wants. Appellant scrapes the bottom of the barrel in making much of Gemma's statement that he was on top of her for an hour. Indeed, it is too much to expect of a minor rape victim to give a precise recollection of the rape incident when at the time of the sexual assault her tender mind was not only bombarded by a mishmash of confusing emotions but, more so, every sinew of her young body was committed to ward off her attacker in a vain attempt to defend her purity and honor. Understandably, Gemma might have lost all bearings of time for the few harrowing minutes in the hands of her father seemed eternity to her. The rule is that when a rape victim's testimony is straightforward and candid, unshaken by rigid crossexamination and unflawed by inconsistencies or contradictions in its material points, the same must be given full faith and credit. 20 It is simply too improbable for the minor victims, who are guileless and innocent in the ways of the world, to brazenly impute a crime as serious as rape to the man, they call their father, if it were not true.
In any criminal prosecution, it is necessary that every essential ingredient of the crime charged must be proved beyond reasonable doubt in order to overcome the constitutional right of the accused to be presumed innocent. Jenny's simple declaration that she was raped is not evidence but simply a conclusion. The principle that "when a woman declares that she has been raped she says in effect all that is necessary to mean that she has been raped," no longer holds. This means that the prosecution must still prove the elements of the crime of rape, and it is not enough for a woman to claim she was raped without showing how the crime was specifically committed. o In the earlier case of People v. Mendoza, 21 the accused was acquitted by virtue of the victim's plain statement that she was "raped" on 11 August 1995 without offering further details on how the alleged incident was carried out. This Court declared therein that "(w)hether or not he raped her is the fact in issue which the court must determine based on the evidence offered. Testimony to that effect is not evidence, but simply a conclusion, the proof of which is the very purpose of the trial . . . It is not competent for a witness [in this case Michelle] to express an opinion, conclusion or judgment thereon." o The certificates of live birth 22 prove that at the time of the rape incidents Gemma, Jean and Jenny were minors. With the concurrence of their minority and relationship 23 with appellant, the trial court correctly found appellant guilty beyond reasonable doubt of qualified rape. Well-settled is the rule that no woman would concoct a story of defloration, allow an examination of her private parts and submit herself to public humiliation and scrutiny via an open trial, if her sordid tale was not true and her sole motivation was not to have the culprit apprehended and punished. A young girl's revelation that she has been raped, coupled with her voluntary submission to medical examination and her willingness to undergo public trial where she could be compelled to give out the details of an assault on her dignity, cannot be so easily dismissed as a mere concoction. 22 Needless to say, it is settled jurisprudence that testimonies of child-victims are given full weight and credit, since when a woman, more so if she is a minor, says that she has been raped, she says in effect all that is necessary to show that rape was committed. Youth and immaturity are generally badges of truth and sincerity. o In rape trials, the issue, more often than not, is the credibility of the victim. But when a rape victim's testimony is straightforward, unflawed by any material or significant inconsistency, then it deserves full faith and credit. If found credible, the declaration of facts given by the offended party alone would be sufficient to sustain a conviction. o Conspiracy was correctly appreciated by the trial court because the individual acts of the accused when taken together as a whole showed that they acted in concert and cooperated to achieve the same unlawful objective. 27 The evidence clearly shows that conspiracy existed between the three accused shown by their obvious concerted efforts to perpetrate, one after the other, the crime of rape. 28 It was established during the trial that while accused-appellant raped the victim, his co-accused covered the latter's mouth or restrained her hands. We have repeatedly held that in cases of multiple rape, each of the defendants is responsible not only for the rape committed by him but also for those committed by the others. 29 Accused-appellant, therefore, is responsible not only for the rape committed personally by him but also for the two other counts of rape committed by his co-accused. o Similarly, it is highly inconceivable that complainant would file rape charges against accused-appellant just because her father will scold her for failing to go home one night. No motive was given for her to falsely impute a heinous crime against accused-appellant. As held in the case of People v. Dimailig: 33 "Where there is no evidence that the principal witness for the prosecution was actuated by improper motive, the presumption is that she was not so actuated and her testimony is entitled to full faith. It has been repeatedly held that no young and decent Filipina would publicly admit that she was ravished and her honor tainted unless the same were true, for it would be instinctive on her part to protect her honor and obtain justice for the wicked acts committed upon her." o We cannot sustain the accused-appellant's claim that the absence of lacerations and contusions in the victim's genitalia negate the commission of rape. We have consistently held that the rupture of the
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hymen or laceration of the vagina is not an essential element of rape, for mere knocking at the door of the pudenda by the accused's penis suffices to constitute the crime of rape. 37 Penile invasion, as it has often been held, necessarily entails contact with the labia where even the briefest of contact under circumstances of force, intimidation or unconsciousness, even without laceration of the hymen, is deemed to be rape in our jurisprudence. Hence, neither the penetration of the penis beyond the lips of the vagina nor the rupture of the hymen is indispensable to justify conviction. 38 A medical examination is not even indispensable in a prosecution for rape. The lone testimony of the victim, if credible, is sufficient to sustain a conviction.
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Republic Act 8505 Rape Shield Law Providing assistance to rape victim and establishing rape crisis center in every province. A. Salient features of this law: If the victim of rape is a woman, the investigator should be woman also. If it reaches the fiscal/prosecutor, the same must also be a woman. If possible, the judge should also be a woman. Q: Who are qualified to run the center? A: DILG, NGO and those expert in cases in handling rape cases B. Purpose of the center; 1. To provide victims with psychological counseling; medical services and medical attention; provided with lawyer and ensuring the privacy of the victim 2. Duty of the police officer to refer the rape case to the prosecutor 3. If the victim is a woman, the one who will examine her must also be a woman 4. Women desk in every police precinct in the country C. Protective Measure: 1. Complainants right to privacy 2. Identity of the parties shall not be disclosed Republic Act 7877 SEXUAL HARASSMENT ACT Q: Who are liable? A: employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person: 1. Who having authority, influence and moral ascendancy - it is taking advantage of superiority. It is an abuse of power. 2. Demands, requests or otherwise requires any sexual favor from the other e.g.; Manager and Employee to have a date - it could be sexual intercourse or fondling of body parts 3. Regardless if the demand is accepted How Committed: A. Work-related or employment environment (1) The sexual favor is made as a condition in the hiring or in the employment, re-employment or continued employment of said individual, or in granting said individual favorable compensation, terms, conditions, promotions, or privileges; or the refusal to grant the sexual favor results in limiting, segregating or classifying the employee which in any way would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employee; (2) The above acts would impair the employee's rights or privileges under existing labor laws; or (3) The above acts would result in an intimidating, hostile, or offensive environment for the employee.
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B. Education OR Training environment (1) Against one who is under the care, custody or supervision of the offender; (2) Against one whose education, training, apprenticeship or tutorship is entrusted to the offender; (3) When the sexual favor is made a condition to the giving of a passing grade, or the granting of honors and scholarships or the payment of a stipend, allowance or other benefits, privileges, or considerations; or (4) When the sexual advances result in an intimidating, hostile or offensive environment for the student, trainee or apprentice. A. Scope of RA 7877 a. work, b. education and c. training related activities B. Sexual Harassment can be committed by a man against a woman, woman against a man - Its all about power!!! C. In rape, abuse of authority must be grave if acquitted he can still be prosecuted under Sexual Harassment. D. Rape v. Sexual Harassment
1)
2) 3) SH if a
Rape ( c ) there must be grave abuse of authority, while in SH only use of authority SH limited to work, educational and training related while in rape it is not. Rape as a general rule must be consummated. No sexual intercourse no rape. In woman declines the demand there is still consummated SH. SH there is demand or request while in rape there is none. (Diretso hansak )
4)
E. See RA 7610 if the victim is a minor Q: May an Employee be charged with Sexual Harassment by another Employee? A: Yes, as long as there is moral ascendancy. Q: May a person not having sexual intercourse with a woman be held guilty of Sexual Harassment? A: Yes, because in Sexual Harassment there is a principal by direct participation & principal by induction.
Any person who directs or induces another to commit any act of sexual harassment as herein defined, or who cooperates in the commission thereof by another without which it would not have been committed, shall also be held liable under this Act.
Q: What is the liability of the Employer or the head officer in an education and training institution? A: If there is Sexual Harassment and no immediate action is taken, he is SOLIDARILY liable for damages. This refers to civil liability.
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TITLE NINE CRIMES AGAINST PERSONAL LIBERTY & SECURITY Chapter One CRIMES AGAINST LIBERTY
Section 1-Illegal Detention ARTICLE 267 KIDNAPPING AND SERIOUS ILLEGAL DETENTION Elements: 1. 2. 3. 4. Offender is a private individual; He kidnaps or detains another, or in any other manner deprives the latter of his liberty; The act of detention or kidnapping must be illegal; In the commission of the offense, any of the following circumstances is present: a. The kidnapping lasts for more than 3 days; b. It is committed simulating public authority; c. Any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or d. The person kidnapped or detained is a minor, female, or a public officer.
If there is any crime under Title IX which has no corresponding provision with crimes under Title II, then, the offender may be a public officer or a private person. If there is a corresponding crime under Title II, the offender under Title IX for such similar crime is a private person. When a public officer conspires with a private person in the commission of any of the crimes under Title IX, the crime is also one committed under this title and not under Title II. Illustration: If a private person commits the crime of kidnapping or serious illegal detention, even though a public officer conspires therein, the crime cannot be arbitrary detention. As far as that public officer is concerned, the crime is also illegal detention. In the actual essence of the crime, when one says kidnapping, this connotes the idea of transporting the offended party from one place to another. When you think illegal detention, it connotes the idea that one is restrained of his liberty without necessarily transporting him from one place to another. The crime of kidnapping is committed if the purpose of the offender is to extort ransom either from the victim or from any other person. But if a person is transported not for ransom, the crime can be illegal detention. Usually, the offended party is brought to a place other than his own, to detain him there. When one thinks of kidnapping, it is not only that of transporting one person from one place to another. One also has to think of the criminal intent.
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Forcible abduction -- If a woman is transported from one place to another by virtue of restraining her of her liberty, and that act is coupled with lewd designs. Serious illegal detention If a woman is transported just to restrain her of her liberty. There is no lewd design or lewd intent. Grave coercion If a woman is carried away just to break her will, to compel her to agree to the demand or request by the offender. In a decided case, a suitor, who cannot get a favorable reply from a woman, invited the woman to ride with him, purportedly to take home the woman from class. But while the woman is in his car, he drove the woman to a far place and told the woman to marry him. On the way, the offender had repeatedly touched the private parts of the woman. It was held that the act of the offender of touching the private parts of the woman could not be considered as lewd designs because he was willing to marry the offended party. The Supreme Court ruled that when it is a suitor who could possibly marry the woman, merely kissing the woman or touching her private parts to compel her to agree to the marriage, such cannot be characterized as lewd design. It is considered merely as the passion of a lover. But if the man is already married, you cannot consider that as legitimate but immoral and definitely amounts to lewd design. If a woman is carried against her will but without lewd design on the part of the offender, the crime is grave coercion. Illustration: Tom Cruz invited Nicole Chizmacks for a snack. They drove along Roxas Boulevard, along the Coastal Road and to Cavite. The woman was already crying and wanted to be brought home. Tom imposed the condition that Nicole should first marry him. Nicole found this as, simply, a mission impossible. The crime committed in this case is grave coercion. But if after they drove to Cavite, the suitor placed the woman in a house and would not let her out until she agrees to marry him, the crime would be serious illegal detention. If the victim is a woman or a public officer, the detention is always serious no matter how short the period of detention is. Circumstances which make illegal detention serious (1) (2) (3) (4) (5) When the illegal detention lasted for three days, regardless of who the offended party is; When the offended party is a female, even if the detention lasted only for minutes; If the offended party is a minor or a public officer, no matter how long or how short the detention is; When threats to kill are made or serious physical injuries have been inflicted; and If it shall have been committed simulating public authority.
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Distinction between illegal detention and arbitrary detention Illegal detention is committed by a private person who kidnaps, detains, or otherwise deprives another of his liberty. Arbitrary detention is committed by a public officer who detains a person without legal grounds. The penalty for kidnapping is higher than for forcible abduction. This is wrong because if the offender knew about this, he would perform lascivious acts upon the woman and be charged only for forcible abduction instead of kidnapping or illegal detention. He thereby benefits from this absurdity, which arose when Congress amended Article 267, increasing the penalty thereof, without amending Article 342 on forcible abduction. Article 267 has been modified by Republic Act No. 7659 in the following respects: (1) (2) Illegal detention becomes serious when it shall have lasted for more than three days, instead of five days as originally provided; In paragraph 4, if the person kidnapped or detained was a minor and the offender was anyone of the parents, the latter has been expressly excluded from the provision. The liability of the parent is provided for in the last paragraph of Article 271; A paragraph was added to Article 267, which states: When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to torture, or dehumanizing acts, the maximum penalty shall be imposed. This amendment brings about a composite crime of kidnapping with homicide when it is the victim of the kidnapping who was killed, or dies as a consequence of the detention and, thus, only one penalty is imposed which is death. Article 48, on complex crimes, does not govern in this case. But Article 48 will govern if any other person is killed aside, because the provision specifically refers to victim. Accordingly, the rulings in cases of People v. Parulan, People v. Ging Sam, and other similar cases where the accused were convicted for the complex crimes of kidnapping with murder have become academic. In the composite crime of kidnapping with homicide, the term homicide is used in the generic sense and, thus, covers all forms of killing whether in the nature of murder or otherwise. It does not matter whether the purpose of the kidnapping was to kill the victim or not, as long as the victim was killed, or died as a consequence of the kidnapping or detention. There is no more separate crime of kidnapping and murder if the victim was kidnapped not for the purpose of killing her. If the victim was raped, this brings about the composite crime of kidnapping with rape. Being a composite crime, not a complex crime, the same is regarded as a single indivisible offense as in fact the law punishes such acts with only a single penalty. In a way, the amendment depreciated the seriousness of the rape because no matter how
(3)
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many times the victim was raped, there will only be one kidnapping with rape. This would not be the consequence if rape were a separate crime from kidnapping because each act of rape would be a distinct count. However for the crime to be kidnapping with rape, the offender should not have taken the victim with lewd designs as otherwise the crime would be forcible abduction; and if the victim was raped, the complex crime of forcible abduction with rape would be committed. If the taking was forcible abduction, and the woman was raped several times, there would only be one crime of forcible abduction with rape, and each of the other rapes would constitute distinct counts of rape. This was the ruling in the case of People v. Bacalso. In People v. Lactao, decided on October 29, 1993, the Supreme Court stressed that the crime is serious illegal detention if the purpose was to deprive the offended party of her liberty. And if in the course of the illegal detention, the offended party was raped, a separate crime of rape would be committed. This is so because there is no complex crime of serious illegal detention with rape since the illegal detention was not a necessary means to the commission of rape. In People v. Bernal, 131 SCRA 1, the appellants were held guilty of separate crimes of serious illegal detention and of multiple rapes. With the amendment by Republic Act No. 7659 making rape a qualifying circumstance in the crime of kidnapping and serious illegal detention, the jurisprudence is superseded to the effect that the rape should be a distinct crime. Article 48 on complex crimes may not apply when serious illegal detention and rape are committed by the same offender. The offender will be charged for the composite crime of serious illegal detention with rape as a single indivisible offense, regardless of the number of times that the victim was raped. Also, when the victim of the kidnapping and serious illegal detention was subjected to torture and sustained physical injuries, a composite crime of kidnapping with physical injuries is committed. What is the act? - kidnapping or detaining another or in any manner deprive him of his liberty a. Penalty of Reclusion Perpetua to death in the ff. Cases: 1. lasted for more than 3 days 2. committed by simulating public authority 3. serious physical injury inflicted upon the person detained 4. threats to kill have been made 5. victim is a minor except if the accused is the parent, female or public officer
b. When is death mandatory? 1. kidnap or detention is for the purpose of extorting ransom - in kidnapping with ransom we follow the Linberg doctrine in US. Case: X, a girl inside a taxi was approached by a robber. Robber asked for money or else I will kill you. Then he commanded the taxi taking the victim to a far away place. Is it kidnapping for ransom? A: No, because in kidnap for ransom, somebody must be kidnapped and money is
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demanded in exchange for the freedom of the person detained. 2. when the victim is killed or dies as a consequence. 3. If raped in the course of the kidnapping 4. If subjected to torture or dehumanizing acts
Jurisprudential Trend in KIDNAPPING

Thus, the applicable rule when the abduction and killing happened before December 31, 1993, as in the present case, is: a) Where the accused kidnapped the victim for the purpose of killing him, and he was in fact killed by his abductor, the crime committed was the complex crime of kidnapping with murder under Art. 48 of the Revised Penal Code, as kidnapping of the victim was a necessary means of committing the murder. b) Where the victim was kidnapped not for the purpose of killing him but was subsequently slain as an afterthought, two (2) separate crimes of kidnapping and murder were committed. o The trial court found that "the kidnapping was committed for the purpose of extorting ransom from the victim." 8 Similarly, the Court of Appeals noted that the obvious purpose of Libertador's abduction "was to coerce him to pay campaign money" 9 and that "the acts of killing and burying him were incidental and could have been used only as a means absolutely to compel the payment of the ransom money, and to avoid the discovery of the crime." 10 However, both courts found that the crime committed was the complex crime of kidnapping with murder. o We do not agree. We find that two separate crimes of kidnapping for ransom and murder were committed. o The present case falls under paragraph (b) of the foregoing rule that where the victim was kidnapped not for the purpose of killing him but was subsequently slain as an afterthought, two (2) separate crimes of kidnapping and murder were committed. o In the instant case, the records clearly show the elements of kidnapping, to wit: On March 26, 1992, appellant together with six (6) other armed men abducted Libertador for the purpose of extorting ransom money. They blocked Libertador's convoy and demanded payment of campaign fee. However, when the payment was not forthcoming right away, they hogtied Libertador and brought him to the mountains. On April 4, 1992, Libertador's relatives paid the ransom money of P50,000.00 to appellant's group at Brgy. Kurtingan, Sta. Cruz, Occidental Mindoro, but the latter reneged on its promise to release Libertador and killed him instead.
o
o
The penalty for kidnapping for the purpose of extorting ransom from the victim or any other person under Article 267 of the Revised Penal Code is death. However, the imposition of the death penalty has been prohibited in view of the passage of R.A. No. 9346, An Act Prohibiting the Imposition of the Death Penalty in the Philippines. Thus, in lieu thereof, the penalty of reclusion perpetua should be imposed on appellant, without eligibility for parole. On the other hand, as the crime was committed prior to the amendment of Article 248 of the Revised Penal Code by R.A. No. 7659, the appropriate penalty for Murder is reclusion temporal in its maximum period, to death. Under Article 64 (1) of the Revised Penal Code, in cases in which the penalties prescribed by law contain three periods, whether it be a single divisible penalty or composed of three different penalties, and there are neither aggravating nor mitigating circumstances that attended the commission of the crime, the penalty prescribed by law in its medium period shall be imposed, which in this case is reclusion perpetua. The Indeterminate Sentence Law is not applicable when the penalty actually imposed is reclusion perpetua.
The elements of the crime defined in Art. 267 above are: (a) the accused is a private individual; (b) he kidnaps or detains another, or in any manner deprives the latter of his liberty; (c) the act of detention or kidnapping must be illegal; and (d) in the commission of the offense, any of the four (4) circumstances mentioned above is present. o There is clear and overwhelming evidence that appellants, who are private individuals, forcibly dragged Marijoy and Jacqueline into the white car, beat them so they would not be able to resist, and held them captive against their will. In fact, Jacqueline attempted to free herself twice from the clutches of appellants the first was near the Ayala Center and the second was in Tan-awan, Carcar but both attempts failed. Marijoy was thrown to a deep ravine, resulting to her death. Jacqueline, on the other hand, has remained missing until now.
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Article 267 states that if the victim is killed or died as a consequence of the detention, or is raped or subjected to torture or dehumanizing acts, the maximum penalty shall be imposed. In People vs. Ramos, 131 citing Parulan vs. Rodas, 132 and People vs. Mercado, 133 we held that this provision given rise to a special complex crime, thus: "Prior to 31 December 1993, the date of effectivity of RA No. 7659, the rule was that where the kidnapped victim was subsequently killed by his abductor, the crime committed would either be a complex crime of kidnapping with murder under Art. 48 of the Revised Penal Code, or two (2) separate crimes of kidnapping and murder. Thus, where the accused kidnapped the victim for the purpose of killing him, and he was in fact killed by his abductor, the crime committed was the complex crime of kidnapping with murder under Art. 48 of the Revised Penal Code, as the kidnapping of the victim was a necessary means of committing the murder. On the other hand, where the victim was kidnapped not for the purpose of killing him but was subsequently slain as an afterthought, two (2) separate crimes of kidnapping and murder were committed. However, RA No. 7659 amended Art. 267 of The Revised Penal Code by adding thereto a last paragraph which provides 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. This amendment introduced in our criminal statutes the concept of 'special complex crime' of kidnapping with murder or homicide. It effectively eliminated the distinction drawn by the courts between those cases where the killing of the kidnapped victim was purposely sought by the accused, and those where the killing of the victim was not deliberately resorted to but was merely an afterthought. Consequently, the rule now is: Where the person kidnapped is killed in the course of the detention, regardless of whether the killing was purposely sought or was merely an afterthought, the kidnapping and murder or homicide can no longer be complexed under Art. 48, nor be treated as separate crimes, but shall be punished as a special complex crime under the last paragraph of Art. 267, as amended by RA No. 7659."
The prosecution was able to prove that Marijoy was pushed to a ravine and died. Both girls were raped by the gang. In committing the crimes, appellants subjected them to dehumanizing acts. Dehumanization means deprivation of human qualities, such as compassion. 134 From our review of the evidence presented, we found the following dehumanizing acts committed by appellants: (1) Marijoy and Jacqueline were handcuffed and their mouths mercilessly taped; (2) they were beaten to severe weakness during their detention; (3) Jacqueline was made to dance amidst the rough manners and lewd suggestions of the appellants; (4) she was taunted to run and forcibly dragged to the van; and (5) until now, Jacqueline remains missing which aggravates the Chiong family's pain. All told, considering that the victims were raped, that Marijoy was killed and that both victims were subjected to dehumanizing acts, the imposition of the death penalty on the appellants is in order.
o
o
Thus, we hold that all the appellants are guilty beyond reasonable doubt of the special complex crime of kidnapping and serious illegal detention with homicide and rape in Criminal Case No. CBU-45303 wherein Marijoy is the victim; and simple kidnapping and serious illegal detention in Criminal Case No. CBU-45304 wherein Jacqueline is the victim. A discussion on the nature of special complex crime is imperative. Where the law provides a single penalty for two or more component offenses, the resulting crime is called a special complex crime. Some of the special complex crimes under the Revised Penal Code are (1) robbery with homicide, 135 (2) robbery with rape, 136 (3) kidnapping with serious physical injuries, 137 (4) kidnapping with murder or homicide, 138 and (5) rape with homicide. 139 In a special complex crime, the prosecution must necessarily prove each of the component offenses with the same precision that would be necessary if they were made the subject of separate complaints. As earlier mentioned, R.A. No. 7659 amended Article 267 of the Revised Penal Code by adding thereto this provision: "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; and that this provision gives rise to a special complex crime. In the cases at bar, particularly Criminal Case No. CBU-45303, the Information specifically alleges that the victim Marijoy was raped "on the occasion and in connection" with her detention and was killed "subsequent thereto and on the occasion thereof." Considering that the prosecution was able to prove each of the component offenses, appellants should be convicted of the special complex crime of kidnapping and serious illegal detention with homicide and rape. It appearing from the overwhelming
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evidence of the prosecution that there is a "direct relation, and intimate connection" 140 between the kidnapping, killing and raping of Marijoy, rape cannot be considered merely as an aggravating circumstance but as a component offense forming part of the herein special complex crime. It bears reiterating that in People vs. Ramos, 141 and People vs. Mercado, 142 interpreting Article 267, we ruled that "where the person killed in the course of the detention, regardless of whether the killing was purposely sought or was merely an afterthought, the kidnapping and murder or homicide can no longer be complexed under Article 48, nor be treated as separate crimes, but shall be punished as a special complex crime under the last paragraph of Article 267." The same principle applies here. The kidnapping and serious illegal detention can no longer be complexed under Article 48, nor be treated as separate crime but shall be punished as a special complex crime. At any rate, the technical designation of the crime is of no consequence in the imposition of the penalty considering that kidnapping and serious illegal detention if complexed with either homicide or rape, still, the maximum penalty of death shall be imposed. MURDER VS. KIDNAPPING: In murder, the specific intent is to kill the victim. In kidnapping, the specific intent is to deprive the victim of his/her liberty. If there is no motive for the crime, the accused cannot be convicted for kidnapping. In kidnapping for ransom, the motive is ransom. Where accused kills the victim to avenge the death of a loved one, the motive is revenge. o In this case, it is evident on the fact of the Information that the specific intent of the malefactors in barging into the house of Modesto was to kill him and that he was seized precisely to kill him with the attendant modifying circumstances. The act of the malefactors of abducting Modesto was merely incidental to their primary purpose of killing him. Moreover, there is no specific allegation in the information that the primary intent of the malefactors was to deprive Modesto of his freedom or liberty and that killing him was merely incidental to kidnapping. Irrefragably then, the crime charged in the Information is Murder under Article 248 of the Revised Penal Code and not Kidnapping under Article 268 thereof. The elements of the crime of kidnapping and serious illegal detention are the following: (a) the accused is a private individual; (b) the accused kidnaps or detains another, or in any manner deprives the latter of his liberty; (c) the act of detention or kidnapping is illegal; and (d) in the commission of the offense, any of the four circumstances mentioned [in Art. 267, Revised Penal Code] is present. Moreover, the imposition of the death penalty is mandatory if the kidnapping was committed for the purpose of extorting ransom. In the instant case, appellants cannot escape the penalty of death, inasmuch as it was sufficiently alleged and indubitably proven that the kidnapping had been committed for the purpose of extorting ransom. In this case, Julie, a minor, was not locked up. However, she was seized and taken from her house through force and dragged to the mountain. Since then, she was restrained of her liberty by and kept under the control of accused-appellant and Bermas. She was prevented from going back home for a period of about six days. Patently then, accused-appellant is guilty of kidnapping and illegally detaining Julie. The crime was aggravated by dwelling because Julie was taken from their house by accused-appellant and Bermas. KIDNAPPING AND SERIOUS ILLEGAL DETENTION; ESSENCE AND ELEMENTS OF CRIME. The essence of the crime of kidnapping and serious illegal detention as defined and penalized in Article 267 of the Revised Penal Code is the actual deprivation of the victim's liberty coupled with proof beyond reasonable doubt of an intent of the accused to effect the same. It is thus essential that the following be established by the prosecution: (1) the offender is a private individual; (2) he kidnaps or detains another, or in any other manner deprives the latter of his liberty; (3) the act of detention or kidnapping must be illegal; and (4) in the commission of the offense, any of the four circumstances enumerated in Article 267 be present. But if the kidnapping was done for the purpose of extorting ransom, the fourth element is no longer necessary. o The prosecution has established beyond reasonable doubt that the kidnapping was committed "for the purpose of extorting ransom" from Alexander, as to warrant the mandatory imposition of the death penalty. For the crime to be committed, at least one overt act of demanding ransom must be made. It is not necessary that there be actual payment of ransom because what the law requires is merely the existence of the purpose of demanding ransom. In this case, the records are replete with instances when the kidnappers demanded ransom from the victim.
THAT THE CRIME WAS POLITICALLY MOTIVATED NOT SUBSTANTIATED. As regards the argument that the crime was politically motivated and that consequently, the charge should have been rebellion and not kidnapping, we find the same likewise to be without merit. As held in Office of the Provincial Prosecutor of Zamboanga Del Norte vs. CA, the political motivation for the crime must be shown in order to justify finding the crime committed to be rebellion. Merely because it is alleged that
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appellants were members of the Moro Islamic Liberation Front or of the Moro National Liberation Front does not necessarily mean that the crime of kidnapping was committed in furtherance of a rebellion. Here, the evidence adduced is insufficient for a finding that the crime committed was politically motivated. Neither have the appellants sufficiently proven their allegation that the present case was filed against them because they are rebel surrenderees. This court has invariably viewed the defense of frame-up with disfavor. Like the defense of alibi, it can be just as easily concocted. KIDNAPPING AND SERIOUS ILLEGAL DETENTION; ELEMENTS. For the accused to be convicted of kidnapping, the prosecution is burdened to prove beyond reasonable doubt all the elements of the crime, namely: (a) the offender is a private individual; (b) he kidnaps or detains another, or in any manner deprives the latter of his liberty; (c) the act of detention or kidnapping must be illegal; and (d) in the commission of the offense any of the following circumstances is present: (1) the kidnapping or detention lasts for more than three days; (2) it is committed by simulating public authority; (3) any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or (4) the person kidnapped or detained is a minor, female, or a public officer. If the victim of kidnapping and serious illegal detention is a minor, the duration of his detention is immaterial. Likewise, if the victim is kidnapped and it legally detained for the purpose of extorting ransom, the duration of his detention is immaterial. The essential elements for this crime is the deprivation of liberty of the victim under any of the above-mentioned circumstances coupled with indubitable proof of intent of the accused to effect the same. There must be a purposeful or knowing action by the accused to forcibly restrain the victim coupled with intent.
WHERE MOTIVE IS EXTORTION OF RANSOM. To warrant the imposition of the death penalty for the crime of kidnapping and serious illegal detention for ransom, the prosecution must prove beyond reasonable doubt the following: (a) intent on the part of the accused to deprive the victim of his liberty; (b) actual deprivation of the victim of his liberty; (c) motive of the accused, which is extortion of ransom from the victim or any other person. In kidnapping or serious illegal detention for ransom, the purpose of extorting ransom is a qualifying circumstance which must be alleged in the Information and proved by the prosecution as the crime itself by words and overt acts of the accused before, during and after the kidnapping and detention of the victim. Neither actual demand for nor actual payment of ransom is necessary for the crime to be committed. Although kidnapping for a certain purpose is a qualifying circumstance, the law does not require that the purpose be accomplished. Ransom employed in the law is so used in its common or ordinary sense: a sum of money or other thing of value, price, or consideration paid or demanded for redemption of a kidnapped or detained person, a payment that releases from captivity. It may include benefits not necessarily pecuniary which may accrue to the kidnapper or a third person as a condition for the release of the victim. SLIGHT ILLEGAL DETENTION; ELUCIDATED. The appellant is guilty of slight illegal detention under Article 268 of the Revised Penal Code. While the epigraph or title of the article mentions only slight illegal detention, kidnapping committed in connection with the lower offense of slight illegal detention is also covered by the article. The felony has the following essential elements: 1. That the offender is a private individual. 2. That he kidnaps or detains another, or in any other manner deprives him of his liberty. 3. That the act of kidnapping or detention is illegal. 4. That the crime is committed without the attendance of any of the circumstances enumerated in Art. 267. The crime of slight illegal detention is consummated upon the occurrence of all the elements thereof. "A day," in the last paragraph of Article 268 of the Revised Penal Code, should be understood as twenty-four hours, to be counted from the deprivation of the liberty of the victim until the cessation thereof. As Cuello Calon put it: "el plazo de los tres dias de veinte cuatro horas y desde el momento de la privacion de libertad si en que esta cesare. The rescue or escape of the victim within three days from his kidnapping and detention is not an exempting circumstance. The voluntary release by the offender of the victim within three days from his detention, without the offender having attained his purpose and before the institution of criminal proceedings against him for slight illegal detention, is not an exempting circumstance; it merely serves to reduce the penalty to prision mayor in its maximum and medium periods and a fine not exceeding P700. KIDNAPPING AND SLIGHT ILLEGAL DETENTION; BOTH COMMITTED IN CASE AT BAR. Although the appellant and his co-conspirators kidnapped George and Christopher on the same occasion and from the same situs, the appellant is guilty of two separate crimes: kidnapping under Article 267 of the Revised Penal Code, and slight illegal detention under Article 268 of the Revised Penal Code. The appellant and his co-conspirators were animated by two sets of separate criminal intents and criminal resolutions in kidnapping and illegally detaining the two victims. The criminal intent in kidnapping
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Christopher was separate from and independent of the criminal intent and resolution in kidnapping and detaining George for less than three days. In the mind and conscience of the appellant, he had committed two separate felonies; hence, should be meted two separate penalties for the said crimes: one for kidnapping under Article 267 of the Revised Penal Code and another for slight illegal detention under Article 268 of the same code. The felony of slight illegal detention is necessarily included in the crime of kidnapping for ransom; thus, the appellant may be convicted of the former crime under an Information for kidnapping for ransom. If the victim of kidnapping and serious illegal detention is a minor, the duration of his detention is immaterial. Likewise, if the victim is kidnapped and illegally detained for the purpose of extorting ransom, the duration of his detention is immaterial. The word "female" in paragraph 1(4) of Article 267 of the Revised Penal Code refers to the gender of the victim and not of the offender. The essence of the crime of kidnapping is the actual deprivation of the victim's liberty under any of the above-mentioned circumstances, coupled with indubitable proof of intent of the accused to effect the same. There must be a purposeful or knowing action by the accused to forcibly restrain the victim because taking coupled with intent completes the offense. Kidnapping which involves the detention of another is by its nature a continuing crime.
LACK OF CONSENT, PRESUMED WHERE THE VICTIM IS A FIVE-YEAR OLD MINOR. The victim's lack of consent is also a fundamental element of kidnapping. The involuntariness of the seizure and detention is the very essence of the crime. The general rule is that the prosecution is burdened to prove lack of consent on the part of the victim. However, where the victim is a minor especially if she is only five years old, lack of consent is presumed. She is incompetent to assent to seizure and illegal detention. In this case, Angela was merely five years old when she was kidnapped; thus incapable of giving consent. The consent of such child could place the appellants in no better position than if the act had been done against her will. The appellants cannot rely on Angela's initial willingness to go along with them to the restaurant.
o o
KIDNAPPING AND ILLEGAL DETENTION, NOT NEGATED BY THE FACT THAT THE VICTIM WAS TAKEN CARED OF. Although Angela was free to roam around in the "dirty house," to draw and to watch television during the entire period of her detention, and was regularly fed and bathed, the appellants are nevertheless guilty of kidnapping and illegally detaining the five-year-old child. As Judge McGill of the United States Court of Appeals said in United States v. McCabe, "to accept a child's desire for food, comfort as the type of will or consent contemplated in the context of kidnapping would render the concept meaningless." SERIOUS ILLEGAL DETENTION INCLUDES DEPRIVATION OF LIBERTY IN WHATEVER FORM AND FOR WHATEVER LENGTH OF TIME. In People v. Baldogo, this Court held that illegal serious detention under Article 267 of the Revised Penal Code as amended, includes not only the imprisonment of a person but also the deprivation of her liberty in whatever form and for whatever length of time. It includes a situation where the victim cannot go out of the place of confinement or detention or is restricted or impeded in his liberty to move. In this case, the door to the office of appellant Bisda was locked while Angela was detained therein. Even if she wanted to escape and go home, Angela, at her age, could not do so all by herself. During the period of her confinement, Angela was under the control of the appellants. The helpless child was waiting and hoping that she would be brought home, or that her parents would come and fetch her.
QUALIFYING CIRCUMSTANCES; EXTORTING RANSOM, ELUCIDATED. The purpose of the offender in extorting ransom is a qualifying circumstance which may be proved by his words and overt acts before, during and after the kidnapping and detention of the victim. Neither actual demand for nor actual payment of ransom is necessary for the crime to be committed. Ransom as employed in the law is so used in its common or ordinary sense; meaning, a sum of money or other thing of value, price, or consideration paid or demanded for redemption of a kidnapped or detained person, a payment that releases from captivity. It may include benefits not necessarily pecuniary which may accrue to the kidnapper as a condition for the release of the victim.
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VICTIM'S LACK OF CONSENT; PRESENT ALTHOUGH VICTIM INITIALLY CONSENTED TO GO WITH OFFENDER The victim's lack of consent is also a fundamental element of kidnapping and serious illegal detention. The involuntariness of the seizure and detention is the very essence of the crime. Although the victim may have inceptually consented to go with the offender to a place but the victim is thereafter prevented, with the use of force, from leaving the place where he was brought to with his consent and is detained against his will, the offender is still guilty of kidnapping and serious illegal detention. To exonerate the appellants for the simple reason that the victim had initially voluntarily agreed to go with one of them, is for the Court to reward them simply because they were ingenious enough to conceal their true motive from the victim until he was transported to another place.
KIDNAPPING AND SERIOUS ILLEGAL DETENTION FOR RANSOM; COMMITTED ALTHOUGH THERE WAS FAILURE TO RECEIVE RANSOM MONEY. The trial court correctly ruled that the appellants kidnapped and illegally detained the victim for the purpose of extorting ransom. Although the appellants failed to receive any ransom money for the victim's release, the crime of kidnapping and serious illegal detention for ransom was nonetheless committed. In People vs. Pagalasan, this Court ruled that to warrant the imposition of the death penalty for the crime of kidnapping and serious illegal detention for ransom, the prosecution must prove beyond reasonable doubt: (a) intent on the part of the accused to deprive the victim of his liberty; (b) actual deprivation of the victim of his liberty; and (c) motive of the accused, which is ransom for the victim or other person for the release of the victim. The purpose of the offender in extorting ransom may be proved by his words and overt acts before, during and after the kidnapping and detention of the victim. Neither actual demand for nor actual payment of ransom is necessary for the crime to be committed. Ransom, as employed in the law is so used in its common or ordinary sense; meaning, a sum of money or other thing of value, price, or consideration paid or demanded for redemption of a kidnapped or detained person, a payment that releases from captivity. It may include benefits not necessarily pecuniary which may accrue to the kidnapper as a condition for the release of the victim.
ACTUAL CONFINEMENT OR RESTRAINT OF THE VICTIM OR THE DEPRIVATION OF HIS LIBERTY IS THE PRIMARY ELEMENT OF CRIME. The primary element the crime is the actual confinement or restraint of the victim or the deprivation of his liberty. It is not necessary for the victim to be locked up or placed in an enclosure; it is sufficient for him to be detained or deprived of his liberty in any manner. o THE VICTIM WAS EFFECTIVELY RESTRAINED HIS LIBERTY; CASE AT BAR. In the present case, the testimony and sworn statement of the victim showed that he was effectively restrained of his liberty. He candidly testified that he went with the appellant in the belief that, with his mother's permission, they were going to get a baggage from the airport and bring it back to their house in Antipolo. When they proceeded instead to Pasig, the victim thought they would just be dropping by. When the appellant told him to stay in the house in Pasig while he and his friend, Isagani Maago, instead "got the baggage," the victim immediately asked permission to go home. To make him stay, the appellant assured him twice that they would return to Antipolo together with the baggage - first, on the night of January 30, 1994 and second, in the morning of January 31, 1994. In addition to being tricked by the appellant to stay in Bayani's house in Pasig, the victim was also so afraid of Bayani that he could not leave the place even if he wanted to. Bayani had a knife in his waist even while sleeping and even threatened the victim "ang pumapasok dito ay di na nakalabas ng buhay. " Bayani guarded him on the two occasions that appellant left, even accompanying the victim to urinate outside the house. Given all these circumstances, the victim was effectively restrained of his liberty the primary element of the offense of kidnapping and serious illegal detention. o HE VICTIM VOLUNTARILY WENT WITH THE ACCUSED ON FALSE INDUCEMENT; CASE AT BAR The appellant contends that there was no kidnapping because the victim voluntarily went with him. This contention holds no water. In the case of People vs. Santos, we ruled that the fact that the victim voluntarily went with the accused did not remove the element of deprivation of liberty because the victim went with the accused on a false inducement without which the victim would not have done so. Such is the situation in the present case the victim, a boy 16 years of age, would not have voluntarily left with the appellant if not for the false assurance that his mother had supposedly permitted him to accompany the appellant to the airport "to get the baggage" and bring it back to the victim's house. o CARRYING AWAY OF THE VICTIM CAN BE MADE FORCIBLY OR FRAUDULENTLY. It is important to emphasize that, in kidnapping, the victim need not be taken by the accused forcibly or against his will. What is controlling is the act of the accused in detaining the victim against his or her will after the offender is able to take the victim in his custody. In short, the carrying away of the victim in the crime of kidnapping and serious illegal detention can either be made forcibly or fraudulently.
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ESSENCE OF KIDNAPPING IS THE ACTUAL DEPRIVATION OF VICTIM'S LIBERTY COUPLED WITH INDUBITABLE PROOF OF INTENT OF ACCUSED TO EFFECT SUCH DEPRIVATION. [F]or kidnapping to take place, it is not necessary that the victim be placed in an enclosure; neither is it necessary that the detention be prolonged. However, the essence of kidnapping is the actual deprivation of the victim's liberty coupled with indubitable proof of the intent of the accused to effect such deprivation. A review of the narration of events by the prosecution itself shows that it was not able to establish actual confinement, detention or restraint of the child. The testimonies of its witnesses did not adequately prove that she had been forcefully transported, locked up or restrained. Likewise, the prosecution failed to establish that appellant had intended to deprive the girl of her liberty. Neither the testimony of her mother nor that of the barangay tanod showed what his intent was. Even less helpful was the testimony of the child herself. Certainly, we take note of her tender age, but this consideration cannot be used to supply her testimony with the details that would make appellant liable for the serious crime he was charged with. Absent any indubitable proof of his purposeful or knowing action to restrain her forcibly, there can be no taking coupled with intent to complete the commission of the offense. The primary element of the crime of kidnapping is actual confinement, detention and restraint of the victim. 8 There must be a showing of actual confinement or restriction of the victim, and that such deprivation was the intention of the malefactor. An accused is liable for kidnapping when the evidence adequately proves that he forcefully transported, locked up or restrained the victim. 9 There must exist indubitable proof that the actual intent of the malefactor was to deprive the victim of his liberty. The restraint of liberty must not arise merely as an incident to the commission of another offense that the offender primarily intended to commit. o In this case, actual restraint of the victim's liberty was evident from the moment appellant clubbed the victim on the neck. Appellant not only restricted Pati's freedom of movement, but appellant's blow also disabled the victim from resisting appellant's criminal design. This facilitated accused's capacity to carry physically Pati to an unknown place. Obviously, this constitutes forcible taking. The circumstances surrounding Pati's disappearance are indubitable proof of a purposeful or knowing action by appellant to forcibly take the victim. The actual taking indicated an intention to deprive the victim of his liberty. 11 In this case, appellant and his companions actually took Pati away. For kidnapping to exist, it is not necessary to place the victim in an enclosed place. It is sufficient to detain or deprive him in any manner of his liberty. KIDNAPPING FOR RANSOM; ACTUAL DEMAND FOR PAYMENT OF RANSOM, NOT REQUIRED; PAYMENT OF RANSOM AND RECOVERY OF VICTIM, NOT A DETERRENT FOR A FINDING OF CULPABILITY FOR THE CRIME; CASE AT BAR. We do not find any quantum of merit in the contention that kidnapping for ransom is committed only when the victim is released as a result of the payment of ransom. In People v. Salimbago we ruled No specific form of ransom is required to consummate the felony of kidnapping for ransom so long as it was intended as a bargaining chip in exchange for the victim's freedom. In municipal criminal law, ransom refers to the money, price or consideration paid or demanded for redemption of a captured person or persons, a payment that releases from captivity. Neither actual demand for nor actual payment of ransom is necessary for the crime to be committed. It is enough if the crime was committed "for the purpose of extorting ransom." Considering therefore, that the kidnapping was committed for such purpose, it is not necessary that one or any of the four circumstances be present. So the gist of the crime, as aptly stated in American jurisprudence from which was derived the crime of kidnapping for ransom, is "not the forcible or secret confinement, imprisonment, inveiglement, or kidnapping without lawful authority, but . . . the felonious act of so doing with intent to hold for a ransom the person so kidnapped, confined, imprisoned, inveigled, etc." It is obvious that once that intent is present, as in the case at bar, kidnapping for ransom is already committed. Any other interpretation of the role of ransom, particularly the one advanced by accused-appellants, is certainly absurd since it ironically penalizes rescue efforts of kidnap victims by law enforcers and in turn rewards kidnappers for the success of police efforts in such rescue operations. Moreover, our jurisprudence is replete with cases, e.g., People v. Chua Huy, People v. Ocampo and People v. Pingol, wherein botched ransom payments and effective recovery of the victim did not deter us from finding culpability for kidnapping for ransom. KIDNAPPING FOR RANSOM; ESSENCE OF CRIME: ESSENTIAL ELEMENTS, ESTABLISHED. Kidnapping for ransom, a continuing crime, defined and penalized under Article 267 of the Revised Penal Code, as amended by Republic Act 7659. The essence of the crime of kidnapping is the actual deprivation of the victim's liberty coupled with indubitable proof of the accused's intent to effect the same. And if the person detained is a child, the question that needs to be addressed is whether there is evidence to show that in taking the child, there was deprivation of the child's liberty and that it was the intention of the accused to deprive the mother of the child's custody. Undoubtedly, the elements of kidnapping for ransom have been sufficiently established by the prosecution considering the circumstances of the case. KIDNAPPING FOR RANSOM; COMMITTED BY DETAINING A PERSON TO COMPEL HIM TO PAY HIS DEBT. That the detention was, as so alleged by appellants, made to merely compel Saez to pay his debt, would not exonerate
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them from the crime of kidnapping. In People vs. Akiran, a similar invocation was turned down by the Supreme Court; it explained: "We state in passing that even if the purpose alleged by the defense be accepted that is, to compel the alleged payment under Article 267 of the Revised Penal Code, as amended by R.A. 1084 effective June 15, 1954, the offense is still kidnapping for ransom. Said amended last paragraph, which increased the penalty for kidnapping and serious illegal detention, provides: '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.' "This provision was derived from statutes of the United States, particularly the Lindbergh Law. Thus, American Jurisprudence thereon has persuasive application. 'Ransom' under American rulings, as used in statutes making kidnapping with intent to hold for ransom a capital offense, has been held to mean in its ordinary sense as 'money, price, or consideration paid or demanded for redemption of a captured person or persons, a payment that releases from captivity.' Since the accused in this case demanded and received money as a requisite for releasing a person from captivity, whatever other motive may have impelled them to do so, the money is still ransom under the law." WHETHER OR NOT THE RANSOM IS ACTUALLY PAID TO OR RECEIVED BY THE PERPETRATORS IS OF NO MOMENT. The corpus delicti in the crime of kidnapping for ransom is the fact that an individual has been in any manner deprived of his liberty for the purpose of extorting ransom from the victim or any other person. Whether or not the ransom is actually paid to or received by the perpetrators is of no moment. In People vs. Salimbago, the Court stressed: ". . . No specific form of ransom is required to consummate the felony of kidnapping for ransom so long as it was intended as a bargaining chip in exchange for the victim's freedom. In municipal criminal law, ransom refers to the money, price or consideration paid or demanded for redemption of a captured person or persons, a payment that releases from captivity. Neither actual demand for nor actual payment of ransom is necessary for the crime to be committed."
ARTICLE 268 SLIGHT ILLEGAL DETENTION A. Elements 1. That the offender is a private individual 2. That he kidnaps or detains another, or in any manner deprives the victim of his liberty 3. That the act of kidnapping or detention is illegal 4. That the crime is committed without the attendance of any of the circumstances enumerated in Art 267 penalty is lower if: 1. offended party is voluntarily released within 3 days 2. without attaining the purpose 3. before the institution of criminal action this felony is committed in the absence of circumstances enumerated in Art. 267
This felony is committed if any of the five circumstances in the commission of kidnapping or detention enumerated in Article 267 is not present. The penalty is lowered if (1) (2) (3) The offended party is voluntarily released within three days from the start of illegal detention; Without attaining the purpose; Before the institution of the criminal action.
One should know the nature of the illegal detention to know whether the voluntary release of the offended party will affect the criminal liability of the offender.
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When the offender voluntarily releases the offended party from detention within three days from the time the restraint of liberty began, as long as the offender has not accomplished his purposes, and the release was made before the criminal prosecution was commenced, this would serve to mitigate the criminal liability of the offender, provided that the kidnapping or illegal detention is not serious. If the illegal detention is serious, however, even if the offender voluntarily released the offended party, and such release was within three days from the time the detention began, even if the offender has not accomplished his purpose in detaining the offended party, and even if there is no criminal prosecution yet, such voluntary release will not mitigate the criminal liability of the offender. One who furnishes the place where the offended party is being held generally acts as an accomplice. But the criminal liability in connection with the kidnapping and serious illegal detention, as well as the slight illegal detention, is that of the principal and not of the accomplice. Before, in People v. Saliente, if the offended party subjected to serious illegal detention was voluntarily released by the accused in accordance with the provisions of Article 268 (3), the crime, which would have been serious illegal detention, became slight illegal detention only. The prevailing rule now is Asistio v. Judge, which provides that voluntary release will only mitigate criminal liability if crime was slight illegal detention. If serious, it has no effect. In kidnapping for ransom, voluntary release will not mitigate the crime. This is because, with the reimposition of the death penalty, this crime is penalized with the extreme penalty of death. What is ransom? It is the money, price or consideration paid or demanded for redemption of a captured person or persons, a payment that releases a person from captivity. The definition of ransom under the Lindberg law of the U.S. has been adopted in our jurisprudence in People v. Akiran, 18 SCRA 239, 242, such that when a creditor detains a debtor and releases the latter only upon the payment of the debt, such payment of the debt, which was made a condition for the release is ransom, under this article. In the case of People v. Roluna, decided March 29, 1994, witnesses saw a person being taken away with hands tied behind his back and was not heard from for six years. Supreme Court reversed the trial court ruling that the men accused were guilty of kidnapping with murder. The crime is only slight illegal detention under Article 268, aggravated by a band, since none of the circumstances in Article 267 has been proved beyond a reasonable doubt. The fact that the victim has been missing for six years raises a presumption of death, but from this disputable presumption of death, it should not be further presumed that the persons who were last seen with the absentee is responsible for his disappearance. ARTICLE 269 UNLAWFUL ARREST
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A. Elements 1. That the offender arrests or detains another person 2. That the purpose of the offender is to deliver him to the proper authorities 3. That the arrest or detention is not authorized by law or there is no reasonable grounds therefore the felony consists in making an arrest or detention without legal or reasonable ground for the purpose of delivering him to the proper authorities no period of detention
In Unlawful Arrest, there is detention or restraint of liberty but he arrested the person for the purpose of delivering him to the proper authorities. The detention is only incidental. This felony consists in making an arrest or detention without legal or reasonable ground for the purpose of delivering the offended party to the proper authorities. The offended party may also be detained but the crime is not illegal detention because the purpose is to prosecute the person arrested. The detention is only incidental; the primary criminal intention of the offender is to charge the offended party for a crime he did not actually commit. Generally, this crime is committed by incriminating innocent persons by the offenders planting evidence to justify the arrest a complex crime results, that is, unlawful arrest through incriminatory machinations under Article 363. If the arrest is made without a warrant and under circumstances not allowing a warrantless arrest, the crime would be unlawful arrest. If the person arrested is not delivered to the authorities, the private individual making the arrest incurs criminal liability for illegal detention under Article 267 or 268. If the offender is a public officer, the crime is arbitrary detention under Article 124. If the detention or arrest is for a legal ground, but the public officer delays delivery of the person arrested to the proper judicial authorities, then Article 125 will apply. Note that this felony may also be committed by public officers. Section Two. Kidnapping of minors ARTICLE 270 KIDNAPPING AND FAILURE TO RETURN A MINOR A. Elements 1. That the offender is entrusted with the custody of a minor person (whether over or under 7 years but less than 18 years of age, RA 6809) 2. That he deliberately fails to restore the said minor to the latters parents or guardians
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According to Judge Paredes, it is not kidnapping; crime is only failure to return a minor People v. Asturga X, an 8 yr. old girl was offered a ride home by the accused. But, the girl observed that they were going to a different place. The girl resented this and she was grabbed by the accused. A group of men saw them so that the girl was freed. What crime is committed? A. Crime is not kidnapping but coercion. There is no actual confinement or restraint in the liberty of the victim which is the primary element of kidnapping. The accused in forcibly dragging the girl cannot be said to be in actual confinement. In kidnapping there is locking upon deprivation of liberty for an appreciable length of time. People v. Ty The essential element of kidnapping & failure to return a minor is that the offender is entrusted with the custody of the minor but what is punished is not the kidnapping but rather the deliberate refusal of the custodian to give them back to their parents. 2 elements must concur; 1.entrusted with a minor 2. deliberate failure to restore said failure or refusal must also be persistent. So, to oblige the parents to seek the aid of the court to obtain custody People v. Rodona 8 men were seen tying the hands of the victim and they brought him to a sugarcane plantation. No gun firearms heard but the victim was never heard of for a number of years. SC ruled they are liable with kidnapping only not kidnapping with murder because murder was never proved. There was no corpus delicti. The presumption of death under the Civil Code is not applicable to criminal cases. As distinguished in the case of People v. Sasuka, people saw the accused maltreating the victim in the banca where he was actually killed. While in the Rodona case, there were no witnesses. People v. Villanueva Essence of offense of kidnapping is the actual deprivation of liberty coupled with the intent of the accused to effect it. People v. Gommon X, a girl, while driving his car, she was flagged down and brought somewhere in Laguna. He was shot but she survived. The crime committed are kidnapping with serious illegal detention, carnapping and theft. Theft because when the accused took the money, there was no more violence or intimidation applied. In kidnapping & SID of a minor, the length of time is not material. The penalty is reclusion perpetua to death. People v. Simon The crime committed is not kidnapping but carnapping because the original criminal design was to get the car. The deprivation of liberty was only incidental to the main purpose of carnapping. Q: What is Ransom?
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A: -In the case of People v. Puno (250 Scra 85), it is the money, price or consideration paid or demanded for the redemption of the captured person; a payment that releases captivity. -not immediate asking of money -it does not matter that ransom was paid because the law said for the purpose of ransom If any of the foregoing elements is absent, the kidnapping of the minor will then fall under Article 267. If the accused is any of the parents, Article 267 does not apply; Articles 270 and 271 apply. If the taking is with the consent of the parents, the crime in Article 270 is committed. In People v. Generosa, it was held that deliberate failure to return a minor under ones custody constitutes deprivation of liberty. Kidnapping and failure to return a minor is necessarily included in kidnapping and serious illegal detention of a minor under Article 267(4). In People v. Mendoza, where a minor child was taken by the accused without the knowledge and consent of his parents, it was held that the crime is kidnapping and serious illegal detention under Article 267, not kidnapping and failure to return a minor under Article 270. ARTICLE 271 INDUCING A MINOR TO ABANDON HIS HOME A. Elements 1. That the minor (under 18 years old) is living in the home of his parents or guardians or the person entrusted with his custody 2. That the offender induces said minor to abandon such home - Inducement must be actual, committed with criminal intent and determination by a will to cause damage - Not necessary that minor abandons his home (People v. Paalam, C.A. 54 O.G. 8267-8268, Bk II Reyes, p 487) Section Three - Slavery and Servitude ARTICLE 272 SLAVERY A. Elements 1. That the offender purchases, sells, (kidnaps), or detains a human being 2. That the purpose of the offender is to enslave such human being -according to Judge Paredes, misleading, forget the word kidnap. -1st paragraph purpose to enslave, 2nd paragraph to assign to immoral traffic. Absence of this element but the person is detained, crime is illegal detention.
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This is committed if anyone shall purchase, kidnap, or detain a human being for the purpose of enslaving him. The penalty is increased if the purpose of the offender is to assign the offended party to some immoral traffic. This is distinguished from illegal detention by the purpose. If the purpose of the kidnapping or detention is to enslave the offended party, slavery is committed. The crime is slavery if the offender is not engaged in the business of prostitution. If he is, the crime is white slave trade under Article 341. ARTICLE 273 EXPLOITATION OF CHILD LABOR (Superseded by Labor Code and RA 7610)
ARTICLE 274 SERVICES RENDERED UNDER COMPULSION IN PAYMENT OF DEBT A. Elements 1. That the offender compels a debtor to work for him, either as household servant or farm laborer - not violated if the debtor is compelled to be a secretary 2. That it is against the debtors will 3. That the purpose is to require or enforce the payment of a debt
Chapter Two CRIMES AGAINST SECURITY

Sec. One. Abandonment of helpless persons and exploitation of minors. ARTICLE 275 ABANDONMENT OF PERSONS IN DANGER and ABANDONMENT OF ONES VICTIM A. Acts Punishable 1. By failing to render assistance to any person whom the offender finds in an uninhabited place wounded or in danger of dying, when he can render such assistance without detriment to himself, unless such omission shall constitute a more serious offense a. The place is uninhabited b. The accused found there a person wounded OR in danger of dying c. The accused can render assistance without detriment to himself d. the accused fails to render assistance 2. By failing to help or to render assistance to another whom the offender has accidentally wounded or injured 3. By failing to deliver a child, under 7 years of age whom the offender has found abandoned, to the authorities or to his family, or by failing to take him to a safe place
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This is a crime of omission. 1. Ex. In the middle of the jungle, you did not assist him, liable in this article 2. Law states, accidental not intentionalbut liable with attempted homicide or murder Under the first act, the offender is liable only when he can render such assistance without detriment to himself, unless such omission shall constitute a more serious offense. Where the person is already wounded and already in danger of dying, there is an obligation to render assistance only if he is found in an uninhabited place. If the mortally wounded, dying person is found in a place not uninhabited in legal contemplation, abandonment will not bring about this crime. An uninhabited place is determined by possibility of person receiving assistance from another. Even if there are many houses around, the place may still be uninhabited if possibility of receiving assistance is remote. If what happened was an accident at first, there would be no liability pursuant to Article 12 (4) of the Civil Code damnum absque injuria. But if you abandon your victim, you will be liable under Article 275. Here, the character of the place is immaterial. As long as the victim was injured because of the accident caused by the offender, the offender would be liable for abandonment if he would not render assistance to the victim. ARTICLE 276 ABANDONING A MINOR A. Elements 1. That the offender has the custody of the child - not necessarily the legal or judicial guardian 2. That the child is under 7 years old 3. That he abandons such child 4. That he has no intent to kill the child when the latter is abandoned B. Qualifying Circumstances 1. Child dies as a result of abandonment 2. Life of minor in danger due to abandonment ARTICLE 277 ABANDONING OF MINOR BY PERSON ENTRUSTED WITH HIS CUSTODY; INDIFFERENCE OF PARENTS A. Elements 1. That the offender has charge of the rearing and education of a minor 2. That he delivers said minor to a public institution or to other persons 3. That the one who entrusted such child to the offender has not consented to such if absent, the proper authorities have not consented to it. B. Acts Punished 1. Delivering a minor to a public institution or to other persons without the required consent 2. Parent who neglect in not giving their children proper education which their station in life
act; or
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requires and financial condition permits -modified PD 603 & RA 7610 ARTICLE 278 EXPLOITATION OF MINORS Acts punished 1. 2. Causing any boy or girl under 16 years of age to perform any dangerous feat of balancing, physical strength or contortion, the offender being any person; Employing children under 16 years of age who are not the children or descendants of the offender in exhibitions of acrobat, gymnast, rope-walker, diver, or wild-animal tamer, the offender being an acrobat, etc., or circus manager or engaged in a similar calling; Employing any descendant under 12 years of age in dangerous exhibitions enumerated in the next preceding paragraph, the offender being engaged in any of the said callings; Delivering a child under 16 years of age gratuitously to any person following any of the callings enumerated in paragraph 2, or to any habitual vagrant or beggar, the offender being an ascendant, guardian, teacher or person entrusted in any capacity with the care of such child; and Inducing any child under 16 years of age to abandon the home of its ascendants, guardians, curators or teachers to follow any person engaged in any of the callings mentioned in paragraph 2 or to accompany any habitual vagrant or beggar, the offender being any person.
3.
4.
5.
The offender is engaged in a kind of business that would place the life or limb of the minor in danger, even though working for him is not against the will of the minor. Nature of the Business This involves circuses which generally attract children so they themselves may enjoy working there unaware of the danger to their own lives and limbs. Age Must be below 16 years. At this age, the minor is still growing. If the employer is an ascendant, the crime is not committed, unless the minor is less than 12 years old. Because if the employer is an ascendant, the law regards that he would look after the welfare and protection of the child; hence, the age is lowered to 12 years. Below that age, the crime is committed. But remember Republic Act No. 7610 (Special Protection of Children against Child Abuse, Exploitation and Discrimination Act). It applies to minors below 18 years old, not 16 years old as in the Revised Penal Code. As long as the employment is inimical even though there is no physical risk and detrimental to the childs interest against moral, intellectual, physical, and mental development of the minor the establishment will be closed.
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Article 278 has no application if minor is 16 years old and above. But the exploitation will be dealt with by Republic Act No. 7610. If the minor so employed would suffer some injuries as a result of a violation of Article 278, Article 279 provides that there would be additional criminal liability for the resulting felony. Illustration: The owner of a circus employed a child under 16 years of age to do a balancing act on the tightrope. The crime committed is exploitation of minors (unless the employer is the ascendant of the minor who is not below 12 years of age). If the child fell and suffered physical injuries while working, the employer shall be liable for said physical injuries in addition to his liability for exploitation of minors. - modified PD 603 & RA 7610 PD 603, Art 59, par 7 - - punishes the parent who improperly exploits the chills by using him, directly or indirectly, such as for purposes of begging and other acts which are inimical to the childs interest and welfare ARTICLE 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 ARTICLE 280 QUALIFIED TRESPASS TO DWELLING A. Elements 1. That the offender is a private person - if Public Officer or Employee, crime is Violation of Domicile 2. that enters the dwelling of another 3. That such entrance is against the latters will Distinctions between Art 280 Trespass to dwelling AND Art 128 Violation of Domicile - one way of committing Art 280, entering the dwelling against the latters will. While Violation of Domicile, there are 3 ways of committing . . . - it is Qualified Trespass to Dwelling if committed by violence or intimidation. Exception to the Rule (when not liable): 1. If the entrance to anothers dwelling is made for the purpose of preventing some serious harm to himself, the occupants of the dwelling or a third person,
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2. If the purpose is to render some service to humanity or justice, 3. If the place where entrance is made is a cafe, tavern, inn and other public houses, while the same are open. Dwelling defined means a building or structure devoted for rest and comfort as distinguished from places devoted to business, office, etc. - Entry must be against the will of the owner. It may be presumed or express prohibition of occupant. Lack of permission does not amount to prohibition. Generally, all members of the household is presumed to have authority to extend an invitation to the house. There must be opposition. There is implied prohibition if the offender entered in an ingress not intended for entry. - Prohibition must be prior to or at the time of the entrance. Violation or Intimidation may take place the violence immediately after the entrance. Suppose the offender enters the dwelling through the window & inflicted serious physical injury to the owner. What crime or crimes are committed? A: TRESPASS TO DWELLING AND SERIOUS PHYSICAL INJURIES Trespass may be committed by the owner of the dwelling..ex. landlord Two forms of trespass 1. Qualified trespass to dwelling This may be committed by any private person who shall enter the dwelling of another against the latters will. The house must be inhabited at the time of the trespass although the occupants are out. Or offender breaks in with force and violence (Article 280). Trespass to property - Offender enters the closed premises or fenced estate of another; such close premises or fenced estate is uninhabited; there is a manifest prohibition against entering such closed premises or fenced estate; and offender has not secured the permission of the owner or caretaker thereof (Article 281).
2.
(See also Presidential Decree No. 1227 regarding unlawful entry into any military base in the Philippines.) Dwelling This is the place that a person inhabits. It includes the dependencies which have interior communication with the house. It is not necessary that it be the permanent dwelling of the person. So, a persons room in a hotel may be considered a dwelling. It also includes a room where one resides as a boarder. If the purpose in entering the dwelling is not shown, trespass is committed. If the purpose is shown, it may be absorbed in the crime as in robbery with force upon things, the trespass yielding to the more serious crime. But if the purpose is not shown and while inside the dwelling he was found by the occupants, one of whom was injured by him, the crime committed will be trespass to dwelling and frustrated homicide, physical injuries, or if there was no injury, unjust vexation.
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If the entry is made by a way not intended for entry, that is presumed to be against the will of the occupant (example, entry through a window). It is not necessary that there be a breaking. Against the will -- This means that the entrance is, either expressly or impliedly, prohibited or the prohibition is presumed. Fraudulent entrance may constitute trespass. The prohibition to enter may be made at any time and not necessarily at the time of the entrance. To prove that an entry is against the will of the occupant, it is not necessary that the entry should be preceded by an express prohibition, provided that the opposition of the occupant is clearly established by the circumstances under which the entry is made, such as the existence of enmity or strained relations between the accused and the occupant. On violence, Cuello Calon opines that violence may be committed not only against persons but also against things. So, breaking the door or glass of a window or door constitutes acts of violence. Our Supreme Court followed this view in People v. Tayag. Violence or intimidation must, however, be anterior or coetaneous with the entrance and must not be posterior. But if the violence is employed immediately after the entrance without the consent of the owner of the house, trespass is committed. If there is also violence or intimidation, proof of prohibition to enter is no longer necessary. Distinction between qualified trespass to dwelling and violation of domicile Unlike qualified trespass to dwelling, violation of domicile may be committed only by a public officer or employee and the violation may consist of any of the three acts mentioned in Article 128 (1) entering the dwelling against the will of the owner without judicial order; (2) searching papers or other effects found in such dwelling without the previous consent of the owner thereof; and (3) refusing to leave the dwelling when so requested by the owner thereof, after having surreptitiously entered such dwelling. Cases when Article 280 does not apply: (1) (2) (3) When the purpose of the entrance is to prevent serious harm to himself, the occupant or third persons; When the purpose of the offender in entering is to render some service to humanity or justice; Anyone who shall enter cafes, taverns, inns and other public houses while they are open .
Pursuant to Section 6, Rule 113 of the Rules of Court, a person who believes that a crime has been committed against him has every right to go after the culprit and arrest him without any warrant even if in the process he enters the house of another against the latters will.
ARTICLE 281
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OTHER FORMS OF TRESPASS A. Elements 1. That the offender enters the closed premises or the fenced estate of another 2. That the entrance is made while either of them is uninhabited 3. That the prohibition to enter be manifest 4. That the trespasser has not secured the permission of the owner or the caretaker thereof - Crime is called Trespass to Property Section Three. Threats and coercion Threat v. Coercion 1. Threat usually effect not immediate & future while Coercion immediate. ARTICLE 282 GRAVE THREATS A. Acts Punishable 1. By threatening another with the infliction upon the person, honor or property of the latter or of his family of any wrong amounting to a crime AND demanding money or imposing any other condition, even though not unlawful, and said offender shall have attained his purpose. a. Offender threaten another with the infliction upon the person, honor or property of the latter or of his family of any wrong b. Such wrong amounts to a crime c. There is demand for money OR any other condition is imposed, even though not unlawful d. Offender attains his purpose 2. By making such threat without the offender attaining his purpose 3. By threatening another with the infliction upon the person, honor or property of the latter or of his family of any wrong amounting to a crime, the threat not subject to a condition. a. Offender threaten another with the infliction upon the person, honor or property of the latter or of his family of any wrong b. Such wrong amounts to a crime c. Threat is not subject to a condition
- offense qualified if threat was made in writing or through a midleman N.B. 1. 281 sub par 1coercion directed against the person of the offended party only Threat is a declaration of an intention or determination to injure another by the commission upon his person, honor, or property of the offended party or to his family Essence of crime of threat is intimidation and the act threatened must be wrong.
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Grave threat is committed even if the offended party is not present during the time the challenge was made. It is consummated as soon as it came to the knowledge of the victim. If the offender has other criminal intention and the threats were only incidental..it is absorbed by the graver crime. Ex. Robbery by pointing of gun. Threat is only a means to the main purpose which is robbery. Robbery - it is the immediate giving of money but if it is through phoneGrave threat is committed. That is the distinction. Threat is a declaration of an intention or determination to injure another by the commission upon his person, honor or property or upon that of his family of some wrong which may or may not amount to a crime: (1) (2) Grave threats when the wrong threatened to be inflicted amounts to a crime. The case falls under Article 282. Light threats if it does not amount to a crime. The case falls under Article 283.
But even if the harm intended is in the nature of a crime, if made orally and in the heat of anger and after the oral threat, the issuer of the threat did not pursue the act, the crime is only other light threats under Article 285. To constitute grave threats, the threats must refer to a future wrong and is committed by acts or through words of such efficiency to inspire terror or fear upon another. It is, therefore, characterized by moral pressure that produces disquietude or alarm. The greater perversity of the offender is manifested when the threats are made demanding money or imposing any condition, whether lawful or not, and the offender shall have attained his purpose. So the law imposes upon him the penalty next lower in degree than that prescribed for the crime threatened to be committed. But if the purpose is not attained, the penalty lower by two degrees is imposed. The maximum period of the penalty is imposed if the threats are made in writing or through a middleman as they manifest evident premeditation. Distinction between threat and coercion: The essence of coercion is violence or intimidation. There is no condition involved; hence, there is no futurity in the harm or wrong done. In threat, the wrong or harm done is future and conditional. In coercion, it is direct and personal. Distinction between threat and robbery: (1) (2) As to intimidation In robbery, the intimidation is actual and immediate; in threat, the intimidation is future and conditional. As to nature of intimidation In robbery, the intimidation is personal; in threats, it may be through an intermediary.
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(3) (4) (5)
As to subject matter Robbery refers to personal property; threat may refer to the person, honor or property. As to intent to gain In robbery, there is intent to gain; in threats, intent to gain is not an essential element. In robbery, the robber makes the danger involved in his threats directly imminent to the victim and the obtainment of his gain immediate, thereby also taking rights to his person by the opposition or resistance which the victim might offer; in threat, the danger to the victim is not instantly imminent nor the gain of the culprit immediate.
ARTICLE 283 LIGHT THREATS A. Elements 1. That the offender makes a threat to commit a wrong 2. That the wrong does not constitute a crime 3. That there is a demand for money or that other condition is imposed, even though not unlawful 4. That the offender has attained his purpose or, that he has not attained his purpose Light threats may amount to Blackmailing In order to convict a person of the crime of light threats, the harm threatened must not be in the nature of crime and there is a demand for money or any other condition is imposed, even though lawful.
Question & Answer Blackmailing constitutes what crime? It is a crime of light threat under Article 283 if there is no threat to publish any libelous or slanderous matter against the offended party. If there is such a threat to make a slanderous or libelous publication against the offended party, the crime will be one of libel, which is penalized under Article 356. For example, a person threatens to expose the affairs of married man if the latter does not give him money. There is intimidation done under a demand. The law imposes the penalty of bond for good behavior only in case of grave and light threats. If the offender can not post the bond, he will be banished by way of destierro to prevent him from carrying out his threat. ARTICLE 284 BOND FOR GOOD BEHAVIOR -dead law according to Judge Paredes -applicable only to light & grave threats Art 282 & 283
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- if he fails to give bail, he shall be sentenced to distierro ARTICLE 285 OTHER LIGHT THREATS A. Acts Punished 1. by threatening another with a weapon or draw such weapon in a quarrel, unless lawful self-defense. 2. By orally threatening another, in the heat of anger, with some harm constituting a crime, without persisting in the idea involved in his threat 3. By orally threatening to do another any harm not constituting a felony.
it be in
ARTICLE 286 GRAVE COERCION
Acts punished 1. 2. Preventing another, by means of violence, threats or intimidation, from doing something not prohibited by law; Compelling another, by means of violence, threats or intimidation, to do something against his will, whether it be right or wrong.
Elements 1. 2. 3. A person prevented another from doing something not prohibited by law, or that he compelled him to do something against his will; be it right or wrong; The prevention or compulsion be effected by violence, threats or intimidation; and The person that restrained the will and liberty of another had not the authority of law or the right to do so, or in other words, that the restraint shall not be made under authority of law or in the exercise of any lawful right.
Grave coercion arises only if the act which the offender prevented another to do is not prohibited by law or ordinance. If the act prohibited was illegal, he is not liable for grave coercion. If a person prohibits another to do an act because the act is a crime, even though some sort of violence or intimidation is employed, it would not give rise to grave coercion. It may only give rise to threat or physical injuries, if some injuries are inflicted. However, in case of grave coercion where the offended party is being compelled to do something against his will, whether it be wrong or not, the crime of grave coercion is committed if violence or intimidation is employed in order to compel him to do the act. No person shall take the law into his own hands. Illustration:
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Compelling the debtor to deliver some of his properties to pay a creditor will amount to coercion although the creditor may have a right to collect payment from the debtor, even if the obligation is long over due. The violence employed in grave coercion must be immediate, actual, or imminent. In the absence of actual or imminent force or violence, coercion is not committed. The essence of coercion is an attack on individual liberty. The physical violence is exerted to (1) prevent a person from doing something he wants to do; or (2) compel him to do something he does not want to do. Illustration: If a man compels another to show the contents of the latters pockets, and takes the wallet, this is robbery and not grave coercion. The intimidation is a means of committing robbery with violence or intimidation of persons. Violence is inherent in the crime of robbery with violence or intimidation upon persons and in usurpation of real properties because it is the means of committing the crime. Exception to the rule that physical violence must be exerted: where intimidation is so serious that it is not a threat anymore it approximates violence. In Lee v. CA, 201 SCAR 405, it was held that neither the crime of threats nor coercion is committed although the accused, a branch manager of a bank made the complainant sign a withdrawal slip for the amount needed to pay the spurious dollar check she had encashed, and also made her execute an affidavit regarding the return of the amount against her better sense and judgment. According to the court, the complainant may have acted reluctantly and with hesitation, but still, it was voluntary. It is different when a complainant refuses absolutely to act such an extent that she becomes a mere automaton and acts mechanically only, not of her own will. In this situation, the complainant ceases to exits as an independent personality and the person who employs force or intimidation is, in the eyes of the law, the one acting; while the hand of the complainant sign, the will that moves it is the hand of the offender. Robbery v. Grave Coercion In robbery, there is intent to gain. In Grave Coercion, in order to deliver the property without intent to gain. Give me your car but it was his car. Suppose there was a contract, gipauli through force...No intent to gain. . .so the crime committed is GC. When is it qualified? A: in violation of the right to suffrage or to compel another to perform a religious act or to prevent him from exercising such right -what is prevented must not be prohibited by law -GC must be made when the offender must be doing or is about to do the act to be prevented. If the act is already done when the violence was exerted, the crime is unjust vexation. Purpose of Grave Coercion:
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No person may take the law in his own hands. The first paragraph deals with light coercions wherein violence is employed by the offender who is a creditor in seizing anything belonging to his debtor for the purpose of applying the same to the payment of the debt. In the other light coercions or unjust vexation embraced in the second paragraph, violence is absent. In unjust vexation, any act committed without violence, but which unjustifiably annoys or vexes an innocent person amounts to light coercion. As a punishable act, unjust vexation should include any human conduct which, although not productive of some physical or material harm would, however, unjustifiably annoy or vex an innocent person. It is distinguished from grave coercion under the first paragraph by the absence of violence. Illustration: Persons stoning someone elses house. So long as stoning is not serious and it is intended to annoy, it is unjust vexation. It disturbs the peace of mind. The main purpose of the statute penalizing coercion and unjust vexation is precisely to enforce the principle that no person may take the law into his hands and that our government is one of laws, not of men. The essence of the crimes is the attack on individual liberty. ARTICLE 287 LIGHT COERCION A. Elements under Par. 1 1. That the offender must be a creditor 2. That he seizes anything belonging to his debtor 3. That the seizure of the thing be accomplished by means of violence or display of material force producing intimidation 4. That the purpose of the offender is to apply the same to the payment of the debt UNJUST VEXATION (Art 287, par 2) What is unjust vexation? Includes any human conduct which, although not productive of some physical or material harm would, however, unjustly annoy or vex an innocent person Unjust Vexation v. Act of Lasciviousness -if he fondles the breast of the girl. If the intention is not by lascivious conduct, it is UV. If there is lasciviousness, it is an act of lasciviousness but if the purpose is to humiliate it is slander by deed. ARTICLE 288
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OTHER SIMILAR COERCIONS (Compulsory purchase of merchandise and payment of wages by means of tokens) -modified by the LC Acts punished: 1. Forcing or compelling, directly or indirectly, or knowingly permitting the forcing or compelling of the laborer or employee of the offender to purchase merchandise of commodities of any kind from him; Elements: 1. 2. 3. Offender is any person, agent or officer of any association or corporation; He or such firm or corporation has employed laborers or employees; He forces or compels, directly or indirectly, or knowingly permits to be forced or compelled, any of his or its laborers or employees to purchase merchandise or commodities of any kind from him or from said firm or corporation.
2.
Paying the wages due his laborer or employee by means of tokens or object other than the legal tender currency of the Philippines, unless expressly requested by such laborer or employee. Elements: 1. Offender pays the wages due a laborer or employee employed by him by means of tokens or object;
1. Those tokens or objects are other than the legal tender currency of the Philippines; 3. Such employee or laborer does not expressly request that he be paid by means of tokens or objects.
ARTICLE 289 FORMATION, MAINTENANCE AND PROHIBITION OR COMBINATION OF CAPITAL OR LABOR THROUGH VIOLENCE OR THREATS Elements 1. Offender employs violence or threats, in such a degree as to compel or force the laborers or employers in the free and legal exercise of their industry or work; The purpose is to organize, maintain or prevent coalitions of capital or labor, strike of laborers or lockout of employers. -modified by LC
2.
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Chapter Three DISCOVERY AND REVELATION OF SECRETS

ARTICLE 290 DISCOVERING SECRETS THROUGH SEIZURE OR CORRESPONDENCE A. Elements 1. That the offender is a private individual or even a public officer not in the exercise of his official function 2. That he seizes the papers or letters of another 3. That the purpose is to discover the secrets of such another person 4. That the offender is informed of the contents of the papers or letters seized -You open a telegram -not necessary that secret is revealed. Penalty lower if he will not reveal -exception: not applicable to parents, guardians and spouses This is a crime against the security of ones papers and effects. The purpose must be to discover its effects. The act violates the privacy of communication. According to Ortega, it is not necessary that the offender should actually discover the contents of the letter. Reyes, citing People v. Singh, CA, 40 OG, Suppl. 5, 35, believes otherwise. The last paragraph of Article 290 expressly makes the provision of the first and second paragraph thereof inapplicable to parents, guardians, or persons entrusted with the custody of minors placed under their care or custody, and to the spouses with respect to the papers or letters of either of them. The teachers or other persons entrusted with the care and education of minors are included in the exceptions. In a case decided by the Supreme Court, a spouse who rummaged and found love letters of husband to mistress does not commit this crime, but the letters are inadmissible in evidence because of unreasonable search and seizure. The ruling held that the wife should have applied for a search warrant. Distinction from estafa, damage to property, and unjust vexation: If the act had been executed with intent of gain, it would be estafa; If, on the other hand, the purpose was not to defraud, but only to cause damage to anothers, it would merit the qualification of damage to property; If the intention was merely to cause vexation preventing another to do something which the law does not prohibit or compel him to execute what he does not want, the act should be considered as unjust vexation. Revelation of secrets discovered not an element of the crime but only increases the penalty.
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ARTICLE 291 REVEALING SECRETS WITH ABUSE OF OFFICE A. Elements 1. That the offender is a manager, employee or servant 2. That he learns the secrets of his principal or master in such capacity 3. That he reveals such secret -committed by private individual An employee, manager, or servant who came to know of the secret of his master or principal in such capacity and reveals the same shall also be liable regardless of whether or not the principal or master suffered damages. The essence of this crime is that the offender learned of the secret in the course of his employment. He is enjoying a confidential relation with the employer or master so he should respect the privacy of matters personal to the latter. If the matter pertains to the business of the employer or master, damage is necessary and the agent, employee or servant shall always be liable. Reason: no one has a right to the personal privacy of another.
ARTICLE 292 REVELATION OF INDUSTRIAL SECRETS Elements 1. 2. 3. 4. Offender is a person in charge, employee or workman of a manufacturing or industrial establishment; The manufacturing or industrial establishment has a secret of the industry which the offender has learned; Offender reveals such secrets; Prejudice is caused to the owner.
A business secret must not be known to other business entities or persons. It is a matter to be discovered, known and used by and must belong to one person or entity exclusively. One who merely copies their machines from those already existing and functioning cannot claim to have a business secret, much less, a discovery within the contemplation of Article 292. - take note manufacturing or industrial establishment
TITLE TEN
CRIMES AGAINST PROPERTY

1. 2. 3. Robbery with violence against or intimidation of persons (Art. 294); Attempted and frustrated robbery committed under certain circumstances (Art. Execution of deeds by means of violence or intimidation (Art. 298);
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297);
4. (Art. 299); 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29.
Robbery in an inhabited house or public building or edifice devoted to worship Robbery in an inhabited place or in a private building (Art. 302); Possession of picklocks or similar tools (Art. 304); Brigandage (Art. 306); Aiding and abetting a band of brigands (Art. 307); Theft (Art. 308); Qualified theft (Art. 310); Theft of the property of the National Library and National Museum (Art. 311); Occupation of real property or usurpation of real rights in property (Art. 312); Altering boundaries or landmarks (Art. 313); Fraudulent insolvency (Art. 314); Swindling (Art. 315); Other forms of swindling (Art. 316); Swindling a minor (Art. 317); Other deceits (Art. 318); Removal, sale or pledge of mortgaged property (Art. 319); Destructive arson (Art. 320); Other forms of arson (Art. 321); Arson of property of small value (Art. 323); Crimes involving destruction (Art. 324); Burning ones own property as means to commit arson (Art. 325); Setting fire to property exclusively owned by the offender (Art. 326); Malicious mischief (Art. 327); Special case of malicious mischief (Art. 328); Damage and obstruction to means of communication (Art. 330); Destroying or damaging statues, public monuments or paintings (Art. 331).
Chapter One ROBBERY IN GENERAL

ARTICLE 293 WHO ARE GUILTY OF ROBBERY Robbery - This is the taking or personal property belonging to another, with intent to gain, by means of violence against, or intimidation of any person, or using force upon anything. A. Elements 1. Personal property (even if it was taken from a person who is not the owner of the property) 2. Belonging to another 3. Unlawful taking of that property (asportacion) 4. With intent to gain (animus lucrandi) - intent to gain is presumed juris tantum the moment there is asportacion. - mere intent is sufficient even if no actual gain resulted - if no intent to gain, the crime may be coercion 5. Violence against or intimidation of any person OR force upon things Note: In prosecuting the crime of robbery, the stolen product need not be produced.
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Distinctions: Grave coercion There is no animus lucrandi or no intent to gain Robbery There is animus lucrandi (or intent to gain); (so also with usurpation of property, there is intent to gain)
* In unjust vexation, there is no attempted or frustrated unjust vexation. This is a very minor crime. Q: Define robbery? A: it is the taking of personal property belonging to another with intent to gain, by means of VIOLENCE AGAINST, INTIMIDATION of any person; or using FORCE UPON ANYTHING.
Illustration: Mr. A confronted and forced Mr. B and said give me the wrist watch because that is mine, it belongs to me but it turned out later that it wasnt Mr. As wrist watch, it truly belonged to the latter so there is no crime of robbery because there is no intent to gain. Here, there is GOOD FAITH. But where the claim of ownership is patently a mere ploy or was made in bad faith, animus lucrandi is present.
Q: What is the meaning of to appropriate? A: In Spanish, it means appoteramiento. It means to deprive the lawful owner of the thing.
The personal property may be taken from the owner, or a mere possessor or even a thief. Therefore, if a robber or a thief is robbed, the crime is robbery.
Q: When is violence employed in robbery? A: it must be employed at any time before the asportation (the taking of the personal property) is complete. The same is true with robbery with the use of force upon things.
Illustration: Suppose I picked his pocket and got his wallet, the victim noticed so he gave chased, I punched him, is this robbery? NO, not robbery because violence was inflicted or was employed after the asportation was completed.
***In article 294 (robbery with violence against or intimidation of persons), value of the property is immaterial. But with article 299 ( robbery with the use of force upon things) the value of the property taken is material as it is the basis for the imposition of the penalty Q: When is TAKING complete? A: From the moment the offender gains possession of the thing.
o o
In Robbery with violence against or intimidation of persons, even if the culprit does not have the opportunity to dispose the thing, taking is complete BUT in force upon things, thing must be taken out of the building to consummate the crime.
Section One. Robbery with violence or intimidation of persons.
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ARTICLE 294 ROBBERY WITH VIOLENCE AGAINST OR INTIMIDATION OF PERSONS
o
1.
Violence or intimidation upon persons may result in death or mutilation or rape or serious physical injuries.
ACTS PUNISHED:
When by reason OR on occasion of the robbery (taking of personal property belonging to another with intent to gain), the crime of homicide is committed;
o o This is punishable with RECLUSION PERPETUA TO DEATH. The crime is called ROBBERY WITH HOMICIDE. If death results or even accompanies a robbery, the crime will be robbery with homicide PROVIDED that the robbery is consummated. Illustrations:
1. HOMICIDE BY REASON OF ROBBERY Before Taking In order to eliminate opposition the robbers killed the guard and entered the building by smashing the window. Here, in robbery with homicide the killing was done first before the taking of the property. After Taking The robbers entered the house through violence and intimidation of persons or property, when they were about to escape through the back door, they were chased by the owner whom they shot and was killed, that is robbery with homicide-to eliminate opposition. 2. HOMICIDE ON THE OCCASION OF ROBBERY A. The robbers entered the house; the owner was hiding in the attic. The robbers fired warning shots in the ceiling, which killed the owner hiding thereat. This is robbery with homicide. The Supreme Court held that it is immaterial that death would supervene by mere accident as long as homicide was produced by reason or on occasion of the robbery. (Pp V Mangulabnan, 99 Phil 992) B. When the robbers entered the house the occupant wanted to shout but the robber put or stuffed the mouth with pandesal causing the suffocation and death of the owner, the crime is robbery with homicide.
NOTA BENE: Q: If by reason or on the occasion of robbery, two persons died, what is the crime committed? A: the crime is robbery with homicide, NOT robbery with double homicide. The latter designation is wrong.
People vs. Solis G.R. Nos. 78732-33. February 14, 1990 It is the nature of the crime of robbery with homicide that the crimes of homicide, murder, or physical injuries irrespective of their numbers committed in the occasion of or by reason of robbery are merged in the composite crime of robbery with homicide. It is error therefore to treat the death of the victims as double homicide. The evidence on record fully sustains the trial court's finding that Joveniano, Cabug and Vidal are guilty beyond reasonable doubt of a special complex crime of robbery with homicide. It is the nature of this crime that the homicides or murders and
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physical injuries, irrespective of their numbers, committed on the occasion or by reason of the robbery are merged in the composite crime of "robbery with homicide." (People v. Pedroso, et al., L32997, July 30, 1982, 115 SCRA 599).
Q: If by reason or on the occasion of robbery ten persons died, what is the crime committed? A: robbery with homicide, not robbery with multiple homicide. The latter is also wrong.
People vs. Quinones G.R. No. 80042. March 28, 1990 The Court finds that the accused were incorrectly charged with robbery with multiple homicide and so were also incorrectly sentenced by the trial court. The reason is that there is no crime of robbery with multiple homicide under the Revised Penal Code. The charge should have been for robbery with homicide only regardless of the fact that three persons were killed in the commission of the robbery. In this special complex crime, the number of persons killed is immaterial and does not increase the penalty prescribed in Article 294 of the said Code. As was said by this Court in People vs. Madrid (88 Phil. 1), "the general concept of this crime does not limit the taking of human life to one single victim making the slaying of human being in excess of that number punishable as separate individual offense or offenses. All the homicides or murders are merged in the composite, integrated whole that is robbery with homicide so long as the killings were perpetrated by reason or on the occasion of the robbery."
Q: Suppose one robber killed one of the occupants, and raped another occupant, what is the crime committed? A: the crime is robbery with homicide, not robbery with homicide and rape. The latter is wrong. Reason: homicide is the greater offense than rape. Q: If the robbers killed one of the occupants, raped another, inflicted serious physical injuries to another one and less serious physical injuries to another, what is the crime committed? A: Robbery with homicide.
People vs. Alvarez G.R. No. 70446. January 31, 1989. PHYSICAL INJURIES AND KILLING MERGED THEREIN AS BOTH WERE PERPETRATED TO ELIMINATE OPPOSITION TO THE ROBBERY. Where all the elements of robbery, namely, intent to gain, unlawful taking of personal property belonging to another and violence against or intimidation of any person (Article 293, Revised Penal Code) have been duly proved in the instant case, the crime committed is robbery complexed with homicide and serious physical injuries. However, the physical injuries inflicted upon Evelyn Bacaresas as well as the killing of Severino Malapitan, Jr. should be merged in the composite, integrated whole, that is robbery with homicide, it being evident that the killing and the physical injuries were perpetrated with the sole end in view of eliminating opposition to the robbery or oppressing the evidence, or both. IF COMMITTED BY A BAND, OFFENSE IS DENOMINATED AS "ROBBERY WITH HOMICIDE" UNDER ARTICLE 294 (1) OF THE REVISED PENAL CODE; ELEMENT OF BAND, AN ORDINARY AGGRAVATING CIRCUMSTANCE; PENALTY. Under the prevailing jurisprudence, if robbery with homicide is committed by a band, the offense is denominated as "robbery with homicide" under Article 294 (1) of the Revised Penal Code with the element of band as an ordinary aggravating circumstance.
WARNING!!! In the past, the Supreme Court was consistent with its ruling for the past thirty years that if the robbers killed 3 or 4 or 5 victims, or there were multiple rapes the multiple killings will be considered aggravating circumstance so that the SC should impose the death penalty, especially if the rape was committed which was considered as ignominy which is an aggravating circumstance.
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But in the recent case of Pp v Gano, February 28, 2001, the Supreme Court held that the additional rapes/homicides committed on the occasion of robbery would not be considered as an aggravating circumstance and therefore will not increase the penalty because the enumeration under Art. 14 (aggravating circumstance) is exclusive.
People vs. Castanito Gano GR # 134373, February 28, 2001
Accused Gano killed 3 persons by reason or on the occasion of the robbery. The question that needs to be resolved is whether the multiplicity of homicides could be appreciated as an aggravating circumstance. For sometime, this ticklish issue has been the subject of conflicting views by this Court when it held in some cases that the additional rapes/homicides committed on the occasion of robbery would not increase the penalty, while in other cases it ruled that the multiplicity of rapes/ homicides committed could be appreciated as an aggravating circumstance. But in People v. Regala (G.R. No. 130508, 5 April 2000) this Court spoke with finality on the matter It should be noted that there is no law providing that the additional rape/s or homicide/s should be considered as aggravating circumstance. The enumeration of aggravating circumstances under Article 14 of the Revised Penal Code is exclusive as opposed to the enumeration in Article 13 of the same Code regarding mitigating circumstances where there is specific paragraph (paragraph 10) providing for analogous circumstances. It is true that the additional rapes (or killings in the case of multiple homicide on the occasion of the robbery) would result in an anomalous situation where from the standpoint of the gravity of the offense, robbery with one rape would be on the same level as robbery with multiple rapes. However, the remedy lies with the legislature. A penal law is liberally construed in favor of the offender and no person should be brought within its terms if he is not clearly made so by the statute. This case is singular in its barbarity and nauseating in the manner with which the accused, bolo in hand, butchered his preys. Notwithstanding the viciousness with which he perpetrated the offense, we are constrained to apply the principle laid down in People v. Regala, and accordingly, the two (2) other killings contrary to the ruling of the trial court, should not be appreciated as aggravating circumstances.
New rule in alleging aggravating circumstances pursuant to R110, RR on Crim Procedure.

Incidentally, we also examined the possibility of appreciating dwelling as a generic aggravating circumstance, but the attempt was again thwarted by a recent amendment to Secs. 8 and 9 of Rule 110 of the Revised Rules on Criminal Procedure, which took effect 1 December 2000 Sec. 8. Designation of the offense. - The complaint or information shall (1) state the designation of the offense given by the statute, (2) aver the acts or omissions constituting the offense, and (3) specify its qualifying AND aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. Pursuant to the aforequoted amended provisions, the Rules now require that the information or complaint allege not only the qualifying but the (generic) aggravating circumstances as well, otherwise, the same cannot be properly appreciated. Guided by the consecrated rule that when a penal statute, substantive and remedial or procedural, is favorable to the accused, the courts shall give it a retroactive application and so we must in this case as the Information does not allege dwelling as an aggravating circumstance.
Robbery with Homicide is NOT a complex crime as understood under Article 48, but a single indivisible crime. This is a special complex crime because the specific penalty is provided in the law.
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In Napolis v. CA, it was held that when violence or intimidation AND force upon things are both present in the robbery, the crime is complex under Article 48. (see No. 7 for full explanation) The term homicide is used in the generic sense, and the complex crime therein contemplated comprehends not only robbery with homicide in its restricted sense, but also with robbery with murder. o So if the person killed is less than 3 days old, it is not robbery with infanticide. The crime is robbery with homicide.
o
o
If treachery (or any of the qualifying circumstances) attended the commission of the crime, it is not robbery with murder BUT robbery with homicide. Although it is a crime against property and treachery is an aggravating circumstance that applies only to crimes against persons, if the killing in a robbery is committed with treachery, the treachery will be considered a generic aggravating circumstance because of the homicide. If the person killed is the father or mother of the killer, the crime is not robbery with parricide BUT robbery with homicide.
Illustration: The robbers enter the house. In entering through the window, one of the robbers stepped on a child less than three days old. The crime is not robbery with infanticide because there is no such crime. The word homicide as used in defining robbery with homicide is used in the generic sense. It refers to any kind of death.
It does not therefore matter if the crime of homicide is intentional or not. For as long as on the occasion of robbery a person dies, there is robbery with homicide.
Illustration: The robbers entered the house and shot one of the occupants who was pregnant and died. Also as a result the fetus was aborted. What crime was committed? A: ( Judge Paredes believed) there were two crimes committed: 1. Robbery with homicide 2. Abortion (abortion is not absorbed)
As long as there is only one robbery, regardless of the persons killed, you only have one crime of robbery with homicide. Note, however, that one robbery does not mean there is only one taking.
Illustration: Robbers decided to commit robbery in a house, which turned out to be a boarding house. Thus, there were different boarders who were offended parties in the robbery. There is only one count of robbery. If there were killings done to different boarders during the robbery being committed in a boarders quarter, do not consider that as separate counts of robbery with homicide because when robbers decide to commit robbery in a certain house, they are only impelled by one criminal intent to rob and there will only be one case of robbery. If there were homicide or death committed, that would only be part of a single robbery. In another case, a band of robbers entered a compound, which is actually a sugar mill. Within the compound, there were quarters of the laborers. They robbed each of the quarters. The Supreme Court held that there was only one count of robbery because when they decided and determined to rob the compound, they were only impelled by one criminal intent to rob.
There is no special complex crime of robbery in band and double homicide and serious, less serious or less serious physical injuries.
People vs. Mateo
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G.R. Nos. 53926-29. November 13, 1989 The trial court found the appellant guilty of the crime of Robbery in Band with Homicide. This is not correct. In the case of People vs. Pedroso, the Court said: ". . . There is no special complex crime of robbery in band with double homicide and or serious, less serious or slight physical injuries under the present Code, as amended by Republic Act No. 373. If robbery with homicide (or with the other crimes enumerated above) is committed by a band, the indictable offense would still be denominated as 'robbery with homicide' under Article 294(1), but the circumstance that it was committed by a band is not an element of the crime but is merely a generic aggravating circumstance which may be offset by mitigating circumstances. The homicides or murders and physical injuries, irrespective of their numbers, committed on the occasion or by reason of the robbery are merged in the composite crime of 'robbery with homicide.' . . .".
With more reason, therefore, if in a robbery, the offender took away property belonging to different owners, as long as the taking was done at one time, and in one place, impelled by the same criminal intent to gain, there would only be one count of robbery. In robbery with homicide as a single indivisible offense, it is immaterial who gets killed (even if the person killed is one of the robbers). Even though the killing may have resulted from negligence, you will still designate the crime as robbery with homicide.
Illustration: On the occasion of a robbery, one of the offenders placed his firearm on the table. While they were ransacking the place, one of the robbers bumped the table. As a result, the firearm fell on the floor and discharged. One of the robbers was the one killed. Even though the placing of the firearm on the table where there is no safety precaution taken may be considered as one of negligence or imprudence, you do not separate the homicide as one of the product of criminal negligence. It will still be robbery with homicide, whether the person killed is connected with the robbery or not. He need not also be in the place of the robbery. In one case, in the course of the struggle in a house where the robbery was being committed, the owner of the place tried to wrest the arm of the robber. A person several meters away was the one who got killed. The crime was held to be robbery with homicide.
Note that the person killed need not be one who is identified with the owner of the place where the robbery is committed or one who is a stranger to the robbers. It is enough that the homicide was committed by reason of the robbery or on the occasion thereof.
Illustration: There are two robbers who broke into a house and carried away some valuables. After they left such house these two robbers decided to cut or divide the loot already so that they can go of them. So while they are dividing the loot the other robber noticed that the one doing the division is trying to cheat him and so he immediately boxed him. Now this robber who was boxed then pulled out his gun and fired at the other one killing the latter. Would that bring about the crime of robbery with homicide? Yes. Even if the robbery was already consummated, the killing was still by reason of the robbery because they quarreled in dividing the loot that is the subject of the robbery.
In People v. Domingo, 184 SCRA 409, on the occasion of the robbery, the storeowner, a septuagenarian, suffered a stroke due to the extreme fear which directly caused his death when the robbers pointed their guns at him. It was held that the crime committed was robbery with homicide. It is immaterial that death supervened as a mere accident as long as the homicide was produced by reason or on the occasion of the robbery, because it is only the result which matters, without reference to the circumstances or causes or persons intervening in the commission of the crime which must be considered.
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Remember also that intent to rob must be proved. But there must be an allegation as to the robbery not only as to the intention to rob. If the motive is to kill and the taking is committed thereafter, the crimes committed are homicide and theft. If the primordial intent of the offender is to kill and not to rob but after the killing of the victims a robbery was committed, then there are will be two separate crimes.
Illustration: If a person had an enemy and killed him and after killing him, saw that he had a beautiful ring and took this, the crime would be not robbery with homicide because the primary criminal intent is to kill. So, there will be two crimes: one for the killing and one for the taking of the property after the victim was killed. Now this would bring about the crime of theft and it could not be robbery anymore because the person is already dead.
For robbery with homicide to exist, homicide must be committed by reason or on the occasion of the robbery, that is, the homicide must be committed in the course or because of the robbery. Robbery and homicide are separate offenses when the homicide is not committed on the occasion or by reason of the robbery. Where the victims were killed, not for the purpose of committing robbery, and the idea of taking the money and other personal property of the victims was conceived by the culprits only after the killing, it was held in People v. Domingo, 184 SCRA 409, that the culprits committed two separate crimes of homicide or murder (qualified by abuse of superior strength) AND theft. The victims were killed first then their money was taken the money from their dead bodies. This is robbery with homicide. It is important here that the intent to commit robbery must precede the taking of human life in robbery with homicide. The offender must have the intent to take personal property before the killing. It must be conclusively shown that the homicide was committed for the purpose of robbing the victim. In People v. Hernandez, appellants had not thought of robbery prior to the killing. The thought of taking the victims wristwatch was conceived only after the killing and throwing of the victim in the canal. Appellants were convicted of two separate crimes of homicide and theft as there is absent direct relation and intimate connection between the robbery and the killing. The killing must be directly connected with the robbery.
Illustration: Robbers has already robbed the house, they left the house already, but after they were a few meters away, they realized that they did not lock the door, so they went back, they met the guard, shot and killed the guard, the crime is robbery and homicide, not robbery with homicide because the killing was no longer directly connected with the robbery. Illustration: If the robbers detained the occupants in the house, and when the robbers left they locked the door and secured it, there is no robbery with serious illegal detention. It is simply robbery.
Side comment of Judge Paredes: o In recent cases in carnapping (2001), it was usually carnapping with homicide. But now it is simply carnapping. The penalty is mandatory death penalty.
In kidnapping, if death resulted or rape is committed, the crime is kidnapping (Chiong Case).
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There exist no offense such as robbery with homicide and frustrated homicide. Any other act producing a result short of death is homicide assuming that [another] death occurred at the same time. The crime is simply robbery with homicide. In Robbery with Homicide, both crimes or robbery and homicide should be consummated.
o o
If robbery is consummated but the homicide was only attempted or frustrated, there will be two separate crimes. But if homicide was consummated but robbery was attempted or frustrated, there will still be a special complex crime of = attempted robbery with homicide, or frustrated robbery with homicide but it will not be governed by article 294 but by article 297.
2. When the robbery is accompanied by rape OR intentional mutilation OR arson;

On robbery with rape This is another form of violence or intimidation upon person. The rape accompanies the robbery. In this case where rape and not homicide is committed, there is only a crime of robbery with rape if both the robbery and the rape are consummated. If during the robbery, attempted rape were committed, the crimes would be separate, that is, one for robbery AND one for the attempted rape. The rape committed on the occasion of the robbery is not considered a private crime because the crime is robbery, which is a crime against property. So, even though the robber may have married the woman raped, the crime remains robbery with rape. The rape is not erased. This is because the crime is against property which is a single indivisible offense. If the woman, who was raped on the occasion of the robbery, pardoned the rapist who is one of the robbers, that would not erase the crime of rape. The offender would still be prosecuted for the crime of robbery with rape, as long as the rape is consummated. If the original design is to commit rape, but the accused after committing rape also committed robbery, meaning there was violence or intimidation, the criminal acts should be viewed was 2 distinct offenses-rape and robbery.
Illustration: Suppose there was robbery committed and the housemaid was rape. But because the robber is handsome, the maid acceded that the robber to marry her. The effect is that there will be no rape because the marriage extinguishes the crime of rape. How about the crime of robbery with rape, as in this case? The owner of the property taken pursued the criminal case. Will it be robbery only or robbery with rape? A: It should be robbery with rape because it is single and indivisible crime. The primordial intent must be to rob.
But if the rape is attempted, since it will be a separate charge and the offended woman pardoned the offender-- that would bring about a bar to the prosecution of the attempted rape. If the offender married the offended woman, that would extinguish the criminal liability because the rape is the subject of a separate prosecution. The intention must be to commit robbery and even if the rape is committed before the robbery, robbery with rape is committed. BUT if the accused tried to rape the offended party and
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because of resistance, he failed to consummate the act, and then he snatched the vanity case from her hands when she ran away, two crimes are committed: attempted rape AND theft. There is no complex crime under Article 48 because a single act is not committed and attempted rape is not a means necessary to commit theft and vice-versa. The Revised Penal Code does not differentiate whether rape was committed before, during or after the robbery. It is enough that the robbery accompanied the rape. Robbery must not be a mere accident or afterthought. In People v. Flores, 195 SCRA 295, although the offenders plan was to get the victims money, rape her and kill her, but in the actual execution of the crime, the thoughts of depriving the victim of her valuables was relegated to the background and the offenders prurient desires surfaced. They persisted in satisfying their lust. They would have forgotten about their intent to rob if not for the accidental touching of the victims ring and wristwatch. The taking of the victims valuables turned out to be an afterthought. It was held that two distinct crimes were committed: rape with homicide and theft. In People v. Dinola, 183 SCRA 493, it was held that if the original criminal design of the accused was to commit rape and after committing the rape, the accused committed robbery because the opportunity presented itself, two distinct crimes - rape and robbery were committed not robbery with rape. In the latter, the criminal intent to gain must precede the intent to rape. On robbery with arson Another innovation of Republic Act No. 7659 is the composite crime of robbery with arson if arson is committed by reason of or on occasion of the robbery. The composite crime would only be committed if the primordial intent of the offender is to commit robber and there is no killing, rape, or intentional mutilation committed by the offender during the robbery. Otherwise, the crime would be robbery with homicide, or robbery with rape, or robbery with intentional mutilation, in that order, and the arson would only be an aggravating circumstance. It is essential that robbery precedes the arson, as in the case of rape and intentional mutilation, because the amendment included arson among the rape and intentional mutilation which have accompanied the robbery. Moreover, it should be noted that arson has been made a component only of robbery with violence against or intimidation of persons in said Article 294, but not of robbery by the use of force upon things in Articles 299 and 302. So, if the robbery was by the use of force upon things and therewith arson was committed, two distinct crimes are committed.
3. When by reason of on occasion of such robbery, any of the physical injuries resulting in insanity, imbecility, impotency or blindness is inflicted; (Par 1, Art 263) 4. When by reason or on occasion of robbery, any of the physical injuries resulting in the loss of the use of speech or the power to hear or to smell, or the loss of an eye, a hand, a foot, an arm, or a leg or the loss of the use of any such member or incapacity for the work in which the injured person is theretofore habitually engaged is inflicted; (Par 2, Art 263) 5. If the violence or intimidation employed in the commission of the robbery is carried to a degree unnecessary for the commission of the crime; 6. When in the course of its execution, the offender shall have inflicted upon any person not responsible for the commission of the robbery any of the physical injuries in consequence of which the person injured becomes
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deformed or loses any other member of his body or loses the sue thereof or becomes ill or incapacitated for the performance of the work in which he is habitually engaged for more than 90 days OR the person injured becomes ill or incapacitated for labor for more than 30 days; (Par 3 & 4, Art 263)
This is only true if there is no homicide, because if in robbery there is homicide and physical injuries under subdivision 1, the crime is robbery with homicide. The only crime that can replace other lesser crimes is homicide. On robbery with physical injuries To be considered as such, the physical injuries must always be serious. If the physical injuries are only less serious or slight, they are absorbed in the robbery. The crime becomes merely robbery. But if the less serious physical injuries were committed after the robbery was already consummated, there would be a separate charge for the less serious physical injuries. It will only be absorbed in the robbery if it was inflicted in the course of the execution of the robbery. The same is true in the case of slight physical injuries.
Illustration: After the robbery had been committed and the robbers were already fleeing from the house where the robbery was committed, the owner of the house chased them and the robbers fought back. If only less serious physical injuries were inflicted, there will be separate crimes: one for robbery and one for less serious physical injuries.
But if after the robbery was committed and the robbers were already fleeing from the house where the robbery was committed, the owner or members of the family of the owner chased them, and they fought back and somebody was killed, the crime would still be robbery with homicide. But if serious physical injuries were inflicted and the serious physical injuries rendered the victim impotent or insane or the victim lost the use of any of his senses or lost a part of his body, the crime would still be robbery with serious physical injuries. The physical injuries (serious) should not be separated regardless of whether they retorted in the course of the commission of the robbery or even after the robbery was consummated. In Article 299, it is only when the physical injuries resulted in the deformity or incapacitated the offended party from labor for more than 30 days that the law requires such physical injuries to have been inflicted in the course of the execution of the robbery, and only upon persons who are not responsible in the commission of the robbery. But if the physical injuries inflicted are those falling under subdivision 1 and 2 of Article 263, even though the physical injuries were inflicted upon one of the robbers themselves, and even though it had been inflicted after the robbery was already consummated, the crime will still be robbery with serious physical injuries. There will only be one count of accusation.
Illustration: After the robbers fled from the place where the robbery was committed, they decided to divide the spoils and in the course of the division of the spoils or the loot, they quarreled. They shot it out and one of the robbers was killed. The crime is still robbery with homicide even though one of the robbers was the one killed by one of them. If they quarreled and serious physical injuries rendered one of the robbers impotent, blind in both eyes, or got insane, or he lost the use of any of his senses, lost the use of any part of his body, the crime will still be robbery with serious physical injuries.
If the robbers quarreled over the loot and one of the robbers hacked the other robber causing a deformity in his face, the crime will only be robbery and a separate charge for the serious physical
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injuries because when it is a deformity that is caused, the law requires that the deformity must have been inflicted upon one who is not a participant in the robbery. Moreover, the physical injuries which gave rise to the deformity or which incapacitated the offended party from labor for more than 30 days, must have been inflicted in the course of the execution of the robbery or while the robbery was taking place. If it was inflicted when the thieves/robbers are already dividing the spoils, it cannot be considered as inflicted in the course of execution of the robbery and hence, it will not give rise to the crime of robbery with serious physical injuries. You only have one count of robbery and another count for the serious physical injuries inflicted. If, during or on the occasion or by reason of the robbery, a killing, rape or serious physical injuries took place, there will only be one crime of robbery with homicide because all of these killing, rape, serious physical injuries -- are contemplated by law as the violence or intimidation which characterizes the taking as on of robbery. You charge the offenders of robbery with homicide. Robbery with homicide, robbery with intentional mutilation and robbery with rape are not qualified by band or uninhabited place. These aggravating circumstances only qualify robbery with physical injuries under subdivision 2, 3, and 4 of Article 299. When it is robbery with homicide, the band or uninhabited place is only a generic aggravating circumstance. It will not qualify the crime to a higher degree of penalty. In People v. Salvilla, it was held that if in a robbery with serious physical injuries, the offenders herded the women and children into an office and detained them to compel the offended party to come out with the money, the crime of serious illegal detention was a necessary means to facilitate the robbery; thus, the complex crimes of robbery with serious physical injuries and serious illegal detention. But if the victims were detained because of the timely arrival of the police, such that the offenders had no choice but to detain the victims as hostages in exchange for their safe passage, the detention is absorbed by the crime of robbery and is not a separate crime. This was the ruling in People v. Astor.
7.
If the violence employed by the offender does not cause any of the serious physical injuries defined in Article 263, OR if the offender employs intimidation only.
If robbery with violence against or intimidation of persons concurs with robbery by the use of force upon things, how is the crime characterized? First View: (U.S. vs. Turla, 38 Phil. 346; People vs. Baluyot, 40 Phil. 89.) abandoned A: Robbery with violence against or intimidation of persons only because this is the graver offense. Second View: (Ortega Notes citing Napolis vs. CA, GR.L-28865, Feb 28, 1972) A: If on the occasion of the robbery with homicide, robbery with force upon things was also committed, you will not have only one robbery but you will have a complex crime of robbery with homicide AND robbery with force upon things. This is because robbery with violence or intimidation upon persons is a separate crime from robbery with force upon things.
NAPOLIS vs. CA and Pp G.R. No. L-28865. February 28, 1972 Upon mature deliberation, We find ourselves unable to share the foregoing view (first view). Indeed, one who, by breaking a wall, enters, with a deadly weapon, an inhabited house and steals therefrom valuable effects, without violence against or intimidation upon persons, is
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punishable under Art. 299 of the Revised Penal Code with reclusion temporal. Pursuant to the above view, adhered to in previous decisions, if, aside from performing said acts, the thief lays hand upon any person, without committing any of the crimes or inflicting any of the injuries mentioned in sub-paragraphs (1) to (4) of Art. 294 of the same Code, the imposable penalty under paragraph (5) thereof shall be much lighter. To our mind, this result and the process of reasoning that has brought it about, defy logic and reason. The argument to the effect that the violence against or intimidation of a person supplies the "controlling qualification," is far from sufficient to justify said result. We agree with the proposition that robbery with "violence or intimidation against the person is evidently graver than ordinary robbery committed by force upon things," but, precisely, for this reason, We cannot accept the conclusion deduced therefrom in the cases above cited reduction of the penalty for the latter offense owing to the concurrence of violence or intimidation which made it a more serious one. It is, to our mind, more plausible to believe that Art. 294 applies only where robbery with violence against or intimidation of person takes place without entering an inhabited house, under the conditions set forth in Art. 299 of the Revised Penal Code. We deem it more logical and reasonable to hold, as We do, when the elements of both provisions are present, that the crime is a complex one, calling for the imposition as provided in Art. 48 of said Code of the penalty for the most serious offense, in its maximum period. . . . In short, the doctrine adopted in U.S. v. De los Santos and applied in U.S. v. Manansala, U.S. v. Turla, People v. Baluyot, Manahan v. People, and People v. Sebastian, is hereby abandoned.
JURISPRUDENTIAL TREND IN ROBBERY (2000-2007)

ROBBERY WITH HOMICIDE; IT IS THE INTENT OF THE ACTOR TO ROB WHICH SUPPLIES THE CONNECTION BETWEEN THE HOMICIDE AND THE ROBBERY NECESSARY TO CONSTITUTE THE CRIME. A conviction for robbery with homicide requires certitude that the robbery is the main purpose and objective of the malefactor and the killing is merely incidental to the robbery. The animo lucrandi must proceed the killing. If the original design does not comprehend robbery, but robbery follows the homicide either as an afterthought or merely as an incident of the homicide, then the malefactor is guilty of two separate crimes, that of homicide or murder and robbery, and not of the special complex crime of robbery with homicide, a single and indivisible offense. It is the intent of the actor to rob which supplies the connection between the homicide and the robbery necessary to constitute the complex crime of robbery with homicide.
COMMITTED EVEN IF THE ORIGINAL INTENT WAS NOT TO ROB AND KILL THE VICTIM; CASE AT BAR. Robbery with homicide is committed even if the victim of the robbery is different from the victim of homicide, as long as the homicide is committed by reason or on the occasion of the robbery. It is not even necessary that the victim of the robbery is the very person the malefactor intended to rob. For the conviction of the special complex crime, the robbery itself must be proved as conclusively as any other element of the crime. In this case, the prosecution proved through the testimony of Maria Fe that the appellants threatened to kill her and her family and robbed her of her money and jewelry and Ronito and Leo's pieces of jewelry. . . . It may be true that the original intent of appellant Manuel was to borrow again money from Ronito and Maria Fe but later on conspired with Jose and robbed the couple of their money and pieces of jewelry, and on the occasion thereof, killed Ronito. Nonetheless, the appellants are guilty of robbery with homicide. In People v. Tidong, this Court held that the appellant was guilty of robbery with homicide even if his original intention was to demand for separation pay from his employer and ended up killing his employer in the process.
ROBBERY WITH HOMICIDE; ELUCIDATED. The elements of robbery with homicide are the following: (a) the taking of personal property with violence or intimidation against persons or with force upon things; (b) the property taken belongs to another; (c) the taking be done with animus lucrandi (intent to gain); and (d) on the occasion of the robbery or by reason thereof, homicide in its generic sense was committed.
The offense becomes a special complex crime of robbery with homicide under Article 294 (1) of the Revised Penal Code if the victim is killed on the occasion or by reason of the robbery. And when homicide takes place by reason or on the occasion of the robbery, all those who took part in the robbery shall be guilty of the special complex crime of robbery with homicide whether or not they actually
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participated in the killing, unless there is proof that they had endeavored to prevent the perpetration of the crime. ROBBERY WITH HOMICIDE; PRESENT IN CASE AT BAR. In this case, all the essential elements of robbery with homicide were established beyond reasonable doubt. Personal items belonging to Eduardo and Evelyn Cejar were taken at gunpoint by appellants and their companions. The armed group likewise forcibly took the money and firearms they found. Finally, during the heist, the barangay captain was ruthlessly shot to death.
COMMITTED EVEN IF THE VICTIM IS A PERSON IN AUTHORITY AS LONG AS ROBBERY IS THE MAIN PURPOSE OF THE CRIMINALS AND THE KILLING MERELY RESULTS BY REASON OR ON THE OCCASION OF THE ROBBERY; CASE AT BAR. There is no complex crime of "robbery with homicide and assault upon a person in authority." The law is clear that, if the victim is killed on the occasion or by reason of a robbery, the offense becomes a special complex crime of robbery with homicide defined and penalized under Article 294 (1) of the Revised Penal Code. Even if the victim, as in this case, was a barangay captain and therefore a person in authority under Article 152 of the Revised Penal Code, the crime committed by appellants would still be robbery with homicide. As long as robbery is the main purpose and objective of the criminals and the killing merely results by reason or on the occasion of the robbery, the indictable offense is robbery with homicide. The evidence of the prosecution was indubitable that the principal purpose of the appellants and their group was to steal the firearms kept inside the house of the barangay captain and to divest the residents thereof of their money and other belongings.
ROBBERY WITH HOMICIDE To sustain a conviction for this special complex crime, robbery must be proved conclusively as any other essential element of the crime. It is necessary for the prosecution to clearly establish that a robbery has actually taken place, and that, as a consequence or on the occasion of such robbery, homicide is committed. Where the evidence does not conclusively prove the robbery, the killing of the victim would be classified either as a simple homicide or murder, depending upon the absence or presence of any qualifying circumstance, and not the complex offense of robbery with homicide. o CASE AT BAR. There is nothing in the evidence on record that would show that the victim had a wristwatch and that accused-appellant took said watch on that fateful night, as alleged in the information. Not even accused-appellant's extrajudicial confession proves the robbery. Accusedappellant merely stated in his confession that he announced a hold-up and thereafter he and the victim grappled for the gun. As they struggled, accused-appellant squeezed the trigger, thus shooting the victim. Accused-appellant then hurriedly got off the taxicab, leaving his gun behind. There was no mention about the taking of the wristwatch. As the prosecution failed to prove the robbery, accusedappellant should only be convicted for homicide. ROBBERY WITH HOMICIDE; CASE AT BAR. In the case at bar, there is no proof that accused-appellant and "Johnny" organized themselves to commit highway robbery. The prosecution established only a single act of robbery against a particular person. This is not what is contemplated under P.D. 532, the objective of which is to deter and punish lawless elements who commit acts of depredation upon persons and properties of innocent and defenseless inhabitants who travel from one place to another, thereby disturbing the peace and tranquility of the nation and stunting the economic and social progress of the people. Consequently, accused-appellant should be held liable for the special complex crime of robbery with homicide. Under Article 294 of the Revised Penal Code, when homicide is committed by reason or on occasion of the robbery, the penalty to be imposed is reclusion perpetua to death. There being no modifying circumstance, accused-appellant shall suffer the penalty of reclusion perpetua, pursuant to Article 63 of the Revised Penal Code. KILLING MUST BE DIRECTLY CONNECTED WITH ROBBERY; THE TAKING OF PROPERTY SHOULD NOT BE MERELY AN AFTERTHOUGHT. In People v. Amania, the Court had occasion to rule that in robbery with homicide, the killing must have been directly connected with the robbery. It is necessary that there must have been an intent on the part of the offenders to commit robbery from the outset and, on occasion or by reason thereof a killing takes place. The original design must have been robbery, and the homicide, even if it precedes or is subsequent to the robbery, must have a direct relation to, or must be perpetrated with a view to consummate the robbery. The taking of the property should not be merely an afterthought which arose subsequent to the killing.
NOT COMMITTED WHERE TAKING OF PROPERTY WAS MERELY AN AFTERTHOUGHT WHICH AROSE SUBSEQUENT TO KILLING OF VICTIMS. In the present case, it does not appear that the primary purpose of accused appellant in accosting the two deceased was to rob the engine of the motorized
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banca. From all indications, accused-appellant, a CAFGU member, was primarily interested in taking the life of the two deceased whom he suspected of exacting quota from the Barangay captain, and the taking of the subject engine was merely an afterthought that arose subsequent to the killing of the victims. Clearly therefore, the criminal acts of accused appellant constitute not a complex crime of robbery with homicide, but three separate offenses: two crimes for the killing of the two deceased, and one for the taking of the Briggs and Straton engine of Jaime Israel. WHAT IS ESSENTIAL IN ROBBERY WITH HOMICIDE IS THAT THERE BE A DIRECT RELATION AND INTIMATE CONNECTION BETWEEN ROBBERY AND KILLING, WHETHER BOTH CRIMES BE COMMITTED AT THE SAME TIME. Robbery with homicide is a special complex crime against property. Homicide is incidental to the robbery which is the main purpose of the criminal. The phrase "by reason" covers homicide committed before or after the taking of personal property of another, as long as the motive of the offender in killing a person before the robbery is to deprive the victim of his personal property which is sought to be accomplished by eliminating an obstacle or opposition or in killing a person after the robbery to do away with a witness or to defend the possession of the stolen property. Thus, it matters not that the victim was killed prior to the taking of the personal properties of the victim. What is essential in robbery with homicide is that there be a direct relation and intimate connection between robbery and killing, whether both crimes be committed at the same time. ROBBERY WITH HOMICIDE; THE TRIAL COURT CORRECTLY CONVICTED APPELLANTS OF THE CRIME OF ROBBERY WITH HOMICIDE AND NOT FOR VIOLATION OF PRESIDENTIAL DECREE NO. 532 (HIGHWAY ROBBERY) WITH HOMICIDE AS CHARGED IN THE INFORMATION. The trial court correctly convicted accused-appellants of the crime of robbery with homicide and not for violation of Presidential Decree No. 532 (Highway Robbery) with homicide as charged in the information. It is noteworthy that the elements of robbery with homicide are clearly alleged in the information notwithstanding the erroneous caption. In People v. Versoza, the Court held that a conviction for highway robbery requires proof that several accused were organized for the purpose of committing highway robbery indiscriminately. Certainly, there was no such proof in the present case. Neither is there proof that accused-appellants previously attempted to commit similar robberies to show the "indiscriminate" perpetration thereof. Hence, their conviction for robbery with homicide should be affirmed.
CRIME OF ATTEMPTED HOMICIDE IS ABSORBED IN THE CRIME OF ROBBERY WITH HOMICIDE. The acquittal of accused-appellants in Criminal Case No. 4181-V-94, for attempted homicide is likewise in order. The attempt to take the life of SPO1 Leandro Santos is absorbed in the crime of robbery with homicide which is a special complex crime that remains fundamentally the same regardless of the number of homicides or injuries committed in connection with the robbery.
ROBBERY WITH HOMICIDE; ROBBERY MUST HAVE A DIRECT RELATION TO THE KILLING; CASE AT BAR. In robbery with homicide, it is imperative that the prosecution prove a direct relation between the robbery and the killing. It must convincingly show that robbery was the original criminal design of the culprit, and that homicide was perpetrated with a view to the consummation of the robbery, by reason or on occasion thereof. That appellant intended to rob the passengers of the JAC Liner bus is evident. The robbery was foiled, however, when SPO1 Rizaldy Merene decided to fight back. Were it not for the presence and the bravery of this police officer, appellant and his cohorts would have successfully consummated their original plan. In the gunfight that ensued between appellant and Merene, bus conductor Joselito Halum was killed. Clearly, his death occurred by reason or as an incident of the robbery. Even if it was merely incidental (he was caught in the crossfire), still, frustrated robbery with homicide was committed. With regard to the charge of frustrated homicide, appellant, in shooting Merene almost pointblank, had performed all the acts necessary to kill the latter, who survived because of timely medical intervention. Thus, appellant's conviction for frustrated robbery with homicide and frustrated homicide must be sustained. ROBBERY WITH RAPE; RAPE MAY BE COMMITTED BEFORE, DURING OR AFTER THE ROBBERY; ROBBERY; ELEMENTS. Coming now to Criminal Case No. 44262, the information charged appellant and his co-accused with robbery with rape. On record, the prosecution duly established that appellant committed both robbery and rape. When appellant forcibly entered the Cantillers' chicken coop and took their chickens, while his confederate Amburgo was threatening the Cantiller spouses, he committed the crime of robbery. The elements of the offense viz: (a) personal property belonging to another; (b) unlawful taking; (c) intent to gain; and (d) violence or intimidation were all present. Though robbery appears to have preceded the rape of Evelyn, it is enough that robbery shall have been accompanied by rape to be punished under the Revised Penal Code (as amended) for the Code does not differentiate whether the rape was committed before, during, or after the robbery. WHERE THE EVIDENCE DOES NOT CONCLUSIVELY PROVE THE ROBBERY, THE KILLING OF THE VICTIM WOULD ONLY BE A SIMPLE HOMICIDE OR MURDER. In People v. Suza, we ruled that "in order to sustain a conviction for
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robbery with homicide, it is necessary that the robbery itself be proven conclusively as any other essential element of a crime. In order for the crime of robbery with homicide to exist, it is necessary that it be clearly established that a robbery has actually taken place, and that, as a consequence of or on the occasion of such robbery, a homicide be committed. Where the evidence does not conclusively prove the robbery, the killing of the victim would, therefore, be classified either as a simple homicide or murder, depending upon the absence or presence of any qualifying circumstance, and not the complex offense of robbery with homicide." o NOT ESTABLISHED IN CASE AT BAR. In the case at bar, the trial court's conclusion that the killing of the deceased was done on occasion or by reason of robbery was based on the following circumstances: 1) that the victim's wallet containing a small amount of money was found beside his dead body and no longer in his pocket; 2) the presence of money in paper bills of different denominations amounting to a total of P1,040.00 scattered on the floor of the front seats, and on the ground beneath the doors of the taxicab; 3) the statement of accused-appellant immediately after his arrest that he shot the victim because the latter refused his demand for money, which statement is allegedly admissible as part of the res gestae. Based on applicable jurisprudence, we find that the trial court erred in finding accusedappellant guilty of the complex crime of robbery with homicide.
FRUSTRATED ROBBERY; INTENT TO GAIN; NOT ESTABLISHED IN CASE AT BAR. Absent accused-appellant's confession, only two pieces of circumstantial evidence remain to prove the crime of frustrated robbery, to wit: 1) that the victim's wallet containing a small amount of money was found beside his dead body and no longer in his pocket; and 2) the scattered money in paper bills of different denominations amounting to a total of P1,040.00. A combination of these circumstances, however, is not sufficient to establish intent to gain or animus lucrandi. That there was a struggle between the accusedappellant and the victim is not denied. Thus, the probability that the scattered money bills was caused by the scuffle between the two cannot be discounted. As to the cause thereof, the prosecution failed to substantiate their claim of an attempt to unlawfully take the deceased's money. There was no proof that the victim's wallet which was found beside him was taken out from his pocket by accused-appellant. Prosecution witness John Ballo, who saw accused-appellant come out of the victim's taxicab, never testified that accused-appellant robbed the victim. His declaration was that accused-appellant went out of the cab carrying a gun. Nowhere in his testimony did he say that he saw accused-appellant attempting to rob, or walking away with the money of the victim.
ROBBERY WITH HOMICIDE; IT IS ENOUGH THAT DEATH RESULTED DURING, OR BECAUSE OF, THE ROBBERY; CASE AT BAR. In order to determine the existence of the crime of robbery with homicide, it is enough that death results by reason or on the occasion of the robbery inasmuch as it is only the result obtained, without reference or distinction as to the circumstances, causes, modes, or persons intervening in the commission of the crime, that has to be taken into consideration. In other words, in the crime of robbery with homicide, it does not matter if the homicide preceded or occurred after the robbery. For what is essential is that there is a direct relation or intimate connection between the robbery and the killing, whether the latter be prior or subsequent to the former or whether both crimes be committed at the same time. The original criminal design of the culprit must be robbery and the homicide is perpetrated with a view to the consummation of the robbery, by reason or on the occasion of the robbery. Thus, in People v. Guiapar, it was held that the death of a guard resulting from the injury he sustained during the robbery qualified the offense to robbery with homicide. As long as homicide resulted during, or because of, the robbery, even if the killing is by mere accident, robbery with homicide is committed. In the case at bar, Arnold Bugayon testified that the victim Espina was initially stabbed in the thigh by one of the robbers because it appeared that he would fight to get back his money. In fact, after he was stabbed, Espina got off the jeepney to run after the hold-up men to recover his money. At that point, accused-appellant and his co-accused then stabbed Espina several times and struck him with a stone. In view of the foregoing circumstances, we agree with the trial court when it found that the homicide in the case at bar was committed by reason or on the occasion of the robbery. NATURE OF OFFENSE; NOT ALTERED BY THE NUMBER OF KILLINGS IN CONNECTION WITH THE ROBBERY. The crime committed is the special complex crime of robbery with homicide defined and penalized in Article 294 of the Revised Penal Code. The trial court correctly considered the crime as robbery with homicide and not "robbery with triple homicide" as charged in the information. The term "homicide" in Article 294(1) is used in its generic sense, embracing not only the act which results in death but also all other acts producing anything short of death. Neither is the nature of the offense altered by the number of killings in connection with the robbery. The multiplicity of victims slain on the occasion of the robbery is only appreciated as an aggravating circumstance. This would preclude an anomalous situation where, from the standpoint of the gravity of the offense, robbery with one killing would be treated in the same way that robbery with multiple killings would be.
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ROBBERY WITH HOMICIDE; TO SUSTAIN CONVICTION, ROBBERY ITSELF MUST BE PROVEN CONCLUSIVELY AS ANY OTHER ESSENTIAL ELEMENT OF A CRIME; PHYSICAL ACT OF ASPORTATION NOT PROVEN IN CASE AT BAR. With respect to the charge of robbery, however, we agree with the Solicitor General that the testimony of witness Panerio in the direct examination only showed the circumstances surrounding the victim's death but the fact of robbery was neither testified to nor inferable therefrom. While the killing of Teresita was sufficiently established by the evidence of the prosecution, we find no conclusive evidence proving the physical act of asportation thereof by the accused-appellant. In fact, Panerio testified during his cross-examination that he did not actually see appellant take the money or jewelry from the victim. He merely stated that since they were the ones who held her up, surely, they took the money and jewelry which were in the possession of the victim in the morning of March 19, 1991. The Solicitor General correctly opined that while Daucop had money and some pieces of jewelry in the morning of March 19, 1991, the interval of time between that period and the commission of the crime was long enough to allow for the possibility that she could have placed the money and said jewelry elsewhere. We ruled in People vs. Pacala, "It is well settled that in order to sustain a conviction for robbery with homicide, it is necessary that the robbery itself be proven conclusively as any other essential element of a crime. In order for the crime of robbery with homicide to exist, it is necessary that it be clearly established that a robbery has actually taken place, and that, as a consequence or on the occasion of such robbery, a homicide be committed. Where the evidence does not conclusively prove the robbery, the killing of the victim would therefore, be classified either as a simple homicide or murder, depending upon the absence or presence of any qualifying circumstance, and not the complex offense of robbery with homicide." ROBBERY WITH HOMICIDE; CONVICTION THEREFOR; ROBBERY ITSELF MUST BE PROVEN AS CONCLUSIVELY AS ANY OTHER ESSENTIAL ELEMENT OF A CRIME; PRESENT IN CASE AT BAR. In a train of decisions, the Court categorically enunciated the rule that to sustain a conviction for the crime of robbery with homicide, it is imperative that the robbery itself be proven as conclusively as any other essential element of a crime, inasmuch as robbery with homicide is primarily an offense against property. Verily, the evidence adduced and presented by the prosecution established all the elements of the special complex crime of robbery with homicide. For in the crime of robbery with homicide, the homicide may precede the robbery or may occur after the robbery, as what is essential is that there is a direct relation, an intimate connection between the robbery and the killing. This special complex crime is primarily a crime against property and not against persons, homicide being a mere incident of the robbery with the latter being the main purpose and object of the criminal. In the instant case, the records show that the fatal shooting of Carlos Deveza, while it preceded the robbery, was for the purpose of removing an opposition to the robbery or suppressing evidence thereof. In this specie of offense, the phrase "by reason" covers homicide committed before or after the taking of personal property of another, as long as the motive of the offender (in killing a person before the robbery) is to deprive the victim of his personal property which is sought to be accomplished by eliminating an obstacle or opposition, or to do away with a witness or to defend the possession of stolen property. Obviously, the killing of Carlos Deveza and the shooting of Wilfredo Dazo were perpetrated by reason of or on the occasion of the robbery. Thus, the physical injuries sustained by Dazo are deemed absorbed in the crime of robbery with homicide. Taken in its entirety, the overt acts of accusedappellant Legaspi prove that the lone motive for the killing of Deveza and the shooting of Dazo was for the purpose of consummating and ensuring the success of the robbery. ALL THOSE WHO TOOK PART AS PRINCIPALS IN THE ROBBERY WILL ALSO BE HELD GUILTY AS PRINCIPAL OF THE SPECIAL COMPLEX CRIME OF ROBBERY WITH HOMICIDE. The unexplained possession of stolen articles gives rise to a presumption of theft, unless it is proved that the owner of the articles was deprived of possession by violence or intimidation, in which case, the presumption becomes one of robbery. The homicide may precede the robbery or may occur after the robbery. What is essential is that there is an intimate connection between robbery and the killing whether the latter be prior or subsequent to the former or whether both crimes be committed as the same time. The rule is well-established that whenever homicide has been committed as a consequence of or on the occasion of the robbery, all those who took part as principals in the robbery will also be held guilty as principals of the special complex crime of robbery with homicide although they did not actually take part in the homicide, unless it clearly appears that they endeavored to prevent the homicide. In this case, appellant tries to exculpate himself from the homicides by insisting that he did not participate nor could he have prevented them. However, considering his established participation in looting the Macalino residence where the killing of the victims took place during said robbery, his culpability for the complex crime of robbery with homicide is well grounded and sufficiently proved. ROBBERY WITH HOMICIDE; NO SUCH CRIME AS ROBBERY IN BAND WITH MULTIPLE HOMICIDE; TERM "HOMICIDE" IS USED IN GENERIC SENSE; BAND, A MERE GENERIC AGGRAVATING CIRCUMSTANCE. The trial court erred in convicting them of the crime of Robbery in Band with Multiple Homicide. There is no such crime in the Revised Penal Code and in the statutes. Robo con Homicido is killing of a human being for the purpose of robbery. Homicide is used in Article 294 in a generic sense. Under the aforecited statutory provision, the term "homicide" comprehends murder, double homicide and multiple homicide while band is considered as a mere generic
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aggravating circumstance. The crime of robbery with homicide remains fundamentally the same regardless of the persons killed in connection with robbery. It is primarily a crime against property and the killing is a mere incident of robbery. ROBBERY WITH RAPE; LAW DOES NOT DISTINGUISH WHETHER RAPE WAS COMMITTED BEFORE, DURING OR AFTER THE ROBBERY. We do not agree however with the contention of the Solicitor General that accusedappellant should be convicted of two (2) separate crimes of rape and robbery. Article 294, par. (2), of the Revised Penal Code is explicit that for robbery with rape to be committed the robbery shall have been accompanied by rape. This means that the offender must have the intent to take the personal property belonging to another with intent to gain, and such intent must precede the rape. The law does not distinguish whether the rape was committed before, during or after the robbery. It is enough that the robbery was accompanied by rape. Thus, if the original design was to commit robbery because the opportunity presented itself, the robbery and the rape should be viewed as two (2) distinct offenses.
ARTICLE 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 NOTA BENE: This is qualified robbery. Q: when is robbery with violence against or intimidation of persons qualified? A: if any of the offenses defined in subdivisions 3, 4 and 5 of article 294 (see above article) is Committed1. in an uninhabited place 2. by a band, or 3. by attacking a moving train, street car, motor vehicle, or airship, or 4. by entering the passengers compartments in a train, or in any manner taking the passengers thereof by surprise in the respective conveyances, or
5.
on a street, road, highway, or alley, and intimidation is made with the use of
firearms(firearm here may be licensed or unlicensed) Take note of the 5th circumstance, using the firearm to intimidate. If in case he did not use the firearm to intimidate but instead use his very sharp knife, the crime is not qualified. ARTICLE 296 DEFINITION OF A BAND AND PENALTY INCURRED BY THE MEMBERS THEREOF A. Outline of the provisions: 1. When at least four (more than three) armed malefactors took part in the commission of a robbery, it is deemed committed by a band. 2. When any of the arms used in the commission of the robbery is not licensed the penalty upon all the malefactors shall be the maximum of the corresponding penalty provided by law, without prejudice to the criminal liability for illegal possession of such unlicensed firearm.( it can be inferred here that if the firearm is licensed, the maximum penalty may not be imposed) 3. Any member of a band who was present at the commission of the robbery by the band, shall be punished as a principal of the assaults committed by the band, unless it be shown that he attempted to prevent the same. Armed = any arms not just firearms, like bolo, knife etc B. Requisites for liability for the acts of the other members of the band (No. 3)
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1. He was a member of the band; 2. He was present at the commission of a robbery by that band; 3. The other members of the band committed an assault; 4. He did not attempt to prevent the assault. ARTICLE 297 ATTEMPTED AND FRUSTRATED ROBBERY COMMITTED UNDER CERTAIN CIRCUMSTANCES As in Art. 294, the homicide here used in a generic sense, it must have been committed by reason or on the occasion of a frustrated or attempted robbery, and it must have been consummated. If physical injuries were inflicted on the victim, but no intent to kill was proved and the victim did not die, the liability of the offender may be as follows: a. If the physical injuries were by reason of the attempted or frustrated robbery as the means for the commission of the latter, the injuries are absorbed by the latter and the crime shall only be attempted or frustrated robbery. b. If the physical injuries were inflicted only on the occasion of the aborted robbery but not employed as a means of committing the latter, there will be separate crimes of attempted or frustrated robbery AND physical injuries. If, however, a killing and physical injuries were committed on that occasion, the crime will be penalized in accordance with this article but the physical injuries will be absorbed. When the victim had no money when he was treacherously killed and the crime could not fall under Art. 297 which requires at least an attempted robbery(here, there was an impossible crime of robbery), but since homicide under that article is used in its generic sense, it was held that the accused was guilty of murder. Where the accused demanded that the victims money be brought out and on being refused, he killed the victim, the crime was held to be attempted robbery with homicide since there was an overt act to rob. ARTICLE 298 EXECUTION OF DEEDS BY MEANS OF VIOLENCE OR INTIMIDATION A. Elements: 1. Offender has intent to defraud another; 2. Offender compels him to sign, execute, or deliver any public instrument or document. 3. The compulsion is by means of violence or intimidation NOTA BENE: This is a special form or mode of committing robbery, hence it is categorized and punished as such. It is essential that the document is capable of producing legal effects AND that the victim was under a lawful obligation to execute and deliver the same. If the document is void, it cannot be said that the offender had intended to defraud the victim. However, even if the foregoing two conditions are not obtained, the offender will be liable for coercion, for compelling another by violence or intimidation to perform an act whether right or wrong. Section Two. Robbery by the use of force upon things
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ARTICLE 299 ROBBERY IN AN INHABITED HOUSE OR PUBLIC BUILDING OR EDIFICE DEVOTED TO WORSHIP It is the character of the house or the building, etcthat is emphasized here. Elements of robbery by the use of force upon things in subdivision (a): 1. that the [armed] offender ENTERED a. an inhabited house b. public building c.
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. (Art 301) Includes every building owned by the government or belonging to a private person but used or rented by the government, although temporarily unoccupied by the same. (Art 301)
edifice devoted to religious worship
Thus, if offender merely inserted his hand through an opening in the wall or used a pole through the window to get the things inside, the crime is theft NOT robbery
2. that the entrance was effected through any of the ff. Means: (the four means must be resorted to GET IN not to get out) a. through the opening not intended for entrance or egress
So, if the culprit entered through the main door and the owner, not knowing the former was inside, closed and locked the door and left, and the culprit took property and went out the window is guilty of theft NOT robbery.
b. by breaking any wall, roof, or floor, or breaking any door or window

(Take note of the word breaking, example X, Y, and Z went up to the roof and langkat the roof, placed a rope around Xs waist and X entered by being pulled or pushed by the use of the rope tied on his waist. Is this robbery? The crime is theft because he did not enter the house. The Wall must be an outside wall because the purpose is to enter the house OR building. But if the room is occupied by a person as his separate dwelling, the breaking of the inside wall may give rise to robbery. With regards to the breaking of doors, there are conflicting decisions: 1. In one case, the SC said that in robbery by breaking a door, the door must be smashed. If you destroy the lock only, there is no robbery, only theft. 2. Yet in another case the SC said: if the lock is destroyed, since the lock is part of the door, there is robbery not theft. )
c.
by using false keys, picklocks or similar tools

False keys must be used to enter the building. But if it is used to open a wardrobe or a locked receptacle or inside door, the crime is theft unless the lock or sealed furniture is broken then it is robbery under Art 229(b).
d. by using any fictitious name or pretending the exercise of public authority
(example: I pretended to be from VECO or a sanitary inspector, and I need to enter the house to see if you have pipes. But when I was in the house, I robbed. Using of fictitious name is used as a means to enter. Take note: there is no crime of robbery by using fictitious name in an uninhabited place)
3. That once inside the building, the offender took personal property belonging to another with intent to gain.
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(Take note that under this subdivision, this is TO ENTER, to enter the MAIN DOOR not the door inside the house like a door to a room.)
Elements of robbery by the use of force upon things in subdivision (b): 1. that the [armed] offender is inside a dwelling house, public building, or edifice devoted to religious worship, regardless of the circumstances under which he entered it
Take note that subsection (b) is independent from subsection (a). Thus it is not necessary that the offender entered the building or house by any of the means mentioned in subdivision (a).
2. that the offender takes personal property belonging to another with intent to gain, under any of the following circumstances:
a.
By the breaking of doors, wardrobes, chests, or any other kind of locked or sealed
The door here refers to the doors on cabinets or receptacles, like a lid, not entrance.
furniture or receptacles
Example: the robbers entered the house because the door is open. Here there was no breaking of door, then they broke the chest or cabinet and took and carried away personal property. This is robbery.
b. By taking such furniture or objects away to be broken or forced open outside the place of the robbery.
Example: Mr. X entered the open door, saw a chest, took it away from the house and left, but when he was outside, a police officer was in the vicinity, so the robber throw it somewhere near the trees and ran. The chest was found by another man, Mr. Y, got the chest and opened it and saw lots of jewelry. What crimes did Mr. X and Mr. Y commit? ANSWER: Mr. X committed robbery because the receptacle need not be broken. What is important is it is brought outside to be broken open outside the place of robbery. Mr. Y committed the crime of theft only even if he was the one who broke the chest open.
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 the minimum period. When the robbery be committed in one of the dependencies of an uninhabited house, public building or edifice devoted to religious worship, the penalties next lower in degree that those prescribed in this article shall be imposed. "Force upon things" has a technical meaning in law. Not any kind of force upon things will characterize the taking as one of robbery. The force upon things contemplated requires some element of trespass into the establishment where the robbery was committed. In other words, the offender must have entered the premises where the robbery was committed. If no entry was effected, even though force may
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have been employed actually in the taking of the property from within the premises, the crime will only be theft. Two predicates that will give rise to the crime as robbery: 1. By mere entering alone, a robbery will be committed if any personal property is taken from within; 2. The entering will not give rise to robbery even if something is taken inside. It is the breaking of the receptacle or closet or cabinet where the personal property is kept that will give rise to robbery, or the taking of a sealed, locked receptacle to be broken outside the premises. If by the mere entering, that would already qualify the taking of any personal property inside as robbery, it is immaterial whether the offender stays inside the premises. The breaking of things inside the premises will only be important to consider if the entering by itself will not characterize the crime as robbery with force upon things. Modes of entering that would give rise to the crime of robbery with force upon things if something is taken inside the premises: entering into an opening not intended for entrance or egress, under Article 299 (a).
Illustration: The entry was made through a fire escape. The fire escape was intended for egress. The entry will not characterize the taking as one of robbery because it is an opening intended for egress, although it may not be intended for entrance. If the entering were done through the window, even if the window was not broken, that would characterize the taking of personal property inside as robbery because the window is not an opening intended for entrance. Illustration: On a sari-sari store, a vehicle bumped the wall. The wall collapsed. There was a small opening there. At night, a man entered through that opening without breaking the same. The crime will already be robbery if he takes property from within because that is not an opening intended for the purpose.
Even of there is a breaking of wall, roof, floor or window, but the offender did not enter, it would not give rise to robbery with force upon things. Breaking of the door under Article299 (b) - Originally, the interpretation was that in order that there be a breaking of the door in contemplation of law, there must be some damage to the door. Before, if the door was not damaged but only the lock attached to the door was broken, the taking from within is only theft. But the ruling is now abandoned because the door is considered useless without the lock. Even if it is not the door that was broken but only the lock, the breaking of the lock renders the door useless and it is therefore tantamount to the breaking of the door. Hence, the taking inside is considered robbery with force upon things. If the entering does not characterize the taking inside as one of robbery with force upon things, it is the conduct inside that would give rise to the robbery if there would be a breaking of sealed, locked or closed receptacles or cabinet in order to get
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the personal belongings from within such receptacles, cabinet or place where it is kept. If in the course of committing the robbery within the premises some interior doors are broken, the taking from inside the room where the door leads to will only give rise to theft. The breaking of doors contemplated in the law refers to the main door of the house and not the interior door. But if it is the door of a cabinet that is broken and the valuable inside the cabinet was taken, the breaking of the cabinet door would characterize the taking as robbery. Although that particular door is not included as part of the house, the cabinet keeps the contents thereof safe. Use of picklocks or false keys refers to the entering into the premises - If the picklock or false key was used not to enter the premises because the offender had already entered but was used to unlock an interior door or even a receptacle where the valuable or personal belonging was taken, the use of false key or picklock will not give rise to the robbery with force upon things because these are considered by law as only a means to gain entrance, and not to extract personal belongings from the place where it is being kept. The law classifies robbery with force upon things as those committed in: (1) an inhabited place; (2) public buildings; (3) a place devoted to religious worship. The law also considers robbery committed not in an inhabited house or in a private building. Note that the manner of committing the robbery with force upon things is not the same. When the robbery is committed in a house which is inhabited, or in a public building or in a place devoted to religious worship, the use of fictitious name or pretension to possess authority in order to gain entrance will characterize the taking inside as robbery with force upon things. Question & Answer Certain men pretended to be from the Price Control Commission and went to a warehouse owned by a private person. They told the guard to open the warehouse purportedly to see if the private person is hoarding essential commodities there. The guard obliged. They went inside and broke in . They loaded some of the merchandise inside claiming that it is the product of hoarding and then drove away. What crime was committed? It is only theft because the premises where the simulation of public authority was committed is not an inhabited house, not a public building, and not a place devoted to religious worship. Where the house is a private building or is uninhabited, even though there is simulation of public authority in committing the taking or even if he used a fictitious name, the crime is only theft.
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Note that in the crime of robbery with force upon things, what should be considered is the means of entrance and means of taking the personal property from within. If those means do not come within the definition under the Revised Penal Code, the taking will only give rise to theft. Those means must be employed in entering. If the offender had already entered when these means were employed, anything taken inside, without breaking of any sealed or closed receptacle, will not give rise to robbery.
Illustration: A found B inside his (As) house. He asked B what the latter was doping there. B claimed he is an inspector from the local city government to look after the electrical installations. At the time B was chanced upon by A, he has already entered. So anything he took inside without breaking of any sealed or closed receptacle will not give rise to robbery because the simulation of public authority was made not in order to enter but when he has already entered.
ARTICLE 300 ROBBERY IN AN UNINHABITED PLACE AND BY A BAND This is a qualifying aggravating circumstance where the maximum period of the penalty provided for under Art 299 is imposed. Two requisites must concur: Uninhabited Place AND by a Band. Distinction between Art 300 AND Art 295 as to Qualifying circumstances. Under Art 300, in order to be qualified, Uninhabited place AND by a band must concur. Under Art 295, Robbery is committed in an Uninhabited place OR by a band. ARTICLE 301 WHAT IS AN INHABITED HOUSE, PUBLIC BUILDING OR BUILDING DEDICATED TO RELIGIOUS WORSHIP AND THEIR DEPENDENCIES Inhabited house - Any shelter, ship, or vessel constituting the dwelling of one or more persons, even though the inhabitants thereof shall temporarily be absent therefrom when the robbery is committed. Public building - Includes every building owned by the government or belonging to a private person but used or rented by the government, although temporarily unoccupied by the same. Dependencies of an inhabited house, public building, or building dedicated to religious worship - All interior courts, corrals, warehouses, granaries, barns, coachhouses, stables, or other departments, or enclosed interior entrance connected therewith and which form part of the whole. Orchards and other lands used for cultivation or production are not included, even if closed, contiguous to the building, and having direct connection therewith. Three requisites (Dependencies): 1. Must be contiguous to the building 2. Must have an interior entrance connected therewith 3. Must form part of the whole.
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ARTICLE 302 ROBBERY IN AN UNINHABITED PLACE OR IN A PRIVATE BUILDING Elements: 1. That the offender entered an uninhabited place or building which was NOT a dwelling house, NOT a public building, or NOT an edifice devoted to religious worship. 2. That any of the following circumstances was present: a) The entrance was effected through an opening not intended for entrance or egress; b) A wall, roof, floor, or outside door or window was broken; c) The entrance was effected through the use of false keys, picklocks or other similar tools; d) A door, wardrobe, chest, or any sealed or closed furniture or receptacle was broken; or e) A closed or sealed receptacle was removed, even if the same be broken open elsewhere. 3. That with intent to gain, the offender took therefrom, personal property belonging to another. o While Art. 302 provides for robbery in an uninhabited place, it actually means an uninhabited house. This observation is bolstered by the fact that in the modes of commission set out in this article, Pars. 1 and 3 speak of entrance which necessarily connotes a building.
The circumstances affecting the robbers liability for robbery in an uninhabited house are as follows: a) if of mail matter or large cattle, unless prosecuted under P.D. 533 for the latter, one degree higher (Art. 302); and b) if of seedlings (not cereals), one degree lower (Art. 303). As clarified by the Supreme Court, the word cereals in Art. 303 is not the correct translation of the Spanish text. It should mean seedlings or unhulled grain in its original state. o For both robbery and theft, large cattle as referred to in Art. 302 should include the horse, bull, mule, ass, carabao or other domesticated members of the bovine family, as provided in Sec. 511 of the Revised Administrative Code. Goats are cattle but not large cattle for purposes of Art. 302.
ARTICLE 303 ROBBERY OF CEREALS, FRUITS, OR FIREWOOD IN AN UNINHABITED PLACE OR PRIVATE BUILDING Under this Article, if the robbery under Article 299 and 302 consists in the taking of cereals, fruits, or firewood, the penalty imposable is lower. NB: Cereals means seedlings or unhulled rice, locally known as palay. ARTICLE 304 POSSESSION OF PICKLOCKS OR SIMILAR TOOLS A. ELEMENTS OF ILLEGAL POSSESSION OF PICKLOCKS OR SIMILAR TOOLS 1. That the offender has in his possession picklocks or similar tools. 2. That such picklocks or similar tools are specially adopted to the commission of robbery. 3. That the offender does not have lawful cause for such possession.
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N.B.: Possession of picklock may be legal if you are a locksmith. ARTICLE 305 FALSE KEYS A. False keys to include the following: 1. Tools mentioned in Article 304; 2. Genuine keys stolen from the owner; 3. Any key other than those intended by the owner for use in the lock forcibly opened by the offender. N.B.: A master key is a picklock and its possession is punishable. In the definition of false keys in Art. 305, picklocks are considered as false keys (Par. 1), but only the illegal possession of such picklocks and similar tools are punished and not that of other false keys which are not picklocks or similar thereto. Par. 2 also considers as false keys the genuine keys stolen from their owner. Even if the keys were not stolen but were lost or misplaced by the owner and they were found by another who did not return the same to the owner although he was in a position to do so, that constitutes theft under Art. 308. That key is, therefore, stolen hence a false key, and if used to enter a house from which articles were thereafter unlawfully taken by the offender, the crime is robbery. Under Par. 3, where the key was not intended by the owner for use in the lock to the house but it was used by the offender to manipulate the lock and to enter and steal something inside the house, it would be robbery. If on the other hand, the house owner entrusted the key to his confidential secretary for safekeeping, but the latter used it to commit unlawful acts of entry and abstractions, the crime is qualified theft through grave abuse of confidence (Art. 310).
REPUBLIC ACT 6539 ANTI CARNAPPING ACT

DEFINITIONS:
o
o
Carnapping is the taking, with intent to gain, of a motor vehicle belonging to another without the latters consent (theft), or by means of violence against or intimidation of persons, or by using force upon things (robbery). Penalty for Carnapping (Sec. 14) Any person who is found guilty of carnapping, irrespective of the value of motor vehicle taken, shall be punished by imprisonment when the carnapping was committed: a. Without violence or intimidation against persons - not less than 14 years and 8 months AND not more than 17 years and 4 months,; b. With violence or intimidation against persons OR force upon things - not less than 17 years and 4 months AND not more than 30 years, c. Owner, driver or occupant is killed or raped in the course of the commission OR on the occasion of the crime - life imprisonment to death
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Motor vehicle is any vehicle propelled by any power other than muscular power USING THE PUBLIC HIGHWAYS, except: - road rollers - trollery cars - street-sweepers - sprinklers - lawn mowers - bulldozers - graders - fork-lifters - amphibian trucks - cranes - vehicles which only run on rails or tracks - tractors - trailers
If not used on public highways.

So that, if these items ar actually used in the public highways they will be covered under anticarnapping law. Ex. If you steal a bulldozer and brought to mindanao, the crime is carnapping, not bulldozenapping.
and traction engines of all kinds used exclusively for agricultural purpose. (so that if not exclusively used for agricultural purposes, and used in the
public highway, and you take it without consent of owner or with violence or intimidation, it is violation of the anti-carnapping law)
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.
Take note of exceptions: a. vehicles propelled by muscular power b. vehicles not used in public highways c. vehicles which only runs on trails and tracks d. vehicles use exclusively for agricultural purposes (traction engines)
Defacing or tampering with a serial number is erasing, scraping, altering, or changing of the original factory-inscribed serial number on a motor vehicle engine, engine block, or any motor chassis of any motor vehicle. Whenever any motor vehicle is found to have a serial number on its motor engine, engine block or chassis whish is DIFFERENT from that which is listed in the Bureau of Customs for motor vehicles imported into the Philippines, that motor vehicle shall be considered to have a defaced or tampered with serial number.
NB: o o o o There is a new directive form the office of the president. Before, You cannot transfer or transport your vehicle from say Cebu to Mindanao without the an-car (anti-carnapping certification). Right now, it can be done without the an-car. In carnapping, the elements of robbery and theft are present. So with or without violence, intimidation or force upon things. Trisikad, bicycles, or scooters not included. Golf course is not a highway so not covered under anti-carnapping law.
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Before, if death results, or by reason or on occasion of carnapping a person is killed, the crime is carnapping with homicide. But now, it is plain carnapping punished by death. It is no longer carnapping with homicide.
PEOPLE vs. ALVIN TAN G.R. No. 135904. January 21, 2000 No unlawful taking. It was lawful for Tan to have the car for test drive. Phillip See consented to it. Such consent was not withdrawn. See in effect tolerated Tans possession of the car. No liability There is no arguing that the anti-carnapping law is a special law, different from the crimes of robbery and theft included in the Revised Penal Code. It particularly addresses the taking, with intent of gain, of a motor vehicle belonging to another without the latters consent, or by means of violence against or intimidation of persons, or by using force upon things. But a careful comparison of this special law with the crimes of robbery and theft readily reveals their common features and characteristics, to wit: unlawful taking, intent to gain, and that personal property belonging to another is taken without the latters consent. However, the anti-carnapping law particularly deals with the theft and robbery of motor vehicles. Hence, a motor vehicle is said to have been carnapped when it has been taken, with intent to gain, without the owners consent, whether the taking was done with or without violence or intimidation of persons or with or without the use of force upon things. Without the anticarnapping law, such unlawful taking of a motor vehicle would fall within the purview of either theft or robbery which was certainly the case before the enactment of said statute. x x x Even solely from this testimony, this Court finds that there was no unlawful taking. A felonious taking may be defined as the act of depriving another of the possession and dominion of movable property without his privity and consent and without animus revertendi. Thus, an unlawful taking takes place when the owner or juridical possessor does not give his consent to the taking; or, if the consent was given, it was vitiated; or in the case of Roxas, Trinidad and de Vera, where an act by the receiver soon after the actual transfer of possession constitutes unlawful taking. In the last scenario, the receivers act could be considered as having been executed without the consent of the giver. SEEs testimony clearly evinced his assent to TANs taking of the car not only at the time he yielded the physical possession thereof for the alleged test-driving but even thereafter, for he neither withheld his consent nor withdrew the same during the seven month period the car was with TAN. At the very least, SEE tolerated TAN's possession of the car. A contrary conclusion inspires only disbelief. For if the car was truly carnapped, why did SEE wait for seven months before he reported the same? Further, TANs alleged refusal to meet SEE despite his repeated attempts to do so should have sufficiently alerted him of the formers supposed malevolent intent, yet he still did not report the taking. Even if he failed to report the taking, months after the alleged test-driving, he had allegedly seen his car in the initial stages of dismemberment on 19 May 1993 yet, again, he did not report the carnapping on that day nor on the next, but much later on 7 June 1993 or almost a month thereafter. PEOPLE vs. NOEL SANTOS y CRISPINO G.R. No. 127500. June 8, 2000 There was no proof that there was unlawful taking. What was proved was that of the death of Morales but there were no witnesses that indeed it was Santos who did the killing. The accusedappellant Noel Santos is acquitted on the ground that his guilt is not proved beyond reasonable doubt. On the last clause of Sec 14 of RA 6539(as amended by RA 7659), three amendments have been made to the original Anti-Carnapping Act: (1) the change of the penalty from life imprisonment to reclusion perpetua, (2) the inclusion of rape, and (3) the change of the phrase "in the commission of the carnapping" to "in the course of the commission of the carnapping or on the occasion thereof."
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This third amendment makes clear the intention of the law to make the offense a special complex crime, by way of analogy vis-a-vis paragraphs 1 to 4 of the Revised Penal Code on robbery with violence against or intimidation of persons. Thus, under the last clause of Section 14 of the Anti-Carnapping Act, the prosecution not only has to prove the essential requisites of carnapping and of the homicide or murder of Ruel Morales but more importantly, it must show that the original criminal design of the culprit was carnapping and that the killing was perpetrated "in the course of the commission of the carnapping or on the occasion thereof." Needless to say, where the elements of carnapping are not proved, the provisions of the Anti-Carnapping Act would cease to be applicable and the homicide or murder (if proven) would be punishable under the Revised Penal Code. In the herein case, we find the charge of carnapping unsubstantiated for failure of the prosecution to prove an unlawful taking. The application of the presumption that a person found in possession of the personal effects belonging to a person robbed or killed is considered the author of the aggression, the death of the person, as well as the robbery committed, has been invariably limited to cases where such possession is either unexplained or that the proffered explanation is rendered implausible in view of independent evidence inconsistent thereto. The rebuttal of such presumption, invariably employed in cases of robbery and theft under the Revised Penal Code, validly applies to a case of carnapping, for indeed the concept of unlawful taking in theft, robbery and carnapping is the same, and had it not been for the enactment of the Anti-Carnapping Act, the unlawful taking of a motor vehicle would certainly fall within the purview of either theft or robbery. The carnapping not being duly proved, the killing of Ruel Morales may not be treated as an incident of carnapping. Nonetheless, even under the provisions of homicide and murder under the Revised Penal Code, we find that the guilt of accused-appellant was not established beyond reasonable doubt.
Chapter Two BRIGANDAGE

Brigandage - This is a crime committed by more than three armed persons who form a band of robbers for the purpose of committing robbery in the highway or kidnapping persons for the purpose of extortion or to obtain ransom, or for any other purpose to be attained by means of force and violence. ARTICLE 306 WHO ARE BRIGANDS A. There is brigandage when: 1. There be at least four armed persons. 2. They formed a band of robbers. 3. The purpose is any of the following: a) To commit robbery in the highway; or b) To kidnap persons for the purpose of extortion or to obtain ransom; or c) To attain by means of force and violence any other purpose. o All are presumed highway robbers or brigands if any of them carries an unlicensed firearm.
In the recent case of People vs. Puno, et al. (G.R. No. 97471, Feb. 17, 1993), the accused was able to extort P100,000 in checks from his employer by refusing to let her out of her car which he kept driving around on the highways of Metro Manila for quite some time until she gave the checks. The Supreme Court held that the crime could not be a violation of PD 532 as this refers to
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indiscriminate unlawful acts committed on Philippine highways but not a particular robbery. The mere fact that the car was being driven on a highway while the accused was pressuring the victim to give the amount was purely an incidental fact. Much less does it constitute kidnapping for ransom as the taking of the victim was merely to commit robbery and not to transport her to another place for purposes of detention and ransom. ARTICLE 307 AIDING AND ABETTING BAND OF BRIGANDS A. Elements 1. There is a band of brigands; 2. Offender knows the band to be of brigands; 3. Offender does any of the following acts: a. He in any manner aids, abets or protects such band of brigands; b. He gives them information of the movements of the police or other peace officers of the government; or c. He acquires or receives the property taken by such brigands. Presumption of the law as to knowledge = it shall be presumed that the person performing any of the acts provided in this article has performed them knowingly, unless the contrary is proven Repealed by PD 532, Sec. 4 - - Sec. 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 pirates 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. It shall be presumed that any person who does any of the acts provided in this Section has performed knowingly, unless the contrary is proven.
PD 532 ANTI-PIRACY AND ANTI-HIGHWAY ROBBERY OF 1974.

Always take note of the whereas Clause of PD 532 otherwise known as ANTI-PIRACY AND ANTI-HIGHWAY ROBBERY OF 1974. Whereas, reports from law enforcement agencies reveal that lawless elements are still committing acts of depredation upon the persons and properties of innocent and defenseless inhabitants who travels from one place to another, thereby disturbing the peace, order and tranquility of the nation and stunting the economic and social progressed of the people; Whereas, such act of depredations constitute either piracy or highway robbery/brigandage which are among the highest forms of lawlessness condemned by the penal statues of all countries; DEFINITIONS: PHILIPPINE HIGHWAY it shall refer to any road, street, passage, highway or bridges or other parts thereof, or railway or railroads within the Philippines used by persons, or vehicles, or
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locomotives, or trains, for the movement or circulation or persons or transportation of goods, articles or property or both HIGHWAY ROBBERY OR BRIGANDAGE - the seizure of any person for ransom, extortion, or other unlawful purposes, or the taking away of the property of another by means of violence against or intimidation of persons or force upon things of other unlawful means, committed by any person on any Philippine highway. Take note of purposes of PD 532: 1. ransom 2. extortion 3. other unlawful purposes 4. the taking away of the property of another by means of violence against or intimidation of persons OR force upon things of other unlawful means, Distinction between brigandage under the Revised Penal Code AND highway robbery/brigandage under Presidential Decree No. 532: (1) Brigandage as a crime under the Revised Penal Code refers to the formation of a band of robbers by more than three armed persons for the purpose of committing robbery in the highway, kidnapping for purposes of extortion or ransom, or for any other purpose to be attained by force and violence. The mere forming of a band, which requires at least four armed persons, if for any of the criminal purposes stated in Article 306, gives rise to brigandage. Highway robbery/brigandage under Presidential Decree No. 532 is the seizure of any person for ransom, extortion or for any other lawful purposes, or the taking away of the property of another by means of violence against or intimidation of persons or force upon things or other unlawful means committed by any person on any Philippine highway.
(2)
Brigandage under Presidential Decree No. 532 refers to the actual commission of the robbery on the highway and can be committed by one person alone. It is this brigandage which deserves some attention because not any robbery in a highway is brigandage or highway robbery. A distinction should be made between highway robbery/brigandage under the decree and ordinary robbery committed on a highway under the Revised Penal Code. In US v. Feliciano, 3 Phil. 422, it was pointed out that highway robbery or brigandage is more than ordinary robbery committed on a highway. The purpose of brigandage is indiscriminate robbery in highways. If the purpose is only a particular robbery, the crime is only robbery or robbery in band, if there are at least four armed participants. Presidential Decree No. 532 introduced amendments to Article 306 and 307 by increasing the penalties. It does not require at least four armed persons forming a band of robbers. It does not create a presumption that the offender is a brigand when he an unlicensed firearm is used unlike the Revised Penal Code. But the essence of brigandage under the Revised Penal Code is the same as that in the Presidential Decree, that is, crime of depredation wherein the unlawful acts are directed not only against specific, intended or preconceived victims, but against any and all prospective victims anywhere on the highway and whoever they may potentially be.
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SIMILARITIES OF BRIGANDAGE UNDER RPC AND BRIGANDAGE UNDER PD 532 Under RPC Under PD 532 Purposes; the purpose is any of the following: a. to commit robbery in the highway b. to kidnap persons for the purpose of extortion or to obtain ransom c. to attain by means of force and violence any other purpose purposes of PD 532: a. ransom b. extortion c. other unlawful purposes d. the taking away of the property of another by means of violence against or intimidation of persons or force upon things of other unlawful means, One particular robbery is not brigandage. Highway robbery is indiscriminate
One particular robbery is not brigandage. Highway robbery is indiscriminate
Distinctions: BRIGANDAGE To commit robbery in the highway or any of the reasons enumerated The agreement is to commit robbery indiscriminately The mere formation of a band for any purposes mentioned in the law is sufficient
ROBBERY IN BAND To commit robbery not necessarily in the highway To commit a particular robbery It is necessary to prove that the band actually committed robbery. Mere conspiracy to commit robbery is not punishable. BRIGANDAGE UNDER PD 532 (otherwise known as INDISCRIMINATE HIGHWAY ROBBERY)
ROBBERY
BRIGANDAGE UNDER RPC
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One particular robbery (no habituality, no history) even if committed by 4 armed persons
Can be committed by one person (Any armed person) Victim is predetermined One victim only ( how can 1 victim stunt the growth of the economy? Always see whereas clause of PD 532) Not done habitually
Formation of a band of robbers even if robbery has not yet been committed is punishable (note that this is different from article 295 robbery by a band because in this crime, mere formation or mere conspiracy to commit is not punishable) the heart of the offense consist in the formation of a band for purposes under Art 306. -if it is to commit purposes other than those enumerated in art 306, the crime is robbery by a band IF COMMITTED INDISCRIMINATELY -if not done indiscriminately and for any other purpose other than art 306, this is just plain and simple robbery Must be committed at least by four armed persons Victim is not pre-determined
Indiscriminate highway robbery
Even only 1 person can commit ( any person) Victim is not pre-determined Target are travelers
Done habitually
PHILIPPINE HIGHWAY is not defined
Done habitually. There must be evidence that you committed the crime before, not necessary that there be conviction, only history that they are brigands. Always take note of the WHEREAS clause PHILIPPINE HIGHWAY is defined
Clarificatory decision of PD 532:

PEOPLE vs. ISABELO PUNO G.R. No. 97471. February 17, 1993 "HIGHWAY ROBBERY" (PD NO. 532); MODIFIES ARTS. 306 AND 307 OF THE REVISED PENAL CODE; CONSTRUED. Presidential Decree No. 532 is not a modification of Article 267 of the Revised Penal Code on kidnapping and serious illegal detention, BUT of Articles 306 and 307 on brigandage. This is evident from the fact that the relevant portion thereof which treats of "highway robbery" invariably uses this term in the alternative and synonymously with brigandage, that is, as "highway robbery/brigandage."
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This is but in line with our previous ruling, and which still holds sway in criminal law, that highway robbers (ladrones) and brigands are synonymous. Presidential Decree No 532 did introduce amendments to Articles 306 and 307 of the Revised Penal Code by increasing the penalties, albeit limiting its applicability to the offenses stated therein when committed on the highways and without prejudice to the liability for such acts if committed. Furthermore, the decree does not require that there be at least four armed persons forming a band of robbers; and the presumption in the Code that said accused are brigands if they use unlicensed firearms no longer obtains under the decree. But, and this we broadly underline, the essence of brigandage under the Code as a crime of depredation wherein the unlawful acts are directed not only against specific, intended or preconceived victims, but against any and all prospective victims anywhere on the highway and whosoever they may potentially be, is the same as the concept of brigandage which is maintained in Presidential Decree No. 532, in the same manner as it was under its aforementioned precursor in the Code and, for that matter, under the old Brigandage Law. BRIGANDAGE AND ROBBERY, DISTINGUISHED. The following salient distinctions between brigandage and robbery are succinctly explained in a treatise on the subject and are of continuing validity: "The main object of the Brigandage Law is to prevent the formation of bands of robbers. The heart of the offense consists in the formation of a band by more than three armed persons for the purpose indicated in art 306. Such formation is sufficient to constitute a violation of art. 306. It would not be necessary to show, in a prosecution under it, that a member or members of the band actually committed robbery or kidnapping or any other purpose attainable by violent means. The crime is proven when the organization and purpose of the band are shown to be such as are contemplated by art. 306. On the other hand, if robbery is committed by a band, whose members were not primarily organized for the purpose of committing robbery or kidnapping, etc., the crime would not be brigandage, but only robbery. Simply because robbery was committed by a band of more than three armed persons, it would not follow that it was committed by a band of brigands. In fine, the purpose of brigandage is, inter alia, indiscriminate highway robbery. If the purpose is only a particular robbery, the crime is only robbery, or robbery in band if there are at least four armed participants. Presidential Decree No. 532 punishes as highway robbery or brigandage only acts of robbery perpetrated by outlaws indiscriminately against any person or persons on Philippine highways as defined therein, and not acts of robbery committed against only a predetermined or particular victim. Indeed, it is hard to conceive of how a single act of robbery against a particular person chosen by the accused as their specific victim could be considered as committed on the "innocent and defenseless inhabitants who travel from one place to another," and which single act of depredation would be capable of "stunting the economic and social progress of the people" as to be considered "among the highest forms of lawlessness condemned by the penal statutes of all countries," and would accordingly constitute an obstacle "to the economic, social, educational and community progress of the people," such that said isolated act would constitute the highway robbery or brigandage contemplated and punished in said decree. This would be an exaggeration bordering on the ridiculous. KIDNAPPING; INTENT TO DEPRIVE THE OFFENDED PARTY OF HER LIBERTY; NOT PRESENT IN CASE AT BAR. In the case at bar, there is no showing whatsoever that appellants had any motive, nurtured prior to or at the time they committed the wrongful acts against complainant, other than the extortion of money from her under the compulsion of threats or intimidation. With respect to the specific intent of appellants vis-a-vis the charge that they had kidnapped the victim, we can rely on the proverbial rule of ancient respectability that for this crime to exist, there must be indubitable proof that the actual intent of the malefactors was to deprive the offended party of her liberty, and not where such restraint of her freedom of action was merely an incident in the commission of another offense primarily intended by the offenders. Hence, as early as United States vs. Ancheta, and consistently reiterated thereafter, it has been held that the detention and/or forcible taking away of the victims by the accused, even for an appreciable period of time but for the primary and ultimate purpose of killing them, holds the offenders liable for taking their lives or such other offenses they committed in relation thereto, but the incidental deprivation of the victims liberty does not constitute kidnapping or serious illegal detention.
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That appellants in this case had no intention whatsoever to kidnap or deprive the complainant of her personal liberty is clearly demonstrated in the veritably confessional testimony of appellant Puno. "RANSOM"; DEFINED: APPLICATION IN CASE AT BAR. Neither can we consider the amounts given to appellants as equivalent to or in the nature of ransom, considering the immediacy of their obtention thereof from the complainant personally. Ransom, in municipal criminal law, is the money, price or consideration paid or demanded for redemption of a captured person or persons, a payment that releases from captivity. It can hardly be assumed that when complainant readily gave the cash and checks demanded from her at gunpoint, what she gave under the circumstances of this case can be equated with or was in the concept of ransom in the law of kidnappings. These were merely amounts involuntarily surrendered by the victim upon the occasion of a robbery or of which she was summarily divested by appellants. Accordingly, while we hold that the crime committed is robbery as defined in Article 293 of the Code, we, however, reject the theory of the trial court that the same constitutes the highway robbery contemplated in and punished by Presidential Decree No. 532. Acts of Robbery [or even Theft] done on a Highway does not automatically fall under PD 532. PEOPLE vs SANDOVAL G.R. Nos. 95353-54. March 7, 1996 The fiscal of Cebu determined that appellant and Sandoval violated two distinct penal laws in robbing Laurente and Baguio, and killing the latter on a city street. Indeed, because the City Fiscal considered the two accused to have been in conspiracy, he charged them both with the complex crime of robbery with homicide as defined and penalized under Article 294 of the Revised Penal Code with respect to the robbing and killing of Baguio AND, in a separate information, also charged them with violation of P.D. No. 532, the 1974 law against highway robbery, as regards the robbing of Laurente. The informations filed, however, indicate that the filing by the fiscal of two separate charges was impelled by the fact that in the same incident, there were two victims. (this was commiitted in A. Lopez st., Cebu City. A. Lopez street is definietly a highway.) HELD: This Court finds, however, that only the crime of simple robbery, not violation of P.D. No. 532, should have been charged regarding the robbing of Laurente. In People v. Puno, the Court explicitly held that P.D. No. 532 is a modification of Articles 306 and 307 on brigandage" which is committed by more than three persons. The clear implication is that the number of offenders, as well as the frequency with which they perpetrate robbery, may determine whether a crime is simple robbery or highway robbery as defined in P.D. No. 532. Thus, in the Puno case, the Court explained that P.D. No. 532 treats of "highway robbery/brigandage" or "indiscriminate highway robbery" and, therefore "(I)f the purpose is only a particular robbery, the crime is only robbery, or robbery in band if there are at least four armed participants." x x x From the information in Criminal Case No. CBU-8732, it is apparent that violation of P.D. No. 532 was charged simply because the crimes transpired while the victim, Romeo Laurente, "was walking along A. Lopez St., a public highway." In this regard, in the same Puno case, the Court said: "Erroneous advertence is nevertheless made by the court below to the fact that the crime of robbery committed by appellants should be covered by the amendatory decree just because it was committed on a highway. If the mere fact that the offense charged was committed on a highway would be the determinant for the application of Presidential Decree No. 532, it would not be far-fetched to expect mischievous, if not absurd, effects on the corpus of our substantive criminal law. PEOPLE vs LARRY LAURENTE G.R. No. 116734. March 29, 1996
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We declare at the outset that even granting ex gratia that the established facts prove beyond reasonable doubt that Laurente and his two co-accused indeed committed the acts charged in the information, Laurente cannot be validly convicted for highway robbery with homicide under P.D. No. 532. The object of the decree is to deter and punish lawless elements who commit acts of depredation upon persons and properties of innocent and defenseless inhabitants who travel from one place to another which acts constitute either piracy or highway robbery/brigandage thereby disturbing the peace, order, and tranquility of the nation and stunting the economic and social progress of the people. It is directed against acts of robbery perpetrated by outlaws indiscriminately against any person on Philippine highways, as defined therein, and not those committed against a predetermined or particular victim. Accordingly, a robbery committed on a Philippine highway by persons who are not members of the prescribed lawless elements or directed only against a specific, intended, or preconceived victim, is not a violation of P.D. No. 532. x x x If the mere fact that the offense charged was committed on a highway would be the determinant for the application of Presidential Decree No. 532, it would not be far-fetched to expect mischievous, if not absurd, effects on the corpus of our substantive criminal law. For, if a motor vehicle, either stationary or moving on a highway, is forcibly taken at gunpoint by the accused who happened to take a fancy thereto, would the location of the vehicle at the time of the unlawful taking necessarily put the offense within the ambit of Presidential Decree No. 532, thus rendering nugatory the categorical provisions of the Anti-Carnapping Act of 1972? And, if the scenario is one where the subject matter of the unlawful asportation is large cattle which are incidentally being herded along and traversing the same highway and are impulsively set upon by the accused, should we apply Presidential Decree No. 532 and completely disregard the explicit prescriptions in the Anti-Cattle Rustling Law of 1974? We do not entertain any doubt, therefore, that the coincidental fact that the robbery in the present case was committed inside a car which, in the natural course of things, was casually operating on a highway, is not within the situation envisaged by Section 2(e) of the decree in its definition of terms. Besides, that particular provision precisely define[s] "highway robbery/brigandage" and, as we have amply demonstrated, the single act of robbery conceived and committed by appellants in this case does not constitute highway robbery or brigandage. In the instant case, there is not a shred of evidence that Laurente and his co-accused, or their acts, fall within the purview of P.D. No. 532, as interpreted above. Thus, to repeat, Laurente cannot be validly convicted for highway robbery with homicide under P.D. No 532. PEOPLE vs ARMANDO REANZARES G.R. No. 130656. June 29, 2000 The accused was convicted in the RPC of the crime of violation of PD 532 highway robbery with homicide in RTC and he was sentenced to death. A couple, Gregorio and Lilia Taktakan, owned a sari-sari store. They closed their sari-sari store and were ready to go home to their barangay to San Roque, Batangas. When they rode their passenger jeepney, two men, one was Reanzares, held the couple up, Lilia was shot and died on the spot. Two informations were filed. One is for violation of PD 532 with homicide and the other is for carnapping. He was acquitted in carnapping for insufficiency of evidence. HELD: Indeed the accused is guilty. But that the accused was guilty of Highway Robbery with Homicide under PD 532 was erroneous. As held in a number of cases, conviction for highway robbery requires proof that several accused were organized for the purpose of committing it indiscriminately. There is no proof in the instant case that the accused and his cohorts organized themselves to commit highway robbery. Neither is there proof that they attempted to commit similar robberies to show the "indiscriminate" perpetration thereof. On the other hand, what the prosecution established was only a single act of robbery against the particular persons of the Tactacan spouses. Clearly, this single act of depredation is not what is contemplated under PD 532 as its objective is to deter and punish lawless elements who commit acts of depredation upon persons and properties of innocent and defenseless inhabitants who travel from one place to
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another thereby disturbing the peace and tranquility of the nation and stunting the economic and social progress of the people.
PD 1612 ANTI-FENCING LAW OF 1979

In the special law of ANTI-FENCING LAW, the one who buys, receives, keep etc, may be liable as an accessory to the crime of robbery or theft, OR as a principal in this special law. The prosecutor has a choice. 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 - dispose of - 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 robbery or theft. "Fence" includes any person, firm, association corporation or partnership or other organization who/which commits the act of fencing. NB: intent to gain may not be an element. THERE IS NO FENCING WITHOUT ROBBERY OR THEFT The fence is not in conspiracy of the robber or thief otherwise he is liable for robbery or theft. Under RPC, a fence may be an accessory to the crime of robbery or theft. Under this special law, such person, the fence is a principal in the crime of fencing. Basis of penalty = value of thing Before the enactment of PD 1612 in 1979 the fence could only be prosecuted as an accessory after the fact of robbery and theft as the term is defined in article 19 but the penalty is light as it is 2 degrees lower. PD 1612 was enacted to impose heavy penalties on those persons who profits to the crime of robbery and/or theft. Fencing is a distinct crime from theft and robbery. If the participant who profited is being prosecuted with person who robbed, the person is prosecuted as an accessory. If he is being prosecuted separately, the person who partook of the proceeds is liable for fencing. Presumption of fencing: (Sec. 5) Mere possession of any good, article, item, or object, or anything of value which has been subject of robbery or thievery shall be prima facie evidence of fencing.
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ERNESTO DUMLAO vs. CA AUGUST 22, 1996 Dumlao was charged with anti-fencing because he has in his possession pipes, which actually belong to the complainant. He displayed it there in his store. He said that there was someone who went in his compound and dumped the pipes in his compound. He took it and displayed it. He said there was no proof that there was intent to gain and that there was no proof of purchase. HELD: The law does not require proof of purchaser, because mere possession is prima facie evidence.
Since Section 5 of Presidential Decree No. 1612 expressly provides that mere possession of anything of value which has been subject of theft or robbery shall be prima facie evidence of fencing, it follows that a possessor of stolen goods is presumed to have knowledge that the goods found in his possession after the fact of theft or robbery has been established. The presumption does not offend the presumption of innocence in the fundamental law. This was the ruling in Pamintuan v. People, decided on July 11, 1994. Burden of proof is upon fence to overcome presumption; if explanation insufficient or unsatisfactory, court will convict. This is a malum prohibitum so intent is not material. But if prosecution is under the Revised Penal Code, as an accessory, the criminal intent is controlling.
PAMINTUAN vs PEOPLE G.R. No. 111426. July 11, 1994 Stolen jewelries, displayed inside a showcase in a stall, were recovered from herein petitioner. Consequently, the latter was charged for violation of PD1612. As a defense, petitioner argued that she did not know that the jewelries were stolen. HELD: On the element of knowledge that the items are derived from the proceeds of the crime of robbery and of intent to gain for herself or for another, the Anti-Fencing Law provides: 'Sec. 5. Presumption of Fencing. Mere possession of any good, article, item, object, or anything of value which has been the subject of robbery of thievery shall be prima facie evidence of fencing.' Knowledge and intent to gain are proven by the fact that these jewelries were found in possession of appellant and they were displayed for sale in a showcase being tended by her in a stall along Florentino Street, Sta. Cruz, Manila." THE ELEMENTS OF THE CRIME OF FENCING ARE: 1. A crime of robbery of theft has been committed; 2. The accused, who is not a principal or accomplice in the commission of the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any article, item, object or anything of value, which has been derived from the proceeds of the said crime; 3. The accused knows or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; and 4. There is, on the part of the accused, intent to gain for himself or for another. In the instant case, there is no doubt that the first, second, and fourth elements were duly established. The more crucial issue to be resolved is whether the prosecution proved the existence of the third element: that the accused know or should have known that the items recovered from here were the proceeds of the crime of robbery of theft. xx x Knowledge refers to a mental state of awareness about a fact. Since the court cannot penetrate the mind of an accused and state with certainty what is contained therein, it must
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determine such knowledge with care from the overt acts of that person. And given two equally plausible states of cognition or mental awareness, the court should choose the one which sustains the constitutional presumption of innocence. Since Section 5 of P.D. No. 1612 expressly provides that "[m]ere possession of any good, article, item, object, or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing," it follows that the petitioner is presumed to have knowledge of the fact that the items found in her possession were the proceeds of robbery or theft. The presumption is reasonable for no other natural or logical inference can arise from the established fact of her possession of the proceeds of the crime of robbery or theft. This presumption does not offend the presumption of innocence enshrined in the fundamental law. xx x The petitioner was unable to rebut the presumption under P.D. No. 1612. She relied solely on the testimony of her brother which was insufficient to overcome the presumption, and, on the contrary, even disclosed that the petitioner was engaged in the purchase and sale of jewelry and that she used to buy from a certain Fredo. Fredo was not presented as a witness and it was not established that he was a licensed dealer or supplier of jewelry. Section 6 of P.D. No. 1612 provides that "all stores, establishments or entities dealing in the buy and sell of any good, article, item, object or anything of value obtained from an unlicensed dealer or supplier thereof, shall before offering the same for sale to the public, secure the necessary clearance or permit from the station commander of the Integrated National Police in the town or city where such store, establishment or entity is located." Under the Rules and Regulations promulgated to carry out the provisions of Section 6, an unlicensed dealer/supplier refers to any person, partnership, firm, corporation, association or any other entity or establishment not licensed by the government to engage in the business of dealing in or supplying "used secondhand articles," which refers to any good, article, item, object or anything of value obtained from an unlicensed dealer or supplier, regardless of whether the same has actually or in fact been used.
Is the crime of "fencing" a continuing offense that could allow the filing of an information therefor in the place where the robbery or theft is committed and not necessarily where the property unlawfully taken is found to have later been acquired? In People v. Judge de Guzman , infra, it was held that fencing is not a continuing offense. Jurisdiction is with the court of the place where the personal property subject of the robbery or theft was possessed, bought, kept, or dealt with. The place where the theft or robbery was committed was inconsequential.
PEOPLE vs HON. DE GUZMAN G.R. No. 77368. October 5, 1993 Robbery was committed in Quezon City in the house of Obillos where various pieces of precious jewelry alleged to be worth millions of pesos were taken. An information was instituted against the perpetrators in the RTC of Quezon City. The jewels were recovered in Antipolo, Rizal, from Sps. Alcantara. But the information against the latter was also filed in Quezon City for violation of PD 1612. Accused Sps Alcantara moved to quash the information alleging that the RTC of Quezon City has no jurisdiction over the crime charged because the jewels were recovered in Antipolo, Rizal NOT Quezon City. The Solicitor General argued that an essential element of the crime of fencing is the commission of robbery, in this case committed in Quezon City. He theorizes that fencing is a "continuing offense." However, the Supreme Court ruled that fencing is NOT a continuing offense.
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In People vs. Ledesma, we said: ". . . a 'continuous crime' is a single crime consisting of a series of acts arising from a single criminal resolution or intent not susceptible of division. For it to exist there should be (1) plurality of acts performed separately during a period of time; (2) unity of penal provision infringed upon or violated; (3) unity of criminal intent or purpose, which means that two or more violations of the same penal provision are united in one and the same intent leading to the perpetration of the same criminal purpose or aim. CRIMINAL LAW; ROBBERY; DISTINGUISHED FROM FENCING Robbery is the taking of personal property belonging to another, with intent to gain, by means of violence against or intimidation of any person, or using force upon anything. "Fencing," upon the other hand, 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 shall be known to him, to have been derived from the proceeds of the crime of robbery or theft. The crimes of robbery and fencing are clearly then two distinct offenses. The law on fencing does not require the accused to have participated in the criminal design to commit, or to have been in any wise involved in the commission of, the crime of robbery or theft. Neither is the crime of robbery or theft made to depend on an act of fencing in order that it can be consummated. True, the object property in fencing must have been previously taken by means of either robbery of theft but the place where the robbery or theft occurs is inconsequential.
The prosecution must prove the guilt of the accused by establishing the existence of all the elements of the crime charged. Otherwise, acquittal is proper.
RAMON TAN vs Pp G.R. No. 134298. August 26, 1999 Complainant Rosita Lim testified that she lost certain items and Manuelito Mendez confessed that he stole those items and sold them to the accused. However, Rosita Lim never reported the theft or even loss to the police. She admitted that after Manuelito Mendez, her former employee, confessed to the unlawful taking of the items, she forgave him, and did not prosecute him. Theft is a public crime. It can be prosecuted de oficio, or even without a private complainant, but it cannot be without a victim. As complainant Rosita Lim reported no loss, we cannot hold for certain that there was committed a crime of theft. Thus, the first element of the crime of fencing is absent, that is, a crime of robbery or theft has been committed. xx x There must be corroboration by evidence of corpus delicti to sustain a finding of guilt. Corpus delicti means the "body or substance of the crime, and, in its primary sense, refers to the fact that the crime has been actually committed." In this case, the theft was not proved because complainant Rosita Lim did not complain to the public authorities of the felonious taking of her property. She sought out her former employee Manuelito Mendez, who confessed that he stole certain articles from the warehouse of the complainant and sold them to petitioner. Such confession is insufficient to convict, without evidence of corpus delicti. What is more, there was no showing at all that the accused knew or should have known that the very stolen articles were the ones sold to him. Without petitioner knowing that he acquired stolen articles, he can not be guilty of "fencing". Consequently, the prosecution has failed to establish the essential elements of fencing, and thus petitioner is entitled to an acquittal.
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When there is notice to person buying, there may be fencing such as when the price is way below ordinary prices; this may serve as notice. He may be liable for fencing even if he paid the price because of the presumption. You ought to know that the articles sold to you are stolen. You should be wary. Example: TV set is sold to you and you know for a fact that it costs 50,000 but a man sold it to you for 1,500. Therefore, you ought to know. The law of fencing does not require the accused to have participated in the criminal design to commit or to have been otherwise involved in the crime of robbery or theft.
Chapter Three THEFT

THEFT - committed by any person who, with intent to gain but without violence against or intimidation of persons nor force upon things, shall take personal property of another without the latters consent. ARTICLE 308 WHO ARE LIABLE FOR THEFT A. Who are liable? 1. those who: (a) with intent to gain, [presumed] (b) but without violence against or intimidation of persons nor force upon things, (c) take (d) personal property (e) of another (f) without the latters consent 2. those who: (a) having found lost property (b) fail to deliver the same to the local authorities or to its owner
Finder of lost property NOT limited to ACTUAL finder BUT finder IN LAW. Thus, A found a purse belonging to C. A gave it to B, a policeman. Instead of giving it to C, B appropriated it. HELD: B is liable for theft
3. those who: (a) after having maliciously damaged the property of another,
(b)
remove or make use of the fruits or object of the damage caused by them.
Example: X and Y had a quarrel. X killed the pet of Y, which is a pig; he subsequently took it and cooked it. The crime is theft. But if X just killed piggy but did not cook it, the crime is malicious mischief damaging the property of another for the sake of damaging it as a result of hatred or revenge. (always take note or consider the intent of the offender. If to gain from it all, it is theft. If not, like if he just want to destroy the piggy, then it is malicious mischief)
4. those who: (a) enter an enclosed estate or a field where (b) trespass is forbidden or which belongs to another and , without consent of its owner (c) hunt or fish upon the same or gather fruits, cereals or other forest or farm products.
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Take note that any person who shall enter an enclosed estate where trespass is forbidden in order to hunt or to fish the crime is theft and not the crime of Other Form Of Trespass under article 281 of RPC. The trespass here in theft is a means to commit the crime of theft, so that trespass is absorbed in the crime of theft. The distinction is again INTENT TO GAIN.
Q: how will you distinguish simple theft by taking fish AND qualified theft by taking fish? A: in simple theft, there is no fishpond, the estate has only a sapa, but if you take it from a fishpond or fishery, it becomes qualified theft. Reason: we have to protect our fishpond industry. N.B. In theft = property is taken; ARTICLE 309 PENALTIES Basis of penalties of theft: In estafa = the property is delivered
1.
the value of the thing stolen, and in some cases
2. the value and also the nature of the property taken, or 3. The circumstances and causes that impelled the culprit to commit the crime. Q: suppose there is a check valued at 10,000 and stolen. How will you determine the penalty if property stolen is a check? A: it is the face value of the check. Q: suppose the check is valueless, because it may be a stale check. What is the penalty? A: the penalty is value of the property less than 5.00 (in PEOPLE vs. REYES, SC said that if there is no available evidence to prove it or that the prosecution fails to prove it, the court should impose the minimum penalty corresponding to theft involving the value of 5.00)
PEOPLE vs. SERANILLA, SANCHEZ and DE JOYA G.R. No. L-54090. May 9, 1988 Accused De Joya and Sanchez allege that there was no crime committed considering the finding that the checks were of no commercial value. SC held: It is of no moment that there was real or actual gain. The important consideration is that there was an intent to gain. It is one of the essential elements of theft. (People v. Mercado, 65 Phil. 665).
NB: In theft, it does not matter from whom the property is taken; it may be from the owner, caretaker, and bailee Theft may even be committed by taking property of another thieve. ARTICLE 310 QUALIFIED THEFT Theft is qualified:
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1. 2.
if the theft is committed by a domestic servant (always qualified) if the theft is committed with grave abuse of confidence (owners trust
Theft by a housemate not always qualified because the fact of them living together under the same roof produces some confidence, it is not necessarily grave.
violated)
3. If the property stolen is a
a. c.
Motor vehicle (in anti-carnapping law, there is a definition of what
is a motor vehicle. In RPC no definition) b. mail matter large cattle (in anti-cattle rustling law, large cattle is defined but in
RPC no definition) 4. if the property stolen consists of coconuts taken from the premises of the plantation (if the coconuts were stolen from your backyard, not qualified theft because a backyard is not a plantation) 5. if the property stolen is fish taken from the fishpond or fishery 6. if property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance (if this happens, there will be no aggravating circumstance anymore because the crime is already qualified)
Jurisprudential trend in THEFT (2007)

Article 308 provides for a general definition of theft, and three alternative and highly idiosyncratic means by which theft may be committed. On the face of the definition, there is only one operative act of execution by the actor involved in theft the taking of personal property of another. It is also clear from the provision that in order that such taking may be qualified as theft, there must further be present the descriptive circumstances that the taking was with intent to gain; without force upon things or violence against or intimidation of persons; and it was without the consent of the owner of the property.
o o
Indeed, we have long recognized the following elements of theft as provided for in Article 308 of the Revised Penal Code, namely: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be accomplished without the use of violence against or intimidation of persons or force upon things. In Spanish law, animo lucrandi was compounded with apoderamiento, or "unlawful taking," to characterize theft. Justice Regalado notes that the concept of apoderamiento once had a controversial interpretation and application. Spanish law had already discounted the belief that mere physical taking was constitutive of apoderamiento, finding that it had to be coupled with "the intent to appropriate the object in order to constitute apoderamiento; and to appropriate means to deprive the lawful owner of the thing." However, a conflicting line of cases decided by the Court of Appeals ruled, alternatively, that there must be permanency in the taking or an intent to permanently deprive the owner of the stolen property; or that there was no need for permanency in the taking or in its intent, as the mere temporary possession by the offender or disturbance of the proprietary rights of the owner already constituted apoderamiento. Ultimately, as Justice Regalado notes, the Court adopted the latter thought that there was no need of an intent to permanently deprive the owner of his property to constitute an unlawful taking.
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o o
So long as the "descriptive" circumstances that qualify the taking are present, including animo lucrandi and apoderamiento, the completion of the operative act that is the taking of personal property of another establishes, at least, that the transgression went beyond the attempted stage. As applied to the present case, the moment petitioner obtained physical possession of the cases of detergent and loaded them in the pushcart, such seizure motivated by intent to gain, completed without need to inflict violence or intimidation against persons nor force upon things, and accomplished without the consent of the SM Super Sales Club, petitioner forfeited the extenuating benefit a conviction for only attempted theft would have afforded him. On the critical question of whether it was consummated or frustrated theft, we are obliged to
apply Article 6 of the Revised Penal Code to ascertain the answer. Following that provision, the theft would have been frustrated only, once the acts committed by petitioner, if ordinarily sufficient to produce theft as a consequence, "do not produce [such theft] by reason of causes independent of the will of the perpetrator." There are clearly two determinative factors to consider: that the felony is not "produced," and that such failure is due to causes independent of the will of the perpetrator. The second factor ultimately depends on the evidence at hand in each particular case. The first, however, relies primarily on a doctrinal definition attaching to the individual felonies in the Revised Penal Code as to when a particular felony is "not produced," despite the commission of all the acts of execution. THE DOCTRINE: (Theft cannot have a frustrated stage. Theft can only be attempted or
consummated)
o o o o
Synthesis of the Dio and Flores rulings is in order. The determinative characteristic as to whether the crime of theft was produced is the ability of the actor "to freely dispose of the articles stolen, even if it were only momentary." Such circumstance was not present in either Dio or Flores, as the stolen items in both cases were retrieved from the actor before they could be physically extracted from the guarded compounds from which the items were filched. However, as implied in Flores, the character of the item stolen could lead to a different conclusion as to whether there could have been "free disposition," as in the case where the chattel involved was of "much less bulk and more common . . ., [such] as money . . . ." With that in mind, a problem clearly emerges with the Dio/Flores dictum. The ability of the offender to freely dispose of the property stolen is not a constitutive element of the crime of theft. It finds no support or extension in Article 308, whether as a descriptive or operative element of theft or as the mens rea or actus reus of the felony. To restate what this Court has repeatedly held: the elements of the crime of theft as provided for in Article 308 of the Revised Penal Code are: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be accomplished without the use of violence against or intimidation of persons or force upon things. Such factor runs immaterial to the statutory definition of theft, which is the taking, with intent to gain, of personal property of another without the latter's consent. While the Dio/Flores dictum is considerate to the mindset of the offender, the statutory definition of theft considers only the perspective of intent to gain on the part of the offender, compounded by the deprivation of property on the part of the victim. For the purpose of ascertaining whether theft is susceptible of commission in the frustrated stage, the question is again, when is the crime of theft produced? There would be all but certain unanimity in the position that theft is produced when there is deprivation of personal property due to its taking by one with intent to gain. Viewed from that perspective, it is immaterial to the product of the felony that the offender, once having committed all the acts of execution for theft, is able or unable to freely dispose of the property stolen since the deprivation from the owner alone has already
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ensued from such acts of execution. This conclusion is reflected in Chief Justice Aquino's commentaries, as earlier cited, that "[i]n theft or robbery the crime is consummated after the accused had material possession of the thing with intent to appropriate the same, although his act of making use of the thing was frustrated."
It might be argued, that the ability of the offender to freely dispose of the property stolen delves into the concept of "taking" itself, in that there could be no true taking until the actor obtains such degree of control over the stolen item. But even if this were correct, the effect would be to downgrade the crime to its attempted, and not frustrated stage, for it would mean that not all the acts of execution have not been completed, the "taking not having been accomplished." Perhaps this point could serve as fertile ground for future discussion, but our concern now is whether there is indeed a crime of frustrated theft, and such consideration proves ultimately immaterial to that question. Moreover, such issue will not apply to the facts of this particular case. We are satisfied beyond reasonable doubt that the taking by the petitioner was completed in this case. With intent to gain, he acquired physical possession of the stolen cases of detergent for a considerable period of time that he was able to drop these off at a spot in the parking lot, and long enough to load these onto a taxicab.
o o o o
o
Indeed, we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from the moment the offender gains possession of the thing, even if he has no opportunity to dispose of the same. 92 And long ago, we asserted in People v. Avila: . . . [T]he most fundamental notion in the crime of theft is the taking of the thing to be appropriated into the physical power of the thief, which idea is qualified by other conditions, such as that the taking must be effected animo lucrandi and without the consent of the owner; and it will be here noted that the definition does not require that the taking should be effected against the will of the owner but merely that it should be without his consent, a distinction of no slight importance. Insofar as we consider the present question, "unlawful taking" is most material in this respect. Unlawful taking, which is the deprivation of one's personal property, is the element which produces the felony in its consummated stage. At the same time, without unlawful taking as an act of execution, the offense could only be attempted theft, if at all. With these considerations, we can only conclude that under Article 308 of the Revised Penal Code, theft cannot have a frustrated stage. Theft can only be attempted or consummated. Neither Dio nor Flores can convince us otherwise. Both fail to consider that once the offenders therein obtained possession over the stolen items, the effect of the felony has been produced as there has been deprivation of property. The presumed inability of the offenders to freely dispose of the stolen property does not negate the fact that the owners have already been deprived of their right to possession upon the completion of the taking. Moreover, as is evident in this case, the adoption of the rule that the inability of the offender to freely dispose of the stolen property frustrates the theft would introduce a convenient defense for the accused which does not reflect any legislated intent, 95 since the Court would have carved a viable means for offenders to seek a mitigated penalty under applied circumstances that do not admit of easy classification. It is difficult to formulate definite standards as to when a stolen item is susceptible to free disposal by the thief. Would this depend on the psychological belief of the offender at the time of the commission of the crime, as implied in Dio? Or, more likely, the appreciation of several classes of factual circumstances such as the size and weight of the property, the location of the property, the number and identity of people present at the scene of the crime, the number and identity of people whom the offender is expected to encounter upon fleeing with the stolen property, the manner in which the stolen item had been housed or stored; and quite frankly, a whole lot more. Even the fungibility or edibility of the stolen item would come into account, relevant as that would be on whether such property is capable of free disposal at any stage, even after the taking has been consummated. All these complications will make us lose sight of the fact that beneath all the colorful detail, the owner was indeed deprived of property by one who intended to produce such deprivation for reasons of gain.
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For such will remain the presumed fact if frustrated theft were recognized, for therein, all of the acts of execution, including the taking, have been completed. If the facts establish the non-completion of the taking due to these peculiar circumstances, the effect could be to downgrade the crime to the attempted stage, as not all of the acts of execution have been performed. But once all these acts have been executed, the taking has been completed, causing the unlawful deprivation of property, and ultimately the consummation of the theft.
o o
Maybe the Dio/Flores rulings are, in some degree, grounded in common sense. Yet they do not align with the legislated framework of the crime of theft. The Revised Penal Code provisions on theft have not been designed in such fashion as to accommodate said rulings. Again, there is no language in Article 308 that expressly or impliedly allows that the "free disposition of the items stolen" is in any way determinative of whether the crime of theft has been produced. Dio itself did not rely on Philippine laws or jurisprudence to bolster its conclusion, and the later Flores was ultimately content in relying on Dio alone for legal support. These cases do not enjoy the weight of stare decisis, and even if they did, their erroneous appreciation of our law on theft leave them susceptible to reversal. We thus conclude that under the Revised Penal Code, there is no crime of frustrated theft. As petitioner has latched the success of his appeal on our acceptance of the Dio and Flores rulings, his petition must be denied, for we decline to adopt said rulings in our jurisdiction. That it has taken all these years for us to recognize that there can be no frustrated theft under the Revised Penal Code does not detract from the correctness of this conclusion. It will take considerable amendments to our Revised Penal Code in order that frustrated theft may be recognized. Our deference to Viada yields to the higher reverence for legislative intent (VALENZUELA VS. PEOPLE, JUNE 21, 2007.
Although there is misappropriation of funds here, petitioner was correctly found guilty of theft. As early as U.S. v. de Vera, the Court has consistently ruled that not all misappropriation is estafa. Chief Justice Ramon C. Aquino, in his commentary on the Revised Penal Code, succinctly opined:
o o o o
The principal distinction between the two crimes is that in theft the thing is taken while in estafa the accused receives the property and converts it to his own use or benefit. However, there may be theft even if the accused has possession of the property. If he was entrusted only with the material or physical (natural) or de facto possession of the thing, his misappropriation of the same constitutes theft, but if he has the juridical possession of the thing, his conversion of the same constitutes embezzlement or estafa. In de Vera, the accused, Nieves de Vera, received from Pepe, an Igorot, a bar of gold weighing 559.7 grams for the purpose of having a silversmith examine the same, and bank notes amounting to P200.00 to have them exchanged for silver coins. Accused appropriated the bar of gold and bank notes. The Court ruled that the crime committed was theft and not estafa since the delivery of the personal property did not have the effect of transferring the juridical possession, thus such possession remained in the owner; and the act of disposal with gainful intent and lack of owner's consent constituted the crime of theft. In People v. Trinidad, defendant received a finger ring from the offended party for the purpose of pledging it as security for a loan of P5.00 for the benefit of said offended party. Instead of pledging the ring, the defendant immediately carried it to one of her neighbors to whom she sold it for P30.00 and appropriated the money to her own use. The Court, citing de Vera, similarly convicted defendant of theft. In People v. Locson, this Court considered deposits received by a teller in behalf of a bank as being only in the material possession of the teller. This interpretation applies with equal force to money received by a bank teller at the beginning of a business day for the purpose of servicing withdrawals. Such is only material possession. Juridical possession remains with the bank. In line with the reasoning of
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the Court in the above-cited cases, beginning with People v. de Vera, if the teller appropriates the money for personal gain then the felony committed is theft and not estafa. Further, since the teller occupies a position of confidence, and the bank places money in the teller's possession due to the confidence reposed on the teller, the felony of qualified theft would be committed.
In People v. Isaac, this Court convicted a jeepney driver of theft and not estafa when he did not return the jeepney to its owner since the motor vehicle was in the juridical possession of its owner, although physically held by the driver. The Court reasoned that the accused was not a lessee or hirer of the jeepney because the Public Service Law and its regulations prohibit a motor vehicle operator from entering into any kind of contract with any person if by the terms thereof it allows the use and operation of all or any of his equipment under a fixed rental basis. The contract with the accused being under the "boundary system," legally, the accused was not a lessee but only an employee of the owner. Thus, the accused's possession of the vehicle was only an extension of the owner's.
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 . . . with grave abuse of confidence . . . . o The elements of theft as well as the circumstances that made the same as qualified theft were sufficiently established by the prosecution. o It appears that petitioner was personally and favorably recommended by Melanie to private complainant. Since Melanie is a trusted and long-time employee/assistant of the private complainant, the latter accepted petitioner to work at the TBOS. During the initial period of her work as a saleslady in the TBOS, petitioner had performed her job well. Impressed, the private complainant reposed her full trust and confidence on the petitioner by promoting the latter to the sensitive position of a cashier. As such, petitioner had an easy access to the lists of sales report and the proceeds/cash of the daily sales. Knowing that she already enjoyed the full trust and confidence of private complainant and of her coemployees, petitioner had "systematically and repeatedly" 51 understated the amounts in the lists which contains the daily sales of the TBOS, and pocketed the money or the proceeds thereof for her personal benefit. o The lists as attached to the records clearly show that the petitioner understated the amount/figures thereof by P100 to P700 for 13 times on separate dates (January 1994 up to February 1994). 52 Evidently, such consistent understatements of small amounts were, as aptly stated by the trial court, meant to forestall detection or observation. 53 When private complainant, however, noticed the discrepancies on the lists, she confronted the petitioner. The petitioner told the private complainant that she would pay the missing amount or the corresponding shortages in the lists. Nonetheless, petitioner failed to reimburse or return the missing amount to the private complainant.
PD 133 PRESCRIBING A HEAVY PENALTY FOR THE THEFT OF ANY MATERIAL,SPARE PART, PRODUCT OR ARTICLE BY EMPLOYEES AND LABORERS
Any employee or laborer who shall steal any materials, product or article that he is working on, using, or producing shall upon conviction be punished. Example: furniture maker who shall steal his materials is liable. Purpose: to protect owners from thievery of their employers. NB: Can also be qualified theft because there is grave abuse of confidence.
PD 533 Militis Lex Fraternity 09 (by EDLER)

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ANTI-CATTLE RUSTLING LAW

Cattle Rustling and Qualified Theft of Large Cattle - The crime of cattle-rustling is defined and punished under Presidential Decree No. 533, the Anti-Cattle Rustling law of 1974, as the taking by any means, method or scheme, of any large cattle, with or without intent to gain and whether committed with or without violence against or intimidation of person or force upon things, so long as the taking is without the consent of the owner/breed thereof. The crime includes the killing or taking the meat or hide of large cattle without the consent of the owner. Since the intent to gain is not essential, the killing or destruction of large cattle, even without taking any part thereof, is NOT a crime of malicious mischief BUT cattle-rustling. The Presidential Decree, however, does not supersede the crime of qualified theft of large cattle under Article 310 of the Revised Penal Code, but merely modified the penalties provided for theft of large cattle and, to that extent, amended Articles 309 and 310. Note that the overt act that gives rise to the crime of cattle-rustling is the taking or killing of large cattle. Where the large cattle was not taken, but received by the offender from the owner/overseer thereof, the crime is not cattle-rustling; it is qualified theft of large cattle. Where the large cattle was received by the offender who thereafter misappropriated it, the crime is qualified theft under Article 310 if only physical or material possession thereof was yielded to him. If both material and juridical possession thereof was yielded to him who misappropriated the large cattle, the crime would be estafa under Article 315 (1b). Presidential Decree No. 533 is not a special law in the context of Article 10 of the Revised Penal Code. It merely modified the penalties provided for theft of large cattle under the Revised Penal Code and amended Article 309 and 310. This is explicit from Section 10 of the Presidential Decree. Consequently, the trial court should not have convicted the accused of frustrated murder separately from cattle-rustling, since the former should have been absorbed by cattle-rustling as killing was a result of or on the occasion of cattle-rustling. It should only be an aggravating circumstance. But because the information did not allege the injury, the same can no longer be appreciated; the crime should, therefore be only, simple cattle-rustling. (People v. Martinada, February 13, 1991) Presumption of cattle rustling (Sec. 7) Every person having in his possession, control or custody of large cattle shall, upon demand by competent authorities, exhibit the documents prescribed in the preceding sections. Failure to exhibit the required documents shall be prima facie evidence that the large cattle in his possession, control, or custody are the fruits of the crime of cattle rustling Penalties (Sec. 8) Irrespective of the value of the large cattle involved: 1. Without violence against or intimidation of persons or force upon things - prision mayor in its maximum period to reclusion temporal in its medium period 2. With violence against or intimidation of person or force upon things - the penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed. 3. If a person is seriously injured or killed as a result or on the occasion of the commission of cattle rustling - reclusion perpetua to death If the property taken is a large cattle the crime falls under PD 533. If the property taken is not a large cattle (but small cattle) then it is simple theft.
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Large Cattle = does not include goats (Pp vs. NAZARENO, infra) and pigs.
PEOPLE vs. HON. RAMON NAZARENO G.R. No. L-40037. April 30, 1976 The legal issue in this case is whether the theft of two goats valued at one hundred fifty pesos is qualified theft. Private respondents were charged with qualified theft in Cebu for having allegedly stolen two female goats valued at P150, penalized under the RPC. The Supreme Court ruled that goats cannot be categorized as large and therefore larceny of two goats valued at P150.00 constitute only simple theft punishable under Article 309(4) of the Revised Penal Code, We hold that the CFI and the Sol. Gen. are in error because the theft of two goats is not qualified theft. It is simple theft. Goats do not belong to the category of "large cattle" as contemplated in article 310 of the Revised Penal Code. The term "cattle" refers to domesticated quadrupeds such as sheep, horses and swine, or to bovine animals such as cows, bulls and steers. The term "large cattle" in article 310 refers to ganado mayor such as mules, as distinguished from ganado menor like sheep. Small cattle are known as ganado lanar y cabrio. The terms lanar and cabrio refer to sheep and goats, respectively. Act No. 2030, which amended articles 503, 508, 512 and 520 of the old Penal Code regarding theft of large cattle, provides that for purposes of that law the term "large cattle" includes "carabaos, horses, mules, asses, and all members of the bovine family" (Art. 367 of the Revised Penal Code repealed Act No. 2030). According to the dictionary, the word "bovine" refers to animals related to or resembling oxen or cows. They belong to the genus Bos (Bovidae). While goats may be included in the term "cattle", or belong to the bovine family (genus Capra), they cannot be included in the term "large cattle". To include goats in the term "large cattle" would render meaningless the adjective "large". The law evidently has made a distinction between large cattle and small cattle. As goats cannot be categorized as large cattle, the larceny of two goats valued at P150 is simple theft punishable under article 309(4) of the Revised Penal Code by imprisonment for two months and one day of arresto mayor medium to two years and four months of prision correccional minimum.
ARTICLE 311 THEFT OF THE PROPERTY OF THE NATIONAL LIBRARY AND NATIONAL MUSEUM Q: Mr. X took property from the national museum, what is the crime committed? A: the crime is theft of property of the national library or national museum, not theft only. Reason: this is no ordinary theft, the penalty is higher.
Chapter Four USURPATION

ARTICLE 312 OCCUPATION OF REAL PROPERTY OR USURPATION OF REAL RIGHTS IN PROPERTY A. Acts punished: 1. by taking possession of any real property belonging to another by means of violence against or intimidation of persons
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2. by usurping any real rights in property belonging to another by means of violence against or intimidation of persons B. Elements: a. that the offender takes possession of any real property or usurps any real rights in property b. that the real property or real rights belong to another c. that violence against or intimidation of persons is used by the offender in occupying real property or usurping real rights in property d. that there is intent to gain.
Although not in the definition, there must be INTENT TO GAIN. If there is no intent to gain, but there is violence, the crime is coercion. If there is no intent to gain, and no violence or intimidation of persons, there is no criminal liability, but only civil action for recovery OF REAL property or real rights.
Use the degree of intimidation to determine the degree of the penalty to be applied for the usurpation. Usurpation under Article 312 is committed in the same way as robbery with violence or intimidation of persons. The main difference is that in robbery, personal property is involved; while in usurpation of real rights, it is real property. (People v. Judge Alfeche, July 23, 1992) Q: Suppose in the taking of real property, serious or less serious physical injuries were inflicted on the offended party. May the offender be also charged with serious or less serious physical injuries? A: Yes, because under article 312 there is a phrase in addition to the penalty incurred for the acts of violence executed by him Usurpation cannot be complexed with injuries inflicted by violence used on that occasion. The penalty of the former shall be in addition of the penalties of the injuries. Usurpation of real rights and property should not be complexed using Article 48 when violence or intimidation is committed. There is only a single crime, but a two-tiered penalty is prescribed to be determined on whether the acts of violence used is akin to that in robbery in Article 294, grave threats or grave coercion and an incremental penalty of fine based on the value of the gain obtained by the offender. Therefore, it is not correct to state that the threat employed in usurping real property is absorbed in the crime; otherwise, the additional penalty would be meaningless. The complainant must be the person upon whom violence was employed. If a tenant was occupying the property and he was threatened by the offender, but it was the owner who was not in possession of the property who was named as the offended party, the same may be quashed as it does not charge an offense. The owner would, at most, be entitled to civil recourse only. On carnapping and theft of motor vehicle The taking with intent to gain of a motor vehicle belonging to another, without the latters consent, or by means of violence or intimidation of persons, or by using force upon things is penalized as carnapping under Republic Act No. 6539 (An Act Preventing and Penalizing Carnapping), as amended. The overt act which is being punished under this law as carnapping is also the taking of a motor vehicle under circumstances of theft or robbery. If the motor vehicle was not taken by the offender but was delivered by the owner or the possessor to the offender, who thereafter misappropriated the same, the crime is either qualified
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theft under Article 310 of the Revised Penal Code OR estafa under Article 315 (b) of the Revised Penal Code. Qualified theft of a motor vehicle is the crime if only the material or physical possession was yielded to the offender; otherwise, if juridical possession was also yielded, the crime is estafa. On squatting According to the Urban Development and Housing Act, the following are squatters: 1. Those who have the capacity or means to pay rent or for legitimate housing but are squatting anyway; 2. Also the persons who were awarded lots but sold or lease them out; 3. Intruders of lands reserved for socialized housing, pre-empting possession by occupying the same. ARTICLE 313 ALTERING BOUNDARIES OR LANDMARKS A. Elements: 1. there are boundary marks or monuments of towns, provinces, or estates, or any other marks intended to designate the boundaries of the same 2. that the offender alters said boundary marks NB: Boundaries and landmarks here refer to private and public lands. Here, the element of intent to gain is absent. Leading cases: PEOPLE vs. ECHAVES PD 772 has already been repealed! No more squatting on private lands But there is still squatting of public agricultural lands under RA 947 Republic Act No. 947 SECTION 1. It shall be unlawful for any person, corporation or association to enter or occupy, through force, intimidation, threat, strategy or stealth, any public agricultural land including such public lands as are granted to private individuals under the provisions of the Public Land Act or any other laws providing for the disposal of public agricultural lands in the Philippines, and are duly covered by the corresponding applications required for the purpose notwithstanding the fact that title thereto still remains in the Government; or for any person, natural or juridical, to instigate, induce or force another to commit such acts.
Chapter Five CULPABLE INSOLVENCY

ARTICLE 314 FRAUDULENT INSOLVENCY A. Elements:
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1. that the offender is a debtor; that ism he has an obligation due and payable 2. he absconds with his property (property here is not defined, so it may be personal or real) 3. that there be prejudice to his creditors
Illustration: You are indebted and you are sued for collection and you abscond and brought with you your properties, you are liable under this article. But if you abscond but you still have property worth 1,000,000. Is there fraudulent insolvency? No because the creditor will not be prejudiced. You are sued for collection of sum of money and you executed fraudulent sales of your property to another. Fraudulent insolvency because it is absconding your property actually.
NB: Actual prejudice or damage must have been caused by the absconder to his creditors. This is required The culpable insolvency referred to in this article is a criminal act and is different from that involved in the proceedings under the Insolvency Law (Act No. 1956) which refers to absconding after the institution of the aforesaid proceedings. The crime in this article may be committed even without any insolvency proceedings having been instituted.
Chapter Six SWINDLING AND OTHER DECEITS

ARTICLE 315 SWINDLING (ESTAFA) ESTAFA Juridical possession of the object is transferred to the accused who later converts the same to his own use or purpose. There is transfer or juridical possession when the transfer of property is made by virtue of an obligation created by contract or by law which grants to the transferee with a right to possession which he may even set/seek out against. Elements in general 1. Accused defrauded another by (1) abuse of confidence OR (2) by means of deceit; and This covers the three different ways of committing estafa under Article 315; thus, estafa is committed a. With unfaithfulness OR abuse of confidence; b. By means of false pretenses OR fraudulents acts; or c. Through fraudulent means. THEFT Physical or material possession of the object is transferred and it is taken, it is theft
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(The first form under subdivision 1 is known as estafa with abuse of confidence; and the second and third forms under subdivisions 2 and 3 cover cover estafa by means of deceit.)
2. Damage or prejudice capable of pecuniary estimation is caused to the offended party or third person.
This is the basis of the penalty, so therefore, damage must be capable of pecuniary estimaion
One element of estafa is DAMAGE. One damage here may be temporary disturbance of property rights. Temporary deprivation is sufficient damage. In estafa the profit or gain obtained by the accused personally and his mere negligence in permitting, another to benefit from the transaction is not estafa. Pp vs NEP0MUCENO
Estafa or Swindling is committed by any person who shall defraud another by any of the means mentioned here below:
Elements of estafa with unfaithfulness of abuse of confidence under Article 315 (1) Deceit is not an essential element in this subdivision. (US vs Pascual, 10 Phil 321) This is so because abuse of confidence and deceit are two different means in committing estafa. In the crime of estafa with abuse of confidence, the very thing received must be the same thing entrusted. If the offender is given a choice to return a substitute and he appropriated the thing entrusted, the crime of estafa will not arise because the relation of entrustor-entrustee no longer exists. There must be an obligation to deliver or return the same thing, goods, money, or personal property that the accused received. The moment that there is that authority to give a substitute or replacement the crime of estafa will not arise. The offender is entrusted by the offended party and the offender violated that trust. In the first place, the offended party must have entrusted something to the offender. If what is transfered is the mere physical possession but no juridical possession, the crime is theft. But if what is transfered is juridical possession, then the crime is swindling. Therefore, fiduciary relationship (a relationship of trust and confidence) between the complainant and the accused is an essential element of this kind of estafa. Physical possession is only material possession is transferred. In juridical possession, not only material possession is transferred but also possession of rights in the concept of an owner. When ownership is transferred, there is no more fiduciary relationship, and failure of the person who has received it will only give rise to civil liability and not estafa. Under paragraph (a) 1. Offender HAS an onerous obligation to deliver something of value, eventhough such obligation be based on an immoral or illegal consideration; 2. He alters its substance, quantity, or quality; 3. Damage or prejudice is caused to another.
Thus, if donation is transferred by a gratuitous title and there is alteration, there is no estafa. There must be an agreement as to the quality of the thing to be delivered, otherwise, no estafa
Under paragraph (b) 1. Money, goods, or other personal property is received by the offender in trust, OR on commission, OR for administration, OR under any other obligation involving the duty to make delivery of, or to return, the same;
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2. There is misappropriation OR conversion of such money or property by the offender, OR denial on his part of such receipt; 3. Such misappropriation or conversion OR denial is to the prejudice of another; and 4. There is a demand made by the offended party to the offender.
(The fourth element is not necessary when there is evidence of misappropriation of the goods by the defendant. [Tubb v. People, et al., 101 Phil. 114] ).
In Kim v. People, 193 SCRA 344, it was held that if an employee receives cash advance from his employer to defray his travel expenses, his failure to return unspent amount is not estafa through misappropriation or conversion because ownership of the money was transferred to employee and no fiduciary relation was created in respect to such advance. The money is a loan. The employee has no legal obligation to return the same money, that is, the same bills and coins received. In Saddul Jr. v. CA, 192 SCRA 277, it was held that the act of using or disposing of anothers property as if it were ones own, or of devoting it to a purpose or use different from that agreed upon, is a misappropriation and conversion to the prejudice of the owner. Conversion is unauthorized assumption an exercise of the right of ownership over goods and chattels belonging to another, resulting in the alteration of their condition or exclusion of the owners rights. In Allied Bank Corporation v. Secretary Ordonez, 192 SCRA 246, it was held that under Section 13 of Presidential Decree No. 115, the failure of an entrustee to turn over the proceeds of sale of the goods covered by the Trust Receipt, or to return said goods if they are not sold, is punishable as estafa Article 315 (1) (b). Illustration:
Goods are assigned to another to be sold by the latter within a period of 60 days. If goods are sold, proceeds are remitted and commission is received. If the goods are unsold, you return items. After the lapse of 60 days, the proceeds are not remitted, if sold, or returned if unsold, there is estafa. (See TRUST RECEIPTS LAW PD 115)
Under Presidential Decree No. 115, the failure of the 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 appearing in the trust receipt; or the failure to return said goods, documents, or instruments if they were not sold or disposed of in accordance with the terms of the trust receipt constitute estafa. SECTION 4 OF PD 115 defines a "trust receipt" and a "trust receipt transaction" for purposes of the decree in the following terms: Sec. 4. What constitutes a trust receipt transaction. A trust receipt transaction, within the meaning of this Decree, is any transaction by and between a person referred to in this Decree as the entruster, and another person referred to in this Decree as the entrustee, whereby the entruster, who owns or holds absolute title or security interests over certain specified goods documents or instruments, releases the same to the possession of the entrustee upon the latter's execution and delivery to the entruster of a signed document called a 'trust receipt' wherein the entrustee binds himself to hold the designated goods, documents or instruments in trust for the entruster and to sell or otherwise dispose of the goods, documents or instruments with the obligation to turn over to the entruster the proceeds thereof to the extent of the amount owing to the entruster or as appears in the trust receipt or the goods, documents or instruments themselves if they are unsold or not otherwise disposed of , in accordance with the terms and conditions specified in the trust receipt, . . ."
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Under paragraph (c) 1. The paper with the signature of the offended party is in blank; 2. Offended party delivered it to the offender; 3. Above the signature of the offended party, a document is written by the offender without authority to do so (taking undue advantage); 4. The document so written creates a liability of, or causes damage to, the offended party OR any third person. Elements of estafa by means of false pretenses or fraudulent ACTS EXECUTED PRIOR TO OR SIMULTANEOUS WITH THE COMMISSION OF THE FRAUD under Article 315 (2) Acts punished under paragraph (a) 1. Using fictitious name; 2. Falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions; or 3. By means of other similar deceits. Under paragraph (b) Altering the quality, fineness, or weight of anything pertaining to his art or business. Under paragraph (c) 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. Under paragraph (d) 1. Offender postdated a check, or issued a check in payment of an obligation; 2. Such postdating or issuing a check was done when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check. Note that this only applies if (1) The obligation is not pre-existing; (2) The check is drawn to enter into an obligation;
(Remember that it is the check that is supposed to be the sole consideration for the other party to have entered into the obligation. For example, Rose wants to purchase a bracelet and draws a check without insufficient funds. The jeweler sells her the bracelet solely because of the consideration in the check.)
(3) It does not cover checks where the purpose of drawing the check is to guarantee a loan as this is not an obligation contemplated in this paragraph The check must be genuine. If the check is falsified and is cashed with the bank or exchanged for cash, the crime is estafa thru falsification of a commercial document. The general rule is that the accused must be able to obtain something from the offended party by means of the check he issued and delivered. Exception: when the check is issued not in payment of an obligation. It must not be promissory notes, or guaranties.
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Good faith is a defense. If the checks were issued by the defendant and he received money for them, then stopped payment and did not return the money, and he had an intention to stop payment when he issued the check, there is estafa. Deceit is presumed if the drawer fails to deposit the amount necessary to cover the check within three days from receipt of notice of dishonor or insufficiency of funds in the bank.
Updates in ESTAFA (2005-2008)

The elements of estafa under Art. 315, par. 1 (b) of the RPC 10 are as follows: (1) that money, goods or other personal property is received by the offender in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return the same; (2) that there be misappropriation or conversion of such money or property by the offender or denial on his part of such receipt; and (3) that such misappropriation or conversion or denial is to the prejudice of another. o Although the trial court only mentioned in passing that damage was caused to private complainant Uy, it cannot be denied that there exists a factual basis for holding that petitioner's refusal to account for or return the pieces of jewelry had prejudiced the rights and interests of Uy. Certainly, disturbance of property rights is equivalent to damage and is in itself sufficient to constitute injury within the meaning of Art. 315, par. 1 (b) of the RPC. 12 In this case, Uy, who is a businessman, not only failed to recover his investment but also lost the opportunity to realize profits therefrom. Anxiety also set in as he ran the risk of being sued by the person who likewise entrusted him the same pieces of jewelry. To assert his legal recourse, Uy further incurred expenses in hiring a lawyer and in litigating the case. The elements of estafa with abuse of confidence under this provision are as follows: 1. That money, goods, or other personal property be received by the offender in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return, the same; 2. That there be misappropriation or conversion of such money or property by the offender; or denial on his part of such receipt; 3. That such misappropriation or conversion or denial is to the prejudice of another; and 4. That there is a demand made by the offended party to the offender. o Petitioner had the obligation to return the amount of P150,000 which he failed to pay to the BOC as agreed upon. The obligation or duty to make delivery or to return personal property is broad enough to include a civil obligation arising by agreement of private complainant and petitioner. While not denying receipt of the check of the said amount, petitioner unreasonably maintains that no written agreement expressly enjoined him to remit the money to the BOC or to return it to private complainant if no payment was made. His reasoning is distorted, to say the least.
o
o
The distinction between the conversion of a check and the conversion of cash in relation to the formal allegation in the information of conversion of a specific sum of money is not material in estafa. 16 "[T]he delivery by the [private complainant] of the check and its acceptance by [petitioner] signified not merely the transfer to [petitioner] of the money belonging to [private complainant, it] also marked the creation of a fiduciary relation between the parties." 17 More important, however, is the fact that the law provides only the degree of proof necessary to engender moral certainty and does not require any specific form whether oral or documentary to produce conviction beyond reasonable doubt. 18 The essential facts establishing the elements of the crime may be proven by pure testimony. The records clearly establish that the arrangement either for the remittance to the BOC or the return of the money to private complainant in fact existed. Petitioner even wants us to believe that the money was an "additional cost" of the car without any proof save his self-serving statement to this effect. Yet, contrary to this stance, he also posits that he was not able to raise his share of the tax burden, hence, he could not remit the full amount to the BOC to settle the tax deficiency. Likewise, contradictory to his initial stance, petitioner even offered, albeit belatedly, to return the P150,000. For sure, the money was delivered to petitioner for a particular purpose, the non-fulfillment of which mandated its return.
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o o o o
stated:
The words "convert" and "misappropriate" connote an act of using or disposing of another's property as if it were one's own or devoting it to a purpose or use different from that agreed upon. 20 To misappropriate for one's own use includes not only conversion to one's personal advantage but also every attempt to dispose of the property of another without any right. On the element of conversion or misappropriation, the court a quo, as upheld by the CA,
In the instant case, [petitioner] admittedly converted or diverted the check he received by encashing it from the drawee bank, and yet, did not pay the deficiency custom duties and taxes as agreed upon. . . . 22 As to what circumstances justify a party so receiving money to withhold the application of the same to the agreed purpose, there is no fixed rule. 23 Each case should be decided based on its own particular facts. Reference must be made primarily to the good or bad faith exhibited by the accused in withholding the money from the use for which it was intended to be applied. 24 In this case, petitioner never gave a good reason for not remitting the money to the BOC or for not returning it to private complainant. Petitioner only made self-serving statements to justify withholding the P150,000. The ruling in the civil case declaring that the importer, neither petitioner nor private complainant, was required by law to pay the deficiency taxes did not vindicate petitioner. The ruling of the court did not justify his withholding the amount which was entrusted to him as private complainant's share in the tax burden; it only identified the proper taxpayer of the subject tax. Petitioner only offered to return the money after the filing of the civil case against him and after being charged before the city prosecutor for estafa. 25 Indeed, the misappropriation or conversion by petitioner caused prejudice to private complainant and his wife. Damage as an element of estafa may consist in (1) the offended party being deprived of his money or property as a result of the defraudation; (2) disturbance in property right; or (3) temporary prejudice. 26
o o o
o
Registration of the car in the name of private complainant's wife still had not been accomplished as of the time this petition was filed since the taxes due remained unpaid. Granting that both petitioner and private complainant were not liable therefor, the money supposedly meant for the BOC fell into the wrong hands. Finally, even if demand is not required by law, it is necessary to prove misappropriation. Failure to account, upon demand, is circumstantial evidence of misappropriation. The consummation of the crime of [estafa]. . . does not depend on the fact that a request for the return of the money is first made and refused in order that the author of the crime should comply with the obligation to return the sum misapplied. The appropriation or conversion of money received to the prejudice of the owner thereof [is] the sole essential [fact] which constitute the crime of [estafa], and thereupon the author thereof incurs the penalty imposed by the [RPC].
Deceit and damage are the essential elements of estafa. Deceit to constitute estafa under above-quoted Article 315 2 (d) of the Revised Penal Code must be the efficient cause of the defraudation. There must be concomitance: the issuance of the check should be the means to obtain money or property from the payer. All these elements are present in the case at bar. Petitioner admitted having received in trust the amount of PhP100,000 from Castro; the amount was misappropriated or converted; such misappropriation or conversion was to the prejudice of Castro; and Castro demanded payment from petitioner.
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Petitioner asserts that upon receipt of the amount, it was transferred to her and she was not prohibited to use or spend the same. 16 The very same money cannot be returned but only the same amount. This makes the transaction a loan and not a trust agreement; thus, her liability is merely civil and not criminal. Petitioner's arguments are not meritorious. Art. 315 1 (b) explicitly includes money in its scope. The nature of money, that is, the exact bills and coins received in trust cannot be returned, was already considered by the law. As long as the money was received in trust, on commission, for administration, or under an obligation to return, failure to account for it upon demand is punishable under Art. 315 1 (b). With regard to the necessity of demand, we agree with the CA that demand under this kind of estafa need not be formal or written. The appellate court observed that the law is silent with regard to the form of demand in estafa under Art. 315 1 (b), thus:
o o o o
o
When the law does not qualify, We should not qualify. Should a written demand be necessary, the law would have stated so. Otherwise, the word "demand" should be interpreted in its general meaning as to include both written and oral demand. Thus, the failure of the prosecution to present a written demand as evidence is not fatal. 19 In Tubb v. People, where the complainant merely verbally inquired about the money entrusted to the accused, we held that the query was tantamount to a demand, thus: [T]he law does not require a demand as a condition precedent to the existence of the crime of embezzlement. It so happens only that failure to account, upon demand for funds or property held in trust, is circumstantial evidence of misappropriation. The same way, however, be established by other proof, such as that introduced in the case at bar. Similarly in this case, there was a demand for petitioner to pay private complainant. This was admitted by petitioner and the private complainant in their testimonies. Castro stated that she went to the house of petitioner in Pangasinan to demand the return of the money, while petitioner stated that Castro demanded the return of the "down payment" because allegedly, the sale did not materialize. In both versions, the fact remains that demand was made upon petitioner.
The essence of estafa under this paragraph is the appropriation or conversion of money or property received, to the prejudice of the owner thereof. It takes place when a person actually appropriates the property of another for his own benefit, use and enjoyment. In a prosecution for estafa, demand is not necessary where there is evidence of misappropriation or conversion; and failure to account, upon demand for funds or property held in trust, is circumstantial evidence of misappropriation.
o
o o
Manantan misappropriated Carilla's properties, which she held in trust, by failing to remit the sale price of the jewelries or return the same to Carilla upon the expiration of the stipulated period, despite repeated demands by the latter. Manantan issued checks to Carilla as supposed payment of the sales proceeds of the jewelries but these checks were dishonored. Carilla hired a lawyer and sent a demand-letter to Manantan but the latter still failed to turn over the jewelries or the sale prices thereof. As already heretofore pointed out, failure to account upon demand for the return of the thing delivered in trust raises a presumption of misappropriation. Manantan's bare denials are not sufficient to overcome such presumption. Estafa may also be committed by denying untruthfully that the thing was received. 36 Manantan denied having received jewelries from Carilla. However, as we have already determined, such denial is unsubstantiated and therefore cannot prevail over the categorical declarations of Carilla that the jewelries were turned over in trust to Manantan. Hence, Manantan's denial of the receipt of jewelries also constitutes estafa.
The words "convert" and "misappropriate" as used in the aforequoted law connote an act of using or disposing of another's property as if it were one's own or of devoting it to a purpose or use different from that agreed upon. To "misappropriate" a thing of value for one's own use or benefit, not only the conversion to one's personal advantage
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but also every attempt to dispose of the property of another without a right. Misappropriation or conversion may be proved by the prosecution by direct evidence or by circumstantial evidence. o Demand is not an element of the felony or a condition precedent to the filing of a criminal complaint for estafa. Indeed, the accused may be convicted of the felony under Article 315, paragraph 1(b) of the Revised Penal Code if the prosecution proved misappropriation or conversion by the accused of the money or property subject of the Information. 14 In a prosecution for estafa, demand is not necessary where there is evidence of misappropriation or conversion. 15 However, failure to account upon demand, for funds or property held in trust, is circumstantial evidence of misappropriation.
o
o
Demand need not be formal. It may be verbal. In Barrameda v. Court of Appeals, 17 the Court ruled that even a query as to the whereabouts of the money is tantamount to a demand: It must be noted that the specific word "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, such as the one proven in the case at bench, is tantamount to a demand.
Batas Pambansa Blg. 22 BOUNCING CHECKS LAW

How violated A. 1. A person makes or draws and issues any check; 2. The check is made or drawn and issued to apply on account or for value; Thus, it can apply to pre-existing obligations, too. 3. The person who makes or draws and issued the check knows at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment; 4. The check is subsequently dishonored by the drawee bank for insufficiency of funds or credit, or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment. 1. A person has sufficient funds in or credit with the drawee bank when he makes or draws and issues a check; 2. He fails to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within 90 days from the date appearing; 3. The check is dishonored by the drawee bank.
B.
Distinction between Estafa under Article 315 (2) (d) AND violation of BP22: (1) Under both Article 315 (2) (d) and Batas Pambansa Blg. 22, there is criminal liability if the check is drawn for non-pre-existing obligation. If the check is drawn for a pre-existing obligation, there is criminal liability only under Batas Pambansa Blg. 22. (2) Estafa under Article 315 (2) (d) is a crime against property while Batas Pambansa Blg. 22 is a crime against public interest. The gravamen for the former is the deceit employed, while in the latter, it is the issuance of the check. Hence, there is no double jeopardy.
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(3) In the estafa under Article 315 (2) (d), deceit and damage are material, while in Batas Pambansa Blg. 22, they are immaterial. (4) In estafa under Article 315 (2) (d), knowledge by the drawer of insufficient funds is not required, while in Batas Pambansa Blg. 22, knowledge by the drawer of insufficient funds is required. Venue: since this is a continuing crime, the case may be filed in the place where the check was issued OR in the place where the check is made for payment or in cash. When is there prima facie evidence of knowledge of insufficient funds? There is a prima facie evidence of knowledge of insufficient funds when the check was presented within 90 days from the date appearing on the check and was dishonored. Exceptions 1. When the check was presented after 90 days from date; 2. When the maker or drawer -a. Pays the holder of the check the amount due within five banking days after receiving notice that such check has not been paid by the drawee; b. Makes arrangements for payment in full by the drawee of such check within five banking days after notice of non-payment The drawee must cause to be written or stamped in plain language the reason for the dishonor. If the drawee bank received an order of stop-payment from the drawer with no reason, it must be stated that the funds are insufficient to be prosecuted here. The unpaid or dishonored check with the stamped information re: refusal to pay is prima facie evidence of (1) the making or issuance of the check; (2) the due presentment to the drawee for payment & the dishonor thereof; and (3) the fact that the check was properly dishonored for the reason stamped on the check.
(MORE DISCUSSIONS ON BP22 BELOW)
Acts punished under paragraph (e) 1. a. Obtaining food, refreshment, or accommodation at a hotel, inn, restaurant, boarding house, lodging house, or apartment house; b. Without paying therefor; c. With intent to defraud the proprietor or manager. 2. a. Obtaining credit at any of the establishments abovementioned; b. Using false pretense; 3. a. Abandoning OR surreptitiously removing any part of his baggage in the establishment; b. After obtaining credit, food, refreshment, accommodation; c. Without paying. Estafa through any of the following fraudulent means under Article 315 (3)
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Under paragraph (a) 1. Offender induced the offended party to sign a document; 2. Deceit was employed to make him sign the document; 3. Offended party personally signed the document; 4. Prejudice was caused. Under paragraph (b) Resorting to some fraudulent practice to insure success in a gambling game; Under paragraph (c) 1. Offender removed, concealed or destroyed; 2. Any court record, office files, documents or any other papers; 3. With intent to defraud another. Criminal liability for estafa not affected by Novation of contract. In order to relieve the accused from criminal liability, the novation must take place before the criminal liability is incurred; those already committed is not affected by compromise or novation of contract, for it is a public offense which must be prosecuted and punished by the State by its own volition. Filing of a civil case for nullity of [trust receipts] documents NOT a prejudicial question
ALFREDO CHING vs CA G.R. No. 110844. April 27, 2000 Ching signed a trust receipt. He failed to comply with his obligation so he was charged under PD 115. He filed a civil a civil case for declaration of nullity of documents and for damages. He sought the suspension of the criminal case on the ground that the decision of the civil action is pending meaning it is a prejudicial question. RTC denied the motion to suspend which was affirmed by the CA. HELD: exist. More simply, for the court to appreciate the pendency of a prejudicial question, the law, in no uncertain terms, requires the concurrence of two essential requisites, to wit: a) The civil action involves an issue similar or intimately related to the issue raised in the criminal action; and b) The resolution of such issue determines whether or not the criminal action may proceed. Verily, under the prevailing circumstances, the alleged prejudicial question in the civil case for declaration of nullity of documents and for damages, does not juris et de jure determine the guilt or innocence of the accused in the criminal action for estafa. Assuming arguendo that the court hearing the civil aspect of the case adjudicates that the transaction entered into between the parties was not a trust receipt agreement, nonetheless the guilt of the accused could still be established and his culpability under penal laws determined by other evidence. To put it differently, even on the assumption that the documents are declared null, it does not ipso facto follow that such declaration of nullity shall exonerate the accused from criminal prosecution and liability. Accordingly, the prosecution may adduce evidence to prove the criminal liability of the accused for estafa. SC agrees with the findings of the RTC as affirmed by the CA that no prejudicial question
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We must stress though, that an act violative of a trust receipt agreement is only one mode of committing estafa under the abovementioned provision of the Revised Penal Code. Stated differently, a violation of a trust receipt arrangement is not the sole basis for incurring liability under Article 315 1(b) of the Code.
PEOPLE vs. PENDON CA, 53 O.G. 174 There must be a formal demand from the offender on the offender to comply with his obligation before he can be charged with estafa. There are two exceptions: 1. when the obligation to comply is subject to a period 2. When the accused cannot be located despite due evidence.
Query: you hire a passenger jeep. Juridical possession is transferred. If you failed to return the jeep, what is the crime committed? A: Estafa. Q: But if you hire it for personal use, and you failed to return it, the crime is not estafa but qualified theft because there is a prohibition of hiring passenger jeepneys for personal use because they are for public use. Person is charged with illegal recruitment he will also charged with estafa.
PEOPLE VS. TAN TIONG MENG G.R. Nos. 120835-40. April 10, 1997 In People v. Calonzo, the Court reiterated the rule that a person convicted for illegal recruitment under the Labor Code can be convicted for violation of the Revised Penal Code provisions on estafa provided the elements of the crime are present. In People v. Romero the elements of the crime were stated thus: a) that the accused defrauded another by abuse of confidence OR by means of deceit, and b) that damage or prejudice capable of pecuniary estimation is caused to the offended party or third person. Both elements have been proven in this case.
Estafa can be committed with the attendance of both modes of commission, that is, abuse of confidence AND deceit employed against the same victim and causing damage to the latter; Multiple counts of estafa may result when misrepresentation or deceit was done on different dates and in separate places. GERONCIO ILAGAN vs CA G.R. No. 110617. December 29, 1994 The accused was charged with two kinds of estafa. He was an employee of a corporation; he was entrusted by the manager of the corporation which sells subdivision lots. He collected about 9 subdivisions. Later the corporation knew that he misappropriated the amounts he collected for his own use. The first charge was estafa with unfaithfulness AND the second estafa by falsely pretending to possess power (power to collect). HELD:
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1. The crime of estafa committed against respondent corporation, on the one hand, and those committed against the lot buyers, on the other, are definitely separate felonies. They were dictated by different criminal intents, committed under different modes of commission provided by the law on estafa, perpetrated by different acts, consummated on different occasions, and caused injury to different parties. The crime of estafa against respondent corporation was committed through unfaithfulness or abuse of confidence, specifically as provided in Paragraph 1(b) of Article 315, Revised Penal Code. The operative act in the perpetration thereof was the failure to turn over or deliver to respondent corporation the amounts collected by the accused, despite their duty to do so. The felony was consummated on the dates when and at the places where such amounts were to be delivered to respondent corporation under the agency agreement therefor or within a reasonable time from receipt of the payments made by the lot buyers. The aggrieved party was respondent corporation which suffered damages basically to the extent of the sums collected in its behalf but not delivered or accounted for by the accused. With respect to the lot buyers, the offense of swindling was committed by deceit or false pretenses employed prior to or simultaneously with the commission of the fraud, more specifically as provided in Paragraph 2(a) of Art 315 of the Code, that is, by the accused falsely pretending to possess the power to collect the payments due from said buyers, despite the peculiar but specific prohibition imposed by their said principal. The felony was perpetrated through the aforesaid the deceitful misrepresentations which made possible the unauthorized collections. The offense was consummated upon receipt by the accused of the amounts in the different occasions and places where the payments were made by the lot buyers. The aggrieved parties were the lot buyers who individually and separately suffered damages by being deprived not only of their money but primarily of their property rights to and in the lots they respectively purchased. In either instance, the requisite ingredients of estafa as separate offenses are present, that is, for respondent corporation the elements of abuse of confidence and damage, and for the lot buyers the elements of deceit and damage. It has been held that estafa can be committed with the attendance of both modes of commission, that is, abuse of confidence and deceit employed against the same victim and causing damage to him. Thus, where an agent deliberately misrepresented to the landowner the real position of the prospective buyer of the land in order to induce said owner to agree to a lower price and, thereafter, the agent sold the land for the higher amount which was actually agreed upon by him and the buyer, and he then clandestinely misappropriated the excess, the crime of estafa was committed under both modes and he could be charged under either. Withal, it has also been held that such estafa is more properly categorized as one committed through abuse of confidence. With much more reason, therefore, should the offense of estafa against respondent corporation be considered discretely and separately from those committed against the lot buyers since, inter alia, different modes of commission and different parties are concerned. Furthermore, to underscore the distinction between the estafa committed against respondent corporation AND the lot buyers, in estafa through abuse of confidence prior demand should be made by the offended party on the accused to comply with the obligation before the latter may be charged criminally, BUT there is no such requirement where the estafa was committed through deceit. As earlier stated, the damage sustained by the lot buyers is distinct from that suffered by respondent corporation since, primarily, the injury to the lot buyers was the deprivation of their rights or the exercise thereof over the properties they respectively purchased. It has long been the rule that actual damage is not necessary in estafa, as long as it is capable of pecuniary estimation, hence mere temporary disturbance of property rights is equivalent to damage. Even if the prejudice is temporary, that would suffice for the element of damage in estafa. Here, the lot buyers involved in the criminal cases subject of the present recourse have, as a direct consequence of the acts of petitioners, been deprived of the exercise of their rights of actual or potential ownership over their properties since 1991 up to the present. 2. Consequent to the theory of identity of the offense committed against respondent corporation vis-a-vis those against the lot buyers, we reject petitioners' plea for the dismissal of Criminal Cases Nos. C-40483 to C-40489 which were filed each with one lot buyer as the offended party therein. While the felonious acts perpetrated against said lot buyers do not constitute a delito continuado, there must be an explicitation as to whether, under the taxonomy in the Spanish
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concept of concurso de delitos, the seven acts of defraudation under said informations constitute material or real plurality, hence there are seven crimes of estafa, or should be considered as in the nature of formal or ideal plurality, hence there is only one crime of estafa. We rule that said seven cases fall under the category of concurso real, hence there are seven juridically independent crimes involving said lot buyers. The series of acts committed against the seven lot buyers was not the product of a single criminal intent. The misrepresentation or deceit was employed against each lot buyer on different dates and in separate places, hence they originated from separate criminal intents and consequently resulted in separate felonies. Furthermore, even assuming arguendo that the defraudations were pursuant to an identical design, they were committed over a period of about one and a half years and at substantial intervals both in time and in distance of situs. More conclusive is the fact that, after the commission of one estafa, the accused could not have had the foreknowledge as to when or whether they could replicate the same felony against another victim still necessarily unknown. This lack of prevision on their part definitely proves that the criminal intent entailed in a preceding swindle could not operate as the same criminal intent in futuro as regards another subsequent estafa. The inescapable conclusion is that, all told, a total of eight crimes of estafa were actually committed by the accused against different victims.
BP 22 BOUNCING CHECKS LAW

The issuance of check with insufficient funds may be held liable for estafa and Batas Pambansa Blg. 22. Batas Pambansa Blg. 22 expressly provides that prosecution under said law is without prejudice to any liability for violation of any provision in the Revised Penal Code. Double Jeopardy may not be invoked because a violation of Batas Pambansa Blg. 22 is a malum prohibitum and is being punished as a crime against the public interest for undermining the banking system of the country, while under the Revised Penal Code, the crime is malum in se which requires criminal intent and damage to the payee and is a crime against property. In estafa, the check must have been issued as a reciprocal consideration for parting of goods. There must be concomitance. The deceit must be prior to or simultaneous with damage done, that is, seller relied on check to part with goods. If it is issued after parting with goods as in credit accommodation only, there is no estafa. If the check is issued for a pre-existing obligation, there is no estafa as damage had already been done. The drawer is liable under Batas Pambansa Blg. 22.
Illustration: If X buys appliances, and paid checks. Because of the assurance of the buyer that the checks are duly funded. Here there is simultaneously exchange of goods and the check. Here, if the check bounced, there is violation of BP 22 OR Estafa, depending on the circumstances. DAIFor Drawn Against Insufficient Funds is stamped on the check Illustration: If X buys appliances but pays the week after and the check bounced, the crime is not under article 315 (2)(d) BUT under BP 22. Reason: there was no simultaneous exchange of checks and goods. The checks were in payment of a pre-existing obligation.
For criminal liability to attach under Batas Pambansa Blg. 22, it is enough that the check was issued to "apply on account or for value" and upon its presentment it was dishonored by the drawee bank for insufficiency of funds, provided that the drawer had been notified of the dishonor and inspite of such notice fails to pay the holder of the check the full amount due thereon within five days from notice. Under Batas Pambansa Blg. 22, a drawer must be given notice of dishonor and given five banking days from notice within which to deposit or pay the amount stated in the check to negate the
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presumtion that drawer knew of the insufficiency. After this period, it is conclusive that drawer knew of the insufficiency, thus there is no more defense to the prosecution under Batas Pambansa Blg. 22. The mere issuance of any kind of check regardless of the intent of the parties, whether the check is intended to serve merely as a guarantee or as a deposit, makes the drawer liable under Batas Pambansa Blg. 22 if the check bounces. As a matter of public policy, the issuance of a worthless check is a public nuisance and must be abated. In De Villa v. CA, decided April 18, 1991, it was held that under Batas Pambansa Blg. 22, there is no distinction as to the kind of check issued. As long as it is delivered within Philippine territory, the Philippine courts have jurisdiction. Even if the check is only presented to and dishonored in a Philippine bank, Batas Pambansa Blg. 22 applies. This is true in the case of dollar or foreign currency checks. Where the law makes no distinction, none should be made. In People v. Nitafan, it was held that as long as instrument is a check under the negotiable instrument law, it is covered by Batas Pambansa Blg. 22. A memorandum check is not a promissory note, it is a check which have the word memo, mem, memorandum written across the face of the check which signifies that if the holder upon maturity of the check presents the same to the drawer, it will be paid absolutely. But there is no prohibition against drawer from depositing memorandum check in a bank. Whatever be the agreement of the parties in respect of the issuance of a check is inconsequential to a violation to Batas Pambansa Blg. 22 where the check bounces. But overdraft or credit arrangement may be allowed by banks as to their preferred clients and Batas Pambansa Blg. 22 does not apply. If check bounces, it is because bank has been remiss in honoring agreement. The check must be presented for payment within a 90-day period. If presented for payment beyond the 90 day period and the drawers funds are insufficient to cover it, there is no Batas Pambansa Blg. 22 violation. Where check was issued prior to August 8, 1984, when Circular No. 12 of the Department of the Justice took effect, and the drawer relied on the then prevailing Circular No. 4 of the Ministry of Justice to the effect that checks issued as part of an arrangement/agreement of the parties to guarantee or secure fulfillment of an obligation are not covered by Batas Pambansa Blg. 22, no criminal liability should be incurred by the drawer. Circular should not be given retroactive effect. (Lazaro v. CA, November 11, 1993, citing People v. Alberto, October 28, 1993) Q: what are the common crimes against checks: A: they are the following: 1. Issuance of bouncing checks in violation of BP 22 2. Estafa under article 315 paragraph 2 (d) 3. Forgery or alteration of checks under Title IV 4. Kiting as a form of estafa under 315 (1b) Merriam-Webster defines a "kite" as "a check drawn against uncollected funds in a bank account" or "a check that has been fraudulently raised before cashing" Illustration of Kiting:
PEREZ vs PEOPLE G.R. No. L-43548. June 29, 1981

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"KITING OPERATIONS" IN CASE AT BAR. This is quite unique because it is an episode in the kiting game. It was implicit in the agreement or contract between Petra and Leonila to exchange good checks and thus attain their respective mercenary objectives, Petra issued to Leonila in December, 1963 twenty-eight checks of the PNC Bank with a total face value of P441,059.00 which were all cashed by Leonila. In turn, Leonila issued to Petra checks of the Republic Bank with a total value of P843,907.00 which were honored by the bank. Leonila issued to Petra checks for the same amount. From February 5 to 10, 1964, Petra issued to Leonila ten checks with a total value of P254,600.00 and as per agreement, Leonila issued to Petra checks for that same amount. So far, so good. Then, during the five-day period from February 10 to 14, 1964, Petra issued to Leonila thirteen PNC Bank checks with a total value of P377,930.00 which were cashed by Leonila. During that same five-day period. Leonila issued to Petra thirteen Republic Bank checks also for the total amount of P377,930.00 but (sad to state) Leonila's checks were dishonored for having been drawn against uncollected deposits (DAUDS) or because there was a notice of "Stop Payment". It appears that Petra had issued to Leonila eleven checks dated February 10, 11, 12, 13, 22, 28 and 29, 1964 for the total sum of P292,720.00 which were dishonored. FORM OF ESTAFA CHARGED IN CASE AT BAR. Leonila's thirteen "MacArthur" check or checks dishonored for having been DAUDS or because there was a notice of "Stop Payment", are the bases of the estafa case against her. Leonila was not charged with estafa for having issued bouncing checks, a form of estafa through false pretenses under paragraph 2(d), article 315 of the Revised Penal Code but was charged and convicted of the other kind of estafa; estafa through misappropriation committed with unfaithfulness or abuse of confidence under paragraph 1(b) of article 315. Instead of being charged with thirteen offenses, Leonila was charged with only one offense. Apparently, the alleged estafa was treated as a continuing offense. FRAUDULENT BANKING PRACTICES; KITING OPERATIONS; DEFINED. Kiting operation or the kiting game is a discounting device for the manipulation of bank credit by means of checks usually undertaken with the connivance of venal bank officials. Kiting is commonly employed to denote a species of fraud or fraudulent practice consisting in the exchange of drafts or checks of approximately the same dates and amounts. Under the agreement to play the kiting game, there would be an exchange of good checks, so that if one check is cashed, the cash would be returned to the issuer of the check by means of the check issued by the other player who had cashed the first player's check. "KITE" DEFINED. A "kite" is a check drawn against uncollected funds in a bank account. To "kite" means to secure the temporary use of money by issuing a negotiating worthless paper and then redeeming such paper with the proceeds of similar paper, ad infinitum. "CHECK KITING" DEFINED. "Check kiting" is a procedure whereby checks written on accounts in separate banks are used to generate short-term purchasing power through the use of the bank's credit. A depositor with accounts in two banks may build up his balance in Bank A by depositing a check drawn on Bank B although his balance in Bank B (perhaps an out-of-town bank) is not sufficient to cover the check. He makes the check good before it is presented for collection but in the meantime has made use of the bank's credit. BETRAYAL OF CONFIDENCE IN A "KITING GAME" NO CRIMINAL ACTION WOULD LIE; REMEDY IS A CIVIL ACTION; CASE AT BAR Should there be a betrayal of confidence or violation of the agreement in a "kiting game" the liability of the infractor would be civil assuming that such agreement to manipulate bank credit could give rise to a legitimate civil action. Maybe the basis of such a civil action would be the prevention of unjust enrichment of one at the expense of the other. Under the singular facts of this case, Leonila Perez is not criminally liable for her failure to return to Petra Farin in the amount covered by Petra's thirteen checks because the latter's remedy is the civil action for the recovery of the amount of the encashed checks she filed in the Court of First Instance of Rizal in November, 1964, Civil Case No. Q-8446 which up to this time, has not been tried. Leonila committed simply a breach of contract which resulted in her being indebted to Petra and since Petra allegedly issued also bouncing checks, Leonila could also file a counterclaim based on the same theory. Leonila and Petra knew the risks of the kiting game. They knew that either one could easily double-cross the other. Such a double-cross is a violation of their contract to play fairly the kiting game. The breach of contract gives rise to a civil action, not to a criminal action.
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Landmark Case on BP 22:

LOZANO vs MARTINEZ G.R. Nos. L-66839-42. December 18, 1986 B.P. 22 (BOUNCING CHECK LAW); COVERS ALL KINDS OF CHECKS. The language of BP 22 is broad enough to cover all kinds of checks, whether present dated or postdated, or whether issued in payment of pre-existing obligations or given in mutual or simultaneous exchange for something of value. ESSENTIAL ELEMENT OF KNOWLEDGE; PRIMA FACIE PRESUMED BY REFUSAL OF DRAWEE TO PAY UPON PRESENTMENT. An essential element of the offense is "knowledge" on the part of the maker or drawer of the check of the insufficiency of his funds in or credit with the bank to cover the check upon its presentment. Since this involves a state of mind difficult to establish, the statute itself creates a prima facie presumption of such knowledge where payment of the check "is refused by the drawee because of insufficient funds in or credit with such bank when presented within ninety (90) days from the date of the check. SHALL NOT ARISE WHEN PAYMENT IS MADE WITHIN FIVE (5) DAYS FROM RECEIPT OF DISHONOR. To mitigate the harshness of the law in its application, the statute provides that such presumption shall not arise if within five (5) banking days from receipt of the notice of dishonor, the maker or drawer makes arrangements for payment of the check by the bank or pays the holder the amount of the check. DISHONOR OF CHECK BY DRAWEE BANK; PRIMA FACIE PROOF OF MAKING OR ISSUANCE OF CHECK AND DUE PRESENTMENT THEREOF. Another provision of the statute, also in the nature of a rule of evidence, provides that the introduction in evidence of the unpaid and dishonored check with the drawee bank's refusal to pay "stamped or written thereon or attached thereto, giving the reason therefore, shall constitute prima facie proof of "the making or issuance of said check, and the due presentment to the drawee for payment and the dishonor thereof . . . for the reason written, stamped or attached by the drawer on such dishonored check." The presumptions being merely prima facie, it is open to the accused of course to present proof to the contrary to overcome the said presumptions. DISTINGUISHED FROM ARTICLE 315, REVISED PENAL CODE. Article 315 of the Revised Penal Code defining the crime of estafa reads as follows: "Article 315. Swindling (estafa). - Any person who shall defraud another by any of the means mentioned herein below shall be punished by . . . . (2) By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud: ... (d) By postdating a check, or issuing a check in payment of an obligation the offender knowing that at the time he had no funds in the bank, or the funds deposited by him were not sufficient to cover the amount of the check without informing the payee of such circumstances." The scope of paragraph 2 (d), however, was deemed to exclude checks issued in payment of pre-existing obligations. The rationale of this interpretation is that in estafa, the deceit causing the defraudation must be prior to or simultaneous with the commission of the fraud. In issuing a check as payment for a pre-existing debt, the drawer does not derive any material benefit in return or as consideration for its issuance. On the part of the payee, he had already parted with his money or property before the check is issued to him, hence, he is not defrauded by means of any "prior" or "simultaneous" deceit perpetrated on him, by the drawer of the check. ARTICLE 315, REVISED PENAL CODE AS AMENDED BY R.A. 4885; PAYMENT OF PRE-EXISTING OBLIGATIONS NOT COVERED. Article 315, as amended by Republic Act 4885, does not cover checks issued in payment of pre-existing obligations, again relying on the concept underlying the crime of estafa through false pretense or deceit - which is, that the deceit or false pretense must be prior to or simultaneous with the commission of the fraud.
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BATASANG PAMBANSA 22 (BOUNCING CHECK LAW;) THRUST OF LAW; PUNISHES ACT OF MAKING OR ISSUING WORTHLESS CHECK AS AN OFFENSE AGAINST PUBLIC ORDER. The gravamen of the offense punished by B.P. 22 is the act of making and issuing a worthless check or a check that is dishonored upon its presentation for payment. It is not the nonpayment of an obligation which the law punishes. The law is not intended or designed to coerce a debtor to pay his debt. The thrust of the law is to prohibit, under pain of sanctions, the making of worthless checks and putting them is circulation. Because of its deleterious effects on the public interest, the practice is proscribed by the law. The law punishes the act not as an offense against property, but an offense against public order. VALID EXERCISE THEREOF; NOT REPUGNANT TO CONSTITUTIONAL INHIBITION AGAINST IMPRISONMENT FOR DEBT. The enactment of B.P. 22 is a declaration by the legislature that, as a matter of public policy, the making and issuance of a worthless check is deemed a public nuisance to be abated by the imposition of penal sanctions. The effect of the issuance of a worthless checks transcends the private interests of the parties directly involved in the transaction and touches the interests of the community at large. The mischief it creates is not only a wrong to the payee or holder, but also an injury to the public. In sum, we find the enactment of B.P. 22 a valid exercise of the police power and is not repugnant to the constitutional inhibition against imprisonment for debt. FREEDOM OF CONTRACT NOT IMPAIRED CHECKS NOT CATEGORIZED AS CONTRACTS. We find not valid ground to sustain the contention that B.P. 22 impairs freedom of contract. The freedom of contract which is constitutionally protected is freedom to enter into "lawful" contracts. Contracts which contravene public policy are not lawful. We must bear in mind that checks can not be categorized as mere contracts. It is a commercial instrument which, in this modern day and age, has become a convenient substitute for money; it form part of the banking system and therefore not entirely free from the regulatory power of the state.
New Policy of Courts with regard the imposition of penalties for violation of BP 22 ADMINISTRATIVE CIRCULAR NO. 12-2000 RE: PENALTY FOR VIOLATION OF B.P. BLG. 22 Section 1 of B.P. Blg. 22 (An Act Penalizing te Making or Drawing and Issuance of a Check Without Sufficient Funds for Credit and for Other Purposes) imposes the penalty of imprisonment of not less than thirty (30) days but not more than one (1) year OR a fine of not less than but not more tan double the amount of the check, which fine shall in no case exceed P200,000, OR both such fine and imprisonment at the discretion of the court. In its decision in Eduardo Vaca, v. Court of Appeals (G.R. No. 131714, 16 November 1998; 298 SCRA 656, 664) the Supreme Court (Second Division) per Mr. Justice V. Mendoza, modified the sentence imposed for violation of B.P. Blg. 22 by deleting the penalty of imprisonment AND imposing only the penalty of fine in an amount double the amount of the check. In justification thereof, the Court said:
Petitioner are first-time offenders. They are Filipino entrepreneurs who presumably contribute to the national economy. Apparently, they brought this appeal, believing in all good faith, although mistakenly that they had not committed a violation of B.P. Blg. 22. Otherwise they could simply have accepted the judgment of the trial court and applied for probation to evade a prison term. It would best serve the ends of criminal justice if in fixing the penalty within the range of discretion allowed by 1, par. 1, the same philosophy underlying the Indeterminate Sentence Law is observe, namely, that of redeeming valuable human material and preventing unnecessary deprivation f personal liberty and economic usefulness with due regard to the protection f the social order. In this case we believe that a fine in an amount equal to double the amount of the check involved is an appropriate penalty to impose on each of the petitioners
In the recent case of Rosa Lim v. People of the Philippines (G. R. No. 130038, 18
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September 2000), the Supreme Court en banc, applying Vaca also deleted the penalty of imprisonment and sentenced the drawer of the bounced check to the maximum of the fine allowed by B.P. Blg. 22, i.e., P200,000, and concluded that such would best serve the ends of criminal justice. All courts and judges concerned should henceforth take note pf the foregoing policy of the Supreme Court on the matter of the imposition of penalties for violations of B.P. Blg. 22. The Court Administrator shall cause the immediate dissemination of this Administrative Circular to all courts and judges concerned. This Administrative Circular, referred to and approved by the Supreme Court en banc, shall take effect upon its issuance. Issued this 21st day of November 2000.
Clarifying Administrative circular 12-2000 ADMINISTRATIVE CIRCULAR 13-2001 It is understood that administrative circular 12-2000 does not remove as an alternative penalty. The judges' concerned may in the exercise of a sound discretion and taking into consideration the peculiar circumstances of each case, determine whether the imposition of a fine would serve the ends of justice or whether forebearing to impose imprisonment would depreciate the seriousness of the offense and work violence on the social order or otherwise be contrary to the imperative of justice.
So this is in the alternative, either imprisonment or fine, depending on the discretion of the court.
BOUNCING CHECKS UNDER ARTICLE 315 (2)(B) Deceit and damage are essential Such circumstance mitigates criminal liability Specific and definite penalties are fixed in both offenses. Mala in se Estafa is a crime against property
BOUNCING CHECKS UNDER BP 22 This is mala prohibita so no need to establish or prove deceit or damage A drawer of a check may be convicted of BP 22 even if he issued the same for a pre-existing obligation Specific and definite penalties are fixed in both offenses. Mala prohibita Crime against public interest (not public order)
No Deceit when parties agreed at the time of issuance that the checks will not be cashed or presented by the banks
PACHECO vs. CA G.R. No. 126670. December 2, 1999 Pacheco borrowed money from Vicencio. Vicencio said Ok, but do not sign any promissory note or any document, just issue a check to us. Pacheco said they do not have any funds in the bank. As time went by, the Pachecos borrowed and borrowed money and issued several checks upon the insistence of the Vicencios. Later on, the Vicencios send letters of demand for them to pay. They were not able to pay so charges of estafa for many counts were filed and convicted.
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HELD: Elements to sustain a conviction under article 315 (2)(d); 1. the offender postdated or issued a check in payment of an obligation contracted at the time the check was issued 2. that the issuance of the check was done by the offender who has no funds in the bank or funds are not sufficient 3. deceit on the accused The first and the third element are not present. The check has the character of negotiability and at the same time it constitute an evidence of indebtedness. By mutual agreement of the parties the negotiable character of the check may be waived and the instrument may be treated simply as proof of an obligation (which is the case at bar). There cannot be deceit on the part of the obligors because they agreed with the obligee at the time of the issuance and postdating of the checks that the same will not be cashed or presented by the banks as per assurance of the obligee that the checks were mere evidence of loan or security thereof in lieu of or for the same purpose as a promissory note. The checks, therefore, are mere evidence of indebtedness. No deceit because they were informed by Pacheco that they no longer heave funds.
Element of Knowledge must be proved by the prosecution

IDOS v CA and Pp G.R. No. 110782. September 25, 1998 Idos issued a check to her business partners which bounced. Convicted by the lower court. She argued that she gave the check only as an assurance of her share in the partnership. Their goods were not yet sold. HELD: She could not be held liable under BP 22. The element of knowledge of insufficiency of funds has to be proven by the prosecution. Otherwise, no conviction. In BP 22, the relationship of creditor-debtor exists, in the case at bar, no such relationship because they are still partners. In the case at bar, as earlier discussed, petitioner issued the check merely to evidence the proportionate share of complainant in the partnership assets upon its dissolution. Payment of that share in the partnership was conditioned on the subsequent realization of profits from the unsold goods and collection of the receivables of the firm. This condition must be satisfied or complied with before the complainant can actually "encash" the check. The reason for the condition is that petitioner has no independent means to satisfy or discharge the complainant's share, other than by the future sale and collection of the partnership assets. Thus, prior to the selling of the goods and collecting of the receivables, the complainant could not, as of yet, demand his proportionate share in the business. This situation would hold true until after the winding up, and subsequent termination of the partnership. For only then, when the goods were already sold and receivables paid that cash money could be availed of by the erstwhile partners. Complainant did not present any evidence that petitioner signed and issued four checks actually knowing that funds therefor would be insufficient at the time complainant would present them to the drawee bank. For it was uncertain at the time of issuance of the checks whether the unsold goods would have been sold, or whether the receivables would have been collected by the time the checks would be encashed. As it turned out, three were fully funded when presented to the bank; the remaining one was settled only later on. To recapitulate, we find the petition impressed with merit. Petitioner may not be held liable for violation of B.P. 22 for the following reasons: (1) the subject check was not made, drawn and issued by petitioner in exchange for value received as to qualify it as a check on account or for value; (2) there is no sufficient basis to conclude that petitioner, at the time of issue of the check, had actual knowledge of the insufficiency of funds; and (3) there was no notice of dishonor of said check actually served on petitioner, thereby depriving her of the opportunity to pay or make arrangements for the payment of the check, to avoid criminal prosecution.
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BP 22 and PD 957, Sec. 23 reconciled

FRANCISCO SYCIP vs. CA G.R. No. 125059. March 17, 2000 SC said BP 22 creates a refutable presumption of knowledge on the part of the issuer on the time of the checks issuance that he did not have funds or credit in the bank for payment thereof upon presentment. BP 22 and PD 957 must be reconciled. While BP 22 enacted to safeguard the interest of the banking system, it is difficult to see how conviction of the accused could protect the sanctity of the financial system. PD 957 is enacted to protect the interest of townhouse buyers. A statute must be construed with other laws so as to carry out their legitimate aims and purposes. Where ends are inconsistent with the general purpose of the acts, more so when it is in contravention of another valid statute, both laws must be reconciled. Petitioner argues that the court a quo erred when it affirmed his conviction for violation of B.P. Blg. 22, considering that he had cause to stop payment of the checks issued to respondent. Petitioner insists that under P.D. No. 957, the buyer of a townhouse unit has the right to suspend his amortization payments, should the subdivision or condominium developer fail to develop or complete the project in accordance with duly-approved plans and specifications. Given the findings of the HLURB that certain aspects of private complainant's townhouse project were incomplete and undeveloped, the exercise of his right to suspend payments should not render him liable under B.P. Blg. 22. The Solicitor General argues that since what petitioner was charged with were violations of B.P. Blg. 22, the intent and circumstances surrounding the issuance of a worthless check are immaterial. The gravamen of the offense charged is the act itself of making and issuing a worthless check or one that is dishonored upon its presentment for payment. Mere issuing of a bad check is malum prohibitum, pernicious and inimical to public welfare. In his view, P.D. No. 957 does not provide petitioner a sufficient defense against the charges against him. Admittedly, what are involved here are postdated checks. Postdating simply means that on the date indicated on its face, the check would be properly funded, not that the checks should be deemed as issued only then. The checks in this case were issued at the time of the signing of the Contract to Sell in August 1989. But we find from the records no showing that the time said checks were issued, petitioner had knowledge that his deposit or credit in the bank would be insufficient to cover them when presented for encashment. On the contrary, there is testimony by petitioner that at the time of presentation of the checks, he had P150,000.00 cash or credit with Citibank. As the evidence for the defense showed, the closure of petitioner's Account No. 845515 with Citibank was not for insufficiency of funds. It was made upon the advice of the drawee bank, to avoid payment of hefty bank charges each time petitioner issued a "stop payment" order to prevent encashment of postdated checks in private respondent's possession. Said evidence contradicts the prima facie presumption of knowledge of insufficiency of funds. But it establishes petitioner's state of mind at the time said checks were issued on August 24, 1989. Petitioner definitely had no knowledge that his funds or credit would be insufficient when the checks would be presented for encashment. He could not have foreseen that he would be advised by his own bank in the future, to close his account to avoid paying the hefty banks charges that came with each "stop payment" order issued to prevent private respondent from encashing the 30 or so checks in its possession. What the prosecution has established is the closure of petitioner's checking account. But this does not suffice to prove the second element of the offense under B.P. Blg. 22, which explicitly requires "evidence of knowledge of insufficient funds" by the accused at the time the check or checks are presented for encashment. To rely on the presumption created by B.P. No. 22 as the prosecution did in this case, would be to misconstrue the import of requirements for conviction under the law. While B.P. Blg. 22 was enacted to safeguard the interest of the banking system, it is difficult to see how conviction of the accused in this case will protect the sanctity of the financial system. Moreover, protection must also be afforded the interest of townhouse buyers under P.D. No. 957.
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"SEC. 23. Non-Forfeiture of Payments. No installment payment made by a buyer in a subdivision or condominium project for the lot or unit he contracted to buy shall be forfeited in favor of the owner or developer when the buyer, after due notice to the owner or developer, desists from further payment due to the failure of the owner or developer to develop the subdivision or condominium project according to the approved plans and within the time limit for completing the same. Such buyer may, at his option, be reimbursed the total amount paid including amortization interests but excluding delinquency interests with interest thereon at the legal rate." Note that we have upheld a buyer's reliance on Section 23 of P.D. 957 to suspend payments until such time as the owner or developer had fulfilled its obligations to the buyer. This exercise of a statutory right to suspend installment payments, is to our mind, a valid defense against the purported violations of B.P. Blg. 22 that petitioner is charged with. Given the findings of the HLURB as to incomplete features in the construction of petitioner's and other units of the subject condominium bought on installment from FRC, we are of the view that petitioner had a valid cause to order his bank to stop payment. To say the least, the third element of "subsequent dishonor of the check... without valid cause" appears to us not established by the prosecution. As already stated, the prosecution tried to establish the crime on a prima facie presumption in B.P. Blg. 22. Here that presumption is unavailing, in the presence of a valid cause to stop payment, thereby negating the third element of the crime. Offenses punished by a special law, like the Bouncing Checks Law, are not subject to the RPC, but the Code is supplementary to such a law. We find nothing in the text of B.P. Blg. 22, which would prevent the Revised Penal Code from supplementing it. Following Article 11 (5) of the Revised Penal Code, petitioner's exercise of a right of the buyer under Article 23 of P.D. No. 957 is a valid defense to the charges against him.
PERSON PREJUDICED NEED NOT BE THE OWNER OF GOODS EMBEZZLED HERNANDEZ vs CA G.R. No. 104874. December 14, 1993 As to the ownership of the jewelry, we held in People v. Dy, 109 SCRA 400 (1981) that: "Ownership is not a necessary element of the crime of estafa. . . . In estafa, the person prejudiced or the immediate victim of the fraud need not be the owner of the goods. Thus, Article 315 of the Revised Penal Code provides that 'Any person who shall defraud another (it does not say 'owner') by any means mentioned herein below shall be punished . . .' All that is necessary is that the loss should have fallen on someone other than the perpetrators of the crime . . ." The trial court based the civil indemnity on the actual price of the jewelry as agreed upon by petitioner and de Leon at the time of the transactions and this is reflected by the face value of the checks. NB: Pre-existing debt constitutes value. Deliberations during the Batasang Pambansa indicate that an ACCOUNT refers to a pre-existing obligation that is why in BP 22 even if the check is a issued in the payment of a pre existing obligation there is a violation of the said law. While FOR VALUE means an obligation incurred simultaneously with the issuance of a check in exchange of the check for goods.
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PRESIDENTIAL DECREE 2018 MAKING ILLEGAL RECRUITMENT A CRIME OF ECONOMIC SABOTAGE AND PUNISHABLE WITH LIFE IMPRISONMENT NB: In connection with the crime of estafa, we should also study illegal recruitment So that persons charged with illegal recruitment is also charged with estafa; no double jeopardy. (Pp vs CALONZO, GR115150-55, Sept. 27, 1996) P.D. 2018 has amended Articles 38 and 39 of the Labor Code by providing inter alia as follows: ART. 38. Illegal Recruitment. . . .
(a) Any recruitment activities, including the prohibited practices enumerated under Article 34 of this Code, to be undertaken by non-licensees or non-holders of authority shall be deemed illegal and punishable under Article 39 of this Code. The Ministry of Labor and Employment (now DOLE) or any law enforcement officers may initiate complaints under this Article. (b) Illegal recruitment when committed by a syndicate OR in large scale shall be considered an offense involving economic sabotage and shall be penalized in accordance with Article 39 hereof. Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any unlawful or illegal transaction, enterprise or scheme defined under this first paragraph hereof. Illegal recruitment is deemed committed in large scale if committed against three (3) or more persons individually or as a group. (c) x x x (This paragraph has been declared unconstitutional because only a judge may issue warrants of search and arrest. (SALAZAR vs ACHACOSO and MARQUEZ, GR81510, March 14, 1990)) ART. 39. Penalties.
(a) The penalty of the imprisonment and a fine of P100,000.00 shall be imposed if illegal recruitment constitutes economic sabotage as defined herein; xxx xxx xxx (c) Any person who is neither a licensee nor a holder of authority under this Title found violating any provision thereof or its implementing rules and regulations shall, upon conviction thereof, suffer the penalty of imprisonment of not less than four years nor more than eight years or a fine of not less than P20,000 nor more than P100,000 or both such imprisonment and fine, at the discretion of the Court.
(P.D. 2018 cannot apply to the appellants retroactively as it would be an ex post facto law to them. A law is ex post facto if it refers to a criminal act, punishes an act which was innocent when done, and retroacts to the disadvantage of the accused. Prior to the said date, recruiting on a large scale was not yet punished with the penalty imposed in the said decree.)
Art. 13(b), of PD 442 defines recruitment as "any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers, and includes referrals, contract services, promising or advertising for employment, locally or abroad, whether for profit or not;
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provided, that any person or entity which, in any manner, offers or promises for a fee employment to two or more persons shall be deemed engaged in recruitment and placement." But see Sec. 6, of RA 8042 Migrant Workers and Overseas Filipinos Act of 1995 II. ILLEGAL RECRUITMENT
Sec. 6. Definition. - For purposes of this Act, illegal recruitment shall mean any act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring workers and includes referring, contract services, promising or advertising for employment abroad, whether for profit or not, when undertaken by a non-licensee or non-holder of authority contemplated under Article 13(f) of PD442: Provided, That any such non-licensee or non-holder who, in any manner, offers or promises for a fee employment abroad to two or more persons shall be deemed so engaged. It shall likewise include the following acts, whether committed by any person, whether a non-licensee, non-holder, licensee or holder of authority: x x x Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons individually or as a group. The persons criminally liable for the above offenses are the principals, accomplices and accessories. In case of juridical persons, the officers having control, management or direction of their business shall be liable. The rule is settled that the recruitment of persons for overseas employment without the necessary recruiting permit or authority from the POEA constitutes illegal recruitment
ARTICLE 316 OTHER FORMS OF SWINDLING Under paragraph 1 - By conveying, selling, encumbering, or mortgaging any real property, pretending to be the owner of the same Elements 1. There is an immovable, such as a parcel of land or a building; 2. Offender who is not the owner represents himself as the owner thereof; 3. Offender executes an act of ownership such as selling, leasing, encumbering or mortgaging the real property; 4. The act is made to the prejudice to the owner or a third person. Under paragraph 2 - by disposing of real property as free from encumbrance, although such encumbrance be not recorded Elements 1. The thing disposed is a real property: 2. Offender knew that the real property was encumbered, whether the encumbrance is recorded or not; 3. There must be express representation by offender that the real property is free from encumbrance; 4. The act of disposing of the real property is made to the damage of another.
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Under paragraph 3 - by wrongfully taking by the owner of his personal property from its lawful possessor Elements 1. Offender is the owner of personal property; 2. Said personal property is in the lawful possession of another; 3. Offender wrongfully takes it from its lawful possessor; 4. Prejudice is thereby caused to the possessor or third person. Under paragraph 4 - by executing any fictitious contract to the prejudice of another Under paragraph 5 - by accepting any compensation for services not rendered or for labor not performed Under paragraph 6 - by selling, mortgaging or encumbering real property or properties with which the offender guaranteed the fulfillment of his obligation as surety Elements 1. Offender is a surety in a bond given in a criminal or civil action; 2. He guaranteed the fulfillment of such obligation with his real property or properties; 3. He sells, mortgages, or in any manner encumbers said real property; 4. Such sale, mortgage or encumbrance is without express authority from the court, or made before the cancellation of his bond, or before being relieved from the obligation contracted by him.
ARTICLE 317 SWINDLING A MINOR A. Elements: 1. that the offender takes advantage of the inexperience or emotions or feelings of a minor 2. that he induces such minor a. to assume an obligation or b. to give release or c. to execute a transfer of any property right 3. the consideration is a. some loan of money b. credit or c. other personal property 4. that the transaction is to the detriment of such minor NB: Real property not included since a minor cannot convey real property. RA 6809: the age of majority now is 18 years of age and above. ARTICLE 318 OTHER DECEITS A. Acts punished
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1. Defrauding or damaging another by any other deceit not mentioned in the preceding articles; 2. Interpreting dreams, by making forecasts, by telling fortunes, or by taking advantage or the credulity of the public in any other similar manner, for profit or gain.
Chapter Seven CHATTEL MORTGAGE

ARTICLE 319 REMOVAL, SALE, OR PLEDGE OF MORTGAGED PROPERTY Acts punished 1. Knowingly removing any personal property mortgaged under the Chattel Mortgage law to any province or city other than the one in which it was located at the time of execution of the mortgage, without the written consent of the mortgagee or his executors, administrators or assigns; Elements: 1. Personal property is mortgaged under the Chattel Mortgage Law; 2. Offender knows that such property is so mortgaged; 3. Offender removes such mortgaged personal property to any province or city other than the one in which it was located at the time of the execution of the mortgage; 4. The removal is permanent; 5. There is no written consent of the mortgagee or his executors, administrators or assigns to such removal. 2. Selling or pledging personal property already pledged, or any part thereof, under the terms of the Chattel Mortgage Law, without the consent of the mortgagee written on the back of the mortgage and noted on the record thereof in the office of the register of deeds of the province where such property is located. Elements: 1. Personal property is already pledged under the terms of the Chattel Mortgage Law; 2. Offender, who is the mortgagor of such property, sells or pledges the same or any part thereof; 3. There is no consent of the mortgagee written on the back of the mortgage and noted on the record thereof in the office of the register of deeds. In both Par. 1 and par. 2, to avoid penal liability, the written consent of the mortgagee must be obtained; and in sale or pledge under par. 2, the mortgagees consent must further be written at the back of the instrument which should then be duly registered. Even if the sale of the property was with the consent of the mortgagee, but the mortgagor sold the same as unencumbered, he commits estafa. If there was no written consent of the
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mortgagee, and the mortgagor sold the property as unencumbered, he commits two separate crimes against different offended parties, that is, estafa against the buyer, and violation of this article against the mortgagee.
Chapter Eight ARSON AND OTHER CRIMES INVOLVING DESTRUCTION

(Articles 320 to 326-B has been expressly repealed by PD 1613. Article 320 was then revived by PD 1744. The latest amendment is by section 10 of RA 7659 on destructive arson) ARTICLE 320 DESTRUCTIVE ARSON Kinds of arson 1. Arson, under Section 1 of Presidential Decree No. 1613; 2. Destructive arson, under Article 320 of the Revised Penal Code, as amended by Republic Act No. 7659; 3. Other cases of arson, under Section 3 of Presidential Decree No. 1613. Compare Art 320 par. 5, to the provisions on estafa particularly the burning of records to conceal fraud. Q: When is arson punished with reclusion perpetua to death? A: when the arson is committed or perpetrated by two or more persons regardless of whether the purpose is merely to burn or destroy the building or the burning merely constitutes an overt act in the commission of another violation of law. Q: When is arson punished with mandatory death? A: if as a consequence of the acts punished in this article death results, the mandatory penalty of death shall be imposed.
Illustration: If X burns the house of Y and Y died, the crime is arson. But if X burns the house of Y in order in order to kill the latter the crime is murder. So here, under this article there must be no intention to kill.
JURISPRUDENTIAL TREND IN ARSON

THERE IS NO COMPLEX CRIME OF ARSON WITH (MULTIPLE) HOMICIDE. ART. 320.Destructive Arson. . . . 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. [Emphasis supplied.] Presidential Decree No. 1613: SEC. 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. [Emphasis supplied.] o Art. 320 of the RPC, as amended, with respect to destructive arson, and the provisions of PD No. 1613 respecting other cases of arson provide only one penalty for the commission of arson, whether
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considered destructive or otherwise, where death results therefrom. The raison d'tre is that arson is itself the end and death is simply the consequence. Whether the crime of arson will absorb the resultant death or will have to be a separate crime altogether, the joint discussion of the late Mr. Chief Justice Ramon C. Aquino and Mme. Justice Carolina C. Grio-Aquino, on the subject of the crimes of arson and murder/homicide, is highly instructive: Groizard says that when fire is used with the intent to kill a particular person who may be in a house and that objective is attained by burning the house, the crime is murder only. When the Penal Code declares that killing committed by means of fire is murder, it intends that fire should be purposely adopted as a means to that end. There can be no murder without a design to take life. In other words, if the main object of the offender is to kill by means of fire, the offense is murder. But if the main objective is the burning of the building, the resulting homicide may be absorbed by the crime of arson. If the house was set on fire after the victims therein were killed, fire would not be a qualifying circumstance. The accused would be liable for the separate offenses of murder or homicide, as the case may be, and arson. Accordingly, in cases where both burning and death occur, in order to determine what crime/crimes was/were perpetrated whether arson, murder or arson and homicide/murder, it is de rigueur to ascertain the main objective of the malefactor: (a) if the main objective is the burning of the building or edifice, but death results by reason or on the occasion of arson, the crime is simply arson, and the resulting homicide is absorbed; (b) if, on the other hand, the main objective is to kill a particular person who may be in a building or edifice, when fire is resorted to as the means to accomplish such goal the crime committed is murder only; lastly, (c) if the objective is, likewise, to kill a particular person, and in fact the offender has already done so, but fire is resorted to as a means to cover up the killing, then there are two separate and distinct crimes committed homicide/murder and arson.
In the crime of arson, the identities of the victims are immaterial in that intent to kill them
particularly is not one of the elements of the crime. As we have clarified earlier, the killing of a person is absorbed in the charge of arson, simple or destructive. The prosecution need only prove, that the burning was intentional and that what was intentionally burned is an inhabited house or dwelling. Again, in the case of People v. Soriano, we explained that: Although intent may be an ingredient of the crime of Arson, it may be inferred from the acts of the accused. There is a presumption that one intends the natural consequences of his act; and when it is shown that one has deliberately set fire to a building, the prosecution is not bound to produce further evidence of his wrongful intent. The ultimate query now is which kind of arson is accused-appellant guilty of?
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As previously discussed, there are two (2) categories of the crime of arson: 1) destructive arson, under Art. 320 of the Revised Penal Code, as amended by Republic Act No. 7659; and 2) simple arson, under Presidential Decree No. 1613. Said classification is based on the kind, character and location of the property burned, regardless of the value of the damage caused, 48 to wit: Article 320 of The Revised Penal Code, as amended by RA 7659, contemplates the malicious burning of structures, both public and private, hotels, buildings, edifices, trains, vessels, aircraft, factories and other military, government or commercial establishments by any person or group of persons.[49 ] The classification of this type of crime is known as Destructive Arson, which is punishable by reclusion perpetua to death. The reason for the law is self-evident: to effectively discourage and deter the commission of this dastardly crime, to prevent the destruction of properties and protect the lives of innocent people. Exposure to a brewing conflagration leaves only destruction and despair in its wake; hence, the State mandates greater retribution to authors of this heinous crime. The exceptionally severe punishment imposed for this crime takes into consideration the extreme danger to human lives exposed by the malicious burning of these structures; the danger to property resulting from the conflagration; the fact that it is normally difficult to adopt precautions against its commission, and the difficulty in pinpointing the perpetrators; and, the greater impact on the social, economic, security and political fabric of the nation. [Emphasis supplied.]
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If as a consequence of the commission of any of the acts penalized under Art. 320, death should result, the mandatory penalty of death shall be imposed. On the other hand, PD 1613 which repealed Arts. 321 to 326-B of The Revised Penal Code remains the governing law for Simple Arson. This decree contemplates the malicious burning of public and private structures, regardless of size, not included in Art. 320, as amended by RA 7659, and classified as other cases of arson. These include houses, dwellings, government buildings, farms, mills, plantations, railways, bus stations, airports, wharves and other industrial establishments.[50 ] Although the purpose of the law on Simple Arson is to prevent the high incidence of fires and other crimes involving destruction, protect the national economy and preserve the social, economic and political stability of the nation, PD 1613 tempers the penalty to be meted to offenders. This separate classification of Simple Arson recognizes the need to lessen the severity of punishment commensurate to the act or acts committed, depending on the particular facts and circumstances of each case. [Emphasis supplied.] To emphasize: The nature of Destructive Arson is distinguished from Simple Arson by the degree of perversity or viciousness of the criminal offender. The acts committed under Art. 320 of the Revised Penal Code (as amended) constituting Destructive Arson are characterized as heinous crimes for being grievous, odious and hateful offenses and which, by reason of their inherent or manifest wickedness, viciousness, atrocity and perversity are repugnant and outrageous to the common standards and norms of decency and morality in a just, civilized and ordered society. 51 On the other hand, acts committed under PD 1613 constituting Simple Arson are crimes with a lesser degree of perversity and viciousness that the law punishes with a lesser penalty. In other words, Simple Arson contemplates crimes with less significant social, economic, political and national security implications than Destructive Arson. However, acts falling under Simple Arson may nevertheless be converted into Destructive Arson depending on the qualifying circumstances present. [Emphasis supplied.]
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Prescinding from the above clarification vis--vis the description of the crime as stated in the accusatory portion of the Information, it is quite evident that accused-appellant was charged with the crime of Simple Arson for having "deliberately set fire upon the two-storey residential house of ROBERTO SEPARA and family . . . knowing the same to be an inhabited house and situated in a thickly populated place and as a consequence thereof a conflagration ensued and the said building, together with some seven (7) adjoining residential houses, were razed by fire." [Emphasis supplied.] The facts of the case at bar is somewhat similar to the facts of the case of People v. Soriano. 53 The accused in the latter case caused the burning of a particular house. Unfortunately, the blaze spread and gutted down five (5) neighboring houses. The RTC therein found the accused guilty of destructive arson under paragraph 1 54 of Art. 320 of the Revised Penal Code, as amended by Republic Act No. 7659. This Court, through Mr. Justice Bellosillo, however, declared that: . . . [T]he applicable provision of law should be Sec. 3, par. 2, of PD 1613, which imposes a penalty of reclusion temporal to reclusion perpetua for other cases of arson as the properties burned by accusedappellant are specifically described as houses, contemplating inhabited houses or dwellings under the aforesaid law. The descriptions as alleged in the second Amended Information particularly refer to the structures as houses rather than as buildings or edifices. The applicable law should therefore be Sec. 3, Par. 2, of PD 1613, and not Art. 320, par. 1 of the Penal Code. In case of ambiguity in construction of penal laws, it is well-settled that such laws shall be construed strictly against the government, and liberally in favor of the accused. The elements of arson under Sec. 3, par. 2, of PD 1613 are: (a) there is intentional burning; and (b) what is intentionally burned is an inhabited house or dwelling. Incidentally, these elements concur in the case at bar. As stated in the body of the Information, accused-appellant was charged with having intentionally burned the two-storey residential house of Robert Separa. Said conflagration likewise spread and destroyed seven (7) adjoining houses. Consequently, if proved, as it was proved, at the trial, she may be convicted, and sentenced accordingly, of the crime of simple arson. Such is the case "notwithstanding the error in the designation of the offense in the information, the information remains effective insofar as it states the facts constituting the crime alleged therein." 56 "What is controlling is not the title of the
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complaint, nor the designation of the offense charged or the particular law or part thereof allegedly violate, . . ., but the description of the crime charged and the particular facts therein recited." There is, thus, a need to modify the penalty imposed by the RTC as Sec. 5 of PD No. 1613 categorically provides that the penalty to be imposed for simple arson is: SEC. 5. Where Death Results from Arson. If by reason of or on the occasion of arson death results, the penalty of reclusion perpetua to death shall be imposed. [Emphasis supplied.]
ARSON; DEFINED; CLASSIFICATION. Arson is the malicious burning of property. Under Art. 320 of The Revised Penal Code, as amended, and PD 1613, Arson is classified into two kinds: (1) Destructive Arson (Art. 320) and (2) other cases of arson (PD 1613). This classification is based on the kind, character and location of the property burned, regardless of the value of the damage caused.
DESTRUCTIVE ARSON; ELABORATED. Article 320 of The Revised Penal Code, as amended by RA 7659, contemplates the malicious burning of structures, both public and private, hotels, buildings, edifices, trains, vessels, aircraft, factories and other military, government or commercial establishments by any person or group of persons. The classification of this type of crime is known as Destructive Arson, which is punishable by reclusion perpetua to death. The reason for the law is self-evident: to effectively discourage and deter the commission of this dastardly crime, to prevent the destruction of properties and protect the lives of innocent people. Exposure to a brewing conflagration leaves only destruction and despair in its wake; hence, the State mandates greater retribution to authors of this heinous crime. The exceptionally severe punishment imposed for this crime takes into consideration the extreme danger to human lives exposed by the malicious burning of these structures; the danger to property resulting from the conflagration; the fact that it is normally difficult to adopt precautions against its commission, and the difficulty in pinpointing the perpetrators; and, the greater impact on the social, economic, security and political fabric of the nation. If as a consequence of the commission of any of the acts penalized under Art. 320, death should result, the mandatory penalty of death shall be imposed.
DISTINGUISHED FROM OTHER CASES OF ARSON; IMPOSABLE PENALTY; CASE AT BAR. The legal basis of the trial court for convicting accused-appellant is Art. 320, par. 1, of The Revised Penal Code, as amended by RA 7659, Sec. 10, par. 1. Under this provision, a person found guilty of Destructive Arson is punishable by reclusion perpetua to death where the burning affects one (1) or more buildings or edifices, consequent to one single act of burning, or as a result of simultaneous burnings, or committed on several or different occasions. However, we believe that the applicable provision of law should be Sec. 3, par. 2, of PD 1613, which imposes a penalty of reclusion temporal to reclusion perpetua for other cases of arson as the properties burned by accused-appellant are specifically described as houses, contemplating inhabited houses or dwellings under the aforesaid law. The descriptions as alleged in the second Amended Information particularly refer to the structures as houses rather than as buildings or edifices. The applicable law should therefore be Sec. 3, par. 2, of PD 1613, and not Art. 320, par. 1 of the Penal Code. In case of ambiguity in construction of penal laws, it is wellsettled that such laws shall be construed strictly against the government, and literally in favor of the accused.
SIMPLE ARSON; ELABORATED. On the other hand, PD 1613 which repealed Arts. 321 to 326-B of The Revised Penal Code remains the governing law for Simple Arson. This decree contemplates the malicious burning of public and private structures, regardless of size, not included in Art. 320, as amended by RA 7659, and classified as other cases of arson. These include houses, dwellings, government buildings, farms, mills, plantations, railways, bus stations, airports, wharves and other industrial establishments. Although the purpose of the law on Simple Arson is to prevent the high incidence of fires and other crimes involving destruction, protect the national economy and preserve the social, economic and political stability of the nation, PD 1613 tempers the penalty to be meted to offenders. This separate classification of Simple Arson recognizes the need to lessen the severity of punishment commensurate to the act or acts committed, depending on the particular facts and circumstances of each case.
DISTINGUISHED FROM DESTRUCTIVE ARSON. The nature of Destructive Arson is distinguished from Simple Arson by the degree of perversity or viciousness of the criminal offender. The acts committed under Art. 320 of The Revised Penal Code constituting Destructive Arson are characterized as heinous crimes "for being grievous, odious and hateful offenses and which, by reason of their inherent or manifest wickedness, viciousness, atrocity and perversity are repugnant and outrageous to the common
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standards and norms of decency and morality in a just, civilized and ordered society." On the other hand, acts committed under PD 1613 constituting Simple Arson are crimes with a lesser degree of perversity and viciousness that the law punishes with a lesser penalty. In other words, Simple Arson contemplates crimes with less significant social, economic, political and national security implications than Destructive Arson. However, acts falling under Simple Arson may nevertheless be converted into Destructive Arson depending on the qualifying circumstances present. P.D. NO. 1613; ARSON; ELEMENTS THEREOF; ACTUAL KNOWLEDGE THAT THE HOUSE WAS INHABITED IS NOT NECESSARY; CASE AT BAR. When Ferigel burned Avelino's house, the law applicable was P.D. No. 1613. Under Section 3 (2) of the law, the penalty of reclusion temporal to reclusion perpetua shall be imposed if the property burned is "any inhabited house or dwelling." Under the amendment, it is the fact that the house burned is inhabited that qualifies the crime. There is no need to prove that the accused had actual knowledge that the house was inhabited. Under Section 3 (2) of Presidential Decree No. 1613, the elements of arson are: (1) that there is intentional burning; and (2) that what is intentionally burned is an inhabited house or dwelling. The records show that when Ferigel willfully set fire to the roof of Avelino's house, Avelino's wife and children were asleep therein. CORPUS DELICTI OF ARSON; CASE AT BAR. Proof of corpus delicti is indispensable in prosecutions for felonies and offenses. Corpus delicti is the body or substance of the crime. It refers to the fact that a crime has been actually committed. Corpus delicti is the fact of the commission of the crime that may be proved by the testimonies of witnesses. In murder, the fact of death is the corpus delicti. In arson, the corpus delicti rule is satisfied by proof of the bare occurrence of the fire and of its having been intentionally caused. The uncorroborated testimony of a single eyewitness, if credible, may be enough to prove the corpus delicti and to warrant conviction. Here, corpus delicti of the arson and murder was duly proven beyond reasonable doubt.
Chapter Nine MALICIOUS MISCHIEF

ARTICLE 327 MALICIOUS MISCHIEF A. Elements: 1. that the offender deliberately caused damage to the property of another 2. that such act does not constitute arson or other crimes involving destruction 3. that he act of damaging anothers property be committed merely for the sake of damaging it. There is destruction of the property of another but there is no misappropriation. Otherwise, it would be theft if he gathers the effects of destruction.
Illustration: If X and Y are enemies and they had just a fight, X kills the pig of Y. The crime committed may either be malicious mischief or theft.
Malicious mischief is destruction out of hate, revenge or other evil motive, for the specific purpose of destroying property. Hence, it cannot be committed thru reckless imprudence or thru violence in the course of a fight. Also, the damages must not have been caused by arson or other destructive means as provided in the preceding Chapter Eight. If property was maliciously damaged then appropriated by the offender, the crime would be theft under Art. 308 (2), the malicious act being absorbed therein. Where the pigs of the another were killed by the accused to avoid damage to his crops, he incurs only civil liability. But where the cattle of the offended party were killed by the accused out of hate or for revenge, it would be malicious mischief.
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ARTICLE 328 SPECIAL CASES OF MALICIOUS MISCHIEF A. Acts punished 1. Causing damage to obstruct the performance of public functions; 2. Using any poisonous or corrosive substance; 3. Spreading any infection or contagion among cattle; 4. Causing damage to the property of the National Museum or National Library, or to any archive or registry, waterworks, road, promenade, or any other thing used is common by the pubic. NB: Q: In the crime of sedition, there is also a provision there on destruction of public functions, what is the distinction? A: the only difference is in sedition there is a tumultuous public uprising. The act of causing damage to obstruct the performance of public functions should not be confused with sedition which requires a public uprising and the obstruction therein need not entail damage to property.
ARTICLE 329 OTHER MISCHIEFS All other mischiefs not included in the next preceding article ARTICLE 330 DAMAGE AND OBSTRUCTION TO MEANS OF COMMUNICATION Result in derailment of cars, collisions or other accident. If the property damaged is appropriated, the crime is theft because there is intent to gain. The destruction is no longer considered. Distinction between coup d etat and article 330 Coup d etat Purpose is to diminish state power Political crime article 330 the purpose is to destroy Crime against property
This is committed by damaging any railway, telegraph or telephone lines.

ARTICLE 331 DESTROYING OR DAMAGING STATUES, PUBLIC MONUMENTS OR PAINTINGS
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Chapter Ten EXEMPTION FROM CRIMINAL LIABILITY IN CRIMES AGAINST PROPERTY

ARTICLE 332 PERSONS EXEMPT FROM CRIMINAL LIABILITY A. Crimes involved in the exemption 1. Theft; 2. Estafa; and 3. Malicious mischief. B. Persons exempted from criminal liability 1. Spouse, ascendants and descendants, or relatives by affinity in the same line; 2. Widowed spouse with respect to the property which belonged to the deceased spouse before the same passed into the possession of another 3. Brothers and sisters and brothers-in-law and sisters-in-law, if living together. Only the relatives enumerated incur no liability if the crime relates to theft (not robbery), swindling, and malicious mischief. Third parties who participate are not exempt. The relationship between the spouses is not limited to legally married couples; the provision applies to live-in partners. Estafa should not be complexed with any other crime in order for exemption to operate. The relationship between the offender and the offended party operates as an absolutory cause in the crimes of theft, estafa and malicious mischief. Hence, the exemption does not apply to robbery or where one of the crimes mentioned here is complexed with another, such as theft thru falsification or estafa thru falsification. Regarding the relatives mentioned in Par. 1, it has been held that included in the exemptions are parents-in-law, step-parents and adopted children. The exemption further applies to illegitimate children provided they are recognized or their filiation is duly proved. It does not apply, however, to an illegitimate grandfather. Regarding the widowed spouse, she is also exempt if the property belonging to the estate of the deceased has not passed into the possession of another, hence if the estate is already under judicial settlement, the exemption cannot be invoked as the property is deemed to be in the possession of the administrator or in custodia legis if the inventory thereof has been approved by the probate court. Brothers and sisters or brothers-in-law and sisters-in-law will also enjoy the exemption if they are actually living together, but not to where one is only given temporary shelter by the other, for then the closeness of the ties of consanguinity or affinity would be supplanted by considerations of convenience which may be taken advantage of.
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TITLE ELEVEN
CRIMES AGAINST CHASTITY

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. Adultery (Art. 333); Concubinage (Art. 334); Acts of lasciviousness (Art. 336); Qualified seduction (Art. 337); Simple seduction (Art. 338); Acts of lasciviousness with the consent of the offended party (Art. 339); Corruption of minors (Art. 340); White slave trade (Art. 34); Forcible abduction (Art. 342); Consented abduction (Art. 343).
The crimes of Adultery, Concubinage, Seduction, Abduction and Acts of lasciviousness are the so-called private crimes. They cannot be prosecuted except upon the complaint initiated by the offended party. The law regards the privacy of the offended party here as more important than the disturbance to the order of society. For the law gives the offended party the preference whether to sue or not to sue. But the moment the offended party has initiated the criminal complaint, the public prosecutor will take over and continue with prosecution of the offender. That is why under Article 344, if the offended party pardons the offender, that pardon will only be valid if it comes before the prosecution starts. The moment the prosecution starts, the crime has already become public and it is beyond the offended party to pardon the offender.
Chapter One ADULTERY AND CONCUBINAGE

ARTICLE 333 WHO ARE GUILTY OF ADULTERY A. Elements: 1. that the woman is married 2. that she has sexual intercourse with a man not her husband 3. that as regards the man with whom she has sexual intercourse, he must know her to be married. Special mitigating circumstance: If the person guilty of adultery committed this offense while being abandoned without justification by the offended spouse, penalty is lowered by 1 degree. Crimes against chastity are also referred to as private crimes, or crimes which cannot be prosecuted de oficio, because of the requirement that the prosecution thereof be upon a sworn written complaint of the offended party or certain persons authorized by law. The crimes against chastity which cannot be prosecuted de oficio are: a) adultery Art. 333 b) concubinage Art. 334 c) acts of lasciviousness with or without consent Art. 336, 339 d) seduction whether qualified or simple Art. 337, 338 e) abduction which may be forcible or consented Art. 342, 343. The crimes against chastity which can be prosecuted de oficio are:
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a) corruption of minors Art. 340. b) white slave trade Art. 341. There will be separate crimes of adultery and bigamy even if the adultery resulted from or was by reason of the bigamous marriage. Adultery is a crime not only of the married woman but also of the man who had intercourse with a married woman knowing her to be married. Even if the man proves later on that he does not know the woman to be married, at the beginning, he must still be included in the complaint or information. This is so because whether he knows the woman to be married or not is a matter of defense and its up to him to ventilate that in formal investigations or a formal trial. If after preliminary investigation, the public prosecutor is convinced that the man did not know that the woman is married, then he could simply file the case against the woman. The acquittal of the woman does not necessarily result in the acquittal of her co-accused. In order to constitute adultery, there must be a joint physical act. Joint criminal intent is not necessary. Although the criminal intent may exist in the mind of one of the parties to the physical act, there may be no such intent in the mind of the other party. One may be guilty of the criminal intent, the other innocent, and yet the joint physical act necessary to constitute the adultery may be complete. So, if the man had no knowledge that the woman was married, he would be innocent insofar as the crime of adultery is concerned but the woman would still be guilty; the former would have to be acquitted and the latter found guilty, although they were tried together. A husband committing concubinage may be required to support his wife committing adultery under the rule in pari delicto. There is no frustrated adultery because of the nature of the offense. For adultery to exist, there must be a marriage although it be subsequently annulled. There is no adultery, if the marriage is void from the beginning. Adultery is an instantaneous crime which is consummated and completed at the moment of the carnal union. Each sexual intercourse constitutes a crime of adultery. Adultery is not a continuing crime unlike concubinage.
Illustration: Madamme X is a married woman residing in Pasay City. He met a man, Y, at Roxas Boulevard. She agreed to go with to Baguio City, supposedly to come back the next day. When they were in Bulacan, they stayed in a motel, having sexual intercourse there. After that, they proceeded again and stopped at Dagupan City, where they went to a motel and had sexual intercourse.
There are two counts of adultery committed in this instance: one adultery in Bulacan, and another adultery in Dagupan City. Even if it involves the same man, each intercourse is a separate crime of adultery.
ARTICLE 334 CONCUBINAGE A. Acts punished 1. Keeping a mistress in the conjugal dwelling; 2. Having sexual intercourse, under scandalous circumstances;
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3. Cohabiting with her in any other place. B. Elements 1. The man is married; 2. He is either a. Keeping a mistress in the conjugal dwelling; b. Having sexual intercourse under scandalous circumstances with a woman who is not his wife; or c. Cohabiting with a woman who is not his wife in any other place; 3. As regards the woman, she knows that the man is married. consent = refers to future acts pardon = refers to past acts NB: There can be no accomplice both in adultery and concubinage Concubinage is committed in three ways. The element of habituality in the commission of the crime is required in the first and third modes. In the third mode, cohabiting in any other place requires that both the accused actually live together as husband and wife. Occasional visits or mere transient interviews between the accused does not constitute cohabitation which is expressly required by the Code. With respect to concubinage the same principle applies: only the offended spouse can bring the prosecution. This is a crime committed by the married man, the husband. Similarly, it includes the woman who had a relationship with the married man. It has been asked why the penalty for adultery is higher than concubinage when both crimes are infidelities to the marital vows. The reason given for this is that when the wife commits adultery, there is a probability that she will bring a stranger into the family. If the husband commits concubinage, this probability does not arise because the mother of the child will always carry the child with her. So even if the husband brings with him the child, it is clearly known that the child is a stranger. Not in the case of a married woman who may bring a child to the family under the guise of a legitimate child. This is the reason why in the former crime the penalty is higher than the latter. Unlike adultery, concubinage is a continuing crime. Innocent Spouse no longer has the right to institute Adultery or Concubinage after a Divorce has been Decreed
IMELDA PILAPIL vs. HON IBAY-SOMERA and GEILING G.R. No. 80116. June 30, 1989 An ill-starred marriage of a Filipina and a foreigner which ended in a foreign absolute divorce, only to be followed by a criminal infidelity suit of the latter against the former, provides Us the opportunity to lay down a decisional rule on what hitherto appears to be an unresolved jurisdictional question. On September 7, 1979, petitioner Imelda Pilapil, a Filipino citizen, and private respondent Geiling, a German national, were married before the Registrar of Births, Marriages and Deaths at Friedensweiler in the Federal Republic of Germany. The marriage started auspiciously enough, and the couple lived together for some time in Malate, Manila where their only child, Isabella Pilapil Geiling, was born on April 20, 1980.
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Thereafter, marital discord set in, with mutual recriminations between the spouses, followed by a separation de facto between them. ADULTERY AND CONCUBINAGE; AFTER A DIVORCE HAS BEEN DECREED, THE INNOCENT SPOUSE NO LONGER HAS THE RIGHT TO INSTITUTE PROCEEDINGS AGAINST THE OFFENDERS. American jurisprudence, on cases involving statutes in that jurisdiction which are in pari materia with ours, yields the rule that after a divorce has been decreed, the innocent spouse no longer has the right to institute proceedings against the offenders where the statute provides that the innocent spouse shall have the exclusive right to institute a prosecution for adultery. Where, however, proceedings have been properly commenced, a divorce subsequently granted can have no legal effect on the prosecution of the criminal proceedings to a conclusion. MARRIAGE IN THE FEDERAL REPUBLIC OF GERMANY BETWEEN A FILIPINA AND A GERMAN, RECOGNIZED IN THE PHILIPPINES. In the present case, the fact that private respondent obtained a valid divorce in his country, the Federal Republic of Germany, is admitted. Said divorce and its legal effects may be recognized in the Philippines insofar as private respondent is concerned in view of the nationality principle in our civil law on the matter of status of persons. SEVERANCE OF MATERIAL BOND HAD THE EFFECT OF DISSOCIATING THE FORMER SPOUSES FROM EACH OTHER. The allegation of private respondent that he could not have brought this case before the decree of divorce for lack of knowledge, even if true, is of no legal significance or consequence in this case. When said respondent initiated the divorce proceeding, he obviously knew that there would no longer be a family nor marriage vows to protect once a dissolution of the marriage is decreed. Neither would there be a danger of introducing spurious heirs into the family, which is said to be one of the reasons for the particular formulation of our law on adultery, since there would thenceforth be no spousal relationship to speak of. The severance of the marital bond had the effect of dissociating the former spouses from each other, hence the actuations of one would not affect or cast obloquy on the other.
Chapter Two RAPE AND ACTS OF LASCIVIOUSNESS

ARTICLE 335 The definition of the crime of rape was expanded and the same was reclassified as a crime against persons and incorporated into Title Eight under Chaper Three as Articles 266-A, 266-B, 266-C and 266-D.) ARTICLE 336 ACTS OF LASCIVIOUSNESS A. Elements 1. Offender commits any act of lasciviousness or lewdness; 2. It is done under any of the following circumstances: a. By using force or intimidation; b. When the offended party is deprived or reason of otherwise unconscious; or c. When the offended party is another person of either sex. Any person can be a victim; man or woman No attempted or frustrated stage in this crime because this is a crime of result. Note that there are two kinds of acts of lasciviousness under the Revised Penal Code: (1) under Article 336, and (2) under Article 339.
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1. Article 336. Acts of Lasciviousness Under this article, the offended party may be a man or a woman. The crime committed, when the act performed with lewd design was perpetrated under circumstances which would have brought about the crime of rape if sexual intercourse was effected, is acts of lasciviousness under this article. This means that the offended party is either (1) (2) under 12 years of age; or being over 12 years of age, the lascivious acts were committed on him or her through violence or intimidation, or while the offender party was deprived of reason, or otherwise unconscious.
2. Article 339. Acts of Lasciviousness with the Consent of the Offended Party: Under this article, the victim is limited only to a woman. The circumstances under which the lascivious acts were committed must be that of qualified seduction or simple seduction, that is, the offender took advantage of his position of ascendancy over the offender woman either because he is a person in authority, a domestic, a househelp, a priest, a teacher or a guardian, or there was a deceitful promise of marriage which never would really be fulfilled. (See Article 339) Always remember that there can be no frustration of acts of lasciviousness, rape or adultery because no matter how far the offender may have gone towards the realization of his purpose, if his participation amounts to performing all the acts of execution, the felony is necessarily produced as a consequence thereof. Intent to rape is not a necessary element of the crime of acts of lasciviousness. Otherwise, there would be no crime of attempted rape.
Updates in ACTS OF LASCIVIOUSNESS

In Navarrete, the Court punished the accused under Section 5 (b) for touching the complainant's vagina and poking her vagina with a cotton bud. In People v. Candaza, 49 the Court punished the accused under Section 5 (b) for kissing the lips, licking the vagina, and mashing the breasts of the complainant. In Amployo, 50 the Court punished the accused under Section 5 (b) for touching the breasts of the complainant. In keeping with jurisprudence, Montinola is liable under Section 5 (b) for caressing the thigh and touching the vagina of AAA. o In Criminal Case No. 02-725, the alternative circumstance of relationship under Article 15 of the Revised Penal Code 51 should be considered against Montinola. In People v. Fetalino, 52 the Court held that, "in crimes against chastity, like acts of lasciviousness, relationship is considered aggravating." In that case, the Court considered relationship as an aggravating circumstance since the informations mentioned, and the accused admitted, that the complainant was his daughter. ACTS OF LASCIVIOUSNESS; ELEMENTS. The elements of the crime of acts of lasciviousness are: (1) that the offender commits any act of lasciviousness or lewdness; (2) that it is done: (a) by using force and intimidation or (b) when the offended party is deprived of reason or otherwise unconscious, or (c) when the offended party is under 12 years of age; and (3) that the offended party is another person of either sex. o REPUBLIC ACT NO. 7610 (THE CHILD ABUSE LAW); LASCIVIOUS CONDUCT, DEFINED. Section 32, Article XIII, of the Implementing Rules and Regulations of RA 7610 or the Child Abuse Law defines lascivious conduct, as follows: "[T]he intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass,
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degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person." In the case at bar, all the elements of the offense were established, making accused-appellant liable for the crime of acts of lasciviousness, as defined and penalized under Article 366 of the Revised Penal Code in relation to R.A. No. 7610 or the Child Abuse Law. 25 As evidenced by her birth certificate, 26 the victim was 6 years of age at the time of the commission of the offense on August 19, 1997, having been born on November 3, 1991. Accused-appellant's acts of removing the victim's underwear, inserting his finger into and licking her vagina, and lying on top of her, constitute lascivious conduct intended to arouse or gratify his sexual desire. Indeed, the victim's testimony that accused-appellant performed the said lecherous acts should be given full faith and credence. In cases of acts of lasciviousness, the lone testimony of the offended party, if credible, is sufficient to establish the guilt of the accused. Such is the testimony of victims who are young, immature, and have no motive to falsely testify against the accused, as in the instant case.
ACTS OF LASCIVIOUSNESS; COMMITTED WHERE ACCUSED FORCIBLY PLACED HIS HAND BETWEEN THE LEGS OF A GIRL OVER 12 YEARS OLD OR WITHOUT FORCE IF SHE WERE UNDER THAT AGE. It has been ruled that the act of an accused in forcibly placing his hand between the legs of a girl over 12 years old, or without force if she were under that age, constitutes the crime of acts of lasciviousness. However, in the present case, even the lesser crime of acts of lasciviousness has not been proven by the prosecution beyond reasonable doubt. o ATTEMPTED RAPE; ACCUSED CAN NOT BE HELD GUILTY THEREOF WHERE IT WAS SHOWN THAT HE MERELY PLACED HIS FINGER IN THE VICTIM'S VAGINA. Based on the testimony of Ma. Cristina, the trial court erred in finding appellant guilty of rape as the child understood "ari," penis or "titi" as the finger of her father. Nowhere could we find from said testimony any indication that appellant successfully placed, or tried to insert, his penis and penetrated at least the labia of the victim. The victim only said in her testimony that Mauro placed his finger in her vagina while bathing her and while she was asleep. Under such situation, neither could appellant be held guilty of attempted rape. Without the penetration, the crime committed is either attempted rape or acts of lasciviousness. 14 Attempted rape, however, requires that the offender commence the commission of rape directly by overt acts but does not perform all the acts of execution by reason of some cause or accident other than his own spontaneous desistance. 15 In the present case, nothing prevented appellant from consummating the act and it would seem that he was already contented with rubbing his penis against the complainant without actually inserting it into her private part. Thus, appellant cannot be convicted of attempted rape but only of acts of lasciviousness for the June 1999 incident. ACTS OF LASCIVIOUSNESS; ELEMENTS. The elements of the crime of acts of lasciviousness are as follows: 1. The offender commits an act of lasciviousness or lewdness; 2. The act is done (a) by using force or intimidation, (b) when the offended party is deprived of reason or otherwise unconscious, or (c) when the offended party is under 12 years of age; and 3. The offended party is another person of either sex. o ORDERING A GIRL TO REMOVE HER UNDERWEAR FOR THE PURPOSE OF SEEING HER PRIVATE ORGAN CONSTITUTES AN ACT OF LASCIVIOUSNESS. From the environmental circumstance under which the acts was done, lewd design can be imputed to Jimmy. He claimed that his purpose was to see her private organ because of the alleged rumors that it (Analyn's genitalia) was "beautiful and big." Such act was not out of sheer curiosity but rather out of lascivious curiosity. Notably, on cross-examination, he testified that he never tried "to peep to see the private organs" of his sisters to confirm whether they were big and beautiful. He also acknowledged that it is "very immoral for a man to look and stare at the private organ of a lady." The failure of the prosecution to establish appellant Mole's guilt for rape notwithstanding, this Court finds him liable for the lesser crime of acts of lasciviousness. The records clearly show that appellant lay on top of the victim, mashed her breasts and kissed her lips, acts from which appellant's lewd design was evident. Although the information filed was for the crime of rape, appellant can be convicted of acts of lasciviousness because the latter is necessarily included in rape. 41 ACTS OF LASCIVIOUSNESS; CAN BE COMMITTED ANYWHERE. The fact that the petitioner molested Jocelyn in a place frequented by other co-workers, some of whom use it as a short-cut and a passageway, is not improbable. In a catena of cases, we have ruled that lust is no respecter of time and place. If rape can be committed in places where people congregate, even in the same room where other members of the family are sleeping, there is less
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reason to believe that other people sleeping in the same room can serve as a deterrent for the commission of lascivious acts. ACTS OF LASCIVIOUSNESS; ELEMENTS. Thus, as earlier stated, notwithstanding the prosecution's failure to prove accused-appellant's guilt for rape, the Court holds that there is sufficient evidence to convict him for acts of lasciviousness under Article 336 of the Revised Penal Code. The elements of the crime are: (1) that the offender commits any act of lasciviousness or lewdness; (2) that it is done (a) by using force and intimidation or (b) when the offended party is deprived of reason or otherwise unconscious, or (c) when the offended party is under 12 years of age; and (3) that the offended party is another person of either sex. Although the information was for qualified rape, accused-appellant can be convicted of acts of lasciviousness because the crime of acts of lasciviousness is included in rape. Rowena clearly testified that, wearing only his briefs, accused-appellant approached her while she was half-asleep and kissed her. With lewd design, accused-appellant grabbed Rowena and then undressed her. He also threatened to kill her. All the elements of the crime of acts of lasciviousness are therefore present and have been sufficiently established. ACTS OF LASCIVIOUSNESS; ELEMENTS. In Criminal Case No. 19120, the trial court correctly found appellant guilty of acts of lasciviousness. The elements of this crime are that: (a) the offender commits any act of lasciviousness or lewdness; (b) by using force or intimidation, or when the offended party is deprived of reason or otherwise unconscious, or the offended party is under 12 years of age. In acts of lasciviousness, the acts complained of are prompted by lust or lewd design where the victim has not encouraged such acts. In cases of acts of lasciviousness, the offender is deemed to have accomplished all the elements necessary for the existence of the felony once he has been able, by his overt acts, to actually achieve or attain his purpose. ACTS OF LASCIVIOUSNESS; ELEMENTS; PRESENT IN CASE AT BAR. Although it was not established that accusedappellant had carnal knowledge of private complainant, the evidence showed that he touched private complainant's private parts while the latter was deep in sleep. Such act constitutes acts of lasciviousness penalized under Article 366 of the Revised Penal Code. The elements of the crime of acts of lasciviousness are: (1) that the offender commits any act of lasciviousness or lewdness; (2) that it is done (a) by using force or intimidation or (b) when the offended party is under 12 years of age; and (3) that the offended party is another person of either sex. All the elements of the offense are present in this case. ACTS OF LASCIVIOUSNESS; ELEMENTS; PRESENT IN CASE AT BAR. Petitioner's acts of lying on top of the complainant, embracing and kissing her, mashing her breasts, inserting his hand inside her panty and touching her sexual organ, while admittedly obscene and detestable acts, do not constitute attempted rape absent any showing that petitioner actually commenced to force his penis into the complainant's sexual organ Rather, these acts constitute acts of lasciviousness. The elements of said crime are. (1) that the offender commits any act of lasciviousness or lewdness; (2) that is done (a) by using force and intimidation or (b) when the offended party is deprived of reason or otherwise unconscious, or (c) when the offended, party is under 12 years of age; and (3) that the offended party is another person of either sex. All these elements are present and have been sufficiently established in this case. Petitioner clearly committed lewd acts against the complainant. Moreover, petitioner employed force when he committed these acts on the complainant. ACTS OF LASCIVIOUSNESS; ELEMENTS THEREOF; CASE AT BAR. The elements of acts of lasciviousness are: (1) the offender commits any act of lasciviousness or lewdness; (2) the act is done under any of the following circumstances (a) when force or intimidation is used, or (b) when the offended party is deprived of reason or is otherwise unconscious, or (c) when the offended party is under 12 years of age, or (3) when the offended party is another person of either sex. Undeniably, the evidence shows that appellant committed lewd acts against the victim with the use of force and intimidation when he mashed her body while pointing a bolo at her. Although the Information filed was for the crime of rape, he may be convicted of acts of lasciviousness only. To repeat, the latter is necessarily included in a charge of rape through force. In other words, "touching" of the female organ will result in consummated rape if the penis slid into or touched either labia of the pudendum. Anything short of that will only result in either attempted rape or acts of lasciviousness. Significantly, People v. Campuhan did not set a demarcation line separating attempted rape from acts of lasciviousness. The difference lies in the intent of the perpetrator deducible from his external acts. Thus when the "touching" of the vagina by the penis is coupled with the intent to penetrate, attempted rape is committed. Otherwise, it is merely acts of lasciviousness. Inasmuch as the touching of the victim's organ by the penis of accused-appellant on 5 June 1993 was but a mere incident of the "rubbing against or between the victim's thighs" which in no way manifests an act preliminary to sexual intercourse, accused-appellant should only be convicted of acts of lasciviousness instead of consummated rape.
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Chapter Three SEDUCTION, CORRUPTION OF MINORS, AND WHITE SLAVE TRADE

SEDUCTION - enticing a woman to unlawful sexual intercourse by promise of marriage or other means of persuasion without use of force. ARTICLE 337 QUALIFIED SEDUCTION A. Two Kinds of Seductions: 1. qualified seduction (Art 337) 2. simple seduction (Art 338) B. Acts punished 1. Seduction of a virgin over 12 years and under 18 years of age by certain persons, such as a person in authority, priest, teacher; and Elements 1. Offended party is a virgin, which is presumed if she is unmarried and of good reputation; 2. She is over 12 and under 18 years of age; 3. Offender has sexual intercourse with her; 4. There is abuse of authority, confidence or relationship on the part of the offender.
2. Seduction of a sister by her brother, or descendant by her ascendant, regardless of her age or reputation. C. Person liable 1. Those who abused their authority a. Person in public authority; b. Guardian; c. Teacher; d. Person who, in any capacity, is entrusted with the education or custody of the woman seduced; 2. Those who abused confidence reposed in them a. Priest; b. House servant; c. Domestic; 3. Those who abused their relationship a. Brother who seduced his sister; b. Ascendant who seduced his descendant. Distinguish qualified seduction from sexual harassment: Qualified seduction Sexual harassment There must be sexual intercourse No sexual intercourse required
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Over 12 but under 18 years of age Victim is a woman (virgin) Abuse of authority
Age does not matter Man or woman may be victims Use of authority, influence or moral ascendancy
The gist of qualified seduction is the abuse of authority, confidence, or relationship as the means of committing the crime, in simple seduction, it is the use of deceit. Hence, as long as there is such abuse by the offender, the seduction is qualified even if there was also deceit, such as a contrived promise of marriage, as this latter circumstance will merely be considered a superfluity. Deceit is not required in qualified seduction. Qualified seduction does not require physical virginity. The legal view is that qualified seduction only requires virginity in law, that is, that the victim has had no other voluntary carnal relations with another man. Since virginity is required by law, it is suggested that there can be no qualified seduction of a widow, unless it can be proved that she never had sexual relations with the deceased husband, even if she is 12 years or over and under 18 and there was abuse of authority, confidence or if the offender is a brother or ascendant. In any event, the victims virginity or age is immaterial, and the crime is categorized as qualified seduction as an expression of the laws revulsion against incest. Seduction is a continuing offense and continuous cohabitation during a particular period, or several acts of intercourse under the same promise of marriage, is only one offense. This crime also involves sexual intercourse. The offended woman must be over 12 but below 18 years. The distinction between qualified seduction AND simple seduction lies in the fact, among others, that the woman is a virgin in qualified seduction, while in simple seduction, it is not necessary that the woman be a virgin. It is enough that she is of good repute. Although in qualified seduction, the age of the offended woman is considered, if the offended party is a descendant or a sister of the offender - no matter how old she is or whether she is a prostitute the crime of qualified seduction is committed.
Illustration: If a person goes to a sauna parlor and finds there a descendant and despite that, had sexual intercourse with her, regardless of her reputation or age, the crime of qualified seduction is committed.
In the case of a teacher, it is not necessary that the offended woman be his student. It is enough that she is enrolled in the same school. Deceit is not necessary in qualified seduction. Qualified seduction is committed even though no deceit intervened or even when such carnal knowledge was voluntary on the part of the virgin. This is because in such a case, the law takes for granted the existence of the deceit as an integral element of the crime and punishes it with greater severity than it does the simple seduction, taking into account the abuse of confidence on the part of the agent. Abuse of confidence here implies fraud. ARTICLE 338 SIMPLE SEDUCTION A. Elements
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1. Offender party is over 12 and under 18 years of age; 2. She is of good reputation, single or widow; 3. Offender has sexual intercourse with her; 4. It is committed by means of deceit. This crime is committed if the offended woman is single or a widow of good reputation, over 12 and under 18 years of age, the offender has carnal knowledge of her, and the offender resorted to deceit to be able to consummate the sexual intercourse with her. Domestic = not the same as house servant. A domestic is any person who may be living in the same house with the victim as a lodger, boarder, transient, house guest or as a member of the same household. Seduction is a continuing offense. For simple seduction, aside from the age requirement, it is only required that the victim is single or a widow of good reputation. It is not required in simple seduction that the victim be a virgin. Unlike in qualified seduction, virginity is not essential in this crime. What is required is that the woman be unmarried and of good reputation. Simple seduction is not synonymous with loss of virginity. If the woman is married, the crime will be adultery. A promise of marriage is usually the principal inducement, hence it must precede the seduction, even if made 11 months before the act. The failure to comply with the promise of marriage constitutes the deceit mentioned in the law. Generally, a breach of a promise of marriage constitutes the deceitful conduct but there have been other deceitful means resorted to, as where the offender convinced the woman that sexual congress was part of her medication or where a fictitious marriage ceremony was performed to convince the victim. Doctrine of mutual desire: the woman-victim yielded not because of deceit but because her own desire, applicable only to simple seduction but not to qualified seduction wherein the essence of the crime is abuse of authority, confidence, or relationship. The offended woman must be under 18 but not less than 12 years old; otherwise, the crime is statutory rape. ARTICLE 339 ACTS OF LASCIVIOUSNESS WITH CONSENT OF THE OFFENDED PARTY A. Elements: 1. that the offender commits acts of lasciviousness or lewdness 2. that the acts are committed upon a woman who is a virgin or single or widow of good reputation, under 18 years of age but over 12 years, or a sister or descendant regardless of her reputation or age 3. that the offender accomplishes the acts by abuse of authority, confidence, relationship or deceit ARTICLE 340 CORRUPTION OF MINORS
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Promote or facilitate the prostitution or corruption of person under age to satisfy the lust of another. Thus where the girl was forcibly taken without lewd designs on the part of the accused but to satisfy the lust of another, the crime is corruption of that minor and not abduction. Corruption of minors is punishable without need for habituality, abuse of authority or abuse of confidence on the part of the offender. Corruption of minors and white slave trade are distinguished as follows: Corruption of minors It is essential that minors are used May have victims of either sex May not necessarily be for profit Committed by a single act White slave trade Minority need not be involved Limited to females Generally for profit Committed habitually
This punishes any person who shall promote or facilitate the prostitution or corruption of persons under age to satisfy the lust of another. It is not required that the offender be the guardian or custodian of the minor. It is not necessary that the minor be prostituted or corrupted as the law merely punishes the act of promoting or facilitating the prostitution or corruption of said minor and that he acted in order to satisfy the lust of another. ARTICLE 341 WHITE SLAVE TRADE A. ACTS PENALIZED: 1. engaging in the business of prostitution 2. profiting by prostitution 3. enlisting the services of women for the purpose of prostitution The first two modes of require the element of profit and habituality. In the third mode, the profit motive is not required, nor is habituality an element thereof. White slave trade may be with or without the consent of the woman, while slavery for the purpose of assigning in the woman to immoral traffic (Art. 272) is committed against her will.
Chapter Four ABDUCTION

ARTICLE 342 FORCIBLE ABDUCTION A. Elements 1. The person abducted is any woman, regardless or her age, civil status, or reputation; 2. The abduction is against her will;
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3. The abduction is with lewd designs. No need of sexual intercourse In both forms of abduction (Art. 342 and 343), there must be lewd designs and there must be the taking of the woman, not necessarily with some degree of permanence but for some appreciable period of time. In forcible abduction, force sufficient to overcome the victims resistance is required, unless the victim is under 12 years of age. If the victims consent was obtained through deceit and therefore there was no valid consent, the crime is forcible abduction, the deceit to be considered as constructive force. Actual intercourse with the victim is not required in abduction, as lewd designs in the taking is sufficient. Q: A woman named Anabelle Huggins was abducted and raped three times. How many crimes were committed? A: Three crimes: forcible abduction with rape and two separate crimes of rape because they shall be considered as separate crimes.
PEOPLE vs. JAIME JOSE G.R. No. L-28232. February 6, 1971 Jaime Jose and others raped Maggie de la Riva (a movie star) We are convinced that the herein four appellants have conspired together to commit the crimes imputed to them in the amended information quoted at the beginning of this decision. There is no doubt at all that the forcible abduction of the complainant from in front of her house in Quezon City, was a necessary if not indispensable means which enabled them to commit the various and successive acts of rape upon her person. It bears noting, however, that even while the first act of rape was being performed, the crime of forcible abduction had already been consummated, so that each of the three succeeding crimes of the same nature can not legally be considered as still connected with the abduction in other words, they should be detached from, and considered independently of, that of forcible abduction and, therefore, the former can no longer be complexed with the latter. WHEREFORE, the judgment under review is hereby modified as follows: appellants Jose, Pineda, Jr., and Aquino are pronounced guilty of the complex crime of forcible abduction with rape, and each and every one of them is likewise convicted of three (3) other crimes of rape.
A woman is carried against her will or brought from one place to another against her will with lewd design. If the element of lewd design is present, the carrying of the woman would qualify as abduction; otherwise, it would amount to kidnapping. If the woman was only brought to a certain place in order to break her will and make her agree to marry the offender, the crime is only grave coercion because the criminal intent of the offender is to force his will upon the woman and not really to restrain the woman of her liberty. If the offended woman is under 12 years old, even if she consented to the abduction, the crime is forcible abduction and not consented abduction. Where the offended woman is below the age of consent, even though she had gone with the offender through some deceitful promises revealed upon her to go with him and they live together
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as husband and wife without the benefit of marriage, the ruling is that forcible abduction is committed by the mere carrying of the woman as long as that intent is already shown. In other words, where the man cannot possibly give the woman the benefit of an honorable life, all that man promised are just machinations of a lewd design and, therefore, the carrying of the woman is characterized with lewd design and would bring about the crime of abduction and not kidnapping. This is also true if the woman is deprived of reason and if the woman is mentally retardate. Forcible abduction is committed and not consented abduction. Lewd designs may be demonstrated by the lascivious acts performed by the offender on her. Since this crime does not involve sexual intercourse, if the victim is subjected to this, then a crime of rape is further committed and a complex crime of forcible abduction with rape is committed. The taking away of the woman may be accomplished by means of deceit at the beginning and then by means of violence and intimidation later. The virginity of the complaining witness is not a determining factor in forcible abduction. In order to demonstrate the presence of the lewd design, illicit criminal relations with the person abducted need not be shown. The intent to seduce a girl is sufficient. If there is a separation in fact, the taking by the husband of his wife against her will constitutes grave coercion. Distinction between forcible abduction and illegal detention: When a woman is kidnapped with lewd or unchaste designs, the crime committed is forcible abduction. When the kidnapping is without lewd designs, the crime committed is illegal detention. But where the offended party was forcibly taken to the house of the defendant to coerce her to marry him, it was held that only grave coercion was committed and not illegal detention.
Jurisprudential trend in FORCIBLE ABDUCTION

FORCIBLE ABDUCTION; ELEMENTS; PRESENT IN CASE AT BAR. This complex crime occurs when there is carnal knowledge of the abducted woman under any of the circumstances mentioned earlier when force or intimidation is used; when the woman is deprived of reason or is otherwise unconscious; and when the woman is under twelve years of age or is demented. The prosecution sufficiently proved the elements of forcible abduction the taking of the victims against their will with lewd design. As to the first element, although they voluntarily went with appellant, it was indubitably shown that they did so upon being deceived. According to their testimonies, he told them that his leader wanted to talk to them, and that no harm would be done to them. Upon this representation, they went with him. . . . The second element, lewd design, was established by the actual rapes.
o
o
THE EMPLOYMENT OF DECEPTION SUFFICES TO CONSTITUTE FORCIBLE ABDUCTION. The employment of deception suffices to constitute forcible abduction. This Court has previously ruled that if the victim's consent was obtained through deceit and there was therefore no valid consent, the crime is forcible abduction, as the deceit may be considered as constructive force. THERE IS ONLY ONE COMPLEX CRIME OF FORCIBLE ABDUCTION WITH RAPE COMMITTED AGAINST EACH VICTIM; PENALTY; CASE AT BAR. There can be only one complex crime of forcible abduction with rape committed against each victim. The crime of forcible abduction was necessary only for the first rape. After the complex crime had already been consummated, the subsequent rape can no longer be considered as a separate instance thereof That is, it should be detached from, and considered independently of, the forcible abduction. Hence, any subsequent rape of the same victim is simply rape
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and can no longer be considered as a separate complex crime of forcible abduction with rape. . . . For the complex crime of forcible abduction with rape, the penalty for the rape which is the more serious crime shall be imposed in its maximum period. At the time of the commission of the crime, the applicable penalty for rape committed by two or more persons was reclusion perpetua to death. Since the rape was committed by two or more persons a fact duly alleged in the Information and proven in court it should have warranted the imposition of the death penalty. However, appellant committed the crime of forcible abduction with rape on November 10, 1990 before the passage of Republic Act 7659 or the Death Penalty Law, which took effect on December 31, 1993. Thus, the trial court correctly ruled that the penalty that could be imposed was reclusion perpetua. FORCIBLE ABDUCTION WITH RAPE; ELEMENTS. The two elements of forcible abduction, as defined in Article 342 of the Revised Penal Code, are: (1) the taking of a woman against her will and (2) with lewd designs. The crime of forcible abduction with rape is a complex crime that occurs when there is carnal knowledge with the abducted woman under the following circumstances: (1) by using force or intimidation; (2) when the woman is deprived of reason or otherwise unconscious; and (3) when the woman is under twelve years of age or is demented.
SUFFICIENTLY ALLEGED AND ESTABLISHED IN CASE AT BAR. In the case at bar, the information sufficiently alleged the elements of forcible abduction, i.e., the taking of complainant against her will and with lewd design. It was likewise alleged that accused-appellant and his three coaccused conspired, confederated and mutually aided one another in having carnal knowledge of complainant by means of force and intimidation and against her will. Aside from alleging the necessary elements of the crimes, the prosecution convincingly established that the carnal knowledge was committed through force and intimidation. Moreover, the prosecution sufficiently proved beyond reasonable doubt that accused-appellant succeeded in forcibly abducting the complainant with lewd designs, established by the actual rape. Hence, accused-appellant is guilty of the complex crime of forcible abduction with rape. FORCIBLE ABDUCTION WAS ONLY NECESSARY FOR THE FIRST RAPE; ONLY ONE COMPLEX CRIME WAS COMMITTED. [A]s correctly held by the trial court, there can only be one complex crime of forcible abduction with rape. The crime of forcible abduction was only necessary for the first rape. Thus, the subsequent acts of rape can no longer be considered as separate complex crimes of forcible abduction with rape. They should be detached from and considered independently of the forcible abduction. Therefore, accused-appellant should be convicted of one complex crime of forcible abduction with rape and three separate acts of rape.
FORCIBLE ABDUCTION WITH RAPE; ELEMENTS. A judgment of conviction is proper only where the prosecution was able to prove the elements of the complex crime of forcible abduction with rape. Article 342 of the Revised Penal Code defines and penalizes the crime of forcible abduction. The elements of forcible abduction are (a) that the person abducted is a woman, regardless of her age, civil status, or reputation; (b) that the abduction is against her will; and, (c) that the abduction is with lewd designs. On the other hand, Art. 335 of the same Code defines the crime of rape and provides for its penalty. The elements of rape pertinent to this case are: (a) that the offender had carnal knowledge of a woman; and, (b) that such act is accomplished by using force or intimidation. o FORCIBLE ABDUCTION; ELEMENTS; ESTABLISHED IN CASE AT BAR. All the elements of forcible abduction were proved in this case. The victim, who is a young girl, was taken against her will as shown by the fact that at knife-point she was dragged and taken by accused-appellant to a place far from her abode. At her tender age, Lenie could not be expected to physically resist considering the fact that even her companion, Jessica Silona, had to run home to escape accused-appellant's wrath as he brandished a hunting knife. Fear gripped and paralyzed Lenie into helplessness as she was manhandled by accusedappellant who was armed and twenty-four (24) years her senior. The evidence likewise shows that the taking of the young victim against her will was done con miras deshonestas or in furtherance of lewd and unchaste designs. The word lewd is defined as obscene, lustful, indecent, lascivious, lecherous. It signifies that form of immorality which has relation to moral impurity; or that which is carried on in a wanton manner. Such lewd designs were established by the prurient and lustful acts which accusedappellant displayed towards the victim after she was abducted. This element may also be inferred from the fact that while Lenie was then a naive twelve (12)-year old, accused-appellant was thirty-six (36) years old and although unmarried was much wiser in the ways of the world than she. ABSORBS FORCIBLE ABDUCTION. The trial court found that the forcible abduction with rape alleged in Criminal Case No. 44264 was absorbed by the rape charged in Criminal Case No. 44263. The evidence for the prosecution
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shows that Esmaylita was brought by Amburgo and appellant to a banana plantation some 1-1/2 kilometers away from her house for the purpose of raping her. Both men then successively had carnal knowledge of her at said place. Where complainant was forcibly taken away for the purpose of sexually assaulting her, then the rape so committed may absorb the forcible abduction. The trial court, thus, correctly held that the rape charged and proved in Criminal Case No. 44263 already absorbed the forcible abduction with rape complained of in Criminal Case No. 44264. FORCIBLE ABDUCTION; ELEMENTS. Forcible abduction is defined under Article 342 of the Revised Penal Code as the abduction of any woman against her will and with lewd designs. The elements of this crime are: (1) the person abducted is any woman, regardless of her age, civil status, or reputation; (2) the abduction is against her will; and (3) the abduction is with lewd designs. o FAILURE OF VICTIM TO INTIMATE TO THE OWNERS OF HOUSE THAT SHE WAS BROUGHT THERE AGAINST HER WILL, NOT CONSISTENT WITH CLAIM OF FORCIBLE ABDUCTION. When complainant and the three accused reached the house in Calauan, Laguna where she was supposedly taken and kept against her will, complainant did not as much as intimate to the owners of the house that she was being forcibly brought there against her will, notwithstanding that she had every opportunity to do so. Complainant was taken to the house of accused Agno's cousin where among those present were Agno's cousin, his wife and their son. The behavior of the complainant was not consistent with her claim that she was an unwilling victim. In one case, the Court held that the failure of the offended party to mention or to insinuate to the persons she talked to after the moment the alleged abductor brought her to a house and when she was brought home that she was raped renders the prosecution's case doubtful. Complainant admitted having voluntarily gone up the second floor of the house after dinner. As accused-appellant never threatened or forced her, she could have chosen to remain downstairs where the owners of the house were staying if it is true as she alleges that she was fearful of the three accused's "evil designs." REMOVAL OF UNDERWEAR, A REDDENING HYMEN, AN ACHING PRIVATE PART AND BLOOD OF THE UNDERWEAR DO NOT PROVE CARNAL KNOWLEDGE. Removal of underwear, a reddening hymen, an aching private part and blood on the underwear do not prove carnal knowledge. The removal of the victim's underwear is at most a preparation to engage in sexual intercourse. The reddening hymen could have been caused by a male sex organ but that is just a possibility. In the case at bar, considering the age of the victim and the condition of her hymen, there should be laceration if there was penetration by an adult male sex organ. The aching private part could well be part of the overall effect of her beating. The blood on the panty discovered by Lazel after she woke up could have come from the wound inflicted on her leg. It is easy to speculate that Lazel was raped. But in criminal cases, speculation and probabilities cannot take the place of proof required to establish the guilt of the accused beyond reasonable doubt. Suspicion, no matter how strong, must not sway judgment. o FORCIBLE ABDUCTION; LEWD; DEFINED; PROVEN IN CASE AT BAR. Accused-appellant is not, however, off the hook. The prosecution proved the crime of forcible abduction. It is established that accusedappellant took Lazel against her will and with lewd designs. The word "lewd" is defined as obscene, lustful, indecent, lascivious, lecherous. It signifies that form of immorality which has relation to moral impurity; or that which is carried on in a wanton manner. The medico-legal finding and Lazel's testimony, although insufficient to prove rape, buttress the conclusion that accused-appellant had lewd designs when he abducted Lazel. NO LEGAL BASIS TO CONVICT APPELLANT OF THE COMPLEX CRIME OF FORCIBLE ABDUCTION WITH RAPE; WHILE THE INFORMATION SUFFICIENTLY ALLEGES THE FORCIBLE TAKING OF COMPLAINANT FROM CEBU TO MASBATE, THE SAME FAILS TO ALLEGE "LEWD DESIGNS." Was appellant's conviction by the trial court for the complex crime of forcible abduction with rape correct? The elements of forcible abduction are: (1) that the person abducted is any woman, regardless of age, civil status, or reputation; (2) that the abduction is against her will; and (3) that the abduction is with lewd designs. The prosecution's evidence clearly shows that the victim was forcibly taken at knifepoint from Borbon, Cebu by appellant and through threats and intimidation brought to various towns in Masbate, where he passed her off as his "wife." That appellant was moved by lewd designs was shown in regard to rape by his having carnal knowledge of private complainant, against her will, on July 4, 1994 at Cagba, Tugbo, Masbate. While it may appear at first blush that forcible abduction, as defined and penalized by Article 342 of the Revised Penal Code was also committed, we are not totally disposed to convict appellant for the complex crime of forcible abduction with rape. We note that while the information sufficiently alleges the forcible taking of complainant from Cebu to Masbate, the same fails to allege "lewd designs." When a complex crime under Article 48 of the Revised Penal Code is charged, such as forcible abduction with rape, it is axiomatic that the prosecution must allege and prove the presence of all the elements of forcible abduction, as well as all the elements of the crime of rape. When appellant, using a blade, forcibly took away complainant for the purpose of sexually assaulting her, as in fact he did rape her, the rape may then absorb forcible abduction. Hence, the crime committed by appellant is simple rape only.
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FORCIBLE ABDUCTION WITH RAPE; ESTABLISHED IN CASE AT BAR. Article 342 of the revised Penal Code defines and penalizes the crime of forcible abduction. The elements are: (1) that the person abducted is any woman, regardless of her age, civil status or reputation; (2) that she is taken against her will; and (3) that the abduction is with lewd designs. Rape, on the other hand, is committed when an offender had carnal knowledge with a woman (1) by force or intimidation, or (2) when the woman is deprived of reason or is unconscious, or (3) when the woman is under 12 years of age. The carnal knowledge in the instant case was committed through force and intimidation. The prosecution proved beyond reasonable doubt that Rolando de Lara succeeded in forcibly abducting the complainant with lewd designs, established by the actual rape. o FORCIBLE ABDUCTION; LEWD INTENT MUST BE KNOWN TO ALL ACCUSED WHO COOPERATE IN THE COMMISSION OF THE FELONY; NOT ESTABLISHED IN CASE AT BAR. We find merit in the contention of these three that the element of lewd design was not proven as to them. Nor was there conspiracy in this case. Hence, they cannot be convicted of the crime of forcible abduction. As held in People v. Crisostomo, to constitute abduction, the taking away of a woman against her will must be proven to have been effected with unchaste designs. Accordingly, in the case at bar, it was incumbent upon the prosecution to prove that the three accused were actuated by lewd design. The prosecution failed to do so, except with respect to Rolando de Lara. Nor can we find any basis for the allegation of conspiracy to commit the crime of forcible abduction, much less forcible abduction with rape, even if it was proven that one of the accused harbored lewd designs. While it is enough that at least one of the accused entertained lewd design in order to convict all of them of forcible abduction, such lewd intent, however, must be known to all accused who cooperated in the commission of the felony. In the case at bar, it was not proven that Carlito Villas, Eduardo Villas and Magno Tamares had knowledge of lewd designs entertained by Rolando de Lara.
ARTICLE 343 CONSENTED ABDUCTION (Elopement) A. Elements 1. Offended party is a virgin; 2. She is over 12 and under 18 years of age; 3. Offender takes her away with her consent, after solicitation or cajolery; 4. The taking away is with lewd designs. It is not the injury to the woman but the outrage and the alarm to the family which is important here. For consented abduction, there is no need for deceit, but he victims consent must be intelligently and freely given, considering that she is already a person of sufficient discretion. Where several persons participated in the forcible abduction and these persons also raped the offended woman, the original ruling in the case of People v. Jose, supra is that there would be one count of forcible abduction with rape and then each of them will answer for his own rape and the rape of the others minus the first rape which was complexed with the forcible abduction. This ruling is no longer the prevailing rule. The view adopted in cases of similar nature is to the effect that where more than one person has effected the forcible abduction with rape, all the rapes are just the consummation of the lewd design which characterizes the forcible abduction and, therefore, there should only be one forcible abduction with rape.
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In the crimes involving rape, abduction, seduction, and acts of lasciviousness, the marriage by the offender with the offended woman generally extinguishes criminal liability, not only of the principal but also of the accomplice and accessory. However, the mere fact of marriage is not enough because it is already decided that if the offender marries the offended woman without any intention to perform the duties of a husband as shown by the fact that after the marriage, he already left her, the marriage would appear as having been contracted only to avoid the punishment. Even with that marriage, the offended woman could still prosecute the offender and that marriage will not have the effect of extinguishing the criminal liability. Pardon by the offended woman of the offender is not a manner of extinguishing criminal liability but only a bar to the prosecution of the offender. Therefore, that pardon must come before the prosecution is commenced. While the prosecution is already commenced or initiated, pardon by the offended woman will no longer be effective because pardon may preclude prosecution but not prevent the same. All these private crimes - except rape - cannot be prosecuted de officio. If any slander or written defamation is made out of any of these crimes, the complaint of the offended party is till necessary before such case for libel or oral defamation may proceed. It will not prosper because the court cannot acquire jurisdiction over these crimes unless there is a complaint from the offended party. The paramount decision of whether he or she wanted the crime committed on him or her to be made public is his or hers alone, because the indignity or dishonor brought about by these crimes affects more the offended party than social order. The offended party may prefer to suffer the outrage in silence rather than to vindicate his honor in public. In the crimes of rape, abduction and seduction, if the offended woman had given birth to the child, among the liabilities of the offender is to support the child. This obligation to support the child may be true even if there are several offenders. As to whether all of them will acknowledge the child, that is a different question because the obligation to support here is not founded on civil law but is the result of a criminal act or a form of punishment. It has been held that where the woman was the victim of the said crime could not possibly conceive anymore, the trial court should not provide in its sentence that the accused, in case a child is born, should support the child. This should only be proper when there is a probability that the offended woman could give birth to an offspring.
Chapter Five PROVISIONS RELATIVE TO THE PRECEDING CHAPTERS OF TITLE ELEVEN

ARTICLE 344 PROSECUTION OF THE CRIMES OF ADULTERY, CONCUBINAGE, SEDUCTION, ABDUCTION, AND ACTS OF LASCIVIOUSNESS 1. Adultery and concubinage must be prosecuted upon complaint signed by the offended spouse 2. Seduction, abduction, and acts of lasciviousness must be prosecuted upon complaint signed by a. offended party b. her parents c. grandparents, or d. guardians in the order in which they are named above
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(rape not anymore included as amended by RA 8353 and incorporated as article 266 as part of the crimes against persons) Q: who can prosecute the crimes of adultery and concubinage? A: upon complaint of the offended party NB: The offended party cannot prosecute (upon complaint) the crimes of adultery or concubinage without including both the offended parties. ARTICLE 345 CIVIL LIABILITY OF PERSONS GUILTY OF CRIMES AGAINST CHASTITY
1. 2. 3.
To indemnify the offended woman To acknowledge the offspring unless the law should prevent him from doing so In every case to support the offspring
if a married man rapes a single woman, and she got pregnant, the man cannot be forced to acknowledge the child, but he is obliged to support the offspring. ARTICLE 346 LIABILITY OF ASCENDANTS, GUARDIANS, TEACHERS, OR OTHER PERSONS ENTRUSTED WITH THE CUSTODY OF THE OFFENDED PARTY Persons who cooperate as accomplices but are punished as principals in rape, acts of lasciviousness, seduction, corruption of minors, white slave trade, and abduction, they are: 1. ascendants 2. guardians 3. curators 4. teachers 5. any other person who cooperates as accomplice with abuse of authority or confidential relationship
TITLE TWELVE CRIMES AGAINST THE CIVIL STATUS OF PERSONS Chapter One SIMULATION OF BIRTHS AND USURPATION OF CIVIL STATUS
ARTICLE 347 SIMULATION OF BIRTHS, SUBSTITUTIN OF ONE CHILD FOR ANOTHER, AND CONCEALMENT OR ABANDONMENT OF A LEGITIMATE CHILD
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A. Acts punished 1. Simulation of births; 2. Substitution of one child for another; 3. Concealing or abandoning any legitimate child with intent to cause such child to lose its civil status.
If the simulation of birth is for the purpose of trafficking, then it falls under RA 7610. If the simulation of birth is for the purpose of causing the loss of civil status of the child, then it falls under this article. For simulation of births and substitution of children, the law does not require that the child be legitimate, but for concealment and abandonment, the child must be legitimate. Sale of child is not punished under this article but under PD 603 child and youth welfare code and RA 7610. Simulation of birth - takes place when the woman pretends to be pregnant when in fact she is not, and on the day of the supposed delivery takes the child of another as her own Substitution of one child for another - This is committed when for instance, X is born of A and B; Y is born of C and D; and the offender, with intent to cause the loss of any trace of their filiations, exchange X and Y without the knowledge of their respective parents. Concealing or abandoning any legitimate child Elements 1. The child must be legitimate 2. The offender conceals or abandons the child 3. The offender has the intent to cause such child to lose its civil status
If the child is being kidnapped and they knew that the kidnappers are not the real parents of their child, then simulation of birth is committed. If the parents are parties to the simulation by making it appear in the birth certificate that the parents who bought the child are the real parents, the crime is not falsification on the part of the parents and the real parents but simulation of birth. Questions & Answers 1. A woman who has given birth to a child abandons the child in a certain place to free herself of the obligation and duty of rearing and caring for the child. What crime is committed by the woman? The crime committed is abandoning a minor under Article 276. 2. Suppose that the purpose of the woman is abandoning the child is to preserve the inheritance of her child by a former marriage, what then is the crime committed? The crime would fall under the second paragraph of Article 347. The purpose of the woman is to cause the child to lose its civil status so that it may not be able to share in the inheritance.
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3. Suppose a child, one day after his birth, was taken to and left in the midst of a lonely forest, and he was found by a hunter who took him home. What crime was committed by the person who left it in the forest? It is attempted infanticide, as the act of the offender is an attempt against the life of the child. See US v. Capillo, et al., 30 Phil. 349. ARTICLE 348 USURPATION OF CIVIL STATUS A. How committed: 1. by assuming filiation or 2. by assuming parental rights 3. by assuming conjugal rights of another Purpose: to defraud the offended party of his heirs If the purpose is to merely enjoy or use the usurp rights as by using anothers license, or to get another passport etc.. he will not be liable under this article but he may be liable for using fictitious name, or estafa if there is intent to defraud, or forgery or falsification. This crime is committed when a person represents himself to be another and assumes the filiation or the parental or conjugal rights of such another person. Thus, where a person impersonates another and assumes the latter's right as the son of wealthy parents, the former commits a violation of this article. The term "civil status" includes one's public station, or the rights, duties, capacities and incapacities which determine a person to a given class. It seems that the term "civil status" includes one's profession. ARTICLE 349 BIGAMY A. Elements 1. Offender has been legally married; 2. The marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code; 3. He contracts a second or subsequent marriage; 4. The second or subsequent marriage has all the essential requisites for validity. Bigamy, being a crime against status, can be committed independently from adultery or concubinage. The crime of bigamy does not fall within the category of private crimes that can be prosecuted only at the instance of the offended party. The offense is committed not only against the first and second wife but also against the state. Good faith is a defense in bigamy.
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Failure to exercise due diligence to ascertain the whereabouts of the first wife is bigamy through reckless imprudence. The second marriage must have all the essential requisites for validity were it not for the existence of the first marriage. A judicial declaration of the nullity of a marriage, that is, that the marriage was void ab initio, is now required. One convicted of bigamy may also be prosecuted for concubinage as both are distinct offenses. The first is an offense against civil status, which may be prosecuted at the instance of the state; the second is an offense against chastity, and may be prosecuted only at the instance of the offended party. The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense. One who, although not yet married before, knowingly consents to be married to one who is already married is guilty of bigamy knowing that the latters marriage is still valid and subsisting. Distinction between bigamy and illegal marriage: Bigamy is a form of illegal marriage. The offender must have a valid and subsisting marriage. Despite the fact that the marriage is still subsisting, he contracts a subsequent marriage. Illegal marriage includes also such other marriages which are performed without complying with the requirements of law, or such premature marriages, or such marriage which was solemnized by one who is not authorized to solemnize the same. For bigamy to be committed, the second marriage must have all the attributes of a valid marriage. Prescriptive period for Bigamy counted from the discovery of the felonious act, not from the time the entry of marriage was entered into the local Civil Registry (Constructive Notice) SERMONIA vs. CA, ET AL. G.R. No. 109454 June 14, 1994
BIGAMY; DEFINED. Bigamy is an illegal marriage committed by contracting a second or subsequent marriage before the first 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. Being punishable by an afflictive penalty, this crime prescribes in fifteen (15) years. The fifteen-year prescriptive period commences to run from the day on which the crime is discovered by the offended party, the authorities, or their agents. . . ." RULE ON CONSTRUCTIVE NOTICE; NOT APPLICABLE THERETO. While we concede the point that the rule on constructive notice in civil cases may be applied in criminal actions if the factual and legal circumstances so warrant, we agree with the view expounded by the Court of Appeals that it cannot apply in the crime of bigamy notwithstanding the possibility of its being more favorable to the accused. The appellate court succinctly explains Argued by the petitioner is that the principle of constructive notice should be applied in the case at bar. This Court is of the view that the principle of constructive notice should not be applied in regard to the crime of bigamy as judicial notice may be taken of the fact that a bigamous marriage is generally entered into by the offender in secrecy from the spouse of the previous subsisting marriage. Also, a bigamous marriage is generally entered into in a place where the offender is not known to be still a married person, in order to conceal his legal impediment to contract another marriage.
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In the case of real property, the registration of any transaction involving any right or interest therein is made in the Register of Deeds of the place where the said property is located. Verification in the office of the Register of Deeds concerned of the transactions involving the said property can easily be made by any interested party. In the case of a bigamous marriage, verification by the offended person or the authorities of the same would indeed be quite difficult as such a marriage may be entered into in a place where the offender is not known to be still a married person. Be it noted that in the criminal cases cited by the petitioner wherein constructive notice was applied, involved therein were land or property disputes and certainly, marriage is not property. The non-application to the crime of bigamy of the principle of constructive notice is not contrary to the well entrenched policy that penal laws should be construed liberally in favor of the accused. To compute the prescriptive period for the offense of bigamy from registration thereof would amount to almost absolving the offenders thereof for liability therefor. While the celebration of the bigamous marriage may be said to be open and made of public record by its registration, the offender however is not truthful as he conceals from the officiating authority and those concerned the existence of his previous subsisting marriage. He does not reveal to them that he is still a married person. He likewise conceals from his legitimate spouse his bigamous marriage. And for these, he contracts the bigamous marriage in a place where he is not known to be still a married person. And such a place may be anywhere, under which circumstance, the discovery of the bigamous marriage is rendered quite difficult and would take time. It is therefore reasonable that the prescriptive period for the crime of bigamy should be counted only from the day on which the said crime was discovered by the offended party, the authorities or their agency (sic). Considering such concealment of the bigamous marriage by the offender, if the prescriptive period for the offense of bigamy were to be counted from the date of registration thereof, the prosecution of the violators of the said offense would almost be impossible. The interpretation urged by the petitioner would encourage fearless violations of a social institution cherished and protected by law.
ARTICLE 350 MARRIAGE CONTRACTED AGAINST PROVISIONS OF LAWS A. Elements 1. Offender contracted marriage; 2. He knew at the time that a. The requirements of the law were not complied with; or b. The marriage was in disregard of a legal impediment. B. Marriages contracted against the provisions of laws 1. The marriage does not constitute bigamy. 2. The marriage is contracted knowing that the requirements of the law have not been complied with or in disregard of legal impediments. 3. One where the consent of the other was obtained by means of violence, intimidation or fraud. 4. If the second marriage is void because the accused knowingly contracted it without complying with legal requirements as the marriage license, although he was previously married. 5. Marriage solemnized by a minister or priest who does not have the required authority to solemnize marriages. ARTICLE 351 PREMATURE MARRIAGES
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A. Persons liable: 1. A widow who married within 301 days from the date of the death of her husband, or before having delivered if she is pregnant at the time of his death 2. A woman who, her marriage having been annulled or dissolved, married before her delivery or before expiration of the period of 301 days after the date of the legal separation. Purpose of the law: TO AVOID CASES OF DOUBTFUL PATERNITY Q: is a man liable? A: no. only a woman is liable under this article The Supreme Court has already taken into account the reason why such marriage within 301 days is made criminal, that is, because of the probability that there might be a confusion regarding the paternity of the child who would be born. If this reason does not exist because the former husband is impotent, or was shown to be sterile such that the woman has had no child with him, that belief of the woman that after all there could be no confusion even if she would marry within 301 days may be taken as evidence of good faith and that would negate criminal intent. ARTICLE 352 PERFORMANCE OF ILLEGAL MARRIAGE CEREMONY A. Who are liable: 1. Priests 2. Ministers 3. Civil authorities
TITLE THIRTEEN
CRIMES AGAINST HONOR

Chapter One LIBEL
Section One - Definition, forms, and punishment of this crime ARTICLE 353 DEFINITION OF LIBEL A libel is a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstances tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead. A. Elements: 1. There must be an imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance; 2. The imputation must be made publicly; 3. It must be malicious;
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4. The imputation must be directed at a natural or juridical person, or one who is dead; 5. The imputation must tend to cause the dishonor, discredit or contempt of the person defamed. DEFAMATION IS THE PROPER TERM FOR LIBER UNDER ARTICLE 353 If the DEFAMATION is directed to or in connection with the PRIVATE WIFE OF THE VICTIM, there is MALICE IN LAW. Distinction between malice in fact AND malice in law Malice in fact is the malice which the law presumes from every statement whose tenor is defamatory. It does not need proof. The mere fact that the utterance or statement is defamatory negates a legal presumption of malice. In the crime of libel, which includes oral defamation, there is no need for the prosecution to present evidence of malice. It is enough that the alleged defamatory or libelous statement be presented to the court verbatim. It is the court which will prove whether it is defamatory or not. If the tenor of the utterance or statement is defamatory, the legal presumption of malice arises even without proof. Malice in fact becomes necessary only if the malice in law has been rebutted. Otherwise, there is no need to adduce evidence of malice in fact. So, while malice in law does not require evidence, malice in fact requires evidence. Malice in law can be negated by evidence that, in fact, the alleged libelous or defamatory utterance was made with good motives and justifiable ends or by the fact that the utterance was privileged in character. In law, however, the privileged character of a defamatory statement may be absolute or qualified. When the privileged character is said to be absolute, the statement will not be actionable whether criminal or civil because that means the law does not allow prosecution on an action based thereon.
Illustration: As regards the statements made by Congressmen while they are deliberating or discussing in Congress, when the privileged character is qualified, proof of malice in fact will be admitted to take the place of malice in law. When the defamatory statement or utterance is qualifiedly privileged, the malice in law is negated. The utterance or statement would not be actionable because malice in law does not exist. Therefore, for the complainant to prosecute the accused for libel, oral defamation or slander, he has to prove that the accused was actuated with malice (malice in fact) in making the statement.
When a libel is addressed to several persons, unless they are identified in the same libel, even if there are several persons offended by the libelous utterance or statement, there will only be one count of libel. If the offended parties in the libel were distinctly identified, even though the libel was committed at one and the same time, there will be as many libels as there are persons dishonored.
Illustration: If a person uttered that All the Marcoses are thieves," there will only be one libel because these particular Marcoses regarded as thieves are not specifically identified.
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If the offender said, All the Marcoses - the father, mother and daughter are thieves. There will be three counts of libel because each person libeled is distinctly dishonored.
If you do not know the particular persons libeled, you cannot consider one libel as giving rise to several counts of libel. In order that one defamatory utterance or imputation may be considered as having dishonored more than one person, those persons dishonored must be identified. Otherwise, there will only be one count of libel. Note that in libel, the person defamed need not be expressly identified. It is enough that he could possibly be identified because innuendos may also be a basis for prosecution for libel. As a matter of fact, even a compliment which is undeserved, has been held to be libelous. The crime is libel is the defamation is in writing or printed media. The crime is slander or oral defamation if it is not printed. Even if what was imputed is true, the crime of libel is committed unless one acted with good motives or justifiable end. Poof of truth of a defamatory imputation is not even admissible in evidence, unless what was imputed pertains to an act which constitutes a crime and when the person to whom the imputation was made is a public officer and the imputation pertains to the performance of official duty. Other than these, the imputation is not admissible. When proof of truth is admissible 1. When the act or omission imputed constitutes a crime regardless of whether the offended party is a private individual or a public officer; 2. When the offended party is a government employee, even if the act or omission imputed does not constitute a crime, provided if its related to the discharged of his official duties. Requisites of defense in defamation 1. If it appears that the matter charged as libelous is true; 2. It was published with good motives; 3. It was for justifiable ends. If a crime is a private crime, it cannot be prosecuted de officio. A complaint from the offended party is necessary.
ARTICLE 354 REQUIREMENT OF PUBLICITY General Rule: Malice is PRESUMED from every defamatory imputation Exception: (when malice not presumed) 1. A private communication made by any person to another in the performance of any legal, moral or social duty Elements: a. That the person who made the communication had a legal, moral, social duty to make the communication, or at least he had the interest to be upheld
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b. That the communication is addressed to an officer or a board, or superior, having some interest or duty in the matter c. That the statements in the communication are made in good faith without malice 2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.
ARTICLE 355 LIBEL BY MEANS OF WRITING OR SIMILAR MEANS Libel may be committed by means of: 1. Writing 2. Printing 3. Lithography 4. Engraving 5. Radio 6. Phonograph 7. Painting 8. Theatrical Exhibition 9. Cinematographic 10. or any similar means
Jurisprudential trend in LIBEL (WARNING: LONG DISCUSSION ON LIBEL)

Every defamatory imputation is presumed malicious. 25 Rima and Alegre failed to show adequately their good intention and justifiable motive in airing the supposed gripes of the students. As hosts of a documentary or public affairs program, Rima and Alegre should have presented the public issues "free from inaccurate and misleading information." 26 Hearing the students' alleged complaints a month before the expos, 27 they had sufficient time to verify their sources and information. However, Rima and Alegre hardly made a thorough investigation of the students' alleged gripes. Neither did they inquire about nor confirm the purported irregularities in AMEC from the Department of Education, Culture and Sports. Alegre testified that he merely went to AMEC to verify his report from an alleged AMEC official who refused to disclose any information. Alegre simply relied on the words of the students "because they were many and not because there is proof that what they are saying is true." 28 This plainly shows Rima and Alegre's reckless disregard of whether their report was true or not.
Contrary to FBNI's claim, the broadcasts were not "the result of straight reporting." Significantly, some courts in the United States apply the privilege of "neutral reportage" in libel cases involving matters of public interest or public figures. Under this privilege, a republisher who accurately and disinterestedly reports certain defamatory statements made against public figures is shielded from liability, regardless of the republisher's subjective awareness of the truth or falsity of the accusation. 29 Rima and Alegre cannot invoke the privilege of neutral reportage because unfounded comments abound in the broadcasts. Moreover, there is no existing controversy involving AMEC when the broadcasts were made. The privilege of neutral reportage applies where the defamed person is a public figure who is involved in an existing controversy, and a party to that controversy makes the defamatory statement.
Libel is defined as "a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural person or juridical person, or to blacken the memory of one who is dead." 27 Any of these imputations is defamatory and under the general rule stated in Article 354 of the Revised Penal Code, every defamatory imputation is presumed to be malicious. 28 The presumption of malice, however, does not exist in the following instances: 1. A private communication made by any person to another in the performance of any legal, moral, or social duty; and 2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative, or other official proceedings which are not of confidential nature, or of any statement, report, or
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speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions. The law recognizes two kinds of privileged matters. First are those which are classified as absolutely privileged which enjoy immunity from libel suits regardless of the existence of malice in fact. Included herein are statements made in official proceedings of the legislature by the members thereof. 30 Likewise, statements made in the course of judicial proceedings are absolutely privileged but only if pertinent or relevant to the case involved. 31 The other kind of privileged matters are the qualifiedly or conditionally privileged communications which, unlike the first classification, may be susceptible to a finding of libel provided the prosecution establishes the presence of malice in fact. The exceptions provided for in Article 354 of the Revised Penal Code fall into this category. o In the case, however, of Borjal v. Court of Appeals, 32 this Court recognized that the enumeration stated in Article 354 of the Revised Penal Code is not exclusive but is rendered more expansive by the constitutional guarantee of freedom of the press, thus: o . . . To be sure, the enumeration under Art. 354 is not an exclusive list of qualifiedly privileged communications since fair commentaries on matters of public interest are likewise privileged. The rule on privileged communications had its genesis not in the nation's penal code but in the Bill of Rights of the Constitution guaranteeing freedom of speech and of the press. As early as 1918, in United States v. Caete [38 Phil. 253], this Court ruled that publications which are privileged for reasons of public policy are protected by the constitutional guaranty of freedom of speech. This constitutional right cannot be abolished by the mere failure of the legislature to give it express recognition in the statute punishing libels.
Clearly, when confronted with libel cases involving publications which deal with public officials and the discharge of their official functions, this Court is not confined within the wordings of the libel statute; rather, the case should likewise be examined under the constitutional precept of freedom of the press. As enunciated in the seminal case of United States v. Bustos 34 The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear conscience. A public officer must not be too thin-skinned with reference to comment upon his official acts. Only thus can the intelligence and dignity of the individual be exalted. Of course, criticism does not authorize defamation. Nevertheless, as the individual is less than the State, so must expected criticism be born for the common good. Rising superior to any official, or set of officials, to the Chief Executive, to the Legislature, to the Judiciary to any or all the agencies of Government public opinion should be the constant source of liberty and democracy. 35 Of course, this does not mean that a public official is barred from recovering damages in cases involving defamations. His entitlement, however, is limited to instances when the defamatory statement was made with actual malice that is, with knowledge that it was false or with reckless disregard of whether it was false or not. 36 This is the test laid down in the leading case of New York Times Co. v. Sullivan In the case at bar, the Office of the Solicitor General (OSG) argues that the purported libelous news item was "designed to malign the integrity and reputation of the [private complainant]" for it ascribed to the latter corruption and dishonesty in government service. 38 Moreover, the OSG maintains that the questioned news article does not enjoy the mantle of protection afforded a privileged matter as the petitioner and Ramos published the news item based on mere speculation and conjecture. 39 Their decision to publish the unverified information furnished them by the unnamed source, who was never presented before the trial court, and their failure to verify the truth of statements which appeared under the banner headline of the 18-24 August 1986 issue of the Bicol Forum indicates that the news item was published "intemperately and maliciously." 40 The OSG is therefore of the opinion that the subject news item satisfied the test pronounced in the New York Times case. We do not agree. As the US Supreme Court itself declared, "reckless disregard . . . cannot be fully encompassed in one infallible definition. Inevitably its outer limits will be marked out through case-by-case adjudication." 41 The case of Garrison v. State of Louisiana 42 stressed that "only those false statements made with the high degree of awareness of their probable falsity demanded by New York Times may be the subject of either civil or criminal sanctions" 43 and concluded by restating the "reckless disregard standard" in the following manner:
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. . . The test which we laid down in New York Times is not keyed to ordinary care; defeasance of the privilege is conditioned, not on mere negligence, but on reckless disregard for the truth. Subsequently, in St. Amant v. Thompson 45 it was stated that . . . These cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice. Applied to the case at bar, we hold that the prosecution failed to meet the criterion of "reckless disregard." As the records reveal, the issue of cash advances against the coffers of the provincial government of Camarines Sur was a major political topic in said locality at that time. Even the private respondent himself admitted during his direct testimony that he went on radio in order to address the matter. It was clearly a legitimate topic to be discussed not only by the members of the media but by the public as what was involved was the dispensation of taxpayers' money. A rule placing on the accused the burden of showing the truth of allegations of official misconduct and/or good motives and justifiable ends for making such allegations would not only be contrary to Art. 361 of the Revised Penal Code. It would, above all, infringe on the constitutionally guaranteed freedom of expression. Such a rule would deter citizens from performing their duties as members of a selfgoverning community. Without free speech and assembly, discussions of our most abiding concerns as a nation would be stifled. As Justice Brandeis has said, "public discussion is a political duty" and "the greatest menace to freedom is an inert people." 51 Indeed, the difficulty of producing evidence, both documentary and testimonial, on behalf of the petitioner was readily apparent when, during his cross-examination, Ramos testified that he was not allowed by the custodians of the material provincial financial records to photocopy the latter particularly because said documents dealt with the matter of cash advances.
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Finally, the private respondent claims that the banner headline ridiculed him before the public does not merit consideration as the rule in this jurisdiction is that "[t]he headline of a newspaper story or publication claimed to be libelous must be read and construed in connection with the language that follows."53 A perusal of the entire news story accompanying the headline in this case readily establishes the fact that the questioned article dealt with refutations by the private respondent's critics of his explanation over the radio with regard to the issues mentioned therein. The wording of the headline may have contained an exaggeration but the same nevertheless represents a fair index of the contents of the news story accompanying it.
Criminal Libel vis--vis the Guarantee of Free Speech Under our law, criminal libel is defined as a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead. 25 Thus, the elements of libel are: (a) imputation of a discreditable act or condition to another; (b) publication of the imputation; (c) identity of the person defamed; and, (d) existence of malice. 26 o Originally, the truth of a defamatory imputation was not considered a defense in the prosecution for libel. In the landmark opinion of England's Star Chamber in the Libelis Famosis case in 1603, two major propositions in the prosecution of defamatory remarks were established: first, that libel against a public person is a greater offense than one directed against an ordinary man, and second, that it is immaterial that the libel be true. 27 These propositions were due to the fact that the law of defamatory libel was developed under the common law to help government protect itself from criticism and to provide an outlet for individuals to defend their honor and reputation so they would not resort to taking the law into their own hands. 28 o Our understanding of criminal libel changed in 1735 with the trial and acquittal of John Peter Zenger for seditious libel in the then English colony of New York. Zenger, the publisher of the New-York Weekly Journal, had been charged with seditious libel, for his paper's consistent attacks against Colonel William Cosby, the Royal Governor of New York. In his defense, Zenger's counsel, Andrew Hamilton, argued that the criticisms against Governor Cosby were "the right of every free-born subject to make when the matters so published can be supported with truth." 29 The jury, by acquitting Zenger, acknowledged
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albeit unofficially the defense of truth in a libel action. The Zenger case also laid to rest the idea that public officials were immune from criticism. 30 The Zenger case is crucial, not only to the evolution of the doctrine of criminal libel, but also to the emergence of the American democratic ideal. It has been characterized as the first landmark in the tradition of a free press, then a somewhat radical notion that eventually evolved into the First Amendment 31 in the American Bill of Rights and also proved an essential weapon in the war of words that led into the American War for Independence. 32 Yet even in the young American state, the government paid less than ideal fealty to the proposition that Congress shall pass no law abridging the freedom of speech. The notorious Alien and Sedition Acts of 1798 33 made it a crime for any person who, by writing, speaking or printing, should threaten an officer of the government with damage to his character, person, or estate. The law was passed at the insistence of President John Adams, whose Federalist Party had held a majority in Congress, and who had faced persistent criticism from political opponents belonging to the Jeffersonian Republican Party. As a result, at least twenty-five people, mostly Jeffersonian Republican editors, were arrested under the law. The Acts were never challenged before the U.S. Supreme Court, but they were not subsequently renewed upon their expiration. 34 The massive unpopularity of the Alien and Sedition Acts contributed to the electoral defeat of President Adams in 1800. In his stead was elected Thomas Jefferson, a man who once famously opined, "Were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter." 35 There is an important observation to be made about the quality of the American press during the time of Jefferson, one that is crucial to the contemporaneous understanding of the "freedom of expression" clause at the time of its inception. The tenor of the public debate during that era was hardly polite. About the impending election of Jefferson, the New England Courant predicted that "murder, robbery, rape and adultery and incest will be openly taught and practiced, the air will be rent with cries of distress, the soil soaked with blood and the nation black with crimes." 36 After Jefferson was elected, rumors spread about his dalliances with his slave, Sally Hemmings, adding more fodder to his critics. The thirteen-year old William Cullen Bryant, who would grow up to become a prominent poet and abolitionist, published the following doggerel: "Thy country's ruin and thy country's shame!/ Go wretch! Resign the Presidential chair/Disclose thy secret measures foul and fair. . ./ Go scan, philosophist, thy [Sally's] charms/And sink supinely in her sable arms." 37 Any comprehensive history of the American media during the first few decades of the existence of the United States would reveal a similar preference in the media for such "mad-dog rhetoric." 38 These observations are important in light of the misconception that freedom of expression extends only to polite, temperate, or reasoned expression. The assailed decision of the RTC betrays such a perception, when it opined that the subject advertisement was libelous "because by the language used, it had passed from the bounds of playful gist, and intensive criticism into the region of scurrilous calumniation and intemperate personalities." 39 Evidently, the First Amendment was designed to protect expression even at its most rambunctious and vitriolic form as it had prevalently taken during the time the clause was enacted. Nonetheless, juristic enforcement of the guarantee of freedom of expression was not demonstrably prominent in the United States during most of the 1800s. Notably, the prevalent philosophy then was that the Bill of Rights did not apply to the different federal states. 40 When the US Supreme Court was confronted with substantial First Amendment issues in the late 1800s and early 1900s, it responded by repeatedly declining to protect free speech. 41 The subsequent enactment of the due process clause in the Fourteenth Amendment eventually allowed the U.S. Supreme Court to accept, in Gitlow v. New York 42 that the First Amendment was protected from impairment by the States, thus allowing for a more vigorous enforcement of the freedom of expression clause in the twentieth century. 43 The most important American ruling on libel, arguably from which modern libel law emerged 44 was New York Times v. Sullivan, 45 penned by the liberal lion Justice William Brennan, Jr. In ascertaining whether the New York Times was liable for damages in a libel action, the U.S. Supreme Court had acknowledged that the writing in question, an advertisement published in the paper 46 extolling the virtues of the civil rights movement, had contained several factual inaccuracies in describing actions taken by Montgomery, Alabama officials on civil rights protesters. 47 The Court even concluded that at most, there was a finding against the New York Times of negligence in failing to discover the misstatements against the news stories in the newspaper's own files. 48 Nonetheless, the U.S. Supreme Court squarely assessed the import of the First Amendment freedoms in the prosecution of criminal libel. Famously, the precedent was established that a public official may not successfully sue for libel unless the official can prove actual malice, which was defined as "with knowledge that the statement was false or with reckless disregard as to whether or not it was true." 49 By this standard, it was concluded that factual errors aside, actual malice was not proven to sustain the
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convictions for libel. Moreover, leeway was allowed even if the challenged statements were factually erroneous if honestly made. 50 Shortly after New York Times was promulgated, its principles were extended by the U.S. Supreme Court to criminal libel actions in Garrison v. Louisiana. 51 The decision, also penned by Justice Brennan, commented on the marked decline in the common resort to criminal libel actions: Where criticism of public officials is concerned, we see no merit in the argument that criminal libel statutes serve interests distinct from those secured by civil libel laws, and therefore should not be subject to the same limitations. At common law, truth was no defense to criminal libel. Although the victim of a true but defamatory publication might not have been unjustly damaged in reputation by the libel, the speaker was still punishable since the remedy was designed to avert the possibility that the utterance would provoke an enraged victim to a breach of peace . . . [However], preference for the civil remedy, which enabled the frustrated victim to trade chivalrous satisfaction for damages, has substantially eroded the breach of peace justification for criminal libel laws. In fact, in earlier, more violent times, the civil remedy had virtually pre-empted the field of defamation; except as a weapon against seditious libel, the criminal prosecution fell into virtual desuetude. 52 Then, the Court proceeded to consider whether the historical limitation of the defense of truth in criminal libel to utterances published "with good motives and for justifiable ends:" 53 . . . The "good motives" restriction incorporated in many state constitutions and statutes to reflect Alexander Hamilton's unsuccessfully urged formula in People v. Croswell, liberalized the common-law rule denying any defense for truth. . . . In any event, where the criticism is of public officials and their conduct of public business, the interest in private reputation is overborne by the larger public interest, secured by the Constitution, in the dissemination of truth. . . . Moreover, even where the utterance is false, the great principles of the Constitution which secure freedom of expression in this area preclude attaching adverse consequences to any except the knowing or reckless falsehood. Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth. . . . 54 Lest the impression be laid that criminal libel law was rendered extinct in regards to public officials, the Court made this important qualification in Garrison: The use of calculated falsehood, however, would put a different cast on the constitutional question. Although honest utterance, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published about a public official, should enjoy a like immunity. At the time the First Amendment was adopted, as today, there were those unscrupulous enough and skillful enough to use the deliberate or reckless falsehood as an effective political tool to unseat the public servant or even topple an administration. That speech is used as a tool for political ends does not automatically bring it under the protective mantle of the Constitution. For the use of the known lie as a tool is at once with odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected. 55 Another ruling crucial to the evolution of our understanding was Curtis Publishing Co. v. Butts, 56 which expanded the actual malice test to cover not just public officials, but also public figures. The U.S. Supreme Court, speaking through Chief Justice Warren, stated that: [D]ifferentiation between 'public figures' and 'public officials' and adoption of separate standards of proof for each have no basis in law, logic, or First Amendment policy. Increasingly in this country, the distinctions between governmental and private sectors are blurred. . . . [I]t is plain that although they are not subject to the restraints of the political process, 'public figures', like 'public officials', often play an influential role in ordering society. And surely as a class these 'public figures' have as ready access as 'public officials' to mass media of communication, both to influence policy and to counter criticism of their views and activities. Our citizenry has a legitimate and substantial interest in the conduct of such persons, and freedom of the press to engage in uninhibited debate about their involvement in public issues and events is as crucial as it is in the case of "public officials." The fact that they are not amenable to the restraints of the political process only underscores the legitimate and substantial nature of the interest, since it means that public opinion may be the only instrument by which society can attempt to influence their conduct. 57 The public figure concept was later qualified in the case of Gertz v. Welch, Inc., 58 which held that a private person should be able to recover damages without meeting the New York Times standard. 59 In doing so, the U.S. Supreme Court recognized the legitimate state interest in compensating private individuals for wrongful injury to reputation. 60 The prominent American legal commentator, Cass Sunstein, has summarized the current American trend in libel law as follows:
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[C]onsider the law of libel. Here we have an explicit system of free speech tiers. To simplify a complex body of law: In the highest, most-speech protective tier is libelous speech directed against a "public figure". Government can allow libel plaintiffs to recover damages as a result of such speech if and only if the speaker had "actual malice" that is, the speaker must have known that the speech was false, or he must have been recklessly indifferent to its truth or falsity. This standard means that the speaker is protected against libel suits unless he knew that he was lying or he was truly foolish to think that he was telling the truth. A person counts as a public figure (1) if he is a "public official" in the sense that he works for the government, (2) if, while not employed by government, he otherwise has pervasive fame or notoriety in the community, or (3) if he has thrust himself into some particular controversy in order to influence its resolution. Thus, for example, Jerry Falwell is a public figure and, as a famous case holds, he is barred from recovering against a magazine that portrays him as having had sex with his mother. Movie stars and famous athletes also qualify as public figures. False speech directed against public figures is thus protected from libel actions except in quite extreme circumstances. 61 It may also be noted that this heightened degree of protection afforded to free expression to comment on public figures or matters against criminal prosecution for libel has also gained a foothold in Europe. Article 10 of the European Convention on Human Rights and Fundamental Freedoms provides that "[e]veryone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers." 62 The European Court of Human Rights applied this provision in Lingens v. Austria, 63 in ruling that the Republic of Austria was liable to pay monetary damages "as just satisfaction" to a journalist who was found guilty for defamation under the Austrian Criminal Code. 64 The European Court noted: [Article 10] is applicable not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no 'democratic society'. . . . These principles are of particular importance as far as the press is concerned. Whilst the press must not overstep the bounds set, inter alia, for the 'protection of the reputation of others', it is nevertheless incumbent on it to impart information and ideas on political issues just as on those in other areas of public interest. Not only does the press have the task of imparting such information and ideas: the public also has the right to receive them. . . . 65 The international trend in diminishing the scope, if not the viability, of criminal libel prosecutions is clear. Most pertinently, it is also evident in our own acceptance in this jurisdiction of the principles applied by the U.S. Supreme Court in cases such as New York Times and Garrison. Particularly, this Court has accepted the proposition that the actual malice standard governs the prosecution of criminal libel cases concerning public figures. In Adiong v. COMELEC, 66 the Court cited New York Times in noting that "[w]e have adopted the principle that debate on public issues should be uninhibited, robust, and wide open and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials." 67 The Court was even more explicit in its affirmation of New York Times in Vasquez v. Court of Appeals. 68 Speaking through Justice Mendoza: For that matter, even if the defamatory statement is false, no liability can attach if it relates to official conduct, unless the public official concerned proves that the statement was made with actual malice that is, with knowledge that it was false or with reckless disregard of whether it was false or not. This is the gist of the ruling in the landmark case of New York Times v. Sullivan, which this Court has cited with approval in several of its own decisions. 69 This is the rule of "actual malice." In this case, the prosecution failed to prove not only that the charges made by petitioner were false but also that petitioner made them with knowledge of their falsity or with reckless disregard of whether they were false or not. 70 The Court has likewise extended the "actual malice" rule to apply not only to public officials, but also to public figures. In Ayer Productions Pty. Ltd. v. Capulong, 71 the Court cited with approval the following definition of a public figure propounded by an American textbook on torts: A public figure has been defined as a person who, by his accomplishments, fame, or mode of living, or by adopting aprofession or calling which gives the public a legitimate interest in his doings, his affairs, and his character, has become a 'public personage.' He is, in other words, a celebrity. Obviously to be included in this category are those who have achieved some degree of reputation by appearing before the public, as in the case of an actor, a professional baseball player, a pugilist, or any other entertainer. The list is, however, broader than this. It includes public officers, famous inventors and explorers, war heroes and even ordinary soldiers, an infant prodigy, and no less a personage than the Grand Exalted Ruler of a lodge. It includes, in short, anyone who has arrived at a position where public attention is focused upon him as a person. 72
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Ayer did not involve a prosecution for libel, but a complaint for injunction on the filming of a dramatized account of the 1986 EDSA Revolution. Nonetheless, its definition of a public figure is important to this case, as it clearly establishes that even non-governmental officials are considered public figures. In fact, the definition propounded in Ayer was expressly applied by the Court in Borjal v. Court of Appeals 73 in ascertaining whether the complainant therein was a public figure, thus warranting the application of the actual malice test. 74 We considered the following proposition as settled in this jurisdiction: that in order to justify a conviction for criminal libel against a public figure, it must be established beyond reasonable doubt that the libelous statements were made or published with actual malice, meaning knowledge that the statement was false or with reckless disregard as to whether or not it was true. As applied to the present petition, there are two main determinants: whether complainant is a public figure, and assuming that he is, whether the publication of the subject advertisement was made with actual malice. Sadly, the RTC and the CA failed to duly consider both propositions.
Complainant Is a Public Figure There should be little controversy in holding that complainant is a public figure. He is a broadcast journalist hosting two radio programs aired over a large portion of the Visayas and Mindanao. Measured against the definition provided in Ayer, complainant would definitely qualify as a public figure. Complainant even asserted before the trial court that his broadcast was listened to widely, hence, his notoriety is unquestionable. o Complainant's standing as a public figure is further militated by the contextual circumstances of the case. The newspaper in question, the Sunday Post, is particularly in circulation in the areas where complainant's broadcasts were aired. Certainly, it cannot be denied that the target audience of the newspaper were the same persons who may have listened regularly to the complainant's broadcast. Even if the sphere of complainant's renown is limited in geography, it is in the same plane as the circulation of the offending newspaper. The extent of complainant's ability to influence hearts and minds through his broadcasts need not be established, only that he has such capacity and willingness to exert an influence. Complainant's volition to practice the radio broadcasting profession necessarily thrusts him in the public sphere. Actual Malice Not Proven As it has been established that complainant was a public figure, it was incumbent upon the prosecution to prove actual malice on the part of Lim and petitioner when the latter published the article subject matter of the complaint. Set otherwise, the prosecution must have established beyond reasonable doubt that the defendants knew the statements in the advertisement was false or nonetheless proceeded with reckless disregard as to publish it whether or not it was true. It should thus proceed that if the statements made against the public figure are essentially true, then no conviction for libel can be had. Any statement that does not contain a provably false factual connotation will receive full constitutional protection. 75 An examination of the records of this case showed that the prcis of information contained in the questioned publication were actually true. o In convicting the defendants, the lower courts paid particular heed to Article 354 of the Revised Penal Code, which provides that "every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown . . .". We hold that this provision, as applied to public figures complaining of criminal libel, must be construed in light of the constitutional guarantee of free expression, and this Court's precedents upholding the standard of actual malice with the necessary implication that a statement regarding a public figure if true is not libelous. The provision itself allows for such leeway, accepting as a defense "good intention and justifiable motive." The exercise of free expression, and its concordant assurance of commentary on public affairs and public figures, certainly qualify as "justifiable motive," if not "good intention." o It cannot be helped if the commentary protected by the Bill of Rights is accompanied by excessive color or innuendo. Certainly, persons in possession of truthful facts are not obliged to present the same in bland fashion. These true facts may be utilized to convince the listener/reader against a particular position, or to even dissuade one against accepting the credibility of a public figure. Dry facts, by themselves, are hardly stirring. It is the commentary thereupon that usually animates the discourse which is encouraged by the Constitution as integral to the democratic way of life. This is replete in many components of our daily life, such as political addresses, televised debates, and even commercial advertisements. o As adverted earlier, the guarantee of free speech was enacted to protect not only polite speech, but even expression in its most unsophisticated form. Criminal libel stands as a necessary qualification to any absolutist interpretation of the free speech clause, if only because it prevents the proliferation of untruths which if unrefuted, would gain an undue influence in the public discourse. But in order to safeguard against fears that the public debate might be muted due to the reckless enforcement of libel
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laws, truth has been sanctioned as a defense, much more in the case when the statements in question address public issues or involve public figures. In ascertaining the degree of falsity that would constitute actual malice, the Court, citing New York Times, has even gone so far as acknowledging: Even assuming that the contents of the articles are false, mere error, inaccuracy or even falsity alone does not prove actual malice. Errors or misstatements are inevitable in any scheme of truly free expression and debate. Consistent with good faith and reasonable care, the press should not be held to account, to a point of suppression, for honest mistakes or imperfections in the choice of language. There must be some room for misstatement of fact as well as for misjudgment. Only by giving them much leeway and tolerance can they courageously and effectively function as critical agencies in our democracy. In Bulletin Publishing Corp. v. Noel we held A newspaper especially one national in reach and coverage, should be free to report on events and developments in which the public has a legitimate interest with minimum fear of being hauled to court by one group or another on criminal or civil charges for libel, so long as the newspaper respects and keeps within the standards of morality and civility prevailing within the general community. To avoid the self-censorship that would necessarily accompany strict liability for erroneous statements, rules governing liability for injury to reputation are required to allow an adequate margin of error by protecting some inaccuracies. It is for the same reason that the New York Times doctrine requires that liability for defamation of a public official or public figure may not be imposed in the absence of proof of "actual malice" on the part of the person making the libelous statement. 79 To this end, the publication of the subject advertisement by petitioner and Lim cannot be deemed by this Court to have been done with actual malice. Aside from the fact that the information contained in said publication was true, the intention to let the public know the character of their radio commentator can at best be subsumed under the mantle of having been done with good motives and for justifiable ends. The advertisement in question falls squarely within the bounds of constitutionally protected expression under Section 4, Article III, and thus, acquittal is mandated. (GUINGGUING VS. CA, SEPT. 30, 2005)
LIBEL; WHEN DEFAMATORY WORDS ARE LIBELOUS PER SE; CASE AT BAR. Necessarily, Article 353 of the Revised Penal Code comes into play. An allegation is considered defamatory if it ascribes to a person the commission of a crime, the possession of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance which tends to dishonor or discredit or put him in contempt, or which tends to blacken the memory of one who is dead. As a general rule, words, written or printed, are libelous per se if they tend to expose a person to public hatred, contempt, ridicule, aversion, or disgrace, induce an evil opinion of him in the minds of right thinking persons, and deprive him of their friendly intercourse in society, regardless of whether they actually produce such results. In the present case, it is evident that the subject article attributes a discreditable or dishonorable act or condition to all Muslims in general, a derision of the religious beliefs of the Muslims and of the objectives of respondent Council to herald the truth about Islam, in particular. The portion of the assailed article which declares that the Muslims worship the pigs as God is obnoxiously contrary to the basic belief of the Muslims. Thus, the article is not only an imputation of irreligious conduct but also a downright misrepresentation of the religious beliefs of Muslims. It has been held that scandalous matter is not necessary to make a libel; it is enough if the defendant induces an ill opinion to be held of the plaintiff, or to make him contemptible or ridiculous; or that the imputation tends to cause dishonor, discredit or contempt of the offended party. o LIABILITY FOR LIBEL DOES NOT DEPEND ON THE INTENT OF THE DEFAMER BUT ON THE FACT OF DEFAMATION. Significantly, liability for libel does not depend on the intention of the defamer, but on the fact of the defamation. In matters of libel, the question is not what the writer of an alleged libel means, but what is the meaning of the words he has used. The meaning of the writer is quite immaterial. The question is, not what the writer meant, but what he conveyed to those who heard or read. o DEFAMATION; MALICE IS PRESUMED IF THE IMPUTATION IS DEFAMATORY; CASE AT BAR. If the imputation is defamatory, the Court has held that malice is presumed and the burden of overcoming the presumption of malice by mere preponderance of evidence rested on the petitioners. A careful examination of the records of the case does not reveal any cogent reason that would set aside the presumption of malice. In fact, there is convincing evidence that the publication of the assailed article was malicious, as more extensively discussed in the latter portion of herein opinion. Furthermore, there is no showing that the instant case falls under any of the exceptions provided for in Article 354 of the Revised Penal Code. Consequently, there is no compelling reason to disregard the findings of the Court of Appeals that no evidence was presented to overcome said presumption of malice. o OBJECT OF LIBELOUS PUBLICATION MUST BE SUFFICIENTLY IDENTIFIED; OBVIOUS VICTIMS ARE THE MUSLIMS IN CASE AT BAR. Specific identity of the person defamed means that the third person who
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read or learned about the libelous article must know that if referred to the plaintiff. In order to maintain a libel suit, it is essential that the victim is identifiable although it is not necessary that he be named; it is likewise not sufficient that the offended party recognized himself as the person attacked or defamed, but it must be shown that at least a third person could identify him as the object of the libelous publication. It cannot be refuted that the obvious victims in the article in question are specifically identified the Muslims. The principle laid down in Newsweek Inc. vs. Intermediate Appellate Court, that "where the defamation is alleged to have been directed at a group or class, it is essential that the statement must be so sweeping or all-embracing as to apply to every individual in that class or group, or sufficiently specific so that each individual in that class or group can prove that the defamatory statement specifically pointed to him, so that he can bring the action separately, if need be," obviously applies to the present case. Certainly, the defamatory imputation contained in the subject article is a sweeping statement affecting a common or general interest of all Muslims, that is, their religious belief in Allah as the one and only God. The publication was directed against all Muslims without exception and it is not necessary to name each one of them as they could only have one cause of action which is the damage suffered by them caused by the insult inflicted on their basic religious tenets.
ARTICLE 356 THREATENING TO PUBLISH AN OFFER TO PREVENT SUCH PUBLICATION FOR A COMPENSATION This is AC-DC === Attack and Collect Defend and Collect A. Acts Punished: 1. By threatening another to publish a libel concerning him or the parents, spouse, child, or other members of his family 2. By offering to prevent the publication of such libel for a compensation or money consideration. Blackmail - In its metaphorical sense, blackmail may be defined as any unlawful extortion of money by threats of accusation or exposure. Two words are expressive of the crime - hush money. (US v. Eguia, et al., 38 Phil. 857) Blackmail is possible in (1) light threats under Article 283; and (2) threatening to publish, or offering to prevent the publication of, a libel for compensation, under Article 356.
ARTICLE 357 PROHIBITED PUBLICATION OF ACTS REFERRED TO IN THE COURSE OF OFFICIAL PROCEEDINGS A. Elements 1. The offender is a reporter, editor, or manager of a newspaper daily or magazine 2. That he publishes facts connected with the private life of another 3. That such facts are offensive to the honor, virtue and reputation of said person The provisions of Article 357 constitute the so-called "Gag Law." ARTICLE 358 SLANDER [Oral defamation] A. There are two kinds of oral defamation:
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1. Simple slander; and 2. Grave slander, when it is of a serious and insulting nature. B. Factors that determine the gravity of oral defamation 1. personal expressions used 2. personal relations of the accused and the offended party 3. circumstances surrounding the case
ARTICLE 359 SLANDER BY DEED A. How committed: o by performing any act which casts dishonor discredit, or contempt upon another person. B. Elements 1. That the offender performs any act not included in any other crime against honor 2. That such act is performed in the presence of another person or persons 3. That such acts casts dishonor, discredit or contempt upon the offended party C. Two kinds of slander by deed 1. Simple slander by deed; and 2. Grave slander by deed, that is, which is of a serious nature. N.B. Slander by deed refers to performance of an act, not use of words. Whether a certain slanderous act constitutes slander by deed of a serious nature or not, depends on the social standing of the offended party, the circumstances under which the act was committed, the occasion, etc. Section Two - General Provisions ARTICLE 360 PERSONS RESPONSIBLE FOR LIBEL A. Person Liable 1. Person who shall publishes, exhibits, or causes the publication or exhibition of any defamation in writing or by similar means 2. The author or editor of a book or pamphlet, 3. The editor or business manager of a daily newspaper, magazine or serial publication, 4. The owner of the printing plant which publishes a libelous article with its consent and all other person who in any way participate in or have connection with the publication B. VENUE in criminal prosecution for libel: 1. If the offended party is a public officer or employee 2. If the offended person is a private person JURISDICTION IS WITH RTC!!!!
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NOTE:
IN CASE OF CONFLICT BETWEEN THE RPC AND RA 7691 on Jurisdiction and/or venue, RPC prevails (with reference to a Supreme Court case discussed) ARTICLE 361 PROOF OF TRUTH A. Proof of truth is admissible in any of the following: 1. When the act or omission imputed constitutes a crime regardless of whether the offender party is a private individual or public officer 2. When the offended party is a Government employee, even if the act or omission imputed does not constitute a crime, provided it is related to the discharge of his official duties ARTICLE 362 LIBELOUS REMARKS Libelous remarks or comments on matters privileged, if made with malice in fact, do not exempt the author and the editor.
Chapter Two INCRIMINATORY MACHINATION

ARTICLE 363 INCRIMINATING INNOCENT PERSONS A. Elements 1. That the offender performs an act 2. That by such act he directly incriminates or imputes to an innocent person the commission of a crime 3. That such act does not constitute perjury This is limited to planting evidence. If the evidence planted is a lesser drug, and the offender is a public officer or employee, the penalty is very high. This crime cannot be committed through verbal incriminatory statements. It is defined as an act and, therefore, to commit this crime, more than a mere utterance is required. If the incriminating machination is made orally, the crime may be slander or oral defamation. If the incriminatory machination was made in writing and under oath, the crime may be perjury if there is a willful falsity of the statements made. If the statement in writing is not under oath, the crime may be falsification if the crime is a material matter made in a written statement which is required by law to have been rendered. As far as this crime is concerned, this has been interpreted to be possible only in the so-called planting of evidence.
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ARTICLE 364 INTRIGUING AGAINST HONOR [Gossip] Republic Act 4200 An Act to prohibit and penalize wire tapping and other related violations of private communication, and other purposes (also known as the TANADA LAW) Section 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or taperecorder, or however otherwise described; It shall be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceeding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided, that the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in Section 3 hereof, shall not be covered by this prohibition." x x x
Illustration: A lawyer listening to the conversation of his client with the opponent. Held: not liable under RA 4200. He did not tap any wire or cable, he did not use any device or arrangement to secretly overhear ot intercept.
RAMIREZ v CA and GARCIA G.R. No. 93833. September 28, 1995 The aforestated provision clearly and unequivocally makes it illegal for any person, not authorized by all the parties to any private communication to secretly record such communication by means of a tape recorder. The law makes no distinction as to whether the party sought to be penalized by the statute ought to be a party other than or different from those involved in the private communication. The statute's intent to penalize all persons unauthorized to make such recording is underscored by the use of the qualifier "any". Consequently, as respondent Court of Appeals correctly concluded, "even a (person) privy to a communication who records his private conversation with another without the knowledge of the latter (will) qualify as a violator" under this provision of R.A. 4200. Finally petitioner's contention that the phrase "private communication" in Section 1 of R.A 4200 does not include "private conversations" narrows the ordinary meaning of the word "communication" to a point of absurdity. The word communicate comes from the latin word communicare, meaning "to share or to impart." In its ordinary signification, communication connotes the act of sharing or imparting, as in a conversation, or signifies the "process by which meanings or thoughts are shared between individuals through a common system of symbols (as language signs or gestures)" These definitions are broad enough to include verbal or non-verbal, written or expressive communications of "meanings or thoughts" which are likely to include the emotionally charged exchange, on February 22, 1988, between petitioner and private respondent,
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in the privacy of the latter's office. Any doubts about the legislative body's meaning of the phrase "private communication" are, furthermore, put to rest by the fact that the terms "conversation" and "communication" were interchangeably used by Senator Tanada in his Explanatory Note to the bill, quoted below: "It has been said that innocent people have nothing to fear from their conversations being overhead. But this statement ignores the usual nature of conversations as well as the undeniable fact that most, if not all, civilized people have some aspects of their lives they do not wish to expose. Free conversations are often characterized by exaggerations, obscenity, agreeable falsehoods, and the expression of anti-social desires of views not intended to be taken seriously. The right to the privacy of communication, among others, has expressly been assured by our Constitution. Needless to state here, the framers of our Constitution must have recognized the nature of conversations between individuals and the significance of man's spiritual nature, of his feelings and of his intellect. They must have known that part of the pleasures and satisfactions of life are to be found in the unaudited, and free exchange of communication between individuals free from every unjustifiable intrusion by whatever means."
This crime is committed by any person who shall make any intrigue which has for its principal purpose to blemish the honor or reputation of another person. Intriguing against honor is referred to as gossiping. The offender, without ascertaining the truth of a defamatory utterance, repeats the same and pass it on to another, to the damage of the offended party. Who started the defamatory news is unknown. Distinction between intriguing against honor and slander: When the source of the defamatory utterance is unknown and the offender simply repeats or passes the same, the crime is intriguing against honor. If the offender made the utterance, where the source of the defamatory nature of the utterance is known, and offender makes a republication thereof, even though he repeats the libelous statement as coming from another, as long as the source is identified, the crime committed by that offender is slander. Distinction between intriguing against honor and incriminating an innocent person: In intriguing against honor, the offender resorts to an intrigue for the purpose of blemishing the honor or reputation of another person. In incriminating an innocent person, the offender performs an act by which he directly incriminates or imputes to an innocent person the commission of a crime.
ARTICLE 365 IMPRUDENCE AND NEGLIGENCE Quasi-offenses under this article are committed in 4 ways: 1. By committing through reckless imprudence any act, which had it been intentional, would constitute a grave or less grave felony or light felony 2. By committing through simple imprudence or negligence an act which would otherwise constitute a grave or a less serious injury 3. By causing damage to the property of another through reckless imprudence or s imple imprudence or negligence
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4. By causing through simple imprudence or negligence some wrong which, if done maliciously would have constituted a light felony Elements A. Reckless imprudence 1. That the offender does or fails to do an act 2. That the doing of or failure to do that act is voluntary 3. That it be without malice 4. That material damage is caused 5. That there is inexcusable lack of precaution on the part of the offender, taking into consideration: a. his employment or occupation, b. degree of intelligence, c. physical condition and d. other circumstances regarding persons, time and place. B. Simple imprudence 1. That there is lack of precaution on the part of the offender 2. That the damage impending to be caused is not immediate nor the danger clearly manifested C. Criminal Negligence 1. That there be a real prejudice or injury caused 2. That such injury or prejudice be not intentionally done but simply be the result or incident of another act performed by the doer 3. That in performing the act which was the origin or cause of the injury due care and diligence were not needed 4. That the act which resulted in the injury or prejudice be lawful per se, or at least not considered as a felony even though it may sometimes be forbidden by rules and regulation
There is a separate subject: TORTS AND DAMAGES In one case, the Supreme Court said An offended party in a criminal negligence case cannot recover twice. Since he did not dismiss the quasi-delict case against the owner of the vehicle so should he proceed with the civil case, he cannot claim the subsidiary liability in the criminal case. But this case is PRO HAC VICE for this case only, in cannot be a precedent in any other case. In order to hold the owner subsidiary liable, the following requisites must be present: 1. determine if there is employer-employee relationship 2. establish if the employer is engaged in some kind of industry 3. there is due diligence or not Subsidiary liability therefore is not automatic; there must be a separate proceedings to determine it. Execution against Employer for his subsidiary liability must not issue as matter of course BUT still requires hearing
YONAHA vs. CA and HEIRS OF CAETE G.R. No. 112346. March 29, 1996
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The statutory basis for an employer's subsidiary liability is found in Article 103 of the Revised Penal Code. This Court has since sanctioned the enforcement of this subsidiary liability in the same criminal proceedings in which the employee is adjudged guilty, on the thesis that it really is a part of, and merely an incident in, the execution process of the judgment. But, execution against the employer must not issue as just a matter of course, and it behooves the court, as a measure of due process to the employer, to determine and resolve a priori, in a hearing set for the purpose, the legal applicability and propriety of the employer's liability. The requirement is mandatory even when it appears prima facie that execution against the convicted employee cannot be satisfied. The court must first determine if the following elements are present: (a) the existence of an employer-employee relationship; (b) that the employer is engaged in some kind of industry; (c) that the employee is adjudged guilty of the wrongful act and found to have committed the offense in the discharge of his duties (not necessarily any offense he commits "while" in the discharge of such duties); and (d) that said employee is insolvent. The judgment of conviction of the employee, of course, concludes the employer and the subsidiary liability may be enforced in the same criminal case, but to afford the employer due process, the court should hear and decide that liability on the basis of the conditions required therefor by law.
Quasi-offenses punished 1. Committing through reckless imprudence any act which, had it been intentional, would constitute a grave or less grave felony or light felony; 2. Committing through simple imprudence or negligence an act which would otherwise constitute a grave or a less serious felony; 3. Causing damage to the property of another through reckless imprudence or simple imprudence or negligence; 4. Causing through simple imprudence or negligence some wrong which, if done maliciously, would have constituted a light felony. Distinction between reckless imprudence and negligence: The two are distinguished only as to whether the danger that would be impending is easily perceivable or not. If the danger that may result from the criminal negligence is clearly perceivable, the imprudence is reckless. If it could hardly be perceived, the criminal negligence would only be simple. There is no more issue on whether culpa is a crime in itself or only a mode of incurring criminal liability. It is practically settled that criminal negligence is only a modality in incurring criminal liability. This is so because under Article 3, a felony may result from dolo or culpa. Since this is the mode of incurring criminal liability, if there is only one carelessness, even if there are several results, the accused may only be prosecuted under one count for the criminal negligence. So there would only be one information to be filed, even if the negligence may bring about resulting injuries which are slight. Do not separate the accusation from the slight physical injuries from the other material result of the negligence. If the criminal negligence resulted, for example, in homicide, serious physical injuries and slight physical injuries, do not join only the homicide and serious physical injuries in one information for
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the slight physical injuries. You are not complexing slight when you join it in the same information. It is just that you are not splitting the criminal negligence because the real basis of the criminal liability is the negligence. If you split the criminal negligence, that is where double jeopardy would arise.
Updates in IMPRUDENCE AND NEGLIGENCE

Art. 365 of the Revised Penal Code, as amended, states that reckless imprudence consists in voluntarily, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing such act. Compared to intentional felonies, such as homicide or murder, what takes the place of the element of malice or intention to commit a wrong or evil is the failure of the offender to take precautions due to lack of skill taking into account his employment, or occupation, degree of intelligence, physical condition, and other circumstances regarding persons, time, and place. o The elements of reckless imprudence are apparent in the acts done by accused-appellants which, because of their lack of medical skill in treating the victim of his alleged ailment, resulted in the latter's death. As already stated, accused-appellants, none of whom is a medical practitioners, belong to a religious group, known as the Missionaries of Our Lady of Fatima, which is engaged in faith healing. o In United States v. Divino, 30 the accused, who was not a licensed physician, in an attempt to cure the victim of ulcers in her feet, wrapped a piece of clothing which had been soaked in petroleum around the victim's feet and then lighted the clothing, thereby causing injuries to the victim. The Court held the accused liable for reckless imprudence resulting in physical injuries. It was noted that the accused had no intention to cause an evil but rather to remedy the victim's ailment. o In another case, People v. Vda. de Golez, 31 the Court ruled that the proper charge to file against a non-medical practitioner, who had treated the victim despite the fact that she did not possess the necessary technical knowledge or skill to do so and caused the latter's death, was homicide through reckless imprudence. o The trial court's reliance on the rule that criminal intent is presumed from the commission of an unlawful act is untenable because such presumption only holds in the absence of proof to the contrary. 32 The facts of the case indubitably show the absence of intent to kill on the part of the accused-appellants. Indeed, the trial court's findings can be sustained only if the circumstances of the case are ignored and the Court limits itself to the time when accusedappellants undertook their unauthorized "treatment" of the victim. Obviously, such an evaluation of the case cannot be allowed. Under Article 365 of the Revised Penal Code, criminal negligence "is treated as a mere quasi offense, and dealt with separately from willful offenses. It is not a question of classification or terminology. In intentional crimes, the act itself is punished; in negligence or imprudence, what is principally penalized is the mental attitude or condition behind the act, the dangerous recklessness, lack of care or foresight, the imprudencia punible. Much of the confusion has arisen from the common use of such descriptive phrase as 'homicide through reckless imprudence', and the like; when the strict technical sense is, more accurately, 'reckless imprudence resulting in homicide'; or 'simple imprudence causing damages to property'." CRIMINAL NEGLIGENCE; ASSISTANCE REQUIRED BY ART. 365 OF REVISED PENAL CODE; CASE AT BAR. We hold that the attendant circumstance of failure to lend assistance defined in the last paragraph of Article 365, Revised Penal Code, was not adequately proved by the evidence for the prosecution. The trial court did not err in disregarding said circumstance in the sentencing of the accused. . . The assistance required by Article 365, Revised Penal Code, is one which "may be in the hands of the offender to give." We must therefore take into consideration the type and degree of assistance that the offender, at the time and place of the incident is capable of giving. Under the circumstances of this case, we find that petitioner is not a hit-and-run driver. He exerted efforts to see to it that the victim had been amended to. There were several people assisting the victim, including his co-employees working for the bus company. The injured party was carried from the terminal, to a vehicle, then to the hospital. Before petitioner was given clearance by the dispatcher to leave, an hour later, he was assured that the victim was brought already to the hospital. We note that petitioner had a bus full of passengers requiring also his attention. He could only do so much, so that the burden of helping the injured party was shared by the bus company personnel and other good Samaritans.
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Illustrations of reckless imprudence resulting in homicide are: (1) exhibiting a loaded revolver to a friend, who was killed by the accidental discharge brought about by negligent handling; 19 or (2) discharging a firearm from the window of one's house and killing a neighbor who just at the moment leaned over the balcony front; 20 or (3) where the defendant, to stop a fist fight, fired his .45 caliber pistol twice in the air, and, as the bout continued, he fired another shot at the ground, but the bullet ricocheted and hit a bystander who died soon thereafter. On petitioners' claim that the charge for violation of Article 365 of the RPC "absorbs" the charges for violation of PD 1067, PD 984, and RA 7942, suffice it to say that a mala in se felony (such as Reckless Imprudence Resulting in Damage to Property) cannot absorb mala prohibita crimes (such as those violating PD 1067, PD 984, and RA 7942). What makes the former a felony is criminal intent (dolo) or negligence (culpa); what makes the latter crimes are the special laws enacting them.
-END-
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Criminal Law Review 2008

TITLE SEVEN CRIMES COMMITTED BY PUBLIC OFFICERS

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The designation of th public officer, when t crim The public off e.

In som cases, it can e e a prisoner where the

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Chapter Two MALFEASANCE AND MISFEASANCE IN OFFICE

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

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the receiver or public officer(remember

that the acceptance must be in consideration or in

relation to his office.)

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Francisco 45 phil 819

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Updates in INDIRECT BRIBERY

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Also Read REPUBLIC ACT NO. 3019, Presidential Decree No. 46

ANTI-GRAFT AND CORRUPT PRACTICES ACT

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Chapter Three FRAUDS AND ILLEGAL EXACTIONS AND TRANSACTIONS

(2) (3) (4)

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