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TITLE I. CRIMES AGAINST NATIONAL SECURITY AND THE LAW OF NATIONS Crimes against national security 1. 2. 3. 4. Treason (Art. 114); Conspiracy and proposal to commit treason (Art. 115); Misprision o treason (Art. 11!); and "spionage (Art. 117). #6%

can be committed even if the Philippines is not a participant. )xposing the 2ilipinos or their properties because the offender performed an unauthori3ed act, li4e those who recruit 2ilipinos to participate in the gulf war. &f they involve themselves to the war, this crime is committed. Relevant in the cases of 2lor Contemplacion or !bner !fuang, the police officer who stepped on a 5ingaporean flag. 7iolation of ,eutrality, under !rticle ((8 + The Philippines is not a party to a war but there is a war going on. This may be committed in the light of the 0iddle )ast war.

Crimes against t#e la$ o nations 1. 2. 3. 4. 5. %nciting to $ar or gi&ing moti&es or reprisals (Art. 11');

Article 114. Treaso (iolation o neutrality (Art. 11)); "lements Corresponding $it# #ostile country (Art. 12*); +lig#t to enemy,s country (Art. 121); and -iracy in general and mutiny on t#e #ig# seas (Art. 122). 1. 2. 3. . ender is a +ilipino or resident alien; T#ere is a $ar in -#ilippines is in&ol&ed; . ender eit#er / a. The crimes under this title can be prosecuted even if the criminal act or acts were committed outside the Philippine territorial jurisdiction. However, prosecution can proceed only if the offender is within Philippine territory or brought to the Philippines pursuant to an extradition treaty. This is one of the instances where the Revised Penal Code may be given extra territorial application under !rticle " #$% thereof. &n the case of crimes against the law of nations, the offender can be prosecuted whenever he may be found because the crimes are regarded as committed against humanity in general. !lmost all of these are crimes committed in times of war, except the following, which can be committed in times of peace' #(% )spionage, under !rticle ((* + This is also covered by Commonwealth !ct ,o. -(- which punishes conspiracy to commit espionage. This may be committed both in times of war and in times of peace. &nciting to .ar or /iving 0otives for Reprisals, under !rticle ((1 + This 0. le&ies $ar against go&ernment; or t#e $#ic# t#e

ad#eres to t#e enemies1 gi&ing t#em aid or com ort $it#in t#e -#ilippines or else$#ere

2e3uirements o le&ying $ar 1. 2. 3. 4. Actual assem0ling o men; To e4ecute a treasona0le design 0y orce; %ntent is to deli&er t#e country in $#ole or in part to t#e enemy; and Colla0oration $it# oreign enemy or some oreign so&ereign

T$o $ays o pro&ing treason 1. 2. Testimony o at least t$o $itnesses to t#e same o&ert act; or Con ession o court. accused in open

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treason is a crime that may be committed only by citi3ens of the Philippines. Article 11!. Co s"irac# a $ %ro"osal to Co&&it Treaso "lements o conspiracy to commit treason 1. 2. T#ere is a $ar in -#ilippines is in&ol&ed; $#ic# t#e The essence of the crime is that there are persons who conspire to commit treason and the offender 4new this and failed to ma4e the necessary report to the government within the earliest possible time. .hat is re9uired is to report it as soon as possible. The criminal liability arises if the treasonous activity was still at the conspiratorial stage. :ecause if the treason already erupted into an overt act, the implication is that the government is already aware of it. There is no need to report the same. This is a felony by omission although committed with dolo, not with culpa. The persons mentioned in !rticle ((- are not limited to mayor, fiscal or governor. !ny person in authority having e9uivalent jurisdiction, li4e a provincial commander, will already negate criminal liability. t#e .hether the conspirators are parents or children, and the ones who learn the conspiracy is a parent or child, they are re9uired to report the same. The reason is that although blood is thic4er than water so to spea4, when it comes to security of the state, blood relationship is always subservient to national security. !rticle "; does not apply here because the persons found liable for this crime are not considered accessories< they are treated as principals. &n the (88* bar examination, a problem was given with respect to misprision of treason. The text of the provision simply refers to a conspiracy to overthrow the government. The examiner failed to note that this crime can only be committed in times of war. The conspiracy adverted to must be treasonous in character. &n the problem given, it was rebellion. ! conspiracy to overthrow the government is a crime of rebellion because there is no war. =nder the Revised Penal Code, there is no crime of misprision of rebellion. Article 11). Es"io a*e Acts punis#ed 1. 7y entering1 $it#out aut#ority t#ere ore1 a $ars#ip1 ort or na&al or military esta0lis#ment or reser&ation to o0tain any in ormation1 plans1 p#otograp# or ot#er data o a

At least t$o persons come to an agreement to / a. 0. le&y $ar against go&ernment; or t#e

ad#ere to t#e enemies1 gi&ing t#em aid or com ort;

3.

T#ey decide to commit it.

"lements o proposal to commit treason 1. 2. T#ere is a $ar in -#ilippines is in&ol&ed; $#ic#

At least one person decides to / a. 0. le&y $ar against go&ernment; or t#e

3.

ad#ere to t#e enemies1 gi&ing t#em aid or com ort; 5e proposes its e4ecution to some ot#er persons.

Article 11'. Mis"risio o( Treaso "lements

1. . ender

o$es allegiance to t#e go&ernment1 and not a oreigner;

2. 5e #as 6no$ledge o conspiracy to


commit treason go&ernment; against t#e

3. 5e conceals or does not disclose and


ma6e 6no$n t#e same as soon as possi0le to t#e go&ernor or iscal o t#e pro&ince in $#ic# #e resides1 or t#e mayor or iscal o t#e city in $#ic# #e resides. .hile in treason, even aliens can commit said crime because of the amendment to the article, no such amendment was made in misprision of treason. 0isprision of

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con idential nature relati&e to t#e de ense o t#e -#ilippines; "lements 1. 2. 3. . ender enters any o t#e places mentioned; 5e #as t#ere ore; no aut#ority

!.

5ar0oring or concealing &iolators o la$.

Article 11/. I citi * to War or Gi0i * Moti0es (or Re"risals "lements 1. 2. . ender per orms unaut#ori:ed acts; unla$ ul or

5is purpose is to o0tain in ormation1 plans1 p#otograp#s or ot#er data o a con idential nature relati&e to t#e de ense o t#e -#ilippines.

T#e acts pro&o6e or gi&e occasion or / a. 0. a $ar in&ol&ing or lia0le to in&ol&e t#e -#ilippines; or e4posure o +ilipino citi:ens to reprisals on t#eir persons or property.

2.

7y disclosing to t#e representati&e o a oreign nation t#e contents o t#e articles1 data or in ormation re erred to in paragrap# 1 o Article 1171 $#ic# #e #ad in #is possession 0y reason o t#e pu0lic o ice #e #olds. "lements 1. 2. . ender is a pu0lic o icer; 5e #as in #is possession t#e articles1 data or in ormation re erred to in paragrap# 1 o Article 1171 0y reason o t#e pu0lic o ice #e #olds; 5e discloses t#eir contents to a representati&e o a oreign nation.

Article 111. 2iolatio o( Ne.tralit# "lements

1. T#ere is a $ar in $#ic# t#e -#ilippines


is not in&ol&ed;

2. T#ere is a regulation issued 0y a


competent neutrality; 3. aut#ority to en orce

3.

. ender &iolates t#e regulation.

Co&&o +ealt, Act No. '1' - A Act to %. is, Es"io a*e a $ Ot,er O((e ses a*ai st Natio al Sec.rit# Acts punis#ed 1. 8nla$ ully o0taining or permitting to 0e o0tained in ormation a ecting national de ense; 8nla$ ul disclosing o in ormation a ecting national de ense; 9isloyal acts or $ords in times o peace; 9isloyal acts or $ords in times o $ar; Conspiracy to sections; and &iolate preceding

2. 3. 4. 5.

.hen we say national security, it should be interpreted as including rebellion, sedition and subversion. The Revised Penal Code does not treat rebellion, sedition and subversion as crimes against national security, but more of crimes against public order because during the time that the Penal Code was enacted, rebellion was carried out only with bolos and spears< hence, national security was not really threatened. ,ow, the threat of rebellion or internal wars is serious as a national threat. Article 134. Hostile Co. tr# "lements 1. 2. %t is in time o $ar in $#ic# t#e -#ilippines is in&ol&ed; . ender ma6es correspondence $it# an enemy country or territory occupied 0y enemy troops; Corres"o $e ce +it,

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3.

T#e correspondence is eit#er / a. 0. c. pro#i0ited go&ernment; 0y t#e or

1. T#e &essel is on t#e #ig# seas or


-#ilippine $aters;

2. . enders are neit#er mem0ers o its


complement nor passengers o t#e &essel;

carried on in cip#ers con&entional signs; or

3. . enders eit#er /
a. attac6 or sei:e a &essel on t#e #ig# seas or in -#ilippine $aters; or sei:e in t#e &essel $#ile on t#e #ig# seas or in -#ilippine $aters t#e $#ole or part o its cargo1 its e3uipment or personal 0elongings o its complement or passengers;

containing notice or in ormation $#ic# mig#t 0e use ul to t#e enemy. Fli*,t to E e&#5s Co. tr#

Article 131. "lements 1. 2. 3. 4.

0.

T#ere is a $ar in -#ilippines is in&ol&ed;

$#ic#

t#e 4.

. ender must 0e o$ing allegiance to t#e go&ernment; . ender attempts to lee or go to enemy country; ;oing to t#e enemy country is pro#i0ited 0y competent aut#ority.

T#ere is intent to gain.

&n crimes against the law of nations, the offenders can be prosecuted anywhere in the world because these crimes are considered as against humanity in general, li4e piracy and mutiny. Crimes against national security can be tried only in the Philippines, as there is a need to bring the offender here before he can be made to suffer the conse9uences of the law. The acts against national security may be committed abroad and still be punishable under our law, but it can not be tried under foreign law. Article 133. %irac# i *e eral a $ M.ti # o t,e Hi*, Seas or i %,ili""i e Waters Acts punis#ed as piracy 1. 2. Attac6ing or sei:ing a &essel on t#e #ig# seas or in -#ilippine $aters; <ei:ing in t#e &essel $#ile on t#e #ig# seas or in -#ilippine $aters t#e $#ole or part o its cargo1 its e3uipment or personal 0elongings o its complement or passengers.

>riginally, the crimes of piracy and mutiny can only be committed in the high seas, that is, outside Philippine territorial waters. :ut in !ugust (8?*, Presidential @ecree ,o. $6" #The !nti Piracy and !nti Highway Robbery Aaw of (8?*% was issued, punishing piracy, but not mutiny, in Philippine territorial waters. Thus came about two 4inds of piracy' #(% that which is punished under the Revised Penal Code if committed in the high seas< and #"% that which is punished under Presidential @ecree ,o. $6" if committed in Philippine territorial waters. !mending !rticle ("", Republic !ct ,o. ?-$8 included therein piracy in Philippine waters, thus, pro tanto superseding Presidential @ecree ,o. $6". !s amended, the article now punishes piracy, as well as mutiny, whether committed in the high seas or in Philippine territorial waters, and the penalty has been increased to reclusion perpetua from reclusion temporal. :ut while under Presidential @ecree ,o. $6", piracy in Philippine waters could be committed by any person, including a passenger or member of the complement of a vessel, under the amended article, piracy can only be committed by a person who is not a passenger nor member of the complement of the vessel irrespective of venue. 5o if a passenger or complement of the vessel commits acts of robbery in the high seas, the crime is robbery, not piracy. ,ote, however, that in 5ection * of Presidential @ecree ,o. $6", the act of

"lements o piracy

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aiding pirates or abetting piracy is penali3ed as a crime distinct from piracy. 5aid section penali3es any person who 4nowingly and in any manner aids or protects pirates, such as giving them information about the movement of the police or other peace officers of the government, or ac9uires or receives property ta4en by such pirates, or in any manner derives any benefit therefrom< or who directly or indirectly abets the commission of piracy. !lso, it is expressly provided in the same section that the offender shall be considered as an accomplice of the principal offenders and punished in accordance with the Revised Penal Code. This provision of Presidential @ecree ,o. $6" with respect to piracy in Philippine water has not been incorporated in the Revised Penal Code. ,either may it be considered repealed by Republic !ct ,o. ?-$8 since there is nothing in the amendatory law is inconsistent with said section. !pparently, there is still the crime of abetting piracy in Philippine waters under Presidential @ecree ,o. $6". Considering that the essence of piracy is one of robbery, any ta4ing in a vessel with force upon things or with violence or intimidation against person is employed will always be piracy. &t cannot co exist with the crime of robbery. Robbery, therefore, cannot be committed on board a vessel. :ut if the ta4ing is without violence or intimidation on persons of force upon things, the crime of piracy cannot be committed, but only theft.

0.

sei:e t#e $#ole or part o t#e cargo1 its e3uipment1 or personal 0elongings o t#e cre$ or passengers.

0utiny is the unlawful resistance to a superior officer, or the raising of commotions and disturbances aboard a ship against the authority of its commander. @istinction between mutiny and piracy #(% !s to offenders 0utiny is committed by members of the complement or the passengers of the vessel. Piracy is committed by persons who are not members of the complement or the passengers of the vessel. #"% !s to criminal intent &n mutiny, there is no criminal intent. &n piracy, the criminal intent is for gain. Article 138. 6.ali(ie$ %irac# "lements

1. T#e &essel is on t#e #ig# seas or


-#ilippine $aters?

2. . enders may or may not 0e mem0ers


6.estio s 7 A s+ers Could t#e t 0e committed on 0oard a &essel= Bes. The essence of piracy is one of robbery. > "lements o mutiny o its complement1 or passengers o t#e &essel;

3. . enders eit#er /
a. 0. attac6 or sei:e t#e &essel; or sei:e t#e $#ole or part o t#e cargo1 its e3uipment.1 or personal 0elongings o t#e cre$ or passengers;

1. T#e &essel is on t#e #ig# seas or


-#ilippine $aters;

4. T#e preceding $ere committed under


any o t#e ollo$ing circumstances? a. $#ene&er t#ey #a&e sei:ed a &essel 0y 0oarding or iring upon t#e same; $#ene&er t#e pirates #a&e a0andoned t#eir &ictims

2. . enders are eit#er mem0ers o its


complement1 or passengers o t#e &essel;

3. . enders eit#er /
a. attac6 or sei:e t#e &essel; or

0.

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$it#out means t#emsel&es; or c.

sa&ing #6%

the pilots thereof to land in any part of Philippine territory< carrying or loading on board an aircraft operating as a public utility passenger aircraft in the Philippines, any flammable, corrosive, explosive, or poisonous substance< and loading, shipping, or transporting on board a cargo aircraft operating as a public utility in the Philippines, any flammable, corrosive, explosive, or poisonous substance if this was done not in accordance with the rules and regulations set and promulgated by the !ir Transportation >ffice on this matter.

$#ene&er t#e crime is accompanied 0y murder1 #omicide1 p#ysical in@uries or rape.

&f any of the circumstances in !rticle("6 is present, piracy is 9ualified. Ta4e note of the specific crimes involve in number * c #murder, homicide, physical injuries or rape%. .hen any of these crimes accompany piracy, there is no complex crime. &nstead, there is only one crime committed + 9ualified piracy. 0urder, rape, homicide, physical injuries are mere circumstances 9ualifying piracy and cannot be punished as separate crimes, nor can they be complexed with piracy. !lthough in !rticle ("6 merely refers to 9ualified piracy, there is also the crime of 9ualified mutiny. 0utiny is 9ualified under the following circumstances' #(% .hen the offenders abandoned the victims without means of saving themselves< or .hen the mutiny is accompanied by rape, murder, homicide, or physical injuries.

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,ote that the first circumstance which 9ualifies piracy does not apply to mutiny.

Re".9lic Act No. '38! :T,e A ti Hi; <ac=i * La+> !nti hi jac4ing is another 4ind of piracy which is committed in an aircraft. &n other countries, this crime is 4nown as aircraft piracy. 2our situations governed by anti hi jac4ing law' #(% usurping or sei3ing control of an aircraft of Philippine registry while it is in flight, compelling the pilots thereof to change the course or destination of the aircraft< usurping or sei3ing control of an aircraft of foreign registry while within Philippine territory, compelling

:etween numbers ( and ", the point of distinction is whether the aircraft is of Philippine registry or foreign registry. The common bar 9uestion on this law usually involves number (. The important thing is that before the anti hi jac4ing law can apply, the aircraft must be in flight. &f not in flight, whatever crimes committed shall be governed by the Revised Penal Code. The law ma4es a distinction between aircraft of a foreign registry and of Philippine registry. &f the aircraft subject of the hi jac4 is of Philippine registry, it should be in flight at the time of the hi jac4ing. >therwise, the anti hi jac4ing law will not apply and the crime is still punished under the Revised Penal Code. The correlative crime may be one of grave coercion or grave threat. &f somebody is 4illed, the crime is homicide or murder, as the case may be. &f there are some explosives carried there, the crime is destructive arson. )xplosives are by nature pyro techni9ues. @estruction of property with the use of pyro techni9ue is destructive arson. &f there is illegally possessed or carried firearm, other special laws will apply. >n the other hand, if the aircraft is of foreign registry, the law does not re9uire that it be in flight before the anti hi jac4ing law can apply. This is because aircrafts of foreign registry are considered in transit while they are in foreign countries. !lthough they may have been in a foreign country, technically they are still in flight, because they have to move out of that foreign country. 5o even if any of the acts mentioned were committed while the exterior doors of the foreign aircraft were still open, the anti hi jac4ing law will already govern.

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,ote that under this law, an aircraft is considered in flight from the moment all exterior doors are closed following embar4ation until such time when the same doors are again opened for disembar4ation. This means that there are passengers that boarded. 5o if the doors are closed to bring the aircraft to the hangar, the aircraft is not considered as in flight. The aircraft shall be deemed to be already in flight even if its engine has not yet been started.

apply because the aircraft is not yet in flight. ,ote that the aircraft is of Philippine registry. 3. A#ile t#e ste$ardess o a -#ilippine Air Bines plane 0ound or Ce0u $as $aiting or t#e passenger mani est1 t$o o its passengers seated near t#e pilot surreptitiously entered t#e pilot coc6pit. At gunpoint1 t#ey directed t#e pilot to ly t#e aircra t to t#e Middle "ast. 5o$e&er1 0e ore t#e pilot could ly t#e aircra t to$ards t#e Middle "ast1 t#e o enders $ere su0dued and t#e aircra t landed. A#at crime $as committed= The aircraft was not yet in flight. Considering that the stewardess was still waiting for the passenger manifest, the doors were still open. Hence, the anti hi jac4ing law is not applicable. &nstead, the Revised Penal Code shall govern. The crime committed was grave coercion or grave threat, depending upon whether or not any serious offense violence was inflicted upon the pilot. However, if the aircraft were of foreign registry, the act would already be subject to the anti hi jac4ing law because there is no re9uirement for foreign aircraft to be in flight before such law would apply. The reason for the distinction is that as long as such aircraft has not returned to its home base, technically, it is still considered in transit or in flight. !s to numbers 6 and * of Republic !ct ,o. -"6$, the distinction is whether the aircraft is a passenger aircraft or a cargo aircraft. &n both cases, however, the law applies only to public utility aircraft in the Philippines. Private aircrafts are not subject to the anti hi jac4ing law, in so far as transporting prohibited substances are concerned. &f the aircraft is a passenger aircraft, the prohibition is absolute. Carrying of any prohibited, flammable, corrosive, or explosive substance is a crime under Republic !ct ,o. -"6$. :ut if the aircraft is only a cargo aircraft, the law is violated only when the transporting of the prohibited substance was not done in accordance with the rules and regulations prescribed by the !ir Transportation >ffice in the matter of shipment of such things. The :oard of Transportation provides the manner of pac4ing of such 4ind of articles, the 9uantity in which they may be loaded at any time,

6.estio s 7 A s+ers 1. T#e pilots o t#e -an Am aircra t $ere accosted 0y some armed men and $ere told to proceed to t#e aircra t to ly it to a oreign destination. T#e armed men $al6ed $it# t#e pilots and $ent on 0oard t#e aircra t. 7ut 0e ore t#ey could do anyt#ing on t#e aircra t1 alert mars#als arrested t#em. A#at crime $as committed= The criminal intent definitely is to ta4e control of the aircraft, which is hi jac4ing. &t is a 9uestion now of whether the anti hi jac4ing law shall govern. The anti hi jac4ing law is applicable in this case. )ven if the aircraft is not yet about to fly, the re9uirement that it be in flight does not hold true when in comes to aircraft of foreign registry. )ven if the problem does not say that all exterior doors are closed, the crime is hi jac4ing. 5ince the aircraft is of foreign registry, under the law, simply usurping or sei3ing control is enough as long as the aircraft is within Philippine territory, without the re9uirement that it be in flight. ,ote, however, that there is no hi jac4ing in the attempted stage. This is a special law where the attempted stage is not punishable. 2. A -#ilippine Air Bines aircra t is 0ound or 9a&ao. A#ile t#e pilot and co> pilot are ta6ing t#eir snac6s at t#e airport lounge1 some o t#e armed men $ere also t#ere. T#e pilots $ere ollo$ed 0y t#ese men on t#eir $ay to t#e aircra t. As soon as t#e pilots entered t#e coc6pit1 t#ey pulled out t#eir irearms and ga&e instructions $#ere to ly t#e aircra t. 9oes t#e anti #i> @ac6ing la$ apply= ,o. The passengers have yet to board the aircraft. &f at that time, the offenders are apprehended, the law will not

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etc. >therwise, the anti hi jac4ing law does not apply. However, under 5ection ?, any physical injury or damage to property which would result from the carrying or loading of the flammable, corrosive, explosive, or poisonous substance in an aircraft, the offender shall be prosecuted not only for violation of Republic !ct ,o. -"6$, but also for the crime of physical injuries or damage to property, as the case may be, under the Revised Penal Code. There will be two prosecutions here. >ther than this situation, the crime of physical injuries will be absorbed. &f the explosives were planted in the aircraft to blow up the aircraft, the circumstance will 9ualify the penalty and that is not punishable as a separate crime for murder. The penalty is increased under the anti hi jac4ing law. !ll other acts outside of the four are merely 9ualifying circumstances and would bring about higher penalty. 5uch acts would not constitute another crime. 5o the 4illing or explosion will only 9ualify the penalty to a higher one.

Crimes against t#e undamental la$s o t#e <tate 1. 2. Ar0itrary detention (Art. 124); 9elay in t#e deli&ery o detained persons to t#e proper @udicial aut#orities (Art. 125); 9elaying release (Art. 12!); "4pulsion (Art. 127); (iolation o domicile (Art. 12'); <earc# $arrants maliciously o0tained and a0use in t#e ser&ice o t#ose legally o0tained (Art. 12)); <earc#ing domicile $itnesses (Art. 13*); $it#out

3. 4. 5. !.

7. '.

-ro#i0ition1 interruption1 and dissolution o peace ul meetings (Art. 131); %nterruption o religious $ors#ip (Art. 132); and . ending t#e religious eelings (Art. 133);

). 1*.

6.estio s 7 A s+ers 1. %n t#e course o t#e #i>@ac61 a passenger or complement $as s#ot and 6illed. A#at crime or crimes $ere committed= The crime remains to be a violation of the anti hi jac4ing law, but the penalty thereof shall be higher because a passenger or complement of the aircraft had been 4illed. The crime of homicide or murder is not committed. 2. T#e #i>@ac6ers t#reatened to detonate a 0om0 in t#e course o t#e #i> @ac6. A#at crime or crimes $ere committed= !gain, the crime is violation of the anti hi jac4ing law. The separate crime of grave threat is not committed. This is considered as a 9ualifying circumstance that shall serve to increase the penalty. TITLE II. CRIMES AGAINST THE FUNDAMENTAL LAWS OF THE STATE

Crimes under this title are those which violate the :ill of Rights accorded to the citi3ens under the Constitution. =nder this title, the offenders are public officers, except as to the last crime + offending the religious feelings under !rticle (66, which refers to any person. The public officers who may be held liable are only those acting under supposed exercise of official functions, albeit illegally. &n its counterpart in Title &C #Crimes !gainst Personal Aiberty and 5ecurity%, the offenders are private persons. :ut private persons may also be liable under this title as when a private person conspires with a public officer. .hat is re9uired is that the principal offender must be a public officer. Thus, if a private person conspires with a public officer, or becomes an accessory or accomplice, the private person also becomes liable for the same crime. :ut a private person acting alone cannot commit the crimes under !rticle ("* to (6" of this title. Article 134. Ar9itrar# Dete tio "lements

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1. 2. 3.

. ender is a pu0lic employee; 5e detains a person; T#e detention grounds. is

o icer or

$it#out

legal

The principal offender is a private person. :ut a public officer can commit the crime of illegal detention when he is acting in a private capacity or beyond the scope of his official duty, or when he becomes an accomplice or accessory to the crime committed by a private person. The offender, even if he is a public officer, does not include as his function the power to arrest and detain a person, unless he conspires with a public officer committing arbitrary detention. ,ote that in the crime of arbitrary detention, although the offender is a public officer, not any public officer can commit this crime. >nly those public officers whose official duties carry with it the authority to ma4e an arrest and detain persons can be guilty of this crime. 5o, if the offender does not possess such authority, the crime committed by him is illegal detention. ! public officer who is acting outside the scope of his official duties is no better than a private citi3en.

Meaning o a0sence o legal grounds 1. 2. 3. Co crime $as committed 0y t#e detained; T#ere is no &iolent insanity o t#e detained person; and T#e person detained #as no ailment $#ic# re3uires compulsory con inement in a #ospital.

The crime of arbitrary detention assumes several forms' #(% #"% @etaining a person without legal grounds under< Having arrested the offended party for legal grounds but without warrant of arrest, and the public officer does not deliver the arrested person to the proper judicial authority within the period of (", (1, or 6- hours, as the case may be< or @elaying release by competent authority with the same period mentioned in number ".

6.estio s 7 A s+ers 1. A @anitor at t#e Due:on City 5all $as assigned in cleaning t#e menEs room. .ne day1 #e noticed a ello$ urinating so carelessly t#at instead o urinating at t#e 0o$l1 #e $as actually urinating partly on t#e loor. T#e @anitor resented t#is. 5e stepped out o t#e menEs room and loc6ed t#e same. 5e le t. T#e ello$ $as a0le to come out only a ter se&eral #ours $#en people rom t#e outside orci0ly opened t#e door. %s t#e @anitor lia0le or ar0itrary detention= ,o. )ven if he is a public officer, he is not permitted by his official function to arrest and detain persons. Therefore, he is guilty only of illegal detention. .hile the offender is a public officer, his duty does not include the authority to ma4e arrest< hence, the crime committed is illegal detention. 2. A municipal treasurer #as 0een courting #is secretary. 5o$e&er1 t#e latter al$ays turned #im do$n. T#erea ter1 s#e tried to a&oid #im. .ne a ternoon1 t#e municipal treasurer loc6ed t#e secretary inside t#eir o ice until s#e started crying. T#e treasurer opened t#e door and allo$ed

#6%

@istinction between arbitrary detention and illegal detention (. &n arbitrary detention The principal offender must be a public officer. Civilians can commit the crime of arbitrary detention except when they conspire with a public officer committing this crime, or become an accomplice or accessory to the crime committed by the public officer< and The offender who is a public officer has a duty which carries with it the authority to detain a person. ". &n illegal detention

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12!

#er to go #ome. committed=

A#at crime $as &n arbitrary detention, the offender is a public officer possessed with authority to ma4e arrests. &n unlawful arrest, the offender may be any person. #"% !s to criminal intent &n arbitrary detention, the main reason for detaining the offended party is to deny him of his liberty. &n unlawful arrest, the purpose is to accuse the offended party of a crime he did not commit, to deliver the person to the proper authority, and to file the necessary charges in a way trying to incriminate him. .hen a person is unlawfully arrested, his subse9uent detention is without legal grounds.

&llegal detention. This is because the municipal treasurer has no authority to detain a person although he is a public officer. &n a case decided by the 5upreme Court a :arangay Chairman who unlawfully detains another was held to be guilty of the crime of arbitrary detention. This is because he is a person in authority vested with the jurisdiction to maintain peace and order within his barangay. &n the maintenance of such peace and order, he may cause the arrest and detention of troublema4ers or those who disturb the peace and order within his barangay. :ut if the legal basis for the apprehension and detention does not exist, then the detention becomes arbitrary. .hether the crime is arbitrary detention or illegal detention, it is necessary that there must be an actual restraint of liberty of the offended party. &f there is no actual restraint, as the offended party may still go to the place where he wants to go, even though there have been warnings, the crime of arbitrary detention or illegal detention is not committed. There is either grave or light threat. However, if the victim is under guard in his movement such that there is still restraint of liberty, then the crime of either arbitrary or illegal detention is still committed.

6.estio 7 A s+er A #ad 0een collecting tong rom dri&ers. 71 a dri&er1 did not $ant to contri0ute to t#e tong. .ne day1 7 $as appre#ended 0y A1 telling #im t#at #e $as dri&ing carelessly. 2ec6less dri&ing carries $it# it a penalty o immediate detention and arrest. 7 $as 0roug#t to t#e Tra ic 7ureau and $as detained t#ere until t#e e&ening. A#en A returned1 #e opened t#e cell and told 7 to go #ome. Aas t#ere a crime o ar0itrary detention or unla$ ul arrest= !rbitrary detention. The arrest of : was only incidental to the criminal intent of the offender to detain him. :ut if after putting : inside the cell, he was turned over to the investigating officer who boo4ed him and filed a charge of rec4less imprudence against him, then the crime would be unlawful arrest. The detention of the driver is incidental to the supposed crime he did not commit. :ut if there is no supposed crime at all because the driver was not charged at all, he was not given place under boo4ing sheet or report arrest, then that means that the only purpose of the offender is to stop him from driving his jeepney because he refused to contribute to the tong.

6.estio 7 A s+er T#e o ended party $as 0roug#t to a place $#ic# #e could not lea&e 0ecause #e does not 6no$ $#ere #e is1 alt#oug# ree to mo&e a0out. Aas ar0itrary or illegal detention committed= )ither arbitrary detention or illegal detention was committed. &f a person is brought to a safe house, blindfolded, even if he is free to move as he pleases, but if he cannot leave the place, arbitrary detention or illegal detention is committed. @istinction between arbitrary detention and unlawful arrest #(% !s to offender

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Article 13!. Dela# i t,e Deli0er# o( Detai e$ %erso s to t,e %ro"er <.$icial A.t,orities "lements

a reasonable time. The period fixed by law under !rticle ("$ does not apply because the arrest was made by virtue of a warrant of arrest. .hen a person is arrested without a warrant, it means that there is no case filed in court yet. &f the arresting officer would hold the arrested person there, he is actually depriving the arrested of his right to bail. !s long as there is no charge in the court yet, the arrested person cannot obtain bail because bail may only be granted by the court. The spirit of the law is to have the arrested person delivered to the jurisdiction of the court. &f the arrest is by virtue of a warrant, it means that there is already a case filed in court. .hen an information is filed in court, the amount of bail recommended is stated. The accused person is not really denied his right to bail. )ven if he is interrogated in the police precinct, he can already file bail. ,ote that delivery of the arrested person to the proper authorities does not mean physical delivery or turn over of arrested person to the court. &t simply means putting the arrested person under the jurisdiction of the court. This is done by filing the necessary complaint or information against the person arrested in court within the period specified in !rticle ("$. The purpose of this is for the court to determine whether the offense is bailable or not and if bailable, to allow him the right to bail. =nder the Rule ((* of the Revised Rules of Court, the arrested person can demand from the arresting officer to bring him to any judge in the place where he was arrested and post the bail here. Thereupon, the arresting officer may release him. The judge who granted the bail will just forward the litimus of the case to the court trying his case. The purpose is in order to deprive the arrested person of his right to post the bail. =nder the Revised Rules of Court, when the person arrested is arrested for a crime which gives him the right to preliminary investigation and he wants to avail his right to a preliminary investigation, he would have to waive in writing his rights under !rticle ("$ so that the arresting officer will not immediately file the case with the court that will exercise jurisdiction over the case. &f he does not want to waive this in writing, the arresting officer will have to comply with

1. . ender is a pu0lic o icer or employee; 2. 5e detains a person or some legal


ground;

3. 5e ails to deli&er suc# person to t#e


proper @udicial aut#orities $it#in / a. 12 #our or lig#t penalties; 0. 1' #ours or penalties; and correctional

c. 3! #ours or a licti&e or capital penalties. This is a form of arbitrary detention. !t the beginning, the detention is legal since it is in the pursuance of a lawful arrest. However, the detention becomes arbitrary when the period thereof exceeds (", (1 or 6- hours, as the case may be, depending on whether the crime is punished by light, correctional or afflictive penalty or their e9uivalent. The period of detention is (" hours for light offenses, (1 hours for correctional offences and 6- hours for afflictive offences, where the accused may be detained without formal charge. :ut he must cause a formal charge or application to be filed with the proper court before (", (1 or 6- hours lapse. >therwise he has to release the person arrested. ,ote that the period stated herein does not include the nighttime. &t is to be counted only when the prosecutorDs office is ready to receive the complaint or information. This article does not apply if the arrest is with a warrant. The situation contemplated here is an arrest without a warrant.

6.estio 7 A s+er Ait#in $#at period s#ould a police o icer $#o #as arrested a person under a $arrant o arrest turn o&er t#e arrested person to t#e @udicial aut#ority= There is no time limit specified except that the return must be made within

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!rticle ("$ and file the case immediately in court without preliminary investigation. &n such case, the arrested person, within five days after learning that the case has been filed in court without preliminary investigation, may as4 for preliminary investigation. &n this case, the public officer who made the arrest will no longer be liable for violation of !rticle ("$.

"lements 1. 2. . ender is a pu0lic employee; o icer or

T#ere is a @udicial or e4ecuti&e order or t#e release o a prisoner or detention prisoner1 or t#at t#ere is a proceeding upon a petition or t#e li0eration o suc# person; . ender $it#out good reason delays / a. 0. t#e ser&ice o t#e notice o suc# order to t#e prisoner; t#e per ormance o suc# @udicial or e4ecuti&e order or t#e release o t#e prisoner; or t#e proceedings upon a petition or t#e release o suc# person.

6.estio 7 A s+er T#e arrest o t#e suspect $as done in 7aguio City. .n t#e $ay to Manila1 $#ere t#e crime $as committed1 t#ere $as a typ#oon so t#e suspect could not 0e 0roug#t to Manila until t#ree days later. Aas t#ere a &iolation o Article 125= There was a violation of !rticle ("$. The crime committed was arbitrary detention in the form of delay in the delivery of arrested person to the proper judicial authority. The typhoon or flood is a matter of defense to be proved by the accused, the arresting officer, as to whether he is liable. &n this situation, he may be exempt under paragraph ? of !rticle (". :efore !rticle ("$ may be applied, it is necessary that initially, the detention of the arrested person must be lawful because the arrest is based on legal grounds. &f the arrest is made without a warrant, this constitutes an unlawful arrest. !rticle "-8, not !rticle ("$, will apply. &f the arrest is not based on legal grounds, the arrest is pure and simple arbitrary detention. !rticle ("$ contemplates a situation where the arrest was made without warrant but based on legal grounds. This is 4nown as citi3enDs arrest. Article 13'. Dela#i * Release Acts punis#ed 1. 9elaying t#e per ormance o a @udicial or e4ecuti&e order or t#e release o a prisoner; 8nduly delaying t#e ser&ice o t#e notice o suc# order to said prisoner; 8nduly delaying t#e proceedings upon any petition or t#e li0eration o suc# person.

3.

c.

Article 13). E?".lsio Acts punis#ed 1. 2. "4pelling a -#ilippines; person rom t#e

Compelling a person to c#ange #is residence.

"lements

1. . ender is a pu0lic o icer or employee; 2. 5e eit#er /


a. 0. e4pels any person rom t#e -#ilippines; or compels a person to c#ange residence;

3. . ender is not aut#ori:ed to do so 0y


la$. The essence of this crime is coercion but the specific crime is EexpulsionF when committed by a public officer. &f committed by a private person, the crime is grave coercion. &n Villavicencio v. Lukban, 39 Phil 778, the mayor of the City of 0anila wanted to ma4e the city free from prostitution. He

2. 3.

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12)

ordered certain prostitutes to be transferred to @avao, without observing due processes since they have not been charged with any crime at all. &t was held that the crime committed was expulsion.

6.estio s 7 A s+ers 1. Certain aliens $ere arrested and t#ey $ere @ust put on t#e irst aircra t $#ic# 0roug#t t#em to t#e country so t#at t#ey may 0e out $it#out due process o la$. Aas t#ere a crime committed= Bes. )xpulsion. 2. % a +ilipino citi:en is sent out o t#e country1 $#at crime is committed= /rave coercion, not expulsion, because a 2ilipino cannot be deported. This crime refers only to aliens. Article 13/. 2iolatio o( Do&icile Acts punis#ed 1. 2. "ntering any d$elling against t#e $ill o t#e o$ner t#ereo ; <earc#ing papers or ot#er e ects ound t#erein $it#out t#e pre&ious consent o suc# o$ner; or 2e using to lea&e t#e premises1 a ter #a&ing surreptitiously entered said d$elling and a ter #a&ing 0een re3uired to lea&e t#e same

=nder Title &C #Crimes against Personal Aiberty and 5ecurity%, the corresponding article is 9ualified trespass to dwelling under !rticle "1;. !rticle ("1 is limited to public officers. The public officers who may be liable for crimes against the fundamental laws are those who are possessed of the authority to execute search warrants and warrants of arrests. =nder Rule ((6 of the Revised Rules of Court, when a person to be arrested enters a premise and closes it thereafter, the public officer, after giving notice of an arrest, can brea4 into the premise. He shall not be liable for violation of domicile. There are only three recogni3ed instances when search without a warrant is considered valid, and, therefore, the sei3ure of any evidence done is also valid. >utside of these, search would be invalid and the objects sei3ed would not be admissible in evidence. #(% #"% 5earch made incidental to a valid arrest< .here the search was made on a moving vehicle or vessel such that the exigency of he situation prevents the searching officer from securing a search warrant< .hen the article sei3ed is within plain view of the officer ma4ing the sei3ure without ma4ing a search therefore.

3.

#6%

Common elements 1. 2. . ender is a pu0lic employee; o icer or

There are three ways of committing the violation of !rticle ("1' #(% :y simply entering the dwelling of another if such entering is done against the will of the occupant. &n the plain view doctrine, public officer should be legally entitled to be in the place where the effects were found. &f he entered the place illegally and he saw the effects, doctrine inapplicable< thus, he is liable for violation of domicile. Public officer who enters with consent searches for paper and effects without the consent of the owner. )ven if he is welcome in the dwelling, it does not mean he has permission to search.

5e is not aut#ori:ed 0y @udicial order to enter t#e d$elling or to ma6e a searc# t#erein or papers or ot#er e ects.

Circumstances 3uali ying t#e o ense 1. 2. % committed at nig#ttime; or % any papers or e ects not constituting e&idence o a crime are not returned immediately a ter t#e searc# made 0y o ender. #"%

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13*

#6%

Refusing to leave premises after surreptitious entry and being told to leave the same. The act punished is not the entry but the refusal to leave. &f the offender upon being directed to eave, followed and left, there is no crime of violation of domicile. )ntry must be done surreptitiously< without this, crime may be unjust vexation. :ut if entering was done against the will of the occupant of the house, meaning there was express or implied prohibition from entering the same, even if the occupant does not direct him to leave, the crime of is already committed because it would fall in number (.

2. 3. 2.

5e procures $arrant;

searc#

T#ere is no @ust cause.

"4ceeding #is aut#ority or 0y using unnecessary se&erity in e4ecuting a searc# $arrant legally procured. "lements 1. 2. 3. . ender is a pu0lic o icer or employee; 5e #as legally procured a searc# $arrant; 5e e4ceeds #is aut#ority or uses unnecessary se&erity in e4ecuting t#e same.

6.estio s 7 A s+ers 1. %t $as raining #ea&ily. A policeman too6 s#elter in one personEs #ouse. T#e o$ner o0liged and #ad #is daug#ter ser&e t#e police some co ee. T#e policeman made a pass at t#e daug#ter. T#e o$ner o t#e #ouse as6ed #im to lea&e. 9oes t#is all under Article 12'= ,o. &t was the owner of the house who let the policeman in. The entering is not surreptitious. 2. A person surreptitiously enters t#e d$elling o anot#er. A#at crime or crimes $ere possi0ly committed= The crimes committed are #(% 9ualified trespass to dwelling under !rticle "1;, if there was an express or implied prohibition against entering. This is tantamount to entering against the will of the owner< and #"% violation of domicile in the third form if he refuses to leave after being told to. Article 131. Searc, Warra ts Malicio.sl# O9tai e$@ a $ A9.se i t,e Ser0ice o( T,ose Le*all# O9tai e$ Acts punis#ed 1. -rocuring a searc# $arrant $it#out @ust cause; "lements 1. . ender is a pu0lic o icer or employee;

Article 184. Searc,i * Do&icile +it,o.t Wit esses "lements 1. 2. 3. 4. . ender is a pu0lic employee; o icer or

5e is armed $it# searc# $arrant legally procured; 5e searc#es t#e domicile1 papers or ot#er 0elongings o any person; T#e o$ner1 or any mem0ers o #is amily1 or t$o $itnesses residing in t#e same locality are not present.

Crimes under Articles 12) and 13* are re erred to as &iolation o domicile. %n t#ese articles1 t#e searc# is made 0y &irtue o a &alid $arrant1 0ut t#e $arrant not$it#standing1 t#e lia0ility or t#e crime is still incurred t#roug# t#e ollo$ing situations? (1) <earc# $arrant $as irregularly o0tained / T#is means t#ere $as no pro0a0le cause determined in o0taining t#e searc# $arrant. Alt#oug# &oid1 t#e searc# $arrant is entitled to respect 0ecause o presumption o regularity. .ne remedy is a motion to 3uas# t#e searc# $arrant1 not re usal to a0ide 0y it. T#e pu0lic o icer may also 0e prosecuted or per@ury1 0ecause or #im to succeed in o0taining a searc#

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$arrant $it#out a pro0a0le cause1 #e must #a&e per@ured #imsel or induced someone to commit per@ury to con&ince t#e court. (2) T#e o icer e4ceeded #is aut#ority under t#e $arrant / To illustrate1 let us say t#at there was a pusher in a condo unit. The P,P ,arcotics /roup obtained a search warrant but the name of person in the search warrant did not tally with the address stated. )ventually, the person with the same name was found but in a different address. The occupant resisted but the public officer insisted on the search. @rugs were found and sei3ed and occupant was prosecuted and convicted by the trial court. The 5upreme Court ac9uitted him because the public officers are re9uired to follow the search warrant to the letter. They have no discretion on the matter. Plain view doctrine is inapplicable since it presupposes that the officer was legally entitled to be in the place where the effects where found. 5ince the entry was illegal, plain view doctrine does not apply. A#en t#e pu0lic o icer employs unnecessary or e4cessi&e se&erity in t#e implementation o t#e searc# $arrant. T#e searc# $arrant is not a license to commit destruction. .$ner o d$elling or any mem0er o t#e amily $as a0sent1 or t$o $itnesses residing $it#in t#e same locality $ere not present during t#e searc#.

association1 or attending any o its meetings; c. pro#i0iting or #indering any person rom addressing1 eit#er alone or toget#er $it# ot#ers1 any petition to t#e aut#orities or t#e correction o a0uses or redress o grie&ances.

The government has a right to re9uire a permit before any gathering could be made. !ny meeting without a permit is a proceeding in violation of the law. That being true, a meeting may be prohibited, interrupted, or dissolved without violating !rticle (6( of the Revised Penal Code. :ut the re9uiring of the permit shall be in exercise only of the governmentDs regulatory powers and not really to prevent peaceful assemblies as the public may desire. Permit is only necessary to regulate the peace so as not to inconvenience the public. The permit should state the day, time and the place where the gathering may be held. This re9uirement is, therefore, legal as long as it is not being exercised in as a prohibitory power. &f the permit is denied arbitrarily, !rticle (6( is violated. &f the officer would not give the permit unless the meeting is held in a particular place which he dictates defeats the exercise of the right to peaceably assemble, !rticle (6( is violated. !t the beginning, it may happen that the assembly is lawful and peaceful. &f in the course of the assembly the participants commit illegal acts li4e oral defamation or inciting to sedition, a public officer or law enforcer can stop or dissolve the meeting. The permit given is not a license to commit a crime. There are two criteria to determine whether !rticle (6( would be violated' #(% @angerous tendency rule + applicable in times of national unrest such as to prevent coup dDetat. Clear and present danger rule + applied in times of peace. 5tricter rule. or between dissolution prohibition, of peaceful

(3)

(4)

Article 181. %ro,i9itio @ I terr."tio @ a $ Dissol.tio o( %eace(.l Meeti *s "lements

1. . ender is a pu0lic o icer or employee; 2. 5e per orms any o t#e ollo$ing acts?
a. pro#i0iting or 0y interrupting1 $it#out legal ground1 t#e #olding o a peace ul meeting1 or 0y dissol&ing t#e same; #indering any person rom @oining any la$ ul

#"%

0.

@istinctions interruption,

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meetings under !rticle (6(, and tumults and other disturbances, under !rticle ($6 #(% !s to the participation of the public officer

1.

Acts complained o $ere per ormed in a place de&oted to religious $ors#ip1 or during t#e cele0ration o any religious ceremony; T#e acts must o ensi&e to t#e ait# ul. 0e notoriously eelings o t#e

2. &n !rticle (6(, the public officer is not a participant. !s far as the gathering is concerned, the public officer is a third party. &f the public officer is a participant of the assembly and he prohibits, interrupts, or dissolves the same, !rticle ($6 is violated if the same is conducted in a public place. #"% !s to the essence of the crime &n !rticle (6(, the offender must be a public officer and, without any legal ground, he prohibits, interrupts, or dissolves a peaceful meeting or assembly to prevent the offended party from exercising his freedom of speech and that of the assembly to petition a grievance against the government. &n !rticle ($6, the offender need not be a public officer. The essence of the crime is that of creating a serious disturbance of any sort in a public office, public building or even a private place where a public function is being held. Article 183. Wors,i" "lements 1. 2. . ender is a pu0lic employee; o icer or 1*. 11. 12. 3. . ender pre&ents or distur0s t#e same. 13. 14. 15. Article 188. Feeli *s "lements O((e $i * t,e Reli*io.s I terr."tio o( Reli*io.s ).

T#ere must 0e deli0erate intent to #urt t#e eelings o t#e ait# ul. TITLE III. CRIMES AGAINST %UALIC ORDER Crimes against pu0lic order 1. 2. 3. 4. 5. !. 7. '. 2e0ellion or insurrection (Art. 134); Conspiracy and proposal to commit re0ellion (Art. 13!); 9isloyalty to pu0lic employees (Art. 137); o icers or

%nciting to re0ellion (Art. 13'); <edition (Art. 13)); Conspiracy to commit sedition (Art. 141); %nciting to sedition (Art. 142); Acts tending to pre&ent t#e meeting o Congress and similar 0odies (Art. 143); 9istur0ance o proceedings o Congress or similar 0odies (Art. 144); (iolation o parliamentary immunity (Art. 145); %llegal assem0lies (Art. 14!); %llegal associations (Art. 147); 9irect assaults (Art. 14'); %ndirect assaults (Art. 14)); 9iso0edience to summons issued 0y Congress1 its committees1 etc.1 0y t#e constitutional commissions1 its committees1 etc. (Art. 15*);

2eligious ceremonies or mani estations o any religious are a0out to ta6e place or are going on;

Duali ied i committed 0y &iolence or t#reat.

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1!.

2esistance and diso0edience to a person in aut#ority or t#e agents o suc# person (Art. 151); Tumults and ot#er distur0ances o pu0lic order (Art. 153); 8nla$ ul use o means o pu0lication and unla$ ul utterances (Art. 154); Alarms and scandals (Art. 155); 9eli&ering prisoners rom @ails (Art. 15!); "&asion o ser&ice o sentence (Art. 157); "&asion on occasion o disorders (Art. 15'); (iolation o conditional pardon (Art. 15)); and Commission o anot#er crime during ser&ice o penalty imposed or anot#er pre&ious o ense (Art. 1!*).

can only be committed through force and violence. 2e0ellion and insurrection are not synonymous. 2e0ellion is more re3uently used $#ere t#e o0@ect o t#e mo&ement is completely to o&ert#ro$ and supersede t#e e4isting go&ernment; $#ile insurrection is more commonly employed in re erence to a mo&ement $#ic# see6s merely to e ect some c#ange o minor importance1 or to pre&ent t#e e4ercise o go&ernmental aut#ority $it# respect to particular matters o su0@ects (2eyes1 citing 3* Am. Fr. 1). Rebellion can now be complexed with common crimes. ,ot long ago, the 5upreme Court, in Enrile v. Salazar, 186 SCRA 17, reiterated and affirmed the rule laid down in Peo!le v. "ernan#ez, 99 Phil $1$, that rebellion may not be complexed with common crimes which are committed in furtherance thereof because they are absorbed in rebellion. &n view of said reaffirmation, some believe that it has been a settled doctrine that rebellion cannot be complexed with common crimes, such as 4illing and destruction of property, committed on the occasion and in furtherance thereof. This thin4ing is no longer correct< there is no legal basis for such rule now. The statement in People v. Hernande3 that common crimes committed in furtherance of rebellion are absorbed by the crime of rebellion, was dictated by the provision of !rticle (6$ of the Revised Penal Code prior to its amendment by the Republic !ct ,o. -8-1 #!n !ct Punishing the Crime of Coup @Detat%, which became effective on >ctober (88;. Prior to its amendment by Republic !ct ,o. -8-1, !rticle (6$ punished those Ewho while holding any public office or employment, ta4e part thereinF by any of these acts' engaging in war against the forces of /overnment< destroying property< committing serious violence< exacting contributions, diverting funds for the lawful purpose for which they have been appropriated. 5ince a higher penalty is prescribed for the crime of rebellion when any of the specified acts are committed in furtherance thereof, said acts are punished as components of rebellion and, therefore, are not to be

17. 1'. 1). 2*. 21. 22. 23. 24.

Article 184. Re9ellio or I s.rrectio "lements 1. 2. T#ere is a pu0lic uprising and ta6ing arms against t#e go&ernment; T#e purpose o mo&ement is / a. t#e uprising or

to remo&e rom t#e allegiance to t#e go&ernment or its la$s -#ilippine territory or any part t#ereo 1 or any 0ody o land1 na&al1 or ot#er armed orces; or

0.

to depri&e t#e C#ie "4ecuti&e or Congress1 $#olly or partially1 o any o t#eir po$ers or prerogati&es.

The essence of this crime is a public uprising with the ta4ing up of arms. &t re9uires a multitude of people. &t aims to overthrow the duly constituted government. &t does not re9uire the participation of any member of the military or national police organi3ation or public officers and generally carried out by civilians. Aastly, the crime

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treated as distinct crimes. The same acts constitute distinct crimes when committed on a different occasion and not in furtherance of rebellion. &n short, it was because !rticle (6$ then punished said acts as components of the crime of rebellion that precludes the application of !rticle *1 of the Revised Penal Code thereto. &n the eyes of the law then, said acts constitute only one crime and that is rebellion. The Hernande3 doctrine was reaffirmed in )nrile v. 5ala3ar because the text of !rticle (6$ has remained the same as it was when the 5upreme Court resolved the same issue in the People v. Hernande3. 5o the 5upreme Court invited attention to this fact and thus stated' EThere is a an apparent need to restructure the law on rebellion, either to raise the penalty therefore or to clearly define and delimit the other offenses to be considered absorbed thereby, so that it cannot be conveniently utili3ed as the umbrella for every sort of illegal activity underta4en in its name. The court has no power to effect such change, for it can only interpret the law as it stands at any given time, and what is needed lies beyond interpretation. Hopefully, Congress will perceive the need for promptly sei3ing the initiative in this matter, which is purely within its province.F >bviously, Congress too4 notice of this pronouncement and, thus, in enacting Republic !ct ,o. -8-1, it did not only provide for the crime of coup dDetat in the Revised Penal Code but moreover, deleted from the provision of !rticle (6$ that portion referring to those + EGwho, while holding any public office or employment ta4es part therein Hrebellion or insurrectionI, engaging in war against the forces of government, destroying property or committing serious violence, exacting contributions or diverting public funds from the lawful purpose for which they have been appropriated GF Hence, overt acts which used to be punished as components of the crime of rebellion have been severed therefrom by Republic !ct ,o. -8-1. The legal impediment to the application of !rticle *1 to rebellion has been removed. !fter the amendment, common crimes involving 4illings, andJor destructions of property, even though committed by rebels in furtherance of rebellion, shall bring about complex crimes of rebellion with

murderJhomicide, or rebellion with robbery, or rebellion with arson as the case may be. To reiterate, before !rticle (6$ was amended, a higher penalty is imposed when the offender engages in war against the government. K.arK connotes anything which may be carried out in pursuance of war. This implies that all acts of war or hostilities li4e serious violence and destruction of property committed on occasion and in pursuance of rebellion are component crimes of rebellion which is why !rticle *1 on complex crimes is inapplicable. &n amending !rticle(6$, the acts which used to be component crimes of rebellion, li4e serious acts of violence, have been deleted. These are now distinct crimes. The legal obstacle for the application of !rticle *1, therefore, has been removed. >rtega says legislators want to punish these common crimes independently of rebellion. >rtega cites no case overturning )nrile v. 5ala3ar. &n Peo!le v. Ro#ri%uez, 1&7 Phil. $69, it was held that an accused already convicted of rebellion may not be prosecuted further for illegal possession of firearm and ammunition, a violation of Presidential @ecree ,o. (1--, because this is a necessary element or ingredient of the crime of rebellion with which the accused was already convicted. However, in Peo!le v. 'iozon, 198 SCRA 368, it was held that charging one of illegal possession of firearms in furtherance of rebellion is proper because this is not a charge of a complex crime. ! crime under the Revised Penal Code cannot be absorbed by a statutory offense. &n Peo!le v. #e (racia, it was ruled that illegal possession of firearm in furtherance of rebellion under Presidential @ecree ,o. (1-- is distinct from the crime of rebellion under the Revised Penal Code and, therefore, !rticle (6$ #"% of the Revised Penal Code should not apply. The offense of illegal possession of firearm is a malum prohibitum, in which case, good faith and absence of criminal intent are not valid defenses. &n Peo!le v. Lobe#ioro, an ,P! cadre 4illed a policeman and was convicted for murder. He appealed invo4ing rebellion. The 5upreme Court found that there was no evidence shown to further the end of the ,P! movement. &t held that there must be

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evidence shown that the act furthered the cause of the ,P!< it is not enough to say it. Rebellion may be committed even without a single shot being fired. ,o encounter needed. 0ere public uprising with arms enough. !rticle (6$, as amended, has two penalties' a higher penalty for the promoters, heads and maintainers of the rebellion< and a lower penalty for those who are only followers of the rebellion. @istinctions between rebellion and sedition #(% !s to nature &n rebellion, there must be ta4ing up or arms against the government. &n sedition, it is sufficient that the public uprising be tumultuous. #"% !s to purpose &n rebellion, the purpose is always political. &n sedition, the purpose may be political or social. )xample' the uprising of s9uatters against 2orbes par4 residents. The purpose in sedition is to go against established government, not to overthrow it. .hen any of the objectives of rebellion is pursued but there is no public uprising in the legal sense, the crime is direct assault of the first form. :ut if there is rebellion, with public uprising, direct assault cannot be committed. Article 184;A. Co." $5 etat "lements 1. . ender is a person or persons 0elonging to t#e military or police or #olding any pu0lic o ice or employment; %t is committed 0y means o a s$i t attac6 accompanied 0y &iolence1 intimidation1 t#reat1 strategy or stealt#; T#e attac6 is directed against t#e duly constituted aut#orities o t#e 2epu0lic o t#e -#ilippines1 or any military camp or installation1 2.

communication net$or6s1 pu0lic utilities or ot#er acilities needed or t#e e4ercise and continued possession o po$er; 4. T#e purpose o t#e attac6 is to sei:e or diminis# state po$er.

The essence of the crime is a swift attac4 upon the facilities of the Philippine government, military camps and installations, communication networ4s, public utilities and facilities essential to the continued possession of governmental powers. &t may be committed singly or collectively and does not re9uire a multitude of people. The objective may not be to overthrow the government but only to destabili3e or paraly3e the government through the sei3ure of facilities and utilities essential to the continued possession and exercise of governmental powers. &t re9uires as principal offender a member of the !2P or of the P,P organi3ation or a public officer with or without civilian support. 2inally, it may be carried out not only by force or violence but also through stealth, threat or strategy. -ersons lia0le or re0ellion1 insurrection or coup d, etat under Article 18! 1. T#e leaders / a. Any person $#o promotes1 maintains or #eads a re0ellion or insurrection; or Any person $#o leads1 directs or commands ot#ers to underta6e a coup d, etat;

0.

T#e participants / a. Any person $#o participates or e4ecutes t#e commands o ot#ers in re0ellion1 insurrection or coup d, etat; Any person not in t#e go&ernment ser&ice $#o participates1 supports1 inances1 a0ets or aids in underta6ing a coup d, etat.

0.

2.

3.

Article 18'. Co s"irac# a $ %ro"osal to Co&&it Co." $5 etat@ Re9ellio or I s.rrectio

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Conspiracy and proposal to commit re0ellion are t$o di erent crimes1 namely? 1. Conspiracy to commit re0ellion; and 2. -roposal to commit re0ellion.

2.

%n proposal1 t#e person $#o proposes #as decided to commit re0ellion; in inciting to re0ellion1 it is not re3uired t#at t#e o ender #as decided to commit re0ellion. %n proposal1 t#e person $#o proposes t#e e4ecution o t#e crime uses secret means; in inciting to re0ellion1 t#e act o inciting is done pu0licly.

T#ere is conspiracy to commit re0ellion $#en t$o or more persons come to an agreement to rise pu0licly and ta6e arms against go&ernment or any o t#e purposes o re0ellion and decide to commit it. T#ere is proposal to commit re0ellion $#en t#e person $#o #as decided to rise pu0licly and ta6e arms against t#e go&ernment or any o t#e purposes o re0ellion proposes its e4ecution to some ot#er person or persons. Article 18). Dislo#alt# o( %.9lic O((icers or E&"lo#ees Acts punis#ed 1. 2. 7y ailing to resist a re0ellion 0y all t#e means in t#eir po$er; 7y continuing to disc#arge t#e duties o t#eir o ices under t#e control o t#e re0els; or 7y accepting appointment to o ice under t#em.

3.

Article 181. Se$itio "lements

1. . enders

rise tumultuously;

pu0licly

and

2. . enders employ orce1 intimidation1 or


ot#er means met#ods; outside o legal

3. -urpose is to attain any o t#e ollo$ing


o0@ects? a. To pre&ent t#e promulgation or e4ecution o any la$ or t#e #olding o any popular election; To pre&ent t#e national go&ernment or any pro&incial or municipal go&ernment1 or any pu0lic o icer rom e4ercising its or #is unctions or pre&ent t#e e4ecution o an administrati&e order; To in lict any act o #ate or re&enge upon t#e person or property o any pu0lic o icer or employee; To commit1 or any political or social end1 any act o #ate or re&enge against pri&ate persons or any social classes; To despoil or any political or social end1 any person1 municipality or pro&ince1 or t#e national go&ernment o all its property or any part t#ereo .

3.

. ender must 0e a pu0lic o icer or employee. Article 18/. I s.rrectio "lements 1. . ender does not ta6e arms or is not in open #ostility against t#e go&ernment; 5e incites ot#ers to t#e e4ecution o any o t#e acts o re0ellion; T#e inciting is done 0y means o speec#es1 proclamations1 $ritings1 em0lems1 0anners or ot#er representations tending to t#e same end. I citi * to Re9ellio or

0.

c.

2. 3.

d.

e.

9istinction 0et$een inciting to re0ellion and proposal to commit re0ellion 1. %n 0ot# crimes1 o ender induces anot#er to commit re0ellion.

The crime of sedition does not contemplate the ta4ing up of arms against the

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government because the purpose of this crime is not the overthrow of the government. ,otice from the purpose of the crime of sedition that the offenders rise publicly and create commotion ad disturbance by way of protest to express their dissent and obedience to the government or to the authorities concerned. This is li4e the so called civil disobedience except that the means employed, which is violence, is illegal. -ersons lia0le or sedition under Article 144 1. 2. T#e leader o t#e sedition; and .t#er person participating in t#e sedition. Co s"irac# to Co&&it

3.

%nciting is done 0y means o speec#es1 proclamations1 $ritings1 em0lems1 cartoons1 0anners1 or ot#er representations tending to$ards t#e same end.

>nly non participant in sedition may be liable. Considering that the objective of sedition is to express protest against the government and in the process creating hate against public officers, any act that will generate hatred against the government or a public officer concerned or a social class may amount to &nciting to sedition. !rticle (*" is, therefore, 9uite broad. The mere meeting for the purpose of discussing hatred against the government is inciting to sedition. Aambasting government officials to discredit the government is &nciting to sedition. :ut if the objective of such preparatory actions is the overthrow of the government, the crime is inciting to rebellion. Article 148. Acts Te $i * to %re0e t t,e Meeti * o( t,e Co *ress o( t,e %,ili""i es a $ Si&ilar Ao$ies "lements 1. T#ere is a pro@ected or actual meeting o Congress or any o its committees or su0committees1 constitutional committees or di&isions t#ereo 1 or o any pro&incial 0oard or city or municipal council or 0oard; . ender1 $#o may 0e any person1 pre&ents suc# meetings 0y orce or raud.

Article 141. Se$itio

%n t#is crime1 t#ere must 0e an agreement and a decision to rise pu0licly and tumultuously to attain any o t#e o0@ects o sedition. T#ere is no proposal to commit sedition. Article 143. I citi * to Se$itio Acts punis#ed 1. %nciting ot#ers to t#e accomplis#ment o any o t#e acts $#ic# constitute sedition 0y means o speec#es1 proclamations1 $ritings1 em0lems1 etc.; 8ttering seditious $ords or speec#es $#ic# tend to distur0 t#e pu0lic peace; Ariting1 pu0lis#ing1 or circulating scurrilous li0els against t#e go&ernment or any o t#e duly constituted aut#orities t#ereo 1 $#ic# tend to distur0 t#e pu0lic peace.

2.

2.

3.

Article 144. Dist.r9a ce o( %rocee$i *s "lements 1. T#ere is a meeting o Congress or any o its committees or su0committees1 constitutional commissions or committees or di&isions t#ereo 1 or o any pro&incial 0oard or city or municipal council or 0oard; . ender does any o t#e ollo$ing acts?

"lements 1. 2. . ender does not ta6e direct part in t#e crime o sedition; 5e incites ot#ers to t#e accomplis#ment o any o t#e acts $#ic# constitute sedition; and 2.

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a. 0.

5e distur0s any o meetings;

suc# 3. Congress1 at t#e time o arrest or searc#1 is in regular or special session; T#e mem0er arrested or searc#ed #as not committed a crime punis#a0le under t#e Code 0y a penalty #ig#er t#an prision mayor.

5e 0e#a&es $#ile in t#e presence o any suc# 0odies in suc# a manner as to interrupt its proceedings or to impair t#e respect due it.

4.

Article 14!. I&&. it# Acts punis#ed 1.

2iolatio

o( %arlia&e tar#

8nder <ection 111 Article (% o t#e Constitution1 a pu0lic o icer $#o arrests a mem0er o Congress $#o #as committed a crime punis#a0le 0y prision mayor (si4 years and one day1 to 12 years) is not lia0le Article 145. According to 2eyes1 to 0e consistent $it# t#e Constitution1 t#e p#rase G0y a penalty #ig#er t#an prision mayorG in Article 145 s#ould 0e amended to read? G0y t#e penalty o prision mayor or #ig#er.G Article 14'. Ille*al Asse&9lies Acts punis#ed 1. Any meeting attended 0y armed persons or t#e purpose o committing any o t#e crimes punis#a0le under t#e Code; "lements 1. T#ere is a meeting1 a gat#ering or group o persons1 $#et#er in i4ed place or mo&ing; T#e meeting is attended 0y armed persons; T#e purpose o t#e meeting is to commit any o t#e crimes punis#a0le under t#e Code.

8sing orce1 intimidation1 t#reats1 or rauds to pre&ent any mem0er o Congress rom attending t#e meetings o Congress or o any o its committees or su0committees1 constitutional commissions or committees or di&isions t#ereo 1 or rom e4pressing #is opinion or casting #is &ote; "lements 1. 2. . ender uses orce1 intimidation1 t#reats or raud; T#e purpose o t#e o ender is to pre&ent any mem0er o Congress rom / a. attending t#e meetings o t#e Congress or o any o its committees or constitutional commissions1 etc.; e4pressing opinion; or casting #is &ote. #is

2. 3.

0. c. 2.

Arresting or searc#ing any mem0er t#ereo $#ile Congress is in regular or special session1 e4cept in case suc# mem0er #as committed a crime punis#a0le under t#e Code 0y a penalty #ig#er t#an prision mayor. "lements

2.

Any meeting in $#ic# t#e audience1 $#et#er armed or not1 is incited to t#e commission o t#e crime o treason1 re0ellion or insurrection1 sedition1 or assault upon person in aut#ority or #is agents. 1. T#ere is a meeting1 a gat#ering or group o persons1 $#et#er in a i4ed place or mo&ing;

1. 2.

. ender is a pu0lic o icer o employee; 5e arrests or searc#es any mem0er o Congress;

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13)

2.

T#e audience1 $#et#er armed or not1 is incited to t#e commission o t#e crime o treason1 re0ellion or insurrection1 sedition or direct assault.

)xample' Persons conspiring to rob a ban4 were arrested. 5ome were with firearms. Aiable for illegal assembly, not for conspiracy, but for gathering with armed men. @istinction between illegal assembly and illegal association

-ersons lia0le or illegal assem0ly 1. 2. T#e organi:er or leaders o meeting; t#e &n illegal assembly, the basis of liability is the gathering for an illegal purpose which constitutes a crime under the Revised Penal Code. &n illegal association, the basis is the formation of or organi3ation of an association to engage in an unlawful purpose which is not limited to a violation of the Revised Penal Code. &t includes a violation of a special law or those against public morals. 0eaning of public morals' inimical to public welfare< it has nothing to do with decency., not acts of obscenity. Article 14). Ille*al Associatio s The gravamen of the offense is mere assembly of or gathering of people for illegal purpose punishable by the Revised Penal Code. .ithout gathering, there is no illegal assembly. &f unlawful purpose is a crime under a special law, there is no illegal assembly. 2or example, the gathering of drug pushers to facilitate drug traffic4ing is not illegal assembly because the purpose is not violative of the Revised Penal Code but of The @angerous @rugs !ct of (8?", as amended, which is a special law. Two forms of illegal assembly 1. #(% ,o attendance of armed men, but persons in the meeting are incited to commit treason, rebellion or insurrection, sedition or assault upon a person in authority. .hen the illegal purpose of the gathering is to incite people to commit the crimes mentioned above, the presence of armed men is unnecessary. The mere gathering for the purpose is sufficient to bring about the crime already. !rmed men attending the gathering + &f the illegal purpose is other than those mentioned above, the presence of armed men during the gathering brings about the crime of illegal assembly. directors and association; 2. +ounders1 president o t#e %llegal associations 1. Associations totally or partially organi:ed or t#e purpose o committing any o t#e crimes punis#a0le under t#e Code; Associations totally or partially organi:ed or some purpose contrary to pu0lic morals.

-ersons merely present at t#e meeting1 $#o must #a&e a common intent to commit t#e elony o illegal assem0ly.

% any person present at t#e meeting carries an unlicensed irearm1 it is presumed t#at t#e purpose o t#e meeting inso ar as #e is concerned is to commit acts punis#a0le under t#e 2e&ised -enal Code1 and #e is considered a leader or organi:er o t#e meeting.

2.

-ersons lia0le

Mere mem0ers o t#e association.

9istinction 0et$een illegal association and illegal assem0ly 1. %n illegal association1 it is not necessary t#at t#ere 0e an actual meeting. %n illegal assem0ly1 it is necessary t#at t#ere is an actual meeting or assem0ly or armed persons or t#e purpose o committing any o t#e crimes punis#a0le under t#e Code1 or o indi&iduals $#o1 alt#oug# not armed1 are incited to t#e commission

#"%

REVISED ORTEGA LECTURE NOTES

ON

CRIMINAL LAW

14*

o treason1 re0ellion1 sedition1 or assault upon a person in aut#ority or #is agent. 2. %n illegal association1 it is t#e act o orming or organi:ing and mem0ers#ip in t#e association t#at are punis#ed. %n illegal assem0ly1 it is t#e meeting and attendance at suc# meeting t#at are punis#ed. 3. %n illegal association1 t#e persons lia0le are (1) t#e ounders1 directors and president; and (2) t#e mem0ers. %n illegal assem0ly1 t#e persons lia0le are (1) t#e organi:ers or leaders o t#e meeting and (2) t#e persons present at meeting. Article 14/. Direct Assa.lt Acts punis#ed 1. Ait#out pu0lic uprising1 employing orce or intimidation t#e attainment o any o purposes enumerated in de ining crimes o re0ellion and sedition; "lements 1. 2. . ender employs intimidation; orce or 0y or t#e t#e

2.

T#e person assaulted is a person in aut#ority or #is agent; At t#e time o t#e assault1 t#e person in aut#ority or #is agent is engaged in t#e actual per ormance o o icial duties1 or t#at #e is assaulted 0y reason o t#e past per ormance o o icial duties; . ender 6no$s t#at t#e one #e is assaulting is a person in aut#ority or #is agent in t#e e4ercise o #is duties. T#ere is no pu0lic uprising.

3.

4.

5.

The crime is not based on the material conse9uence of the unlawful act. The crime of direct assault punishes the spirit of lawlessness and the contempt or hatred for the authority or the rule of law. To be specific, if a judge was 4illed while he was holding a session, the 4illing is not the direct assault, but murder. There could be direct assault if the offender 4illed the judge simply because the judge is so strict in the fulfillment of his duty. &t is the spirit of hate which is the essence of direct assault. 5o, where the spirit is present, it is always complexed with the material conse9uence of the unlawful act. &f the unlawful act was murder or homicide committed under circumstance of lawlessness or contempt of authority, the crime would be direct assault with murder or homicide, as the case may be. &n the example of the judge who was 4illed, the crime is direct assault with murder or homicide. The only time when it is not complexed is when material conse9uence is a light felony, that is, slight physical injury. @irect assault absorbs the lighter felony< the crime of direct assault can not be separated from the material result of the act. 5o, if an offender who is charged with direct assault and in another court for the slight physical &njury which is part of the act, ac9uittal or conviction in one is a bar to the prosecution in the other. )xample of the first form of direct assault' Three men bro4e into a ,ational 2ood !uthority warehouse and lamented

T#e aim o t#e o ender is to attain any o t#e purposes o t#e crime o re0ellion or any o t#e o0@ects o t#e crime o sedition; T#ere is no pu0lic uprising.

3. 2.

Ait#out pu0lic uprising1 0y attac6ing1 0y employing orce or 0y seriously intimidating or 0y seriously resisting any person in aut#ority or any o #is agents1 $#ile engaged in t#e per ormance o o icial duties1 or on occasion o suc# per ormance. "lements 1. . ender ma6es an attac61 employs orce1 ma6es a serious intimidation1 or ma6es a serious resistance;

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sufferings of the people. They called on people to help themselves to all the rice. They did not even help themselves to a single grain. The crime committed was direct assault. There was no robbery for there was no intent to gain. The crime is direct assault by committing acts of sedition under !rticle (68 #$%, that is, spoiling of the property, for any political or social end, of any person municipality or province or the national government of all or any its property, but there is no public uprising. Person in authority is any person directly vested with jurisdiction, whether as an individual or as a member of some court or government corporation, board, or commission. ! barangay chairman is deemed a person in authority. !gent of a person in authority is any person who by direct provision of law or by election or by appointment by competent authority, is charged with the maintenance of public order and the protection and security of life and property, such as a barangay councilman, barrio policeman, barangay leader and any person who comes to the aid of a person in authority. &n applying the provisions of !rticles (*1 and ($(, teachers, professors, and persons charged with the supervision of public or duly recogni3ed private schools, colleges and universities and lawyers in the actual performance of their duties or on the occasion of such performance, shall be deemed a person in authority. &n direct assault of the first form, the stature of the offended person is immaterial. The crime is manifested by the spirit of lawlessness. &n the second form, you have to distinguish a situation where a person in authority or his agent was attac4ed while performing official functions, from a situation when he is not performing such functions. &f attac4 was done during the exercise of official functions, the crime is always direct assault. &t is enough that the offender 4new that the person in authority was performing an official function whatever may be the reason for the attac4, although what may have happened was a purely private affair.

>n the other hand, if the person in authority or the agent was 4illed when no longer performing official functions, the crime may simply be the material conse9uence of he unlawful act' murder or homicide. 2or the crime to be direct assault, the attac4 must be by reason of his official function in the past. 0otive becomes important in this respect. )xample, if a judge was 4illed while resisting the ta4ing of his watch, there is no direct assault. &n the second form of direct assault, it is also important that the offended party 4new that the person he is attac4ing is a person in authority or an agent of a person in authority, performing his official functions. ,o 4nowledge, no lawlessness or contempt. 2or example, if two persons were 9uarreling and a policeman in civilian clothes comes and stops them, but one of the protagonists stabs the policeman, there would be no direct assault unless the offender 4new that he is a policeman. &n this respect it is enough that the offender should 4now that the offended party was exercising some form of authority. &t is not necessary that the offender 4nows what is meant by person in authority or an agent of one because ignorantia legis non excusat. Article 141. I $irect Assa.lt "lements 1. A person in aut#ority or #is agent is t#e &ictim o any o t#e orms o direct assault de ined in Article 14'; A person comes to t#e aid o suc# aut#ority or #is agent; . ender ma6es use o orce or intimidation upon suc# person coming to t#e aid o t#e aut#ority or #is agent.

2. 3.

The victim in indirect assault should be a private person who comes in aid of an agent of a person in authority. The assault is upon a person who comes in aid of the person in authority. The victim cannot be the person in authority or his agent. There is no indirect assault when there is no direct assault.

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Ta4e note that under !rticle ($", as amended, when any person comes in aid of a person in authority, said person at that moment is no longer a civilian + he is constituted as an agent of the person in authority. &f such person were the one attac4ed, the crime would be direct assault. @ue to the amendment of !rticle ($", without the corresponding amendment in !rticle ($;, the crime of indirect assault can only be committed when assault is upon a civilian giving aid to an agent of the person in authority. He does not become another agent of the person in authority. Article 1!4. Diso9e$ie ce to S.&&o s Iss.e$ 9# Co *ress@ Its Co&&ittees or S.9co&&ittees@ 9# t,e Co stit.tio al Co&&issio s@ Its Co&&ittees@ S.9co&&ittees or Di0isio s Acts punis#ed 1. 7y re using1 $it#out legal e4cuse1 to o0ey summons o Congress1 its special or standing committees and su0committees1 t#e Constitutional Commissions and its committees1 su0committees or di&isions1 or 0y any commission or committee c#airman or mem0er aut#ori:ed to summon $itnesses; 7y re using to 0e s$orn or placed under a irmation $#ile 0eing 0e ore suc# legislati&e or constitutional 0ody or o icial; 7y re using to ans$er any legal in3uiry or to produce any 0oo6s1 papers1 documents1 or records in #is possession1 $#en re3uired 0y t#em to do so in t#e e4ercise o t#eir unctions;

"lements

resistance and serious diso0edience under t#e irst paragrap#

1.

A person in aut#ority or #is agent is engaged in t#e per ormance o o icial duty or gi&es a la$ ul order to t#e o ender; . ender resists or seriously diso0eys suc# person in aut#ority or #is agent; T#e act o t#e o ender is not included in t#e pro&ision o Articles 14'1 14) and 15*.

2.

3.

"lements o simple diso0edience under t#e second paragrap# 1. An agent o a person in aut#ority is engaged in t#e per ormance o o icial duty or gi&es a la$ ul order to t#e o ender; . ender diso0eys suc# agent o a person in aut#ority; <uc# diso0edience is not o serious nature. a

2. 3.

9istinction 0et$een resistance or serious diso0edience and direct assault 1. %n resistance1 t#e person in aut#ority or #is agent must 0e in actual per ormance o #is duties. %n direct assault1 t#e person in aut#ority or #is agent must 0e engaged in t#e per ormance o o icial duties or t#at #e is assaulted 0y reason t#ereo . 2. 2esistance or serious diso0edience is committed only 0y resisting or seriously diso0eying a person in aut#ority or #is agent. 9irect assault (t#e second orm) is committed in our $ays1 t#at is1 (1) 0y attac6ing1 (2) 0y employing orce1 (3) 0y seriously intimidating1 and (4) 0y seriously resisting a persons in aut#ority or #is agent. 3. %n 0ot# resistance against an agent o a person in aut#ority and direct assault 0y resisting an agent o a person in aut#ority1 t#ere is orce

2.

3.

4.

7y restraining anot#er rom attending as a $itness in suc# legislati&e or constitutional 0ody; 7y inducing diso0edience to a summons or re usal to 0e s$orn 0y any suc# 0ody or o icial.

5.

Article 1!1. Resista ce a $ Diso9e$ie ce to A %erso i A.t,orit# or t,e A*e ts o( S.c, %erso

REVISED ORTEGA LECTURE NOTES

ON

CRIMINAL LAW

143

employed1 0ut t#e use o orce in resistance is not so serious1 as t#ere is no mani est intention to de y t#e la$ and t#e o icers en orcing it. T#e attac6 or employment o orce $#ic# gi&es rise to t#e crime o direct assault must 0e serious and deli0erate; ot#er$ise1 e&en a case o simple resistance to an arrest1 $#ic# al$ays re3uires t#e use o orce o some 6ind1 $ould constitute direct assault and t#e lesser o ense o resistance or diso0edience in Article 151 $ould entirely disappear. 7ut $#en t#e one resisted is a person % aut#ority1 t#e use o any 6ind or degree o orce $ill gi&e rise to direct assault. % no orce is employed 0y t#e o ender in resisting or diso0eying a person in aut#ority1 t#e crime committed is resistance or serious diso0edience under t#e irst paragrap# o Article 151.

).

7arrio captain c#airman.

and

0arangay

Article 1!8. T.&.lts a $ Dist.r9a ces o( %.9lic Or$er Acts punis#ed 1.

Ot,er

Causing any serious distur0ance in a pu0lic place1 o ice or esta0lis#ment; %nterrupting or distur0ing per ormances1 unctions or gat#erings1 or peace ul meetings1 i t#e act is not included in Articles 131 and 132; Ma6ing any outcry tending to incite re0ellion or sedition in any meeting1 association or pu0lic place; 9isplaying placards or em0lems $#ic# pro&o6e a distur0ance o pu0lic order in suc# place; 7urying $it# pomp t#e 0ody o a person $#o #as 0een legally e4ecuted.

2.

3.

4.

5. A#o are deemed persons in aut#ority and agents o persons in aut#ority under Article 1!3 A person in aut#ority is one directly &ested $it# @urisdiction1 t#at is1 t#e po$er and aut#ority to go&ern and e4ecute t#e la$s. An agent o a person in aut#ority is one c#arged $it# (1) t#e maintenance o pu0lic order and (2) t#e protection and security o li e and property. "4amples o persons in aut#ority 1. 2. 3. 4. 5. !. 7. '. Municipal mayor; 9i&ision superintendent o sc#ools; -u0lic and pri&ate sc#ool teac#ers; Teac#er>nurse; -resident o sanitary di&ision; -ro&incial iscal; Fustice o t#e -eace; Municipal councilor;

The essence is creating public disorder. This crime is brought about by creating serious disturbances in public places, public buildings, and even in private places where public functions or performances are being held. 2or a crime to be under this article, it must not fall under !rticles (6( #prohibition, interruption, and dissolution of peaceful meetings% and (6" #interruption of religious worship%.

REVISED ORTEGA LECTURE NOTES

ON

CRIMINAL LAW

144

&n the act of ma4ing outcry during speech tending to incite rebellion or sedition, the situation must be distinguished from inciting to sedition or rebellion. &f the spea4er, even before he delivered his speech, already had the criminal intent to incite the listeners to rise to sedition, the crime would be inciting to sedition. However, if the offender had no such criminal intent, but in the course of his speech, tempers went high and so the spea4er started inciting the audience to rise in sedition against the government, the crime is disturbance of the public order. The disturbance of the pubic order is tumultuous and the penalty is increased if it is brought about by armed men. The term EarmedF does not refer to firearms but includes even big stones capable of causing grave injury. &t is also disturbance of the public order if a convict legally put to death is buried with pomp. He should not be made out as a martyr< it might incite others to hatred. Article 1!4. U la+(.l Use o( Mea s o( %.9licatio a $ U la+(.l Uttera ces Acts punis#ed 1. -u0lis#ing or causing to 0e pu0lis#ed1 0y means o printing1 lit#ograp#y or any ot#er means o pu0lication1 as ne$s any alse ne$s $#ic# may endanger t#e pu0lic order; or cause damage to t#e interest or credit o t#e <tate; "ncouraging diso0edience to t#e la$ or to t#e constituted aut#orities or praising1 @usti ying or e4tolling any act punis#ed 0y la$1 0y t#e same means or 0y $ords1 utterances or speec#es; Maliciously pu0lis#ing or causing to 0e pu0lis#ed any o icial resolution or document $it#out proper aut#ority1 or 0e ore t#ey #a&e 0een pu0lis#ed o icially; -rinting1 pu0lis#ing or distri0uting (or causing t#e same) 0oo6s1 pamp#lets1 periodicals1 or lea lets $#ic# do not 0ear t#e real printerEs

name1 or $#ic# are classi ied as anonymous. Actual pu0lic disorder or actual damage to t#e credit o t#e <tate is not necessary. Re".9lic Act No. 34/ pro#i0its t#e reprinting1 reproduction or repu0lication o go&ernment pu0lications and o icial documents $it#out pre&ious aut#ority. Article 1!!. Alar&s a $ Sca $als Acts punis#ed 1. 9isc#arging any irearm1 roc6et1 irecrac6er1 or ot#er e4plosi&e $it#in any to$n or pu0lic place1 calculated to cause ($#ic# produces) alarm o danger; %nstigating or ta6ing an acti&e part in any c#ari&ari or ot#er disorderly meeting o ensi&e to anot#er or pre@udicial to pu0lic tran3uility; 9istur0ing t#e pu0lic peace $#ile $andering a0out at nig#t or $#ile engaged in any ot#er nocturnal amusements; Causing any distur0ance or scandal in pu0lic places $#ile into4icated or ot#er$ise1 pro&ided Article 153 in not applica0le.

2.

3.

4.

.hen a person discharges a firearm in public, the act may constitute any of the possible crimes under the Revised Penal Code' #(% !larms and scandals if the firearm when discharged was not directed to any particular person< &llegal discharge !rticle "$* if the or pointed to a when discharged absent< of firearm under firearm is directed particular person but intent to 4ill is

2.

#"%

3.

#6%

4.

!ttempted homicide, murder, or parricide if the firearm when discharged is directed against a person and intent to 4ill is present.

&n this connection, understand that it is not necessary that the offended party be wounded or hit. 0ere discharge of firearm

REVISED ORTEGA LECTURE NOTES

ON

CRIMINAL LAW

145

towards another with intent to 4ill already amounts to attempted homicide or attempted murder or attempted parricide. &t can not be frustrated because the offended party is not mortally wounded. &n Arane)a v. Cour) o* A!!eal+, it was held that if a person is shot at and is wounded, the crime is automatically attempted homicide. &ntent to 4ill is inherent in the use of the deadly weapon. The crime alarms and scandal is only one crime. @o not thin4 that alarms and scandals are two crimes. 5candal here does not refer to moral scandal< that one is grave scandal in !rticle ";;. The essence of the crime is disturbance of public tran9uility and public peace. 5o, any 4ind of disturbance of public order where the circumstance at the time renders the act offensive to the tran9uility prevailing, the crime is committed. Charivari is a moc4 serenade wherein the supposed serenaders use bro4en cans, bro4en pots, bottles or other utensils thereby creating discordant notes. !ctually, it is producing noise, not music and so it also disturbs public tran9uility. =nderstand the nature of the crime of alarms and scandals as one that disturbs public tran9uility or public peace. &f the annoyance is intended for a particular person, the crime is unjust vexation. )ven if the persons involved are engaged in nocturnal activity li4e those playing patintero at night, or selling balut, if they conduct their activity in such a way that disturbs public peace, they may commit the crime of alarms and scandals. Article 1!'. <ail "lements 1. 2. T#ere is a person con ined in a @ail or penal esta0lis#ment; . ender remo&es t#ere rom suc# person1 or #elps t#e escape o suc# person. Deli0eri * %riso ers (ro&

period is imposed i &iolence1 intimidation or 0ri0ery is used. -enalty o arresto mayor i ot#er means are used. -enalty decreased to t#e minimum period i t#e escape o t#e prisoner s#all ta6e place outside o said esta0lis#ments 0y ta6ing t#e guards 0y surprise. &n relation to infidelity in the custody of prisoners, correlate the crime of delivering person from jail with infidelity in the custody of prisoners punished under !rticles ""6, ""* and ""$ of the Revised Penal Code. &n both acts, the offender may be a public officer or a private citi3en. @o not thin4 that infidelity in the custody of prisoners can only be committed by a public officer and delivering persons from jail can only be committed by private person. :oth crimes may be committed by public officers as well as private persons. &n both crimes, the person involved may be a convict or a mere detention prisoner. The only point of distinction between the two crimes lies on whether the offender is the custodian of the prisoner or not at the time the prisoner was made to escape. &f the offender is the custodian at that time, the crime is infidelity in the custody of prisoners. :ut if the offender is not the custodian of the prisoner at that time, even though he is a public officer, the crime he committed is delivering prisoners from jail. Aiability of the prisoner or detainee who escaped + .hen these crimes are committed, whether infidelity in the custody of prisoners or delivering prisoners from jail, the prisoner so escaping may also have criminal liability and this is so if the prisoner is a convict serving sentence by final judgment. The crime of evasion of service of sentence is committed by the prisoner who escapes if such prisoner is a convict serving sentence by final judgment. &f the prisoner who escapes is only a detention prisoner, he does not incur liability from escaping if he does not 4now of the

-enalty o arresto mayor in its ma4imum period to prision correccional in its minimum

REVISED ORTEGA LECTURE NOTES

ON

CRIMINAL LAW

14!

plan to remove him from jail. :ut if such prisoner 4nows of the plot to remove him from jail and cooperates therein by escaping, he himself becomes liable for delivering prisoners from jail as a principal by indispensable cooperation. &f three persons are involved + a stranger, the custodian and the prisoner + three crimes are committed' #(% #"% #6% &nfidelity in the custody of prisoners< @elivery of the prisoner from jail< and )vasion of service of sentence. E0asio o( Ser0ice o(

#"%

2ailure to return within *1 hours after having left the penal establishment because of a calamity, conflagration or mutiny and such calamity, conflagration or mutiny has been announced as already passed under !rticle ($1< 7iolating the condition of conditional pardon under !rticle ($8.

#6%

Article 1!). Se te ce "lements

&n leaving or escaping from jail or prison, that the prisoner immediately returned is immaterial. &t is enough that he left the penal establishment by escaping therefrom. His voluntary return may only be mitigating, being analogous to voluntary surrender. :ut the same will not absolve his criminal liability. Article 1!/. E0asio o( Ser0ice o( Se te ce o t,e Occasio o( Disor$ers@ Co (la*ratio s@ Eart,B.a=es@ or Ot,er Cala&ities "lements

1. . ender is a con&ict 0y inal @udgment; 2. 5e is ser&ing sentence $#ic# consists in


t#e depri&ation o li0erty;

3. 5e e&ades ser&ice o #is sentence 0y


escaping during t#e term o imprisonment. #is

1.

. ender is a con&ict 0y inal @udgment1 $#o is con ined in a penal institution; T#ere is disorder1 resulting rom / a. 0. c. d. con lagration; eart#3ua6e; e4plosion; or similar catastrop#e; or mutiny in $#ic# #e #as not participated;

Duali ying circumstances as to penalty imposed % suc# e&asion or escape ta6es place / 1. 7y means o unla$ ul entry (t#is s#ould 0e H0y scalingI > 2eyes); 7y 0rea6ing doors1 $indo$s1 gates1 $alls1 roo s or loors; 7y using pic6loc61 alse 6eys1 disguise1 deceit1 &iolence or intimidation; or T#roug# conni&ance $it# ot#er con&icts or employees o t#e penal institution.

2.

2. 3.

e. 3.

4.

5e e&ades t#e ser&ice o #is sentence 0y lea&ing t#e penal institution $#ere #e is con ined1 on t#e occasion o suc# disorder or during t#e mutiny; 5e ails to gi&e #imsel up to t#e aut#orities $it#in 4' #ours ollo$ing t#e issuance o a proclamation 0y t#e C#ie "4ecuti&e announcing t#e passing a$ay o suc# calamity.

4.

)vasion of service of sentence has three forms' #(% :y simply leaving or escaping from the penal establishment under !rticle ($?<

REVISED ORTEGA LECTURE NOTES

ON

CRIMINAL LAW

147

The leaving from the penal establishment is not the basis of criminal liability. &t is the failure to return within *1 hours after the passing of the calamity, conflagration or mutiny had been announced. =nder !rticle ($1, those who return within *1 hours are given credit or deduction from the remaining period of their sentence e9uivalent to (J$ of the original term of the sentence. :ut if the prisoner fails to return within said *1 hours, an added penalty, also (J$, shall be imposed but the (J$ penalty is based on the remaining period of the sentence, not on the original sentence. &n no case shall that penalty exceed six months. Those who did not leave the penal establishment are not entitled to the (J$ credit. >nly those who left and returned within the *1 hour period. The mutiny referred to in the second form of evasion of service of sentence does not include riot. The mutiny referred to here involves subordinate personnel rising against the supervisor within the penal establishment. >ne who escapes during a riot will be subject to !rticle ($?, that is, simply leaving or escaping the penal establishment. 0utiny is one of the causes which may authori3e a convict serving sentence in the penitentiary to leave the jail provided he has not ta4en part in the mutiny. The crime of evasion of service of sentence may be committed even if the sentence is destierro, and this is committed if the convict sentenced to destierro will enter the prohibited places or come within the prohibited radius of "$ 4ilometers to such places as stated in the judgment. &f the sentence violated is destierro, the penalty upon the convict is to be served by way of destierro also, not imprisonment. This is so because the penalty for the evasion can not be more severe than the penalty evaded.

Article 1!1. Ot,er Cases o( E0asio Ser0ice o( Se te ce

o(

"lements o &iolation o conditional pardon 1. 2. 3. . ender $as a con&ict; 5e $as granted pardon 0y t#e C#ie "4ecuti&e; 5e &iolated any o t#e conditions o suc# pardon.

&n violation of conditional pardon, as a rule, the violation will amount to this crime only if the condition is violated during the remaining period of the sentence. !s a rule, if the condition of the pardon is violated when the remaining unserved portion of the sentence has already lapsed, there will be no more criminal liability for the violation. However, the convict maybe re9uired to serve the unserved portion of the sentence, that is, continue serving original penalty. The administrative liability of the convict under the conditional pardon is different and has nothing to do with his criminal liability for the evasion of service of sentence in the event that the condition of the pardon has been violated. )xception' where the violation of the condition of the pardon will constitute evasion of service of sentence, even though committed beyond the remaining period of the sentence. This is when the conditional pardon expressly so provides or the language of the conditional pardon clearly shows the intention to ma4e the condition perpetual even beyond the unserved portion of the sentence. &n such case, the convict may be re9uired to serve the unserved portion of the sentence even though the violation has ta4en place when the sentence has already lapsed. &n order that the conditional pardon may be violated, it is conditional that the pardonee received the conditional pardon. &f he is released without conformity to the conditional pardon, he will not be liable for the crime of evasion of service of sentence.

REVISED ORTEGA LECTURE NOTES

ON

CRIMINAL LAW

14'

6.estio 7 A s+er %s t#e &iolation o conditional pardon a su0stanti&e o ense= =nder !rticle ($8, there are two situations provided' #(% There is a penalty of prision correccional minimum for the violation of the conditional pardon< There is no new penalty imposed for the violation of the conditional pardon. &nstead, the convict will be re9uired to serve the unserved portion of the sentence.

Crimes against pu0lic interest 1. Counter eiting t#e great seal o t#e ;o&ernment o t#e -#ilippines (Art. 1!1); 8sing orged signature or counter eiting seal or stamp (Art. 1!2); Ma6ing and importing and uttering alse coins (Art. 1!3); Mutilation o coins1 importation and uttering o mutilated coins (Art. 1!4); <elling o alse or mutilated coins1 $it#out conni&ance (Art. 1!5); +orging treasury or 0an6 notes or ot#er documents paya0le to 0earer1 importing and uttering o suc# alse or orged notes and documents (Art. 1!!); Counter eiting1 importing and uttering instruments not paya0le to 0earer (Art. 1!7); %llegal possession and use o orged treasury or 0an6 notes and ot#er instruments o credit (Art. 1!'); +alsi ication o legislati&e documents (Art. 17*); +alsi ication 0y pu0lic o icer1 employee or notary (Art. 171); +alsi ication 0y pri&ate indi&iduals and use o alsi ied documents (Art. 172); +alsi ication o $ireless1 ca0le1 telegrap# and telep#one messages and use o said alsi ied messages (Art. 173); +alse medical certi icates1 alse certi icates o merit or ser&ice (Art. 174); 8sing alse certi icates (Art. 175); Manu acturing and possession o instruments or implements or alsi ication (Art. 17!); 8surpation o aut#ority or o icial unctions (Art. 177);

2.

3. 4. 5. !.

#"%

&f the remitted portion of the sentence is less than six years or up to six years, there is an added penalty of prision correccional minimum for the violation of the conditional pardon< hence, the violation is a substantive offense if the remitted portion of the sentence does not exceed six years because in this case a new penalty is imposed for the violation of the conditional pardon. :ut if the remitted portion of the sentence exceeds six years, the violation of the conditional pardon is not a substantive offense because no new penalty is imposed for the violation. &n other words, you have to 9ualify your answer. The 5upreme Court, however, has ruled in the case of An%ele+ v. ,o+e that this is not a substantive offense. This has been highly critici3ed. Article 1'4. Co&&issio o( A ot,er Cri&e D.ri * Ser0ice o( %e alt# I&"ose$ (or A ot,er %re0io.s O((e se "lements 1. 2. . ender $as already con&icted 0y inal @udgment o one o ense; 5e committed a ne$ elony 0e ore 0eginning to ser&e suc# sentence or $#ile ser&ing t#e same. CRIMES AGAINST %UALIC

7.

'.

). 1*. 11.

12.

13.

14. 15.

TITLE I2. INTEREST

1!.

REVISED ORTEGA LECTURE NOTES

ON

CRIMINAL LAW

14)

1. 17. 1'. 1). 2*. 21. 22. 23. 24. 25. 2!. 8sing ictitious name and concealing true name (Art. 17'); 2. %llegal use o uni orms or insignia (Art. 17)); 3. +alse testimony against a de endant (Art. 1'*); +alse testimony a&ora0le to t#e de endant (Art. 1'1); +alse testimony in ci&il cases (Art. 1'2); +alse testimony in ot#er cases and per@ury (Art. 1'3); . ering alse testimony in e&idence (Art. 1'4); Mac#inations in pu0lic auction (Art. 1'5); Monopolies and com0inations in restraint o trade (Art. 1'!); %mportation and disposition o alsely mar6ed articles or merc#andise made o gold1 sil&er1 or ot#er precious metals or t#eir alloys (Art. 1'7); <u0stituting and altering trade mar6s and trade names or ser&ice mar6s (Art. 1''); 8n air competition and raudulent registration o trade mar6 or trade name1 or ser&ice mar6; raudulent designation o origin1 and alse description (Art. 1')). 2. 3.

+orging t#e great seal o ;o&ernment o t#e -#ilippines; +orging t#e -resident; signature o

t#e t#e

+orging t#e stamp o t#e -resident.

Article 1'3. Usi * For*e$ Si* at.re or Co. ter(eit Seal or Sta&" "lements 1. T#e great seal o t#e 2epu0lic $as counter eited or t#e signature or stamp o t#e C#ie "4ecuti&e $as orged 0y anot#er person; . ender 6ne$ o t#e counter eiting or orgery; 5e used t#e counter eit seal or orged signature or stamp.

. ender under t#is article s#ould not 0e t#e orger. Article 1'8. Ma=i * a $ I&"orti * a $ Utteri * False Coi s "lements 1. 2. T#ere 0e coins; alse or counter eited

27.

2'.

. ender eit#er made1 imported or uttered suc# coins; %n case o uttering suc# alse or counter eited coins1 #e conni&ed $it# t#e counter eiters or importers.

3.

The crimes in this title are in the nature of fraud or falsity to the public. The essence of the crime under this title is that which defraud the public in general. There is deceit perpetrated upon the public. This is the act that is being punished under this title. Article 1'1. Co. ter(eiti * t,e Great Seal o( t,e Go0er &e t o( t,e %,ili""i e Isla $s@ For*i * t,e Si* at.re or Sta&" o( t,e C,ie( E?ec.ti0e Acts punis#ed

Jinds o coins t#e counter eiting o $#ic# is punis#ed 1. <il&er coins o t#e -#ilippines or coins o t#e Central 7an6 o t#e -#ilippines; Coins o t#e minor coinage o t#e -#ilippines or o t#e Central 7an6 o t#e -#ilippines; Coin o t#e currency o a oreign country.

2.

3.

Article 1'4. M.tilatio o( Coi s

REVISED ORTEGA LECTURE NOTES

ON

CRIMINAL LAW

15*

Acts punis#ed 1. Mutilating coins o t#e legal currency1 $it# t#e urt#er re3uirements t#at t#ere 0e intent to damage or to de raud anot#er; %mporting or uttering suc# mutilated coins1 $it# t#e urt#er re3uirement t#at t#ere must 0e conni&ances $it# t#e mutilator or importer in case o uttering.

2.

counterfeiting more or less no longer discernible or no longer noticeable, they could ma4e use of their ingenuity to counterfeit coins of legal tender. 2rom that time on, the government shall have difficulty determining which coins are counterfeited and those which are not. &t may happen that the counterfeited coins may loo4 better than the real ones. 5o, counterfeiting is penali3ed right at the very start whether the coin is legal tender or otherwise.

The first acts of falsification or falsity are + #(% #"% Counterfeiting + refers to money or currency< 2orgery + refers to instruments of credit and obligations and securities issued by the Philippine government or any ban4ing institution authori3ed by the Philippine government to issue the same< 2alsification + can only be committed in respect of documents.

6.estio 7 A s+er K #as in #is possession a coin $#ic# $as legal tender at t#e time o Magellan and is considered a collectorEs item. 5e manu actured se&eral pieces o t#at coin. %s t#e crime committed= Bes. &t is not necessary that the coin be of legal tender. The provision punishing counterfeiting does not re9uire that the money be of legal tender and the law punishes this even if the coin concerned is not of legal tender in order to discourage people from practicing their ingenuity of imitating money. &f it were otherwise, people may at the beginning try their ingenuity in imitating money not of legal tender and once they ac9uire expertise, they may then counterfeit money of legal tender. #"% 0utilation of coins This refers to the deliberate act of diminishing the proper metal contents of the coin either by scraping, scratching or filling the edges of the coin and the offender gathers the metal dust that has been scraped from the coin.

#6%

&n so far as coins in circulation are concerned, there are two crimes that may be committed' #(% Counterfeiting coins This is the crime of rema4ing or manufacturing without any authority to do so.

&n the crime of counterfeiting, the law is not concerned with the fraud upon the public such that even though the coin is no longer legal tender, the act of imitating or manufacturing the coin of the government is penali3ed. &n punishing the crime of counterfeiting, the law wants to prevent people from trying their ingenuity in their imitation of the manufacture of money. &t is not necessary that the coin #(% counterfeited be legal tender. 5o that even if the coin counterfeited is of vintage, the crime of counterfeiting is committed. The reason is to bar the counterfeiter from perfecting his craft of counterfeiting. The law punishes the act in order to discourage people from ever attempting to gain expertise in gaining money. This is because if people could counterfeit money with impunity just because it is no longer legal tender, people would try to counterfeit non legal tender coins. 5oon, if they develop the expertise to ma4e the

Re9uisites of mutilation under the Revised Penal Code #(% #"% Coin mutilated is of legal tender< >ffender gains from the precious metal dust abstracted from the coin< and &t has to be a coin.

#6%

0utilation is being regarded as a crime because the coin, being of legal tender, it is still in circulation and which would necessarily prejudice other people who may come across the coin. 2or example, C mutilated a P ".;; coin, the octagonal one,

REVISED ORTEGA LECTURE NOTES

ON

CRIMINAL LAW

151

by converting it into a round one and extracting (J(; of the precious metal dust from it. The coin here is no longer P".;; but only P (.1;, therefore, prejudice to the public has resulted. There is no expertise involved here. &n mutilation of coins under the Revised Penal Code, the offender does nothing but to scrape, pile or cut the coin and collect the dust and, thus, diminishing the intrinsic value of the coin. 0utilation of coins is a crime only if the coin mutilated is legal tender. &f the coin whose metal content has been depreciated through scraping, scratching, or filing the coin and the offender collecting the precious metal dust, even if he would use the coin after its intrinsic value had been reduced, nobody will accept the same. &f it is not legal tender anymore, no one will accept it, so nobody will be defrauded. :ut if the coin is of legal tender, and the offender minimi3es or decreases the precious metal dust content of the coin, the crime of mutilation is committed. &n the example, if the offender has collected (J(; of the P ".;; coin, the coin is actually worth only P (.1;. He is paying only P(.1; in effect defrauding the seller of P .";. Punishment for mutilation is brought about by the fact that the intrinsic value of the coin is reduced. The offender must deliberately reduce the precious metal in the coin. @eliberate intent arises only when the offender collects the precious metal dust from the mutilated coin. &f the offender does not collect such dust, intent to mutilate is absent, but Presidential @ecree ,o. "*? will apply. %resi$e tial Decree No. 34) :De(ace&e t@ M.tilatio @ Teari *@ A.r i * or Destro#i * Ce tral Aa = Notes a $ Coi s> %t s#all 0e unla$ ul or any person to $ill ully de ace1 mutilate1 tear1 0urn1 or destroy in any manner $#atsoe&er1 currency notes and coins issued 0y t#e Central 7an6. 0utilation under the Revised Penal Code is true only to coins. &t cannot be a crime under the Revised Penal Code to mutilate paper bills because the idea of mutilation under the code is collecting the precious metal dust. However, under Presidential

@ecree ,o. "*?, mutilation is not limited to coins.

6.estio s 7 A s+ers 1. T#e people playing cara y cru:1 0e ore t#ey t#ro$ t#e coin in t#e air $ould ru0 t#e money to t#e side$al6 t#ere0y diminis#ing t#e intrinsic &alue o t#e coin. %s t#e crime o mutilation committed= 0utilation, under the Revised Penal Code, is not committed because they do not collect the precious metal content that is being scraped from the coin. However, this will amount to violation of Presidential @ecree ,o. "*?. 2. A#en t#e image o Fose 2i:al on a i&e>peso 0ill is trans ormed into t#at o 2andy <antiago1 is t#ere a &iolation o -residential 9ecree Co. 247= Bes. Presidential @ecree ,o. "*? is violated by such act. 3. <ometime 0e ore martial la$ $as imposed1 t#e people lost con idence in 0an6s t#at t#ey pre erred #oarding t#eir money t#an depositing it in 0an6s. +ormer -resident +erdinand Marcos declared upon declaration o martial la$ t#at all 0ills $it#out t#e 7agong Bipunan sign on t#em $ill no longer 0e recogni:ed. 7ecause o t#is1 t#e people #ad no c#oice 0ut to surrender t#eir money to 0an6s and e4c#ange t#em $it# t#ose $it# t#e 7agong Bipunan sign on t#em. 5o$e&er1 people $#o came up $it# a lot o money $ere also 0eing c#arged $it# #oarding or $#ic# reason certain printing presses did t#e stamping o t#e 7agong Bipunan sign t#emsel&es to a&oid prosecution. Aas t#ere a &iolation o -residential 9ecree Co. 247= Bes. This act of the printing presses is a violation of Presidential @ecree ,o. "*?. 4. An old $oman $#o $as a cigarette &endor in Duiapo re used to accept one>centa&o coins or payment o t#e &endee o cigarettes #e purc#ased. T#en came t#e police $#o ad&ised #er t#at s#e #as no rig#t to re use since t#e coins are o legal tender. .n t#is1 t#e old $oman accepted in #er #ands t#e one>centa&o coins and t#en t#re$ it to t#e ace o t#e &endee and t#e police. Aas t#e old $oman

REVISED ORTEGA LECTURE NOTES

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152

guilty o &iolating -residential 9ecree Co. 247= 5he was guilty of violating Presidential @ecree ,o. "*? because if no one ever pic4s up the coins, her act would result in the diminution of the coin in circulation. 5. A certain customer in a restaurant $anted to s#o$ o and used a 2*.** 0ill to lig#t #is cigarette. Aas #e guilty o &iolating -residential 9ecree Co. 247= He was guilty of arrested for violating of Presidential @ecree ,o. "*?. !nyone who is in possession of defaced money is the one who is the violator of Presidential @ecree ,o. "*?. The intention of Presidential @ecree ,o. "*? is not to punish the act of defrauding the public but what is being punished is the act of destruction of money issued by the Central :an4 of the Philippines. ,ote that persons ma4ing bracelets out of some coins violate Presidential @ecree ,o. "*?. The primary purpose of Presidential @ecree ,o. "*? at the time it was ordained was to stop the practice of people writing at the bac4 or on the edges of the paper bills, such as Kwanted' pen palK. 5o, if the act of mutilating coins does not involve gathering dust li4e playing cara y cru3, that is not mutilation under the Revised Penal Code because the offender does not collect the metal dust. :ut by rubbing the coins on the sidewal4, he also defaces and destroys the coin and that is punishable under Presidential @ecree ,o. "*?. Article 1'!. Selli * o( False or M.tilate$ Coi @ +it,o.t Co i0a ce Acts punis#ed 1. -ossession o coin1 counter eited or mutilated 0y anot#er person1 $it# intent to utter t#e same1 6no$ing t#at it is alse or mutilated; "lements

2. 3.
2.

Ait# intent to utter; and Jno$ledge.

Actually uttering suc# alse or mutilated coin1 6no$ing t#e same to 0e alse or mutilated. "lements

1. 2.

Actually uttering; and Jno$ledge.

Article 1''. For*i * Treas.r# or Aa = Notes or Ot,er Doc.&e ts %a#a9le to AearerC I&"orti * a $ Utteri * S.c, False or For*e$ Notes a $ Doc.&e ts Acts punis#ed 1. +orging or alsi ication o treasury or 0an6 notes or ot#er documents paya0le to 0earer; %mportation o suc# alse or orged o0ligations or notes; 8ttering o suc# alse or orged o0ligations or notes in conni&ance $it# t#e orgers or importers.

2. 3.

Article 1'). Co. ter(eiti *@ I&"orti *@ a $ Utteri * I str.&e ts Not %a#a9le to Aearer "lements

1. T#ere is an instrument paya0le to order


or ot#er documents o credit not paya0le to 0earer;

2. . ender eit#er

orged1 imported or uttered suc# instrument; orger or importer.

3. %n case o uttering1 #e conni&ed $it# t#e


Article 1'/. Ille*al %ossessio a $ Use o( False Treas.r# or Aa = Notes a $ Ot,er I str.&e ts o( Cre$it "lements 1. Any treasury or 0an6 note or certi icate or ot#er o0ligation and security paya0le to 0earer1 or any instrument paya0le to order or ot#er document o credit not paya0le to

1.

-ossession;

REVISED ORTEGA LECTURE NOTES

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153

0earer is orged or anot#er person; 2. 3.

alsi ied 0y

1. %nstead o t#e peso sign (-)1 some0ody replaced it $it# a dollar sign (L). Aas t#e crime o orgery committed= ,o. 2orgery was not committed. The forged instrument and currency note must be given the appearance of a true and genuine document. The crime committed is a violation of Presidential @ecree ,o. "*?. .here the currency note, obligation or security has been changed to ma4e it appear as one which it purports to be as genuine, the crime is forgery. &n chec4s or commercial documents, this crime is committed when the figures or words are changed which materially alters the document. 2. An old man1 in #is desire to earn somet#ing1 scraped a digit in a losing s$eepsta6es tic6et1 cut out a digit rom anot#er tic6et and pasted it t#ere to matc# t#e series o digits corresponding to t#e $inning s$eepsta6es tic6et. 5e presented t#is tic6et to t#e -#ilippine C#arity <$eepsta6es . ice. 7ut t#e alteration is so crude t#at e&en a c#ild can notice t#at t#e supposed digit is merely superimposed on t#e digit t#at $as scraped. Aas t#e old man guilty o orgery= :ecause of the impossibility of deceiving whoever would be the person to whom that tic4et is presented, the 5upreme Court ruled that what was committed was an impossible crime. ,ote, however, that the decision has been critici3ed. &n a case li4e this, the 5upreme Court of 5pain ruled that the crime is frustrated. .here the alteration is such that nobody would be deceived, one could easily see that it is a forgery, the crime is frustrated because he has done all the acts of execution which would bring about the felonious conse9uence but nevertheless did not result in a consummation for reasons independent of his will. 3. A person #as a t$enty>peso 0ill. 5e applied toot#ac#e drops on one side o t#e 0ill. 5e #as a mimeograp# paper similar in te4ture to t#at o t#e currency note and placed it on top o t#e t$enty>peso 0ill and put some $eig#t on top o t#e paper. A ter sometime1 #e remo&ed it and t#e printing on t#e t$enty>peso 0ill $as reproduced on t#e mimeo paper. 5e too6 t#e re&erse side o t#e -2* 0ill1 applied toot#ac#e drops and re&ersed t#e mimeo paper and pressed it to t#e paper. A ter sometime1 #e remo&ed it and it $as reproduced. 5e cut it out1 scraped it a little

. ender 6no$s t#at any o t#ose instruments is orged or alsi ied; 5e eit#er / a. 0. uses any o suc# orged or alsi ied instruments; or possesses $it# intent to use any o suc# orged or alsi ied instruments.

5o$ orgery is committed under Article 1'1

1. 7y gi&ing to a treasury or 0an6 note or


any instrument paya0le to 0earer or to order mentioned t#erein1 t#e appearance o a true and genuine document; 2. 7y erasing1 su0stituting1 counter eiting1 or altering 0y any means t#e igures1 letters1 $ords1 or sign contained t#erein.

2orgery under the Revised Penal Code applies to papers, which are in the form of obligations and securities issued by the Philippine government as its own obligations, which is given the same status as legal tender. /enerally, the word EcounterfeitingF is not used when it comes to notes< what is used is Eforgery.F Counterfeiting refers to money, whether coins or bills. The Revised Penal Code defines forgery under !rticle (-8. ,otice that mere change on a document does not amount to this crime. The essence of forgery is giving a document the appearance of a true and genuine document. ,ot any alteration of a letter, number, figure or design would amount to forgery. !t most, it would only be frustrated forgery. .hen what is being counterfeited is obligation or securities, which under the Revised Penal Code is given a status of money or legal tender, the crime committed is forgery.

6.estio s 7 A s+ers

REVISED ORTEGA LECTURE NOTES

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154

and $ent to a sari>sari store trying to 0uy a cigarette $it# t#at 0ill. A#at #e o&erloo6ed $as t#at1 $#en #e placed t#e 0ill1 t#e printing $as in&erted. 5e $as appre#ended and $as prosecuted and con&icted o orgery. Aas t#e crime o orgery committed= The 5upreme Court ruled that it was only frustrated forgery because although the offender has performed all the acts of execution, it is not possible because by simply loo4ing at the forged document, it could be seen that it is not genuine. &t can only be a consummated forgery if the document which purports to be genuine is given the appearance of a true and genuine document. >therwise, it is at most frustrated. Article 1)4. Doc.&e ts "lements 1. T#ere is a 0ill1 resolution or ordinance enacted or appro&ed or pending appro&al 0y eit#er 5ouse o t#e Begislature or any pro&incial 0oard or municipal council; . ender alters t#e same; 5e #as no proper aut#ority t#ere or; T#e alteration #as c#anged t#e meaning o t#e documents. Falsi(icatio o( Le*islati0e

#"%

2alsification of a document by a public officer, employee or notary public< 2alsification of a public or official, or commercial documents by a private individual< 2alsification of a private document by any person< 2alsification of wireless, telegraph and telephone messages.

#6%

#*% #$%

@istinction between falsification and forgery' 2alsification is the commission of any of the eight acts mentioned in !rticle (?( on legislative #only the act of ma4ing alteration%, public or official, commercial, or private documents, or wireless, or telegraph messages. The term forgery as used in !rticle (-8 refers to the falsification and counterfeiting of treasury or ban4 notes or any instruments payable to bearer or to order. ,ote that forging and falsification are crimes under 2orgeries. Article 1)1. Falsi(icatio O((icer@ E&"lo#ee or Ecclesiastical Mi ister "lements 1. . ender is a pu0lic employee1 or notary pu0lic; o icer1 9# %.9lic Notar# or

2. 3. 4.

T#e $ords Gmunicipal councilG s#ould include t#e city council or municipal 0oard / 2eyes. The crime of falsification must involve a writing that is a document in the legal sense. The writing must be complete in itself and capable of extinguishing an obligation or creating rights or capable of becoming evidence of the facts stated therein. =ntil and unless the writing has attained this 9uality, it will not be considered as document in the legal sense and, therefore, the crime of falsification cannot be committed in respect thereto. 2ive classes of falsification'

2. 3.

5e ta6es ad&antage o #is o icial position; 5e alsi ies a document 0y committing any o t#e ollo$ing acts? a. Counter eiting or imitating any #and$riting1 signature or ru0ric; Causing it to appear t#at persons #a&e participated in any act or proceeding $#en t#ey did not in act so participate; Attri0uting to persons $#o #a&e participated in an act or proceeding statements ot#er t#an t#ose in act made 0y t#em;

0.

c. #(% 2alsification documents< of legislative

REVISED ORTEGA LECTURE NOTES

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155

d. e. .

Ma6ing untrut# ul statements in a narration o acts; Altering true dates; Ma6ing any alteration or intercalation in a genuine document $#ic# c#anges its meaning; %ssuing in an aut#enticated orm a document purporting to 0e a copy o an original document $#en no suc# original e4ists1 or including in suc# a copy a statement contrary to1 or di erent rom1 t#at o t#e genuine original; or %ntercalating any instrument or note relati&e to t#e issuance t#ereo in a protocol1 registry1 or o icial 0oo6.

6.estio s 7 A s+ers 1. A is one o t#ose selling residence certi icates in Duiapo. 5e $as 0roug#t to t#e police precincts on suspicion t#at t#e certi icates #e $as selling to t#e pu0lic proceed rom spurious sources and not rom t#e 7ureau o Treasury. 8pon &eri ication1 it $as ound out t#at t#e certi icates $ere indeed printed $it# a 0oo6let o supposed residence certi icates. A#at crime $as committed= Crime committed is violation of !rticle (?- #manufacturing and possession of instruments or implements for falsification%. ! cannot be charged of falsification because the boo4let of residence certificates found in his possession is not in the nature of EdocumentF in the legal sense. They are mere forms which are not to be completed to be a document in the legal sense. This is illegal possession with intent to use materials or apparatus which may be used in counterfeitingJforgery or falsification. 2. -u0lic o icers ound a tra ic &iolation receipts rom a certain person. T#e receipts $ere not issued 0y t#e Motor (e#icle . ice. +or $#at crime s#ould #e 0e prosecuted or= &t cannot be a crime of usurpation of official functions. &t may be the intention but no overt act was yet performed by him. He was not arrested while performing such overt act. He was apprehended only while he was standing on the street suspiciously. ,either can he be prosecuted for falsification because the document is not completed yet, there being no name of any erring driver. The document remains to be a mere form. &t not being completed yet, the document does not 9ualify as a document in the legal sense. 4. Can t#e $riting on t#e $all 0e considered a document= Bes. &t is capable of spea4ing of the facts stated therein. .riting may be on anything as long as it is a product of the handwriting, it is considered a document. 5. %n a case $#ere a la$yer tried to e4tract money rom a spinster 0y typing on a 0ond paper a su0poena or esta a. T#e spinster agreed to pay. T#e spinster $ent to t#e prosecutorEs o ice to

g.

#.

4.

%n case t#e o ender is an ecclesiastical minister $#o s#all commit any o t#e o enses enumerated1 $it# respect to any record or document o suc# c#aracter t#at its alsi ication may a ect t#e ci&il status o persons.

2or example, a customer in a hotel did not write his name on the registry boo4, which was intended to be a memorial of those who got in and out of that hotel. There is no complete document to spea4 of. The document may not extinguish or create rights but it can be an evidence of the facts stated therein. ,ote that a chec4 is not yet a document when it is not completed yet. &f somebody writes on it, he ma4es a document out of it. The document where a crime was committed or the document subject of the prosecution may be totally false in the sense that it is entirely spurious. This notwithstanding, the crime of falsification is committed. &t does not re9uire that the writing be genuine. )ven if the writing was through and through false, if it appears to be genuine, the crime of falsification is nevertheless committed.

REVISED ORTEGA LECTURE NOTES

ON

CRIMINAL LAW

15!

&eri y t#e e4act amount t#ere $as no c#arge la$yer $as prosecuted contended t#at only a could 0e alsi ied. 2ule.

and ound out t#at against #er. T#e or alsi ication. 5e genuine document

1.

. ender is a pri&ate indi&idual or pu0lic o icer or employee $#o did not ta6e ad&antage o #is o icial position;

!s long as any of the acts of falsification is committed, whether the document is genuine or not, the crime of falsification may be committed. )ven totally false documents may be falsified. There are four 4inds of documents' #(% Public document in the execution of which, a person in authority or notary public has ta4en part< >fficial document in the execution of which a public official ta4es part< Commercial document or any document recogni3ed by the Code of Commerce or any commercial law< and Private document in the execution of which only private individuals ta4e part.

2. 5e committed any act o alsi ication;


3. T#e alsi ication $as committed in a pu0lic1 o icial1 or commercial document or letter o e4c#ange.

"lements under paragrap# 2 1. . ender committed any o t#e acts o alsi ication e4cept Article 171(7)1 t#at is1 issuing in an aut#enticated orm a document purporting to 0e a copy o an original document $#en no suc# original e4ists1 or including in suc# a copy a statement contrary to1 or di erent rom1 t#at o t#e genuine original; 2. +alsi ication $as committed in any pri&ate document; 3. +alsi ication causes damage to a t#ird party or at least t#e alsi ication $as committed $it# intent to cause suc# damage. "lements under t#e last paragrap# %n introducing in a @udicial proceeding /

#"% #6%

#*%

Public document is broader than the term official document. :efore a document may be considered official, it must first be a public document. :ut not all public documents are official documents. To become an official document, there must be a law which re9uires a public officer to issue or to render such document. )xample' ! cashier is re9uired to issue an official receipt for the amount he receives. The official receipt is a public document which is an official document. Article 1)3. Falsi(icatio 9# %ri0ate I $i0i$.al a $ Use o( Falsi(ie$ Doc.&e ts Acts punis#ed 1. +alsi ication o pu0lic1 o icial or commercial document 0y a pri&ate indi&idual; +alsi ication o pri&ate document 0y any person; 8se o alsi ied document.

1. . ender 6ne$ t#at t#e document $as


alsi ied 0y anot#er person;

2. T#e alse document is in Articles 171 or


172 (1 or 2);

3. 5e

introduced said document in e&idence in any @udicial proceeding.

%n use in any ot#er transaction /

1. . ender 6ne$ t#at a document $as


alsi ied 0y anot#er person;

2. T#e alse document is em0raced in


Articles 171 or 172 (1 or 2);

2. 3.

3. 5e used suc# document; 4. T#e use caused damage to anot#er or


at least used $it# intent to cause damage.

"lements under paragrap# 1

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ON

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157

Article 1)8. Falsi(icatio o( Wireless@ Ca9le@ Tele*ra", a $ Tele",o e Messa*es@ a $ Use o( Sai$ Falsi(ie$ Messa*es Acts punis#ed 1. 8ttering ictitious $ireless1 telegrap# or telep#one message; "lements 11 . ender is an o icer or employee o t#e go&ernment or an o icer or employee o a pri&ate corporation1 engaged in t#e ser&ice o sending or recei&ing $ireless1 ca0le or telep#one message; 5e utters ictitious $ireless1 ca0le1 telegrap# or telep#one message. telegrap# or

least t#ere $as intent to cause suc# pre@udice. Article 1)4. False Me$ical Certi(icates@ False Certi(icates o( Merits or Ser0ice@ Etc. -ersons lia0le

1. -#ysician or surgeon $#o1 in connection


$it# t#e practice o #is pro ession1 issues a alse certi icate (it must re er to t#e illness or in@ury o a person); MT#e crime #ere is alse medical certi icate 0y a p#ysician.N

2. -u0lic o icer $#o issues a

2.

alse certi icate o merit o ser&ice1 good conduct or similar circumstances; MT#e crime #ere is alse certi icate o merit or ser&ice 0y a pu0lic o icer.N

2.

+alsi ying $ireless1 telep#one message; "lements 11

3. -ri&ate person $#o alsi ies a certi icate


alling $it#in t#e classes mentioned in t#e t$o preceding su0di&isions. Article 1)!. Usi * False Certi(icates "lements 1. T#e ollo$ing certi icate? a. issues a alse

. ender is an o icer or employee o t#e go&ernment or an o icer or employee o a pri&ate corporation1 engaged in t#e ser&ice o sending or recei&ing $ireless1 ca0le or telep#one message; 5e alsi ies $ireless1 ca0le1 telegrap# or telep#one message.

2.

3.

8sing suc# alsi ied message. "lements 1. . ender 6ne$ t#at $ireless1 ca0le1 telegrap#1 or telep#one message $as alsi ied 0y an o icer or employee o t#e go&ernment or an o icer or employee o a pri&ate corporation1 engaged in t#e ser&ice o sending or recei&ing $ireless1 ca0le or telep#one message; 5e used dispatc#; suc# alsi ied 2. 3.

-#ysician or surgeon1 in connection $it# t#e practice o #is pro ession1 issues a alse certi icate; 0. -u0lic o icer issues a alse certi icate o merit o ser&ice1 good conduct or similar circumstances; -ri&ate person alsi ies a certi icate alling $it#in t#e classes mentioned in t#e t$o preceding su0di&isions. t#e

c.

2. 3.

. ender 6no$s t#at certi icate $as alse; 5e uses t#e same.

T#e use resulted in t#e pre@udice o a t#ird party or at

REVISED ORTEGA LECTURE NOTES

ON

CRIMINAL LAW

15'

Article 1)'. Ma .(act.ri * %ossessio o( I str.&e ts I&"le&e ts (or Falsi(icatio Acts punis#ed

a $ or

"lements 1. 2. . ender uses a name ot#er t#an #is real name; 5e uses t#e ictitious name pu0licly; -urpose o use is to conceal a crime1 to e&ade t#e e4ecution o a @udgment or to cause damage Mto pu0lic interest / 2eyesN.

1.

Ma6ing or introducing into t#e -#ilippines any stamps1 dies1 mar6s1 or ot#er instruments or implements or counter eiting or alsi ication; -ossession $it# intent to use t#e instruments or implements or counter eiting or alsi ication made in or introduced into t#e -#ilippines 0y anot#er person. o( A.t,orit# or

3.

2.

2.

Concealing true name "lements

Article 1)). Us.r"atio O((icial F. ctio s Acts punis#ed

1.

. ender conceals #is true name and ot#er personal circumstances; -urpose is only to conceal #is identity.

2. 1. 8surpation o aut#ority; "lements 1. 2. . ender 6no$ingly and alsely represents #imsel ; As an o icer1 agent or representati&e o any department or agency o t#e -#ilippine go&ernment or o any oreign go&ernment.

Co&&o +ealt, Act No. 143 :Re*.lati * t,e Use o( Aliases> Co person s#all use any name di erent rom t#e one $it# $#ic# #e $as registered at 0irt# in t#e o ice o t#e local ci&il registry1 or $it# $#ic# #e $as registered in t#e 0ureau o immigration upon entry; or suc# su0stitute name as may #a&e 0een aut#ori:ed 0y a competent court. "4ception? -seudonym solely or literary1 cinema1 tele&ision1 radio1 or ot#er entertainment and in at#letic e&ents $#ere t#e use o pseudonym is a normally accepted practice.

2.

8surpation o o icial unctions. "lements 1. 2. . ender per orms any act; -ertaining to any person aut#ority or pu0lic o icer t#e -#ilippine go&ernment any oreign go&ernment1 any agency t#ereo ; 8nder pretense o position; Ait#out 0eing entitled to do so. in o or or

Article 1)1. I si* ia "lements

Ille*al Use o( U i(or&s or

3. 4.

o icial

1. . ender
la$ ully

ma6es use uni orms or dress;

insignia1

2. T#e insignia1 uni orms or dress pertains


to an o ice not #eld 0y suc# person or a class o persons o $#ic# #e is not a mem0er; 3. <aid insignia1 uni orm or dress is used pu0licly and improperly.

Article 1)/. Usi * Fictitio.s Na&e a $ Co ceali * Tr.e Na&e Acts punis#ed 1. 8sing ictitious name

REVISED ORTEGA LECTURE NOTES

ON

CRIMINAL LAW

15)

Aearing t#e uni orm o an imaginary o ice is not punis#a0le. <o also1 an e4act imitation o a uni orm or dress is unnecessary; a colora0le resem0lance calculated to decei&e t#e common run o people is su icient. Article 1/4. False Testi&o # a*ai st A De(e $a t "lements

4. . ender 6no$s t#at testimony is alse; 5. Testimony is malicious and gi&en $it# an intent to a ect t#e issues presented in said case. Article 1/8. False Testi&o # i Ot,er Cases a $ %erD.r# i Sole& A((ir&atio Acts punis#ed 1. 7y alsely testi ying under oat#; 7y ma6ing a alse a ida&it.

1. 2. 3. 4.

T#ere is a criminal proceeding; 2. . ender testi ies alsely under oat# against t#e de endant t#erein; "lements o per@ury . ender $#o gi&es alse testimony 6no$s t#at it is alse. 9e endant against $#om t#e alse testimony is gi&en is eit#er ac3uitted or con&icted in a inal @udgment. 1. . ender ma6es a statement under oat# or e4ecutes an a ida&it upon a material matter; 2. T#e statement or a ida&it is made 0e ore a competent o icer1 aut#ori:ed to recei&e and administer oat#s; 3. . ender ma6es a $ill ul and deli0erate assertion o a alse#ood in t#e statement or a ida&it; 4. T#e s$orn statement or a ida&it containing t#e alsity is re3uired 0y la$1 t#at is1 it is made or a legal purpose. Article 1/4. O((eri * False Testi&o # i E0i$e ce "lements 1. 2 . ender o ers in e&idence a alse $itness or testimony; 5e 6no$s t#at t#e $itness or t#e testimony $as alse; T#e o er is made in any @udicial or o icial proceeding. Mac,i atio s i %.9lic

T#ree orms o alse testimony 1. 2. 3. +alse testimony in criminal cases under Article 1'* and 1'1; +alse testimony in ci&il case under Article 1'2; +alse testimony in ot#er cases under Article 1'3.

Article 1/1. False Testi&o # Fa0ora9le to t,e De(e $a t "lements 1. 2. 3. A person gi&es alse testimony; %n a&or o t#e de endant; %n a criminal case.

3. Article 1/3. False Testi&o # i Cases "lements 1. Testimony gi&en in a ci&il case; Ci0il

Article 1/!. A.ctio s Acts punis#ed issues 1.

2. Testimony relates to t#e presented in said case; 3. Testimony is alse;

<oliciting any gi t or promise as a consideration or re raining rom ta6ing part in any pu0lic auction;

REVISED ORTEGA LECTURE NOTES

ON

CRIMINAL LAW

1!*

"lements 1. 2. T#ere is a pu0lic auction; . ender solicits any gi t or a promise rom any o t#e 0idders; <uc# gi t or promise is t#e consideration or #is re raining rom ta6ing part in t#at pu0lic auction; . ender #as t#e intent to cause t#e reduction o t#e price o t#e t#ing auctioned. 3.

"lements 1. 7y monopoli:ing any merc#andise or o0@ect o trade or commerce1 or 0y com0ining $it# any ot#er person or persons to monopoli:e said merc#andise or o0@ect; %n order to alter t#e prices t#ereo 0y spreading alse rumors or ma6ing use o any ot#er arti ice; To restrain ree competition in t#e mar6et

3.

2.

4.

3.

2.

Attempting to cause 0idders to stay a$ay rom an auction 0y t#reats1 gi ts1 promises or any ot#er arti ice. "lements 1. 2. T#ere is a pu0lic auction; . ender attempts to cause t#e 0idders to stay a$ay rom t#at pu0lic auction; %t is done 0y t#reats1 gi ts1 promises or any ot#er arti ice; . ender #as t#e intent to cause t#e reduction o t#e price o t#e t#ing auctioned. a $

Manu acturer1 producer1 or processor or importer com0ining1 conspiring or agreeing $it# any person to ma6e transactions pre@udicial to la$ ul commerce or to increase t#e mar6et price o merc#andise. "lements 1. Manu acturer1 producer1 processor or importer o any merc#andise or o0@ect o commerce; Com0ines1 conspires agrees $it# any person; or

3.

4.

2. 3.

Article 1/'. Mo o"olies Co&9i atio s i Restrai t o( Tra$e Acts punis#ed 1. Com0ination to pre&ent competition in t#e mar6et; "lements 1.

ree

-urpose is to ma6e transactions pre@udicial to la$ ul commerce or to increase t#e mar6et price o any merc#andi:e or o0@ect o commerce manu actured1 produced1 processed1 assem0led or imported into t#e -#ilippines.

"ntering into any contract agreement or ta6ing part any conspiracy com0ination in t#e orm o trust or ot#er$ise;

or in or a

Article 1/). I&"ortatio a $ Dis"ositio o( Falsel# Mar=e$ Articles or Merc,a $ise Ma$e o( Gol$@ Sil0er@ or Ot,er %recio.s Metals o( T,eir Allo#s "lements 1. . ender imports1 sells or disposes articles made o gold1 sil&er1 or ot#er precious metals or t#eir alloys; T#e stamps1 0rands1 or mar6s o t#ose articles o merc#andise ail to indicate t#e actual ineness or 3uality o said metals or alloys;

2.

%n restraint o trade or commerce or to pre&ent 0y arti icial means ree competition in t#e mar6et. ree

2. 2. Monopoly to restrain competition in t#e mar6et;

REVISED ORTEGA LECTURE NOTES

ON

CRIMINAL LAW

1!1

3. 3. . ender 6no$s t#at t#e stamps1 0rands1 or mar6s ail to indicate t#e actual ineness or 3uality o t#e metals or alloys.

T#e general appearance is s#o$n in t#e goods t#emsel&es1 or in t#e $rapping o t#eir pac6ages1 or in t#e de&ice or $ords t#erein1 or in any eature o t#eir appearance; T#ere is actual intent to decei&e t#e pu0lic or de raud a competitor. origin;

Article 1//. S.9stit.ti * a $ Alteri * Tra$e&ar=s@ Tra$e a&es@ or Ser0ice Mar=s Acts punis#ed 2. 1. <u0stituting t#e trade name or trademar6 o some ot#er manu acturer or dealer1 or a colora0le imitation t#ereo or t#e trade name or trademar6 o t#e real manu acturer or dealer upon any article o commerce and selling t#e same; <elling or o ering or sale suc# articles o commerce 6no$ing t#at t#e trade name or trademar6 #as 0een raudulently used; 8sing or su0stituting t#e ser&ice mar6 o some ot#er person1 or a colora0le imitation o suc# mar6 n t#e sale or ad&ertising o #is ser&ices; -rinting1 lit#ograp#ing or reproducing trade name1 trademar61 or ser&ice mar6 o one person or a colora0le imitation t#ereo to ena0le anot#er person to raudulently use t#e same 6no$ing t#e raudulent purpose or $#ic# it is to 0e used. 3.

4.

+raudulent designation o alse description? "lements 1.

2.

7y a i4ing to #is goods or using in connection $it# #is ser&ices a alse designation o origin1 or any alse description or representation; and <elling suc# ser&ices. goods or

2.

3.

+raudulent registration "lements 1. 2. 7y procuring raudulently rom t#e patent o ice; T#e registration o trade name1 trademar6 or ser&ice mar6

4.

Article 1/1. U (air Co&"etitio @ Fra.$.le t Re*istratio o( Tra$e Na&e@ Tra$e&ar=@ or Ser0ice Mar=@ Fra.$.le t Desi* atio o( Ori*i @ a $ False Descri"tio Acts punis#ed 1. 8n air competition; "lements 1. 2. 7y selling #is goods; ;i&ing t#em t#e general appearance o t#e goods o anot#er manu acturer or dealer;

Re".9lic Act No. /318 :A Act %rescri9i * t,e I tellect.al %ro"ert# Co$e a $ Esta9lis,i * t,e I tellect.al %ro"ert# O((ice@ %ro0i$i * (or Its %o+er a $ F. ctio s@ a $ (or Ot,er %.r"oses> Sectio 1)4. Penalties. / %ndependent o t#e ci&il and administrati&e sanctions imposed 0y la$1 a criminal penalty o imprisonment rom t$o (2) years to i&e (5) years and a ine ranging rom +i ty t#ousand pesos (- 5*1***.**) to T$o #undred t#ousand pesos (- 2**1***.**)1 s#all 0e imposed on any person $#o is ound guilty o committing any o t#e acts mentioned in <ection 1551 <ection 1!' and <u0section 1!).1. Sectio 1!!. Remedies< &nfringement. / Any person $#o s#all1 $it#out t#e consent o t#e o$ner o t#e registered mar6?

REVISED ORTEGA LECTURE NOTES

ON

CRIMINAL LAW

1!2

155.1. 8se in commerce any reproduction1 counter eit1 copy1 or colora0le imitation o a registered mar6 or t#e same container or a dominant eature t#ereo in connection $it# t#e sale1 o ering or sale1 distri0ution1 ad&ertising o any goods or ser&ices including ot#er preparatory steps necessary to carry out t#e sale o any goods or ser&ices on or in connection $it# $#ic# suc# use is li6ely to course con usion1 or to cause mista6e1 or to decei&e; or 155.2. 2eproduce1 counter eit1 copy or colora0ly imitate a registered mar6 or a dominant eature t#ereo and apply suc# reproduction1 counter eit1 copy or colora0le imitation to la0els1 signs1 prints1 pac6ages1 $rappers1 receptacles or ad&ertisement intended to 0e used in commerce upon or in connection $it# t#e sale1 o ering or sale1 distri0ution1 or ad&ertising o goods or ser&ices on or in connection $it# $#ic# suc# use is li6ely to cause con usion1 or to cause mista6e1 or to decei&e s#all 0e lia0le in a ci&il action or in ringement 0y t#e registrant or t#e remedies #ereina ter set ort#? Provided, t#at t#e in ringement ta6es place at t#e moment any o t#e acts stated in <u0section 155.1 or t#is su0section are committed regardless o $#et#er t#ere is actual sale o goods or ser&ices using t#e in ringing material. Sectio 1'/. =nfair Competition, Rights, Regulation and Remedies. 1!'.1. Any person $#o #as identi ied in t#e mind o t#e pu0lic t#e goods #e manu actures or deals in1 #is 0usiness or ser&ices rom t#ose o ot#ers1 $#et#er or not a registered mar6 is employed1 #as a property rig#t in t#e good$ill o t#e said goods1 0usiness or ser&ice so identi ied1 $#ic# $ill 0e protected in t#e same manner as ot#er property rig#ts. 1!'.2. Any person $#o s#all employ deception or any ot#er means contrary to good ait# 0y $#ic# #e s#all pass o t#e goods manu actured 0y #im or in $#ic# #e deals1 or #is 0usiness1 or ser&ices or t#ose o t#e one #a&ing esta0lis#ed suc# good$ill1 or $#o s#all commit any acts calculated to produce said result1 s#all 0e guilty o un air competition1 and s#all 0e su0@ect to an action t#ere or. 1!'.3. %n particular1 and $it#out in any $ay limiting t#e scope o protection against un air competition1 t#e ollo$ing s#all 0e deemed guilty o un air competition?

(a) Any person1 $#o is selling #is goods and gi&es t#em t#e general appearance o goods o anot#er manu acturer or dealer1 eit#er as to t#e goods t#emsel&es or in t#e $rapping o t#e pac6ages in $#ic# t#ey are contained1 or t#e de&ices or $ords t#ereon1 on in any ot#er eature or t#eir appearance1 $#ic# $ould 0e li6ely to in luence purc#asers to 0elie&e t#at t#e goods o ered are t#ose o a manu acturer or dealer1 ot#er t#an t#e actual manu acturer or dealer1 or $#o ot#er$ise clot#es t#e goods $it# suc# appearance as s#all decei&e t#e pu0lic and de raud anot#er o #is legitimate trade1 or any su0se3uent &endor o suc# goods or any agent o any &endor engaged in selling suc# goods $it# a li6e purpose; or (0) Any person $#o 0y any arti ice1 or de&ice1 or $#o employs any ot#er means calculated to induce t#e alse 0elie t#at suc# person is o ering t#e ser&ices o anot#er $#o a#s identi ied suc# ser&ices in t#e mind o t#e pu0lic; or (c) Any person $#o s#all ma6e any alse statement in t#e course o trade or $#o s#all commit any ot#er act contrary to good ait# o a nature calculated to discredit t#e goods1 0usiness or ser&ices o anot#er. 1!'.4. T#e remedies pro&ided 0y <ection 15!1 157 and 1!1 s#all apply mutatis mutandis. Sectio 1'1. 2alse @esignation or >rigin< 2alse @escription or Representation. 1!).1. Any person $#o1 on or in connection $it# any goods or ser&ices1 or any container or goods1 uses in commerce any $ord1 term1 name1 sym0ol1 or de&ice1 or any com0ination t#ereo 1 or any alse designation o origin1 alse or misleading description o act1 or alse or misleading representation o act1 $#ic#? (a) %s li6ely to cause con usion1 or to cause mista6e1 or to decei&e as to t#e a iliation1 connection1 or association o suc# person $it# anot#er person1 or as to t#e origin1 sponsors#ip1 or appro&al o #is or #er goods1 ser&ices1 or commercial acti&ities 0y anot#er person; or (0) %n commercial ad&ertising or promotion1 misrepresents t#e nature1 c#aracteristics1 3ualities1 or geograp#ic origin o #is or #er or anot#er person,s goods1 ser&ices or commercial acti&ities1 s#all 0e lia0le to a ci&il action or damages

REVISED ORTEGA LECTURE NOTES

ON

CRIMINAL LAW

1!3

and in@unction pro&ided in <ection 15! and 157 o t#is Act 0y any person $#o 0elie&es t#at #e or s#e is or li6ely to 0e damaged 0y suc# act. TITLE 2. CRIMES RELATI2E TO O%IUM AND OTHER %ROHIAITED DRUGS Articles 1)*1 1)11 1)21 1)3 and1)4 o t#e 2e&ised -enal Code #a&e 0een repealed 0y Re".9lic Act No. '43! :T,e Da *ero.s Dr.*s Act o( 11)3>@ as amended 0y -residential 9ecree Co. 1!'3 and urt#er amended 0y 2epu0lic Act Co. 7!5). Acts punis#ed 0y t#e 2epu0lic Act Co. !425

6eeping o records o prescriptions1 sales1 purc#ases1 ac3uisitions andOor deli&eries1 unla$ ul prescription1 unnecessary prescription o regulated drugs1 and maintenance o a den1 di&e or resort or regulated drug users. TITLE 2I. MORALS CRIMES AGAINST %UALIC

Crimes against pu0lic morals

1. ;am0ling (Art. 1)5); 2. %mportation1 sale and possession o


lottery tic6ets or ad&ertisements (Art. 1)!);

1. %mportation o pro#i0ited drugs; 2. <ale1


administration1 deli&ery1 distri0ution and transportation o pro#i0ited drugs; pro#i0ited drug users;

3. 7etting in sport contests (Art. 1)7); 4. %llegal 0etting on #orse races (Art. 1)'); 5. %llegal coc6 ig#ting (Art. 1))); !. ;ra&e scandal (Art. 2**);

3. Maintenance o a den1 di&e or resort or 4. 7eing


employees and pro#i0ited drug den; &isitors o

7. %mmoral doctrines1 o0scene pu0lications


and e4#i0itions (Art. 2*1); and

5. Manu acture o pro#i0ited drugs; !. -ossession or use o pro#i0ited drugs; 7. Culti&ation o plants $#ic# are sources
o pro#i0ited drugs;

'. (agrancy and prostitution (Art. 2*2).


Article 11!. W,at Acts Are %. is,a9le i Ga&9li * Acts punis#ed 1. Ta6ing part directly or indirectly in / a. any game o monte1 @ueteng1 or any ot#er orm o lottery1 policy1 0an6ing1 or percentage game1 dog races1 or any ot#er game or sc#eme t#e results o $#ic# depend $#olly or c#ie ly upon c#ance or #a:ard; or $#erein $agers consisting o money1 articles o &alue1 or representati&e o &alue are made; or t#e e4ploitation or use o any ot#er mec#anical in&ention or contri&ance to determine 0y c#ance t#e loser or $inner o money or any o0@ect or representati&e o &alue;

'. +ailure to comply $it# t#e pro&isions o


t#e Act relati&e to t#e 6eeping o records o prescriptions1 sales1 purc#ases1 ac3uisitions andOor deli&eries o pro#i0ited drugs;

). 8nla$ ul
drugs;

prescription

pro#i0ited o

1*. 11. 12.

8nnecessary prescription pro#i0ited drugs;

-ossession o opium pipe and ot#er parap#ernalia or pro#i0ited drugs; 8naut#ori:ed importation1 manu acture1 sale administration1 dispensation1 deli&ery1 transportation1 distri0ution1 possession or use o regulated drugs1 ailure to comply $it# t#e pro&isions o t#e Act relati&e to t#e 0.

REVISED ORTEGA LECTURE NOTES

ON

CRIMINAL LAW

1!4

2.

Jno$ingly permitting any orm o gam0ling to 0e carried on in any place o$ned or controlled 0y t#e o ender; 7eing maintainer1 conductor1 or 0an6er in a game o @ueteng or similar game; Jno$ingly and $it#out la$ ul purpose possessing lottery list1 paper1 or ot#er matter containing letters1 igures1 signs or sym0ol $#ic# pertain to or are in any manner used in t#e game o @ueteng or any similar game.

as may 0e aut#ori:ed 0y la$1 is #ere0y declared unla$ ul. Article 11/. Race Acts punis#ed Ille*al Aetti * o Horse

3.

4.

1. 7etting on #orse races during periods


not allo$ed 0y la$;

2. Maintaining or employing a totali:er or


ot#er de&ice or sc#eme or 0etting on races or reali:ing pro it t#ere rom during t#e periods not allo$ed 0y la$. A#en #orse races not allo$ed

Article 11'. I&"ortatio @ Sale a $ %ossessio o( Lotter# Tic=ets or A$0ertise&e ts Acts punis#ed

1. Fuly 4 (2epu0lic Act Co. 137); 2. 9ecem0er 3* (2epu0lic Act Co. 22)); 3. Any registration or &oting days (2epu0lic
Act Co. 1'*1 Code); and 2e&ised "lection +riday

1. %mporting into t#e -#ilippines rom any


oreign place or port any lottery tic6et or ad&ertisement; or

2. <elling or distri0uting t#e same in


conni&ance $it# t#e importer;

4. 5oly
or

3. -ossessing1 6no$ingly and $it# intent to


use t#em1 lottery ad&ertisements; or tic6ets

T#ursday and ;ood (2epu0lic Act Co. )4!).

Article 111. Ille*al Coc=(i*,ti * T#is article #as 0een modi ied or repealed 0y %resi$e tial Decree No. 441 :T,e Coc=(i*,ti * La+ o( 11)4>E .nly allo$s one coc6pit per municipality1 unless t#e population e4ceeds 1**1*** in $#ic# case t$o coc6pits may 0e esta0lis#ed; Coc6 ig#ts can only 0e #eld in licensed coc6pits on <undays and legal #olidays and local iestas or not more t#an t#ree days; Also allo$ed during pro&incial1 municipal1 city1 industrial1 agricultural airs1 carni&als1 or e4position not more t#an t#ree days; Coc6 ig#ting not allo$ed on 9ecem0er 3*1 Fune 121 Co&em0er 3*1 5oly T#ursday1 ;ood +riday1 "lection or 2e erendum 9ay1 and registration days or re erendums and elections;

4. <elling or distri0uting t#e same $it#out


conni&ance $it# t#e importer o t#e same. Cote t#at possession o any lottery tic6et or ad&ertisement is prima acie e&idence o an intent to sell1 distri0ute or use t#e same in t#e -#ilippines. Article 11). Aetti * i S"ort Co tests T#is article #as 0een repealed 0y %resi$e tial Decree No. 4/8 :Aetti *@ Ga&e;(i?i * or %oi t;s,a0i * a $ Mac,i atio s i S"ort Co tests>E Sectio 3. :etting, game fixing, point shaving or game machination unlawful. / ;ame> i4ing1 point>s#a&ing1 game mac#ination1 as de ined in t#e preceding section1 in connection $it# t#e games o 0as6et0all1 &olley0all1 so t0all1 0ase0all; c#ess1 0o4ing 0outs1 @ai>alia1 sipa1 pelota and all ot#er sports contests1 games or races; as $ell as 0etting t#erein e4cept

REVISED ORTEGA LECTURE NOTES

ON

CRIMINAL LAW

1!5

.nly municipal and city mayors are allo$ed to issue licenses or suc#.

maintainer1 conductor gam0ling sc#emes.

t#e

a0o&e

%resi$e tial Decree No. 1'43 :Si&"li(#i * a $ %ro0i$i * Sti((er %e alties (or 2iolatio s o( %,ili""i e Ga&9li * La+s> Sectio 1. 7iolations and Penalties. T#e penalty o prision mayor in its medium degree or a ine ranging rom +i&e 5undred -esos to T$o T#ousand -esos and in case o recidi&ism t#e penalty o prision correccional in its medium degree or a ine o ranging rom .ne T#ousand -esos to <i4 T#ousand -esos s#all 0e imposed upon? (a) Any person ot#er t#an t#ose re erred to in t#e succeeding su0section $#o in any manner1 s#all directly or indirectly ta6e part in any game o coc6 ig#ting1 @ueteng1 0oo6ies (@ai> alai or #orse racing to include game i4ing) and ot#er lotteries1 cara y cru: or pompiang and t#e li6e1 0lac6 @ac61 luc6y nine1 HpusoyI or 2ussian -o6er1 monte1 0accarat and ot#er card games1 pal6 3ue1 domino1 ma#@ong1 #ig# and lo$1 slot mac#ines1 roulette1 pin0all and ot#er mec#anical in&entories or de&ices1 dog racing1 0oat racing1 car raising and ot#er races1 0as6et0all1 &olley0all1 0o4ing1 se&en>ele&en dice games and t#e li6e and ot#er contests to include game i4ing1 point s#a&ing and ot#er mac#inations 0an6ing or percentage game1 or any ot#er game or sc#eme1 $#et#er upon c#ance or s6ill1 $#ic# do not #a&e a ranc#ise rom t#e national go&ernment1 $#erein $agers consisting o money1 articles o &alue o representati&e o &alue are made; (0) Any person $#o s#all 6no$ingly permit any orm o gam0ling re erred to in t#e preceding su0di&ision to 0e carried on in in#a0ited or unin#a0ited places or any 0uilding1 &essel or ot#er means o transportation o$ned or controlled 0y #im. % t#e place $#ere gam0ling is carried on #as a reputation o a gam0ling place or t#at pro#i0ited gam0ling is re3uently carried on t#erein or t#e place is a pu0lic or go&ernment 0uilding or 0arangay #all1 t#e culprit s#all 0e punis#ed 0y t#e penalty pro&ided or in its ma4imum period and a ine o <i4 T#ousand -esos. T#e penalty o prision correccional in its ma4imum degree and a ine o <i4 T#ousand -esos s#all 0e imposed upon t#e

T#e penalty o prision mayor in its medium degree and temporary a0solute dis3uali ication and a ine o <i4 T#ousand -esos s#all 0e imposed i t#e maintainer1 conductor or 0an6er is a go&ernment o icial1 or i a player1 promoter1 re eree1 umpire1 @udge or coac# in cases o game> i4ing1 point>s#a&ing and ot#er game mac#ination. T#e penalty o prision correccional in its medium degree and a ine ranging rom +i&e 5undred pesos to T$o T#ousand -esos s#all 0e imposed upon any person $#o s#all 6no$ingly and $it#out la$ ul purpose in any #our o any day s#all #a&e in #is possession any lottery list1 paper1 or ot#er matter containing letter1 igures1 signs or sym0ols $#ic# pertain to or in any manner used in t#e game o @ueteng1 @ai>alai or #orse racing 0oo6ies and similar game or lottery $#ic# #as ta6en place or a0out to ta6e place. Sectio 3. :arangay >fficial. + Any 0arangay o icial in $#ose @urisdiction suc# gam0ling #ouse is ound and $#ic# #ouse #as t#e reputation o a gam0ling place s#all su er t#e penalty o prision correccional in its medium period and a ine ranging rom +i&e 5undred to T$o T#ousand -esos and temporary a0solute dis3uali ications. .hile the acts under the Revised Penal Code are still punished under the new law, yet the concept of gambling under it has been changed by the new gambling law. :efore, the Revised Penal Code considered the s4ill of the player in classifying whether a game is gambling or not. :ut under the new gambling law, the s4ill of the players is immaterial. !ny game is considered gambling where there are bets or wagers placed with the hope to win a pri3e therefrom. =nder this law, even sports contents li4e boxing, would be gambling insofar as those who are betting therein are concerned. =nder the old penal code, if the s4ill of the player outweighs the chance or ha3ard involved in winning the game, the game is not considered gambling but a sport. &t was because of this that betting in boxing and bas4etball games proliferated.

REVISED ORTEGA LECTURE NOTES

ON

CRIMINAL LAW

1!!

E=nless authori3ed by a franchise, any form of gambling is illegal.F 5o said the court in the recent resolution of the case against the operation of jai alai. There are so called parlor games which have been exempted from the operation of the decree li4e when the games are played during a wa4e to 4eep the mourners awa4e at night. Pursuant to a memorandum circular issued by the )xecutive :ranch, the offshoot of the exemption is the intentional prolonging of the wa4e of the dead by gambling lords. !s a general rule, betting or wagering determines whether a game is gambling or not. )xceptions' These are games which are expressly prohibited even without bets. 0onte, jueteng or any form of lottery< dog races< slot machines< these are habit forming and addictive to players, bringing about the pernicious effects to the family and economic life of the players. 0ere possession of lottery tic4ets or lottery lists is a crime punished also as part of gambling. However, it is necessary to ma4e a distinction whether a tic4et or list refers to a past date or to a future date. &llustration' C was accused one night and found in his possession was a list of jueteng. &f the date therein refers to the past, C cannot be convicted of gambling or illegal possession of lottery list without proving that such game was indeed played on the date stated. 0ere possession is not enough. &f the date refers to the future, C can be convicted by the mere possession with intent to use. This will already bring about criminal liability and there is no need to prove that the game was played on the date stated. &f the possessor was caught, chances are he will not go on with it anymore. There are two criteria as to when the lottery is in fact becomes a gambling game' (. &f the public is made to pay not only for the merchandise that he is buying, but also for the chance to win a pri3e out of the lottery, lottery becomes a gambling game. Public is made to pay a higher price. &f the merchandise is not saleable because of its inferior 9uality, so that

the public actually does not buy them, but with the lottery the public starts patroni3ing such merchandise. &n effect, the public is paying for the lottery and not for the merchandise, and therefore the lottery is a gambling game. Public is not made to pay a higher price. &llustrations' (1) ! certain supermar4et wanted to increase its sales and sponsored a lottery where valuable prices are offered at sta4e. To defray the cost of the prices offered in the lottery, the management increased their prices of the merchandise by (; cents each. .henever someone buys from that supermar4et, he pays (; cents more for each merchandise and for his purchase, he gets a coupon which is to be dropped at designated drop boxes to be raffled on a certain period. The increase of the price is to answer for the cost of the valuable prices that will be covered at sta4e. The increase in the price is the consideration for the chance to win in the lottery and that ma4es the lottery a gambling game. :ut if the increase in prices of the articles or commodities was not general, but only on certain items and the increase in prices is not the same, the fact that a lottery is sponsored does not appear to be tied up with the increase in prices, therefore not illegal. !lso, in case of manufacturers, you have to determine whether the increase in the price was due to the lottery or brought about by the normal price increase. &f the increase in price is brought about by the normal price increase Heconomic factorI that even without the lottery the price would be li4e that, there is no consideration in favor of the lottery and the lottery would not amount to a gambling game. &f the increase in the price is due particularly to the lottery, then the lottery is a gambling game. !nd the sponsors thereof may be prosecuted for illegal gambling under Presidential @ecree ,o. (-;".

".

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ON

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1!7

#"%

The merchandise is not really saleable because of its inferior 9uality. ! certain manufacturer, :hey Company, manufacture cigarettes which is not saleable because the same is irritating to the throat, sponsored a lottery and a coupon is inserted in every pac4 of cigarette so that one who buys it shall have a chance to participate. @ue to the coupons, the public started buying the cigarette. !lthough there was no price increase in the cigarettes, the lottery can be considered a gambling game because the buyers were really after the coupons not the low 9uality cigarettes. &f without the lottery or raffle, the public does not patroni3e the product and starts to patroni3e them only after the lottery or raffle, in effect the public is paying for the price not the product.

4. T#e act or acts complained o

0e committed in a pu0lic place or $it#in t#e pu0lic 6no$ledge or &ie$.

&n grave scandal, the scandal involved refers to moral scandal offensive to decency, although it does not disturb public peace. :ut such conduct or act must be open to the public view. &n alarms and scandals, the scandal involved refers to disturbances of the public tran9uility and not to acts offensive to decency. !ny act which is notoriously offensive to decency may bring about criminal liability for the crime of grave scandal provided such act does not constitute some other crime under the Revised Penal Code. /rave scandal is a crime of last resort. @istinction should be made as to the place where the offensive act was committed, whether in the public place or in a private place' #(% &n public place, the criminal liability arises irrespective of whether the immoral act is open to the public view. &n short public view is not re9uired. .hen act offensive to decency is done in a private place, public view or public 4nowledge is re9uired.

=nder this decree, a barangay captain who is responsible for the existence of gambling dens in their own locality will be held liable and dis9ualified from office if he fails to prosecute these gamblers. :ut this is not being implemented. /ambling, of course, authori3ed by law. is legal when

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2und raising campaigns are not gambling. They are for charitable purposes but they have to obtain a permit from @epartment of 5ocial .elfare and @evelopment. This includes concerts for causes, Christmas caroling, and the li4e. Article 344. Gra0e Sca $al "lements

Public view does not re9uire numerous persons. )ven if there was only one person who witnessed the offensive act for as long as the third person was not an intruder, grave scandal is committed provided the act does not fall under any other crime in the Revised Penal Code. &llustrations' #(% ! man and a woman enters a movie house which is a public place and then goes to the dar4est part of the balcony and while there the man started performing acts of lasciviousness on the woman. &f it is against the will of the woman, the crime would be acts of lasciviousness. :ut if there is mutuality, this constitutes grave scandal. Public view is not necessary so long as it is performed in a public place.

1. . ender per orms an act or acts; 2. <uc# act or acts 0e #ig#ly scandalous
as o ending against decency or good customs;

3. T#e #ig#ly scandalous conduct is not


e4pressly alling $it#in any ot#er article o t#is Code; and

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ON

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#"%

! man and a woman went to Auneta and slept there. They covered themselves their blan4et and made the grass their conjugal bed. This is grave scandal.

#6%

&n a certain apartment, a lady tenant had the habit of undressing in her room without shutting the blinds. 5he does this every night at about eight in the evening. 5o that at this hour of the night, you can expect people outside gathered in front of her window loo4ing at her silhouette. 5he was charged of grave scandal. Her defense was that she was doing it in her own house. 3. &t is no defense that she is doing it in her private home. &t is still open to the public view.

e4#i0it indecent or immoral plays1 scenes1 acts1 or s#o$s1 it 0eing understood t#at t#e o0scene literature or indecent or immoral plays1 scenes1 acts or s#o$s1 $#et#er li&e or in ilm1 $#ic# are proscri0ed 0y &irtue #ereo 1 s#all include t#ose $#ic#? (1) glori y criminals or condone crimes; (2) ser&e no ot#er purpose 0ut to satis y t#e mar6et or &iolence1 lust or pornograp#y; (3) o end any race1 or religion; (4) tend to a0et tra ic in and use o pro#i0ited drugs; and (5) are contrary to la$1 pu0lic order1 morals1 good customs1 esta0lis#ed policies1 la$ ul orders1 decrees and edicts; and T#ose $#o s#all sell1 gi&e a$ay1 or e4#i0it ilms1 prints1 engra&ings1 sculptures1 or literature $#ic# are o ensi&e to morals. 2a*ra ts a $ %rostit.tesC

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&n a particular building in 0a4ati which stands right next to the house of a young lady who goes sunbathing in her poolside. )very morning several men in the upper floors would stic4 their heads out to get a full view of said lady while in her two piece swimsuit. The lady was then charged with grave scandal. Her defense was that it is her own private pool and it is those men loo4ing down at her who are malicious. This is an act which even though done in a private place is nonetheless open to public view.

Article 343. %e alt# (agrants

1. Any person #a&ing no apparent means


o su0sistence1 $#o #as t#e p#ysical a0ility to $or6 and $#o neglects to apply #imsel or #ersel to some la$ ul calling;

2. Any person ound loitering a0out pu0lic


or semi>pu0lic 0uildings or places or trampling or $andering a0out t#e country or t#e streets $it#out &isi0le means o support;

Article 341. I&&oral Doctri es@ O9sce e %.9licatio s a $ E?,i9itio s a $ I $ece t S,o+s Acts punis#ed 1. T#ose $#o s#all pu0licly e4pound or proclaim doctrines openly contrary to pu0lic morals; a. T#e aut#ors o o0scene literature1 pu0lis#ed $it# t#eir 6no$ledge in any orm1 t#e editors pu0lis#ing suc# literature; and t#e o$nersOoperators o t#e esta0lis#ment selling t#e same; 0. T#ose $#o1 in t#eaters1 airs1 cinematograp#s1 or any ot#er place1

3. Any idle or dissolute person $#o ledges


in #ouses o ill ame;

4. 2u ians or pimps and t#ose $#o


#a0itually associate $it# prostitutes;

5. Any person $#o1 not 0eing included in


t#e pro&isions o ot#er articles o t#is Code1 s#all 0e ound loitering in any in#a0ited or unin#a0ited place 0elonging to anot#er $it#out any la$ ul or @usti ia0le purpose; !. -rostitutes1 $#o are $omen $#o1 or money or pro it1 #a0itually indulge in se4ual intercourse or lasci&ious conduct.

2.

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ON

CRIMINAL LAW

1!)

Prostitutes are women who, for money or profit, habitually indulge in sexual intercourse or lascivious conduct, are deemed to be prostitutes. Test of >bscenity' .hether or not the material charged as obscene has the tendency to deprave and corrupt the minds of those open to the influence thereof, or into whose hands such material may come to #Lottinger Rule%. The test is objective. &t is more on the effect upon the viewer and not alone on the conduct of the performer. &f the material has the tendency to deprave and corrupt the mind of the viewer then the same is obscene and where such obscenity is made publicly, criminal liability arises. :ecause there is a government body which deliberates whether a certain exhibition, movies and plays is pornographic or not, if such body approves the wor4 the same should not be charged under this title. :ecause of this, the test of obscenity may be obsolete already. &f allowed by the 0ovies and Television Review and Classification :oard #0TRC:%, the 9uestion is moot and academic. The law is not concerned with the moral of one person. !s long as the pornographic matter or exhibition is made privately, there is no crime committed under the Revised Penal Code because what is protected is the morality of the public in general. Third party is there. Performance of one to another is not. &llustration' ! sexy dancing performed for a 8; year old is not obscene anymore even if the dancer strips na4ed. :ut if performed for a ($ year old 4id, then it will corrupt the 4idDs mind. #!pply Lottinger Rule here.% &n some instances though, the 5upreme Court did not stic4 to this test. &t also considered the intention of the performer.

&n Peo!le v. A!arici, the accused was a performer in the defunct Pacific Theatre, a movie house which opens only at midnight. 5he was arrested because she was dancing in a Edifferent 4ind of way.F 5he was not really nude. 5he was wearing some sort of an abbreviated bi4ini with a flimsy cloth over it. However, on her waist hung a string with a ball reaching down to her private part so that every time she gyrates, it arouses the audience when the ball would actually touch her private part. The defense set up by !parici was that she should not be criminally liable for as a matter of fact, she is better dressed than the other dancers. The 5upreme Court ruled that it is not only the display of the body that gives it a depraved meaning but rather the movement of the body coupled with the Etom tom drumsF as bac4ground. ,udity alone is not the real scale. #Reaction Test% &llustration' ! sidewal4 vendor was arrested and prosecuted for violation of !rticle ";(. &t appears that the fellow was selling a ballpen where one who buys the ballpen can peep into the top of the pen and see a girl dancing in it. He put up the defense that he is not the manufacturer and that he was merely selling it to earn a living. The fact of selling the ballpen was being done at the expense of public morals. >ne does not have to be the manufacturer to be criminally liable. This holds true for those printing or selling Playboy 0aga3ines. The common concept of a vagrant is a person who loiters n public places without any visible means of livelihood and without any lawful purpose. .hile this may be the most common form of vagrancy, yet even millionaires or one who has more that enough for his livelihood can commit vagrancy by habitually associating with prostitutes, pimps, ruffians, or by habitually lodging in houses of ill repute. 7agrancy is not only a crime of the privileged or the poor. The law punishes the act involved here as a stepping stone to the commission of other crimes. .ithout this article, law enforcers would have no way of chec4ing a person loitering in the wrong place in the wrong time. The

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17*

purpose of the law is not simply to punish a person because he has no means of livelihood< it is to prevent further criminality. =se this when someone loiters in front of your house every night. !ny person found wandering in an estate belonging to another whether public or private without any lawful purpose also commits vagrancy, unless his acts constitutes some other crime in the Revised Penal Code.

gain would amount to prostitution, even if there is no sexual intercourse. 7irginity is not a defense. Habituality is the controlling factor< is has to be more than one time. There cannot be prostitution by conspiracy. >ne who conspires with a woman in the prostitution business li4e pimps, taxi drivers or solicitors of clients are guilty of the crime under !rticle 6*( for white slavery. TITLE 2II. CRIMES COMMITTED AY %UALIC OFFICERS

6.estio 7 A s+er % a person is ound $andering in an estate 0elonging to anot#er1 $#et#er pu0lic or pri&ate1 $it#out any la$ ul purpose1 $#at ot#er crimes may 0e committed= .hen a person is apprehended loitering inside an estate belonging to another, the following crimes may be committed' #(% Trespass to property under !rticle "1( if the estate is fenced and there is a clear prohibition against entering, but the offender entered without the consent of the owner or overseer thereof. .hat is referred to here is estate, not dwelling. !ttempted theft under !rticle 6;1, paragraph 6, if the estate is fenced and the offender entered the same to hunt therein or fish from any waters therein or to gather any farm products therein without the consent of the owner or overseer thereof< 7agrancy under !rticle ";" if the estate is not fenced or there is no clear prohibition against entering.

Crimes committed 0y pu0lic o icers 1. 2. 3. 4. 5. !. Jno$ingly rendering @udgment (Art. 2*4); Fudgment rendered negligence (Art. 2*5); un@ust t#roug#

8n@ust interlocutory order (Art. 2*!); Malicious delay in t#e administration o @ustice (Art. 2*7); -rosecution o o enses; negligence and tolerance (Art. 2*'); 7etrayal o trust 0y an attorney or solicitor / 2e&elation o secrets (Art. 2*)); 9irect 0ri0ery (Art. 21*); %ndirect 0ri0ery (Art. 211); Duali ied 0ri0ery (Art. 211>A); Corruption o 212); pu0lic o icials (Art.

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7. '. ). 1*. 11. 12. 13. 14. 15.

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+rauds against t#e pu0lic treasury and similar o enses (Art. 213); .t#er rauds (Art. 214); -ro#i0ited transactions (Art. 215); -ossession o pro#i0ited interest 0y a pu0lic o icer (Art. 21!); Mal&ersation o pu0lic unds or property / -resumption o mal&ersation (Art. 217) +ailure o accounta0le o icer to render accounts (Art. 21');

Prostitution and vagrancy are both punished by the same article, but prostitution can only be committed by a woman. The term prostitution is applicable to a woman who for profit or money habitually engages in sexual or lascivious conduct. ! man if he engages in the same conduct + sex for money + is not a prostitute, but a vagrant. &n law the mere indulging in lascivious conduct habitually because of money or

1!.

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171

17.

+ailure o a responsi0le pu0lic o icer to render accounts 0e ore lea&ing t#e country (Art. 21)); %llegal use o pu0lic unds or property (Art. 22*); +ailure to ma6e deli&ery o pu0lic unds or property (Art. 221); Conni&ing $it# or consenting to e&asion (Art. 223); "&asion t#roug# negligence (Art. 224); "scape o prisoner under t#e custody o a person not a pu0lic o icer (Art. 225); 2emo&al1 concealment or destruction o documents (Art. 22!); . icer 0rea6ing seal (Art. 227); .pening o closed documents (Art. 22'); 2e&elation o secrets 0y an o icer (Art. 22)); -u0lic o icer re&ealing secrets o pri&ate indi&idual (Art. 23*); .pen diso0edience (Art. 231);

3'. 3). 4*.

8surpation o @udicial unctions (Art. 241); 9iso0eying re3uest dis3uali ication (Art. 242); or

1'. 1). 2*. 21. 22.

.rders or re3uests 0y e4ecuti&e o icers to any @udicial aut#ority (Art. 243); 8nla$ ul appointments (Art. 244); and A0uses against c#astity (Art. 245).

41. 42.

23. 24. 25. 2!. 27. 2'. 2).

The designation of the title is misleading. Crimes under this title can be committed by public officers or a non public officer, when the latter become a conspirator with a public officer, or an accomplice, or accessory to the crime. The public officer has to be the principal. &n some cases, it can even be committed by a private citi3en alone such as in !rticle "?$ #infidelity in the custody of a prisoner where the offender is not a public officer% or in !rticle """ #malversation%. 2e3usites to 0e a pu0lic o icer under Article 348 1. Ta6ing part in t#e per ormance o pu0lic unctions in t#e go&ernment; or -er orming in said go&ernment or in any o its 0ranc#es pu0lic duties as an employee1 agent or su0ordinate o icial1 or any ran6 or class; 2. 5is aut#ority to ta6e part in t#e per ormance o pu0lic unctions or to per orm pu0lic duties must 0e / a. 7y direct pro&ision o t#e la$; 7y popular election; or 7y appointment competent aut#ority. 0y

9iso0edience to order o superior o icer $#en said order $as suspended 0y in erior o icer (Art. 232); 2e usal o assistance (Art. 233); 2e usal to disc#arge electi&e o ice (Art. 234); Maltreatment o prisoners (Art. 235); Anticipation o duties o o ice (Art. 23!); a pu0lic duties

3*. 31. 32. 33. 34. 35. 3!. 37.

-rolonging per ormance o and po$ers (Art. 237);

0. c.

A0andonment o o ice or position (Art. 23'); 8surpation o legislati&e po$ers (Art. 23)); 8surpation o (Art. 24*); e4ecuti&e unctions

>riginally, Title 7&& used the phrase Epublic officer or employeeF but the latter word has been held meaningless and useless because in criminal law, Epublic officerF

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covers all public servants, whether an official or an employee, from the highest to the lowest position regardless of ran4 or class< whether appointed by competent authority or by popular election or by direct provision of law. =nder Republic !ct ,o. 6;(8 #The !nti /raft and Corrupt Practices !ct%, 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. !ny person who receives compensation for services rendered is a public officer. :reach of oath of office parta4es of three forms' #(% 0alfeasance when a public officer performs in his public office an act prohibited by law. )xample' bribery. #"% 0isfeasance when a public officer performs official acts in the manner not in accordance with what the law prescribes. ,onfeasance when a public officer willfully refrains or refuses to perform an official duty which his office re9uires him to perform.

4. %t is due to #is inexcusable negligence


or ignorance. Article 34'. U D.st I terloc.tor# Or$er

1. . ender is a @udge; 2. 5e per orms any o t#e ollo$ing acts?


a. Jno$ingly rendering an un@ust interlocutory order or decree; or 2endering a mani estly un@ust interlocutory order or decree t#roug# ine4cusa0le negligence or ignorance.

0.

#6%

The crime of 4nowingly rendering an unjust judgment, or 4nowingly issuing an unjust interlocutory order, may be committed only by a judge of a trial court and never of an appellate court. The reason for this is that in appellate court, not only one magistrate renders or issues the interlocutory order. !n 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 5upreme 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 34). Malicio.s Dela# i A$&i istratio o( <.stice t,e

Article 344. F o+i *l# Re $eri * U D.st <.$*&e t

1. . ender is a @udge; 2. 5e renders a @udgment in a case


su0mitted to #im or decision;

3. Fudgment is un@ust; 4. T#e @udge 6no$s t#at #is @udgment is


un@ust . Article 34!. <.$*&e t Re $ere$ t,ro.*, Ne*li*e ce

1. . ender is a @udge; 2. T#ere is a proceeding in #is court; 3. 5e delays in t#e administration o


@ustice;

4. T#e delay is malicious1 t#at is1 $it#


deli0erate intent to in lict damage on eit#er party in t#e case. 0alice must be proven. 0alice is present where the delay is sought to favor one party to the prejudice of the other.

1. . ender is a @udge; 2. 5e renders a @udgment in a case


su0mitted to #im or decision;

3. T#e @udgment is manifestly un@ust;

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These have been interpreted by the 5upreme Court to refer only to judges of the trial court. Article 34/. %rosec.tio o( O((e sesC Ne*li*e ce a $ Tolera ce Acts -unis#ed 1. Maliciously re raining rom instituting prosecution against &iolators o t#e la$; Maliciously tolerating commission o o enses. t#e

#"%

He may become a fence if the crime committed is robbery or theft, in which case he violates the !nti 2encing Aaw< or He may be held liable for violating the !nti /raft and Corrupt Practices !ct.

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2.

However, in distant provinces or municipalities where there are no municipal attorneys, the local chief of police is the prosecuting officer. &f 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. &f they do not do so, they can be prosecuted for this crime. Prevaricacion This used to be a crime under the 5panish 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. :ut the term prevaricacion is not limited to dereliction of duty in the prosecution of offenders. &t 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. .hile in !rticle ";1, 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. &llustration' The offender was caught for white slavery. The policeman allowed the offender to go free for some consideration. The policeman does not violate !rticle ";1 but he becomes an accessory to the crime of white slavery. :ut 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 !nti 2encing Aaw.

"lements o dereliction o prosecution o o enses

duty in t#e

1. . ender is a pu0lic o icer or o icer o


t#e la$ $#o #as a duty to cause t#e prosecution o 1 or to prosecute1 o enses;

2. T#ere is a dereliction o t#e duties o #is


o ice1 t#at is1 6no$ing t#e commission o t#e crime1 #e does not cause t#e prosecution o t#e criminal1 or 6no$ing t#at a crime is a0out to 0e committed1 #e tolerates its commission;

3. . ender acts $it# malice and deli0erate


intent to a&or t#e &iolator o t#e la$. ! 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. .hen 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' #(% !n accessory to the crime committed by the principal in accordance with !rticle (8, paragraph 6< or

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Relative to this crime under !rticle ";1, consider the crime of 9ualified bribery. !mong the amendments made by Republic !ct ,o. ?-$8 on the Revised Penal Code is a new provision which reads as follows' !rticle. "(( !. Mualified :ribery + &f any public officer is entrusted with law enforcement and he refrains from arresting or prosecuting an offender who has committed a crime punishable by Reclusion Perpetua andJor death in consideration of any offer, promise, gift, or present, he shall suffer the penalty for the offense which was not prosecuted. &f it is the public officer who as4s or demands such gift or present, he shall suffer the penalty of death. !ctually the crime is a 4ind 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. &n a way, this new provision modifies !rticle "(; of the Revised Penal Code on direct bribery. However, the crime of 9ualified bribery may be committed only by public officers Eentrusted with enforcementF whose official duties authori3e then to arrest or prosecute offenders. !pparently, they are peace officers and public prosecutors since the nonfeasance refers to Earresting or prosecuting.F :ut this crime arises only when the offender whom such public officer refrains from arresting or prosecuting, has committed a crime punishable by reclusion perpetua andJor death. &f the crime were punishable by a lower penalty, then such nonfeasance by the public officer would amount to direct bribery, not 9ualified bribery. &f the crime was 9ualified bribery, the dereliction of the duty punished under !rticle ";1 of the Revised Penal Code should be absorbed because said article punishes the public officer who Emaliciously refrains from instituting prosecution for the punishment of violators of the law or shall tolerate the commission of offensesF. The

dereliction of duty referred to is necessarily included in the crime of 9ualified bribery. >n the other hand, if the crime was direct bribery under !rticle "(; of the Revised Penal Code, the public officer involved should be prosecuted also for the dereliction of duty, which is a crime under !rticle ";1 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, !rticle "(; expressly provides that the liabilty thereunder shall be Ein addition to the penalty corresponding to the crime agreed upon, if the crime shall have been committed. &llustration' ! fiscal, for a sum of money, refrains from prosecuting a person charged before him. &f the penalty for the crime involved is reclusion perpetua, the fiscal commits 9ualified bribery. &f the crime is punishable by a penalty lower than reclusion perpetua, the crime is direct bribery. &n 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 341. Aetra#al o( Tr.st 9# A Attor e# or Solicitor - Re0elatio o( Secrets Acts punis#ed

1. Causing damage to #is client1 eit#erP


a. 0. 7y any malicious 0reac# o pro essional duty; 7y ine4cusa0le negligence or ignorance.

Cote? A#en t#e attorney acts $it# malicious a0use o #is employment or ine4cusa0le negligence or ignorance1 t#ere must 0e damage to #is client. 2. 2e&ealing any o t#e secrets o #is client learned 0y #im in #is pro essional capacity; 8nderta6ing t#e de ense o t#e opposing party in t#e same case1

3.

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$it#out t#e consent o #is irst client1 a ter #a&ing underta6en t#e de ense o said irst client o a ter #a&ing recei&ed con idential in ormation rom said client. =nder 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 materiali3e because the client cannot afford the fee being as4ed by the lawyer. The lawyer and his secretary or cler4 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 !rticle ";8. 0ere malicious breach without damage is not violative of !rticle ";8< at most he will be liable administratively as a lawyer, e.g., suspension or disbarment under the Code of Professional Responsibility. &llustration'

&llustration' ! went to :, a lawyerJnotary public, to have a document notari3ed. ! narrated to : the detail of the criminal case. &f : will disclose what was narrated to him there is no betrayal of trust since : is acting as a notary public and not as a counsel. The lawyer must have learned the confidential matter in his professional capacity. 5everal acts which would ma4e a lawyer criminally liable' #(% 0aliciously causing damage to his client through a breach of his professional duty. The breach of professional duty must be malicious. &f 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< &nexcusable negligence< Revelation of secrets learned in his professional capacity< =nderta4ing the defense of the opposite party in a case without the consent of the first client whose defense has already been underta4en.

#"% #6% #*% #$%

:, who is involved in the crime of seduction wanted !, an attorney at law, to handle his case. ! received confidential information from :. However, : cannot pay the professional fee of !. C, the offended party, came to ! also and the same was accepted. ! did not commit the crime under !rticle ";8, although the lawyerDs act may be considered unethical. The client lawyer relationship between ! and : was not yet established. Therefore, there is no trust to violate because : has not yet actually engaged the services of the lawyer !. ! is not bound to :. However, if ! would reveal the confidential matter learned by him from :, then !rticle ";8 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. Here, matters that are considered confidential must have been said to the lawyer with the view of engaging his services. >therwise, the communication shall not be considered privileged and no trust is violated.

,ote that only numbers (, " and 6 must approximate malice. ! lawyer who had already underta4en the case of a client cannot later on shift to the opposing party. This cannot be done. =nder the circumstances, it is necessary that the confidential matters or information was confided to the lawyer in the latterDs professional capacity. &t is not the duty of the lawyer to give advice on the commission of a future crime. &t 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. &t is only confidential information relating to crimes already committed that are covered by the crime of betrayal of trust if the lawyer should underta4e the case of opposing party or otherwise divulge confidential information of a client.

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ON

CRIMINAL LAW

17!

=nder 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 li4e 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. -reach o* !ro*e++ional #u). 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 + Aawyer must appear on time. :ut the client must have suffered damage due to the breach of professional duty. >therwise, the lawyer cannot be held liable. &f 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. &f 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. -reach o* con*i#en)ial rela)ion Revealing information obtained or ta4ing 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. &n 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 tal4ed about this to a friend. He is, thus, liable. Article 314. Direct Ari9er# Acts punis#ed

1.

Agreeing to per orm1 or per orming1 in consideration o any o er1 promise1 gi t or present / an act constituting a crime1 in connection $it# t#e per ormance o #is o icial duties; Accepting a gi t in consideration o t#e e4ecution o an act $#ic# does not constitute a crime1 in connection $it# t#e per ormance o #is o icial duty; Agreeing to re rain1 or 0y re raining1 rom doing somet#ing $#ic# it is #is o icial duty to do1 in consideration o gi t or promise.

2.

3.

"lements 1. 2. . ender is a pu0lic o icer $it#in t#e scope o Article 2*3; . ender accepts an o er or a promise or recei&es a gi t or present 0y #imsel or t#roug# anot#er; <uc# o er or promise 0e accepted1 or gi t or present recei&ed 0y t#e pu0lic o icer / a. Ait# a &ie$ to committing some crime; or %n consideration o t#e e4ecution o an act $#ic# does not constitute a crime1 0ut t#e act must 0e un@ust; or To re rain rom doing somet#ing $#ic# it is #is o icial duty to do.

3.

0.

c.

4.

T#e act $#ic# o ender agrees to per orm or $#ic# #e e4ecutes 0e connected $it# t#e per ormance o #is o icial duties.

&t is a common notion that when you tal4 of bribery, you refer to the one corrupting the public officer. &nvariably, the act refers to the giver, but this is wrong. :ribery refers to the act of the receiver and the act of the giver is corruption of public official. @istinction between direct bribery and indirect bribery

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177

:ribery 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. &f he simply accepts a gift or present given to him by reason of his public position, the crime is indirect bribery. :ear in mind that the gift is given Kby reason of his officeK, not Kin considerationK thereof. 5o never use the term Econsideration.F The public officer in &ndirect bribery is not to perform any official act. ,ote however that what may begin as an indirect bribery may actually ripen into direct bribery. &llustration' .ithout any understanding with the public officer, a taxi operator gave an expensive suiting material to a :AT registrar. =pon receipt by the :AT registrar of his valuable suiting material, he as4ed who the giver was. He found out that he is a taxi operator. !s far as the giver is concerned, he is giving this by reason of the office or position of the public officer involved. &t is just indirect bribery . &f the :AT registrar calls up his subordinates and said to ta4e 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. &n direct bribery, consider whether the official act, which the public officer agreed to do, is a crime or not. &f 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. &f the public officer commits the act which constitutes the crime, he, as well as the corruptor shall be liable also for that other crime.

&llustrations' #(% &f 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. &f 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. #"% ! party litigant approached the courtDs stenographer and proposed the idea of altering the transcript of stenographic notes. The court stenographer agreed and he demanded P ",;;;.;;. =n4nown to them, there were law enforcers who already had a tip that the court stenographer had been doing this before. 5o they were waiting for the chance to entrap him. They were apprehended and they said they have not done anything yet. =nder !rticle "(;, 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. &f 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. &f the refraining would give rise to a crime, such as refraining to prosecute an offender, the mere agreement to do so will consummate

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ON

CRIMINAL LAW

17'

the bribery and the corruption, even if no money was delivered to him. &f the refraining is not a crime, it would only amount to bribery if the consideration be delivered to him. &f it is not a crime, the consideration must be delivered by the corruptor before a public officer can be prosecuted for bribery. 0ere 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. =nless the public officer receives the consideration for doing his official duty, there is no bribery. &t 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. &t is just that he would not perform what he is re9uired 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. 5o, without the acceptance, the crime is not committed. @irect 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 conse9uence. &n direct bribery, it is possible only if the corruptor concurs with the offender. >nce there is concurrence, the direct bribery is already consummated. &n short, the offender could not have performed all the acts of execution to produce the felony without consummating the same. !ctually, 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. 5o this crime re9uires two to commit. &t cannot be said, therefore, that one has performed all the acts of

execution which would produce the felony as a conse9uence but for reasons independent of the will, the crime was not committed. &t is now settled, therefore, that the crime of bribery and corruption of public officials cannot be committed in the frustrated stage because this re9uires two to commit and that means a meeting of the minds. &llustrations' #() &f 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. &f 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 e9ually liable for consummated bribery. #"% &f a public official demanded something from a taxpayer who pretended to agree and use mar4ed money with the 4nowledge of the police, the crime of the public official is attempted bribery. The reason is that because the giver has no intention to corrupt her and therefore, he could not perform all the acts of execution. :e sure that what is involved is a crime of bribery, not extortion. &f 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. Article 311. I $irect Ari9er# "lements

1. . ender is a pu0lic o icer; 2. 5e accepts gi ts; 3. T#e gi ts are o ered to #im 0y reason o
#is o ice.

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ON

CRIMINAL LAW

17)

The public official does not underta4e to perform an act or abstain from doing an official duty from what he received. &nstead, 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 5upreme 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. &t is the act of appropriating that signifies acceptance. 0erely delivering the gift to the public officer does not bring about the crime. >therwise it would be very easy to remove a public officer' just deliver a gift to him. Article 311;A. 6.ali(ie$ Ari9er# "lements

T#e gi&ing o parties 0y reason o t#e promotion o a pu0lic o icial is considered a crime e&en t#oug# it may call or a cele0ration. T#e gi&ing o a party is not limited to t#e pu0lic o icer only 0ut also to any mem0er o #is amily. %resi$e tial Decree No. )41 T#e decree grants immunity rom prosecution to a pri&ate person or pu0lic o icer $#o s#all &oluntarily gi&e in ormation and testi y in a case o 0ri0ery or in a case in&ol&ing a &iolation o t#e Anti>gra t and Corrupt -ractices Act. %t pro&ides immunity to t#e 0ri0e>gi&er pro&ided #e does t$o t#ings? (1) 5e &oluntarily discloses t#e transaction #e #ad $it# t#e pu0lic o icer constituting direct or indirect 0ri0ery1 or any ot#er corrupt transaction; 5e must $illingly testi y against t#e pu0lic o icer in&ol&ed in t#e case to 0e iled against t#e latter.

1. . ender is a pu0lic o icer entrusted


$it# la$ en orcement;

(2)

2. 5e re rains rom arresting or prosecuting


an o ender $#o #as committed a crime;

3. . ender

#as committed a crime punis#a0le 0y reclusion perpetua andOor deat#; rom arresting or prosecuting in consideration o any o er1 promise1 gi t1 or present.

7e ore t#e 0ri0e>gi&er may 0e dropped rom t#e in ormation1 #e #as to 0e c#arged irst $it# t#e recei&er. 7e ore trial1 prosecutor may mo&e or dropping 0ri0e>gi&er rom in ormation and 0e granted immunity. 7ut irst1 i&e conditions #a&e to 0e met? (1) (2) %n ormation must consummated 0ri0ery; re er to

4. . ender re rains

,ote that the penalty is 9ualified if the public officer is the one who as4s or demands such present. %resi$e tial Decree No. 4' -residential 9ecree Co. 4! pro#i0its gi&ing and acceptance o gi ts 0y a pu0lic o icer or to a pu0lic o icer1 e&en during anni&ersary1 or $#en t#ere is an occasion li6e C#ristmas1 Ce$ Qear1 or any gi t>gi&ing anni&ersary. T#e -residential 9ecree punis#es 0ot# recei&er and gi&er. T#e pro#i0ition gi&ing and recei&ing gi ts gi&en 0y reason o o icial position1 regardless o $#et#er or not t#e same is or past or uture a&ors.

%n ormation is necessary or t#e proper con&iction o t#e pu0lic o icer in&ol&ed; T#at t#e in ormation or testimony to 0e gi&en is not yet in t#e possession o t#e go&ernment or 6no$n to t#e go&ernment; T#at t#e in ormation can 0e corro0orated in its material points; T#at t#e in ormation #as not 0een con&icted pre&iously or any crime in&ol&ing moral turpitude.

(3)

(4) (5)

T#ese conditions are analogous to t#e conditions under t#e <tate Aitness 2ule under Criminal -rocedure. T#e immunity granted t#e 0ri0e>gi&er is limited only to t#e illegal transaction $#ere

REVISED ORTEGA LECTURE NOTES

ON

CRIMINAL LAW

1'*

t#e in ormant ga&e &oluntarily t#e testimony. % t#ere $ere ot#er transactions $#ere t#e in ormant also participated1 #e is not immune rom prosecution. T#e immunity in one transaction does not e4tend to ot#er transactions. T#e immunity attac#es only i t#e in ormation gi&en turns out to 0e true and correct. % t#e same is alse1 t#e pu0lic o icer may e&en ile criminal and ci&il actions against t#e in ormant or per@ury and t#e immunity under t#e decree $ill not protect #im. Re".9lic Act No. )4/4 :%l. $er> -lunder is a crime de ined and penali:ed under 2epu0lic Act Co. 7*'*1 $#ic# 0ecame e ecti&e in 1))1. T#is crime some#o$ modi ied certain crimes in t#e 2e&ised -enal Code inso ar as t#e o&ert acts 0y $#ic# a pu0lic o icer amasses1 ac3uires1 or accumulates ill>gotten $ealt# are elonies under t#e 2e&ised -enal Code li6e 0ri0ery (Articles 21*1 2111 211>A)1 raud against t#e pu0lic treasury MArticle 213N1 ot#er rauds (Article 214)1 mal&ersation (Article 217)1 $#en t#e ill>gotten $ealt# amounts to a total &alue o -5*1***1***.**. T#e amount $as reduced rom -751***1***.** 0y 2epu0lic Act Co. 7!5) and t#e penalty $as c#anged rom li e imprisonment to reclusion perpetua to deat#. <#ort o t#e amount1 plunder does not arise. Any amount less t#an -5*1***1***.** is a &iolation o t#e 2e&ised -enal Code or t#e Anti>;ra t and Corrupt -ractices Act. 8nder t#e la$ on plunder1 t#e prescripti&e period is 2* years commencing rom t#e time o t#e last o&ert act. -lunder is committed t#roug# a com0ination or series o o&ert acts? (1) T#roug# misappropriation1 con&ersion1 misuse1 or mal&ersation o pu0lic unds or raids on t#e pu0lic treasury; 7y recei&ing1 directly or indirectly1 any commission1 gi t1 s#are1 percentage1 6ic60ac6s or any ot#er orm o pecuniary 0ene it rom any person andOor entity in connection $it# any go&ernment contract or pro@ect 0y reason o t#e o ice or position o t#e pu0lic o icer;

(3)

7y illegal or raudulent con&eyance or disposition o asset 0elonging to t#e national go&ernment or any o its su0di&isions1 agencies or instrumentalities or go&ernment> o$ned or controlled corporations and t#eir su0sidiaries; 7y o0taining1 recei&ing1 or accepting directly or indirectly any s#ares o stoc61 e3uity or any ot#er orm o interest or participation including t#e promise o uture employment in any 0usiness or underta6ing; 7y esta0lis#ing agricultural1 industrial1 or commercial monopolies or ot#er com0inations andOor implementations o decrees and orders intended to 0ene it particular persons or special interests; or 7y ta6ing undue ad&antage o o icial position1 aut#ority1 relations#ip1 connection or in luence to un@ustly enric# #imsel or t#emsel&es at t#e e4pense and to t#e damage and pre@udice o t#e +ilipino people1 and t#e 2epu0lic o t#e -#ilippines.

(4)

(5)

(!)

.hile the crime appears to be malum prohibitum, Republic !ct ,o. ?;1; provides that Ein the imposition of penalties, the degree of participation and the attendance of mitigating and aggravating circumstances shall be considered by the courtF. Re".9lic Act No. 8411 :A ti;Gra(t a $ Corr."t %ractices Act> T#e mere act o a pu0lic o icer demanding an amount rom a ta4payer to $#om #e is to render pu0lic ser&ice does not amount to 0ri0ery1 0ut $ill amount to a &iolation o t#e Anti>gra t and Corrupt -ractices Act. &llustration' ! court secretary received P$;; .;; 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. &f the secretary persuaded the judge to ma4e a favorable resolution, even if the judge did not do so, this constitutes a violation of !nti /raft and Corrupt Practices !ct, 5ub 5ection !.

(2)

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ON

CRIMINAL LAW

1'1

=nder the !nti /raft and Corrupt Practices !ct, particularly 5ection 6, there are several acts defined as corrupt practices. 5ome of them are mere repetitions of the act already penali3ed under the Revised Penal Code, li4e prohibited transactions under !rticle "($ and "(-. &n such a case, the act or omission remains to be mala in se. :ut there are acts penali3ed under the !nti /raft and Corrupt Practices !ct which are not penali3ed under the Revised Penal Code. Those acts may be considered as mala prohibita. Therefore, good faith is not a defense. &llustration' 5ection 6 #e% of the !nti /raft and Corrupt Practices !ct + causing undue injury to the government or a private party by giving unwarranted benefit to the party whom does not deserve the same. &n 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 re9uired. &t is enough that he performed the prohibited act voluntarily. )ven 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. 5ection 6 #g% of the !nti /raft and Corrupt Practices !ct + 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 !nti /raft and Corrupt Practices !ct is committed. &f 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, good faith is not a defense because it is a malum prohibitum. &t is enough that that the act was performed. .here 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 !nti /raft and Corrupt Practices !ct. His only course of action to avoid prosecution under the !nti graft and Corrupt Practices !ct is to sell his interest in the enterprise which has filed an application before that board, panel or group where he is a member. >r otherwise, he should resign from his public position. &llustration' 5en. @ominador !ytono had an interest in the &ligan 5teel 0ills, which at that time was being subject of an investigation by the 5enate Committee of which he was a chairman. He was threatened with prosecution under Republic !ct ,o. 6;(8 so he was compelled to sell all his interest in that steel mill< there is no defense. :ecause the law says so, even if he voted against it, he commits a violation thereof. These cases are filed with the >mbudsman and not with the regular prosecutorDs office. Nurisdiction is exclusively with the 5andiganbayan. The accused public officer must be suspended when the case is already filed with the 5andiganbayan. =nder the !nti /raft and Corrupt Practices !ct, the public officer who is accused should not be automatically suspended upon the filing of the information in court. &t is the court which will order the suspension of the public officer and not the superior of that public officer. !s long as the court has not ordered the suspension of the public officer involved, the superior of that public officer is not authori3ed to order the suspension simply because of the violation of the !nti /raft and Corrupt Practices !ct. The court will not order the suspension of the public officer without first passing upon the validity of the information filed in court. .ithout a hearing, the suspension would be null and void for being violative of due process. &llustration' ! public officer was assigned to direct traffic in a very busy corner. .hile there, he caught a thief in the act of lifting the wallet of a pedestrian. !s 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. .hen they were beyond the view of the policeman, the civilian allowed the thief to go home. .hat would be the liability of the public officerO

REVISED ORTEGA LECTURE NOTES

ON

CRIMINAL LAW

1'2

The liability of the traffic policeman would be merely administrative. The civilian has no liability at all. 2irstly, the offender is not yet a prisoner so there is no accountability yet. The term EprisonerF refers to one who is already boo4ed 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. 5o he cannot be considered as falling under the third 6rd paragraph of !rticle (8 that would constitute his as an accessory. The same is true with the civilian because the crime committed by the offender, which is snatching or a 4ind of robbery or theft as the case may be, is not one of those crimes mentioned under the third paragraph of !rticle (8 of the Revised Penal Code. .here the public officer is still incumbent, the prosecution shall be with the >mbudsman. .here the respondent is separated from service and the period has not yet prescribed, the information shall be filed in any prosecutionDs 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 5andiganbayan has jurisdiction. The fact that the government benefited out of the prohibited act is no defense at all, the violation being mala prohibita. 5ection 6 #f% of the !nti /raft and Corrupt Practices !ct + 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 re9uires that the accusedDs 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.

&n 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 Corona#o v. S-, decided on !ugust (1, (886. Re".9lic Act No. 18)1 :For(eit.re o( Ill; *otte Wealt,> Correlate $it# 2A 137) >> properly under 2emedial Ba$. T#is pro&ides t#e procedure or or eiture o t#e ill>gotten $ealt# in &iolation o t#e Anti>;ra t and Corrupt -ractices Act. T#e proceedings are ci&il and not criminal in nature. Any ta4payer #a&ing 6no$ledge t#at a pu0lic o icer #as amassed $ealt# out o proportion to t#is legitimate income may ile a complaint $it# t#e prosecutorEs o ice o t#e place $#ere t#e pu0lic o icer resides or #olds o ice. T#e prosecutor conducts a preliminary in&estigation @ust li6e in a criminal case and #e $ill or$ard #is indings to t#e o ice o t#e <olicitor ;eneral. T#e <olicitor ;eneral $ill determine $#et#er t#ere is reasona0le ground to 0elie&e t#at t#e respondent #as accumulated an une4plained $ealt#. % t#e <olicitor ;eneral inds pro0a0le cause1 #e $ould ile a petition re3uesting t#e court to issue a $rit commanding t#e respondent to s#o$ cause $#y t#e ill>gotten $ealt# descri0ed in t#e petition s#ould not 0e or eited in a&or o t#e go&ernment. T#is is co&ered 0y t#e 2ules on Ci&il -rocedure. T#e respondent is gi&en 15 days to ans$er t#e petition. T#erea ter trial $ould proceed. Fudgment is rendered and appeal is @ust li6e in a ci&il case. 2emem0er t#at t#is is not a criminal proceeding. T#e 0asic di erence is t#at t#e preliminary in&estigation is conducted 0y t#e prosecutor. Article 313. O((icials Corr."tio o( %.9lic

REVISED ORTEGA LECTURE NOTES

ON

CRIMINAL LAW

1'3

3. "lements 1. . ender ma6es o ers or promises or gi&es gi ts or presents to a pu0lic o icer; T#e o ers or promises are made or t#e gi ts or presents gi&en to a pu0lic o icer1 under circumstances t#at $ill ma6e t#e pu0lic o icer lia0le or direct 0ri0ery or indirect 0ri0ery. 4.

5e entered into an agreement $it# any interested party or speculator or made use o any ot#er sc#eme $it# regard to urnis#ing supplies1 t#e ma6ing o contracts1 or t#e ad@ustment or settlement o accounts relating to pu0lic property or unds; 5e #ad intent go&ernment. to de raud t#e

2.

Article 318. Fra.$s a*ai st t,e %.9lic Treas.r# a $ Si&ilar O((e ses Acts punis#ed 1. "ntering into an agreement $it# any interested party or speculator or ma6ing use o any ot#er sc#eme1 to de raud t#e go&ernment1 in dealing $it# any person $it# regard to urnis#ing supplies1 t#e ma6ing o contracts1 or t#e ad@ustment or settlement o accounts relating to pu0lic property or unds; 9emanding1 directly or indirectly1 t#e payment o sums di erent rom or larger t#an t#ose aut#ori:ed 0y la$1 in collection o ta4es1 licenses1 ees1 and ot#er imposts; +ailing &oluntarily to issue a receipt1 as pro&ided 0y la$1 or any sum o money collected 0y #im o icially1 in t#e collection o ta4es1 licenses1 ees1 and ot#er imposts; Collecting or recei&ing1 directly or indirectly1 0y $ay o payment or ot#er$ise1 t#ings or o0@ects o a nature di erent rom t#at pro&ided 0y la$1 in t#e collection o ta4es1 licenses1 ees1 and ot#er imposts.

The essence of this crime is ma4ing the government pay for something not received or ma4ing it pay more than what is due. &t 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. !lso when certain supplies for the government are purchased for the high price but its 9uantity or 9uality is low. &llustrations' #(% ! public official who is in charge of procuring supplies for the government obtained funds for the first class materials and buys inferior 9uality products and poc4ets the excess of the funds. This is usually committed by the officials of the @epartment of Public .or4s and Highways. Poorest 9uality of in4 paid as if it were of superior 9uality. >ne thousand pieces of blan4et for certain unit of the !rmed 2orces of the Philippines were paid for but actually, only (;; pieces were bought. The Mue3on City government ordered (;,;;; but what was delivered was only (,;;; 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.

#"% #6%

4.

#*% "lements o rauds against pu0lic treasury under paragrap# 1 1. 2. . ender is a pu0lic o icer; 5e #as ta6en ad&antage o #is o ice1 t#at is1 #e inter&ened in t#e transaction in #is o icial capacity;

,ot all frauds will constitute this crime. There must be no fixed allocation or amount on the matter acted upon by the public officer.

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The allocation or outlay was made the basis of fraudulent 9uotations made by the public officer involved. 2or example, there was a need to put some additional lighting along the a street and no one 4nows how much it will cost. !n officer was as4ed to canvass the cost but he connived with the seller of light bulbs, pricing each light bulb at P$$;.;; instead of the actual price of P$;;.;;. This is a case of fraud against public treasury. &f there is a fixed outlay of P";,;;;.;; for the lighting apparatus needed and the public officer connived with the seller so that although allocation was made a lesser number was as4ed to be delivered, or of an inferior 9uality, or secondhand. &n 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 Eother fraudF in !rticle "(*, which is in the nature of swindling or estafa. :e sure to determine whether fraud is against public treasury or one under !rticle "(*. "lements o paragrap# 2 1. illegal e4actions under

taxes, license fees, import duties and other dues payable to the government. ,ot any public officer can commit this crime. >therwise, it is estafa. 2ixers cannot commit this crime unless he conspires with the public officer authori3ed to ma4e the collection. !lso, public officers with such functions but are in the service of the :ureau of &nternal Revenue and the :ureau of Customs are not to be prosecuted under the Revised Penal Code but under the Revised !dministrative Code. These officers are authori3ed to ma4e impositions and to enter into compromises. :ecause 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 :ureau of &nternal Revenue and the Tariff and Customs Code. ,ow, we have specific Code which will apply to them. &n the absence of any provision applicable, the Revised !dministrative Code will apply. The essence of the crime is not misappropriation of any of the amounts but the improper ma4ing of the collection which would prejudice the accounting of collected amounts by the government. >n the first form of illegal exaction &n 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. &n 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. ,ote 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. &llustrations' #(% ! taxpayer goes to the local municipal treasurer to pay real estate taxes on his land. !ctually, what is due the government is P*;;.;; only but the municipal

. ender is a pu0lic o icer entrusted $it# t#e collection o ta4es1 licenses1 ees and ot#er imposts; 5e is guilty o any o t#e ollo$ing acts or omissions? a. 9emanding1 directly or indirectly1 t#e payment o sums di erent rom or larger t#an t#ose aut#ori:ed 0y la$; or +ailing &oluntarily to issue a receipt1 as pro&ided 0y la$1 or any sum o money collected 0y #im o icially; or Collecting or recei&ing1 directly or indirectly1 0y $ay o payment or ot#er$ise1 t#ings or o0@ects o a nature di erent rom t#at pro&ided 0y la$.

2.

0.

c.

This can only be committed principally by a public officer whose official duty is to collect

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treasurer demanded P$;;.;;. :y that demand alone, the crime of illegal exaction is already committed even though the taxpayer does not pay the P$;;.;;. #"% 5uppose the taxpayer came across with P$;;.;;. :ut the municipal treasurer, thin4ing that he would abstract the P(;;.;;, issued a receipt for only P*;;.;;. The taxpayer would naturally as4 the municipal treasurer why the receipt was only for P*;;.;;. The treasurer answered that the P(;;.;; is supposed to be for documentary stamps. The taxpayer left. He has a receipt for P*;;.;;. The municipal treasurer turned over to the government coffers P*;;.;; because that is due the government and poc4eted the P(;;.;;. The mere fact that there was a demand for an amount different from what is due the government, the public officer already committed the crime of illegal exaction. >n the P(;;.;; which the public officer poc4eted, will it be malversation or estafaO &n the example given, the public officer did not include in the official receipt the P(;;.;; and, therefore, it did not become part of the public funds. &t remained to be private. &t is the taxpayer who has been defrauded of his P(;;.;; because he can never claim a refund from the government for excess payment since the receipt issued to him was only P*;;.;; which is due the government. !s far as the P(;;.;; is concerned, the crime committed is estafa. #6% ! taxpayer pays his taxes. .hat is due the government is P*;;.;; and the public officer issues a receipt for P$;;.;; upon payment of the taxpayer of said amount demanded by the public officer involved. :ut he altered the duplicate to reflect only P*;;.;; and he extracted the difference of P(;;.;;. &n this case, the entire P$;;.;; 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% &llegal exaction + for collecting more than he is authori3ed to collect. The mere act of demanding is enough to constitute this crime. 2alsification + 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. 0alversation + because of his act of misappropriating the P(;;.;; excess which was covered by an official receipt already, even though not payable to the government. The entire P$;;.;; was covered by the receipt, therefore, the whole amount became public funds. 5o when he appropriated the P(;; for his own benefit, he was not extracting private funds anymore but public funds.

#b%

#c%

5hould the falsification be complexed with the malversationO !s 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. &t is the breach of trust by a public officer entrusted to ma4e the collection which is penali3ed under such article. The falsification or alteration made on the duplicate can not be said as a means to commit malversation. !t most, the duplicate was altered in order to conceal the malversation. 5o it cannot be complexed with the malversation. &t cannot also be said that the falsification is a necessary means to

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commit the malversation because the public officer can misappropriate the P(;;.;; without any falsification. !ll that he has to do is to get the excess of P(;;.;; and misappropriate it. 5o 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 P(;;.;; excess which was malversed. &n 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. &f he is not the one authori3ed by disposition to do the collection, the crime of illegal exaction is not committed. &f it did not give rise to the crime of illegal exaction, the funds collected may not have become part of the public funds. &f 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. &t will give rise to estafa or theft as the case may be. #6% The 0unicipal Treasurer demanded P$;;.;; when only P*;;.;; was due. He issued the receipt at P*;;.;; and explained to taxpayer that the P(;; was for documentary stamps. The 0unicipal Treasurer placed the entire P$;;.;; in the vault of the office. .hen he needed money, he too4 the P(;;.;; and spent it. The following committed' #a% crimes were + for different

it was commingled with the other public funds in the vault< hence, it became part of public funds and subse9uent extraction thereof constitutes malversation. ,ote that numbers ( and " are complexed as illegal exaction with estafa, while in number 6, malversation is a distinct offense. The issuance of the >fficial Receipt is the operative fact to convert the payment into public funds. The payor may demand a refund by virtue of the >fficial Receipt. &n cases where the payor decides to let the official to E4eep the changeF, if the latter should poc4et 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. >n 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. .hat the law re9uires is a receipt in the form prescribed by law, which means official receipt. &llustration' &f 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 >fficial Receipt. >n the third form of illegal exaction =nder the rules and regulations of the government, payment of chec4s not belonging to the taxpayer, but that of chec4s of other persons, should not be accepted to settle the obligation of that person. &llustration'

&llegal exaction demanding a amount<

#b% #c%

)stafa + for deceiving the taxpayer< and 0alversation + for getting the P(;;.;; from the vault.

!lthough the excess P(;;.;; was not covered by the >fficial Receipt,

! taxpayer pays his obligation with a chec4 not his own but pertaining to another. :ecause of that, the chec4 bounced later on.

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The crime committed is illegal exaction because the payment by chec4 is not allowed if the chec4 does not pertain to the taxpayer himself, unless the chec4 is a managerDs chec4 or a certified chec4, amended already as of (88;. #5ee the case of Roman Catholic.% =nder !rticle "(6, if any of these acts penali3ed as illegal exaction is committed by those employed in the :ureau of Customs or :ureau of &nternal Revenue, the law that will apply to them will be the Revised !dministrative Code or the Tariff and Customs Code or ,ational Revenue Code. This crime does not re9uire damage to the government. Article 314. Ot,er Fra.$s "lements 1. 2. 3. . ender is a pu0lic o icer; 5e ta6es ad&antage o #is o icial position; 5e commits any o t#e rauds or deceits enumerated in Article 315 to 31'.

contracts or 0usiness in $#ic# it $as #is o icial duty to inter&ene; 2. "4perts1 ar0itrators1 and pri&ate accountants $#o1 in li6e manner1 too6 part in any contract or transaction connected $it# t#e estate or property in t#e appraisal1 distri0ution or ad@udication o $#ic# t#ey #ad acted; ;uardians and e4ecutors $it# respect to t#e property 0elonging to t#eir $ards or t#e estate.

3.

Sectio 14@ Article 2I o( t,e Co stit.tio Co <enator or Mem0er o t#e 5ouse o 2epresentati&es may personally appear as counsel 0e ore any court o @ustice or 0e ore t#e "lectoral Tri0unals1 or 3uasi> @udicial and ot#er administrati&e 0odies. Ceit#er s#all #e1 directly or indirectly1 0e interested inancially in any contract $it#1 or in any ranc#ise or special pri&ilege granted 0y t#e ;o&ernment or any su0di&ision1 agency or instrumentality t#ereo 1 including any go&ernment>o$ned or controlled corporation or its su0sidiary1 during #is term o o ice. 5e s#all not inter&ene in any matter 0e ore any o ice o t#e go&ernment or #is pecuniary 0ene it or $#ere #e may 0e called upon to act on account o #is o ice. Sectio 18@ Article 2II o( t,e Co stit.tio

Article 31!. %ro,i9ite$ Tra sactio s "lements 1. 2. . ender is an appointi&e pu0lic o icer; 5e 0ecomes interested1 directly or indirectly1 in any transaction o e4c#ange or speculation; T#e transaction ta6es place $it#in t#e territory su0@ect to #is @urisdiction; 5e 0ecomes interested in t#e transaction during #is incum0ency. T#e -resident1 (ice>-resident1 t#e Mem0ers o t#e Ca0inet and t#eir deputies or assistant s#all not1 unless ot#er$ise pro&ided in t#is Constitution1 #old any ot#er o ice or employment during t#eir tenure. T#ey s#all not1 during said tenure1 directly or indirectly1 practice any ot#er pro ession1 participate in any 0usiness1 or 0e inancially interested in any contract $it#1 or in any ranc#ise1 or special pri&ilege granted 0y t#e ;o&ernment or any su0di&ision1 agency or instrumentality t#ereo 1 including go&ernment>o$ned or controlled corporations or t#eir su0sidiaries. T#ey s#all strictly a&oid con lict o interest in t#e conduct o t#eir o ice. Sectio 3@ Article IG;A o( t,e Co stit.tio -ersons lia0le 1. -u0lic o icer $#o1 directly or indirectly1 0ecame interested in any Co mem0er o a Constitutional Commission s#all1 during #is tenure1 #old any o ice or employment. Ceit#er s#all #e

3.

4.

Article 31'. %ossessio o( %ro,i9ite$ I terest A# A %.9lic O((icer

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engage in t#e practice o any pro ession or in t#e acti&e management or control o any 0usiness $#ic# in any $ay may 0e a ected 0y t#e unctions o #is o ice1 nor s#all #e 0e inancially interested1 directly or indirectly1 in any contract $it#1 or in any ranc#ise or pri&ilege granted 0y t#e go&ernment1 or any o its su0di&isions1 agencies1 or instrumentalities1 including go&ernment> o$ned or controlled corporations or t#eir su0sidiaries. Article 31). Mal0ersatio o( %.9lic F. $s or %ro"ert# - %res.&"tio o( Mal0ersatio Acts punis#ed 1. 2. 3. Appropriating property; Ta6ing same; or pu0lic unds or t#e

malversation is not committed unless there is conspiracy. &t is not necessary that the offender profited because somebody else may have misappropriated the funds in 9uestion for as long as the accountable officer was remiss in his duty of safe4eeping 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 rec4less 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.

misappropriating

6.estio 7 A s+er A#at crime under t#e 2e&ised -enal Code carries t#e same penalty $#et#er committed intentionally or t#roug# negligence= 0alversation under !rticle "(?. There is no crime of malversation through negligence. The crime is malversation, plain and simple, whether committed through dolo or culpa. There is no crime of malversation under !rticle 6-$ + on criminal negligence + because in malversation under !rticle "(?, the same penalty is imposed whether the malversation results from negligence or was the product of deliberate act. 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. &f he is not the one accountable but somebody else, the crime committed is theft. &t will be 9ualified theft if there is abuse of confidence. !ccountable officer does not refer only to cashier, disbursing officers or property custodian. !ny public officer having custody of public funds or property for which he is accountable can commit the crime of malversation if he would

Consenting1 or t#roug# a0andonment or negligence1 permitting any ot#er person to ta6e suc# pu0lic unds or property; and 7eing ot#er$ise guilty o t#e misappropriation or mal&ersation o suc# unds or property. acts o

4.

"lements common to all mal&ersation under Article 217 1. 2. . ender is a pu0lic o icer;

5e #ad t#e custody or control o unds or property 0y reason o t#e duties o #is o ice; T#ose unds or property $ere pu0lic unds or property or $#ic# #e $as accounta0le; 5e appropriated1 too61 misappropriated or consented or1 t#roug# a0andonment or negligence1 permitted anot#er person to ta6e t#em.

3.

4.

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. &f the fund or property, though public in character is the responsibility of another officer,

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misappropriate such fund or property or allow others to do so.

6.estio 7 A s+er T#ere $as a long line o payors on t#e last day o payment or residence certi icates. "mployee A o t#e municipality placed all #is collections inside #is ta0le and re3uested #is employee 7 to $atc# o&er #is ta0le $#ile #e goes to t#e restroom. 7 too6 ad&antage o AEs a0sence and too6 -5*.** out o t#e collections. A returned and ound #is money s#ort. A#at crimes #a&e 0een committed= ! is guilty of malversation through negligence because he did not exercise due diligence in the safe4eeping of the funds when he did not loc4 the drawer of his table. &nsofar as : is concerned, the crime is 9ualified theft. =nder jurisprudence, when the public officer leaves his post without loc4ing his drawer, there is negligence. Thus, he is liable for the loss. &llustration' ! government cashier did not bother to put the public fund in the public safeJvault but just left it in the drawer of his table which has no loc4. The next morning when he came bac4, 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. ! private person may malversation under situations' also commit the following

6.estio s 7 A s+ers 1. An unlicensed irearm $as con iscated 0y a policeman. %nstead o turning o&er t#e irearm to t#e property custodian or t#e prosecution o t#e o ender1 t#e policeman sold t#e irearm. A#at crime $as committed= The crime committed is malversation because that firearm is subject to his accountability. Having ta4en custody of the firearm, he is supposed to account for it as evidence for the prosecution of the offender. 2. Can t#e 0uyer 0e lia0le under t#e Anti> encing la$= ,o. The crime is neither theft nor robbery, but malversation. 3. A mem0er o t#e -#ilippine Cational -olice $ent on a0sence $it#out lea&e. 5e $as c#arged $it# mal&ersation o t#e irearm issued to #im. A ter t$o years1 #e came out o #iding and surrendered t#e irearm. A#at crime $as 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. .hen private property is attached or sei3ed by public authority and the public officer accountable therefor misappropriates the same, malversation is committed also. &llustration'

#(% #"%

Conspiracy with a public officer in committing malversation< .hen he has become an accomplice or accessory to a public officer who commits malversation< .hen 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< .hen he is constituted as the depositary or administrator of funds or property sei3ed or attached by public authority even though said

&f a sheriff levied the property of the defendants and absconded with it, he is not liable of 9ualified theft but of malversation even though the property belonged to a private person. The sei3ure of the property or fund impressed it with the character of being part of the public funds it being in custodia legis. 2or 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. !bsent such relation, the crime could be theft, simple or 9ualified.

#6%

#*%

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funds or property belong to a private individual. &llustration' 0unicipal treasurer connives with outsiders to ma4e it appear that the office of the treasurer was robbed. He wor4ed overtime and the co conspirators barged in, hog tied the treasurer and made it appear that there was a robbery. Crime committed is malversation because the municipal treasurer was an accountable officer. ,ote that damage on the part of the government is not considered an essential element. &t is enough that the proprietary rights of the government over the funds have been disturbed through breach of trust. &t is not necessary that the accountable public officer should actually misappropriate the fund or property involved. &t is enough that he has violated the trust reposed on him in connection with the property. &llustration' #(% &t is a common practice of government cashiers to change the chec4s of their friends with cash in their custody, sometimes at a discount. The public officer 4nows that the chec4 is good because the issuer thereof is a man of name. 5o he changed the same with cash. The chec4 turned out to be good. .ith that act of changing the cash of the government with the chec4 of a private person, even though the chec4 is good, malversation is committed. The reason is that a chec4 is cleared only after three days. @uring that period of three days, the government is being denied the use of the public fund. .ith more reason if that chec4 bounce because the government suffers. #"% !n accountable public officer, out of la3iness, declares that the payment was made to him after he had cleaned his table and loc4ed his safe for the collection of the day. ! taxpayer came and he insisted that he pay the amount so that he will not return the next day. 5o he accepted the payment but is too la3y to open the combination of the

public safe. He just poc4eted the money. .hen he came home, the money was still in his poc4et. The next day, when he went bac4 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. /overnment 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. !ny 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. &llustration' .hen taxpayers pay their accountabilities to the government by way of taxes or licenses li4e registration of motor vehicles, the taxpayer does not bother to collect loose change. 5o the government cashier accumulates the loose change until this amounts to a si3able sum. &n order to avoid malversation, the cashier did not separate what is due the government which was left to her by way of loose change. &nstead, he gets all of these and 4eeps it in the public vaultJsafe. !fter the payment of the taxes and licenses is through, he gets all the official receipts and ta4es the sum total of the payment. He then opens the public vault and counts the cash. .hatever will be the excess or the overage, he gets. &n this case, malversation is committed. ,ote 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. >nce they are commingled, you do not 4now anymore which belong to the government and which belong to the private persons. 5o that a public vault or safe should not be used to hold any fund other that what is due to the government. .hen does presumption misappropriation ariseO of

.hen 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. !udit should be

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1)1

made to determine if there was shortage. !udit must be complete and trustworthy. &f 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 li9uidated. ! 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 4nown. &n /u0a%a) v. San#i%anba.an, 16& SCRA 183, 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. &n /e (uz0an v. Peo!le, 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. !n 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. &n Cabello v. San#i%anba.a, 197 SCRA 91, 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. !n accused charged with willful malversation may be convicted of 0alversation through her negligee.

&n 2uizo v. San#i%anba.an, the accused incurred shortage #P(.?*% mainly because the auditor disallowed certain cash advances the accused granted to employees. :ut on the same date that the audit was made, he partly reimbursed the amount and paid it in full three days later. The 5upreme 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 P(.?* and together with the disallowed advances were fully reimbursed within a reasonable time. There was no negligence, malice, nor intent to defraud. &n Cia0*ranca ,r. v. San#i%anba.an, 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. &n Parun%ao v. San#i%anba.an, 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 !rticle "";%. To do so would violate accusedDs right to be informed of nature of accusation against him. Technical malversation is not included in the crime of malversation. &n malversation, the offender misappropriates public funds or property for his own personal use, or allows any other person to ta4e such funds or property for the latterDs own personal use. &n 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' 2ile the proper information. Article 31/. Fail.re o( Acco. ta9le O((icer to Re $er Acco. ts "lements

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ON

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1)2

1. . ender is pu0lic o icer1 $#et#er in t#e


ser&ice or separated t#ere rom 0y resignation or any ot#er cause;

Article 334. Ille*al .se o( ".9lic (. $s or "ro"ert# "lements

2. 5e is an accounta0le o icer or pu0lic


unds or property;

1. . ender is a pu0lic o icer; 2. T#ere are pu0lic unds or property under


#is administration;

3. 5e is re3uired 0y la$ or regulation to


render account to t#e Commission on Audit1 or to a pro&incial auditor; 4. 5e ails to do so or a period o t$o mont#s a ter suc# accounts s#ould 0e rendered.

3. <uc# und or property $ere appropriated


0y la$ or ordinance;

4. 5e applies suc# pu0lic und or property


to any pu0lic use ot#er t#an or $#ic# it $as appropriated or. &llegal use of public funds or property is also 4nown as technical malversation. The term technical malversation is used because in this crime, the fund or property involved is already appropriated or earmar4ed 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. &nstead 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. 5ince 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. &f 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. &f 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. &llustration' The office lac4ed bond papers. .hat 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.

Article 311. Fail.re o( A Res"o si9le %.9lic O((icer to Re $er Acco. ts 9e(ore Lea0i * t,e Co. tr# "lements

1. . ender is a pu0lic o icer; 2. 5e is an accounta0le o icer or pu0lic


unds or property;

3. 5e unla$ ully lea&es or attempts to


lea&e t#e -#ilippine %slands $it#out securing a certi icate rom t#e Commission on Audit s#o$ing t#at #is accounts #a&e 0een inally settled. .hen an accountable officer leaves the country without first settling his accountability or otherwise securing a clearance from the Commission on !udit regarding such accountability, the implication is that he left the country because he has misappropriated the funds under his accountability. .ho can commit this crimeO ! responsible public officer, not necessarily an accountable one, who leaves the country without first securing clearance from the Commission on !udit. The purpose of the law is to discourage responsible or accountable officers from leaving without first li9uidating their accountability. 0ere leaving without securing clearance constitutes violation of the Revised Penal Code. &t is not necessary that they really misappropriated public funds.

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ON

CRIMINAL LAW

1)3

This crime can also be committed by a private person. &llustration' ! certain road is to be cemented. :ags of cement were already being unloaded at the side. :ut then, rain began to fall so the supervisor of the road building went to a certain house with a garage, as4ed 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, >live, agreed. 5o the bags of cement were transferred to the garage of the private person. !fter the public officer had left, and the wor4ers 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. ,ote 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. 5ee !rticle """. &llustration'

t#at amount. 5e ga&e t#e 0alance to t#e plainti and e4ecuted a promissory note to pay t#e plainti t#e amount spent 0y #im. %s t#ere a crime committed= The 5upreme 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 331. Fail.re to Ma=e Deli0er# o( %.9lic F. $s o( %ro"ert# Acts punis#ed 1. +ailing to ma6e payment 0y a pu0lic o icer $#o is under o0ligation to ma6e suc# payment rom go&ernment unds in #is possession; 2e using to ma6e deli&ery 0y a pu0lic o icer $#o #as 0een ordered 0y competent aut#ority to deli&er any property in #is custody or under #is administration.

2.

"lements o ailure to ma6e payment 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. >ne 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 4new that what was entrusted in his custody is public fund or property. 1. 2. 3. -u0lic o icer #as go&ernment unds in #is possession; 5e is under o0ligation to ma6e payment rom suc# unds; 5e ails to ma6e t#e payment maliciously. 338. Co i0i * Co se ti * to E0asio . ender is a pu0lic o icer; 5e #ad in #is custody or c#arge a prisoner1 eit#er detention prisoner or prisoner 0y inal @udgment; <uc# prisoner escaped custody; rom #is +it, or

Article 1. 2.

6.estio 7 A s+er T#e s#eri 1 a ter #a&ing le&ied on t#e property su0@ect o a @udgment1 conducted a pu0lic auction sale. 5e recei&ed t#e proceeds o t#e pu0lic auction. Actually1 t#e proceeds are to 0e deli&ered to t#e plainti . T#e s#eri 1 a ter deducting t#e s#eri Es ees due to t#e o ice1 spent part o 3. 4.

5e $as in conni&ance $it# t#e prisoner in t#e latterEs escape.

Classes o prisoners in&ol&ed

REVISED ORTEGA LECTURE NOTES

ON

CRIMINAL LAW

1)4

1. 2.

% t#e ugiti&e #as 0een sentenced 0y inal @udgment to any penalty; % t#e ugiti&e is #eld only as detention prisoner or any crime or &iolation o la$ or municipal ordinance.

prisoner, the crime committed by him is delivering prisoners from jail. ,ote 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.

Article 334. E0asio t,ro.*, Ne*li*e ce "lements 1. 2. . ender is a pu0lic o icer; 5e is c#arged $it# t#e con&eyance or custody o a prisoner or prisoner 0y inal @udgment; <uc# prisoner negligence. escapes t#roug#

6.estio 7 A s+er % a pri&ate person approac#ed t#e custodian o t#e prisoner and or a certain consideration1 told t#e custodian to lea&e t#e door o t#e cell unloc6ed or t#e prisoner to escape. A#at crime #ad 0een committed= &t 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. &llustration' ! policeman escorted a prisoner to court. !fter the court hearing, this policeman was shot at with a view to liberate the prisoner from his custody. The policeman fought the attac4er but he was fatally wounded. .hen he could no longer control the prisoner, he went to a nearby house, tal4ed to the head of the family of that house and as4ed him if he could give the custody of the prisoner to him. He said yes. !fter the prisoner was handcuffed in his hands, the policeman expired. Thereafter, the head of the family of that private house as4ed the prisoner if he could afford to give something so that he would allow him to go. The prisoner said, EBes, if you would allow me to leave, you can come with me and & will give the money to you.F This private persons went with the prisoner and when the money was given, he allowed him to go. .hat crimeJs had been committedO =nder !rticle ""$, the crime can be committed by a private person to whom the custody of a prisoner has been confided.

3.

Article 33!. Esca"e o( %riso er . $er t,e C.sto$# o( a %erso ot a %.9lic O((icer "lements 1. 2. . ender is a pri&ate person; T#e con&eyance or custody o a prisoner or person under arrest is con ided to #im; T#e prisoner or person under arrest escapes; . ender consents to t#e escape1 or t#at t#e escape ta6es place t#roug# #is negligence.

3. 4.

The crime is infidelity in the custody of prisoners if the offender involved is the custodian of the prisoner. &f the offender who aided or consented to the prisonerDs 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 !rticle($-. The crime of infidelity in the custody of prisoners can be committed only by the custodian of a prisoner. &f 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

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ON

CRIMINAL LAW

1)5

.here 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, :ribery is also committed. 5o the crime committed by him is infidelity in the custody of prisoners and bribery. &f the crime is delivering prisoners from jail, bribery is just a means, under !rticle ($-, that would call for the imposition of a heavier penalty, but not a separate charge of bribery under !rticle ($-. :ut under !rticle ""$ in infidelity, what is basically punished is the breach of trust because the offender is the custodian. 2or that, the crime is infidelity. &f he violates the trust because of some consideration, bribery is also committed. ! higher degree of vigilance is re9uired. 2ailure to do so will render the custodian liable. The prevailing ruling is against laxity in the handling of prisoners. &llustration' ! prison guard accompanied the prisoner in the toilet. .hile 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. ,egligence contemplated here refers to deliberate abandonment of duty. ,ote, however, that according to a recent 5upreme 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 !rticle ""*. Article 33'. Re&o0al@ Co ceal&e t@ or Destr.ctio o( Doc.&e ts "lements 1. 2. . ender is a pu0lic o icer; 5e a0stracts1 destroys or conceals a document or papers;

3.

<aid document or papers s#ould #a&e 0een entrusted to suc# pu0lic o icer 0y reason o #is o ice; 9amage1 $#et#er serious or not1 to a t#ird party or to t#e pu0lic interest #as 0een caused.

4.

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. &f 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. &llustration' ! 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 !rticle ""-, 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. .ith respect to official documents, infidelity is committed by destroying the document, or removing the document or concealing the document. @amage to public interest is necessary. However, material damage is not necessary. &llustration' &f any citi3en goes to a public office, desiring to go over public records and the custodian of the records had concealed the same so that this citi3en is re9uired to go bac4 for the record to be ta4en out, the crime of infidelity is already committed by the custodian who removed the records and 4ept it in a place where it is not supposed to be 4ept. Here, it is again the breach of public trust which is punished. !lthough there is no material damage caused, mere delay in rendering public service is considered damage. Removal of public records by the custodian does not re9uire that the record be brought out of the premises where it is 4ept. &t is enough that the record be removed from the place where it should be and transferred

REVISED ORTEGA LECTURE NOTES

ON

CRIMINAL LAW

1)!

to another place where it is not supposed to be 4ept. &f damage is caused to the public service, the public officer is criminally liable for infidelity in the custody of official documents. @istinction between infidelity in the custody of public document, estafa and malicious mischief &n infidelity in the custody of public document, the offender is the custodian of the official document removed or concealed. &n estafa, the offender is not the custodian of the document removed or concealed. &n malicious mischief, the offender purposely destroyed and damaged the propertyJdocument.

the public at large. The offender does not have to misappropriate the same. Nust trying to discover or loo4 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 4now what is inside the same. &f he would brea4 the seal or open the closed envelop, indications would be that he tried to find out the contents of the document. 2or that act, he violates the confidence or trust reposed on him. ! crime is already committed regardless of whether the contents of the document are secret or private. &t is enough that it is entrusted to him in a sealed form or in a closed envelope and he bro4e the seal or opened the envelop. Public trust is already violated if he managed to loo4 into the contents of the document. @istinction between infidelity and theft There is infidelity if the offender opened the letter but did not ta4e the same. There is theft if there is intent to gain when the offender too4 the money.

.here in case for bribery or corruption, the monetary considerations was mar4ed as exhibits, such considerations ac9uires the nature of a document such that if the same would be spent by the custodian the crime is not malversation but &nfidelity in the custody of public records, because the money adduced as exhibits parta4e the nature of a document and not as money. !lthough such monetary consideration ac9uires the nature of a document, the best evidence rule does not apply here. )xample, photocopies may be presented in evidence. Article 33). O((icer Area=i * Seal "lements 1. 2. 3. 4. . ender is a pu0lic o icer; 5e is c#arged $it# t#e custody o papers or property; T#ese papers or property are sealed 0y proper aut#ority; 5e 0rea6s t#e seal or permits t#em to 0e 0ro6en.

,ote that he document must be complete in legal sense. &f the writings are mere form, there is no crime. &llustration' !s regard the payroll, which has not been signed by the 0ayor, no infidelity is committed because the document is not yet a payroll in the legal sense since the document has not been signed yet. &n Kbrea4ing of sealK, the word Kbrea4ingK should not be given a literal meaning. )ven if actually, the seal was not bro4en, because the custodian managed to open the parcel without brea4ing the seal. Article 33/. Doc.&e ts "lements 1. 2. . ender is a pu0lic o icer; Any closed papers1 documents1 or o0@ect are entrusted to #is custody; O"e i * o( Close$

&f the official document is sealed or otherwise placed in an official envelope, the element of damage is not re9uired. The mere brea4ing 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

REVISED ORTEGA LECTURE NOTES

ON

CRIMINAL LAW

1)7

2. 3. 5e opens or permits to 0e opened said closed papers1 documents or o0@ects; 5e does not #a&e proper aut#ority. 3.

5e 6no$s o t#e secrets o a pri&ate indi&idual 0y reason o #is o ice; 5e re&eals suc# secrets $it#out aut#ority or @usti ia0le reason. O"e Diso9e$ie ce

4.

Article 381. Article 331. Re0elatio o( Secrets 9# A O((icer Acts punis#ed 1. 2e&ealing any secrets 6no$n to t#e o ending pu0lic o icer 0y reason o #is o icial capacity; "lements 1. 2. 3. . ender is a pu0lic o icer; 5e 6no$s o a secret 0y reason o #is o icial capacity; 4. 5e re&eals suc# secret $it#out aut#ority or @usti ia0le reasons; 9amage1 great or small1 is caused to t#e pu0lic interest. "lements 1. 2. 3.

. icer is a @udicial or e4ecuti&e o icer; T#ere is a @udgment1 decision or order o a superior aut#ority; <uc# @udgment1 decision or order $as made $it#in t#e scope o t#e @urisdiction o t#e superior aut#ority and issued $it# all t#e legal ormalities; 5e1 $it#out any legal @usti ication1 openly re uses to e4ecute t#e said @udgment1 decision or order1 $#ic# #e is duty 0ound to o0ey.

4. 2.

9eli&ering $rong ully papers or copies o papers o $#ic# #e may #a&e c#arge and $#ic# s#ould not 0e pu0lis#ed. "lements

Article 383. Diso9e$ie ce to Or$er o( S."erior O((icer W,e Sai$ Or$er Was S.s"e $e$ 9# I (erior O((icer "lements 1. 2. . ender is a pu0lic o icer; An order is issued 0y #is superior or e4ecution; 5e #as or any reason suspended t#e e4ecution o suc# order; 5is superior disappro&es t#e suspension o t#e e4ecution o t#e order; . ender diso0eys #is superior despite t#e disappro&al o t#e suspension.

1. 2. 3. 4.

. ender is a pu0lic o icer; 5e #as c#arge o papers; T#ose papers s#ould not 0e pu0lis#ed; 5e deli&ers t#ose papers or copies t#ereo to a t#ird person; T#e deli&ery is $rong ul; 9amage is caused to pu0lic interest. 3. 4.

5.

5. !.

Article 388. Re(.sal o( Assista ce 1. . ender is a pu0lic o icer; t#e o ender t#at #e lend #is cooperation to$ards t#e administration o @ustice or ot#er pu0lic ser&ice;

Article 384. %.9lic O((icer Re0eali * Secrets o( %ri0ate i $i0i$.al "lements 1. . ender is a pu0lic o icer;

2. A competent aut#ority demands rom

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ON

CRIMINAL LAW

1)'

3.

. ender ails to do so maliciously.

fireman was ordered by the authority to put out the fire and he refused, the crime is refusal of assistance. &f he receives consideration therefore, bribery is committed. :ut mere demand will fall under the prohibition under the provision of Republic !ct ,o. 6;(8 #!nti /raft and Corrupt Practices !ct%. Article 384. Electi0e O((ice "lements 1. 2. 3. . ender is elected 0y election to a pu0lic o ice; popular Re(.sal to Disc,ar*e

!ny public officer who, upon being re9uested 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. &t was already held that the policeman could be prosecuted under this crime of refusal of assistance and not that of dereliction of duty. &llustration' ! 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. !s 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. &t is not always a case or in connection with the appearance in court that this crime may be committed. !ny refusal by the public officer to render assistance when demanded by competent public authority, as long as the assistance re9uested 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. ,ote that the re9uest must come from one public officer to another. &llustration' ! fireman was as4ed by a private person for services but was refused by the former for lac4 of EconsiderationF. &t was held that the crime is not refusal of assistance because the re9uest did not come from a public authority. :ut if the

5e re uses to 0e s$orn in or to disc#arge t#e duties o said o ice; T#ere is no legal moti&e or suc# re usal to 0e s$orn in or to disc#arge t#e duties o said o ice.

Article 38!. Maltreat&e t o( %riso ers "lements 1. 2. 3. . ender is a pu0lic employee; o icer or

5e #as under #is c#arge a prisoner or detention prisoner; 5e maltreats suc# prisoner in eit#er o t#e ollo$ing manners? a. 7y o&erdoing #imsel in t#e correction or #andling o a prisoner or detention prisoner under #is c#arge eit#er / (1) 7y t#e imposition o punis#ment not aut#ori:ed 0y t#e regulations; or 7y in licting suc# punis#ments (t#ose aut#ori:ed) in a cruel and #umiliating manner; or

(2)

0.

7y maltreating suc# prisoners to e4tort a con ession or to o0tain some in ormation rom t#e prisoner.

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ON

CRIMINAL LAW

1))

This is committed only by such public officer charged with direct custody of the prisoner. ,ot all public officer can commit this offense. &f 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 re9uire physical injuries. !ny 4ind of punishment not authori3ed or though authori3ed if executed in excess of the prescribed degree. &llustration' 0a4e him drin4 dirty water, sit on ice, eat on a can, ma4e him strip, hang a sign on his nec4 saying EsnatcherF. :ut if as a result of the maltreatment, physical injuries were caused to the prisoner, a separate crime for the physical injuries shall be filed. Bou do not complex the crime of physical injuries with the maltreatment because the way !rticle "6$ is worded, it prohibits the complexing of the crime. &f the maltreatment was done in order to extort confession, therefore, the constitutional right of the prisoner is further violated. The penalty is 9ualified to the next higher degree. The offended party here must be a prisoner in the legal sense. The mere fact that a private citi3en had been apprehended or arrested by a law enforcer does not constitute him a prisoner. To be a prisoner, he must have been boo4ed and incarcerated no matter how short it is. &llustration' ! certain snatcher was arrested by a law enforcer, brought to the police precinct, turned over to the custodian of that police precinct. )very time a policeman entered the police precinct, he would as4, E.hat is this fellow doing hereO .hat crime has he committedOF. The other policeman would then tell, EThis fellow is a snatcher.F 5o 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.

:ut 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. :ut if it is the custodian who effected the maltreatment, the crime will be maltreatment of prisoners plus a separate charge for physical injuries. &f a prisoner who had already been boo4ed was ma4e 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 na4ed and he used both of his hands to cover his private part, the crime of maltreatment of prisoner had already been committed. !fter having been boo4ed, the prisoner was made to show any sign on his arm, hand or his nec4< E@o not follow my footsteps, & am a thief.F That is maltreatment of prisoner if the offended party had already been boo4ed and incarcerated no matter how short, as a prisoner. :efore this point in time, when he is not yet a prisoner, the act of hanging a sign on his nec4 will only amount to slander because the idea is to cast dishonor. !ny injury inflicted upon him will only give rise to the crime of physical injuries. Article 38'. A tici"atio %.9lic O((ice "lements 1. . ender is entitled to #old a pu0lic o ice or employment1 eit#er 0y election or appointment; T#e la$ re3uires t#at #e s#ould irst 0e s$orn in andOor s#ould irst gi&e a 0ond; 5e assumes t#e per ormance o t#e duties and po$ers o suc# o ice; 5e #as not ta6en #is oat# o o ice andOor gi&en t#e 0ond re3uired 0y la$. o( D.ties o( A

2.

3. 4.

Article 38). %rolo *i * %er(or&a ce o( D.ties a $ %o+ers "lements

REVISED ORTEGA LECTURE NOTES

ON

CRIMINAL LAW

2**

1. 2.

. ender is #olding a pu0lic o ice; T#e period pro&ided 0y la$1 regulations or special pro&ision or #olding suc# o ice1 #as already e4pired; 5e continues to e4ercise t#e duties and po$ers o suc# o ice.

1. 2.

. ender is an o icer o t#e e4ecuti&e 0ranc# o t#e go&ernment; 5e (a) assumes @udicial po$ers1 or (0) o0structs t#e e4ecution o any order or decision rendered 0y any @udge $it#in #is @urisdiction.

3.

Article 343. Diso9e#i * ReB.est (or DisB.ali(icatio Article 38/. %ositio "lements 1. 2. . ender is a pu0lic o icer; 5e ormally position; accepted; 4. 5e a0andons #is o ice to t#e detriment o t#e pu0lic ser&ice. Us.r"atio o( Le*islati0e Article 348. Or$ers or ReB.est 9# E?ec.ti0e O((icers to A # <.$icial A.t,orit# "lements 1. 2. 3. . ender is an e4ecuti&e o icer; 5e addresses any order or suggestion to any @udicial aut#ority; T#e order or suggestion relates to any case or 0usiness coming $it#in t#e e4clusi&e @urisdiction o t#e courts o @ustice. resigns rom #is 3. T#ere is a 3uestion 0roug#t 0e ore t#e proper aut#ority regarding #is @urisdiction1 $#ic# is not yet decided; orm continuing t#e proceeding; A9a $o &e t o( O((ice or "lements 1. 2. . ender is a pu0lic o icer; A proceeding is pending 0e ore suc# pu0lic o icer;

3. 5is resignation #as not yet 0een

4. 5e #as 0een la$ ully re3uired to re rain 5. 5e continues t#e proceeding.

Article 381. %o+ers "lements 1. 2.

. ender is an e4ecuti&e or @udicial o icer; 5e (a) ma6es general rules or regulations 0eyond t#e scope o #is aut#ority or (0) attempts to repeal a la$ or (c) suspends t#e e4ecution t#ereo . Us.r"atio o( E?ec.ti0e

Article 344. F. ctio s "lements 1. 2.

Article 344. U la+(.l A""oi t&e ts "lements 1. 2. 3. 4. . ender is a pu0lic o icer; 5e nominates or appoints a person to a pu0lic o ice; <uc# person lac6s 3uali ications t#ere ore; t#e legal

. ender is a @udge; 5e (a) assumes a po$er pertaining to t#e e4ecuti&e aut#orities1 or (0) o0structs t#e e4ecuti&e aut#orities in t#e la$ ul e4ercise o t#eir po$ers. Us.r"atio o( <.$icial

Article 341. F. ctio s "lements

. ender 6no$s t#at #is nominee or appointee lac6s t#e 3uali ication at t#e time #e made t#e nomination or appointment.

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&llustration' Article 34!. A9.ses a*ai st C,astit# Acts punis#ed 1. <oliciting or ma6ing immoral or indecent ad&ances to a $oman interested in matters pending 0e ore t#e o ending o icer or decision1 or $it# respect to $#ic# #e is re3uired to su0mit a report to or consult $it# a superior o icer; <oliciting or ma6ing immoral or indecent ad&ances to a $oman under t#e o enderEs custody; <oliciting or ma6ing immoral or indecent ad&ances to t#e $i e1 daug#ter1 sister or relati&e $it#in t#e same degree 0y a inity o any person in t#e custody o t#e o ending $arden or o icer. 0ere 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 ma4e 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 ma4e 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' #(% The woman, who is the offended party, is the party in interest in a case where the offended is the investigator or he is re9uired to render a report or he is re9uired 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. &f 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 ta4ing advantage of his position over the case. 2or that immoral or indecent solicitation, a crime is already committed even if the woman did not accede to the solicitation. )ven 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 see4s to penali3e the ta4ing advantage of official duties. &t is immaterial whether the woman did not agree or agreed to the solicitation. &f the woman did not agree and the public officer involved pushed through with the advances, attempted rape may have been committed.

2.

3.

"lements? 1. 2. 3. . ender is a pu0lic o icer; 5e solicits or ma6es immoral or indecent ad&ances to a $oman; <uc# $oman is / a. interested in matters pending 0e ore t#e o ender or decision1 or $it# respect to $#ic# #e is re3uired to su0mit a report to or consult $it# a superior o icer; or under t#e custody o t#e o ender $#o is a $arden or ot#er pu0lic o icer directly c#arged $it# t#e care and custody o prisoners or persons under arrest; or t#e $i e1 daug#ter1 sister or relati&e $it#in t#e same degree 0y a inity o t#e person in t#e custody o t#e o ender.

0.

c.

The name of the crime is misleading. &t 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 ma4ing of immoral or indecent solicitation or advances.

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#"%

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. &f the warden or jailer of the woman should ma4e 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. 0en have no chastity. &f the warden is also a woman but is a lesbian, it is submitted that this crime could be committed, as the law does not re9uire that the custodian be a man but re9uires that the offended be a woman. &mmoral or indecent advances contemplated here must be persistent. &t must be determined. ! mere jo4e would not suffice. &llustrations' #(% !n investigating prosecutor where the woman is charged with estafa as the respondent, made a remar4 to the woman, thus' EBou 4now, the way of deciding this case depends on me. & can just say this is civil in character. & want to see a movie tonight and & want a companion.F 5uch a remar4, which is not discerned if not persistent will not give rise to this crime. However, if the prosecutor 4ept on calling the woman and inviting her, that ma4es the act determined and the crime is committed. ! jailer was prosecuted for abuse against chastity. The jailer said, E&t was mutual on their part. & did not really force my way upon the woman. The woman fell in love with me, & fell in love with the woman.F The woman became pregnant. The woman admitted that she was not forced. Nust the same, the jailer was #6%

convicted of abuse against chastity. Aegally, a prisoner is an accountability of the government. 5o the custodian is not supposed to interfere. )ven if the prisoner may li4e it, he is not supposed to do that. >therwise, abuse against chastity is committed. :eing responsible for the pregnancy is itself ta4ing advantage the prisoner. &f he forced himself against the will of the woman, another crime is committed, that is, rape aside from abuse against chastity. Bou cannot consider the abuse against chastity as absorbed in the rape because the basis of penali3ing the acts is different from each other. 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 5ection "1 of Republic !ct ,o. 6;(8 #!nti graft and Corrupt Practices !ct%. .hy is the mother left outO :ecause it is the mother who easily succumbs to protect her child. &f the offender were not the custodian, then crime would fall under Republic !ct ,o. 6;(8 #The !nti /raft and Corrupt Practices !ct%. Re".9lic Act No. Harass&e t Act> )/)) :A ti;Se?.al

#"%

Committed 0y any person #a&ing aut#ority1 in luence or moral ascendancy o&er anot#er in a $or61 training or education en&ironment $#en #e or s#e demands1 re3uests1 or ot#er$ise re3uires any se4ual a&or rom t#e ot#er regardless o $#et#er t#e demand1 re3uest or re3uirement or

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su0mission is accepted 0y t#e o0@ect o t#e said act ( or a passing grade1 or granting o sc#olars#ip or #onors1 or payment o a stipend1 allo$ances1 0ene its1 considerations; a&ora0le compensation terms1 conditions1 promotions or $#en t#e re usal to do so results in a detrimental conse3uence or t#e &ictim). Also #olds lia0le any person $#o directs or induces anot#er to commit any act o se4ual #arassment1 or $#o cooperates in t#e commission1 t#e #ead o t#e o ice1 educational or training institution solidarily. Complaints to 0e #andled 0y a committee on decorum1 $#ic# s#all 0e determined 0y rules and regulations on suc#. Administrati&e sanctions s#all not 0e a 0ar to prosecution in t#e proper courts or unla$ ul acts o se4ual #arassment. TITLE 2III. CRIMES AGAINST %ERSONS Crimes against persons 1. 2. 3. 4. 5. !. 7. '. ). 1*. 11. 12. -arricide (Art. 24!); Murder (Art. 24'); 5omicide (Art. 24)); 9eat# caused in a tumultuous a ray (Art. 251); -#ysical in@uries in licted tumultuous a ray (Art. 252); in a

15. 1!. 17. 1'. 1). 2*.

Mutilation (Art. 2!2); <erious p#ysical in@uries (Art. 2!3); Administering in@urious su0stances or 0e&erages (Art. 2!4); Bess serious p#ysical in@uries (Art. 2!5); <lig#t p#ysical in@uries maltreatment (Art. 2!!); and 2ape (Art. 2!!>A). and

The essence of crime here involves the ta4ing of human life, destruction of the fetus or inflicting injuries. !s to the ta4ing of human life, you have' #(% #"% #6% #*% #$% Parricide< 0urder< Homicide< &nfanticide< and /iving assistance to suicide.

,ote that parricide is premised on the relationship between the offender and the offended. The victim is three days old or older. ! stranger who conspires with the parent is guilty of murder. &n infanticide, the victim is younger than three days or ?" hours old< can be committed by a stranger. &f a stranger who conspires with parent, both commit the crime of infanticide. Article 34'. %arrici$e "lements 1. 2. 3. A person is 6illed; T#e deceased is 6illed 0y t#e accused; T#e deceased is t#e at#er1 mot#er1 or c#ild1 $#et#er legitimate or illegitimate1 or a legitimate ot#er ascendant or ot#er descendant1 or t#e legitimate spouse1 o t#e accused.

;i&ing assistance to suicide (Art. 253); 9isc#arge o irearms (Art. 254); %n anticide (Art. 255); %ntentional a0ortion (Art. 25!); 8nintentional a0ortion (Art. 257); A0ortion practiced 0y t#e $oman #ersel or 0y #er parents (Art. 25'); A0ortion practiced 0y a p#ysician or mid$i e and dispensing o a0orti&es (Art. 25)); 9uel (Art. 2!*); C#allenging to a duel (Art. 2!1);

13. 14.

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This is a crime committed between people who are related by blood. :etween 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. &f 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. &llustration' ! is the parent of :, the illegitimate daughter. : married C and they begot a legitimate child @. &f @, daughter of : and C, would 4ill !, the grandmother, the crime cannot be parricide anymore because of the intervening illegitimacy. The relationship between ! and @ is no longer legitimate. Hence, the crime committed is homicide or murder. 5ince 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 ma4e 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. &llustration' ! spouse of : conspires with C to 4ill :. C is the stranger in the relationship. C 4illed : with treachery. The means employed is made 4nown to ! and ! agreed that the 4illing will be done by poisoning. !s far as ! is concerned, the crime is based on his relationship with :. &t is therefore parricide. The treachery that was employed in 4illing :ong will only be generic aggravating circumstance in the crime of

parricide because this is not one crime that re9uires a 9ualifying circumstance. :ut that same treachery, insofar as C is concerned, as a stranger who cooperated in the 4illing, ma4es the crime murder< treachery becomes a 9ualifying circumstance. &n 4illing a spouse, there must be a valid subsisting marriage at the time of the 4illing. !lso, the information should allege the fact of such valid marriage between the accused and the victim. &n a ruling by the 5upreme 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. &n such cases, relationship shall be appreciated as generic aggravating circumstance. The 5upreme Court has also ruled that 0uslim husbands with several wives can be convicted of parricide only in case the first wife is 4illed. There is no parricide if the other wives are 4illed although their marriage is recogni3ed as valid. This is so because a Catholic man can commit the crime only once. &f a 0uslim husband could commit this crime more than once, in effect, he is being punished for the marriage which the law itself authori3ed him to contract. That the mother 4illed her child in order to conceal her dishonor is not mitigating. This is immaterial to the crime of parricide, unli4e in the case of infanticide. &f the child is less than three days old when 4illed, the crime is infanticide and intent to conceal her dishonor is considered mitigating. Article 34). Deat, or %,#sical I D.ries I (licte$ . $er E?ce"tio al Circ.&sta ces "lements 1. A legally married person1 or a parent1 surprises #is spouse or #is daug#ter1 t#e latter under 1' years o age and li&ing $it# #im1 in t#e act o committing se4ual intercourse $it# anot#er person; 5e or s#e 6ills any or 0ot# o t#em1 or in licts upon any or 0ot# o t#em any serious p#ysical in@ury in t#e act or immediately t#erea ter;

2.

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2*5

3.

5e #as not promoted or acilitated t#e prostitution o #is $i e or daug#ter1 or t#at #e or s#e #as not consented to t#e in idelity o t#e ot#er spouse.

The phrase Eimmediately thereafterF has been interpreted to mean that between the surprising and the 4illing of the inflicting of the physical injury, there should be no brea4 of time. &n 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 dise9uilibrium. The offended spouse has no time to regain his self control. &f there was already a brea4 of time between the sexual act and the 4illing or inflicting of the injury, the law presupposes that the offender regained his reason and therefore, the article will not apply anymore. !s long as the act is continuous, the article still applies. .here the accused surprised his wife and his paramour in the act of illicit intercourse, as a result of which he went out to 4ill the paramour in a fit of passionate outburst. !lthough 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 4illed, it was held in Peo!le v. Abarca, 1$3 SCRA 73$, that !rticle "*? 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, loo4ed for a firearm in Tacloban City. !rticle "*? does not provide that the victim is to be 4illed instantly by the accused after surprising his spouse in the act of intercourse. .hat is re9uired is that the 4illing is the proximate result of the outrage overwhelming the accused upon the discovery of the infidelity of his spouse. The 4illing should have been actually motivated by the same blind impulse. &llustration' ! upon coming home, surprised his wife, :, together with C. The paramour was fast

Two stages contemplated before the article will apply' #(% .hen the offender surprised the other spouse with a paramour or mistress. The attac4 must ta4e place while the sexual intercourse is going on. &f the surprise was before or after the intercourse, no matter how immediate it may be, !rticle "*? does not apply. The offender in this situation only gets the benefit of a mitigating circumstance, that is, sufficient provocation immediately preceding the act. .hen the offender 4ills or inflicts serious physical injury upon the other spouse andJor paramour while in the act of intercourse, or immediately thereafter, that is, after surprising.

#"%

Bou 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. 5o if the surprising too4 place before any actual sexual intercourse could be done because the parties are only in their preliminaries, the article cannot be invo4ed anymore. &f the surprising too4 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. !s long as the surprising too4 place while the sexual intercourse was going on, the second stage becomes immaterial. &t is either 4illing or inflicting physical injuries while in that act or immediately thereafter. &f the 4illing was done while in that act, no problem. &f the 4illing was done when sexual intercourse is finished, a problem arises. 2irst, were they surprised in actual sexual intercourseO 5econd, were they 4illed immediately thereafterO

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enough to jump out of the window. ! got the bolo and chased C but he disappeared among the neighborhood. 5o ! started loo4ing around for about an hour but he could not find the paramour. ! gave up and was on his way home. =nfortunately, the paramour, thin4ing that ! was no longer around, came out of hiding and at that moment, ! saw him and hac4ed him to death. There was a brea4 of time and !rticle "*? does not apply anymore because when he gave up the search, it is a circumstance showing that his anger had already died down. !rticle "*?, 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. @eath under exceptional character can not be 9ualified by either aggravating or mitigating circumstances. &n the case of Peo!le v. Abarca, 1$3 SCRA 73$, two persons suffered physical injuries as they were caught in the crossfire when the accused shot the victim. ! complex crime of double frustrated murder was not committed as the accused did not have the intent to 4ill the two victims. Here, the accused did not commit murder when he fired at the paramour of his wife. &nflicting death under exceptional circumstances is not murder. The accused was held liable for negligence under the first part, second paragraph of !rticle 6-$, that is, less serious physical injuries through simple negligence. ,o aberratio ictus because he was acting lawfully. ! person who acts under !rticle "*? is not committing a crime. 5ince this is merely an exempting circumstance, the accused must first be charged with' #(% #"% Parricide + if the spouse is 4illed< 0urder or homicide + depending on how the 4illing was done insofar as the paramour or the mistress is concerned< Homicide + through simple negligence, if a third party is 4illed< Physical injuries + through rec4less imprudence, if a third party is injured.

the penalty is only destierro. The banishment is intended more for the protection of the offender rather than a penalty. &f 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. &f the offender surprised a couple in sexual intercourse, and believing the woman to be his wife, 4illed them, this article may be applied if the mista4e 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 (1 years of age in actual sexual intercourse while Eliving with them.F The act should have been committed by the daughter with a seducer. The two stages also apply. The parents cannot invo4e this provision if, in a way, they have encouraged the prostitution of the daughter. The phrase Eliving with themF 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. &f it was done in a motel, the article does not apply. &llustration' ! abandoned his wife : for two years. To support their children, ! had to accept a relationship with another man. ! learned of this, and surprised them in the act of sexual intercourse and 4illed :. ! is not entitled to !rticle "*1. 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 0TC because the crime charged is homicide or murder. The exceptional circumstances, not

#6% #*%

&f death results or the physical injuries are serious, there is criminal liability although

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being elements of the crime but a matter of defense, are not pleaded. &t practically grants a privilege amounting to an exemption for ade9uate punishment. Article 34/. M.r$er "lements 1. 2. 3. A person $as 6illed; Accused 6illed #im; T#e 6illing $as attended 0y any o t#e ollo$ing 3uali ying circumstances / a. Ait# treac#ery1 ta6ing ad&antage o superior strengt#1 $it# t#e aid or armed men1 or employing means to $a6en t#e de ense1 or o means or persons to insure or a ord impunity; %n consideration o a price1 re$ard or promise; 7y means o inundation1 ire1 poison1 e4plosion1 s#ip$rec61 stranding o a &essel1 derailment or assault upon a railroad1 all o an airs#ip1 0y means o motor &e#icles1 or $it# t#e use o any ot#er means in&ol&ing great $aste and ruin; .n occasion o any o t#e calamities enumerated in t#e preceding paragrap#1 or o an eart#3ua6e1 eruption o a &olcano1 destructi&e cyclone1 epidemic1 or any ot#er pu0lic calamity; Ait# e&ident premeditation; Ait# cruelty1 0y deli0erately and in#umanly augmenting t#e su ering o t#e &ictim1 or outraging or sco ing at #is person or corpse. is not parricide or

person not constituting murder, parricide or infanticide. &n murder, any of the following 9ualifying circumstances is present' #(% Treachery, ta4ing advantage of superior strength, aid or armed men, or employing means to wa4en 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 ris4 to himself arising from the defense which the offended party might ma4e. This circumstance involves means, methods, form in the execution of the 4illing which may actually be an aggravating circumstance also, in which case, the treachery absorbs the same. &llustration' ! person who is determined to 4ill resorted to the cover of dar4ness at nighttime to insure the 4illing. ,octurnity becomes a means that constitutes treachery and the 4illing would be murder. :ut if the aggravating circumstance of nocturnity is considered by itself, it is not one of those which 9ualify a homicide to murder. >ne might thin4 the 4illing 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. &t is a matter of whether or not the offended party was denied the chance of defending himself. &f the offended was denied the chance to defend himself, treachery 9ualifies the 4illing to murder. &f despite the means resorted to by the offender, the offended was able to put up a defense, although

0. c.

d.

e. .

4.

T#e 6illing in anticide.

Homicide is 9ualified to murder if any of the 9ualifying circumstances under !rticle "*1 is present. &t is the unlawful 4illing of a

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2*'

unsuccessful, treachery is not available. &nstead, some other circumstance may be present. Consider now whether such other circumstance 9ualifies the 4illing or not. &llustration' &f 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. :ut 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 9ualifies the 4illing to murder. >ne attendant 9ualifying circumstance is enough. &f there are more than one 9ualifying circumstance alleged in the information for murder, only one circumstance will 9ualify the 4illing to murder and the other circumstances will be ta4en as generic. To be considered 9ualifying, the particular circumstance must be alleged in the information. &f what was alleged was not proven and instead another circumstance, not alleged, was established during the trial, even if the latter constitutes a 9ualifying circumstance under !rticle "*1, the same can not 9ualify the 4illing to murder. The accused can only be convicted of homicide. /enerally, murder cannot be committed if at the beginning, the offended had no intent to 4ill because the 9ualifying circumstances must be resorted to with a view of 4illing the offended party. 5o if the 4illing were at the Espur of the momentF, even though the victim was denied the chance to defend himself because of the suddenness of the attac4, 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 4illing.

&f the offender may have not intended to 4ill 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 conse9uence thereof the victim died. This is based on the rule that a person committing a felony shall be liable for the conse9uences thereof although different from that which he intended. &llustration' 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. 5o one evening, after the victim had visited the girl, they sei3ed 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 4nowing 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 ris4 to the accused arising from the defense by the victim. !lthough what was initially intended was physical injury, the manner adopted by the accused was treacherous and since the victim died as a conse9uence thereof, the crime is murder although originally, there was no intent to 4ill. .hen the victim is already dead, intent to 4ill becomes irrelevant. &t is important only if the victim did not die to determine if the felony is physical injury or attempted or frustrated homicide. 5o long as the means, methods and form in the execution is deliberately adopted, even if there was no intent to 4ill, there is treachery.

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2*)

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&n consideration of price, reward or promises< &nundation, fire, poison, explosion, shipwrec4, 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 4illing by fire is concerned is whether it would be arson with homicide, or murder. .hen a person is 4illed by fire, the primordial criminal intent of the offender is considered. &f the primordial criminal intent of the offender is to 4ill and fire was only used as a means to do so, the crime is only murder. &f the primordial criminal intent of the offender is to destroy property with the use of pyrotechnics and incidentally, somebody within the premises is 4illed, the crime is arson with homicide. :ut this is not a complex crime under !rticle *1. This is single indivisible crime penali3ed under !rticle 6"-, which is death as a conse9uence of arson. That somebody died during such fire would not bring about murder because there is no intent to 4ill in the mind of the offender. He intended only to destroy property. However, a higher penalty will be applied. &n Peo!le v. Pu%a. an# Sa0+on, 167 SCRA 139, there was a town fiesta and the two accused were at the town pla3a with their companions. !ll were uproariously happy, apparently drenched with drin4. Then, the group saw the victim, a "$ year old retard wal4ing nearby and they made him dance by tic4ling 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 5amson lit him up, ma4ing him a fren3ied, shrie4ing human torch. The retard died.

&t was held that Pugay was guilty of homicide through rec4less imprudence. 5amson 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 4ill him. &t was merely a part of their fun ma4ing but because their acts were felonious, they are criminally liable. #*% >n occasion of any of the calamities enumerated in the preceding paragraph c, or an earth9ua4e, eruption of volcano, destructive cyclone, epidemic or any other public calamity< )vident 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. &t goes beyond that because even if the victim is already a corpse when the acts deliberately augmenting the wrong done to him were committed, the 4illing is still 9ualified to murder although the acts done no longer amount to cruelty. =nder !rticle (*, the generic aggravating circumstance of cruelty re9uires that the victim be alive, when the cruel wounds were inflicted and, therefore, must be evidence to that effect. Bet, in murder, aside from cruelty, any act that would amount to scoffing or decrying the corpse of the victim will 9ualify the 4illing to murder. &llustration' Two people engaged in a 9uarrel and they hac4ed each other, one 4illing the other. =p to that point, the crime is homicide. However, if the 4iller tried to dismember the different parts of the body of the

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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 recogni3ed under !rticle "*1, even though it was inflicted or was committed when the victim was already dead. The following are holdings of the 5upreme Court with respect to the crime of murder' #(% Lilling of a child of tender age is murder 9ualified by treachery because the wea4ness of the child due to his tender age results in the absence of any danger to the aggressor. )vident 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. !buse of superior strength is inherent in and comprehended by the circumstance of treachery or forms part of treachery. Treachery is inherent in poison. .here 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. Lilling of the victims hit by hand grenade thrown at them is murder 9ualified by explosion not by treachery. .here the accused housemaid gagged a three year old boy, son of her master, with stoc4ings, placed him in a box with head down and legs upward and covered the box with some sac4s 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 4idnapping 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. The essence of 4idnapping or serious illegal detention is the actual confinement or restraint of the victim or deprivation of his liberty. &f 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 ta4en and their being shot, murder and not 4idnapping with murder is committed.

Article 341. Ho&ici$e "lements 1. 2. 3. 4. A person $as 6illed; . ender 6illed #im $it#out any @usti ying circumstances; . ender #ad t#e intention to 6ill1 $#ic# is presumed; T#e 6illing $as not attended 0y any o t#e 3uali ying circumstances o murder1 or 0y t#at o parricide or in anticide.

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#6

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Homicide is the unlawful 4illing of a person not constituting murder, parricide or infanticide. @istinction between homicide and physical injuries' &n attempted or frustrated homicide, there is intent to 4ill. &n 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 5upreme Court with respect to the crime of homicide' #(% Physical injuries are included as one of the essential elements of frustrated homicide. &f the deceased received two wounds from two persons acting independently of each other and the wound inflicted by either could have

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caused death, both of them are liable for the death of the victim and each of them is guilty of homicide. #6% &f the injuries were mortal but were only due to negligence, the crime committed will be serious physical injuries through rec4less imprudence as the element of intent to 4ill in frustrated homicide is incompatible with negligence or imprudence. .here the intent to 4ill is not manifest, the crime committed has been generally considered as physical injuries and not attempted or frustrated murder or homicide. .hen 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 victimDs death.

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 4iller is if death results, or who inflicted the serious physical injury, but the person or persons who used violence are 4nown. &t is not a tumultuous affray which brings about the crime< it is the inability to ascertain actual perpetrator. &t is necessary that the very person who caused the death can not be 4nown, not that he can not be identified. :ecause if he is 4nown but only his identity is not 4nown, then he will be charged for the crime of homicide or murder under a fictitious name and not death in a tumultuous affray. &f there is a conspiracy, this crime is not committed. To be considered death in a tumultuous affray, there must be' #(% a 9uarrel, a free for all, which should not involve organi3ed group< and someone who is injured or 4illed because of the fight.

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,ote that while it is possible to have a crime of homicide through rec4less imprudence, it is not possible to have a crime of frustrated homicide through rec4less imprudence. Article 3!1. Deat, T.&.lt.o.s A((ra# "lements 1. 2. T#ere are se&eral persons; T#ey do not compose groups organi:ed or t#e common purpose o assaulting and attac6ing eac# ot#er reciprocally; T#ese se&eral persons 3uarreled and assaulted one anot#er in a con used and tumultuous manner; <omeone $as 6illed in t#e course o t#e a ray; %t can not 0e ascertained $#o actually 6illed t#e deceased; T#e person or persons $#o in licted serious p#ysical in@uries or $#o used &iolence can 0e identi ied. Ca.se$ i A

#"%

!s long as it cannot be determined who 4illed 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' #(% #"% The persons who inflicted serious physical injury upon the victim< &f they could not be 4nown, then anyone who may have employed violence on that person will answer for his death. &f nobody could still be traced to have employed violence upon the victim, nobody will answer. The crimes committed might be disturbance of public order, or if participants are armed, it could be tumultuous disturbance, or if property was destroyed, it could be malicious mischief.

3.

4. 5. !.

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The fight must be tumultuous. The participants must not be members of an organi3ed group. This is different from a rumble which involves organi3ed groups composed of persons who are to attac4 others. &f the fight is between such groups, even if you cannot identify who, in particular, committed the 4illing, the adverse party composing the organi3ed group will be collectively charged for the death of that person. &llustration' &f a fight ensued between "; 5igue 5igue /ang men and "; :ahala ,a /ang men, and in the course thereof, one from each group was 4illed, the crime would be homicide or murder< there will be collective responsibility on both sides. ,ote that the person 4illed need not be a participant in the fight. Article 3!3. %,#sical I D.ries I (licte$ i A T.&.lt.o.s A((ra# "lements 1. 2. T#ere is a tumultuous a ray; A participant or some participants t#ereo su ered serious p#ysical in@uries or p#ysical in@uries o a less serious nature only; T#e person responsi0le t#ereo can not 0e identi ied; All t#ose $#o appear to #a&e used &iolence upon t#e person o t#e o ended party are 6no$n.

&f 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 3!8. Gi0i * Assista ce to S.ici$e Acts punis#ed 1. Assisting anot#er to commit suicide1 $#et#er t#e suicide is consummated or not; Bending #is assistance to anot#er to commit suicide to t#e e4tent o doing t#e 6illing #imsel .

2.

/iving 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.%. &n this crime, the intention must be for the person who is as4ing the assistance of another to commit suicide. &f the intention is not to commit suicide, as when he just wanted to have a picture ta4en 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. &f the person does the 4illing himself, the penalty is similar to that of homicide, which is reclusion temporal. There can be no 9ualifying circumstance because the determination to die must come from the victim. This does not contemplate euthanasia or mercy 4illing where the crime is homicide #if without consent< with consent, covered by !rticle "$6%. The following are holdings of the 5upreme Court with respect to this crime' #(% The crime is frustrated if the offender gives the assistance by doing the 4illing himself as firing upon the head of the victim but who

3. 4.

&f 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. &n physical injuries caused in a tumultuous affray, the conditions are also the same. :ut 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. 5o anyone who may have employed violence will answer for such serious or less serious physical injury.

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did not die assistance. #"%

due

to

medical

#(%

The person attempting to commit suicide is not liable if he survives. The accused is liable if he 4ills the victim, his sweetheart, because of a suicide pact. #"%

&f 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. 2iring a gun at a person even if merely to frighten him constitutes illegal discharge of firearm.

&n 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. >ur 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. &f he is not prosecuted, this is out of pity and not because he has not violated the Revised Penal Code. &n mercy 4illing, the victim is not in a position to commit suicide. .hoever would heed his advice is not really giving assistance to suicide but doing the 4illing himself. &n giving assistance to suicide, the principal actor is the person committing the suicide. :oth 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. &f there is only slight persuasion to end his life, and the offender readily assented thereto. Article 3!4. Disc,ar*e o( Firear&s

Article 3!!. I (a tici$e "lements

1. A c#ild $as 6illed 0y t#e accused; 2. T#e deceased c#ild $as less t#an
72 #ours old. 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. :ut you call the crime infanticide, not parricide, if the age of the victim is less than three days old. &f the victim is three days old or above, the crime is parricide. &llustration' !n unmarried woman, !, gave birth to a child, :. To conceal her dishonor, ! conspired with C to dispose of the child. C agreed and 4illed the child : by burying the child somewhere. &f the child was 4illed when the age of the child was three days old and above already, the crime of ! is parricide. The fact that the 4illing was done to conceal her dishonor will not mitigate the criminal liability anymore because concealment of dishonor in 4illing the child is not mitigating in parricide. &f the crime committed by ! is parricide because the age of the child is three days old or above, the crime of the co conspirator C is murder. &t is not parricide because he is not related to the victim. &f the child is less than three days old when 4illed, 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. &n such a case,

1. . ender disc#arges a irearm against or


at anot#er person;

2. . ender #ad no intention to 6ill t#at


person. This crime cannot be committed through imprudence because it re9uires that the discharge must be directed at another. &f the firearm is directed at a person and the trigger was pressed but did not fire, the crime is frustrated discharge of firearm. &f the discharge is not directed at a person, the crime may constitute alarm and scandal. The following are holdings of the 5upreme Court with respect to this crime'

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concealment of dishonor as a motive for the mother to have the child 4illed is mitigating. Concealment of dishonor is not an element of infanticide. &t merely lowers the penalty. &f the child is abandoned without any intent to 4ill and death results as a conse9uence, the crime committed is not infanticide but abandonment under !rticle "?-. &f 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. &f the child is born dead, or if the child is already dead, infanticide is not committed. Article 3!'. I te tio al A9ortio Acts punis#ed 1. 2. 8sing any &iolence upon t#e person o t#e pregnant $oman; Acting1 0ut $it#out using &iolence1 $it#out t#e consent o t#e $oman. (7y administering drugs or 0e&erages upon suc# pregnant $oman $it#out #er consent.) Acting (0y administering drugs or 0e&erages)1 $it# t#e consent o t#e pregnant $oman.

Thus, if it is 4illed, the crime committed is abortion not infanticide. @istinction between infanticide and abortion &t is infanticide if the victim is already a person less that three days old or ?" hours and is viable or capable of living separately from the motherDs womb. &t is abortion if the victim is not viable but remains to be a fetus. !bortion is not a crime against the woman but against the fetus. &f mother as a conse9uence of abortion suffers death or physical injuries, you have a complex crime of murder or physical injuries and abortion. &n intentional abortion, the offender must 4now of the pregnancy because the particular criminal intention is to cause an abortion. Therefore, the offender must have 4nown of the pregnancy for otherwise, he would not try an abortion. &f 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. &f she does, the crime will be homicide, serious physical injuries, etc. =nder the !rticle *; of the Civil Code, birth determines personality. ! person is considered born at the time when the umbilical cord is cut. He then ac9uires a personality separate from the mother. :ut even though the umbilical cord has been cut, !rticle *( of the Civil Code provides that if the fetus had an intra uterine life of less than seven months, it must survive at least "* hours after the umbilical cord is cut for it to be considered born. &llustration' ! mother delivered an offspring which had an intra uterine life of seven months. :efore the umbilical cord is cut, the child was 4illed. &f it could be shown that had the umbilical cord been cut, that child, if not 4illed, would have survived beyond "* hours, the crime is infanticide because that conceived child is already considered born.

3.

"lements 1. 2. T#ere is a pregnant $oman; (iolence is e4erted1 or drugs or 0e&erages administered1 or t#at t#e accused ot#er$ise acts upon suc# pregnant $oman; drugs or 0e&erages upon #er1 or any ot#er act o t#e accused1 t#e etus dies1 eit#er in t#e $om0 or a ter #a&ing 0een e4pelled t#ere rom; 4. T#e a0ortion is intended.

3. As a result o t#e use o &iolence or

!bortion is the violent expulsion of a fetus from the maternal womb. &f the fetus has been delivered but it could not subsist by itself, it is still a fetus and not a person.

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&f it could be shown that the child, if not 4illed, would not have survived beyond "* hours, the crime is abortion because what was 4illed was a fetus only. &n abortion, the concealment of dishonor as a motive of the mother to commit the abortion upon herself is mitigating. &t 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. &f 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. :ut 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 . 2rustrated abortion is committed if the fetus that is expelled is viable and, therefore, not dead as abortion did not result despite the employment of ade9uate and sufficient means to ma4e the pregnant woman abort. &f the means are not sufficient or ade9uate, the crime would be an impossible crime of abortion. &n consummated abortion, the fetus must be dead. >ne who persuades her sister to abort is a co principal, and one who loo4s for a physician to ma4e his sweetheart abort is an accomplice. The physician will be punished under !rticle "$8 of the Revised Penal Code. Article 3!). U i te tio al A9ortio 1. 2. T#ere is a pregnant $oman; (iolence is used upon suc# pregnant $oman $it#out intending an a0ortion;

=nintentional abortion re9uires physical violence inflicted deliberately and voluntarily by a third person upon the person of the pregnant woman. 0ere intimidation is not enough unless the degree of intimidation already approximates violence. &f 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. &f the pregnant woman was 4illed by violence by her husband, the crime committed is the complex crime of parricide with unlawful abortion. =nintentional abortion may be committed through negligence as it is enough that the use of violence be voluntary. &llustration' ! 9uarrel ensued between !, husband, and :, wife. ! became so angry that he struc4 :, who was then pregnant, with a soft drin4 bottle on the hip. !bortion resulted and : died. &n 3S v. ,e**r., 1$ Phil. 391, the 5upreme Court said that 4nowledge of pregnancy of the offended party is not necessary. &n Peo!le v. Carna+o, #eci#e# on A!ril 7, 1961, however, the 5upreme Court held that 4nowledge of pregnancy is re9uired in unintentional abortion. Criticism' =nder !rticle *, paragraph ( of the Revised Penal Code, any person committing a felony is criminally liable for all the direct, natural, and logical conse9uences 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. &t is not material if offender 4new about the woman being pregnant or not. &f the act of violence is not felonious, that is, act of self defense, and there is no 4nowledge of the womanDs pregnancy, there is no liability. &f the act of violence is not felonious, but there is 4nowledge of the womanDs pregnancy, the offender is liable for unintentional abortion. &llustration'

3. T#e &iolence is intentionally e4erted;


4. As a result o t#e &iolence1 t#e etus dies1 eit#er in t#e $om0 or a ter #a&ing 0een e4pelled t#ere rom.

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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.

c.

Any o #er parents1 $it# #er consent or t#e purpose o concealing #er dis#onor.

Article 3!1. A9ortio %ractice$ 9# A %,#sicia or Mi$+i(e a $ Dis"e si * o( A9orti0es "lements 1. 2. 3. T#ere is a pregnant $oman $#o #as su ered an a0ortion; T#e a0ortion is intended; . ender1 $#o must 0e a p#ysician or mid$i e1 caused or assisted in causing t#e a0ortion; <aid p#ysician or mid$i e too6 ad&antage o #is or #er scienti ic 6no$ledge or s6ill.

6.estio s 7 A s+ers 1. to commit $indo$ o passer0y. ollo$ed. a0ortion= A pregnant $oman decided suicide. <#e @umped out o a a 0uilding 0ut s#e landed on a <#e did not die 0ut an a0ortion %s s#e lia0le or unintentional

,o. .hat is contemplated in unintentional abortion is that the force or violence must come from another. &f 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. &n 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 penali3ed in suicide is the one giving assistance and not the person trying to commit suicide. 2. % t#e a0orti&e drug used in a0ortion is a pro#i0ited drug or regulated drug under -residential 9ecree Co. !425 (T#e 9angerous 9rugs Act o 1)72)1 as amended1 $#at are t#e crimes committed= The crimes committed are #(% intentional abortion< and #"% violation of the @angerous @rugs !ct of (8?". Article 3!/. A9ortio %ractice$ 9# t,e Wo&a Hersel( or 9# Her %are ts "lements 1. 2. 3. T#ere is a pregnant $oman $#o #as su ered an a0ortion; T#e a0ortion is intended; A0ortion is caused 0y / a. 0. T#e pregnant $oman #ersel ; Any ot#er person1 $it# #er consent; or

4.

&f the abortion is produced by a physician to save the life of the mother, there is no liability. This is 4nown as a therapeutic abortion. :ut abortion without medical necessity to warrant it is punishable even with the consent of the woman or her husband. &llustration' ! woman who is pregnant got sic4. The doctor administered a medicine which resulted in !bortion. The crime committed was unintentional abortion through negligence or imprudence.

6.estio 7 A s+er A#at is t#e lia0ility o a p#ysician $#o a0orts t#e etus to sa&e t#e li e o t#e mot#er= ,one. This is a case of therapeutic abortion which is done out of a state of necessity. Therefore, the re9uisites under !rticle ((, paragraph *, 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 ma4e the 4illing justified. Article 3'4. Res"o si9ilit# %artici"a ts i A D.el o(

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Acts punis#ed 1. 2. 3. Jilling oneEs ad&ersary in a duel; %n licting upon p#ysical in@uries; suc# ad&ersary

measure your prowess. .e will see whose intestines will come out. Bou are a coward if you do not come downF, the crime of challenging to a duel is not committed. .hat is committed is the crime of light threats under !rticle "1$, paragraph ( of the Revised Penal Code. Article 3'3. M.tilatio

Ma6ing a com0at alt#oug# no p#ysical in@uries #a&e 0een in licted. Acts punis#ed 1. %ntentionally mutilating anot#er 0y depri&ing #im1 eit#er totally or partially1 o some essential organ or reproduction; "lements 1. T#ere 0e a castration1 t#at is1 mutilation o organs necessary or generation1 suc# as t#e penis or o&arium; T#e mutilation is caused purposely and deli0erately1 t#at is1 to depri&e t#e o ended party o some essential organ or reproduction

-ersons lia0le 1. T#e person $#o 6illed or in licted p#ysical in@uries upon #is ad&ersary1 or 0ot# com0atants in any ot#er case1 as principals. T#e seconds1 as accomplices.

2.

There is no such crime nowadays because people hit each other even without entering into any pre conceived agreement. This is an obsolete provision. 2. ! 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 ma4e the selection of arms and fix all the other conditions of the fight to settle some antecedent 9uarrel. &f these are not the conditions of the fight, it is not a duel in the sense contemplated in the Revised Penal Code. &t will be a 9uarrel and anyone who 4illed 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. Article 3'1. C,alle *i * to A D.el Acts punis#ed 1. 2. 3. C#allenging anot#er to a duel; %nciting anot#er to gi&e or accept a c#allenge to a duel; <co ing at or decrying anot#er pu0licly or #a&ing re used to accept a c#allenge to ig#t a duel.

2.

%ntentionally ma6ing ot#er mutilation1 t#at is1 0y lopping or clipping o any part o t#e 0ody o t#e o ended party1 ot#er t#an t#e essential organ or reproduction1 to depri&e #im o t#at part o #is 0ody.

0utilation 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. &f there is no intent to deprive victim of particular part of body, the crime is only serious physical injury. The common mista4e is to associate this with the reproductive organs only. 0utilation includes any part of the human body that is not susceptible to grow again. &f what was cut off was a reproductive organ, the penalty is much higher than that for homicide. This cannot be committed through criminal negligence.

&llustration' &f one challenges another to a duel by shouting ECome down, >lympia, let us

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Article 3'8. Serio.s %,#sical I D.ries 5o$ committed 1. 2. 3. 4. 7y $ounding; 7y 0eating; 7y assaulting; or 7y administering su0stance. in@urious 4.

o t#e in licted;

p#ysical

in@uries

A#en t#e in@ured person 0ecomes ill or incapacitated or la0or or more t#an 3* days (0ut must not 0e more t#an )* days)1 as a result o t#e p#ysical in@uries in licted.

&n one case, the accused, while conversing with the offended party, drew the latterDs bolo from its scabbard. The offended party caught hold of the edge of the blade of his bolo and wounded himself. &t was held that since the accused did not wound, beat or assault the offended party, he can not be guilty of serious physical injuries. <erious p#ysical in@uries 1. A#en t#e in@ured person 0ecomes insane1 im0ecile1 impotent or 0lind in conse3uence o t#e p#ysical in@uries in licted; A#en t#e in@ured person / a. Boses t#e use o speec# or t#e po$er to #ear or to smell1 or loses an eye1 a #and1 a oot1 an arm1 or a leg; Boses t#e use o any suc# mem0er; or 7ecomes incapacitated or t#e $or6 in $#ic# #e $as t#ereto ore #a0itually engaged1 in conse3uence o t#e p#ysical in@uries in licted;

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. 5o this crime is always consummated, notwithstanding the opinion of 5panish commentators li4e Cuello Calon, 7iada, etc., that it can be committed in the attempted or frustrated stage. &f 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. !s long as the injury is not there, there can be no attempted or frustrated stage thereof. Classification of physical injuries' #(% :etween slight physical injuries and less serious physical injuries, you have a duration of one to nine days if slight physical injuries< or (; days to "; 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. Bou will consider not only the healing duration of the injury but also the medical attendance re9uired to treat the injury. 5o the healing duration may be one to nine days, but if the medical treatment continues beyond nine days, the physical injuries would already 9ualify 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.

0. c.

3.

A#en t#e person in@ured / a. 0. c. d. 7ecomes de ormed; or Boses any ot#er mem0er o #is 0ody; or Boses t#e use t#ereo ; or 7ecomes ill or incapacitated or t#e per ormance o t#e $or6 in $#ic# #e $as #a0itually engaged or more t#an )* days in conse3uence

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#"%

:etween less serious physical injuries and serious physical injuries, you do not consider the period of medical treatment. Bou only consider the period when the offended party is rendered incapacitated for labor. &f the offended party is incapacitated to wor4 for less than 6; days, even though the treatment continued beyond 6; 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. Bou only consider the period of incapacity from wor4.

6.estio 7 A s+er T#e o ender t#re$ acid on t#e ace o t#e o ended party. Aere it not or timely medical attention1 a de ormity $ould #a&e 0een produced on t#e ace o t#e &ictim. A ter t#e plastic surgery1 t#e o ended party $as more #andsome t#an 0e ore t#e in@ury. A#at crime $as committed= %n $#at stage $as 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. &n a case decided by the 5upreme Court, accused was charged with serious physical injuries because the injuries produced a scar. He was convicted under !rticle "-6 #*%. He appealed because, in the course of the trial, the scar disappeared. &t 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. 5erious physical injuries is punished with higher penalties in the following cases' #(% &f it is committed against any of the persons referred to in the crime of parricide under !rticle "*-< &f any of the 9ualifying murder commission. circumstances attended its

#6%

.hen the injury created a deformity upon the offended party, you disregard the healing duration or the period of medical treatment involved. !t once, it is considered serious physical injuries. 5o even though the deformity may not have incapacitated the offended party from wor4, or even though the medical treatment did not go beyond nine days, that deformity will bring about the crime of serious physical injuries. @eformity re9uires the concurrence of the following conditions' #(% #"% #6% The injury ugliness< must produce

&t must be visible< The ugliness will not disappear through natural healing process.

#"%

&llustration' Aoss of molar tooth + This is not deformity as it is not visible. Aoss of permanent front tooth + This is deformity as it is visible and permanent. Aoss of mil4 front tooth + This is not deformity as it is visible but will be naturally replaced.

Thus, a father who inflicts serious physical injuries upon his son will be liable for 9ualified serious physical injuries. Re".9lic Act No. /441 :T,e A ti;HaHi * La+> 5a:ing >> T#is is any initiation rite or practice $#ic# is a prere3uisite or admission into mem0ers#ip in a raternity or sorority or any organi:ation $#ic# places t#e neop#yte or applicant in some em0arrassing or #umiliating situations or ot#er$ise su0@ecting #im to p#ysical or psyc#ological su ering o in@ury. T#ese do

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not include any p#ysical1 mental1 psyc#ological testing and training procedure and practice to determine and en#ance t#e p#ysical and psyc#ological itness o t#e prospecti&e regular mem0ers o t#e 0elo$. .rgani:ations include any clu0 or A+-1 -C-1 -MA or o icer or cadet corps o t#e CMT or CAT.

Matters to 0e noted in t#is crime 1. . ended party is incapacitated or la0or or 1* days or more (0ut not more t#an 3* days)1 or needs medical attendance or t#e same period o time; T#e p#ysical in@uries must not 0e t#ose descri0ed in t#e preceding articles.

2. <ection 2 re3uires a $ritten notice to sc#ool aut#orities rom t#e #ead o t#e organi:ation se&en days prior to t#e rites and s#ould not e4ceed t#ree days in duration. <ection 3 re3uires super&ision 0y #ead o t#e sc#ool or t#e organi:ation o t#e rites. <ection 4 3uali ies t#e crime i rape1 sodomy or mutilation results t#ere rom1 i t#e person 0ecomes insane1 an im0ecile1 or impotent or 0lind 0ecause o suc#1 i t#e person loses t#e use o speec# or t#e po$er to #ear or smell or an eye1 a oot1 an arm or a leg1 or t#e use o any suc# mem0er or any o t#e serious p#ysical in@uries or t#e less serious p#ysical in@uries. Also i t#e &ictim is 0elo$ 121 or 0ecomes incapacitated or t#e $or6 #e #a0itually engages in or 3*1 1*1 1>) days. %t #olds t#e parents1 sc#ool aut#orities $#o consented or $#o #ad actual 6no$ledge i t#ey did not#ing to pre&ent it1 o icers and mem0ers $#o planned1 6no$ingly cooperated or $ere present1 present alumni o t#e organi:ation1 o$ner o t#e place $#ere suc# occurred lia0le. Ma6es presence a prima acie presumption o guilt or suc#. Article 3'4. A$&i isteri * I D.rio.s S.9sta ces or Ae0era*es "lements 1. 2. . ender in licted upon anot#er any serious p#ysical in@ury; %t $as done 0y 6no$ingly administering to #im any in@urious su0stance or 0e&erages or 0y ta6ing ad&antage o #is $ea6ness o mind or credulity; 5e #ad no intent to 6ill. Less Serio.s %,#sical 1.

Duali ied as to penalty A ine not e4ceeding - 5**.**1 in addition to arresto mayor1 s#all 0e imposed or less serious p#ysical in@uries $#en / a. T#ere is a mani est intent to insult or o end t#e in@ured person; or T#ere are circumstances adding ignominy to t#e o ense.

0.

2.

A #ig#er penalty is imposed $#en t#e &ictim is eit#er / a. T#e o enderEs parents1 ascendants1 guardians1 curators or teac#ers; or -ersons o ran6 or person in aut#ority1 pro&ided t#e crime is not direct assault.

0.

&f the physical injuries do not incapacitate the offended party nor necessitate medical attendance, slight physical injuries is committed. :ut if the physical injuries heal after 6; days, serious physical injuries is committed under !rticle "-6, paragraph *. !rticle "-$ is an exception to !rticle *1 in relation to complex crimes as the latter only ta4es place in cases where the Revised Penal Code has no specific provision penali3ing 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.

3.

Article 3'!. I D.ries

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Article 3''. Sli*,t %,#sical I D.ries a $ Maltreat&e t Acts punis#ed 1. -#ysical in@uries incapacitated t#e o ended party or la0or rom one to nine days1 or re3uired medical attendance during t#e same period; -#ysical in@uries $#ic# did not pre&ent t#e o ended party rom engaging in #is #a0itual $or6 or $#ic# did not re3uire medical attendance; %ll>treatment o anot#er 0y deed $it#out causing any in@ury.

H+or purposes o t#is Act1 t#e penalty or t#e commission o acts punis#a0le under Articles 24'1 24)1 2!2 (2) and 2!3 (1) o Act Co 3'151 as amended o t#e 2e&ised -enal Code or t#e crimes o murder1 #omicide1 ot#er intentional mutilation1 and serious p#ysical in@uries1 respecti&ely1 s#all 0e reclusion perpetua $#en t#e &ictim is under t$el&e years o age.I T#e pro&isions o 2epu0lic Act Co. 71!* modi ied t#e pro&isions o t#e 2e&ised -enal Code in so ar as t#e &ictim o t#e elonies re erred to is under 12 years o age. T#e clear intention is to punis# t#e said crimes $it# a #ig#er penalty $#en t#e &ictim is a c#ild o tender age. %ncidentally1 t#e re erence to Article 24) o t#e Code $#ic# de ines and penali:es t#e crime o #omicide $ere t#e &ictim is under 12 years old is an error. Jilling a c#ild under 12 is murder1 not #omicide1 0ecause t#e &ictim is under no position to de end #imsel as #eld in t#e case o Peo!le v. (anohon, 196 SCRA 131. +or murder1 t#e penalty pro&ided 0y t#e Code1 as amended 0y 2epu0lic Act Co. 7!5)1 is reclusion perpetua to deat# / #ig#er t#an $#at 2epu0lic Act no. 7!1* pro&ides. Accordingly1 inso ar as t#e crime is murder1 Article 24' o t#e Code1 as amended1 s#all go&ern e&en i t#e &ictim $as under 12 years o age. %t is only in respect o t#e crimes o intentional mutilation in paragrap# 2 o Article 2!2 and o serious p#ysical in@uries in paragrap# 1 o Article 2!3 o t#e Code t#at t#e 3uoted pro&ision o 2epu0lic Act Co. 71!* may 0e applied or t#e #ig#er penalty $#en t#e &ictim is under 12 years old. Article 3'';A. Co&&itte$ Ra"e@ W,e a $ Ho+

2.

3.

This involves even ill treatment where there is no sign of injury re9uiring medical treatment. 5lapping the offended party is a form of ill treatment which is a form of slight physical injuries. :ut if the slapping is done to cast dishonor upon the person slapped, the crime is slander by deed. &f the slapping was done without the intention of casting dishonor, or to humiliate or embarrass the offended party out of a 9uarrel or anger, the crime is still ill treatment or slight physical injuries. &llustration' &f Hillary slaps 0onica and told her EBou choose your seconds . Aet us meet behind the Muirino /randstand and see who is the better and more beautiful between the two of usF, 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 partyDs incapacity for labor or of the re9uired medical attendance. Re".9lic Act No. )'14 :S"ecial %rotectio o( C,il$re a*ai st C,il$ A9.se@ E?"loitatio a $ Discri&i atio Act>@ in relation to murder1 mutilation or in@uries to a c#ild T#e last paragrap# o Article (% o 2epu0lic Act Co. 7!1*1 pro&ides?

"lements under paragrap# 1 1. 2. 3. . ender is a man; . ender #ad carnal 6no$ledge o a $oman; <uc# act is accomplis#ed under any o t#e ollo$ing circumstances? a. 7y using intimidation; orce or

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0.

A#en t#e $oman is depri&ed o reason or ot#er$ise unconscious; (2) 7y means o raudulent mac#ination or gra&e a0use o aut#ority; or A#en t#e $oman is under 12 years o age or demented.

is al$ays a $oman and t#e o ender is al$ays a man. <e4ual assault > committed $it# an instrument or an o0@ect or use o t#e penis $it# penetration o mout# or anal ori ice. T#e o ended party or t#e o ender can eit#er 0e man or $oman1 t#at is1 i a $oman or a man uses an instrument on anal ori ice o male1 s#e or #e can 0e lia0le or rape.

c.

d.

"lements under paragrap# 2 1. 2. . ender commits an act o se4ual assault; T#e act o se4ual assault is committed 0y any o t#e ollo$ing means? a. 7y inserting #is penis into anot#er person,s mout# or anal ori ice; or 7y inserting any instrument or o0@ect into t#e genital or anal ori ice o anot#er person; 2ape is committed $#en a man #as carnal 6no$ledge o a $oman under t#e ollo$ing circumstances? (1) A#ere intimidation or &iolence is employed $it# a &ie$ to #a&e carnal 6no$ledge o a $oman; A#ere t#e &ictim is depri&ed o reason or ot#er$ise unconscious; A#ere t#e rape $as made possi0le 0ecause o raudulent mac#ination or a0use o aut#ority; or A#ere t#e &ictim is under 12 years o age1 or demented1 e&en t#oug# no intimidation nor &iolence is employed.

(2) (3)

0.

(4)

3.

T#e act o se4ual assault is accomplis#ed under any o t#e ollo$ing circumstances? a. 0. 7y using intimidation; or orce or

<e4ual assault is committed under t#e ollo$ing circumstances? (1) A#ere t#e penis is inserted into t#e anal or oral ori ice; or A#ere an instrument or o0@ect is inserted into t#e genital or oral ori ice.

A#en t#e $oman is depri&ed o reason or ot#er$ise unconscious; or 7y means o raudulent mac#ination or gra&e a0use o aut#ority; or A#en t#e $oman is under 12 years o age or demented.

(2)

c.

d.

% t#e crime o rape O se4ual assault is committed $it# t#e ollo$ing circumstances1 t#e ollo$ing penalties are imposed? (1) Reclusion perpetua to deat#O prision mayor to reclusion temporal >> (a) A#ere rape is perpetrated 0y t#e accused $it# a deadly $eapon; or A#ere it is committed 0y t$o or more persons. to deat#O

Re".9lic Act No. /8!8 :A Act E?"a $i * t,e De(i itio o( t,e Cri&e o( Ra"e@ Reclassi(#i * t,e Sa&e as A Cri&e a*ai st %erso s@ A&e $i * (or t,e %.r"ose t,e Re0ise$ %e al Co$e> repealed Article335 on rape and added a c#apter on 2ape under Title '. Classi ication o rape (1) Traditional concept under Article 335 / carnal 6no$ledge $it# a $oman against #er $ill. T#e o ended party (2)

(0)

Reclusion perpetua reclusion temporal >> (a)

A#ere t#e &ictim o t#e rape #as 0ecome insane; or

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(#) (0) A#ere t#e rape is attempted 0ut a 6illing $as committed 0y t#e o ender on t#e occasion or 0y reason o t#e rape.

A#ere t#e &ictim #as su ered permanent p#ysical mutilation; A#ere t#e pregnancy o t#e o ended party is 6no$n to t#e rapist at t#e time o t#e rape; or A#ere t#e rapist is a$are o t#e &ictimEs mental disa0ility1 emotional distur0ance or p#ysical #andicap.

(i)

(3)

9eat# O reclusion perpetua >> A#ere #omicide is committed 0y reason or on occasion o a consummated rape. (@)

(4)

9eat#Oreclusion temporal >> (a) A#ere t#e &ictim is under 1' years o age and t#e o ender is #er ascendant1 step at#er1 guardian1 or relati&e 0y a inity or consanguinity $it#in t#e 3rd ci&il degree1 or t#e common la$ #us0and o t#e &ictimEs mot#er; or A#ere t#e &ictim $as under t#e custody o t#e police or military aut#orities1 or ot#er la$ en orcement agency; A#ere t#e rape is committed in ull &ie$ o t#e &ictimEs #us0and1 t#e parents1 any o t#e c#ildren or relati&es 0y consanguinity $it#in t#e 3rd ci&il degree; A#ere t#e &ictim is a religious1 t#at is1 a mem0er o a legitimate religious &ocation and t#e o ender 6no$s t#e &ictim as suc# 0e ore or at t#e time o t#e commission o t#e o ense; A#ere t#e &ictim is a c#ild under 7 yrs o age; A#ere t#e o ender is a mem0er o t#e A+-1 its paramilitary arm1 t#e -C-1 or any la$ en orcement agency and t#e o ender too6 ad&antage o #is position; A#ere t#e o ender is a licted $it# A%9< or ot#er se4ually transmissi0le diseases1 and #e is a$are t#ereo $#en #e committed t#e rape1 and t#e disease $as transmitted; 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. 5ince rape is not a private crime anymore, it can be prosecuted even if the woman does not file a complaint. &f carnal 4nowledge was made possible because of fraudulent machinations and grave abuse of authority, the crime is rape. This absorbs the crime of 9ualified and simple seduction when no force or violence was used, but the offender abused his authority to rape the victim. =nder !rticle "-- C, the offended woman may pardon the offender through a subse9uent valid marriage, the effect of which would be the extinction of the offenderDs liability. 5imilarly, the legal husband may be pardoned by forgiveness of the wife provided that the marriage is not void ab initio. >bviously, under the new law, the husband may be liable for rape if his wife does not want to have sex with him. &t is enough that there is indication of any amount of resistance as to ma4e it rape. &ncestuous rape was coined in 5upreme Court decisions. &t refers to rape committed by an ascendant of the offended woman. &n such cases, the force and intimidation need not be of such nature as would be re9uired in rape cases had the accused been a stranger. Conversely, the 5upreme Court expected that if the offender is not 4nown to woman, it is necessary that there be evidence of affirmative resistance put up by the offended woman. 0ere Eno, noF is not enough if the offender is a stranger,

(0)

(c)

(d)

(e) ()

(g)

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224

although if the rape is incestuous, this is enough. The new rape law also re9uires 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 4nowledge was against his or her will. .hen the victim is below (" years old, mere sexual intercourse with her is already rape. )ven if it was she who wanted the sexual intercourse, the crime will be rape. This is referred to as statutory rape. &n other cases, there must be force, intimidation, or violence proven to have been exerted to bring about carnal 4nowledge or the woman must have been deprived of reason or otherwise unconscious. .here the victim is over (" years old, it must be shown that the carnal 4nowledge with her was obtained against her will. &t is necessary that there be evidence of some resistance put up by the offended woman. &t is not, however, necessary that the offended party should exert all her efforts to prevent the carnal intercourse. &t is enough that from her resistance, it would appear that the carnal intercourse is against her will. 0ere 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. ,ote that it has been held that in the crime of rape, conviction does not re9uire medico legal finding of any penetration on the part of the woman. ! medico legal certificate is not necessary or indispensable to convict the accused of the crime of rape. &t 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 ta4e judicial notice that there is such damage in crimes against chastity. The standard amount given now is P 6;,;;;.;;, with or without evidence of any moral damage. :ut there are some cases where the court awarded only P ";,;;;.;;. !n accused may be convicted of rape on the sole testimony of the offended woman. &t does not re9uire 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. &llustration' @aughter accuses her own father of having raped her. !llegation 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. &t 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. >n 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. T#e main distinction 0et$een t#e crime o attempted rape and acts o lasci&iousness is t#e intent to lie $it# t#e o ended $oman. &n a case where the accused jumped upon a woman and threw her to the ground, although the accused raised her s4irts, the accused did not ma4e any effort to remove her underwear. &nstead, he removed his own underwear and placed himself on top of 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. &t was only to satisfy a lewd design. &s there a complex crime under !rticle *1 of 4idnapping with rapeO Read 4idnapping. TITLE IG. CRIMES AGAINST %ERSONAL LIAERTY AND SECURITY Crimes against li0erty

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1. 2. 3. 4. 5. !. 7. '.

Jidnapping and serious detention (Art. 2!7);

illegal

1!.

2e&ealing o industrial secrets (Art. 2)2).

<lig#t illegal detention (Art. 2!'); 8nla$ ul arrest (Art. 2!)); Jidnapping and ailure to return a minor (Art. 27*); %nducing a minor to a0andon #is #ome (Art. 271); <la&ery (Art. 272); "4ploitation o c#ild la0or (Art. 273); <er&ices rendered under compulsion in payment o de0ts (Art. 274). 3. 4. Article 3'). Fi$ a""i * a $ Serio.s Ille*al Dete tio "lements 1. 2. . ender is a pri&ate indi&idual; 5e 6idnaps or detains anot#er1 or in any ot#er manner depri&es t#e latter o #is li0erty; T#e act o detention or 6idnapping must 0e illegal; %n t#e commission o t#e o ense1 any o t#e ollo$ing circumstances is present? a. T#e 6idnapping lasts more t#an 3 days; or

Crimes against security 1. A0andonment o persons in danger and a0andonment o one,s o$n &ictim (Art. 275); A0andoning a minor (Art. 27!); c. 3. A0andonment o minor 0y person entrusted $it# #is custody; indi erence o parents (Art. 277); "4ploitation o minors (Art. 27'); d. 5. !. 7. '. ). 1*. 11. 12. 13. Trespass to d$elling (Art. 2'*); .t#er orms o trespass (Art. 2'1); ;ra&e t#reats (Art. 2'2); Big#t t#reats (Art. 2'3); .t#er lig#t t#reats (Art. 2'5); ;ra&e coercions (Art. 2'!); Big#t coercions (Art. 2'7); .t#er similar coercions (Art. 2''); +ormation1 maintenance and pro#i0ition o com0ination o capital or la0or t#roug# &iolence or t#reats (Art. 2')); 9isco&ering secrets t#roug# sei:ure o correspondence (Art. 2)*); 2e&ealing secrets $it# a0us o o ice (Art. 2)1); &f there is any crime under Title &C which has no corresponding provision with crimes under Title &&, then, the offender may be a public officer or a private person. &f there is a corresponding crime under Title &&, the offender under Title &C for such similar crime is a private person. .hen a public officer conspires with a private person in the commission of any of the crimes under Title &C, the crime is also one committed under this title and not under Title &&. &llustration' &f a private person commits the crime of 4idnapping or serious illegal detention, even though a public officer conspires therein, the crime cannot be arbitrary detention. !s far as that public officer is concerned, the crime is also illegal detention. T#e person 6idnapped or detained is a minor1 emale1 or a pu0lic o icer. Any serious p#ysical in@uries are in licted upon t#e person 6idnapped or detained or t#reats to 6ill #im are made; or

0.

%t is committed simulating pu0lic aut#ority;

2.

4.

14. 15.

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ON

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&n the actual essence of the crime, when one says 4idnapping, this connotes the idea of transporting the offended party from one place to another. .hen you thin4 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 4idnapping is committed if the purpose of the offender is to extort ransom either from the victim or from any other person. :ut if a person is transported not for ransom, the crime can be illegal detention. =sually, the offended party is brought to a place other than his own, to detain him there. .hen one thin4s of 4idnapping, it is not only that of transporting one person from one place to another. >ne also has to thin4 of the criminal intent. 2orcible abduction &f 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. 5erious illegal detention + &f a woman is transported just to restrain her of her liberty. There is no lewd design or lewd intent. /rave coercion + &f a woman is carried away just to brea4 her will, to compel her to agree to the demand or re9uest by the offender. &n a decided case, a suitor, who cannot get a favorable reply from a woman, invited the woman to ride with him, purportedly to ta4e home the woman from class. :ut while the woman is in his car, he drove the woman to a far place and told the woman to marry him. >n the way, the offender had repeatedly touched the private parts of the woman. &t 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 5upreme Court ruled that when it is a suitor who could possibly marry the woman, merely 4issing the woman or touching her private parts to EcompelF her to agree to the marriage, such cannot be characteri3ed as lewd design. &t is considered merely as the Epassion of a loverF. :ut if the man is already married, you cannot consider that as legitimate but immoral and definitely amounts to lewd design.

&f a woman is carried against her will but without lewd design on the part of the offender, the crime is grave coercion. &llustration' Tom Cru3 invited ,icole Chi3mac4s for a snac4. They drove along Roxas :oulevard, along the Coastal Road and to Cavite. The woman was already crying and wanted to be brought home. Tom imposed the condition that ,icole should first marry him. ,icole found this as, simply, a mission impossible. The crime committed in this case is grave coercion. :ut 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. &f 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 ma4e illegal detention serious (1) A#en t#e illegal detention lasted or t#ree days1 regardless o $#o t#e o ended party is; A#en t#e o ended party is a emale1 e&en i t#e detention lasted only or minutes; % t#e o ended party is a minor or a pu0lic o icer1 no matter #o$ long or #o$ s#ort t#e detention is; A#en t#reats to 6ill are made or serious p#ysical in@uries #a&e 0een in licted; and % it s#all #a&e 0een committed simulating pu0lic aut#ority.

(2)

(3)

(4)

(5)

@istinction between illegal detention and arbitrary detention &llegal detention is committed by a private person who 4idnaps, detains, or otherwise deprives another of his liberty. !rbitrary detention is committed by a public officer who detains a person without legal grounds. The penalty for 4idnapping is higher than for forcible abduction. This is wrong because if the offender 4new about this, he would perform lascivious acts upon the woman

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and be charged only for forcible abduction instead of 4idnapping or illegal detention. He thereby benefits from this absurdity, which arose when Congress amended !rticle "-?, increasing the penalty thereof, without amending !rticle 6*" on forcible abduction. !rticle "-? has been modified by Re!ublic Ac) 4o. 76$9 in the following respects' (1) %llegal detention 0ecomes serious $#en it s#all #a&e lasted or more t#an t#ree days1 instead o i&e days as originally pro&ided; %n paragrap# 41 i t#e person 6idnapped or detained $as a minor and t#e o ender $as anyone o t#e parents1 t#e latter #as 0een e4pressly e4cluded rom t#e pro&ision. T#e lia0ility o t#e parent is pro&ided or in t#e last paragrap# o Article 271; A paragrap# $as added to Article 2!71 $#ic# states? A#en t#e &ictim is 6illed or dies as a conse3uence o t#e detention or is raped1 or is su0@ected to torture1 or de#umani:ing acts1 t#e ma4imum penalty s#all 0e imposed. T#is amendment 0rings a0out a composite crime o 6idnapping $it# #omicide $#en it is t#e &ictim o t#e 6idnapping $#o $as 6illed1 or dies as a conse3uence o t#e detention and1 t#us1 only one penalty is imposed $#ic# is deat#. !rticle *1, on complex crimes, does not govern in this case. :ut !rticle *1 will govern if any other person is 4illed aside, because the provision specifically refers to EvictimF. !ccordingly, the rulings in cases of Peo!le v. Parulan, Peo!le v. (in% Sa0, and other similar cases where the accused were convicted for the complex crimes of 4idnapping with murder have become academic. &n the composite crime of 4idnapping with homicide, the term EhomicideF is used in the generic sense and, thus, covers all forms of 4illing whether in the nature of murder or

otherwise. &t does not matter whether the purpose of the 4idnapping was to 4ill the victim or not, as long as the victim was 4illed, or died as a conse9uence of the 4idnapping or detention. There is no more separate crime of 4idnapping and murder if the victim was 4idnapped not for the purpose of 4illing her. &f the victim was raped, this brings about the composite crime of 4idnapping with rape. :eing 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. &n a way, the amendment depreciated the seriousness of the rape because no matter how many times the victim was raped, there will only be one 4idnapping with rape. This would not be the conse9uence if rape were a separate crime from 4idnapping because each act of rape would be a distinct count. However for the crime to be 4idnapping with rape, the offender should not have ta4en 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. &f the ta4ing 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 Peo!le v. -acal+o. &n Peo!le v. Lac)ao, #eci#e# on 5c)ober 9, 1993, the 5upreme Court stressed that the crime is serious illegal detention if the purpose was to deprive the offended party of her liberty. !nd 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. &n Peo!le v. -ernal, 131 SCRA 1, the appellants were held guilty of separate crimes of serious illegal detention and of multiple rapes. .ith the amendment by Republic !ct ,o. ?-$8 ma4ing rape a 9ualifying circumstance in the crime of 4idnapping and serious illegal detention, the jurisprudence is superseded to the effect that the rape should be a distinct crime. !rticle *1 on complex crimes may not apply when serious illegal detention and rape are

(2)

(3)

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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. !lso, when the victim of the 4idnapping and serious illegal detention was subjected to torture and sustained physical injuries, a composite crime of 4idnapping with physical injuries is committed. Article 3'/. Sli*,t Ille*al Dete tio "lements 1. 2. . ender is a pri&ate indi&idual; 5e 6idnaps or detains anot#er1 or in any ot#er manner depri&es #im o #is li0erty. T#e act o 6idnapping or detention is illegal; T#e crime is committed $it#out t#e attendance o any o t#e circumstances enumerated in Article 2!7.

provided that the 4idnapping or illegal detention is not serious. &f 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. >ne who furnishes the place where the offended party is being held generally acts as an accomplice. :ut the criminal liability in connection with the 4idnapping and serious illegal detention, as well as the slight illegal detention, is that of the principal and not of the accomplice. :efore, in Peo!le v. Salien)e, if the offended party subjected to serious illegal detention was voluntarily released by the accused in accordance with the provisions of !rticle "-1 #6%, the crime, which would have been serious illegal detention, became slight illegal detention only. The prevailing rule now is A+i+)io v. ,u#%e, which provides that voluntary release will only mitigate criminal liability if crime was slight illegal detention. &f serious, it has no effect. &n 4idnapping for ransom, voluntary release will not mitigate the crime. This is because, with the reimposition of the death penalty, this crime is penali3ed with the extreme penalty of death. .hat is ransomO &t 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 Aindberg law of the =.5. has been adopted in our jurisprudence in Peo!le v. Akiran, 18 SCRA 39, 1 , 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. &n the case of Peo!le v. Roluna, #eci#e# 6arch 9, 1991, witnesses saw a person being ta4en away with hands tied behind

3. 4.

This felony is committed if any of the five circumstances in the commission of 4idnapping or detention enumerated in !rticle "-? is not present. The penalty is lowered if + #(% The offended party is voluntarily released within three days from the start of illegal detention< .ithout attaining the purpose< :efore the institution of the criminal action.

#"% #6%

>ne should 4now the nature of the illegal detention to 4now whether the voluntary release of the offended party will affect the criminal liability of the offender. .hen 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,

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his bac4 and was not heard from for six years. 5upreme Court reversed the trial court ruling that the men accused were guilty of 4idnapping with murder. The crime is only slight illegal detention under !rticle "-1, aggravated by a band, since none of the circumstances in !rticle "-? 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 3'1. U la+(.l Arrest "lements 1. 2. 3. . ender arrests or detains anot#er person; T#e purpose o t#e o ender is to deli&er #im to t#e proper aut#orities; T#e arrest or detention is not aut#ori:ed 0y la$ or t#ere is no reasona0le ground t#ere or.

&f the offender is a public officer, the crime is arbitrary detention under !rticle ("*. &f 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 !rticle ("$ will apply. ,ote that this felony may also be committed by public officers. Article 3)4. Fi$ a""i * a $ Fail.re to Ret.r A Mi or "lements 1. . ender is entrusted $it# t#e custody o a minor person ($#et#er o&er or under se&en years 0ut less t#an 21 years o age); 5e deli0erately ails to restore t#e said minor to #is parents or guardians.

2.

&f any of the foregoing elements is absent, the 4idnapping of the minor will then fall under !rticle "-?. &f the accused is any of the parents, !rticle "-? does not apply< !rticles "?; and "?( apply. &f the ta4ing is with the consent of the parents, the crime in !rticle "?; is committed. &n Peo!le v. (enero+a, it was held that deliberate failure to return a minor under oneDs custody constitutes deprivation of liberty. Lidnapping and failure to return a minor is necessarily included in 4idnapping and serious illegal detention of a minor under !rticle "-?#*%. &n Peo!le v. 6en#oza, where a minor child was ta4en by the accused without the 4nowledge and consent of his parents, it was held that the crime is 4idnapping and serious illegal detention under !rticle "-?, not 4idnapping and failure to return a minor under !rticle "?;. Article 3)1. I $.ci * A A9a $o His Ho&e "lements Mi or to

This felony consists in ma4ing 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. /enerally, this crime is committed by incriminating innocent persons by the offenderDs planting evidence to justify the arrest + a complex crime results, that is, unlawful arrest through incriminatory machinations under !rticle 6-6. &f the arrest is made without a warrant and under circumstances not allowing a warrantless arrest, the crime would be unla$ ul arrest. &f the person arrested is not delivered to the authorities, the private individual ma4ing the arrest incurs criminal liability for illegal detention under !rticle "-? or "-1.

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1.

A minor ($#et#er o&er or under se&en years o age) is li&ing in t#e #ome o #is parents or guardians or t#e person entrusted $it# #is custody; . ender induces said minor to a0andon suc# #ome.

1.

. ender compel a de0tor to $or6 or #im1 eit#er as #ouse#old ser&ant or arm la0orer; %t is against t#e de0torEs $ill; T#e purpose is to re3uire or en orce t#e payment o a de0t.

2. 3.

2.

Article 3)3. Sla0er# "lements 1. 2. . ender purc#ases1 sells1 6idnaps or detains a #uman 0eing; T#e purpose o t#e o ender is to ensla&e suc# #uman 0eing.

Article 3)!. A9a $o &e t o( %erso s i Da *er a $ A9a $o &e t o( O eIs O+ 2icti& Acts punis#ed

1. This is committed if anyone shall purchase, 4idnap, 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. &f the purpose of the 4idnapping 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. &f he is, the crime is white slave trade under !rticle 6*(. Article 3)8. E?"loitatio o( C,il$ La9or "lements 2. 1. 2. 3. . ender retains a minor in #is ser&ices; %t is against t#e $ill o t#e minor; %t is under t#e prete4t o reim0ursing #imsel o a de0t incurred 0y an ascendant1 guardian or person entrusted $it# t#e custody o suc# minor. 3.

+ailing to render assistance to any person $#om t#e o ender inds in an unin#a0ited place $ounded or in danger o dying $#en #e can render suc# assistance $it#out detriment to #imsel 1 unless suc# omission s#all constitute a more serious o ense. "lements 1. 2. T#e place is not in#a0ited; Accused ound t#ere a person $ounded or in danger o dying; Accused can render assistance $it#out detriment to #imsel ; Accused ails assistance. to render

3.

4.

+ailing to #elp or render assistance to anot#er $#om t#e o ender #as accidentally $ounded or in@ured; 7y ailing to deli&er a c#ild1 under se&en years o age1 $#om t#e o ender #as ound a0andoned1 to t#e aut#orities or to #is amily1 or 0y ailing to ta6e #im to a sa e place.

Article 3)4. Ser0ices Re $ere$ . $er Co&".lsio i %a#&e t o( De9t "lements

=nder 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. .here 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. &f the mortally wounded, dying person is

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found in a place not uninhabited in legal contemplation, abandonment will not bring about this crime. !n uninhabited place is determined by possibility of person receiving assistance from another. )ven if there are many houses around, the place may still be uninhabited if possibility of receiving assistance is remote. &f what happened was an accident at first, there would be no liability pursuant to !rticle (" #*% of the Civil Code + damnum abs9ue injuria. :ut if you abandon your victim, you will be liable under !rticle "?$. Here, the character of the place is immaterial. !s 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 3)'. A9a $o i * A Mi or

1.

. ender #as c#arge o t#e rearing or education o a minor; 5e deli&ers said minor to a pu0lic institution or ot#er persons; T#e one $#o entrusted suc# c#ild to t#e o ender #as not consented to suc# act; or i t#e one $#o entrusted suc# c#ild to t#e o ender is a0sent1 t#e proper aut#orities #a&e not consented to it.

2.

3.

2.

Ceglecting #is (o enderEs) c#ildren 0y not gi&ing t#em t#e education $#ic# t#eir station in li e re3uires and inancial condition permits. "lements? 1. . ender is a parent; 5e neglects #is c#ildren 0y not gi&ing t#em education; 5is station in li e re3uires suc# education and #is inancial condition permits it.

"lements 2. 1. 2. 3. 4. . ender #as t#e custody o a c#ild; T#e c#ild is under se&en years o age; 5e a0andons suc# c#ild; 5e #as no intent to 6ill t#e c#ild $#en t#e latter is a0andoned. Article 3)/. E?"loitatio o( Mi ors Acts punis#ed Circumstances 3uali ying t#e o ense 1. 2. A#en t#e deat# o t#e minor resulted rom suc# a0andonment; or % t#e li e o t#e minor $as in danger 0ecause o t#e a0andonment. 2. 1. Causing any 0oy or girl under 1! years o age to per orm any dangerous eat o 0alancing1 p#ysical strengt# or contortion1 t#e o ender 0eing any person; "mploying c#ildren under 1! years o age $#o are not t#e c#ildren or descendants o t#e o ender in e4#i0itions o acro0at1 gymnast1 rope>$al6er1 di&er1 or $ild>animal tamer1 t#e o ender 0eing an acro0at1 etc.1 or circus manager or engaged in a similar calling; "mploying any descendant under 12 years o age in dangerous e4#i0itions enumerated in t#e ne4t preceding paragrap#1 t#e o ender 0eing engaged in any o t#e said callings; 9eli&ering a c#ild under 1! years o age gratuitously to any person ollo$ing any o t#e callings 3.

Article 3)). A9a $o &e t o( Mi or 9# %erso E tr.ste$ +it, His C.sto$#C I $i((ere ce o( %are ts Acts punis#ed 1. 9eli&ering a minor to a pu0lic institution or ot#er persons $it#out t#e consent o t#e one $#o entrusted suc# minor to t#e care o t#e o ender or1 in t#e a0sence o t#at one1 $it#out t#e consent o t#e proper aut#orities; "lements 3.

4.

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enumerated in paragrap# 21 or to any #a0itual &agrant or 0eggar1 t#e o ender 0eing an ascendant1 guardian1 teac#er or person entrusted in any capacity $it# t#e care o suc# c#ild; and 5. %nducing any c#ild under 1! years o age to a0andon t#e #ome o its ascendants1 guardians1 curators or teac#ers to ollo$ any person engaged in any o t#e callings mentioned in paragrap# 2 or to accompany any #a0itual &agrant or 0eggar1 t#e o ender 0eing any person.

be additional criminal resulting felony. &llustration'

liability

for

the

The owner of a circus employed a child under (- 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 (" years of age%. &f the child fell and suffered physical injuries while wor4ing, the employer shall be liable for said physical injuries in addition to his liability for exploitation of minors. Article 3/4. D+elli * "lements 1. . ender is a pri&ate person; 5e enters t#e d$elling o anot#er; <uc# entrance is against t#e latterEs $ill. 6.ali(ie$ Tres"ass to

The offender is engaged in a 4ind of business that would place the life or limb of the minor in danger, even though wor4ing for him is not against the will of the minor. ,ature of the :usiness + This involves circuses which generally attract children so they themselves may enjoy wor4ing there unaware of the danger to their own lives and limbs. !ge + 0ust be below (- years. !t this age, the minor is still growing. &f the employer is an ascendant, the crime is not committed, unless the minor is less than (" years old. :ecause if the employer is an ascendant, the law regards that he would loo4 after the welfare and protection of the child< hence, the age is lowered to (" years. :elow that age, the crime is committed. :ut remember Republic !ct ,o. ?-(; #5pecial Protection of Children against Child !buse, )xploitation and @iscrimination !ct%. &t applies to minors below (1 years old, not (- years old as in the Revised Penal Code. !s long as the employment is inimical + even though there is no physical ris4 + and detrimental to the childDs interest + against moral, intellectual, physical, and mental development of the minor + the establishment will be closed. !rticle "?1 has no application if minor is (years old and above. :ut the exploitation will be dealt with by Republic !ct ,o. ?-(;. &f the minor so employed would suffer some injuries as a result of a violation of !rticle "?1, !rticle "?8 provides that there would

2. 3.

T$o orms o trespass 1. Duali ied trespass to d$elling / T#is may 0e committed 0y any pri&ate person $#o s#all enter t#e d$elling o anot#er against t#e latterEs $ill. T#e #ouse must 0e in#a0ited at t#e time o t#e trespass alt#oug# t#e occupants are out. .r o ender 0rea6s in $it# orce and &iolence (Article 2'*). Trespass to property > . ender enters t#e closed premises or enced estate o anot#er; suc# close premises or enced estate is unin#a0ited; t#ere is a mani est pro#i0ition against entering suc# closed premises or enced estate; and o ender #as not secured t#e permission o t#e o$ner or careta6er t#ereo (Article 2'1).

2.

(<ee also -residential 9ecree Co. 1227 regarding unla$ ul entry into any military 0ase in t#e -#ilippines.) @welling + This is the place that a person inhabits. &t includes the dependencies which have interior communication with the house. &t is not necessary that it be the

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permanent dwelling of the person. 5o, a personDs room in a hotel may be considered a dwelling. &t also includes a room where one resides as a boarder. &f the purpose in entering the dwelling is not shown, trespass is committed. &f 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. :ut 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. &f 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%. &t is not necessary that there be a brea4ing. E!gainst the willF This means that the entrance is, either expressly or impliedly, prohibited or the prohibition is presumed. 2raudulent 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. >n violence, Cuello Calon opines that violence may be committed not only against persons but also against things. 5o, brea4ing the door or glass of a window or door constitutes acts of violence. >ur 5upreme Court followed this view in Peo!le v. 'a.a%. 7iolence or intimidation must, however, be anterior or coetaneous with the entrance and must not be posterior. :ut if the violence is employed immediately after the entrance without the consent of the owner of the house, trespass is committed. &f there is also violence or intimidation, proof of prohibition to enter is no longer necessary.

@istinction between 9ualified trespass to dwelling and violation of domicile =nli4e 9ualified 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 !rticle ("1 + #(% entering the dwelling against the will of the owner without judicial order< #"% searching papers or other effects found in such dwelling without the previous consent of the owner thereof< and #6% refusing to leave the dwelling when so re9uested by the owner thereof, after having surreptitiously entered such dwelling. Cases when !rticle "1; does not apply' #(% .hen the purpose of the entrance is to prevent serious harm to himself, the occupant or third persons< .hen the purpose of the offender in entering is to render some service to humanity or justice< !nyone who shall enter cafes, taverns, inns and other public houses while they are open .

#"%

#6%

Pursuant to 5ection -, Rule ((6 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 latterDs will. Article 3/1. Ot,er (or&s o( tres"ass "lements 1. 2. 3. 4. . ender enters t#e closed premises or t#e enced estate o anot#er; T#e entrance is made $#ile eit#er o t#em is unin#a0ited; T#e pro#i0ition to enter is mani est; T#e trespasser #as not secured t#e permission o t#e o$ner or t#e careta6er t#ereo .

Article 3/3. Gra0e T,reats Acts punis#ed? 1. T#reatening anot#er $it# t#e in liction upon #is person1 #onor or property or t#at o t#is amily o any

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$rong amounting to a crime and demanding money or imposing any ot#er condition1 e&en t#oug# not unla$ ul1 and t#e o ender attained #is purpose; 2. 3. Ma6ing suc# t#reat $it#out t#e o ender attaining #is purpose; T#reatening anot#er $it# t#e in liction upon #is person1 #onor or property or t#at o #is amily o any $rong amounting to a crime1 t#e t#reat not 0eing su0@ect to a condition.

@istinction 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. &n threat, the wrong or harm done is future and conditional. &n coercion, it is direct and personal. @istinction between threat and robbery' #(% !s to intimidation + &n robbery, the intimidation is actual and immediate< in threat, the intimidation is future and conditional. !s to nature of intimidation + &n robbery, the intimidation is personal< in threats, it may be through an intermediary. !s to subject matter + Robbery refers to personal property< threat may refer to the person, honor or property. !s to intent to gain + &n robbery, there is intent to gain< in threats, intent to gain is not an essential element. &n robbery, the robber ma4es the danger involved in his threats directly imminent to the victim and the obtainment of his gain immediate, thereby also ta4ing 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.

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' #(% /rave threats + when the wrong threatened to be inflicted amounts to a crime. The case falls under !rticle "1". Aight threats + if it does not amount to a crime. The case falls under !rticle "16.

#"%

#6%

#"%

#*%

:ut 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 !rticle "1$. 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. &t is, therefore, characteri3ed by moral pressure that produces dis9uietude 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. 5o the law imposes upon him the penalty next lower in degree than that prescribed for the crime threatened to be committed. :ut 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.

#$%

Article 3/8. Li*,t T,reats "lements 1. 2. 3. . ender ma6es a t#reat to commit a $rong; T#e $rong does not constitute a crime; T#ere is a demand or money or t#at ot#er condition is imposed1 e&en t#oug# not unla$ ul;

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4.

. ender #as attained #is purpose or1 t#at #e #as not attained #is purpose. 2.

doing somet#ing not pro#i0ited 0y la$; Compelling anot#er1 0y means o &iolence1 t#reats or intimidation1 to do somet#ing against #is $ill1 $#et#er it 0e rig#t or $rong.

&n 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.

"lements 1. A person pre&ented anot#er rom doing somet#ing not pro#i0ited 0y la$1 or t#at #e compelled #im to do somet#ing against #is $ill; 0e it rig#t or $rong; T#e pre&ention or compulsion 0e e ected 0y &iolence1 t#reats or intimidation; and T#e person t#at restrained t#e $ill and li0erty o anot#er #ad not t#e aut#ority o la$ or t#e rig#t to do so1 or in ot#er $ords1 t#at t#e restraint s#all not 0e made under aut#ority o la$ or in t#e e4ercise o any la$ ul rig#t.

6.estio 7 A s+er 7lac6mailing constitutes $#at crime= &t is a crime of light threat under !rticle "16 if there is no threat to publish any libelous or slanderous matter against the offended party. &f there is such a threat to ma4e a slanderous or libelous publication against the offended party, the crime will be one of libel, which is penali3ed under !rticle 6$-. 2or 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. &f the offender can not post the bond, he will be banished by way of destierro to prevent him from carrying out his threat. Article 3/!. Ot,er Li*,t T,reats Acts punis#ed 1. T#reatening anot#er $it# a $eapon1 or 0y dra$ing suc# $eapon in a 3uarrel1 unless it 0e in la$ ul sel > de ense; .rally t#reatening anot#er1 in t#e #eat o anger1 $it# some #arm constituting a crime1 $it#out persisting in t#e idea in&ol&ed in #is t#reat; .rally t#reatening to do anot#er any #arm not constituting a elony. 2.

3.

/rave coercion arises only if the act which the offender prevented another to do is not prohibited by law or ordinance. &f the act prohibited was illegal, he is not liable for grave coercion. &f 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. &t 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. ,o person shall ta4e the law into his own hands. &llustration' 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. &n the absence of actual or imminent force or violence, coercion is not committed. The

2.

3.

Article 3/'. Gra0e Coercio s Acts punis#ed 1. -re&enting anot#er1 0y means o &iolence1 t#reats or intimidation1 rom

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essence of coercion is an attac4 on individual liberty. The physical violence is exerted to #(% prevent a person from doing something he wants to do< or #"% compel him to do something he does not want to do. &llustration' &f a man compels another to show the contents of the latterDs poc4ets, and ta4es the wallet, this is robbery and not grave coercion. The intimidation is a means of committing robbery with violence or intimidation of persons. 7iolence 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. )xception to the rule that physical violence must be exerted' where intimidation is so serious that it is not a threat anymore + it approximates violence. &n Lee v. CA, &1 SCAR 1&$, it was held that neither the crime of threats nor coercion is committed although the accused, a branch manager of a ban4 made the complainant sign a withdrawal slip for the amount needed to pay the spurious dollar chec4 she had encashed, and also made her execute an affidavit regarding the return of the amount against her better sense and judgment. !ccording to the court, the complainant may have acted reluctantly and with hesitation, but still, it was voluntary. &t 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. &n 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. Article 3/). Li*,t Coercio s "lements 1. . ender must 0e a creditor;

2. 3.

5e sei:es anyt#ing 0elonging to #is de0tor? T#e sei:ure o t#e t#ing 0e accomplis#ed 0y means o &iolence or a display o material orce producing intimidation; T#e purpose o t#e o ender is to apply t#e same to t#e payment o t#e de0t.

4.

The first paragraph deals with light coercions wherein violence is employed by the offender who is a creditor in sei3ing anything belonging to his debtor for the purpose of applying the same to the payment of the debt. &n the other light coercions or unjust vexation embraced in the second paragraph, violence is absent. &n unjust vexation, any act committed without violence, but which unjustifiably annoys or vexes an innocent person amounts to light coercion. !s 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. &t is distinguished from grave coercion under the first paragraph by the absence of violence. &llustration' Persons stoning someone elseDs house. 5o long as stoning is not serious and it is intended to annoy, it is unjust vexation. &t disturbs the peace of mind. The main purpose of the statute penali3ing coercion and unjust vexation is precisely to enforce the principle that no person may ta4e the law into his hands and that our government is one of laws, not of men. The essence of the crimes is the attac4 on individual liberty. Article 3//. Ot,er Si&ilar Coercio s Acts punis#ed? 1. +orcing or compelling1 directly or indirectly1 or 6no$ingly permitting t#e orcing or compelling o t#e

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la0orer or employee o t#e o ender to purc#ase merc#andise o commodities o any 6ind rom #im; "lements? 1. . ender is any person1 agent or o icer o any association or corporation; 5e or suc# irm or corporation #as employed la0orers or employees; 5e orces or compels1 directly or indirectly1 or 6no$ingly permits to 0e orced or compelled1 any o #is or its la0orers or employees to purc#ase merc#andise or commodities o any 6ind rom #im or rom said irm or corporation.

2.

T#e purpose is to organi:e1 maintain or pre&ent coalitions o capital or la0or1 stri6e o la0orers or loc6out o employers.

Article 314. Disco0eri * Secrets t,ro.*, SeiH.re o( Corres"o $e ce "lements

2.

1.

. ender is a pri&ate indi&idual or e&en a pu0lic o icer not in t#e e4ercise o #is o icial unction; 5e sei:es t#e papers or letters o anot#er; T#e purpose is to disco&er t#e secrets o suc# anot#er person; . ender is in ormed o t#e contents o t#e papers or letters sei:ed.

3.

2. 3. 4.

2.

-aying t#e $ages due #is la0orer or employee 0y means o to6ens or o0@ect ot#er t#an t#e legal tender currency o t#e -#ilippines1 unless e4pressly re3uested 0y suc# la0orer or employee. "lements? 1. . ender pays t#e $ages due a la0orer or employee employed 0y #im 0y means o to6ens or o0@ect;

This is a crime against the security of oneDs papers and effects. The purpose must be to discover its effects. The act violates the privacy of communication. According to .rtega1 it is not necessary t#at t#e o ender s#ould actually disco&er t#e contents o t#e letter. 2eyes1 citing Peo!le v. Sin%h, CA, 1& 5(, Su!!l. $, 3$, 0elie&es ot#er$ise. The last paragraph of !rticle "8; expressly ma4es 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. &n a case decided by the 5upreme 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 sei3ure. The ruling held that the wife should have applied for a search warrant. @istinction from estafa, damage to property, and unjust vexation'

1. T#ose to6ens or o0@ects are ot#er t#an t#e legal tender currency o t#e -#ilippines; 3. <uc# employee or la0orer does not e4pressly re3uest t#at #e 0e paid 0y means o to6ens or o0@ects.

Article 3/1. For&atio @ Mai te a ce@ a $ %ro,i9itio o( Co&9i atio o( Ca"ital or La9or t,ro.*, 2iole ce or T,reats "lements 1. . ender employs &iolence or t#reats1 in suc# a degree as to compel or orce t#e la0orers or employers in t#e ree and legal e4ercise o t#eir industry or $or6;

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&f the act had been executed with intent of gain, it would be estafa< &f, on the other hand, the purpose was not to defraud, but only to cause damage to anotherDs, it would merit the 9ualification of damage to property< &f 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. Article 311. Re0eali * Secrets +it, A9.se o( O((ice "lements 2.

manu acturing esta0lis#ment;

or

industrial

T#e manu acturing or industrial esta0lis#ment #as a secret o t#e industry $#ic# t#e o ender #as learned; . ender re&eals suc# secrets; -re@udice is caused to t#e o$ner.

3. 4.

! business secret must not be 4nown to other business entities or persons. &t is a matter to be discovered, 4nown and used by and must belong to one person or entity exclusively. >ne 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 !rticle "8". TITLE G. CRIMES AGAINST %RO%ERTY

1. 2. 3.

. ender is a manager1 employee or ser&ant; 5e learns t#e secrets o #is principal or master in suc# capacity; 5e re&eals suc# secrets.

Crimes against property 1. 2. 2o00ery $it# &iolence against or intimidation o persons (Art. 2)4); Attempted and rustrated ro00ery committed under certain circumstances (Art. 2)7); "4ecution o deeds 0y means o &iolence or intimidation (Art. 2)'); 2o00ery in an in#a0ited #ouse or pu0lic 0uilding or edi ice de&oted to $ors#ip (Art. 2))); 2o00ery in an in#a0ited place or in a pri&ate 0uilding (Art. 3*2); -ossession o pic6loc6s or similar tools (Art. 3*4); 7rigandage (Art. 3*!); Aiding and a0etting a 0and o 0rigands (Art. 3*7); T#e t (Art. 3*'); Duali ied t#e t (Art. 31*); T#e t o t#e property o t#e Cational Bi0rary and Cational Museum (Art. 311);

!n employee, manager, or servant who came to 4now 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. &f 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 313. Secrets "lements 1. . ender is a person in c#arge1 employee or $or6man o a Re0elatio o( I $.strial

3. 4.

5. !. 7. '. ). 1*. 11.

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12.

.ccupation o real property or usurpation o real rig#ts in property (Art. 312); Altering 0oundaries or landmar6s (Art. 313);

2. 3.

T#ere is unla$ ul ta6ing o property;

t#at

13. 14. 15. 1!. 17. 1'. 1). 2*. 21. 22. 23. 24. 25. 2!. 27. 2'. 2).

T#e ta6ing must 0e $it# intent to gain; and T#ere is &iolence against or intimidation o any person1 or orce upon anyt#ing.

4. +raudulent insol&ency (Art. 314); <$indling (Art. 315); .t#er orms o s$indling (Art. 31!); <$indling a minor (Art. 317);

Article 314. Ro99er# +it, 2iole ce a*ai st or I ti&i$atio o( %erso s Acts punis#ed

.t#er deceits (Art. 31'); 1. 2emo&al1 sale or pledge mortgaged property (Art. 31)); 9estructi&e arson (Art. 32*); .t#er orms o arson (Art. 321); Arson o property o small &alue (Art. 323); 3. Crimes in&ol&ing destruction (Art. 324); 7urning oneEs o$n property as means to commit arson (Art. 325); 4. <etting ire to property e4clusi&ely o$ned 0y t#e o ender (Art. 32!); Malicious misc#ie (Art. 327); <pecial case o malicious misc#ie (Art. 32'); 9amage and o0struction to means o communication (Art. 33*); 5. 9estroying or damaging statues1 pu0lic monuments or paintings (Art. 331). !. 2. o A#en 0y reason or on occasion o t#e ro00ery (ta6ing o personal property 0elonging to anot#er $it# intent to gain)1 t#e crime o #omicide is committed; A#en t#e ro00ery is accompanied 0y rape or intentional mutilation or arson; A#en 0y reason o on occasion o suc# ro00ery1 any o t#e p#ysical in@uries resulting in insanity1 im0ecility1 impotency or 0lindness is in licted; A#en 0y reason or on occasion o ro00ery1 any o t#e p#ysical in@uries resulting in t#e loss o t#e use o speec# or t#e po$er to #ear or to smell1 or t#e loss o an eye1 a #and1 a oot1 an arm1 or a leg or t#e loss o t#e use o any suc# mem0er or incapacity or t#e $or6 in $#ic# t#e in@ured person is t#ereto ore #a0itually engaged is in licted; % t#e &iolence or intimidation employed in t#e commission o t#e ro00ery is carried to a degree unnecessary or t#e commission o t#e crime; A#en in t#e course o its e4ecution1 t#e o ender s#all #a&e in licted upon any person not responsi0le or t#e commission o t#e ro00ery any o t#e p#ysical in@uries in conse3uence o $#ic# t#e person in@ured 0ecomes de ormed or loses any ot#er mem0er o #is 0ody or loses t#e sue t#ereo or 0ecomes ill or incapacitated or t#e per ormance o t#e $or6 in $#ic# #e is #a0itually engaged or more t#an )* days or t#e person in@ured 0ecomes ill or

Article 318. W,o Are G.ilt# o( Ro99er# 2o00ery / T#is is t#e ta6ing or personal property 0elonging to anot#er1 $it# intent to gain1 0y means o &iolence against1 or intimidation o any person1 or using orce upon anyt#ing. "lements o ro00ery in general 1. T#ere is personal property 0elonging to anot#er;

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incapacitated or la0or or more t#an 3* days; 5n robber. 7i)h ho0ici#e 7. % t#e &iolence employed 0y t#e o ender does not cause any o t#e serious p#ysical in@uries de ined in Article 2!31 or i t#e o ender employs intimidation only. The term EhomicideF 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. 5o, any 4ind of 4illing by reason of or on the occasion of a robbery will bring about the crime of robbery with homicide even if the person 4illed is less than three days old, or even if the person 4illed is the mother or father of the 4iller, or even if on such robbery the person 4illed was done by treachery or any of the 9ualifying circumstances. &n short, there is no crime of robbery with parricide, robbery with murder, robbery with infanticide + any and all forms of 4illing is referred to as homicide. &llustration' !s long as there is only one #(% robbery, regardless of the persons 4illed, the crime will only be one #(% count of robbery with homicide. The fact that there are multiple 4illings committed in the course of the robbery will be considered only as aggravating so as to call for the imposition of the maximum penalty prescribed by law. &f, on the occasion or by reason of the robbery, somebody is 4illed, and there are also physical injuries inflicted by reason or on the occasion of the robbery, donDt thin4 that those who sustained physical injuries may separately prosecute the offender for physical injuries. Those physical injuries are only considered aggravating circumstances in the crime of robbery with homicide. This is not a complex crime as understood under !rticle *1, but a single indivisible crime. This is a special complex crime because the specific penalty is provided in the law. &n 4a!oli+ 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 !rticle *1. &n robbery with violence of intimidation, the ta4ing is complete when the offender has already the possession of the thing even if he has no opportunity to dispose of it. &n robbery with force upon things, the things must be brought outside the building for consummated robbery to be committed. The robbers enter the house. &n 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. &t refers to any 4ind of death. !lthough it is a crime against property and treachery is an aggravating circumstance that applies only to crimes against persons, if the 4illing in a robbery is committed with treachery, the treachery will be considered a generic aggravating circumstance because of the homicide. .hen two or more persons are 4illed during the robbery, such should be appreciated as an aggravating circumstance. !s long as there is only one robbery, regardless of the persons 4illed, you only have one crime of robbery with homicide. ,ote, however, that Eone robberyF does not mean there is only one ta4ing. &llustration' 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. &f there were 4illings done to different boarders during the robbery being committed in a boarderDs 9uarter, do not consider that as separate counts of robbery with homicide

7iolence or intimidation upon persons may result in death or mutilation or rape or serious physical injuries. &f death results or even accompanies a robbery, the crime will be robbery with homicide provided that the robbery is consummated. This is a crime against property, and therefore, you contend not with the 4illing but with the robbery.

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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. &f there were homicide or death committed, that would only be part of a single robbery. That there were several 4illings done would only aggravate the commission of the crime of robbery with homicide. &n Peo!le v. 2ui8one+, 183 SCRA 717, it was held that there is no crime of robbery with multiple homicides. The charge should be for robbery with homicide only because the number of persons 4illed is immaterial and does not increase the penalty prescribed in !rticle "8*. !ll the 4illings are merged in the composite integrated whole that is robbery with homicide so long as the 4illings were by reason or on occasion of the robbery. &n another case, a band of robbers entered a compound, which is actually a sugar mill. .ithin the compound, there were 9uarters of the laborers. They robbed each of the 9uarters. The 5upreme 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. .ith more reason, therefore, if in a robbery, the offender too4 away property belonging to different owners, as long as the ta4ing 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. &n robbery with homicide as a single indivisible offense, it is immaterial who gets 4illed. )ven though the 4illing may have resulted from negligence, you will still designate the crime as robbery with homicide. &llustration' >n the occasion of a robbery, one of the offenders placed his firearm on the table. .hile they were ransac4ing the place, one of the robbers bumped the table. !s a result, the firearm fell on the floor and discharged. >ne of the robbers was the one 4illed. )ven though the placing of the firearm on the table where there is no safety precaution ta4en may be considered as one of negligence or imprudence, you do not separate the homicide as one of the product of criminal negligence. &t will still be robbery

with homicide, whether the person 4illed is connected with the robbery or not. He need not also be in the place of the robbery. &n 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. ! person several meters away was the one who got 4illed. The crime was held to be robbery with homicide. ,ote that the person 4illed 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. &t is enough that the homicide was committed by reason of the robbery or on the occasion thereof. &llustration' There are two robbers who bro4e into a house and carried away some valuables. !fter they left such house these two robbers decided to cut or divide the loot already so that they can go of them. 5o 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. ,ow this robber who was boxed then pulled out his gun and fired at the other one 4illing the latter. .ould that bring about the crime of robbery with homicideO Bes. )ven if the robbery was already consummated, the 4illing was still by reason of the robbery because they 9uarreled in dividing the loot that is the subject of the robbery. &n Peo!le v. /o0in%o, 181 SCRA 1&9, on the occasion of the robbery, the storeowner, a septuagenarian, suffered a stro4e due to the extreme fear which directly caused his death when the robbers pointed their guns at him. &t was held that the crime committed was robbery with homicide. &t 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. Remember also that intent to rob must be proved. :ut there must be an allegation as to the robbery not only as to the intention to rob.

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&f the motive is to 4ill and the ta4ing is committed thereafter, the crimes committed are homicide and theft. &f the primordial intent of the offender is to 4ill and not to rob but after the 4illing of the victims a robbery was committed, then there are will be two separate crimes. &llustration' &f a person had an enemy and 4illed him and after 4illing him, saw that he had a beautiful ring and too4 this, the crime would be not robbery with homicide because the primary criminal intent is to 4ill. 5o, there will be two crimes' one for the 4illing and one for the ta4ing of the property after the victim was 4illed. ,ow this would bring about the crime of theft and it could not be robbery anymore because the person is already dead. 2or 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 Ein the course or because of the robbery.F Robbery and homicide are separate offenses when the homicide is not committed Eon the occasionF or Eby reasonF of the robbery. .here the victims were 4illed, not for the purpose of committing robbery, and the idea of ta4ing the money and other personal property of the victims was conceived by the culprits only after the 4illing, it was held in Peo!le v. /o0in%o, 181 SCRA 1&9, that the culprits committed two separate crimes of homicide or murder #9ualified by abuse of superior strength% and theft. The victims were 4illed first then their money was ta4en the money from their dead bodies. This is robbery with homicide. &t is important here that the intent to commit robbery must precede the ta4ing of human life in robbery with homicide. The offender must have the intent to ta4e personal property before the 4illing.

&t must be conclusively shown that the homicide was committed for the purpose of robbing the victim. &n Peo!le v. "ernan#ez, appellants had not thought of robbery prior to the 4illing. The thought of ta4ing the victimDs wristwatch was conceived only after the 4illing and throwing of the victim in the canal. !ppellants were convicted of two separate crimes of homicide and theft as there is absent direct relation and intimate connection between the robbery and the 4illing. 5n robber. 7i)h ra!e This is another form of violence or intimidation upon person. The rape accompanies the robbery. &n 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. &f 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. 5o, 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. &f 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. &f 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. &f 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. :ut if the accused tried to rape the offended party and because of resistance, he failed to consummate the act, and then he

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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 !rticle *1 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. &t is enough that the robbery accompanied the rape. Robbery must not be a mere accident or afterthought. &n Peo!le v. 9lore+, 19$ SCRA 9$, although the offenders plan was to get the victimDs money, rape her and 4ill her, but in the actual execution of the crime, the thoughts of depriving the victim of her valuables was relegated to the bac4ground and the offenderDs 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 victimDs ring and wristwatch. The ta4ing of the victimDs valuables turned out to be an afterthought. &t was held that two distinct crimes were committed' rape with homicide and theft. &n Peo!le v. /inola, 183 SCRA 193, 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. &n the latter, the criminal intent to gain must precede the intent to rape. 5n robber. 7i)h !h.+ical in:urie+ To be considered as such, the physical injuries must always be serious. &f the physical injuries are only less serious or slight, they are absorbed in the robbery. The crime becomes merely robbery. :ut 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. &t 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. &llustration'

!fter 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 bac4. &f only less serious physical injuries were inflicted, there will be separate crimes' one for robbery and one for less serious physical injuries. :ut 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 bac4 and somebody was 4illed, the crime would still be robbery with homicide. :ut 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. %n !rticle "88, it is only when the physical injuries resulted in the deformity or incapacitated the offended party from labor for more than 6; days that the law re9uires 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. :ut if the physical injuries inflicted are those falling under subdivision ( and " of !rticle "-6, 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. &llustration' !fter 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 9uarreled. They shot it out and one of the robbers was 4illed. The crime is still robbery with homicide even though one of the robbers was the one 4illed by one of them. &f they 9uarreled 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,

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the crime will still be robbery with serious physical injuries. &f the robbers 9uarreled over the loot and one of the robbers hac4ed the other robber causing a deformity in his face, the crime will only be robbery and a separate charge for the serious physical injuries because when it is a deformity that is caused, the law re9uires that the deformity must have been inflicted upon one who is not a participant in the robbery. 0oreover, the physical injuries which gave rise to the deformity or which incapacitated the offended party from labor for more than 6; days, must have been inflicted in the course of the execution of the robbery or while the robbery was ta4ing place. &f it was inflicted when the thievesJrobbers 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. Bou only have one count of robbery and another count for the serious physical injuries inflicted. &f, during or on the occasion or by reason of the robbery, a 4illing, rape or serious physical injuries too4 place, there will only be one crime of robbery with homicide because all of these + 4illing, rape, serious physical injuries are contemplated by law as the violence or intimidation which characteri3es the ta4ing as on of robbery. Bou charge the offenders of robbery with homicide. The rape or physical injuries will only be appreciated as aggravating circumstance and is not the subject of a separate prosecution. They will only call for the imposition of the penalty in the maximum period. &f 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 #see 4a!oli+ v. CA%. This is because robbery with violence or intimidation upon persons is a separate crime from robbery with force upon things. Robbery with homicide, robbery with intentional mutilation and robbery with rape are not 9ualified by band or uninhabited place. These aggravating circumstances only 9ualify robbery with physical injuries under subdivision ", 6, and * of !rticle "88.

.hen it is robbery with homicide, the band or uninhabited place is only a generic aggravating circumstance. &t will not 9ualify the crime to a higher degree of penalty. &n Peo!le 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. :ut 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 Peo!le v. A+)or. 5n robber. 7i)h ar+on !nother innovation of Republic !ct ,o. ?-$8 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 4illing, rape, or intentional mutilation committed by the offender during the robbery. >therwise, 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. &t 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. 0oreover, it should be noted that arson has been made a component only of robbery with violence against or intimidation of persons in said !rticle "8*, but not of robbery by the use of force upon things in !rticles "88 and 6;". 5o, if the robbery was by the use of force upon things and therewith arson was committed, two distinct crimes are committed.

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Article 31!. Ro99er# +it, %,#sical I D.ries@ Co&&itte$ i A U i ,a9ite$ %lace a $ 9# A Aa $ 2o00ery $it# &iolence against or intimidation o person 3uali ied is 3uali ied i it is committed 1. 2. 3. 4. %n an unin#a0ited place; 7y a 0and; 7y attac6ing a mo&ing train1 street car1 motor &e#icle1 or airs#ip; 7y entering t#e passengersE compartments in a train1 or in any manner ta6ing t#e passengers t#ereo 0y surprise in t#e respecti&e con&eyances; or .n a street1 road1 #ig#$ay or alley1 and t#e intimidation is made $it# t#e use o irearms1 t#e o ender s#all 0e punis#ed 0y t#e ma4imum periods o t#e proper penalties prescri0ed in Article 2)4.

3.

T#e compulsion is 0y means o &iolence or intimidation.

Article 311. Ro99er# i A I ,a9ite$ Ho.se or %.9lic A.il$i * or E$i(ice De0ote$ to Wors,i" "lements under su0di&ision (a) 1. 2. . ender entered an #ouse1 pu0lic 0uilding in#a0ited

T#e entrance $as e ected 0y any o t#e ollo$ing means? a. T#roug# an opening not intended or entrance or egress; 7y 0rea6ing any $all1 roo or loor1 or 0rea6ing any door or $indo$; 7y using alse 6eys1 pic6loc6s or similar tools; or 7y using any ictitious name or pretending t#e e4ercise o pu0lic aut#ority.

0. 5.

c. d.

Article 31' de ines a ro00ery 0y a 0and as ollo$s? $#en at least our armed male actors ta6e part in t#e commission o a ro00ery. 2e3uisites or lia0ility or t#e acts o t#e ot#er mem0ers o t#e 0and 1. 2. 3. 4. 5e $as a mem0er o t#e 0and; 5e $as present at t#e commission o a ro00ery 0y t#at 0and; T#e ot#er mem0ers o committed an assault; t#e 0and

3.

.nce inside t#e 0uilding1 o ender too6 personal property 0elonging to anot#er $it# intent to gain.

"lements under su0di&ision (0)? 1. . ender is inside a d$elling #ouse1 pu0lic 0uilding1 or edi ice de&oted to religious $ors#ip1 regardless o t#e circumstances under $#ic# #e entered it; . ender ta6es personal property 0elonging to anot#er1 $it# intent to gain1 under any o t#e ollo$ing circumstances? a. 7y t#e 0rea6ing o doors1 $ardro0es1 c#ests1 or any ot#er 6ind o loc6ed or sealed urniture or receptacle; or 7y ta6ing suc# urniture or o0@ects a$ay to 0e 0ro6en or orced open outside t#e place o t#e ro00ery.

2.

5e did not attempt to pre&ent t#e assault.

Article 31/. E?ec.tio o( Dee$s 9# Mea s o( 2iole ce or i ti&i$atio "lements 0. 1. 2. . ender anot#er; #as intent to de raud

. ender compels #im to sign1 e4ecute1 or deli&er any pu0lic instrument or document.

K2orce upon thingsK has a technical meaning in law. ,ot any 4ind of force upon

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things will characteri3e the ta4ing as one of robbery. The force upon things contemplated re9uires some element of trespass into the establishment where the robbery was committed. &n other words, the offender must have entered the premises where the robbery was committed. &f no entry was effected, even though force may have been employed actually in the ta4ing of the property from within the premises, the crime will only be theft. Two predicates that will give rise to the crime as robbery' (. :y mere entering alone, a robbery will be committed if any personal property is ta4en from within< The entering will not give rise to robbery even if something is ta4en inside. &t is the brea4ing of the receptacle or closet or cabinet where the personal property is 4ept that will give rise to robbery, or the ta4ing of a sealed, loc4ed receptacle to be bro4en outside the premises.

entered through that opening without brea4ing the same. The crime will already be robbery if he ta4es property from within because that is not an opening intended for the purpose. )ven of there is a brea4ing of wall, roof, floor or window, but the offender did not enter, it would not give rise to robbery with force upon things. :rea4ing of the door under !rticle"88 #b% + >riginally, the interpretation was that in order that there be a brea4ing of the door in contemplation of law, there must be some damage to the door. :efore, if the door was not damaged but only the loc4 attached to the door was bro4en, the ta4ing from within is only theft. :ut the ruling is now abandoned because the door is considered useless without the loc4. )ven if it is not the door that was bro4en but only the loc4, the brea4ing of the loc4 renders the door useless and it is therefore tantamount to the brea4ing of the door. Hence, the ta4ing inside is considered robbery with force upon things. &f the entering does not characteri3e the ta4ing 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 brea4ing of sealed, loc4ed or closed receptacles or cabinet in order to get the personal belongings from within such receptacles, cabinet or place where it is 4ept. &f in the course of committing the robbery within the premises some interior doors are bro4en, the ta4ing from inside the room where the door leads to will only give rise to theft. The brea4ing of doors contemplated in the law refers to the main door of the house and not the interior door. :ut if it is the door of a cabinet that is bro4en and the valuable inside the cabinet was ta4en, the brea4ing of the cabinet door would characteri3e the ta4ing as robbery. !lthough that particular door is not included as part of the house, the cabinet 4eeps the contents thereof safe.

".

&f by the mere entering, that would already 9ualify the ta4ing of any personal property inside as robbery, it is immaterial whether the offender stays inside the premises. The brea4ing of things inside the premises will only be important to consider if the entering by itself will not characteri3e the crime as robbery with force upon things. 0odes of entering that would give rise to the crime of robbery with force upon things if something is ta4en inside the premises' entering into an opening not intended for entrance or egress, under !rticle "88 #a%. &llustration' The entry was made through a fire escape. The fire escape was intended for egress. The entry will not characteri3e the ta4ing as one of robbery because it is an opening intended for egress, although it may not be intended for entrance. &f the entering were done through the window, even if the window was not bro4en, that would characteri3e the ta4ing of personal property inside as robbery because the window is not an opening intended for entrance. &llustration' >n a sari sari store, a vehicle bumped the wall. The wall collapsed. There was a small opening there. !t night, a man

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=se of pic4loc4s or false 4eys refers to the entering into the premises + &f the pic4loc4 or false 4ey was used not to enter the premises because the offender had already entered but was used to unloc4 an interior door or even a receptacle where the valuable or personal belonging was ta4en, the use of false 4ey or pic4loc4 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 4ept. The law classifies robbery with force upon things as those committed in' #(% #"% #6% an inhabited place<

public building, and not a place devoted to religious worship. .here the house is a private building or is uninhabited, even though there is simulation of public authority in committing the ta4ing or even if he used a fictitious name, the crime is only theft. ,ote that in the crime of robbery with force upon things, what should be considered is the means of entrance and means of ta4ing the personal property from within. &f those means do not come within the definition under the Revised Penal Code, the ta4ing will only give rise to theft. Those means must be employed in entering. &f the offender had already entered when these means were employed, anything ta4en inside, without brea4ing of any sealed or closed receptacle, will not give rise to robbery. &llustration'

public buildings< a place devoted to religious worship. ! found : inside his #!Ds% house. He as4ed : what the latter was doping there. : claimed he is an inspector from the local city government to loo4 after the electrical installations. !t the time : was chanced upon by !, he has already entered. 5o anything he too4 inside without brea4ing 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 841 de ines an in#a0ited #ouse1 pu0lic 0uilding1 or 0uilding dedicated to religious $ors#ip and t#eir dependencies1 t#us? %n#a0ited #ouse / Any s#elter1 s#ip1 or &essel constituting t#e d$elling o one or more persons1 e&en t#oug# t#e in#a0itants t#ereo s#all temporarily 0e a0sent t#ere rom $#en t#e ro00ery is committed. -u0lic 0uilding / %ncludes e&ery 0uilding o$ned 0y t#e go&ernment or 0elonging to a pri&ate person 0ut used or rented 0y t#e go&ernment1 alt#oug# temporarily unoccupied 0y t#e same. 9ependencies o an in#a0ited #ouse1 pu0lic 0uilding1 or 0uilding dedicated to religious $ors#ip / All interior courts1 corrals1 $are#ouses1 granaries1 0arns1 coac##ouses1 sta0les1 or ot#er departments1 or enclosed interior entrance connected t#ere$it# and $#ic# orm part o t#e $#ole. .rc#ards and ot#er lands used or culti&ation or production are not

The law also considers robbery committed not in an inhabited house or in a private building. ,ote that the manner of committing the robbery with force upon things is not the same. .hen 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 characteri3e the ta4ing inside as robbery with force upon things.

6.estio 7 A s+er Certain men pretended to 0e rom t#e -rice Control Commission and $ent to a $are#ouse o$ned 0y a pri&ate person. T#ey told t#e guard to open t#e $are#ouse purportedly to see i t#e pri&ate person is #oarding essential commodities t#ere. T#e guard o0liged. T#ey $ent inside and 0ro6e in . T#ey loaded some o t#e merc#andise inside claiming t#at it is t#e product o #oarding and t#en dro&e a$ay. A#at crime $as committed= &t is only theft because the premises where the simulation of public authority was committed is not an inhabited house, not a

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included1 e&en i closed1 contiguous to t#e 0uilding1 and #a&ing direct connection t#ere$it#. Article 843. Ro99er# i A U i ,a9ite$ %lace or i A %ri0ate A.il$i * "lements 1. . ender entered an unin#a0ited place or a 0uilding $#ic# $as not a d$elling #ouse1 not a pu0lic 0uilding1 or not an edi ice de&oted to religious $ors#ip; Any o t#e ollo$ing circumstances $as present? a. T#e entrance $as e ected t#roug# an opening not intended or entrance or egress; A $all1 roo 1 loor1 or outside door or $indo$ $as 0ro6en; T#e entrance $as e ected t#roug# t#e use o alse 6eys1 pic6loc6s or ot#er similar tools; A door1 $ardro0e1 c#est1 or any sealed or closed urniture or receptacle $as 0ro6en; or A closed or sealed receptacle $as remo&ed1 e&en i t#e same 0e 0ro6en open else$#ere.

2.

<uc# pic6loc6 or similar tools are especially adopted to t#e commission o ro00ery; . ender does not #a&e la$ ul cause or suc# possession.

3.

Article 84! de ines alse 6eys to include t#e ollo$ing? 1. 2. 3. Tools mentioned in Article 3*4; ;enuine 6eys stolen rom t#e o$ner; Any 6ey ot#er t#an t#ose intended 0y t#e o$ner or use in t#e loc6 orci0ly opened 0y t#e o ender.

2.

0. c.

7rigandage / T#is is a crime committed 0y more t#an t#ree armed persons $#o orm a 0and o ro00ers or t#e purpose o committing ro00ery in t#e #ig#$ay or 6idnapping persons or t#e purpose o e4tortion or to o0tain ransom1 or or any ot#er purpose to 0e attained 0y means o orce and &iolence. Article 84'. W,o Are Ari*a $s "lements o 0rigandage

d.

1. 2. 2.

T#ere are least our armed persons; T#ey ormed a 0and o ro00ers; T#e purpose is any o t#e ollo$ing? a. 0. To commit ro00ery in t#e #ig#$ay; To 6idnap persons or t#e purpose o e4tortion or to o0tain ransom; or To attain 0y means o orce and &iolence any ot#er purpose.

e.

3.

. ender too6 t#ere rom personal property 0elonging to anot#er $it# intent to gain.

c. 8nder Article 8481 i t#e ro00ery under Article 2)) and 3*2 consists in t#e ta6ing o cereals1 ruits1 or ire$ood1 t#e penalty imposa0le is lo$er. Article 844. %ossessio Si&ilar Tools "lements 1. . ender #as in #is possession pic6loc6s or similar tools; o( %ic=loc= or "lements 1. 2.

Article 84). Ai$i * a $ A9etti * A Aa $ o( Ari*a $s

T#ere is a 0and o 0rigands; . ender 6no$s t#e 0and to 0e o 0rigands;

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3.

. ender does any o t#e ollo$ing acts? a. 5e in any manner aids1 a0ets or protects suc# 0and o 0rigands; 5e gi&es t#em in ormation o t#e mo&ements o t#e police or ot#er peace o icers o t#e go&ernment; or 5e ac3uires or recei&es t#e property ta6en 0y suc# 0rigands.

0.

c.

@istinction between brigandage under the Revised Penal Code and highway robberyJbrigandage under Pre+i#en)ial /ecree 4o. $3 ; #(% :rigandage 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, 4idnapping 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 re9uires at least four armed persons, if for any of the criminal purposes stated in !rticle 6;-, gives rise to brigandage. Highway robberyJbrigandage under Presidential @ecree ,o. $6" is the sei3ure of any person for ransom, extortion or for any other lawful purposes, or the ta4ing 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.

&n Peo!le v. Puno, #eci#e# 9ebruar. 17, 1993, the trial court convicted the accused of highway robberyJ brigandage under Presidential @ecree ,o. $6" and sentenced them to reclusion perpetua. >n appeal, the 5upreme Court set aside the judgment and found the accused guilty of simple robbery as punished in !rticle "8* #$%, in relation to !rticle "8$, and sentenced them accordingly. The 5upreme Court pointed out that the purpose of brigandage Eis, inter alia, indiscriminate highway robbery. !nd that P@ $6" punishes as highway robbery or :rigandage only acts of robbery perpetrated by outlaws indiscriminately against any person or persons on a Philippine highway as defined therein, not acts committed against a predetermined or particular victimF. ! single act of robbery against a particular person chosen by the offender as his specific victim, even if committed on a highway, is not highway robbery or brigandage. &n 3S v. 9eliciano, 3 Phil. 1 , 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. &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. Presidential @ecree ,o. $6" introduced amendments to !rticle 6;- and 6;? by increasing the penalties. &t does not re9uire at least four armed persons forming a band of robbers. &t does not create a presumption that the offender is a brigand when he an unlicensed firearm is used unli4e the Revised Penal Code. :ut the essence of brigandage under the Revised Penal Code is the same as that in the Presidential @ecree, 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. Article 84/. W,o Are Lia9le (or T,e(t -ersons lia0le

#"%

:rigandage under Presidential @ecree ,o. $6" refers to the actual commission of the robbery on the highway and can be committed by one person alone. &t is this brigandage which deserves some attention because not any robbery in a highway is brigandage or highway robbery. ! distinction should be made between highway robberyJbrigandage under the decree and ordinary robbery committed on a highway under the Revised Penal Code.

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1.

T#ose $#o $it# intent to gain1 0ut $it#out &iolence against or intimidation o persons nor orce upon t#ings1 ta6e personal property o anot#er $it#out t#e latterEs consent; T#ose $#o #a&ing ound lost property1 ails to deli&er t#e same to t#e local aut#orities or to its o$ner; T#ose $#o1 a ter #a&ing maliciously damaged t#e property o anot#er1 remo&e or ma6e use o t#e ruits or o0@ects o t#e damage caused 0y t#em; T#ose $#o enter an enclosed estate or a ield $#ere trespass is or0idden or $#ic# 0elongs to anot#er and1 $it#out t#e consent o its o$ner1 #unt or is# upon t#e same or gat#er ruits1 cereals or ot#er orest or arm products.

2.

3.

5ince 5ection $ of Presidential @ecree ,o. (-(" 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 4nowledge 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 Pa0in)uan v. Peo!le, #eci#e# on ,ul. 11, 1991. :urden 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. :ut if prosecution is under the Revised Penal Code, as an accessory, the criminal intent is controlling. .hen 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. Cattle Rustling and Mualified Theft of Aarge Cattle + The crime of cattle rustling is defined and punished under Pre+i#en)ial /ecree 4o. $33, the !nti Cattle Rustling law of (8?*, as the ta4ing 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 ta4ing is without the consent of the ownerJbreed thereof. The crime includes the 4illing or ta4ing the meat or hide of large cattle without the consent of the owner. 5ince the intent to gain is not essential, the 4illing or destruction of large cattle, even without ta4ing any part thereof, is not a crime of malicious mischief but cattle rustling. The Presidential @ecree, however, does not supersede the crime of 9ualified theft of large cattle under !rticle 6(; of the Revised Penal Code, but merely modified the penalties provided for theft of large cattle and, to that extent, amended !rticles 6;8 and 6(;. ,ote that the overt act that gives rise to the crime of cattle rustling is the ta4ing or 4illing of large cattle. .here the

4.

"lements 1. 2. 3. 4. 5. T#ere is ta6ing o personal property; T#e property anot#er; ta6en 0elongs to

T#e ta6ing $as done $it# intent to gain; T#e ta6ing $as done $it#out t#e consent o t#e o$ner; T#e ta6ing is accomplis#ed $it#out t#e use o &iolence against or intimidation o persons o orce upon t#ings.

2encing under Pre+i#en)ial /ecree 4o. 161 is a distinct crime from theft and robbery. &f the participant who profited is being prosecuted with person who robbed, the person is prosecuted as an accessory. &f he is being prosecuted separately, the person who partoo4 of the proceeds is liable for fencing. &n Peo!le v. ,u#%e #e (uz0an, it was held that fencing is not a continuing offense. Nurisdiction is with the court of the place where the personal property subject of the robbery or theft was possessed, bought, 4ept, or dealt with. The place where the theft or robbery was committed was inconse9uential.

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large cattle was not ta4en, but received by the offender from the ownerJoverseer thereof, the crime is not cattle rustling< it is 9ualified theft of large cattle. .here the large cattle was received by the offender who thereafter misappropriated it, the crime is 9ualified theft under !rticle 6(; if only physical or material possession thereof was yielded to him. &f both material and juridical possession thereof was yielded to him who misappropriated the large cattle, the crime would be estafa under !rticle 6($ #(b%. Presidential @ecree ,o. $66 is not a special law in the context of !rticle (; of the Revised Penal Code. &t merely modified the penalties provided for theft of large cattle under the Revised Penal Code and amended !rticle 6;8 and 6(;. This is explicit from 5ection (; of the Presidential @ecree. Conse9uently, the trial court should not have convicted the accused of frustrated murder separately from cattle rustling, since the former should have been absorbed by cattle rustling as 4illing was a result of or on the occasion of cattle rustling. &t should only be an aggravating circumstance. :ut because the information did not allege the injury, the same can no longer be appreciated< the crime should, therefore be only, simple cattle rustling. <Peo!le v. 6ar)ina#a, 9ebruar. 13, 1991= Article 814. 6.ali(ie$ T,e(t T#e t is 3uali ied i 1. 2. 3. 4. Committed 0y a domestic ser&ant; Committed $it# gra&e a0use o con idence; T#e property stolen is a motor &e#icle1 mail matter1 or large cattle; T#e property stolen consists o coconuts ta6en rom t#e premises o a plantation; T#e property stolen is is# ta6en rom a is#pond or is#ery; or % property is ta6en on t#e occasion o ire1 eart#3ua6e1 typ#oon1 &olcanic eruption1 or any ot#er calamity1

&e#icular accident1 distur0ance.

or

ci&il

Article 811. T,e(t o( t,e %ro"ert# o( t,e Natio al Li9rar# or Natio al M.se.& % t#e property stolen is any property o t#e Cational Bi0rary or o t#e Cational Museum Article 813. Occ."atio o( Real %ro"ert# or Us.r"atio o( Real Ri*,ts i %ro"ert# Acts punis#ed? 1. Ta6ing possession o any real property 0elonging to anot#er 0y means o &iolence against or intimidation o persons; 8surping any real rig#ts in property 0elonging to anot#er 0y means o &iolence against or intimidation o persons.

2.

"lements 1. . ender ta6es possession o any real property or usurps any real rig#ts in property; T#e real property or real rig#ts 0elong to anot#er; (iolence against or intimidation o persons is used 0y t#e o ender in occupying real property or usurping real rig#ts in property; T#ere is intent to gain.

2. 3.

4.

=se the degree of intimidation to determine the degree of the penalty to be applied for the usurpation. =surpation under !rticle 6(" 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. <Peo!le v. ,u#%e Al*eche, ,ul. 3, 199 = =surpation of real rights and property should not be complexed using !rticle *1 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

5. !.

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used is a4in to that in robbery in !rticle "8*, 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. &f 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 9uashed as it does not charge an offense. The owner would, at most, be entitled to civil recourse only. 5n carna!!in% vehicle an# )he*) o* 0o)or

3.

%ntruders o lands reser&ed or sociali:ed #ousing1 pre>empting possession 0y occupying t#e same. Alteri * Ao. $aries or

Article 818. La $&ar=s "lements 1.

T#ere are 0oundary mar6s or monuments o to$ns1 pro&inces1 or estates1 or any ot#er mar6s intended to designate t#e 0oundaries o t#e same; . ender mar6s. alters said 0oundary

2.

Article 814. Fra.$.le t I sol0e c# "lements 1. 2. 3. . ender is a de0tor1 t#at is1 #e #as o0ligations due and paya0le; 5e a0sconds $it# #is property; T#ere is pre@udice to #is creditors.

The ta4ing with intent to gain of a motor vehicle belonging to another, without the latterDs consent, or by means of violence or intimidation of persons, or by using force upon things is penali3ed as carnapping under Re!ublic Ac) 4o. 6$39 <An Ac) Preven)in% an# Penalizin% Carna!!in%=, as amended. The overt act which is being punished under this law as carnapping is also the ta4ing of a motor vehicle under circumstances of theft or robbery. &f the motor vehicle was not ta4en by the offender but was delivered by the owner or the possessor to the offender, who thereafter misappropriated the same, the crime is either 9ualified theft under !rticle 6(; of the Revised Penal Code or estafa under !rticle 6($ #b% of the Revised Penal Code. Mualified 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. 5n +>ua))in%

Article 81!. S+i $li * :Esta(a> "lements in general 1. Accused de rauded anot#er 0y a0use o con idence or 0y means o deceit; and T#is co&ers t#e t#ree di erent $ays o committing esta a under Article 315; t#us1 esta a is committed / a. 0. c. Ait# un ait# ulness or a0use o con idence; 7y means o alse pretenses or raudulents acts; or T#roug# raudulent means.

According to t#e Ur9a De0elo"&e t a $ Ho.si * Act1 t#e ollo$ing are s3uatters? 1. T#ose $#o #a&e t#e capacity or means to pay rent or or legitimate #ousing 0ut are s3uatting any$ay; Also t#e persons $#o $ere a$arded lots 0ut sold or lease t#em out; 2.

(T#e irst orm under su0di&ision 1 is 6no$n as esta a $it# a0use o con idence; and t#e second and t#ird orms under su0di&isions 2 and 3 co&er co&er esta a 0y means o deceit.) 9amage or pre@udice capa0le o pecuniary estimation is caused to t#e o ended party or t#ird person.

2.

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2. "lements o esta a $it# un ait# ulness o a0use o con idence under Article 315 (1) 8nder paragrap# (a) 1. 2. 3. . ender #as an onerous o0ligation to deli&er somet#ing o &alue; 5e alters its su0stance1 3uantity1 or 3uality; 9amage or pre@udice is caused to anot#er. 4. 3.

. ended party deli&ered it to t#e o ender; A0o&e t#e signature o t#e o ended party1 a document is $ritten 0y t#e o ender $it#out aut#ority to do so; T#e document so $ritten creates a lia0ility o 1 or causes damage to1 t#e o ended party or any t#ird person.

"lements o esta a 0y means o alse pretenses or raudulent acts under Article 315 (2) Acts punis#ed under paragrap# (a) 1. 2. 8sing ictitious name; +alsely pretending to possess po$er1 in luence1 3uali ications1 property1 credit1 agency1 0usiness or imaginary transactions; or 7y means o ot#er similar deceits.

8nder paragrap# (0) 1. Money1 goods1 or ot#er personal property is recei&ed 0y t#e o ender is trust1 or on commission1 or or administration1 or under any ot#er o0ligation in&ol&ing t#e duty to ma6e deli&ery o 1 or to return1 t#e same; T#ere is con&ersion property 0y on #is part o misappropriation or o suc# money or t#e o ender1 or denial suc# receipt;

2.

3.

8nder paragrap# (0) Altering t#e 3uality1 ineness1 or $eig#t o anyt#ing pertaining to #is art or 0usiness. 8nder paragrap# (c) -retending to #a&e 0ri0ed any go&ernment employee1 $it#out pre@udice to t#e action or calumny $#ic# t#e o ended party may deem proper to 0ring against t#e o ender. 8nder paragrap# (d)

3.

<uc# misappropriation or con&ersion or denial is to t#e pre@udice o anot#er; and T#ere is a demand made 0y t#e o ended party to t#e o ender. (T#e ourt# element is not necessary $#en t#ere is e&idence o misappropriation o t#e goods 0y t#e de endant. JT.99 0. %eo"le@ et al.@ 141 %,il. 114K ).

4.

=nder Pre+i#en)ial /ecree 4o. 11$, 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. 8nder paragrap# (c) 1. T#e paper $it# t#e signature o t#e o ended party is in 0lan6;

1.

. ender postdated a c#ec61 or issued a c#ec6 in payment o an o0ligation; <uc# postdating or issuing a c#ec6 $as done $#en t#e o ender #ad no unds in t#e 0an61 or #is unds deposited t#erein $ere not su icient to co&er t#e amount o t#e c#ec6.

2.

,ote that this only applies if + #(% #"% The obligation is not pre existing< The chec4 is drawn to enter into an obligation<

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254

#Remember that it is the chec4 that is supposed to be the sole consideration for the other party to have entered into the obligation. 2or example, Rose wants to purchase a bracelet and draws a chec4 without insufficient funds. The jeweler sells her the bracelet solely because of the consideration in the chec4.% #6% &t does not cover chec4s where the purpose of drawing the chec4 is to guarantee a loan as this is not an obligation contemplated in this paragraph

3.

T#e person $#o ma6es or dra$s and issued t#e c#ec6 6no$s at t#e time o issue t#at #e does not #a&e su icient unds in or credit $it# t#e dra$ee 0an6 or t#e payment o suc# c#ec6 in ull upon its presentment;

The chec4 must be genuine. &f the chec4 is falsified and is cashed with the ban4 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 chec4 he issued and delivered. )xception' when the chec4 is issued not in payment of an obligation. &t must not be promissory notes, or guaranties. /ood faith is a defense. &f the chec4s 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 chec4, there is estafa. @eceit is presumed if the drawer fails to deposit the amount necessary to cover the chec4 within three days from receipt of notice of dishonor or insufficiency of funds in the ban4. Aatas %a&9a sa Al*. 33 5o$ &iolated A. 1. 2. A person ma6es or dra$s and issues any c#ec6; T#e c#ec6 is made or dra$n and issued to apply on account or or &alue; T#us1 it can apply to pre> e4isting o0ligations1 too.

3. T#e c#ec6 is su0se3uently dis#onored 0y t#e dra$ee 0an6 or insu iciency o unds or credit1 or $ould #a&e 0een dis#onored or t#e same reason #ad not t#e dra$er1 $it#out any &alid reason1 ordered t#e 0an6 to stop payment. 7. 1. A person #as su icient unds in or credit $it# t#e dra$ee 0an6 $#en #e ma6es or dra$s and issues a c#ec6; 5e ails to 6eep su icient unds or to maintain a credit to co&er t#e ull amount o t#e c#ec6 i presented $it#in )* days rom t#e date appearing; T#e c#ec6 is dis#onored 0y t#e dra$ee 0an6.

2.

3.

@istinction between estafa under !rticle 6($ #"% #d% of the Revised Penal Code and violation of :atas Pambansa :lg. ""' #(% =nder both !rticle 6($ #"% #d% and :atas Pambansa :lg. "", there is criminal liability if the chec4 is drawn for non pre existing obligation. &f the chec4 is drawn for a pre existing obligation, there is criminal liability only under :atas Pambansa :lg. "". #"% )stafa under !rticle 6($ #"% #d% is a crime against property while :atas Pambansa :lg. "" 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 chec4. Hence, there is no double jeopardy. &n the estafa under !rticle 6($ #"% #d%, deceit and damage are material,

#6%

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255

while in :atas Pambansa :lg. "", they are immaterial. #*% &n estafa under !rticle 6($ #"% #d%, 4nowledge by the drawer of insufficient funds is not re9uired, while in :atas Pambansa :lg. "", 4nowledge by the drawer of insufficient funds is re9ired. 2. A#en is t#ere prima acie e&idence o 6no$ledge o insu icient unds= T#ere is a prima acie e&idence o 6no$ledge o insu icient unds $#en t#e c#ec6 $as presented $it#in )* days rom t#e date appearing on t#e c#ec6 and $as dis#onored. "4ceptions 1. 2. A#en t#e c#ec6 $as presented a ter )* days rom date; A#en t#e ma6er or dra$er >> a. -ays t#e #older o t#e c#ec6 t#e amount due $it#in i&e 0an6ing days a ter recei&ing notice t#at suc# c#ec6 #as not 0een paid 0y t#e dra$ee; Ma6es arrangements or payment in ull 0y t#e dra$ee o suc# c#ec6 $it#in i&e 0an6ing days a ter notice o non>payment c. 3. 0. c. a. 0. a.

inn1 restaurant1 0oarding #ouse1 lodging #ouse1 or apartment #ouse; Ait#out paying t#ere or; Ait# intent to de raud t#e proprietor or manager. .0taining credit at any o t#e esta0lis#ments; 8sing alse pretense; A0andoning or surreptitiously remo&ing any part o #is 0aggage in t#e esta0lis#ment; A ter o0taining credit1 ood1 re res#ment1 accommodation; Ait#out paying.

0.

"sta a t#roug# any o t#e ollo$ing raudulent means under Article 315 (3) 8nder paragrap# (a) 1. 2. 3. 4. . ender induced t#e o ended party to sign a document; 9eceit $as employed to ma6e #im sign t#e document; . ended party personally signed t#e document; -re@udice $as caused.

0.

T#e dra$ee must cause to 0e $ritten or stamped in plain language t#e reason or t#e dis#onor. % t#e dra$ee 0an6 recei&ed an order o stop>payment rom t#e dra$er $it# no reason1 it must 0e stated t#at t#e unds are insu icient to 0e prosecuted #ere. T#e unpaid or dis#onored c#ec6 $it# t#e stamped in ormation re? re usal to pay is prima acie e&idence o (1) t#e ma6ing or issuance o t#e c#ec6; (2) t#e due presentment to t#e dra$ee or payment R t#e dis#onor t#ereo ; and (3) t#e act t#at t#e c#ec6 $as properly dis#onored or t#e reason stamped on t#e c#ec6. Acts punis#ed under paragrap# (e) 1. a. .0taining ood1 re res#ment1 or accommodation at a #otel1

8nder paragrap# (0) 2esorting to some raudulent practice to insure success in a gam0ling game; 8nder paragrap# (c) 1. 2. 3. . ender remo&ed1 concealed or destroyed; Any court record1 o ice iles1 documents or any ot#er papers; Ait# intent to de raud anot#er.

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25!

&n ?i0 v. Peo!le, 193 SCRA 311, 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. &n Sa##ul ,r. v. CA, 19 SCRA 77, it was held that the act of using or disposing of anotherDs property as if it were oneDs 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 unauthori3ed 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 ownerDs rights. &n Allie# -ank Cor!ora)ion v. Secre)ar. 5r#onez, 19 SCRA 16, i) 7a+ hel# )ha) under 5ection (6 of Presidential @ecree ,o. (($, the failure of an entrustee to turn over the proceeds of sale of the goods covered by the Trust Receipt, or to return said goods if they are not sold, is punishable as estafa !rticle 6($ #(% #b%. 5n i++uance o* a bouncin% check The issuance of chec4 with insufficient funds may be held liable for estafa and :atas Pambansa :lg. "". :atas Pambansa :lg. "" expressly provides that prosecution under said law is without prejudice to any liability for violation of any provision in the Revised Penal Code. @ouble Neopardy may not be invo4ed because a violation of :atas Pambansa :lg. "" is a malum prohibitum and is being punished as a crime against the public interest for undermining the ban4ing system of the country, while under the RevisedPenal Code, the crime is malum in se which re9uires criminal intent and damage to the payee and is a crime against property. &n estafa, the chec4 must have been issued as a reciprocal consideration for parting of goods #4aliwaan%. There must be

concomitance. The deceit must be prior to or simultaneous with damage done, that is, seller relied on chec4 to part with goods. &f it is issued after parting with goods as in credit accommodation only, there is no estafa. &f the chec4 is issued for a pre existing obligation, there is no estafa as damage had already been done. The drawer is liable under :atas Pambansa :lg. "". 2or criminal liability to attach under :atas Pambansa :lg. "", it is enough that the chec4 was issued to Kapply on account or for valueK and upon its presentment it was dishonored by the drawee ban4 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 chec4 the full amount due thereon within five days from notice. =nder :atas Pambansa :lg. "", a drawer must be given notice of dishonor and given five ban4ing days from notice within which to deposit or pay the amount stated in the chec4 to negate the presumtion that drawer 4new of the insufficiency. !fter this period, it is conclusive that drawer 4new of the insufficiency, thus there is no more defense to the prosecution under :atas Pambansa :lg. "". The mere issuance of any 4ind of chec4 regardless of the intent of the parties, whether the chec4 is intended to serve merely as a guarantee or as a deposit, ma4es the drawer liable under :atas Pambansa :lg. "" if the chec4 bounces. !s a matter of public policy, the issuance of a worthless chec4 is a public nuisance and must be abated. &n /e Villa v. CA, #eci#e# A!ril 18, 1991, it was held that under :atas Pambansa :lg. "", there is no distinction as to the 4ind of chec4 issued. !s long as it is delivered within Philippine territory, the Philippine courts have jurisdiction. )ven if the chec4 is only presented to and dishonored in a Philippine ban4, :atas Pambansa :lg. "" applies. This is true in the case of dollar or foreign currency chec4s. .here the law ma4es no distinction, none should be made. &n Peo!le v. 4i)a*an, it was held that as long as instrument is a chec4 under the negotiable instrument law, it is covered by :atas Pambansa :lg. "". ! memorandum chec4 is not a promissory note, it is a chec4 which have the word Ememo,F EmemF, EmemorandumF written across the face of

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257

the chec4 which signifies that if the holder upon maturity of the chec4 presents the same to the drawer, it will be paid absolutely. :ut there is no prohibition against drawer from depositing memorandum chec4 in a ban4. .hatever be the agreement of the parties in respect of the issuance of a chec4 is inconse9uential to a violation to :atas Pambansa :lg. "" where the chec4 bounces. :ut overdraft or credit arrangement may be allowed by ban4s as to their preferred clients and :atas Pambansa :lg. "" does not apply. &f chec4 bounces, it is because ban4 has been remiss in honoring agreement. The chec4 must be presented for payment within a 8; day period. &f presented for payment beyond the 8; day period and the drawerDs funds are insufficient to cover it, there is no :atas Pambansa :lg. "" violation. .here chec4 was issued prior to !ugust 1, (81*, when Circular ,o. (" of the @epartment of the Nustice too4 effect, and the drawer relied on the then prevailing Circular ,o. * of the 0inistry of Nustice to the effect that chec4s issued as part of an arrangementJagreement of the parties to guarantee or secure fulfillment of an obligation are not covered by :atas Pambansa :lg. "", no criminal liability should be incurred by the drawer. Circular should not be given retroactive effect. #Lazaro v. CA, 4ove0ber 11, 1993, ci)in% Peo!le v. Alber)o, 5c)ober 8, 1993% Article 81'. Ot,er For&s o( S+i $li * 8nder paragrap# 1 / 7y con&eying1 selling1 encum0ering1 or mortgaging any real property1 pretending to 0e t#e o$ner o t#e same "lements 1. 2. T#ere is an immo&a0le1 suc# as a parcel o land or a 0uilding; . ender $#o is not t#e o$ner represents #imsel as t#e o$ner t#ereo ;

3.

. ender e4ecutes an act o o$ners#ip suc# as selling1 leasing1 encum0ering or mortgaging t#e real property; T#e act is made to t#e pre@udice to t#e o$ner or a t#ird person.

4.

8nder paragrap# 2 / 0y disposing o real property as ree rom encum0rance1 alt#oug# suc# encum0rance 0e not recorded "lements 1. 2. T#e t#ing property? disposed is a real

. ender 6ne$ t#at t#e real property $as encum0ered1 $#et#er t#e encum0rance is recorded or not; T#ere must 0e e4press representation 0y o ender t#at t#e real property is ree rom encum0rance; T#e act o disposing o t#e real property is made to t#e damage o anot#er.

3.

4.

8nder paragrap# 3 / 0y $rong ully ta6ing 0y t#e o$ner o #is personal property rom its la$ ul possessor "lements 1. 2. 3. 4. . ender is t#e o$ner o personal property; <aid personal property is in t#e la$ ul possession o anot#er; . ender $rong ully ta6es it rom its la$ ul possessor; -re@udice is t#ere0y caused to t#e possessor or t#ird person.

8nder paragrap# 4 / 0y e4ecuting any ictitious contract to t#e pre@udice o anot#er 8nder paragrap# 5 / 0y accepting any compensation or ser&ices not rendered or or la0or not per ormed

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25'

8nder paragrap# ! / 0y selling1 mortgaging or encum0ering real property or properties $it# $#ic# t#e o ender guaranteed t#e ul illment o #is o0ligation as surety "lements 1. 2. . ender is a surety in a 0ond gi&en in a criminal or ci&il action; 5e guaranteed t#e ul illment o suc# o0ligation $it# #is real property or properties; 5e sells1 mortgages1 or in any manner encum0ers said real property; <uc# sale1 mortgage or encum0rance is $it#out e4press aut#ority rom t#e court1 or made 0e ore t#e cancellation o #is 0ond1 or 0e ore 0eing relie&ed rom t#e o0ligation contracted 0y #im.

Article 811. Re&o0al@ Sale or %le$*e o( Mort*a*e$ %ro"ert# Acts punis#ed 1. Jno$ingly remo&ing any personal property mortgaged under t#e C#attel Mortgage la$ to any pro&ince or city ot#er t#an t#e one in $#ic# it $as located at t#e time o e4ecution o t#e mortgage1 $it#out t#e $ritten consent o t#e mortgagee or #is e4ecutors1 administrators or assigns; "lements?

3.

4.

1.

-ersonal property is mortgaged under t#e C#attel Mortgage Ba$; . ender 6no$s t#at suc# property is so mortgaged; . ender remo&es suc# mortgaged personal property to any pro&ince or city ot#er t#an t#e one in $#ic# it $as located at t#e time o t#e e4ecution o t#e mortgage; T#e remo&al is permanent; T#ere is no $ritten consent o t#e mortgagee or #is e4ecutors1 administrators or assigns to suc# remo&al.

2. 3.

Article 81). S+i $li * A Mi or "lements 1. . ender ta6es ad&antage o t#e ine4perience or emotions or eelings o a minor;

4. 2. 5e induces suc# minor to assume an o0ligation or to gi&e release or to e4ecute a trans er o any property rig#t; T#e consideration is some loan o money1 credit or ot#er personal property; T#e transaction is to t#e detriment o suc# minor. 2. 5.

3.

4.

Article 81/. Ot,er $eceits Acts punis#ed

<elling or pledging personal property already pledged1 or any part t#ereo 1 under t#e terms o t#e C#attel Mortgage Ba$1 $it#out t#e consent o t#e mortgagee $ritten on t#e 0ac6 o t#e mortgage and noted on t#e record t#ereo in t#e o ice o t#e register o deeds o t#e pro&ince $#ere suc# property is located. "lements?

1.

9e rauding or damaging anot#er 0y any ot#er deceit not mentioned in t#e preceding articles; %nterpreting dreams1 0y ma6ing orecasts1 0y telling ortunes1 or 0y ta6ing ad&antage or t#e credulity o t#e pu0lic in any ot#er similar manner1 or pro it or gain.

1.

-ersonal property is already pledged under t#e terms o t#e C#attel Mortgage Ba$; . ender1 $#o is t#e mortgagor o suc# property1 sells or pledges t#e same or any part t#ereo ;

2.

2.

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3.

T#ere is no consent o t#e mortgagee $ritten on t#e 0ac6 o t#e mortgage and noted on t#e record t#ereo in t#e o ice o t#e register o deeds.

Article 83/. Misc,ie( Acts punis#ed 1.

S"ecial Case o( Malicio.s

Causing damage to o0struct t#e per ormance o pu0lic unctions; 8sing any poisonous or corrosi&e su0stance; <preading any in ection or contagion among cattle; Causing damage to t#e property o t#e Cational Museum or Cational Bi0rary1 or to any arc#i&e or registry1 $ater$or6s1 road1 promenade1 or any ot#er t#ing used is common 0y t#e pu0ic.

Arso 2. Jinds o arson 1. 2. Arson1 under <ection 1 %resi$e tial Decree No. 1'18; o 3. 4.

9estructi&e arson1 under Article 834 o t#e 2e&ised -enal Code1 as amended 0y 2epu0lic Act Co. 7!5); .t#er cases o arson1 under Sectio 8 o( %resi$e tial Decree No. 1'18.

3.

Article 83). W,o Are Lia9le (or Malicio.s Misc,ie( "lements 1. 2. 3. . ender deli0erately caused damage to t#e property o anot#er; <uc# act does not constitute arson or ot#er crimes in&ol&ing destruction; T#e act o damaging anot#erEs property $as committed merely or t#e sa6e o damaging it;

Article 831. Ot,er Misc,ie(s All ot#er misc#ie s not included in t#e ne4t preceding article Article 884. Da&a*e a $ O9str.ctio to Mea s o( Co&&. icatio T#is is committed 0y damaging any rail$ay1 telegrap# or telep#one lines. Article 881. Destro#i * or Da&a*i * Stat.es@ %.9lic Mo .&e ts@ or %ai ti *s Article 883. %erso s E?e&"t (ro& Cri&i al Lia9ilit# Crimes in&ol&ed in t#e e4emption 1. 2. 3. T#e t; "sta a; and Malicious misc#ie .

There is destruction of the property of another but there is no misappropriation. >therwise, it would be theft if he gathers the effects of destruction.

-ersons e4empted rom criminal lia0ility 1. <pouse1 ascendants and descendants1 or relati&es 0y a inity in t#e same line;

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2!*

2.

Aido$ed spouse $it# respect to t#e property $#ic# 0elonged to t#e deceased spouse 0e ore t#e same passed into t#e possession o anot#er 7rot#ers and sisters and 0rot#ers>in> la$ and sisters>in>la$1 i li&ing toget#er.

3.

:ut the moment the offended party has initiated the criminal complaint, the public prosecutor will ta4e over and continue with prosecution of the offender. That is why under !rticle 6**, 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. Article 888. W,o Are G.ilt# o( A$.lter# "lements 1. 2. 3. T#e $oman is married; <#e #as se4ual intercourse $it# a man not #er #us0and; As regards t#e man $it# $#om s#e #as se4ual intercourse1 #e must 6no$ #er to 0e married.

>nly 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. )stafa should not be complexed with any other crime in order for exemption to operate. TITLE GI. CRIMES AGAINST CHASTITY Crimes against c#astity 1. 2. 3. 4. 5. !. Adultery (Art. 333); Concu0inage (Art. 334); Acts o lasci&iousness (Art. 33!); Duali ied seduction (Art. 337); <imple seduction (Art. 33'); Acts o lasci&iousness $it# t#e consent o t#e o ended party (Art. 33)); Corruption o minors (Art. 34*); A#ite sla&e trade (Art. 34); +orci0le a0duction (Art. 342); Consented a0duction (Art. 343).

!dultery is a crime not only of the married woman but also of the man who had intercourse with a married woman 4nowing her to be married. )ven if the man proves later on that he does not 4now the woman to be married, at the beginning, he must still be included in the complaint or information. This is so because whether he 4nows 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. &f after preliminary investigation, the public prosecutor is convinced that the man did not 4now that the woman is married, then he could simply file the case against the woman. The ac9uittal of the woman does not necessarily result in the ac9uittal of her co accused. &n order to constitute adultery, there must be a joint physical act. Noint criminal intent is not necessary. !lthough 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. >ne may be guilty of the criminal intent, the other innocent, and yet the joint physical act necessary to constitute the adultery may be complete. 5o, if the man had no 4nowledge 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

7. '. ). 1*.

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. 2or the law gives the offended party the preference whether to sue or not to sue.

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ac9uitted and the latter found although they were tried together.

guilty,

a. 0.

Jeeping a mistress in t#e con@ugal d$elling; 5a&ing se4ual intercourse under scandalous circumstances $it# a $oman $#o is not #is $i e; or Co#a0iting $it# a $oman $#o is not #is $i e in any ot#er place;

! husband committing concubinage may be re9uired to support his wife committing adultery under the rule in pari delicto. There is no frustrated adultery because of the nature of the offense. 2or adultery to exist, there must be a marriage although it be subse9uently annulled. There is no adultery, if the marriage is void from the beginning. !dultery is an instantaneous crime which is consummated and completed at the moment of the carnal union. )ach sexual intercourse constitutes a crime of adultery. !dultery is not a continuing crime unli4e concubinage. &llustration' 0adamme C is a married woman residing in Pasay City. He met a man, B, at Roxas :oulevard. 5he agreed to go with to :aguio City, supposedly to come bac4 the next day. .hen they were in :ulacan, they stayed in a motel, having sexual intercourse there. !fter that, they proceeded again and stopped at @agupan City, where they went to a motel and had sexual intercourse. There are two counts of adultery committed in this instance' one adultery in :ulacan, and another adultery in @agupan City. )ven if it involves the same man, each intercourse is a separate crime of adultery. Article 884. Co c.9i a*e Acts punis#ed 1. 2. 3. Jeeping a mistress in t#e con@ugal d$elling; 5a&ing se4ual intercourse1 under scandalous circumstances; Co#a0iting $it# #er in any ot#er place.

c.

3.

As regards t#e $oman1 s#e 6no$s t#at t#e man is married.

.ith 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. 5imilarly, it includes the woman who had a relationship with the married man. &t has been as4ed 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. &f the husband commits concubinage, this probability does not arise because the mother of the child will always carry the child with her. 5o even if the husband brings with him the child, it is clearly 4nown that the child is a stranger. ,ot 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. =nli4e adultery, concubinage is a continuing crime. Article 88!. Ra"e T#is #as 0een repealed 0y 2epu0lic Act Co. '353 or t#e A ti;Ra"e La+ o( 111). <ee Article 3'';A. Article 88'. Acts o( Lasci0io.s ess

"lements 1. 2. T#e man is married; 5e is eit#er /

"lements 1. 2. . ender commits any act lasci&iousness or le$dness; o

%t is done under any o t#e ollo$ing circumstances?

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2!2

a. 0.

7y using intimidation;

orce

or

A#en t#e o ended party is depri&ed or reason o ot#er$ise unconscious; or A#en t#e o ended party is anot#er person o eit#er se4.

c.

!lways 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 reali3ation of his purpose, if his participation amounts to performing all the acts of execution, the felony is necessarily produced as a conse9uence thereof. &ntent to rape is not a necessary element of the crime of acts of lasciviousness. >therwise, there would be no crime of attempted rape. Article 88). 6.ali(ie$ Se$.ctio

,ote that there are two 4inds of acts of lasciviousness under the Revised Penal Code' #(% under !rticle 66-, and #"% under !rticle 668. (. !rticle 66-. !cts of Aasciviousness

Acts punis#ed =nder 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 + #(% #"% under (" years of age< or 2. being over (" 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. 3. 4. <#e is o&er 12 and under 1' years o age; . ender #as intercourse $it# #er; se4ual 1. <eduction o a &irgin o&er 12 years and under 1' years o age 0y certain persons1 suc# as a person in aut#ority1 priest1 teac#er; and "lements 1. . ended party is a &irgin1 $#ic# is presumed i s#e is unmarried and o good reputation;

T#ere is a0use o aut#ority1 con idence or relations#ip on t#e part o t#e o ender.

".

!rticle 668. !cts of Aasciviousness with the Consent of the >ffended Party' =nder this article, the victim is limited only to a woman. The circumstances under which the lascivious acts were committed must be that of 9ualified seduction or simple seduction, that is, the offender too4 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. 5ee !rticle 668.

<eduction o a sister 0y #er 0rot#er1 or descendant 0y #er ascendant1 regardless o #er age or reputation.

-erson lia0le 1. T#ose $#o a0used t#eir aut#ority / a. 0. c. d. -erson in pu0lic aut#ority; ;uardian; Teac#er; -erson $#o1 in any capacity1 is entrusted $it# t#e education or custody o t#e $oman seduced;

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2!3

2.

T#ose $#o a0used reposed in t#em / a. 0. c. -riest; 5ouse ser&ant; 9omestic;

con idence

existence of the deceit as an integral element of the crime and punishes it with greater severity than it does the simple seduction, ta4ing into account the abuse of confidence on the part of the agent. !buse of confidence here implies fraud. Article 88/. Si&"le Se$.ctio

3.

T#ose $#o a0used t#eir relations#ip / a. 0. 7rot#er $#o seduced #is sister; Ascendant $#o seduced #is descendant.

"lements 1. 2. 3. . ender party is o&er 12 and under 1' years o age; <#e is o good reputation1 single or $ido$; . ender #as se4ual intercourse $it# #er; %t is committed 0y means o deceit.

This crime also involves sexual intercourse. The offended woman must be over (" but below (1 years. The distinction between 9ualified seduction and simple seduction lies in the fact, among others, that the woman is a virgin in 9ualified seduction, while in simple seduction, it is not necessary that the woman be a virgin. &t is enough that she is of good repute. 2or purposes of 9ualified seduction, virginity does not mean physical virginity. &t means that the offended party has not had any experience before. !lthough in 9ualified 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 9ualified seduction is committed. &llustration' &f 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 9ualified seduction is committed. &n the case of a teacher, it is not necessary that the offended woman be his student. &t is enough that she is enrolled in the same school. @eceit is not necessary in 9ualified seduction. Mualified seduction is committed even though no deceit intervened or even when such carnal 4nowledge was voluntary on the part of the virgin. This is because in such a case, the law ta4es for granted the

4.

This crime is committed if the offended woman is single or a widow of good reputation, over (" and under (1 years of age, the offender has carnal 4nowledge of her, and the offender resorted to deceit to be able to consummate the sexual intercourse with her. The offended woman must be under (1 but not less than (" years old< otherwise, the crime is statutory rape. =nli4e in 9ualified seduction, virginity is not essential in this crime. .hat is re9uired is that the woman be unmarried and of good reputation. 5imple seduction is not synonymous with loss of virginity. &f the woman is married, the crime will be adultery. The failure to comply with the promise of marriage constitutes the deceit mentioned in the law. Article 881. Acts o( Lasci0io.s ess +it, t,e Co se t o( t,e O((e $er %art# "lements 1. 2. . ender commits acts lasci&iousness or le$dness; o

T#e acts are committed upon a $oman $#o is a &irgin or single or $ido$ o good reputation1 under 1' years o age 0ut o&er 12 years1 or a

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2!4

sister or descendant1 regardless o #er reputation or age; 3. . ender accomplis#es t#e acts 0y a0use o aut#ority1 con idence1 relations#ip1 or deceit.

the criminal intent of the offender is to force his will upon the woman and not really to restrain the woman of her liberty. &f the offended woman is under (" years old, even if she consented to the abduction, the crime is forcible abduction and not consented abduction. .here 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 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. &n 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 characteri3ed with lewd design and would bring about the crime of abduction and not 4idnapping. This is also true if the woman is deprived of reason and if the woman is mentally retardate. 2orcible abduction is committed and not consented abduction. Aewd designs may be demonstrated by the lascivious acts performed by the offender on her. 5ince 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 ta4ing 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. &n 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. &f there is a separation in fact, the ta4ing by the husband of his wife against her will constitutes grave coercion. @istinction between forcible abduction and illegal detention' .hen a woman is 4idnapped with lewd or unchaste designs, the crime committed is forcible abduction.

Article 844. Corr."tio o( Mi ors T#is punis#es any person $#o s#all promote or acilitate t#e prostitution or corruption o persons under age to satis y t#e lust o anot#er. %t is not re3uired t#at t#e o ender 0e t#e guardian or custodian o t#e minor. %t is not necessary t#at t#e minor 0e prostituted or corrupted as t#e la$ merely punis#es t#e act o promoting or acilitating t#e prostitution or corruption o said minor and t#at #e acted in order to satis y t#e lust o anot#er. Article 841. W,ite Sla0e Tra$e Acts punis#ed 1. 2. 3. "ngaging in prostitution; t#e 0usiness o

-ro iting 0y prostitution; "nlisting t#e ser&ices o $omen or t#e purpose o prostitution.

Article 843. Forci9le A9$.ctio "lements 1. T#e person a0ducted is any $oman1 regardless or #er age1 ci&il status1 or reputation; T#e a0duction is against #er $ill; T#e a0duction is $it# le$d designs.

2. 3.

! woman is carried against her will or brought from one place to another against her will with lewd design. &f the element of lewd design is present, the carrying of the woman would 9ualify as abduction< otherwise, it would amount to 4idnapping. &f the woman was only brought to a certain place in order to brea4 her will and ma4e her agree to marry the offender, the crime is only grave coercion because

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2!5

.hen the 4idnapping is without lewd designs, the crime committed is illegal detention. :ut where the offended party was forcibly ta4en 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. Article 848. Co se te$ A9$.ctio "lements 1. 2. 3. 4. . ended party is a &irgin; <#e is o&er 12 and under 1' years o age; . ender ta6es #er a$ay $it# #er consent1 a ter solicitation or ca@olery; T#e ta6ing designs. a$ay is $it# le$d

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. .hile 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. !ll these private crimes + except rape + cannot be prosecuted de officio. &f 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. &t will not prosper because the court cannot ac9uire 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. &n 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. !s to whether all of them will ac4nowledge the child, that is a different 9uestion 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. &t 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. TITLE GII. CRIMES AGAINST THE CI2IL STATUS OF %ERSONS Crimes against t#e ci&il status o persons

.here several persons participated in the forcible abduction and these persons also raped the offended woman, the original ruling in the case of Peo!le v. ,o+e 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 characteri3es the forcible abduction and, therefore, there should only be one forcible abduction with rape. &n 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. )ven with that marriage, the offended

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2!!

1.

<imulation o 0irt#s1 su0stitution o one c#ild or anot#er and concealment or a0andonment o a legitimate c#ild (art. 347); 8surpation o ci&il status (Art. 34'); 7igamy (Art. 34)); Marriage contracted pro&isions o la$ (Art. 35*); against

2. 3. 4. 5. !.

2. <uppose t#at t#e purpose o t#e $oman is a0andoning t#e c#ild is to preser&e t#e in#eritance o #er c#ild 0y a ormer marriage1 $#at t#en is t#e crime committed= The crime would fall under the second paragraph of !rticle 6*?. 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. 3. <uppose a c#ild1 one day a ter #is 0irt#1 $as ta6en to and le t in t#e midst o a lonely orest1 and #e $as ound 0y a #unter $#o too6 #im #ome. A#at crime $as committed 0y t#e person $#o le t it in t#e orest= &t is attempted infanticide, as the act of the offender is an attempt against the life of the child. 5ee 3S v. Ca!illo, e) al., 3& Phil. 319. Article 841. Us.r"atio o( Ci0il Stat.s

-remature marriages (Art. 351); -er ormance o illegal ceremony (Art. 352). marriage

Article 84). Si&.latio o( Airt,s@ S.9stit.tio o( O e C,il$ (or A ot,er@ a $ Co ceal&e t o( A9a $o &e t o( A Le*iti&ate C,il$ Acts punis#ed 1. 2. 3. <imulation o 0irt#s; <u0stitution o one c#ild or anot#er; Concealing or a0andoning any legitimate c#ild $it# intent to cause suc# c#ild to lose its ci&il status.

T#is crime is committed $#en a person represents #imsel to 0e anot#er and assumes t#e iliation or t#e parental or con@ugal rig#ts o suc# anot#er person. Thus, where a person impersonates another and assumes the latterPs right as the son of wealthy parents, the former commits a violation of this article. The term Kcivil statusK includes onePs public station, or the rights, duties, capacities and incapacities which determine a person to a given class. &t seems that the term Kcivil statusK includes onePs profession. Article 841. Ai*a&# "lements 1. . ender #as 0een legally married; T#e marriage #as not 0een legally dissol&ed or1 in case #is or #er spouse is a0sent1 t#e a0sent spouse could not yet 0e presumed dead according to t#e Ci&il Code; 5e contracts a second su0se3uent marriage; or

&llustration' People who have no child and who buy and adopt the child without going through legal adoption. &f the child is being 4idnapped and they 4new that the 4idnappers are not the real parents of their child, then simulation of birth is committed. &f the parents are parties to the simulation by ma4ing 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.

6.estio s 7 A s+ers 1. A $oman $#o #as gi&en 0irt# to a c#ild a0andons t#e c#ild in a certain place to ree #ersel o t#e o0ligation and duty o rearing and caring or t#e c#ild. A#at crime is committed 0y t#e $oman= The crime committed is abandoning a minor under !rticle "?-.

2.

3.

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2!7

4.

T#e second or su0se3uent marriage #as all t#e essential re3uisites or &alidity.

2or bigamy to be committed, the second marriage must have all the attributes of a valid marriage. Article 8!4. Ille*al Marria*e "lements 1. 2. . ender contracted marriage; 5e 6ne$ at t#e time t#at / a. T#e re3uirements o t#e la$ $ere not complied $it#; or T#e marriage disregard o impediment. $as in a legal

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. /ood faith is a defense in bigamy. 2ailure to exercise due diligence to ascertain the whereabouts of the first wife is bigamy through rec4less imprudence. The second marriage must have all the essential re9uisites for validity were it not for the existence of the first marriage. ! judicial declaration of the nullity of a marriage, that is, that the marriage was void ab initio, is now re9uired. >ne 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. >ne who, although not yet married before, 4nowingly consents to be married to one who is already married is guilty of bigamy 4nowing that the latterDs marriage is still valid and subsisting. @istinction between bigamy and illegal marriage' :igamy is a form of illegal marriage. The offender must have a valid and subsisting marriage. @espite the fact that the marriage is still subsisting, he contracts a subse9uent marriage. &llegal marriage includes also such other marriages which are performed without complying with the re9uirements of law, or such premature marriages, or such marriage which was solemni3ed by one who is not authori3ed to solemni3e the same.

0.

Marriages contracted against t#e pro&isions o la$s 1. T#e marriage 0igamy. does not constitute

2. T#e marriage is contracted 6no$ing t#at t#e re3uirements o t#e la$ #a&e not 0een complied $it# or in disregard o legal impediments. 3. .ne $#ere t#e consent o t#e ot#er $as o0tained 0y means o &iolence1 intimidation or raud. 4. % t#e second marriage is &oid 0ecause t#e accused 6no$ingly contracted it $it#out complying $it# legal re3uirements as t#e marriage license1 alt#oug# #e $as pre&iously married. 5. Marriage solemni:ed 0y a minister or priest $#o does not #a&e t#e re3uired aut#ority to solemni:e marriages. Article 8!1. %re&at.re Marria*e -ersons lia0le 1. A $ido$ $#o is married $it#in 3*1 days rom t#e date o t#e deat# o #er #us0and1 or 0e ore #a&ing deli&ered i s#e is pregnant at t#e time o #is deat#; A $oman $#o1 #er marriage #a&ing 0een annulled or dissol&ed1 married 0e ore #er deli&ery or 0e ore t#e

2.

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2!'

e4piration o t#e period o 3*1 days a ter t#e date o t#e legal separation. The 5upreme Court has already ta4en into account the reason why such marriage within 6;( 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. &f 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 6;( days may be ta4en as evidence of good faith and that would negate criminal intent. TITLE GIII. CRIMES AGAINST HONOR Crimes against #onor 1. 2. Bi0el 0y means o $ritings or similar means (Art. 355); T#reatening to pu0lis# and o er to pre&ent suc# pu0lication or a compensation (Art. 35!); -ro#i0ited pu0lication o acts re erred to in t#e course o o icial proceedings (Art. 357); <lander (Art. 35'); <lander 0y deed (Art. 35)); %ncriminating innocent person (Art. 3!3); %ntriguing against #onor (Art. 3!4).

2. 3. 4.

T#e imputation pu0licly;

must

0e

made

%t must 0e malicious; T#e imputation must 0e directed at a natural or @uridical person1 or one $#o is dead; T#e imputation must tend to cause t#e dis#onor1 discredit or contempt o t#e person de amed.

5.

@istinction between malice in fact and malice in law 0alice in fact is the malice which the law presumes from every statement whose tenor is defamatory. &t does not need proof. The mere fact that the utterance or statement is defamatory negates a legal presumption of malice. &n the crime of libel, which includes oral defamation, there is no need for the prosecution to present evidence of malice. &t is enough that the alleged defamatory or libelous statement be presented to the court verbatim. &t is the court which will prove whether it is defamatory or not. &f the tenor of the utterance or statement is defamatory, the legal presumption of malice arises even without proof. 0alice in fact becomes necessary only if the malice in law has been rebutted. >therwise, there is no need to adduce evidence of malice in fact. 5o, while malice in law does not re9uire evidence, malice in fact re9uires evidence. 0alice 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. &n law, however, the privileged character of a defamatory statement may be absolute or 9ualified. .hen 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. &llustration' !s regards the statements made by Congressmen while they are deliberating or

3.

4. 5. !. 7.

Article 8!8. De(i itio o( Li9el A li0el is a pu0lic and malicious imputation o a crime1 or o a &ice or de ect1 real or imaginary1 or any act1 omission1 condition1 status1 or circumstances tending to cause t#e dis#onor1 discredit1 or contempt o a natural or @uridical person1 or to 0lac6en t#e memory o one $#o is dead. "lements? 1. T#ere must 0e an imputation o a crime1 or o a &ice or de ect1 real or imaginary1 or any act1 omission1 condition1 status1 or circumstance;

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discussing in Congress, when the privileged character is 9ualified, proof of malice in fact will be admitted to ta4e the place of malice in law. .hen the defamatory statement or utterance is 9ualifiedly 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 ma4ing the statement. .hen 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. &f 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. &llustration' &f a person uttered that E!ll the 0arcoses are thieves,K there will only be one libel because these particular 0arcoses regarded as thieves are not specifically identified. &f the offender said, E!ll the 0arcoses + the father, mother and daughter are thieves.F There will be three counts of libel because each person libeled is distinctly dishonored. &f you do not 4now the particular persons libeled, you cannot consider one libel as giving rise to several counts of libel. &n order that one defamatory utterance or imputation may be considered as having dishonored more than one person, those persons dishonored must be identified. >therwise, there will only be one count of libel. ,ote that in libel, the person defamed need not be expressly identified. &t is enough that he could possibly be identified because Einnuendos may also be a basis for prosecution for libel. !s 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. )ven 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. >ther than these, the imputation is not admissible. A#en proo o trut# is admissi0le 1. A#en t#e act or omission imputed constitutes a crime regardless o $#et#er t#e o ended party is a pri&ate indi&idual or a pu0lic o icer; A#en t#e o ended party is a go&ernment employee1 e&en i t#e act or omission imputed does not constitute a crime1 pro&ided i its related to t#e disc#arged o #is o icial duties.

2.

2e3uisites o de ense in de amation 1. 2. 3. % it appears t#at t#e matter c#arged as li0elous is true; %t $as pu0lis#ed $it# good moti&es; %t $as or @usti ia0le ends.

&f a crime is a private crime, it cannot be prosecuted de officio. ! complaint from the offended party is necessary. Article 8!!. Li9el 9# Mea s o( Writi *s or Si&ilar Mea s A li0el may 0e committed 0y means o / 1. 2. 3. 4. 5. !. Ariting; -rinting; Bit#ograp#y; "ngra&ing; 2adio; -#otograp#;

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7. '. ). 1*.

-ainting; T#eatrical e4#i0ition; Cinematograp#ic e4#i0ition; or Any similar means.

5lander is oral defamation. There are tow 4inds of oral defamation' #(% #"% 5imple slander< and /rave slander, when it is of a serious and insulting nature.

Article 8!1. Sla $er 9# Dee$ Article 8!'. T,reate i * to %.9lis, a $ O((er to %re0e t S.c, %.9licatio (or A Co&"e satio Acts punis#ed 1. T#reatening anot#er to pu0lis# a li0el concerning #im1 or #is parents1 spouse1 c#ild1 or ot#er mem0ers o #is amily; . ering to pre&ent t#e pu0lication o suc# li0el or compensation or money consideration. 2. "lements 1. . ender per orms any act not included in any ot#er crime against #onor; <uc# act is presence o persons; per ormed in t#e ot#er person or

2.

3.

<uc# act casts dis#onor1 discredit or contempt upon t#e o ended party.

:lac4mail + &n its metaphorical sense, blac4mail may be defined as any unlawful extortion of money by threats of accusation or exposure. Two words are expressive of the crime + hush money. #3S v. E%uia, e) al., 38 Phil. 8$7% :lac4mail is possible in #(% light threats under !rticle "16< and #"% threatening to publish, or offering to prevent the publication of, a libel for compensation, under !rticle 6$-. Article 8!). %ro,i9ite$ %.9licatio o( Acts Re(erre$ to i t,e Co.rse o( O((icial %rocee$i *s "lements 1. . ender is a reporter1 editor or manager o a ne$spaper1 daily or maga:ine; 5e pu0lis#es acts connected $it# t#e pri&ate li e o anot#er; <uc# acts are o ensi&e to t#e #onor1 &irtue and reputation o said person.

<lander 0y deed re ers to per ormance o an act1 not use o $ords. T$o 6inds o slander 0y deed 1. 2. <imple slander 0y deed; and ;ra&e slander 0y deed1 t#at is1 $#ic# is o a serious nature.

.hether 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. Article 8'8. %erso s "lements I cri&i ati * I oce t

2. 3.

1. 2.

. ender per orms an act; 7y suc# an act1 #e incriminates or imputes to an innocent person t#e commission o a crime; <uc# act does not constitute per@ury.

3. The provisions of !rticle 6$? constitute the so called K/ag Aaw.K Article 8!/. Sla $er

This crime cannot be committed through verbal incriminatory statements. &t is defined as an act and, therefore, to commit

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this crime, more than a mere utterance is re9uired. &f the incriminating machination is made orally, the crime may be slander or oral defamation. &f 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. &f 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 re9uired by law to have been rendered. !s far as this crime is concerned, this has been interpreted to be possible only in the so called planting of evidence.

blemishing the honor or reputation of another person. &n 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. TITLE G2I. CRIMINAL NEGLIGENCE Article 8'!. I&"r.$e ce a $ Ne*li*e ce Duasi>o enses punis#ed 1. Committing t#roug# rec6less imprudence any act $#ic#1 #ad it 0een intentional1 $ould constitute a gra&e or less gra&e elony or lig#t elony; Committing t#roug# simple imprudence or negligence an act $#ic# $ould ot#er$ise constitute a gra&e or a less serious elony; Causing damage to t#e property o anot#er t#roug# rec6less imprudence or simple imprudence or negligence; Causing t#roug# simple imprudence or negligence some $rong $#ic#1 i done maliciously1 $ould #a&e constituted a lig#t elony.

2. Article 8'4. I tri*.i * a*ai st Ho or T#is crime is committed 0y any person $#o s#all ma6e any intrigue $#ic# #as or its principal purpose to 0lemis# t#e #onor or reputation o anot#er person. &ntriguing 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. .ho started the defamatory news is un4nown. @istinction between intriguing against honor and slander' .hen the source of the defamatory utterance is un4nown and the offender simply repeats or passes the same, the crime is intriguing against honor. &f the offender made the utterance, where the source of the defamatory nature of the utterance is 4nown, and offender ma4es 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. @istinction between intriguing against honor and incriminating an innocent person' &n intriguing against honor, the offender resorts to an intrigue for the purpose of

3.

4.

@istinction between rec4less imprudence and negligence' The two are distinguished only as to whether the danger that would be impending is easily perceivable or not. &f the danger that may result from the criminal negligence is clearly perceivable, the imprudence is rec4less. &f 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. &t is practically settled that criminal negligence is only a modality in incurring criminal liability. This is so because under !rticle 6, a felony may result from dolo or culpa. 5ince 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

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count for the criminal negligence. 5o there would only be one information to be filed, even if the negligence may bring about resulting injuries which are slight. @o not separate the accusation from the slight physical injuries from the other material result of the negligence. &f 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 the slight physical injuries. Bou are not complexing slight when you join it in the same information. &t is just that you are not splitting the criminal negligence because the real basis of the criminal liability is the negligence. &f you split the criminal negligence, that is where double jeopardy would arise.