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CRIMINAL LAW 2

TITLE ONE because they are still considered as


CRIMES AGAINST NATIONAL SECURITY AND THE Filipino citizens. So the aliens refer
LAW OF NATIONS (Articles 114 122) to the citizens of the enemy state

ARTICLE 114 TREASON
which is at war with the Philippines.

- is committed by a Filipino citizen or an alien residing in 3. That the offender either
the Philippines who levies war against the Philippine a. L e v i e s w a r a g a i n s t t h e
Government or adheres to her enemies by giving them Philippine government, or
aid and comfort b. Adheres to the enemies by
ELEMENTS: giving them aid or comfort.
1. The offender is by birth, a Filipino Citizen or The third element refers to the
an alien residing in the Philippines, even if mode of committing treason.
temporary allegiance treason may be committed by
The offender may either be a Filipino either:
citizen, because a Filipino citizen a. Levies war against the
owes permanent allegiance to the Philippine government ,requires
Philippine Government; or another the concurrence of two
offender is a foreigner, an alien elements:
temporarily residing in the 1) there must be an
Philippines. During his temporary actual of assembly of men
stay in the Philippines, he is given 2) it is for the purpose
protection by the Philippine of executing or
Government under its laws therefore effecting a treasonable
it is but incumbent upon him to have design by force.
temporary allegiance to the This means that the said
Philippine Government. That is why offenders, Filipino citizens who
even an alien, a foreigner are said to be in collaboration
temporarily residing in the with the enemy troops in order
Philippines can also commit treason to hand over the Philippine
in times of war. Government to the enemy

2.

That there is a war in which the Philippines is
troops. Absent of that
collaboration, it cannot be
involved considered as treason
The second element is that there is a
war in which the Philippines is b. Adheres to the enemies by
involved. In the case of Laura vs. giving them aid or comfort.
Misa, treason is a war time offense. Adherence to the enemies
It can be committed only in times of mean that the Filipino citizen or
war. In times of peace, Treason t h e o ff e n d e r i n t e n t i o n a l l y,
remains to be dormant crime, intellectually and emotionally
however, the moment when an favors the e n e m y.
emergency arises, the moment a Therefore,adherence to the
war arises, it is immediately put into enemies is an internal state of
effect as an act self-defense and mind, it is mental state, you
self-preservation of the Philippine cannot see adherence to the
Government. Treason cannot be enemies
committed in times of peace,
because in times of peace, there are

How now would you know
no traitors. that a person is adhering to



Who are these traitors?
the enemy state?
It is manifested by his
These enemies are troops of the acts of giving aid or
enemy state which is in war with the comfort to the enemy.
Philippines. Filipino men like the That is why these two
MILF, NPAs, even if they are at war must concur:
with the Philippine government, they 1. Adherence to the
cannot be considered as enemies enemies
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CRIMINAL LAW 2
2. Giving them aid or give rise to a separate and distinct crime? Will you charge
comfort him for two crimes based on treason and murder?



Mere adherence to
A: There is only one crime committed by him
and the crime committed is treason. Common
the enemies, without crimes such as Murder, physical injuries,
any act of giving aid or homicide, arson, if they are committed in
comfort to the enemy furtherance to, in connection with or incidentally to
will not bring along treason shall be absorbed in the crime of treason
treason, it is the act of because they are atrocities for war and therefore,
giving aid or comfort they are considered as absorbed in the crime of
which is the treason. It cannot even be complex, they are
manifestation of the considered absorbed in the crime of treason.
adherence to the
enemies. Q: What if A, B and C, conspired and agreed to commit

EXAMPLES OF ACTS OF ADHERING TO THE ENEMIES
treason against the Philippine Government. After their
conspiracy and agreement, A went to X. A told his friend X
BY GIVING AID OR COMFORT: that he was in conspiracy with B and C to commit treason
o By giving the enemies information, transportation, against the Philippine Government. After A told him such
arms, supplies, all of these will weaken the conspiracy with X, A left. X, despite knowledge of the
defense of the Philippines and strengthen the conspiracy to commit treason among A, B, and C, did not
enemy state. disclose such information to the proper authorities. What
o People vs. Perez:The court said, "the act of crime/crimes is/are committed by A, B, C, and X?
commandeering women or giving women to the A: A, B, and C are liable for the conspiracy to
enemy troops in times of war, to satisfy the lust of commit treason. There is a meeting of two or
the enemy troops is not considered as a more persons come to an agreement to commit
treasonable act." Because according the Court, the crime of treason and decide to commit it.There
whatever benefit is given to the enemy is merely is proposal to commit treason when a person has
trivial in nature,imperceptible and it was not the decided to commit the crime of treason and
intent of the offender (unintentionally). proposes its execution to some other person or


There are two ways of proving treason under Article
persons. The moment that other person whom the
proposal was given, raise to the commission of
114: crime, we no longer have proposal, but we have
1. TESTIMONY OF TWO WITNESSES, AT Conspiracy to commit treason. In the problem, A,
L E A S T, T O T H E S A M E O V E R T A C T, B, and C, conspired, agreed to commit the crime
OTHERWISE KNOWN AS THE "TWO-WITNESS of treason against the Philippine government,
RULE" therefore they are all liable for conspiracy to
There must be two witnesses who will prove commit treason.

only on the commission by the offender of an
overt act showing that he adheres to the

Q: X, who had knowledge of the conspiracy to commit
enemy. Therefore, treason cannot be proven treason among A, B, and C, however, despite that
by mere substantial evidence. There must be knowledge, he did not disclose it to the proper authorities.
direct evidence, a witness to this act of giving What is the liability of X?
aid or comfort to the enemy. A: X is liable for misprision of treason is
2. CONFESSION OF THE OFFENDER OR THE committed by any person who owes permanent
ACCUSED MADE IN AN OPEN COURT allegiance to the Philippine Government who fails
Confession of guilt must be made before a to disclose of knowledge to commit treason as
court. Extra-judicial confession will not give soon as possible to the proper authorities.In the
rise to conviction in case of the crime of problem, C, despite having knowledge of the
treason. conspiracy to commit treason among A, B, and C

ILLUSTRATION:
did not divulge it, did not disclose it to the proper
authorities, therefore, X is liable for misprision of
Q: What if there is war which the Philippines is involved? X treason.
was among those who committed treason against the
government. now X in committing treason killed a public

TREASON can be committed both by Filipino citizens
officer of the government of the Philippines, in furtherance and a foreigner temporarily residing in the Philippines,
of his act of treason. Will such act amounting to murder but MISPRISION OF TREASON can only be
committed by a Filipino citizen who owes permanent
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CRIMINAL LAW 2
allegiance to the Philippine government, it cannot be con
committed by a foreigner residing in the Philippines. fide

ARTICLE 117 ESPIONAGE
ntia
l
There are two ways of committing espionage under Article nat
117: ure,
I. rela
B y tive
ent t o
erin the
g , def
with ens
out e of
aut the
hori Phil
t y ippi
ther nes
efor
, a The
war o ff e
shi nde
p , r
fort, can
o r b e
nav any
a l pers
o r on.
mili H e
tary can
est be a
abli Filip
s h ino
m e citiz
n t en,
o r or a
res forei
erv gner
atio , or
n to h e
obt can
ain be a
any publ
info i c
rma offic
tion e r
, o r
pla emp
ns, loye
pho e ,
togr o r
aph h e
s or can
oth be a
e r priv
dat ate
a of indi
a
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CRIMINAL LAW 2
vidu 1.
al. Tha


t the
o ff e
W h nde
e n r
will perf
the orm
crim s
e of unla
espi wful
ona o r
g e una
aris utho
e? rize
Under the first mode, the crime of espionage d
will arise moment the offender enters the acts
warship, fort or naval or military establishment b y
or reservation, without authority if his intention the
is to obtain any information, plans, Phili
photographs or other data of a confidential ppin
nature, relative to the defense of the e
Philippines. gov



It is not necessary that for the crime to arise
ern
men
that he is successful in obtaining the data. It t.
is not necessary that he indeed obtained the 2.
data. The mere act of entering without Tha
authority is sufficient if his intention is to t the
obtain the data of confidential manner relative said
to the defense of the Philippines. act

II.

By disclosing to the representative of a foreign
prov
oke
nation the contents of the articles, data or o r
information referred to in paragraph No. 1 of give
art. 117, which he had in his possession by occ
reason of the public office he holds. asio
This mode of committing espionage can only n
be committed by a public officer who has f o r
been trusted, by reason of his public position, a
of articles, data of confidential nature relative war
to the defense of the Philippines. invo
The crime of espionage will arise the moment lvin
the offender divulges or discloses the data g or
and information to a representative of a liabl
foreign nation. e to
So even if he is in possession of the same, invo
but he does not divulge it to any lve
representative of a foreign nation, the crime the
will not arise. Phili

Espionage can be committed in BOTH, in times of peace
ppin
e s
and in times of war. o r

ARTICLE 118 INCITING TO WAR OR GIVING MOTIVES
exp
ose
FOR REPRISALS Filip
ELEMENTS: ino
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CRIMINAL LAW 2
citiz pea
ens ce.
t o
repr

Case of CAPTAIN MENDOZA
isal Hostage drama in Luneta. There were Hongkong
s on citizens boarded the bus and here comes captain
their mendoza who was no longer a member of the
pers military, he entered the bus, with different
ons weapons and grenades and even killed some
and hongkong citizens. Captain mendoza performed
pro unlawful, unauthorized acts which expose
pert overseas Filipino workers in Hongkong and china
y to reprisals on their person or property. In fact,
whil there were news at that time that Hongkong or
e China would be engaging in war with the
they Philippines. Head captain Mendoza, one of the
are crimes that may be held against him is inciting to
in a war or giving motives for reprisals.
forei
g n

ARTICLE119 VIOLATION OF NEUTRALITY
cou ELEMENTS:
ntry. 1.
3. The
H e crim
i s e is
not com
lega mitt
l l y e d
auth whe
oriz n
e d ther
t o e is
d o a
so. war

but
the
Inci Phili
ting ppin
t o e s
war i s
con not
note invo
s lved
that i n
ther the
e is said
yet war
n o and;
war. 2.
It is The
com com
mitt pete
e d n t
i n auth
time ority
s of issu
ed a
Dinty | Manalo | Navarez | Shyu | Tubio Page 5
CRIMINAL LAW 2
reg war.
ulati
o n Q: There is a war between country X and country Y. Here

f o r comes Pedro, a Filipino citizen, he was siding with country
the X. Is he liable?
pur A: No, he is not liable of violation of neutrality
pos because in the problem, it did not say that the
e of competent authority (the President) issued a
enfo proclamation or regulation imposing neutrality.
rcin
g

The violation will only arise if there is a proclamation or
neut regulation imposing neutrality and a Filipino citizen
ralit violates such declaration or regulation issued by a
y competent authority. Therefore, absence of such
amo declaration of neutrality, the crime of violation of
n g neutrality does not arise.
Filip
ino ARTICLE120 CORRESPONDENCE WITH HOSTILE
citiz COUNTRY
ens ELEMENTS:
and 1. That it is in time of war in which the Philippines is
; involved.
3. 2. That the offender makes correspondence with an
The enemy country or any territory occupied by enemy
o ff e troops.
nde 3. That the correspondence is either
r a. Prohibited by the Philippine Government
viol b. Carried on in ciphers or conventional signs
ates c. Containing notice or information which might
suc be useful to the enemy
h
reg

Here, there is a war in which the Philippines is
ulati involved.
o n
imp

Q: The Philippines is at war with the another country. Here
ose comes X, a Filipino citizen, he has a pen pal who is a
d. citizen of the country which is at war with the Philippines.

The competent authority or the President issued a


declaration of proclamation saying that there should be no
Her correspondence to the enemy state. But X missed his
e, penpal, and so, he wrote in a small piece of paper, "i love
ther you, i miss you, muamua!" Is X liable of the crime of
e is correspondence with the enemy?
war A:X is liable because there was a declaration issued
but by a competent authority that correspondence with the
the hostile country is prohibited and if there is no
Phili declaration, proclamation coming from the competent
ppin authority prohibiting correspondence, the crime will
es only arise if the said crime is carried on in ciphers or
is conventional signs or Containing notice or information
not which might be useful to the enemy.
invo
lved

in ARTICLE 121 FLIGHT TO ENEMY'S COUNTRY
the ELEMENTS:
said 1. That there is s war in which the Philippines is
involved.
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CRIMINAL LAW 2
2. That the offender must be owing allegiance to the a.
Philippine Government The
3. That the offender attempts to flee or go to enemy's o ff e
country nde
4. That going to the enemy country is prohibited by a r s
competent authority eith


There must be a declaration or a proclamation issued
e r
AT T
by a competent authority, that no Filipino shall flee to A C
the enemy's country and the offender violates such K or
proclamation. SEI
Mere attempt will readily rise to the crime. It is not Z E
necessary that the offender has actually gone to the the
country. ves
There must be declaration or proclamation prohibiting sel.
flight to enemy state.
b.
The
o ff e
nde
r s
ARTICLE 122 PIRACY eith
ELEMENTS: e r
1. The first element is where the vessel is SEI
located. The vessel can either be on the high Z E
seas or on Philippine waters (this was brought I N
about by the amendment of RA 7659). Before WH
the amendment of RA 7659, Piracy under O L
Article 122 can only be committed when the E or
vessel is on the high seas. But because of I N
this amendment brought about by RA 7659, PAR
Piracy now under Article 122 can be T
committed when the vessel is on Philippine the
waters. carg

2.

The second element provides for the
o ,
the
offenders. The offenders must NOT be equi
members of the complement or passengers of pme
the vessel. Therefore, the offenders must be n t
STRANGERS to the vessel. They must be o r
coming from the outside, not from the inside. the

3.
pers
onal
The belo
third ngin
ele g s
men o f
t the
refe pas
rs to sen
the gers
mod o r
e of m e
com mbe
mitti rs of
n g the
pira com
cy. ple
Dinty | Manalo | Navarez | Shyu | Tubio Page 7
CRIMINAL LAW 2
men the
t. said

ves
sel.
Bas The
e d re is
o n also
thes the
e use
ele o f
men forc
t s , e or
you inti
will mid
noti atio
c e n .
that The
pira re is
cy is also
akin the
t o use
rob o f
bery viol
. It enc
is in e
e ff e agai
c t nst
rob pers
bery ons.
. It The
i s re is
just also
call inte
e d nt to
pira gain
c y .So
bec it is
aus akin
e ,
the simil
obje a r
ct of t o
the rob
thin bery
g is .
eith
e r

the
ves
sel
o r
the
carg
o or
equi
pme
nt of
Dinty | Manalo | Navarez | Shyu | Tubio Page 8
CRIMINAL LAW 2
ARTICLE122 MUTINY u l
COMMITTED WHEN: com
1.The vessel is either on the high seas or on man
Philippine waters d of
2. the
The capt
OFF ain
E N o r
D E the
R S com
are man
M E der
M B o f
E R the
S ship
O F .
THE In mutiny, there is no taking because in mutiny there is no
C O intent to gain. Mutiny is the rising of commotion, a
M P resistance against the lawful command, against the lawful
L E authority of the commander or captain of the ship.
M E Since in mutiny, there is no intent to gain, mutiny is akin to
N T sedition. The rising of commotion, an uprising, an act of
o r dissent against lawful authority.
PAS
S E

SO HOW DO YOU DISTINGUISH PIRACY VS. MUTINY?
N G 1.
E R I n
S pira
O F cy,
THE the
V E o ff e
S S nde
EL r s
3. are
The stra
o ff e nge
nde rs to
r s the
rais ves
e a sel,
com whe
moti reas
o n , in
o r muti
dist ny,
urb the
anc o ff e
e on nde
the r s
boa are
r d nec
the ess
ship arily
agai insi
nst d e
the the
lawf ves
Dinty | Manalo | Navarez | Shyu | Tubio Page 9
CRIMINAL LAW 2
sel, the
they crim
are e is
eith t o
e r g o
m e agai
mbe nst
rs of the
the lawf
com u l
ple auth
men ority
t or o f
pas the
sen com
gers man
o f der
the o f
ves the
sel ship
.
2.
I n
Pira

ILLUSTRATION:
cy, Q: The vessel is on the sea going to Mindoro. So while the
ther ship is on its way to Mindoro, suddenly there comes a big
e is storm. The commander or the captain of the ship said that
inte they should first move towards the shore and let the storm
nt to comes calm in order to ensure the safety of the passengers
gain of the vessel. The passengers of the vessel and members
bec of the complement didnt want the decision of the said
aus captain of the ship and so they seize the captain of the ship
e it and manned the vessel until they reach Mindoro. What
i s crime, if any, is committed by these members of the
simil complement and passengers of the vessel?
a r A: They are liable of MUTINY. The vessel is on
t o Philippine waters. The offenders are members of
rob the complement and they go against the lawful
bery authority of the captain of the ship. Therefore they
, are liable of mutiny.
whe
reas

Q: While a vessel is on Philippine waters, here comes a
, in second vessel. Four men from the second vessel boarded
muti the first vessel and at gunpoint, took the cargo and
ny, equipment of the said vessel. Placed them in the second
ther vessel and off they went. What crime is committed by these
e is four men?
n o A: They are liable of PIRACY UNDER ARTICLE
inte 122. The vessel is on Philippine waters, the
nt to offenders are not members of the complement or
gain passengers of the ship. They seize the cargo and
bec equipment of the vessel. Therefore, it is piracy
aus under Article 122.
e
the

Q: The vessel is on Philippine waters. While the vessel is
ess on Philippine waters, the members of the complement and
enc passengers of the said vessel in conspiracy with one
e of another took the cargo and equipment of the said vessel,
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CRIMINAL LAW 2
and then they boarded a second vessel and off they went. ANTI-PIRACY AND ANTI-ROBBERY LAW OF 1974 (PD
What crime is committed by the members of the 532)
complement and passengers of the said vessel? Under PD 532, piracy is committed by attacking or seizing
A: The members of the complement and the vessel or seizing in whole or in part the cargo,
passengers of the vessel committed ACTS OF equipment or personal belongings of the members of the
PIRACY because they seize in whole or in part complement or passengers of the vessel IRRESPECTIVE
the cargo or equipment of the vessel but NOT of the value thereof, committed by means of force and
PIRACY UNDER ARTICLE 122 because in Article violence and committed by any person whether he may a
122, it is a requisite that the offenders must be member of the complement or passenger of the vessel or
strangers to the vessel. Here, the offenders are strangers to the vessel BUT the vessel is on Philippine
members of the complement and passengers of waters. Therefore, for PIRACY UNDER PD 532 to arise, it
the vessel. So the crime committed is PIRACY necessary that the vessel is on Philippine waters.If the
BUT UNDER PD 532. vessel is on the high seas, immediately rule out PD
532.

HOW COULD YOU KNOW IF IT IS PIRACY UNDER PD
532 OR PIRACY UNDER ARTICLE 122 OF RPC?
If the vessel is on Philippine waters, your choice is
either Piracy under PD 532 or Piracy Article 122.

W h
ere
lies
the
diffe
renc
e?

Sinc
e
Artic
l e
122
o f
R P
C is
the
mai
n
law,
w e
hav
e to
reco
ncil
e it
with
P D
532.
O r
P D
532
mus
t be
reco
ncil
e d
Dinty | Manalo | Navarez | Shyu | Tubio Page 11
CRIMINAL LAW 2
with mpl
Artic e m
l e ent
122. o r
Pira pas
c y sen
und ger
e r s of
P D the
532, ves
the sel
offe and
nde the
r s ves
can sel
b e i s
any o n
per the
son Phil
. He ippi
can n e
b e wat
a ers.
stra
nge

Q: The vessel is on Philippine waters, suddenly men from
r . the outside committed acts of piracy. What crime is
H e committed?
can A: Piracy under Article 122
b e Q: The vessel is on Philippine waters. Acts of piracy were
m e committed by the members of the complement or
m b passengers of the vessel. What crime is committed?
ers A: Piracy under PD 532
o f
the

Q: What if the vessel is on the high seas? While the vessel
c o is on the high seas, there comes a second vessel. Four
mpl men from the second vessel boarded the first vessel and at
e m gunpoint took the cargo and equipment of the first vessel.
ent. What crime is committed by these four men?
Therefore, where does PD 532 apply? A: Piracy under Article 122. The vessel is on the
high seas. The offenders are not members of the
I t complement or the passengers of the vessel. They
will seize in whole or in part the cargo and equipment
appl of the said vessel.
y
whe

Q: While the vessel is on the high seas,members of the
n complement or passengers of the vessel in conspiracy with
the one anothertook away the cargo and equipment of the
offe vessel. What crime is committed?
nde NOTE: It is not piracy under Article 122
r s because here, the offenders are
are members of the complement or
m e passengers of the vessel. In Article 122,
m b it is required that the offenders must be
ers strangers to the vessel. It cannot be
o f piracy under PD 532 because the vessel
the must be on Philippine waters. In our
c o
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CRIMINAL LAW 2
problem, the vessel is on the high seas. face three times and the face of the woman became
So, what crime is committed? reddish. She suffered slight physical injuries. What about
A: Again, piracy is akin to robbery. Since Piracy the fact that the injury suffered was only slight?
under Article 122 and Piracy under PD 532 do not A: It will not make a difference although the injury
apply, the crime committed is ROBBERY IN AN suffered was only slight. In the third circumstance
UNINHABITED PLACE. which will qualify piracy, the word physical

ARTICLE 123 QUALIFIED PIRACY
injuries is used in its generic sense. Therefore,
whatever be of kind of physical injuries, whether
What are the circumstances which will qualify piracy? serious or slight for as long as it was accompanied
Under Article 122, the following by piracy, it will be considered as qualified piracy.

circumstances will qualify piracy:
1. Whenever the offender have seized

Q: What if in the same problem, the woman didnt want to
a vessel by boarding or firing give the ring and one of the men touched the private parts
upon; or of the said woman and after touching the private parts of
2. Whenever the offenders have the said woman with lust, he forcibly took the ring. What
aband0ned their victims without crime is committed by the said men?
means of saving themselves; or A: All of them will be liable for piracy. However, the
There is intent to kill. man who touched the private part of the woman
3. W h e n e v e r t h e c r i m e i s will be liable for two crimes: piracy and acts of
a c c o m p a n i e d b y m u r d e r, lasciviousness. Acts of lasciviousness is not
homicide, physical injuries or mentioned in Article 123. Therefore, its presence
rape will not qualify piracy. It will bring about a separate
Whenever these four and distinct charge of acts of lasciviousness.
crimes accompanied the So, only these four crimes (murder, homicide,
act of piracy, it will not bring physical injuries and rape) will qualify piracy. If
a b o u t a s e p a ra t e a nd other crime is committed and accompanied by
distinct crime or a separate piracy and is not among these four crimes
and distinct charge of mentioned in Article 123, it will bring about a
murder, homicide, physical separate and distinct charge.
injuries or rape. These
crimes are absorbed

because they are QUALIFIED MUTINY
circumstances which will Insofar as mutiny is concerned, what are the
qualify the penalty to death. circumstances which will qualify mutiny?
NOTE: These circumstances are In Article 123, there is no specific mention of
separate and distinct from each other. It qualified mutiny, however according to Reyes
is not necessary that all of themmust be and other legal luminaries, of the three
present. The presence of one will qualify circumstances stated in Article 123,
piracy. Notice the conjunction OR. These paragraphs 2 and 3 are considered as
are qualifying circumstances which are circumstances which will qualify mutiny. That
prejudicial to the accused therefore they is:
must be strictly construed. 1. whenever the offenders have

ILLUSTRATION:
abandoned their victims without
means of saving themselves; or
Q: What if the vessel is on Philippine waters, and there 2. w h e n e v e r t h e c r i m e i s
comes a second vessel. Four men from the second vessel accompanied with murder,
boarded the first vessel and at gunpoint, they asked the homicide, physical injuries or
passengers to give to them all their valuables. One woman rape
didnt want to give her wedding ring because it was so According to Reyes and
precious to her and so one of the men forcibly took the other legal luminaries, only
wedding ring from the finger such that the finger was these two are considered
severed from it. What crime is committed? qualified in mutiny because
A: QUALIFIED PIRACY because piracy was in mutiny, the offenders are
accompanied by physical injuries. n e c e s s a r i l y, o r d i n a r i l y

Q: What if in the same problem, the woman didnt want to
inside the vessel because
they are members of the
give the ring, one of the men slapped the woman on the
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CRIMINAL LAW 2
complement or passengers accompany piracy, the crime
of the vessel. committed is qualified piracy. But

ANTI-HIJACKING LAW (R.A. No. 6235 otherwise known
in case of hijacking under RA
6235, the law is specific; it must
as An Act Prohibiting Certain Acts inimical to Civil be serious physical injuries.
Aviation) Therefore, if the physical injuries
Under RA 6235, there are four prohibited acts. that would accompany the act of
1. By compelling the pilot of an aircraft of Philippine usurpation and seizure of the
registry to change its course or destination OR by aircraft would only be less serious
seizing or usurping control thereof while it is in physical injuries or slight physical
flight injuries, the penalty is not

2.

By compelling an aircraft of foreign registry to land
qualified. The penalty is qualified
because from the penalty of 12 to
in Philippine territory OR by seizing or usurping 20 years, it would become 15
control thereof while the same is in Philippine years to death.
territory
3.

By carrying or loading on board a PASSENGER
These are the first two prohibited acts. How could AIRCRAFT operating as a public utility in the
you distinguish the first act from the second act? Philippines materials or substances which are
If the aircraft is of Philippine registry, the explosive, flammable, corrosive or poisonous
seizure or usurpation to amount in 4. By shipping, carrying or loading on board a
violation of RA 6235, requires that the CARGO AIRCRAFT operating as a public utility in
aircraft must be in flight. An aircraft is in the Philippines materials or substances which are
flight the moment all its external doors explosive, flammable, corrosive or poisonous in a
had been closed, following embarkation manner not in accordance with the rules and
until any of it external doors had been regulations of the Air Transportation Office
opened for purposes of disembarkation.
On the other hand, if the aircraft is of

HOW WOULD YOU DISTINGUISH THE 3RD FROM THE
f o r e i g n r e g i s t r y, t h e s e i z u r e o r 4TH ACT?
usurpation did not need while it is in If the aircraft is a PASSENGER AIRCRAFT,
flight. For as long as the aircraft of the mere act of carrying or loading explosive,
foreign registry is within the Philippine flammable, corrosive or poisonous
territory, seizure or usurpation thereof substances will immediately constitute a
will bring about violation of RA 6235 violation of RA 6235.
even if all its doors are opened; even if it If however the aircraft is a CARGO
is not in flight. AIRCRAFT, the loading of these poisonous
Insofar as these two prohibited acts are substances, flammable substances, is
concerned, what are the circumstances which will allowed because it is a cargo aircraft. The
qualify the penalty? crime will only arise if such act of loading is
Under RA 6235, the following not in accordance with the rules and
circumstances will qualify the first two regulations of the Air Transportation Office.
acts:
a. By firing upon the pilot or the

HUMAN SECURITY ACT OF 2007 (R.A. No. 9372)
member of the crew or passenger Q: What if there is a bus and the bus is parked at
of the aircraft; or Lunetapark and it was full of children. And here comes X, X
b. By exploding or attempting to had different kinds of explosive all over his body. And at
explode by mean of a bomb or gunpoint, entered the said bus and told the children to keep
explosive for purposes of quiet. Thereafter, there is a cartolina on the glass window of
destroying the aircraft; or the said bus. Written on the cartolina were his demands to
c. W h e n e v e r t h e c r i m e i s the government. His demands were first, that his brother, a
accompanied by murder, homicide, member of NPA and who is being incarcerated by the
serious physical injuries or rape military be released and his second demand, was that


NOTE: In case of piracy, the law
funds be transferred to his account. So these were the
demands made by X against the government. Because of
uses the word physical injuries in this, the parents of the children arrived, the media arrived,
its generic sense. Whatever be the all the cabinet secretaries arrived. Only the president did
kind of physical injury that will not arrive. So everybody was there. They were afraid that
Dinty | Manalo | Navarez | Shyu | Tubio Page 14
CRIMINAL LAW 2
the children might die so there was chaos in the entire minimum, he cannot be given the benefit of parole
Philippines. It took the members of the military and police under the Indeterminate Sentence Law. So it is
12 hours to subdue X. So after 12 hours, they were able to necessary that he must commit any of these
arrest X. What crime, if any, may be filed against X? predicate crimes and after committing these
A: X will be charged of the crime of terrorism predicate crimes, where lies the difference?
under RA 9372, the Human Security Act of 2007. Because his act that sowed and created fear and
Under Section 3 of Ra 9372, terrorism is panic among the populace coupled with an
committed when the offender commits any of the unlawful demand against the government.
following acts punishable under the RPC:
a. Piracy

Q: So let us say that X was charged with terrorism based
b. Rebellion on a valid complaint or information a case of terrorism was
c. Coup dEtat filed against him before the RTC. However, after trial on the
d. Murder merits, the judge acquitted him. According to the judge, the
e. Kidnapping and Serious Illegal prosecution failed to prove the guilt of the accused beyond
Detention reasonable doubt therefore acquittal for reasonable doubt.
f. Crimes involving Destruction Since he is acquitted of terrorism under RA 9372, can he

If the offender commits any of these acts
still be prosecuted for his predicate crime of kidnapping and
illegal detention because he detained the children for more
punishable under the RPC or any of the following than 12 hours? Can he still be prosecuted for Illegal and
acts punishable under special penal laws: Unlawful Possession of Firearms, Ammunitions or

1. Article 122 (Piracy in General and Mutiny in the High
Explosives because he was full of firearms and
ammunitions and explosives?
Seas or in the Philippine Waters); A: No more. Because of Section 49 of RA 9372.
2. Article 134 (Rebellion or Insurrection); Under Section 49 of RA 9372, whenever a person
3. Article 134-a (Coup dEtat), including acts committed by has been charged of terrorism, or any act
private persons; punishable under RA 9372, based on the valid
4. Article 248 (Murder); complaint or information, sufficient information and
5. Article 267 (Kidnapping and Serious Illegal Detention); substance to bring about and thereafter he is
6. Article 324 (Crimes Involving Destruction, acquitted or the case is dismissed, he can no
longer be subsequently prosecuted for any other
or under felony or offense necessarily included in the crime
charged. The crime of kidnapping and serious
1. Presidential Decree No. 1613 (The Law on Arson); illegal detention is necessarily included in
2. Republic Act No. 6969 (Toxic Substances and terrorism because it is one of the predicate crimes.
Hazardous and Nuclear Waste Control Act of 1990); Likewise, violation of PD 1866, as amended Illegal
3. Republic Act No. 5207, (Atomic Energy Regulatory and and Unlawful Possession of Firearms is also
Liability Act of 1968); necessarily included in terrorism because it is one
4. Republic Act No. 6235 (Anti-Hijacking Law); of the predicated crimes in terrorism. Or any of
5. Presidential Decree No. 532 (Anti-piracy and Anti- these predicated crimes, he can no longer be
highway Robbery Law of 1974); and, charged because they are necessarily included in
6. Presidential Decree No. 1866, as amended (Decree terrorism. This is known as the ABSORPTION
Codifying the Laws on Illegal and Unlawful Possession, PRINCIPLE in terrorism.
Manufacture, Dealing in, Acquisition or Disposition of
Firearms, Ammunitions or Explosives)

Q: But what if in the same problem, while X was waiting for


If the offender commits any of these crimes under
his demands to be given by the government, he saw a girl
and with lewd design, he touched the private parts of the
seven-year old girl. Therefore he committed a violation of
the RPC and any of the crimes under special RA 7610 the Anti-Child Abuse Law. He was acquitted of
penal laws, thereby sowing and creating a terrorism. Can the state prosecute him for violation of RA
condition widespread and extraordinary fear and 7610?
panic among the populace in order to coerce the A: Yes, because it is not among the predicate
government to give in to an unlawful demand, he crimes. It is not a crime necessarily included in
is liable of terrorism and the penalty is 40 years the crime of terrorism.
imprisonment without the benefit of parole under
the Indeterminate Sentence Law. So it is the

maximum penalty of 40 years. He has to serve it
totally. Even if he has already served the

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CRIMINAL LAW 2
The offender is a public officer or
employee. BUT NOT ALL PUBLIC
OFFICERS OR EMPLOYEES can
commit arbitrary detention. The
public officer of employee can
commit arbitrary detention are only
those who have been vested with
authority to effect arrest and
detain a person or at least to
cause the detention of a person.
Public officers who have been vested
with authority to effects arrest and detain
a person are POLICE OFFICERS. On
the other hand, public officers vested with
authority to cause the detention of a
person are MEMBERS OF CONGRESS.
They can order the detention of a person
who has been cited of contempt for
failing to accurate their proof, or we have
JUDGES they can order the summary
detention of persons cited in contempt of
court.
2. That he detains a person
The second element requires that the
offender detains a person.
So when is there detention?
There is detention when the
offended party is placed in
incarceration. When the offended
party is placed behind bars or when
the offended party is restrained of
his person or liberty.
TITLE TWO In order to amount arbitrary
CRIMES AGAINST THE FUNDAMENTAL LAWS OF THE detention there must be an act of
STATE (Articles 124 133) restraint on the person or liberty

The acts under TITLE TWO are made criminal because
of the offended party. Absent that
intent, absent the actual restraint on
they both appease the Bill of Rights. The rights stated the person or liberty of the offended
under the Constitution and the first of these is under party It can be any other crime
ARTICLE 124, 125 and 126 Arbitrary Detention. BUT NOT ARBITRARY

3 KINDS OF ARBITRARY DETENTION:
DETENTION. Therefore, Supreme
Court said that intent to detain must
1. Arbitrary Detention by detaining a person without be manifest, it must be evident.
legal ground under Article 124 Absent that, it can be any other
2. Arbitrary Detention by failing to deliver the crime but not arbitrary detention.
detained person to the proper judicial authorities
within 12, 18 or 36 hours under Article 125 3.

That the detention is without legal grounds
3. Arbitrary Detention by delaying the release of The third element requires that the detention
prisoners despite the judicial or executive order to must be without legal ground.
do so under Article 126 So when is detention without legal

ARTICLE124 ARBITRARY DETENTION BY DETAINING

grounds under Article 124?
1. When the said offended party was
A PERSON WITHOUT LEGAL GROUND arrested without a warrant of arrest.
ELEMENTS: 2. When the said offended party was
1. That the offender is a public officer or employee arrested and his arrest and detention
Who is the offender in Article 124? does not fall under any of the

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CRIMINAL LAW 2
circumstances or a valid warrantless
arrest.

Q: What if X is suspected to be a snatcher and many
3. When he is not suffering from complaints was filed against him. One time, when the
violent insanity or any other ailment police officers were conducting a patrol they saw X who
which requires compulsory was perhaps waiting for a ride. When the police officers
confinement. saw X they immediately arrested X and brought him to the
All of these are not nearest police station. They told X that he is to be
considered valid grounds investigated for he is said to be a cellphone snatcher. So
for detention. he was brought to the investigation room however, the
So to reverse, what are the valid investigation officer was not around so the arresting officer
grounds for detention? told him that he needs to be investigated and that he can
The following are valid grounds for leave but he must make sure to come back for purposes of
detention: investigation otherwise if he does not come back the next
a. If the person does not receive time they see him they will kill him. So because of that, X
and detained by virtue of a would get out of the precinct but would immediately return.
warrant of arrest. Are the police officers liable for arbitrary detention?
b. If a person was arrested and A: NO, the police officers are not liable for
detained under any of the arbitrary detention. There is no intent to restrain
circumstances for a valid or detain the person or liberty of X, the offended
warrantless arrest party. In order to amount to arbitrary detention it is
c. If a person was suffering violent necessary that the intent of the public officer to
insanity or any illness which restrain the person or liberty of the offended party
requires compulsory must be manifest and it must be evident. In this
confinement. case however, it is not.
These are the valid ground
for the arrest and detention

Even if there is a threat on the part of the police
of a person. officer there is however no intent to detain X. What

ILLUSTRATION:
are the crimes if any are the police officer liable
for?
Q: So if a person, driving his vehicle entered a one way T h e y c o m m i t t e d G R AV E T H R E AT S
street and in violation of the LTO rules and regulation, was because they threatened to kill X if he would
stopped by police officer, his license was taken and gave not come back. It is the grave threats that
him a ticket and was bought to the nearest PNP station and made X come back in the police station.
was placed behind bars. He was detained. That was 8
oclock in the morning then the arresting officer left. And on

ARTICLE125 ARBITRARY DETENTION BY FAILING
the afternoon, the police officer returned to the police TO DELIVER THE DETAINED PERSON TO THE
station. Upon his arrival, he immediately released the PROPER JUDICIAL AUTHORITIES WITHIN 12, 18 OR 36
incarcerated person whom he detained for entering a one HOURS
way street. Is the said police officer liable for arbitrary ELEMENTS:
detention under Article 124? 1. The offender here is a public officer or
A: YES, he is liable ofARBITRARY DETENTION. employee vested with authority to effect arrest
He is a public officer vested with authority to effect and detain a person
arrest and detain a person. If he detained the 2. That offender has detained a person for some
person, the detention was without legal ground. It legal ground
is without legal ground because entering a one The second element requires that the
way street and violating the traffic rules and offender arrests and detains a person for
regulation is not a ground for incarceration. It is some legal ground.
not a ground for a person to be placed behind What are these legal grounds referred to
bars. If a person committed a violation of traffic under Article 125?
rules and regulation like entering a one way street The legal ground being referred to in
or beating the red light, he should only be given a Article 125 is not the fact that the
ticket. There should not even be a confiscation of said arrest was made by virtue of a
license. After that, he should be allowed to leave warrant of arrest because if the
but that is not a ground for him to be placed under offended party was arrested by the
detention. Since the officer detained the person public officer by virtue of a valid
without any legal ground HE IS LIABLE FOR warrant of arrest he does not have
ARBITRARY DETENTION.
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CRIMINAL LAW 2
the obligation to deliver him to the What do you mean by delivery?
proper judicial authorities. Delivery does not mean that you
So what are these valid instances in really have to deliver the physical
arresting a person? body of the person arrested to the
These refer to circumstances of valid court. It means constructive delivery
warrantless arrests under Section 5 or legal delivery, meaning, the filing
Rule 112 of the Rules of Court. It of the appropriate case before the
requires that a peace officer or a proper court. That is delivery to
private individual may even without a proper judicial authorities - filing of
warrant arrest a person under the the case before the proper court.
following circumstances: The law says that a public officer must
a. That in his presence the deliver to the proper judicial authorities.
person to be arrested has So judicial authority, what does it mean?
committed, is actually The proper judicial authorities refers
committing, or is attempting to COURTS OF JUSTICES OR
to commit a crime. This is JUDGES OF THE COURTS THAT
otherwise known as HAS THE POWER TO ORDER THE
INFLAGRANTE DELICTO INCARCERATION OR DETENTION
ARREST OF A PERSON OR HIS
b. When a crime has in fact TEMPORARY RESTRAIN UPON
just been committed, and P O S T I N G O F A P P R O P R I AT E
t h e p o l i c e o ff i c e r h a s COMPLAIN.
probable cause to believe
based on personal

The FISCAL does not belong to the
knowledge of facts and proper judicial authority because he
circumstances that the belongs to the executive branch. The
person to be arrested is the Fiscal is under the Department of
one who committed the Justice and not under the Supreme
crime. This is otherwise Court. The head of the Fiscal is
known as HOT PURSUIT Secretary De Lima and the President
ARREST. and not Chief Justice Sereno. Thats
c. When the person to be why a Fiscal is not within the
arrested is a prisoner who meaning of a judicial authority.
has escaped from a penal Second, the fiscal may fix or the
establishment or a place fiscal may recommend the bail but
where he is serving final he does not have the power to fix the
sentence or temporarily bail and allow the accused to go on
detained while his case is temporary liberty. Only the judges
pending, or has escaped are allowed to fix the bail and order
while being transferred from the temporary liberty of the accused
one penal institution to until upon the posting of the said
another. bail.
These are the
circumstances for a

The law says that a public officer must deliver the person
valid warrantless arrested to proper judicial authority within:
arrest. These are the a. 12 hours, for crimes punishable by light penalties,
circumstances referred or their equivalent
to in the second b. 18 hours, for crimes punishable by correctional
element of Article 125. penalties, or their equivalent
That the offender fails to deliver the person
c. 36 hours, for crimes punishable by afflictive or
capital penalties, or their equivalent
3.
arrested to the proper judicial authorities
within 12, 18 or 36 hours.

ILLUSTRATION:
The third element requires that that the Q: What if a person has been arrested Inflagrante Delicto
offender fails to deliver the person arrested to in possession of an unlicensed firearm. Possession of
the proper judicial authorities within 12, 18 or unlicensed firearm is punished by a special penal law (P.D.
36 hours. 1866 as amended). Is the arresting officer required to
Dinty | Manalo | Navarez | Shyu | Tubio Page 18
CRIMINAL LAW 2
deliver the accused to the proper judicial authorities? Does Example of judicial order for the release of a
Article 125 apply even to violation of special penal laws? prisoner lets say that a person has been charged
A: Yes, because the law says or their in court and the public prosecutor failed to present
equivalent. 12 hours, for crimes punishable by any evidence for consecutive times and no
light penalties, or their equivalent. That means all witnesses has ever been presented since the
their equivalent refers to their equivalent even in beginning. The judge will dismiss the case and
cases of violation of special penal laws. order the release of the accused from jail. This is
Therefore, even if the crime committed or the an example of a judicial order for the release of a
crime for which the offender is being arrested is prisoner. Or lets say the judge acquitted the
based on violation of special penal laws, the accused then he will order the release of the said
arresting police officer has the obligation to deliver accused from jail.
the person arrested to the proper judicial How about an example of an executive order for a
authorities in consonance with Article 125 of the release of a prisoner? A person was arrested and
Revised Penal Code. placed behind bars and proceeding was filed

Q: What if the police officers caught X in the actual act of
before the fiscals office. The fiscal ordered the
release of the prisoner. This is an example of
killing Y. So they saw X and Y fighting and they saw X executive order for the release the prisoner.
stabbed Y to death. Therefore, X is liable of homicide. They
arrested X and that was Saturday, 3 oclock in the

Q: What if X has been charged of two crimes - Illegal sales
afternoon. Sunday, there is no office. The following day, of dangerous drugs and illegal possession of dangerous
Monday, happens to be declared a special non-working drugs? So, two crimes were filed against him. The illegal
holiday. Therefore, the police officers were able to deliver X possession of dangerous drugs was filed before the RTC
to the proper judicial officer only on Tuesday, 8 oclock in Branch 6 on the other hand; the illegal sale was filed before
the morning. They were able to file the case in the Fiscals RTC Branch 87. Two different courts were filed with. In the
office for purposes of proceedings Tuesday, 8 oclock in the illegal possession of dangerous drugs which was filed in
morning, beyond 36 hours which was required by law. Are RTC Branch 6, no witnesses were ever presented and so
the police officers liable for arbitrary detention? the judge immediately declared the dismissal of the case
A: NO, the police officers are not liable for and he ordered that X should already be released from jail.
arbitrary detention. The Secretary of the However, the case for illegal sale of dangerous drugs under
Department of Justice has made a legal opinion RTC Branch 87 is still ongoing. The jail warden receives
that the said 12, 18 and 36 hours refers to the order coming from the judge RTC Branch 6 that X
WORKING HOURS. These refer to the time when should be released. The jail warden did not compel. Is the
the courts are open in order to receive the cases jail warden liable for arbitrary detention under Article 126 -
to be filed against them. This does not include the Arbitrary Detention by delaying the release of prisoners
crime wherein the courts are closed and they did despite the judicial or executive order to do so?
not receive the complaint or information to be filed A: NO, the jail warden is not liable for arbitrary
against the accused. detention under Article 126 because there is still

ARTICLE126 ARBITRARY DETENTION BY DELAYING
another pending case against the said prisoner
before another court. Therefore, it is incumbent
THE RELEASE OF PRISONERS DESPITE THE upon him not to compel with the judge of Branch 6
JUDICIAL OR EXECUTIVE ORDER TO DO SO since there is another case in Branch 87 which is
ELEMENTS: still ongoing. What the law punishes is delay
1. The offender is a public officer or employee without valid reason for the release of the
2. That there is a judicial or executive order for prisoner.
the release of the prisoner or detention
prisoner, or that there is a proceeding upon a

ARTICLE127 EXPULSION
petition for the liberation of such person. Expulsion is committed by public officers or employees who
3. That the offender without good/valid reason shall expel any person from the Philippines or who compels
delays: (1) the service of the notice of such him to change his residence without any lawful authority to
order to the prisoner; or (2) the performance do so.Again, the offender is a public officer or employee
of such judicial or executive order for the who acts either:
release of the prisoner; or (3) the proceeding a. By expelling a person from the Philippines
upon a petition for the release of such person. b. By compelling a person to change his
NOTE: What is punishable is the delay without valid residence
reason, the delay of the release of the prisoner despite the
judicial or executive order to do so.

What the law prohibits is that if this public officer
or employee expels him from the Philippines or
Dinty | Manalo | Navarez | Shyu | Tubio Page 19
CRIMINAL LAW 2
compels him to change his residence without
lawful authority to do so because there are 2.

He was not authorized by a judicial order to enter
persons who have been authorized by law to the dwelling and/or make a search therein for
deport a person from the Philippines or to compel papers or other effects
a person to change his residence. The second element requires that



For example, the President has the power to
entering upon the dwelling of another
which is not authorized by a judicial
order. The judicial order refers to a
deport or expel a person from the Philippines.
Another example is a foreigner who is known to
be a persona non grata; the President may order 3.

search warrant

He either enters the dwelling of another against


his deportation to his home. the will of the latter or searching for papers or



The courts on the other hand, have the power to
other effects found therein without the consent of
the owner, or after having surreptitiously entered
the dwelling, being discovered and asked to leave,
compel a person to change his place of residence.
Lets say the offender is a concubine and the
penalty to be imposed to a concubine is destierro.
he refuses to leave.

The third elements provides for the different modes of


Therefore, the concubine is prohibited from violation of domicile
entering a particular place based on the judgment (These three modes are separate and distinct from each
of the court. Now, theprohibited place from which other do not look for all the three modes in a problem,
she is prohibited from entering is the place where violation of one of them will bring about violation of
she lives. She cannot enter the said place domicile)
therefore; the court is empowered to compel her
to change her place of residence because she

1. By entering any dwelling against the will of the
cannot enter the place wherein her house is owner thereof; or
situated.

VIOLATION OF DOMICILE (ARTICLE 128, 129, 130)
- There must a prohibition, an opposition from entering.
It can either be an implied or expressed opposition
from entering.
a public officer or employee entered into a Example:
dwelling of another which is not armed with a implied opposition the door is closed. It can
search warrant be said that the owner is saying that No one
different prohibited acts constituting violation of can enter my house
domicile: expressed prohibition when the owner is
I. By entering any dwelling against the will inside the house and the officer knocks upon
of the owner thereof; or
the door and upon seeing the officer, the owner
II. By searching papers or other effects
found therein without the previous closes the door.
consent of such owner; or if there are sayings Do not enter, No entry
III. By refusing to leave the premises, after - It does not mean entering without the consent. An

having surreptitiously entered

ARTICLE128 VIOLATION OF DOMICILE -


entry without the consent is not an entry against the
will.
When you say entry against the will, there must be an
ELEMENTS:

opposition or a prohibition from entering the dwelling.


1. The offender is a public officer or employee

Who is the offender in the violation of domicile?


2. By searching papers or other effects found therein
without the previous consent of the owner; or
He must be a public officer or employee - The consent of the owner matters. Even if the public
acting under color of authority officer or employee is allowed inside, the fact that he is
A public officer or employee is said to be allowed inside does not mean that he is allowed to
acting under color of authority if he has been conduct the search.
vested with the authority to implement a - He must ask first for the previous consent of the owner
search warrant, but when he entered in the before proceeding with the search. Without the
said dwelling, he is not armed with a search previous consent of the owner to conduct the search,
warrant. Therefore, he was acting under color
of authority.
Even if he is a public officer or employee, but 3.

any search would be a violation of domicile.

By refusing to leave the premises, after having



he did not act under color of authority, is liable surreptitiously entered the dwelling
only, not for violation of domicile, but is either - it is his refusal to leave the premises that will bring
liable for qualified trespass to dwelling or about the violation of domicile, NOT the surreptitiously
trespass to property because the public entering. But it is required that entering must be done
officer or employee is acting under his private surreptitiously.
capacity. - Surreptitious entering means entering the dwelling
Dinty | Manalo | Navarez | Shyu | Tubio Page 20
CRIMINAL LAW 2
secretly, candidly. it, he is already liable because his entry was
- Therefore, it is important that he mus-t refuse to leave against the will of the owner. The door was closed
after being discovered and asked to leave in order to although it was not locked. Therefore, there was
amount to violation of domicile. an implied opposition, an implied prohibition from
- Mere surreptitious entering will not bring about
entering.When he entered without a search
violation of domicile.
warrant intending to conduct a search is already a
violation of domicile
ILLUSTRATION:
Q:What if the door of the house was opened, a police
Q: What if the police officer knocked on the door of the
officer without being armed with a search warrant, entered
the door of the house and went up to the sala. The owner house of X. X opened the door, upon seeing the public
of the house saw him and asked him to leave, and he left. officers, X allowed them to enter. The police officer told X
Is he liable for violation of domicile? that they were looking for a stolen car stereo in the
A: He is not liable for violation of domicile. neighborhood; we are going to conduct a search in your
When the door of the house is open, there is no house. X said, "No, you cannot conduct a search inside my
prohibition; there is no opposition from entering. house. The police officers agreed and left the house. Are
Anybody may enter even without a search they liable for violation of domicile?
warrant; therefore, since there is no prohibition or A: They are not liable. It is not entry against the
opposition from entering, violation of domicile will. They did not conduct a search. The entry was
cannot be committed under the first act. Under the not done surreptitiously. It does not fall any of the
second act, it cannot be committed because he acts, therefore, they are not liable for violation of
domicile.
did not conduct the search. The third act also not
done because the entering of the house is not
Q: In the same problem, when they told the owner that they
done surreptitiously.

Q: What if in the same problem, the door of the house was
were conducting a search for the stolen car stereo, the
owner of the house said, No, you cannot conduct a
opened, a public officer with the intent to conduct a search search. There is nothing stolen inside my house but the
warrant entered the house, when he was in the sala, the police officers proceeded with the search.
owner of the house saw him and told him to leave. He did A: This time, they are liable for violation of
not leave; he just stayed there and sat on the sofa. Is he domicile because they made a search without the
liable for violation of domicile? previous consent of the owner under the second
act of Art. 128
A: He is not liable for violation of domicile.
Under the first act, is entry against the will? NO,
Q: What if in the same problem, the owner of the house
the door was opened. Therefore, there was no
opposition or prohibition from entering. Under the told the police officers, No you cannot conduct a search,
second act, he did not conduct a search. Under the there is nothing stolen inside my house The police officers
third act, is the entering done surreptitiously? NO, obliged, they were going to leave the house, obeying the
because the door of the house was opened; order of the owner. However, on their way out, before they
therefore, he did not violate any of the following could go out, they saw near the door, a table and on top of
acts amounting to violation of domicile. it, there were drug paraphernalia, contraband. And so, they
But he did not leave the house, although the seized and confiscated the contraband and then thereafter
owner of the house asked him to leave. Is he they leave the house. Are they liable for violation of
liable? domicile? Are the evidences confiscated admissible against
Yes. He is liable for unjust vexation. the owner?
(Nangiinislangsiya) A: They are not liable of violation of domicile.
Although he did not the house, he cannot When they were told not to conduct the search,
be liable for violation of domicile
they did not conduct the search and they were
because his act does not constitute
about to leave, therefore, not liable for violation of
the acts prohibited by Article 128.

Q: The door of the house was closed, but it was not locked.
domicile. But they confiscated the drug
paraphernalia that they saw. Yes, the confiscated
A police officer without a search warrant opened the door, drug paraphernalia were admissible against the
realizing it was not locked, entered the house and went up owner because they were contraband. They are
to the sala intending to conduct the search. Before he could illegal per se. And the police officers saw them
conduct the search, the owner of the house saw him, and without conducting the search, they saw them
told him to leave and he left. Is he liable for violation of inadvertently. Even without conducting the search,
domicile? the police officers would see contraband,
A: Yes. He is laible for violation of domicile. narcotics, in their presence, in their plain view,
Even if he left the said place upon being told to do they are mandated by law to seize and confiscate
Dinty | Manalo | Navarez | Shyu | Tubio Page 21
CRIMINAL LAW 2
the same under the plain view doctrine. So in this 1. It is required that it is for one specific offense.
case, these drug paraphernalia where under the 2. There must be probable cause
plain view and therefore under the obligation to 3. The probable cause must be determined personally by
seize and confiscate them and these are the issuing judge
4. The said probable cause was determined by the
admissible as evidence against the owner of the issuing judge personally through searching questions
house.

Q: What if a police officer was conducting a surveillance of
and answers in writing, under oath or affirmation as the
testimony given by applicant of the said search warrant
or any witnesses he may produce.
X, a well-known drug pusher, so he was always within the 5. The applicant of the search warrant and his witnesses
vicinity of the house of X. One time, it was the birthday of must testify only as to facts personally known to them
X, the gate of the house was open, and the door of the 6. The said search warrant must specifically state the
house was opened. The police officer disguised himself as
one of the guests and he entered the house together with

-
place to be searched and the place to be seized.

If any of these requisites is wanting, then the said


the flow of the guests. His intention was to conduct a search warrant is illegally procured. It is procured
search. He was already about to conduct the search when without just cause
the owner of the house recognized him. The owner of the - A search conducted by virtue of a search warrant
house came up to him. I know you, you are a police officer. illegally procured without just cause is a kin to a search
Get out of my house right now and he left. Is he liable for
violation of domicile? without a search warrant.

Q: What if the police officer was armed with a search


A: No, he is not liable for violation of domicile.
The entry was done surreptitiously, secretly, warrant, he procured the search warrant illegally without
candidly, he was in disguise. It was not against the just cause. The police had an enemy, B, then proceeded to
will of the owner because the gates and the door a judge to issue a search warrant testifying under oath, the
were open. He did not conduct the search he is positive under his surveillance that B was in
because the owner saw him before he could do possession of an unlicensed firearm inside his house. The
so. The entry was done surreptitiously. He was judge believed the police and issued a search warrant
discovered and ordered to leave, and he left. against B. The police officer is now armed with a search
Therefore, he is not liable for violation of domicile warrant, and went to the house of B and showed it to B. B,
However, upon being discovered and ordered to upon reading the search warrant, knew it was maliciously
leave and stayed in the house. procured, it was procured without just cause. Should B
Here, he is not liable for violation of allow the police officer to conduct the search?

domicile.

Under Articles 129 and 130, there is still violation of


A: Yes. Even if the said search warrant was
procured without just cause, the police officer
must be allowed to enter and conduct the search,
domicile despite the public officer or employee is because of the so-called, REGULARITY OF
armed with a search warrant.
PERFORMANCE OF DUTY on the part of the
judge in issuing the said search warrant. He is
armed with a search warrant issued by the judge
ARTICLE129 SEARCH WARRANTS MALICIOUSLY
and therefore, he must allow him to enter his
OBTAINED AND ABUSE IN THE SERVICE OF THOSE
house and to conduct his search.
LEGALLY OBTAINED
What now would be the remedy of the owner
Prohibited acts violation of domicile is
of the house?
committed through:
The owner of the house has the following
I.By procuring a search warrant without just
remedies:
cause
1. He can file a motion to quash the
When a public officer or employee said warrant
conducts a search and the search
2. He can file a motion to suppress the
warrant was an illegally procured
evidence that have been confiscated
search warrant. It was procured
inside the house.
without just cause.

SEARCH WARRANT is an order in writing, issued in the


In addition to these motions, he can file a
case of violation of domicile against
the said public officer who conducted
name of the People of the Philippines, signed by a judge the search. Violation of domicile under
and directed to a peace officer, commanding him to search Art. 129 because he procured the said
for personal property described therein and to bring to court search warrant without just cause.
the particular things to be seized. So in other words, the said police officers

Before a search warrant may be issue, the following
must be allowed to enter and allowed
to conduct the search and the owner of
the house shall have the
are the requisites to a valid search warrant: abovementioned remedies thereafter.
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CRIMINAL LAW 2
II.By exceeding his authority or by using
is stated in the search warrant and the actual facts
of the case to be searched, the have to go back to
unnecessary severity in executing a the judge that issued the said search warrant and
they have to ask or move for the amendment of

search warrant legally procured

A search warrant is valid only for a period of 10 the said search warrant.

days from the date of its issuance appearing on Q: What if the third punishable act under Art. 129
the search warrant. amounting to the violation of domicile, when the public
officer or employee exercised excessive severity in the
implementation of the said search warrant.
ILLUSTRATION:
A search warrant was dated Dec. 1, a police officer What if a search warrant is issued against X, the
received it on Dec 3. The search was conducted Dec. 13.
The said search warrant is already invalid. police officers went to the house of X, upon reaching the
When they conducted the said search on Dec. 13, house of X, they showed the warrant to X and he allowed
they already exceeded the authority in the said them to enter. The search warrant said that they could
search warrant. Therefore, they are liable of search for dangerous drugs, particularly, shabu. In


violation of domicile under Article 129.

Q: What if the said search warrant says that they could


searching for shabu, they turned upside down and
deliberately destroyed each and every furniture and
appliance inside the house of X. When the wife of X saw
conduct the search, anytime of the day. They conducted
this, she told the police officers to stop, but she was
the search at night time.
slapped twice. she then suffered less serious physical
A: They are liable of violation of domicile under
injuries. In deliberately destroying the furniture and
Article 129 because they exceeded the authority
appliances of X, the public officers committed malicious
in the said search warrant.

A search warrant may only be conducted at day time. It
mischief. In slapping the wife, they committed less serious
physical injuries. What crime/crimes would you file against
the police officers?
may only be implemented at day time, EXCEPTIONS:
A: You have to file 3 cases:
When there is a specific order in the
search warrant stating that if can be 1. Violation of domicile because they
conducted at anytime of the day or night. exercised excessive severity in the
Absence of such order in the said search implementation of the said search warrant.

warrant, a search warrant can only be They need not destroy the property. They
need not slap the wife. All of these are
implemented at day time.

Q: What if a search warrant was issued against X, the


excess of the search warrant.
Therefore they should be filed in
violation of Art. 129, violation of
place to be search is located at 123 valentiono St. They domicile, for exercising excessive
police went there. The house was owned not by X, but by severity.
Y. So they look for the house of X, the house of X was 321 1. Malicious mischief for destroying the
valentino St. They presented a search warrant to X. X said, furniture and appliances
you cannot conduct a search inside my house. The 2. less serious physical injuries for slapping
address in the search warrant is 123 valentinost. and my
address is 321 valentinost. Nevertheless, the officers


the wife

Are you going to file all 3 cases or is it absorbed and


conducted the search and they found the illegal items must be file within the court?
inside the house. Are the police officers liable of violation of Violation of domicile cannot absorb malicious
domicile? Are the confiscated admissible evidence against mischief nor less serious physical injuries.
the owner? Although in reality, these two are merely the
A: The officers are liable for the violation of manifestations of the excess in the
domicile. When they conducted the said search, implementation of the said search warrant, they
on a house that has a different address from that cannot be absorbed, they cannot be complex.
Under Art. 129, he expressly prohibits such
said search warrant, they exceeded their authority
absorption and such complexity of crimes
in the said search warrant. The search warrant is Under Article 129, the liability for violation of
so worded, expressly, as to the thing or place to domicile shall be in addition to the liability
be searched. The police officer cannot exercise attaching to the offender for commission of any
discretion. They have to follow what is stated in other crime. Therefore, if aside from violation of
the search warrant. The moment they did not domicile, Another crime is committed by the
follow what is stated in the search warrant, then police officers, they had to be charged with all
these cases. Art. 129 prohibits the complexing
they exceeded the authority.



In that case, when there is variance between what
of a crime. It also prohibits the absorption of
this crime, therefore all 3 cases must be filed
against the said police officers.
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CRIMINAL LAW 2

ARTICLE131 PROHIBITION, INTERRUPTION AND
ARTICLE130 SEARCHING DOMICILE WITHOUT DISSOLUTION OF PEACEFUL MEETINGS
WITNESSES This is committed by a public officer or employee
Prohibited act: who commits any of the following acts:
I. By conducting a search in the absence of the I. By prohibiting or by interrupting, without
owner of the house, or any member of his legal ground, the holding of a peaceful
family, or two witnesses residing in the same meeting, or by dissolving the same. (any
peaceful meeting)
locality

ILLUSTRATION:
II. By hindering any person from joining any
lawful association or from attending any
Q: What if under Article 130, violation of domicile is of its meetings.
III. By prohibiting or hindering any person
committed when the search was conducted in the absence from addressing, either alone or together
of the owner of the house, or any member of his family or with others, any petition to the authorities
two witnesses residing from the same locality. for the correction of abuses or redress of
A search warrant was issued against X and the police
officers went to the house of X. They showed the search
grievances.

For the crime to arise, it is necessary that the meeting


warrant to X and they were allowed inside to conduct the
search. In conducting the search, the search was that was prevented, interrupted or dissolved must be a
witnessed by 2 barangay tanods who came with them, who peaceful meeting and it must be for any lawful
purpose. If the meeting is not a peaceful meeting or if
arrived with them in the house of X. in the conduct of the
the meeting is not for lawful purpose, a public officer or
search, they told the owner of the house, X, that his wife employee has all the rights to prevent, interrupt or
and his two children to remain in the sala while they
conduct the search inside the bedroom of X. In conducting
the search in the bedroom of X, the search was witnessed

dissolve the said meeting.

This is in the exercise of the freedom of speech,


by 2 barangay tanods and they found 2 plastic sachets of freedom of expression and freedom of assembly. However,
shabu underneath the pillow inside the bedroom of X. Are these 3 freedoms are not absolute. The Supreme Court has
the police officers liable of violation of domicile under Article enjoined the power of the State to regulate these meetings
130? Are the evidence seized admissible against the through permits.
owner?
A: The police officers are liable of violation of

Before any of these peaceful meetings for a lawful purpose
domicile under Article 130. may be held in a public place, there must be a permit
Article 130 provides for an hierarchy of witnesses coming from the local authority of the place. The permit is
who must be present in the conduct of the search. only to regulate the said meeting and not to prohibit it.
The law says it must witnessed by the owner of Regulate as to the time, place and to the date, so that the
the house, it is only in the absence of the owner of public would not be in inconvenience.
the house that it must be witnessed by any
member of his family. It is only in the absence of

ARTICLE132 INTERRUPTION OF RELIGIOUS
the owner of the house or any member of his WORSHIP
family that there must be 2 witnesses residing ELEMENTS:
from the same locality. 1. This is committed by an offender who is again
In the problem, the owner of the house was a public officer or employee.
there, the members of his family were there 2. Then there is a religious ceremony or
but, they were not allowed to witness the said manifestations of any religion are about to
search. Therefore, the said search was take place or are going on.
conducted in violation of Article 130 and any 3. That the offender prevents or disturbs the
evidence confiscated will be inadmissible said religious worship or religious ceremony.
against the owner of the house for being fruits If the offender makes us of violence or threats in
of poisonous tree under the exclusionary rule in committing the crime, such use of violence or
Political Law

GALVANTE VS. CASIMIRO
threats would not constitute a separate and
distinct charge. Rather it is considered as an
aggravating or qualifying circumstance which
The Supreme Court says, would mean an imposition of a higher penalty.
There is no such crime as illegal search. So, what
is prohibited only the searching of the dwelling under Article

ILLUSTRATION:
129. But, in case of search under vehicle or any other Q: So what if there is a barrio fiesta and the priest is about
places, there is no such thing as illegal search. The remedy to celebrate the mass. Here comes X and he went to the
is to file an action for damages, a civil action for damages.
Dinty | Manalo | Navarez | Shyu | Tubio Page 24
CRIMINAL LAW 2
priest and point the gun to the priest. Then the priest was ritual, faith or he attempts to damage
about to celebrate the mass. At first the priest did not mind the object of veneration of a certain
him. But X intentionally pointed the gun to the head of the religion. The law says notoriously
priest and said, I will kill you if you will celebrate the mass! offensive, according to Reyes, it
So the priest did not celebrate the mass and all the faithful means that it is offensive to all
went out of the church. What crime if any is committed by kinds of religion. If the same thing
X? would be done to any religion they
A: X is liable for interruption of religious will also be offended.
worship under Article 132. What about the fact
that he pointed a gun at the head of the priest? 3.

That the acts must be notoriously offensive to
Would it constitute a separate and distinct crime of the feelings of the faithful.
grave threats? It will not. The fact that threats The third element requires that the
were employed in the commission of the crime said acts notoriously offensive to the
would only mean the penalty will be imposed in its feelings of the faithful can be
maximum period. It would be considered an committed only (1) in a place
aggravating circumstance in committing the crime devoted to religious worship, or (2)
of interruption of religious worship. BUT, IT WILL during the celebration of any
BRING ABOUT A SEPARATE AND DISTINCT religious ceremony. The law uses
CHARGE FOR GRAVE THREATS OR EVEN the word or therefore, if the act is
UNDER LIGHT THREATS. done in a place devoted to religious

ARTICLE133 OFFENDING THE RELIGIOUS FEELINGS
worship, it is not necessary that
there be a religious ceremony
ELEMENTS: ongoing. Because it can either be
1. Committed by a public officer or employee or with or without a religious ceremony
a private individual. for as long as the place is devoted
The first element provides for the for religious worship.

offender. The offender may be a
public officer or employee or a

ILLUSTRATION:
private individual. This is the only Q: So what if X (A private individual) entered a catholic
crime under Title Two where the church after that the tabernacle was opened and he took
offender can be a private individual. out the chalice and inside the chalice was the host which
From Article 124 to Article 132 under was being received by Catholics during communion. He
Title Two, the offender can ONLY be poured the host in the floor then he destroyed them, spit on
a public officer or employee. The them and stepped on them. Is he liable under Article 133?
only exception is Article 133, A: YES. The act he performed is notoriously
offending the religious feelings offensive to the feelings of the Catholics. If the
wherein the offender can either be a same act is done to the object of veneration of the
public officer or employee or a Buddhists or if the same act is done to the object
private individual. The reason is, of veneration of the Muslims, they will also be
whoever may be the offender, a offended. Therefore, it is notoriously offensive to
public officer or employee or a the feelings of the faithful because even if it is
private individual, there will be the applied to other religions they would be offended
same offense made on the feelings too. And it was done in a place devoted to
of the faithful. religious worship because it is done inside the

2.

The said offender performs acts (1) in a place
church even if no religious ceremony is ongoing.

devoted to religious worship, or (2) during the Q: What if inside the PICC there was this art exhibit
celebration of any religious ceremony. ongoing and one artist, this was a controversy before right?
The second element requires that There was this picture of Jesus Christ and on the picture of
the offender performs acts Jesus Christ he put a representation of a penis on his face.
notoriously offensive to the feelings Is the said artist liable under Article 133 offending the
of the faithful. Acts notoriously religious feelings?
offensive to the feelings of the A: NO. He cannot be liable for offending
faithful are those acts directed religious feelings under Article 133. Because
against their religious dogma, ritual, the PICC is not a place devoted for religious
faith of the religion, or mocks, worship and the art exhibit is not a celebration of a
ridicule, or scoffs of the said dogma, religious ceremony. Therefore, since the last
Dinty | Manalo | Navarez | Shyu | Tubio Page 25
CRIMINAL LAW 2
element is not present even if it offends religious ARTICLE134-A COUP DETAT
feelings, he cannot be held liable under Article 133 ELEMENTS:
for the absence of the 3rd element. 1. That the offender is a person or persons belonging
to the military or police or holding any public office
or employment;
TITLE THREE 2. That it is committed by means of a swift attack
accompanied by violence, intimidation, threat,
CRIMES AGAINST PUBLIC ORDER (Articles strategy or stealth;
134 160)

ARTICLE134 - REBELLION OR INSURRECTION
3. That the attack is directed against duly constituted
authorities of the Republic of the Philippines, or
any military camp or installation, communication
ELEMENTS: networks, public utilities or other facilities needed
1. That there must be (a) public uprising, and (b) for the exercise and continued possession of
taking arms against the Government power;
2. That the purpose of the uprising or movement 4. That the purpose of the attack is to seize or
is either
a. to remove from the allegiance to said diminish state power.

Committed by any person or persons belonging to the


Government or its laws:
1. the territory of the Philippines or military or police or holding any public office or
any part thereof; or employment, with or without civilian support, carried
2. any body of land, naval or other out singly or simultaneously anywhere in the
armed forces; or Philippines for the purpose of seizing or diminishing
b. to deprive the Chief Executive or
Congress, wholly or partially, of any their
powers or prerogatives.


state power.

The essence of COUP DETAT is a swift attack


The essence or the gravamen of REBELLION is : directed against the duly constituted authorities, with or
- The armed uprising against the Philippine without civilians.
Government. So it is a public uprising with the taking
up of arms. AN ARMED PUBLIC UPRISING.
In case of Rebellion, it can be committed by any REBELLION COUP DETAT

person, or with a participation of the public.

THE LEADERS - Any person who


E s s e n c e a n A r m e d Essence swift attack
public Uprising against the against the duly constituted
(a) promotes Government authorities
(b) maintains or
(c) heads a rebellion or insurrection Crime of the Masses, it It can be committed with or

THE PARTICIPANTS Any person who
involves a multitude of without the participation of
people the public because it says,
with or without civilian
(a) participates support, provided it has
(b) executes the commands of others in rebellion or been committed by any
insurrection member of the military, the
police or those holding
public office or
employment.

Purpose Overthrow the Purpose only to diminish


Government of the state power, to destabilize
Philippines and replace it the government, not
with the Government of the entirely to overthrow the
Rebels government.

Can only be committed by Can be committed not only


m e a n s o f f o r c e a n d by means of force and
violence violence but also by means
of intimidation, threat,
strategy or stealth

THE LEADERS - Any person who
(a) leads
(b) directs or
(c) command others to undertake a coup detat

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CRIMINAL LAW 2
THE PARTICIPANTS Any member of the Government crime such as murder, if the commission
who of the crimes was done in furtherance of
(a) participates Rebellion. Therefore, it is necessary that
(b) executes the commands of others in undertaking a coup there must be evidence shown in what
way the said killing has promoted,
detat

Any person who is not in the Government service who
fostered the idea of the Rebels. Absent
any connection with the commission of
the common crime and the furtherance of
(a) Participates rebellion, the appropriate charge is only
(b) Supports murder, homicide, arson or physical
(c) Finances
(d) abets or
injuries as the case maybe.

A: In the case, the proper charged would be


(e) aids in the undertaking of a coup detat

What if common crimes are committed in the
murder. There was no evidence showing in what
way the said NPA has promoted the ideas of the
course of Rebellion? Rebels in killing of the said police officer. Absent of
Common crimes committed in furtherance of, that evidence, it would be a charge of murder and
incident to or in connection with Rebellion are not rebellion.
considered as ABSORBED in the crime of Rebellion is a continuing crime. Therefore, these
Rebellion known as the THEORY OF NPA who rebelled against the Government, to
ABSORPTION IN REBELLION.

THEORY OF ABSORPTION IN REBELLION


overthrow the Government, that one time uprising
is sufficient, they are already considered as rebels
because it is a continuing offense.
Whenever in the course of committing rebellion,
murder, homicide, arson, physical injuries, other
GONZALES v ABAYA
common crimes are committed, and these
common crimes are in furtherance to, incident to, Senator Trillanes and company was charged with 2 crimes,
in connection with Rebellion is considered as coup detat in the RTC of Makati and the violation of articles
absorbed in the crime of Rebellion. Therefore, of war, particularly acts of unbecoming of an officer and a
only one charge of Rebellion should be charged gentleman filed before the military court. While the case
against the said offender.

ENRILE v SALAZAR
was pending in the RTC of Makati, the lawyer filed a
petition, a motion, saying that the violation of the articles of
war should be absorbed by the case filed before the RTC of
Senator Juan Ponce Enrile was charged with the Following
Makati. Can Coup detat absorb the violations of article of
crimes:
war?
1. charged with Rebellion
2. charged with multipleMurder The Supreme Court ruled in the NEGATIVE.
3. Multiple frustrated murder According to the Supreme Court, for the theory of
4. violation of PD 1829 obstruction of Justice because absorption to apply, it is necessary that both
he harbored or concealed then Colonel Gregorio cases must be heard or may be heard before
the same civilian court.


Honasan.

What did the Supreme Court say?


In this case, the coup detat must be heard in a
civilian court, RTC of Makati, whereas the
violations of the articles of war can be heard
The Supreme Court said: only before a military court. Therefore, one
only one charge and it should be rebellion. The cannot absorb the other.
violation of PD 1829, the multiple murder and Second reasoning given by the Supreme Court,
multiple frustrated murder are absorbed in for the theory to absorption to apply, it is
Rebellion under the theory of absorption in necessary that both crimes are punished by the
Rebellion. same penal statute
The Supreme Court further said that although Third reasoning, violation of the articles of war is
violation of PD 1829 is a violation of a special sui generis. It is a kind of its own. Nothing
compares to it. Therefore, it cannot be
penal law, still if it is committed in furtherance of
Rebellion, it can still be absorbed in the crime of
Rebellion.

absorbed by any other crime.


ILLUSTRATION:
ARTICLE136 CONSPIRACY AND PROPOSAL TO
C O M M I T C O U P D E T A T, R E B E L L I O N O R
INSURRECTION
Q: What if a police officer was on his way to the office, There is CONSPIRACY TO COMMIT
suddenly here comes a member of the NPA, he saw the REBELLION when two or more persons come
police officer and shot him. What crime is committed? is it into an agreement concerning the commission of
Rebellion or murder? rebellion (to rise publicly and take arms against
Rebellion can only be absorbed common the Government to any of the purposes of

Dinty | Manalo | Navarez | Shyu | Tubio Page 27


CRIMINAL LAW 2
rebellion) and decide to commit it. purposes of sedition can either be political in nature or
There is PROPOSAL TO COMMIT REBELLION
when a person who decides to commit rebellion
proposes its execution to another person it is

social in nature.

The purpose of sedition is not to overthrow the


necessary that the other person would not agree, government but to go against what the
if that person agree, then it is already conspiracy government wants to implement. To go against a
to commit rebellion new law, an administrative order or public officer
Conspiracy is a bilateral act which involves two or or employee.
more persons, whereas proposal is a unilateral act It is a disturbance, a commotion against the lawful
only one person decides to commit the crime and command of the authority.
he proposes its execution to another person. The rallies that you see everyday, the rallies
There is a conspiracy to commit coup detat the same against a new law to be implemented, they are
way of committing it. Also the proposal to commit coup considered as ordinary protest or rallies, but the


detat.

A R T I C L E 1 3 8 I N C I T I N G TO R E B E L L I O N O R
moment they are carried outside of legal methods,
by means of force and violence, they will become

INSURRECTION
Inciting to Rebellion is a crime under the Revised Penal

to be a seditious act.

So, sedition is like any other rally, it only becomes


Code. seditious because there is the public uprising, done
ELEMENTS: tumultuously, by means of force, violation or any other
1. It is committed by any person who does not take
up arms or is not in open hostility with the
means outside of the legal method.

Government REBELLION SEDITION


2. he incites others to uprise for any of the purposes
of rebellion (incite others to the execution of any of
the acts of rebellion) Both have a public uprising
3. by means of speeches, proclamations, writings,
emblems, banners or other representations Objective Political in Objective can either be
tending to the same end. nature Political or social in nature
There is NO SUCH CRIME AS INCITING TO COUP To o v e r t h r o w t h e
DETAT.

SEDITION (ARTICLE 139)


Government and to replace
the it with the Government
of the Rebels
ELEMENTS:
1. That the offender rise (1) publicly, and (2)

ARTICLE141 CONSPIRACY TO COMMIT SEDITION
tumultuously;
2. That they employ force, intimidation or other There is a crime conspiracy to commit sedition but
means outside of legal methods; not proposal to commit sedition. A proposal to
3. That the offenders employ any of those means to commit sedition is not a punishable act under the
attain any of the following objectives:
a. To prevent the promulgation or execution
of any law or the holding of any popular
RPC.

ARTICLE142 INCITING TO SEDITION


election ELEMENTS:
b. To prevent the National Government, or 1. The offender is not a participant (does not take
any provincial or municipal government, direct part) in the crime of sedition
or any public officer thereof from freely 2. He incites others to uprise for any of the purposes
exercising its or his functions, or prevents of sedition
the execution of any administrative order; 3. By means of speeches, proclamations, writings,
c. To inflict any act of hate or revenge upon emblems, cartoon, banners, or other
the person or property of any public

d.
officer or employee;
To commit, for any political or social end,

representation tending to the same end.

Inciting to Rebellion or Inciting to Sedition can only


any act of hate or revenge against be committed by a person who is not a participant
private persons or any social class; and in the Rebellion or the Sedition, because if he is a
e. To despoil, for any political or social end, participant in the Rebellion or Sedition, the
any person, municipality or province or appropriate charge is Rebellion or Sedition as the
the National Government of all its case may be. Not merely inciting to Rebellion or
property or any part thereof
There is a public uprising again but no taking up of
arms but it is done tumultuously by means of

Sedition.

Inciting to Sedition is committed not only by


force, intimidation or any other means outside the inciting others for any of the purposes of sedition.

legal methods.

Therefore, based on the objects of sedition, the


Different acts of inciting to sedition:
I.Inciting others to the accomplishment of any of the
acts which constitute sedition by means of
Dinty | Manalo | Navarez | Shyu | Tubio Page 28
CRIMINAL LAW 2
speeches, proclamations, writings, emblems, father, the firearm was recovered. What crime or crimes
etc. would you file against the son?
II.Uttering seditious words or speeches which tend A: The son is liable of the crime ofPARRICIDE,
to disturb the public peace for having killed his own father. The use of
III.Writing, publishing or circulating scurrilous libels
against the Government, or any of the duly unlicensed firearm shall be considered as a
constituted authorities thereof, which tend to SPECIAL AGGRAVATING CIRCUMSTANCE.
Because as held by the Supreme Court, the use
disturb the public peace.

USE OF UNLICENSED FIREARM (PD 1866 as amended


of the word murder is in its generic sense,
therefore it includes any kind wherein the
by RA 8294 otherwise known as the laws on illegal/ imposable penalty is RECLUSION PERPETUA
unlawful possession, manufacture, dealing in, TO DEATH such as Parricide.
acquisition or disposition of firearms, ammunition or
explosives or instruments used in the manufacture of

Under Section 1 of PD 1866 as amended, it also provided
firearms, ammunition or explosives)

See: People vs. Ladjaalam and Celino Sr. vs. People
that a person can only be held liable of illegal possession of
unlicensed firearm provided that no other crime was
committed by the person arrested. It is necessary that no
Under Section 1 If the use of an unlicensed other crime was committed by the person arrested.

firearm is in furtherance of, incident to, or in
connection with the crime of rebellion or sedition,

PEOPLE VS. LADJAALAM
or attempted coup dtat, such use of unlicensed The police officers armed with a warrant of arrest
firearm shall be absorbed in the crime of rebellion, went to the house of WalpanLadjaalam to effect
sedition or attempted coup dtat.

Therefore, the use of unlicensed firearm in case of
the warrant of arrest. WalpanLadjaalam, upon
seeing the police officers, fired shots at the
officers. Hence, he was charged with direct
rebellion or sedition, or attempted coup dtat will assault with multiple attempted homicide. Aside
not bring about a separate or distinct charge. from that, he was also charged with illegal
There is only one crime that is rebellion or possession of unlicensed firearms. He was
sedition, or attempted coup dtat. The use of convicted of both crimes before the Regional Trial
unlicensed firearm is not even an aggravating Court. On appeal before the Supreme Court, SC
circumstance. It is absorbed in the crime of said the illegal possession of firearms case should
rebellion or sedition, or attempted coup dtat.
Under the same Section 1 of PD 1866 as
be dismissed. He should be acquitted in the said
case because he committed another crime, and
that is, DIRECT ASSAULT WITH MULTIPLE
amended by RA 8294, if the use of an unlicensed ATTEMPTED HOMICIDE.
firearm is in the crime of homicide or murder, as
the case may be, the use of unlicensed firearm

What about in the case of CELINO, SR. VS. PEOPLE?
shall be considered as an aggravating In this case, it was election time, there was a
c i r c u m s t a n c e . S o i n t h e l a w, i t i s a n COMELEC gun ban. A person was found in
AGGRAVATING CIRCUMSTANCE.
W H AT K I N D O F A G G R AVAT I N G
possession of an unlicensed firearm. Arrested, he
was charged of 2 crimes: (1) violation of the
COMELEC gun ban, and (2) illegal possession of
CIRCUMSTANCE? unlicensed firearms. During the arraignment for
As decided by the Supreme Court in number the violation of the COMELEC gun ban, he
of cases, it is a SPECIAL AGGRAVATING pleaded not guilty. However, during the
CIRCUMSTANCE which cannot be offset by arraignment for illegal possession of an
any mitigating circumstance. The Supreme unlicensed firearm, he filed a motion to quash the
Court also held that the use of the word information. According to him, he cannot be
homicide or murder under Section 1 is in its charged of illegal possession of an unlicensed
generic sense, therefore, whatever be the firearm because the law says that you can only be
kind of killing for as long as the unlicensed charged of illegal possession of an unlicensed
firearm is used, such use of unlicensed firearm provided that no other crime is committed
firearm is considered as a SPECIAL by the person arrested. He said here, he
AGGRAVATING CIRCUMSTANCE.

ILLUSTRATION:
committed violation of COMELEC gun ban,
therefore, he can no longer be liable for violation
of PD 1866 that is Illegal Possession of
Q: So if a son had an argument with his father, in the Unlicensed Firearm.
course of the argument with his father, the son killed the IS HIS CONTENTION CORRECT?
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CRIMINAL LAW 2
His contention is wrong because according committees or divisions thereof, or of any
to the Supreme Court, when the law says provincial board or city or municipal council or
provided that no other crime is committed by board
the person arrested, the word committed The offender either disturbs any of such
means that there is already a final proceedings or he behaves while in the presence
determination of guilt a final conviction of of such proceedings in such a manner as to
guilt based on a successful prosecution or a interrupt the proceedings or impair the respect
judicial admission. Therefore, the word due it.
committed means he has already been held So here, it is necessary that the offender, who was
guilty beyond reasonable doubt a final present in the meeting, either he disturbs the said
judgment. proceeding, or while being there, he performed an

In the case of CELINO SR., he was not yet convicted. He
act which impair the respect due to them or which
interrupted the said proceeding
was only being prosecuted. He was only being charged of
illegal possession of unlicensed firearm. Therefore, both

ILLUSTRATION:
cases can proceed. He can be charged both of illegal Q: The FREEDOM OF INFORMATION BILLwas on the
possession of unlicensed firearms and violation of committee level. It was votation time. On the right side of
COMELEC gun ban. However, the moment he is convicted the said place or meeting, there were some observers or
of violation of COMELEC gun ban, he should be acquitted people who were coming from the media. On the left side,
of illegal possession of unlicensed firearm, because this there were ordinary people who do not agree on the
time, the law says provided that no other crime is freedom of information bill. It was time to vote for the
committed by the person arrested. Therefore, a final passage of Freedom of Information bill, the members of the
conviction is necessary before the illegal possession committee were voting when suddenly some members of
of unlicensed firearm may be dismissed or he may be the media immediately pulled out a placard and shouted:
acquitted of the same. So that is the relation of PD 1866 YES TO FREEDOM TO INFORMATION BILL!Are they
to sedition, rebellion and coup dtat. liable of any crime?

ARTICLE143 ACTS TENDING TO PREVENT THE
A: YES. They are liable of disturbance of
proceedings under Article 144. Because while
MEETING OF THE ASSEMBLY AND SIMILAR BODIES in the presence of the said meeting, they behaved
Punishes acts preventing the meeting of Congress in such a manner as to interrupt the proceedings,
The crime is committed if there is a projected or or impair the respect due it.

actual meeting of the Congress and the offender,
by means of force or fraud, prevents such meeting

ARTICLE145 VIOLATION OF PARLIAMENTARY
The offender here is any person: he may be a IMMUNITY
private individual, public officer or employee Punishes violation of parliamentary immunity
It is necessary that the offender prevents the There are TWO (2) ACTS PUNISHED IN
meeting of the Congress or any of its committees, VIOLATION OF PARLIAMENTARY IMMUNITY:
or constitutional committees or any provincial city 1. Penalty: Prision Mayor committed
or municipal board. by any person who by means of

ILLUSTRATION:
force, intimidation, fraud or threat, or
any other means and by said means,
Q: So what if there is a meeting of the Sangguniang he tried to prevent any member of
Panlungsod. It was being presided by the Vice Mayor as the Congress either from attending
the presiding officer of the city council. During the session any meeting of the Congress or its
of the SangguniangPanlungsod, here comes the mayor committees or subcommittees,
together with some police officers. They entered the constitutional commissions or
session of and disturbed and prevented the said meeting committees or divisions thereof ,
by force. What crime, if any, was committed? from expressing his opinions or
A: It is the violation of Article 143 ACTS casting his vote
TENDING TO PREVENT THE MEETING OF can be committed by
CONGRESS AND SIMILAR BODIES. anyone (private

ARTICLE144 DISTURBANCE OF PROCEEDINGS
individual, public officer
or employee)


Punishes disturbance of proceedings
In disturbance of proceedings, there is a meeting 2.

Penalty: PrisionCorreccional can
of Congress or of any of its committees or only be committed by a public officer
subcommittees, constitutional commissions or or employee who shall, while the
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CRIMINAL LAW 2
Congress is in regular or special period, therefore it is below Prision Mayor, hence,
session, arrest or search any the Congressman cannot be arrested while the
member thereof, except in case such Congress is in its regular or special session.
member has committed a crime
punishable under this Code by a

Q: What if Congressman A is charged with the crime of
penalty higher than prision mayor. attempted homicide. The fiscal found probable cause, the
Offender should be case was filed in court. The court agrees with the fiscal and
only a public officer or a warrant of arrest was issued against Congressman A.
employee and not any The warrant of arrest was issued by the judge on
individual because any December 24, the police officers had possession of the
individual cannot make said warrant of arrest on December 25, on Christmas Day.
a search or arrest a While Congressman was inside his house, the police
member of the officers arrived and arrested the said Congressman for
Congress having been charged of the crime of Attempted Homicide.
It is necessary that at The penalty for Attempted Homicide is Prision Correcional
the time of the arrest, because under Article 249, the penalty for Homicide is
the member of Reclusion Temporal and the attempted is two degrees
Congress, the lower, one degree is Prision Mayor, two degrees lower is
Congress must be in Prision Correcional, therefore, the penalty to be imposed in
its regular or special this Attempted Homicide is Prision Correcional. So the
session. police officers armed with a warrant of arrest went inside
Likewise, it is the house of the Congressman and arrested him on
necessary that the said Christmas Day, December 25, are the police officers liable
member of Congress for violating parliamentary immunity under Article 145?
has committed a crime A:YES, they are liable for violation of
which is not higher Parliamentary Immunity.Because during
than Prision Mayor. Christmas break or during Holy week break or any

ILLUSTRATION:
other kind of break, Congress is still in its regular
session. Because as stated in Political Law, in
Q: How about in the case of Panfilo Lacson? Constitution, when does Congress start? 4th
A: The case against Sen. Lacson was fortunately Monday of July, that is when the President states
dismissed by the Court of Appeals. But let us say, his SONA. When does Congress ends? 30 days
it is not dismissed by the Court of Appeals, he was before the start of Congress. Therefore, during
being charged of double murder Dacer-Corbito Christmas break or during Holy week break or any
double murder slay. He went into hiding. Let us other break, the Congress is still in its regular
say that he made his appearance. Can he be session. Any arrest of a member of Congress
arrested even if the Congress is in regular or during this time, if the said member of Congress
special session? YES. Because the crime has not committed a crime where a penalty is
committed by him is punishable by a crime higher than Prision Mayor, shall be punished as
committer higher than prision mayor. It is violation parliamentary immunity under Article 145.
punishable by reclusion perpetua. Therefore, had
it not been dismissed by Congress and he

ARTICLE146 ILLEGAL ASSEMBLY
apparently appeared and the Congress is in There are 2 KINDS OF ILLEGAL ASSEMBLY:
regular or special session, he could be arrested. I.Any meeting attended by armed persons for the

Q: What if a Congressman is charged with the crime of libel
purpose of committing any of the crimes
punishable under this Code
before the RTC. The RTC issued a warrant of arrest ELEMENTS:
against the Congressman. The police officers armed with a 1. That there be a meeting, a
warrant of arrest went inside the walls of Congress and gathering or group of
they arrested the said Congressman. Are the police officers persons, whether in fixed
liable under this Article? place or moving
A:YES, they are liable for violation of 2. The meeting is attended by
parliamentary immunity under the second. armed persons
Because at the time the Congress is in its regular 3. The purpose of the meeting
session and they arrested the said Congressman, is to9 commit any of the
Libel under Article 355 is punishable only by crimes punishable under
Prision Correcional in its minimum and medium the Code
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CRIMINAL LAW 2

II.Any meeting in which the audience, whether
In case of illegal assembly, the organizers or
leader of the meeting will be criminally liable,
armed or not, is incited to the commission of as well as the persons merely present in the
the crime of treason, rebellion or insurrection, said meeting.
sedition or assault upon a person in authority Under Article 146, first paragraph, last
or his agents sentence it is provided that persons who are
ELEMENTS: merely present at the meeting shall be
4. There is a meeting, a punished by Arresto Mayor, unless they are
gathering or group of armed, the penalty shall be Prision
persons, whether in fixed Correcional, therefore, whether you are armed
place or moving or not, you can be held criminally liable for
5. The audience, whether illegal assembly, it will only differ in the penalty.
armed or not, is incited to o If you are armed - Prision Correcional
the commission of the o Not armed - Arresto Mayor (lower)
crime of treason, rebellion,
or insurrection, sedition or

ARTICLE147 ILLEGAL ASSOCIATIONS
direct assault WHAT ARE ILLEGAL ASSOCIATIONS?
The said gathering of 1. Associations totally or partially organized for the
men or men, may or purpose of committing any of the crimes
may not be armed. It is punishable under the Code
not required that they 2. Associations totally or partially organized for some
be armed. Provided purpose contrary to public morals
that the audience In case of illegal associations, it is necessary that
where incited to there be a formation of a group, not merely a
commit treason, meeting and in the said association, not only the
rebellion, or members of the association should be penalized, but
insurrection, sedition or also the founders, directors and president of the said
assault upon a person association or organization should be held criminally
in authority or his liable.

agents)
ILLEGAL ILLEGAL
In case of illegal assembly, it is only
ASSEMBLY ASSOCIATION
necessary that there be a meeting, the
meeting must be attended by armed persons, the purpose will the purpose of the
under the first mode. In here, when it says always be a violation association may be for
armed persons, it is not required that all under the RPC. Even purpose of committing
those persons present in the meeting must be under the second crimes violating the
with arms. It suffices that one, two or more, or mode inciting to RPC or even in
some of them would be with arms. commit treason, violation of special
When we say arms, it does not only mean rebellion, or penal laws, provided
firearms, it refers to any things, knives, stones, insurrection, sedition that it is in violation of
anything which can cause violence or injury to or assault upon a special penal law, it
another person. person in authority or must be against public
It is necessary however, that the purpose of his agents morals
the meeting is unlawful that is to commit any
of the crimes punishable under the RPC. Necessary that there Not necessary that
Under the second mode of committing illegal is an actual meeting there be an actual
assembly, again there is a meeting, and there or assembly meeting
is no requisite that those in attendance must Act of forming or
be armed, therefore, they may or may not be Meeting and the
organizing and
with arms. But it is requires for the crime to attendance at such
membership in the
arise that the audience must be incited to meeting are the acts
association are the acts
commit treason, rebellion, or insurrection, punished
punished
sedition or assault upon a person in authority
or his agents. Otherwise, the crime will not
ILLUSTRATION:

arise.

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CRIMINAL LAW 2
Q: So what if A, B and C gathered 20 persons and those who are not armed. Prision Correcional if
proposed to them the idea of committing simultaneous they are armed
bank robbery all over Metro Manila, so they will commit Arresto Mayor if they are not armed
robbery in 4 banks simultaneously. So these 20 men
agreed to the said commission of bank robbery, and after

Q: What if A, B and C gathered 1000 men and women.
they have come to the agreement, here comes the police, Their intention was to incite the people to uprise against the
the police got a tip from an informer, the police arrived and government to overthrow the present administration. These
they were all arrested. What crime or crimes if any should 1000 men and women arrived in the said designated place.
they be charged of? These 1000 men and women were arranging the chairs
A:They could not be charged of any crime. when suddenly here comes the police officers who got a tip
There is no such thing as conspiracy to commit about the said meeting. The police officers immediately
robbery. Because in robbery, robbery is only a arrested A, B and C and the 1000 men and women. What
mode of committing the crime, it is not a crime by crime or crimes if any may these 1000 men and women be
itself, unlike in case of treason, rebellion, there is charged of?
such a crime of conspiracy to commit treason, A:They have not committed any crime. It
conspiracy to commit rebellion, and they are cannot be under the first act of illegal assembly
punished by such acts. There is no such crime as because the said 1000 men and women were not
conspiracy to commit robbery. So here, conspiracy armed. It cannot be under the second act of illegal
is a mere preparatory act which is not yet assembly, because for one to be liable under this
punishable by law. For them to be punished, it is act, note that even if not all of them need not to be
necessary that they must at least perform an overt armed, it is required that the audience must be
act directly connected to bank robbery. So here, incited to commit treason, rebellion, or
they just merely conspired to commit robbery insurrection, sedition or assault upon a person in
without the performance of any overt act directly authority or his agents. Here the intention of A, B
connected to robbery. Hence, they are not and C is to incite them to commit rebellion, BUT
criminally liable. What they did is only a there was no statement in the problem that they
preparatory act not directly connected to robbery. were indeed incited to commit rebellion. In fact,
Q: Why not illegal assembly? they were just arranging the chairs, the meeting
A: Because in the problem, it is not mentioned was only about to begin. Therefore, they have not
that the persons were armed. Also, the crime of yet committed any crime.
bank robbery is not among the crimes mentioned
in the second act.

Q: What if the jueteng lords of Southern Tagalog gathered,
Q: Why not illegal association? they gathered in Batangas. So their purpose was to define
A: Because what they did was only a mere ways and means to propagate jueteng considering that the
meeting, it was not an organization or association. government would not want to legalize jueteng, their
Therefore, they are not liable of any crime. decision was define ways and means to propagate jueteng

-

LET US ADD FACTS TO THE PROBLEM.


by using minors, those 15 years of age or below as
kubrador in the case of jueteng, so that was the purpose of
Q: Let us say A, B, and C gathered 20 men 10 were their meeting. In the said meeting, they elected their would-
armed and the other 10 were not armed. Again, they be president, vice president, treasurer, etc. So they formed
conspired and agreed to commit simultaneous bank an organization, an association and they said that at the
robbery all over Metro Manila. After their agreement here end of the month, they would meet and define ways and
comes the police officers, the police officers arrested them. means to propagate jueteng. The police officers arrived and
Of what crime or crimes may the police officer file against they were all arrested. But they are not with arms, it is not
them? mentioned that any of them were with arms.
A:They should be charged of illegal assembly A:The crime committed is illegal association
under the first act. They have the gathering of under Article 147. It is an association totally and
men and their purpose is to commit a crime partially organized for some purpose contrary to
punishable under the RPC which is robbery and it public morals. Jueteng is in violation of PD 1602,
is attended by armed persons, even if only 10 illegal gambling as amended and it is against
were with arms, still it is considered as illegal public morals because it has not yet been
assembly. Because the law does not require a legalized by law.
number as to the persons who should be armed.
So, all of them should be held criminally liable.

ARTICLE148 DIRECT ASSAULT
A, B and C, as leaders or organizers of the said The two forms in committing the crime of direct assault
meeting, are liable for illegal assembly. Those under Article 148 are:
persons who are armed, the penalty is higher than
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CRIMINAL LAW 2
Without public uprising, by employing FORCE or There is no public uprising
I.
INTIMIDATION for the attainment of any of the
purposes enumerated defining the crimes of II.
3.

Without public uprising, by ATTACKING, by
rebellion and sedition. EMPLOYING FORCE, or by SERIOUSLY
The intention of the offender is to commit INTIMIDATING or SERIOUSLY RESISTING any
any of the purposes of rebellion or sedition. person in authority or any of his agents, while in
PURPOSES OF REBELLION: the performance of official duties, or on the
1. To remove from the allegiance to the occasion of such performance.
Government or its laws: Most popular form of direct assault
a. t h e t e r r i t o r y o f t h e ELEMENTS:
Philippines or any part 1. The offender
thereof; or a. Makes an attack,
b. any body of land, naval, or b. Employs force,
other armed forces; or c. Makes a serious intimidation, or
2. To deprive the Chief Executive or d. Makes a serious resistance
Congress, wholly or partially, of any of If the offended party is a
their powers or prerogatives. person in authority, the
PURPOSES OF SEDITION: attack or the employment of
1. To PREVENT the promulgation or force need not be serious
execution of any law or the holding because under Article 148, the
of any popular election; mere act of laying of hands in
2. To P R E V E N T t h e N a t i o n a l the person in authority is
Government, or any provincial or already qualified direct assault.
municipal government or any public Therefore, the mere act of
officer thereof from freely exercising pushing a person in authority is
its or his functions, or PREVENT the already qualified direct assault
execution of any administrative because the offender already
order; laid hands upon a person in
3. To INFLICT any act of hate or authority. Hence, it need not be
revenge upon the person or property s e r i o u s . H o w e v e r, i f t h e
of any public officer or employee; offended party is a mere
4. To COMMIT, for any political or agent of a person in
social end, any act of hate or authority, it is necessary that
revenge against private persons or the employment of force must
any social class; be serious. The reason is that
5. To DESPOIL, for any political or in order to show defiance of
social end, any person, municipality, law against a mere agent of
province, or the National person in authority, it is
Government of all its property or any necessary that the attack or
part thereof force employed must be
NOTE: The law says that there is no serious in nature.
public uprising, therefore whenever there If what has been done is
is actual commission of rebellion or intimidation or resistance, to
sedition, direct assault can never be amount to direct assault, it
committed because the element of direct must always be serious
assault in whatever form is that there be whether the offended party is a
no public uprising, on the other hand, a person in authority or a mere
necessary element in the crime of agent of a person in authority.
sedition or rebellion is there be public
uprising.

The second element requires that the

ELEMENTS:
2.
assault is against a person in authority or
an agent of a person in authority
1. T h e o f f e n d e r e m p l o y s f o r c e o r Who are these so-calledpersons in
intimidation authority? (Art 152)
2. AIM of the offender is to attain any of the 1. Any person directly vested
purposes of the crime of rebellion or any with jurisdiction, whether as
of the objects of the crime of sedition an individual or as a

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CRIMINAL LAW 2
member of some court or public reason or whatever
government-owned and reason, there is always
controlled corporation, direct assault. There is
board or commission defiance of authority
2. A barangay captain and a
barangay chairman because the person in
3. Teachers, professors, or authority or his agent is
persons charged with the actually engaged in the
supervision of public or duly performance of official duty
recognized private schools, But if the person in authority
colleges or institutions or his agent is not engaged
4. Lawyers while engaged in in the performance of his
their professional duties or
official duty at the time of the
while in the act of their
assault, motive on the part of


professional duties

Who is an agent of a person in


offender becomes material.
You have to determine the
authority? (Art 152, par 2) motive on the part of the
A person who, by direct offender. If the motive on the
provision of law, by election part of the offender is a
or by appointment by personal vendetta, the crime
c o m p e t e n t a u t h o r i t y, i s c o m m i t t e d i s m u r d e r,
charged with the homicide, serious physical
maintenance of public order injuries or less serious
and the protection and physical injuries, as the case
security of life and property may be. But if the motive is
( e . g . p o l i c e o ff i c e r, by reason of the authorities
councilors). Likewise, it is past performance of his
stated that any person who official duty, the crime
comes to the aid of a person committed is still direct
in authority is deemed an assault.
agent of person in authority. The phrase on occasion of

3.

The third element provides that at the
such performance means
that the said assault was by
time of the assault, the person in reason of the past
authority is engaged in the performance performance of official duty.
of his official duties or the attack was on So on occasion means it is
occasion of such performance of official by reason of the past
performance of official duty.
duty.
Direct assault can be
4.

The fourth element provides that the
committed whether the
public officer or employee. offender knows him to be a person in
Direct assault can be authority or an agent of a person in
committed whether the authority. So it is that the offender knows
public officer or agent of a him to be a person in authority because
person in authority is in the otherwise, he cannot be said that he
engaged in the performance defied the law, he defied the authority. In
of his official duties or on the first place, he didnt know that the
occasion of such person he is attacking is a person in
performance. authority or an agent of a person in
authority.
If a person in authority or his
agent is engaged in the
5.

The fifth element requires that there be
performance of his official
no public uprising.
duty at the time of the
assault, regardless of the
QUALIFIED DIRECT ASSAULT
motive of the offender, direct
assault will always arise. There are three circumstances which will qualify direct
Whether there is a personal assault:
vendetta, whether it is a
Dinty | Manalo | Navarez | Shyu | Tubio Page 35
CRIMINAL LAW 2
1. When the assault is committed by means of a city hall employees. Suddenly here comes X. X went near
weapon; the mayor and shot the mayor on the head. The mayor
WEAPON - firearms, knives or any other died. What crime is committed by X?
items which will inflict injury. A: QUALIFIED DIRECT ASSAULT WITH

2.

When the offender is a public officer or employee;
MURDER. The city mayor was engaged in the
performance of his official duty at the time of the
So when a public officer or employee attacks assault therefore it is direct assault. Because the
a person in authority, it is always qualified city mayor was engaged in the performance of his

3.

direct assault.

When the offender lays hands upon a person in


official duty regardless of the motive of X, even if it
is by mayors past performance of official duty or
authority by reason of personal vendetta, regardless of the
Will only lie if the laying of hands is upon a motive of X, the offender, since the mayor is
person in authority. engaged in the performance of his official duty, it


Any of these three circumstances will qualify direct assault.

NOTE: The first two qualifying circumstance affects both a


is direct assault.
Now, the mayor died. Therefore there is a
resulting felony of murder because obviously there
person in authority or agent of a person in authority. was treachery; therefore, it is direct assault with
However, the third qualifying circumstance (laying hands murder.
upon a person in authority) will only lie if the offended party Now, the offender made use of a weapon, he
is a person in authority. Mere laying of hands to an agent of made use of a pistol gun, a firearm which is a
person in authority is not qualified. It will only qualify if the qualifying circumstance, therefore, the crime
laying of hands is upon a person in authority.

COMPLEX CRIME OF DIRECT ASSAULT:
committed is QUALIFIED DIRECT ASSAULT
WITH MURDER.
(EXAM TIP: the corresponding explanation must
Whenever the crime of direct assault is committed, and be completewhat is the qualifying circumstance,
there is a resulting felony (e.g. death, physical injuries), you what is direct assault, what is a complex crime)
always complex it.
Under Article 48, you should always complex it because

Q: What if the city mayor has just attended a Sunday mass.
from a single act, two or more grave or less grave felonies He and his wife and children were getting out of the church
had resulted. Under Article 48, Book I, you have to complex when suddenly here comes X. X, onboard the motorcycle
it. So it could be: went straight to the city mayor and fired at the head of the
o Direct assault with Murder city mayor. The city mayor died. It was found that X was a
o Direct assault with Homicide former employee of the city hall, who was dismissed by the
o Direct assault with Serious Physical city mayor because he engaged in an anomalous
Injuries transaction. What crime is committed by X?
o Direct assault with Less Serious Physical A : Q U A L I F I E D D I R E C T A S S A U LT W I T H
Injuries



But if the resulting felony is only SLIGHT
MURDER.The city mayor was not engaged in the
performance of his official duty. Since the city
mayor was not engaged in the performance of his
PHYSICAL INJURIES, you cannot complex it. It is official duty, he is a person in authority, you have
prohibited under Article 48 because:

1. It is only a light felony. Under Article 48, you
to know the reason, the motive of the offender.
The offender was a city hall employee who was
dismissed by the city mayor, therefore the motive
can only complex two or more grave or less was by reason of the past performance of the said
grave felonies but not a light felony. person in authority. So it is by reason of the past
2. Slight physical injury or light felony is performance of his official duty, the attack, the
already absorbed in direct assault because firing was done on occasion of such performance
whenever you assault somebody, definitely, of official duty therefore the crime committed is
somehow, any injury would happen to him. direct assault.
That is why it is already absorbed in direct The mayor died. Obviously there was treachery
assault.

ILLUSTRATION:
therefore it is direct assault with murder.
The offender made use of a firearm, which is a
qualifying circumstance in direct assault therefore
Q: What if the city mayor attended the flag ceremony. It it is QUALIFIED DIRECT ASSAULT WITH
was a mandate. So there was this flag ceremony attended MURDER.
by the city mayor. After the flag ceremony, the mayor went
to the platform and was making an announcement to the

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CRIMINAL LAW 2
Q: What if in the same problem, here comes X, the mayor felony. Therefore it is only direct assault not
was coming out of the church, X shot the city mayor. Now X complex. The said accused laid hands upon the
happened to be a former gardener who was dismissed court interpreter, would you qualify it? No,
from the service of the household because he performed a because he is mere agent of person in authority.
wrongful act while gardening. Therefore his reason was a Therefore the crime committed is only direct
personal vendetta. What crime is committed by X? assault.
A: X committed a crime ofMURDER. Obviously,
there was treachery on the part of X.

ARTICLE149 INDIRECT ASSAULT
It is not direct assault because the mayor was Indirect assault can be committed only when a
not engaged in the performance of his official duty direct assault is also committed
and the reason behind the assault was personal ELEMENTS:
vendetta. Therefore it cannot be said that the 1. An AGENT of a person in authority is the victim
attack was on occasion of such performance of of any of the forms of direct assault defined in
official duty. Article 148.

Q: What if the judge has just rendered judgment. After
2. A person comes to the aid of such agent
3. Offender makes use of force or intimidation
rendering the judgment, after finding the accused guilty upon such person coming to the aid of the
beyond reasonable doubt, the accused got mad. He agent.
jumped on the judge and he boxed the judge several times.
The court interpreter, the person nearest to the judge,

Q: What if a police officer was manning the traffic and it
came to the aid of the judge. This angered the accused. was a heavy traffic so the vehicles were stuck. What if one
The accused got mad at the court interpreter and he boxed of the owners of the vehicles got mad at the police officer
the court interpreter as well. Thereafter the security guards and he went straight to the police officer, who at the time
arrived and took away the said accused. The judge has no pistol, and boxed the police officer. While he was
suffered serious physical injuries whereas the court boxing a police officer a pedestrian saw the incident .the
interpreter suffered slight physical injuries. What crime or pedestrian came to the aid of the police officer. This
crimes is/are committed by the accused, first against the angered the owner of the vehicle so he, too, boxed the said
judge, and second against the court interpreter? pedestrian. The said pedestrian suffered slight physical
A: As against the judge, the accused is liable injuries while the police officer suffered less serious
of the crime of QUALIFIED DIRECT ASSAULT physical injuries. What crime or crimes is/are committed by
WITH SERIOUS PHYSICAL INJURIES. The the said owner of the vehicle against:
judge is a person in authority under Article 152. a. The police officer
He was engaged in the performance of his official b. The pedestrian?
duty at the time of the assault therefore the crime A: a. DIRECT ASSAULT WITH LESS SERIOUS
committed is direct assault. It has a resulting PHYSICAL INJURIES. The said owner of the
felony, serious physical injuries; therefore it should vehicle boxed the said police officer. The police
be direct assault with serious physical injuries. officer is an agent of a person in authority under
The accused in boxing the judge, laid hands upon Article 152 because he was charged with the
a person in authority therefore it is QUALIFIED maintenance of public order. The police officer is
DIRECT ASSAULT WITH SERIOUS PHYSICAL in the actual performance of his official duty at the
INJURIES. time of the assault therefore the crime committed

As against the court interpreter, the accused is
is direct assault. There is also a resulting felony
which is less serious physical injuries, a less grave
liable of the crime of DIRECT ASSAULT. At the felony; therefore we have to complex it, direct
time the court interpreter came to the aid of a assault with less serious physical injuries. The
person in authority, who was the victim of direct offender laid hands upon the police officer,
assault. Note under Article 152, any person who however, laying of hands will not qualify because
comes to the aid of a person in authority is he is a mere agent of person in authority;
deemed an agent of a person in authority therefore the crime committed against the police
therefore, when the court interpreter came to the officer is direct assault with less serious physical
aid of the said judge, who was a person in injuries.
authority, he became an agent of a person in (NOTE: an MMDA officer is also an agent of a
authority. And under Article 148, any attack on an person in authority because he is charged with the
agent of a person in authority is direct assault. maintenance of public order and the protection
Therefore the crime committed is direct assault. and security of life and property)
The said interpreter suffered slight physical injury.
You cannot complex it because it is only a light

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CRIMINAL LAW 2
b. INDIRECT ASSAULT under Art 149. An agent In statcon, when there are two provisions which
of a person in authority was the victim of direct are contrary, you reconcile. So to reconcile, Article
assault. A person came to his aid who is the 149 or indirect assault will only apply if the victim
pedestrian. When the pedestrian came to the aid of direct assault is a mere agent of person in
of this agent of person in authority, he did not authority and someone came to his aid, and that
become an agent of a person in authority under someone was also employed with force and
Art 152 because under Art 152, a person would intimidation.
only become an agent of a person in authority if
he came to the aid of a person in authority. Here,

ARTICLE150 DISOBEDIENCE TO SUMMONS ISSUED
the pedestrian merely came to the aid of an agent BY THE NATIONAL ASSEMBLY, ITS COMMITTEES OR
of a person in authority who is the police officer. SUBCOMMITTTES, BY THE CONSTITUTIONAL
Therefore, when the pedestrian came to the aid of COMMISSIONS, ITS COMMITTEES, SUBCOMITTEES
the police officer, he did not become also an agent OR DIVISIONS
of a person in authority; as such, the crime Acts Punished:
committed is INDIRECT ASSAULT. When the I.By refusing, without legal excuse, to obey
pedestrian came to the aid of the police officer, summons issued by the Congress or any of
force and intimidation were employed against him its extensions or any of its standing
so the crime committed by the owner of the committees or subcommittees, by the
vehicle against the pedestrian is indirect assault. Constitutional Commissions, its committees,
Are you going to complex it to the crime subcommittees or any other body which has
of slight physical injuries? the power to issue summons.
No, because it is absorbed and it is Under the first act, for the crime to arise,
only a light felony. it is necessary that the offenders refusal

Under Article 149, INDIRECT ASSAULT is committed if a
to obey the summons is without any
legal excuse. If there is a valid reason, a
person in authority or an agent of a person in authority legal excuse, why the offender didnt
is the victim of direct assault. Any person who came to attend the said committee hearing of the
his aid and that person was employed with force or congress or why he failed to comply
intimidation by the offender. with the said summons or any of the
Why is it in the given problem, when the person acts under Art. 150; the crime will not
under attacked is a person in authority and when arise.
someone came to his aid, and that someone was
also attacked, the crime committed is direct assault

II.By refusing to be sworn or placed under
against that someone. But when the victim of direct affirmation while being before such legislative
assault is a mere agent of a person in authority, or constitutional body or official.
and someone came to his aid, and that someone Under the second act the public official or
was also attacked, the crime is indirect assault. the person was required to appear in
The reason is that the Congress the said meeting and obey the
amended Article 152 without summons however, the moment he
correspondingly amending Article 149. appeared in the said meeting, he
Based on the amendment made by refused to be sworn to. He does not
Congress in Article 152, it is stated that want to be sworn to and he refused to
any person who comes to the aid of a be placed under affirmation before such
person in authority is deemed an agent legislative or constitutional body. Art.
of person in authority. And if an agent of 150 is still violated.
a person in authority is attacked, such
attack is under Article 148 which is direct III.By refusing to answer any legal inquiry or to
assault and not indirect assault under produce any books, papers, documents, or
Article 149. records in his possession, when required by
But if the victim of the said direct them to do so in the exercise of their
assault is a mere agent of a person in functions.
authority, and someone who comes to his
aid will not become an agent of a person

IV.By refusing another from attending as a witness
in authority; therefore when he is also in such legislative or constitutional body.
attacked, it will only be indirect assault Under the fourth act punished, the said
under Article 149. offender did not fail to attend in the
summons; he restrained another from
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CRIMINAL LAW 2
attending as a witness. He prevented himself and asking him, requiring him, ordering
another person in attending as a witness him to produce the books or to answer any
in such legislative or constitutional body questions which would incriminate himself is akin
hearing. to making him a witness against himself and it is

V.By inducing disobedience to a summons or unconstitutional.

refusal to be sworn by any such body or ARTICLE151 RESISTANCE AND DISOBEDIENCE TO A


official. PERSON IN AUTHORITY OR THE AGENTS OF SUCH
NOTE that Congress where it be the PERSON
House of Representatives or the Senate Punishes two acts:
has the power to issue summons I. RESISTANCE AND SERIOUS DISOBEDIENCE
because they have the power to (PAR 1)
investigate that is inquiry in aid of ELEMENTS:
legislation. Whatever be the findings in 1. The person in authority or his agent
the said investigating body, it will be used a. i s e n g a g e d i n t h e
in the making of a bill, a proposal. NOTE performance of official duty;
that they dont have the power to file a or
case so whatever be the product of their b. gives a lawful order to the
investigation, they will give it either to the offender
Ombudsman or to the DOJ. It is upto the 1. Offender resists or seriously disobey
DOJ or to the Ombudsman to file a case such person in authority or his agent
because the purpose of the Senate or 2. That such resistance or disobedience
the HOR is only inquiry in aid of will not amount to
legislation. a.direct assault (Art 148),

ILLUSTRATION:
b.indirect assault (Art 149); or
c.disobedience to summons
Q: What if there is this committee hearing, an investigation issued by Congress
about anomalous transactions entered into by a former
officials of the DENR. While the said official received the

II. SIMPLE DISOBEDIENCE (PAR 2)
summons, he failed to appear because he was at St. ELEMENTS:
Lukes. He was confined because he was suffering from 1. An AGENT of a person in authority
hypertension. Can he be held liable under Art. 150? a. is engaged in the performance
A: He cannot be held liable because he has a of official duty; or
legal excuse to attend or to obey the summons b. gives a lawful order to the
issued by the Congress. The moment that there is offender
a legal excuse, the crime will not arise BUT if his 1. The offender disobeys such order of
measure is without any legal excuse NOTE that the agent
aside from violation of Art. 150, he can also be 2. Such disobedience is not serious in
held liable or cited for contempt by the said nature
committee of Congress and usually when cited for
contempt, he is placed in detention in the Senate

ILLUSTRATION:
Blue Ribbon Committee. Q: What if the mayor has a project, a cleaning act

Q: He obeyed the summons, he appeared, he allowed
operation in order to prevent dengue. So they were
cleaning up the canals. While the mayor was cleaning up
himself to be sworn in however, the moment that the the canals together with other city hall employees, here
Senators asked him questions, and he refused to answer comes Mang Pedro who had taken beer and was a little
the questions. He said: I invoke my right against self- tipsy. So the went there and was shouting and making
incrimination. When he was solely required to produce the noise, disturbing the people who were busy cleaning up the
books which were confirmed to be in his possession; He canals. And so the police officer cleaning told Mang Pedro
didnt want to produce the said books because according to to go home because he was disturbing the cleaning up
him, the production of these books would incriminate operation. Mang Pedro, instead of going home, merely sat
himself. Can he be held liable under Art. 150? nearby the canal being cleaned by the people. What crime,
A: He cannot. If the answer to any of the if any, did Mang Pedro commit?
questions or if the conduction of the same will A: Mang Pedro committed SIMPLE
incriminate the person in the said crime; he has DISOBEDIENCE UNDER ARTICLE 151 par 2.
the right not to do so. Under the Constitution, No Article 151, second paragraph, simple
person can be compelled to be a witness against disobedience is committed when an agent of a
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CRIMINAL LAW 2
person in authority is engaged in the performance A: The following are the persons in authority:
of official duty or gives a lawful order to the 1. Municipal Mayors
offender, that the offender disobeys and such 2. Division Superintendent of schools
disobedience is not of serious nature. In the 3. Public and private school teachers
problem, it was the police officer, an agent of a 4. Teacher-nurse
person in authority, who gave the order to Mang 5. President of the sanitary division
Pedro and Mang Pedro disobeyed him but such 6. Provincial Fiscal
disobedience was not serious in nature because 7. Judges
he merely sat nearby the canal; therefore there 8. Lawyers in actual performance of
was no showing that such disobedience is serious duties
in nature so the crime committed is simple 9. Sangguniang Bayan member
disobedience. 10.Barangay Chairman

Q: Is there direct assault with robbery? Lets say that the

Q: Who is an agent of a person in authority?
city mayor was assaulted and thereafter he took the watch A: Those who are in charged with:
of the mayor. The maintenance of public order; and
A: No, there is no such crime. The crime The protection and security of life and
committed is not direct assault with robbery. It is property
already robbery with any resulting felony, if there
is one.

ARTICLE153 TUMULTS AND OTHER DISTURBANCES
What if the original motive was to assault the city Acts punished:
mayor? I.Causing any serious disturbances in a public
If the original motive is to assault the place, office or establishment;
city mayor and not to commit robbery, but the For the said disturbance to be
offender took the watch, there will be two considered as a violation of Art 153;
crimes because the offender already it is necessary that the said offender
performed two acts. deliberately intended to disturb the
If there are two separate and distinct said meeting or public place. It was a
crimes, there shall be two information that will planned intentional act.
be filed to the court. If it is a complex crime,
only one information is filed before the court.

II.Interrupting or disturbing performances, functions
If the intention is to rob, and in the occasion of or gatherings, or peaceful meetings, if the act
the said robbery, homicide, serious physical is not included in Arts. 131 and 132;
injuries, rape, intentional mutilation, arson NOTE that there is a qualification
was committed, the crime committed under made by law provided that the said
Article 294 is robbery with homicide, robbery interruption or disturbance of public
with intentional mutilation, robbery with rape, gatherings, functions and peaceful
robbery with arson or robbery with serious meetings must not fall as a violation
physical injuries. under Art 131 or Art 132.
If the original intention was to assault the city
mayor and thereafter he committed robbery,

III.Making any outcry tending to incite rebellion or
there will be two acts. Because his intention sedition in any meeting, association or public
was to assault and thereafter he committed place.
the second act of taking away the personal
property of the city mayor.

IV.Displaying placards or emblems which provoke a
In case of DIRECT ASSAULT WITH MURDER disturbance of public order in such place;
or HOMICIDE, it is considered a complex Whether this making of an outcry or
crime under Article 48 because based on the the displaying of placards or
single act performed, two or more grave or emblems, it is necessary that such
less grave offense was committed. Because act of displaying placards or
with the single act of boxing, the offender emblems must be an unconscious
committed direct assault and serious/less outburst of emotion. It must not be
serious physical injuries. intentionally calculated to incite

ARTICLE152 PERSONS IN AUTHORITHY AND
people to rebel or to commit sedition
because otherwise, the crime would
AGENTS OF PERSONS IN AUTHORITY be inciting to rebellion or inciting to
Q: Who are persons in authority? sedition.
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V.Burying with pomp the body of a person who has
First, In Art 131, the public officer must not be a
participant in the meeting that he disturb or
been legally executed. interrupted. He must be an outsider, a stranger in
When you say legally executed; it the said meeting. On the other hand, in Art 153,
means that the said person has the said Public Officer must be a participant, one
committed a heinous crime. The in attendance in the said meeting.
penalty prescribed by law is death
and so he was killed by means of

Second, in Art 131, the mere intention of the
lethal injection but at present public officer is to prevent a person from freely
because of Republic Act No. 9346, exercising his freedom of speech and expression
we have no more death penalty. whereas in Art 153, the intention of the offender is
Death Penalty is prohibited to be to disturb public peace and tranquility.
imposed.

ILLUSTRATION:
But in burying with pomp the body of Q: What if since RH Bill was enacted into law, there was a
the person who has been legally huge rally at the EDSA Shrine which was initiated by the
executed; the said person must be members of the CBCP. They were against this law and they
legally executed because the said encouraged the people to file a case before the Supreme
person has committed a heinous Court questioning the constitutionality of the said law. At
crime yet when he was buried he first, the head of the CBCP spoke then after him another
was buried with such extravagance person, a private individual spoke, the head of the
as if as he is a hero, as if as the organization spoke and he kept on attacking and attacking
government has committed a crime the President. He said that the President bribed the
in legally executing him therefore it members of the Congress in order to pass this bill so he
causes sympathy arising on the part kept on attacking and attacking the President. One of the
of the people hence, it was a police officers, who was assigned to maintain the peace
disturbance of public order. and order in the place, heard the attacks against the



If any of these prohibited acts
President. This Police Officer was indebted to the President
he owed his position to the President. He went straight to
constituting violation of Art 153 is the person talking against the President and told him to
committed by more than 3 persons stop. When he didnt stop, the Police Officer fired shots in
who are provided with arms or any the air and the people scampered away and the peaceful
means of violence it is said to be meeting/gathering was dissolved/ interrupted. What crime
tumultuous therefore there must be was committed by the Police Officer?
at least four persons who are armed A: The crime committed by the Police Officer
or provided with means of violence is not Art 153 but Art 131.Because the
for it to be considered as tumultuous. distinctions lie in this case. First, the said Public

SO WHERE LIES THE DIFFERENCE BETWEEN ART
Officer, a Police Officer is not a participant in the
said meeting. He is a stranger, an outsider in the
153 AND ART 131 OR 132? said meeting. Second, his only purpose is to
Article 153 punishes TUMULTS ANS OTHER prevent the said person in freely exercising his
DISTURBANCES OF PUBLIC ORDER, Article 131 freedom of speech and expression, it is his right to
punishes PROHIBITION, INTERRUPTION AND express his anger against the President yet the
DISSOLUTION OF PEACEFUL MEETINGS, Article said person prevented him in exercising such
132 punishes INTERRUPTING OF RELIGIOUS freedom of Speech and expression therefore the
FEELINGS Police Officer is liable under Art 131 and not under



Articles 131 and 132 can only be committed by a Art 153.

Public Officer. It cannot be committed by a private For him to be liable under Art 153, lets say that he
individual whereas under Art 153, it can be is a public officer, he is a participant in the said
committed both by a Public Officer and a private meeting and while participating in the said
individual. meeting, he interrupted the said meeting in order

What if the offender is a public officer and he disturbs a
for him to cause a disturbance of the said
meeting. The crime is Art 153.

peaceful meeting. How would you distinguish if it is a


violation of Art 153 or a violation of Art 131?

Q: There was this peaceful gathering, lets say a public
meeting, a peaceful meeting about the increase of fares of
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CRIMINAL LAW 2
the MRT and the LRT. One of the participants therein, one It is necessary that any publication
of the persons therein went to the platform and took the mic has contained the real printers
and then he incite the people, induced the people to go to name. It must have been
the streets, uprise, rebel against the government, to anonymous. The publisher, the
overthrow the government. What crime was committed? printer, the author, must be stated
A:The crime committed was inciting to even at the bottom.
rebellion.

Q: What if the Philippine Daily Inquirer has as its headline:
Q: What if, he was among the participants. The head of the KC Concepcion said..PioloPascual is gay. So that is the
meeting, the Public Officer was discussing about the headline of the Philippine Daily Inquirer. It was posted. KC
increase of fares of the MRT and LRT. This person could no never categorically stated that Piolo is gay, she only
longer control his emotions. Suddenly he stood up and he impliedly stated it but she never categorically stated it. So
said: buwisitnagobyernonaitonaiinisnako. Dapatnatayong the Daily Inquirer published a false news and PioloPascual
mag rebeldesagobyernowalangginawakundi increase ng filed a case in violation of Art 154 against the Philippine
taxes. They go and rebel against the government. What Daily Inquirer. The Philippine Daily Inquirer knew that it is a
crime was committed? false news yet they still published it as news.
A:Tumults and other disturbances of public A: Art. 154 is not violated because whether or
order. It is just an unconscious outburst of notPiolo is gay it will not endanger public order. It
emotions not an intentionally calculated to incite will not cause damage to the credit or interest of
people to rebel against the government. the state.

ARTICLE154 UNLAWFUL USE OF MEANS OF

Q: What if the headline of the Philippine Daily Inquirer said:
PUBLICATION AND UNLAWFUL UTTERANCESActs Tomorrow, Megamall will be bombed from a very reliable
punished: source. That was the headline of the Philippine Daily
I.By publishing or causing to be published by Inquirer. The Philippine Daily Inquirer later on learned that it
means of printing lithography or any other was false nevertheless; since it was already there they still
means of publication, as news any false news published it and distributed it. Can they be held liable under
which may endanger the public order, or Art 154?
cause damage to the interest or credit of the A: Yes because the said news will endanger
State. public order. It can cause damage to the credit or
II.By encouraging disobedience to the law or to the interest of the state. Imagine Megamall will be
constituted authorities or by praising, bomb, no person will go to the said place, tourists
justifying ot extolling any act punished by law, will not go to the said place therefore it will
by the same means or by words, utterances endanger public order and can cause damage to
or speeches. the interest of the state when the said newspaper
III.By maliciously publishing or causing to be published it despite knowing that it was false
published any official resolution or document news. Art 154 is violated.
without proper authority, or before they have
been published officially.

Q: What if members of the CBCP, they are against the RH
NOTE that in the third act there is Law. They made leaflets, pamphlets and distributed it to all
the word Malicious. The offender persons in the church, in market.. Therein is stated: Anyone
must maliciously publish or cause to who would obey or comply with the RH Bill which is a
be published any official resolution. If Catholic will be ex-communicated. Can they be held liable
the publication of the official of Art 154?
resolution without official authority or A:Yes because they encouraged disobedience
the publication was not done to the law. It has been enacted into law and by
maliciously, there was no intent to encouraging the people that they would be ex-
cause damage, it was not done communicated if you will obey it, then you can be
maliciously. Art 154 is not violated. It held liable for unlawful use of means of
is necessary that the said publication publication.
must be done maliciously under the
third act.

ARTICLE155 ALARMS AND SCANDALS
IV.By printing, publishing or distributing (or causing Acts punished:
the same) books, pamphlets, periodicals, or I.Discharging any firearm, rocket, firecracker, or
leaflets which do not bear the real printers other explosives within any town or public
name or which are classified as anonymous. place calculated to cause (which produces)
alarm or danger.
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II.Instigating or taking an active part in any charivari offender even if the victim was not killed
or other disorderly meeting offensive to it is still in the attempted stage.
another or prejudicial to public tranquility.
Charivari includes a medley of

Q: What if in the same problem, it was in a public place, X
discordant voices, a mock serenade went to the said place, he saw his enemy Y. He went near
of discordant noises made on Y, took out his gun and poked the gun at Y but did not
kettles, tins, horns, etc. designed to discharge the said gun. What crime is committed?
annoy and insult. A:The crime committed is other light threats.
III.Disturbing the public peace while wandering NOTE that under other light threats the offender
about at night or while engaged in any other merely poked the firearm at the victim without
nocturnal amusement. discharging or firing the firearm. If the firearm has
IV.Causing any disturbance or scandal in public been discharged, 3 crimes may be committed
places while intoxicated or otherwise, depending on the intent. It can be alarms and
provided Art 153 is not applicable scandals, illegal discharge of firearms or

ILLUSTRATION:
attempted homicide or murder as the case may
be.
Q: In a public park, there were so many people here comes
X. X went in the middle of the park and fired shots in the

Q: You have a neighbor, it was his birthday. They rented a
air. The people were so afraid they scampered away. What videoke and kept on singing along till 12mn. The guests
crime is committed? already left, the birthday celebrant was the only one left, its
A: Alarms and Scandals under Art 155. His act already 1:30am and hes still singing at the top of his voice
can cause damage to public peace and tranquility. with the use of the mic. His neighbors cannot sleep

Q: What if in the same problem, in a public park, there
because of his ugly voice. Everyone in the neighborhood
could hear him and cannot sleep. Can he be held liable
were so many people and here comes X. X saw his enemy under Art 155 alarms and scandals?
Y. He took out his firearm, aiming his firearm at Y without A: Yes. He can be held liable under alarms and
any intent to kill because he knew Y would not be killed and scandals because his only intention that night is to
he discharged the firearm. What crime is committed? cause a disturbance of public peace and order.
A: The crime committed is illegal discharged
of firearms under Art. 1254.

Q: Lets say a person was intoxicated. He was drunk. He

Q: What if in the same public place, X saw his enemy Y. He
was on his way home. He was singing at the top of his
voice. Is he liable for alarms and scandals?
pulled out his firearm with intent to kill, he aimed his firearm A: No because it is normal to sing at the top of his
at Y, discharged the firearm but Y was not killed. What voice.
crime was committed?
A: Attempted murder or Homicide as the case

Q: What if he saw this lead pipe (tubo) and upon seeing
may be. this lead pipe, he would bang all the gates that he would
In case of alarms and scandals, the only pass by. Is he liable for alarms and scandals?
intention of the offender is to cause A: Yes because his acts caused damage to public
damage to public peace and tranquility peace and tranquility.
that is to cause alarm and danger. That is
his intention.

ARTICLE156 DELIVERING PRISONERS FROM JAIL
In Illegal Discharge of Firearms under Art
ELEMENTS:
1. That there is a person confined in a jail or penal
1254 his intention is to threaten the said establishment.
person or any other persons. He aimed 2. That the offender removes therefrom such
the firearm and discharges the firearm persons, or helps the escape of such person.
pointing at a particular person absent:
intent to kill. There was no intent to kill, it

The PENALTY for the crime is QUALIFIED if violence
is illegal discharge of firearm. or intimidation has been used in the commission of the
But given in the same problem, he knows crime also if bribery is used in delivering prisoners from
his enemy, pointed the firearm at his jail.
enemy but with intent to kill. He
discharged the firearm but his enemy

Who is the offender?
was not killed. It is attempted homicide or The offender is any person. He can be a private
murder as the case may be. Since there individual or a public officer or employee provided
is an intent to kill on the part of the that he is not the custodian of the said prisoner
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CRIMINAL LAW 2
because if the offender who helped in the escape and concealed him despite the fact that he was an escapee
of the prisoner from jail is the custodian of the said from a penal institution. What are the crimes committed by
prisoner, the crime is under Art 223 Infidelity in the A (the prisoner), B (the friend), jail warden custodian, the
custody of prisoners because the element of guard of the penal institution, and the friend who harbored
breach of trust and confidence reposed on him by him?
the government. A: A is liable of evasion of service of sentence
under Art 157. He is a prisoner convicted by final
judgment therefore he is liable for evasion of
Who is the prisoner being referred to in delivering service of sentence.

persons from jail?


He can be a detention prisoner or a prisoner

Q: What if he is not serving his sentence in Muntinlupa.
convicted by final judgment for as long as he is in Lets say he is just a detention prisoner. Can he be held
a jail or penal institution. liable for evasion of service of sentence?
A detention prisoner is a prisoner who is A: No. Evasion of service of sentence can only be
behind bars but the case against him is committed by a prisoner convicted by final judgment.
ongoing either because the crime he In the given problem, A is convicted by final
committed is a non-bailable offense and judgment therefore A is liable for evasion of
evidence of guilt is strong or the crime he service of sentence under Art 157.
committed is a bailable offense but he does
not have the enough funds to put up the

B the friend is liable under Art 156
required bail. Delivering prisoners from jail qualified by

The prisoners at the provincial jail, city jail,
the giving of bribe therefore his penalty will
be qualified because he gave bribe money
municipal jail, they are merely detention inorder to help in the escape of his friend. He
prisoners. They are not yet convicts. They are will not be liable for another crime of
only accused, suspects therefore they are corruption of public official because the giving
presumed innocent unless and until proven of bribe is considered clearly as a qualifying
that theyre guilty of the crime charged. They or as an aggravating circumstance in
are merely detention prisoners. delivering prisoners from jail.



On the other hand, a prisoner that is

The jail warden custodian who received the
convicted by final judgment is one who has bribed money and allowed As escape is
been convicted by the lower court and who liable under Art 223 infidelity in the
did not appeal his conviction within the period custody of prisoners. Aside from that, he is
to perfect an appeal then the judgment also liable for direct bribery because in
becomes final and executory. He has to serve case of infidelity in the custody of prisoners,
the sentence. Or he has been convicted then the giving and receiving of bribe is not a
he appealed to the higher court within the qualifying or aggravating circumstance
period to perfect an appeal and the said therefore the jail warden custodian will be
higher court affirmed the said conviction. The liable for 2 crimes; Infidelity in the custody of
conviction will now become final and prisoners and direct bribery for having
executory so he is now a prisoner convicted received the bribed money in the amount of
by final judgment. Generally, they are those P500,000.00.

who are serving sentence in Muntinlupa.




The guard at the entrance gate of the penal
ILLUSTRATION: institution will be liable for delivering
Q: Lets say A is a prisoner convicted by final judgment. He prisoners from jail. He is not the custodian
is serving his sentence in Muntinlupa. B his friend visited and he helped in the escape/removal of the
him. B was a rich man. He planned As escape on his prisoner from jail. Therefore, he is liable for
birthday. He did this by talking to the jail warden custodian. delivering prisoners from jail. The fact that he
B the friend gave the jail warden custodian P500,000.00. received bribed money will not make him
He gave bribe to the jail warden custodian to allow A his liable of direct bribery because in delivering
friend to escape at that night. He also went to the guard at prisoners from jail, it is only a qualifying
the entrance gate of the New Bilibid Prison and gave the circumstance which will only increase the
guard P100,000.00, also to allow his friend to leave at that imposable penalty.
night. That night, A escaped and left the penal institution.
He went to the house of another friend who harbored him

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CRIMINAL LAW 2
The friend who harbored and concealed him The law says, it is a prisoner serving his sentence
will be liable under PD 1829 that is which involves deprivation of liberty. It is
obstruction of justice. It is committed by any necessary that the sentence imposed on him must
person who willfully or deliberately obstructs involve deprivation of liberty either it is behind
or impedes the investigation or the bars or he has been convicted of a crime wherein
apprehension of a criminal. the penalty is destierro. Even if the penalty
Why not an accessory? prescribed is destierro, the moment he enters the
o Because I did not mention in the problem place wherein he is prohibited from entering in the
the crime committed by the prisoner. For judgment of the court, he also committed evasion
an accessory to the crime, it is necessary of service of sentence.
that the crime committed by the prisoner Destierro under Art 27; Destierro is also a
must be treason, parricide, murder, penalty which involves deprivation of
attempt to take the life of the chief liberty although partial not complete
executive or is known to be habitually deprivation of liberty because the
guilty of some other crime. I did not offender or the convict is not allowed to
mention the crime committed by the enter a place designated in the judgment
prisoner. Therefore his liability is under of the court. The moment he enters the
PD 1829 Obstruction of Justice. said place, he commits evasion of

ARTICLE157 EVASION OF SERVICE OF SENTENCE service of sentence.

(Art 157) ARTICLE158 EVASION OF SERVICE OF SENTENCE


ELEMENTS: ON THE OCCASION OF DISORDERS,
1. That the offender is a convict by final judgment. CONFLAGRATIONS, EARTHQUAKES, OR OTHER
2. That he is serving his sentence which consists in CALAMITIES (ART 158)
deprivation of liberty. ELEMENTS:
3. That he evades the service of his sentence by 1. That the offender is a convict by final judgment
escaping during the term of his sentence. who is confined in a penal institution.


Evasion of service of sentence can only be committed
2. That there is a disorder resulting from ----
a. Conflagration
by a person convicted by final judgment. It cannot be b. Earthquake
committed by a mere detention prisoner. c. Explosion

PENALTY IS QUALIFIED if such evasion or escape takes
d. Similar catastrophe
e. Mutiny in which he has not participated
place: 3. That the offender evades the service of his
1. By means of unlawful entry sentence by leaving the penal institution where he
2. By breaking doors, windows, gates, walls, roofs or is confined, on the occasion of such disorder or
floors; during the mutiny.
3. By using picklocks, false keys, disguise, deceit, 4. That the offender fails to give himself up to the
violence or intimidation; or authorities within 48 hours following the issuance
4. Through connivance with other convicts or of a proclamation by the Chief Executive
employees of the penal institution. announcing the passing away of such calamity.

ILLUSTRATION:

It is required under Art 158 that the prisoner is serving
Q: You often read in the newspapers, heard over the his sentence in a penal institution.
radios, watch on TV, 5 prisoners escaped from the In this kind of evasion of service of sentence under Art
Caloocan city jail, 10 prisoners escaped from Palawan 158, the crime will arise not upon the act of leaving the
Provincial Jail. Did they commit evasion of service of penal institution but upon the convicts failure to return/
sentence? to give himself to the proper authorities within 48
A: No. These persons did not commit evasion of hours. That is only when the crime will arise.
service of sentence under art 157 because they
are merely detention prisoners. For evasion of

ILLUSTRATION:
sentence to arise, the prisoner who has escaped Q: What if there was this earthquake, X was a prisoner
must be a prisoner convicted by final judgment. convicted by final judgment. Everything was shaking and
Under Art 157, the said prisoner the said prisoner because of the earthquake, X escaped the penal institution.
must be serving which involves deprivation of He went to the house of his mother. That night while
liberty and he escapes during the service of his watching the television, he saw the president announced/
sentence by evading the service of sentence. declared that the calamity had already ceased/passed
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CRIMINAL LAW 2
away. Within 48hrs he returned. What is the effect on his acceptance in the part of the prisoner granted
criminal liability? pardon. The moment he accepts the
A:If the said convict escaped and returned to conditional pardon, it means it is incumbent
the proper authorities within 48hrs; there shall upon him to comply to all of the strict
be a credit or a deduction from his sentence. conditions. The moment he violate any of the
There is 1/5 deduction/credit from his sentence. terms and conditions he commits evasion of
Under Art 98 this is special time allowance for service of sentence because it shows that he
loyalty. He was too loyal to the government that just accepted the conditional pardon so as to
even if he already left the penal institution he still free himself from taking place behind bars.

returned; such kind of loyalty must be rewarded.




Is violation of conditional pardon a substantive
Q: What if 48hrs had lapsed, still he did not return. What is offense or not?
the effect of his criminal liability? It depends. If you will look at Art 159, there
A:There will be an additional penalty imposed are 2 situations. Under Art 159, if the penalty
on him. 1/5 on the basis of the remainder of his remitted by the grant of pardon does not
sentence but note that it shall not exceed six exceed 6yrs, the moment he violates any of
months. the conditional pardon, there is a new penalty

Q: There was this earthquake, everything was shaking. He
imposed upon him that is prisioncorreccional
minimum 6 months and 1 day to 2 years and
just hid under the table. He did not leave the penal 4 months. A new penalty is imposed on him
institution. He was so loyal to the government that he did therefore in this case, violation of the
not even think to leave. Will he be given credit? conditional pardon is a substantive offense
A:No. Under Art 158 there is no credit to be because a new penalty is imposed on him.
given to him. Under Art 98, there is no special BUT on the second part of Art 159, if the
time allowance of loyalty for just hiding under the penalty remitted is more than 6 years; no new
table and not leaving the penal institution. penalty is imposed on him for having violated

Q: Why those who are loyal to the government and did not
the terms of the pardon. He is only required to
serve the remainder of the sentence. In this
leave the penal institution be not given credit? Isnt it case, violation of the conditional pardon is not
unfair? a substantive offense because there is no
A: The reason is that prisoners are considered as new penalty imposed for the commission of
accountabilities of the government. It is the duty of the crime.
the government to protect the prisoners. In times
of calamities or public disorders, the state cannot

ARTICLE160 COMMISSION OF ANOTHER CRIME
protect these prisoners therefore the State DURING SERVICE OF PENALTY IMPOSED FOR
encourages them to leave inorder to protect ANOTHER PREVIOUS OFFENSE
themselves. But important thing is that they show ELEMENTS:
their loyalty to the government hence they will 1. The offender was already convicted by final
return. judgment of one offense.

ARTICLE159 EVASION OF SERVICE OF SENTENCE
2. He committed a new felony before beginning to
serve such sentence or while serving the same.
BY VIOLATION OF CONDITIONAL PARDON
ELEMENTS:

Who is a quasi-recidivist?
1. The offender was a convict A quasi-recidivist is any person who shall commit
2. He was granted a conditional pardon by the Chief a felony after having been convicted by final
Executive judgment before serving his sentence or while
3. He violated any of the conditions of such pardon serving his sentence.

TWO KINDS OF PARDON:

Under Art 160 it is stated that the maximum penalty
1. Absolute Pardon which totally extinguishes the prescribed by law shall be imposed therefore it is a
criminal liability special aggravating circumstance.
2. Conditional Pardon which partially extinguishes Art 160 is a misplaced article because book 2 is
criminal liability. about felonies and art 160 is a special aggravating
Conditional Pardon is said to only partially circumstance.

extinguishes criminal liability because the said
pardon is subject to strict terms and
TITLE FOUR
conditions. Therefore, there must be an
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CRIMINAL LAW 2
CRIMES AGAINST PUBLIC INTEREST (Articles 161 3. That in case of uttering such false or counterfeited
189) coins, he connived with the counterfeiters or

ARTICLE161 COUNTERFEITING THE GREAT SEAL
importers

OF THE GOVERNMENT OF THE PHILIPPINE ISLANDS, When is it committed?
FORGING THE SIGNATURE OR STAMP OF THE CHIEF A. Counterfeiting (imitation of false coins)
EXECUTIVE is committed by any person who shall imitate
Acts punished: a genuine and authentic coin making it
I. Forging the Great Seal of the Government of the appear that it is a true, genuine, and authentic
Philippines. coin. The offender copies the peculiar design
II. Forging the signature of the President. of the coin and makes a spurious one out of
III. Forging the stamp of the President. it.


Art 161 punishes the person who forges the great

B. Importing false coins is committed by
seal of the Philippines, signature of the chief any person who shall bring into the Philippine
executive and forging the stamp of the chief ports any false and counterfeited coins. It is
executive. not necessary for the offender to be liable that

Art 161 is the crime when the person is the one who
he shall circulate the false coins because
there is a third act of uttering false coins.

committed the forgery, but if the offender is not the one


who forges the great seal, signature but he knows that

C. Uttering false coins is committed by any
the document contain a forge stamp, signature of the person who shall circulate, give away to
President and despite such knowledge that it was a another, pass from one person to another any
forgery he makes use of the same, liability is under counterfeited or false coins.
162.


In case of counterfeited or imitated false coins, it is not
ARTICLE162 USING FORGED SIGNATURE OR necessary that the coins be the subject of
COUNTERFEIT SEAL OR STAMP (Art 162) counterfeiting must be of legal tender. Even if the coin
ELEMENTS: is not a gold coin, if the offender copies or imitates or
1. That the Great Seal of the Republic was counterfeits the peculiar design of the said coin; he
counterfeited or the signature or stamp of the becomes liable under Art 163.
Chief Executive was forged by another person.
2. That the offender knew of the counterfeiting or

forgery. ILLUSTRATION:
3. That he used the counterfeit seal or forged Q: A is in possession of a coin which was of legal tender
signature or stamp. during the time of Marcos in 1972. It was a proven genuine


Art 162 punishes the person who, despite knowledge
coin. He copied the said coin and made a spurious one out
of it. Is he liable under Art 163?
of the forged signature, stamp or great seal of the A: Yes he is liable for making and importing and
Republic of the Philippines still he makes use of the uttering false coins under Article 163.

same document.
Q: What if while he was in possession of the said coin; he
ILLUSTRATION: took out a part of the metal content of the said coin. Can he
Q: In an official document, the signature of the President be liable for Mutilation of coins under Art 164?
was forged by A then it was given to B. B knew that it was a A:No, he cannot because in Art 164 or mutilation
forgery nevertheless he made use of the same. What crime of coins, it is necessary that the coin subject of
was committed? mutilation must be of legal tender. It must be in
A:A committed a crime under 161. And B present currency because otherwise, it cannot be
committed a crime under 162. said that the public has been deceived.

ARTICLE163 MAKING AND IMPORTING AND

ARTICLE164 MUTILATION OF COINS
UTTERING FALSE COINS Acts punished:
ELEMENTS: I. Mutilating coins of the legal currency, with the
1. That there be false or counterfeited coins further requirement that there be intent to damage
2. That the offender either made, imported or uttered or to defraud another.
such coins.

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CRIMINAL LAW 2
II. Importing or uttering such mutilated coins, with the who counterfeited the coin. The offender
further requirement that there must be connivance is only in possession of it but in order for
with the mutilator or importer in case of uttering. him to be held liable; he must have the


Mutilation is the act of taking off a part of the metal
knowledge that the coin is counterfeited
or mutilated and despite having such
content by filing it or substituting it for another metal of knowledge; he has the intent to utter,
inferior quality. circulate, pass away, to give away to
The offender gathers the metal dust that he has taken another the said coin.

off from the said coin.


While the offender took out a part of the metal coin, he II.

Actually uttering such false or mutilated coin
is in effect diminishing the intrinsic value of the said knowing the same to be false or mutilated.
coin therefore who would be given the said coin would ELEMENTS:
be deceived of the this crime hence a crime in violation 1. Actually uttering, and
of public interest is committed. 2. Knowledge.

ILLUSTRATION:
In the second act it is the act of actually
circulating or uttering the counterfeited
Q: There were 3 children/adults. They were playing kara- coin despite knowledge that it is
krus. So they toss the coin, however before doing that, they counterfeited or mutilated.
would scratch the coin on the steel therefore the metal
content of the coin is diminished. Can they be held liable

ILLUSTRATION:
under Art 164? Q: What if A is under surveillance, reports came to the
A: No. because there was no intent to gather the police that he had been circulating false coins. A went to
metal dust of the said coin. the bakery store, he bought bread worth P 50.00. He gave
Can they be held liable of any crime? the store owner 5 P 10.00 counterfeited coins. Thereafter,
Yes. They can be held liable under PD after giving the counterfeited coins, he immediately left. The
247 police arrived and A was gone and it was the owner of the


PD 247 punishes any person who willfully or knowingly
store who is left. The police officer asked the owner of the
store to open the cash bin. There they saw the 5 P 10.00
defaces, mutilates, tears, burns or destroys any coins which were counterfeited. They arrested the owner of
currency notes or coins issued by the the store. Is the owner of the store liable under Art 165?
BangkoSentralngPilipinas. A:No he is not liable of selling of false coins or
In case of violation of PD 247 it is not required that mutilated coins, without connivance under Article 165.
there is intent to mutilate on the part of the offender. It First, he was caught in possession.
is not required that the offender has the intent to gather Was there possession?
the metal dust of the coin although these are required Yes. The counterfeited coins were found
under Art 164. in his cash drawer. Possession does not

Q: In a P 1000.00 bill, a person put his cell phone no. on it.
only mean physical or actual possession.
Possession means constructive
Is he liable under PD 247? possession which means that the
A: Yes he is liable under PD 247. counterfeited or mutilated coins are in his

But PD 247 is akin to a dead law because no one has
control and custody. Therefore the first
element of possession is present.

been prosecuted by it.




Was there intent to utter the counterfeited coins on
ARTICLE165 SELLING OF FALSE OR MUTILATED the part of the said owner?
COIN, WITHOUT CONNIVANCE Yes. The fact that he placed it in the cash
Acts punished: drawer means he can use it to buy
I. Possession of coin, counterfeited or mutilated by another thing or as a change to the
another person, with intent to utter the same, people who will buy from his bakery
knowing that it is false or mutilated. therefore circulation has a way from one
ELEMENTS: person to another. Therefore the second
1. Possession, element is also present.
2. With intent to utter, and
3. Knowledge

How about the third element of knowledge on his
Under the first act, the offender is in part the coin was counterfeited?
possession of the false, mutilated, The third element is absent evidently
counterfeited coin. It is another person based on the facts that the store owner
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CRIMINAL LAW 2
has no knowledge that the coins are e.g. Check payable to cash. Whoever is
counterfeited. In fact he gave bread in possession of the said check can
worth P 50.00. He was also deceived. If come to the bank. It can be transferred
he had only known that the coins were by mere delivery.
counterfeited, he would not have given
bread worth P 50.00.

On the other hand a check is payable to order where
Therefore, he may not be held liable it can be transferred by mere delivery when there is an
because also he is in possession, and he endorsement coming from the person named or
has the intent to utter the coins; he does specified therein. It is an instrument payable to the
not have the knowledge that the said order of a specific person or his order.
coins were counterfeited. e.g. Payable to the order of Charmaine.

ARTICLE166 FORGING TREASURY OR BANK NOTES
This cannot be transferred from one
person to another without an order
OR OTHER DOCUMENTS PAYABLE TO BEARER; coming from Charmaine.
IMPORTING, AND UTTERING SUCH FALSE OR
FORGED NOTES AND DOCUMENTS

ARTICLE169 HOW FORGERY IS COMMITTED (Art
Acts punished: 169)
I.Forging or falsification of treasury or bank notes or 1. By giving to a treasury or bank note or any
other documents payable to bearer. instrument payable to bearer or to order
II.Importation of such false or forged obligations or mentioned therein, the appearance of a true
notes. and genuine document.
III.Uttering of such false or forged obligations or 2. By erasing, substituting, counterfeiting, or
notes in connivance with the forgers or altering by any means the figures, letters,
importers. words, or sign contained therein.

ARTICLE167 COUNTERFEITING, IMPORTING, AND

If what has been falsified is a coin; you call it
UTTERING INSTRUMENTS NOT PAYABLE TO BEARER counterfeiting.
ELEMENTS: If it is the stamp, seal or signature of the President;
1. That there be an instrument payable to order you call it forging.
or other document of credit not payable to If it is treasury or bank notes; it is considered as
bearer. forging.
2. That the offender either forged, imported or It is a document; you call it falsification.
uttered such instrument.
3. That in case of uttering, he connived with the

FALSIFICATION (ART 170, 171, 172)


forger or importer. In case of FALSIFICATION, to amount to falsification, it

ARTICLE168 ILLEGAL POSSESSION AND USE OF

is necessary that the writing that is falsified must be a
document in a legal sense of the word capable of
FALSE TREASURY OR BANK NOTES AND OTHER making rights and/or extinguishing an obligation.
Therefore, it must be complete in itself so that it would
INSTRUMENTS OF CREDIT be sufficient in evidence.
ELEMENTS: Falsification of mere forms does not amount to
1. That any treasury or bank note or certificate falsification of a public document. Because the said
or other obligation and security payable to form is not yet complete in itself it has no name, no
bearer, or any instrument payable to order or
other document of credit not payable to address an unfilled-out/up form. It is not falsification.

ILLUSTRATION:
bearer is forged or falsified by another
Q: So what if A was found outside the building of the LTO
person.
office. He was carrying falsified unfilled-out/up forms of
2. That the offender knows that any of those drivers license. It was distinct, it was falsified, it was not
instruments is forged or falsified. the real drivers license form. He was arrested by the NBI.
3. That he performs any of these acts ----
a. Using any of such forged or falsified
instruments; or

Can he be held liable for falsification of a public document?

A: NO. Because what he is carrying is only an


b. Possessing with intent to use any of unfilled-out form. It is not yet complete in itself. It is
not yet capable of creating rights or extinguishing
such forged or falsified instruments.
an obligation. It is not yet susceptible of evidence

An instrument is payable to bearer when it can be


of the facts stated thereon.

transferred by mere delivery.



Q: So what crime if any was committed by A?

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CRIMINAL LAW 2
A: A merely committed violation of Article 176 On the other hand, if what has been falsified is a
that is mere possession of instrument or PRIVATE DOCUMENT, for the crime to arise, it is
implements for falsification, but not yet falsification necessary that there must be damage or at least,

of a public document.

There 4 types of documents which may be falsified:


intent to cause damage to the private offended party or
to any other party.
If what has been falsified is a PUBLIC OR OFFICIAL
1. PUBLIC DOCUMENT a document which is DOCUMENT, it is not necessary that there be damage
issued by a notary public or competent public or intent to cause damage. Because a public

2.

official with the solemnities required by law

OFFICIAL DOCUMENT a document issued by a


document an official document - is presumed
authentic and legal. It is presumed to be prima facie
evidence of the facts stated therein. As such, the
public official in the exercise of his official moment it is falsified, the crime will immediately arise,

3.

functions

COMMERCIAL DOCUMENT any document


without need that there be damage on the part of the
offended party. Because in Falsification of a Public
Document, what has been violated is the
defined and regulated by the Code of Commerce PERVERSION OF TRUTH being solemnly proclaimed
by the said document. Hence DAMAGE IS NOT AN

4.

or any other mercantile law

PRIVATE DOCUMENT a document, a deed or


ELEMENT.

instrument executed by a private person without ARTICLE171 FALSIFICATION BY PUBLIC OFFICER,


the intervention of the notary public of any other EMPLOYEE OR NOTARY OR ECCLESIASTICAL
person legally authorized, by which document MINISTER
some disposition or agreement is proved, The first kind of falsification under Article 171,


evidenced or set forth

Is a public document distinct from an official


we have the falsification committed by a public
officer, employee or notary public or an
ecclesiastical minister.

document?

All official documents are considered as


ELEMENTS:
1. The offender is a public officer, employee, notary
public documents, but not all public
documents are considered official
documents. Before a public document may 2.

public or an ecclesiastical minister.

He takes advantage of his official position.


be considered as an official document, it is The offender is said to have taken
necessary that it shall be issued by a public advantage of his position or office when:
officer in the exercise of his official functions. a. He has the duty to make or prepare
There is a law that requires a public officer to or to otherwise intervene in the
issue the said public document, then it preparation of the document; or
b. He has the official custody of the

becomes an official document.

A PRIVATE DOCUMENT, one which has been


document which he falsifies

executed by a private person, if there is no intervention 3. That the said offender falsifies a document by
committing any of the following modes stated


of public official.

A PRIVATE DOCUMENT however, even though


therein:
c. By counterfeiting or imitating any
executed by a private person without the intervention handwriting, signature or rubric.
of a notary public or a legally authorized person, can d. Causing it to appear that persons
also become a public document. That is when the said have participated in any act or
private document is submitted to the public officer and proceeding when they did not in fact
it becomes part of the public records. The moment the so participate.
said private document becomes part of the public e. Attributing to persons who have
records, it is now a public document and when it is participated in an act or proceeding
issued and it is falsified, what is falsified is a public statement other than those in fact
made by them


document and no more a private document.

It is necessary to distinguish the kind of document that


f. Making untruthful statements in a
narration of facts
is being falsified - whether it is a public, official, g. Altering true dates
h. Making any alteration or intercalation


commercial or private because of the different effects.

If what has been falsified is a PUBLIC, OFFICIAL OR


in a genuine document which
changes its meaning
COMMERCIAL DOCUMENT, damage or intent to i. Issuing in authenticated form a
cause damage to the offended party or to any other document purporting to be a copy of
any original document when no such

person is not an element.
copy a statement contrary to, or
different from that of the genuine
original
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CRIMINAL LAW 2
j. Intercalating any instrument or note So there is an original handwriting or
relative to the issuance thereof in a signature and the offender imitiated or

4.
k.
protocol, registry or official book.

In case the offender is an ecclesiastical minister,


copied the said original handwriting or


signature.

the act of falsification is committed with respect to Is COUNTERFEITING the same as


any record or document of such character that the FEIGNING?

falsification may affect the civil status of persons.

EXPLANATIONS:
Feigning a handwriting, signature or
rubric is NOT THE SAME as
counterfeiting. When you say FEIGNING,
1. The offender is a public officer, employee, notary it means simulating a handwriting,
public or an ecclesiastical minister. signature or rubric. That is, making a
If the offender is an ecclesiastical handwriting, signature or rubric out of
minister, for him to be liable under Article nothing which does not exist. It is an
171, it is necessary that the document imaginable, an inexistent handwriting,


that he falsifies must affect the civil status
of a person.
If the document falsified by an II.

signature or rubric.

CAUSING IT TO APPEAR THAT PERSONS HAVE


ecclesiastical minister will not affect the PARTICIPATED IN ANY ACT OR PROCEEDING
civil status of a person, he is still liable for WHEN THEY DID NOT IN FACT SO PARTICIPATE.
falsification, but not under Art. 171, rather
under Art. 172. Q: What if a notary public issued, he prepared or issued an
So, a priest falsified the communion extrajudicial settlement of an estate. In the said
certificates of one of the students/pupils extrajudicial settlement of an estate, it is stated that all the
receiving the first communion, the crime heirs of a certain decedent can already agree by
committed is falsification under Art. 172, themselves to partition the property. So it is an extrajudicial
not under Art. 171 because a certificate settlement of an estate and in it, the notary public made it
of communion will not affect the civil appear that all the 12 heirs of the decedent had

2.

status of the said child.

He takes advantage of his official position.


participated, but un truth and in fact, two of the heirs where
in another country and they did not participate in the
execution of this extrajudicial settlement of the estate. Is
It requires that the offender takes the notary public liable?
advantage of his official position. A: YES. The notary public is LIABLE under the
The offender is said to have taken second act (causing it to appear that persons
advantage of his position or office when: have participated in any act or proceeding
a. He has the duty to make or prepare when they did not in fact so participate).He
or to otherwise intervene in the caused it to appear that A and B participated in the
preparation of the document; or execution of the extrajudicial settlement of the


b. He has the official custody of the
document which he falsifies estate, when they did not in fact so participate.

III. AT T R I B U T I N G T O P E R S O N S W H O H AV E
3. That the said offender falsifies a document by PARTICIPATED IN AN ACT OR PROCEEDING
committing any of the following modes stated STATEMENT OTHER THAN THOSE IN FACT MADE
therein: BY THEM
If you will look at Art. 171, it does not So under the third act, persons participated in
state the kind of document that has been an act or proceeding, they made statements
falsified, it may not be stated because it therein, however, the offender in a document
necessarily follows that the document may appear that these persons have made
falsified is a public or official document certain statements which were not in fact
because the offender is public officer or
employee or notary public. Therefore
necessarily, the document being falsified
made by them.

Q: So what if in the SangguniangPanglungsod, an
in Art. 171 is a public official or official ordinance was being passed. There was a votation,

document.

Art. 171 provides for the DIFFERENT ACTS OF


majority of the councilors voted, two of the councilors
dissented and their vote were NO. they just stated that
they were voting in the negative, but, they did not give any
FALSIFICATION. These acts of falsification are also explanation for their dissent or the vote of NO. however, in
applicable in Art. 172: the minutes appeared by the Sangguniang Secretary, the
I. BY COUNTERFEITING OR IMITATING ANY latter made it appear that the two councilors made
HANDWRITING, SIGNATURE OR RUBRIC. statements that they voted NO because the said ordinance
So what is COUNTERFEITING? is contrary to law. Is the said secretary liable for
The offender is said to have counterfeited
a signature, handwriting or rubric if he
has imitated an official handwriting,

falsification?

A: YES. He is a public officer. He is the one who


signature or rubric. prepared the minutes for the
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CRIMINAL LAW 2
SangguniangPanglungsod and he made it appear 2 ACTS:
that the 2 councilors stated that the said ordinance i. The offender makes an alteration
is contrary to law and in truth and fact, they did not ii. The offender makes an intercalation in a
made those statements. So the said secretary is genuine document which changes its

liable for falsification.

IV. MAKING UNTRUTHFUL STATEMENTS IN A


meaning
ALTERATION changes in a document
NARRATION OF FACTS INTERCALATION there must be some
The evidence of this act of falsification insertion made in the said document, in a
requires: genuine document that changed the meaning
i.That the offender makes in a document of the said document
untruthful statement in a narration of
facts;

VII. ISSUING IN AUTHENTICATED FORM A DOCUMENT
ii.That he has legal obligation to disclose PURPORTING TO BE A COPY OF ANY ORIGINAL
the truth of the facts narrated by him DOCUMENT WHEN NO SUCH COPY A STATEMENT
iii.The facts narrated by the offender are CONTRARY TO, OR DIFFERENT FROM THAT OF
absolutely false THE GENUINE ORIGINAL
iv.The untruthful narration must be such as 2 ACTS PUNISHED:
to effect the integrity of the document 1. The offender issued in an authenticated
and that the offender does so with the form a document purporting to be an
intent to injure or prejudice another authenticated copy of an original document,


person

It is necessary that the intention of the
but no such original exists
2. By including such copy a statement
intention of the offender must be to INJURE
ANOTHER PERSON.
contrary to or different from a genuine original

ILLUSTRATION:
In case of making false statements in a Q: What if a notary public issued a deed of absolute sale
narration of facts, it is necessary that the and he said that it is an original copy of a deed of absolute
offender must have the legal obligation to sale between A and B. A selling his property to B, but in
disclose the truth in the said narration of facts. truth and in fact, no such deed of absolute sale was
Absence of such legal obligation, then it executed between A and B. Is the notary public liable?
cannot be said that he is liable for A: YES. He is liable under the second act of
falsification. falsification in the seventh act of the 3rd element in
When you say legal obligation, there is a law
which requires him to state nothing but the
Art. 171.


truth in the said document.

Q: So what if the offender, a public officer, falsified the


Q: What if a civil registrar issued a certificate of live birth.
So here comes A. A was asking that he should be given a
certified copy of a certificate of live birth. In the said
statement in his residence certificate or community tax certificate of live birth issued by the said civil registrar, there
certificate. Although he stated his true name, he did not was a statement that A was an illegitimate child, but in the
state his address, citizenship, etc. So makes false original copy of the certificate of live birth submitted to the
statement of facts in his residence certificate or community office of the Office of the Civil Registrar, there was no such
tax certificate, otherwise known as cedula. So he was
charged with falsification. He contended that there is no law
which requires him to state the truth in his residence

statement. Is the civil registrar liable?

A: YES. He is liable under the second act of


certificate. Is his contention correct? falsification in the seventh act of the 3rd element in
A: His contention is wrong. According to a ruling in Art. 171. Because he included in the said copy a
the Supreme Court, if it is a residence certificate statement contrary to or different from that of a
or community tax certificate, there need not be a
law which requires a person to state the truth in
the said residence certificate, it is inherent in the
genuine original.

kind of document. Since it is a residence VIII.INTERCALATING ANY INSTRUMENT OR NOTE


certificate or cedula, it is inherent that in this RELATIVE TO THE ISSUANCE THEREOF IN A
document, nothing but the truth must be stated PROTOCOL, REGISTRY OR OFFICIAL BOOK.
no falsity. Because it requires identification. INTERCALATION making any insertion in
V. ALTERING TRUE DATES
It is necessary that what has been altered

any instrument or note

So these acts, under ARTICLE 171, are also the very


must be a true date and in the alteration of
the said true date, the document will no same acts punished under Art. 172.


longer have any effect.

VI. MAKING ANY ALTERATION OR INTERCALATION IN


A R T I C L E 1 7 2 FA L S I F I C AT I O N B Y P R I VAT E
INDIVIDUALS AND USE OF FALSIFIED DOCUMENTS
A GENUINE DOCUMENT WHICH CHANGES ITS THREE PUNISHABLE ACTS/FELONIES?
MEANING
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CRIMINAL LAW 2
I. Falsification of a public, official or commercial can be committed by any
document by a private individual
So in case of FALSIFICATION OF A PUBLIC,
OFFICIAL OR COMMERCIAL DOCUMENT
person.

Articles 174 and 175 refer to the persons who shall be


by a PRIVATE INDIVIDUAL, is just the same
as ARTICLE 171 they only differ in that in
Art. 171, the offender is a public officer or

criminally liable in case of falsified document.

ARTICLE174 FALSE MEDICAL CERTIFICATES,


employee. FALSE CERTIFICATES OF MERIT OR SERVICE, ETC
In ARTICLE 172, yes, the document falsified Under Art. 174, if the
is a public, official or commercial document, offender is a PHYSICIAN
but, the offender is a private individual even if OR SURGEON who
the offender is a private individual, since the issues a false medical
document falsified is a public, official or certificate in the practice
commercial document, DAMAGE OR INTENT of his profession, he

II.
TO CAUSE DAMAGE IS NOT AN ELEMENT.

Falsification of private document by any


becomes liable under Art.
174.
Likewise, Art. 174
person punishes a PUBLIC
The document falsified is a PRIVATE OFFICER who issues a
DOCUMENT. The offender is any person. He false certificate of merit,
can be a private individual, he can be a service or good conduct,
private officer or employee for as long as the moral character, etc.
document falsified is a private document, it And, under Art. 174, ANY
necessary that there must be damage caused PRIVATE INDIVIDUAL
to a third person or at least the intention of who falsifies a medical
the offender is to CAUSE DAMAGE. certificate or certificate of
Absence of damage or intent to cause merit or service or good
damage, then falsification of a private conduct shall be also

III.

document will not arise.

Use of falsified document



criminally liable.
T h e o ff e n d e r i s t h e
person who falsifies,
A document has been falsified and the issues the false medical
offender uses the said document. certificate or certificate or
If the falsified document is used in a merit.
JUDICIAL PROCEEDING, again, DAMAGE If the offender is not the
or INTENT TO CAUSE DAMAGE is NOT AN falsifier, but he knows
ELEMENT because it is a judicial proceeding. that the said document is
But if the said falsified document is used in falsified and he makes
any other transaction, this time, damage or use of the same, his

intent to cause damage is an ELEMENT.

ARTICLE173 FALSIFICATION OF WIRELESS


liability is under Art. 175.

ARTICLE175 USING FALSE CERTIFICATE


TELEGRAPH AND TELEPHONE MESSAGES Under Art. 175, the
Punishable acts offender knows that the

I. Uttering fictitious, wireless, telegraph or medical certificate or


telephone message certificate of merit has
II. Falsifying wireless, telegraph or been falsified and
telephone message despite that knowledge,
he makes use of the

III. Using such falsified message

If the act punished is UTTERING FICTITIOUS, same.

WIRELESS, TELEGRAPH OR TELEPHONE ILLUSTRATION:


M E S S A G E S a n d FA L S I F Y I N G W I R E L E S S , Q: So what if the defense counsel is about to present his
TELEGRAPH OR TELEPHONE MESSAGES, note witness. The witness is a person who was present in the
that these can only be committed by a person working scene of the crime who actually saw the incident that is
in a department, agency or corporation which is according to the defense counsel. However, on the date of
engaged in a business of receiving and sending the said hearing, the said witness failed to appear, the
wireless, telegraph and telephone messages. defense counsel said to the judge: Your Honor, my witness
Under the third act is in the hospital, he cannot even get out of bed. He is very,

U S I N G FA L S I F I E D very sick. The judge, however, was doubtful of the said


W I R E L E S S , manifestation of the defense counsel and so the judge told
TELEGRAPH OR the defense counsel: Okay, let him appear in the next
T E L E P H O N E hearing and make sure that he brings with him a medical
MESSAGES, this time, it certificate to show that indeed he can testify in this hearing.
With that, the defense counsel informed the witness of the
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CRIMINAL LAW 2
said order of the court. The said witness was in that time, immediately arise. However, the said false
healthy, it is just that he was too afraid to testify. However, representation, aside from being done
in the next hearing, he is deemed required to produce a knowingly, must be such that he intended to
medical certificate showing that he was bedridden. And so, be known by such other person or by public
he went to his medical doctor. He asked the doctor to issue
a medical certificate saying that he was very, very sick and as a representative or agent of Philippine
government.
that he could not get out of bed on the said date. The said
doctor issued the said medical certificate and then his
witness appeared on the second hearing and presented II.

There is usurpation of official function if any
him to the court. It was submitted to the records of the person performs an act pertaining to a person in
court. What crime or crimes is/are committed by doctor or authority or a public officer of the Philippine
the physician as well as by the witness? Government or of a foreign government or agency

thereof, under pretense of official position, and
A: The PHYSICIAN is liable under Art. 174. He
issues a false medical certificate in the exercise or without being lawfully entitled to do so.
in the practice of his profession. It is necessary that the offender performs an
On the other hand, the WITNESS, despite act. Mere representation will not suffice. It is
knowledge that it is a falsified medical certificate, necessary that he performs an act pertaining
still made use of the same and he presented and to a person in authority or a public officer of
submitted it to the court.

ARTICLE176 MANUFACTURING AND POSSESSION


any department or agency of the Philippine
government or of a foreign government.
OF INSTRUMENTS OR IMPLEMENTS FOR In usurpation of official functions, it is
FALSIFICATION necessary that the act pertaining to a person
This is the felony that is if in authority or a public officer must be under
a person was found in pretense of official position and without being
possession of unfilled-out lawfully entitled to do so.
forms of drivers license,
he can be held liable for

ILLUSTRATION:
falsification of a public
document and liable only Q: What if an administrative case was filed against the
in Article 176. mayor before the Office of the Ombudsman. During the
Under Art. 176, what was investigation of the case, the Ombudsman preventively
being punished are: suspended the mayor for a period of six months. The DILG
1. Making or introducing implemented the suspension order and the vice-mayor was
into the Philippines any made the acting mayor. However, upon advice of his
stamps, dies, marks or other
counsel, the suspended mayor began working, began
instruments or implements for
counterfeiting or falsification. performing the acts of being a mayor after 90 days of
2. Possessing with intent to preventive suspension. That is because according to his
use the instrument or counsel, he can only be suspended for a period of 90 days.
implements for counterfeiting So on the 91st day of his suspension, he again began
or falsification made in or assuming the function of a mayor. He signed documents,
introduced into the he issued memorandum, etc. as the city mayor. Is he liable
Philippines by another under Article 177 for usurpation of official function?
person.

ARTICLE177 USURPATION OF AUTHORITY OR


A: Yes, he is liable for usurpation of official
function under Article 177. The reason is that he
OFFICIAL FUNCTIONS is still under preventive suspension. Unless and
I. Usurpation of authority is committed when a until it is lifted by the Ombudsman and the said
person knowingly and falsely represents himself lifting was implemented by the DILG, he remains
to be an officer or agent of any department of the to be a suspended mayor. And for having acted,
Philippine government or agency thereof or of a for having performing an act pertaining to the
foreign government. office of a mayor, he is said to be committed a
The crime will immediately arise from the mere violation of Article 177, usurpation of official
function.
act of person of knowingly and falsely
representing himself to be an officer or agent
Q: What if there was heavy traffic. So there was no MMDA
of any department or agency of the
Philippines or of a foreign country. It is not officer or policeman manning the traffic. One of the owners
necessary for the offender to commit any act, of the vehicle caught in the traffic alighted from the vehicle
to perform any act. It suffices that he falsely and he manned the traffic to ease the flow of the traffic. The
represents himself to be an officer or agent of said man performed an act pertaining to an officer of the
the Philippine government. The crime will
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CRIMINAL LAW 2
MMDA, pertaining to a traffic enforcer. Is the said man What is an alias? What does C.A. 142, as
liable for usurpation of official function? amended, or the Anti-Alias Law provide?
A: NO. While the man performed however he did According to the SC, an alias is a name or
not do so under pretense of official position and names use intended to be used by a person
without being lawfully entitled to do so. There was publicly and habitually, usually in business
no intent on his part to falsely represent himself as transaction other than the name registered at birth
to be in that position. There was no false pretense for the first time before the local civil registrar.
of official position therefore he cannot be held Under C.A. 142 as amended, except as
liable under Article 177 or usurpation of official pseudonym, in literary, cinema, television, radio
function because his act was only done out of and other entertainment purposes, and in athletic
pacific (promote peace; to end a conflict) spirit to events wherein the use of a pseudonym is a
help ease the said traffic. normal practice, no person can use any name

ARTICLE178 USING FICTITIOUS NAME AND
other than his name by which he is registered at
birth at the local civil registrar or by which he is
CONCEALING TRUE NAME registered by the Bureau of Immigration upon his
Punishes two acts: entry into the Philippines.
I. USING FICTITIOUS NAME The use of any other name must only be upon
Committed by any person who shall approval by the judicial or competent authority.
use a name other than his real name Therefore, no person can use any other name
publicly for concealing a crime, or evade other than the name by which he is baptized at the
the execution of a judgment, or to cause office of the civil registrar in your place other than
damage to public interest. the name by which he is recorded in Bureau of
ELEMENTS: Immigration, if case he is a foreigner coming here
1. The offender uses a name other than his in the Philippines. He can only use his name.
real name EXCEPT if he is an actor, if he is an athlete, then
2. That he uses that fictitious name publicly he is allowed to use a pseudonym. When he is a
3. That the purpose of the offender is either: writer of a book, then he is allowed to use a
a. to conceal a crime; or pseudonym, a pen name other than his real name
b. to evade execution of a judgment; or because it is a normal practice OR if he files the
c. to cause damage to public interest. use of a substitute name before the court and he
II. CONCEALING TRUE NAME is allowed by judicial or competent authority to use
ELEMENTS: any other name, then he can also use another
1. The offender conceals name. But outside these, a person can only use
a. his true name; AND the name by which he is registered at the office of
b. all other personal circumstances civil registrar.
2. That the purpose is only to conceal his
identity

CESARIO URSUA v. CA

HOW WOULD YOU DISTINGUISH IF THE CRIME
The said accused made use of a different
name. he used the name of Oscar Perez in the
COMMITTED IS USING FICTITIOUS NAME OR office of the Ombudsman as he was trying to get a
CONCEALING TRUE NAME? copy of the complaint filed against him. It was
In case of using fictitious name, the use of a however discovered that a case of violation of CA
name other than his real name, is done publicly. 142 was filed against him.
There is the element of publicity. Whereas, in case The SC held that he is not criminally liable. The
of concealing true name, it is not necessary that SC acquitted the accused because according to
the use of another name, concealing his true and the SC, the use of the name Oscar Perez in an
real name must be done publicly. isolated transaction, without any showing, absent
Using fictitious name and concealing true an evidence that henceforth he wanted to be
name differ in purposes. In case of using fictitious known by the name of Oscar Perez in not within
name, the purpose is to conceal a crime, evade the prohibition of CA 142 as amended. There was
the execution of judgment or to cause damage to no evidence that showed that henceforth he
public interest. On the other hand, in concealing wanted to be known by that name. There was no
true name, the only purpose of the offender is to showing that henceforth, he wanted to be called
conceal his true and real identity. by the said name therefore it cannot be said that

ANTI-ALIAS LAW (C.A. No. 142, as amended) Oscar Perez is an alias of the accused.

SO RELATED IN ARTICLE 178 IS C.A. 142 AS AMENDED PEOPLE v. ESTRADA


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CRIMINAL LAW 2
In this case, the former president made use of He is also not liable under CA 142, as
the name Jose Velarde in signing a trust account. amended, because the use of the name Y in
So he signed a trust account, using the name a single transaction, in a single isolated
Jose Velarde and so he was charged with transaction, without any showing that
violation of CA 142 as amended. henceforth he wanted to be known as Y is
Again, the SC said, the use by Erap of the not within the prohibition of CA 142, as
name Jose Velarde in a single, isolated amended.
transcation, without any showing that henceforth
he wanted to be known by such name, is not

ARTICLE179 ILLEGAL USE OF UNIFORMS AND
within the prohibition of CA 142 as amended. First, INSIGNIA
it was not done publicly and was in fact done Committed by any person who makes use of
secretly in the presence of Laquian and Chua and any insignia, uniform or dress which pertains to an
the said act of signing does not make it public office not being held by the offender or to a class
because these two are his close friends therefore of person of which he is not a member and he
it was done secretly, in a discreet manner. Hence, makes use of such insignia, uniform or dress
it was not done publicly. It was also not done publicly and improperly.
habitually. The element of habituality is not ELEMENTS:
present because there was no showing that in any 1. The offender makes use of INSIGNIA,
other transaction, he made use of the name Jose UNIFORM or DRESS
Velarde. Hence, he was also acquitted although 2. That the insignia, uniform or dress pertains to
convicted by Sandiganbayan, he was acquitted by an office not being held by the offender or to a
the SC. class of person of which he is not a member.

Q: What if a lawyer was having a massage in a sauna bath
3. That the said insignia, uniform or dress is used
publicly and improperly.
parlor. He did not know that as a front it is a sauna bath The offender uses the insignia, uniform or
parlor but in truth and in fact, it was a prostitution den. At dress of an office not held by him or a by a
the time that he was having this massage service, the class of person of which he is not a member
police raided the place because they were able to secure a and he used the same publicly and improperly.
search warrant. And among those arrested was the said
attorney. The said attorney was brought to the PNP station

ILLUSTRATION:
and he was asked of his name, ashamed to reveal his true Q: What if a person was wearing a uniform. So he said that
identity, his true name, he said that he was Y and did not it was a uniform of a certain organization known as H world
state that he was Atty. X. However, when he was asked his but in fact, no such organization ever existed. Is he liable
residence, he stated the truth. As of the name of his wife, under Article 179?
he stated the truth. As of the name of his children, he A: No, he is not liable of Illegal use of insignia,
stated the truth. Is he liable for using fictitious name? uniform or dress Article 179. The reason is that
A: He is not liable for using fictitious name. H world does not belong to any office, doesnt
First, he did not do so publicly. Second, his use of refer to a class of persons; therefore, he is not
the name was not done to conceal a crime, to liable under Article 179.
evade the execution of sentence or to cause
damage to public interestnone of these

Q: What if a person made use of a uniform of a prisoner.
purposes is present; therefore he is not liable for So you see a person, he was receiving a holy communion,
using fictitious name. he was wearing an orange t-shirt with a big letter P at the
Is he liable for concealing true name? back which means Prisoner. Can he be held liable under
No, he is not liable for concealing true Article 179?
name. Although he concealed his real A: He is not liable of Illegal use of insignia,
name, Atty. X, he did not conceal his other uniform or dress under Article 179. Although he used the
personal circumstances. He divulged his uniform of a prisoner, it is not an office held by the offender,
address. He divulged the name of his wife, it is not also a class of persons. When you say a class of
the names of his children; therefore, it persons of which he is a member, it refers to a dignified
cannot be said that he has the intention to class of persons. He is assuming that he belongs to the
conceal his true identity. In fact, his true said class of persons. Here, he is even belittling himself
identity can easily be verified just by going to because he was wearing a uniform of a prisoner. Hence, it
the said address; therefore he is not also cannot be said that he violated Article 179.

liable for concealing true name.


Is he liable under CA 142, as amended?

FALSE TESTIMONY (ART 180, 181, 182)

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CRIMINAL LAW 2
False testimony can either be false testimony in A:Yes, A can still file a case of false testimony
criminal cases (Articles 180 and 181), false against the false witness. He can still file a case
testimony in civil cases (Article 182) and false of false testimony against the said false witness
testimony in other cases. even of the court did not consider the said false
False testimony in criminal cases can either be: testimony. Even if the court did not give any merit
(1) false testimony against a defendant (Article on the said false testimony and acquitted him. The
180) and (2) false testimony favorable to crime will arise the moment the said offender
defendant (Article 181). testified falsely in open court whether in favor or

ARTICLE180 FALSE TESTIMONY AGAINST A against a defendant.

DEFENDANT Q: What if in the same case, A was being prosecuted for


In a criminal proceeding, the offender-witness homicide. Then the prosecution presented the witness. The
testified falsely against a defendant knowing that witness testified falsely against the defendant saying that
his testimony is false and then the said defendant he saw the actual act of killing. After trial on the merits, the
is either acquitted or convicted. judge convicted the accused, the judge believed the false

ELEMENTS:
testimony and so the judge convicted him. Upon conviction,
within 15 days from the promulgation of judgment, the said
1. That there be a criminal proceeding accused, the said convict, filed an appeal before the CA.
2. That the offender testifies falsely under oath While the case was pending before the CA, can the said
against the defendant therein. accused, the convicted person, already file a case of false
3. That the offender who gives false testimony testimony against the false witness who testified against
knows that it is false. him?
4. That the defendant against whom the false A:Not yet. Any case would still be a premature
testimony is given is either acquitted or case. In fact, you would not know what court will
convicted in a final judgment. (People v. have jurisdiction. You would not know if the court
Maneja) that will have jurisdiction over the false testimony

ARTICLE181 FALSE TESTIMONY FAVORABLE TO
is the RTC or the MTC because the penalty to be
imposed on the false witness is always dependent
DEFENDANT on the penalty imposed on the convict.
In a criminal proceeding, the offender-witness Under Article 180, if the defendant has been
testified falsely in favor of the defendant and he convicted and the penalty imposed is capital
knew that his testimony is indeed false. punishment or death then the false witness shall

Whether it be a false testimony against or false


be imposed with a penalty of reclusion temporal. If
the defendant, upon conviction is imposed with a
testimony in favor of a defendant, it is penalty of reclusion perpetua and reclusion
immaterial whether the court will consider or temporal, the penalty will be imposed on the false
not the said false testimony. The case may be witness is prision mayor. If the said defendant is
filed. convicted and the penalty imposed on him is any

ILLUSTRATION:
other afflictive penalty, the penalty to be imposed
on the false witness is prision correcional. On the
Q: What if A is being prosecuted for the crime of homicide, other hand, if the penalty imposed on the said
for having killed the victim. So while he is being defendant is prision correcional, arresto mayor,
prosecuted, the fiscal presented a witness. This witness fine or he was acquitted. If he was acquitted, the
was also brought in by the heirs of the victim. The heirs of penalty to be imposed on the said person who
the victim said that the witness saw the said act of killing. testified falsely is arresto mayor.
The fiscal believed and the fiscal presented the said So in this case, the penalty on the false
witness. The witness however was not present at the scene witness is always dependent on the penalty to be
of the crime but in his testimony the witness said that he imposed by the court on the defendant; therefore,
was present at the scene of the crime and that he actually there must first be a final conviction by final
saw the accused stabbing the victim to death. The judgment.
accused, A knew that the witness was testifying falsely NOTE: if it is an acquittal, the case can be
because he knew that at the scene of the crime, it was only immediately filed because an acquittal is
he and the victim who were present. After trial on the immediately executory. You cannot appeal an
merits, the judge, acquitted the said accused A. In other acquittal. It is immediately executory.
words, the judge did not give weight to the testimony of the
false witness. Can A still file a case against the false

Q: So the case was filed against A for homicide, here
witness? comes a witness, the witness testified falsely in favor of the
Dinty | Manalo | Navarez | Shyu | Tubio Page 57
CRIMINAL LAW 2
accused. Can the private complainant, the heirs of the In order to amount to perjury, it is necessary
victim, immediately file a case of false testimony against that the said oath must be given before
the witness right after the giving thereof? an officer duly authorized to receive and
A: Yes, because in case of false testimony in administer. Otherwise, it cannot be
favor of the defendant, the penalty of the false considered as perjury because the
witness is not dependent on the penalty to be essence of perjuryis the violation of
imposed on the said accused or defendant. the solemnity of oath.

ARTICLE182 FALSE TESTIMONY IN CIVIL CASES
If the person who received the oath is not
duly authorized, it cannot be said that
Right after the giving of the false testimony, the there is a violation of the solemnity of the
private complainant or the aggrieved party, can oath.
immediately file a case against the false witness
who testified in favor of the defendant.

3.That in the said statement or affidavit, the
ELEMENTS: offender makes a willful and deliberate
1. The testimony must be given in a civil case assertion of falsehood
2. The testimony must relate to the issues It is necessary for perjury to arise that the
presented in said case (relative or pertinent) o f f e n d e r d e l i b e r a t e l y, k n o w i n g l y
3. The testimony must be false ascertained a falsehood. There was a
4. The false testimony must be given by the deliberate intent on his part; therefore,
defendant knowing the same to be false. good faith is a defense in perjury.
5. The testimony must be malicious and given with Perjury likewise cannot be committed out of
intent to affect the issues presented in the mere negligence. It is necessary that
said case (U.S. v. Aragon) there must be a deliberate intent on his
In case of false testimony in a civil case, right after part to assert a falsity either in the
the giving of the false testimony, the false witness statement or affidavit.


can be immediately prosecuted in court.
In order to amount in false testimony in civil cases, 4.

The said statement or affidavit containing
there must be litigation. Take for example a sum of falsity is required by law.
money, breach of contract. If the false testimony is If it is not required by law then it cannot be
given in a special proceeding, for example, considered as a crime.
petition for nullity of marriage, petition for
separation, petition for habeas corpus, these are

ILLUSTRATION:
special proceedings and a false testimony of a Q: What if X made a false statement in a criminal
person who testified falsely during this special proceeding, what crime is committed?
proceeding, the case is under Article 183, false A: The crime committed is FALSE TESTIMONY.
testimony in other proceedings.

Q: A makes a statement in a labor case against B. What
ARTICLE183 PERJURY crime is committed?
PERJURY is the willful and deliberate A: The crime committed is PERJURY.
assertion of falsehood on a material matter If the false statement under oath is made in a
made before an officer duly authorized to judicial proceeding whether it be a criminal or
receive and administer oath. civil proceeding, the crime committed is
ELEMENTS: FALSE TESTIMONY. If the said false
1. The accused made a statement under oath or statement, however, is made in a non-judicial
executed an affidavit upon a material matter proceeding, administrative proceedings, or
There are two ways of committing perjury: quasi-judicial proceedings, then the crime
The offender either: committed is PERJURY. So if the false
1. Makes a statement under testimony or the false statement is made in a
oath (he makes a false testimony); or labor case, in an administrative case, in an
2. Executes an affidavit on a application for search warrant, during the
material matter (if it is an preliminary investigation, before the fiscals
affidavit, it is also required office, the crime committed is perjury.
under oath)
2. The said statement under oath or affidavit

Q: What if the offender makes false narration of facts in a
was made before a competent officer duly cedula. The offender makes a false narration of facts in a
authorized to receive and administer oath drivers license. What crime is committed?
A: FALSIFICATION.
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CRIMINAL LAW 2

Q: What if the offender makes a false narration of facts in a

Q: What if in a case submitted in a fiscals office, so there
statement of assets, liabilities and net worth. So a public was a complaint and attached thereto is a sworn statement.
officer filed a statement of assets, liabilities and net worth. It In the said sworn statement, the witness said that he saw
contains falsities, false narration of facts. What is the the accident. He saw the accused bumped the victim.
liability? According to him, at the time, he was watching Saksi, when
A: The liability is PERJURY. suddenly a commotion occurred outside, he ran out of the

WHERE LIES THE DIFFERENCE BETWEEN
window, he saw at that particular time the accused hitting
the said victim with his vehicle and so he saw the accused
FALSIFICATION AND PERJURY? that caused the death of the victim. That was his statement
In falsification, the document is not required to be in the affidavit filed to the fiscals office. During
under oath. In case of perjury, the document is investigation, however, it was discovered he was not
required to be under oath. watching Saksi, he was watching Bandila, the news

H O W A B O U T T H E D I F F E R E N C E O F FA L S E
program in ABS-CBN and not the news program in GMA. Is
he liable of perjury?
STATEMENT AND PERJURY? A:No, he is not liable of perjury. Although it was
If the false statement is made in a judicial under oath, administered by a fiscal, still it is no
proceeding, it is false testimony. If the false perjury because it is not on a material matter.
statement is made in a non-judicial proceeding or Whatever it is that he was watching at the time,
administrative proceeding or quasi-judicial even if it is cartoon, it doesnt matter. What
proceeding, it is perjury. matters is that he heard the commotion, he ran to
ILLUSTRATION: the window, and he saw the accused bumping the
Q: An applicant for the bar filled out an application form for victim. He saw that it was the accused who killed
the bar, there was a statement therein, Have you ever the victim and that it was the car of the accused
been fined or convicted of any crime? and the answer was that hit the victim. Only then, it will be considered
no, however, in truth and in fact, he has already been fined as perjury but whatever he was watching, it was
for the crime of jaywalking. He answered no and then this immaterial. It was not on a material matter;
application for the bar is required to be under oath. He was therefore it will not amount to perjury.
looking for a notary public since it was a Sunday, there was
no office opened so he went to the legal office of his father,

SUBORNATION OF PERJURY is committed by a person
hoping that there was a lawyer there. However, there was who knowingly and willfully procures another to swear
only the janitor and he asked the janitor to sign in the falsely and the witness suborned does testify under the
notary public part and then submitted it to the office of the circumstances rendering him guilty of perjury.
bar confidante. Is the said applicant for the bar liable for NOTE: Subornation of perjury is not expressly penalized in
perjury or is he liable for falsification? RPC; but the direct induction of a person by another to
A: He is liable of FALSIFICATION and not of commit perjury may be punished under Article 183 in
perjury because the person who received and relation to Article 7, meaning, the crime is plain perjury but
administered the oath is not a confidante officer the one inducing another will be liable as principal by
duly authorized to receive and administer the inducement and the one who testified as principal by direct
oath. He was a mere janitor and not a notary participation.
public. As such, the crime committed is
falsification. Again, the essence of perjury is the

ARTICLE184 OFFERING FALSE TESTIMONY IN
violation of the solemnity of the oath. EVIDENCE

Q: A wrote a love letter to the girl that he is pursuing. In the
Committed by any person who shall offer in
evidence any false testimony or any false witness
said love letter, he stated falsities such as You are the only either in a judicial proceeding or in any official
one in my life. when in truth there were three of them. He proceeding.
stated I love you and I miss you and they were all ELEMENTS:
falsities. He even asked it to be notarized and sent it to his 1. The offender offered in evidence a false witness
third girlfriend. Is he liable for perjury? or false testimony.
A: No, he is not liable for perjury. He is not 2. The offender knew the witness or the testimony
liable for perjury because the said love letter is not was false.
required by law. The fourth element requires, to 3. The offer was made in a judicial or official
amount to perjury, the sworn statement under oath proceeding.
or the said affidavit must be required by law Is this the same as subornation of perjury?
because it is a crime against public interest not a Subornation of perjury is committed by any
crime against personal interest. person who procures a false witness in order
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CRIMINAL LAW 2
to perjures himself and testify falsely in a 4. The accused had the intent to cause
case. There is no such crime as the reduction of the price of the thing
subornation of perjury under the present auctioned.


RPC because we already have Article 184.
Article 184 is committed when any person

In order to be liable for this crime, whether it
who procures a witness and offers him as be the act of solicitation or the act of
evidence in court can be held liable under attempting to cause bidders to stay away from
Article 184 or he can be held liable as a public auction, it is necessary that the
principal by inducement in false testimony or intention of the offender is to cause the
as a principal by inducement in perjury; reduction of the price of the thing which is
therefore subornation of perjury is not the subject of the public auction. The acts
necessary and it is not a crime under complained of must be done for the purpose
Philippine jurisdiction, under the RPC. of reducing the price of the thing being

ARTICLE185 MACHINATIONS IN PUBLIC AUCTIONS auctioned.

There are two acts punishable under Article In public auction, it is necessary that the
185 public must be able to get the best price for
I. SOLICITING GIFT OR PROMISE the thing being auctioned. If there will be less
By soliciting any gift or promise as a bidders, less participants in the said public
consideration for refraining from taking auction, then the public will not be able to get
part in any public auction. the best price for the thing subject of the
The mere act of soliciting any gift or promise, public auction. Here, if the non-participation of
so that he will refrain from taking part of the other bidders was caused by a person,
the public auction, will already give rise to then he is liable under Article 185. Again, the
the crime. It is not necessary that he intention of the offender is to cause the
actually received the gift, it is not reduction of the price of the thing which is the
necessary that he actually will not subject of the public auction.
participate in the said auction.
ELEMENTS:

1. There be a public auction. ARTICLE186 MONOPOLIES AND COMBINATIONS IN
2. The accused solicited any gift or a RESTRAINT OF TRADE
promise from any of the bidders. Acts punished:
3. That such gift or promise was the I. C O M B I N AT I O N TO P R E V E N T F R E E
consideration for his refraining from COMPETITION IN THE MARKET
taking part in that public auction. This is committed by any person who shall
4. The accused had the intent to cause enter into any contract or agreement or
the reduction of the price of the thing taking part in any combination whether in
auctioned. the form of trust or otherwise, in restraint

II.

ATTEMPTING TO CAUSE BIDDERS TO
of trade or commerce or to prevent by
artificial means free competition in the
STAY AWAY market.
By attempting to cause bidders to stay away II. M O N O P O LY T O R E S T R A I N F R E E
from an auction by threats, gifts, COMPETITION IN THE MARKET
promises or any other artifice This is committed by monopolizing any
The mere attempt to cause bidders not to merchandise or object of trade or
participate in the said public auction by commerce or by combining with any
threats, gifts or promise will already give other person or persons in order to alter
rise to the crime. It is not necessary that the prices thereof by spreading false
the bidders would not actually participate. rumors or making use of any other
ELEMENTS: artifice to restrain free competition in the
1. There be a public auction market.
2. The accused attempted to cause the III. M A N U FA C T U R E R , P R O D U C E R , O R
bidders to stay away from that public PROCESSOR OR IMPORTER COMBINING,
auction. CONSPIRING OR AGREEING WITH ANY
3. It was done by threats, gifts, promises PERSON TO MAKE TRANSACTIONS
or any other artifice. PREJUDICIAL TO LAWFUL COMMERCE

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CRIMINAL LAW 2
OR TO INCREASE THE MARKET PRICE 1. The offender IMPORTS, SELLS or DISPOSES
OF MERCHANDISE any article or merchandise made of gold,


The FIRST TWO ACTS under Article 186 can
silver, other precious materials, or their alloys
2. That the STAMPS, BRANDS, or MARKS of
be committed by any person and not those articles or merchandise FAIL TO
necessarily by manufacturers, producer or INDICATE the actual fitness or quality of said
processors. The THIRD ACT however, can be metals or alloys
committed only by manufacturers, 3. The OFFENDER KNOWS that the stamps,
processors, producers and importers who brands or marks fail to indicate the actual
combined with any other person or persons in fitness or quality of the metals or alloys.
order to commit a transaction prejudicial to
lawful commerce or to increase the market

This is considered a criminal act because the
price of any merchandise or object of offender, despite knowing that the articles or
commerce merchandise that he imported are
Whether it be the first, second or third act, the
misbranded, he still imports the same, sells
the same or disposes the same

mere conspiracy in order to restrain or to


prevent free competition will already give rise
Mere importation is a punishable act;
to the crime. It is not necessary that there be therefore it is not necessary for the offender
actual restraint in trade or commerce. to become liable under Article 187 that he

ILLUSTRATION:
must have sold the misbranded articles or
that he must have disposed the article
Q: What if Petron, Caltex and Shell connived, combined because mere importationwill already give
and agreed with one another to hoard fuel. They know that rise to the crime.
the fuel prices will increase by March and so they decided
to hoard it. Can they be held liable under Article 186?

Juridical corporations cannot be the subject of TITLE FIVE
criminal action. First, it cannot be said that juridical CRIMES RELATIVE TO OPIUM AND OTHER
persons can act with intent. Second, you cannot PROHIBITED DRUGS
imprison a juridical person in case of conviction.
So if the offender is a juridical entity, who shall be

COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002
held liable? (RA 9165)
The president, the directors or any of the
members of the said corporation, association

SECTION 4 IMPORTATION OF DANGEROUS DRUGS
or partnership, who knowingly permitted and AND/OR CONTROLLED PRECURSORS AND
allowed this combination or monopoly in ESSENTIAL CHEMICALS
restraint of trade or commerce. Note that they Is committed by:
must have knowingly permitted the same Any person, who, unless authorized by
otherwise, they cannot be held criminally law, shall import or bring into the Philippines any
liable. dangerous drug, regardless of the quantity and


If the objects, which are the subject of this
purity involved.

monopoly or combination in restraint of trade In one Supreme Court decision, it held that: For
or commerce are prime commodities such as one to be liable for importation of dangerous
food, motor fuel, lubricants, it is not even drugs, it is necessary to be proven that the
necessary that there be conspiracy. A mere dangerous drugs that were taken in a vessel came
proposal, a mere intial step to hoard, to from a foreign country with the said dangerous
prevent free competition in the market will drugs on board the said vessel; therefore the
already give rise to the crime. prosecution must prove that the vessel which

ARTICLE187 IMPORTATION AND DISPOSITION OF
came into the Philippine ports had with it the
dangerous drugs. Only then can it be said that
FALSELY MARKED ARTICLES the dangerous drugs have been imported from
Committed by any person who shall imports, another country.

sells or disposes any article or merchandise


made of gold, silver, other precious materials,

SECTION 5 SALE, TRADING, ADMINISTRATION,
or their alloys DISPENSATION, DELIVERY, DISTRIBUTION AND
ELEMENTS: TRANSPORTATION OF DANGEROUS DRUGS AND/OR
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CRIMINAL LAW 2
CONTROLLED PRECURSORS AND ESSENTIAL
CHEMICALS

When the poseur-buyer said that he wants to buy

Selling Dangerous Drugs
illegal drugs for P200, the price has already been
established. Therefore, all the elements will suffice
Act of giving away any dangerous drug and/or even if the marked money has not been given by
controlled precursor and essential chemical the buyer to the seller. In fact, even if the marked
whether for money of any other consideration. money is not presented in court it will not be a

ELEMENTS OF SALE OF ILLEGAL DRUGS:
hiatus on the evidence of the prosecution provided
that the police officers and the witnesses were
1. The identity of the buyer and the seller able to prove the crime of illegal sale of dangerous
It is necessary that the identity of the drugs.

buyer and the seller are clearly
identified.

Q: How about the poseur-buyer? Is it necessary for the
2. The object and the consideration poseur buyer to testify in court? What if the prosecutor
3. The delivery of the thing sold and the payment failed to have the poseur-buyer testify in court? Does it
thereof mean to an acquittal?
Because if the dangerous drugs had
not been delivered, the third element A: The testimony of the poseur-buyer is not
is lacking, the sale is abds forted, indispensable in a case of illegal sale of
there is only ATTEMPTED ILLEGAL dangerous drugs. It is not indispensable because
SALE of dangerous drugs not the transaction can be proven by the other police
consummated illegal sale of officers who have witnessed the transaction.
dangerous drugs because the third However if the seller denies the existence of the
element is lacking. said transaction; it is the incumbent upon the

Q: What if a person has been prosecuted for Illegal sale of
prosecution to grove the said transaction by the
presentation the said poseur-buyer.
Dangerous Drugs. The said operation was a buy bust
operation. It is an entrapment procedure which is allowed

General Rule: The testimony of the poseur-buyer
by law. Here, the criminal/evil intent originated mainly from is not indispensable in a case of illegal sale of
the offender himself thats why it is not considered as an dangerous drugs.
absolutory cause. Here, the Police Officers employed Exemption: When the accused denies the
means and methods to entrap and capture the criminal in existence of the said transaction. If the
flagrante that is in the actual act of committing the crime. prosecution failed to present the poseur-buyer to
So what if in the buy bust operation, the accused drug testify in court, it will amount to the dismissal of
seller was arrested. In the said operation, the informant the case.
acted as the posuer buyer. He was given marked money.
The policemen ran into the place of the drug seller. Only

Q: Lets say there is this cigarette vendor on the side walk
the poseur-buyer knocked at the door of the drug seller. and here comes a man who parked his car near the side
The drug seller came out and the poseur-buyer said that he walk. He called the cigarette vendor and told the cigarette
wanted to buy dangerous drugs in the amount of P200. The vendor to deliver a package to the man inside the car which
drug seller said okay and gave 2 plastic sachets of is parked on the other side of the street. He told the
dangerous drugs to the poseur buyer. However, the cigarette vendor that he will give him P1000 if the he
poseur-buyer without having given the marked money yet agreed to deliver the package to the man inside the car
to the drug seller negligently removed his eyeglasses so which is parked at the other side of the street. The cigarette
the Police officers thought that that was the signal that the vendor asked the man what is inside the package however
sale has been consummated. They arrived at the said the man said its none of your business to know whats
place and arrested the drug seller. The marked money was inside that. I will give you P1000 if you deliver this to the
not given to drug seller. Does that constitute his acquittal? man inside that car parked at the other side of the street.
A: No provided that all the elements are
So the cigarette vendor with the P1000 got the bag and
delivered it to the man at the other side of the street. He
present: knocked at the window and the man lowered his window.
Note that the second element only requires the
However at the time of the said delivery the police officers
arrived and arrested the cigarette vendor. Can he be
crime must be established. The corpus delicti and prosecuted for delivery of dangerous drugs? Can he be
the price must be established. It does not require convicted for delivery of dangerous drugs?
that there must be giving of the price/money. It
suffices that the crime was established.

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CRIMINAL LAW 2
A: He can be prosecuted for delivery of 3. The owner of the said house must be
dangerous drugs however it is a defense on his included as an accused in the
part that he has no knowledge that the thing he is information or complaint.
delivering is dangerous drugs because under RA If these 3 elements are present; then the said
9165, delivering has been defined as the act of house shall be confiscated and escheated in
knowingly passing a dangerous drug to another, favor of the government.
personally or otherwise, and by any means, with
or without consideration. Therefore it is necessary

SECTION 8 MANUFACTURE OF DANGEROUS
that the one delivering dangerous drug must have DRUGS
the knowledge of the thing that he is delivering is The presence if any controlled precursor and
dangerous drug. essential chemical or laboratory equipment in the

DELIVER an act of knowingly passing a dangerous drug
clandestine laboratory is a prima facie evidence of
manufacture of any dangerous drug.
to another, personally or otherwise, and by any means, with
or without consideration.

S E C T I O N 11 I L L E G A L P O S S E S S I O N O F

SECTION 6 MAINTENANCE OF A DEN, DIVE, OR
DANGEROUS DRUGS

RESORT ELEMENTS OF POSSESSION OF ILLEGAL
Any person who maintains a den, dive, or resort DRUGS:
for the use of illegal drugs are liable under this 1. The accused was in possession of prohibited
section. drug
Are the owners, persons maintaining the said
In illegal possession of dangerous drugs;
the word possession does not only
dangerous drug dens are only the ones who are mean actual possession of the
criminally liable? dangerous drug in his body. It suffices
Under Section 7 of the act, even the that the said dangerous drug is found in
employees who are aware of the nature of the a place under the control and
said den, dive or resort for the use and sale of dominion of the said offender.
dangerous drugs are also criminally liable.
Likewise, even persons who are not

Q: By virtue of a search warrant the police officers
employees which knowingly visit the same conducted a search in the house of A to look for cocaine.
place despite the knowledge of the nature of They looked inside the bedroom and underneath the pillow
such den, dive, or resort are also criminally on the bedroom of A, the found several sachets of cocaine.
liable. Can it be held that A is in possession of the said drugs?

Q: What if the said den, dive, or resort is owned by a third
A: Yes because it is under his control
person? Lets say A and B rented a house. After giving the and dominion. Possession does not only
down payment, A and B went to the said house. A and B mean physical or actual possession. It
used the house as a den for illegal sale of dangerous also means as constructive possession
drugs. The police officers were able to secure a warrant for as long as the dangerous drugs is
and A and B were arrested. Can the owner of the said under his control and dominion.
house be criminally liable for the maintenance of the said
den? How about the house? Can it be forfeited in favor of 2.

Such possession is not authorized by law
the government? The offender is not authorized by law to
A: Under Sec. 6, the said den, dive, or resort for

possess such drugs. Dangerous drugs
are per se contraband. They are per se
the use of illegal sale of dangerous drugs shall be illegal items. The presumption is that
escheated in favor of the government provided such possession is without authority of
that the following circumstances concur: law. Therefore the burden of proof is on
1. The information must allege that the said the accused to prove that he has the
place is intentionally being used in authority to possess unlike illegal
furtherance of illegal sale/use of possession of firearms. Illegal
dangerous drugs. possession of firearms is not per se
2. Such intent must be proven by the contraband therefore in illegal
prosecutor. possession of firearms, it is the
prosecution who has the burden of proof
that the said person lacks license.
Dinty | Manalo | Navarez | Shyu | Tubio Page 63
CRIMINAL LAW 2

3.

The accused freely and consciously
The first element requires that the
offender must be actually using,
possessed the prohibited drug sniffing the dangerous drugs.
There must be an animus posidendi on
the part of the said accused. This animus 2.

After a confirmatory test; he was found to be
posidendi on the part of the accused is a positive for use of any dangerous drugs.
prima facie presumed by law. The He was at the PNP Crime Lab and
moment a person was found in after the confirmatory test, he was
possession of dangerous drugs, the found to be positive for use of
presumes that the person knows that the dangerous drugs.
thing in his possession is dangerous
drugs. 3.

No other amount of dangerous drugs must be

SECTION 12 - ILLEGAL POSSESSION OF DRUG
found in his possession.
If any other amount of dangerous
PARAPHERNALIA drugs was found in his possession,
e.g. A person was found in possession of empty then the proper charge would no
plastic sachets and other instruments used for longer be illegal use but illegal
using dangerous drugs. He is therefore liable for possession of dangerous drugs.

Illegal Possession of Drug Paraphernalia.


Q: The police officers saw a man snatched the cell phone
Q: What if a person was found in possession of drug of a woman. Since the police officers saw the man in


paraphernalia can they avail the benefit of probation?

A: Yes he can avail for probation. The penalty


committing the crime inflagrante delicto of actual act of
snatching and the man runaway, they followed the man.
The man entered the house. The police officers upon
prescribed by law for illegal possession of drug
paraphernalias is an imprisonment ranging from 6 entering the house saw 3 men on a round table; they were
months and 1 day to 4 years which is within the in the actual act of sniffing shabu. They were arrested and
probationable penalty. Under Sec. 24 of R.A. they were asked to stand up and fold their arms up and
9165, any person convicted for drug pushing and they were searched. Upon the search, they found out that
drug trafficking, regardless of the penalty imposed these 3 men; each of them was found a sachet of illegal


by the Court, cannot avail for probation.

So under Sec. 24; only those who are convicted of


drugs in their pockets aside from the dangerous drug that
they were using. What cases will you file against the 3
men?
drug pushing and drug trafficking which cannot
avail for probation therefore for any other violation A: Illegal Possession of Dangerous Drugs. No
of Dangerous Drugs Act, for as long as the penalty
imposed by the court is 6 years and below, he can illegal use of dangerous drugs because the third
avail for the benefit of probation. But if he is a drug element is one thing. Lets say after the
trafficker/ pusher, one who is engaged in selling confirmatory test they were found to be positive
dangerous drugs, he cannot avail of the benefit of however 3 elements must concur: 1st element:
probation even if the penalty imposed by the court
They were caught in the actual act of sniffing
is within the probationable penalty because it is
shabu. 2nd element: After confirmatory test they
expressly prohibited by Sec. 24 of RA 9165.

SECTION 13 ILLEGAL POSSESSION OF


were found positive of the use of dangerous drugs
however the 3rd element is lacking because they
DANGEROUS DRUGS DURING PARTIES, SOCIAL found to have in their possession a plastic sachet
GATHERINGS OR MEETINGS of other dangerous drugs other than the one they
in Sec. 13, if any person was found in possession used. Therefore the proper crime charged is illegal
possession of dangerous drugs.
of dangerous drug in a party, social gatherings or
meetings, or in the proximate company of at least
SECTION 21 PROCEDURE IN THE SEIZURE AND
two (2) persons; the maximum penalty prescribed
CONFISCATION OF DANGEROUS DRUG
by law shall be imposed.

The apprehending team which has the initial
SECTION 15 ILLEGAL USE OF DANGEROUS DRUGS
ELEMENTS OF ILLEGAL USE OF possession of the seized/confiscated dangerous drugs
DANGEROUS DRUGS: shall:
1. The offender was apprehended/ arrested in 1. Inventory the dangerous drugs
the actual use of dangerous drugs. 2. Take photographs of the same in the
presence of the accused or from the
person whom the dangerous drugs
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CRIMINAL LAW 2
have been confiscated or in the from the time of confiscation/seizure to the
presence of his counsel, a receipt in the forensic laboratory to
representative from the media, a safekeeping to presentation in court for
representative from the Department destruction.
of Justice, and an elected public
official who shall be given a copy of
What is the purpose Chain of Custody rule?
the said inventory and who shall be The purpose of Chain of Custody rule is to
required to sign the same. ensure that the dangerous drug seized/

Procedure:
confiscated from the accused is the very
same dangerous drug which has been
1. Upon seizure/ confiscation of dangerous drugs, tested by the forensic chemist and it is the
the same must be stated in the inventory list. very same dangerous drug presented in
2. There must be a picture taking of the dangerous court that is; there has been no
drugs in the presence of the accused or from the substitution of evidence.
person whom the dangerous drugs have been
Dangerous drugs are so small. There can be
confiscated or in the presence of his counsel, a
a replacement of the effects therefore this
representative from the media, a representative
Chain of Custody rule will ensure that there
from the Department of Justice, and an elected
will be no substitution of the very same
public official.
dangerous drug seized/confiscated from the
3. The elected public official must be required to sign
accused at the time that they were presented
the inventory list and shall be given a copy of the
to the court.
same.


Q: What if the police officers failed to comply with this
Q: What if a person is charged for illegal possession of
dangerous drugs and during his arraignment, he pleaded
not guilty and during the pre-trial, he said that he will
procedure? In People vs. Sta. Maria, the police officers
change his plea if he will be allowed to plead guilty for a
failed to comply with this procedure however there was
lesser offense of illegal possession of drug paraphernalia.
conviction. However, in the case of Dolera vs. People; the
So he wanted to avail of the plea-bargaining rule under the
police officers failed to comply with Sec. 21 procedure and
rules of court. Under the plea-bargaining rule, you can
this time there was an acquittal. Why is there an acquittal in
plead guilty to a lesser offense provided that the said lesser
the case of Dolera and why is there a conviction in the case
offense is necessary included in the offense charged. Here,
of Sta. Maria?
A: The Supreme Court held that even if there is
the charge is illegal possession of dangerous drugs; can he
plead for a lesser offense of illegal possession of drug
paraphernalia?
failure to comply with the procedure underlined in
Sec 21 of RA 9165 by the arresting officers, there
A: He cannot because Sec. 28 of R.A. 9165
will still be conviction if the said non-compliance is
provides that any person charged in violation of
due to justifiable reasons and provided that the
any of the crimes charged under this act cannot
police officers were able to preserve the integrity
avail of the plea-bargaining under the rules of
and evidentiary bond of the confiscated
court. Therefore any person charged in violation of
dangerous drugs this is in consonance with the
any of the punishable acts under R.A. 9165
chain of custody rule.

If the police officers were not able to comply with
cannot plead guilty to a lower offense.

the procedure due to justifiable cause, they must


SECTION 25 A POSITIVE FINDING FOR THE USE OF
be able to preserve the integrity and evidentiary
DANGEROUS DRUGS SHALL BE A QUALIFYING
bond of the confiscated dangerous drug that is;
AGGRAVATING CIRCUMSTANCE
right after confiscation, it must be marked to
ensure that it was the dangerous drugs taken from

Q: A killed B. The police officers arrested A and they
the accused and must be turned over to the
brought him to the crime lab to be tested for the use of
forensic laboratory for testing.

CHAIN OF CUSTODY RULE
illegal use of dangerous drugs. After testing, he was found
positive for the use of dangerous drugs. What is the effect
of it in the criminal liability of A?
What is the Chain of Custody rule? (People v
A: Sec 25 states the a positive finding for the use
Gutierrez)
of dangerous drugs shall be a qualifying
It is defined as the duly recorded authorized
aggravating circumstance.
movements and custody of dangerous drugs
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CRIMINAL LAW 2
What is the effect of a qualifying aggravating you cannot apply the provision of RPC to the
circumstance? provisions of RA 9165.
It changes the nature of the crime or even Exception to Section 98: If the offender is a minor
without changing the nature of the crime it will offender.
bring about a higher imposition of penalty. Where the offender is a minor, the penalty

for acts punishable by life imprisonment to
death provided shall be reclusion perpetua
SECTION 26 ATTEMPT OR CONSPIRACY to death.
Express exception to the general rule that in case
of violation of a penal law, there are no stages and
TITLE SIX
there is no conspiracy. CRIMES AGAINST PUBLIC MORALS (Articles 200


As a rule, in case of violation of penal law, we have no 202)

ARTICLE200 GRAVE SCANDAL


attempted stages. In violation of special penal laws, Grave Scandal a highly scandalous act
conspiracy unless expressly provided because these offensive to good morals, good customs and
are only for violation of the RPC, for felonies. One of decency committed in a public place or within
those exceptions is under Section 26 of RA 9165. public knowledge or public view.
Under Section 26 of RA 9165, any attempt or ELEMENTS:
conspiracy of any of the following acts shall be
punished already by penalty prescribed by law: 1. The offender performs an act or acts

1. Importation of any dangerous drug;


2. Such act or acts be HIGHLY SCANDALOUS as
offending against decency or good customs
It is necessary that the act must be
2. Sale, trading, administration, delivery, highly scandalous and offensive to
distribution, transportation of dangerous drug; morals, offensive to decency and
3. Maintenance of a den, dive, or resort where offensive to good customs.
any dangerous drug is used in any form; 3. That the highly scandalous conduct is not
4. Manufacture of any dangerous drug; expressly falling within any other article of this
Code.
5. Cultivation or culture of plants which are the
The third element requires that it must
sources of dangerous drugs.
If any of these acts mentioned is committed by the
not expressly fall within any other
article of this code. It must not
constitute any other violation in the
offender, a mere attempt; or conspiracy will RPC. Grave scandal is a crime of
already give rise to the crime as an exception to last resort because you only file a
the rule that in case of violation of penal law, there complaint for grave scandal when the
said act is not punishable under any
are no stages in the commission of the crime and
other article in the RPC.
conspiracy will not lie. So if any of the crime 4. The act or act complained of be committed in a
committed is any of these five acts, mere attempt public place or within the public knowledge or
will lie against the offender, conspiracy will lie view.
against the offender. Then the fourth element provides that

As held in the case of People v Rolando Laylo, the

the highly scandalous act must be
committed either in a public place or
within public knowledge or view. If the
charge was only attempted illegal sale of dangerous drugs.
highly scandalous act is committed in
The sale was aborted because even before the said drug a public place, the crime of grave
poseur was able to transfer the dangerous drug to the scandal will immediately arise. The
police officer, the police officers already introduced place being public, the law presumes
themselves as such and arrested him. As such, we only that someone may have witnessed
have attempted illegal sale of dangerous drugs. the commission of the highly

SECTON 98 LIMITED APPLICABILITY OF THE RPC
scandalous act. However, if the crime
is committed or if the highly
scandalous act is committed in a
In Book I, under Article 10, the provisions of the private place, for the crime of grave
RPC shall apply suppletorily or supplementarily to scandal to arise, it is necessary that it
the provisions of the special penal laws UNLESS must be witnessed by one or more
the special penal law provides otherwise. persons to be said that it is within the
One of the exceptions is provided for in Sec 98 of
RA 9165, it is provided that the provisions of RPC,
ILLUSTRATION:
public knowledge or public view.

as amended, shall not apply to the provisions of


Q: So let us say that A and B are boyfriend and girlfriend
RA 9165. The law uses the word shall; therefore
and it is their anniversary. They went to Luneta Park and at
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CRIMINAL LAW 2
exactly 12 midnight, in the middle of Luneta Park, they the editor, the owner or proprietor of the
engaged in sexual intercourse. No one witnessed their establishment that sells the said materials SHALL
sexual intercourse. Are they liable for grave scandal? BE HELD CRIMINALLY LIABLE.
A: YES. They are liable for grave scandal. They III. The third act punished is the exhibition of indecent
have the right to engage in sexual conduct but the shows, plays, scenes or acts in fairs, theaters,
fact that they performed the sexual conduct in cinemas or any other places.
Luneta Park, a public place makes the act IV. Selling, giving away or exhibiting films,,
offensive to public morals, decency and good engravings, sculptures or literature which are
customs and the said act does not constitute any
other violation in the RPC because they have the
right to engage in sexual intercourse. Therefore,
offensive to public morals.

ILLUSTRATION:
the crime committed is grave scandal because Q: So what if there is this building, when the person
they performed the act in a public place even if no entered the said building, on the floor of the said building
one saw the commission of the said act still, still were these magazines. And the magazines contain men
because it is performed in a public place , it is and women engaging in sexual intercourse, naked women
presumed that someone may have seen the and men, and other obscene materials. Who shall be held


commission of the highly scandalous act.

Q: So what if a wife and a husband, celebrating their


liable when the place was raided by the police?
A: The author of the said literature, the editors
publishing such literature and the owner or
anniversary, engaged in sexual intercourse in their terrace. proprietor of the establishment where the said
So the act is committed in their premises, in the terrace of magazines were being sold. They will be held
their house. However, the gate was open and so passersby
would see them performing the sexual intercourse. Are they
liable for grave scandal?

criminally liable under Article 201.

VAGRANTS AND PROSTITUTES (ART 202)


A: YES. They are liable for grave scandal. The Q: Let us say that there is this man, a healthy man and he
said act does not constitute another offense in the can look for work but he does not want to work. So he was
RPC because they have the right to engage in just roaming around and he saw houses of prostitutes or
sexual conduct. The sexual conduct was houses of ill-fames and he is always in this places. Can he
performed in the privacy of their home however; be held liable for vagrancy?
people witnessed the commission of the said act. A:NO, because vagrancy has been
It now becomes a highly scandalous act because decriminalized by R.A. No. 10158 which was
it is within the knowledge of the public or within approved on March 27, 2012. We no longer have

public view.

Q: What if A and B are boyfriend and girlfriend. The


the crime of vagrancy. No person can longer be


prosecuted for being a vagrant.

girlfriend is 11 yrs old and the boyfriend is 21 yrs old. And How about prostitution? Is there still a crime
because it is their monthsary the girlfriend thought of giving for prostitution?
herself as a gift and engaged in sexual intercourse in a
public place Are they liable for grave scandal?
A: NO. They are not liable for grave scandal. The

YES.

Who is a prostitute?
man is liable for statutory rape. A man who had A prostitute is any woman who, for money or
sexual intercourse with a child under 12 years of profit, indulges in sexual intercourse or
age, regardless of the consent, regardless of the lascivious conduct. So it is the work or job of
willingness of the said child, the man is liable for a woman. Note that the law defines it to be a
statutory rape. Because in so far as criminal law is woman therefore; a man cannot be
concerned, a child under 12 yrs old has no considered a prostitute. Before, if a man
intelligence of his/her own and is not capable of engages in sexual intercourse or lascivious
giving a valid consent. Therefore, even if the girl conduct he can be punished under Article 202
voluntarily gave herself in so far as the law is but now since vagrancy has been
concerned, it is still statutory rape. It is not grave decriminalized by R.A. No. 10158, he can no
scandal because the third element is wanting. The longer be prosecuted. Only prostitutes who
said act fall under the violation of article of RPC
that is under article 266-A for rape. As I said,
grave scandal is a crime of last resort. You only
are woman.

TITLE SEVEN

charge it when the crime committed does not CRIMES COMMITTED BY PUBLIC OFFICERS (Articles
constitute any other violation in the RPC.

ARTICLE201 IMMORAL DOCTRINES, OBSCENE 203 245)

PUBLICATIONS AND EXHIBITIONS, AND INDECENT ARTICLE203 PUBLIC OFFICERS


SHOWS REQUISITES TO BE A PUBLIC OFFICER:
Punishes: 1. One must be taking part in the performance of
I. Public proclamations of doctrines openly contrary public functions in the Government or one
to public morals must be performing in said Government or in
II. Publication of obscene literature. In case of any of its branches public duties as an
publication of obscene literature, it is the author,
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CRIMINAL LAW 2
employee, agent or subordinate official, of any interpreted it. The judge cannot be held civilly,
rank or class; and administratively, and more so, criminally liable. The said
2. That his authority to take part in the judgment is an unjust judgment because it was based on
performance of public functions or to perform this error in the interpretation of the law. However, there
public duties must be was no intent on the part of the said judge. Considering the
a. by direct provision of the law; or basis of the unjust judgment is mere error. The said judge
b. by popular election; or acted in good faith.
c. by appointment by competent authority If however, the unjust judgment is based on bad

Whenever a person applies to a public office, he has the
faith, that is, it is based on ill-motive on the part of the said
judge, therefore, he can be held liable criminally, civilly and
so-called, OATH OF OFFICE. If he is high-ranking official, administratively
the oath is also before a high-ranking official. If he is a
cabinet secretary, the oath is before the President or to the

- For him to be criminally liable, knowing that he
Supreme Court Chief Justice. If he is only an ordinary rendered an unjust judgment, it is necessary that
employee, still he has oath of office. It is a document which the unjust judgment is rendered out of ill-motive
is entitled, OATH OF OFFICE, he merely signs it. or bad faith, out of greed, revenge, envy, or any
other ill-motive. Hence he is known to have
Felonies under TITLE SEVEN are felonies in violation of
this oath of office, they can either be:
rendered an unjust judgment.

BASED ON MERE ERROR no criminal, no civil, no


administrative liability
MISFEASANCE MALFEASANCE
NON-
FEASANCE
ARTICLE205 JUDGMENT RENDERED THROUGH
A public officer A public officer NEGLIGENCE
performs an knowingly, This is again committed by a judge, who in a case
A public officer
official acts in a willfully refuses
performs in his submitted to him for decision, renders manifestly unjust
manner not in or refrains from
public office an act judgment.
accordance with doing an act
what the law

prohibited by law.
which is his ELEMENTS:


provides

(GN: Improper
(GN: Performance
official duty to


do.
1. The offender is a judge
2. That he renders a judgment in a case submitted
of some act which to him for decision
performance of (GN: Omission 3. That the judgment is manifestly unjust
ought not to be
some act which of some act
might be lawfully

done
which ought to
ignorance
4. The it is due to his inexcusable negligence or



done)

ARTICLE
ARTICLE
210-211


be performed)

ARTICLE

MANIFESTLY UNJUST JUDGMENT means that it is
204 TO 207 208 evident that a judgment is unjust. A first year law student

ARTICLE204 KNOWINGLY RENDERING UNJUST
would know that it is unjust, therefore it is manifestly unjust
judgment, because he acted in inexcusable negligence or
ignorance.
JUDGMENT
ELEMENTS:
ARTICLE206 UNJUST INTERLOCUTORY ORDER
1. The offender is a judge
2. That he renders a judgment in a case submitted ELEMENTS:
to him for decision 1. The offender is a judge
3. That the judgment is unjust 2. That he performs any of the following acts:
4. The judge knows that his judgment is unjust a. knowingly renders unjust interlocutory

UNJUST JUDGMENT is one which is contrary to law, or
order or decree
b. renders a manifestly unjust
one that is not supported by evidence or both. interlocutory order or decree through
inexcusable negligence or ignorance
The source of unjust judgment can either be mere
error or ill-will. If the source of an unjust judgment is
A R T I C L E 2 0 7 M A L I C I O U S D E L AY I N T H E
mere error on the part of the judge, then the said judge

is not civilly, criminally, and administratively liable.

ILLUSTRATION:
ADMINISTRATION OF JUSTICE
ELEMENTS:
1. The offender is a judge
In a case submitted to him for decision, the judge 2. There is a proceeding in his court
wrongfully interpreted a provision of law. It is a new law, 3. He delays the administration of justice
there is no jurisprudence yet, the judge wrongfully
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CRIMINAL LAW 2
4. The delay is malicious, that is, delay is caused THOSE WHO CAN CAUSE THE PROSECUTION OF THE
by the judge with deliberate intent to inflict OFFENDERS:
damage on either party in the case. - Judges

ARTICLE208 PROSECUTION OF OFFENSES;
- Barangay Chairman
- Persons in authority
NEGLIGENCE AND TOLERANCE
ACTS PUNISHABLE:

ARTICLE209 BETRAYAL OF TRUST BY AN
I. By maliciously refraining from instituting ATTORNEY OR SOLICITOR REVELATION OF
prosecution against violators of the law SECRETS
Note that the first crime, he knows that a ACTS PUNISHED AS BETRAYAL OF TRUST BY
crime was committed but he does not ATTORNEY:
prosecute the offender; I. By causing damage to his client, either
II. By maliciously tolerating the commission a. by any malicious breach of
of offenses professional duty
the second act, a crime was about to be b. by inexcusable negligence or
committed, he tolerates its commission. It ignorance
must be done with MALICE. Absent THERE MUST BE DAMAGE TO HIS
malice, Article 208 will not apply. CLIENT
ELEMENTS OF DERELICTION OF DUTY IN THE
II. By revealing any of the secrets of his
client learned by him in his professional
PROSECUTION OF OFFENSES: capacity.
1. That the offender is a public officer or officer of DAMAGE IS NOT NECESSARY
the law who has a duty to cause the prosecution
of, or to prosecute, offenses.

III.

By undertaking the defense of the
2. That there is a dereliction of the duties of his opposing party in the same case, without
office; that is knowing the commission of the the consent of his first client, after having
crime, he does not cause the prosecution of the undertaken the defense of said first client
criminal or knowing that a crime is about to be or after having received confidential
committed, he tolerates its commission. information from said client.
3. That the offender acts with malice and IF THE CLIENT CONSENTS TO
deliberate intent to favor the violator of the law. THE ATTORNEYS TAKING THE

Otherwise known as DERELICTION.
DEFENSE OF THE OTHER PARTY,
THERE IS NO CRIME

Can only be committed by a public officer or a officer of


the law who has the duty to cause the prosecution of

or to prosecute the offenders. The said public officer ELEMENTS:
commits dereliction of duty in the prosecution of
offenses under any of the following circumstances: 1. Causing damage to his client, either:
a. knowing the commission of the crime, he a. by any malicious breach of professional duty
does not cause the prosecution of the b. by inexcusable negligence or ignorance
criminal, or 2. Revealing any of the secrets of his client learned
b. knowing that a crime is about to be by him in his professional capacity
committed, he tolerates its commission 3. Undertaking the defense of the opposing party in
and the said offender acts with malice and the same case, without the consent of his first
deliberate intent to favor the violator of the client or after having received confidential

law
The dereliction of duty in the prosecution of offenses

information from said client

Under Article 209, this betrayal of trust is IN ADDITION


cannot be committed by just any public officer.
The public officer must be charged with the TO A PROPER ADMINISTRATIVE CASE which may
prosecution of the cases or he is the one who can be filed against an attorney or solicitor. So aside from
cause the prosecution of these offenders. the criminal case in violation of Article 209, he can also
be charged in a case also for disbarment, for violation
CHARGED WITH THE PROSECUTION OF THE of lawyers oath of duty may be filed against him, and
OFFENDERS:
- Fiscals
these two cases can be proceeded at the same time.

- Prosecutors ILLUSTRATION:
- State Prosecutors
A lawyer for 3 consecutive times, without any
justifiable reason, failed to file his formal offer of exhibits.
During the first time he was given 15 days, he failed to file,
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CRIMINAL LAW 2
second time he was given 15 days, he failed to file. On the X. Atty. X signed a contract and he is now the counsel of B.
third time, he was given 5 days still, he failed to file, without Is Atty. X liable for betrayal of trust by an attorney?
giving any justifiable reason for his non-compliance with the A: Atty. X is liable for betrayal of trust by an
order of the court. By reason thereof, there is no evidence attorney. He takes the case of B, the opposing
in behalf of the defense of his client was admitted by the party, even after he has already taken the case
Court. Because only evidences offered may be admitted by of A and after he has acquired valuable
the court. And so, the judge convicted the accused, the information about his client. How can he prevent
client was prejudiced because of the counsels malicious himself from being convicted of the betrayal of
breach of his professional duty. It is incumbent upon any trust?
counsel to file a pleading within the reglementary period He must first secure the consent of the
provided by law or required by the court. said first client
- For failing to do so without any justifiable reason, - In the said problem, there was no consent. The
he caused damage to his client by malicious said consent was only in the motion to withdraw.
The said consent in the motion to withdraw is not
breach of his professional duty.

Q: What if Atty. A was the counsel of X, he was behind bars


the consent on the acceptance of the case. For
every motion to withdraw, there must be a
consent written, otherwise the court will not grant
for the crime of kidnapping for ransom. Atty. A visited X to the motion to withdraw. The consent here is to
ask the facts of the case in order for him to study and to secure or to accept the service s of the other
nput up a good defense. During their conversation, X party.
informed his counsel, Atty. A that there will be another - Since consent was not given, he is liable for
kidnapping tomorrow night at 9PM in Quezon City, to be betrayal of trust by an attorney.
done by his other gang mates who were at large. Atty. A, Just remember aside from betrayal of
upon knowing this information from his client X, trust, an attorney or solicitor can also be
held liable of administrative case. So
immediately went to the police officers of Quezon City in
there may be disbarment.
order to pre-empt the commission of the crime. Is Atty. A He can be disbarred or he can be
liable for the second act because he divulged the secrets of suspended by reason of committing any
his client which he learned in his professional capacity?
A: Atty. A is not liable under Article 209. The
secrets being referred to under Article 209 refers
of these acts.

ARTICLE210 DIRECT BRIBERY


to the past crimes of the said client and it refers ACTS PUNISHABLE:
I. By agreeing to perform, or by performing,
to the facts and circumstances related to the
in consideration of any offer, promise, gift
crime which is being handed by the said Attorney or present an act constituting a crime,
or counsel.

It does not refer to future crimes that are still
in connection with the performance of his
official duties.
ELEMENTS:
about to be committed. When a lawyer takes his 1. The offender be a public officer within
oath of office, he says, or he promise, he swears the scope of Article 203
2. The offender accepts an offer or a
that he shall be liable not only to the client, but
promise or receives a gift or present
also to the STATE, to the GOVERNMENT.

It is his duty to the Government, to the State of
by himself or through another.
3. That such offer or promise be
accepted, or received by the public
any future crime that is about to be committed officer with a view of committing
more than his duty to his client. Hence, in this some crime.
case, since it refers to a future crime, for the 4. That the act which the offender
agrees to perform or which he
protection of the state and the citizenry, it is
executes be connected with the
incumbent upon him to divulge, disclose or to
reveal the said secrets.
II.
performance of his official duties.

By accepting a gift in consideration of the


Q: What if A filed a case against B, Atty. X was the counsel execution of an act which does not
of A, A failed to give Atty. X his appearance list for 5 constitute a crime, in connection with the
consecutive hearings, no appearance list. So Atty. X, filed a
motion to withdraw as counsel of A. The said motion to
performance of his official duty.

ELEMENTS:
withdraw was with the CONSENT OF A, because without 1. The offender be a public officer within
the consent of A, the said motion to withdraw will not be the scope of Article 203
granted by the court. So the court granted and Atty. X is no 2. The offender accepts an offer or a
longer the counsel of A. When B learned about this, went promise or receives a gift or present
immediately to the office of X and secured the services of by himself or through another.

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CRIMINAL LAW 2
3. That such offer or promise be is not a criminal act. It is his official thing to do,
accepted, or received by the public but he doesnt want to do it without the bribe first
officer in consideration of the to be given to him. So it is only upon
execution of an act, which does not ACCEPTANCE OF THE BRIBE that criminal

4.
constitute a crime, but the act must
be unjust
That the act which the offender
liability for direct bribery will arise.

Whatever may be the act constituting direct


agrees to perform or which he bribery, in order to amount to direct bribery, it must always
executes be connected with the be in connection with the performance of his official duty. If
performance of his official duties.
it is not in connection with his official duty, it could other
crime like estafa or swindling, but NOT DIRECT BRIBERY.
III. By agreeing to refrain, or by refraining,
from doing something which it is his
official duty to do, in consideration of gift

ACEJAS, III vs. PEOPLE
or promise. It is the second act of direct bribery that has been
ELEMENTS: violated. The second act because it is the duty of the said
1. The offender be a public officer within BID agent to return the passport. The duty to return the
the scope of Article 203
passport is not a criminal act. It is also not an act of
2. The offender accepts an offer or a
promise or receives a gift or present refraining to do so. But he does not want to perform the act
without the bribe, so he becomes liable under the 2nd act.
by himself or through another.
3. That such offer or promise be
accepted, or received by the public

ILLUSTRATION:
o ff i c e r t o r e f r a i n f r o m d o i n g Q: What if a mother wanted her daughter to work in
something which it is his official duty another country. The daughter was still a minor, 16 years
to do so.
old. So what the mother did, was to ask the civil registrar to
4. That the act which the offender
agrees to perform or which he alter the birth date or the date in the certificate of live birth
executes be connected with the with a promise that the first 2 months of the salary of the

performance of his official duties.

Under the First Act - By agreeing to perform or


daughter will be given to the civil registrar. The civil
registrar altered the date in the birth certificate. What crime/
crimes is/are committed by the civil registrar and by the
performing, in consideration of offer or promise, gift or mother?
present any act constituting a crime in connection with A: The civil registrar is liable for direct
the performance of his official duties bribery because he agreed to perform an act
- If the thing which the public officer is required to constituting a crime in consideration of a promise
do, is an act which will constitute a crime, a mere that the 2 months salary will be given to him. The
agreement to do so, will already give rise to said act is in connection with his performance of
direct bribery. It is not necessary that he actually
his official duty. Therefore he is liable for direct
commits the crime, it is not necessary that he
actually receives the gift or present. bribery. He actually performs the act, he actually
committed a crime, therefore he is also liable for

A MERE AGREEMENT WILL SUFFICE.

Likewise in the Third Act - By agreeing to


the falsification of a public document because he
actually altered the birth date which is a very
refrain or by refraining from doing an act which is his important date in the birth certificate so he is
official duty to do, in consideration of an offer, also liable for the falsification of a public
promise, gift or present. document.
- If the thing that a public officer is required to do, is Without the said bribe, the mother would not
to refrain from doing an act which is his official have committed falsification, so are you going to
duty to do, a mere agreement to refrain to do an complex them? because direct bribery is a
act will already give rise to direct bribery. It is not necessary means to commit falsification.
necessary to refrain from doing an act, it is not
Even if in reality, they should be complex

necessary to receive the said gift.

However, if the thing that a public officer is


because direct bribery is a necessary
means to commit falsification, you cannot
complex them because ARTICLE 210
required to do, does not constitute a crime, under the PROHIBITS SUCH COMPLEXITY OF
Second Act, mere agreement will not suffice. There
must be actual acceptance of the thing. There must be
acceptance of the gift, in consideration of the execution of
CRIMES.

Under Article 210, it is expressly provided that


an act which does not constitute a crime in connection with the penalty for direct bribery shall be IN
the performance of his official duty. WHY? ADDITION TO THE LIABILITY FOR THE
- because the thing that he is being required to do CRIME COMMITTED. Here, he actually altered,

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CRIMINAL LAW 2
actually committed the crime, therefore his ELEMENTS:
liability for falsification is in addition for his 1. The offender is a public officer entrusted with
liability for direct bribery. Therefore, 2 separate law enforcement
distinct charges have to be filed against the civil 2. The offender refrains from arresting or
registrar, we have direct bribery and the other prosecuting an offender who has committed a
one is falsification of the public document. crime punishable by reclusion perpetua and/or

The mother is liable for corruption of public
death
3. The offender refrains from arresting or
official (Art. 212). Direct bribery is the crime of prosecuting the offender in consideration of
the public officer who receives the bribe. On the any promise, gift or present.
other hand, the private individual or the public
officer who gives the bribe is liable for corruption

Qualified bribery is committed by any public officer who
of public official under Art. 212. (Refer to Art. is in charge with the enforcement of the law. So, in
212 elements) order to amount to qualified bribery, it is necessary that

The mother gives a promise under
the offender whom the public officer does not want to
prosecute must have committed a crime punishable by
circumstances in which the public officer
becomes liable for direct bribery. She is liable for
reclusion perpetua and/or death.

ILLUSTRATION:
corruption of public official. The mother is also Q: A police officer was conducting a patrol. He saw a man
liable for falsification of a public document as a behind the tree, looking at the other house adjacent to the
principal by inducement. Without the bribe, tree as if waiting for someone. So the police officer parked
without the said inducement, the said public his vehicle and observed what this man would do. The
officer will not have committed the said moment that a man came out of the gate of the house, this
falsification.

ARTICLE211 INDIRECT BRIBERY
man hiding behind the tree, immediately went directly to
him and shot him 5 times, and killing him instantly. Then,
the said man rode a motorcycle and left. The police officer
ELEMENTS: chased him. The Police officer arrested him, however, he
1. The offender is a public officer gave the police officer P500,000 and told the police officer,
2. That he accepts gifts Mr. Police officer, you saw nothing, you heard nothing.
3. That the gifts are offered to him by reason of his And the police officer allowed him to leave. What crime/
office.

Indirect Bribery is committed if the public officer
crimes is/are committed by the said police officer?
A: The said police officer is liable for
qualified bribery. The crime committed by the
accepts any gift or present by reason of his office that said man is murder, because obviously, in his act
he owns. In case of indirect bribery, the public officer is
not deemed required to do a thing. By the MERE of killing, there was treachery, the other party
ACCEPTANCE, indirect bribery is consummated. NO was defenseless and obviously the said man
deliberately and consciously adopted the ways
ACCEPTANCE, NO CRIME IS COMMITTED.

ILLUSTRATION:
means and methods employed by him in killing
the victim. Since there was treachery, the crime
A is the newly appointed secretary of DENR. On his committed is murder, punishable by reclusion
first day of office, Mr. X visited him, paid a courtesy call. Mr. perpetua to death. His failure to arrest and
X is the president of a big logging company. They prosecute this man constitute qualified bribery
exchanged some pleasantries, thereafter, when this because he did so after accepting P500,000.
president of the logging company left, he placed a small
box on the table. When he left, the new DENR secretary

Q: What if a police officer was conducting a patrol, he saw
opened the box and it was a key to a car parked in front of A and B fighting, boxing each other, killing each other, until
the building. The new DENR secretary used it and drove they already on the ground. In the course thereof, A pulls
the car out his balisong and stabbed B several times on the heart,
- He is liable for Indirect Bribery. The president of a vital organ. B died instantly. Thereafter, A ran away, the
the logging company does not require him to do police officer tried to catch up with A and he was able to
anything, it was merely given to him because he arrest A. However A, gave the police officer P100,000. The
was newly appointed as the DENR secretary. His police officer allowed him to leave. What crime/crimes is/
acceptance brings about consummated indirect
bribery; therefore, indirect bribery has no are committed by the said police officer?
attempted or frustrated stage because outside A: The crime committed by A in killing B is
precedent by a fight, therefore it is merely
acceptance, no crime is committed.

ARTICLE211-A QUALIFIED BRIBERY


homicide. Homicide is punishable only by
reclusion temporal. Since it is only punishable by
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CRIMINAL LAW 2
reclusion temporal, therefore, qualified bribery is functions through manifest partiality, evident bad faith
not applicable. or gross inexcusable negligence.

He committed direct bribery, because he
ELEMENTS:
1. The said offender was in charge of his official,
accepts a bribe, in consideration of an act of administrative or judicial function
refraining to arrest the said criminal. He actually 2. That he acted with manifest partiality, evident
refrain from arresting and prosecuting the bad faith or gross inexcusable negligence
criminal, therefore in addition to direct bribery, he 3. The said accused caused any undue injury to
also committed dereliction of duty in the any party, including the government, or gave any
prosecution of offenses because he actually private party unwarranted benefits, advantage, or
committed dereliction of duty by refraining from preference in the discharge of his official
arresting the person who has actually committed functions.
a crime. So this time, there are 2 crimes
committed: SANTOS
v PEOPLE
DIRECT BRIBERY (ARTICLE 210) AND The Supreme Court said that there are two acts
DERELICTION OF DUTY IN THE punished under Section 3 (e) of RA 3019:
PROSECUTION OF OFFENSES 1. Causing any undue injury; or
(ARTICLE 208)

ARTICLE 212 CORRUPTION OF PUBLIC OFFICIALS


2. Giving any private party any unwarranted
benefit, advantage or preference
The law uses the conjunctive or; therefore,
ELEMENTS:
the fact that the offender causes any
1. The offender makes offers or promises or gives
undue injury to any party or the fact that
or presents to a public officer.
the offender gave any party unwarranted
2. That the offers or promises are made or the
benefit, advantage or preference, they
gifts or the gifts or presents given to a public
can be charged distinctly or separately
officer, under circumstances that will make the
from each other.
public officer liable for direct bribery or indirect
The Supreme Court also stated that the
bribery.

THE ANTI-GRAFT AND CORRUPT PRACTICES ACT (RA
elements of Sec 3 (e) of RA 3019
UNDUE INJURY means there must be an actual
damage caused to the offended party. Absent any
3019)
actual damage caused to the offended party, then
PUBLIC OFFICER - a public officer is any
section 3 (e) is not violated.
elective and appointive officials and employees,
permanent or temporary, whether in the classified

(g) Entering, on behalf of the government, into any
or unclassified or exemption service receiving
contract or transaction manifestly and grossly
compensation, even nominal, from the
disadvantageous to the same, whether or not the
government. (Sec 2, RA 3019)

JAVIER v SANDIGANBAYAN
public officer profited or will profit thereby
The public officer entered into any contract or
transaction on behalf of the government. The
Although Javier has been appointed as a
said contract is manifestly and grossly
representative of the private sector, in the book
disadvantageous to the government.
publishing board attached to the office of the
president (NBDB), she is still considered as a

In NAVA v PALLATTAO, the violation was Section 3 (g).
public officer; first, the said board functions as a
The DECS officials bought laboratory science materials and
collegial body performing public functions;
after COA audited, it was discovered that there was an
second, according to SC, she was receiving
overpricing. The same is true in CAUNAN v PEOPLE
allowance, a salary even though nominal, from the
where Joey Marquez and company bought walis-tingting,
government. Hence, she considered as a public
and according to the COA auditors, there was also
officer.

SECTION 3 CORRUPT PRACTICES OF PUBLIC
overpricing of these walis-tingting. But in the case of Nava,
there was conviction but in the case of Caunan, there was
an acquittal.
OFFICERS
Where lies the difference?
IMPORTANT PROVISIONS OF SECTION 3:
In the case of Nava, the COA officials proved
(e) Causing any undue injury to any party including the
the overpricing because they bought the very
government, or giving any private party any
same laboratory materials from the same
unwarranted benefits, advantage or preference in the
supplier where the DECS officials bought and
discharge of his official, administrative or judicial

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CRIMINAL LAW 2
by reason thereof, it was discovered that regulations duly promulgated by competent authority or an
there was indeed an overpricing. offense in connection with the official duties of the latter, or
However, in the case of Caunan, Joey allowing himself to be persuaded, induced, or influenced to
Marquez bought from a different supplier than
where the COA officials bought. The COA

commit such violation or offense.

Persons liable:
officials bought from a Las Pinas supplier 1. Public officer who persuades, induces, or
which they compared with the price of walis- influences another public officer;
tingting bought by Joey Marquez. Not only did 2. Public officer who is persuaded induced or
they buy the said walis-tingting from a influenced
different supplier, the walis-tingting bought by Note: requesting or receiving any gift, present, or benefit is
COA officials was of different specifications
from that of the walis-tingting bought by Joey

not required in this provision.

(b) Directly or indirectly requesting or receiving any gift,


Marquez and company. Hence, the Supreme present, share, percentage, or benefit, for himself or for any
Court said that prosecution was not able to other person, in connection with any contract or transaction
prove beyond reasonable doubt that there between the Government and any other part, wherein the
was overpricing. Because the walis-tingting public officer in his official capacity has to intervene under
bought by Joey Marquez was very much
different from the walis-tingting bought by the
the law.

Note:
COA officials. They were not able to prove
the lack of demand is immaterial, the law uses the
beyond reasonable doubt that there was word OR between requesting and receiving.
overpricing because of the difference in There must be clear intention on the part of the public
specifications.



In both cases, there was NO PUBLIC
officer and consider it as his or her own property from
then on. Mere physical receipt unaccompanied by
any other sign, circumstance or act to show
BIDDING. acceptance is not sufficient to lead the court to


Will the mere lack of public bidding bring

conclude that the crime has been committed
Refers to a public officer whose official intervention is
about a violation of Section 3 (g) of RA 3019?
The Supreme Court said that mere lack of
required by law in a contract or transaction

(c) Directly or indirectly requesting or receiving any gift,


public bidding may mean that the government
present or other pecuniary or material benefit, for himself or
was not able to get the best price for the thing for another, from any person for whom the public officer, in
purchased. However, it does not bring about any manner or capacity, has secured or obtained, or will
a violation of Section 3 (g) because what secure or obtain, any Government permit or license, in
Section 3 (g) requires is the transaction must consideration for the help given or to be given, without
be manifestly and grossly disadvantageous to prejudice to Section thirteen of this Act.
the government and mere lack of public (d) Accepting or having any member of his family accept
bidding will not show such gross and manifest employment in a private enterprise which has pending
disadvantage. official business with him during the pendency thereof or

SECTION 4 PROHIBITION ON PRIVATE INDIVIDUALS
within one year after its termination.
(e) Causing any undue injury to any party, including the
Under Section 4, it is unlawful for any private Government, or giving any private party any unwarranted
individual who has a close personal relation benefits, advantage or preference in the discharge of his
to any public officer to request, ask or receive official administrative or judicial functions through manifest
partiality, evident bad faith or gross inexcusable negligence.
present from any person in any case from
This provision shall apply to officers and employees of
which the said public officer has to control. offices or government corporations charged with the grant
Close personal relation does not only of licenses or permits or other concessions.
include family members. It also includes those
(f) Neglecting or refusing, after due demand or request,
who have social and fraternal relations; without sufficient justification, to act within a reasonable
therefore even a private individual who is not time on any matter pending before him for the purpose of
in conspiracy of a public officer can be held obtaining, directly or indirectly, from any person interested
liable under RA 3019. in the matter some pecuniary or material benefit or
Not only public officers but also private advantage, or for the purpose of favoring his own interest
individuals can be held liable under RA 3019. or giving undue advantage in favor of or discriminating

Enumerated corrupt practices of Public Officials
against any other interested party.
(g) Entering, on behalf of the Government, into any contract
(a) Persuading, inducing or influencing another public or transaction manifestly and grossly disadvantageous to
officer to perform an act constituting a violation of rules and

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CRIMINAL LAW 2
the same, whether or not the public officer profited or will SECTION 8 PRIMA FACIE EVIDENCE OF AND
profit thereby. DISMISSAL DUE TO UNEXPLAINED WEALTH
(h) Director or indirectly having financing or pecuniary When is there a prima facie presumption of
interest in any business, contract or transaction in graft and corrupt practices?
connection with which he intervenes or takes part in his There arises a prima facie presumption of
official capacity, or in which he is prohibited by the graft and corrupt practices if a public officer has
Constitution or by any law from having any interest. been found to have in his possession money or
(i) Directly or indirectly becoming interested, for personal property, whether in his name or in that name of
gain, or having a material interest in any transaction or act another person, which is manifestly out of
requiring the approval of a board, panel or group of which proportion from his lawful income. There arises a
he is a member, and which exercises discretion in such prima facie presumption of graft and corrupt
approval, even if he votes against the same or does not
practices.
participate in the action of the board, committee, panel or
group.
SECTION 10 COMPETENT COURT & RA 8429
Interest for personal gain shall be presumed against those
Where do you file a case for violation of RA
public officers responsible for the approval of manifestly
unlawful, inequitable, or irregular transaction or acts by the 3019?
board, panel or group to which they belong. You file a case of violation of Article 3019
before the Sandiganbayan. The Sandiganbayan
(j) Knowingly approving or granting any license, permit,
has jurisdiction unless otherwise provided by law.
privilege or benefit in favor of any person not qualified for or
not legally entitled to such license, permit, privilege or There is a law, RA 8429 which provides for
advantage, or of a mere representative or dummy of one the jurisdiction of Sandiganbayan. Under this law,
who is not so qualified or entitled. if a public officer is of salary grade 27 and above,
(k) Divulging valuable information of a confidential it must be before the Sandiganbayan. If the public
character, acquired by his office or by him on account of his officer is below salary grade 27, it must be before
the RPC.
official position to unauthorized persons, or releasing such
information in advance of its authorized release date.
SECTION 11 PRESCRIPTION OF OFFENSES
Note: if damage was caused, Article 229 under the RPC is
committed. When is the prescriptive period?

SECTION 9 PENALTIES FOR VIOLATIONS
Violation for RA 3019 shall prescribe
after 15 years. However, the right of the
Under Section 9, both private individuals and government to forfeit or to recover ill-gotten
public officers have just the same penalty. It is wealth does not prescribe. So there are no
six years and one month to fifteen years plus latches and estoppel insofar as the right of
forfeiture of the ill-gotten wealth. the government to recover ill-gotten wealth

S E C T I O N 7 S TAT E M E N T O F A S S E T S A N D is concerned.

LIABILITIES & RA 6713 When do you start counting the


When do the officers file the statement of running of the prescriptive period of
assets, liabilities and net worth? crime?
The said public officer can file his SALN From the time the crime has been
within 30 days from assumption into office. And committed or if it is not known, that is from
then it must be filed on or before the 30th day of the time of the discovery of the said crime,
April of the next years and within 30 days after then it is from the time of the institution of
the criminal perseverance.

separation from the service.
In RA 3019, it is stated on or before 15th of
SECTION 13 SUSPENSION AND LOSS OF BENEFITS
April but there is another law which provides also
for the filing of SALN and that is RA6713 which is Q: What if a public officer, has been charged for violation of
the code of ethical standards for public officers. RA 3019, the Ombudsman found probable cause. The case
Under RA 6713, and this is what is being was now filed before the Sandiganbayan. Is it incumbent
followed, it must be on or before the 30th day of upon the Sandiganbayan to immediately place him under
April. preventive suspension? Is preventive suspension
So you file first within 30 days upon automatic? Is preventive suspension mandatory?
assumption to office and then the years thereafter A: Preventive suspension is mandatory but it
on or before the 30th day of April and then if you is not automatic. There must first be a pre-
got separated from office, within 30 days from suspension period to determine the validity of the
separation from office. information. The moment the Sandiganbayan
discovers the said information is valid, sufficient in
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CRIMINAL LAW 2
substance to bring about a conviction, it is now 1. Through misappropriation, conversion, misuse, or
mandatory upon the Sandiganbayan to place the malversation of public funds or raids on the public treasury;
said accused public officer under preventive
suspension. 2. By receiving, directly or indirectly, any commission, gift,
share, percentage, kickbacks or any/or entity in connection
So it is not automatic because there must first be with any government contract or project or by reason of the
a pre-suspension period. The only issue in the office or position of the public officer concerned;
pre-suspension period is the information filed by
the Ombudsman against the said public officer 3. By the illegal or fraudulent conveyance or disposition of
valid, is it sufficient enough to bring about a assets belonging to the National government or any of its
conviction in court? If the answer is yes, subdivisions, agencies or instrumentalities or government-
immediately, mandatory on the part of the owned or controlled corporations and their subsidiaries;

Sandiganbayan, a ministerial duty, the said public
4. By obtaining, receiving or accepting directly or indirectly
officer must be placed under preventive any shares of stock, equity or any other form of interest or
suspension. It it ministerial not discretionary, not participation including the promise of future employment in
either or. any business enterprise or undertaking;
For how long should the suspension be?
The suspension must not exceed the maximum 5. By establishing agricultural, industrial or commercial
of ninety days, in consonance with Section 52 monopolies or other combinations and/or implementation of
decrees and orders intended to benefit particular persons
of the Administrative Code.

SECTION 14 - EXCEPTION
or special interests;or

6. By taking undue advantage of official position, authority,
Q: What if a public officer saw an old man waiting line. So relationship, connection or influence to unjustly enrich
the old man received a notice, the notice said that his himself or themselves at the expense and to the damage
license is ready, it has already been approved. So he was and prejudice of the Filipino people and the Republic of the
waiting in line for the release of his license, it was already
approved. The head of office saw the old man. 85 years

Philippines

Sec. 2. Definition of the Crime of Plunder, Penalties. Any


old, under the heat of the sun and with his frail body. So the public officer who, by himself or in connivance with
head of office took the man and the head of office asked members of his family, relatives by affinity or consanguinity,
the man to his office. The head of office asked the business associates, subordinates or other persons,
secretary, Is the license of this man approved? The amasses, accumulates or acquires ill-gotten wealth through
secretary said yes. The head of office said, get it. The a combination or series of overt or criminal acts as
secretary took it and gave to the head of office. The head of described in Section 1 (d) hereof, in the aggregate amount
or total value of at least Seventy-five million pesos
office, upon seeing that it is approved, and the man was
(P75,000,000.00), shall be guilty of the crime of plunder
only waiting for its release, gave it to the man; therefore the and shall be punished by life imprisonment with perpetual
man need not wait in the long line. The man was so absolute disqualification from holding any public office. Any
thankful that the following day, the man went back to the person who participated with the said public officer in the
office with two big bilaos of bibingka to the said head of commission of plunder shall likewise be punished. In the
office to say thank you. The said head of office received imposition of penalties, the degree of participation and the
two big bilaos of bibingka. Is the said head of office liable attendance of mitigating and extenuating circumstances
under RA 3019?
A: No. It falls under the exception. Under

shall be considered by the court.

Sec. 4. Rule of Evidence. For purposes of establishing the


Section 14, unsolicited gifts or presents of small or crime of plunder, it shall not be necessary to prove each
insignificant value offered or given as a mere ordinary and every criminal act done by the accused in furtherance
token of friendship or gratitude, according to local customs of the scheme or conspiracy to amass, accumulate or
or usage is excepted from the provisions of RA 3019; acquire ill-gotten wealth, it being sufficient to establish
therefore the said public officer will not be held criminally beyond reasonable doubt a pattern of overt or criminal acts
liable.

indicative of the overall unlawful scheme or conspiracy.

Sec. 6. Prescription of Crime. The crime punishable under


RA 7080: ANTI-PLUNDER ACT this Act shall prescribe in twenty (20) years. However, the
Ill-gotten wealth right of the State to recover properties unlawfully acquired
- means any asset, property, business enterprise or by public officers from them or from their nominees or
material possession of any person within the purview of transferees shall not be barred by prescription, laches, or
Section two (2) hereof, acquired by him directly or indirectly
through dummies, nominees, agents, subordinates and/or
business associates by any combination or series of the

estoppel.


following means or similar schemes:
RA 9745 Anti-Torture Act:
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CRIMINAL LAW 2
Torture refers to: (i) The administration or drugs to induce
1. an act by which severe pain or suffering, whether confession and/or reduce mental competency; or
physical or mental, is intentionally inflicted on a
(ii) The use of drugs to induce extreme pain or
person for such purposes as obtaining from him/
certain symptoms of a disease; and
her or a third person information or a confession;
2. punishing him/her for an act he/she or a third (14) Other analogous acts of physical torture; and
person has committed or is suspected of having
(b) "Mental/Psychological Torture" refers to acts committed
committed;
by a person in authority or agent of a person in authority
3. or intimidating or coercing him/her or a third
which are calculated to affect or confuse the mind and/or
person;
undermine a person's dignity and morale, such as:
4. or for any reason based on discrimination of any
kind, when such pain or suffering is inflicted by or (1) Blindfolding;
at the instigation of or with the consent or
(2) Threatening a person(s) or his/fher relative(s)
acquiescence of a person in authority or agent of
with bodily harm, execution or other wrongful acts;
a person in authority.

It does not include pain or Buffering arising only from,


(3) Confinement in solitary cells or secret
detention places;

inherent in or incidental to lawful sanctions.

Acts of torture:
(4) Prolonged interrogation;
(5) Preparing a prisoner for a "show trial", public
display or public humiliation of a detainee or
(a) Physical torture is a form of treatment or punishment prisoner;
inflicted by a person in authority or agent of a person in
authority upon another in his/her custody that causes (6) Causing unscheduled transfer of a person
severe pain, exhaustion, disability or dysfunction of one or deprived of liberty from one place to another,
more parts of the body, such as: creating the belief that he/she shall be summarily
executed;
(1) Systematic beating, headbanging, punching,
kicking, striking with truncheon or rifle butt or other (7) Maltreating a member/s of a person's family;
similar objects, and jumping on the stomach; (8) Causing the torture sessions to be witnessed
(2) Food deprivation or forcible feeding with by the person's family, relatives or any third party;
spoiled food, animal or human excreta and other (9) Denial of sleep/rest;
stuff or substances not normally eaten;
(10) Shame infliction such as stripping the person
(3) Electric shock; naked, parading him/her in public places, shaving
(4) Cigarette burning; burning by electrically the victim's head or putting marks on his/her body
heated rods, hot oil, acid; by the rubbing of pepper against his/her will;
or other chemical substances on mucous (11) Deliberately prohibiting the victim to
membranes, or acids or spices directly on the communicate with any member of his/her family;
wound(s); and
(5) The submersion of the head in water or water (12) Other analogous acts of mental/psychological
polluted with excrement, urine, vomit and/or blood torture.
until the brink of suffocation;
Any confession, admission or statement obtained as a
(6) Being tied or forced to assume fixed and result of torture shall be inadmissible in evidence in any
stressful bodily position; proceedings, except if the same is used as evidence
(7) Rape and sexual abuse, including the insertion
of foreign objects into the sex organ or rectum, or
electrical torture of the genitals;

against a person or persons accused of committing torture.

Rights of Tortured Victims:


(8) Mutilation or amputation of the essential parts (a) To have a prompt and an impartial investigation by the
of the body such as the genitalia, ear, tongue, etc.; CHR and by agencies of government concerned such as
the Department of Justice (DOJ), the Public Attorney's
(9) Dental torture or the forced extraction of the Office (PAO), the PNP, the National Bureau of Investigation
teeth; (NBI) and the AFP. A prompt investigation shall mean a
(10) Pulling out of fingernails; maximum period of sixty (60) working days from the time a
complaint for torture is filed within which an investigation
(11) Harmful exposure to the elements such as
report and/or resolution shall be completed and made
sunlight and extreme cold;
available. An appeal whenever available shall be resolved
(12) The use of plastic bag and other materials within the same period prescribed herein,
placed over the head to the point of asphyxiation;
(b) To have sufficient government protection against all
(13) The use of psychoactive drugs to change the forms of harassment; threat and/or intimidation as a
perception, memory. alertness or will of a person, consequence of the filing of said complaint or the
such as: presentation of evidence therefor. In which case, the State
through its appropriate agencies shall afford security in
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CRIMINAL LAW 2
order to ensure his/her safety and all other persons (4) Torture with other forms of sexual abuse and, in
involved in the investigation and prosecution such as, but consequence of torture, the victim shall have become
not limited to, his/her lawyer, witnesses and relatives; and insane, imbecile, impotent, blind or maimed for life; and
(c) To be accorded sufficient protection in the manner by
which he/she testifies and presents evidence in any fora in

(5) Torture committed against children.

Note:
order to avoid further trauma.
Torture as a crime shall not absorb or shall not be
Who are Criminally Liable. - Any person who actually
absorbed by any other crime or felony committed
participated Or induced another in the commission of
as a consequence, or as a means in the conduct
torture or other cruel, inhuman and degrading treatment or
or commission thereof. In which case, torture shall
punishment or who cooperated in the execution of the act
be treated as a separate and independent criminal
of torture or other cruel, inhuman and degrading treatment
act whose penalties shall be imposable without
or punishment by previous or simultaneous acts shall be
prejudice to any other criminal liability provided for
liable as principal
by domestic and international laws. (Sec 15)
Any superior military, police or law enforcement officer or
senior government official who issued an order to any lower

ranking personnel to commit torture for whatever purpose Persons who have committed any act of torture
shall be held equally liable as principals. shall not benefit from any special amnesty law or
similar measures that will have the effect of
The immediate commanding officer of the unit concerned of
exempting them from any criminal proceedings
the AFP or the immediate senior public official of the PNP
and sanctions. (sec 16)
and other law enforcement agencies shall be held liable as
a principal to the crime of torture or other cruel or inhuman Refouler- No person shall be expelled, returned or
and degrading treatment or punishment for any act or extradited to another State where there are substantial
omission, or negligence committed by him/her that shall grounds to believe that such person shall be in danger of
have led, assisted, abetted or allowed, whether directly or being subjected to torture.
indirectly, the commission thereof by his/her subordinates.
CHAPTER THREE FRAUDS AND ILLEGAL
If he/she has knowledge of or, owing to the circumstances
at the time, should have known that acts of torture or other
cruel, inhuman and degrading treatment or punishment

EXACTIONS AND TRANSACTIONS

ARTICLE 213 FRAUDS AGAINST THE PUBLIC


shall be committed, is being committed, or has been
TREASURY AND SIMILAR OFFENSES
committed by his/her subordinates or by others within his/
Article 213 punishes two (2) acts:
her area of responsibility and, despite such knowledge, did
1. Fraud against public treasury (par.1)
not take preventive or corrective action either before,
during or immediately after its commission, when he/she
has the authority to prevent or investigate allegations of

2. Illegal exactions (par. 2)

ELEMENTS OF FRAUD AGAINST PUBLIC TREASURY


torture or other cruel, inhuman and degrading treatment or
(ART. 213, PAR. 1):
punishment but failed to prevent or investigate allegations
1. That the offender is a public officer
of such act, whether deliberately or due to negligence shall
2. that he should have taken advantage of his office, that
also be liable as principals.
is he intervened in the transaction of his official
Any public officer or employee shall be liable as an capacity
accessory if he/she has knowledge that torture or other 3. That he entered into an agreement with any interested
cruel, inhuman and degrading treatment or punishment is party or speculator or made use of any other scheme
being committed and without having participated therein, with regard to:
either as principal or accomplice, takes part subsequent to 1. furnishing supplies
its commission in any of the following manner: 2. the making of contracts
3. the adjustment or settlement of accounts
(a) By themselves profiting from or assisting the
relating to public property or funds
offender to profit from the effects of the act of
4. That the accused had intent to defraud the
torture or other cruel, inhuman and degrading
treatment or punishment;
(b) By concealing the act of torture or other cruel,

Government

So here, the public officer took advantage of his official


inhuman and degrading treatment or punishment position in entering into contract which involves the
and/or destroying the effects or instruments furnishing of supplies, or which involves public funds or
thereof in order to prevent its discovery; or(c) By property and the intention is to DEFRAUD THE
harboring, concealing or assisting m the escape of GOVERNMENT. It is not necessary that the Government,
the principal/s in the act of torture or other cruel, the treasury be actually be defrauded, it suffices that
inhuman and degrading treatment or punishment: entering in the said contract, the intention of the said
Provided, That the accessory acts are done with
the abuse of the official's public functions.
offender, the public officer, is to defraud the Government.

ELEMENTS OF ILLEGAL EXACTION (ART. 213, PAR. 2)


Aggravating Circumstances in torture:
1. That the offender is a public officer entrusted with the
(1) Torture resulting in the death of any person;
collection of taxes, licenses, fees and other imposts.
(2) Torture resulting in mutilation;
2. He is guilty of any of the following acts or omissions:
(3) Torture with rape;
Dinty | Manalo | Navarez | Shyu | Tubio Page 78
CRIMINAL LAW 2
1. Demanding, directly or indirectly, the payment of Q: So what if it was January 2, all kinds of payment are
sums different from or larger than those authorized being made at the start of the year. So the collecting officer
by law; or in the treasurers office rans out of official receipt (O.R.).
2. Failing voluntarily to issue a receipt, as provided And so he got a half sheet of typewriting paper and he note
by law, for any sum of money collected by him there about the said payment and a provisional receipt and
officially; or he gave it to the same person who made the payment. Is
3. Collecting or receiving, directly or indirectly, by the said collecting officer liable of illegal exaction?
way of payment or otherwise, things or objects of A: He IS NOT. Because he did not voluntarily

a nature different from that provided by law.

Here, the offender is a COLLECTING PUBLIC


fail to issue the said O.R. He ran out of the said
O.R., it was not voluntary on his part. It was an
emergency situation. It is good that she even
OFFICER. A public officer who has been entrusted with gave a provisional receipt as a proof of
duty to collect taxes, licenses, fees or other imposts. Only payment. In this case, he cannot be held liable
this kind of public officer can commit this crime because
ILLEGAL EXACTION involves violation of rules on for illegal exaction.


collection. 3rd Act - Collecting or receiving, directly or indirectly, by way
of payment or otherwise, things or objects of a nature
1st Act - Demanding, directly or indirectly, the payment of
sums different from or larger than those authorized by
law;or

different from that provided by law.

Here, under the third act, it does not refer to the


ILLUSTRATION: amount of payment. It refers to the KIND OR NATURE OF
Q: There was this cashier in the city treasurers office. Here PAYMENT. So, when the law says that it should be paid in
comes X, X said that he is going to get a cedula (residence cash, ONLY CASH may be received by the said collecting
certificate) and then X said, How much am I going to pay?
and then, the cashier or the collecting officer said, you
have to pay Php200 but it is actually Php20. X said, hmp,

officer.

ILLUSTRATION:
angmahalpala, ayokona. and so he left. Is the said So the collecting officer is known as a sabungero. So
collecting officer liable of any crime? here comes one of the persons who was making payment.
A:YES, he is liable. For merely demanding an He has no money, but said, he has a magandangtandang.
amount larger than that authorized by law, he is And so, that was the payment received. He commits a


already liable for ILLEGAL EXACTION under
Article 213, Par. 2.
violation of illegal exaction.

Q: What if the person who demanded an amount or


Q: He is already liable, he merely demanded, but what if in different from or larger than that which is provided for by
the same problem, X said he was going to get a cedula. law is an officer, a collecting officer from the Bureau of
The collecting officer saw him and he appears to be poor Internal Revenue, or a collecting officer form the Bureau of
man and so X asked the collecting officer, How much am I Customs. Is he liable under Article 213?
going to pay? and the collecting officer took pity of X and A: He is not liable for illegal exaction under
said, Only Php 10. So, the poor man said, Oh, I have Art. 213. He is liable under the Tax Code or
more money, Ill get two. Is the collecting officer liable of under the Tariffs and Customs Code. Under Art.


any crime?

A:YES, he is liable because he demanded an


213, it is expressly provided that if the
collecting officer is a collecting officer coming
from the Bureau of Internal Revenue or Bureau
amount different from that authorized by law. Note of Customs is not liable under this Article. The
that what the law requires is the demanding of an reason here is that, this collecting officer from
amount, directly or indirectly, different from or the BIR and the BOC, have the right to ask for
larger than those authorized by law. Therefore, penalties, surcharges, and compromise.
even if it is lower, so long as it is different from that Therefore, they can always demand and
provided by law, and so long as it is demanded by amount different from or that which is larger
the said collecting officer, then it is considered as than that authorized by law. If they exceeded


ILLEGAL EXACTION. that authority, then they are liable under the
Tariffs and Customs Code or under the Tax
It is not necessary for the said collecting officer to
have misappropriate the funds, the moment that he
misappropriates the funds, in addition to illegal
Code, but NOT UNDER THE RPC.

exaction, he may also be held liable for ARTICLE 214 OTHER FRAUDS
MALVERSATION, because Illegal Exaction is only ELEMENTS:
about the rules on collection. It has nothing to do 1. Offender is a public officer
with the appropriation or misappropriation of funds 2. He takes advantage of his official position
or property. Only a violation of the rules on 3. He commits any of the frauds or deceits enumerated in


collection.

2nd Act - Failing voluntarily to issue a receipt, as provided


Articles 315-318

If any of the public officer commits any of the frauds or


by law, for any sum of money collected by him officially; deceits constituting ESTAFA or SWINDLING, under Art.
ILLUSTRATION:
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CRIMINAL LAW 2
315-318, and he does so by taking advantage of his official permitting any other person to take such public funds
position, his criminal liability is Other Frauds under Art. 214. or property
- Not estafa, Not swindling. the reason is that in 4. Being otherwise guilty of the misappropriation or
case of a public officer, there is additional
penalty. If you look at Article 214, the law says
that the penalty is the same penalty as the first
malversation of such funds or property

Malversation of Public Funds and Property can be


offense under Art. 315-318. But additional to committed either through a positive act, that is, that the
that, temporary disqualification to perpetual said public officer is the one who misappropriates, takes or
disqualification for having taken advantage of his appropriates the public funds and property, OR, through a
official position. Therefore, if it is a public officer passive act, that is, through his abandonment or
who commits estafa or swindling, the crime is negligence, he permitted others to misappropriate the

under Art. 214 and there is an additional penalty.

ARTICLE 215 PROHIBITED TRANSACTIONS


same.

-
Malversation can be committed either through a
ELEMENTS: positive act, which is through deliberate intent or
1. Offender is an appointive public officer through dolo. He is the one who appropriates or
2. He becomes interested, directly or indirectly in any misappropriates, who took the the said public funds
transaction of exchange or speculation or property
3. Transaction takes place within the territory subject to - Passive Act which is through his abandonment or
his jurisdiction negligence, or cupla. he allowed others to
4. He becomes interested in the transaction during his appropriate or misappropriate the said public funds

incumbency

ARTICLE 216 POSSESSION OF PROHIBITED


or property

When is there prima facie presumption of malversation?


INTEREST BY A PUBLIC OFFICER - Under Article 217, there arises prima facie
ELEMENTS: presumption of malversation of public funds or
1. Public Officer who, directly or indirectly, became property when demand is made by a duly
interested in any contract or business in which it was authorized officer to an accountable public officer to
his official duty to intervene. account for public funds or property, and the same
2. Experts, arbitrators, and private accountants who, in
like manner, took part in any contract or transaction
connected with the estate or property in the appraisal,
is not forthcoming

ILLUSTRATION:
distribution or adjudication of which they had acted So the COA auditor, appeared and conducted an
3. Guardians and executors with respect to the property audit He demanded for the said amount, the said

belonging to their wards or the estate

CHAPTER FOUR MALVERSATION OF PUBLIC FUNDS


accountable public officer cannot reduce the said amount.
There arises the prima facie presumption that he has
malverse the said public funds or property. Although that is


OR PROPERTY

ARTICLE 217 MALVERSATION OF PUBLIC FUNDS


what is written under Article 217, last paragraph. The
Supreme Court in the number of cases said:
Mere shortage in audit will not suffice. For the Prima
OR PROPERTY (PRESUMPTION OF MALVERSATION) facie presumption to arise the following requisites
ELEMENTS: must be present: - It is necessary that there must be
1. Offender is a public officer or employee complete, thorough and reliable audit.
2. He has the custody or control of funds or property by - In the said complete, thorough and reliable audit,
reason of the duties of his office the following were discovered:
3. Those funds or property were public funds or property %L. The public officer indeed receive the public
for which he was accountable funds or property. That is, he is an
4. He appropriated, took, misappropriated or consented, accountable public officer
or through abandonment or negligence, permitted %L. The said public funds and property was


another person to take them

Who is the offender?


missing, or there was a shortage, or he
cannot produce it, and
%L. The said public officer cannot give a
- The offender is an accountable public officer. An justifiable reason, a legal excuse for the said
accountable of public officer is an officer in the shortage or missing of public funds or
course of the performance of his duties, receives
funds or property from the government which he
has the obligation to account later. So he has in
property.

If all of these are present, the Supreme Court says


his custody, public funds or public property and he that there arises the prima facie presumption that there is
has the obligation to account these to the malversation of public funds or property. Therefore, there

Government.

Punishable acts:
may NOT be direct evidence to convict one for
malversation of public funds or property. Obviously, there
cannot be any witness, because when you say direct
1. Appropriating public funds or property evidence, there is a witness. Of course, he would not let
2. Taking or misappropriating the same anyone see him malversing the funds. It suffices in the
3. Consenting, through abandonment or negligence, audit, these three things were discovered. If these three are
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CRIMINAL LAW 2
discovered, then there arises the prima facie presumption Malversation of public funds and property through dolo. So,
that there is a so-called MALVERSATION OF PUBLIC in the information, it was stated that he is the one who


FUNDS OR PROPERTY

ILLUSTRATION:
misappropriate, appropriates or has taken the said public
funds, and so he was charged with Malversation through
dolo, through deliberate intent. That was the case filed
Q: What if a man was walking, in the middle of the night, a against him because they did not know that it was B who
police officer who was conducting a patrol saw something took the money. So, the presumption is that, he is the one
bulging on his waist. The police officer stopped him and who took the money, who appropriated it. During the trial of
frisked him and there, they saw a firearm. They ask for the the merits, during the presentation of the defense evidence,
license, the said man could not produce the license for the when it was already As term to testify, it was divulged or
said firearm. He was arrested for illegal possession of disclosed to the court that it was in fact another cashier, B
unlicensed firearm, and the firearm was confiscated. During who misappropriated the said funds through the negligence
the trials of the case, the fiscal move for subpoena for the of A. And by reason of this evidence presented in court, the
custodian of the said firearm. The custodian appeared but said judge, convicted A of Malversation through culpa, in an
failed to bring the firearm. He had already sold the said information of malversation through dolo. Is the judge
firearm confiscated. What crime is committed by the said correct? can he convict A?
custodian? A: Yes, the judge is correct. The reason is that,


A: He is liable for Malversation under Article 217.

Q: His contention was, it cannot be malversation, because


according to the Supreme Court, whether
Malversation is committed through deliberate
intent or culpa, DOLO and CULPA are merely
the firearm was owned by a private person. It is not a public modalities of committing the crime. Nevertheless,
property, therefore I cannot be held liable for malversation. it is still malversation, and if you look at Article
Is the contention correct? 217, whether malversation is committed through
A: His contention is wrong. The said firearm deliberate intent or through negligence, they just
has already been confiscated by public have one and the same penalties. Further, the
authority, therefore it is now deemed, Supreme Court said, Malversation through
CUSTODIA LEGIS. The moment it is in negligence or culpa is NECESSARILY INCLUDED
custodialegis, it loses its character as a private in Malversation through deliberate intent or dolo.
property and it now assumes a character of a Hence, even if the information is Malversation
public property. Hence the crime committed is through dolo, one can be convicted of


Malversation.

Q: What if, there was this collecting officer, a cashier, and


Malversation through Culpa or Negligence.

Q: What if, there was this rape in a warehouse, in the


there were many persons paying. And the long line persons course of the said rape, dangerous drugs worth millions of
paying, one cashier said that he needed to answer the call pesos were confiscated and they were placed in the PDEA
of nature, and so he asked another fellow cashier to look warehouse. The persons therein were charged with illegal
after his drawer, and so, he left and went to the restroom. possession of dangerous drugs. In the course of the
But he also left the key of his drawing on the key holder. hearing in this possession of dangerous drugs, the court
And so, the moment he left, his fellow cashier went to his sent a subpoena to the PDEA custodian, to bring to the
drawer and opened it and took Php 2000 from the Court the said dangerous drugs which were confiscated.
collection of A on the same day. Then A arrived, and he And so, on the designated day, the said PDEA agent
then accepted collections. In the afternoon, there was a boarded all the dangerous drugs confiscated in a PDEA
surprise audit coming from the COA. and it was discovered van and off he went to the Court. However, before the
that based on the receipts, The php 2000 were missing PDEA agent could reach the court, here comes two
from the collection of A. Therefore, A was charged. What motorcycles who went in and fired at him, and he fell on his
crime if any, has been committed by A? Is A liable for seat, lifeless. And then, a big vehicle arrived at the back of


malversation?

A: Yes, he is liable for malversation through


the said PDEA van and took all the said dangerous drugs.
Now the said PDEA agent was brought into the hospital
and despite the fatal wound, because of the immediate
negligence. That is the passive act. That is medical intervention, he survived. Is he liable of any
through his abandonment or negligence, he
permitted another person, Cashier B to
misappropriate a part of his collection for the day.

crime?

A: Yes, he is liable of Malversation of public


Hence A is also liable for Malversation. Not B, but funds or property under Article 217 through
A, the one who went to the restroom, because he Negligence. There was inexcusable negligence
is the one accountable for the said public funds in on his part said the Supreme Court, because all


his drawer.

That other person, B, who took the said property


by himself, carried the millions worth of dangerous
drugs in the PDEA van, considering the value of
the said dangerous drugs, he should have asked
is liable for qualified theft. because he was for back up. Yes, he survived, but he was charged
entrusted with the same funds, and he took the with Malversation of public funds or property

same funds.

Q: What if, in the same problem, after the COA auditor


through CULPA.

Q: What if, there is a public officer whose office is in pasay.


found out that Php 2000 was missing, A was charged with He is going to have a meeting in Caloocan. And so he went
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CRIMINAL LAW 2
to Caloocan in one afternoon and attended the said ILLUSTRATION:
meeting. He had to go to pasay in order to make a report, Q: What if a public officer has under his administration
However, the traffic was heavy, so instead of using his car public funds which is for a certain project. So let us say that
on the way back, he rode the LRT. Upon reaching the X is the city administrator. Under his administration, there
office, he realized that his bag was opened, and the was Php500,000, the said Php 500,000 was for the
cellphone which was __5:17___ by the Government was construction of a bridge between one barangay to another
already gone. By reason thereof, he was charged with barangay. Then suddenly there was a typhoon, a big
Malversation under Article 217 because through his typhoon and many of the constituents were rendered
negligence, the cellphone which was ____ to him by the homeless. And so, they had to stay in the basketball court,
Government and for which he is accountable to the they need food, clothing, water and other basic needs. And
Government was now missing. It was taken or stolen by so, the city administrator made use of the Php 500,000
somebody. Is he liable? He was convicted by the under his administration to buy these basic needs of his
SandiganBayan but when it came to the Supreme Court, constituents. Is the said public officer, the city administrator


the Supreme Court acquitted him.

A: According to the Supreme Court, there was no



liable of any crime?

A: Yes, he is liable for technical Malversation


negligence on the part of the said public officer.
He cannot be faulted for having taken the LRT
because of the said heavy traffic. It cannot be said

under Article 220.

BEST EXAMPLE:
that there was negligence on his part in placing GMA and other head of Philhealth before was
the cellphone inside his bag, because, where else charged by Frank Chavez because of Technical
would you place a cellphone but inside the bag for Malversation because of transfer of COA funds, which was
safekeeping. It would have been different while on used for Philhealth purposes during the elections. And so,
board, he was using the said cellphone. Hence, because of that, according to Frank Chavez, they are liable
the Supreme Court said, there was no negligence for Malversation. They were charged with Technical
and therefore, although convicted by the Malversation. But their contention was there was a law that
SandiganBayan, he was acquitted by the allowed it. If there was a law that allowed it, then, there was

Supreme Court. no violation. But, if there is no law, there is an illegal


transfer of funds, therefore, technical Malversation will
ARTICLE 218 FAILURE OF ACCOUNTABLE OFFICER
TO RENDER ACCOUNTS
ELEMENTS:

resolve.

1. Offender is a public officer, whether in the service or


separated therefrom ARTICLE 217 ARTICLE 220
2. He must be an accountable officer for public funds or
property T h e p u b l i c o f f i c e r The public officer did not
3. He is required by law or regulation to render accounts misappropriates the fund misappropriate the funds
to the Commission on Audit, or to a provincial Auditor for his personal use. for his personal use, he
4. He fails to do so for a period of two months after such used it for another public
accounts should be rendered

ARTICLE 219 FAILURE OF RESPONSIBLE PUBLIC


purpose other than that
which has been
appropriated by law or
OFFICER TO RENDER ACCOUNTS BEFORE LEAVING ordinance that is why it is
THE COUNTRY T E C H N I C A L
ELEMENTS: MALVERSATION the
1. Offender is a public officer offense is on the
2. He must be an accountable officer for public funds or technicality of the use of
property funds.
3. He must have unlawfully left (or be on the point of
leaving) the Philippines without securing from the
Commission on Audit a certificate showing that his The public officer has in his The public officer has in his

accounts have been finally settled

ARTICLE 220 ILLEGAL USE OF PUBLIC FUNDS OR


possession public funds or
property for safekeeping. It
is under his custody and
possession public funds or
property is only under his
administration. Not for
PROPERTY (Technical Malversation) control and therefore it is safekeeping, but only for
ELEMENTS: for his safekeeping and he the purpose of
1. Offender s a public officer has the obligation to administrating it that is, for
2. there is a public fund or property under his account it later on to the applying it for the purpose
administration Government which it has been
3. Such public fund or property has been appropriated by appropriated by law or
law or ordinance ordiance
4. He applies the same to a public use other than that for
which such fund or property has been appropriated by
ARTICLE 221 FAILURE TO MAKE DELIVERY OF
law or ordinance.
PUBLIC FUNDS OR PROPERTY

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CRIMINAL LAW 2
ELEMENTS: 4. Offender consents to the escape of the prisoner or
1. That the public officer has government funds in his person under arrest or that the escape takes place
possession
2. That he is under obligation to make payments from
such funds
through his negligence

Whether it be under Art. 223, 224, 225, the offender


3. That he fails to make payment maliciously

Punishable acts:
infidelity in the custody of prisoners is one who has been
entrusted with the custody and charge of the prisoner.
Whether the prisoner is a prisoner convicted by final
1. Failing to make payment by a public officer who is judgment or a detention prisoner. He must be charged, he
under obligation to make such payment from must be the custodian of the said prisoner because the
Government funds in his possession essence of the crime is the violation of the trust reposed on
2. Refusing to make delivery by a public officer who has him. Because prisoners are accountabilities of the


been ordered by competent authority to deliver any
property in his custody or under his administration
Government.

Can a private individual commit infidelity?


ARTICLE 222 OFFICERS INCLUDED IN PRECEDING - Yes, under Art. 225. If he is entrusted with the
PROVISIONS custody of this prisoner and the prisoner escapes,
Private Individual who may be liable under Art. either in connivance with him or through his
217-221: negligence, then his liability is infidelity in the
1. Private Individual who in any capacity whatsoever,
have charge of national, provincial or municipal funds,
revenue or property

ILLUSTRATION:
custody of prisoners

2. Administrator, depository of funds or property attached, Q: A has been charged with illegal sale of dangerous
seized or deposited by public authority even if such drugs. She is behind bars, it is a non-bailable offense, and
property belongs to a private individual therefore, while the case is ongoing, she is behind bars.
3. Those who acted in conspiracy in malversation So, it was the hearing date, she was accompanied by the


4. Accomplice and accessories to malversation

Can private property be the subject of Malversation?


jail warden, the jail guard to the court, and after trial, there
was this husband and two children of the said woman who
was in jail. The husband and two children talked, and when
- YES, under the 2nd act in Article 222, that is when the said woman prisoner was about to be brought to jail,
the said funds or property has been attached, the husband talked to the jail warden. He invited the jail
seized or deposited by public authority, it now warden for a merienda, in a canteen inside the hall of
becomes in custodialegis and it now assumes the justice. And so, the jail warden saw nothing wrong and so,
character of being public funds or property. If any he had merienda with the woman prisoner, the husband
are misappropriated, then the crime committed is and the two children. The handcuffs had to be removed for

Malversation and not theft.

INFIDELITY IN THE CUSTODY OF PRISONERS (Articles


the woman prisoner to eat. After eating, the woman
prisoner said that she needed to answer the call of nature,
and so, she went to the restroom, also inside or within the
223, 224, 225) hall of justice. The jail guard allowed her inside while the jail
ARTICLE 223 CONNIVING WITH OR CONSENTING TO guard was left outside, waiting. Hours passed, no woman
EVASION prisoner came out. It so happens that the said husband put
ELEMENTS: some disguise for the woman to use so that she could
1. Offender is a public officer escape without being noticed by the said jail guard, and
2. He has in his custody or charge a prisoner, either woman prisoner was able to escape without being noticed
detention prisoner or prisoner by final judgment by the said jail guard. Is the said jail guard liable for
3. Such prisoner escaped from his custody infidelity in the custody of prisoner, or is it a mere laxity
4. That he was in connivance with the prisoner in the which would not amount to infidelity in the custody of


latters escape, or is with his consent

ARTICLE 224 EVASTION THROUGH NEGLIGENCE



prisoner?

A: People vs. Nava The Supreme Court said


ELEMENTS: that mere laxity would not amount to negligence
1. Offender is a public officer under Art. 224. Because according to the
2. He is charged with the conveyance or custody of a Supreme Court in that old case, the negligence
prisoner, either detention prisoner or prisoner by final being required in order that a public officer may be
judgment entitled, must be a deliberate non-performance of


3. Such prisoner escapes through his negligence his duty. Here, it is only a mere laxity on the part of
the said public officer for not having accompanying
ARTICLE 225 ESCAPE OF PRISONER UNDER THE
CUSTODY OF A PERSON NOT A PUBLIC OFFICER
ELEMENTS:

the said woman in the rest room.

Rodriguez vs. SandiganBayan(new case) The


1. Offender is a private individual Supreme Court said otherwise. According to the
2. Conveyance (or charge) of custody of prisoner or Supreme Court, the moment that a public officer, a
person under arrest is confided to him jail warden has accompanied a prisoner outside
3. Prisoner or person under arrest escapes jail, he must not have lost sight of the said prisoner.
The only obligation of the said jail warden after the
Dinty | Manalo | Navarez | Shyu | Tubio Page 83
CRIMINAL LAW 2
trial was to bring her back to the court. The fact MERE ACT OF OPENING the said closed document
that the said jail guard allowed himself to have a
merienda, and even allowed the woman prisoner to
go to the restroom alone, there was laxity on the

will give rise to the crime.

ILLUSTRATION:
part of the said jail guard. The Supreme Court said, Q: What if A has been charged with illegal sale of
LAXITY is a deliberate non-performance of his dangerous drugs. The case was on trial, during the trial of
official duty as the guard of the said prisoner, the case, the fiscal presented the first police officer who
thereby amounting to infidelity in the custody of acted as the poseur buyer in the course of the testimony of

prisoner under Art. 224.

INFIDELITY IN THE CUSTODY OF DOCUMENTS


the police officer, the fiscal produced and showed to him for
identification the marked money. So the marked money
consists of 5, 100 peso bill. The fiscal presented it to the
(ARTICLES 226, 227, 228) police and the police identified it as indeed the marked
ARTICLE 226 REMOVAL, CONEALMENT OR money because of the serial numbers and because of the
DESTRUCTION OF DOCUMENT markings, and thereafter the marked money have been
ELEMENTS: marked as Exhibit A, B, C, D, E for the prosecution. After
1. Offender is a public officer the trial, they were placed inside an envelope and given to
2. He removes, destroys, or conceals documents or the clerk of court, the custodian of the evidence which have
papers already been marked. So trial ended that day, it was now
3. Said documents or papers should have been entrusted lunch time. The clerk of court was on her table and so the
to such public officer by reason of his office vendor arrived. The clerk of court wanted to buy lunch and
4. Damage, whether serious or not, to a third party or to she said, how much. The vendor said it costs 50 peso. The

the public interest should have been caused

Under Article 226, in order for infidelity in the custody


clerk of court pulled out her money; it was a 1000 peso bill.
The vendor said, anglakinamanniyan, walaakongpanukli
And so, by reason thereof, he gave it back to the clerk of
of documents to arise, it is necessary that there be damage court. The clerk of court said that she had no smaller bills,
caused to a third person or to the public interest. If damage and he remembered the exhibits. And so, he took 100 peso
is serious, the penalty is QUALIFIED, therefore, the bill, marked as Exhibit E. And she paid it to the vendor and
damage may or may not be serious provided that there is the vendor gave him the change of 50 peso. After eating,
damage, the crime will arise. before 1:00, the said clerk of court immediately went
DAMAGE IS NECESSARY in order to give rise to outside to change her big 1000 peso bill into smaller bills.


infidelity in the custody of documents.

ARTICLE 227 OFFICER BREAKING SEAL


When he now has these smaller bills, he got one 100 peso
bill and marked it as Exhibit E and then he signed it and
placed it inside the envelope. Here comes the next hearing
ELEMENTS: date, on the next hearing date, another police officer was
1. Offender is a public officer presented, the fiscal produced the said documentary
2. He is charged with the custody of papers or property exhibits, the marked money and asked it from the clerk of
3. These papers or property are sealed by proper court. So the fiscal showed it to the police officer, the police
authority officer identified Exhibits A, B, C, D. However, when it


4. He breaks the seals or permits them to be broken

Under Article 227, officer breaking the seal, infidelity in


comes to exhibit E, the police officer said, Your Honor, it
has a different serial number from the one in our sworn
statement and so because of that, an investigation
the custody of prisoners to arise, even without damage happened and the court learned that it was taken by said
caused to a third party or to public interest. Damage is NOT clerk of court and used in buying food. What crime, if any is
an element. committed by the said clerk of court? Is it malversation or is


MERE BREAKING of the seal of the document will
already consummate the crime.
it infidelity in the custody of documents?

A: The crime committed is infidelity in the


custody of documents under Art. 226 by the
ARTICLE 228 OPENING A CLOSED DOCUMENT public officer in destroying the said document.
ELEMENTS: This marked money becomes documentary
1. Offender is a public officer evidence, the moment they have been marked as
2. Any closed papers, documents, or objects are exhibits. Money here is not used as a medium of
entrusted to his custody exchange, but as documents because they have
3. He opens or permits to be opened said closed papers, been marked as documentary evidence. The
documents or objects moment they have been taken, removed,


4. He does not have proper authority

Infidelity in the custody of documents, the public officer


concealed or destroyed, the crime committed is
infidelity in the custody of documents because the
clerk of court is the custodian of the documentary
has been entrusted with papers, documents or objects, exhibits. If money is used, not as a medium of
which have been closed by proper authority and the said exchange, but like this, as documentary exhibits
public officer opened the said closed document or or any other use other than as a medium of
permitted others to open the same. Again, Damage is NOT exchange, the one who malverse, or use it is the


an element. custodian of the said documents, the crime is
infidelity in the custody of documents and NOT
malversation.
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CRIMINAL LAW 2

When the clerk of court took the 100 peso bill, he

ILLUSTRATION:
destroyed the exhibit, the documentary exhibit of Q: What if in the case of Duterte, the sheriff wishes to
the said prosecution and the prosecution was execute a writ of execution and cause the squatters to

seriously damaged interface. leave the place because of the execution issued by the
court has to be implemented. Had not the sheriff performed


REVELATION OF SECRETS (Article 229-230) the said act, is he liable of any crime? Had the sheriff
refused to execute the writ of execution issued by the said
ARTICLE 229 REVELATION OF SECRETS BY AN
OFFICER
Punishable acts:

judge? Is he liable of any crime?

A: Yes, he is liable of Open Disobedience


1. By revealing any secrets which affect public interest under Article 231. He openly refused to execute
learned by him in his official capacity
ELEMENTS:
3. Offender is a public officer
a writ of execution issued by a judge.

ARTICLE 232 DISOBEDIENCE TO ORDER OF


4. He knows of a secret by reason of his SUPERIOR OFFICER, WHEN SAID ORDER WAS
official capacity SUSPENDED BY INFERIOR OFFICER
5. He reveals such secret without authority or ELEMENTS:
justifiable reasons 1. Offender is a public officer
6. Damage, great or small, is cause to the 2. An order is issued by his superior for execution

public interest

It is necessary that there be Damage caused, whether


3. He has for any reason suspended the execution of
such order
4. His superior disapproves the suspension of the


serious or not. execution of the order
5. Offender disobeys his superior despite the disapproval
2. Wrongfully delivering papers or copies of papers of
which he may have charge and which should not be
published thereby causing damage, whether serious or
of the suspension

The offender refuses to disobey the suspension of the


not, to a third party or to public interest.
ELEMENTS:
i. Offender is a public officer

said order which was disapproved by the said public officer.

ii. He has charge of papers ARTICLE 233 REFUSAL OF ASSISTANCE


iii. Those papers should not be published ELEMENTS:
iv. He delivers those papers or copies thereof 1. Offender is a public officer
to a third person 2. Competent authority demands from the offender that
v. The delivery is wrongful he lend his cooperation towards the administration of

vi. Damage is caused to public interest

ARTICLE 230 PUBLIC OFFICER REVEALING


justice or other public service
3. Offender fails to do so maliciously

SECRETS OF PRIVATE INDIVIDUAL Public officer who shall fail to lend his cooperation
ELEMENTS: towards the administration of justice or any other public
1. Offender is a public officer
2. He knows of the secrets of private individual by reason
of his office

service despite demand by competent authority.

ILLUSTRATION:
3. He reveals such secrets without authority or justifiable Q: A raped B. B was treated by a medico legal officer at the

reason PNP. This medico legal officer who has examined A, issued
a medical certificate, And so in the case filed by B against A

Damage is NOT an element in Article 230.

ARTICLE 231 OPEN DISOBEDIENCE


for this so-called rape, the fiscal moved that the subpoena
(adjustificandum) be sent to this public officer, the medico
legal office who examined the rape victim. However,
ELEMENTS: despite receipt of the said subpoena, the medico legal
1. Offender is a judicial or executive officer officer failed to appear. He did not appear without any
2. There is judgment, decision, or order of a superior justifiable reason at all. The said prosecutor move again for
authority the issuance of another subpoena, a second subpoena.
3. Such judgment, decision or order was made within the Again, despite the receipt, the medico legal officer failed to
scope of the jurisdiction of the superior authority and appear in court and testified and failed to give the copy of
issued with all the legal formalities the medico legal certificate. What crime if any has the said
4. Offender without any legal justification openly refuses
to execute the said judgment, decision or order which
he is duty bound to obey

medico legal officer has committed?

A: He is liable for Refusal of Assistance under


Open Disobedience is committed by any judicial or Article 233. It is committed by a public offcer that despite
executive officer who shall openly refuse without any legal demands of the public authority shall fail to lend his
motive to execute a judgment or decision rendered by a cooperation toward the administration of justice or any
superior authority in the exercise of his duty and in the legal other public service. Thereby, causing damage serious or
infirmities of the law. not, to public interest.
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X. X snatched the handbag with the money. A police officer


NOTE: If the damage is serious, the penalty is QUALIFIED. passing by saw the incident and on boarded their mobile
patrol. They were able to arrest the man, took the bag and
returned it to the said victim. Thereafter, they placed X
ARTICLE 234 REFUSAL TO DISCHARGE ELECTIVE inside the mobile patrol. While inside, they kicked, mold the
OFFICE man. And so, the man suffered less serious physical
ELEMENTS: injuries. What crime is committed by the said police
1. Offender is elected by popular election to a public
office
2. He refuses to be sworn in or to discharge the duties of

officers?

A: The crime committed is less serious


the said office physical injuries. It is not maltreatment of prisoners
3. There is no legal motive for such refusal to be sworn in because the said person, X, is not yet a prisoner. He is only

or to discharge the duties of said office

This is a crime which cannot be committed in


a person under arrest because he has just been arrested
for having committed a crime, but he is not yet a prisoner.
In order to be considered as a prisoner, he must be brought
Philippine Jurisdiction. Refusal to discharge public duties is to the PNP station, taken a picture, left view, side view,
committed by any person entitled to a public office by front view, thumbmark and incarcerated. He is now an
means of popular election, refuses to assume to assume accountability of the Government, he is now a prisoner. But
the powers and duties of his office. He refuses to be sworn before that, he is not yet a prisoner. He is only a person
in. This will not happen in our lifetime. This will never under arrest. That is why in the problem, the police officers
happen in the Philippine Jurisdiction because here, even if are liable only for less serious physical injuries and not of


he did not win in the election, he wanted to hold office.

maltreatment of prisoners.

Q: What if in the same problem, they chased the man.


ARTICLE 235 MALTREATMENT OF PRISONERS They were able to catch the said man and brought him to
ELEMENTS: the PNP station. Booked him and incarcerated him, and all
1. Offender is a public officer or employee the things needed to be done to a prisoner. Later, he was
2. He has under his charge a prisoner or detention brought out of jail for investigation to be brought in the
prisoner Investigation section. In the investigation, he was being
3. He maltreats such prisoner either of the following forced to admit to the commission of the crime. And so, by
manners: reason thereof, the police officer boxed him and gave him a
a. By overdoing himself in the correction or handling huge black eye. The left eye suffered so much that he lost
of a prisoner or detention prisoner under his sight, amounting to serious physical injuries. What are the
charge either: crimes committed by the police officer?
i. By the imposition of punishments not A: Two crimes Maltreatment of Prisoners and
authorized by the rules and regulations Serious Physical Injuries.
ii.By inflicting such punishments (those Maltreatment of Prisoners because he is a
authorized) in a cruel or humiliating prisoner who was maltreated in order to extort a
manner confession and Serious physical injuries because
b. By maltreating such prisoner to extort a
confession or to obtain some information from
by reason of the injury inflicted, he lost an eye.

the prisoner Q: Are you going to complex them? because a single act
constitute a grave and less grave felony, are you going to

-
Who is the offender?

Any public officer or employee


complex them under Art. 48?

A: No. You cannot complex them. Because under


Who is the offended party? Article 235, it is expressly provided that the liability for

- He must be a prisoner

In order to be considered a prisoner, it is necessary that the


maltreatment of prisoners shall be in addition to the
liability for any other physical injuries or damage
caused. Therefore two crimes will be charged against
said person has already been arrested, brought to the PNP
station and he has been incarcerated. If he is not a
prisoner, then, the crime can be physical injuries, whatever

the police officer.

There is also a violation of R.A. 9745, Anti-Torture


injuries that may have been sustained by the prisoner, but Act, because under Section 14 of the Anti-Torture Act,


NOT maltreatment of prisoners

What if maltreatment does not only include physical


Torture shall not absorb and shall not be absorbed by
any other crime committed as a consequence.
Therefore, he can also be held liable under the so-
maltreatment. It shall also include moral, emotional, called Anti-Torture Law.
psychological maltreatment because the law uses the


phrase physical injuries or damage caused.
ARTICLE 236 ANTICIPATION OF DUTIES OF A
ILLUSTRATION: PUBLIC OFFICE
Q: What if A has just withdrew his money from her ATM ELEMENTS:
account, she placed the money inside her bag and she was 1. That the offender is entitled to hold a public office or
already walking towards home when suddenly here comes employment either by election or appointment
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CRIMINAL LAW 2
2. Shall assume the performance of the duties and
powers of a public official or employee

A R T I C L E 2 4 1 U S U R PAT I O N O F J U D I C I A L
3. Without being sworn into office or having given the FUNCTIONS

bond required by law

ARTICLE 237 PROLONGING PERFORMANCE OF


ELEMENTS:
1. That the offender is holding office under the Executive
Branch of the Government
DUTIES AND POWERS 2. That he:
ELEMENTS: a. Assumes the power exclusively vested in the
1. That the offender is holding a public office Judiciary, or
2. That the period allowed by law for him to exercise such b. Obstructs the execution of any order or decision
function and duties has already expired given by a judge within his jurisdiction
3. That the offender continues to exercise such function NOTE: It can only be committed by a public officer of the

and duties

ARTICLE 238 ABANDONMENT OF OFFICE OR



Executive Branch of the Government

Therefore, if the person who assumes judicial


POSITION power does not belong to the Executive Branch, but
ELEMENTS: belongs to the legislative branch, the crime is not
1. That the offender is holding a public office Usurpation of Judicial Function, but USURPATION OF
2. That he formally resigns from his office PUBLIC FUNCTION AND OFFICIAL AUTHORITY under
3. But before the acceptance of his resignation, he Article 177, because Article 239, 240 and 241 are specific

abandons his office

Abandonment of office is committed by a public officer


as to the offenders.
So, let us say, in the one who encroached upon
the powers of the Judge, does not belong to the executive
who has already formally resigns from his position, and branch but he is legislator, it cannot be considered as
having formally resigned from his position, he abandons to usurpation of judicial functions, rather it will beUsurpation
the detriment of public service. Despite the fact that his
resignation has not yet been accepted by a superior
authority. Under Labor Law, when you are an employee,

Of Public Function And Official Authority Under Article 177.

ARTICLE 242 DISOBEYING REQUEST OF


when you file a resignation, it does not mean you are DISQUALIFICATION
already resigned. There must be an ACCEPTANCE from ELEMENTS:
the superior officer before it can be said that he have 1. That the offender is a public officer
already resigned. 2. That a proceeding is pending before such public officer
So here, the public officer has already formally 3. That there has been a question regarding the
resigned, his resignation has not been accepted, yet he jurisdiction brought before the proper authority
abandons to the detriment of public service. What is the 4. There is a question brought before the proper authority
penalty?
- In the abandonment of office, the penalty is
QUALIFIED if the purpose of the said public officer
regarding his jurisdiction, which is yet to be decided

ARTICLE 243 ORDERS OR REQUESTS BY


is to evade the prosecution punishment of the EXECUTIVE OFFICERS TO ANY JUDICIAL AUTHORITY
crime involving violation of Title 1 Book 2 (Crimes ELEMENTS:
against National Security), or Chapter 1 Title 3 of 1. That the offender is an executive officer

Book 2 (Rebellion, Coup detat, Sedition, etc.)

ARTICLE 239 USURPATION OF LEGISLATIVE


2. That the offender addresses any order or suggestion to
any judicial authority
3. That the order or suggestion relates to any case or
POWERS business within the exclusive jurisdiction of the courts
ELEMENTS:
1. That the offender is an executive or judicial officer
2. That he:
of justice

ARTICLE 244 UNLAWFUL APPOINTMENTS


a. Makes general rules and regulations beyond the ELEMENTS:
scope of his authority, or 1. Offender is a public officer
b. Attempts to repeal a law, or 2. He nominates or appoints a person to a public office
c. Suspend the execution of thereof 3. Such person lacks the legal qualification thereof
NOTE: It can only be committed by an executive or 4. Offender knows that his nominee or employee lacks


judicial officer

ARTICLE 240 USURPATION OF EXECUTIVE


the qualifications at the time he made the nomination
or appointment

FUNCTIONS ARTICLE 245 ABUSES AGAINST CHASTITY


ELEMENTS: ELEMENTS:
1. That the offender is a judge 1. That the offender is a public officer
2. That the offender: 2. That he solicits or makes any indecent or immoral
a. Assumes the power exclusively vested to advances to a woman
executive authorities of the Government, or 3. That the offended party is a woman who is:
b. Obstructs executive authorities from the lawful a. Interested in matters pending before the public
performance of their functions officer for his decision or where the public
NOTE: It can only be committed by a Judge
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CRIMINAL LAW 2
officer is required to submit a report or to Parricide is committed when a person kills his father,
consult with a superior officer; or mother, child, whether legitimate or illegitimate,
b. Under the custody of the offender, who is a legitimate other ascendant, legitimate other
warden or other public officer directly charged descendant, or legitimate spouse. Therefore the
with the care and custody of prisoners or offended party or deceased or the victim is specified,
persons under arrest; or he must be the father, mother, child whether legitimate
c. The wife, daughter, sister or any relative falling or illegitimate, legitimate other ascendant, legitimate
within the same degree of affinity of the person other descendant, or legitimate spouse.


under the custody and charge of the offender

How are abuses against chastity is committed?


Parricide is a crime based on relationship.
What kind of relationship?
First, it must be a legitimate relationship
- There are three acts. (Refer to the elements) except in the case of parent and child.
1. Public officer solicits or makes any Second, the said relationship must be in the
indecent or immoral advances to a woman direct line
who is interested in matters pending Third, the relationship must be by blood
before his for his decision or where the (grandfather killed a grandson, a mother
public officer is required to submit a report
or to consult with a superior officer
2. Warden or other public officer directly
killing a son, a son killing a father)

Q: So a father killed an illegitimate son. What crime is


charged with the care and custody of committed?
prisoners or persons under arrest, and he A: It is parricide. Although the crime is based on
solicits or makes any indecent or immoral legitimate relationship, the exception is in case of
advances to a woman
3. Warden or other public officer directly
charged with the care and custody of
children, whether legitimate or illegitimate.

Q: A brother killed another brother. Is the crime committed


prisoners or persons under arrest, and the parricide?
said officer makes any indecent or immoral A: No, the crime committed is murder or
advances to the wife, daughter, sister or homicide, as the case may be and not
any relative falling within the same degree parricide because the relationship between a



of affinity of the male prisoner.

Who is the offender?


brother and another brother is in the collateral line
and not in the direct line.
Q: What if a stepfather killed his stepson?
- He must be a public officer because there must be A: The stepfather is not liable for parricide. It
abuse of public office in making immoral or can either be murder or homicide, as the case
indecent advances. may be, because their relationship is not based on
Essence of the crime is taking advantage of ones blood.
position in soliciting or making immoral or indecent Again, the relationship must be


advances.

Mere act of soliciting or making immoral and indecent


legitimate, in the direct line and by


blood.

advances will already give rise to the crime. It is not In Parricide, the circumstance which will qualify is the
necessary that the woman will comply with the said relationship, therefore relationship between the


solicitation or immoral or indecent advances.

The solicitation must not be the gospel type of


offender and the offended party must be stated in the
information.
Q: Let us say that the husband killed the wife. In the
solicitation. It must be bad, persistent, threatening such that information filed by the fiscal, the fiscal failed to state that
if the woman would not comply then it would adverse on the husband is the legal husband of the said victim.


her part.

If a jail warden impregnated a female detainee, even if they


However, during trial, by virtue of a certificate of marriage, it
was proven that the accused was the legal husband of the
said victim-wife. Can the husband be convicted of
love one another, still liable because detainees are parricide?


liabilities of the state.

TITLE EIGHT
A: No, the husband cannot be convicted of
parricide. This is because the relationship was
not alleged in the information although proven

CRIMES AGAINST PERSONS (ARTICLES 246 266-A)

ART 246 PARRICIDE


during trial. Since the relationship between the
husband and the wife is not alleged in the
information, although proven during trial, he
ELEMENTS: cannot be convicted of parricide. It can only be
1. That a person is killed
2. That the deceased is killed by the accused
3. That the deceased is the father, mother, or child,
murder or homicide, as the case may be.

Q: What if a husband wanted to kill his wife. So he has a


whether legitimate or illegitimate, or a legitimate mistress, the husband wanted to dispose his wife.
other ascendant, or legitimate other descendant, or However, he cannot do it on his own and so the husband
legitimate spouse of the accused hired a high-profile killer, he paid the man 100,000 pesos to
kill the wife. And so the man conducted surveillance on the
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CRIMINAL LAW 2
wife, checked the itinerary of the wife and so when the wife The Supreme Court said, immediately
was getting out of the grocery, here comes the killer. The thereafter means there must not be lapse of
killer, on board a motorcycle, went directly to the wife, shot time between the surprising and the killing or
her and off he went. The wife died. What crime/crimes is/ infliction of serious physical injuries.
are committed? Therefore the surprising and the killing or
A: The husband is liable for principal but said infliction of serious physical injuries must be a
killer is liable for murder. Conspiracy will not lie.
Although they conspired for the killing of the wife,
the husband, being the principal by inducement

continuing process.

Q: What if the husband arrived home and the wife arrived


and the killer, being the principal by direct home from the market. She was about to go the kitchen
participation, conspiracy will not lie. This is when suddenly, she heard voices in the masters bedroom
because the circumstance which qualifies and so she opened the said masters bedroom and saw her
parricide, the relationship, is personal to the legal husband in actual sexual intercourse with another
husband and cannot be transferred to a stranger. person. Notice that the law says, other person which
That is why there will two informations filed, one is means it could be a man or a woman. Upon seeing that,
parricide as against the husband as a principal by the wife who still has a knife in the basket, immediately
inducement and the other one is murder as went towards the husband and stabbed him. The woman

against the killer.

ART 247 DEATH OR PHYSICAL INJURIES INFLICTED


fled. The husband died. Of what crime would you prosecute
the said wife? The wife is liable for parricide under Article
246 for having killed her husband. If you are the counsel of
UNDER EXCEPTIONAL CIRCUMSTANCES the said wife, what defense would you put up in order to
ELEMENTS: free your client from criminal liability?
1. That a legally married person or a parent surprises A: Article 247 or Death under exceptional
his spouse or his daughter, the latter under 18 circumstances. The Supreme Court said that
years of age and living with him, in the act of Article 247 is not a felony. Article 247 is a
committing sexual intercourse with another privilege, in fact is it a defense. If Article 247 is
person. invoked, the accused is free from criminal liability.
2. That the said legally married spouse he or she It is an absolutory cause, an exempting
kills any or both of them or inflicts upon any or circumstance. The Supreme Court said that the
both of them any serious physical injury in the penalty stated therein, destierro, is not really a
act or immediately thereafter penalty on the legally married spouse who killed
3. That he has not promoted or facilitated the the other spouse. It is not a penalty but it is more
prostitution of his wife or daughter, or that he or of a guard, a privilege for him so that he may be
she has not consented to the infidelity of the free from any retaliation of any of the family of the


other spouse.

FIRST REQUISITE/ELEMENT:
victim. So destierro here is not really a penalty.
Again, Article 247 is not a felony. It is a defense, a
privilege; it is an exempting circumstance or an
Under the first element, it is required that the legally
married spouse surprises the other spouse while
in the actual act of sexual intercourse with another
absolutory cause.

PEOPLE v. ABARCA
person. So note the surprising must be in the In this case, there was this student reviewing for the
actual act of sexual intercourse and NOT bar. There were already rumors that his wife was having an
before, NOT after. affair. So one time, he went home unannounced. Upon his
If you will read the book of Reyes, Justice Laurel, arrival, he saw his wife in sexual intercourse with another
naghinanakitsya. Sabinya, Why? Why should it man. The man jumped out the window. The husband
be in the actual act of sexual intercourse, you wanted to kill the man but he had no weapon at the time.
already saw your spouse with another man, why The man went away. It took the husband an hour before he
wait for the sexual intercourse? You know it will was able to find a weapon and upon finding a weapon, he
happen, why wait for it for Article 247? This is went directly to the whereabouts of the man, the lover of
what Justice Laurel said. But the Supreme Court the wife and killed the man. It took him one hour. The killing
said no, the surprising must be in the act of sexual took place an hour, not in the actual sexual intercourse, but
intercourse with another person. Not before, not is it immediately thereafter? Despite the fact that one hour

after, not during the preliminaries.

SECOND REQUISITE/ELEMENT:
had lapsed, would it be within the meaning of immediately


thereafter?

The second element requires that the said legally The Supreme Court, in this special case, said yes.
married spouse kills any or both of them or he According to Supreme Court, when the law uses the
inflicts serious physical injuries upon any or both phrase immediately thereafter; that the killing or the
of them. Again, while in the act of sexual infliction of serious physical injuries must take place
intercourse or immediately thereafter. There is no immediately thereafter, the law did not say that the killing
question as to the actual act of sexual must be done instantly. According to the Supreme Court, it
intercourse but what about immediately suffices that the proximate cause for the said killing is the
thereafter? said pain and the look on the said husband upon chancing
What does the phrase immediately thereafter mean? his wife in the basest act of infidelity. This is an exceptional
case.
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CRIMINAL LAW 2


Why an exceptional case?

Because henceforth, after People v Abarca,


6. With cruelty, by deliberately and inhumanly
augmenting the suffering of the victim or
outraging or scoffing at his person or
the Supreme Court has already interpreted
immediately thereafter, as there must be no
lapse of time between the surprising and the

corpse (RA 7659)

These are the qualifying circumstances for murder


killing. The surprising and the killing must be (See Article 14-aggravating circumstances, Book
continuous. I) Know the elements in Article 14.
Legal luminaries say that this is an All of these are aggravating circumstance under
exceptional case because the husband was Article 14. Note, in order to qualify a killing to
reviewing for the bar which is why he was
given this special _. Because in all other
cases after this, the Supreme Court is strict in

murder, only one is necessary.

If in the information, A killed B and it was attended by


implementing immediately thereafter. The treachery, in consideration of a price, reward or
Supreme Court is strict because this is not a promise, by means of a motor vehicle, so there are
felony, it is a privilege therefore it must be three qualifying circumstances. Only one will suffice to
strictly interpreted and not liberally interpreted qualify the murder to killing, all the other aggravating
in favor of the accused. circumstances will be considered not as qualifying
Look that if the injury inflicted by the legally circumstances but as mere generic aggravating
married spouse on the lover or the other
spouse, is less serious physical injuries or
slight physical injuries, he is totally free from

circumstances.

ART 249 HOMICIDE


criminal liability. Liability will only come in if ELEMENTS:
the other spouse is killed or inflicted with 1. That a person was killed
serious physical injuries. 2. That the accused killed him without any justifying
With regards to the liability of the accused to circumstance
the injuries sustained by other people, liable 3. That the accused had the intention to kill, which is
to physical injuries through negligence, as the presumed
case maybe. There is no intent to kill the 4. That the killing was not attended by any of the
other victims. qualifying circumstances of murder, or by that of
Note that the SC ruled that inflicting death parricide or infanticide.
under exceptional circumstances is NOT When a person kills another person, and it is not


murder. attended by any qualifying circumstance under Article
248, the killing is considered as Homicide under Article
ART 248 MURDER
ELEMENTS:
1. That a person was killed
249.

2. That the accused killed him A R T 2 5 0 P E N A LT Y F O R F R U S T R AT E D O R


3. That the killing was attended by any of the qualifying ATTEMPTED PARRICIDE, MURDER OR HOMICIDE
circumstances mentioned in Article 248

4. That the killing is not parricide or infanticide

Murder is committed by any person who shall kill


ART 251 DEATH CAUSED IN A TUMULTOUS AFFRAY
What is a tumultuous affray?
A tumultuous affray is a commotion, wherein
another person which will not amount to parricide or people fight in a tumultuous or confused manner
infanticide and the killing is attended by the following such that it cannot be ascertained or determined
qualifying circumstances: who has killed the victim or who has inflicted
1. Treachery, taking advantage of superior physical injuries on the victim.
strength, with the aid of armed men, or
employing means to weaken the defense, or ELEMENTS:
of means or persons to insure or afford 1. That there be several persons
mutiny. 2. That they did not compose groups organized for the
2. In consideration of price, reward or promise common purpose of assaulting and attacking each
3. By means of inundation, fire, poison, other reciprocally
explosion, shipwreck, stranding of a vessel, 3. That these several persons quarreled and assaulted
derailment or assault upon a railroad, fall of one another in a confused and tumultuous manner
an airship, by means of motor vehicles, or 4. That someone was killed in the course of the affray
with the use of any other means involving 5. That it cannot be ascertained who actually killed the
great waste and ruin. deceased
4. On occasion of any calamities enumerated 6. That the person or persons who inflicted serious
in the preceding paragraph, or of an physical injuries or who used violence can be
earthquake, eruption of a volcano, destructive
cyclone, epidemic, or any other public
calamities.


identified.

Article 251, death in a tumultuous affray, is committed


5. With evident premeditation. when there are several persons who do not compose
groups which have been organized to assault and
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CRIMINAL LAW 2
quarrel with one another reciprocally, assaulted and Q: There was this tumultuous affray, several people were
attacked each other reciprocally and in the course of attacking and fighting each other. Suddenly, here comes a
the affray, someone is killed. And it cannot be balot vendor who saw the affray and he was just there,
ascertained or identified or determined who killed the watching. While he was watching the affray, one of the
victim, then the person who inflicted serious physical participants of the affray, X, saw him and went directly to
injuries or those who used violence against the said the balot vendor and stabbed him twice. The balot vendor


victim can be identified.

Someone is killed. Note that he can be any person; he


died. What crime is committed? Is it under Article 251,
Death in tumultuous affray?
A: No. It is murder or homicide as the case
can be someone from the affray, he can be a mere may be. This is because the perpetrator of the
passerby, he can be just someone watching the affray, crime is identified, ascertained or determined.
so long as he is killed in the affray and it cannot be Death in a tumultuous affray under Article 251 can
ascertained who killed him, then the person who only be charged if the actual perpetrator of the
inflicted serious physical injuries on him is liable if he crime who killed the victim cannot be ascertained
can be identified. If this person cannot be identified,
then the person who used any kind of violence against or identified.


him shall be criminally liable. ART 253 GIVING ASSISTANCE TO SUICIDE
TWO ACTS PUNISHABLE:
I.By assisting another to commit suicide, whether the
ART 252 PHYSICAL INJURIES INFLICTED IN suicide is consummated or not; or
TUMULTUOUS AFFRAY II.By lending assistance to another to commit suicide to
ELEMENTS:
1. That there is a tumultuous affray
2. That a participant or some participants thereof suffer

the extent of doing the killing himself.

Giving assistance to suicide binigyan mong rope;


serious physical injuries or physical injuries of a binigyan mo ng poison.
less serious nature only. A friend wanted to commit suicide, he doesnt know the
3. That the person responsible thereof cannot be way, the means and you agreed with him, you assisted
identified and gave the best poison in the world. So you assisted
4. That all those who appear to have used violence the said friend in committing suicide. Note that if a

upon the person of the offended party are known.

Note that the victim here must be a participant. The


person assisted in committing suicide by giving him
poison, the initiative must come from him. The desire
to kill himself must come from the victim. He wanted to
law is specific. The participants must be the one commit suicide and you merely provide assistance in
injured with serious physical injuries or less serious the commission of suicide.

physical injuries. Not slight physical injuries.

Article 252, we have physical injuries inflicted in


B wanted to commit suicide, here comes A, A gave
assistance to B but B survived. B did not die. Only A is
criminally liable because suicide or attempt to commit
tumultuous affray, is committed when in a tumultuous suicide is not a felony within Philippine jurisdiction. It is
affray, a participant has suffered serious physical only the one who assisted to commit suicide is
injuries or less serious physical injuries and it cannot criminally liable but not the person who attempted to
be ascertained who inflicted these injuries but the
person who used violence on the victim can be
identified or determined.

commit suicide.

Q: What if a terminally sick person with cancer, he was


If the injury caused to the victim is only slight physical lying in bed, almost lifeless and it was only a machine that
injuries, then no one is liable because if a person was giving life to his body. Now, the mother of the patient
engaged in a tumultuous affray or participated therein, and she took pity of her son because the son was
the law presumes that it is __ therefore no one is liable agonizing and was only breathing through the said
if the injuries sustained is only slight physical injury machine. The mother wanted to finish the suffering of the
and it cannot be determined who inflicted the said son and at the time she visited the hospital, she turned off

slight physical injury on the victim.

Q: There was this tumultuous affray, several people were


the machine and the son died. He killed her son out of
mercy. So it is mercy-killing or euthanasia. Is the mother
liable for giving assistance to suicide?
attacking and fighting each other. Suddenly, here comes a A: No because the initiative to kill did not come
balot vendor. He saw the affray. He was just there, from the sai person who was ill. The crime
watching, suddenly he fell on the ground. He died because committed by the mother is parricide for killing
of a stab wound. Now, it cannot be ascertained who her son. If it were other person, it was murder.
stabbed him, so no one saw who stabbed him. Who will be Evidently, it was murder because there was
held criminally liable? evident premeditation; there was thinking before
A: Any person who inflicted serious physical
injuries on him. No one has seen also who had
inflicted serious physical injuries against him. The
doing the act of mercy-killing.

ART 254 DISCHARGE OF FIREARMS/ ILLEGAL


any person who inflicted any violence against DISCHARGE OF FIREARMS


him shall be criminally liable. ELEMENTS:
1. That the offender discharges a firearm against or at
another person
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CRIMINAL LAW 2

2. That the offender has no intention to kill that person

Q: What if there was this park. The park was full of people
infanticide.


relationship.
It is the age that is controlling, not the

and then suddenly, here comes X, X went to the park, put


out his firearm, and he fired shots in the air. What crime is ILLUSTRATION:
committed? Q: So what if there was this woman and this woman gave
A: X committed Alarms and Scandals under birth to a child. After giving birth to the child while the child
Article 155. When he fired shots in the air, his was only a day old, she already wanted to kill the child in
intention was to cause disturbance of public peace order to conceal her dishonor. However, she could not kill
and tranquility. The firearm was not aimed towards the child by herself and so she asked a favor from a friend.


any person.

Q: What if X went to a public place full of people. X saw his


And so the friend arrived and both the mother and the said
friend killed the child, a day old, by suffocating the said
child with a big pillow. The child less than three days old,
enemy, Y, and so to threaten Y, X pulled out his firearm, died. What crime/s is/are committed?
aimed the firearm at Y in order to threaten him. X A: The mother is liable for infanticide. The
discharges the firearm, however, with no intention to kill Y. said stranger friend is also liable for
His only intention is to threaten Y and Y was not killed. infanticide. There was conspiracy on them. This
What crime is committed? time conspiracy on life, both of them are liable for
A: The crime committed is Article 254, Illegal infanticide under only one information. Isang
Discharge of Firearms. Illegal discharge of information langsa court and that is infanticide.
firearms is committed by any person who aims Both the mother and the friend are conspirators of
and discharges the firearm to any other person
absent the intent to kill the said person. The infanticide.

purpose is merely to threaten the said person.

Q: What if in the same public place, X went there and


Now let us say that the mother is convicted. If the
mother is convicted, the penalty imposed by the law as
provided in Article 255 is equivalent to parricide which is
pulled out his firearm because he saw his enemy, Y. He reclusion perpetua to death. On the other hand, if the
aimed the gun at Y with intent to kill, because he wanted to stranger is convicted under Article 255, the penalty to be
kill his enemy. However, Y saw it and was able to avoid. imposed is equivalent to murder therefore, also reclusion
What crime is committed? perpetua to death. But note the charge is that he is guilty
A: X committed attempted homicide or murder, of infanticide.
as the case may be. Although Y was not hit, the The fact that the said mother killed the child, less
fact that the said firearm was discharged with than three days old, in order to conceal dishonorwill
intent to kill, it is already attempted homicide or mitigate the criminal liability of the mother. NOTE:The

murder, as the case may be. penalty will be lowered not by one, but by two degrees,
from reclusion perpetua to death, the penalty of the mother
Q: What if in the said merry-making, there were so many
people. X went there. He saw his enemy Y and went
directly to Y, took out his gun and he poked the gun without

will only now become prision mayor.

Q: What if let us say that the killer of the less than three
discharging. What crime is committed? day old child is the maternal grandparents. The
A: The crime committed is other light threats. grandparents conspired in the killing in order to conceal the
So here, threatening another with a gun, without dishonor of their daughter. What is the effect of the
discharging, only poking. It is other light threats. It concealment of the dishonor?
is not grave threats, it is not light threats. It is only A: The concealment of the dishonor will also


other light threats, arrestomenor.

So kapag discharge, pinutok it could either be alarms


mitigate the criminal liability of the maternal
grandparents that is one degree lower. So sa
mother, two degrees lower, from reclusion
and scandals, illegal discharge of firearms or perpetua to death magigingprision mayor. Sa
attempted or frustrated murder or homicide, as the maternal grandparents one degree lower lang,
case may be. from reclusion perpetua to death it will now
If no discharging, only poking, or threatening with a become reclusion temporal. Whatever it is,

firearm, it is only other light threats

ARTICLE 255 INFANTICIDE


concealment of dishonor is akin to a privilege
mitigating circumstance because the lowering of
the penalty is not merely by periods but by
Infanticide is the killing of a child less than three degrees. So it is akin to a privilege mitigating
(3) days old or less than seventy-two (72) hours. So in the
case of infanticide, it is the age of the victim that is
controlling. The victim, the child, the infant, must be less
circumstance.

Q: So what if in the same problem I gave, the woman gave


than three (3) days old. He must be less than seventy-two birth to the child and wanted to kill the child but this time
hours. If it is only three (3) days old or above it is any other the infant is already three days old and the child was killed
crime but not infanticide. by the said mother and the friend. What are the crimes
Who is the offender in Infanticide? committed?
The offender can be the parents, the mother, the A: The mother is liable for
father, the grandparents or it can be any other person so parricidewhile the stranger/friend is liable for
long as the child is less than three (3) days old, it is murder. And this time no amount of concealment
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CRIMINAL LAW 2
of dishonor will mitigate the criminal liability of the to abort the fetus. So what the boyfriend did was he went to
mother. So there lies a difference between the sidewalks of Quiapo and bought there aborting
parricide and infanticide if the offender is the beverages and he administered the same to the said
parent or the mother of the child. woman. And the female student drank the aborting
JUST REMEMBER: If the child is less than three days old beverage and the fetus died. What crime/s is/are
or less than 72 hours, IT IS INFANTICIDE. It is the age committed?
that controls. If the child is three days old and above, A: In so far as the boyfriend is concerned, the
PARRICIDE OR MURDER, as the case may be. It is crime committed is intentional abortion under Article
obvious murder because a three day old child or infant is 256. In so far as the said female student is


totally defenseless.

ARTICLE 256, 257, 258 AND 259 ARE ALL ABOUT


concerned, the crime committed is also intentional
abortion but it is under Article 258 Abortion
practiced by the woman herself or by her parents.
ABORTION
ARTICLE 256 INTENTIONAL ABORTION
ARTICLE 257 UNINTENTIONAL ABORTION
So, both of them are liable for intentional abortion.

Q: But what if despite the fact that the female student had
ARTICLE 258 ABORTION PRACTICED BY THE already taken or drank the abortive beverage still the fetus
WOMAN HERSELF OR BY HER PARENTS survived? Malakasangkapitngbatasa maternal womb. What
ARTICLE 259 - ABORTION PRACTICED BY A crime is committed if any by the boyfriend and the
PHYSICIAN OR MIDWIFE AND DISPENSING OF girlfriend? Is there a crime such as frustrated intentional


ABORTIVES

Note that there are four (4) articles on abortion but there
abortion?
A: YES. There is a crime such as frustrated
intentional abortion. Here, the said woman has
are only two (2) type of abortion: already taken the said abortive beverage. He has
1. INTENTIONAL ABORTION already performed all the acts necessary to
2. UNINTENTIONAL ABORTION consume the crime of abortion however, abortion
Because the abortion practiced by the woman herself or did not result because of causes independent of
the mother and the abortion practiced by a physician or their will. Malakasangkapitngbatasa maternal
midwife are all intentional abortion. So in effect, we only womb and so the baby survived. And so, they are
have to kinds of abortion. We have intentional abortion and
unintentional abortion.
ABORTION is the willful killing of a fetus from the
both liable for frustrated intentional abortion.

IS THERE A CRIME SUCH AS FRUSTRATED


mothers womb or the violent expulsion of a fetus from the UNINTENTIONAL ABORTION?


maternal womb which results in the death of the fetus.

INTENTION ABORTION is committed in three (3) ways:


NO. This time there is no crime such as
frustrated unintentional abortion. Because in
unintentional abortion, the intention is against the
1. By using violence upon the person of the pregnant
woman resulting to abortion.
2. Without violence, by acting without violence,

woman and abortion only happens unintentional.

ILLUSTRATION:
without the consent of the woman by Q: So lets say a man exerted physical violence against the
administering aborting drugs or beverages without woman who happens to be his enemy. The said woman
the consent of the pregnant woman. was severely hurt however, the baby was not hurt. The
3. By acting without violence, with the consent of the fetus inside the tummy did not die. What is the crime
pregnant woman that is by administering aborting committed by the said man?
drugs or beverages to a pregnant woman this time A: Only serious physical Injuries against the

with her consent.

UNINTENTIONAL ABORTION can only be committed in


woman. No crimes against the fetus because there
was no intent in so far as the fetus is concerned.

one (1) way and that is by exerting physical violence on a Q: But what if in the said problem, the man inflicted
pregnant woman. And in result thereof, an unintentional violence on the pregnant woman who happens to be his
abortion was suffered. enemy. Lets say he kicked and moved the said woman
In unintentional abortion the force employed was severely and by reason thereof the pregnant woman was
physically exerted on a pregnant woman. The intention of 1:44:17. What crime/s is/are committed?
the offender is not against the baby or the fetus but against A: The crime committed against the woman is
the mother. His intention is against the mother but in so serious physical injuries. As against the fetus,
doing, since the mother is pregnant, the baby/fetus was the crime committed is unintentional abortion.


also aborted. So abortion was unintentionally caused.

ILLUSTRATION:
Now, it resulted from one single act therefore it will
result to a complex crime of SERIOUS PHYSICAL
INJURIES WITH UNINTENTIONAL ABORTION
Q: So what if there were two college students, a boyfriend under ARTICLE 48 OF BOOK 1. It is a complex
and girlfriend. The girlfriend became pregnant and the crime. It is a single act resulting to two less grave
boyfriend said, I am not yet ready. We are still so young so
I cannot marry you. And so by reason thereof the girlfriend
said, how about my situation? I am already pregnant. And
felonies.

Q: What if a husband arrived home at 5 oclock in the


so by reason thereof, they both decided in order to conceal morning. He saw his wife looking at the children and is
the dishonor of the said female student, they both decided making breakfast. Suddenly the cellphone of the wife rang,
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CRIMINAL LAW 2
the pregnant wife answered the cellphone and she began 3. By scoffing at or decrying another publicly for
giggling. When she began giggling, the husband took the having refused to accept a challenge to fight a
cellphone from the said wife and listened to the cellphone.
He heard a voice of a man on the other line of the
cellphone. Since he heard the voice of the man and he just
duel.

Under Article 261, the persons criminally liable are both the
arrived from work, he became jealous and with the use of a challenger and the instigator.
knife he stabbed the wife. The wife died and the fetus died. NOTE that if it is not a duel or there is no agreement to
What crime/s is/are committed? combat or to fight, lets say there was no agreement
A: In so far as the wife is concerned, the crime between A and B to fight and yet they fought and B died,
committed is parricide. In so far as the baby is the crime committed is HOMICIDE because Article 260 and
concerned, the crime committed is 261 only applies if there is an agreement to fight, to a duel
unintentional abortion. Again, it resulted from
one single act of stabbing the wife therefore it will
or a combat.

give rise to a COMPLEX CRIME OF PARRICIDE


WITH UNINTENTIONAL ABORTION. There is a
crime against the wife which is parricide and

CRIMES OF PHYSICAL INJURIES:

ARTICLE 262 MUTILATION


against the fetus which is unintentional abortion Mutilation is the clipping off or chopping off of a
resulting from a single act therefore, it is parricide particular part of a body which is not susceptible to grow

with unintentional abortion.

ARTICLE 259 - ABORTION PRACTICED BY A


again.
Two kinds of mutilation:
1. By intentionally depriving another of a part of his
PHYSICIAN OR MIDWIFE AND DISPENSING OF body which is an essential part for reproduction.


ABORTIVES 2. By intentionally committing other mutilation that is,
by depriving him of any other part of his body with
UNDER ARTICLE 259, there is another act punished and
that is dispensing of abortives. Dispensing of abortives is
committed by a pharmacist who shall dispense an abortive
intent to deprive him of such part of his body.

Under the first kind, that is mutilating an organ


without a prescription from a physician. The mere act of essential for reproduction, is otherwise known as
dispensing the said abortives without prescription from a CASTRATION. You will know that the penalty is even


physician will hold the said pharmacist criminally liable.

ARTICLE 260 - DUEL


higher than homicide. Killing a person is only punishable
by reclusion perpetua while castrating a person is
punishable by reclusion temporal to reclusion perpetua.
ARTICLE 261 CHALLENGING TO A DUEL Because if you are castrated it is as if you are already
What is a duel? killed. Thats why it has a higher penalty.
A duel is a combat with deadly weapons Mutilation is a felony which cannot be committed
concerted between two or more persons who have decided out of imprudence or negligence. Because the


or agreed to fight.

ELEMENTS OF A DUEL:
law requires that there must be the deliberate
intent to mutilate, the deliberate intent to clip off, to
severe a particular part of the body of a person.
1. It is necessary that the offenders that there was an Absent that deliberate intent, any person who
agreement to engage in combat or in a fight. loses a part of his body, it can only be serious
2. There must be two or more seconds for each physical injuries but not mutilation. So in mutilation
combatant. it is always committed with deliberate intent or
3. The firearms or the arms to be used as well as the dolo to mutilate. Absent that, it is serious physical
other terms of the combat must be agreed upon injury.

by the said seconds.

Under Article 260 - Duel, there are three acts punished in


ILLUSTRATION
Q: Lets say A and B were engaged in a fight, they were
both fighting and A was losing and so he took out his bolo.
a duel: His intention was to cut the body of B in order to defeat him
1. By killing ones adversary in a duel. however, B tried to prevent him and placed his hand and by
2. By inflicting physical injuries upon ones reason thereof, the right hand of B was severed from his
adversary. body. Is the crime committed mutilation?
3. By making a combat by merely entering into a A: NO. It is not mutilation because there was no

duel.

So under Article 260, the persons who are liable are the
deliberate intent to clip off or to severe the right
hand of B. His intention was to attack or to stab B
and in so doing, it resulted to the loss of an arm
combatants and adversaries, those who engage in a duel therefore, the CRIME COMMITTED IS SERIOUS


and yungkanilangalalay, yung seconds.

Under Article 261- Challenging to a duel, there are also


PHYSICAL INJURIES. Physical injuries can either
be serious physical injuries, less serious physical
injuries or slight physical injuries.
three acts punished: PHYSICAL INJURIES is the act of wounding, beating or
1. By challenging another to a duel. assaulting another with no intent to kill. It also involves the
2. By inciting another to give or accept a challenge to act of knowingly administering injurious beverages or
a duel. substances absent intent to kill. So always there is no
intent to kill in order to amount to physical injuries because
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even if the injury is only slight or no injury at all but if there
is intent to kill, it is already in the stage of homicide. So

BLINDNESS requires loss of vision of both eyes by reason
there must be no intent to kill. of the injury inflicted. Mere weakness in vision is not
It also includes the act of knowing administering injurious


substances absent intent to kill.
contemplated.

So always, there is no intent to kill in order to amount to


Under the SECOND CATEGORY:


physical injuries.

Because even if the injury is only SLIGHT or no injury at all,


The offender loses the use of speech or the power to heal
or to smell, or looses an eye, a hand, a foot, an arm or a
leg.
but there is intent7 to kill, it is already in the attempted - So if it is only an eye which has been lost, it is


stage of Homicide. So there must be no intent to kill. serious physical injury but under the Second
Category already. The penalty is lesser than that


ARTICLE 263 SERIOUS PHYSICAL INJURIES

Under Art. 263, the serious physical injuries punished


of the First Category.

Under the THIRD CIRCUMSTANCE/CATEGORY:


are:

1. When the injured person becomes insane,



When the offender becomes DEFORMED.

imbecile, impotent, or blind in consequence of the So what is this so-called DEFORMITY which will result in
physical injuries inflicted.
2. When the injured person:
a. Loses the use of speech or the

serious physical injury?

Q: A hacked B with the use of a bolo on his stomach. So


power to heal or to smell, or looses there was a big mark on his stomach despite the fact that it
an eye, a hand, a foot, an arm or a was already healed, there was a big scar on the said
leg; or stomach. The doctor said that the said injury requires
b. Loses the use of any such member, medical treatment for 2 weeks. What crime is committed?
or Is it serious physical injury or is it less serious physical
c. Becomes incapacitated for the work
in which he was therefore habitually
engaged in the consequence of the

injury?

A: The crime committed is only LESS SERIOUS


physical injuries inflicted PHYSICAL INJURY. There was no deformity.
3. When the injured: Although there was a big scar on the stomach, it
a. Becomes deformed would not amount to deformity. An injury in order
b. Loses any other member of his to amount to deformity which would bring about
body; or serious physical injury must result to a physical
c. Becomes ill or incapacitated for the ugliness on a person. There are 3 requisites befor
performance of the work in which he deformity may be considered as a serious physical
was habitually engaged for more
than 90 days, in consequence of the
physical injuries inflicted

injury:

1. There must be physical ugliness produced on


4. When the injured person becomes ill or a body of a person
incapacitated for labor for more that 30 days (but 2. The said deformity should be permanent and
must not be more than 90 days), as a result of the definite abnormality and it would not heal
physical injuries inflicted. through the natural healing process
Note: All of this, all of the enumeration mentioned in Art. 3. The said deformity must be located in a
263 are already considered serious physical injury. If a
person becomes ill or incapacitated for more than 30 days,
it is already serious physical injuries. It is already divided
conspicuous and visible place

EXAMPLE OF The said deformity should be permanent


into categories for purposes of penalty. Because they differ and definite abnormality and it would not heal through the
in penalty. But the moment the said person, by reason of
the said injury becomes ill or incapacitated for labor for
natural healing process:


more than 30 days, it is already, serious physical injury.

So the FIRST CATEGORYis, that the injured person


A boxed B. He lost his 2 front teeth permanently. What


crime was committed?


becomes INSANE.

INSANITY refers to a mental disease by reason thereof a


A: The crime committed was SERIOUS
PHYSICAL INJURY. Because it is a deformity
even if the doctor says that he can still replace it,
person can no longer appreciate the consequences of his the fact still remains that it cannot be healed


act.
through a natural healing process.

IMBECILITY is when a person is already advanced in age,


yet he has only the mind of a 2-7 year old child.
A boxed B, A lost another tooth.

A: The crime committed will LESS SERIOUS OR


IMPOTENCY includes the inability to copulate or sterility. SLIGHT PHYSICAL INJURIES depending on the
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CRIMINAL LAW 2
medical attendance. Because it cannot be seen. It 2. When there are circumstances adding ignominy to

is not located in a visible or conspicuous place.

A poured muriatic acid on the face of another person whom


3.
the offense
When the victim is the offenders parents,
ascendants, guardians, curators, or teachers
he hates and so because of that, the face of that person 4. When the victim is a person of rank or person in
becomes deformed, it became ugly. Later, she went on a
plastic surgeon. When he got out of the plastic surgery
clinic, she now looks like Vilma Santos. Is the accused
authority, provided the crime is not direct assault

So the crime committed here, with the attendance of these


person liable for serious physical injuries?

A: Yes. Even if she became prettier than before, it



circumstances qualify less serious physical injuries.

is still a fact that by reason of the said injury it ARTICLE 266 SLIGHT PHYSICAL INJURIES AND
cannot be healed through the natural healing
process. It will require the attendance of medical
surgeon. Therefore, it is considered as a

MALTREATMENT

3 KINDS OF SERIOUS PHYSICAL INJURIES AND

deformity.

If the said physical ugliness is not located on a visible or


MALTREATMENT:
1. Physical injuries which incapacitated the offended
party for labor from 1 to 9 days, or required
conspicuous place, it would be depending on the medical attendance during the same period


deployment of medical attendance. 2. Physical injuries which did not prevent the
offended party from engaging in his habitual work


Q: When is serious physical injuries qualified? or which did not require medical attendance
3. Ill-treatment of another by deed without causing
A: Serious physical injuries is qualified:
1. If it is committed against any of the persons
enumerated in Parricide. That is when serious
any injury

Maltreatment of another by deed without causing any injury


physical injuries is committed against the is the act of INFLICTING PAIN ON ANOTHER PERSON
father, mother, child, whether legitimate or
illegitimate; legitimate other ascendant or
WITHOUT CAUSING ANY WOUND OR INJURY.

other descendant and legitimate spouse of


the accused.
2. If in the infliction of serious physical injuries, it

CASE: PEOPLE VS MAPALO (in Book I)

Let us say that A was walking. Here comes B. B


is attended by any of the qualifying used a lead pipe, he went to A and hit the head of A with a
circumstances for murder. That is, if it is done lead pipe. Thereafter, he ran away. The medical certificate
with treachery, evident premeditation, the showed that the head of A did not sustain any injury. He
crime committed is qualified serious physical was charged with wttempted homicide. Supreme Court

injuries. said, the crime committed is ILL-TREATMENT OF


ANOTHER BY DEED, a form of slight physical injury under
ARTICLE 264 ADMINISTERING INJURIOUS


SUBSTANCE OR BEVERAGES
Art. 266.

According to the Supreme Court, there was pain
ELEMENTS: inflicted on A, but there was no injury and there was no
1. The offender inflicted serious physical injuries intent to kill because the said offender immediately ran
upon another away after hitting him a single time. So the crime committed
2. It was done by knowingly administering to him any
injurious substances or beverages or by taking
advantage of his weakness of mind or cruelty

is MALTREATMENT OF ANOTHER PARTY.

3. He had no intent to kill



ARTICLE 266-A RAPE

RAPE is now a crime against person; it is no


ARTICLE 265 LESS SERIOUS PHYSICAL INJURIES

LESS SERIOUS PHYSICAL INJURIES is


longer a crime against chastity. Because of the amendment


brought about by RA 8353 THE ANTI-RAPE LAW.

committed if by reason of the injury inflicted, the offended 2 TYPES OF RAPE/HOW RAPE IS COMMITTED:
party requires medical attendance or he cannot perform 1. By a man who shall have carnal knowledge of a
the work with which he is habitually engaged for a period of woman
10-30 days. So the requirement of medical attendance or
his incapacity to do his work for a period of 10-30 days, it 2. Sexual Assault


will bring about less serious physical injury.

Q: What circumstances will QUALIFY LESS SERIOUS


There is RAPE BY CARNAL KNOWLEDGE when a man
has carnal knowledge of a woman against her will.


PHYSICAL INJURIES?

1. When there is manifest intent to insult or offend


ELEMENTS OF A RAPE BY A MAN WHO SHALL HAVE
CARNAL KNOWLEDGE OF A WOMAN :
1. Offender is a man
the injured person
Dinty | Manalo | Navarez | Shyu | Tubio Page 96
CRIMINAL LAW 2
2. Offender had carnal knowledge of the woman threat, or intimidation. That is why in case of
against her will inceuous rape, force, threat, or intimidation is not
3. Such act is accomplished under any of the indispensable; it is not necessary. Because it is
following circumstance: the overpowering and overbearing moral influence
a. Through force, threat, or intimidation or moral ascendency which a father has over his
b. When the offended party is deprived of daughter which takes place of force, threat or
reason or is otherwise unconscious
c. By means of fraudulent machination or grave
abuse of authority
intimidation.

Q: What if A and B are lovers and then suddenly B filed a


d. When the offended party is under 12 years of case against A because according to B, he was raped by
age or is demented, even though the her boyfriend. In the course of the trial of the case, the

circumstances mentioned above be present

FIRST - OFFENDER IS A MAN


defense of the man was the so-called, sweetheart defense
theory. According to him, We are sweet lovers. Therefore
according to him, it is impossible for him to have raped her
So in rape by carnal knowledge, who is the offender? A because we are sweet lovers. Will said sweetheart defense
MAN.
Who is the offendeaprty? A WOMAN.
theory lie in his favor?


The law is SPECIFIC.

SECOND - OFFENDER HAD CARNAL KNOWLEDGE


A: Supreme Court said, in case of sweetheart
defense theory, for it to lie, mere oral testimonty
will not suffice. There must be documentary
OF THE WOMAN AGAINST HER WILL" evidence, memorabilia, picture, love letters, etc.
The offender has carnal knowledge of a woman against her which would show that indeed they are
will and it is committed by using force, threat, or sweethearts boyfriend & girlfriend or lovers. But
intimidation. When the offended party is deprived of reason mind you, even the Supreme Court said this, there


or otherwise unconscious.

Q: What if the woman was sleeping when a man had a


was not a case wherein the sweetheart defense
theory has acquitted a man.

carnal knowledge of the said woman. Is it rape by carnal Therefore, under any all circumstances which involves the


knowledge? sweetheart defense theory will not lie in favor of a man.
Because it does not mean that when you are the


A: Yes. The Supreme Court said that the woman
who is sleeping is unconscious.
sweetheart, you can no longer rape the other person.

In Book I, there is no such thing as FRUSTRATED RAPE.


Q: What if the woman is half asleep when the carnal Rape admits only 2 stages: ATTEMPTED RAPE and


knowledge was done by the said man? Is it still rape?

A: Yes, said by the Supreme Court. The woman



CONSUMMATED RAPE.

The reason is that a mere touch of an erected penis on the

was unconscious. labia or lips of a womans genitalia will already


consummate rape.


THIRD:

A is 11 years old. He is cohabiting with a man who is 20


It is not necessary that there be deep or complete
penetration. It is not necessary that the vagina did
years old. They are luvingtgether as if they are husband lacerated. Mere touch of the lips or the labia of a womans
and wife. Of course, they had carnal knowledge. The man
is liable for STATUTORY RAPE. The number of times that
he had carnal knowledge of the said woman, that is the

genitalia already consummates rape.

Q: What if, what the erectile penis has touched was the
number of the counts of rape. So if he had carnal outer portion of genitalia, that portion which became hairy
knowledge of the woman 5 times during the time that they during puberty, you have to distinguish whether it is acts of
were together 5 counts of statutory rape. That is because
the child, the victim, is below 12 years of age. Insofar as
criminal law is concerned, she does not have a mind of her

lasciviousness or attempted rape.

A:


own, she cannot give a valid consent.

Q: What if, so the law requires that the said act of carnal

CASE: PEOPLE VS JALOSJOS

If when an erectile penis has touched the outer


knowledge must be with the use of force, threat, or portion of a womans genitalia which becomes
intimidation, a father raped his daughter. The daughter did hairy during puberty, if the intention of the said
not put up a fight, the father did not use force, threat, or offender is to lie, to have carnal knowledge
intimidation in the said carnal knowledge of a daughter. Is against the said woman, it is attempted rape. But


the crime committed rape? if in doing so, the said man has no intention to lie
or to have carnal knowledge, that is only ACTS OF
A: Yes. The crime committed is rape. It is
INCESTUOUS RAPE. In case of incestuous rape,
it is the overpowering and overbearing moral
LASCIVIOUSNESS.

influence or moral ascendency of an ascendant What about the other form of Rape RAPE BY SEXUAL
over a descendant which takes place of force, ASSAULT
Dinty | Manalo | Navarez | Shyu | Tubio Page 97
CRIMINAL LAW 2

ELEMENTS:
c t
into
1. the
Offe geni
nde t a l
r o r
com anal
mits orifi
a n c e
act o f
o f anot
sex her
ual pers
ass on
ault 3.
2. The
The act
act o f
o f sex
sex ual
ual ass
ass ault
ault i s
i s acc
com omp
mitt lish
e d e d
b y und
any e r
o f any
the o f
follo the
win follo
g win
mea g
ns circ
a. ums
B y tanc
inse es:
rting a.
his B y
peni usin
s g
into forc
anot e or
her inti
pers mid
ons atio
mou n
t h b.
o r W h
anal e n
orifi the
ce, w o
or man
b. i s
B y dep
inse rive
rting d of
any reas
instr o n
ume o r
n t othe
o r rwis
obje e
Dinty | Manalo | Navarez | Shyu | Tubio Page 98
CRIMINAL LAW 2
unc A: In case of RAPE BY SEXUAL ASSAULT, the
ons penalty is only PRISION MAYOR. It is a bailable
ciou offense.
s, or If it is a RAPE BY CARNAL KNOWLEDGE, note
c. that the penalty is RECLUSION PERPETUA. It is
B y
mea
n s
a non-bailable offense

o f Q: In case of a RAPE BY CARNAL KNOWLEDGE, when is


frau
dule
n t

a penalty qualified?

A: Reclusion Perpetua to Death:


mac 1.
hina W h
tion e n
o r rap
grav e is
e com
abu mitt
sed e d
o f with
auth the
ority use
d. of a
W h dea
e n dly
the wea
w o pon
man 2.
i s W h
und e n
e r rap
1 2 e is
year com
s of mitt
age e d
o r b y
dem two
ente o r


*So what if what has been inserted is the penis inside the
d mor
e
pers
mouth or the anal orifice, before that would only amount to ons


acts of lasciviousness - before the passage of RA 8353.

*The law says that it must be an instrument or object which


3.
W h
e n
was inserted in the genitalia or in the anal orifice of another b y


person.

Q: What if it was the finger which was inserted in the


reas
o n
o r
genitalia of a person? Is it acts of lasciviousness or rape by o n


sexual assault?

A: Supreme Court said it is RAPE BY SEXUAL


occ
asio
n of
ASSAULT. According to the Supreme Court, it rap
would be so weird if what has been inserted is an e ,
instrument or object, it would be rape by sexual the
assault, but if it was finger, it would be rape by victi
acts of lasciviousness. The finger is within the m
mean of an instrument or object insofar as rape by bec

sexual assault is concerned.

Q: In case of RAPE, what are the circumstances which will


ome
s
insa


qualify the penalty? ne

Dinty | Manalo | Navarez | Shyu | Tubio Page 99


CRIMINAL LAW 2
4. par
W h ent,
e n gua
rap rdia
e is n ,
atte relat
mpt ive
e d b y
and con
hom san
icid guin
e is i t y
com o r
mitt affin


Q: What are the instances wherein the penalty to be
ed i t y
with
i n
imposed is the capital punishment of death, so the extreme the


penalty of death?

1.
3 rd
civil
deg
W h ree,
e n o r
b y the
reas com
o n mon
o r law
o n spo
the use
occ o f
asio the
n of victi
rap m
e , 3.
hom W h
icid e n
e is the
com victi
mitt m is
ed und
2. e r
W h the
e n cust
the ody
victi o f
m is the
und poli
e r c e
1 8 o r
year milit
s of ary
age auth
and oriti
the e s
o ff e o r
nde any
r is pen
a a l
par insti
ent, tutio
asc n
end 4.
ant, W h
step e n
- the
Dinty | Manalo | Navarez | Shyu | Tubio Page 100
CRIMINAL LAW 2
rap b e
e is suc
com h by
mitt the
e d o ff e
i n nde
full r
vie befo
w of r e
the o r
spo duri
use, n g
the the
par com
ent, mis
any sion
o f o f
the the
chil rap
dre e
n of 6.
the W h
relat e n
ive the
b y victi
con m of
san the
guin rap
i t y e is
with belo
i n w 7
the year
3 rd s of
civil age
deg 7.
ree W h
5. e n
W h the
e n said
the o ff e
victi nde
m is r
a kno
relig w s
ious that
and h e
gau has
ged bee
i n n
legit a ff l i
imat cted
e with
relig HIV
ious viru
calli s or
n g AID
o r S or
voc any
atio othe
n r
and sex
h e uall
kno y
w n tran
t o smi
Dinty | Manalo | Navarez | Shyu | Tubio Page 101
CRIMINAL LAW 2
ssib tion
l e i n
dise ord
ase e r
and t o
the facil
viru itate
s of the
the com
dise mis
ase sion
i s o f
tran the
smit crim
ted e
t o 9.
the B y
victi reas
m o n
8. o r
W h o n
e n the
the occ
said asio
o ff e n of
nde rap
r is e ,
a the
m e said
mbe victi
r of m
the suff
AFP ere
o r d
parli per
ame man
ntar ent
y phy
unit sica
s , l
the muti
P N latio
P or n or
any disa
othe bilit
r y
m e 10.
mbe W h
r of e n
the the
law o ff e
enfo nde
rce r
men kne
t w
age that
ncy the
who o ff e
took nde
adv d
anta part
g e y or
o f victi
his m is
posi pre
Dinty | Manalo | Navarez | Shyu | Tubio Page 102
CRIMINAL LAW 2
gna not extinguish the criminal liability of the offender. It is only
nt at through:
the 1.
time The
o f o ff e
the nde
com d
mis w o
sion man
o f may
rap par
e don
11. the
W h o ff e
e n nde
the r
o ff e thro
nde ugh
r a
kne sub
w of seq
the uent
men vali
t a l d
disa mar
bility riag
, e ,
emo the
tion e ff e
a l ct of
diso whi
rder c h
and/ wou
o r l d
phy b e
sica the
l exti
han ncti
dica o n
p of o f
the the
o ff e o ff e
nde nde
d r s
part liabi
y at lity
the 2.
time The
o f lega
the l
com hus
mis ban
sion d
o f may
the b e
crim par


The presence of any of these circumstances will bring
e don
e d
b y
about the imposition of the maximum penalty of death. forgi
However, death is lifted because of RA 9346 which ven


prohibits the imposition of death penalty.

In case of rape, PARDON will not extinguish the criminal


ess
o f
the
liability of the offender. According to Art. 266, pardon will wife
Dinty | Manalo | Navarez | Shyu | Tubio Page 103
CRIMINAL LAW 2
prov C. "Psychological violence" refers to acts or omissions
ided causing or likely to cause mental or emotional suffering of
that the victim such as but not limited to intimidation,
the harassment, stalking, damage to property, public ridicule or
mar humiliation, repeated verbal abuse and mental infidelity. It
riag includes causing or allowing the victim to witness the
e is physical, sexual or psychological abuse of a member of the
not family to which the victim belongs, or to witness
void pornography in any form or to witness abusive injury to
a b pets or to unlawful or unwanted deprivation of the right to
initi custody and/or visitation of common children.


EXCEPTION: In case of MARITAL RAPE. If the legal wife
o
D. "Economic abuse" refers to acts that make or attempt to
make a woman financially dependent which includes, but is
not limited to the following:

has forgiven or pardoned the legal husband.
1. withdrawal of financial support or preventing the


Q: When is there PRESUMPTION OF RESISTANCE?

A: If in the course of the commission of rape, the


victim from engaging in any legitimate profession,
occupation, business or activity, except in cases
wherein the other spouse/partner objects on valid,
said offended party has performed any acts in any serious and moral grounds as defined in Article 73
degree amounting to resistance of rape or when of the Family Code;
the said offended party cannot give a valid
2. deprivation or threat of deprivation of financial
consent.

VIOLENCE AGAINST WOMEN AND THEIR CHILDREN


resources and the right to the use and enjoyment
of the conjugal, community or property owned in
common;
ACT (VAWC) R.A. 9262
Violence against women and their children 3. destroying household property;
- refers to any act or a series of acts committed by 4. controlling the victims' own money or properties
any person against a woman who is his wife, or solely controlling the conjugal money or
former wife, or against a woman with whom the properties.
person has or had a sexual or dating relationship, Acts of Violence Against Women and Their Children.- The
or with whom he has a common child, or against crime of violence against women and their children is
her child whether legitimate or illegitimate, within or committed through any of the following acts:
(a) Causing physical harm to the woman or her
without the family abode, which result in or is likely child;
to result in physical, sexual, psychological harm or (b) Threatening to cause the woman or her child
suffering, or economic abuse including threats of physical harm;
such acts, battery, assault, coercion, harassment (c) Attempting to cause the woman or her child
or arbitrary deprivation of liberty. physical harm;
Acts consisting violence against women and children: (d) Placing the woman or her child in fear of
imminent physical harm;
A. "Physical Violence" refers to acts that include bodily or (e) Attempting to compel or compelling the woman
physical harm; or her child to engage in conduct which the
B. "Sexual violence" refers to an act which is sexual in woman or her child has the right to desist from or
nature, committed against a woman or her child. It desist from conduct which the woman or her child
includes, but is not limited to: has the right to engage in, or attempting to restrict
or restricting the woman's or her child's freedom of
a) rape, sexual harassment, acts of movement or conduct by force or threat of force,
lasciviousness, treating a woman or her child as a physical or other harm or threat of physical or
sex object, making demeaning and sexually other harm, or intimidation directed against the
suggestive remarks, physically attacking the woman or child. This shall include, but not limited
sexual parts of the victim's body, forcing her/him to to, the following acts committed with the purpose
watch obscene publications and indecent shows or effect of controlling or restricting the woman's or
or forcing the woman or her child to do indecent her child's movement or conduct:
acts and/or make films thereof, forcing the wife (1) Threatening to deprive or actually
and mistress/lover to live in the conjugal home or depriving the woman or her child of
sleep together in the same room with the abuser; custody to her/his family;
b) acts causing or attempting to cause the victim (2) Depriving or threatening to deprive
to engage in any sexual activity by force, threat of the woman or her children of financial
force, physical or other harm or threat of physical support legally due her or her family, or
or other harm or coercion; deliberately providing the woman's
children insufficient financial support;
c) Prostituting the woman or child. (3) Depriving or threatening to deprive
the woman or her child of a legal right;
Dinty | Manalo | Navarez | Shyu | Tubio Page 104
CRIMINAL LAW 2
(4) Preventing the woman in engaging in beats the wife. Will such defense mitigate the criminally
any legitimate profession, occupation, guilty husband? Can he use such defense?
business or activity or controlling the A: Under Sec. 27 it cannot be used because
victim's own mon4ey or properties, or under Sec. 27; the fact that the husband is under
solely controlling the conjugal or common the influence of alcohol, any illicit drug, or any
money, or properties; other mind-alteringsubstance cannot be used as
(f) Inflicting or threatening to inflict physical harm defense in VAWC therefore; alcoholism and drug
on oneself for the purpose of controlling her
actions or decisions;
(g) Causing or attempting to cause the woman or
addiction cannot be a defense in VAWC.

Battered Women Syndrome (Sec. 26)


her child to engage in any sexual activity which - Scientifically defined pattern of psychological
does not constitute rape, by force or threat of and behavioral symptoms found in the
force, physical harm, or through intimidation battering relationship as a result of cumulative
directed against the woman or her child or her/his
immediate family;
(h) Engaging in purposeful, knowing, or reckless
abuse.

Under Sec. 26, it is provided that victim survivors


conduct, personally or through another, that founded to be suffering from this battered women
alarms or causes substantial emotional or syndrome shall be exempted from both criminal
psychological distress to the woman or her child. and civil liability notwithstanding the absence of
This shall include, but not be limited to, the
following acts:
(1) Stalking or following the woman or

any of the elements of self-defense.

The court however shall be held by a testimony of


her child in public or private places; a psychologist or psychiatrist if the woman is
(2) Peering in the window or lingering indeed suffering from the so called battered
outside the residence of the woman or
her child; women syndrome.

(3) Entering or remaining in the dwelling


or on the property of the woman or her
child against her/his will;

ANTI-HAZING LAW R.A. 8049

Q: What is hazing?
(4) Destroying the property and personal A: Hazing is an initiation rite or practice which is
belongings or inflicting harm to animals used as an admission into membership in any
or pets of the woman or her child; and fraternity or any other organization wherein the
(5) Engaging in any form of harassment said recruit/neophyte/applicant is placed under the
or violence; an embarrassing or humiliating situations such as
(i) Causing mental or emotional anguish, public forcing him to do menial, silly, and foolish tasks or
ridicule or humiliation to the woman or her child, services or subjecting him into psychological or
including, but not limited to, repeated verbal and
emotional abuse, and denial of financial support or
custody of minor children of access to the
physical injury or crime.

Q: Is hazing totally prohibited in the Philippines?

woman's child/children. A: No. Hazing is not totally prohibited in the


Philippines. Hazing is allowed provided that the
DATING RELATIONSHIP- refers to a situation wherein the
parties live as husband and wife without the benefit of
1.

following requisites are present:

There must be a prior written notice


marriage or are romantically involved over time and on a
sent to the head of the school authorities or
continuing basis during the course of the relationship. A
casual acquaintance or ordinary socialization between two the head of the organization 7 days before
individuals in a business or social context is not a dating the said initiation rites and this prior written
relationship. notice shall contain the following:
a. It shall indicate the date of the said
Q: The neighbor was aware of the beatings that the initiation rites which shall not be more
husband has been doing to his wife so the neighbor who than 3 days.
was a witness to all these beatings filed a case against the b. It shall indicate/state the names of
husband. Will the case prosper? the neophytes or applicants who will
A: Yes because under sec. 25, Violation Against undergo the said hazing or initiation
Women and Children (VAWC) is a public offense. rites.
Q: When does the crime prescribe? c. It shall contain an undertaking
A: If it involves physical abuse; it shall prescribe which states that there shall be no
after 20 years. If it involves psychological, sexual, physical violence employed in any form
and economical abuse; it shall prescribe in 10 on these neophyte recruits or

years.

Q: Lets say the wife filed a case against the husband for 2.
applicants.

Upon the receipt of such prior


violation of RA 9262; during the presentation of evidence written notice; the head of the school or
by the defense, the husband testified that he was always organization shall assign atleast 2
drunk. He was alcoholic. Thats why he lost temper and representatives from their school or
Dinty | Manalo | Navarez | Shyu | Tubio Page 105
CRIMINAL LAW 2
organization who must be present during the homicide, it shall not be reckless
time of the said initiation rite or hazing and
these 2 representatives shall see to it that no
amount of physical violence shall be
imprudence.

ANTI- CHILD ABUSE ACT R.A. 7610


employed on any person or any neophyte or
recruit or applicant during the said hazing or
In so far as RA 7610 is concerned; Children are those:

initiation rite.

Q: What if in the course of the said hazing or initiation rite




Below 18 years of age
Above 18 years of age who does not have the
capacity to fully protect themselves against any
someone died or suffered physical injuries; who shall be abuse, cruelty or maltreatment because of their
held criminally liable?
A: If in the course of hazing or initiation rite,
someone died or some suffered any physical
physical or mental disability.

Q: What if two children, A and B were fighting over a gun


injuries; all of the officers and members of the said toy. The mother of A saw B beating A so As mother held B
fraternity or organization who are present and who and gave him a tender slap. However, because B is still a
participated in the said initiation rite shall be child, his face became reddish. Based in the medical

liable as principal.

Q: What if the said initiation rite was conducted or held in a


certificate, it showed that the said act of slapping was the
cause of the injury sustained by B that made his face
reddish. What crime was committed by the mother of A? Is
house of an Aling Nene? Is Aling Nene criminally liable? the mother liable for Child abuse or is the mother liable for
A: Aling Nene is liable as an accomplice if slight physical injuries?
she has knowledge of the conduct of the said A: The mother of A is liable for slight physical
initiation rites and she did not do any act in order


to prevent its occurrence. injuries only and not for violation of RA 7610.

Q: What do you mean by Child Abuse?


If the said initiation rite took place in the A: Child abuse refers to the maltreatment,
house of a member or an officer of the said whether habitual or not, of the child which includes
fraternity or sorority; the parents of the said
members or officers shall be held liable not as
an accomplice but as a principal if they have

any of the following:

Physical or psychological abuse, neglect,


such knowledge of the said conduct of the cruelty, sexual abuse and emotional
initiation rites and they did not perform any maltreatment;
act inorder to prevent its occurrence. Any act by deeds or words which debases,
Q: When is there a prima facie evidence of participation? degrades or demean the intrinsic worth and
A: Any person who is present in the said hazing dignity of a child as a human being.
or initiation rite shall constitute a prima facie Unreasonable deprivation of his basic needs
evidence that there is a participation and shall be for survival, such as food and shelter; or


held liable as principal.

Q: What if in the said hazing an officer beat an applicant


Failure to immediately give medical treatment
to an injured child resulting in serious
impairment of his growth and development or
and he hit the neck thereby causing the death of the said
neophyte/recruit/applicant and so when prosecuted he
said: I have no intention to commit so grave a wrong as
in his permanent incapacity or death.

Not all acts commi