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CATANDUANES CRIMINAL LAW 2 | REYES | AUF-SOL 2015 1

Chapter One Permanent Allegiance – owed by an alien to his own sympathies or convictions disloyal to his
Crimes against National Security country. country’s policy or interest
 Adherence alone without giving the enemy aid
Temporary allegiance – to the country where he resides or comfort does NOT constitute treason
Article 114. Treason
Treason cannot be committed in time of peace General Rule: to be treasonous, the extent of the aid
Elements of treason
and comfort given to the enemies must be to render
 It is a war crime NOT an all-time offense
1. The offender is a Filipino citizen or an alien assistance to them as enemies and not merely
 It CANNOT be committed in time of peace
residing in the Philippines individuals and, in addition, be directly in furtherance of
 Punished by the state as a measure of self-
2. That there is war in which the Philippines is the enemies’ hostile designs
defense and self-preservation
involved  The law on treason is an emergency measure, it No treason through negligence
3. That the offender either remains DORMANT until the emergency arises
a. Levies war against the government PEOPLE v PRIETO
b. Adheres to the enemies, giving them aid or Two ways or modes of committing treason:
comfort Where the accused, besides being a Japanese spy, took
1. By levying war against the government part in the execution of some of the guerilla suspects
Treason – is a breach of allegiance to a government, 2. By adhering to the enemies of the Philippines, and in the infliction of physical injuries on the others, the
committed by a person who owes allegiance to it giving them aid or comfort Supreme Court held that murder and Physical injuries
were inherent in the crime of treason characterized by
 It is in a general sense, a violation by a subject Levying war – must be with intent to overthrow the
the giving of aid and comfort to the enemy
of his allegiance to his sovereign or to the government
supreme authority of the state  When the killings and other common crimes are
1. That there be an actual assembling of men
charged as overt acts of treason, they cannot be
The offender in treason is either Filipino citizen or a 2. For the purpose of executing a treasonable
regarded: 1. As separate crimes or 2. As
resident alien design by force
complexed with treason
 Law on treason is of Anglo-American origin and  Levying war as an act of treason must be for the Treason is a continuous offense
so the court has to look for guidance from purpose of executing a treasonable design by
American sources on its meaning and scope force  It is such a nature that it may be committed by
one single act, by a series of acts, or by several
Allegiance – is meant the obligation of fidelity and Adhering to the enemies of the Philippines, giving them series thereof, not only in a single time, but in
obedience which the individuals owe to the government aid or comfort different times, it being a continuous crime
under which they live or to their sovereign, in return for
the protection they receive  Means intent to BETRAY Ways of proving treason
 It exists when a citizen intellectually or
emotionally favors the enemy and harbors
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1. Testimony of two witnesses, at least, to the 2. Ignominy  Proposal to commit treason is committed when
same overt act IN TIME OF WAR a person who has decided to
2. Confession of the accused in open court Article 64 is not strictly applied to treason levy war against the Government or to adhere
to the enemies and to give them air or comfort,
The two-witness rule  In determining the proper penalty for treason,
PROPOSES its execution to some other person
the amount or degree of aid or comfort given
or persons
 Not required that their testimony be identical the enemy as well as the gravity of the separate
 Severly restrictive and conviction for treason and distinct acts o treason committed by the General Rule: conspiracy and proposal to commit a
difficult accused felony is NOT punishable (Art 8)
 Each of the witnesses must testify to the whole
overt act; if separable, there must be two Defense of suspended allegiance and change of Exception: the mere conspiracy to commit a felony
witnesses to eacg part of the overt act sovereignty, not accepted, because: which is treason is punishable under article 115

Overt act – physical activity, that deed that constitutes 1. A citizen owes an absolute and permanent The two witness rule does not apply to this crime,
the rendering of aid and comfort allegiance to his government because is a separate ad distinct offense from that of
2. The sovereignty if the government is not treason
The defendant should be acquitted if only one of the two transferred to the enemy by mere occupation
witnesses is believed by the court – People v Adriano 3. The subsistence of the sovereignty if the Article 116. Misprision of treason
legitimate government in a territory occupied
Ways of proving Adherence by the military forces of the enemy during the Elements:
war is one of the rules of International law
1. By one witness 1. That the offender must be owing allegiance to
4. What is suspended is the exercise of the rights
2. From the nature of the act itself the Government and not a foreigner
of sovereignty
3. From the circumstances surroundings the act 2. That he has knowledge of any conspiracy (to
commit treason) against the Government
Confession 3. That he conceals or does not disclose and make
Article 115. conspiracy and proposal to commit treason known the same as soon as possible to the
 It means confession of guilt
– penalty governor or fiscal of the province or the mayor
 It is not an admission of facts made by the
or the fiscal of the city in which he resides
accused in giving his testimony after a plea of  Conspiracy to commit treason is committed
not guilty, from which admissions of his guilt when IN TIME OF WAR, two or more persons  It does not apply when the crime of treason is
can be inferred come to an agreement to levy war against the already committed by someone and the
 Must be made in open court Government or to adhere to the enemies and to accused does not report its commission to the
give them aid or comfort, and decide to commit proper authority. Because it speaks of
Aggravating circumstances in treason
it “knowledge of any CONSPIRACY AGAINST” the
1. Cruelty
CATANDUANES CRIMINAL LAW 2 | REYES | AUF-SOL 2015 3

Government, not knowledge of treason actually Elements:


committed by another  To be liable under Par 1, the offender must
 The offender in misprision of treason is have the intention to obtain information 1. That there is a war in which the Philippines is
punished as an accessory to the crime of relative to the defense of the Philippines not involved
treason and the penalty is two degrees lower  It is not necessary that information etc is 2. That there is a regulation issued by competent
than that of treason obtained, it is sufficient that he has the purpose authority for the purpose of enforcing neutrality
to obtain any of them he entered a warship, 3. That the offender violates such regulation
General rule: Article 19, a person who keeps silent as to fort or naval or military establishment
what he knows about the perpetration of an offense is Neutrality – a nation or power which takes no part in a
not criminally liable, either as a principal, or as an Section Two – provoking war and disloyalty in case of contest of arms going on between others is referred to
accomplice, or as an accessory war as neutral

Exception: Article 116 Crimes classified as provoking war and disloyalty in Article 120. Correspondence with hostile country
case of war
Elements:
1. Inciting to war or giving motives for reprisals
Article 117. Espionage 1. That it is in time of war in which the Philippines
2. Violation of neutrality
is involved
3. Correspondence with hostile country
Espionage – is the offense of gathering, transmitting or 2. That the offender makes correspondence with
4. Flight to enemy’s country
losing information respecting the national defense with an enemy country or territory occupied by
intent or reason to believe that the information is to be Article 118. Inciting to war or giving motives for enemy troops
used to the injury of the RP or to the advantage of any reprisals 3. The correspondence is either
foreign nation a. Prohibited by the government
Elements: b. Carried on in ciphers or conventional signs
Two ways of committing espionage c. Containing notice or information which
1. That the offender performs unlawful or might be useful to the enemy
1. By entering, without authority therefor, as unauthorized acts
warship fort, or naval or military establishment 2. That such acts provoke or give occasion for a Correspondence – is communication by means of letters;
or reservation to obtain any information, plans, war involving or liable to involve the Philippines or it may refer to letters which pass between those who
photographs or their data of a confidential or expose Filipino citizens to reprisals on their have friendly or business relations
nature relative to the defense of the Philippines persons or property
2. By disclosing t the representative of foreign Circumstances qualifying the offense
nation the contents of the articles, data or  It is committed in time of peace
information referred to in paragraph 1 of article 1. That the notice or information might be useful
117, which he had I his possession by reason of Article 119. Violation of neutrality to the enemy
the public office he holds 2. That the offender intended to aid the enemy
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Article 121. Flight to enemy’s country b. Seize the whole or part of the cargo 1. Whenever the offenders have seized the vessel
by boarding or firing upon the same
Elements: High seas – any waters on the sea coast which are 2. Whenever the pirates have abandoned their
without the boundaries of low-water mark, although victims without means of saving themselves
1. That there is a war in which the Philippines is such waters may be in the jurisdictional limits of a 3. Whenever the crime is accompanied by murder,
involved foreign government homicide physical injuries or rape
2. That the offender must be owing allegiance to
the Government  Parts of the seas that are not included in the Qualified piracy is a special complex crime punishable
3. That the offender attempts to flee or go to exclusive economic zone, in the territorial seas, by reclusion perpetua to death, regardless of the
enemy country or I the internal waters of the state, or in the number of victims
4. That going to enemy country is prohibited by archipelagic waters of an archipelagic state
competent authority Philippine waters – refer to all bodies of water, such as
Piracy – it is robbery or forcible depredation on the high but not limited to seas, gulls, bays around, between and
Section three – Piracy and mutiny on the high seas or in seas, without lawful authority and done with animo connecting each of the Islands of the Philippine
Philippine waters furandi and in the spirit and intention of universal Archipelago, irrespective of depth, breadth, length or
hostility dimension, and all other waters belonging to the
Article 122. Piracy in general and mutiny on the high
Philippines by historic or legal title
seas or in Philippine waters Mutiny – is the unlawful resistance to a superior officer,
or the raising of commotions and disturbances on board Vessel – any vessel or watercraft used for transport of
Two ways or modes of committing piracy a ship against the authority of its commander passengers and cargo from one place to another through
1. By attacking or seizing a vessel o the high seas Philippine waters
PIRACY MUTINY
or in Philippine waters The persons who attack They are members of the
2. By seizing in the vessel while on the high seas or a vessel or seize its cargo crew or assengers
in Philippine waters the whole or part of its are strangers to said
cargo, its equipment or personal knowledge of vessels
its complement or passengers Intent to gain is essential The offenders may only
intend to ignore the
Elements of piracy: ship’s officer or they
may be prompted by a
1. That a vessel is on the high seas or in Philippine desire to commit
waters plunder
2. That the offenders are not members of its
complement or passengers of the vessel Article 123. Qualified piracy
3. That the offenders
a. Attack or seize that vessel Any of the Circumstances present:
CATANDUANES CRIMINAL LAW 2 | REYES | AUF-SOL 2015 5

Crimes Against the Fundamental Laws of the State 4. Section 4, Article III; no law shall be passed e. Barangay Captain
abridging the freedom of speech, of expression, f. Municipal Councilor
Chapter One or of the press, or the right of the people
peaceably to assemble and petition the If the offender is a public individual, the act of detaining
Crimes against the Fundamental laws of the State: another is illegal detention
Government for redress of grievances
1. Arbitrary detention 5. Section 5, Article III
Detention – it is the actual confinement of a person in an
2. Delay in delivery of detained persons to the enclosure, or in any manner detaining and depriving him
Section One – Arbitrary detention and expulsion
proper judicial authorities of his liberty. A person is detained when he is placed in
3. Delaying release Classes of arbitrary detention: confinement or there is a restrain on his person
4. Expulsion
5. Violation of domicile 1. Arbitrary detention by detaining a person The detention of a person is without legal ground:
6. Search warrants maliciously obtained and abuse without legal ground
on the service of those legally obtained 2. Delay in the delivery of detained persons to the a. When he has NOT committed any
7. Searching domicile without witnesses proper judicial authorities crime or at least, there is no
8. Prohibition, interruption and dissolution of 3. Delaying release reasonable ground for suspicion that
peaceful meetings he has committed a crime
9. Interruption of religious worship Article 124. Arbitrary detention b. When he is not suffering from violent
10. Offending the religious feelings insanity or any other ailment requiring
Elements: compulsory confinement on a hospital
They are called crimes against the fundamental laws of
1. That the offender if a public officer or employer Legal grounds for the detention of any person
the State because they violate certain provisions of the
2. He detains a person
Bill of Rights, including:
3. That the detention is without legal grounds 1. The commission of a crime
1. Section 1, Article III; no person shall be deprived 2. Violent insanity or any other ailment requiring
The offender in arbitrary detention is a public officer. the compulsory confinement of the patient in a
of xxx, liberty xxx without due process of law
The public officers liable for arbitrary detention must be hospital
2. Section 6, Article III; the liberty of abode and of
vested with authority to detain or order the detention of
changing the same within the limits prescribed
persons accused of a crime, but when they detain a Arrest without warrant – when lawful
by law shall not be impaired except upon lawful
person they have no legal grounds thereof
order of the court. Neither shall the right to 1. When in his presence, the person to be arrested
travel be impaired except in the interest of Public Officers: has committed, is actually committing, or is
national secutity, public safety, or public health, attempting to commit a offense
as may be provided by law a. Policemen 2. When an offense has in fact just been
3. Section 2, Article III; b. Agents of the law committed, and he has probable cause to
c. Judges believe based o personal knowledge of facts
d. Mayors
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and circumstances that the person to be and much less the judicial fact of a crime, whixh conducted the preliminary investigation or when the
arrested has committed it at the time of the commission, is not and ca not complaint or information was filed pursuant to section 7
3. When the person to be arrested is a prisoner definitely be determined for lack of necessary of this Rule. In case of doubt on the existence of
probable cause, the judge may order the prosecutor to
who has escaped from a penal establishment or data and of jurisdiction, but upon nature of the
present additional evidence within five (5) days from
place where he is serving final judgment deed. notice and the issue must be resolved by the court
 Under Sec. 5, Rule 113 of the RRCP, the actual within thirty (30) days from the filing of the complaint of
 1 and 2 refer to cases when a suspect is caught commission of a crime by the person detained is information.
in flagrante delicto or immediately thereafter, not necessary to justify detention
while 3 refers to escaping prisoner  No reasonable ground if officer only wants to (b) By the Municipal Trial Court. — When required
know the commission of the crime pursuant to the second paragraph of section 1 of this
Personal knowledge is required Rule, the preliminary investigation of cases falling under
Arbitrary detention through imprudence the original jurisdiction of the Metropolitan Trial Court,
 Under Sec. 5, Rule 113 of the Revised Rules of Municipal Trial Court in Cities, Municipal Trial Court, or
Criminal Procedure, an officer arresting a  The accused acted without malice, but he Municipal Circuit Trial Court may be conducted by either
person who has just committed a offense must should have verified the order of release before the judge or the prosecutor. When conducted by the
prosecutor, the procedure for the issuance of a warrant
have probable cause to believe based on proceeding to make the re-arrest
or arrest by the judge shall be governed by paragraph (a)
personal knowledge of facts and circumstances
of this section. When the investigation is conducted by
that the person to be arrested has committed it Periods of detention penalized
the judge himself, he shall follow the procedure
 Personal knowledge of facts in arrests without a provided in section 3 of this Rule. If the findings and
1. If the detention has not exceeded three days
warrant must be based upon PROBABLE CAUSE, recommendations are affirmed by the provincial or city
2. If the detention has continued more than three
which means an actual belief or reasonable prosecutor, or by the Ombudsman or his deputy, and the
days but not more than 15 days corresponding information is filed, he shall issue a
grounds of suspension
3. If the detention has continued more than 15 warrant of arrest. However, without waiting for the
Probable cause – such facts and circumstances which days but not more than 6 months conclusion of the investigation, the judge may issue a
4. If the detention has exceeded 6 months warrant of arrest if he finds after an examination in
could lead a reasonable discreet and prudent man to
writing and under oath of the complainant and his
believe that an offense has been committed and that the witnesses in the form of searching question and
objects sought in connection with the offense are in the Rule 112, Section 6. When warrant of arrest may issue.
answers, that a probable cause exists and that there is a
— (a) By the Regional Trial Court. — Within ten (10) days
place sought to be searched necessity of placing the respondent under immediate
from the filing of the complaint or information, the judge
custody in order not to frustrate the ends of justice.
shall personally evaluate the resolution of the
 A crime must in fact or actually have been
prosecutor and its supporting evidence. He may
committed first immediately dismiss the case if the evidence on record (c) When warrant of arrest not necessary. — A warrant
 That a crime has actually been committed is an clearly fails to establish probable cause. If he finds of arrest shall not issue if the accused is already under
essential precondition probable cause, he shall issue a warrant of arrest, or a detention pursuant to a warrant issued by the municipal
 In arbitrary detention, the legality of the commitment order if the accused has already been trial court in accordance with paragraph (b) of this
arrested pursuant to a warrant issued by the judge who section, or if the complaint or information was filed
detetntion does not depend upon the juridical
pursuant to section 7 of this Rule or is for an offense
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penalized by fine only. The court shall then proceed in 3. That he fails to deliver such person to the  In cases falling under paragraphs a and b of
the exercise of its original jurisdiction. (6a) proper judicial authorities within Sectio 5, Article 113, the person arrested
a. 12 hours for the crimes or offenses without a warrant shall be forthwith delivered
Rule 113 Section 5. Arrest without warrant; when lawful. punishable by light penalties, or their to the nearest police station or jail, and he shall
— A peace officer or a private person may, without a
equivalent be proceeded against in accordance with 112,
warrant, arrest a person:
b. 18 hours, for crimes or offenses punishable section 7 RRC
(a) When, in his presence, the person to be by correctional penalties, or their
equivalent What constitutes a violation of Article 125?
arrested has committed, is actually committing,
or is attempting to commit an offense; c. 36 hours, for crimes or offenses punishable
 It is the failure to deliver the person arrested to
by afflictive or capital penalties or their
te proper judicial authority within the period
(b) When an offense has just been committed, equivalent
specified therein
and he has probable cause to believe based on
personal knowledge of facts or circumstances “Shall detain any person for some legal gorund”
Judicial Authorities
that the person to be arrested has committed it;
and  Under Article 125, the public officer or
 Courts of justice or judges of the said courts
employee has detained the offended party for
vested with judicial power to order the
(c) When the person to be arrested is a prisoner some legal ground.
who has escaped from a penal establishment or temporary detention or confinement of a
 The detention is legal in the beginning, because
place where he is serving final judgment or is person charged with having committed a public
the person detained was arrested under any of
temporarily confined while his case is pending, offense, that is the Supreme Court and such
or has escaped while being transferred from the circumstances when arrest without warrant
inferior courts as may be established by law
one confinement to another. is authorized by law
 NOT Fiscal of the City of Manila or any other
 It becomes ILLEGAL after a certain period of
city, because they CNNOT issue a warrat of
In cases falling under paragraph (a) and (b) above, the time, because the offended party is not
arrest or of commitment for temporary
person arrested without a warrant shall be forthwith delivered to the proper judicial authority, within
confinement of a person surrendered to legalie
delivered to the nearest police station or jail and shall be the period specified by 125
proceeded against in accordance with section 7 of Rule the detention of the person arrested without
112. (5a) warrant (SAYO v CHIEF OF POLICE)
 Article 125 applies only when the arrest is made
WITHOUT warrant of arrest. But the arrest must Detained person should be released when a judge is not
Article 125. Delay in the Delivery of detained persons to
be lawful available
the proper judicial authorities
 If the arrest is made with warrant, the person
Elements: can be detained indefinitely because there is Waiver of the provisions of Article 125
already a complaint or information filed against
1. That the offender is a public officer or employee  The perso arrested may ask for preliminary
him wit the court which issued the order or
2. That he has detained a person for some legal investigation in accordance with the Rule, but
warrant of arrest and it is not necessary to
ground deliver the person thus arrested to that court
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he must sign a waiver of the provisions of Rights of the person detained: Period of detention in the Event of an Actual or
Article 125 RPC Imminent Terrorist Attack
1. He shall be informed of the cause of his
Circumstances considered in determining liability of detention  Suspects may not be detained for more than 3
officer detaining a person beyond legal period 2. He shall be allowed, upon his request, co days without written approval of a municipal,
communicate and confer at anytime with his city, provincial or regional office of a Human
o Means of communication attorney or counsel Rights Commission or judge
o The hour of arrest  Arrest is made during Saturdays, Sundays or
o Other circumstances such as the time Public officer or employee is liable for preventing the Holidays, the suspect may be brought to the
of surrenderand the material exercise of the right of attorneys to visit and confer residence of the officials
possibility for the fiscal to make the with persons arrested
investigation and file in time the Penalty for failure to deliver suspect to the proper
necessary information Reason for the provisions of Article 125 judicial authority within three days

Failure of the arresting officer to deliver the person  Article 125 is intended to prevent any abuse  10 years and 1 day – 12 years imprisonment
arrested to the judicial authority within the time resulting from confining a person without
specified in Article 125, does not affect the legality of the informing him of his offense and without ARBITRARY DETENTION ARBITRARY DETENTION
permitting him to go on bail 124 125
confinement of the petitioner who is detained because
The detention is illegal The detention is legal in
of the warrant subsequently issued by a competent
Detention under RA No. 9372 from the beginning the beginning but the
court when an information was filed therein illegality of the detention
Time for delivery of detained persons prescribed in starts from the
Fiscal, not liable unless he ordered detention expiration of any of the
Article 125 does not apply to suspected terrorists who
are detained under RA No. 9372 periods of time specified
 If no charge is filed by the fiscal in court within under the said article
the period specified in 125, the arresting officer
 A PERSON CHARGED WITH OR SUSPECTED OF
must release the detainee; otherwise, he will be
THE CRIME OF TERRORISM OR THE CRIME OF
guilty under 125 Rule 112, Section 7. When accused lawfully arrested
CONSPIRACY TO COMMIT TERRORISM SHALL BE
DELIVERED TO THE PROPER JUDICIAL without warrant. — When a person is lawfully arrested
Remedy where warrant improperly issued without a warrant involving an offense which requires a
AUTHORITY WITHIN 3 DAYS from the said
preliminary investigation, the complaint or information
 Set aside the warrant of arrest and order the charged or suspected person has been may be filed by a prosecutor without need of such
discharge of the accused, but without enjoining apprehended investigation provided an inquest has been conducted in
the municipal judge from conducting a  A judge must be notified before a suspected accordance with existing rules. In the absence or
preliminary examination and afterwards terrorist is detained unavailability of an inquest prosecutor, the complaint
properly issuing a warrant of arrest may be filed by the offended party or a peace office
directly with the proper court on the basis of the
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affidavit of the offended party or arresting officer or (a) Any person arrested detained or under mayor, the municipal judge, district school
person. custodial investigation shall at all times be supervisor, or priest or minister of the gospel as
assisted by counsel. chosen by him; otherwise, such extrajudicial
Before the complaint or information is filed, the person confession shall be inadmissible as evidence in
arrested may ask for a preliminary investigation in (b) Any public officer or employee, or anyone any proceeding.
accordance with this Rule, but he must sign a waiver of acting under his order or his place, who arrests,
the provisions of Article 125 of the Revised Penal Code, detains or investigates any person for the (e) Any waiver by a person arrested or detained
as amended, in the presence of his counsel. commission of an offense shall inform the under the provisions of Article 125 of the
Notwithstanding the waiver, he may apply for bail and latter, in a language known to and understood Revised Penal Code, or under custodial
the investigation must be terminated within fifteen (15) by him, of his rights to remain silent and to have investigation, shall be in writing and signed by
days from its inception. competent and independent counsel, such person in the presence of his counsel;
preferably of his own choice, who shall at all otherwise the waiver shall be null and void and
After the filing of the complaint or information in court times be allowed to confer privately with the of no effect.
without a preliminary investigation, the accused may, person arrested, detained or under custodial
within five (5) days from the time he learns of its filing, investigation. If such person cannot afford the (f) Any person arrested or detained or under
ask for a preliminary investigation with the same right to services of his own counsel, he must be custodial investigation shall be allowed visits by
adduce evidence in his defense as provided in this Rule. provided with a competent and independent or conferences with any member of his
(7a; sec. 2, R.A. No. 7438) counsel by the investigating officer.lawphi1Ÿ immediate family, or any medical doctor or
priest or religious minister chosen by him or by
Republic Act No. 7438 April 27, 1992 (c) The custodial investigation report shall be any member of his immediate family or by his
reduced to writing by the investigating officer, counsel, or by any national non-governmental
AN ACT DEFINING CERTAIN RIGHTS OF PERSON provided that before such report is signed, or organization duly accredited by the Commission
ARRESTED, DETAINED OR UNDER CUSTODIAL thumbmarked if the person arrested or on Human Rights of by any international non-
INVESTIGATION AS WELL AS THE DUTIES OF THE detained does not know how to read and write, governmental organization duly accredited by
ARRESTING, DETAINING AND INVESTIGATING OFFICERS, it shall be read and adequately explained to him the Office of the President. The person's
AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF by his counsel or by the assisting counsel "immediate family" shall include his or her
provided by the investigating officer in the spouse, fiancé or fiancée, parent or child,
language or dialect known to such arrested or brother or sister, grandparent or grandchild,
Be it enacted by the Senate and House of
detained person, otherwise, such investigation uncle or aunt, nephew or niece, and guardian or
Representatives of the Philippines in Congress
report shall be null and void and of no effect ward.
assembled::
whatsoever.
As used in this Act, "custodial investigation" shall include
Section 1. Statement of Policy. – It is the policy of the
(d) Any extrajudicial confession made by a the practice of issuing an "invitation" to a person who is
Senate to value the dignity of every human being and
person arrested, detained or under custodial investigated in connection with an offense he is
guarantee full respect for human rights.
investigation shall be in writing and signed by suspected to have committed, without prejudice to the
such person in the presence of his counsel or in liability of the "inviting" officer for any violation of law.
Section 2. Rights of Persons Arrested, Detained or
the latter's absence, upon a valid waiver, and in
Under Custodial Investigation; Duties of Public
the presence of any of the parents, elder
Officers. –
brothers and sisters, his spouse, the municipal
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Section 3. Assisting Counsel. – Assisting counsel is any custodial investigation of his right to remain silent and to Section 5. Repealing Clause. – Republic Act No. No. 857,
lawyer, except those directly affected by the case, those have competent and independent counsel preferably of as amended, is hereby repealed. Other laws, presidential
charged with conducting preliminary investigation or his own choice, shall suffer a fine of Six thousand pesos decrees, executive orders or rules and regulations, or
those charged with the prosecution of crimes. (P6,000.00) or a penalty of imprisonment of not less than parts thereof inconsistent with the provisions of this Act
eight (8) years but not more than ten (10) years, or both. are repealed or modified accordingly.
The assisting counsel other than the government lawyers The penalty of perpetual absolute disqualification shall
shall be entitled to the following fees; also be imposed upon the investigating officer who has Section 6. Effectivity. – This Act shall take effect fifteen
been previously convicted of a similar offense. (15) days following its publication in the Official Gazette
(a) The amount of One hundred fifty pesos or in any daily newspapers of general circulation in the
(P150.00) if the suspected person is chargeable The same penalties shall be imposed upon a Philippines.
with light felonies;lawphi1©alf public officer or employee, or anyone acting
upon orders of such investigating officer or in Article 126. Delaying release
(b) The amount of Two hundred fifty pesos his place, who fails to provide a competent and
(P250.00) if the suspected person is chargeable independent counsel to a person arrested, Three acts punishable under Article 126
with less grave or grave felonies; detained or under custodial investigation for
the commission of an offense if the latter 1. By delaying he performance of a judicial or
cannot afford the services of his own counsel. executive order for the release of a prisoner
(c) The amount of Three hundred fifty pesos
(P350.00) if the suspected person is chargeable 2. By unduly delaying service of the notice of such
with a capital offense. (b) Any person who obstructs, prevents or order to said prisoner
prohibits any lawyer, any member of the
3. By unduly delaying the proceedings upon any
immediate family of a person arrested, detained
The fee for the assisting counsel shall be paid by petition for the liberation of such person
or under custodial investigation, or any medical
the city or municipality where the custodial
doctor or priest or religious minister chosen by
investigation is conducted, provided that if the Elements:
him or by any member of his immediate family
municipality of city cannot pay such fee, the
or by his counsel, from visiting and conferring
province comprising such municipality or city 1. That the offender is a public officer or employer
privately with him, or from examining and
shall pay the fee: Provided, That the Municipal 2. That there is a judicial or executive order for the
treating him, or from ministering to his spiritual
or City Treasurer must certify that no funds are
needs, at any hour of the day or, in urgent release of a prisoner or detention prisoner, or
available to pay the fees of assisting counsel
cases, of the night shall suffer the penalty of that there is a proceeding upon a petition for
before the province pays said fees.
imprisonment of not less than four (4) years nor the liberation of such person
more than six (6) years, and a fine of four 3. That the offender without good reason delays:
In the absence of any lawyer, no custodial investigation
thousand pesos (P4,000.00).lawphi1©
shall be conducted and the suspected person can only be 1. Service f the notice of such order to the
detained by the investigating officer in accordance with prisoner; 2. The performance f such judicial or
The provisions of the above Section notwithstanding,
the provisions of Article 125 of the Revised Penal Code. executive order for the release of the prisoner;
any security officer with custodial responsibility over any
detainee or prisoner may undertake such reasonable 3. The proceedings upon a petition for the
Section 4. Penalty Clause. – (a) Any arresting public release of such person
measures as may be necessary to secure his safety and
officer or employee, or any investigating officer, who
prevent his escape.
fails to inform any person arrested, detained or under Example of delaying cases
CATANDUANES CRIMINAL LAW 2 | REYES | AUF-SOL 2015 11

 For failure to prosecute, because the witness of 1. Violation of domicile by entering a dwelling not being authorized by judicial order, when the
the prosecution did not appear, the case was against the will of the owner thereof or making public has no search warrant
dismissed and the justice of the peace gave an search without previous consent of the owner
order to relase the accused. The jailer refused 2. Search warrants maliciously obtained and abuse “Against the will of the owner”
to release the accused, notwithstanding that in the service o those legally obtained
 It will be noted that to constitute a violation of
order of release, until after several days 3. Searching domicile without witnesses
domicile, the entrance by the public officer or
Wardens and Jailers are the public officers most likely Article 128. Violation of domicile employee must be against the will of the owner
to violate Article 126 of the dwelling, which presupposes opposition
Acts punishable under Article 128 or prohibition by said owner, whether express
Article 127. Explusion or implied
1. By entering any dwelling against the will of the
Two acts punishable under Article 127 owner thereof Section 11. Right of officer to break into building or
2. By searching papers or other effects found enclosure. — An officer, in order to make an arrest
1. By expelling a person from the Philippines therein without the previous consent of such either by virtue of a warrant, or without a warrant as
2. By compelling a person to change his residence owner provided in section 5, may break into any building or
3. By refusing to leave the premises, after having enclosure where the person to be arrested is or is
Elements reasonably believed to be, if he is refused admittance
surreptitiously entered said dwelling and after
thereto, after announcing his authority and purpose.
1. That the offender us a public officer or having been required to leave the same
employer A peace officer without search warrant cannot lawfully
Elements common to 3 acts:
2. That he expels any person from the Philippines, enter the dwelling against the will of the owner, even he
or compels a person to change his residence 1. That the offender is a public officer or employee knew that someone in the dwelling is having unlawful
3. That the offender is not authorized to do so by possession of opium
2. That he is not authorized but judicial order to
law enter the dwelling and/or to make a search
“Search papers, etc. without previous consent of such
therein for papers or other effects owners”
“Not being thereunto authorized by law”

 Only the court by a final judgment can order a  Article 128 is not applicable when a public
person to change his residence. This is officer searched a person outside his dwelling
The offender must be a public officer or employee
illustrated in ejectment proceedings, without search warrant, because the papers or
other effects mentioned in the said article must
expropriation proceeding and in the penalty of “Not being authorized by judicial order”
be found in the dwelling – it’s gonna be, grave
distierro
 A public officer or employee is authorized by coercion or unjust vexation
Section Two – Violation of domicile judicial order when he is armed with a search
Having surreptitiously entered said dwelling
warrant duly issued by the court. Hence, he is
Crimes known as violation of domicile
CATANDUANES CRIMINAL LAW 2 | REYES | AUF-SOL 2015 12

 Violation even if the entrance is only without Search warrant for search and seizure of the following and attach to the record their sworn statements
the consent of the owner personal property together with any affidavits submitted
 What constitutes the crime is the refusal of the
offender to leave the premises when required 1. Subject of the offense Rule 126, Section 7. Right to break door or window to
to do so – NOT the entrance into the dwelling 2. Stolen or embezzled and other proceeds or effect search. — The officer, if refused admittance to the
fruits of the offense place of directed search after giving notice of his
Circumstance qualifying the offense purpose and authority, may break open any outer or
3. Used or intended to be used as the means of
committing an offense inner door or window of a house or any part of a house
1. If the offense is committed at nighttime or anything therein to execute the warrant or liberate
2. If any papers or effects not constituting himself or any person lawfully aiding him when
Requisites for issuing search warrant
evidence of a crime are not returned unlawfully detained therein.
immediately after the search made by the  A search warrant shall not issue except upon
offender probable cause in connection with one specific Rule 126, Section 8. Search of house, room, or premise
offense to be determined personally by the to be made in presence of two witnesses. — No search
Article 129. Search warrants maliciously obtained, and of a house, room, or any other premise shall be made
judge after examination under oath or
abuse in the service of those legally obtained except in the presence of the lawful occupant thereof or
affirmation of the complainant and the any member of his family or in the absence of the latter,
Acts punishable in connection with search warrants witnesses he may produce, and particularly two witnesses of sufficient age and discretion residing in
describing the place to be searched ad the the same locality.
1. By procuring a search warrant without just things to be seized which may be anywhere in
cause the Philippines Validity of search warrant
2. By exceeding his authority or by using
unnecessary severity in executing a search  Search of house, room or premise must be Rule 126, Section 10. Validity of search warrant. — A
search warrant shall be valid for ten (10) days from its
warrant legally procured made in presence of two witnesses
date. Thereafter it shall be void.
Elements of procuring a search warrant without just  A search warrant shall be valid for 10 days from
Rule 126, Section 11. Receipt for the property seized. —
cause its date The officer seizing property under the warrant must give
a detailed receipt for the same to the lawful occupant of
1. That the offender is a public officer or employee Examination of Complainant the premises in whose presence the search and seizure
2. That he procures a search warrant
were made, or in the absence of such occupant, must, in
3. That there is no just cause  The judge must, before issuing a warrant, the presence of at least two witnesses of sufficient age
personally examine in the form of searching and discretion residing in the same locality, leave a
Search Warrant – is an order in writing issued in the questions and answers, in writing and under receipt in the place in which he found the seized
name of the People of the Philippines, signed by a judge oath, the complainant and the witnesses he property.
and directed to a peace officer, commanding him to may produce on facts personally known to them
search for personal property described therein and bring Probable cause – it is such reasons, supported by facts
it before the court and circumstances, as will warrant a cautious man in
CATANDUANES CRIMINAL LAW 2 | REYES | AUF-SOL 2015 13

belief that his action, and the means taken in  The public officers procuring a search warrant 3. That he exceeds his authority or uses
prosecuting it, are legally just and proper without just cause may also be held liable for unnecessary severity in executing the same
perjury if theu made a willful and deliberate
 Facts and circumstances which would lead a assertion of falsehood in the affidavits filed in Example of exceeding authority in executing search
reasonably discreet and prudent man to believe support of the application for search warrant warrant
that an offense has been committed and that  They cannot form a complex crime because
the object sought in connection with the  If the public officer, in executing a search
they are separate and distinct crimes, to be
offense are in the place sought to be searched warrant for opium, seized books, personal
punished with their respective penalties
letter, and other property having a remote
Search warrant have been procured without just cause Evidence obtained in violation of Section 2 and 3 of connection with opium
Article II of the 1987 Constitution is not admissible for
 When it appears on the face of the affidavits Example of using unnecessary severity in executing
any purpose in any proceeding
filed in support of the application therefor, or search warrant
through other evidence, that the applicant had Search and seizure without warrant as an incident to a
every reason t believe that the search warrant  If in searching a house, the public officer
lawful arrest is legal
sought for was unjustified destroys furniture therein without any
 The public officers procuring a search warrant  Section 12, Rule 126, of the RRC provides that a justification at all, he is guilty under 129, as
without just cause may also be held liable for person lawfully arrested may be searched for having used unnecessary severity in executing
perjury if they made a willful and deliberate dangerous weapons or anything which may be the search warrant
assertion of falsehood in the affidavits used as proof of the commission of an offense,
Article 130. Searching domicile without witnesses
 Search and seizure without warrant as an without a search warrant
incident to a lawful arrest is legal. Also search Elements
and seizure of vessels without search warrant is Peace officer may enter the house of an offender who
legal committed an offense in his presence 1. That the offender is a public officer or employee
2. That he is armed with search warrant legally
Search and seizure of vessels without a search warrant of
Test of lack of just cause procured
vessels and aircraft for violations of the customs laws
3. That he searches the domicile, papers or other
have been the traditional exception to the constitutional
 The true test is whether the affidavit filed in belongings o any person
support of the application for search warrant requirement of search warrant
4. That the owner, or ay member f his family, or
has been drawn in such a manner that perjury two witnesses residing in the same locality are
could be charged thereon and affiant be held Elements exceeding authority or using unnecessary
severity in executing a search warrant legally procured not present
liable for damages caused

1. That the offender is a public officer or employee “In cases where a search is proper”
“In addition to the liability attaching to the offender for
2. That he has legally procured a search warrant
the commission of any other offense”
CATANDUANES CRIMINAL LAW 2 | REYES | AUF-SOL 2015 14

 This clause means that the public officer at the 2. By hindering any person from joining any lawful not imminent and the evil to be prevented is
time of the search is armed with a search association or from attending any of its not a serious one
warrant legally procured meetings  When the meeting to be held is not peaceful,
 I violation under Article 128, the public officer 3. By prohibiting or hindering any person from there is legal ground for prohibiting it
has no authority to make a search; in searching addressing, either alone or altogether with  There is no legal ground to prohibit the holding
domicile without witnesses, the public officer others, any petition to the authorities for the of a meeting when the danger apprehended is
has a search warrant correction if abuses or redress of grievances not imminent and the evil to be prevented is
not a serious one
Search – go to over or look through for the purpose of Elements common to the three acts ounishable  The offender must be a stranger, not a
finding something to examine. The thing searched by the participant in the peaceful meeting
offender is the domicile, the papers or the other 1. That the offender is a public officer or employer
 Interrupting and dissolving the meeting of
belongings 2. That he performs any of the acts metioned
municipal council by a public officer is a crime
above
against legislative body, not published under
Search without warrant under the tariff and customs
Article 131
code does not include a dwelling house  A private individual cannot commit this crime
 Stopping the speaker who was attacking certain
To commit the crime defined in the first paragraph of churches in public meeting is a violation of
Section 8. Search of house, room, or premise to be made
in presence of two witnesses. — No search of a house, the Article 131, the public officer must act without legal Article 131
room, or any other premise shall be made except in the ground
presence of the lawful occupant thereof or any member Section Four – Crimes against religious worship
of his family or in the absence of the latter, two o The meeting must be peaceful
witnesses of sufficient age and discretion residing in the Crimes against religious worship
o There is no legal ground for
same locality. prohibiting, or interrupting or 1. Interruption of religious worship
dissolving that meeting 2. Offending the religious feelings
Section Three – Prohibition, interruption, and
dissolution of peaceful meetings  Right to peaceful meeting is not absolute, it Article 132. Interruption
may be regulated in order that it may not be
Article 131. – Prohibition, interruption, and dissolution Elements:
“injurious to the equal enjoyment of others
of peaceful meetings
having equal rights, nor injurious to the right of
1. That the offender is a public officer or employee
Acts punished in connection with peaceful meetings, the community or society, and this power may
2. That religious ceremonies or manifestations of
associations and petitions be exercised under the police power of the
any religion are about to take place or are going
state
on
1. By prohibiting or by interrupting, without legal  There is no legal ground to prohibit the holding
3. That the offender prevents or disturns the same
ground, the holding of peaceful meeting, or by of a meeting when the danger apprehended is
dissolving the same
Circumstances qualifying the offense
CATANDUANES CRIMINAL LAW 2 | REYES | AUF-SOL 2015 15

 If the crime is committed with violence or  The acts must be directed against religious
threats practice or dogma or ritual for the purpose of
ridicule, as mocking or scoffing at or attempting
Reading of bible and then attacking certain churches in a to damage an object of religious veneration
public plaza is not a ceremony or manifestation of a
religion, but only a meeting of a religious sect

Article 133. Offending the religious feelings

Elements:

1. That the acts complained of were performed (1)


in a place devoted to religious worship, or (2)
during the celebration of any religious
ceremony
2. That the acts must be notoriously offensive to
the feelings of the faithful

“In a place devoted to religious worship”

 It is not necessary that there is a religious


ceremony going on when the offender performs
acts notoriously offensive to the feelings of the
faithful
 The phrase “place devoted to religious
worship”, which indicates that the religious
ceremony need not be celebrated in a place of
worship

Religious ceremonies – those religious acts performed


outside of a church, such as possessions and special
prayers for burying dead persons

“Acts notoriously offensive to the feelings of the


faithful”