Vous êtes sur la page 1sur 258

CRIMINAL LAW 1

Fundamental Principles ....... 2


DEFINITION OF CRIMINAL LAW ........................ 2 MALA IN SE AND MALA PROHIBITA ............................. 2 CRIMINAL LAW V. CRIMINAL PROCEDURE ..................... 2 STATE AUTHORITY TO PUNISH CRIME .......................... 3 SOURCES OF CRIMINAL LAW ...................................... 3 PENAL LEGISLATION ................................................ 3 RELATION OF RPC TO SPECIAL LAWS: SUPPLETORY APPLICATION OF RPC ............................................... 3 CONSTRUCTION OF PENAL LAWS ................................ 3 SCOPE OF APPLICATION AND CHARACTERISTICS OF PHILIPPINE CRIMINAL LAW ................................................................... 4 GENERALITY .......................................................... 4 TERRITORIALITY ..................................................... 4 PROSPECTIVITY ...................................................... 6 LEGALITY .............................................................. 7 CONSTITUTIONAL LIMITATIONS ON THE POWER OF CONGRESS TO ENACT PENAL LAWS ............ 7 EQUAL PROTECTION ................................................ 7 DUE PROCESS ........................................................ 7 NON-IMPOSITION OF CRUEL AND UNUSUAL PUNISHMENT OR EXCESSIVE FINES ................................................ 7 BILL OF ATTAINDER ................................................. 7 EX POST FACTO LAW ................................................ 7 OTHER CONSTITUTIONAL LIMITATIONS ........................ 7 BASIC MAXIMS IN CRIMINAL LAW ............................... 7

PROXIMATE CAUSE V. IMMEDIATE CAUSE V. REMOTE CAUSE ................................................................. 12 MISTAKE OF FACT .................................................. 12

CULPA .............................................................. 13 DOCTRINES CONCERNING CULPABLE CRIMES .............. 14 IMPOSSIBLE CRIME .......................................... 14 PURPOSE OF PUNISHING IMPOSSIBLE CRIMES ............. 14 REQUISITES .......................................................... 15 MODIFIED CONCEPT OF IMPOSSIBLE CRIME ................. 15 STAGES OF EXECUTION ................................... 15 CLASSIFICATION UNDER ART. 6 ................................ 15 TABLE: DEVELOPMENT OF A CRIME ........................... 15 DEVELOPMENT OF A CRIME ............................ 16 INTERNAL ACTS .................................................... 16 EXTERNAL ACTS .................................................... 16 ATTEMPTED STAGE ................................................ 16 FRUSTRATED STAGE ............................................... 17 CRIMES WHICH DO NOT ADMIT OF FRUSTRATED STAGE . 17 CONSPIRACY AND PROPOSAL ......................... 19 CONSPIRACY AS A FELONY, DISTINGUISHED FROM
CONSPIRACY AS A MANNER OF INCURRING CRIMINAL LIABILITY ............................................................. 19

Felonies ................................. 8
DIFFERENTIATING FELONIES, OFFENSE, MISDEMEANOR AND CRIME ............................. 8 FELONIES: HOW COMMITTED ........................... 8 CLASSIFICATION OF FELONIES ......................... 8 INTENTIONAL FELONY V. CULPABLE FELONY ................. 8 ELEMENTS OF CRIMINAL LIABILITY .................. 9 DOLO ............................................................... 10 LIABILITY EVEN IN THE ABSENCE OF CRIMINAL INTENT .. 10 CATEGORIES OF CRIMINAL INTENT (GENERAL VS. SPECIFIC INTENT) .............................................................. 10 DISTINCTION BETWEEN INTENT, DISCERNMENT AND MOTIVE ................................................................ 11
WHEN MOTIVE BECOMES MATERIAL IN DETERMINING CRIMINAL LIABILITY ............................................... 11 WRONGFUL ACT DIFFERENT FROM THAT INTENDED ...... 11

MULTIPLE OFFENDERS (DIFFERENCES, RULES, EFFECTS) ......................................................... 22 RECIDIVISM ......................................................... 22 HABITUALITY (REITERACION) .................................. 22 QUASI-RECIDIVISM ............................................... 22 HABITUAL DELINQUENCY ....................................... 23 CONTINUING CRIMES ..................................... 23 COMPLEX CRIMES AND SPECIAL COMPLEX CRIMES ............................................................ 24 COMPLEX CRIMES ........................................... 25 TWO KINDS OF COMPLEX CRIMES ............................. 25 SPECIAL COMPLEX/COMPOSITE CRIMES ....... 26

Circumstances Affecting Criminal Liability ................. 27


JUSTIFYING CIRCUMSTANCES ........................ 27 JUSTIFYING VS. EXEMPTING CIRCUMSTANCE ............... 31 ANTI-VIOLENCE AGAINST WOMEN AND THEIR CHILDREN ACT OF 2004 (RA 9262) ........................................ 31 EXEMPTING CIRCUMSTANCES ....................... 32

JUVENILE JUSTICE AND WELFARE ACT OF 2006 (R.A. 9344); ALSO REFER TO CHILD AND YOUTH WELFARE CODE (P.D. 603, AS AMENDED) ....................................... 33

PUNISHABLE ACTS ................................................ 68 COMPARE WITH ART. 20, RPC (ACCESSORIES EXEMPT FROM CRIMINAL LIABILITY) .................................... 69

MITIGATING CIRCUMSTANCES ....................... 35 ORDINARY V. PRIVILEGED MITIGATING CIRCUMSTANCE 36 INCOMPLETE JUSTIFYING CIRCUMSTANCES ................ 36 INCOMPLETE EXEMPTING CIRCUMSTANCES ................ 37 PASSION/OBFUSCATION V. IRRESISTIBLE FORCE .........40 PASSION/OBFUSCATION V. PROVOCATION .................40 VOLUNTARY SURRENDER .......................................40 PERSON IN AUTHORITY AND HIS AGENT ..................... 41 PLEA OF GUILT ..................................................... 41 PLEA TO A LESSER OFFENSE .................................... 41 AGGRAVATING CIRCUMSTANCES ................... 43 GENERIC .......................................................... 44 FRAUD ............................................................. 52 CRAFT .............................................................. 52 DISGUISE ......................................................... 52 QUALIFYING .................................................... 57 DECREE CODIFYING THE LAWS ON ILLEGAL/ UNLAWFUL POSSESSION, MANUFACTURE, DEALING IN, ACQUISITION OR DISPOSITION, OF FIREARMS, AMMUNITION OR EXPLOSIVES (P.D. 1866, AS AMENDED BY R.A. NO. 8294) AS AN AGGRAVATING CIRCUMSTANCE ....................... 57 THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002 (R.A. NO. 9165) ................................................... 57 ALTERNATIVE CIRCUMSTANCES ....................60 ABSOLUTORY CAUSE ...................................... 61 EXTENUATING CIRCUMSTANCES .............................. 63

Penalties ............................. 69
GENERAL PRINCIPLES .................................... 69
ACT PROHIBITING THE IMPOSITION OF DEATH PENALTY IN THE PHILIPPINES (R.A. NO. 9346) ........................... 70

PURPOSES ...................................................... 70 CLASSIFICATIONS ........................................... 70 MAJOR CLASSIFICATION ......................................... 70 OTHER CLASSIFICATIONS OF PENALTIES .................... 70 DURATION AND EFFECT .................................. 71 PENALTIES WHICH MAY BE IMPOSED .......................... 71 PENALTIES COMMON TO ALL THREE TYPES ................ 75 ACCESSORY PENALTIES ......................................... 75 APPLICATION .................................................. 78 RULES ON THE COMPUTATION OF PENALTIES ................................................. 78
INDETERMINATE SENTENCE LAW (RA 4103, AS AMENDED) ....................................... 79 PROCEDURE FOR DETERMING THE MAXIMUM AND MINIMUM SENTENCE ............................................. 79 THREE-FOLD RULE ................................................ 81 SUBSIDIARY IMPRISONMENT .................................. 83 EFFECTS OF MITIGATING AND AGGRAVATING CIRCUMSTANCES .................................................. 87

Persons Criminally Liable/Degree of Participation ........................63


PRINCIPAL ....................................................... 64 COLLECTIVE CRIMINAL RESPONSIBILITY ..................... 65 INDIVIDUAL CRIMINAL RESPONSIBILITY ..................... 66 ACCOMPLICE ................................................... 66 ACCESSORIES .................................................. 66 DECREE PENALIZING OBSTRUCTION OF APPREHENSION AND PROSECUTION OF CRIMINAL OFFENDERS (P.D. 1829) ................. 68

EXECUTION AND SERVICE .............................. 92 EXECUTION OF PENALTIES ...................................... 92 PROBATION LAW (PD 968, AS AMENDED) ................. 93 GRANT OF PROBATION .......................................... 94 SUSPENSION IN CASE OF INSANITY OR MINORITY ........ 96 THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002 (RA 9165) .......................................................... 97 JUVENILE JUSTICE AND WELFARE ACT OF 2006 (RA 9344); CHILD AND YOUTH WELFARE CODE (PD 603, AS AMENDED) .......................................................... 97 RA 9344 COMPARED TO PD 603 ............................ 97

Modification and Extinction of Criminal Liability ................ 99


TOTAL EXTINGUISHMENT ............................... 99 PARTIAL EXTINGUISHMENT ............................ 99

PRESCRIPTION OF CRIME; PRESCRIPTION OF VIOLATIONS OF SPECIAL LAWS (ACT NO. 3326) ................................................ 99 PRESCRIPTION OF PENALTIES ........................ 99 PARDON BY OFFENDED PARTY ..................... 101 PARDON BY THE CHIEF EXECUTIVE ............... 101 AMNESTY ....................................................... 102 LAWS IN SC SYLLABUS .................................. 102 CRIMINAL LAW 2

Title II. Crimes against Fundamental Laws of the State ................................... 112
ARTICLE 124 - ARBITRARY DETENTION .....................113 ARTICLE 125 - DELAY IN THE DELIVERY OF DETAINED PERSONS TO THE PROPER JUDICIAL AUTHORITIES .......113 ARTICLE 126 - DELAYING RELEASE ...........................113 ARTICLE 127 EXPULSION .....................................113 ARTICLE 128 - VIOLATION OF DOMICILE ................... 115 ARTICLE 129 - SEARCH WARRANTS MALICIOUSLY OBTAINED, AND ABUSE IN THE SERVICE OF THOSE LEGALLY OBTAINED ............................................. 115 ARTICLE 130 - SEARCHING DOMICILE WITHOUT WITNESSES ........................................................ 116 ARTICLE 131 - PROHIBITION, INTERRUPTION AND DISSOLUTION OF PEACEFUL MEETINGS .................... 116 ARTICLE 132 - INTERRUPTION OF RELIGIOUS WORSHIP 116 ARTICLE 133 - OFFENDING THE RELIGIOUS FEELINGS ... 117

Title I. Crimes against National Security and the Law of Nations .......................... 105
CRIMES AGAINST SECURITY ......................... 105 ARTICLE 114 - TREASON ....................................... 105 ARTICLE 115 - CONSPIRACY AND PROPOSAL TO COMMIT TREASON ...........................................................107 CONSPIRACY TO COMMIT TREASON ..........................107 PROPOSAL TO COMMIT TREASON .............................107 ARTICLE 116 - MISPRISION OF TREASON ...................107 ARTICLE 117 ESPIONAGE .................................... 108

RA 9372: HUMAN SECURITY ACT .................... 117 PERIOD OF DETENTION .......................................... 117 RA 9745: ANTI-TORTURE ACT ....................... 118 PUNISHABLE ACTS ............................................... 118 WHO ARE LIABLE ................................................. 119

Crimes against the Law of Nations .............................. 108


ARTICLE 118 - INCITING TO WAR OR GIVING MOTIVES FOR REPRISALS ........................................................ 108 ARTICLE 119 - VIOLATION OF NEUTRALITY ................ 108 ARTICLE 120 - CORRESPONDENCE WITH HOSTILE COUNTRY .......................................................... 109 ARTICLE 121 - FLIGHT TO ENEMY'S COUNTRY ............ 109 ARTICLE 122 - PIRACY IN GENERAL AND MUTINY ON THE HIGH SEAS OR IN PHILIPPINE WATERS ..................... 109 ARTICLE 123 - QUALIFIED PIRACY ............................ 110

Title III. Crimes against Public Order .................................. 120


CHAPTER I - REBELLION, COUP DETAT, SEDITION AND DISLOYALTY .......................... 120 ARTICLE 134 - REBELLION /INSURRECTION .............. 120 ARTICLE 134-A - COUP D TAT .............................. 121 ARTICLE 135 - PENALTY FOR REBELLION, INSURRECTION OR COUP D TAT ................................................ 121 ARTICLE 136 - CONSPIRACY AND PROPOSAL TO COMMIT COUP D TAT, REBELLION OR INSURRECTION ........... 122 ARTICLE 137 - DISLOYALTY OF PUBLIC OFFICERS OR EMPLOYEES ........................................................ 122 ARTICLE 138 - INCITING TO REBELLION OR INSURRECTION ........................................................................ 122 ARTICLE 139 SEDITION ...................................... 123 ARTICLE 140 - PERSONS LIABLE FOR SEDITION ......... 123 ARTICLE 141 - CONSPIRACY TO COMMIT SEDITION ...... 123 ARTICLE 142 INCITING TO SEDITION ...................... 123 CHAPTER II - CRIMES AGAINST POPULAR REPRESENTATION ......................................... 124 ARTICLE 143 - ACTS TENDING TO PREVENT THE MEETING
OF THE CONGRESS OF THE PHILIPPINES AND SIMILAR BODIES .............................................................. 124 ARTICLE 144 - DISTURBANCE OF PROCEEDINGS ........ 124

PD 532: ANTI-PIRACY AND ANTI-HIGHWAY ROBBERY ........................................................ 110 DEFINITION OF TERMS .......................................... 110 PUNISHABLE ACTS ................................................ 111 RA 6235: ANTI-HIJACKING LAW ...................... 111 PUNISHABLE ACTS ................................................ 111 RA 9372: HUMAN SECURITY ACT OF 2007 ..... 112

ARTICLE 145 - VIOLATION OF PARLIAMENTARY IMMUNITY .................................

124

CHAPTER III ILLEGAL ASSEMBLIES AND ASSOCIATIONS ...............................................125 ARTICLE 146 - ILLEGAL ASSEMBLIES ........................125 ARTICLE 147 - ILLEGAL ASSOCIATIONS .....................125 CHAPTER IV - ASSAULT UPON AND RESISTANCE AND DISOBEDIENCE TO, PERSONS IN AUTHORITY AND THEIR AGENTS ...................126 ARTICLE 148 - DIRECT ASSAULT .............................126 ARTICLE 152 - PERSONS IN AUTHORITY AND AGENTS OF PERSONS IN AUTHORITY .......................................126 ARTICLE 149 - INDIRECT ASSAULT .......................... 127 ARTICLE 150 - DISOBEDIENCE TO SUMMONS ISSUED BY CONGRESS, ITS COMMITTEES OR SUBCOMMITTEES, BY THE CONSTITUTIONAL COMMISSIONS, ITS COMMITTEES, SUBCOMMITTEES OR DIVISIONS .............................. 127 ARTICLE 151 - RESISTANCE AND DISOBEDIENCE TO A
PERSON IN AUTHORITY OR THE AGENTS OF SUCH PERSONS ................................................... 127

ARTICLE 161 - COUNTERFEITING THE GREAT SEAL OF THE GOVERNMENT OF THE PHILIPPINE ISLANDS, FORGING THE SIGNATURE OR STAMP OF THE CHIEF EXECUTIVE ........ 134 ARTICLE 162 - USING FORGED SIGNATURE OR COUNTERFEIT SEAL OR STAMP ............................... 134 ARTICLE 163 - MAKING AND IMPORTING AND UTTERING FALSE COINS ...................................................... 135 ARTICLE 164 - MUTILATION OF COINS ...................... 135 ARTICLE 165 - SELLING OF FALSE OR MUTILATED COIN, WITHOUT CONNIVANCE ......................................... 135 ARTICLE 166 - FORGING TREASURY OR BANK NOTES OR OTHER DOCUMENTS PAYABLE TO BEARER; IMPORTING AND UTTERING SUCH FALSE OR FORGED NOTES AND DOCUMENTS ...................................................... 135 ARTICLE 167 - COUNTERFEITING, IMPORTING, AND UTTERING INSTRUMENTS NOT PAYABLE TO BEARER ... 136

ACTS OF FORGERY ......................................... 136 ARTICLE 168 - ILLEGAL POSSESSION AND USE OF FALSE
TREASURY OR BANK NOTES AND OTHER INSTRUMENTS OF CREDIT .............................................................. 136 ARTICLE 169 - HOW FORGERY IS COMMITTED ............ 136

CHAPTER V - PUBLIC DISORDERS ................. 128 ARTICLE 153 - TUMULTS AND OTHER DISTURBANCES OF PUBLIC ORDER ................................................... 128 ARTICLE 154 - UNLAWFUL USE OF MEANS OF PUBLICATION AND UNLAWFUL UTTERANCES ............ 128 ARTICLE 155 - ALARMS AND SCANDALS .................. 128 ARTICLE 156 - DELIVERING PRISONERS FROM JAIL .... 129 CHAPTER VI - EVASION OF SERVICE OF SENTENCE ..................................................... 129 ARTICLE 157 - EVASION OF SERVICE OF SENTENCE ..... 129 ARTICLE 158 - EVASION OF SERVICE OF SENTENCE ON THE OCCASION OF DISORDERS, CONFLAGRATIONS, EARTHQUAKES, OR OTHER CALAMITIES .................. 130 ARTICLE 159 - OTHER CASES OF EVASION OF SERVICE OF SENTENCE ......................................................... 130 CHAPTER VII - COMMISSION OF ANOTHER CRIME DURING SERVICE OF PENALTY IMPOSED FOR ANOTHER PREVIOUS OFFENSE .............. 131 ARTICLE 160 - QUASI RECIDIVISM ........................... 131 PD 1866 AS AMENDED BY RA 8294: ILLEGAL POSSESSION OF FIREARMS ...................................................... 131 RA 9372: HUMAN SECURITY ACT ............................ 133

ACTS OF FALSIFICATION ................................ 137 ARTICLE 170 - FALSIFICATION OF LEGISLATIVE DOCUMENTS ...................................................... 137 ARTICLE 171 - FALSIFICATION BY PUBLIC OFFICER, EMPLOYEE OR NOTARY OR ECCLESIASTICAL MINISTER 137 ARTICLE 172 - FALSIFICATION BY PRIVATE INDIVIDUAL AND USE OF FALSIFIED DOCUMENTS ........................ 139 ARTICLE 173 - FALSIFICATION OF WIRELESS, CABLE, TELEGRAPH AND TELEPHONE MESSAGES, AND USE OF SAID FALSIFIED MESSAGES .................................... 141 ARTICLE 174 - FALSE MEDICAL CERTIFICATES, FALSE CERTIFICATES OF MERITS OR SERVICE, ETC. .............. 141 ARTICLE 175 - USING FALSE CERTIFICATES ............... 141 ARTICLE 176 - MANUFACTURING AND POSSESSION OF INSTRUMENTS OR IMPLEMENTS FOR FALSIFICATION .. 141 OTHER FALSITIES ........................................... 142 ARTICLE 177 - USURPATION OF AUTHORITY OR OFFICIAL FUNCTIONS ........................................................ 142 ARTICLE 178 - USING FICTITIOUS AND CONCEALING TRUE NAME ............................................................... 142 ARTICLE 179 - ILLEGAL USE OF UNIFORMS AND INSIGNIA ...................................... 142 ARTICLE 180 - FALSE TESTIMONY AGAINST A DEFENDANT ........................................ 142 ARTICLE 181 - FALSE TESTIMONY FAVORABLE TO THE DEFENDANT ....................................................... 143 ARTICLE 182 - FALSE TESTIMONY IN CIVIL CASES ....... 143 ARTICLE 183 - FALSE TESTIMONY IN OTHER CASES AND PERJURY IN SOLEMN AFFIRMATION ......................... 143 ARTICLE 184 - OFFERING FALSE TESTIMONY IN EVIDENCE ....................................................... 144 ARTICLE 185 - MACHINATIONS IN PUBLIC AUCTIONS .. 144

Title IV. Crimes against Public Interest .............................. 134


ACTS OF COUNTERFEITING ............................134

ARTICLE 186 MONOPOLIES AND COMBINATIONS IN RESTRAINT OF TRADE .......................................... 144 ARTICLE 187 IMPORTATION AND DISPOSITION OF FALSELY MARKED ARTICLES OR MERCHANDISE MADE OF GOLD, SILVER, OR OTHER PRECIOUS METALS OR THEIR ALLOYS ............................................................. 145 RA 9194 ANTI-MONEY LAUNDERING ACT ................ 145

ARTICLE 209 BETRAYAL OF TRUST BY AN ATTORNEY OR A SOLICITOR REVELATION OF SECRETS .................. 156 ARTICLE 210 - DIRECT BRIBERY .............................. 157 ARTICLE 211 - INDIRECT BRIBERY ............................ 157 ARTICLE 211-A - QUALIFIED BRIBERY ....................... 158 ARTICLE 212 - CORRUPTION OF PUBLIC OFFICIALS ..... 158

Title V. Crimes Relative to Opium and Other Prohibited Drugs ................................. 145
ACTS PUNISHED

................................................. 145

CHAPTER III: FRAUDS AND ILLEGAL EXACTIONS AND TRANSACTIONS ..................................... 158 ARTICLE 213 - FRAUD AGAINST THE PUBLIC TREASURY AND SIMILAR OFFENSES ....................................... 158 ARTICLE 214 - OTHER FRAUDS ............................... 159 ARTICLE 215 - PROHIBITED TRANSACTIONS .............. 159 ARTICLE 216 - POSSESSION OF PROHIBITED INTEREST BY A PUBLIC OFFICER .................................................. 159 CHAPTER IV: MALVERSATION OF PUBLIC FUNDS OR PROPERTY ...................................160 ARTICLE 217 - MALVERSATION OF PUBLIC FUNDS OR PROPERTY - PRESUMPTION OF MALVERSATION .........160 ARTICLE 218 - FAILURE OF ACCOUNTABLE OFFICER TO RENDER ACCOUNTS ............................................. 161 ARTICLE 219 - FAILURE OF A RESPONSIBLE PUBLIC
OFFICER TO RENDER ACCOUNTS BEFORE LEAVING THE COUNTRY ........................................................... 161 ARTICLE 220 - ILLEGAL USE OF PUBLIC FUNDS OR PROPERTY ......................................................... 161 ARTICLE 221 - FAILURE TO MAKE DELIVERY OF PUBLIC FUNDS OR PROPERTY ........................................... 162 ARTICLE 222 - OFFICERS INCLUDED IN THE PRECEDING PROVISIONS ....................................................... 162

PENALTIES FOR UNLAWFUL ACTS ................ 146 DEFINITION OF IMPORTANT TERMS ......................... 147 OTHER IMPORTANT POINTS ................................... 147

Title VI. Crimes against Public Morals ................................ 148


CRIMES AGAINST PUBLIC MORALS .............. 148 ARTICLE 200 - GRAVE SCANDAL ............................ 148 ARTICLE 201 - IMMORAL DOCTRINES, OBSCENE
PUBLICATIONS AND EXHIBITIONS AND INDECENT SHOWS ............................................... 148 ARTICLE 202 - VAGRANCY AND PROSTITUTION ........ 149 RA 10158: AN ACT DECRIMINALIZING VAGRANCY, AMENDING ARTICLE 202 OF THE RPC ..................... 149 P.D. 1602 ANTI-GAMBLING ACT AS AMENDED BY R.A. 9287 ILLEGAL NUMBERS GAME WHICH REPEALED ARTICLES 195-199 OF THE RPC ............................. 150 RA 9208 (ANTI-TRAFFICKING IN PERSONS ACT) ....... 151

Title VII. Crimes Committed by Public Officers .............. 154


CHAPTER I PRELIMINARY PROVISIONS ........ 155 ARTICLE 203 - WHO ARE PUBLIC OFFICERS .............. 155 CHAPTER II: MALFEASANCE AND MISFEASANCE IN OFFICE ....................................................... 155 ARTICLE 204 - KNOWINGLY RENDERING UNJUST JUDGMENT ........................................................ 155 ARTICLE 205 - JUDGMENT RENDERED THROUGH NEGLIGENCE ...................................................... 155 ARTICLE 206 - UNJUST INTERLOCUTORY ORDER ...... 155 ARTICLE 207 - MALICIOUS DELAY IN THE ADMINISTRATION OF JUSTICE ........................................................ 156 ARTICLE 208 - PROSECUTION OF OFFENSES; NEGLIGENCE AND TOLERANCE ................................................ 156

CHAPTER V: INFIDELITY OF PUBLIC OFFICERS ........................................................................ 162 ARTICLE 223 - CONNIVING WITH OR CONSENTING TO EVASION ............................................................ 162 ARTICLE 224 - EVASION THROUGH NEGLIGENCE ........ 162 ARTICLE 225 - ESCAPE OF PRISONER UNDER THE CUSTODY OF A PERSON NOT A PUBLIC OFFICER ......... 162 ARTICLE 226 - REMOVAL, CONCEALMENT, OR DESTRUCTION OF DOCUMENTS .............................. 163 ARTICLE 227 - OFFICER BREAKING SEAL .................. 163 ARTICLE 228 - OPENING OF CLOSED DOCUMENTS ....... 163 ARTICLE 229 - REVELATION OF SECRETS BY AN OFFICER .................................................... 163 ARTICLE 230 - PUBLIC OFFICERS REVEALING SECRETS OF PRIVATE INDIVIDUALSS ......................................... 164 CHAPTER VI: OTHER OFFENSES OR IRREGULARITIES BY PUBLIC OFFICERS ......... 164 ARTICLE 231 - OPEN DISOBEDIENCE ........................ 164 ARTICLE 232 - DISOBEDIENCE TO THE ORDER OF
SUPERIOR OFFICER WHEN SAID ORDER WAS SUSPENDED BY INFERIOR OFFICER ........................................... 164 ARTICLE 233 - REFUSAL OF ASSISTANCE .................. 164 ARTICLE 234 - REFUSAL TO DISCHARGE

ELECTIVE OFFICE ................................................ 164 ARTICLE 235 - MALTREATMENT OF PRISONERS ........ 165 ARTICLE 236 - ANTICIPATION OF DUTIES OF A PUBLIC OFFICER ............................................................ 165 ARTICLE 237 - PROLONGING PERFORMANCE OF DUTIES AND POWERS ..................................................... 165 ARTICLE 238 - ABANDONMENT OF OFFICE OR POSITION ..................................................... 165 ARTICLE 239 - USURPATION OF LEGISLATIVE POWERS 166 ARTICLE 240 - USURPATION OF EXECUTIVE FUNCTIONS ........................................ 166 ARTICLE 241 - USURPATION OF JUDICIAL FUNCTIONS 166 ARTICLE 242 - DISOBEYING REQUEST FOR DISQUALIFICATION .............................................. 166 ARTICLE 243 - ORDERS OR REQUEST BY EXECUTIVE OFFICER TO ANY JUDICIAL AUTHORITY .................... 166 ARTICLE 244 - UNLAWFUL APPOINTMENTS ............. 166 ARTICLE 245 - ABUSES AGAINST CHASTITY .............. 166 RA 3019: ANTI-GRAFT AND CORRUPT PRACTICES ...... 167 RA 7080: ANTI-PLUNDER ACT ...............................170 RA 9372: HUMAN SECURITY ACT ............................170

CHAPTER II PHYSICAL INJURIES .................... 177 ARTICLE 262 - MUTILATION .................................. 177 ARTICLE 263 - SERIOUS PHYSICAL INJURIES ............. 178 ARTICLE 264 - ADMINISTERING INJURIOUS SUBSTANCES OR BEVERAGES ................................................... 179 ARTICLE 265 - LESS SERIOUS PHYSICAL INJURIES ...... 179 ARTICLE 266 - SLIGHT PHYSICAL INJURIES AND MALTREATMENT ................................................. 179 ARTICLE 266-A - RAPE (AMENDED BY RA 8353) .......180

Title IX. Crimes against Personal Liberty and Security ...................... 184
CHAPTER I CRIMES AGAINST LIBERTY ..........184 ARTICLE 267 - KIDNAPPING AND SERIOUS ILLEGAL DETENTION ........................................................ 184 ARTICLE 268 - SLIGHT ILLEGAL DETENTION .............. 186 ARTICLE 269 - UNLAWFUL ARREST ......................... 187 ARTICLE 270 - KIDNAPPING AND FAILURE TO RETURN A MINOR .............................................................. 187 ARTICLE 271 - INDUCING A MINOR TO ABANDON HIS HOME ............................................ 188 ARTICLE 272 - SLAVERY ....................................... 188 ARTICLE 273 - EXPLOITATION OF CHILD LABOR ......... 188 ARTICLE 274 - SERVICES RENDERED UNDER COMPULSION IN PAYMENT OF DEBT ........................................... 188 CHAPTER II: CRIMES AGAINST SECURITY ......188 ARTICLE 275 - ABANDONMENT OF PERSONS IN DANGER AND ABANDONMENT OF OWN VICTIM ...................... 188 ARTICLE 276 - ABANDONING A MINOR .................... 189 ARTICLE 277 - ABANDONMENT OF MINOR BY PERSON ENTRUSTED WITH CUSTODY; INDIFFERENCE OF PARENTS ....................................................... 189 ARTICLE 278 - EXPLOITATION OF MINORS ................ 189 ARTICLE 280 - QUALIFIED TRESPASS TO DWELLING ...190 ARTICLE 281 - OTHER FORMS OF TRESPASS ............... 191 ARTICLE 282 - GRAVE THREATS ............................. 191 ARTICLE 283 - LIGHT THREATS .............................. 192 ARTICLE 284 - BOND FOR GOOD BEHAVIOR .............. 192 ARTICLE 285 OTHER LIGHT THREATS .................... 192 ARTICLE 286 - GRAVE COERCIONS .......................... 192 ARTICLE 287 - LIGHT COERCIONS ........................... 193 ARTICLE 288 - OTHER SIMILAR COERCIONS .............. 193 ARTICLE 289 - FORMATION, MAINTENANCE, AND
PROHIBITION OF COMBINATION OF CAPITAL OR LABOR THROUGH VIOLENCE OR THREATS ........................... 194

Title VIII. Crimes against Persons .............................. 170


CHAPTER I DESTRUCTION OF LIFE ................ 171 ARTICLE 246 - PARRICIDE ..................................... 171 ARTICLE 247 - DEATH OR PHYSICAL INJURIES UNDER EXCEPTIONAL CIRCUMSTANCES .............................. 171 ARTICLE 248 - MURDER ....................................... 172 TREACHERY ........................................................ 172 FIRE .................................................................. 172 POISON ............................................................. 173 EVIDENT PREMEDITATION ..................................... 173 CRUELTY ............................................................ 173 ARTICLE 249 - HOMICIDE ...................................... 173 ARTICLE 250 - PENALTY FOR FRUSTRATED PARRICIDE, MURDER OR HOMICIDE ......................................... 173 ARTICLE 251 - DEATH CAUSED IN TUMULTUOUS AFFRAY .......................................... 174 ARTICLE 252 - PHYSICAL INJURIES CAUSED IN TUMULTUOUS AFFRAY .......................................... 174 ARTICLE 253 - GIVING ASSISTANCE TO SUICIDE ......... 174 ARTICLE 254 - DISCHARGE OF FIREARMS ................. 175 ARTICLE 255 - INFANTICIDE .................................. 175 ARTICLE 256 - INTENTIONAL ABORTION .................. 175 ABORTION VS. INFANTICIDE ................................... 175 ARTICLE 257 - UNINTENTIONAL ABORTION ............... 176 ARTICLE 258 - ABORTION PRACTICED BY THE WOMAN HERSELF OR BY PARENTS ...................................... 176 ARTICLE 259 - ABORTION BY A PHYSICIAN OR MIDWIFE AND DISPENSING OF ABORTIVES ............................. 176 ARTICLE 260 - RESPONSIBILITY OF PARTICIPANTS IN A DUEL ................................................................. 177 ARTICLE 261 - CHALLENGING TO A DUEL .................. 177

CHAPTER III: DISCOVERY AND REVELATION OF SECRETS ......................................................... 194 ARTICLE 290 - DISCOVERING SECRETS THROUGH SEIZURE OF CORRESPONDENCE .......................................... 194

ARTICLE 291 - REVEALING SECRETS WITH ABUSE OF OFFICE ............................................................. 194 ARTICLE 292 - REVELATION OF INDUSTRIAL SECRETS 195

ARTICLE 313 - ALTERING BOUNDARIES OR LANDMARKS

....................................................................... 205 CHAPTER 5: CULPABLE INSOLVENCY ........... 205 ARTICLE 314 - FRAUDULENT INSOLVENCY ............... 205 CHAPTER 6: SWINDLING AND OTHER DECEITS ....................................................................... 205 ARTICLE 315 - ESTAFA ......................................... 205 ARTICLE 316 - OTHER FORMS OF SWINDLING AND DECEITS ........................................................................ 211 ARTICLE 317 - SWINDLING OF A MINOR .................... 212 ARTICLE 318 - OTHER DECEITS ................................ 212 CHAPTER 7: CHATTEL MORTGAGE ................ 212 ARTICLE 319 - REMOVAL, SALE, OR PLEDGE OF MORTGAGED PROPERTY ....................................... 212 CHAPTER 8: ARSON AND OTHER CRIMES INVOLVING DESTRUCTION ............................ 213 PD 1613, 1. DESTRUCTIVE ARSON .......................... 214 CHAPTER 9 MALICIOUS MISCHIEF ................. 214 ARTICLE 327 - WHO ARE RESPONSIBLE .................... 214 ARTICLE 328 - SPECIAL CASES OF MALICIOUS MISCHIEF ........................................................................ 215 ARTICLE 329 - OTHER MISCHIEFS ........................... 215 ARTICLE 330 - DAMAGE AND OBSTRUCTION TO MEANS OF COMMUNICATION ................................................ 215 ARTICLE 331 DESTROYING OR DAMAGING STATUES, PUBLIC MONUMENTS OR PAINTINGS ....................... 215 CHAPTER 10: EXEMPTION FROM CRIMINAL LIABILITY ........................................................ 215 ARTICLE 332 - EXEMPTION FROM CRIMINAL LIABILITY IN CRIMES AGAINST PROPERTY .................................. 215 THEFT .............................................................. 215 DESTRUCTIVE ARSON .......................................... 216 ROBBERY WITH HOMICIDE ..................................... 216 ROBBERY WITH RAPE ........................................... 216 QUALIFIED THEFT (ABUSE OF CONFIDENCE) .............. 216 THEFT (CORPUS DELICTI) ...................................... 216 THEFT; ATTEMPTED OR CONSUMMATED ONLY ........... 216 ROBBERY WITH HOMICIDE; (ABSORPTION THEORY APPLIED) ........................................................... 217 ESTAFA; ESSENCE OF MISAPPROPRIATION ............... 217 ESTAFA (SALE OF JEWELRY; FAILURE TO RETURN) ..... 217 ADDITIONAL NOTES ...................................... 217 THEFT ............................................................. 217 QUALIFIED THEFT ............................................... 217 ESTAFA ............................................................. 217 BOUNCING CHECKS LAW ....................................... 217

Title X. Crimes against Property ............................. 195


CHAPTER I: ROBBERY IN GENERAL ............... 195 ARTICLE 293 - WHO ARE GUILTY OF ROBBERY .......... 195 ARTICLE 294 - WITH VIOLENCE OR INTIMIDATION OF PERSONS .......................................................... 196 ARTICLE 295 - ROBBERY WITH PHYSICAL INJURIES, IN AN UNINHABITED PLACE AND BY A BAND ...................... 197 ARTICLE 296 - DEFINITION OF A BAND AND PENALTY INCURRED BY THE MEMBERS THEREOF ..................... 197 ARTICLE 297 - ATTEMPTED AND FRUSTRATED ROBBERY WITH HOMICIDE .................................................. 198 ARTICLE 298 - EXECUTION OF DEEDS THROUGH VIOLENCE OR INTIMIDATION BY FORCE UPON THINGS .............. 198 ARTICLE 299 - ROBBERY IN AN INHABITED HOUSE OR PUBLIC BUILDING OR EDIFICE DEVOTED TO WORSHIP . 199 ARTICLE 300 ROBBERY IN AN UNINHABITED PLACE AND BY A BAND ........................................................ 200 ARTICLE 301 - WHAT IS AN UNINHABITED HOUSE, PUBLIC
BUILDING DEDICATED TO RELIGIOUS WORSHIP AND THEIR DEPENDENCIES ................................................. 200 ARTICLE 302 - IN AN UNINHABITED PLACE OR PRIVATE BUILDING ......................................................... 200 ARTICLE 303 - ROBBERY OF CEREALS, FRUITS OR FIREWOOD IN AN INHABITED PLACE OR PRIVATE BUILDING ............................................. 200 ARTICLE 304 - POSSESSION OF PICKLOCK OR SIMILAR TOOLS .............................................................. 201 ARTICLE 305 - DEFINES FALSE KEYS ....................... 201

CHAPTER 2: BRIGANDAGE (ARTICLES 306-307) ...................................... 201 ARTICLE 306 - WHO ARE BRIGANDS ....................... 201 ARTICLE 307 - AIDING AND ABETTING A BAND OF BRIGANDS ......................................................... 201 CHAPTER 3: THEFT ........................................ 202 ARTICLE 308 - WHO ARE LIABLE FOR THEFT ............ 202 ARTICLE 309 - PENALTIES .................................... 203 ARTICLE 310 - QUALIFIED THEFT ............................ 203 RA 6539: ANTI-CARNAPPING LAW ........................ 203 PD 533 ANTI-CATTLE RUSTLING LAW ..................... 203 PD 704: ILLEGAL FISHING .................................... 204 PD 1612: ANTI-FENCING LAW ...............................204 ARTICLE 311 - THEFT OF THE PROPERTY OF THE NATIONAL LIBRARY AND NATIONAL MUSEUM ......................... 204 CHAPTER 4: USURPATION ............................204 ARTICLE 312 - OCCUPATION OF REAL PROPERTY OR USURPATION OF REAL RIGHTS IN PROPERTY ............ 204

Title XI. Crimes against Chastity ............................. 218


ARTICLE 333 - ADULTERY ..................................... 218 ARTICLE 334 - CONCUBINAGE ............................... 219 ARTICLE 335 RAPE ........................................... 219 ARTICLE 336 - ACTS OF LASCIVIOUSNESS ................ 219 ARTICLE 337 - QUALIFIED SEDUCTION .................... 220 ARTICLE 338 - SIMPLE SEDUCTION ......................... 222 ARTICLE 339 - ACTS OF LASCIVIOUSNESS WITH THE CONSENT OF THE OFFENDED PARTY ....................... 222 ARTICLE 340 - CORRUPTION OF MINORS ................. 222 ARTICLE 341 - WHITE SLAVE TRADE ........................ 223 ARTICLE 342 - FORCIBLE ABDUCTION ..................... 223 ARTICLE 343 - CONSENTED ABDUCTION .................. 223 ARTICLE 344 - PROSECUTION OF PRIVATE OFFENSES 224 ARTICLE 345: CIVIL LIABILITY ................................ 226 ARTICLE 346 LIABILITY OF ASCENDANTS, GUARDIANS, TEACHERS AND OTHER PERSONS ENTRUSTED WITH THE CUSTODY OF THE OFFENDED PARTY ........................ 226

Title XIII. Crimes against Honor .................................233


CHAPTER I: LIBEL .......................................... 233 ARTICLE 353 - DEFINITION OF LIBEL ....................... 233 ARTICLE 354 - REQUIREMENT FOR PUBLICITY ........... 234 ARTICLE 355 - LIBEL BY WRITING OR SIMILAR MEANS 235 ARTICLE 356 - THREATENING TO PUBLISH AND OFFER TO PREVENT SUCH PUBLICATION FOR A COMPENSATION 236 ARTICLE 357 - PROHIBITED PUBLICATION OF ACTS
REFERRED TO IN THE COURSE OF OFFICIAL PROCEEDINGS (GAG LAW) ........................................................ 236 ARTICLE 358 - SLANDER ..................................... 236 ARTICLE 359 - SLANDER BY DEED .......................... 236 ARTICLE 360 - PERSONS RESPONSIBLE FOR LIBEL .....237 ARTICLE 361 - PROOF OF TRUTH ............................ 238 ARTICLE 362 - LIBELOUS REMARKS ....................... 238

RA 9995: ANTI-PHOTO AND VIDEO VOYEURISM ACT OF 2009 .................................................. 227 RA 7610: SPECIAL PROTECTION OF CHILDREN AGAINST CHILD ABUSE, EXPLOITATION AND DISCRIMINATION .......................................... 227 RA 9208: ANTI-TRAFFICKING IN PERSONS ACT ....................................................................... 228 RA 9262: ANTI-VIOLENCE AGAINST WOMEN AND THEIR CHILDREN ................................... 229

CHAPTER II: INCRIMINATORY MACHINATIONS ............................................ 238 ARTICLE 363 - INCRIMINATING INNOCENT PERSON ... 238 ARTICLE 364 - INTRIGUING AGAINST HONOR ........... 238

Title XIV. Quasi-Offenses . 241


ARTICLE 365 - IMPRUDENCE AND NEGLIGENCE .................................................. 241

Title XII. Crimes against the Civil Status of Persons .... 230
CHAPTER I: SIMULATION OF BIRTHS AND USURPATION OF CIVIL STATUS .................... 230 ARTICLE 347 - SIMULATION OF BIRTHS, SUBSTITUTION OF ONE CHILD FOR ANOTHER, AND CONCEALMENT OR ABANDONMENT OF A LEGITIMATE CHILD ................. 230 ARTICLE 348 - USURPATION OF CIVIL STATUS .......... 230 CHAPTER II: ILLEGAL MARRIAGES ................ 230 ARTICLE 349 BIGAMY ....................................... 230 ARTICLE 350 - MARRIAGE CONTRACTED AGAINST PROVISIONS OF LAWS ........................................... 231 ARTICLE 351 - PREMATURE MARRIAGE .................... 231 ARTICLE 352 - PERFORMANCE OF ILLEGAL MARRIAGE CEREMONY ........................................................ 232

UP COLLEGE OF LAW

CRIMINAL LAW

BAR OPERATIONS COMMISSION

PAGE 1

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

Fundamental Principles
DEFINITION OF CRIMINAL LAW CRIMINAL LAW that branch of public substantive law which defines crimes, treats of their nature, and provides for their punishment. [Reyes, citing 12 Cyc. 129]
MALA IN SE AND MALA PROHIBITA

Mala in Se execution

Mala Prohibita

stages: of execution attempted, frustrated & consummated Generally, only the principal is liable. Penalty of offenders is same whether they acted as mere accomplices or accessories

Mala in se(evil in itself) A crime or an act that is inherently immoral, such as murder, arson or rape. th [Blacks Law Dictionary, 9 Ed.] Mala prohibita(prohibited evil) An act that is a crime merely because it is prohibited by statute, although the act itself is not necessarily immoral. th [Blacks Law Dictionary, 9 Ed.] Mala in Se As to nature Mala Prohibita

As to persons The principal, criminally liable accomplice & accessory. Penalty is computed on the basis of whether he is a principal offender or merely an accomplice or accessory As to what laws Generally, are violated RPC.

the Generally, special laws.

Wrong from its Wrong because very nature. it is prohibited by law. a

As to division of Penalties may be There is no such penalties divided into division of degrees and penalties. periods. (a) Dolo is not required in crimes mala prohibita. (b) In those crimes which are mala prohibita, the act alone irrespective of its motives, constitutes the offense. (c) Good faith and absence of criminal intent are not valid defenses in crimes mala prohibita. (d) When the acts are inherently immoral, they are mala in se, even if punished under special law, like plunder which requires proof of criminal intent. [Estrada v. Sandiganbayan (2001)] (e) Where malice is a factor, good faith is a defense. (f) A crime in the RPC can absorb a crime punishable by a special lawif it is a necessary ingredient of the felony defined in the Code but a special law can never absorb a crime punishable under the RPC, because violations of the Revised Penal Code are more serious than a violation of a special law. [People v. Rodriguez (1960)] (g) The crime of cattle-rustling is not malum prohibitum but a modification of the crime of theft of large cattle under the RPC (i.e. there are special laws which only modify crimes under the RPC therefore still mala in se). [People v. Martinada]
CRIMINAL LAW V. CRIMINAL PROCEDURE

As to use of good GF a valid GF is not faith as defense defense, unless defense. the crime is the result of culpa

As to WON Criminal intent is Criminal intent criminal intent is an element. is immaterial, an element BUT still requires intelligence & voluntariness As to degree of Degree of accomplishment accomplishment of crime is taken into account for the punishment. The act gives rise to a crime only when consummated.

As to mitigating They are taken They are not and aggravating into account in taken into circumstances imposing penalty account. As to degree of When there is participation more than one offender, the degree of participation of each in the commission is taken into account. Degree of participation is generally not taken into account. All who participated in the act are punished to the same extent.

Criminal Law It is substantive. Prospective in application.

Criminal Procedure It is remedial. Retroactive in application.

As to stages of There are three No such stages

PAGE 2

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

Criminal Law Exception: If it is favorable to the accused. Exception To The Exception: (1) When the accused is a habitual delinquent. (Art. 22) (2) Where the new law expressly made inapplicable to pending actions or existing causes of actions. [Tavera v. Valdez]

Criminal Procedure

(4) Eclectic/Mixed (a) Combines both positivist and classical thinking. (b) Crimes that are economic and social by nature should be dealt with ina positivist manner; thus, the law is more compassionate. (c) Heinous crimes should be dealt with in a classical manner; thus, capital punishment. Note: The Revised Penal Code today follows the mixed or eclectic philosophy.
RELATION OF RPC TO SPECIAL LAWS: APPLICATION OF RPC SUPPLETORY

General rule: RPC provisions supplement the provisions of special laws. [Art. 10, RPC] Exceptions: (1) Where the special law provides otherwise. [Art.10, RPC] (2) When the provisions of the Code are impossible of application, either by express provision or by necessary implication, as in those instances where the provisions in question are peculiar to the Code. [Regalado, Criminal Law Prospectus] In the absence of contrary provision in B.P. Blg. 22, the general provisions of the RPC which, by their nature, are necessarily applicable, may be applied suppletorily. [Ladonga v. People (2005)]
CONSTRUCTION OF PENAL LAWS

Statutory; it is passed by May be promulgated by the Legislature. the Legislature (e.g. jurisdiction of courts) or the Judiciary (e.g. Rules of Court)
STATE AUTHORITY TO PUNISH CRIME

Art. II, Sec. 5 (1987 Constitution).Declaration of Principles and State Policies. The maintenance of peace and order, the protection of life, liberty and property, and promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy.
SOURCES OF CRIMINAL LAW

(1) The Revised Penal Code (Act No. 3815) - Created pursuant to Administrative Order No. 94; enacted January 1, 1932; based on the Spanish Penal Code, US Penal Code, and Phil. Supreme Court decisions. (2) Special penal laws and penal Presidential Decrees issued during Martial Law.
PENAL LEGISLATION

Strict construction against the State and liberally in favor of the accused Pro Reo Doctrine Whenever a penal law is to be construed or applied and the law admits of two interpretations - one lenient to the offender and one strict to the offender, that interpretation which is lenient or favorable to the offender will be adopted. Basis: The fundamental rule that all doubts shall be construed in favor of the accused and presumption of innocence of the accused. Art. III, Sec. 14 (2), 1987 Const. In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved. Note: This is peculiar only to criminal law. Equipoise Rule When the evidence of the prosecution and the defense are equally balanced, the scale should be tilted in favor of the accused in obedience to the constitutional presumption of

Schools of Thought (PUCE) (1) Utilitarian Theory Primary purpose: Protection of society from actual or potential wrongdoers. (2) Classical Theory (a) Primary purpose:Retribution. (b) Basis of criminal liability: Human free will. (c) Endeavored to establish a mechanical and direct proportion between crime and penalty; there is scant regard to human element. (3) Positivist Theory (a) Primary purpose: Reformation; prevention/correction. (b) Basis of criminal liability: The sum of the social, natural and economic phenomena to which the actor is exposed.

PAGE 3

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

innocence. [Ursua v. CA (1996); Corpuz v. People (1991)] Spanish text of the RPC prevails overs its English translation In the construction or interpretation of the provision of the RPC, the Spanish text is controlling, because it was approved by the Philippine Legislature in its Spanish text. [People v. Manaba (58 Phil 665. 668)] There are incorrect translations of the Spanish text into the English text in the RPC. Retroactive application if favorable to the accused See Characteristics of Criminal Law, Prospectivity and Art. 22, RPC. Prescribed, but undeserved penalties In case of excessive penalties, the court shall not suspend the execution of the sentence [par. 2, Art. 5, RPC] SCOPE OF APPLICATION AND CHARACTERISTICS OF PHILIPPINE CRIMINAL LAW Criminal law has three (3) characteristics: (PGT) (1) General (2) Territorial (3) Prospective
GENERALITY

Art. V, VFA, which defines criminal jurisdiction over United States military and civilian personnel temporarily in the Philippines in connection with activities approved by the Philippine Government. The US and Philippines agreed that: (a) US shall have the right to exercise within the Philippines all criminal and disciplinary jurisdiction conferred on them by the military law of the US over US personnel in RP; (b) US authorities exercise exclusive jurisdiction over US personnel with respect to offenses, including offenses relating to the security of the US punishable under the law of the US, but not under the laws of RP; (c) US military authorities shall have the primary right to exercise jurisdiction over US personnel subject to the military law of the US in relation to: (i) Offenses solely against the property or security of the US or offenses solely against the property or person of US personnel; and (ii) Offenses arising out of any act or omission done in performance of official duty. [Reyes, The RPC] Rule on Jurisdiction under the VFA: (a) If the crime is punishable under Philippine laws but not under US laws then Philippines has exclusive jurisdiction. (b) If the crime is punishable under US laws but not under Philippine laws then US has exclusive jurisdiction. (c) If the crime is punishable under the US and Philippine laws then there is concurrent jurisdiction but the Philippines has the right to primary jurisdiction. (d) If the crime is committed by a US personnel against the security and property of the US alone then US has exclusive jurisdiction. (2) Laws of Preferential Application Examples: (a) Members of Congress are not liable for libel or slander for any speech in Congress or in any committee thereof. (Sec. 11, Art. VI, 1987 Constitution) (b) Any ambassador or public minister of any foreign State, authorized and received as such by the President, or any domestic or domestic servant of any such ambassador or minister are exempt from arrest and imprisonment and whose properties are exempt from distraint, seizure and attachment. (R.A. No. 75)

General rule: The penal law of the country is binding on all persons who live or sojourn in Philippine territory, subject to the principles of public international law and to treaty stipulations. [Art. 14, NCC] Exception: Art. 2, RPC. Except as provided in the treaties or laws of preferential application xxx. Art. 14, NCC. xxx subject to the principles of public international law and to treaty stipulations. (1) Treaty Stipulations Examples: (a) Bases Agreement entered into by the Philippines and the US on Mar. 14, 1947 and expired on Sept. 16, 1991. (b) Visiting Forces Agreement (VFA)is an agreement between the Philippine and US Government regarding the treatment of US Armed Forces visiting the Philippines. It was signed on Feb. 10, 1998.

PAGE 4

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

R.A. No. 75 penalizes acts which would impair the proper observance by the Republic and inhabitants of the Philippines of the immunities, rights, and privileges of duly accredited foreign diplomatic representatives in the Philippines. Warship Rule A warship of another country, even though docked in the Philippines, is considered an extension of the territory of its respective country. This also applies to embassies. (3) Principles of Public International Law The following persons are exempt from the provisions of the RPC: (1) Sovereigns and other heads of state (2) Ambassadors, ministers, plenipotentiary, minister resident and charges d affaires. (Article 31, Vienna Convention on Diplomatic Relations) Note: Consuls and consular officers are NOT exempt from local prosecution. [See Article 41, Vienna Convention on Consular Relations] (a) Public vessels of a friendly foreign power are not subject to local jurisdiction. (b) Generality has NO reference to territoriality.
TERRITORIALITY

Exception: Extraterritorial Crimes, which are punishable even if committed outside the Philippine territory [Art. 2, RPC] Par. 1: Crimes committed aboard Philippine ship or airship: The RPC is applied to Philippine vessels if the crime is committed while the ship is treading: (a) Philippine waters (intraterritorial), or (b) The high seas i.e. waters NOT under the jurisdiction of any State (extraterritorial) Two rules as to jurisdiction over crimes committed aboard merchant vessels while in the territorial waters of another country (i.e. a foreign vessel treading Philippine waters OR Philippine vessels treading foreign waters): (1) French Rule: It is the flag or nationality of the vessel which determines jurisdiction UNLESS the crime violates the peace and order of the host country. (2) English Rule: the location or situs of the crime determines jurisdiction UNLESS the crime merely relates to internal management of the vessel. (a) The Philippines adheres to the ENGLISH RULE. (b) However, these rules are NOT applicable if the vessel is on the high seas when the crime was committed. In these cases, the laws of the nationality of the ship will always apply. (c) When the crime is committed in a war vessel of a foreign country, the nationality of the vessel will always determine jurisdiction because war vessels are part of the sovereignty of the country to whose naval force they belong. Note: The country of registry determines the nationality of the vessel, NOT ITS OWNERSHIP. A Filipino-owned vessel registered in China must fly the Chinese flag. International Theories on Aerial Jurisdiction (1) Free Zone Theory The atmosphere over the country is free and not subject to the jurisdiction of the subjacent state, except for the protection of its national security and public order. (2) Relative Theory The subjacent state exercises jurisdiction over the atmosphere only to the extent that it can effectively exercise control thereof.

Art. 2, RPC embraces two scopes of applications: (1) Intraterritorial refers to the application of the RPC within the Philippine territory (land, air and water). (2) Extraterritorial refers to the application of the Revised Penal Code outside the Philippine territory. General rule: Penal laws of the country have force and effect only within its territory. (a) It cannot penalize crimes committed outside its territory. (b) The national territory comprises the Philippine Archipelago [Art. I, 1987 Constitution]. (c) The territory of the country is not limited to the land where its sovereignty resides but includes also its maritime and interior waters as well as its atmosphere.[Art. 2, RPC] (1) Terrestrial jurisdiction is the jurisdiction exercised over land. (2) Fluvial jurisdiction is the jurisdiction exercised over maritime and interior waters. (3) Aerial jurisdiction is the jurisdiction exercised over the atmosphere.

PAGE 5

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

(3) Absolute Theory The subjacent state has complete jurisdiction over the atmosphere above it subject only to the innocent passage by aircraft of a foreign country. Under this theory, if the crime is committed in an aircraft, no matter how high, as long as it can be established that it is within the Philippine atmosphere, Philippine criminal law (See AntiHijacking Law) will govern. Note: The Philippines adopts the Absolute Theory. Par. 2: Forging/Counterfeiting and Coins or Currency Notes in the Philippines Forgery is committed abroad, and it refers only to Philippine coin, currency note, obligations and securities. Par. 3: Should introduce into the country the abovementioned obligations and securities. The reason for this provision is that the introduction of forged or counterfeited obligations and securities into the Philippines is as dangerous as the forging or counterfeiting of the same, to the economic interest of the country. Par. 4: When public officers or employees commit an offense in the exercise of their functions. Crime committed pertains to the exercise of the public officials functions: The crimes which may be committed are: (i) Direct bribery (A.210) (ii) Qualified Bribery (A. 211-A) (iii) Indirect bribery (A.211) (iv) Corruption (A.212) (v) Frauds against the public treasury (A.213) (vi) Possession of prohibited interest (A.216) (vii) Malversation of public funds or property (A. 217) (viii) Failure to render accounts (A.218) (ix) Illegal use of public funds or property (A.220) (x) Failure to make delivery of public funds or property (A.221) (xi) Falsification by a public officer or employee committed with abuse of his official position (A.171) (xii) Those having to do with the discharge of their duties in a foreign country. The functions contemplated are those, which are, under the law: (a) to be performed by the public officer; (b) in the foreign service of the Phil. government;

(c) in a foreign country. Par. 5: Commit any of the crimes against national security and the law of nations, (Title One, Book 2, RPC) Crimes against national security: (i) Treason (A.114) (ii) Conspiracy and proposal to commit treason (A.115) (iii) Misprision of treason (A.116) (iv) Espionage (A.117) Crimes against the law of nations: (i) Inciting to war or giving motives for reprisals (A.118) (ii) Violation of neutrality (A.119) (iii) Correspondence with hostile country (A.120) (iv) Flight to enemys country (A.121) (v) Piracy in general and mutiny on the high seas or in Philippine waters (A.122) Note: Crimes against public order (e.g., rebellion, coup detat, sedition) committed abroad is under the jurisdiction of the host country. Terrorism is now classified as a crime against national security and the law of nations. (See R.A. 9372, Human Security Act of 2007).
PROSPECTIVITY

General rule: Acts or omissions will only be subject to a penal law if they are committed AFTER a penal law has taken effect. Conversely, acts or omissions which have been committed before the effectivity of a penal law could not be penalized by such penal law. Exception: Penal laws shall have a retroactive effect, insofar as they favor the person guilty of a felony. [Art. 22, RPC] Exception to the Exception: (1) The new law is expressly made inapplicable to pending actions or existing cause of actions; or (2) The offender is a habitual criminal. [Art. 22, RPC] Effects of repeal/amendment of penal law (1) If the repeal makes the penalty lighter in the new law, (a) The new law shall be applied, (b) EXCEPT when the offender is a habitual delinquent or when the new law is made not applicable to pending action or existing causes of action.

PAGE 6

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

(2) If the new law imposes a heavier penalty (a) Law in force at the time of the commission of the offense shall be applied. (3) If the new law totally repeals the existing law so that the act which was penalized under the old law is no longer punishable, (a) The crime is obliterated. (b) Pending cases are dismissed. (c) Unserved penalties imposed are remitted. (4) Rule of prospectivity also applies to judicial decisions, administrative rulings and circulars.[Art. 8, Civil Code] Rationale for the prospectivity rule: the punishability of an act must be reasonably known for the guidance of society[Peo v. Jabinal].
LEGALITY

Act Prohibiting the Imposition of Death Penalty in the Philippines (RA 9346) Repealed the law imposing lethal injection (R.A. 8177) and the law imposing the death penalty (R.A. 7659) (Sec. 1) This Act also imposes the punishment of reclusion perpetua for offenses under any act using the nomenclature of the RPC (Sec. 2 (a)) and the punishment of life imprisonment for offenses under any act which does not use the nomenclature of the RPC (Sec. 2(b))
BILL OF ATTAINDER

Art. III, Sec. 22, 1987 Const. No ex post facto law or bill of attainder shall be enacted. Bill of Attainder- a legislative act that inflicts punishment without trial, its essence being the substitution of legislative fiat for a judicial determination of guilt.
EX POST FACTO LAW

Art. 21. No felony shall be punishable by any penalty not prescribed by law prior to its commission. Nullum Crimen Nulla Poena Sine Lege There is no crime when there is no law punishing the same. Limitation: Not every law punishing an act or omission may be valid as a criminal law. If the law punishing an act is ambiguous, it is null and void. CONSTITUTIONAL LIMITATIONS ON THE POWER OF CONGRESS TO ENACT PENAL LAWS
EQUAL PROTECTION

Art. III, Sec. 1, 1987 Const. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.
DUE PROCESS

Art. III, Sec. 14 (1), 1987 Const. No person shall be held to answer for a criminal offense without due process of law.
NON-IMPOSITION OF CRUEL AND UNUSUAL PUNISHMENT OR EXCESSIVE FINES

Ex Post Facto Law is one which: (1) Makes criminal an act done before the passage of the law and which was innocent when done, and punishes such an act. (2) Aggravates a crime, or makes it greater than it was, when committed; (3) Changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed; (4) Alters the legal rules of evidence, and authorizes conviction upon less or different testimony than the law required at the time of the commission of the offense; (5) Assumes to regulate civil rights and remedies only, in effect imposes penalty or deprivation of a right for something which when done was lawful; and (6) Deprives a person accused of a crime some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty.[Reyes, The Revised Penal Code citing In re: Kay Villegas Kami, Inc.]
OTHER CONSTITUTIONAL LIMITATIONS

Art III, Sec. 19, 1987 Const. Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua.

(a) Must not provide imprisonment for non-payment of debts or poll tax. [1987 Const. Art. III, Sec. 19 (1)] (b) Must not restrict other constitutional freedoms, e.g. due process, religion, free speech, and assembly.
BASIC MAXIMS IN CRIMINAL LAW

(1) Actus Non Facit Reum, Nisi Mens Sit Rea

PAGE 7

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

The act cannot be criminal where the mind is not criminal. The general rule is that, if it is proved that the accused committed the criminal act charged, it will be presumed that the act was done with criminal intention. However, it must be borne in mind that the act from which such presumption springs must be a criminal act. If the act was not unlawful and was done in good faith then there is no crime. The act of a person does not make him a criminal, unless his mind be criminal. [US v. Catolico] (2) Actus Me Invito Factus Non Est Meus Actus An act done by me against my will is not my act. (3) El Que Es Causa De La Causa Es Causa Del Mal Causado - He who is the cause of the cause is the cause of the evil caused. (a) This is the rationale in par. 1 of Art. 4 which enunciates the doctrine of proximate cause. (b) He who commits an intentional felony is responsible for all the consequences which may naturally and logically result therefrom, whether foreseen or intended or not.

FELONIES: HOW COMMITTED Felonies are committed not only by means of deceit (dolo) but also by means of fault (culpa). There is deceit when the act is performed with deliberate intent; and there is fault when the wrongful act results from imprudence, negligence, lack of foresight, or lack of skill. [Art. 3, RPC] CLASSIFICATION OF FELONIES Felonies are classified as follows: (MSG) (1) According to the manner of their commission (2) According to the stages of their execution (3) According to their gravity Other classifications: (4) As to count (5) As to nature (a) The purpose of classifying penalties is to bring about a proportionate penalty and equitable punishment. (b) The penalties are graduated according to their degree of severity. (1) The stages (Art. 6) may not apply to all kinds of felonies. (2) There are felonies which do not admit of division.
(1) According to the Manner of Their Commission

Felonies
DIFFERENTIATING FELONIES, OFFENSE, MISDEMEANOR AND CRIME FELONY refers only to violations of the Revised Penal Code. (a) A crime punishable under a special law is not referred to as a felony. Crime or offense is the proper term. (b) Importance: There are certain provisions in the RPC where the term felony is used, which means that the provision is not extended to crimes under special laws. A crime punished under a special law is called a statutory offense.
OFFENSE MISDEMEANOR A

Under Art. 3, they are classified as: (a) Intentional felonies those committed with deliberate intent; and (b) Culpable felonies those resulting from negligence, reckless imprudence, lack of foresight or lack of skill.
INTENTIONAL FELONY V. CULPABLE FELONY

Intentional Act is malicious. With deliberate intent.

Culpable Not malicious. Injury caused is unintentional, being just an incident of another act performed without malice.

minor infraction of the law, such as a violation of an ordinance. Whether the wrongdoing is punished under the Revised Penal Code or under a special law, the generic word crime can be used.
CRIME

Has intention to cause an Wrongful act results from injury. imprudence, negligence, lack of foresight, or lack of skill.
(2) According to the Stages of Their Execution

Under Art. 6, they are classified as:(AFC) (a) Attempted (b) Frustrated (c) Consummated

PAGE 8

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

Note: The classification of stages of a felony in Article 6 is true only to crimes under the Revised Penal Code. It does NOT apply to crimes punished under special laws. However, even certain crimes which are punished under the Revised Penal Code do not admit of these stages. Related to this, classification of felonies as to: (a) Formal Crimes: Crimes which are consummated in one instance. Example: ILLEGAL EXACTION under Art. 213 Mere demanding of an amount different from what the law authorizes him to collect will already consummate a crime, whether the taxpayer pays the amount being demanded or not. (b) Material Felonies: crimes that have various stages of execution (c) Felonies by omission: Crimes which have no attempted stage. (d) Crimes which have NO FRUSTRATED STAGE: the essence of the crime is the act itself. (a) Rape the slightest penetration already consummates the crime (b) Arson the slightest burning already renders the crime complete. (c) Theft free disposition of the items stolen is not in any way determinative of whether the crime of theft has been produced. [Valenzuela vs. People (2007)] (3) According to Their Gravity Under Art. 9, felonies are classified as: (a) Grave felonies those to which the law attaches the capital punishment or penalties which in any of their periods are afflictive; (i) Reclusion perpetua (ii) Reclusion temporal (iii) Perpetual or Absolute DQ (iv) Perpetual or Temporary Special DQ (v) Prision mayor (vi) Fine more than P6,000 (b) Less grave felonies those to which the law punishes with penalties which in their maximum period is correctional; (i) Prision correccional (ii) Arresto mayor (iii) Suspension (iv) Destierro (v) Fines equal to or more than P200 (c) Light felonies those infractions of law for the commission of which

(i) the penalty is arresto menor, or a fine not exceeding P200, or both. Why is it necessary to determine whether the crime is grave, less grave or light? (1) To determine (a) whether these felonies can be complexed or not; (b) the prescription of the crime and (c) the prescription of the penalty. (2) In other words, these are felonies classified according to their gravity, stages and the penalty attached to them. (a) Take note that when the Revised Penal Code speaks of grave and less grave felonies, the definition makes a reference specifically to Art. 25 of the Revised Penal Code. (b) Do not omit the phrase In accordance with Art. 25 because there is also a classification of penalties under Art. 26 that was not applied. (c) This classification of felony according to gravity is important with respect to the question of prescription of crimes. (d) If the penalty is a fine and exactly P200.00, it is only considered a light felony under Art. 9. If the fine is imposed as an alternative penalty or as a single penalty, the fine of P200.00 is considered a correctional penalty under Art. 26, hence a less grave penalty. (e) If the penalty is exactly P200.00, apply Art. 26(with respect to prescription of penalties). It is considered as a correctional penalty and it prescribes in 10 years. If the offender is apprehended at any time within ten years, he can be made to suffer the fine. (4) As to Count Plurality of crimes may be in the form of: (a) Compound Crime, (b) Complex crime; and (c) Composite crime. (5) As to Nature (a) Mala in se (b) Mala prohibita ELEMENTS OF CRIMINAL LIABILITY Elements of Felonies: (1) There must be an act or omission (actus reus/physical act) Act: Any kind of body movement which tends to produce some effect in the external world; includes possession.

PAGE 9

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

Omission: The failure to perform a positive duty which one is bound to do under the law. (2) That the act or omission must be punishable by the RPC. It is important that there is a law requiring the performance of an act; if there is no positive duty, there is no liability. (3) That the act is performed or the omission incurred by means of dolo or culpa. DOLO Dolo is deliberate intent otherwise referred to as criminal intent, and must be coupled with freedom of action and intelligence on the part of the offender as to the act done by him. Intentional Felonies The act or omission is performed or incurred with deliberate intent (with malice) to cause an injury to another. Requisites: (FII) (1) Freedom (a) Voluntariness on the part of the person who commits the act or omission. (b) If there is lack of freedom, the offender is exempt from liability (i.e., presence of irresistible force or uncontrollable fear) (2) Intelligence (a) Capacity to know and understand the consequences of ones act. (b) This power is necessary to determine the morality of human acts, the lack of which leads to non-existence of a crime. (c) If there is lack of intelligence, the offender is exempt from liability. (i.e., offender is an imbecile, insane or under 15 years of age) (3) Criminal Intent (a) The purpose to use a particular means to effect a result. (b) The intent to commit an act with malice, being purely a mental state, is presumed (but only if the act committed is unlawful).Such presumption arises from the proof of commission of an unlawful act. (c) However, in some crimes, intent cannot be presumed being an integral element thereof; so it has to be proven. (d) Example: In frustrated homicide, specific intent to kill is not presumed but must be proven; otherwise it is merely physical injuries.

(e) Intent which is a mental process presupposes the exercise of freedom and the use of intelligence. (f) If an act is proven to be unlawful, then intent will be presumed prima facie. [U.S. v. Apostol] (g) An honest mistake of fact destroys the presumption of criminal intent which arises from the commission of a felonious act. [People v. Oanis] (h) Mens rea: "A guilty mind, a guilty or wrongful purpose or criminal intent." [Black's Law Dictionary, 5th ed., p. 889] Note: If any of the elements is absent, there is no dolo. If there is no dolo, there could be no intentional felony. [Visbal vs. Buban (2003)]
LIABILITY EVEN IN THE ABSENCE OF CRIMINAL INTENT

Exception to the requirement of criminal intent: (a) Felonies committed by CULPA. (b) Offenses MALA PROHIBITA.
CATEGORIES OF CRIMINAL INTENT (GENERAL VS. SPECIFIC INTENT)

General Criminal Intent The intention to something wrong.

Specific Criminal Intent

do The intention to commit a definite act. is not

Presumed from the mere Existence doing of a wrong act. presumed. The burden is upon the wrong doer to prove that he acted without such criminal intent.

Since the specific intent is an element of the crime, the burden is upon the prosecution to establish its existence.

(a) The general criminal intent is presumed from the criminal act and in the absence of any general intent is relied upon as a defense; such absence must be proved by the accused. (b) Generally, a specific intent is not presumed. Its existence, as a matter of fact, must be proved by the State just as any other essential element. (c) This may be shown, however, by the nature of the act, the circumstances under which it was committed, the means employed and the motive of the accused (d) In some particular felonies, proof of specific intent is required. (e) In certain crimes against property, there must be intent to gain (Art. 293 robbery, Art 308 theft). (f) Intent to kill is essential in attempted and frustrated homicide (Art 6 in relation to Art 249), as well as in murder.

PAGE 10

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

(g) In forcible abduction (Art. 342), specific intent of lewd designs must be proved.
DISTINCTION BETWEEN INTENT, DISCERNMENT AND MOTIVE

WRONGFUL ACT DIFFERENT FROM THAT INTENDED

Intent is the determination to do a certain thing, an aim or purpose of the mind. It establishes the nature and extent of culpability in intentional felonies. Discernment is the mental capacity to tell right from wrong. It is integral to the element of intelligence, NOT intent. Motive it is the moving power which impels one to do an act (ex. vengeance). Generally, it is not an essential element of a crime; hence, it need not be proved for purposes of conviction (except in certain cases enumerated below).
WHEN MOTIVE BECOMES MATERIAL IN DETERMINING CRIMINAL LIABILITY

Art. 4. RPC. Criminal liability shall be incurred: By any person committing a felony (delito) although the wrongful act done be different from that which he intended. xxx xxx xxx. When a person commits a felony with malice, he intends the consequences of his felonious act. Rationale: el que es causa de la causa es causa del mal causado (he who is the cause of the cause is the cause of the evil caused). Requisites: (1) An intentional felony has been committed. (a) The felony committed should be one committed by means of dolo (with malice) because Art. 4, Par. 1 speaks of wrongful act done different from that which he intended. (b) The act should not be punished by a special law because the offender violating a special law may not have the intent to do an injury to another. (c) No felony is committed when: (i) the act or omission is not punishable by the RPC, (ii) the act is covered by any of the justifying circumstances enumerated in Art. 11. (2) The wrong done to the aggrieved party be the direct, natural and logical consequence of the felony committed by the offender. Proximate Cause - That cause, which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury without which the result would not have occurred. The proximate legal cause is that acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under such circumstances that the person responsible for the first event should, as an ordinary prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom. [Vda. De Bataclan v. Medina (1957)]

(1) When the act brings about variant crimes (e.g. kidnapping v. robbery [People v. Puno (1993)]) (2) When there is doubt as to the identity of the assailant. (3) When there is the need to ascertain the truth between two antagonistic versions of the crime. (4) When the identification of the accused proceeds from an unreliable source and the testimony is inconclusive and not free from doubt. (5) When there are no eyewitnesses to the crime, and when suspicion is likely to fall upon a number of persons. (6) When the evidence on the commission of the crime is purely circumstantial. (a) Lack of motive can aid in achieving acquittal of the accused, especially where there is doubt as to the identity of the accused. [People v. Hassan (1988)] (b) Proof of motive is not indispensable for a conviction, particularly where the accused is positively identified by an eyewitness and his participation is adequately established. [People v. Delos Santos] (c) In the crime of murder, motive is not an element of the offense, it becomes material only when the evidence is circumstantial or inconclusive and there is some doubt on whether the accused had committed it. [People vs. Galano] Note: Discernment does not indicate the presence of intent, merely intelligence [People v. Cordova (1993)]. Thus, discernment is necessary whether the crime is dolo or culpa.

PAGE 11

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

PROXIMATE CAUSE V. IMMEDIATE CAUSE V. REMOTE CAUSE

Proximate cause see definition above. Immediate cause The last event in a chain of events, though not necessarily the proximate cause of what follows. Remote cause A cause that does not necessarily or immediately produce an event or injury. Note: Criminal liability exists from the concurrence of the mens rea and the actus reus. Criminal liability for some felonies arises only upon a specific resulting harm: (1) Homicide and its qualified forms requires DEATH of the victim to be consummated. (2) Estafa: requires that the victim incur damage for criminal liability for the consummated felony to arise. General rule: The offender is CRIMINALLY LIABLE for ALL the natural and logical consequences of his felonious act, although not intended, if the felonious act is the proximate cause of the resulting harm. Thus, the person is still criminally liable although the wrongful act done be different from that which he intended in the following cases: (1) Error in personae - mistake in the identity of the victim; injuring one person mistaken for another (Art. 49 penalty for lesser crime in its maximum period) (a) At least two subjects (b) A has intent to kill B, but kills C (c) Under Art. 3, if A hits C, he should have no criminal liability. But because of Art. 4, his act is a felony. (2) Aberratio ictus - mistake in the blow; when offender intending to do an injury to one person actually inflicts it on another (Art. 48 on complex crimes penalty for graver offense in its maximum period) (a) There is only one subject. (b) The intended subject is a different subject, but the felony is still the same. (3) Praeter intentionem - injurious result is greater than that intended (Art. 13 mitigating circumstance)

If As act constitutes sufficient means to carry out the graver felony, he cannot claim praeter intentionem. The felony committed is not the proximate cause of the resulting injury when: (1) There is an efficient intervening cause or an active force that intervened between the felony committed and the resulting injury, and the active force is a distinct act or fact absolutely foreign from the felonious act of the accused; or (2) The resulting injury is due to the intentional act of the victim. The following are not efficient intervening cause: (1) The weak or diseased physical condition of the victim, as when one is suffering from tuberculosis or heart disease. [People v. Illustre] (2) The nervousness or temperament of the victim, as when a person dies in consequence of an internal hemorrhage brought on by moving about against the doctors orders, because of his nervous condition due to the wound inflicted on the accused. [People v. Almonte] (3) Causes which are inherent in the victim, such (a) the victim not knowing to swim and (b) the victim being addicted to tuba drinking. [People v. Buhay and People v. Valdez] (4) Neglect of the victim or third person, such as the refusal by the injured party of medical attendance or surgical operation, or the failure of the doctor to give anti-tetanus injection to the injured person. [U.S. v. Marasigan] (5) Erroneous or unskillful medical or surgical treatment, as when the assault took place in anu outlaying barrio where proper modern surgical service was not available. [People v. Moldes] Omission It is inaction, the failure to perform a positive duty which a person is bound to do. There must be a law requiring the doing or performing of an act. Punishable omissions in the RPC: (1) Art. 116: Misprision of treason. (2) Art. 137: Disloyalty of public officers or employees. (3) Art. 208: Negligence and tolerance in prosecution of offenses. (4) Art. 223: Conniving with or consenting to evasion. (5) Art. 275: Abandonment of person in danger and abandonment of ones own victim. (6) Art. 276: Abandoning a minor
MISTAKE OF FACT

Mistake of Fact (Ignorantia Facti Excusat) It is a reasonable misapprehension of fact on the part of

PAGE 12

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

the person causing injury to another. Such person is NOT criminally liable as he acted without criminal intent. (a) Under this principle, what is involved is the lack of intent on the part of the accused. Therefore, the defense of mistake of fact is an untenable defense in culpable felonies, where there is no intent to consider. (b) An honest mistake of fact destroys the presumption of criminal intent which arises upon the commission of a felonious act. Requisites: (1) That the act done would have been lawful had the facts been as the accused believed them to be; (2) That the intention of the accused in performing the act should be lawful; (3) That the mistake must be without fault or carelessness on the part of the accused. When the accused is negligent, mistake of fact is not a defense.[People v. Oanis (1993)] However,mistake of fact is NOT availing in People v. Oanis (74 Phil. 257),because the police officers were at fault when they shot the escaped convict who was sleeping, without first ascertaining his identity. (It is only when the fugitive is determined to fight the officers of law trying to catch him that killing the former would be justified) US v. Ah Chong (1910): A cook who stabs his roommate in the dark, honestly mistaking the latter to be a robber responsible for a series of break-ins in the area, and after crying out sufficient warnings and believing himself to be under attack, cannot be held criminally liable for homicide. (1) Would the stabbing be lawful if the facts were really what the houseboy believed? Yes. If it was really the robber and not the roommate then the houseboy was justified. (2) Was the houseboys intention lawful? Yes. He was acting out of self-preservation. (3) Was the houseboy without fault or negligence? Yes. His deliberate intent to defend himself with the knife can be determined by the fact that he cried out sufficient warnings prior to the act. Stabbing the victim whom the accused believed to be an intruder showed a mistake of fact on his part which led him to take the facts as they appear to him and was pressed to take immediate action.

CULPA Culpa The act or omission is not malicious; the injury caused being simply the incident of another act performed without malice. (a) Although there is no intentional felony, there could be culpable felony. (b) The element of criminal intent is replaced by negligence, imprudence, lack of foresight or lack of skill. Requisites: (1) Freedom (2) Intelligence (3) Negligence, reckless foresight or lack of skill

imprudence,

lack

of

Is culpa merely a mode of committing a crime or a crime in itself? (a) AS A MODE Under Art. 3, it is clear that culpa is just a modality by which a felony may be committed.

Act of Dolo

OR

Act of Culpa

FELONY

People vs. Faller (1939): It was stated indirectly that criminal negligence or culpa is just a mode of incurring criminal liability. In this case, the accused was charged with malicious mischief. Malicious mischief is an intentional negligence under Article 327. Thus, there is no malicious mischief through simple negligence or reckless imprudence because it requires deliberateness. The Supreme Court pointed out that although the allegation in the information charged the accused with an intentional felony, yet the words feloniously and unlawfully, which are standard languages in an information, covers not only dolo but also culpa because culpa is just a mode of committing a felony. (b) AS A CRIME In Art. 365, criminal negligence is an omission which the article specifically penalizes. The concept of criminal negligence is the inexcusable lack of precaution on the part of the person performing or failing to perform an act.
PAGE 13

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

Art. 365 creates a distinction between imprudence and negligence; simple or reckless, one might think that criminal negligence is the one being punished.
Act of Dolo Act of Culpa

person or damage to property. Usually involves lack of skill. Reason for punishing acts of negligence or imprudence: A man must use his common sense and exercise due reflection in all his acts; it is his duty to be cautious, careful and prudent.
DOCTRINES CONCERNING CULPABLE CRIMES

OR

INTENTIONAL

CRIMINAL NEGLIGENCE (ART 365)

People v. Buan (1968):The accused was driving a FELONIES passenger bus. Allegedly because of his recklessness, the bus collided with a jeep injuring the passengers of the latter. A case was filed against the accused for slight physical injuries through reckless imprudence for which he was tried and acquitted. Prior to his acquittal, a case for serious physical injuries and damage to property through reckless imprudence was filed. Accused claimed that he was placed in twice in jeopardy. Held: The second case must be dismissed. (a) Once convicted or acquitted of a specific act of reckless imprudence, the accused may not be prosecuted again for the same act. (b) For the essence of the quasi-offense under Art. 365 of the RPC lies in the execution of an imprudent act which would be punishable as a felony. (c) The law penalizes the negligent act and not the result. (d) The gravity of the consequences is only taken into account to determine the penalty. It does not qualify the substance of the offense. As the careless act is single, whether the injurious result should affect one person or several persons, the offense remains one and the same, and cannot be split into different crimes and prosecutions. Negligence - Indicates deficiency of perception, failure to pay proper attention, and to use diligence in foreseeing the injury or damage impending to be caused. Usually involves lack of foresight. Imprudence - Indicates deficiency of action, failure to take the necessary precaution to avoid injury to

(1) Emergency Rule (a) A person who is confronted with a sudden emergency may be left no time for thought so he must make a speedy decision based largely upon impulse or instinct. (b) Importance: cannot be held to the same conduct as one who has had an opportunity to reflect, even though it later appears that he made the wrong decision. (2) Doctrine Of Last Clear Chance (a) The contributory negligence of the party injured will NOT defeat the action if it be shown that the accused might, by the exercise of reasonable care and prudence, have avoided the consequences of the negligence of the injured party. (b) Last Clear Chance is a defense by the defendant in a damage suit against liability by transferring it to the plaintiff. (c) Except: The doctrine is not applicable in criminal cases because the liability is penal in nature and thus liability cannot be transferred to the other party. [Anuran v. Buno (1966)] (d) It is not a case between two parties involved in an incident but rather between an individual and the State. (3) Rule Of Negative Ingredient (a) This is related to the doctrine of proximate cause and applicable when certain causes leading to the result are not identifiable. (b) This rule states that: (1) The prosecution must first identify what the accused failed to do. (2) Once this is done, the burden of evidence shifts to the accused. (3) The accused must show that the failure did not set in motion the chain of events leading to the injury [Carillo v. People]. IMPOSSIBLE CRIME is to suppress criminal propensity or criminal tendencies. Objectively, the offender has not committed a felony, but subjectively, he is a criminal.
PURPOSE OF PUNISHING IMPOSSIBLE CRIMES

PAGE 14

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

REQUISITES:

MODIFIED CONCEPT OF IMPOSSIBLE CRIME

(1) That the act performed would be an offense against persons or property. (2) That the act was done with evil intent. (3) That its accomplishment is inherently impossible, or that the means employed is either inadequate or ineffectual. (4) That the act performed should not constitute a violation of another provision of the RPC (1) Inherent impossibility: The act intended by the offender is by its nature one of impossible accomplishment. (2) There must be either: (a) Legal impossibility The intended acts, even if completed, would not amount to a crime. Legal impossibility would apply to those circumstances where: (i) the motive, desire and expectation is to perform an act in violation of the law; (ii) there is intention to perform the physical act; (iii) there is a performance of the intended physical act; and (iv) the consequence resulting from the intended act does not amount to a crime. [Intod v. CA] (b) Physical or factual impossibility Extraneous circumstances unknown to the actor or beyond his control prevent the consummation of the intended crime. (3) In the Philippines, impossibility of accomplishing the criminal intent is not merely a defense but an act penalized in itself. (4) Since the offender in an impossible crime has already performed the acts for the execution of the same, there could be no attempted impossible crime. There is no frustrated impossible crime either, because the acts performed by the offender are considered as constituting a consummated offense.
DEVELOPMENT OF A CRIME

Intod v. CA (1992): (a) In this case, four culprits, all armed with firearms and with intent to kill, went to the intended victims house and after having pinpointed the latters bedroom, all four fired at and riddled the said room with bullets, thinking that the intended victim was already there as it was about 10:00 in the evening. (b) It so happened that the intended victim did not come home that evening and so was not in her bedroom at that time. (c) Eventually the culprits were prosecuted and convicted by the trial court for attempted murder. (d) CA affirmed the judgment but the SC modified the same and held the petitioner liable only for the so-called impossible crime. (e) As a result, petitioner-accused was sentenced to imprisonment of only six months of arresto mayor for the felonious act he committed with intent to kill: this despite the destruction done to the intended victims house. STAGES OF EXECUTION CLASSIFICATION UNDER ART. 6: (1) Consummated Felony When all the elements necessary for its execution and accomplishment are present; the felony is produced. (2) Frustrated Felony When the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator. (3) Attempted Felony When the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance.

Elements of Criminal Liability

Impossible Crime Lacking due to: (i) inherent impossibility (ii) employment of inadequate means

Attempted Intervention other than own desistance; some but not all acts of execution

Frustrated

Consummated

Actus Reus Mens Rea Concurrence Result Causation

PAGE 15

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

DEVELOPMENT OF A CRIME (1) INTERNAL ACTS (a) Intent, ideas and plans; generally not punishable. The intention and act must concur. (b) Illustration: Ernie plans to kill Bert (2) EXTERNAL ACTS (a) Preparatory Acts (a) Acts tending toward the crime. (b) Ordinarily not punished except when considered by law as independent crimes (i.e. Art. 304 possession of picklocks) (c) Proposal and conspiracy to commit a felony are not punishable except when the law provides for their punishment in certain felonies. (d) These acts do not yet constitute even the first stage of the acts of execution. (e) Intent not yet disclosed. (f) Illustration: Ernie goes to the kitchen to get a knife. (b) Acts of Execution (a) Usually overt acts with a logical relation to a particular concrete offense. (b) Punishable under the RPC. (c) Illustration: Ernie stabs Bert A commission of the felony is deemed commenced when the following are present: (1) There are external acts. (2) Such external acts have a direct connection with the crime intended to be committed. Indeterminate Offense It is one where the purpose of the offender in performing an act is not certain. Its (1) ATTEMPTED STAGE Elements: (a) The offender commences the commission of the felony directly by overt acts; (b) He does not perform all the acts of execution which should produce the felony; (c) The non-performance of all acts of execution was due to cause or accident other than his own spontaneous desistance. Overt Act Some physical activity or deed, indicating the intention to commit a particular crime, more than a mere planning or preparation, which if carried to its complete termination following its natural course, without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete offense.

nature in relation to its objective is ambiguous. The intention of the accused must be viewed from the nature of the acts executed by him, and not from his admission. Attempted and Frustrated Felonies The difference between the attempted stage and the frustrated stage lies in: whether the offender has performed all the acts of execution for the accomplishment of a felony. Attempted Felony Frustrated Felony

Acts performed Overt acts of execution All acts of execution are are started finished BUT BUT Not all acts of execution Crime sought to be are present committed is not achieved Why Due to reasons other than Due to intervening causes the spontaneous independent of the will of desistance of the the perpetrator perpetrator Position in the timeline Offender still in subjective phase because he still has control of his acts, including their natural cause. Offender is already in the objective phase because all acts of execution are already present and the cause of its nonaccomplishment is other than the offenders will

(a) Marks the commencement of the subjective phase: (b) Subjective phase - That portion of the acts constituting a crime, starting from the point where the offender begins the commission of the crime to that point where he still has control over his acts including their (acts) natural course (c) If between those two points, the offender is stopped by reason of any cause outside of his own voluntary desistance, the subjective phase has not been passed and it is merely an attempt. (d) Desistance is an absolutory cause which negates criminal liability because the law encourages a person to desist from committing a crime. (e) But, it does not negate all criminal liability, if the desistance was made when acts done by him already resulted in a felony,

PAGE 16

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

(f) The offender will still be criminally liable for the felony brought about by his act. (g) What is negated is only the attempted stage, but there may be other felonies arising from his act. Note: Desistance is true only in the attempted stage of the felony. (a) If the felony is already in its frustrated stage, desistance will NOT negate criminal liability. (b) In the attempted stage, the definition uses the word directly. (c) The word directly emphasizes the requirement that the attempted felony is that which is directly linked to the overt act performed by the offender, not the felony he has in his mind. (d) There are some acts which are ingredients of a certain crime, but which are, by themselves, already criminal offenses like in the case of People v. Lamahang (1935) where the act of removing the panel indicates only at most the intention to enter, he can only be prosecuted for trespass and not robbery. People v. Campuhan (2000):The mother of the 4year-old victim caught the houseboy Campuhan in the act of almost raping her daughter. The hymen of the victim was still intact. However, since it was decided in People v. Orita that entry into labia is considered rape even without rupture and full penetration of the hymen, a question arises whether what transpired was attempted or consummated rape. Held: (a) There was only attempted rape. (b) Mere touching of external genitalia by the penis is already rape. (c) Touching should be understood as inherently part of entry of penis penetration and not mere touching, in the ordinary sense, of the pudendum. (d) Requires entry into the labia, even if there be no rupture of the hymen or laceration of the vagina, to warrant a conviction for consummated rape. (e) Where entry into the labia has not been established, the crime amounts to an attempted rape. (f) The prosecution did not prove that Campuhans penis was able to penetrate victims vagina because the kneeling position of the accused obstructed the mothers view of the alleged sexual contact. The testimony of the victim herself claimed that penis grazed but did not penetrate her organ. (g) There was only a shelling of the castle but no bombardment of the drawbridge yet.

FRUSTRATED STAGE

Elements: (a) The offender performs all the acts of execution; (b) All the acts performed would produce the felony as a consequence; (c) But the felony is not produced; (d) By reason of causes independent of the will of the perpetrator. (1) The end of the subjective phase and the beginning of the objective phase. (2) Objective phase the result of the acts of execution, that is, the accomplishment of the crime. (3) If the subjective and objective phases have been passed there is a consummated felony. People v. Listerio (2000): Brothers Jeonito and Marlon were walking when they met a group composed of men who blocked their path and attacked them with lead pipes and bladed weapons. One stabbed Jeonito from behind. Jeonitos brother, Marlon, was hit on the head. Held: (1) The SC held that the crime is a frustrated felony not an attempted offense considering that after being stabbed and clubbed twice in the head as a result of which he lost consciousness and fell. Marlon's attackers apparently thought he was already dead and fled. (2) A crime cannot be held to be attempted unless the offender, after beginning the commission of the crime by overt acts, is prevented, against his will, by some outside cause from performing all of the acts which should produce the crime. (3) In other words, to be an attempted crime, the purpose of the offender must be thwarted by a foreign force or agency which intervenes and compels him to stop prior to the moment when he has performed all of the acts which should produce the crime as a consequence, which acts it is his intention to perform. If he has performed all the acts which should result in the consummation of the crime and voluntarily desists from proceeding further, it cannot be an attempt.
CRIMES WHICH DO NOT ADMIT OF FRUSTRATED STAGE

(1) Rape (a) The essence of the crime is carnal knowledge. (b) No matter what the offender may do to accomplish a penetration, if there was no penetration yet, it cannot be said that the offender has performed all the acts of execution.

PAGE 17

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

(c) We can only say that the offender in rape has performed all the acts of executionwhen he has effected a penetration. (d) Once there is penetration, no matter how slight it is, the offense is consummated. For this reason, rape admits only of the attempted and consummated stages, no frustrated stage. [People v. Orita] (2) Arson (a) One cannot say that the offender, in the crime of arson, has already performed all the acts of execution which could produce the destruction of the premises through the use of fire, unless a part of the premises has begun to burn. (b) The crime of arson is therefore consummated even if only a portion of the wall or any part of the house is burned. The consummation of the crime of arson does not depend upon the extent of the damage caused. (People v. Hernandez) (3) Bribery and Corruption of Public Officers (a) The manner of committing the crime requires the meeting of the minds between the giver and the receiver. (b) If there is a meeting of the minds, there is consummated bribery or consummated corruption. (c) If there is none, it is only attempted. (4) Adultery (a) This requires the sexual contact between two participants. (b) If that link is present, the crime is consummated; (5) Physical Injuries (a) Under the Revised Penal Code, the crime of physical injuries is penalized on the basis of the gravity of the injuries. (b) There is no simple crime of physical injuries. There is the need to categorize because there are specific articles that apply whether the physical injuries are serious, less serious or slight. (c) Thus, one could not punish the attempted or frustrated stage because one does not know what degree of physical injury was committed unless it is consummated. (6) Theft (a) Once there is unlawful taking, theft is consummated. (b) Either the thing was taken or not.

(c) Disposition of the stolen goods is not an element of theft under the RPC. Rule of thumb: Felonies that do not require any result do not have a frustrated stage. Factors in Determining the Stage of Execution of a Felony (1) The manner of committing the crime; (2) The elements of the crime; and (3) The nature of the crime itself. These three factors are helpful in trying to pinpoint whether the crime is still in its attempted, frustrated or consummated stage. (1) The Manner of Committing the Crime (a) Formal Crimes - consummated in one instant, no attempt. (i) Ex. Slander and false testimony (ii) There can be no attempt, because between the thought and the deed, there is no chain of acts that can be severed. (b) Crimes consummated by mere attempt or proposal by overt act. (i) Ex. Flight to enemys country (Art. 121) and corruption of minors (Art. 340) (c) Felony by omission (i) There can be no attempted stage when the felony is by omission, because the offender does not execute acts, he omits to perform an act which the law requires him to do. (d) Crimes requiring the intervention of two persons to commit them are consummated by mere agreement. (i) In bribery, the manner of committing the crime requires the meeting of the minds between the giver and the receiver. (ii) When the giver delivers the money to the supposed receiver, but there is no meeting of the minds, the only act done by the giver is an attempt. (e) Material Crimes have three stages of execution Thus, in determining the stage of some crimes, the manner of execution becomes pivotal in determining the end of the subjective phase, i.e. once the offender performs the act in the manner provided for in the law, HE IS ALREADY DEEMED TO HAVE PERFORMED EVERY ACT FOR ITS EXECUTION.

PAGE 18

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

(2) The Elements of the Crime (a) Along with the manner of execution, there are crimes wherein the existence of certain elements becomes the factor in determining its consummation. (b) In the crime of estafa, the element of damage is essential before the crime could be consummated. If there is no damage, even if the offender succeeded in carting away the personal property involved, estafa cannot be considered as consummated. (c) On the other hand, if it were a crime of theft, damage or intent to cause damage is not an element of theft. (d) What is necessary only is intent to gain, not even gain is important. (e) In the crime of abduction, the crucial element is the taking away of the woman with lewd designs. (3) The Nature of the Crime Itself (a) In defining of the frustrated stage of crimes involving the taking of human life (parricide, homicide, and murder),it is indispensable that the victim be mortally wounded. (b) Hence, the general rule is that there must be a fatal injury inflicted, because it is only then that death will follow. CONSPIRACY AND PROPOSAL Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it. (Article 8, RPC). Requisites of conspiracy: (1) Two or more persons come to an agreement. Agreement presupposes meeting of the minds of two or more persons. (2) The agreement pertains to a commission of a felony. (3) The execution of the felony was decided upon. Agreement to effect what has been conceived and determined. Note: There must be participation in the criminal resolution because simple knowledge thereof by a person may only make him liable as an accomplice. General rule: Conspiracy and proposal to commit a felony are not punishable. Exception: They are punishable only in the cases in which the law specially provides a penalty therefore.

Conspiracy to commit (a) Treason (Art. 115) (b) Rebellion (Art. 136) (c) Insurrection (Art. 136) (d) Coup dtat, (Art. 136) (e) Sedition (Art. 141) (f) Monopolies and combinations in restraint of trade, espionage (Art. 186) (g) Illegal association (Art. 147) (h) Highway Robbery (P.D. 532) (i) Espionage (Sec. 3, C.A. 616) (j) Selected acts under the Dangerous Drugs Acts (k) Arson (l) Terrorism (R.A. 9372) Proposal to commit (a) Treason (Art. 115) (b) Coup d etat (Art. 136) (c) Rebellion (Art. 136) (d) Inducement not to answer summons, appear or be sworn in Congress, etc. (Art. 150) Rationale: Conspiracy and proposal to commit a crime are only preparatory acts and the law regards them as innocent or at least permissible except in rare and exceptional cases.
CONSPIRACY AS A FELONY, DISTINGUISHED FROM CONSPIRACY AS A MANNER OF INCURRING CRIMINAL LIABILITY:

(a) As a felony, conspirators do not need to actually commit treason, rebellion, insurrection, etc., it being sufficient that two or more persons agree and decide to commit it. (b) As a manner of incurring criminal liability, if they commit treason, rebellion, etc., they will be held liable for it, and the conspiracy which they had before committing the crime is only a manner of incurring criminal liability, not a separate offense. In conspiracy, the act of one is the act of all. General rule: When the conspiracy is established, all who participated therein, irrespective of the quantity or quality of his participation is liable equally, whether conspiracy is pre-planned or instantaneous. Exception: Unless one or some of the conspirators committed some other crime which is not part of the conspiracy. Exception to the Exception: When the act constitutes a single indivisible offense. Proposal to commit a felony - when the person who has decided to commit a felony proposes its

PAGE 19

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

execution to some other person or persons. [Art. 8, RPC] Examples: (1) Proposal to commit treason (Art. 115) and (2) proposal to commit coup dtat, rebellion or insurrection (Art. 136). Requisites: (1) That a person has decided to commit a felony; and (2) That he proposes its execution to some other person or persons. There is no criminal proposal when: (1) The person who proposes is not determined to commit the felony; (2) There is no decided, concrete and formal proposal; (3) It is not the execution of a felony that is proposed. Note: It is not necessary that the person to whom the proposal is made agrees to commit treason or rebellion. (a) Conspiracy must be established by positive and conclusive evidence, not by conjectures or speculations. [People v. Laurio (1991)] (b) Conspiracy is predominantly a state of mind as it involves the meeting of the minds and intent of the malefactors. Consequently, direct proof is not essential to establish it. [People v. Bello (2004)] (c) To establish conspiracy, evidence of actual cooperation rather than mere cognizance or approval of an illegal act is required. (d) Conspiracy is never presumed; it must be shown to exist as clearly and convincingly as the commission of the crime itself. (e) Mere presence of a person at the scene of the crime does not make him a conspirator for conspiracy transcends companionship. [People v. Comadre (2004)] (f) While it is mandatory to prove conspiracy by competent evidence, direct proof is not essential to show it it may be deduced from the mode, method, and manner by which the offense was perpetrated, or inferred from the acts of the accused themselves when such acts point to a joint purpose and design, concerted action and community of interest. [People v. Cenahonon (2007)] (g) Direct proof is not required, as conspiracy may be proved by circumstantial evidence. It may be established through the collective acts of the accused before, during and after the commission

of a felony that all the accused aimed at the same object, one performing one part and the other performing another for the attainment of the same objective; and that their acts, though apparently independent, were in fact concerted and cooperative, indicating closeness of personal association, concerted action and concurrence of sentiments. [People v. Talaogan (2008)] (h) Doctrine of Implied Conspiracy Conspiracy need not be direct but may be inferred from the conduct of the parties, their joint purpose, community of interest and in the mode and manner of commission of the offense. [People v. Pangilinan (2003)] Legal effects of implied conspiracy are: (a) Not all those present at the crime scene will be considered conspirators; (b) Only those who participated in the criminal acts during the commission of the crime will be considered co-conspirators; (c) Mere acquiescence to or approval of the commission of the crime, without any act of criminal participation, shall not render one criminally liable as co-conspirator. (d) In the absence of any previous plan or agreement to commit a crime, the criminal responsibility arising from different acts directed against one and the same person is individual and not collective, and that each of the participants is liable only for his own acts. (People v. Bagano) (e) A conspiracy is possible even when participants are not known to each other. When several persons who do not know each other simultaneously attack the victim, the act of one is the act of all, regardless of the degree of injury inflicted by any one of them. Everyone will be liable for the consequences. (f) One who desisted is not criminally liable. As pointed out earlier, desistance is true only in the attempted stage. Before this stage, there is only a preparatory stage. Conspiracy is only in the preparatory stage. (g) Do not search for an agreement among participants. If they acted simultaneously to bring about their common intention, conspiracy exists. And when conspiracy exists, do not consider the degree of participation of each conspiracy because the act of one is the act of all. As a general rule, they have equal responsibility. (h) In some exceptional situations, having community of design with the principal does not prevent a malefactor from being regarded as an accomplice if his role in the perpetration of the

PAGE 20

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

homicide or murder was, relatively speaking, of a minor character. (People v. Nierra) Distinctions between the liability of a conspirator and that of a member of a band where the crime committed is robbery which is attended by other crimes. (1) A conspirator is liable only for such other crimes which could be foreseen and which are the natural and logical consequences of the conspiracy. Thus, if the conspiracy is only to rob the victim, rape is not a foreseeable consequence. (People v. Castillo) (2) A member of a band in a robbery cuadrilla, on the other hand, is liable for all assaults, inclusive 2 Concepts of Conspiracy Stage How incurred

of rape and homicide, where he was present when these crimes were being committed but he did not attempt to prevent the same. (Art. 296 (2), RPC). (3) If both conspiracy to rob and cuadrilla are present, both rules may apply, in this manner: (a) If a homicide was committed, the lookout is liable therefore under the conspiracy theory; (b) if a rape was committed and the lookout was present but did not try to prevent it, he will be liable under the cuadrilla rule; and (c) if the lookout was not present when the homicide was committed, he will not be liable for the rape but he will still be liable for the homicide under the conspiracy theory. Legal Requirements Illustration

AS A FELONY IN ITSELF

Preparatory acts

Mere agreement

A, B, C and D came to an agreement to commit rebellion. Their agreement was to ring about the rebellion on a certain date. Even if none of them has performed the act of (1) The RPC must specifically punish the rebellion, there is already act of conspiring (and proposing) criminal liability arising (2) The act MUST NOT BE from the conspiracy to ACCOMPLISHED, else the commit the rebellion. conspiracy is obliterated and the ACT ITSELF IS PUNISHED. But if anyone of them has (3) QUANTUM OF PROOF: Conspiracy committed the overt act of as a crime must be established rebellion, the crime of all is beyond reasonable doubt no longer conspiracy but rebellion itself. This subsists even though the other co-conspirators do not know that one of them had already done the act of rebellion. Three persons plan to rob a bank. For as long as the conspirators merely entered the bank there is no crime yet. But when one of them draws a gun and disarms the security guard, all of them shall be held liable, unless a co-conspirator was absent from the scene of the crime or he showed up, but he tried to prevent the commission of the crime.

AS A BASIS FOR LIABILITY

Executory acts

(1) Participants acted in concert or simultaneously or IN ANY WAY which is indicative of a meeting of the minds towards a common criminal goal or criminal objective. (2) The act of meeting together is not necessary as long as a common Commission objective can be discerned from the of overt act overt acts. (3) THE ACT MUST BE ACCOMPLISHED, if there is only conspiracy or proposal, THERE IS NO CRIME TO BE PUNISHED. (4) QUANTUM OF PROOF: Reasonably inferred from the acts of the offenders when such acts disclose or

PAGE 21

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

2 Concepts of Conspiracy

Stage

How incurred

Legal Requirements show a common pursuit of the criminal objective. [People v. Pinto]

Illustration

MULTIPLE OFFENDERS (DIFFERENCES, RULES, EFFECTS) Recidivism/Reincindencia; Art. 14 (9) Sufficient that the offender have been previously convicted by Crimes final judgment for committed another crime embraced in the same title of the Code on the date of his trial Period of time the No period of time crimes are committed Number of The second conviction for crimes an offense embraced in committed the same title of RPC Habituality/Reiteracion/ Repetition; Art. 14 (10) Quasi-Recidivism; Art. 160 Habitual Delinquency; Art. 62 (5) Specified: (1) less serious or serious physical injuries (2) robbery (3) theft (4) estafa (5) falsification

Before serving or while serving Necessary that the offender sentence, the shall have served out his offender commits a sentence for the first felony (NOT a offense crime)

Before serving or Within 10 years while serving from his last release sentence or conviction The previous and Offender commits a subsequent offenses must felony Guilty the third time NOT be embraced in the or oftener same title of the RPC Imposes the maximum of the penalty for the new An additional Not always an aggravating offense, and cannot penalty shall be circumstance be offset by any imposed mitigating circumstance

Their effects

If not offset by any mitigating circumstance, increase the penalty only to the maximum

RECIDIVISM

HABITUALITY (REITERACION)

Basis: the greater perversity of the offender, as shown by his inclination to commit crimes A recidivist is one who, at the time of his trial for one crime, shall have been previously convicted by final judgment of another crime embraced in the same title of the Revised Penal Code. [People v. Lagarto (1991)] Requisites: (1) Offender is on trial for an offense (2) He was previously convicted by final judgment of another crime (3) Both the first and second offenses are embraced in the same title of the RPC (4) Offender is convicted of the new offense Note: What is controlling is the time of trial, not the time of commission of the crime. [Reyes, The RPC]

Basis: same as recidivism Requisites: (1) Accused is on trial for an offense (2) He previously served sentence (a) for another offense to which the law attaches an equal or greater penalty, OR (b) for two or more crimes to which it attaches lighter penalty than that for the new offense (3) He is convicted of the new offense
QUASI-RECIDIVISM

Art. 160, RPC. Commission of another crime during service of penalty imposed for another offense; Penalty. Besides the provisions of Rule 5 of Article 62, any person who shall commit a felony after having been convicted by final judgment, before beginning to serve such sentence, or while serving

PAGE 22

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

the same, shall be punished by the maximum period of the penalty prescribed by law for the new felony.
HABITUAL DELINQUENCY

Requisites: (1) Offender had been convicted of any of the crimes of serious or less serious physical injuries, robbery, theft, estafa, or falsification (2) After that conviction or after serving his sentence, he again committed, and, within 10 years from his release or first conviction, he was again convicted of any of the said crimes for the second time (3) After his conviction of, or after serving sentence for, the second offense, he again committed, and, within 10 years from his last release or last conviction, he was again convicted of any of said offenses, the third time or oftener. [Art. 62, RPC] Purpose of the law in imposing additional penalty: To render more effective social defense and the reformation of habitual delinquents (Reyes, quoting People v. Abuyen) CONTINUING CRIMES Continuing crime (continuous or continued) - A single crime, consisting of a series of acts but all arising from one criminal resolution. Cuello Calon explains the delito continuado in this way: When the actor, there being unity of purpose and of right violated, commits diverse acts, each one of which, although of a delictual character, merely constitutes a partial execution of a single particular delict, such delictual acts is called delito continuado. Example: One who on several occasions steals wheat deposited in a granary. Each abstraction constitutes theft, but instead of imposing on the culprit different penalties for each theft committed, he is punished for only one hurto continuado for the total sum or value abstracted. Continuing offense - A continuous, unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force, however long a time it may occupy. Although there is a series of acts, there is only one crime committed. Hence, only one penalty shall be imposed. Real or material plurality Continued Crime

Each act performed constitutes a separate crime because each act is generated by a criminal impulse

The different acts constitute only one crime because all of the acts performed arise from one criminal resolution.

People v. De Leon (1926): a thief who took from a yard of a house two game roosters belonging to two different persons was ruled to have committed only one crime of theft, because there is a unity of thought in the criminal purpose of the offender. The accused was animated by a single criminal impulse. A continued crime is not a complex crime. (a) The offender here does not perform a single act, but a series of acts, and one offense is not a necessary means for continuing the other. (b) Hence, the penalty is not to be imposed in its maximum period. (a) A continued crime is different from a transitory crime (moving crime.) in criminal procedure for purposes of determining venue. (b) When a transitory crime is committed, the criminal action may be instituted and tried in the court of the municipality, city or province wherein any of the essential ingredients thereof took place. (c) While Article 48 speaks of a complex crime where a single act constitutes two or more grave or less grave offenses, those cases involving a series of acts resulting to two or more grave and less grave felonies, were considered by the Supreme Court as a complex crime when it is shown that the act is the product of one single criminal impulse. (d) TIP: If confronted with a problem, the Supreme Court has extended this class of complex crime to those cases when the offender performed not a single act but a series of acts as long as it is the product of a single criminal impulse People v. Garcia (1980): (a) The accused were convicts who were members of a certain gang and they conspired to kill the other gang. (b) Some of the accused killed their victims in one place within the same penitentiary, some killed the others in another place within the same penitentiary. (c) The Supreme Court ruled that all accused should be punished under one information because they acted in conspiracy. (d) The act of one is the act of all. (e) Because there were several victims killed and some were mortally wounded, the accused

There is a series of acts performed by the offender.

PAGE 23

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

should be held for the complex crime of multiple homicide with multiple frustrated homicide. (f) There is a complex crime not only when there is a single act but a series of acts. (g) It is correct that when the offender acted in conspiracy, this crime is considered as one and prosecuted under one information. Although in this case, the offenders did not only kill one person but killed different persons, the Supreme Court considered this as complex. Whenever the Supreme Court concludes that the criminals should be punished only once, because they acted in conspiracy or under the same criminal impulse: (a) it is necessary to embody these crimes under one single information. (b) It is necessary to consider them as complex crimes even if the essence of the crime does not fit the definition of Art 48, because there is no other provision in the RPC. Applying the concept of the continued crime, the following cases have been treated as constituting one crime only: (1) People v. Tumlos, (1939): The theft of 13 cows belonging to two different persons committed by the accused at the same place and period of time; (2) People v. Jaranilla, (1974): The theft of six roosters belonging to two different owners from the same coop and at the same period of time; (3) People v. Sabbun, (1964): The illegal charging of fees for service rendered by a lawyer every time he collected veterans benefits on behalf of a client who agreed that attorneys fees shall be paid out of such benefits. The collections of legal fees were impelled by the same motive, that of collecting fees for services rendered, and all acts of collection were made under the same criminal impulse. The Supreme Court declined to apply the concept in the following cases: (1) People v. Dichupa, (1961): Two estafa cases, one which was committed during the period from January 19 to December, 1955 and the other from January 1956 to July 1956. Said acts were committed on two different occasions; (2) People v. CIV: Several malversations committed in May, June and July 1936 and falsifications to conceal said offenses committed in August and October, 1936. The malversations and falsifications were not the result of one resolution to embezzle and falsity;

In the THEFT cases: The trend is to follow the single larceny doctrine: (a) taking of several things, (b) whether belonging to the same or different owners, (c) at the same time and place, constitutes one larceny only. Abandoned is the doctrine that the government has the discretion to prosecute the accused for one offense or for as many distinct offenses as there are victims. Note: The concept of delito continuado has been applied to crimes under special laws since in Art. 10, the RPC shall be supplementary to special laws, unless the latter provides the contrary. COMPLEX CRIMES AND SPECIAL COMPLEX CRIMES Plurality of Crimes (Concursu de delitos) (1) Consists of the successive execution (2) by the same individual (3) of different criminal acts (4) for any of which no conviction has yet been declared. Philosophy behind plural crimes Through the concept of plural crimes, several crimes are treated as one. The purpose of this is to allow leniency towards the offender, who, instead of being made to suffer distinct penalties for every resulting crime is made to suffer one penalty only, although it is the penalty for the most serious one and is imposed in its maximum period. Note: If by complexing the crime, the penalty would turn out to be higher, do not complex anymore. Plurality of Crimes Recidivism

There is no conviction for There must be conviction any of the crimes by final judgment of the committed. first or prior offense. A Complex crime is not just a matter of penalty, but of substance under the Revised Penal Code. Kinds of Plurality of Crimes (1) Real or Material Plurality (a) There are different crimes in law as well as in the conscience of the offender. (b) In such cases, the offender shall be punished for each and every offense that he committed.

PAGE 24

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

(2) Formal or Ideal Plurality (a) There is but one criminal liability in this kind of plurality. (b) Divided into 3 groups: (i) Complex Crimes - When the offender commits either of the complex crimes defined in Art. 48 of the Code. (ii) Special Complex Crimes - When the law specifically fixes a single penalty for 2 or more offenses committed. (iii) Continuing and Continued Crimes - A single crime consisting of a series of acts but all arising from one criminal resolution. COMPLEX CRIMES Art. 48. Penalty for complex crimes. When a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period. Art. 48 requires the commission of at least 2 crimes. But the two or more GRAVE or LESS GRAVE felonies must be (1) the result of a single act, or (2) an offense must be a necessary means for committing the other. Nature of complex crimes (a) Although two or more crimes are actually committed, they constitute only one crime, in the eyes of the law; and in the conscience of the offender. (b) Even in the case where an offense is a necessary means for committing the other, the evil intent of the offender is only one. Hence, there is only one penalty imposed for the commission of a complex crime. No complex crime when: (1) Two or more crimes are committed, but not by a single act; (2) Committing one crime is not a necessary means for committing the other (or others). [Monteverde v. People (2002)]
TWO KINDS OF COMPLEX CRIMES

(b) That the single acts produces: (i) 2 or more grave felonies, or (ii) 1 or more grave and 1 or more less grave felonies, or (iii) 2 or more less grave felonies Single Act Several Acts

Throwing a hand Submachine gun because of grenade the number of bullets released A single bullet Firing of the revolver twice in killing two person succession Light felonies produced by the same act should be treated and punished as separate offenses or may be absorbed by the grave felony. Illustration: When the crime is committed by force or violence, slight physical injuries are absorbed. So that when an offender performed more than one act, although similar, if they result in separate crimes, (i) there is no complex crime at all, (ii) instead, the offender shall be prosecuted for as many crimes as are committed under separate information. Compound crimes under Art. 48 is also applicable to crimes through negligence. Thus, a municipal mayor who accidentally discharged his revolver, killing a girl and injuring a boy was found guilty of complex crime of homicide with less serious physical injuries through reckless imprudence. (People v. Castro) Example of a compound crime: The victim was killed while discharging his duty as barangay captain to protect life and property and enforce law and order in his barrio. The crime is a complex crime of homicide with assault upon a person in authority. When in obedience to an order several accused simultaneously shot many persons, without evidence how many each killed, there is only a single offense, there being a single criminal impulse. (2) Complex Crime Proper (Delito Complejo) (a) An offense is a necessary means for committing the other. (b) In complex crime, when the offender executes various acts, he must have a single purpose. (c) But: When there are several acts performed, the assumption is that each act is impelled

(1) Compound Crime (Delito Compuesto) A single act results in two or more grave or less grave felonies. Requisites: (a) That only a single act is performed by the offender
PAGE 25

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

by a distinct criminal impulse, hence each will have a separate penalty. Requisites: (1) That at least two offenses are committed (2) That one or some of the offenses must be necessary to commit the other (3) That both or all the offenses must be punished under the same statute. Note: The phrase necessary means does not mean indispensable means No complex crime proper: (1) Subsequent acts of intercourse, after forcible abduction with rape, are separate acts of rape. (2) Not complex crime when trespass to dwelling is a direct means to commit a grave offense. (3) No complex crime, when one offense is committed to conceal the other. (4) When the offender already had in his possession the funds which he misappropriated, the subsequent falsification of a public or official document involving said offense is a separate offense. (5) No complex crime where one of the offenses is penalized by a special law. (6) There is no complex crime of rebellion with murder, arson, robbery, or other common crimes (People v. Hernandez; Enrile v. Salazar). (7) In case of continuous crimes. (8) When the other crime is an indispensable element of the other offense. General rules in complexing crimes: (1) When two crimes produced by a single act are respectively within the exclusive jurisdiction of two courts of different jurisdiction, the court of higher jurisdiction shall try the complex crime. (2) The penalty for complex crime is the penalty for the most serious crime, the same to be applied in its maximum period. (3) When two felonies constituting a complex crime are punishable by imprisonment and fine, respectively, only the penalty of imprisonment should be imposed. (4) Art. 48 applies only to cases where the Code does not provide a definite specific penalty for a complex crime. (5) One information should be filed when a complex crime is committed. (6) When a complex crime is charged and one offense is not proven, the accused can be convicted of the other. (7) Art. 48 also applies in cases when out of a single act of negligence or imprudence, two or more

grave or less grave felonies resulted, but only the first part is applicable, i.e. compound crime. The second part of Art. 48 does not apply, referring to the complex crime proper because this applies or refers only to a deliberate commission of one offense to commit another offense. SPECIAL COMPLEX/COMPOSITE CRIMES The substance is made up of more than one crime but which in the eyes of the law is only (1) a single indivisible offense. (2) all those acts done in pursuance of the crime agreed upon are acts which constitute a single crime. Special Complex Crimes (a) Robbery with Homicide (Art. 294 (1)) (b) Robbery with Rape (Art. 294 (2)) (c) Robbery with Arson (d) Kidnapping with serious physical injuries (Art. 267 (3)) (e) Kidnapping with rape (f) Rape with Homicide (Art. 335) (g) Arson with homicide When crimes involved cannot be legally complexed: (1) Malicious obtention or abusive service of search warrant (Art. 129) with perjury; (2) Bribery (Art. 210) with infidelity in the custody of prisoners; (3) Maltreatment of prisoners (Art. 235) with serious physical injuries; (4) Usurpation of real rights (Art. 312) with serious physical injuries; and (5) Abandonment of persons in danger (Art. 275) and crimes against minors (Art. 276 to 278) with any other felony.

PAGE 26

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

Circumstances Affecting Criminal Liability


JUSTIFYING NO WRONG EXEMPTING MITIGATING AGGRAVATING ALTERNATIVE THERE IS A FELONY THERE IS A WRONG THERE IS A FELONY THERE IS A FELONY Decreased criminal Increased liability liability With civil liability

No criminal liability No criminal liability No civil liability Except: state of necessity With civil liability Except: accident; insuperable cause

criminal Increased or decreased liability With civil liability

With civil liability

Imputability is the quality by which an act may be ascribed to a person as it author or owner. It implies that the act committed has been freely and consciously done and may, therefore, be put down to th doer as his very own Responsibility is the obligation of suffering the consequences of crime. It is the obligation of taking the penal and civil consequences of the crime. Imputability distinguished from responsibility while imputability implies that a deed may be imputed to a person, responsibility implies that the person must take the consequences of such a deed. Guilt is an element of responsibility, for a man cannot be made to answer for the consequences of a crime unless he is guilty. [Reyes, The RPC] JUSTIFYING CIRCUMSTANCES SIX TYPES of Justifying Circumstances: (1) Self defense (2) Defense of relatives (3) Defense of strangers (4) Avoidance of a greater evil (5) Fulfillment of duty (6) Obedience to an order issued for some lawful purpose.. Justifying Circumstances those where the act of a person is said to be in accordance with law, so that such person is deemed not to have transgressed the law and is free from both criminal and civil liability. There is no civil liability except in par. 4, Art. 11, where the civil liability is borne by the persons benefited by the act. Basis: Lack of criminal intent

(a) An affirmative defense, hence, the burden of proof rests on the accused who must prove the circumstance by clear and convincing evidence. (b) There is NO crime committed, the act being justified. Thus, such persons cannot be considered criminals. Par. 1. Self Defense Includes not only the defense of the person or body of the one assaulted but also that of his rights, the enjoyment of which is protected by law. It includes: (a) The defense of honor. Hence, a slap on the face is considered as unlawful aggression since the face represents a person and his dignity. (Rugas vs, People) (b) The defense of property rights can be invoked if there is an attack upon the property although it is not coupled with an attack upon the person of the owner of the premises. All the elements for justification must however be present. (People v. Narvaez) Elements: (URL) (1) Unlawful aggression (2) Reasonable necessity of means employed to prevent or repel it. (3) Lack of sufficient provocation on the part of the person defending himself. Unlawful aggression (a) Equivalent to an actual physical assault; OR threatened assault of an immediate and imminent kind which is offensive and positively strong, showing the wrongful intent to cause harm. (b) The aggression must constitute a violation of the law. When the aggression ceased to exist, there is no longer a necessity to defend ones self. EXCEPT: when the aggressor retreats to obtain a more advantageous position to ensure the

PAGE 27

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

success of the initial attack, unlawful aggression is deemed to continue. (c) Must come from the person attacked by the accused. (d) Unlawful aggression must also be a continuing circumstance or must have been existing at the time the defense is made. Once the unlawful aggression is found to have ceased, the one making the defense of a stranger would likewise cease to have any justification for killing, or even just wounding, the former aggressor. [People vs. Dijan (2002)] Note: No unlawful aggression when there was an agreement to fight and the challenge to fight was accepted. BUT aggression which is ahead of an agreed time or place is unlawful aggression. Stand ground when in the right the law does not require a person to retreat when his assailant is rapidly advancing upon him with a deadly weapon. The reason for the rule is that one flees from an aggressor, he runs the risk of being attacked in the back by the aggressor. Reasonable necessity of means employed to prevent or repel it Test of reasonableness The means employed depends upon: (a) nature and quality of the weapon used by the aggressor (b) aggressors physical condition, character, size, and other circumstances (c) and those of the person defending himself (d) the place and occasion of the assault. Lack of sufficient provocation on part of defender (a) In case there was a provocation on the part of the person attacked, the attack should not immediately precede the provocation for defense to be valid. (b) Never confuse unlawful aggression with provocation. (c) Mere provocation is not enough. It must be real and imminent. Unlawful aggression is an indispensable requisite. (d) If there is unlawful aggression but one of the other requisites is lacking, it is considered an incomplete self-defense which mitigates liability. (e) Self-defense includes the defense of ones rights, that is, those rights the enjoyment of which is protected by law. (f) Retaliation is different from an act of selfdefense.

Retreat of aggressor aggression ceases, except when retreat is made to take a more advantageous position to insure the success of the attack, unlawful aggression continues. (a) Defense of Honor People v. Dela Cruz (1935):Accused was found guilty of homicide for stabbing and killing Rivera. Prosecution claimed that Dela Cruz and Rivera had a relationship and that the accused was madly in love with the deceased and was extremely jealous of another woman with whom Rivera also had a relationship. Dela Cruz claimed, on the other hand, that on her way home one evening, Rivera followed her, embraced and kissed her and touched her private parts. She didnt know that it was Rivera and that she was unable to resist the strength of Rivera so she got a knife from her pocket and stabbed him in defense of her honor. Held: She is justified in using the pocketknife in repelling what she believed to be an attack upon her honor. It was a dark night and she could not have identified Rivera. There being no other means of selfdefense. People v. Jaurigue (1946):Amado (deceased) has been courting the accused Avelina in vain. On the day of the crime, Avelina and Amado were in Church. Amado sat beside Avelina and placed his hand on her thigh. Thereafter, Avelina took out her knife and stabbed Amado in the neck, causing the death of Amado. Held: Although the defense of ones honor exempts one from criminal liability, it must be proved that there is actual danger of being raped. In this case, 1) the church was well-lit, 2) there were several people in the church, including the father of the accused and other town officials. In light of these circumstances, accused could not have possibly been raped. The means employed in defense of her honor was evidently excessive. (b) Defense of Property People vs. Apolinar. This can only be invoked as justifying circumstance if (1) Life and limb of the person making the defense is also the subject of unlawful aggression (2) Life cannot be equal to property. People v. Narvaez (1983):Narvaez was taking his rest

PAGE 28

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

inside his house when he heard that the wall of his house was being chiseled. He saw that Fleischer and Rubia, were fencing the land of the father of the deceased Fleischer. He asked the group to stop but they refused. The accused got mad so he got his shotgun and shot Fleischer. Rubia ran towards the jeep and knowing there is a gun on the jeep, the accused fired at Rubia as well. Narvaez claimed he acted in defense of his person and rights. Held: There was aggression by the deceased not on the person of the accused but on his property rights when Fleischer angrily ordered the continuance of the fencing. The third element of self-defense is also present because there was no sufficient provocation on the part of Narvaez since he was sleeping when the deceased where fencing. However, the second element was lacking. Shooting the victims from the window of his house is disproportionate to the physical aggression by the victims. Thus, there is incomplete self-defense. Par. 2. Defense of Relatives Elements: (1) Unlawful aggression (a) Unlawful aggression may not exist as a matter of fact; it can be made to depend upon the honest belief of the one making the defense. (b) Reason: The law acknowledges the possibility that a relative, by virtue of blood, will instinctively come to the aid of their relatives. (2) Reasonable necessity of means employed to prevent or repel it (3) In case the provocation was given by the person attacked, the one making the defense had no part therein Although the provocation prejudices the person who gave it, its effects do not reach the defender who took no part therein, because the latter was prompted by some noble or generous sentiment in protecting and saving a relative Basis: It is found not only upon a humanitarian sentiment, but also upon the impulse of blood which impels men to rush, on the occasion of great perils, to the rescue of those close to them by ties of blood. Relatives entitled to defense: (SADSAC) (1) Spouse (2) Ascendants (3) Descendants (4) Legitimate, natural or adopted Brothers/Sisters (5) Relatives by Affinity in the same degree
PAGE 29

(6) Relatives by Consanguinity w/in the 4th civil degree Balunueco v. CA (2003): Of the three (3) requisites of defense of relatives, unlawful aggression is a condition sine qua non, for without it any defense is not possible or justified. In order to consider that an unlawful aggression was actually committed, it is necessary that an attack or material aggression, an offensive act positively determining the intent of the aggressor to cause an injury shall have been made;a mere threatening or intimidating attitude is not sufficient to justify the commission of an act which is punishable per se, and allow a claim of exemption from liability on the ground that it was committed in self-defense or defense of a relative. Par. 3. Defense of Strangers Elements: (1) Unlawful aggression; (2) Reasonable necessity of the means employed to prevent or repel it; (3) The person defending was not induced by revenge, resentment or other evil motive. Stranger any person not included in the enumeration of relatives under [par. 2 of Art. 11] If the person being defended is a second cousin, it will be defense of stranger. Basis: What one may do in his defense, another may do for him. The ordinary man would not stand idly by and see his companion killed without attempting to save his life. Par. 4. Avoidance of a Greater Evil Elements: (1) Evil sought to be avoided actually exists The evil or injury sought to be avoided must not have been produced by the one invoking the justifying circumstances. (2) Injury feared be greater than that done to avoid it (3) There is no other practical & less harmful means of preventing it. General rule: No civil liability in circumstances because there is no crime. justifying

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

Exception: There is CIVIL LIABILITY under this paragraph. Persons benefited shall be liable in proportion to the benefit which they have received. Ty v. People (2004):Ty's mother and sister were confined at the Manila Doctors' Hospital. Ty signed the "Acknowledgment of Responsibility for Payment" in the Contract of Admission. The total hospital bills of the two patients amounted to P1,075,592.95. Ty executed a promissory note wherein she assumed payment of the obligation in installments. To assure payment of the obligation, she drew 7 postdated checks against Metrobank payable to the hospital which were all dishonored by the drawee bank due to insufficiency of funds. As defense, Ty claimed that she issued the checks because of an uncontrollable fear of a greater injury. She averred that she was forced to issue the checks to obtain release for her mother who was being inhumanely treated by the hospital. She alleged that her mother has contemplated suicide if she would not be discharged from the hospital. Ty was found guilty by the lower courts of 7 counts of violation of BP22. Held: The court sustained the findings of the lower courts. The evil sought to be avoided is merely expected or anticipated. So the defense of an uncontrollable fear of a greater injury is not applicable. Ty could have taken advantage of an available option to avoid committing a crime. By her own admission, she had the choice to give jewelry or other forms of security instead of postdated checks to secure her obligation. Moreover, for the defense of state of necessity to be availing, the greater injury feared should not have been brought about by the negligence or imprudence, more so, the willful inaction of the actor. In this case, the issuance of the bounced checks was brought about by Ty's own failure to pay her mother's hospital bills. Par. 5. Fulfillment of Duty or Lawful Exercise of Right or Office Elements: (1) Offender acted in performance of duty or lawful exercise of a right or office; (2) That the injury caused or the offense committed be the necessary consequence of the due performance of duty or the lawful exercise of such right or office. If the first condition is present, but the second is not because the offender acted with culpa, the offender will be entitled to a privileged mitigating

circumstance. The penalty would be reduced by one or two degrees.

People v. Ulep (2000):Accused-appellant and the other police officers involved originally set out to restore peace and order at Mundog Subdivision where the victim was then running amuck. The victim threatened the safety of the police officers despite accused-appellant's previous warning shot and verbal admonition to the victim to lay down his weapon. Held: As a police officer, it is to be expected that accused-appellant would stand his ground. Up to that point, his decision to respond with a barrage of gunfire to halt the victim's further advance was justified under the circumstances. A police officer is not required to afford the victim the opportunity to fight back. Neither is he expected when hard pressed and in the heat of such an encounter at close quarters to pause for a long moment and reflect coolly at his peril, or to wait after each blow to determine the effects thereof. But he cannot be exonerated from overdoing his duty when he fatally shot the victim in the head, even after the latter slumped to the ground due to multiple gunshot wounds sustained while charging at the police officers. Sound discretion and restraint dictated that a veteran policeman should have ceased firing at the victim the moment he saw the latter fall to the ground. The victim at that point no longer posed a threat. Shooting him in the head was obviously unnecessary. The law does not clothe police officers with authority to arbitrarily judge the necessity to kill- it must be stressed that their judgment and discretion as police officers in the performance of their duties must be exercised neither capriciously nor oppressively, but within reasonable limits. Mamagun v. People (2007):A policeman in pursuit of a snatcher accidentally shot one of the bystanders who were actually helping him chase the snatcher. Held: To be sure, acts in the fulfillment of a duty, without more, do not completely justify the petitioners firing the fetal gunshot at the victim. True, petitioner, as one of the policemen responding to a reported robbery then in progress, was performing his duty as a police officer as well as when he was trying to effect the arrest of the suspected robber and in the process, fatally shoot said suspect, albeit the wrong man. However, in the absence of the equally necessary justifying

PAGE 30

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

circumstance that the injury of offense committed be the necessary consequence if the due performance of such duty, there can only be incomplete justification, a privilege mitigating circumstance under Art. 13 and 69 of the RPC. There can be no quibbling that there was no rational necessity for the killing of Contreras. Petitioner could have first fired a warning shot before pulling the trigger against Contreras who was one of the residents chasing the suspected robber. People v. Delima (1922):Napilon escaped from the jail where he was serving sentence. Some days afterwards the policeman, Delima, who was looking for him found him in the house of Alegria, armed with a pointed piece of bamboo in the shape of a lance. Delima demanded the surrender of the weapon but Napilon refused. Delima fired his revolver to impose his authority but the bullet did not hit him. The criminal ran away and Delima went after him and fired again his revolver this time hitting and killing him. Held: The killing was done in the performance of a duty. The deceased was under the obligation to surrender and had no right, after evading service of his sentence, to commit assault and disobedience with a weapon in his hand, which compelled the policeman to resort to such extreme means, which, although it proved to be fatal, was justified by the circumstance. Par. 6. Obedience to an order issued for some lawful purpose Elements: (1) Order must have been issued by a superior (2) The order is for some lawful purpose (3) The means used to carry it out must be lawful (c) A subordinate is not liable for carrying out an illegal order of his superior if he is not aware of the illegality of the order and he is not negligent. People v. Oanis (1943):Although an officer in making a lawful arrest is justified in using such force as is reasonably necessary to secure and detain the offender, overcome his resistance, prevent his escape, recapture him if he escapes, and protect himself from bodily harm, yet he is never justified in using unnecessary force or in treating him with wanton violence or in resorting to dangerous means when the arrest could be effected otherwise. People v. Beronilla (1955):Where the accused acted upon orders of superior officers that the, as military

subordinates, could not question, and obeyed in good faith, without being aware of their illegality, without any fault or negligence on their part, the act is not accompanied by criminal intent. A crime is not committed if the mind of the person performing the act be innocent..
JUSTIFYING VS. EXEMPTING CIRCUMSTANCE

Justifying Circumstance

Exempting Circumstance

It affects the act, not the It affects the actor, not the actor. act. The act is considered to have been done within the The act complained of is bounds of law; hence, actually wrongful, but the legitimate and lawful in actor is not liable. the eyes of the law. Since the act complained of is actually wrong, there Since the act is is a crime but since the considered lawful, there is actor acted without no liability. voluntariness, there is no dolo or culpa. There is a crime, although there is no criminal, so There is no criminal or there is civil liability civil liability. (Except: Art. 12, par. 4 and 7 where there is no civil liability.
ANTI-VIOLENCE AGAINST WOMEN AND THEIR CHILDREN ACT OF 2004 (RA 9262)

Battered Woman Syndrome- refers to a scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of cumulative abuse. Battered Woman Syndrome as a Defense. Victimsurvivors who are found by the courts to be suffering from battered woman syndrome do not incur any criminal and civil liability notwithstanding the absence of any of the elements for justifying circumstances of self-defense under the Revised Penal Code. In the determination of the state of mind of the woman who was suffering from battered woman syndrome at the time of the commission of the crime, the courts shall be assisted by expert psychiatrists/ psychologists [SECTION 26, RA 9262]

PAGE 31

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

The battered woman syndrome is characterized by a CYCLE OF VIOLENCE, which is made up of three phases [People v. Genosa]. (1) First Phase: Tension Building Phase (a) Where minor battering occurs, it could be a verbal or slight physical abuse or another form of hostile behavior. (b) The woman tries to pacify the batterer through a show of kind, nurturing behavior, or by simply staying out of the way. (c) But this proves to be unsuccessful as it only gives the batterer the notion that he has the right to abuse her. (2) Second Phase: Acute Battering Incident (a) Characterized by brutality, destructiveness, and sometimes death. (b) The battered woman has no control; only the batterer can stop the violence. (c) The battered woman realizes that she cannot reason with him and resistance would only worsen her condition. (3) Third Phase: Tranquil Period (a) Characterized by guilt on the part of the batterer and forgiveness on the part of the woman. (b) The batterer may show a tender and nurturing behavior towards his partner and the woman also tries to convince herself that the battery will never happen again and that her partner will change for the better. Four Characteristics of the Syndrome: (1) The woman believes that the violence was her fault; (2) She has an inability to place the responsibility for the violence elsewhere; (3) She fears for her life and/or her childrens life (4) She has an irrational belief that the abuser is omnipresent and omniscient. EXEMPTING CIRCUMSTANCES SIX TYPES of Exempting Circumstances: (1) Imbecility/Insanity (2) Minority (3) Accident (4) Compulsion of irresistible force (5) Impulse of uncontrollable fear (6) Insuperable or lawful cause Exempting circumstances those grounds for exemption from punishment because there is wanting in the agent of the crime any of the
PAGE 32

conditions which make the act voluntary or negligent. The reason for the exemption lies on the complete absence of intelligence, freedom of action, or intent, or on the absence of negligence on the part of the accused. (1) One who acts without intelligence, freedom of action or intent does not act with malice. (2) One who acts without intelligence, freedom of action or fault does not act with negligence. Par. 1. Insanity or Imbecility Imbecile - One who, while advanced in age, has a mental development comparable to that of a child between 2 and 7 years of age. Exempt in all cases from criminal liability Insane - There is a complete deprivation of intelligence in committing the act but capable of having lucid intervals. (a) During a lucid interval, the insane acts with intelligence and thus, is not exempt from criminal liability. (b) Insanity is a defense in the nature of confession and avoidance and must be proved beyond reasonable doubt. Note: There is another school of thought that believes that insanity, as with other such defenses, need only be proved to a degree sufficient to raise a reasonable doubt of guilt. Evidence of insanity must refer to: (a) the time preceding the act under prosecution or (b) at the very moment of its execution. (1) Insanity subsequent to commission of crime is not exempting (2) Feeblemindedness is not imbecility. It is necessary that there is a complete deprivation of intelligence in committing the act, that is, the accused be deprived of reason, that there is no responsibility for his own acts; that he acts without the least discernment; that there be complete absence of the power to discern, or that there be a complete deprivation of the freedom of the will. [People vs. Formigones] Cases covered under this article: (1) Dementia praecox Note: Cited in OLD cases, but is a term no longer used by mental health practitioners (2) Kleptomania: if found by a competent psychiatrist as irresistible (3) Epilepsy

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

(4) Somnambulism: sleep-walking(People vs. Taneo) (5) Malignant malaria: which affects the nervous system People vs. Dungo:The insanity that is exempting is limited only to mental aberration or disease of the mind and must completely impair the intelligence of the accused. Two tests of insanity: (1) The test of COGNITION, or whether the accused acted with complete deprivation of intelligence in committing the said crime; (2) The test of VOLITION, or whether the accused acted in total deprivation of freedom of will. (People vs. Rafanan) Juridical Effects of Insanity (1) If present at the time of the commission of the crime EXEMPT from liability. (2) If present during trial proceedings will be SUSPENDED and accused is committed to a hospital. (3) After judgment or while serving sentence Execution of judgment is SUSPENDED, the accused is committed to a hospital. The period of confinement in the hospital is counted for the purpose of the prescription of the penalty. Basis: Complete absence of intelligence Par. 2.& 3. Minority (Superseded by RA 9344)
JUVENILE JUSTICE AND WELFARE ACT OF 2006 (R.A. 9344); ALSO REFER TO CHILD AND YOUTH WELFARE CODE (P.D. 603, AS AMENDED)

Sec. 6, RA 9344. Minimum Age of Criminal Responsibility. - A child fifteen (15) years of age or under at the time of the commission of the offense shall be exempt from criminal liability. However, the child shall be subjected to an intervention program pursuant to Section 20 of this Act. A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from criminal liability and be subjected to an intervention program, unless he/she has acted with discernment, in which case, such child shall be subjected to the appropriate proceedings in accordance with this Act. The exemption from criminal liability herein established does not include exemption from civil liability, which shall be enforced in accordance with existing laws.. (c) Determination of Age [Sec. 7, RA 9344] Presumption: Minority of child in conflict with the law. S/he shall enjoy all the rights of a child in conflict with the law until s/he is proven to be 18 years old or older. The age of a child may be determined from: (1) The childs birth certificate, (2) Baptismal certificate, or (3) Any other pertinent documents. In the absence of these documents, age may be based on: (1) Information from the child himself/herself, (2) Testimonies of other persons, (3) The physical appearance of the child, and (4) Other relevant evidence. In case of doubt as to the childs age, it shall be resolved in his/her favor. (d) Exemption from criminal liability (1) 15 yrs old or below at the time of commission of offense: ABSOLUTELY EXEMPT from criminal liability but subject to intervention program (2) Over 15 yrs old but below 18: EXEMPT from criminal liability & subject to intervention program If acted w/ discernment subject to diversion program (3) Below 18 yrs are exempt from: (a) Status offense (b) Vagrancy and Prostitution
PAGE 33

What is the Juvenile Justice and Welfare System? "Juvenile Justice and Welfare System" refers to a system dealing with children at risk and children in conflict with the law, which provides childappropriate proceedings, including programs and services for prevention, diversion, rehabilitation, reintegration and aftercare to ensure their normal growth and development. [Title V: Juvenile Justice and Welfare System of RA 9344] (a) Definition of child in conflict with the law Sec. 4 (e), RA 9344."Child in conflict with the law" a child who is alleged as, accused of, or adjudged as, having committed an offense under Philippine laws.

(b) Minimum age of criminal responsibility

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

(c) Mendicancy (PD1563) (d) Sniffing of Rugby (PD 1619) Discernment mental capacity to understand the difference between right and wrong as determined by the childs appearance , attitude, comportment and behavior not only before and during the commission of the offense but also after and during the trial. It is manifested through: (1) Manner of committing a crime Thus, when the minor committed the crime during nighttime to avoid detection or took the loot to another town to avoid discovery, he manifested discernment. (2) Conduct of the offender The accused shot the victim with his sling shot and shouted Putang ina mo. Note: The exemption from criminal liability shall not include exemption from civil liability. Automatic Suspension of Sentence Once the child who is under eighteen (18) years of age at the time of the commission of the offense is found guilty of the offense charged, the court shall determine and ascertain any civil liability which may have resulted from the offense committed. However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict with the law under suspended sentence, without need of application: Provided, however, That suspension of sentence shall still be applied even if the juvenile is already eighteen years (18) of age or more at the time of the pronouncement of his/her guilt. Upon suspension of sentence and after considering the various circumstances of the child, the court shall impose the appropriate disposition measures as provided in the Supreme Court Rule on Juveniles in Conflict with the Law. (Sec. 38) Discharge of the Child in Conflict with the Law - Upon the recommendation of the social worker who has custody of the child, the court shall dismiss the case against the child whose sentence has been suspended and against whom disposition measures have been issued, and shall order the final discharge of the child if it finds that the objective of the disposition measures have been fulfilled. The discharge of the child in conflict with the law shall not affect the civil liability resulting from the commission of the offense, which shall be enforced in accordance with law. (Sec. 39)

If it has been determined that the child taken into custody is fifteen (15) years old or below, the authority which will have an initial contact with the child has the duty to: (1) Immediately release the child to the custody of his/her parents or guardian, or in the absence thereof, the child's nearest relative. (2) Shall give notice to the local social welfare and development officer who will determine the appropriate programs in consultation with the child and to the person having custody over the child. (3) If the parents, guardians or nearest relatives cannot be located, or if they refuse to take custody, the child may be released to any of the following: (a) a duly registered nongovernmental or religious organization; (b) a barangay official or a member of the Barangay Council for the Protection of Children (BCPC); (c) a local social welfare and development officer; or when and where appropriate, the DSWD. (4) If the child referred to herein has been found by the Local Social Welfare and Development Office to be abandoned, neglected or abused by his parents, or in the event that the parents will not comply with the prevention program, the proper petition for involuntary commitment shall be filed by the DSWD or the Local Social Welfare and Development Office pursuant to Presidential Decree No. 603, otherwise ,known as "The Child and Youth Welfare Code". (f) Status offenses under Sec. 57 of RA 9344 Sec. 57. Status Offenses. - Any conduct not considered an offense or not penalized if committed by an adult shall not be considered an offense and shall not be punished if committed by a child (g) Offenses not applicable to children under Sec. 58 of RA 9344 Persons below eighteen (18) years of age shall be exempt from prosecution for the crime of: (1) vagrancy and prostitution under Section 202 of the Revised Penal Code, (2) mendicancy under Presidential Decree No. 1563, and (3) sniffing of rugby under Presidential Decree No. 1619, (a) Such prosecution being inconsistent with the United Nations Convention on the Rights of the Child
PAGE 34

(e) Treatment of child below age of responsibility [Sec. 20, RA 9344]

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

(b) Provided, that said persons shall undergo appropriate counseling and treatment program. Basis: Complete absence or lack of intelligence. Par. 4. Accident Accident - something that happens outside the sway of our will and, although coming about through some act of our will, lies beyond the bounds of humanly foreseeable consequences. Under Article 12, paragraph 4, the offender is exempt not only from criminal but also from civil liability. Elements: (1) A person is performing a lawful act; (2) With due care; (3) He causes an injury to another by mere accident; (4) Without fault or intention of causing it. Basis: Lack of negligence and intent. Par. 5. Irresistible Force Elements: (1) That the compulsion is by means of physical force; (2) That the physical force must be irresistible; (3) That the physical force must come from a third person. Note: Before a force can be considered to be an irresistible one, it must produce such an effect on the individual that, in spite of all resistance, it reduces him to a mere instrument and, as such, incapable of committing the crime. (Aquino, Revised Penal Code) To be exempt from criminal liability, a person invoking irresistible force must show that the force exerted was such that it reduced him to a mere instrument who acted not only without will but against his will. [People v. Lising (1998)] Basis: Complete absence of freedom. Par. 6. Uncontrollable Fear Elements: (1) That the threat which causes the fear is of an evil greater than or at least equal to, that which he is forced to commit; (2) That it promises an evil of such gravity and imminence that the ordinary man would have succumbed to it.

A threat of future injury is not enough. The compulsion must be of such a character as to leave no opportunity to the accused for escape or self-defense in equal combat. Basis: Complete absence of freedom. Irresistible Force Irresistible force must operate directly upon the person of the accused and the injury feared may be a lesser degree than the damage caused by the accused. Uncontrollable Fear Uncontrollable fear may be generated by a threatened act directly to a third person such as the wife of the accused, but the evil feared must be greater or at least equal to the damage caused to avoid it. Offender employs intimidation or threat in compelling another to commit a crime.

Offender uses physical force or violence to compel another person to commit a crime.

Par. 7. Insuperable or Lawful Causes Insuperable means insurmountable. A cause which has lawfully, morally or physically prevented a person to do what the law commands. Elements: (1) That an act is required by law to be done; (2) That a person fails to perform such act; (3) That his failure to perform such act was due to some lawful or insuperable cause Basis: Lack of intent. People v. Bandian (1936):A woman cannot be held liable for infanticide when she left her newborn child in the bushes without being aware that she had given birth at all. Severe dizziness and extreme debility made it physically impossible for Bandian to take home the child plus the assertion that she didnt know that she had given birth. MITIGATING CIRCUMSTANCES TWELVE TYPES of Mitigating Circumstances: (1) Incomplete Justification and Exemption (2) Under 18 or Over 70 years of age (3) No intention to commit so grave a wrong (4) Sufficient Provocation or Threat (5) Immediate vindication of a grave offense (6) Passion or obfuscation (7) Voluntary surrender (8) Voluntary plea of guilt (9) Plea to a lower offense
PAGE 35

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

(10) Physical defect (11) Illness (12) Analogous Circumstances Mitigating circumstances or causas attenuates are those which, if present in the commission of the crime, do not entirely free the actor from criminal liability, but serve only to reduce the penalty. Basis: They are based on the diminution of either freedom of action, intelligence or intent or on the lesser perversity of the offender. However, voluntary surrender and plea of guilt which, being circumstances that occur after the commission of the offense, show the accuseds respect for the law (voluntary surrender) and remorse and acceptance of punishment (plea of guilt), thereby necessitating a lesser penalty to effect his rehabilitation (based on the Positivist School) (a) The circumstances under Article 13 are generally ordinary mitigating. However, paragraph 1, is treated as a privileged mitigating circumstance if majority of the requisites concurred, otherwise, it will be treated as an ordinary mitigating circumstance. (Reyes, citing Art. 69). (b) Correlate Article 13 with Articles 63 and 64. Article 13 is meaningless without knowing the rules of imposing penalties under Articles 63 and 64. TIP: In bar problems, when you are given indeterminate sentences, these articles are very important.
ORDINARY V. PRIVILEGED MITIGATING CIRCUMSTANCE

(1) (2) (3) (4) (5) (6)

Self-defense (Art. 11, par. 1) Defense of relatives (Art. 11, par. 2) Defense of strangers (Art. 11, par. 3) State of necessity (Art. 11, par. 4) Performance of duty (Art. 11, par. 5) Obedience to the order of superiors (Art. 11, par. 6) (7) Minority over 15 years of age but below 18 years of age (Art. 12, par. 3) (8) Causing injury by mere accident (Art. 12, par.4) (9) Uncontrollable fear (Art. 12 par. 6)
INCOMPLETE JUSTIFYING CIRCUMSTANCES:

(a) Incomplete self-defense, defense of relatives, defense of stranger In these 3 classes of defense, UNLAWFUL AGGRESSION must always be present. It is an indispensable requisite. Par. 1 of Art. 13 is applicable only when (1) unlawful aggression is present (2) but one or both of the other 2 requisites are not present in any of the cases referred to in circumstances number 1, 2 and 3 or Art. 11. Note: When two of the three requisites mentioned therein are present, the case must be considered as a privileged mitigating circumstance referred to in Art. 69 of this Code. (Article 69 requires that a majority of the conditions required must be present.) (b) Incomplete justifying circumstance of avoidance of greater evil or injury Requisites under par. 4 of Art. 11: (1) That the evil sought to be avoided actually exists; (2) That the injury feared be greater than that done to avoid it; (3) That there be no other practical and less harmful means of preventing it. (a) Avoidance of greater evil or injury is a justifying circumstance if all the three requisites mentioned in par. 4 of Art. 11 are present. (b) But if any of the last two requisites is lacking, there is only a mitigating circumstance. The first element is indispensable. (c) Incomplete justifying performance of duty circumstance of

Ordinary MC

Privileged MC

Can be offset by any Cannot be offset by aggravating circumstance aggravating circumstance If not offset by aggravating circumstance, produces the effect of applying the penalty provided by law for the crime in its min period in case of divisible penalty The effect of imposing upon the offender the penalty lower by one or two degrees than that provided by law for the crime.

Par. 1. Incomplete Justifying or Exempting Circumstances The circumstances of justification or exemption which may give place to mitigation, because not all the requisites necessary to justify the act or to exempt from criminal liability in the respective cases are attendant, are the following:

Requisites under par.5, Art. 11: (1) That the accused acted in the performance of a duty or in the lawful exercise of a right or office; and

PAGE 36

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

(2) That the injury caused or offense committed be the necessary consequence of the due performance of such duty or the lawful exercise of such right or office. People v. Oanis (1943): The SC considered one of the 2 requisites as constituting the majority. It seems that there is no ordinary mitigating circumstance under Art. 13 par. 1 when the justifying or exempting circumstance has 2 requisites only. Where only one of the requisites was present, Article 69 was applied.
INCOMPLETE EXEMPTING CIRCUMSTANCES:

(i)

An offender over 9 but under 15 of age who acted with discernment. (ii) An offender fifteen or over but under 18 years of age. (iii) An offender over 70 years old Legal effects of various ages of offenders: (1) 15 and below - Exempting (2) Above 15 but under 18 years of age, also an exempting circumstance, unless he acted with discernment (Art. 12, par. 3 as amended by RA 9344). (3) Minor delinquent under 18 years of age, the sentence may be suspended. (Art. 192, PD No. 603 as amended by PD 1179) (4) 18 years or over, full criminal responsibility. (5) 70 years or over mitigating, no imposition of death penalty; if already imposed. Execution of death penalty is suspended and commuted. Basis: Diminution of intelligence Par. 3. No intention to commit so grave a wrong (Praeter Intentionem) There must be a notable disproportion between the means employed by the offender and the resulting harm. (1) The intention, as an internal act, is judged (a) not only by the proportion of the means employed by him to the evil produced by his act, (b) but also by the fact that the blow was or was not aimed at a vital part of the body; (c) this includes: the weapon used, the injury inflicted and his attitude of the mind when the accused attacked the deceased. (2) The lack of intention to commit so grave a wrong can also be inferred from the subsequent acts of the accused immediately after committing the offense, such as when the accused helped his victim to secure medical treatment. (3) This circumstance does not apply when the crime results from criminal negligence or culpa. (4) Only applicable to offense resulting in death, physical injuries, or material harm (including property damage). It is not applicable to defamation or slander. (5) This mitigating circumstance is not applicable when the offender employed brute force. (6) Lack of intent to commit so grave a wrong is not appreciated where the offense committed is characterized by treachery. (7) When the victim does not die as a result of the assault in cases of crimes against persons, the

(a) Incomplete exempting circumstance of Accident Requisites under par. 4 of Art. 12: (1) A person is performing a lawful act (2) With due care (3) He causes an injury to another by mere accident (4) Without fault or intention of causing it There is NO SUCH MITIGATING CIRCUMSTANCE because: nd st th (1) If the 2 requisite and 1 part of the 4 requisite are absent, the case will fall under Art. 365 which punishes reckless imprudence. st nd th (2) If the 1 requisite and 2 part of the 4 requisite are absent, it will be an intentional felony (Art. 4, par. 1). (b) Incomplete exempting uncontrollable fear. circumstance of

Requisites under par. 6 of Art. 12: (1) That the threat which caused the fear was of an evil greater than, or at least equal to, that which he was required to commit; (2) That it promised an evil of such gravity and imminence that an ordinary person would have succumbed to it. Note: If only one of these requisites is present, there is only a mitigating circumstance. Par. 2. Under 18 or Over 70 Years of Age (a) In lowering the penalty: Based on age of the offender at the time of the commission of the crime not the age when sentence is imposed (b) In suspension of the sentence: Based on age of the offender (under 18) at the time the sentence is to be promulgated (See Art. 80, RPC) (c) Par. 2 contemplates the ff:
PAGE 37

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

absence of the intent to kill reduces the felony to mere physical injuries, but it does not constitute a mitigating circumstance under Art. 13(3). People v. Calleto (2002):The lack of "intent" to commit a wrong so grave is an internal state. It is weighed based on the weapon used, the part of the body injured, the injury inflicted and the manner it is inflicted. The fact that the accused used a 9-inch hunting knife in attacking the victim from behind, without giving him an opportunity to defend himself, clearly shows that he intended to do what he actually did, and he must be held responsible therefor, without the benefit of this mitigating circumstance. People v. Ural (1974): The intention, as an internal act, is judged not only by the proportion of the means employed by him to the evil produced by his act, but also by the fact that the blow was or was not aimed at a vital part of the body. Thus, it may be deduced from the proven facts that the accused had no intent to kill the victim, his design being only to maltreat him, such that when he realized the fearful consequences of his felonious act, he allowed the victim to secure medical treatment at the municipal dispensary. Basis: Diminution of intent. Par. 4. Sufficient Provocation or Threat Elements: (1) That the provocation must be sufficient (2) That it must originate from the offended party (3) That the provocation must be immediate to the act, i.e., to the commission of the crime by the person who is provoked Provocation - Any unjust or improper conduct or act of the offended part capable of exciting, inciting, or irritating anyone. Provocation in order to be mitigating must be SUFFICIENT and IMMEDIATELY preceding the act. (People v. Pagal) (1) Sufficient means adequate to excite a person to commit a wrong and must accordingly be proportionate to its gravity. (People v. Nabora). (2) Sufficiency depends upon: (a) the act constituting provocation (b) the social standing of the person provoked (c) the place and time when the provocation is made. (3) Between the provocation by the offended party and the commission of the crime, there should

not be any interval in time. Reason: When there is an interval of time between the provocation and the commission of the crime, the perpetrator has time to regain his reason. Sufficient provocation as a requisite of incomplete self-defense Provocation as a mitigating circumstance

It pertains to its absence It pertains to its presence on the part of the person on the part of the defending himself. offended party. (People v. CA, G.R. No. 103613, 2001) TIP: The common set-up given in a bar problem is that of provocation given by somebody against whom the person provoked cannot retaliate; thus the person provoked retaliated on a younger brother or on the father. Although in fact, there is sufficient provocation, it is not mitigating because the one who gave the provocation is not the one against whom the crime was committed. You have to look at two criteria: (1) If from the element of time, (a) there is a material lapse of time stated in the problem and (b) there is nothing stated in the problem that the effect of the threat of provocation had prolonged and affected the offender at the time he committed the crime (c) then you use the criterion based on the time element. (2) If there is that time element and at the same time, (a) facts are given indicating that at the time the offender committed the crime, he is still suffering from outrage of the threat or provocation done to him (b) then he will still get the benefit of this mitigating circumstance. Basis: Diminution of intelligence and intent. Romera v. People (2004): Provocation and passion or obfuscation are not 2 separate mitigating circumstances. It is well-settled that if these 2 circumstances are based on the same facts, they should be treated together as one mitigating circumstance. It is clear that both circumstances arose from the same set of facts. Hence, they should not be treated as two separate mitigating circumstances. Par. 5. Immediate Vindication of a Grave Offense

PAGE 38

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

Elements: (1) That there be a grave offense done to the one committing the felony, his spouse, ascendants, descendants, legitimate, natural or adopted brothers or sisters, or relatives by affinity within the same degree. (2) That the felony is committed in vindication of such grave offense. A lapse of time is allowed between the vindication and the doing of the grave offense. (3) The vindication need not be done by the person upon whom the grave offense was committed Note: Lapse of time is allowed. The word immediate used in the English text is not the correct translation. The Spanish text uses proxima. Although the grave offense (slapping of the accused in front of many persons hours before the killing), which engendered the perturbation of mind, was not so immediate, it was held that the influence thereof, by reason of its gravity, lasted until the moment the crime was committed. (People v. Parana). The question whether or not a certain personal offense is grave must be decided by the court, having in mind (a) the social standing of the person, (b) the place and (c) the time when the insult was made. Vindication of a grave offense and passion or obfuscation cannot be counted separately and independently. People v. Torpio (2004: The mitigating circumstance of sufficient provocation cannot be considered apart from the circumstance of vindication of a grave offense. These two circumstances arose from one and the same incident, i.e., the attack on the appellant by the accused, so that they should be considered as only one mitigating circumstance.

between the grave offense done by the offended party and the commission of the crime by the accused. It is a mere spite against It concerns the honor of the one giving the the person. provocation or threat. Basis: Diminution of the conditions of voluntariness. Par. 6. Passion or obfuscation (Arrebato y Obcecacion) Requisites: (1) The accused acted upon an impulse (2) The impulse must be so powerful that it naturally produces passion or obfuscation in him. (3) That there be an act, both unlawful and sufficient to produce such condition of mind; and (4) That said act which produced the obfuscation was not far removed from the commission of the crime by a considerable length of time, during which the perpetrator might recover his normal equanimity. [People v. Alanguilang] Note: Passion or obfuscation must arise from lawful sentiments. Passion or obfuscation not applicable when: (1) The act committed in a spirit of LAWLESSNESS. (2) The act is committed in a spirit of REVENGE. (4) The mitigating circumstance of obfuscation arising from jealousy cannot be invoked in favor of the accused whose relationship with the woman was illegitimate. (5) Also, the act must be sufficient to produce such a condition of mind. If the cause of loss of selfcontrol is trivial and slight, obfuscation is not mitigating. (6) Moreover, the defense must prove that the act which produced the passion or obfuscation took place at a time not far removed from the commission of the crime. [People v. Gervacio, 1968] (7) Passion and obfuscation may lawfully arise from causes existing only in the honest belief of the offender. US v. De la Cruz (1912):De la Cruz, in the heat of passion, killed the deceased who was his querida (lover) upon discovering her in the act of carnal communication with a mutual acquaintance. He claims that he is entitled to the mitigating

Provocation

Vindication

It is made directly only to The grave offense may be the person committing committed against the the felony. offenders relatives mentioned by law. The offense need not be a The offended party must grave offense. have done a grave offense to the offender or his relatives. The provocation or threat The grave offense may be must immediately proximate, which admits precede the act. of an interval of time

PAGE 39

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

circumstance of passion or obfuscation and that the doctrine in Hicks is inapplicable. Held: US v. Hicks is not applicable to the case. In Hicks, the cause of the alleged passion and obfuscation of the aggressor was the convict's vexation, disappointment and deliberate anger engendered by the refusal of the woman to continue to live in illicit relations with him, which she had a perfect reason to do. In this case, the impulse upon which the defendant acted was the sudden revelation that his paramour was untrue to him and his discovery of her in flagrante in the arms of another. This was a sufficient impulse in the ordinary and natural course of things to produce the passion and obfuscation which the law declares to be one of the mitigating circumstances to be taken into the consideration of the court.. Passion and Obfuscation cannot co-exist with: (1) Vindication of grave offense Exception: When there are other facts closely connected. Thus, where the deceased, had eloped with the daughter of the accused, and later when the deceased saw the accused coming, the deceased ran upstairs, there are 2 facts which are closely connected, namely: (1) elopement, which is a grave offense for the family of old customs, and (2) refusal to deal with him, a stimulus strong enough to produce passion. The court in People v. Diokno (G.R. No. L-45100), considered both mitigating circumstances in favor of the accused. (2) Treachery (People v. Wong) Basis: Diminution of intelligence and intent.
PASSION/OBFUSCATION V. IRRESISTIBLE FORCE

Passion/Obfuscation

Provocation

Passion/obfuscation is Provocation comes from produced by an impulse the injured party. which may be caused by provocation. The offense which Must immediately engenders the precede the commission perturbation of mind need of the crime. not be immediate. It is only required that the influence thereof lasts until the moment the crime is committed. In both, the effect of the loss of reason and selfcontrol on the part of the offender. Par. 7. Voluntary Surrender and Confession of Guilt Two Mitigating Circumstances under This Paragraph: (1) Voluntary surrender to a person in authority or his agents; (2) Voluntary confession of guilt before the court prior to the presentation of evidence for the prosecution. Whether or not a warrant of arrest had been issued is immaterial and irrelevant.
VOLUNTARY SURRENDER

Requisites: (1) That the offender had not been actually arrested (2) That the offender surrendered himself to a person in authority or to the latters agent (3) That the surrender was voluntary. Criterion is whether or not: (1) the offender had gone into hiding, and (2) the law enforcers do not know of his whereabouts. Note: For voluntary surrender to be appreciated, the surrender must be spontaneous, made in such a manner that it shows the interest of the accused to surrender unconditionally to the authorities, either because (1) he acknowledges his guilt or (2) wishes to save them the trouble and expenses that would be necessarily incurred in his search and capture. (Andrada v.People). If none of these two reasons impelled the accused to surrender, the surrender is not spontaneous and therefore not voluntary. (People v. Laurel). (a) The accused must actually surrender his own person to the authorities, admitting complicity of the crime.

Passion/Obfuscation Mitigating Circumstance

Irresistible Force Exempting circumstance

Cannot give rise to Physical force is a physical force because it condition sine qua non. does not involves physical force. Passion/obfuscation Irresistible force comes comes from the offender from a third person. himself. Must arise from lawful Irresistible sentiments to be unlawful. mitigating.
PASSION/OBFUSCATION V. PROVOCATION

force

is

PAGE 40

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

(b) Merely requesting a policeman to accompany the accused to the police headquarters is not voluntary surrender. (People v. Flores) Effect of Arrest General rule: Not mitigating when defendant was in fact arrested. (People v. Conwi) Exceptions: (1) But where a person, after committing the offense and having opportunity to escape, voluntarily waited for the agents of the authorities and voluntarily gave up, he is entitled to the benefit of the circumstance, even if he was placed under arrest by a policeman then and there. (People v. Parana) (2) Where the arrest of the offender was after his voluntary surrender or after his doing an act amounting to a voluntary surrender to the agent of a person in authority. (People v. Babiera; People v. Parana)
PERSON IN AUTHORITY AND HIS AGENT

The extrajudicial confession made by the accused is not voluntary confession because it was made outside the court. (People v. Pardo) (3) That the confession of guilt was made prior to the presentation of evidence for the prosecution. (a) The change of plea should be made at the first opportunity when his arraignment was first set. (b) A conditional plea of guilty is not mitigating. (c) Plea of guilt on appeal is not mitigating. (d) Withdrawal of plea of not guilty before presentation of evidence by prosecution is still mitigating. All that the law requires is voluntary plea of guilty prior to the presentation of the evidence by the prosecution. (e) A plea of guilty on an amended information will be considered as an attenuating circumstance if no evidence was presented in connection with the charges made therein. (People v. Ortiz) Basis: Lesser perversity of the offender.
PLEA TO A LESSER OFFENSE

Person in authority is one directly vested with jurisdiction, that is, a public officer who has the power to govern and execute the laws whether as an individual or as a member of some court or governmental corporation, board or commission. A barrio captain and a barangay chairman are also persons in authority. (Art. 152, RPC, as amended by PD No. 299). Agent of a person in authority is a person, who, by direct provision of law, or by election or by competent authority, is charged with the maintenance of public order and the protection and security of life and property and any person who comes to the aid of persons in authority. (Art. 152, as amended by RA 1978). Time of Surrender - the RPC does not distinguish among the various moments when the surrender may occur. (Reyes, Revised Penal Code). The fact that a warrant of arrest had already been issued is no bar to the consideration of that circumstance because the law does not require that the surrender be prior the arrest. (People v. Yecla and Cahilig).What is important is that the surrender be spontaneous.
PLEA OF GUILT

Rule 116, sec. 2, ROC At arraignment, the accused, with the consent of the offended party and prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the offense charged. After arraignment but before trial, the accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not guilty. No amendment of the complaint or information is necessary. People v. Dawaton (2002):Information for murder was filed against Dawaton. When first arraigned he pleaded not guilty, but during the pre-trial he offered to plead guilty to the lesser offense of homicide but was rejected by the prosecution. The trial court sentenced him to death. He avers that he is entitled to the mitigating circumstance of plea of guilty. Held: While the accused offered to plead guilty to the lesser offense of homicide, he was charged with murder for which he had already entered a plea of not guilty. We have ruled that an offer to enter a plea of guilty to a lesser offense cannot be considered as an attenuating circumstance under the provisions of Art. 13 of RPC because to be voluntary the plea of guilty must be to the offense charged. Also, Sec. 2, Rule 116, of the Revised Rules of Criminal Procedure requires the consent of the offended party and the prosecutor before an accused

Requisites: (1) That the offender spontaneously confessed his guilt. (2) That the confession of guilt was made in open court, that is, before the competent court that is to try the case; and

PAGE 41

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

may be allowed to plead guilty to a lesser offense necessarily included in the offense charged. The prosecution rejected the offer of the accused. Par. 8. Physical Defects (a) This paragraph does not distinguish between educated and uneducated deaf-mute or blind persons. (b) Physical defect referred to in this paragraph is such as being armless, cripple, or a stutterer, whereby his means to act, defend himself or communicate with his fellow beings are limited. (c) The physical defect that a person may have must have a relation to the commission of the crime. (d) Where the offender is deaf and dumb, personal property was entrusted to him and he misappropriated the same. The crime committed was estafa. The fact that he was deaf and dumb is not mitigating since that does not bear any relation to the crime committed. (e) If a person is deaf and dumb and he has been slandered, he cannot talk so what he did was he got a piece of wood and struck the fellow on the head. The crime committed was physical injuries. The Supreme Court held that being a deaf and dumb is mitigating because the only way is to use his force because he cannot strike back in any other way. Basis: Diminution of freedom of action, therefore diminution of voluntariness. Par. 9. Illness Elements: (1) That the illness of the offender must diminish the exercise of his will-power (2) That such illness should not deprive the offender of consciousness of his acts. (a) When the offender completely lost the exercise of will-power,it may be an exempting circumstance. (b) It is said that this paragraph refers only to diseases of pathological state that trouble the conscience or will. (c) A mother who, under the influence of a puerperal fever, killed her child the day following her delivery. Basis: Diminution of intelligence and intent.

People v. Javier (1999): Javier was married to the deceased for 41 years. He killed the deceased and then stabbed himself in the abdomen. Javier was found guilty of parricide. In his appeal, he claims that he killed his wife because he was suffering from insomnia for a month and at the time of the killing, his mind went totally blank and he did not know what he was doing. He also claims that he was insane then. Held: No sufficient evidence or medical finding was offered to support his claim. The court also took note of the fact that the defense, during the trial, never alleged the mitigating circumstance of illness. The alleged mitigating circumstance was a mere afterthought to lessen the criminal liability of the accused. Par. 10. Analogous Mitigating Circumstances Any other circumstance of similar nature and analogous to the nine mitigating circumstances enumerated in art. 513 may be mitigating. (1) The act of the offender of leading the law enforcers to the place where he buried the instrument of the crime has been considered as equivalent to voluntary surrender. (2) Stealing by a person who is driven to do so out of extreme poverty is considered as analogous to incomplete state of necessity. (3) Over 60 years old with failing sight, similar to over 70 years of age mentioned in par. 2. (People v. Reantillo). (4) Voluntary restitution of stolen goods similar to voluntary surrender (People v. Luntao). (5) Impulse of jealous feelings, similar to passion and obfuscation. (People v. Libria). (6) Extreme poverty and necessity, similar to incomplete justification based on state of necessity. (People v. Macbul). (7) Testifying for the prosecution, without previous discharge, analogous to a plea of guilty. (People v. Narvasca). Canta v. People:Canta stole a cow but alleges that he mistook the cow for his missing cow. He made a calf suckle the cow he found and when it did, Canta thought that the cow he found was really his. However, he falsified a document describing the said cows cowlicks and markings. After getting caught, he surrendered the cow to the custody of the authorities in the municipal hall. Held: Cantas act of voluntarily taking the cow to the municipal hall to place it in the custody of authorities (to save them the time and effort of having to recover

PAGE 42

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

the cow) was an analogous circumstance to voluntary surrender. AGGRAVATING CIRCUMSTANCES Aggravating Circumstances are those circumstances which raise the penalty for a crime in its maximum period provided by law applicable to that crime or change the nature of the crime. Note: The list in this Article is EXCLUSIVE there are no analogous aggravating circumstances. (a) The aggravating circumstances must be established with moral certainty, with the same degree of proof required to establish the crime itself. (b) According to the Revised Rules of Criminal Procedure, BOTH generic and qualifying aggravating circumstances must be alleged in the Information in order to be considered by the Court in imposing the sentence. (Rule 110, Sec. 9) Basis (1) the motivating power behind the act (2) the place where the act was committed (3) the means and ways used (4) the time (5) the personal circumstance of the offender and/or of the victim Kinds (1) GENERIC Those that can generally apply to all crimes. Nos. 1, 2, 3 (dwelling), 4, 5, 6, 9, 10, 14, 18, 19, and 20 except by means of motor vehicles. A generic aggravating circumstance may be offset by a generic mitigating circumstance. (2) SPECIFIC Those that apply only to particular crimes. Nos. 3 (except dwelling), 15, 16, 17 and 21. (3) QUALIFYING Those that change the nature of the crime. Art. 248 enumerate the qualifying AC which qualifies the killing of person to murder. If two or more possible qualifying circumstances were alleged and proven, only one would qualify the offense and the others would be generic aggravating. (4) INHERENT Those that must accompany the commission of the crime and is therefore not considered in increasing the penalty to be imposed such as evident premeditation in theft, robbery, estafa, adultery and concubinage. (5) SPECIAL Those which arise under special conditions to increase the penalty of the offense

and cannot be offset by mitigating circumstances such as: (a) quasi-recidivism (Art. 160) (b) complex crimes (Art. 48) (c) error in personae (Art. 49) (d) taking advantage of public position and membership in an organized/syndicated crime group (Art. 62) Generic Aggravating Circumstances The effect of a generic AC, not offset by any mitigating circumstance, is to increase the penalty which should be imposed upon the accused to the MAXIMUM PERIOD. Qualifying Aggravating Circumstances The effect of a qualifying AC is not only to give the crime its proper and exclusive name but also to place the author thereof in such a situation as to deserve no other penalty than that specially prescribed by law for said crime. The circumstance affects the nature of the crime itself such that the offender shall be liable for a more serious crime. The circumstance is actually an ingredient of the crime

It is not an ingredient of the crime. It only affects the penalty to be imposed but the crime remains the same

Being an ingredient of the The circumstance can be crime, it cannot be offset offset by an ordinary by any mitigating mitigating circumstance circumstance Aggravating circumstances which do not have the effect of increasing the penalty: (1) Aggravating circumstances which in themselves constitute a crime especially punishable by law. (2) Aggravating circumstances which are included by the law in defining a crime and prescribing the penalty therefore shall not be taken into account for the purpose of increasing the penalty. (Art. 62, par. 1). (3) The same rule shall apply with respect to any aggravating circumstance inherent in the crime to such a degree that it must of necessity accompany the commission thereof. (Art. 62, par. 2). Aggravating circumstances which are personal to the offenders. Aggravating circumstances which arise: (1) from moral attributes of the offender; (2) from his private relations with the offended party; or

PAGE 43

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

(3) from any personal cause, shall only serve to aggravate the liability of the principals, accomplices, accessories as to whom such circumstances are attendant. (Art. 62, par. 3). Aggravating circumstances which depend for their application upon the knowledge of offenders. The circumstances which consist (1) in the material execution of the act, or (2) in the means employed to accomplish it, shall serve to aggravate the liability of those persons only who had knowledge of them at the time of the execution of the act or their cooperation therein. (Art. 62, par. 4). GENERIC 21 Aggravating Circumstances under Art. 14: (1) Taking Advantage of Public Office (2) In Contempt of or With Insult to Public Authorities (3) With Insult or Lack of Regard Due to Offended Party by Reason of Rank, Age or Sex (4) Abuse Of Confidence And Obvious Ungratefulness (5) Crime In Palace Or In Presence Of The Chief Executive (6) Nighttime; Uninhabited Place; With A Band (7) On Occasion Of A Calamity (8) Aid Of Armed Men Or Means To Ensure Impunity (9) Recidivism (10) Reiteration or Habituality (11) Price, Reward Or Promise (12) Inundation, Fire, Poison (13) Evident Premeditation (14) Craft, Fraud Or Disguise (15) Superior Strength Or Means To Weaken Defense (16) Treachery (17) Ignominy (18) Unlawful Entry (19) Breaking Wall, Floor, Roof (20) With Aid Of Persons Under 15 By Motor Vehicle (21) Cruelty Par. 1.That advantage be taken by the offender of his public position (1) This is applicable only if the offender is a public officer. (2) The public officer must: (a) Use the influence, prestige or ascendancy which his office gives him (b) As means by which he realizes his purpose. (3) The essence of the matter is presented in the inquiry, did the accused abuse his office in order to commit the crime?(U.S. v. Rodriguez) (4) When a public officer

(a) commits a common crime independent of his official functions and (b) does acts that are not connected with the duties of his office, (c) he should be punished as a private individual without this aggravating circumstance. (5) Even if defendant did not abuse his office, if it is proven that he has failed in his duties as such public officer, this circumstance would warrant the aggravation of his penalty. Thus, the fact that the vice-mayor of a town joined a band of brigands made his liability greater. (U.S. v. Cagayan). (6) The circumstance cannot be taken into consideration in offenses where taking advantage of official position is made by law an integral element of the crime such as in malversation (Art. 217) or falsification of public documents under Art. 171. (7) Taking advantage of public position is also inherent in the following cases: (a) Accessories under Art. 19, par. 3 (harboring, concealing or assisting in the escape of the principal of the crime); and (b) Title VII of Book Two of the RPC (Crimes committed by public officers). Basis: Greater perversity of the offender as shown. Par. 2. That the crime be committed in contempt of or with insult to the public authorities Requisites: (1) That the public authority is engaged in the exercise of his functions. (2) That he who is thus engaged in the exercise of his functions is not the person against whom the crime is committed. (3) The offender knows him to be a public authority. (4) His presence has not prevented the offender from committing the criminal act. Public Authority / Person in Authority is a person directly vested with jurisdiction, that is, a public officer who has the power to govern and execute the laws. The councilor, mayor, governor, barangay captain, barangay chairman etc. are persons in authority. (Art. 152, as amended by P.D. 1232) (a) A school teacher, town municipal health officer, agent of the BIR, chief of police, etc. are now considered a person in authority. (b) Par. 2 is not applicable if committed in the presence of an agent only such as a police officer.

PAGE 44

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

Agent - A subordinate public officer charged with the maintenance of public order and the protection and security of life and property, such as barrio policemen, councilmen, and any person who comes to the aid of persons in authority.(Art. 152, as amended by BP 873). Knowledge that a public authority is present is essential. (a) Lack of such knowledge indicates lack of intention to insult public authority. (b) If crime is committed against the public authority while in the performance of his duty, the offender commits direct assault without this aggravating circumstance. Basis: Greater perversity of the offender as shown by his lack of respect for the public authorities. People v. Rodil (1981):There is the aggravating circumstance that the crime was committed in contempt of or with insult to public authorities when the chief of police was present when the incident occurred. The chief of police should be considered a public authority because he is vested with authority to maintain peace and order over the entire municipality Par. 3. That the act be committed with insult or in disregard of the respect due the offended party on account of his rank, age, or sex, or that is be committed in the dwelling of the offended party, if the latter has not given provocation. (a) Four circumstances are enumerated in this paragraph, which can be considered singly or together. (b) If all the 4 circumstances are present, they have the weight of one aggravating circumstance only. (c) There must be evidence that in the commission of the crime, the accused deliberately intended to offend or insult the sex or age of the offended party. (People v. Mangsat) (d) Disregard of rank, age or sex may be taken into account only in crimes against persons or honor. (People v. Pugal; People vs. Ga) (a) Rank of the offended party (1) Designation or title used to fix the relative position of the offended party in reference to others. (2) There must be a difference in the social condition of the offender and the offended party. (b) Age of the offended party
PAGE 45

May refer to old age or tender age of the victim. (c) Sex of the offended party (1) This refers to the female sex, not to the male sex. (2) The aggravating circumstance is NOT to be considered in the following cases: (a) When the offender acted with passion and obfuscation. (People v. Ibanez) (b) When there exists a relationship between the offended party and the offender. (People v. Valencia) (c) When the condition of being a woman is indispensable in the commission of the crime. Thus, in rape, abduction, or seduction, sex is not aggravating. (People v. Lopez) (d) Dwelling (Morada) (1) Building or structure, exclusively used for rest and comfort.Thus, in the case of People v. Magnaye, a combination of a house and a store, or a market stall where the victim slept is not a dwelling. (2) This is considered an AC because in certain cases, there is an abuse of confidence which the offended party reposed in the offender by opening the door to him. (3) Dwelling need not be owned by the offended party. (4) It is enough that he used the place for his peace of mind, rest, comfort and privacy. (5) Dwelling should not be understood in the concept of a domicile: A person has more than one dwelling. So, if a man has so many wives and he gave them places of their own, each one is his own dwelling. If he is killed there, dwelling will be aggravating, provided that he also stays there once in a while. (6) If a crime of adultery was committed. Dwelling was considered aggravating on the part of the paramour. However, if the paramour was also residing in the same dwelling, it will not be aggravating. (7) The offended party must not give provocation. (People v. Ambis). (8) When a crime is committed in the dwelling of the offended party and the latter has not given provocation, dwelling may be appreciated as an aggravating circumstance. Provocation in the aggravating circumstance of dwelling must be: (a) given by the offended party (b) sufficient, and

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

(c) immediate to the commission of the crime.(People v. Rios, 2000) (9) It is not necessary that the accused should have actually entered the dwelling of the victim to commit the offense: it is enough that the victim was attacked inside his own house, although the assailant may have devised means to perpetrate the assault. (People v. Ompaid, 1969) (10) Dwelling includes dependencies, the foot of the staircase and the enclosure under the house. (U.S. v. Tapan) Basis: Greater perversity of the offender as shown by the personal circumstances of the offended party and the place of the commission of the crime. People vs. Taoan: Teachers, professors, supervisors of public and duly recognized private schools, colleges and universities, as well as lawyers are persons in authority for purposes of direct assault and simple resistance, but not for purposes of aggravating circumstances in paragraph 2, Article 14. People v. Tao (2000):Dwelling cannot be appreciated as an aggravating circumstance in this case because the rape was committed in the ground floor of a two-story structure, the lower floor being used as a video rental store and not as a private place of abode or residence. People v. Arizobal (2000): Generally, dwelling is considered inherent in the crimes which can only be committed in the abode of the victim, such as trespass to dwelling and robbery in an inhabited place. However, in robbery with homicide the authors thereof can commit the heinous crime without transgressing the sanctity of the victim's domicile. In the case at bar, the robbers demonstrated an impudent disregard of the inviolability of the victims' abode when they forced their way in, looted their houses, intimidated and coerced their inhabitants into submission, disabled Laurencio and Jimmy by tying their hands before dragging them out of the house to be killed. Dwelling is not aggravating in the following cases: (1) When both offender and offended party are occupants of the same house (U.S. v. Rodriguez), and this is true even if offender is a servant of the house. (People v. Caliso) (2) When the robbery is committed by the use of force things, dwelling is not aggravating because it is inherent. (U.S. v. Cas). But dwelling is aggravating in robbery with violence or intimidation of persons because this class or

robbery can be committed without the necessity of trespassing the sanctity of the offended partys house. (People v. Cabato) (3) In the crime of trespass to dwelling, it is inherent or included by law in defining the crime. (4) When the owner of the dwelling gave sufficient and immediate provocation. (Art. 14 par. 3) Par. 4.That the act be committed with abuse of confidence or obvious ungratefulness Par. 4 provides two aggravating circumstances. If present in the same case, they must be independently appreciated. (a) Abuse of confidence (Abuso de confianza) (1) That the offended party had trusted the offender. (2) That the offender abused such trust by committing a crime against the offended party. (3) That the abuse of confidence facilitated the commission of the crime. (a) The confidence between the offender and the offended party must be immediate and personal. (b) It is inherent in malversation (Art. 217), qualified theft (Art. 310), estafa by conversion or misappropriation (Art. 315) and qualified seduction. (Art. 337). (b) Obvious ungratefulness (1) That the offended party had trusted the offender; (2) That the offender abused such trust by committing a crime against the offended party; (3) That the act be committed with obvious ungratefulness. (a) The ungratefulness must be obvious: (1) manifest and (2) clear. (b) In a case where the offender is a servant, the offended party is one of the members of the family. The servant poisoned the child. It was held that abuse of confidence is aggravating. This is only true, however, if the servant was still in the service of the family when he did the killing. If he was driven by the master out of the house for some time and he came back to poison the child, abuse of confidence will no longer be aggravating. The reason is because that confidence has already been terminated when the offender was driven out of the house.

PAGE 46

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

Basis: Greater perversity of the offender as shown by the means and ways employed. People v. Arrojado (2001):For the aggravating circumstance of abuse of confidence to exist, it is essential to show that the confidence between the parties must be immediate and personal such as would give the accused some advantage or make it easier for him to commit the criminal act. The confidence must be a means of facilitating the commission of the crime, the culprit taking advantage of the offended party's belief that the former would not abuse said confidence. Par. 5. That the crime be committed in the palace of the Chief Executive or in his presence, or where public authorities are engaged in the discharge of their duties, or in a place dedicated to religious worship If it is the Malacaang Palace or a church it is aggravating regardless of whether State or official or religious functions are being held. (a) The President need not be in the palace. (b) His presence alone in any place where the crime is committed is enough to constitute the AC. (c) It also applies even if he is not engaged in the discharge of his duties in the place where the crime was committed. (d) Cemeteries are not places dedicated for religious worship. Note: Offender must have the intention to commit a crime when he entered the place. (People v. Jaurigue) Par. 2 Contempt or insult to public authorities Par. 5 Where public authorities are engaged in the discharge of their duties

Par. 6. That the crime be committed in the (a) night time, or (b) in an uninhabited place, or (c) by a band, whenever such circumstances may facilitate the commission of the offense. These 3 circumstances may be considered separately: (1) when their elements are distinctly perceived and (2) can subsist independently, (3) revealing a greater degree of perversity. Requisites: (1) When it facilitated the commission of the crime; or (2) When especially sought for by the offender to insure the commission of the crime or for the purpose of impunity; or (3) When the offender took advantage thereof for the purpose of impunity. (a) Nighttime (Nocturnidad) The commission of the crime must begin and be accomplished in the nighttime (after sunset and before sunrise). (1) the offender purposely took advantage of nighttime; or (2) it facilitated the commission of the offense. (a) Nighttime by and of itself is not an aggravating circumstance. (b) The offense must be actually committed in the darkness of the night. (c) When the place is illuminated by light, nighttime is not aggravating. (d) Nighttime may be absorbed by treachery depending on circumstances. (e) Nighttime need not be specifically sought for when: (1) the offender purposely took advantage of nighttime; or (2) it facilitated the commission of the offense. (b) Uninhabited place (Desplobado) It is determined not by the distance of the nearest house to the scene of the crime but whether or not in the place of the commission of the offense, there was a reasonable possibility of the victim receiving some help. (a) Solitude must be sought to better attain the criminal purpose. (People v. Aguinaldo) (b) The offenders must choose the place as an aid either (1) to an easy and uninterrupted accomplishment of their criminal designs, or (2) to insure concealment of the offense, that he

Public authorities are engaged in the performance of their duties. Public duty is performed Public duty is performed in their office outside of their office The offended party may or The public authority may not be the public should not be the authority offended party As regards the place where the public authorities are engaged in the discharge of their duties, there must be some performance of public functions. Basis: Greater perversity of the offender as shown by the place of the commission of the crime, which must be respected.

PAGE 47

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

might thereby be better secured against detection and punishment. (U.S. v. Vitug). (c) Band (Cuadrilla) Band - Whenever more than three armed malefactors shall have acted together in the commission of an offense, it shall be deemed to have been committed by a band. There should (1) Beat least be four persons (2) At least 4 of them should be armed (3) and are principals by direct participation. (a) This aggravating circumstance is absorbed in the circumstance of abuse of superior strength. (b) This is inherent in brigandage. (c) The armed men must have acted together in the commission of the crime. Basis: On the time and place of the commission of the crime and means and ways employed. People v. Librando (2000):In this case the trial court considered nighttime and uninhabited place as just one aggravating circumstance. Held: The court did not err in considering nighttime and uninhabited place as just one aggravating circumstance. The court cited the case of People vs. Santos where it has been held that if the aggravating circumstances of nighttime, uninhabited place or band concur in the commission of the crime, all will constitute one aggravating circumstance only as a general rule although they can be considered separately if their elements are distinctly perceived and can subsist independently, revealing a greater degree of perversity. People v. Bermas (1999):By and of itself, nighttime is not an aggravating circumstance; it becomes so only when: 1) it is specially sought by the offender; or 2) it was taken advantage of by him; or 3) it facilitates the commission of the crime by insuring the offenders immunity from capture. Also, if treachery is also present in the commission of the crime, nighttime is absorbed in treachery and cannot be appreciated as a generic aggravating circumstance. Par. 7. That the crime be committed on the occasion of a conflagration, shipwreck, earthquake, epidemic or other calamity or misfortune

The rationale for this AC is the debased form of criminality of one who, in the midst of a great calamity, instead of lending aid to the afflicted, adds to their suffering by taking advantage of their misfortune and despoiling them. (a) The offender must take advantage of the calamity or misfortune. (b) OR OTHER CALAMITY OR MISFORTUNE refers to other conditions of distress similar to conflagration, shipwreck, earthquake or epidemic. Basis: To the time of the commission of the crime. Par. 8. That the crime be committed with the aid of armed men, or persons who insure or afford impunity Requisites: (1) That the armed men or persons took indirectly part in the commission of the crime, (2) That the accused availed himself of their aid or relied upon them when the crime was committed. Not applicable (a) When both the attacking party and the party attacked were equally armed. (b) When the accused as well as those who cooperated with him in the commission of the crime acted under the same plan and for the same purpose. (c) Casual presence, or when the offender did not avail himself of their aid nor knowingly count upon their assistance in the commission of the crime. Par. 6 By a band Par. 8 With aid of armed me

Requires more than 3 At least two armed men armed malefactors Requires that more than three armed malefactors shall have acted together in the commission of an offense This circumstance is present even if one of the offenders merely relied on their aid, for actual aid is not necessary

Band members are all Armed men are mere principals accomplices Aid of armed men includes armed women. [People v. Licop] Note: Aid of armed men is absorbed by employment of a band. Basis: Means and ways of committing the crime.

PAGE 48

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

Par. 9. That the accused is a recidivist (reincidencia) Requisites: (1) That the offender is on trial for an offense; (2) That he was previously convicted by final judgment of another crime; (3) That both the first and the second offenses are embraced in the same title of the Code; (4) That the offender is convicted of the new offense. Different forms of repetition or habituality of offender (a) Recidivism under Article 14 (9)The offender at the time of his trial for one crime shall have been previously convicted by final judgment of another embraced in the same title of the Revised Penal Code. (b) Repetition or reiteracion under Article 14 (9)The offender has been previously punished for an offense to which the law attaches an equal or greater penalty or for two or more crimes to which it attaches a lighter penalty. (c) Habitual delinquency under Article 62 (5)The offender within a period of 10 years from the date of his release or last conviction of the crimes of serious or less serious physical injuries, robo, hurto, estafa or falsification, is found guilty of any of the said crimes a third time or another. (d) Quasi-recidivism under Article 160Any person who shall ` a felony after having been convicted by final judgment before beginning to serve such sentence or while serving such sentence shall be punished by the maximum period prescribed by law for the new felony In recidivism, the crimes committed should be felonies. There is no recidivism if the crime committed is a violation of a special law. What is controlling is the time of the trial, not the time of the commission of the offense (i.e. there was already a conviction by final judgment at the time of the trial for the second crime). (a) What is required is previous conviction at the time of the trial. (b) The best evidence of a prior conviction is a certified copy of the original judgment of conviction, and such evidence is always admissible and conclusive unless the accused himself denies his identity with the person convicted at the former trial. (Aquino, Revised Penal Code) (c) At the time of the trial means from the arraignment until after sentence is announced by the judge in open court. (d) Recidivism does not prescribe. No matter how long ago the offender was convicted, if he is

subsequently convicted of a crime embraced in the same title of the Revised Penal Code, it is taken into account as aggravating in imposing the penalty. (e) Pardon does not erase recidivism, even if it is absolute because it only excuses the service of the penalty, not the conviction. However, if a person was granted an amnesty, and thereafter he is convicted of another crime of the same class as the former crimes, his former conviction would not be aggravating. According to Art. 89, amnesty extinguishes not only the penalty but also its effects. If the offender has (1) already served his sentence and (2) he was extended an absolute pardon, (a) the pardon shall erase the conviction including recidivism because there is no more penalty (b) so the pardon shall be understood as referring to the conviction or the effects of the crime. Basis: Greater perversity of the offender, as shown by his inclination to crimes. People vs. Molina (2000):To prove recidivism, it is necessary to allege the same in the information and to attach thereto certified copies of the sentences rendered against the accused. Nonetheless, the trial court may still give such AC credence if the accused does not object to the presentation. People v. Dacillo (2004): In order to appreciate recidivism as an aggravating circumstance, it is necessary to allege it in the information and to attach certified true copies of the sentences previously meted out to the accused, in accordance with Rule 110, Section 8 of the Revised Rules of Criminal Procedure. Par. 10. That the offender has been previously punished by an offense to which the law attaches an equal or greater penalty or for two or more crimes to which it attaches a lighter penalty Requisites: (1) That the accused is on trial for an offense; (2) That he previously served sentence for another offense to which the law attaches: (a) an equal or (b) greater penalty, or (c) for 2 or more crimes to which it attaches lighter penalty than that for the new offense; and

PAGE 49

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

(3) That he is convicted of the new offense. In Reiteracion or Habituality, it is essential that the offender be previously punished; that is, he has served sentence. Par. 10 speaks of (a) penalty attached to the offense, (b) not the penalty actually imposed Basis: Greater perversity of the offender as shown by his inclination to crimes. Par. 9 Recidivism It is enough that a final judgment has been rendered in the first offense. Par. 10 Reiteracion It is necessary that the offender shall have served out his sentence for the first offense.

Art. 14, Par. 9 Recidivism

Art. 62, Par. 5 Habitual Delinquency release therefrom to the third conviction and so on

It is a generic aggravating circumstance which can be offset by an ordinary mitigating circumstance. If not offset, it would only increase the penalty prescribed by law for the crime committed to its maximum period

Habitual delinquency is a special aggravating circumstance, hence it cannot be offset by any mitigating circumstance. Aside from the penalty prescribed by law for the crime committed, an additional penalty shall be imposed depending upon whether it is already the third conviction, the fourth, the fifth and so on

The previous and Requires that the offenses subsequent offenses must be included in the same not be embraced in the title of the Code same title of the Code Always to be taken into consideration in fixing the Not always an penalty to be imposed aggravating circumstance upon the accused Rationale is the proven Rationale is the proven tendency to commit a resistance to similar offense rehabilitation Art. 14, Par. 9 Recidivism Two convictions enough Art. 62, Par. 5 Habitual Delinquency

Since reiteracion provides that the accused has duly served the sentence for previous conviction/s, or is legally considered to have done so, quasi-recidivism cannot at the same time constitute reiteracion, hence the latter cannot apply to a quasi-recidivist. If the same set of facts constitutes recidivism and reiteracion, the liability of the accused should be aggravated by recidivism which can be easily proven. Par. 11. That the crime be committed in consideration of a price, reward, or promise When this Aggravating Circumstance is present, there must be 2 or more principals: (a) the one who gives or offers the price or promise; and (b) the one who accepts it. (1) Both of whom are principals to the former, because he directly induces the latter to commit the crime, and the latter because he commits it. (2) When this AC is present, it affects not only the person who received the price or reward, but also the person who gave it. (3) The evidence must show that one of the accused used money or valuable consideration for the purpose of inducing another to perform the deed. (U.S. v. Gamao). (4) If without previous promise it was given voluntarily after a crime was committed as an expression of his appreciation for the sympathy and aid shown by the other accused, it should not be taken into consideration for the purpose of increasing the penalty. The price, reward or promise: (a) Need not consist of or refer to material things; or

are At least three convictions are required The crimes are limited and specified to: (a) serious physical injuries, (b) Less serious physical injuries, (c) robbery, (d) theft, (e) estafa or swindling and (f) falsification There is a time limit of not more than 10 years between every conviction computed from the first conviction or release from punishment thereof to conviction computed from the second conviction or

The crimes are not specified; it is enough that they may be embraced under the same title of the Revised Penal Code

There is no time limit between the first conviction and the subsequent conviction. Recidivism is imprescriptible.

PAGE 50

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

(b) That the same were actually delivered, it being sufficient that the offer made by the principal by inducement was accepted by the principal by direct participation before the commission of the offense. Basis: Greater perversity of the offender, as shown by the motivating power itself. Par. 12. That the crime be committed by means of inundation, fire, poison, explosion, stranding of a vessel or international damage thereto, derailment of a locomotive, or by the use of any other artifice involving great waste and ruin (a) Unless used by the offender as a means to accomplish a criminal purpose, any of the circumstances in paragraph 12 cannot be considered to increase the penalty or to change the nature of the offense. (b) When another AC already qualifies the crime, any of these ACs shall be considered as generic aggravating circumstance only. (c) Fire is not aggravating in the crime of arson. (d) Whenever a killing is done with the use of fire, as when you kill someone, you burn down his house while the latter is inside, this is murder. (e) There is no such crime as murder with arson or arson with homicide. The crime is only murder. (f) If the intent is to destroy property - the crime is arson even if someone dies as a consequence. (g) If the intent is to kill - there is murder even if the house is burned in the process. Basis: Means and ways employed. Par. 13. That the act be committed with evident premeditation Requisites: (1) The time when the offender determined to commit the crime; (2) An act manifestly indicating that the culprit has clung to his determination; and (3) A sufficient lapse of time between the determination and execution, to allow him to reflect upon the consequences of his act and to allow is conscience to overcome the resolution of his will. Evident premeditation implies (a) a deliberate planning of the act (b) before executing it. The essence of premeditation

(a) an opportunity to coolly and serenely think and deliberate (1) on the meaning and (2) consequences of what he planned to do, (b) an interval long enough for his conscience and better judgment to overcome his evil desire and scheme. (People v. Durante) (c) The premeditation must be based upon external facts, and must be evident, not merely suspected indicating deliberate planning. (d) The date and time when the offender determined to commit the crime is essential, because the lapse of time for the purpose of the third requisite is computed from that date and time. (e) After the offenders had determined to clung commit the crime, there must be a manifest indication that they clung to their determination. (f) Where conspiracy is directly established, with proof of the attendant deliberation and selection of the method, time and means of executing the crime, the existence of evident premeditation can be taken for granted. (U.S. v. Cornejo) (g) Evident premeditation is inherent in robbery, adultery, estafa, and falsification. However, it may be aggravating in robbery with homicide if the premeditation included the killing of the victim. (People v. Valeriano) (h) In order that premeditation may exist, it is not necessary that the accused premeditated the killing of a particular individual. If the offender premeditated on the killing of any person (general attack), it is proper to consider against the offender the aggravating circumstance of evident premeditation, because whoever is killed by him is contemplated in the premeditation. [US v. Manalinde, 1909] Basis: Reference to the ways of committing the crime because evident premeditation implies a deliberate planning of the act before executing it. People v. Salpigao:Evident premeditation is presumed to exist when conspiracy is directly established. When conspiracy is merely implied, evident premeditation cannot be presumed, the latter must be proved just like any other fact.

PAGE 51

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

People v. Mondijar(2002):There was no evident premeditation. For the circumstance of evident premeditation to be appreciated, the prosecution must present clear and positive evidence of the planning and preparation undertaken by the offender prior to the commission of the crime. Settled is the rule that evident premeditation, like any other circumstance that qualifies a killing to murder, must be established beyond reasonable doubt as conclusively and indubitably as the killing itself. In the present case, no evidence was presented by the prosecution as to when and how appellant planned and prepared for the killing of the victim. There is no showing of any notorious act evidencing a determination to commit the crime which could prove appellant's criminal intent. People v. Biso (2003): Dario, a black belt in karate, entered an eatery, seated himself beside Teresita and made sexual advances to her in the presence of her brother, Eduardo. Eduardo contacted his cousin, Biso, an ex-convict and a known toughie in the area, and related to him what Dario had done to Teresita. Eduardo and Pio, and 2 others decided to confront Dario. They positioned themselves in the alley near the house of Dario. When Dario arrived on board a taxicab, the four assaulted Dario. Eduardo held, with his right hand, the wrist of Dario and covered the mouth of Dario with his left hand. The 2 others held Dario's right hand and hair. Pio then stabbed Dario near the breast with a fan knife. Eduardo stabbed Dario and fled with his three companions from the scene. Held: There was no evident premeditation. The prosecution failed to prove that the four intended to kill Dario and if they did intend to kill him, the prosecution failed to prove how the malefactors intended to consummate the crime. Except for the fact that the appellant and his three companions waited in an alley for Dario to return to his house, the prosecution failed to prove any overt acts on the part of the appellant and his cohorts showing that that they had clung to any plan to kill the victim. Par. 14. That craft (astucia), fraud (fraude) or disguise (disfraz) be employed (a) Involves intellectual trickery and cunning on the part of the accused. (b) It is employed as a scheme in the execution of the crime. FRAUD (a) Insidious words or machinations used (1) to induce the victim

(2) to act in a manner (b) which would enable the offender to carry out his design. CRAFT Craft and fraud may be (a) absorbed in treachery if they have been deliberately adopted as the means, methods or forms for the treacherous strategy, or (b) they may co-exist independently where they are adopted for a different purpose in the commission of the crime. Fraud Craft

When there is a DIRECT The act of the accused INDUCEMENT by was done in order NOT insidious words or TO AROUSE SUSPICION machinations DISGUISE (a) Resorting to any device to conceal identity. (b) The test of disguise is (1) whether the device or contrivance resorted to by the offender (2) was intended to or did make identification more difficult, such as the use of a mask, false hair or beard. (c) But if in spite of the use of handkerchief to cover their faces, the culprits were recognized by the victim, disguise is not considered aggravating. Basis: Means employed in the commission of the crime. People v. San Pedro:Where the accused pretended to hire the driver in order to get his vehicle, it was held that there was craft directed to the theft of the vehicle, separate from the means subsequently used to treacherously kill the defenseless driver. People v. Masilang:There was also craft where after hitching a ride, the accused requested the driver to take them to a place to visit somebody, when in fact they had already planned to kill the driver. People v. Labuguen (2000):Craft involves intellectual trickery and cunning on the part of the offender. When there is a direct inducement by insidious words or machinations, fraud is present. By saying that he would accompany the victim to see the cows which the latter intended to buy, appellant was able to lure the victim to go with him.

PAGE 52

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

Par. 15. That advantage be taken of superior strength, or means be employed to weaken the defense To TAKE ADVANTAGE of superior strength means (a) to use purposely excessive force (b) out of proportion to the means of defense available to the person attacked. Superiority may arise from (a) aggressors sex, build, weapon or number (b) as compared to that of the victim (e.g. accused attacked an unarmed girl with a knife; 3 men stabbed to death the female victim). No advantage of superior strength when (a) one who attacks is overcome with passion and obfuscation or (b) when quarrel arose unexpectedly and the fatal blow was struck while victim and accused were struggling. Versus by a band: In the circumstance of abuse of superior strength, what is taken into account is (a) not the number of aggressors nor the fact that they are armed (b) but their relative physical might vis--vis the offended party Means Employed to Weaken Defense This circumstance is applicable only (a) to crimes against persons and (b) sometimes against person and property, such as robbery with physical injuries or homicide. Note: The means used must not totally eliminate possible defense of the victim, otherwise it will fall under treachery Basis: Means employed in the commission of the crime. People v. Carpio:There must be evidence of notorious inequality of forces between the offender and the offended party in their age, size and strength, and that the offender took advantage of such superior strength in the commission of the crime. The mere fact that there were two persons who attacked the victim does not per se constitute abuse of superior strength.

People v. Lobrigas (2002):The crime committed was murder qualified by the aggravating circumstance of abuse of superior strength. To appreciate abuse of superior strength, there must be a deliberate intent on the part of the malefactors to take advantage of their greater number. They must have notoriously selected and made use of superior strength in the commission of the crime. To take advantage of superior strength is to use excessive force that is out of proportion to the means for self-defense available to the person attacked; thus, the prosecution must clearly show the offenders' deliberate intent to do so. People v. Barcelon (2002): Abuse of superior strength was present in the commission of the crime. The court cited the case of People vs. Ocumen, where an attack by a man with a deadly weapon upon an unarmed woman constitutes the circumstance of abuse of that superiority which his sex and the weapon used in the act afforded him, and from which the woman was unable to defend herself. The disparity in age between the assailant and the victim, aged 29 and 69, respectively, indicates physical superiority on appellant's part over the deceased. It did not matter that appellant was "dark" with a "slim body build" or "medyo mataba." What mattered was that the malefactor was male and armed with a lethal weapon that he used to slay the victim. People v. Sansaet (2002):Mere superiority in number, even assuming it to be a fact, would not necessarily indicate the attendance of abuse of superior strength. The prosecution should still prove that the assailants purposely used excessive force out of proportion to the means of defense available to the persons attacked. Finally, to appreciate the qualifying circumstance of abuse of superior strength, what should be considered is whether the aggressors took advantage of their combined strength in order to consummate the offense. To take advantage of superior strength means to purposely use excessive force out of proportion to the means available to the person attacked to defend himself. Par. 16. That the act be committed with treachery (alevosia) Treachery when the offender commits any of the crimes against the person, employing means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make.

PAGE 53

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

Requisites: (1) The employment of means of execution that gave the person attacked no opportunity to defend himself or retaliate; and (2) That the offender consciously adopted the particular means, method or form of attack employed by him. Employment of means, methods and form in the commission of the crime: (a) Which tend directly and specially to (b) ensure its execution (c) without risk to himself arising from the defense which the offended party might make. The essence of treachery is that by virtue of the means, method or form employed by the offender, the offended party was not able to put up any defense. (a) If the offended party was able to put up a defense, even only a token one, there is no treachery. (b) Instead, some other aggravating circumstance may be present but it is no longer treachery. Rules Regarding Treachery (1) Applicable only to crimes against persons. (2) Means, methods or forms need not insure accomplishment or consummation of the crime. The treacherous character of the means employed in the aggression does not depend upon the result thereof but upon the means itself. Thus, frustrated murder could be aggravated by treachery. (3) The mode of attack must be consciously adopted. The accused must make some preparation to kill the deceased in such manner as to insure the execution of the crime or to make it impossible or hard for the person attacked to defend himself or retaliate. (People v. Tumaob) It must be a result of meditation, calculation or reflection. (U.S. v. Balagtas) (4) Treachery cannot be presumed. The suddenness of the attack does not, of itself, suffice to support a finding of alevosia, even if the purpose was to kill, so long as the decision was made all of a sudden and the victims helpless position was accidental. (People v. Lubreo). It must be proved by clear and convincing evidence. (People v. Santos).

Attacks show intention to eliminate risk: (a) Victim asleep (b) Victim half-awake or just awakened (c) Victim grappling or being held. (d) Attacked from behind Additional rules: (a) When the aggression is CONTINUOUS, treachery must be present in the BEGINNING of the assault. (b) When the assault WAS NOT CONTINUOUS, in that there was an interruption, it is sufficient that treachery was present AT THE MOMENT THE FATAL BLOW WAS GIVEN. Basis: Means and ways employed in the commission of the crime. People vs. Ilagan:Suddenness of the attack does not by itself constitute treachery in the absence of evidence that the manner of attack was consciously adopted by the offender to render the victim defenceless. People v. Malejana: Treachery may still be appreciated even when the victim was forewarned of danger to his person. What is decisive is that the execution of the attack made it impossible for the victim to defend himself or to retaliate. Thus, even a frontal attack could be treacherous when unexpected and on an unarmed victim who would be in no position to repel the attack or avoid it. Treachery cannot obfuscation. co-exist with passion and

People v. Rendaje (2000):To constitute treachery, two conditions must concur: (1) the employment of means, methods or manner of execution that would ensure the offender's safety from any defense or retaliatory act on the part of the offended party; and (2) the offender's deliberate or conscious choice of the means, method or manner of execution.

PAGE 54

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

People v. Dumadag (2004): As a general rule, a sudden attack by the assailant, whether frontally or from behind, is treachery if such mode of attack was deliberately adopted by him with the purpose of depriving the victim of a chance to either fight or retreat. The rule does not apply if the attack was not preconceived but merely triggered by infuriation of the appellant on an act made by the victim. In the present case, it is apparent that the attack was not preconceived. It was triggered by the appellant's anger because of the victim's refusal to have a drink with the appellant and his companions. Treachery absorbs: (1) Abuse of superior strength (U.S. v. Estopia) (2) Use of means to weaken the defense (People v. Siatong) (3) Aid of armed men (People v. Ferrera) (4) Nighttime (People v. Kintuan) (5) Craft (People v. Malig) (6) By a band (People v. Ampo-an) Par. 17. That means be employed or circumstances brought about which add ignominy to the natural effects of the act (a) It is a circumstance pertaining to the moral order, which adds disgrace to the material injury caused by the crime. (b) The means employed or the circumstances brought about must tend to make the effects of the crime MORE HUMILIATING or TO PUT THE OFFENDED PARTY TO SHAME. (c) Applicable to crimes against chastity, rape, less serious physical injuries, light or grave coercion and murder. (d) Raping a woman from behind is ignominous because that is not the normal form of intercourse, it is something which offends the morals of the offended woman. This is how animals do it. Basis: Means employed. People v. Torrefiel (1947):The novelty of the manner in which the accused raped the victim by winding cogon grass around his genitals augmented the wrong done by increasing its pain and adding ignominy thereto.

People v. Alfanta (1999):There was ignominy because the accused not only used missionary position but also the same position as dogs do. He also inserted his finger inside her. Although the dog position is not novel and often been used by couples, there is ignominy if the sexual act is performed not by consenting parties. People v. Cachola (2004):For ignominy to be appreciated, it is required that the offense be committed in a manner that tends to make its effect more humiliating, thus adding to the victim's moral suffering. Where the victim was already dead when his body or a part thereof was dismembered, ignominy cannot be taken against the accused. In this case, the information states that Victorino's sexual organ was severed after he was shot and there is no allegation that it was done to add ignominy to the natural effects of the act. We cannot, therefore, consider ignominy as an aggravating circumstance. People v. Bumidang (2000): The aggravating circumstance of ignominy shall be taken into account if means are employed or circumstances brought about which add ignominy to the natural effects of the offense; or if the crime was committed in a manner that tends to make its effects more humiliating to the victim, that is, add to her moral suffering. It was established that Baliwang used the flashlight and examined the genital of Gloria before he ravished her. He committed his bestial deed in the presence of Gloria's old father. These facts clearly show that Baliwang deliberately wanted to further humiliate Gloria, thereby aggravating and compounding her moral sufferings. Ignominy was appreciated in a case where a woman was raped in the presence of her betrothed, or of her husband, or was made to exhibit to the rapists her complete nakedness before they raped her. Par. 18.That the crime be committed after an unlawful entry. Unlawful Entry when an entrance of a crime a wall, roof, floor, door, or window be broken. (a) There is unlawful entry when an entrance is effected by a way not intended for the purpose. (b) Unlawful entry must be a means to effect entrance and not for escape. (c) There is no unlawful entry when the door is broken and thereafter the accused made an entry thru the broken door. The breaking of the door is covered by paragraph 19. (d) Unlawful entry is inherent in the crime of trespass to dwelling and robbery with force

PAGE 55

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

upon things but aggravating in the crime of robbery with violence against or intimidation of persons. Basis: Means and ways employed to commit the crime. Par. 19. That as a means to the commission of the crime, a wall, roof, floor, door or window be broken (a) To be considered as an AC, breaking the door must be utilized as a means to the commission of the crime. (b) It is only aggravating in cases where the offender resorted to any of said means TO ENTER the house. (c) If the wall, etc. is broken in order to get out of the place, it is not aggravating. (d) Because of the phrase as a means to the commission of a crime, it is not necessary that the offender should have entered the building. What aggravates the liability of the offender is the breaking of a part of the building as a means to the commission of the crime. Basis: Means and ways employed to commit the crime. Par. 20. That the crime be committed with the aid of persons under fifteen years of age or by means of motor vehicles, motorized watercraft, airships, or other similar means (a) With the aid of persons under 15 years of age (5) To repress, so far as possible, the frequent practice resorted to by professional criminals of availing themselves of minors taking advantage of their lack of criminal responsibility (remember that minors are given leniency when they commit a crime) (b) By means of a motor vehicle To counteract the great facilities found by modern criminals in said means to commit crime and flee and abscond once the same is committed. This circumstance is aggravating only when used in the commission of the offense. If motor vehicles are used only in the escape of the offender, it is not aggravating. It must have been used to facilitate the commission of the crime to be aggravating. Or other similar means the expression should be understood as referring to

(a) MOTORIZED vehicles or (b) other efficient means of transportation similar to automobile or airplane. Basis: Means and ways employed to commit the crime. Par. 21. That the wrong done in the commission of the crime be deliberately augmented by causing other wrong not necessary for its commission Requisites: (1) That the injury caused be deliberately increased by causing other wrong; (2) That the other wrong be unnecessary for the execution of the purpose of the offender. For it to exist, it must be shown that the accused enjoyed and delighted in making his victim suffer. If the victim was already dead when the acts of mutilation were being performed, this would also qualify the killing to murder due to outraging of his corpse. Basis: Ways employed to commit the crime. Ignominy shocks the moral physical conscience of man refers to the moral effect of a crime and it pertains refers to the physical to the moral order, suffering of the victim so whether or not the victim he has to be alive is dead or alive People v. Catian (2002): Catian repeatedly struck Willy with a "chako" on the head, causing Willy to fall on his knees. Calunod seconded by striking the victim with a piece of wood on the face. When Willy finally collapsed, Sumalpong picked him up, carried him over his shoulder, and carried Willy to a place where they burned Willy. The latters skeletal remains were discovered by a child who was pasturing his cow near a peanut plantation. Held: The circumstance of cruelty may not be considered as there is no showing that the victim was burned while he was still alive. For cruelty to exist there must be proof showing that the accused delighted in making their victim suffer slowly and gradually, causing him unnecessary physical and moral pain in the consummation of the criminal act. No proof was presented that would show that accused-appellants deliberately and wantonly Cruelty

PAGE 56

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

augmented the suffering of their victim. People v. Guerrero (2002): Appellant first severed the victim's head before his penis was cut-off. This being the sequence of events, cruelty has to be ruled out for it connotes an act of deliberately and sadistically augmenting the wrong by causing another wrong not necessary for its commission, or inhumanely increasing the victim's suffering. As testified to by Dr. Sanglay, and reflected in her medical certificate, Ernesto in fact died as a result of his head being severed. No cruelty is to be appreciated where the act constituting the alleged cruelty in the killing was perpetrated when the victim was already dead. QUALIFYING
DECREE CODIFYING THE LAWS ON ILLEGAL/ UNLAWFUL POSSESSION, MANUFACTURE, DEALING IN, ACQUISITION OR DISPOSITION, OF FIREARMS, AMMUNITION OR EXPLOSIVES (P.D. 1866, AS AMENDED BY R.A. NO. 8294) AS AN AGGRAVATING CIRCUMSTANCE

(3) Tampering of firearm's serial number. (4) Repacking or altering the composition of lawfully manufactured explosives. People vs. De Gracia (1994): Ownership is not an essential element of illegal possession of firearms and ammunition. What the law requires is merely possession which includes not only actual physical possession but also constructive possession. Palaganas vs. Court of Appeals (2006): With the passage of Republic Act. No. 8294 on 6 June 1997, the use of an unlicensed firearm in murder homicide is now considered as a SPECIAL aggravating circumstance and not a generic aggravating circumstance. People vs. Ladjaalam (2000):If an unlicensed firearm is used in the commission of any crime, there can be no separate offense of simple illegal possession of firearms. Hence, if the other crime is murder or homicide, illegal possession of firearms becomes merely an aggravating circumstance, not a separate offense. Since direct assault with multiple attempted homicide was committed in this case, appellant can no longer be held liable for illegal possession of firearms.
THE COMPREHENSIVE DANGEROUS DRUGS ACT OF (R.A. NO. 9165)

Acts punished (1) Unlawful manufacture, sale, acquisition, disposition or possession of firearms or ammunition or instruments used or intended to be used in the manufacture of firearms or ammunition Provided, That no other crime is committed. (a) If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. (b) If the violation of this section is in furtherance of or incident to, or in connection with the crime of rebellion or insurrection, sedition, or attempted coup d'etat, such violation shall be absorbed as an element of the crime of rebellion, or insurrection, sedition, or attempted coup d'etat. (2) Unlawful manufacture, sale, acquisition, disposition or possession of explosives. (a) When a person commits any of the crimes defined in the Revised Penal Code or special laws (b) with the use of the aforementioned explosives, detonation agents or incendiary devices, which results in the death of any person or persons, (c) the use of such explosives, detonation agents or incendiary devices shall be considered as an aggravating circumstance.

2002

As a qualifying aggravating circumstance Section 25. Qualifying Aggravating Circumstances in the Commission of a Crime by an Offender Under the Influence of Dangerous Drugs. Notwithstanding the provisions of any law to the contrary, a positive finding for the use of dangerous drugs shall be a qualifying aggravating circumstance in the commission of a crime by an offender, and the application of the penalty provided for in the Revised Penal Code shall be applicable. Immunity coverage from prosecution and punishment,

Sec. 33. Immunity from Prosecution and Punishment. Notwithstanding the provisions of Section 17, Rule 119 of the Revised Rules of Criminal Procedure and the provisions of Republic Act No. 6981 or the

PAGE 57

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

Witness Protection, Security and Benefit Act of 1991, any person who has violated Sections 7, 11, 12, 14, 15, and 19, Article II of this Act, who voluntarily gives information about any violation of Sections 4, 5, 6, 8, 10, 13, and 16, Article II of this Act as well as any violation of the offenses mentioned if committed by a drug syndicate, or any information leading to the whereabouts, identities and arrest of all or any of the members thereof; and who willingly testifies against such persons as described above, shall be exempted from prosecution or punishment for the offense with reference to which his/her information of testimony were given, and may plead or prove the giving of such information and testimony in bar of such prosecution: Provided, That the following conditions concur: (1) The information and testimony are necessary for the conviction of the persons described above; (2) Such information and testimony are not yet in the possession of the State; (3) Such information and testimony can be corroborated on its material points; (4) the informant or witness has not been previously convicted of a crime involving moral turpitude, except when there is no other direct evidence available for the State other than the information and testimony of said informant or witness; and (5) The informant or witness shall strictly and faithfully comply without delay, any condition or undertaking, reduced into writing, lawfully imposed by the State as further consideration for the grant of immunity from prosecution and punishment. Provided, further, That this immunity may be enjoyed by such informant or witness who does not appear to be most guilty for the offense with reference to which his/her information or testimony were given: Provided, finally, That there is no direct evidence available for the State except for the information and testimony of the said informant or witness. Sec. 34. Termination of the Grant of Immunity. The immunity granted to the informant or witness, as prescribed in Section 33 of this Act, shall not attach should it turn out subsequently that the information and/or testimony is false, malicious or made only for the purpose of harassing, molesting or in any way prejudicing the persons described in the preceding Section against whom such information or testimony is directed against. In such case, the informant or

witness shall be subject to prosecution and the enjoyment of all rights and benefits previously accorded him under this Act or any other law, decree or order shall be deemed terminated. In case an informant or witness under this Act fails or refuses to testify without just cause, and when lawfully obliged to do so, or should he/she violate any condition accompanying such immunity as provided above, his/her immunity shall be removed and he/she shall likewise be subject to contempt and/or criminal prosecution, as the case may be, and the enjoyment of all rights and benefits previously accorded him under this Act or in any other law, decree or order shall be deemed terminated. In case the informant or witness referred to under this Act falls under the applicability of this Section hereof, such individual cannot avail of the provisions under Article VIII of this Act. Minor offenders Sec. 66. Suspension of Sentence of a First-Time Minor Offender. An accused who is over fifteen (15) years of age at the time of the commission of the offense mentioned in Section 11 of this Act, but not more than eighteen (18) years of age at the time when judgment should have been promulgated after having been found guilty of said offense, may be given the benefits of a suspended sentence, subject to the following conditions: (a) He/she has not been previously convicted of violating any provision of this Act, or of the Dangerous Drugs Act of 1972, as amended; or of the Revised Penal Code; or of any special penal laws; (b) He/she has not been previously committed to a Center or to the care of a DOH-accredited physician; and (c) The Board favorably recommends that his/her sentence be suspended. While under suspended sentence, he/she shall be under the supervision and rehabilitative surveillance of the Board, under such conditions that the court may impose for a period ranging from six (6) months to eighteen (18) months. Upon recommendation of the Board, the court may commit the accused under suspended sentence to a Center, or to the care of a DOH-accredited physician for at least six (6) months, with after-care and follow-up program for not more than eighteen (18) months.

PAGE 58

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

In the case of minors under fifteen (15) years of age at the time of the commission of any offense penalized under this Act, Article 192 of Presidential Decree No. 603, otherwise known as the Child and Youth Welfare Code, as amended by Presidential Decree No. 1179 shall apply, without prejudice to the application of the provisions of this Section. Sec. 67. Discharge After Compliance with Conditions of Suspended Sentence of a First-Time Minor Offender. If the accused first time minor offender under suspended sentence complies with the applicable rules and regulations of the Board, including confinement in a Center, the court, upon a favorable recommendation of the Board for the final discharge of the accused, shall discharge the accused and dismiss all proceedings. Upon the dismissal of the proceedings against the accused, the court shall enter an order to expunge all official records, other than the confidential record to be retained by the DOJ relating to the case. Such an order, which shall be kept confidential, shall restore the accused to his/her status prior to the case. He/she shall not be held thereafter to be guilty of perjury or of concealment or misrepresentation by reason of his/her failure to acknowledge the case or recite any fact related thereto in response to any inquiry made of him for any purpose. Sec. 68. Privilege of Suspended Sentence to be Availed of Only Once by a First-Time Minor Offender. The privilege of suspended sentence shall be availed of only once by an accused drug dependent who is a first-time offender over fifteen (15) years of age at the time of the commission of the violation of Section 15 of this Act but not more than eighteen (18) years of age at the time when judgment should have been promulgated. Sec. 69. Promulgation of Sentence for First-Time Minor Offender. If the accused first-time minor offender violates any of the conditions of his/her suspended sentence, the applicable rules and regulations of the Board exercising supervision and rehabilitative surveillance over him, including the rules and regulations of the Center should confinement be required, the court shall pronounce judgment of conviction and he/she shall serve sentence as any other convicted person. Sec. 70. Probation or Community Service for a FirstTime Minor Offender in Lieu of Imprisonment. Upon promulgation of the sentence, the court may, in its discretion, place the accused under probation, even if

the sentence provided under this Act is higher than that provided under existing law on probation, or impose community service in lieu of imprisonment. In case of probation, the supervision and rehabilitative surveillance shall be undertaken by the Board through the DOH in coordination with the Board of Pardons and Parole and the Probation Administration. Upon compliance with the conditions of the probation, the Board shall submit a written report to the court recommending termination of probation and a final discharge of the probationer, whereupon the court shall issue such an order. The community service shall be complied with under conditions, time and place as may be determined by the court in its discretion and upon the recommendation of the Board and shall apply only to violators of Section 15 of this Act. The completion of the community service shall be under the supervision and rehabilitative surveillance of the Board during the period required by the court. Thereafter, the Board shall render a report on the manner of compliance of said community service. The court in its discretion may require extension of the community service or order a final discharge. In both cases, the judicial records shall be covered by the provisions of Sections 60 and 64 of this Act. If the sentence promulgated by the court requires imprisonment, the period spent in the Center by the accused during the suspended sentence period shall be deducted from the sentence to be served. Sec. 71. Records to be kept by the Department of Justice. The DOJ shall keep a confidential record of the proceedings on suspension of sentence and shall not be used for any purpose other than to determine whether or not a person accused under this Act is a first-time minor offender. Application/Non application of RPC provisions (Sec. 98, R.A. No. 9165) provisions (Sec. 98) cf. Art. 10, RPC Sec. 98, RA 9165. Limited Applicability of the Revised Penal Code. Notwithstanding any law, rule or regulation to the contrary, the provisions of the Revised Penal Code (Act No. 3814), as amended, shall not apply to the provisions of this Act, except in the case of minor offenders. Where the offender is a minor, the penalty for acts punishable by life imprisonment to death provided herein shall be reclusion perpetua to death.

PAGE 59

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

Art. 10, RPC. Offenses not subject to the provisions of this Code. Offenses which are or in the future may be punishable under special laws are not subject to the provisions of this Code. This Code shall be supplementary to such laws, unless the latter should specially provide the contrary.. Other Aggravating Circumstance Organized or Syndicated Crime Group (Art. 62, RPC) Organized or syndicated crime group: (a) A group of two or more persons (b) collaborating, confederating or mutually helping one another (c) for the purpose of gain in the commission of a crime. Special aggravating circumstance The maximum penalty shall be imposed (a) if the offense was committed by any person (b) who belongs to an organized or syndicated crime group. ALTERNATIVE CIRCUMSTANCES THREE TYPES of alternative circumstances under Art. 15: (1) Relationship (2) Intoxication (3) Degree of education/instruction Alternative Circumstances are circumstances which must be taken in consideration as aggravating or mitigating according to the nature and effects of the crime (1) Relationship (BRADSS) (a) Spouse (b) Ascendant (c) Descendant (d) Legitimate, natural, or adopted Brother or Sister (e) Relative by Affinity in the same degree of the offender (a) Where relationship is exempting (i) An accessory who is related to the principal within the relationship prescribed in Art. 20 except if accessory falls within Par. 1 of Art. 19; (ii) A legally married person who having surprised his spouse in the act of committing sexual intercourse with another person who shall inflict upon them physical injuries of any other kind (i.e. less serious and slight physical injuries). [Art. 247, RPC]

(iii) Spouses, ascendants and descendants, or relatives by affinity in the same line who committed the crime of theft, malicious mischief or swindling (estafa) but theres civil liability. [Art. 332, RPC] (b) Where relationship is aggravating (i) In CRIMES AGAINST PERSONS in cases where (a) the offended party is a relative of a higher degree than the offender (grandson kills grandfather), or (b) when the offender and the offended party are relatives of the same level, as killing a brother, a brother-in-law, a half-brother or adopted brother. (ii) When the crime is SERIOUS PHYSICAL INJURIES (Art. 263), even if the offended party is a descendant of the offender, relationship is AGGRAVATING. But the serious physical injuries must not be inflicted by a parent upon his child by excessive chastisement. (iii) When the crime is LESS SERIOUS PHYSICAL INJURIES OR SLIGHT PHYSICAL INJURIES if the offended party is a relative of a higher degree than the offender (iv) When the crime is HOMICIDE OR MURDER if the victim of the crime is a relative of lower degree. (v) In CRIMES AGAINST CHASTITY relationship is always aggravating (c) Where relationship is mitigating (i) In Crimes against property, by analogy to the provisions of Art. 332, relationship is mitigating in the crimes of robbery (arts. 294-3-2), usurpation (Art. 312), fraudulent insolvency (Art. 314) and arson (Arts. 321322, 325-326) (ii) When the crime is less serious or slight physical injuries if the offended party is a relative of a lower degree than the offender. People v. Atop (1998):11-year-old Regina lives with her grandmother. Atop is the common-law husband of her grandmother. Atop was found guilty of 4 counts of rape which was committed in 1993 (2x), 1994 and 1995. The lower court took into account the Aggravating Circumstance of relationship. Held: The law cannot be stretched to include persons attached by common-law relations. In this case, there is no blood relationship or legal bond that links Atop to his victim.

PAGE 60

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

People v. Marcos (2001): In order that the alternative circumstance of relationship may be taken into consideration in the imposition of the proper penalty, the offended party must either be the (a) spouse, (b) ascendant, (c) descendant, (d) legitimate, natural or adopted brother or sister, or (e) relative by affinity in the same degree, of the offender.. The rule is that relationship is aggravating in crimes against persons as when the offender and the offended party are relatives of the same level, such as killing a brother. (2) Intoxication It is only the circumstance of intoxication which (a) if not mitigating, (b) is automatically aggravating. (a) When mitigating (1) There must be an indication that (a) because of the alcoholic intake of the offender, (b) he is suffering from diminished selfcontrol. (c) It is not the quantity of alcoholic drink. (d) Rather it is the effect of the alcohol upon the offender which shall be the basis of the mitigating circumstance. (2) That offender is (a) not a habitual drinker and (b) did not take alcoholic drink with the intention to reinforce his resolve to commit crime (b) When Aggravating: (1) If intoxication is habitual (2) If it is intentional to embolden offender to commit crime People v. Camano (1982):Intoxication is mitigating if accidental, not habitual nor intentional, i.e., not subsequent to the plan to commit the crime. It is aggravating if habitual or intentional. To be mitigating, it must be indubitably proved. A habitual drunkard is one given to intoxication by excessive use of intoxicating drinks. The habit should be actual and confirmed. It is unnecessary that it be a matter of daily occurrence. Intoxication lessens the individual resistance to evil thought and undermines willpower making its victim a potential evil doer. In this case, the intoxication of the appellant not being habitual and considering that the said appellant was in a state of intoxication at the time of the commission of the felony, the alternative circumstance of intoxication should be considered mitigating.

(3) Degree of Instruction/ Education (a) Refers to the lack of sufficient intelligence of and knowledge of the full significance of ones act (b) Being illiterate does not mitigate liability if crime committed is one which one inherently understands as wrong (e.g. parricide) (c) To be considered mitigating, degree of instruction must have some reasonable connection to the offense. ABSOLUTORY CAUSE There are FOUR TYPES of absolutory circumstances: (1) INSTIGATION (2) PARDON (3) OTHER ABSOLUTORY CAUSES (4) ACTS NOT COVERED BY LAW AND IN CASE OF EXCESSIVE PUNISHMENT (ART. 5) Absolutory Causes those where the act committed is a crime but for reasons of public policy and sentiment there is no penalty imposed. (1) Instigation Entrapment Ways and means are resorted to for the purpose of trapping and capturing the lawbreaker in the execution of his criminal plan Instigation The instigator practically induces the would-be accused into the commission of the offense and himself becomes a co-principal.

The law enforcer conceives the commission The means originate from of the crime and suggests the mind of the criminal. to the accused who carries it into execution. A person has planned or is about to commit a crime and ways and means are resorted to by a public officer to trap and catch the criminal. Not a bar to prosecution conviction of lawbreaker. A public officer or a private detective induces an innocent person to commit a crime and would arrest him upon or after the commission of the crime by the latter.

the The accused must be and acquitted because the the offender simply acts as a tool of the law enforcers

PAGE 61

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

Entrapment - Entrapping persons into crime for the purpose of instituting criminal prosecutions. It is a scheme or technique ensuring the apprehension of the criminals by being in the actual crime scene. The law officers shall not be guilty to the crime if they have done the following: (a) He does not induce a person to commit a crime for personal gain or is not involved in the planning of the crime. (b) Does take the necessary steps to seize the instrument of the crime and to arrest the offenders before he obtained the profits in mind. Instigation - The involvement of a law officer in the crime itself in the following manner: (a) He induces a person to commit a crime for personal gain. (b) Doesnt take the necessary steps to seize the instrument of the crime & to arrest the offenders before he obtained the profits in mind. (c) He obtained the profits in mind even through afterwards does take the necessary steps seize the instrument of the crime and to arrest the offenders. Example of entrapment: A, a government anti-narcotics agent, acted as a poseur buyer of shabu and negotiated with B, a suspected drug pusher who is unaware that A is a police officer. A then paid B in marked money and the latter handed over a sachet of shabu. Upon signal, the cops closed in on B Example of instigation: A, leader of an anti-narcotics team, approached and persuaded B to act as a buyer of shabu and transact with C, a suspected pusher. B was given marked money to pay C for a sachet of shabu. After the sale was consummated, the cops closed in and arrested both B and C. People v. Pacis (2002): Yap, an NBI agent, received information that a Pacis was offering to sell kg of "shabu." A buy-bust operation was approved. The informant introduced Yap to Pacis as an interested buyer. They negotiated the sale of kg of shabu. Pacis handed to Yap a paper bag with the markings "Yellow Cab". While examining it, Pacis asked for the payment. Yap gave the "boodle money" to Pacis. Upon Pacis's receipt of the payment, the officers identified themselves as NBI agents and arrested him. Held: The operation that led to the arrest of appellant was an entrapment, not instigation. In entrapment, ways and means are resorted to for the

purpose of trapping and capturing lawbreakers in the execution of their criminal plan. In instigation, instigators practically induce the would-be defendant into the commission of the offense and become co-principals themselves. Entrapment is sanctioned by law as a legitimate method of apprehending criminal elements engaged in the sale and distribution of illegal drugs. US v. Phelps (1910): Phelps was charged and found guilty for violating the Opium Law (Act No. 1761). Phelps was induced by Smith, an employee of the Bureau of Internal Revenue, into procuring opium, providing for a venue and making arrangements for the two of them to smoke opium. Held: Smith not only suggested the commission of the crime but also expressed his desire to commit the offense in paying the amount required for the arrangements. Such acts done by employees of government in encouraging or inducing persons to commit a crime in order to prosecute them are most reprehensible. This is an instance of instigation where Smith, the instigator (who is either a public officer or a private detective) practically induces the would-be accused into the commission of the offense. People v. Lua Chu and Uy Se Tieng (1931): Entrapment is not a case where an innocent person is induced to commit a crime merely to prosecute him, but it simply a trap set to catch a criminal. (2) Pardon General rule: Pardon does not extinguish criminal action (Art 23). Exception: Pardon by marriage between the accused and the offended party in cases of SEDUCTION, ABDUCTION, RAPE AND ACTS OF LASCIVIOUSNESS (Art 344). (3) Other Absolutory Causes (a) Spontaneous desistance [Art. 6] (b) Light felonies not consummated [Art. 7] (c) Accessories in light felonies (d) Accessories exempt under Art. 20 (e) Trespass to dwelling to prevent serious harm to self [Art. 280] (f) exemption from criminal liability in crimes against property (g) Under Article 332, exemptions from criminal liability for cases of theft, swindling

PAGE 62

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

and malicious mischief. There would only be civil liability. (h) Death under exceptional circumstances (Art. 247) (i) Under Article 219, discovering secrets through seizure of correspondence of the ward by their guardian is not penalized. (j) Ways on how criminal liability is extinguished under Art 89. (4) Acts not covered by Law and in Case of Excessive Punishment Art. 5 RPC. Duty of the court in connection with acts which should be repressed but which are not covered by the law, and in cases of excessive penalties. 1) Whenever a court has knowledge of any act which it may deem proper to repress and which is not punishable by law, it shall render the proper decision, and shall report to the Chief Executive, through the Department of Justice, the reasons which induce the court to believe that said act should be made the subject of legislation. 2) In the same way, the court shall submit to the Chief Executive, through the Department of Justice, such statement as may be deemed proper, without suspending the execution of the sentence, when a strict enforcement of the provisions of this Code would result in the imposition of a clearly excessive penalty, taking into consideration the degree of malice and the injury caused by the offense. Art. 5 cover two situations: (1) Where the court cannot convict the accused because the act he committed is not punishable under the law, but the court deems it proper to repress such act. (a) The proper judgment is acquittal. (b) The judge must report to the Chief Executive that said act be made subject of penal legislation and the reasons therefore. (2) Where the court after trial finds the accused guilty, and the penalty prescribed for the crime appears too harsh considering the conditions surrounding the commission of the crime, (a) The judge should impose the law (not suspend the execution of the sentence). (b) The most that he could do is recommend to the Chief Executive to grant executive clemency.

People v. Veneracion (1995): The law plainly and unequivocally provides that when by reason or on the occasion of rape, a homicide is committed, the penalty shall be death. Courts are not concerned with wisdom, efficacy or morality of law. The discomfort faced by those forced by law to impose death penalty is an ancient one, but it is a matter upon which judges have no choice. The Rules of Court mandates that after an adjudication of guilt, the judges should impose the proper penalty and civil liability provided for by the law on the accused.
EXTENUATING CIRCUMSTANCES

Circumstances which mitigate the criminal liability of the offender but not found in Article 13 Illustration: A kleptomaniac is criminally liable. But he would be given the benefit of a mitigating circumstance analogous to paragraph 9 of Article 13, that of suffering from an illness which diminishes the exercise of his will poser without, however, depriving him of the consciousness of his act. An unwed mother killed her child in order to conceal a dishonor. The concealment of dishonor is an extenuating circumstance insofar as the unwed mother or the maternal grandparents are concerned, but not insofar as the father of the child is concerned. Mother killing her new born child to conceal her dishonor, penalty is lowered by two degrees. Since there is a material lowering of the penalty or mitigating the penalty, this is an extenuating circumstance.

Persons Criminally Liable/Degree of Participation


Under the Revised Penal Code, when more than one person participated in the commission of the crime, the law looks into their participation because in punishing offenders, the Revised Penal Code classifies them as: (a) PRINCIPAL (b) ACCOMPLICE (c) ACCESSORY

PAGE 63

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

(1) This classification is true only under the RPC and is not applied under special laws, because the penalties under the latter are never graduated. (2) (1) Do not use the term principal when the crime committed is a violation of special law (use the term offender/s, culprit/s, accused) As to the liability of the participants in the grave, less grave or light felony: (1) When the felony is grave, or less grave, all participants are criminally liable. (2) But when the felony is only light, only the principal and the accomplice are liable. The accessory is not. Basis: In the commission of light felonies, the social wrong as well as the individual prejudice is so small that penal sanction is deemed not necessary. PRINCIPAL (1) By Direct Participation (2) By Inducement (3) By Indispensable Cooperation (1) By Direct Participation Elements: (1) That they participated in the criminal resolution; and (2) That they carried out their plan and personally took part in its execution by acts which directly tended to the same end. Those who are liable (participated in the criminal resolution): (a) materially execute the crime; (b) appear at the scene of the crime; (c) perform acts necessary in the commission of the offense. Why one who does not appear at the scene of the crime is not liable: (a) his non-appearance is deemed desistance which is favored and encouraged. (b) conspiracy is generally not a crime unless the law specifically provides a penalty therefore. (c) there is no basis for criminal liability because there is no criminal participation. (2) By Inducement Elements: (1) That the inducement be made directly with the intention of procuring the commission of the crime;

(2) That such inducement be the determining cause of the commission of the crime by the material executor. Two ways of becoming principal by induction: (1) By directly forcing another to commit a crime by: (a) Using irresistible force - such physical force as would produce an effect upon the individual that despite of all his resistance, it reduces him to a mere instrument. (b) Causing uncontrollable fear such fear that must be grave, actual, serious and of such kind that majority of men would succumb to such moral compulsion. The latter must be such as to leave a reasonable fear for ones life or limb and not speculative, fanciful or remote fear. (2) By directly inducing another to commit a crime by: (a) Giving of price, or offering of reward or promise. The one giving the price or offering the reward or promise is a principal by inducement while the one committing the crime in consideration thereof is a principal by direct participation. (b) Using words of command. The person who used the words of command is a principal by inducement while the person who committed the crime because of the words command is a principal by direct participation. (1) That the one uttering the words of command must have the intention of procuring the commission of the crime; (2) That the one who made the command must have an ascendancy or influence over the person who acted; (3) That the words used must be so direct, so efficacious, so powerful as to amount to physical or moral coercion; (4) That the words of command must be uttered prior to the commission of the crime; and (5) The material executor of the crime has no personal reason to commit the crime. Inducement must be strong enough that the person induced could not resist. (a) This is tantamount to an irresistible force compelling the person induced to carry out the crime.

PAGE 64

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

(b) Ill-advised language is not enough unless he who made such remark or advice is a coconspirator in the crime committed. When does a principal by induction become liable? (a) The principal by induction becomes liable only when the principal by direct participation committed the act induced. (b) The inducement must precede the act induced and must be so influential in producing the criminal act that without it, the act would not have been performed. What are the effects of acquittal of principal by direct participation upon the liability of principal by inducement? Conspiracy is negated by the acquittal of codefendant. Illustration: While in the course of a quarrel, a person shouted to A, Kill him! Kill him! A killed the other person. Is the person who shouted criminally liable? Is that inducement? No. The shouting must be an irresistible force for the one shouting to be liable. People v. Valderrama (1993): Ernesto shouted to his younger brother Oscar, Birahin mo na, birahin mo na! Oscar stabbed the victim. It was held that there was no conspiracy. Joint or simultaneous action per se is not indicia of conspiracy without showing of common design. Oscar has no rancor with the victim for him to kill the latter. Considering that Ernesto had great moral ascendancy and influence over Oscar, being much older (35 years old) than the latter, who was 18 years old, and it was Ernesto who provided his allowance, clothing as well as food and shelter, Ernesto is principal by inducement. People v. Agapinay (1990): The one who uttered kill him, we will bury him while the felonious aggression was taking place cannot be held liable as principal by inducement. Utterance was said in the excitement of the hour, not a command to be obeyed. People v. Madall (1990): The son was mauled. The family was not in good terms with their neighbors. The father challenged everybody and when the neighbors approached, he went home to get a rifle.

The shouts of his wife here comes another, shoot him cannot make the wife a principal by inducement. It is not the determining cause of the crime in the absence of proof that the words had great influence over the husband. Neither is the wifes act of beaming the victim with a flashlight indispensable to the killing. She assisted her husband in taking good aim, but such assistance merely facilitated the felonious act of shooting. Considering that it was not so dark and the husband could have accomplished the deed without his wifes help, and considering further that doubts must be resolved in favor of the accused, the liability of the wife is only that of an accomplice. (3) By Indispensable Cooperation Elements: (3) Participation in the criminal resolution, that is, there is either anterior conspiracy or unity of criminal purpose and intention immediately before the commission of the crime charged; (a) Requires participation in the criminal resolution (b) There must be conspiracy (c) Concurrence is sufficient (4) Cooperation in the commission of the offense by performing another act, without which it would have been accomplished. (a) Cooperation must be indispensable (b) If dispensable, accused is only an accomplice (c) If cooperation is necessary in the execution of the offense, accused is considered as a principal by direct participation. Cooperation in the commission of the offense to desire or wish in common a thing. But that common will or purpose does not necessarily mean a previous understanding, for it can be explained or inferred from the circumstances of each case.
COLLECTIVE CRIMINAL RESPONSIBILITY

This is present when the offenders are criminally liable in the same manner and to the same extent. The penalty to be imposed must be the same for all. Principals by direct participation have collective criminal responsibility. Principals by induction, except those who directly forced another to commit a crime, and principals by direct participation have
PAGE 65

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

collective criminal responsibility. Principals by indispensable cooperation have collective criminal responsibilities with the principals by direct participation.
INDIVIDUAL CRIMINAL RESPONSIBILITY

criminal intention because they themselves have decided upon such course of action

know about it after the principals have reached the decision and only then do they agree to cooperate in its execution

In the absence of any previous conspiracy, unity of criminal purpose and intention immediately before the commission of the crime, or community of criminal design, the criminal responsibility arising from different acts directed against one and the same person is individual and not collective, and each of the participants is liable only for the act committed by him. The basis is the importance of the cooperation to the consummation of the crime. (1) If the crime could hardly be committed without such cooperation, then such cooperator would be a principal. (2) If the cooperation merely facilitated or hastened the consummation of the crime, the cooperator is merely an accomplice. The focus is not just on participation but on the importance of participation in committing the crime. In case of doubt, favor the lesser penalty or liability. Apply the doctrine of pro reo. ACCOMPLICE Accomplice are persons who, not acting as principals, cooperate in the execution of the offense by previous and simultaneous acts, which are not indispensable to the commission of the crime. They act as mere instruments that perform acts not essential to the perpetration of the offense. When is one regarded as an accomplice? (1) Determine if there is a conspiracy. (2) If there is, as a general rule, the criminal liability of all will be the same, because the act of one is the act of all. What are the other traits of an accomplice? (1) does not have previous agreement or understanding; or (2) is not in conspiracy with the principal by direct participation. Conspirator Accomplice

Accomplices merely Conspirators decide that a assent to the plan and crime should be cooperate in its committed accomplishment Conspirators are authors of a crime Accomplices are merely instruments who perform the acts not essential to the perpetration of the offense.

Elements: (1) That there be community of design; that is, knowing the criminal design of the principal by direct participation, he concurs with the latter in his purpose; (2) That he cooperates in the execution of the offense by previous or simultaneous acts, with the intention of supplying material or moral aid in the execution of the crime in an efficacious way; and (3) That there be a relation between the acts done by the principal and those attributed to the person charged as accomplice. Principal by Cooperation Accomplice

Cooperation is Cooperation is not indispensable to the indispensable to the commission of the act commission of the act ACCESSORIES When accessories are not criminally liable: (1) When the felony committed is a light felony (2) When the accessory is related to the principal as (a) spouse (b) ascendant, or descendant, or (c) brother or sister whether legitimate, or natural or adopted or (d) where the accessory is a relative by affinity within the same degree, Unless the accessory himself profited from the effects or proceeds of the crime or assisted the offender to profit therefrom. When one cannot be an accessory: (1) he does not know the commission of the crime (2) he participated in the crime as a principal or an accomplice When an accessory is exempt from criminal liability: When the principal is his:
PAGE 66

They know of and join in They know and agree with the criminal design the criminal design Conspirators know the Accomplices come to

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

(1) (2) (3) (4)

spouse, ascendant descendant legitimate, natural or adopted brother, sister or relative by affinity within the same degree.

Note: Even if only two of the principals guilty of murder are the brothers of the accessory and the others are not related to him, such accessory is exempt from criminal liability. When an accessory is NOT exempt from criminal liability even if the principal is related to him: If such accessory (1) profited from the effects of the crime, or (2) assisted the offender to profit by the effects of the crime Other instances when one becomes an accessory: (1) Accessory as a fence: Presidential Decree No. 1612 (Anti-Fencing Law) (a) One who knowingly profits or assists the principal to profit by the effects of robbery or theft (i.e. a fence) is not just an accessory to the crime, but principally liable for fencing (b) The penalty is higher than that of a mere accessory to the crime of robbery or theft. (c) Mere possession of any article of value which has been the subject of robbery or theft brings about the presumption of fencing. (d) PD 1612 has, therefore, modified Art. 19 of the RPC. (2) Acquiring the effects of piracy or brigandage: (a) Presidential Decree 532 (Anti-piracy and Highway Robbery law of 1974) (b) If the crime was piracy or brigandage under PD 532, said act constitutes the crime of abetting piracy or abetting brigandage as the case may be, although the penalty is that of an accomplice, not just an accessory, to the piracy or the brigandage. (c) Section 4 of PD 532 provides that any person who knowingly and in any manner acquires or receives property taken by such pirates or brigands or in any manner derives benefit therefrom, shall be considered as an accomplice of the principal offenders in accordance with the Rules prescribed by the Revised Penal Code. (d) It shall be presumed that any person who does any acts provided in this section has performed them knowingly, unless the contrary is proven. (e) Although Republic Act 7659, in amending Article 122 of the RPC, incorporated therein

the crime of piracy in Philippine territorial waters and thus correspondingly superseding PD 532 section 4 of said Decree, which punishes said acts as a crime of abetting piracy or brigandage, still stands as it has not been replaced or modified, and is not inconsistent with any provision of RA 7659. (3) Destroying the Corpus Delicti (a) When the crime is robbery or theft, with respect to the third involvement of the accessory, do not overlook the purpose which must be to prevent discovery of the crime. (b) The corpus delicti is not the body of the person who is killed. (1) Even if the corpse is not recovered, as long as that killing is established beyond reasonable doubt, criminal liability will arise. (2) If there is someone who destroys the corpus delicti to prevent discovery, he becomes an accessory. (4) Harboring or Concealing an Offender In the fourth form or manner of becoming an accessory, take note that the law distinguishes between: A Public Officer harboring, concealing or assisting the principal to escape Requisites: (1) The accessory is a public officer; (2) He harbors, conceals, or assists in the escape of the principal; (3) The public officer acts with abuse of his public functions; (4) The crime committed by the principal is any crime, provided it is not a light felony. A Private Citizen or civilian harboring, concealing or assisting the principal to escape Requisites: (1) The accessory is a private person; (2) He harbors, conceals or assists in the escape of the author of the crime; (3) The crime committed by the principal is either treason, parricide, murder, or an attempt to take the life of the Chief Executive, or is known to be habitually guilty of some other crime. Public Officer Civilian

The nature of the crime is The nature of the crime is immaterial material

PAGE 67

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

Public Officer

Civilian

For him to become an accessory, the principal What is material is that he must have committed the used his public function in crime of treason, assisting the escape parricide, murder or attempt on the life of the Chief Executive PD 1829 (Also Known as the Law Penalizing Obstruction of Justice)

accessory does not meet the required proof beyond reasonable doubt, then said accused will be acquitted. So the criminal liability of an accomplice or accessory does not depend on the criminal liability of the principal but depends on the quantum of evidence. But if the evidence shows that the act done does not constitute a crime and the principal is acquitted, then the supposed accomplice and accessory should also be acquitted. If there is no crime, then there is no criminal liability, whether principal, accomplice or accessory. DECREE PENALIZING OBSTRUCTION OF APPREHENSION AND PROSECUTION OF CRIMINAL OFFENDERS (P.D. 1829) What is imposed: (a) Prision correccional in its maximum period, or (b) Fine ranging from PhP 1,000 6,000, or (c) Both Upon any person who knowingly or willfully obstructs, impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal cases through the acts enumerated in Sec. 1
PUNISHABLE ACTS

Revised Penal Code

No specification of the Specifies the crimes that crime to be committed by should be committed in the offender in order that case a civilian aids in the criminal liability be escape incurred The offender is the principal or must be convicted of the crime charged The offender need not even be the principal or need not be convicted of the crime charged

An offender of any crime is no longer an accessory The one who harbored or but is simply an offender concealed an offender is without regard to the still an accessory crime of the person assisted to escape (5) Whether the accomplice and the accessory may be tried and convicted even before the principal is found guilty There is an earlier Supreme Court ruling that the accessory and accomplice must be charged together with the principal; if the latter is acquitted, the accomplice and the accessory shall not be criminally liable, unless the acquittal is based on a defense which is personal only to the principal. (a) However, it is not always true that the accomplice and the accessory cannot be criminally liable without the principal being first convicted. (b) Under Rule 110 of the Revised Rules on Criminal Procedure, it is required that all those involved in the commission of the crime must be included in the information that may be filed. The liability of the accused will depend on the quantum of evidence adduced by the prosecution against the particular accused but the prosecution must initiate the proceedings against the principal. Even if the principal is convicted, if the evidence presented against a supposed accomplice or

(a) Preventing witnesses from testifying in any criminal proceeding or from reporting the commission of any offense or the identity of any offender/s by means of bribery, misrepresentation, deceit, intimidation, force or threats; (b) Altering, destroying, suppressing or concealing any paper, record, document, or object with intent to impair its veracity, authenticity, legibility, availability, or admissibility as evidence in any investigation of or official proceedings in criminal cases, or to be used in the investigation of, or official proceedings in, criminal cases; (c) Harboring or concealing, or facilitating the escape of, any persons he knows, or has reasonable ground to believe or suspect, has committed any offense under existing penal laws in order to prevent his arrest, prosecution and conviction; (d) Publicly using a fictitious name for the purpose of concealing a crime, evading prosecution or the execution of a judgment, or concealing his true name and other personal circumstances for the same purpose or purposes;

PAGE 68

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

(e) Delaying the prosecution of criminal cases by obstructing the service of process or court orders or disturbing proceedings in the fiscals offices, in Tanodbayan, or in the courts; (f) Making, presenting or using any record, document, paper or object with knowledge of its falsity and with intent to affect the course or outcome of the investigation of, or official proceedings in criminal cases; (g) Soliciting, accepting, or agreeing to accept any benefit in consideration of abstaining from, discontinuing, or impeding the prosecution of a criminal offender; (h) Threatening directly or indirectly another with the infliction of any wrong upon his person, honor or property or that of any immediate member or members of his family in order to prevent such person from appearing in the investigation of, or official proceedings in, criminal cases, or imposing a condition, whether lawful or unlawful, in order to prevent a person from appearing in the investigation of, or in official proceedings in criminal cases; (i) Giving a false or fabricated information to mislead or prevent the law enforcement agencies from apprehending the offender or from protecting the life or property of the victim; or fabricating information from the data gathered in confidence by investigating authorities for purposes of background information and not for publication and publishing or disseminating the same to mislead the investigator or the court.
COMPARE WITH ART. 20, RPC (ACCESSORIES EXEMPT FROM CRIMINAL LIABILITY)

The punishable acts in PD 1829, compared to RPC Art. 20 are prompted by a detestable greed, not by affection. The benefits of the exception in Art. 20 do not apply to PD 1829.

Penalties
Penalty - is the suffering that is inflicted by the State for the transgression of a law. Different Juridical Conditions of Penalty: (1) Must be PRODUCTIVE OF SUFFERING, without affecting the integrity of the human personality. (2) Must be COMMENSURATE to the offense different crimes must be punished with different penalties. (3) Must be PERSONAL no one should be punished for the crime of another. (4) Must be LEGAL it is the consequence of a judgment according to law. (5) Must be CERTAIN no one may escape its effects. (6) Must be EQUAL for all. (7) Must be CORRECTIONAL. Theories justifying penalty: (1) PREVENTION to suppress danger to the State (2) SELF-DEFENSE to protect the society from the threat and wrong inflicted by the criminal. (3) REFORMATION to correct and reform the offender. (4) EXEMPLARITY to serve as an example to deter others from committing crimes. (5) JUSTICE for retributive justice, a vindication of absolute right and moral law violated by the criminal. GENERAL PRINCIPLES Art. 21. Penalties that may be imposed. No felony shall be punishable by any penalty not prescribed by law prior to its commission. (a) This article prohibits the Government from punishing any person for any felony with any penalty which has not been prescribed by the law. (b) It has no application to any of the provisions of the RPC for the reason that for every felony defined in the Code, a penalty has been prescribed. (c) REASON: An act or omission cannot be punished by the State if at the time it was committed there was no law prohibiting it, because a law cannot be rationally obeyed

Ground for exemption under Art. 20 The exemption provide in this article is based on the ties of blood and the preservation of the cleanliness of ones name, which compels one to conceal crimes committed by relatives so near as those mentioned in this article. An accessory is exempt from criminal liability when the principal is his (1) Spouse (2) Ascendant (3) Descendant (4) Legitimate, natural or adopted brother, sister or relative by affinity within the same degree, Accessory is not exempt from criminal liability even if the principal is related to him if he (a) Profited by the effects of the crime, or (b) Assisted the offender to profit by the effect of the crime.

PAGE 69

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

unless it is first shown, and a man cannot be expected to obey an order that has not been given.
ACT PROHIBITING THE IMPOSITION OF DEATH PENALTY IN THE PHILIPPINES (R.A. NO. 9346)

Within the same realm of constitutional discretion, Congress has reversed itself. It must be asserted that today, the legal status of the suppression of the death penalty in the Philippines has never been more secure than at any time in our political history as a nation. PURPOSES Purpose of penalty under the RPC: (1) RETRIBUTION OR EXPIATION the penalty is commensurate with the gravity of the offense. It permits society to exact proportionate revenge, and the offender to atone for his wrongs. (2) CORRECTION OR REFORMATION as shown by the rules which regulate the execution of the penalties consisting in deprivation of liberty. (3) SOCIAL DEFENSE shown by its inflexible severity to recidivist and habitual delinquents. CLASSIFICATIONS
MAJOR CLASSIFICATION

RA 9346 expressly repealed RA 8177 or Act Designating Death by Lethal Injection and RA 7659 or Death Penalty Law RA 9346 repealed all the other laws imposing death penalty. Section 2 states that: In lieu of the death penalty, the following shall be imposed: (a) the penalty of reclusion perpetua, when the law violated makes use of the nomenclature of the penalties of the Revised Penal Code; or (b) the penalty of life imprisonment, when the law violated does not make use of the nomenclature of the penalties of the Revised Penal Code. People v. Bon (2006):Yet in truth, there is no material difference between imposition and application, for both terms embody the operation in law of the death penalty. Since Article 71 denominates death as an element in the graduated scale of penalties, there is no question that the operation of Article 71 involves the actual application of the death penalty as a means of determining the extent which a persons liberty is to be deprived. Since Rep. Act No. 9346 unequivocally bars the application of the death penalty, as well as expressly repeals all such statutory provisions requiring the application of the death penalty, such effect necessarily extends to its relevance to the graduated scale of penalties under Article 71. The court cannot find basis to conclude that Rep. Act No. 9346 intended to retain the operative effects of the death penalty in the graduation of the other penalties in our penal laws. Munoz cannot enjoin us to adopt such conclusion. Rep. Act No. 9346 is not swaddled in the same restraints appreciated by Muoz on Section 19(1), Article III. The very Congress empowered by the Constitution to reinstate the imposition of the death penalty once thought it best to do so, through Rep. Act No. 7650.

(a) PRINCIPAL PENALTIES those expressly imposed by the court in the judgment of conviction. (b) ACCESSORY PENALTIES those that are deemed included in the imposition of the principal penalties. (c) SUBSIDIARY PENALTIES those imposed in lieu of principal penalties, i.e., imprisonment in case of inability to pay the fine. Note: Public censure is a penalty, (a) Thus, it is not proper in acquittal. (b) However, the Court in acquitting the accused may criticize his acts or conduct. Penalties that are either principal or accessory: (a) Perpetual or temporary absolute disqualification, (b) Perpetual or temporary special disqualification, and (c) Suspension May be principal or accessory penalties, because they are formed in the 2 general classes.(Asked 3 times in the Bar Exams)
OTHER CLASSIFICATIONS OF PENALTIES

(1) According to their divisibility: (a) Divisible (i) those that have fixed duration (ii) divisible into three periods. (b) Indivisible (i) those which have no fixed duration: (ii) Death (iii) Reclusion perpetua
PAGE 70

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

(iv) Perpetual absolute disqualification (v) Public censure

or

special

But the civil liability with regard to the interest of the injured party is extinguished.
PENALTIES WHICH MAY BE IMPOSED

(2) According to subject-matter (a) Corporal (death) (b) Deprivation of freedom (reclusion, prision, arresto) (c) Restriction of freedom (destierro) (d) Deprivation of rights (disqualification and suspension) (e) Pecuniary (fine) (3) According to their gravity (a) Capital (b) Afflictive (c) Correctional (d) Light

(1) Scale of Principal Penalties (a) Capital punishment: (D) (i) Death. (b) Afflictive penalties: (RP, RT, PAD, TAD, PSD, TSD, PM) (i) Reclusion perpetua, (ii) Reclusion temporal, (iii) Perpetual or temporary absolute disqualification, (iv) Perpetual or temporary special disqualification, (v) Prision mayor. (c) Correctional penalties: (PC, AM, S, Des) (i) Prision correccional, (ii) Arresto mayor, (iii) Suspension, (iv) Destierro. (d) Light penalties: (Am, Pc) (i) Arresto menor, (ii) Public censure. (e) Penalties common to the three preceding classes: (F, Bond) (i) Fine, and (ii) Bond to keep the peace. (2) Scale of Accessory Penalties (PAD, TAD, PSD, TSD, S, CI, I, F, Pay) (a) Perpetual or temporary absolute disqualification, (b) Perpetual or temporary special disqualification, (c) Suspension from public office, the right to vote and be voted for, the profession or calling. (d) Civil interdiction, (e) Indemnification, (f) Forfeiture or confiscation of instruments and proceeds of the offense, (g) Payment of costs The following table also contains DISQUALIFICATION as an afflictive penalty, because its different forms can also be imposed as a principal although it is primarily categorized as an accessory penalty. Effects Accessories

DURATION AND EFFECT Art. 22. Retroactive effect of penal laws. Penal Laws shall have a retroactive effect insofar as they favor the persons guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same. This article states that Penal Laws shall only have retroactive effect if it favors persons guilty of felonies, who are not considered habitual criminals as defined in Article 62. Art. 23. Effect of pardon by the offended party. A pardon of the offended party does not extinguish criminal action except as provided in Article 344 of this Code; but civil liability with regard to the interest of the injured party is extinguished by his express waiver. This article states the extent of a pardon made by the offended party. Under this article, a pardon does not extinguish the criminal liability of an offender except for cases under Article 344 (Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and acts of lasciviousness).

Penalty Death (REPEALED) Death, when not executed due to pardon or

Duration Indivisible

(1) PAD (2) Civil interdiction 30 yrs

PAGE 71

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

Penalty commutation (REPEALED) Reclusion perpetua

Duration

Effects

Accessories from sentence

20 years & 1 day years (Indivisible)

to 40 (1) Deprivation of public office, even if by election (2) Deprivation of right to vote & be voted for (3) Disqualification from public office held (4) Loss of retirement rights (1) Deprivation of office, employment, profession, or calling affected (2) Disqualification from similar offices or employments to 20

(1) PAD (2) Civil interdiction for life

Perpetual absolute disqualification (PAD)

For life

Perpetual special disqualification (PSD)

For life

Reclusion temporal Prision mayor

12 years & 1 day years 6 years & 1 day to 12 years

(1) PAD (2) Civil interdiction for duration of sentence (1) TAD (2) PSD of suffrage (1) Deprivation of public office, even if by election (2) Deprivation of right to vote & be voted for during sentence (3) Disqualification from public office held during sentence (4) Loss of retirement rights (1) Deprivation of office, employment, profession, or calling affected (2) Disqualification from similar offices or employments

Temporary absolute disqualification (TAD)

6 years & 1 day to 12 years

Temporary special disqualification (TSD)

6 years & 1 day to 12 years

Specific Principal and Accessory Penalties (1) Afflictive penalties


(a) Reclusion Perpetua

Duration: 20 years and 1 day to 40 years Accessory Penalties: (1) Civil interdiction for life or during the period of the sentence as the case may be. (2) Perpetual Absolute Disqualification which the offender shall suffer even though pardoned as

PAGE 72

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

to the principal penalty, unless the same shall have been expressly remitted in the pardon. People v. Gatward (1997): As amended by RA 7659, the penalty of reclusion perpetua is now accorded a defined duration ranging from 20 years and 1 day to 40 years. The Court held that in spite of the amendment putting the duration of RP, it should remain as an indivisible penalty since there was never intent on the part of Congress to reclassify it into a divisible penalty. The maximum duration of reclusion perpetua is not and has never been 30 years which is merely the number of years which the convict must serve in order to be eligible for pardon or for the application of the 3-fold rule (infra). People v. Ramirez (2001): The SC disagrees with the trial court in sentencing appellant "to suffer imprisonment of forty (40) years reclusion perpetua." There was no justification or need for the trial court to specify the length of imprisonment, because reclusion perpetua is an indivisible penalty. The significance of this fundamental principle was laid down by the Court in People v. Diquit. "Since reclusion perpetua is an indivisible penalty, it has no minimum, medium or maximum periods. It is imposed in its entirety regardless of any mitigating or aggravating circumstances that may have attended the commission of the crime. (Art. 63, Revised Penal Code) Reclusion Perpetua is imprisonment for life but the person sentenced to suffer it shall be pardoned after undergoing the penalty for thirty (30) years, unless by reason of his conduct or some other serious cause, he shall be considered by the Chief Executive as unworthy of pardon (Art. 27, Revised Penal Code)." Distinguished from Life Imprisonment While life imprisonment may appear to be the English translation of reclusion perpetua, in reality, it goes deeper than that. Life Imprisonment Reclusion Perpetua

Life Imprisonment accessory penalties

Reclusion Perpetua penalties

Entails imprisonment for at least 30 years after Does not appear to have which the convict any definite extent or becomes eligible for duration pardon although the maximum period shall in no case exceed 40 years
(b) Reclusion Temporal

Duration: 12 years and 1 day to 20 years Accessory Penalties: (1) Civil interdiction for life or during the period of the sentence as the case may be. (2) Perpetual Absolute Disqualification which the offender shall suffer even though pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon.
(c) Prision mayor

Duration: 6 years and 1 day to 12 years Accessory Penalties: (1) Temporary Absolute Disqualification (2) Perpetual Special Disqualification from the right to suffrage which the offender shall suffer although pardoned as to the principal penalty unless the same shall have been expressly remitted in the pardon. (2) Correctional Penalties
(a) Prision Correccional

Duration: 6 months and 1 day to 6 years Accessory Penalties: (1) Suspension from public office (2) Suspension from the right to follow a profession or calling (3) Perpetual Special Disqualification for the right of suffrage, if the duration of the imprisonment shall exceed 18 months
(b) Arresto Mayor

Imposed for serious offenses penalized by Prescribed under the RPC special laws Does not carry with it Carries with it accessory

Duration: 1 month and 1 day to 6 months Accessory Penalties: (1) Suspension of right to hold office (2) Suspension of the right of suffrage during the term of the sentence.

PAGE 73

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

Penalty

Duration

Effects

Accessories (1) Suspension from public office (2) Suspension from profession or calling (3) PSD of suffrage, if the duration of imprisonment exceeds 18 mos.

Prision correccional

6 months & 1 day to 6 years

Suspension

6 months & 1 day to 6 years 6 months & 1 day to 6 years 1 month & 1 day to 6 months

(1) Public office (2) Profession or calling (3) Suffrage Prohibition to enter w/in 25-250 km radius from the designated place (1) Suspension of right to hold office (2) Suspension of the right of suffrage This article merely classifies fine and has nothing to do with the definition of light felony. The court can fix any amount of the fine within the limits established by law. The court must consider: (a) The mitigating and aggravating circumstances; and (b) More particularly, the wealth or means of the culprit. When the law does not fix the minimum of the fine, (a) the determination of the amount of the fine to be imposed upon the culprit (b) is left to the sound discretion of the court, (c) provided it shall not exceed the maximum authorized by law. Note: Fines are not divided into 3 equal portions.
(b) Bond to Keep the Peace

Destierro

Arresto mayor

(3) Light Penalties


(a) Arresto Menor

Duration: 1 day to 30 days Accessory Penalties: (1) Suspension of right to hold office (2) Suspension of the right of suffrage during the term of the sentence.
(b) Public Censure Censure, being a penalty is not proper in acquittal.

Penalty Arresto menor Public censure

Duration 1 day to 30 days

Accessories Suspension of right to hold office and right of suffrage

(4) Penalties common to afflictive, correctional, and light penalties


(a) Fine

Fine is: (a) Afflictive more than P6,000 (b) Correctional P200 to P6,000 (c) Light Penalty less than P200

Art. 35. Effects of bond to keep the peace. It shall be the duty of any person sentenced to give bond to keep the peace, to present two sufficient sureties who shall undertake that such person will not commit the offense sought to be prevented, and that in case such offense be committed they will pay the amount determined by the court in the judgment, or otherwise to deposit such amount in the office of the clerk of the court to guarantee said undertaking.

PAGE 74

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

(a) Perpetual

The court shall determine, according to its discretion, the period of duration of the bond. Should the person sentenced fail to give the bond as required he shall be detained for a period which shall in no case exceed six months, is he shall have been prosecuted for a grave or less grave felony, and shall not exceed thirty days, if for a light felony. 2 ways of giving bond: (a) The offender must present 2 sufficient sureties who shall undertake that (a) the offender will not commit the offense sought to be prevented, (b) and that in case such offense be committed they will pay the amount determined by the court; (b) The offender must deposit such amount with the clerk of court to guarantee said undertaking; The court shall determine the period of duration of the bond. The offender may be detained, if he cannot give the bond, (a) for a period not to exceed 6 months if prosecuted for grave or less grave felony, or (b) for a period not to exceed 30 days, if for a light felony. Bond to keep the peace is different from bail bond which is posted for the provisional release of a person arrested for or accused of a crime.
PENALTIES COMMON TO ALL THREE TYPES

or Disqualification

Temporary

Absolute

Effects: (1) Deprivation of any public office or employment of offender; (2) Deprivation of the right to vote in any election or to be voted upon; (3) Loss of rights to retirement pay or pension Note: Perpetual absolute disqualification is effective during the lifetime of the convict and even after the service of the sentence. Temporary absolute disqualification lasts during the term of the sentence except (1) deprivation of the public office or employment; and (2) loss of all rights to retirement pay or other pension for any office formerly held. (See Art. 30, par. 3). Art. 32. Effect of the penalties of perpetual or temporary special disqualification for the exercise of the right of suffrage. (1) The perpetual or temporary special disqualification for the exercise of the right of suffrage (2) shall deprive the offender perpetually or during the term of the sentence, according to the nature of said penalty, (3) of the right to vote in any popular election for any public office or to be elected to such office. (4) Moreover, the offender shall not be permitted to hold any public office during the period of his disqualification. Art. 33. Effects of the penalties of suspension from any public office, profession or calling, or the right of suffrage. The suspension from public office, profession or calling, and the exercise of the right of suffrage shall disqualify the offender from holding such office or exercising such profession or calling or right of suffrage during the term of the sentence. The person suspended from holding public office shall not hold another having similar functions during the period of his suspension. Art. 34. Civil interdiction. Civil interdiction shall deprive the offender during the time of his sentence of the rights of parental authority, or guardianship, either as to the person or property of any ward, of marital authority, of the right to manage his property and of the right to dispose of such property by any act or any conveyance inter vivos.

Penalty Fine

Duration

Accessories

Bond to keep the As determined peace by the court


ACCESSORY PENALTIES

(1) Perpetual or temporary absolute disqualification, (2) Perpetual or temporary special disqualification, (3) Suspension from public office, the right to vote and be voted for, the profession or calling. (4) Civil interdiction, (5) Indemnification/ Forfeiture or confiscation of instruments and proceeds of the offense, (6) Payment of costs.

PAGE 75

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

Art. 45. Confiscation and forfeiture of the proceeds or instruments of the crime. Every penalty imposed for the commission of a felony shall carry with it the forfeiture of the proceeds of the crime and the instruments or tools with which it was committed. Such proceeds and instruments or tools shall be confiscated and forfeited in favor of the Government, unless they be property of a third person not liable for the offense, but those articles which are not subject of lawful commerce shall be destroyed.
(b) Perpetual

(c) Civil Interdiction

Effects: Deprivation of the following rights: (1) Parental authority (2) Guardianship over the ward (3) Marital authority (4) Right to manage property and to dispose of the same by acts inter vivos. (Note: The convict can still dispose his property mortis causa). Civil interdiction is an accessory penalty to the following principal penalties: (1) Death if commuted to life imprisonment; (2) Reclusion perpetua (3) Reclusion temporal
(d) Indemnification

or Disqualification

Temporary

Special

Art. 31. Effect of the penalties of perpetual or temporary special disqualification. (1) The deprivation of the office, employment, profession or calling affected; (2) The disqualification for holding similar offices or employments either perpetually or during the term of the sentence according to the extent of such disqualification. Effects: For public office, profession or calling: (1) Deprivation of the office, employment, profession or calling affected; (2) Disqualification for holding similar offices or employments during the period of disqualification. Effects: For the exercise of right to suffrage: (1) Deprivation of the right to vote or to be elected in an office; (2) Cannot hold any public office during the period of disqualification. (Art. 31). The penalty for disqualification if imposed as an accessory penalty is imposed for PROTECTION and NOT for the withholding of a privilege. Note: If temporary disqualification or suspension is imposed as an accessory penalty, the duration is the same as that of the principal penalty. Suspension from Public Office, the Right to Vote and Be Voted for, the Right to Practice a Profession or Calling Effects: (1) Disqualification from holding such office or the exercise of such profession or right of suffrage during the term of the sentence; (2) Cannot hold another office having similar functions during the period of suspension. (Art. 32).

(1) (2) (3) (4)

or Confiscation of Instruments or Proceeds of the Offense This is included in every penalty for the commission of the crime. The confiscation is in favor of the government. Property of a third person not liable for the offense is not subject to confiscation. If the trial court did not order any confiscation of the process of the crime, the government cannot appeal from the confiscation as that would increase the penalty already imposed.
(e) Payment of Costs

Includes: (1) Fees, and (2) Indemnities, in the course of judicial proceedings. (a) Costs may be fixed amounts already determined by law or regulations or amounts subject to a schedule. (b) If the accused is convicted; costs may be charged against him. (c) If he is acquitted, costs are de officio, meaning each party bears his own expense. (d) No costs shall be allowed against the Republic of the Philippines. (Rule 142, Sec. 1). (e) Whether costs should be assessed against the accused lie within the discretion of the court. Accessory Penalty Effects Deprivation of any public office or employment of offender; Perpetual or Deprivation of the right to vote Temporary Absolute in any election or to be voted Disqualification upon; Loss of rights to retirement pay or pension

PAGE 76

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

Accessory Penalty

Effects For public office, profession or calling: (a) Deprivation of the office, employment, profession or calling affected; (b) Disqualification for holding similar offices or employments during the period of disqualification; For the exercise of right to suffrage: (a) Deprivation of the right to vote or to be elected in an office; (b) Cannot hold any public office during the period of disqualification Disqualification from holding such office or the exercise of such profession or right of suffrage during the term of the sentence; Cannot hold another office having similar functions during the period of suspension. Deprivation of the following rights: (a) Parental authority (b) Guardianship over the ward (c) Marital authority (d) Right to manage property and to dispose of the same by acts inter vivos Forfeiture in favor of the Government of the proceeds of the crime and the instruments or tools with which it was committed If the accused be convicted, the costs may be charged against him

Measures not considered penalty Art. 24. Measures of prevention or safety which are not considered penalties. The following shall not be considered as penalties: (1) The arrest and temporary detention of accused persons, as well as their detention by reason of insanity or imbecility, or illness requiring their confinement in a hospital. (2) The commitment of a minor to any of the institutions mentioned in Article 80 and for the purposes specified therein. (3) Suspension from the employment of public office during the trial or in order to institute proceedings. (4) Fines and other corrective measures which, in the exercise of their administrative disciplinary powers, superior officials may impose upon their subordinates. (5) Deprivation of rights and the reparations which the civil laws may establish in penal form. Measures not considered penalties: (1) Preventive detention (2) Detention for medical causes (3) Rehabilitation of minors (4) Preventive suspension from public office (5) Administrative fines and penalties (6) Civil law deprivation of rights and reparations (a) They are not penalties because they are not imposed as a result of judicial proceedings. (b) Those mentioned in par. 3 and 4 are merely preventive measures before conviction of offenders. (c) The commitment of a minor mentioned in par. 2 is not a penalty because it is not imposed by the court in a judgment of conviction. (d) The imposition of the sentence in such case is suspended. The succeeding provisions are some examples of deprivation of rights established in penal form: Family Code, Art. 228. Parental authority terminates permanently: (1) Upon the death of the parents; (2) Upon the death of the child; or (3) Upon emancipation of the child. (327a). Family Code, Art. 229. Unless subsequently revived by a final judgment, parental authority also terminates: (1) Upon adoption of the child; (2) Upon appointment of a general guardian; (3) Upon judicial declaration of abandonment of the child in a case filed for the purpose;

Perpetual or Temporary Special Disqualification

Suspension from Public Office, the Right to Vote and Be Voted for, the Right to Practice a Profession or Calling

Civil Interdiction

Indemnification or Confiscation of Instruments or Proceeds of the Offense

Payment of Costs If he be acquitted, costs are de officio, i.e., each party will bear his/her own expense

PAGE 77

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

(4) Upon final judgment of a competent court divesting the party concerned of parental authority; or (5) Upon judicial declaration of absence or incapacity of the person exercising parental authority. (327a). APPLICATION General Rules In case of excessive penalties, the court must still impose the penalty but it shall recommend reduction, commutation, or other actions to the Chief Executive. [Art. 5, RPC] Art. 21. Penalties that may be imposed. No felony shall be punishable by any penalty not prescribed by law prior to its commission. Nulla poena sine lege. This article prohibits the Government from imposing punishment to any person for a felony with any penalty which has not been prescribed by the law. In addition, penalties must be individual, i.e., not shared, and definite, e.g., imprisonment, fine, imprisonment and fine, imprisonment or fine; but not imprisonment and/or fine. Art. 28. Computation of penalties. If the offender shall be in prison, the term of the duration of the temporary penalties shall be computed from the day on which the judgment of conviction shall have become final. If the offender be not in prison, the term of the duration of the penalty consisting of deprivation of liberty shall be computed from the day that the offender is placed at the disposal of the judicial authorities for the enforcement of the penalty. The duration of the other penalties shall be computed only from the day on which the defendant commences to serve his sentence. RULES ON THE COMPUTATION OF PENALTIES: (1) WHEN THE OFFENDER IS IN PRISON the duration of temporary penalties is from the day on which the judgment of conviction becomes final. (2) WHEN THE OFFENDER IS NOT IN PRISON the duration of penalty consisting in deprivation of liberty, is from the day that the offender is placed at the disposal of judicial authorities for the enforcement of the penalty.

(3) THE DURATION OF OTHER PENALTIES the duration is from the day on which the offender commences to serve his sentence Examples of temporary penalties: (1) Temporary absolute disqualification (2) Temporary special disqualification (3) Suspension (a) If offender is under detention, as when he is undergoing preventive imprisonment, Rule No. 1 applies. (b) If not under detention, because the offender has been released on bail, Rule No. 3 applies. Examples of penalties consisting in deprivation of liberty: (1) Imprisonment (2) Destierro (a) When the offender is not in prison, Rule No. 2 applies. (b) If the offender is undergoing preventive imprisonment, Rule No. 3 applies but the offender is entitled to a deduction of full time or 4/5 of the time of his detention. Art. 29. Period of preventive imprisonment deducted from term of imprisonment. Offenders who have undergone preventive imprisonment shall be credited in the service of their sentence consisting of deprivation of liberty, with the full time during which they have undergone preventive imprisonment, if the detention prisoner agrees voluntarily in writing to abide by the same disciplinary rules imposed upon convicted prisoners, except in the following cases: (a) When they are recidivists or have been convicted previously twice or more times of any crime; and (b) When upon being summoned for the execution of their sentence they have failed to surrender voluntarily. If the detention prisoner does not agree to abide by the same disciplinary rules imposed upon convicted prisoners, he shall be credited in the service of his sentence with four-fifths of the time during which he has undergone preventive imprisonment. (As amended by Republic Act 6127, June 17, 1970). Whenever an accused has undergone preventive imprisonment for a period equal to or more than the possible maximum imprisonment of the offense charged to which he may be sentenced and his case is not yet terminated,

PAGE 78

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

he shall be released immediately without prejudice to the continuation of the trial thereof or the proceeding on appeal, if the same is under review. In case the maximum penalty to which the accused may be sentenced is destierro, he shall be released after thirty (30) days of preventive imprisonment. (As amended by E.O. No. 214, July 10, 1988). (a) The accused undergoes preventive imprisonment when the offense charged is nonbailable, or even if bailable, he cannot furnish the required bail. (b) The convict is to be released immediately if the penalty imposed after trial is less than the full time or four-fifths of the time of the preventive imprisonment. (c) The accused shall be released immediately whenever he has undergone preventive imprisonment for a period equal to or more than the possible maximum imprisonment for the offense charged.
INDETERMINATE SENTENCE LAW (RA 4103, AS AMENDED)

Application on the imposed sentence PROCEDURE FOR DETERMING THE MAXIMUM AND MINIMUM SENTENCE (1) It consists of a maximum and a minimum instead of a single fixed penalty. (2) Prisoner must serve the minimum before he is eligible for parole. (3) The period between the minimum and maximum is indeterminate in the sense that the prisoner may be exempted from serving said indeterminate period in whole or in part. (4) The maximum is determined in any case punishable under the RPC in accordance with the rules and provisions of said code exactly as if the ISL had never been enacted. (5) Apply first the effect of privileged mitigating circumstances then consider the effects of aggravating and ordinary mitigating circumstances. (6) The minimum depends upon the courts discretion with the limitation that it must be within the range of the penalty next lower in degree to that prescribed by the Code for the offense committed. Note: A minor who escaped from confinement in the reformatory is entitled to the benefits of the ISL because his confinement is not considered imprisonment. Coverage The law does not apply to certain offenders: (1) Persons convicted of offense punished with death penalty or life imprisonment (or reclusion perpetua). (2) Those convicted of treason, conspiracy or proposal to commit treason. (3) Those convicted of misprision of treason, rebellion, sedition or espionage. (4) Those convicted of piracy. (5) Those who are habitual delinquents (but applies to recidivists). (6) Those who shall have escaped from confinement or evaded service of sentence. (7) Those who violated the terms of conditional pardon granted to them by the Chief Executive. (8) Those whose maximum term of imprisonment does not exceed one year. (9) Those who, upon the approval of the law, had been sentenced by final judgment.

The Indeterminate Sentence is composed of: (1) A MAXIMUM taken from the penalty imposable under the penal code (considering attendant circumstances) (2) A MINIMUM taken from the penalty next lower to that fixed in the code. Purpose of the law: to uplift and redeem valuable human material and prevent unnecessary and excessive deprivation of liberty and economic usefulness. It is necessary to consider the criminal first as an individual, and second as a member of the society. The law is intended to favor the defendant, particularly to shorten his term of imprisonment, depending upon his behavior and his physical, mental and moral record as a prisoner, to be determined by the Board of Indeterminate Sentence. The settled practice is to give the accused the benefit of the law even in crimes punishable with death or life imprisonment provided the resulting penalty, after considering the attending circumstances, is reclusion temporal or less. ISL does not apply to destierro. ISL is expressly granted to those who are sentenced to imprisonment exceeding 1 year.

PAGE 79

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

Those sentenced to the penalty of destierro or suspension.Art. 64. Rules for the application of penalties which contain three periods. In cases in which the penalties prescribed by law contain three periods, whether it be a single divisible penalty or composed of three different penalties, each one of which forms a period in accordance with the provisions of Articles 76 and 77, the court shall observe for the application of the penalty the following rules, according to whether there are or are not mitigating or aggravating circumstances: (a) When there are neither aggravating nor mitigating circumstances, they shall impose the penalty prescribed by law in its medium period. (b) When only a mitigating circumstance is present in the commission of the act, they shall impose the penalty in its minimum period. (c) When an aggravating circumstance is present in the commission of the act, they shall impose the penalty in its maximum period. (d) When both mitigating and aggravating circumstances are present, the court shall reasonably offset those of one class against the other according to their relative weight. (e) When there are two or more mitigating circumstances and no aggravating circumstances are present, the court shall: (i) impose the penalty next lower to that prescribed by law, (ii) in the period that it may deem applicable, (iii) according to the number and nature of such circumstances. (f) Whatever may be the number and nature of the aggravating circumstances, the courts shall not impose a greater penalty than that prescribed by law, in its maximum period. (g) Within the limits of each period, the court shall determine the extent of the penalty according to the number and nature of the aggravating and mitigating circumstances and the greater and lesser extent of the evil produced by the crime.

De la Cruz v. CA (1996): In as much as the amount of P715k is P693k more than the abovementioned benchmark of P22k, then adding one year for each additional P10k, the maximum period of 6 years, 8 months and 21 days to 8 years of prision mayor minimum would be increased by 69 years, as computed by the trial court. But the law categorically declares that the maximum penalty then shall not exceed 20 years of reclusion temporal. Under the ISL, the minimum term of the indeterminate penalty should be within the range of the penalty next lower in degree to that prescribed by the Code for the offense committed, which is prision correccional. People v. Saley: Under the Indeterminate Sentence Law, (a) the maximum term of the penalty shall be "that which, in view of the attending circumstances, could be properly imposed" under the Revised Penal Code, (b) and the minimum shall be "within the range of the penalty next lower to that prescribed" for the offense. The penalty next lower should be based on the penalty prescribed by the Code for the offense, without first considering any modifying circumstance attendant to the commission of the crime. The determination of the minimum penalty is left by law to the sound discretion of the court and it can be anywhere within the range of the penalty next lower without any reference to the periods into which it might be subdivided. The modifying circumstances are considered only in the imposition of the maximum term of the indeterminate sentence. The fact that the amounts involved in the instant case exceed P22,000.00 should not be considered in the initial determination of the indeterminate penalty; Instead, the matter should be so taken as analogous to modifying circumstances in the imposition of the maximum term of the full indeterminate sentence. This interpretation of the law accords with the rule that penal laws should be construed in favor of the

PAGE 80

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

accused. Since the penalty prescribed by law for the estafa charge against accused-appellant is prision correccional maximum to prision mayor minimum, the penalty next lower would then be prision correccional minimum to medium. Thus, the minimum term of the indeterminate sentence should be anywhere within six (6) months and one (1) day to four (4) years and two (2) months. People v. Campuhan: The penalty for attempted rape is two (2) degrees lower than the imposable penalty of death for the offense charged, which is statutory rape of a minor below seven (7) years. Two (2) degrees lower is reclusion temporal, the range of which is twelve (12) years and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, and in the absence of any mitigating or aggravating circumstance, the maximum of the penalty to be imposed upon the accused shall be taken from the medium period of reclusion temporal, the range of which is fourteen (14) years, eight (8) months and (1) day to seventeen (17) years and four (4) months, while the minimum shall be taken from the penalty next lower in degree, which is prision mayor, the range of which is from six (6) years and one (1) day to twelve (12) years, in any of its periods. Conditions of parole Sec. 6: Duty of the prisoner released under this Code: Report personally to such government officials or other parole officers appointed by the Board for a period of surveillance equivalent to the remaining portion of the maximum sentence imposed upon him or until final release by the Board. If it is shown that he is a law-abiding citizen and did not violate any laws of the country, the Board may issue a final certificate of release which will entitle him to final release and discharge. Sec. 8: Violations of the conditions of the parole: If he/she violates any of the conditions of the parole, the Board may issue his warrant of arrest. If captured/arrested, he shall serve the remaining unexpired portion of the maximum sentence for which he was originally committed unless a new parole was granted.

THREE-FOLD RULE

Art. 70. Successive service of sentence. When the culprit has to serve two or more penalties, he shall serve them simultaneously if the nature of the penalties will so permit otherwise, the following rules shall be observed: In the imposition of the penalties, the order of their respective severity shall be followed so that they may be executed successively or as nearly as may be possible, should a pardon have been granted as to the penalty or penalties first imposed, or should they have been served out. For the purpose of applying the provisions of the next preceding paragraph the respective severity of the penalties shall be determined in accordance with the following scale: (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) Death, Reclusion perpetua, Reclusion temporal, Prision mayor, Prision correccional, Arresto mayor, Arresto menor, Destierro, Perpetual absolute disqualification, Temporal absolute disqualification. Suspension from public office, the right to vote and be voted for, the right to follow a profession or calling, and (12) Public censure Notwithstanding the provisions of the rule next preceding, the maximum duration of the convict's sentence shall not be more than three-fold the length of time corresponding to the most severe of the penalties imposed upon him. No other penalty to which he may be liable shall be inflicted after the sum total of those imposed equals the same maximum period. Such maximum period shall in no case exceed forty years. In applying the provisions of this rule the duration of perpetual penalties shall be computed at thirty years. (As amended). Outline of the provisions of this Article: (1) When the culprit has to serve 2 or more penalties, he shall serve them simultaneously if the nature of the penalties will so permit.

PAGE 81

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

(2) Otherwise, the order of their respective severity shall be followed. The respective severity of the penalties is as follows: (1) Death (repealed) (2) Reclusion perpetua (3) Reclusion temporal (4) Prision mayor (5) Prision correccional (6) Arresto mayor (7) Arresto menor (8) Destierro (9) Perpetual absolute disqualification (10) Temporary absolute disqualification (11) Suspension from public office, the right to vote, and be voted for, the right to follow profession or calling, and (12) Public censure The penalties which can be simultaneously served are: (1) Perpetual absolute disqualification (2) Perpetual special disqualification (3) Temporary absolute disqualification (4) Temporary special disqualification (5) Suspension (6) Destierro (7) Public Censure (8) Fine and Bond to keep the peace (9) Civil interdiction (10) Confiscation and payment of costs (a) The above penalties, except destierro, can be served simultaneously with imprisonment. (b) Penalties consisting in deprivation of liberty cannot be served simultaneously by reason of the nature of such penalties. Three-fold Rule: The maximum duration of the convicts sentence shall not be more than three times the length of time corresponding to the most severe of the penalties imposed upon him. (a) The phrase the most severe of the penalties includes equal penalties. (b) The three-fold rule applies only when the convict has to serve at least four sentences. (c) All the penalties, even if by different courts at different times, cannot exceed three-fold the most severe. (d) The Rules of Court specifically provide that any information must not charge more than one offense. (e) Necessarily, the various offense punished with different penalties must be charged under different informations which may be filed in the

same court or in different courts, at the same time or at different times. (f) Subsidiary imprisonment forms part of the penalty. (g) Indemnity is a penalty. (h) Court must impose all the penalties for all the crimes of which the accused is found guilty, but in the service of the same, they shall not exceed three times the most severe and shall not exceed 40 years. Mejorada v. Sandiganbayan (1987): The petitioner was convicted of violating Section 3(E) of RA No. 3019 aka the Anti-Graft and Corrupt Practices Act. One of the issues raised by the petitioner concerns the penalty imposed by the Sandiganbayan which totals 56 years and 8 days of imprisonment. He impugns this as contrary to the three-fold rule and insists that the duration of the aggregate penalties should not exceed 40 years. Held: Petitioner is mistaken in his application of the 3-fold rule as set forth in Art. 70 of the RPC. This article is to be taken into account not in the imposition of the penalty but in connection with the service of the sentence imposed. Art. 70 speaks of service of sentence, duration of penalty and penalty to be inflicted. Nowhere in the article is anything mentioned about the imposition of penalty. It merely provides that the prisoner cannot be made to serve more than three times the most severe of these penalties the maximum which is 40 years. Where the Penalty Is Not Composed of 3 Periods Art. 65. Rule in cases in which the penalty is not composed of three periods. In cases in which the penalty prescribed by law is not composed of three periods, the courts shall apply the rules contained in the foregoing articles, dividing into three equal portions of time included in the penalty prescribed, and forming one period of each of the three portions. Meaning of the Rule (a) Compute and determine first the 3 periods of the entire penalty. (b) The time included in the penalty prescribed should be divided into 3 equal portions, after

PAGE 82

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

subtracting the minimum (eliminate the 1 day) from the maximum of the penalty. (c) The minimum of the minimum period should be the minimum of the given penalty (including the 1 day). (d) The quotient should be added to the minimum prescribed (eliminate the 1 day) and the total will represent the maximum of the minimum period. (1) Take the maximum of the minimum period, add 1 day and make it the minimum of the medium period; then add the quotient to the minimum (eliminate the 1 day) of the medium period and the total will represent the maximum of the medium period. (2) Take the maximum of the medium period, add 1 day and make it the minimum of the maximum period; then add the quotient to the minimum (eliminate the 1 day) of the maximum period and the total will represent the maximum of the maximum period.
SUBSIDIARY IMPRISONMENT

(b) if the culprit shall have been prosecuted for a grave or less grave felony, and shall not exceed fifteen days, if for a light felony. (3) When the principal imposed is higher than prision correccional, no subsidiary imprisonment shall be imposed upon the culprit. (4) If the principal penalty imposed is not to be executed by confinement in a penal institution, (a) but such penalty is of fixed duration, (b) the convict, during the period of time established in the preceding rules, (c) shall continue to suffer the same deprivations as those of which the principal penalty consists. (5) The subsidiary personal liability which the convict may have suffered by reason of his insolvency shall not relieve him, from the fine in case his financial circumstances should improve. (As amended by RA 5465, April 21, 1969). Subsidiary penalty it is personal liability to be suffered by the convict who has no property with which to meet the fine at the rate of one day for each P8, subject to the rules provided for in Articles 39. An accused cannot be made to undergo subsidiary imprisonment in case of insolvency to pay the fine imposed upon him when the subsidiary imprisonment is not imposed in the judgment of conviction. (Ramos v. Gonong) A convict who has property not exempt from execution sufficient enough to meet the fine cannot choose to serve the subsidiary penalty. Subsidiary imprisonment is not an accessory penalty. Rules as to subsidiary imprisonment: (1) If the penalty imposed is prision correcccional or arresto and fine subsidiary imprisonment not to exceed 1/3 of the term of the sentence, and in no case to continue for more than 1 year. Fraction or part of the day not counted. (2) When the penalty imposed is fine only subsidiary imprisonment, not to exceed 6 months, if the culprit is prosecuted for grave or less grave felony, and not to exceed 15 days, if prosecuted for light felony. (3) When the penalty imposed is higher than prision correccional no subsidiary imprisonment. (4) If the penalty imposed is not to be executed by confinement, but of fixed duration subsidiary penalty shall consist in the same deprivations as
PAGE 83

Art. 38.Pecuniary liabilities; Order of payment. In case the property of the offender should not be sufficient for the payment of all his pecuniary liabilities, the same shall be met in the following order: (1) The reparation of the damage caused. (2) Indemnification of consequential damages. (3) The fine. (4) The cost of the proceedings. Art. 39. Subsidiary penalty. If the convict has no property with which to meet the fine mentioned in the paragraph 3 of the next preceding article, he shall be subject to a subsidiary personal liability at the rate of one day for each eight pesos, subject to the following rules: (1) If the principal penalty imposed be prision correccional or arresto and fine, (a) he shall remain under confinement until his fine referred to in the preceding paragraph is satisfied, (b) but his subsidiary imprisonment shall not exceed one-third of the term of the sentence, (c) and in no case shall it continue for more than one year, and no fraction or part of a day shall be counted against the prisoner. (2) When the principal penalty imposed be only a fine, (a) the subsidiary imprisonment shall not exceed six months,

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

those of the principal penalty, under the same rules as in Nos. 1, 2 and 3 above. (5) In case the financial circumstances of the convict should improve, he shall pay the fine, notwithstanding the fact that the convict suffered subsidiary penalty thereof. No subsidiary penalty in the following cases: (1) When the penalty imposed is higher than prision correccional. (Art. 39 par. 3) (2) For failure to pay the reparation of the damage caused, indemnification of the consequential damages, and the costs of the proceedings. (3) When the penalty imposed is fine and a penalty not to be executed by confinement in a penal institution and which has no fixed duration. How to determine penalty to be imposed General rule: The penalty prescribed by law in general terms shall be imposed: (a) Upon the principals (b) For consummated felony Exception: The exception is when the penalty to be imposed upon the principal in frustrated or attempted felony is fixed by law. Whenever it is believed that the penalty lower by one or two degrees corresponding to said acts of execution is not in proportion to the wrong done, the law fixes a distinct penalty for the principal in frustrated or attempted felony. There are two ways to graduate penalties: (1) By Degrees, which is affected by the following factors: (a) Stage of Execution (consummated, frustrated, or attempted) (b) Extent of Participation (principal, accomplice, or accessory) (c) Privileged mitigating circumstances (d) Qualifying circumstances (e) Indeterminate Sentence Law (minimum, which is within the range of the penalty 1 lower than the penalty prescribed by the RPC) (2) By Periods (for divisible penalties, i.e., penalties with minimum, medium, and maximum periods), which is affected by the attendant ordinary mitigating/aggravating circumstances

Principals, Accomplices and Accessories in Consummated, Frustrated and Attempted Felonies. Art. 46. Penalty to be imposed upon principals in general. The penalty prescribed by law for the commission of a felony shall be imposed upon the principals in the commission of such felony. Whenever the law prescribes a penalty for a felony is general terms, it shall be understood as applicable to the consummated felony.

CONSUMMATED

PRINCIPALS ACCOMPLICES ACCESSORIES

0 1

2 3

2 3

0 represents the penalty prescribed by law in defining a crime, which is to be imposed on the PRINCIPAL in a CONSUMMATED OFFENSE, in accordance with the provisions of Art. 46. The other figures represent the degrees to which the penalty must be lowered, to meet the different situations anticipated by law. Exceptions: Arts. 50 to 57 shall not apply to cases where the law expressly prescribes the penalty for frustrated or attempted felony, or to be imposed upon accomplices or accessories. (Art. 60). Art. 60. Exception to the rules established in Articles 50 to 57. The provisions contained in Articles 50 to 57, inclusive, of this Code shall not be applicable to cases in which the law expressly prescribes the penalty provided for a frustrated or attempted felony, or to be imposed upon accomplices or accessories. A DEGREE is one entire penalty, one whole penalty or one unit of the penalties enumerated in the graduated scales provided for in Art. 71.

PAGE 84

ATTEMPTED

DIAGRAM OF THE APPLICATION OF ARTS. 50-57:

FRUSTRATED

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

Each of the penalties of reclusion perpetua, reclusion temporal, prision mayor, etc., enumerated in the graduated scales of Art. 71 is a degree. When there is a mitigating or aggravating circumstance, the penalty is lowered or increased by PERIOD only, Except when the penalty is divisible and there are two or more mitigating and without aggravating circumstances, in which case the penalty is lowered by degree. A PERIOD is one of the three equal portions called the minimum, medium and maximum of a divisible penalty. General rule: An accomplice is punished by a penalty one degree lower than the penalty imposed upon the principal. Exceptions: (a) The ascendants, guardians, curators, teachers and any person who, by abuse of authority or confidential relationship, shall cooperate as accomplices in the crimes of rape, acts of lasciviousness, seduction, corruption of minors, white slate trade or abduction. (Art. 346) (b) One who furnished the place for the perpetration of the crime of slight illegal detention. (Art. 268) General Rule: An accessory is punished by a penalty two degrees lower than the penalty imposed upon the principal. Exceptions: (a) When accessory is punished as principal knowingly concealing certain evil practices is ordinarily an act of the accessory, but in Art. 142, such act is punished as the act of the principal. (b) When accessories are punished with a penalty one degree lower: (1) Knowingly using counterfeited seal or forged signature or stamp of the President (Art. 162). (2) Illegal possession and use of a false treasury or bank note (Art. 168). (3) Using falsified document (Art. 173 par.3) (4) Using falsified dispatch (Art. 173 par. 2) Art. 61. Rules for graduating penalties. For the purpose of graduating the penalties which, according to the provisions of Articles 50 to 57, inclusive, of this Code, are to be imposed upon persons guilty as principals of any frustrated or attempted felony, or as accomplices or accessories,
PAGE 85

the following rules shall be observed: (1) When the penalty prescribed for the felony is single and indivisible, the penalty next lower in degrees shall be that immediately following that indivisible penalty in the respective graduated scale prescribed in Article 71 of this Code. (2) When the penalty prescribed for the crime is composed of two indivisible penalties, or of one or more divisible penalties to be impose to their full extent, the penalty next lower in degree shall be that immediately following the lesser of the penalties prescribed in the respective graduated scale. (3) When the penalty prescribed for the crime is composed of one or two indivisible penalties and the maximum period of another divisible penalty, the penalty next lower in degree shall be composed of the medium and minimum periods of the proper divisible penalty and the maximum periods of the proper divisible penalty and the maximum period of that immediately following in said respective graduated scale. (4) When the penalty prescribed for the crime is composed of several periods, corresponding to different divisible penalties, the penalty next lower in degree shall be composed of the period immediately following the minimum prescribed and of the two next following, which shall be taken from the penalty prescribed, if possible; otherwise from the penalty immediately following in the above mentioned respective graduated scale. (5) When the law prescribes a penalty for a crime in some manner not especially provided for in the four preceding rules, the courts, proceeding by analogy, shall impose corresponding penalties upon those guilty as principals of the frustrated felony, or of attempt to commit the same, and upon accomplices and accessories. This article provides for the rules to be observed in lowering the penalty by one or two degrees: (a) For the principal in frustrated felony one degree lower; (b) For the principal in attempted felony two degrees lower; (c) For the accomplice in consummated felony one degree lower; and (d) For the accessory in consummated felony two degrees lower. The rules provided for in Art. 61 should also apply in determining the MINIMUM of the indeterminate penalty under the Indeterminate Sentence Law.

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

The MINIMUM of the indeterminate penalty is within the range of the penalty next lower than that prescribed by the RPC for the offense. Those rules also apply in lowering the penalty by one or two degrees by reason of the presence of privileged mitigating circumstance (Arts. 68 and 69), or when the penalty is divisible and there are two or more mitigating circumstances (generic) and no aggravating circumstance (Art. 64). The lower penalty shall be taken from the graduated scale in Art. 71. The INDIVISIBLE PENALTIES are: (1) death (2) reclusion perpetua (3) public censure The DIVISIBLE PENALTIES are: (1) reclusion temporal (2) prision mayor (3) prision correccional (4) arresto mayor (5) destierro (6) arresto menor The divisible penalties are divided into three periods: MINIMUM, MEDIUM AND THE MAXIMUM. FIRST RULE: When the penalty is single and indivisible. (a) Ex. reclusion perpetua (b) The penalty immediately following it is reclusion temporal. (c) Thus, reclusion temporal is the penalty next lower in degree. SECOND RULE (a): When the penalty is composed of two indivisible penalties (a) Ex. reclusion perpetua to death (b) The penalty immediately following the lesser of the penalties, which is reclusion perpetua, is reclusion temporal. SECOND RULE (b): When the penalty is composed of one or more divisible penalties to be imposed to their full extent (a) Ex. prision correccional to prision mayor (b) The penalty immediately following the lesser of the penalties of prision correccional to prision mayor is arresto mayor. THIRD RULE (a): When the penalty is composed of two indivisible penalties and the maximum period of a divisible penalty
PAGE 86

(a) Ex. reclusion temporal in its MAXIMUM period to death (b) The MEDIUM and MINIMUM period of the divisible penalty and the MAXIMUM of that immediately following penalty is the penalty next lower in degree. Death Reclusion Perpetua Reclusion Temporal Prision Mayor Maximum Medium Minimum Maximum Medium Minimum Penalty for the principal in consummated murder Penalty for accomplice; or for principal in frustrated murder

THIRD RULE (b): When the penalty is composed of one indivisible penalty and the maximum period of a divisible penalty. (a) Ex. Reclusion temporal in its MAXIMUM period to Reclusion perpetua (b) The same rule shall be observed in lowering the penalty by one or two degrees. FOURTH RULE: When the penalty is composed of several periods. (a) Ex. Prision Mayor in its MEDIUM period to Reclusion temporal in its MINIMUM period. (b) This rule contemplates a penalty composed of at least 3 periods. (c) The several periods must correspond to different divisible penalties. Reclusion temporal Prision Mayor Prision Correccional Maximum Medium Minimum Maximum Medium Minimum Maximum Medium Minimum

Penalty for the principal in the consummated felony Penalty for the accomplice; or principal in frustrated felony

FIFTH RULE (a): When the penalty has two periods Ex. Prision correccional in its MINIMUM and MEDIUM periods Prision correccional Arresto Mayor Maximum Medium Minimum Maximum Medium Minimum The penalty prescribed for the felony The penalty next lower

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

FIFTH RULE (b): When the penalty has one period. (a) Ex. Prision Mayor in its MAXIMUM period (b) If the penalty is any one of the three periods of a divisible penalty, the penalty next lower in degree shall be that period next following the given penalty. (c) The penalty immediately inferior is prision mayor in its MEDIUM period. SIMPLIFIED RULES: The rules prescribed in pars. 4 and 5 of Art. 61 may be simplified as follows: (1) If the penalty prescribed by the Code consists in 3 periods, corresponding to different divisible penalties, the penalty next lower in degree is the penalty consisting in the 3 periods down in the scale. (2) If the penalty prescribed by the Code consists in 2 periods, the penalty next lower in degree is the penalty consisting in 2 periods down in the scale. (3) If the penalty prescribed by the Code consists in only 1 period, the penalty next lower in degree is the next period down in the scale.
EFFECTS OF MITIGATING AND AGGRAVATING CIRCUMSTANCES

Art. 62.Effect of the attendance of mitigating or aggravating circumstances and of habitual delinquency. Mitigating or aggravating circumstances and habitual delinquency shall be taken into account for the purpose of diminishing or increasing the penalty in conformity with the following rules: (1) Aggravating circumstances which in themselves constitute a crime specially punishable by law or which are included by the law in defining a crime and prescribing the penalty therefor shall not be taken into account for the purpose of increasing the penalty. (2) The same rule shall apply with respect to any aggravating circumstance inherent in the crime to such a degree that it must of necessity accompany the commission thereof. (3) Aggravating or mitigating circumstances which arise from the moral attributes of the offender, or from his private relations with the offended party, or from any other personal cause, shall only serve to aggravate or mitigate the liability of the principals, accomplices and accessories as to whom such circumstances are attendant. (4) The circumstances which consist in the material execution of the act, or in the means employed to accomplish it, shall serve to aggravate or mitigate the liability of those persons only who had

knowledge of them at the time of the execution of the act or their cooperation therein. (5) Habitual delinquency shall have the following effects: (a) Upon a third conviction the culprit shall be sentenced to the penalty provided by law for the last crime of which he be found guilty and to the additional penalty of prision correccional in its medium and maximum periods; (b) Upon a fourth conviction, the culprit shall be sentenced to the penalty provided for the last crime of which he be found guilty and to the additional penalty of prision mayor in its minimum and medium periods; and (c) Upon a fifth or additional conviction, the culprit shall be sentenced to the penalty provided for the last crime of which he be found guilty and to the additional penalty of prision mayor in its maximum period to reclusion temporal in its minimum period (6) Notwithstanding the provisions of this article, the total of the two penalties to be imposed upon the offender, in conformity herewith, shall in no case exceed 30 years. (7) For the purpose of this article, a person shall be deemed to be habitual delinquent, is within a period of ten years from the date of his release or last conviction of the crimes of serious or less serious physical injuries, robo, hurto, estafa or falsification, he is found guilty of any of said crimes a third time or oftener. What are the effects of the attendance of mitigating or aggravating circumstances? (1) Aggravating circumstances which are not considered for the purpose of increasing the penalty: (a) Those that constitute a separate crime punishable by law. (b) Those that are inherent in the crime committed: (i) Included by law in defining the crime (ii) Inherent in the crime but of necessity they accompany the commission thereof (2) Aggravating or mitigating circumstances that serve to aggravate or mitigate the liability of the offender to whom such are attendant. Those arising from: (a) Moral attributes of the offender (b) His private relations with the offended party (c) Any other personal cause (3) Aggravating or mitigating circumstances that affect the offenders only who had knowledge of them at the time of the execution of the act or their cooperation therein.

PAGE 87

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

What are the legal effects of habitual delinquency? Third conviction. The culprit is sentenced to the penalty for the crime committed and to the additional penalty of prision correccional in its medium and maximum period. Fourth conviction. The penalty is that provided by law for the last crime and the additional penalty of prision mayor in its minimum and medium periods. Fifth or additional conviction. The penalty is that provided by law for the last crime and the additional penalty of prision mayor in its maximum period to reclusion temporal in its minimum period. Note: (a) In no case shall the total of the 2 penalties imposed upon the offender exceed 30 years. (b) The law does not apply to crimes described in Art. 155. (c) The imposition of the additional penalty on habitual delinquents are CONSTITUTIONAL because such law is neither an EX POST FACTO LAW nor an additional punishment for future crimes. (d) It is simply a punishment on future crimes on account of the criminal propensities of the accused. (e) The imposition of such additional penalties is mandatory and is not discretionary. (f) Habitual delinquency applies at any stage of the execution because subjectively, the offender reveals the same degree of depravity or perversity as the one who commits a consummated crime. (g) It applies to all participants because it reveals persistence in them of the inclination to wrongdoing and of the perversity of character that led them to commit the previous crime. Cases where attending aggravating or mitigating circumstances are not considered in the imposition of penalties (1) Penalty that is single and indivisible (2) Felonies through negligence (3) When the penalty is a fine (4) When the penalty is prescribed by a special law.

Art. 63. Rules for the application of indivisible penalties. (1) In all cases in which the law prescribes a single indivisible penalty, (2) it shall be applied by the courts regardless of any mitigating or aggravating circumstances that may have attended the commission of the deed. (3) In all cases in which the law prescribes a penalty composed of two indivisible penalties, (4) the following rules shall be observed in the application thereof: (a) When in the commission of the deed there is present only one aggravating circumstance, the greater penalty shall be applied. (b) When there are neither mitigating nor aggravating circumstances and there is no aggravating circumstance, the lesser penalty shall be applied. (c) When the commission of the act is attended by some mitigating circumstances and there is no aggravating circumstance, the lesser penalty shall be applied. (d) When both mitigating and aggravating circumstances attended the commission of the act, the court shall reasonably allow them to offset one another in consideration of their number and importance, for the purpose of applying the penalty in accordance with the preceding rules, according to the result of such compensation. Rules for the application of indivisible penalties: (a) Penalty is single and indivisible (1) The penalty shall be applied regardless of the presence of mitigating or aggravating circumstances. (2) Ex. reclusion perpetua or death (b) Penalty is composed of 2 indivisible penalties: (1) One aggravating circumstance present: HIGHER penalty (2) No mitigating circumstances present: LESSER penalty (3) Some mitigating circumstances present and no aggravating: LESSER penalty (4) Mitigating and aggravating circumstances offset each other Basis of penalty: number and importance. People v. Formigones (1950):The penalty applicable for parricide under Art. 246 of the RPC is composed only of 2 indivisible penalties, reclusion perpetua to death. Although the commission of the act is attended by some mitigating circumstance without any aggravating circumstance to offset them, Art. 63 of the RPC should be applied. The said article

PAGE 88

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

provides that when the commission of the act is attended by some mitigating circumstance and there is no aggravating circumstance, the lesser penalty shall be applied. Art. 64. Rules for the application of penalties which contain three periods. (1) In cases in which the penalties prescribed by law contain three periods, (2) whether it be a single divisible penalty or composed of three different penalties, (3) each one of which forms a period in accordance with the provisions of Articles 76 and 77, (4) the court shall observe for the application of the penalty the following rules, according to whether there are or are not mitigating or aggravating circumstances: (a) When there are neither aggravating nor mitigating circumstances, they shall impose the penalty prescribed by law in its medium period. (b) When only a mitigating circumstances is present in the commission of the act, they shall impose the penalty in its minimum period. (c) When an aggravating circumstance is present in the commission of the act, they shall impose the penalty in its maximum period. (d) When both mitigating and aggravating circumstances are present, the court shall reasonably offset those of one class against the other according to their relative weight. (e) When there are two or more mitigating circumstances and no aggravating circumstances are present, the court shall impose the penalty next lower to that prescribed by law, in the period that it may deem applicable, according to the number and nature of such circumstances. (f) Whatever may be the number and nature of the aggravating circumstances, the courts shall not impose a greater penalty than that prescribed by law, in its maximum period. (g) Within the limits of each period, the court shall determine the extent of the penalty according to the number and nature of the aggravating and mitigating circumstances and the greater and lesser extent of the evil produced by the crime. Rules for the application of DIVISIBLE PENALTIES (1) No aggravating and No mitigating: MEDIUM PERIOD (2) One mitigating: MINIMUM PERIOD (3) One aggravating: (but regardless of the number of aggravating circumstances, the courts cannot

exceed the penalty provided by law in its maximum period): MAXIMUM PERIOD (4) Mitigating and aggravating circumstances present: to offset each other according to relative weight (5) 2 or more mitigating and no aggravating: one degree lower (has the effect of a privileged mitigating circumstance) NOTE: Art. 64 does not apply to: (1) indivisible penalties (2) penalties prescribed by special laws (3) fines (4) crimes committed by negligence Art. 67. Penalty to be imposed when not all the requisites of exemption of the fourth circumstance of Article 12 are present. When all the conditions required in circumstances Number 4 of Article 12 of this Code to exempt from criminal liability are not present, the penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon the culprit if he shall have been guilty of a grave felony, and arresto mayor in its minimum and medium periods, if of a less grave felony. Penalty to be imposed if the requisites of accident (Art. 12 par 4) are not all present: (a) GRAVE FELONY: arresto mayor maximum period to prision correccional minimum period (b) LESS GRAVE FELONY: arresto mayor minimum period and medium period Art. 69. Penalty to be imposed when the crime committed is not wholly excusable. A penalty lower by one or two degrees than that prescribed by law shall be imposed if the deed is not wholly excusable by reason of the lack of some of the conditions required to justify the same or to exempt from criminal liability in the several cases mentioned in Article 11 and 12, provided that the majority of such conditions be present. The courts shall impose the penalty in the period which may be deemed proper, in view of the number and nature of the conditions of exemption present or lacking. Penalty to be imposed when the crime committed is not wholly excusable: (a) One or two degrees lower

PAGE 89

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

(b) if the majority of the conditions for justification or exemption in the cases provided in Arts. 11 and 12 are present. People v. Lacanilao (1988): Incomplete fulfillment of duty is a privileged mitigating circumstance which not only cannot be offset by aggravating circumstances but also reduces the penalty by one or two degrees than that prescribed b law. The governing provision is Art. 69 of the RPC. Special rules for certain situations Complex Crimes Art. 48. Penalty for complex crimes. When a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period. The rule for complex crimes is to impose the penalty for the most serious offense in its MAXIMUM period. Monteverde v. People (2002): Monteverde was purportedly charged with the complex crime of estafa through falsification of a commercial document for allegedly falsifying the document she had submitted to show that the money donated by PAGCOR was used and spent for lighting materials for her barangay. Held: Under Article 48 of the Revised Penal Code, a complex crime refers to: (1) the commission of at least two grave or less grave felonies that must both (or all) be the result of a single act, or (2) one offense must be a necessary means for committing the other (or others). Using the above guidelines, the acts cannot constitute a complex crime. Specifically, the alleged actions showing falsification of a public and/or a commercial document were not necessary to commit estafa. Neither were the two crimes the result of a single act. People v. Gonzalez: Both of the families of Andres and that of Gonzalez were on their way to the exit of the Loyola Memorial Park. Gonzales was driving with his grandson and 3 housemaids, while Andres was driving with his

pregnant wife, Feliber, his 2yr old son, Kenneth, his nephew Kevin and his sister-in-law. At an intersection, their two vehicles almost collided. Gonzales continued driving while Andres tailed Gonzales vehicle and cut him off when he found the opportunity to do so, then got out of his vehicle and knocked on the appellant's car window. Heated exchange of remarks followed. On his way back to his vehicle, he met Gonzales son, Dino. Andres had a shouting match this time with Dino. Gonzales then alighted from his car and fired a single shot at the last window on the left side of Andres' vehicle at an angle away from Andres. The single bullet fired hit Kenneth, Kevin and Feliber which caused the latters death. Held: The rules on the imposition of penalties for complex crimes under Art. 48 of the Revised Penal Code are not applicable in this case. Art. 48 applies if a single act constitutes two or more grave and less grave felonies or when an offense is a necessary means of committing another; in such a case, the penalty for the most serious offense shall be imposed in its maximum period. Considering that the offenses committed by the act of the appellant of firing a single shot are: one count of homicide, a grave felony, and two counts of slight physical injuries, a light felony, the rules on the imposition of penalties for complex crimes, which requires two or more grave and/or less grave felonies, will not apply. People v. Comadre (2004): The underlying philosophy of complex crimes in the Revised Penal Code, which follows the pro reo principle, is intended to favor the accused by imposing a single penalty irrespective of the crimes committed. The rationale being, that the accused who commits two crimes with single criminal impulse demonstrates lesser perversity than when the crimes are committed by different acts and several criminal resolutions. The single act by appellant of detonating a hand grenade may quantitatively constitute a cluster of several separate and distinct offenses, yet these component criminal offenses should be considered only as a single crime in law on which a single penalty is imposed because the offender was

PAGE 90

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

impelled by a single criminal impulse which shows his lesser degree of perversity. People v. Delos Santos (2001): Considering that the incident was not a product of a malicious intent but rather the result of a single act of reckless driving, Glenn should be held guilty of the complex crime of reckless imprudence resulting in multiple homicide with serious physical injuries and less serious physical injuries. The slight physical injuries caused by Glenn to the ten other victims through reckless imprudence, would, had they been intentional, have constituted light felonies. Being light felonies, which are not covered by Article 48, they should be treated and punished as separate offenses. Separate informations should have, therefore, been filed. People v. Velasquez (2000):Velasquez, poked a toy gun and forced Karen to go with her at his grandmothers house. Out of fear and not knowing that the gun that Velasquez was holding is a mere toy, Karen went with Velasquez. Velasquez then raped Karen twice. The trial court convicted Velasquez of two counts of rape. Held: Considering that Velasquez forcibly abducted Karen and then raped her twice, he should be convicted of the complex crime of forcible abduction with rape and simple rape. The penalty for complex crimes is the penalty for the most serious crime which shall be imposed in its maximum period. Rape is the more serious of the two crimes and is punishable with reclusion perpetua under Article 266-A of the Revised Penal Code and since reclusion perpetua is a single indivisible penalty, it shall be imposed as it is. The subsequent rape committed by Velasquez can no longer be considered as a separate complex crime of forcible abduction with rape but only as a separate act of rape punishable by reclusion perpetua.

Crimes Different from That Intended Art. 49. Penalty to be imposed upon the principals when the crime committed is different from that intended. In cases in which the felony committed is different from that which the offender intended to commit, the following rules shall be observed: (1) If the penalty prescribed for the felony committed be higher than that corresponding to the offense which the accused intended to commit, the penalty corresponding to the latter shall be imposed in its maximum period. (2) If the penalty prescribed for the felony committed be lower than that corresponding to the one which the accused intended to commit, the penalty for the former shall be imposed in its maximum period. (3) The rule established by the next preceding paragraph shall not be applicable if the acts committed by the guilty person shall also constitute an attempt or frustration of another crime, if the law prescribes a higher penalty for either of the latter offenses, in which case the penalty provided for the attempted or the frustrated crime shall be imposed in its maximum period. Either the crime committed be more grave than the crime intended or the crime intended be more grave than the crime committed, the penalty to be imposed should be the penalty for the lesser felony in its MAXIMUM period. Except: if the lesser felony constitutes an attempt or frustration of another felony. Example: If the crime intended was homicide, but the crime committed was parricide, the penalty to be imposed is the penalty for homicide in its MAXIMUM period. Impossible Crimes Art. 59. Penalty to be imposed in case of failure to commit the crime because the means employed or the aims sought are impossible. When the person intending to commit an offense has already performed the acts for the execution of the same but nevertheless the crime was not produced by reason of the fact that the act intended was by its nature one of impossible accomplishment or because the means employed by such person are essentially inadequate to produce the result desired by him, the court, having in mind the social danger and the degree of criminality shown by the offender, shall

PAGE 91

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

impose upon him the penalty of arresto mayor or a fine from 200 to 500 pesos. Depending upon the social danger and the degree of criminality shown by the offender, the penalty for impossible crimes is arresto mayor or fine of P200P500. Plural Crimes (supra) Additional Penalty for Certain Accessories Art. 58.Additional penalty to be imposed upon certain accessories. Those accessories falling within the terms of paragraphs 3 of Article 19 of this Code who should act with abuse of their public functions, shall suffer the additional penalty of (a) absolute perpetual disqualification if the principal offender shall be guilty of a grave felony, and that (b) of absolute temporary disqualification if he shall be guilty of a less grave felony. Absolute perpetual disqualification if the principal offender is guilty of a grave felony. Absolute temporary disqualification if the principal offender is guilty of a less grave felony. Where the Offender Is Below 18 Years Art. 68. Penalty to be imposed upon a person under eighteen years of age. When the offender is a minor under eighteen years and his case is one coming under the provisions of the paragraphs next to the last of Article 80 of this Code, the following rules shall be observed: (1) Upon a person under fifteen but over nine years of age, who is not exempted from liability by reason of the court having declared that he acted with discernment, a discretionary penalty shall be imposed, but always lower by two degrees at least than that prescribed by law for the crime which he committed. (2) Upon a person over fifteen and under eighteen years of age the penalty next lower than that prescribed by law shall be imposed, but always in the proper period. PD No. 603. ART. 192. Suspension of Sentence and Commitment of Youthful Offender.

(1) If after hearing the evidence in the proper proceedings, the court should find that the youthful offender has committed the acts charged against him (2) the court shall determine the imposable penalty, including any civil liability chargeable against him. (3) However, instead of pronouncing judgment of conviction, the court shall suspend all further proceedings and shall commit such minor to the custody or care of the Department of Social Welfare, or to any training institution (4) until he shall have reached twenty-one years of age or, for a shorter period as the court may deem proper, (5) after considering the reports and recommendations of the Department of Social Welfare or the agency or responsible individual under whose care he has been committed. The youthful offender shall be subject to visitation and supervision by a representative of the Department of Social Welfare or any duly licensed agency or such other officer as the court may designate subject to such conditions as it may prescribe. (a) Art. 68 applies to such minor if his application for suspension of sentence is disapproved or if while in the reformatory institution he becomes incorrigible in which case he shall be returned to the court for the imposition of the proper penalty. (b) 9 to 15 years only with discernment: at least 2 degrees lower. (c) 15 to 18 years old: penalty next lower (d) Except if the act is attended by two or more mitigating and no aggravating circumstance, the penalty being divisible, a minor over 15 but under 18 years old may still get a penalty two degrees lower. (e) Art. 68 provides for two of the PRIVILEGED MITIGATING CIRCUMSTANCES EXECUTION AND SERVICE
EXECUTION OF PENALTIES

Art. 78. When and how a penalty is to be executed. No penalty shall be executed except by virtue of a final judgment. A penalty shall not be executed in any other form than that prescribed by law, nor with any other circumstances or incidents than those expressly authorized thereby. In addition to the provisions of the law, the special

PAGE 92

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

regulations prescribed for the government of the institutions in which the penalties are to be suffered shall be observed with regard to (a) the character of the work to be performed, (b) the time of its performance, and other incidents connected therewith, (c) the relations of the convicts among themselves and other persons, (d) the relief which they may receive, and (e) their diet. The regulations shall make provision for the separation of the sexes in different institutions, or at least into different departments and also for the correction and reform of the convicts. (a) The judgment must be final before it can be executed, because the accused may still appeal within 15 days from its promulgation. (b) But if the defendant has expressly waived in writing his right to appeal, the judgment becomes final and executory. See Rules and Regulations to implement RA No. 8177 under Capital Punishment. Art. 86. Reclusion perpetua, reclusion temporal, prision mayor, prision correccional and arresto mayor. The penalties of reclusion perpetua, reclusion temporal, prision mayor, prision correccional and arresto mayor, shall be executed and served in the places and penal establishments provided by the Administrative Code in force or which may be provided by law in the future. Art. 87. Destierro. Any person sentenced to destierro shall not be permitted to enter the place or places designated in the sentence, nor within the radius therein specified, which shall be not more than 250 and not less than 25 kilometers from the place designated. Convict shall not be permitted to enter the place designated in the sentence nor within the radius specified, which shall not more than 250 and not less than 25 km from the place designated. If the convict enters the prohibited area, he commits evasion of sentence. Destierro is imposed: (a) When the death or serious physical injuries is caused or are inflicted under exceptional circumstances (art. 247);

(b) When a person fails to give bond for good behavior (art. 284); (c) As a penalty for the concubine in the crime of concubinage (Art. 334); (d) When after lowering the penalty by degrees, destierro is the proper penalty. Art. 88. Arresto menor. The penalty of arresto menor shall be served in the municipal jail, or in the house of the defendant himself under the surveillance of an officer of the law, when the court so provides in its decision, taking into consideration the health of the offender and other reasons which may seem satisfactory to it. Service of the penalty of arresto menor: (a) In the municipal jail (b) In the house of the offender, but under the surveillance of an officer of the law For health or other good reasons as determined by the court. In the Matter of the petition for Habeas Corpus of Pete Lagran (2001): The accused was convicted of 3 counts of violating BP22 and was sentenced to imprisonment of 1 year for each count. He was detained on Feb. 24, 1999. On Mar. 19, 2001, he filed a petition for habeas corpus claiming he completed the service of his sentence. Citing Art. 70, RPC, he claimed that he shall serve the penalties simultaneously. Thus, there is no more legal basis for his detention. Held: Art. 70 allows simultaneous service of two or more penalties only if the nature of the penalties so permit. In the case at bar, the petitioner was sentenced to suffer one year imprisonment for every count of the offense committed. The nature of the sentence does not allow petitioner to serve all the terms simultaneously. The rule of successive service of sentence must be applied.
PROBATION LAW (PD 968, AS AMENDED)

Definition of terms (Sec. 3) Probation a disposition under which a defendant, after conviction and sentence, is released subject to

PAGE 93

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

conditions imposed by the court and to the supervision of a probation officer. Probationer a person placed on probation Probation officer one who investigates for the court a referral for probation or supervises a probationer or both. Purpose (Sec. 2) (1) Promote the correction and rehabilitation of an offender by providing him with individualized treatment. (2) Provide an opportunity for the reformation of a penitent offender which might be less probable if he were to serve a prison sentence. (3) Prevent the commission of offenses. Grant of probation, manner and conditions (Sec. 4)
GRANT OF PROBATION

conviction. Petitioners right to apply for probation was lost when he perfected his appeal from the judgment of the trial court. The trial court lost jurisdiction already over the case. Salgado v. CA (1990): There is no question that the decision convicting Salgado of the crime of serious physical injuries had become final and executory because the filing by respondent of an application for probation is deemed a waiver of his right to appeal. The grant of probation does not extinguish the civil liability of the offender. The order of probation with one of the conditions providing for the manner of payment of the civil liability during the period of probation did not increase or decrease the civil liability adjudged. The conditions listed under Sec. 10 of the Probation law are not exclusive. Courts are allowed to impose practically any term it chooses, the only limitation being that it does not jeopardize the constitutional rights of the accused. Office of the Court Administrator v. Librado (1996): While indeed the purpose of the Probation Law is to save valuable human material, it must not be forgotten that unlike pardon probation does not obliterate the crime of which the person under probation has been convicted. The image of the judiciary is tarnished by conduct involving moral turpitude. The reform and rehabilitation of the probationer cannot justify his retention in the government service. Conditions of probation (Sec. 10) Every probation order issued by the court shall contain conditions requiring that the probationer shall: (a) Present himself to the probation officer designated to undertake his supervision at such place as may be specified in the order within 72 hours from receipt of the order; (b) Report to the probation officer at least once a month at such time and place as specified by said officer.

Subject to the provisions of this Decree, the trial court may, after it shall have convicted and sentenced a defendant and upon application by said defendant within the period for perfecting an appeal, suspend the execution of the sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best: Provided, That no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction. Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. An application for probation shall be filed with the trial court. The filing of the application shall be deemed a waiver of the right to appeal. An order granting or denying probation shall not be appealable. The provisions of Sec. 4 of PD 968, as above amended, shall not apply to those who have already filed their respective applications for probation at the time of the effectivity of this Decree. Llamado v. CA (1989): In its present form, Section 4 of the Probation Law establishes a much narrower period during which an application for probation may be filed with the trial court: after the trial curt shall have convicted and sentenced a defendant and within the period for perfecting an appeal. The provision expressly prohibits the grant of an application for probation if the defendant has perfected an appeal from the judgment of

PAGE 94

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

The court may also require the probationer to: (a) Cooperate with a program of supervision; (b) Meet his family responsibilities; (c) Devote himself to a specific employment and not to change said employment without the prior written approval of the probation officer; (d) Undergo medical, psychological or psychiatric examination and treatment and enter and remain in a specified institution, when required for that purpose; (e) Pursue a prescribed secular study or vocational training; (f) Attend or reside in a facility established for instruction, recreation or residence of persons on probation; (g) Refrain from visiting houses of ill-repute; (h) Abstain from drinking intoxicating beverages to excess; (i) Permit the probation officer or an authorized social worker to visit his home and place of work; (j) Reside at premises approved by it and not to change his residence without its prior written approval; or (k) Satisfy any other condition related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience. Criteria of placing an offender on probation (Sec. 8) In considering whether an offender may be placed pn probation, the court shall consider all information relative to the: (1) character, (2) antecedents, (3) environment, (4) mental, and (5) physical condition of the offender (6) available institutional and community resources Probation shall be denied if the court finds that: (1) The offender is in need of correctional treatment that can be provided most effectively by his commitment to an institution; or (2) There is undue risk that during the period of probation the offender will commit another crime; or (3) Probation will depreciate the seriousness of the offense committed. Disqualified offenders Probation under PD No. 968, as amended, is intended for offenders who are 18 years of age and above, and who are not otherwise disqualified by law.

Offenders who are disqualified are those: (a) Sentenced to serve a maximum term of imprisonment of more than six years; (b) Convicted of subversion or any offense against the security of the State, or the Public Order; (c) Who have previously been convicted by final judgment of an offense punished by imprisonment of not less than one month and one day and/or a fine of not more than Two Hundred Pesos; (d) Who have been once on probation under the provisions of this Decree; and (e) Who are already serving sentence at the time the substantive provisions of PD 968 became applicable pursuant to Sec. 33 hereof (Effectivity clause: PD 968s substantive provisions took effect on 3 January 1978) Period of probation (Sec. 14) (a) The period of probation of a defendant sentenced to a term of imprisonment of not more than one year shall not exceed 2 years, and in all other cases, said period shall not exceed 6 years. (b) When the sentence imposes a fine only and the offender is made to serve subsidiary imprisonment in case of insolvency, the period of probation shall not be less than nor be more than twice the total number of days of subsidiary imprisonment as computed at the rate established in Art. 39 of the RPC, as amended. [Sec. 14] Question: When is the period for filing of probation? Answer: Filing period is within the period for perfecting an appeal. Question: Where do you file your probation application? Answer: Trial Court Question: Does the law allow the simultaneous filing of probation and appeal? Answer: No. Its either you file for probation or you file for appeal. Only one choice, if you choose one then you are barred from using the other. Question: When shall probation be denied? Answer: Probation shall be denied when: (1) the offender is in need of correctional treatment that can be provided most effectively by his commitment to an institution. (2) there is undue risk that during the probation, the offender will commit another crime. (3) probation will deprecate the seriousness of the offense committed.

PAGE 95

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

Question: What if the offender violates the conditions of his probation? Answer: S/He shall serve the penalty imposed for the offense under which s/he was placed on probation. Question: How long may a convict be placed on probation? Answer: (1) if the convict is sentence to imprisonment of not more than one year, probation shall not exceed two years (2) if s/he sentenced to more than one year, probation shall not exceed six years. (3) if the sentence is only a fine (offender in this case is made to suffer subsidiary imprisonment), probation Shall be not less than nor more than twice the total days of subsidiary imprisonment. Question: Does the probation law apply to Drug Traffickers and Pushers? Answer: NO Section 24 of RA 9165 (The Comprehensive Dangerous Drugs Act) states that: Non-Applicability of the Probation Law for Drug Traffickers and Pushers. Any person convicted for drug trafficking or pushing under this Act, regardless of the penalty imposed by the Court, cannot avail of the privilege granted by the Probation Law or Presidential Decree No. 968, as amended. Lagrosa vs. People (2003):A person who appeals his conviction for purposes of reducing the penalty to that which is within the probationable limit may still apply for probation. Arrest of probationer (Sec. 15) At any time during probation, the court may issue a warrant for the arrest of a probationer for any serious violation of the conditions of probation. The probationer, once arrested and detained, shall immediately be brought before the court for a hearing of the violation charged. The defendant may be admitted to bail pending such hearing. In such case, the provisions regarding release on bail of persons charged with a crime shall be applicable to probationers arrested under this provision. In the hearing, which shall be summary in nature, the probationer shall have the right to be informed of the violation charged and to adduce evidence in his favor. The court shall not be bound by the technical rules of evidence but may inform itself of all the facts which are material and relevant to ascertain the veracity of the charge. The State shall be represented by a prosecuting officer in any contested
PAGE 96

hearing. If the violation is established, the court may revoke or continue his probation and modify the conditions thereof. If revoked, the court shall order the probationer to serve the sentence originally imposed. An order revoking the grant of probation or modifying the terms and conditions thereof shall not be appealable.
SUSPENSION IN CASE OF INSANITY OR MINORITY

Suspension of the execution and service of the penalties in case of insanity. (Sec. 79) When a convict shall become insane or an imbecile after final sentence has been pronounced, the execution of said sentence shall be suspended only with regard to the personal penalty, the provisions of the second paragraph of circumstance number 1 of Article 12 being observed in the corresponding cases. If at any time the convict shall recover his reason, his sentence shall be executed, unless the penalty shall have prescribed in accordance with the provisions of this Code. The respective provisions of this section shall also be observed if the insanity or imbecility occurs while the convict is serving his sentence. Only execution of personal penalty is suspended: civil liability may be executed even in case of insanity of convict. An accused may become insane: (1) at the time of commission of the crime exempt from criminal liability (2) at the time of the trial court shall suspend hearings and order his confinement in a hospital until he recovers his reason (3) at the time of final judgment or while serving sentence execution suspended with regard to the personal penalty only Minority Please refer to succeeding subsection on RA 9344 and PD 603

Termination of probation; exception (Sec. 16) After the period of probation and upon consideration of the report and recommendation of the probation officer, the court may order the final discharge of the probationer upon finding that he has fulfilled the terms and conditions of his probation and thereupon, the case is deemed terminated.

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

The final discharge of the probationer shall operate to restore to him all civil rights lost or suspended as a result of his conviction and to fully discharge his liability for any fine imposed as to the offense for which probation was granted. The probationer and the probation officer shall each be furnished with a copy of such order. The expiration of the probation period alone does not automatically terminate probation. Probation is not coterminous with its period. There must first be issued by the court, an order of final discharge based on the report and recommendation of the probation officer. Only from such issuance can the case of the probationer be deemed terminated. [Bala v. Martinez] THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002 (RA 9165) Exception: Non-applicability of the Probation Law for drug traffickers and pushers Any person convicted for drug trafficking or pushing under this Act, regardless of the penalty imposed by the Court, cannot avail of the privilege granted by the Probation Law or PD 968, as amended. [Sec. 24, RA 9344]
JUVENILE JUSTICE AND WELFARE ACT OF 2006 (RA 9344); CHILD AND YOUTH WELFARE CODE (PD 603, AS AMENDED)

UNLESS the child acted with discernment, in which case, such child shall be subjected to the appropriate proceedings in accordance with RA 9344 Exemption from criminal liability herein established does not include exemption from civil liability, which shall be enforced in accordance with existing laws. (Sec. 6, RA 9344)
RA 9344 COMPARED TO PD 603

(1)

Minimum age of criminal responsibility

PD 603 Sec. 189.EXEMPT from criminal liability: (a) Child 9 years of age or under at time of commission of offense (b) 9 Age of child at time of commission of offense 15 (UNLESS s/he acted with discernment RA 9344 Child under 15 years of age shall be exempt from criminal liability, regardless of whether or not s/he acted with discernment (2) Discernment

PD 603 (Secs. 189 & 192) Child over 9 years and under 15 years of age who acted w/ discernment court shall determine imposable penalty, including any civil liability chargeable against him. However, instead of pronouncing judgment of conviction, the court, upon application of the youthful offender and if it finds that the best interest of the public as well as that of the offender will be served thereby, may suspend all further proceedings and shall commit such minor to the custody or care of the DSWD or to any training institution operated by the government, or duly licensed agencies or any other responsible person, until he shall have reached 21 years of age or, for a shorter period as the court may deem proper. RA 9344 Child above 15 years but below 18 years of age who acted with discernment shall be subjected to the appropriate proceedings in accordance with the Act. (3) Suspension of sentence

See also discussion of RA 9344 under Exempting Circumstances Definition of child in conflict with the law (Sec. 4) Child in conflict with the law a child who is alleged as, accused of, or adjudged as, having committed an offense under Philippine laws Child a person under 18 years Exemption from criminal liability (1) Child 15 years of age or under at the time of the commission of the offense = EXEMPT from criminal liability However, the child shall be subjected to an intervention program (per Sec. 20 of RA 9344) (2) Child above 15 years but below 18 years of age (15 Age of child at time of commission of offense 18) = EXEMPT from criminal liability and subjected to intervention program

PD 603 (Sec. 193) No automatic suspension of sentence. The youthful offender should apply for a suspended sentence and it is discretionary on the court to

PAGE 97

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

approve the application. The order of the court denying an application for suspension of sentence shall not be appealable. RA 9344 Suspension of sentence is automatic Juvenile justice and welfare system Juvenile Justice and Welfare System refers to a system dealing with children at risk and children in conflict with the law, which provides childappropriate proceedings, including programs and services for prevention, diversion, rehabilitation, reintegration and aftercare to ensure their normal growth and development. [Sec. 4(m), RA 9344] Diversion refers to an alternative, child-appropriate process of determining the responsibility and treatment of a child in conflict with the law on the basis of his/her social, cultural, economic, psychological, or educational background without resulting to formal court proceedings. Diversion Program refers to the program that the child in conflict with the law is required to undergo after he/she is found responsible for an offense without resorting to formal court proceedings. [Sec. 4(j), RA 9344] Development of a Comprehensive Juvenile Intervention Program (1) A Comprehensive juvenile intervention program covering at least a 3-year period shall be instituted in LGUs from the barangay to the provincial level. (2) The LGUs shall set aside an amount necessary to implement their respective juvenile intervention programs in their annual budget. (3) The LGUs, in coordination with the LCPC, shall call on all sectors concerned, particularly the childfocused institutions, NGOs, people's organizations, educational institutions and government agencies involved in delinquency prevention to participate in the planning process and implementation of juvenile intervention programs. Such programs shall be implemented consistent with the national program formulated and designed by the JJWC. The implementation of the comprehensive juvenile intervention program shall be reviewed and assessed annually by the LGUs in coordination with the LCPC. Results of the assessment shall be submitted by the provincial and city governments to the JJWC not later than March 30 of every year. [Sec. 18, RA9344]

Community-based Programs on Juvenile Justice and Welfare Community-based programs on juvenile justice and welfare shall be instituted by the LGUs through the LCPC, school, youth organizations and other concerned agencies. The LGUs shall provide community-based services which respond to the special needs, problems, interests and concerns of children and which offer appropriate counselling and guidance to them and their families. These programs shall consist of three levels: (a) Primary intervention includes general measures to promote social justice and equal opportunity, which tackle perceived root causes of offending; (b) Secondary intervention includes measures to assist children at risk; and (c) Tertiary intervention includes measures to avoid unnecessary contact with the formal justice system and other measures to prevent reoffending. [Sec. 19, RA 9344] System of Diversion Children in conflict with the law shall undergo diversion programs without undergoing court proceedings subject to the conditions herein provided: (a) Where the imposable penalty for the crime committee is not more than six (6) years imprisonment, the law enforcement officer or Punong Barangay with the assistance of the local social welfare and development officer or other members of the LCPC shall conduct mediation, family conferencing and conciliation and, where appropriate, adopt indigenous modes of conflict resolution in accordance with the best interest of the child with a view to accomplishing the objectives of restorative justice and the formulation of a diversion program. The child and his/her family shall be present in these activities. (b) In victimless crimes where the imposable penalty is not more than six (6) years imprisonment, the local social welfare and development officer shall meet with the child and his/her parents or guardians for the development of the appropriate diversion and rehabilitation program, in coordination with the BCPC; (c) Where the imposable penalty for the crime committed exceeds six (6) years imprisonment, diversion measures may be resorted to only by the court. [Sec. 23, RA 9344]

PAGE 98

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

Period of preventive imprisonment deducted from term of imprisonment Offenders who have undergone preventive imprisonment shall be credited in the service of their sentence consisting of deprivation of liberty, with the full time during which they have undergone preventive imprisonment, if the detention prisoner agrees voluntarily in writing to abide by the same disciplinary rules imposed upon convicted prisoners, except in the following cases: a. When they are recidivists or have been convicted previously twice or more times of any crime; and b. When upon being summoned for the execution of their sentence they have failed to surrender voluntarily. If the detention prisoner does not agree to abide by the same disciplinary rules imposed upon convicted prisoners, he shall be credited in the service of his sentence with four-fifths of the time during which he has undergone preventive imprisonment. (As amended by Republic Act 6127, June 17, 1970). Whenever an accused has undergone preventive imprisonment (a) for a period equal to or more than the possible maximum imprisonment of the offense charged to which he may be sentenced (b) and his case is not yet terminated, he shall be released immediately without prejudice to the continuation of the trial thereof or the proceeding on appeal, if the same is under review. In case the maximum penalty to which the accused may be sentenced is destierro, he shall be released after thirty (30) days of preventive imprisonment. (As amended by E.O. No. 214, July 10, 1988). The accused undergoes preventive imprisonment when the offense charged is nonbailable, or even if bailable, he cannot furnish the required bail. The convict is to be released immediately if the penalty imposed after trial is less than the full time or four-fifths of the time of the preventive imprisonment. The accused shall be released immediately whenever he has undergone preventive imprisonment for a period equal to or more than the possible maximum imprisonment for the offense charged.

Modification and Extinction of Criminal Liability


Two kinds of extinguishment of criminal liability: TOTAL EXTINGUISHMENT (1) By prescription of crime (2) By prescription of penalty (3) By the death of the convict (4) By Service of sentence (5) By Amnesty (6) By Absolute Pardon (7) By the marriage of the offended woman and the offender in the crimes of rape, abduction, seduction and acts of lasciviousness. (Art. 344) PARTIAL EXTINGUISHMENT (1) By Conditional Pardon (2) By Commutation of sentence (3) For good conduct, allowances which the culprit may earn while he is serving sentence (4) By Parole (5) By Probation Important: The Supreme Court ruled that re-election to public office is not one of the grounds by which criminal liability is extinguished. This is only true in administrative cases but not in criminal cases. PRESCRIPTION OF CRIME; PRESCRIPTION OF VIOLATIONS OF SPECIAL LAWS (ACT NO. 3326) Definition: The forfeiture or loss of the right of the State to prosecute the offender, after the lapse of a certain period of time. General rule: Prescription of the crime begins on the day the crime was committed. Exception: The crime was concealed, not public, in which case, the prescription thereof would only commence from the time the offended party or the government learns of the commission of the crime. Difference between Prescription of Crime and Prescription of the Penalty Prescription of crime Prescription of the penalty Forfeiture of the State to Forfeiture to execute the prosecute after a lapse of final sentence after the a certain time lapse of a certain time Question: What happens when the last day of the prescriptive period falls on a Sunday or legal holiday?

PAGE 99

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

Answer: The information can no longer be filed on the next day as the crime has already prescribed. Prescriptive Periods of Crimes (1) Crimes punishable by death, reclusion perpetua or reclusion (2) temporal (3) Afflictive penalties (4) Correctional penalties Note: Those punishable arresto mayor by

20 years 15 years 10 years 5 years The highest penalty shall be made a basis 1 year 6 months 2 months 6 months 2 months 15 years 10 years 2 months

Note: When the penalty fixed law is a compound one (5) Libel (6) Oral defamation and slander by deed (7) Simple slander (8) Grave slander (9) Light offenses (10) Crimes punishable by fines a) Fine is afflictive b) Fine is correctional c) Fine is light Note: Subsidiary penalty for nonpayment not considered in determining the period Note: When fine is an alternative penalty higher than the other penalty which is by imprisonment, prescription of the crime is based on the fine.

Computation of Prescription of Offenses (Art. 91) (1) Commences to run from the day on which the crime is discovered by the offended party, the authorities or their agents. (2) Interrupted by the filing of complaint or information (3) It shall commence to run again when such proceedings terminate without the accused being convicted or acquitted, or unjustifiably stopped for any reason not imputable to the accused. Note: Termination must be FINAL as to amount to a jeopardy that would bar a subsequent prosecution. (4) The term of prescription shall not run when the offender is absent from the Philippine archipelago. (5) For continuing crimes, prescriptive period cannot begin to run because the crime does not end. PRESCRIPTION OF PENALTIES Definition: The loss or forfeiture of the right of the government to execute the final sentence after the lapse of a certain period of time. Prescriptive Periods of Penalties Death and reclusion perpetua Other afflictive penalties Correctional penalties Note: If arresto mayor Light penalties 20 years 15 years 10 years 5 years 1 year

Computation of Prescription of Penalties (Art. 93) Elements: (1) Penalty is imposed by final judgment (2) Convict evaded service of sentence by escaping during the term of his sentence (3) The convict who has escaped from prison has not given himself up, or been captured, or gone to a foreign country with which we have no extradition treaty, or committed another crime (4) The penalty has prescribed because of the lapse of time from the date of the evasion of service of the sentence by the convict. Period commences to run from the date when the culprit evaded the service of sentence. Note: "Escape" in legal parlance and for purposes of Articles 93 and 157 of the RPC means unlawful departure of prisoner from the limits of his custody. Clearly, one who has not been committed to prison cannot be said to have escaped therefrom [Del Castillo v. Torrecampo (2002)].

Prescriptive periods under special laws and municipal ordinances (Act 3763, amending Act 3326) Offenses punished only by fine or imprisonment for not more than one 1 year month or both Imprisonment for more than one 4 years month, but less than two years Imprisonment for two years but less 8 years than six years Imprisonment for six years or more 12 years Offenses under Internal Revenue Law 5 years Violations of municipal ordinances 2 months Violations of the regulations or conditions of certificate of 2 months convenience by the Public Service Commission Note: Not applicable where the special law provides for its own prescriptive period

PAGE 100

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

When interrupted: (a) Convict gives himself up (b) Is captured (c) Goes to a foreign country with which we have no extradition treaty (d) Commits any crime before the expiration of the period of prescription Question: What happens in cases where our government has extradition treaty with another country but the crime is not included in the treaty? Answer: It would interrupt the running of the prescriptive period. Question: What is the effect of the acceptance of the convict of a conditional pardon? Answer: It would interrupt the acceptance of the prescriptive period. Question: What happens if the culprit is captured but he evades again the service of his sentence? Answer: The period of prescription that ran during the evasion is not forfeited. The period of prescription that has run in his favor should be taken into account. PARDON BY OFFENDED PARTY Art. 23. Effect of pardon by the offended party. A pardon of the offended party does not extinguish criminal action except as provided in Article 344 of this Code; but civil liability with regard to the interest of the injured party is extinguished by his express waiver. This article states the extent of a pardon made by the offended party. Under this article, a pardon does not extinguish the criminal liability of an offender except for cases under Article 344 (Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and acts of lasciviousness). But the civil liability with regard to the interest of the injured party is extinguished. PARDON BY THE CHIEF EXECUTIVE Absolute Pardon An act of grace, proceeding from the power entrusted with the execution of the laws. Exempts the individual from the penalty of the crime he has committed.

Monsanto v Factoran (1989): (1) Absolute pardon does not ipso facto entitle the convict to reinstatement to the public office forfeited by reason of his conviction. (2) Although pardon restores his eligibility for appointment to that office, the pardoned convict must reapply for a new appointment. Conditional Pardon If delivered and accepted, it is a contract between the executive and the convict that the former will release the latter upon compliance with the condition. One usual condition is not again violate any of the penal laws of the country. Effects of Pardon of the President Art. 36. Pardon; its effects. A pardon shall not work the restoration of the right to hold public office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon. A pardon shall in no case exempt the culprit from the payment of civil indemnity imposed upon him by the sentence. Effects: (1) A pardon shall not restore the right to hold public office or the right of suffrage. Exception: When any or both such rights is or are expressly restored by the terms of the pardon. (2) It shall not exempt the culprit from the payment of the civil indemnity. The pardon cannot make an exception to this rule. Limitations upon the exercise of pardoning power (1) That the power can be exercised only after conviction. Thus in applying for pardon, the convict must not appeal the judgment of conviction or the appeal must be abandoned. (2) That such power does not extend to cases of impeachment. (Cristobal v. Labrador). Pardon by the Chief Executive Pardon by the Offended Party

Extinguishes the criminal Does not extinguish liability of the offender. criminal liability. Although it may constitute a bar to the prosecution of the: (1) crimes of seduction, abduction and acts of lasciviousness by the valid marriage of the offended party and the offender; and (2) in adultery and

PAGE 101

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

Pardon by the Chief Executive

Pardon by the Offended Party concubinage, by the express or implied pardon by the offended spouse.

If an offender was convicted for rebellion and he qualified for amnesty, and so he was given an amnesty, then years later he rebelled again and convicted, is he a recidivist? No. Because the amnesty granted to him erased not only the conviction but also the effects of the conviction itself. Suppose, instead of amnesty, what was given was absolute pardon, then years later, the offended was again captured and charged for rebellion, he was convicted, is he a recidivist? Yes. Pardon, although absolute does not erase the effects of conviction. Pardon only excuses the convict from serving the sentence. There is an exception to this and that is when the pardon was granted when the convict had already served the sentence such that there is no more service of sentence to be executed then the pardon shall be understood as intended to erase the effects of the conviction. So if the convict has already served the sentence and in spite of that he was given a pardon that pardon will cover the effects of the crime and therefore, if he will be subsequently convicted for a felony embracing the same title as that crime, he cannot be considered a recidivist, because the pardon wipes out the effects of the crime. But if he was serving sentence when he was pardoned, that pardon will not wipe out the effects of the crime, unless the language of the pardon absolutely relieve the offender of all the effects thereof. Considering that recidivism does not prescribe, no matter how long ago was the first conviction, he shall still be a recidivist. LAWS IN SC SYLLABUS: (1) Act Prohibiting the Imposition of Death Penalty in the Philippines (RA 9346) (2) Anti-Violence Against Women and Their Children Act of 2004 (RA 9262) (3) Juvenile Justice and Welfare Act of 2006 (RA 9344); (4) Child and Youth Welfare code (PD 603, as amended) (5) Decree Codifying the Laws on Illegal/ Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition, of Firearms, Ammunition or Explosives (P.D. 1866, as amended by R.A. No. 8294) (6) The Comprehensive Dangerous Drugs Act of 2002 (R.A. No. 9165)

Cannot include liabilities which offender must pay.

civil The offended party can the waive the civil liability which the offender must pay. Cannot be conditional

Conditional or Absolute

Granted only after the Pardon should be given conviction. before the institution of criminal prosecution. AMNESTY An act of the sovereign power granting oblivion or general pardon for a past offense. Rarely exercised in favor of a single individual; usually extended in behalf of certain classes of persons who are subject trial but have not yet been convicted. Erases not only the conviction but the crime itself. Difference between Amnesty and Absolute Pardon Amnesty Absolute Pardon Blanket pardon to classes Includes any crime and is of persons, guilty of exercised individually political offenses May still be exercised The person is already before trial or convicted investigation Looks backward- it is as if Looks forward- he is he has committed no relieved from the offense consequences of the offense, but rights not restored unless explicitly provided by the terms of the pardon Both do not extinguish civil liability Public act which the court Private act of the shall take judicial notice President and must be of pleaded and proved by the person pardoned Valid only when there is Valid if given either before final judgment or after final judgment The effects of amnesty as well as absolute pardon are not the same. Amnesty erases not only the conviction but also the crime itself.

PAGE 102

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK ONE

BAR OPERATIONS COMMISSION

(7) Decree Penalizing Obstruction of Apprehension and Prosecution of Criminal Offenders (P.D. 1829) (8) Indeterminate Sentence Law (RA 4103, as amended) (9) Probation Law (PD 968, as amended) (10) Prescription of Violations of Special Laws (Act No. 3326)

PAGE 103

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

PAGE 104

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

Title I. Crimes against National Security and the Law of Nations


CRIMES AGAINST SECURITY: (1) Art. 114: Treason (2) Art. 115: Conspiracy and Proposal to Commit Treason (3) Art. 116: Misprision of Treason (4) Art. 117: Espionage CRIMES AGAINST THE LAW OF NATIONS (1) Art. 118: Inciting to War or Giving Motives for Reprisals (2) Art. 119: Violation of Neutrality (3) Art. 120: Correspondence with Hostile Country (4) Art. 121: Flight to Enemys Country (5) Art. 122: Piracy in General and Mutiny on the High Seas or in Philippine Waters (6) Art. 123: Qualified Piracy The crimes under this title can be prosecuted even if the criminal act or acts were committed outside the Philippine territorial jurisdiction. This is one of the instances where the RPC may be given extra-territorial application under Article 2 (5) thereof. However, prosecution can proceed only if the offender is: (1) within Philippine territory, OR (2) brought to the Philippines pursuant to an extradition treaty. Crimes against national security can be tried only in the Philippines, as there is a need to bring the offender here before he can be made to suffer the consequences of the law. In the case of crimes against the law of nations, the offender can be prosecuted whenever he may be found because the crimes are regarded as committed against humanity in general. The acts against national security may be committed abroad and still be punishable under our law. General rule: Almost all of these are crimes committed in times of war. Exceptions: The following can be committed in times of peace: (1) Espionage (Art 117) This is also covered by Commonwealth Act No. 616 which punishes conspiracy to commit espionage.

(2) Inciting to War or Giving Motives for Reprisals (Art 118) This can be committed even if the Philippines is not a participant. (3) Violation of Neutrality (Art. 119) The Philippines is not a party to an on-going war. CRIMES AGAINST SECURITY ARTICLE 114 - TREASON MODE 1: Levying War Elements: (1) The offender is a Filipino or resident alien (2) There is a war in which the Philippines is involved (3) The offender levies war against the government MODE 2: Adherence to the Enemy and Giving of Aid or Comfort Elements: (1) The offender is a Filipino or resident alien (2) There is a war in which the Philippines is involved (3) That the offender adheres to the enemies, giving them aid or comfort Treason is a breach of allegiance to a government, committed by a person who owes allegiance to it. It cannot be committed in the time of peace. There are two ways of committing treason: (1) By levying war against the Government and (2) By adhering to the enemies of the Philippines, giving them aid or comfort. (Reyes, 2008) To be treasonous, the extent of aid and comfort given to the enemies must be to render assistance to them as enemies and not as individuals, in the furtherance of the enemies hostile designs. Intent of disloyalty is a vital ingredient in the crime of treason, which in the absence of admission may be gathered from the nature and circumstances of each particular case. [People vs. Perez] Mode 1: Levying War Requirements: Levying war requires the concurrence of two things: (1) that there must be an actual assembling of men; (2) for the purpose of executing a treasonable design by force. There must be an actual assembling of men. The mere acceptance of the commission from the secretary of war of the Katipunan by the accused, nothing else having been done, was not an overt act of treason within the meaning of the law. [U.S. vs. De los Reyes]

PAGE 105

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

The levying of war must be directed against the government. It must be with intent to overthrow the government as such, not merely to resist a particular statute or to repel a particular officer. [Reyes, 2008; th citing 3 Whartons Criminal Law, 12 Ed.] The levying of war must be in collaboration with a foreign enemy. If the levying of war is merely a civil uprising, without any intention of helping an external enemy, the crime is not treason. The offenders may be held liable for rebellion under Article 135 in relation to Article 134 of the RPC. [Reyes, 2008] Mode 2: Adherence to the Enemy Adherence and giving aid or comfort to the enemy must concur. Adherence to the enemy means intent to betray. Aid or comfort means an act which strengthens or tends to strengthen the enemy in the conduct of war against the traitors country and an act which weakens or tends to weaken the power of the traitors country to resist or to attack the enemy. [Cramer vs. US] When there is no adherence to the enemy, the act which may do aid or comfort to the enemy does not amount to treason. [Reyes, 2008] Acceptance of public office and discharge of official duties under the enemy do not constitute per se the felony of treason. But when there is adherence to the enemy, then such constitute treason. [People vs. Sison] The term enemies applies only to the subjects of a foreign power in a state of hostility with the traitors country. [Reyes, 2008] The overt act of aid and comfort to the enemy must be intentional, as distinguished from merely negligent or undesigned ones. [Cramer vs. US] When the killings and other common crimes are charged as overt acts of treason, they cannot be regarded: (1) as separate crimes, or (2) as complexed with treason. Exception: But this rule would not preclude the punishment of murder or other common crimes as such, if the prosecution should elect to prosecute the culprit specifically for these crimes, instead of relying on them as an element of treason. [People vs. Prieto] Treason by a Filipino citizen can be committed outside of the Philippines. Treason by an alien must be committed in the Philippines.

The crime of treason is of such a nature that it may be committed by one single act, by a series of acts, or by several series thereof, not only in a single time, but in different times, it being a continuous crime. [People vs. Victoria] Treason cannot be proved by circumstantial evidence or by the extrajudicial confession of the accused. Two Ways of Proving Treason (1)Testimony of at least two witnesses to the same overt act; or (2)Confession of accused in open court.[Article 114, par.2, RPC] The Two-witness Rule The testimony of two witnesses is required to prove the overt act of giving aid or comfort. It is not necessary to prove adherence. Each of the witness must testify to the whole overt act; or if it is separable, there must be two witnesses to each part of the overt act. [People vs. Escleto] Adherence may be proved: (1) By one witness, (2) From the nature of the act itself, or (3) From the circumstances surrounding the act. Adherence need not be proven by two witness testimonies may be inferred from one witness, or from the nature of the act itself or other circumstances [People vs. Adriano] Reason why Two-witness Rule does not apply to adherence: Adherence to the enemy is a state of mind. It is never susceptible of proof by direct testimony. [Reyes, 2008] Confession must be made in open court. Extrajudicial confession or confession made before the investigators is not sufficient to convict a person of treason. [Reyes, 2008] Aggravating Circumstances Cruelty and ignominy are aggravating circumstances in treason. But evident premeditation is not considered as one since adherence and the giving of aid and comfort to the enemy is usually a long continued process requiring requiring reflective and persistent determination and planning.[People vs. Racaza] Superior strength and treachery are circumstances inherent in treason. Treachery is merged in superior strength. Therefore, they are not aggravating in treason.[People vs. Adlawan]

PAGE 106

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

The presence of the aggravating circumstances of treachery, the aid of armed persons to insure or afford impunity, and deliberately augmenting the crimes by causing other wrongs not necessary in the commission thereof are inherent in the crime of treason and thus shall not be appreciated as aggravating circumstances. [People vs Victoria] Defense of Suspended Allegiance and change of sovereignty are not accepted because: (1)A citizen owes an absolute and permanent allegiance to his Government; (2)The sovereignty of the Government is not transferred to the enemy by mere occupation; (3)The subsistence of the sovereignty of the legitimate Government in a territory occupied by the military forces of the enemy during the war is one of the rules of International Law; and (4)What is suspended is the exercise of the rights of sovereignty. In addition to the defense of duress or uncontrollable fear, lawful obedience to a de facto Government is a good defense in treason. The Philippine Executive Commission, as well as the Republic established by the Japanese occupation army in the Philippines, had all the characteristics of a de facto Government. [Go Kim Cham vs. Valdez] Defense of loss of citizenship by joining the army of the enemy is not valid. The accused cannot divest himself of his Philippine citizenship by the simple expedient of accepting a commission in the military, naval or air service of such country. If his contention is sustained, his very crime would be the shield that would protect him from punishment. [People vs. Manayao]
ARTICLE 115 - CONSPIRACY AND PROPOSAL TO COMMIT TREASON CONSPIRACY TO COMMIT TREASON

(a) Levy war against the government; or (b) Adhere to the enemies, giving them aid or comfort General rule: Conspiracy and proposal to commit a felony is not punishable under Article 8. Exception: Under Article 115, mere conspiracy or proposal to commit treason is punishable. This is because, in treason, the very existence of the state is endangered. [Reyes, 2008] The two-witness rule does not apply to conspiracy or proposal to commit treason because this is a separate and distinct offense from that of treason. [US vs. Bautista]
ARTICLE 116 - MISPRISION OF TREASON

Elements: (1) Offender owes allegiance to the government, and is not a foreigner (2) He has knowledge of conspiracy to commit treason against the government (3) He conceals or does not disclose and make known the same as soon as possible to the governor or fiscal of the province in which he resides, or the mayor or fiscal of the city in which he resides Misprision of treason is a crime that may be committed only by citizens of the Philippines. It cannot be committed by a resident alien. The essence of the crime is that there are persons who conspire to commit treason and the offender knew this and failed to make the necessary report to the government within the earliest possible time. Article 116 does not apply when the crime of treason is already committed by someone and the accused does not report its commission to the proper authority. The provision only speaks of knowledge of any conspiracy against the Government of the Philippines, not knowledge of treason actually committed by another. The criminal liability arises if the accused learned of the treasonous activity while still at the conspiratorial stage because if he learned of the treason when it had already erupted into an overt act, then the implication is that the government is already aware of it. The offender in misprision of treason is punished as an accessory to treason. Note that Article 116 does not provide for a penalty. However, the offender is a principal in the crime of misprision of treason.

Elements: (1) There is a war in which the Philippines is involved (2) At least two persons come to an agreement to (a) Levy war against the government; or (b) Adhere to the enemies, giving them aid or comfort (3) That person proposes its execution to other persons (4) They decide to commit it
PROPOSAL TO COMMIT TREASON

Elements: (1) There is a war in which the Philippines is involved (2) At least one person decides to

PAGE 107

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

Any person in authority having the equivalent jurisdiction (of a mayor, fiscal or governor), like a provincial commander, will already negate criminal liability. Blood relationship is always subservient to national security. Article 20 of the RPC regarding accessories who are exempt from criminal liability does not apply in this case because persons found liable for this crime are not considered accessories, but as principals. Article 116 is an exception to the rule that mere silence does not make a person criminally liable. [US vs. Caballeros] Under the Revised Penal Code, there is no crime of misprision of rebellion.
ARTICLE 117 ESPIONAGE

that the offender has the purpose to obtain any of them. Espionage Treason

Not conditioned by the Not conditioned by the citizenship of the offender citizenship of the offender May be committed both in Committed only in time of time of war and in time of war peace May be committed in Limited only to two ways many ways of committing the crime: levying of war and adhering to the enemy giving him aid or comfort

MODE 1: Entering of establishment to obtain confidential information regarding defense of the Philippines Elements: (1) That the offender enters a warship, fort, or naval or military establishment or reservation; (2) That he has no authority therefor; (3) That his purpose is to obtain information, plans, photographs or other data of a confidential nature relative to the defense of the Philippines. MODE 2: Disclosing by public officer of confidential information to a foreign representative Elements: (1) That the offender is a public officer; (2) That he has in his possession the articles, data or information of a confidential nature relative to the defense of the Philippines, by reason of the public office he holds; That he discloses their contents to a representative of a foreign nation. Under paragraph 1 of Article 117, the offender is any person, whether a citizen or a foreigner, a private individual or a public officer. Under paragraph 2, the offender must be a public officer who has in his possession the information by reason of the public office he holds. To be liable under paragraph 1, the offender must have the intention to obtain information relative to the defense of the Philippines. It is not necessary that the information, etc. is obtained. It is sufficient

Crimes against the Law of Nations


ARTICLE 118 - INCITING TO WAR OR GIVING MOTIVES FOR REPRISALS Elements: (1) Offender performs unlawful or unauthorized acts (2) The acts provoke or give occasion for (a) A war involving or liable to involve the Philippines; or (b) Exposure of Filipino citizens to reprisals on their persons or property This crime is committed in time of peace. The intention of the offender is immaterial. The law considers the effects produced by the acts of the accused. [Reyes, 2008l citing Viada] Examples [Reyes, 2008] The raising, without sufficient authorization, of troops within the Philippines for the service of a foreign nation against another nation. The public destruction of the flag or seal of a foreign state or the public manifestations of hostility to the head or ambassador of another state. ARTICLE 119 - VIOLATION OF NEUTRALITY Elements: (1) There is a war in which the Philippines is not involved (2) There is a regulation issued by a competent authority to enforce neutrality

PAGE 108

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

(3) Offender violates the regulation Definition of neutrality. A nation or power which takes no part in a contest of arms going on between other countries. ARTICLE 120 - CORRESPONDENCE WITH HOSTILE COUNTRY Elements: (1) It is in time of war in which the Philippines is involved (2) Offender makes correspondence with an enemy country or territory occupied by enemy troops (3) The correspondence is either (a) Prohibited by the government, or (b) Carried on in ciphers or conventional signs, or (c) Containing notice or information which might be useful to the enemy. Definition of Correspondence. Communication by means of letters which pass between those who have friendly or business relations. Even if the correspondence contains innocent matters, if the correspondence has been prohibited by the Government, it is punishable. Prohibition by the Government is not essential in paragraphs 2 and 3 of Article 120. Circumstances qualifying the offense under sentence 2, paragraph 3 The following must concur together: (1)That the notice or information might be useful to the enemy, and (2) That the offender intended to aid the enemy. If the offender intended to aid the enemy by giving such notice or information, the crime amounts to treason; hence, the penalty is the same as that for treason. [Reyes, 2008] ARTICLE 121 - FLIGHT TO ENEMY'S COUNTRY Elements: (1) There is a war in which the Philippines is involved (2) Offender must be owing allegiance to the government (3) Offender attempts to flee or go to enemy country (4) Going to the enemy country is prohibited by compete An alien resident may be guilty of flight to enemy country. The law does not say not being a

foreigner. Hence, the allegiance contemplated in this article is either natural or temporary allegiance. [Reyes, 2008] Mere attempt to flee or go to enemy country consummates the crime. ARTICLE 122 - PIRACY IN GENERAL AND MUTINY ON THE HIGH SEAS OR IN PHILIPPINE WATERS Elements: (1) The vessel is on the high seas or Philippine waters (2) Offenders are neither members of its complement nor passengers of the vessel (3) Offenders either (a) Attack or seize that vessel; or (b) Seize the whole or part of its cargo, its equipment or personal belongings of its complement or passengers (4) There is intent to gain Acts Punished in Piracy: (1) Attacking or seizing a vessel on the high seas or in Philippine waters (2) Seizing the whole or part of its cargo, complement or passengers while the vessel is on the high seas or in Philippine waters Definition of High Seas The Convention on the Law of the Sea defined it as parts of the seas that are not included in the exclusive economic zone, in the territorial seas, or in the internal waters of a state, or in the archipelagic waters of an archipelagic state. Definition of Piracy It is robbery or forcible depredation on the high seas, without lawful authority and done with animo furandi and in the spirit and intention of universal hostility. [People vs. Lol-lo] Mutiny Definition of Mutiny It is the unlawful resistance to a superior officer, or the raising of commotions and disturbances Mutiny is punished in Article 122.Mutiny is usually committed by the other members of the complement and may be committed by the passengers of the vessel. Piracy Mutiny

Persons who attack the Persons who attack the vessel or seize its cargo vessel or seize its cargo are strangers to said are members of the crew

PAGE 109

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

Piracy vessels Intent to gain is essential

Mutiny or passengers Intent to gain is not essential. The offenders may only intend to ignore the ships officers or they may be prompted by a desire to commit plunder.

crew or passengers (4) The preceding were committed under any of the following circumstances: (a) Whenever they have seized a vessel by boarding or firing upon the same; (b) Whenever the pirates have abandoned their victims without means of saving themselves; or (c) Whenever the crime is accompanied by murder, homicide, physical injuries or rape If any of the circumstances in Article 123 is present, piracy is qualified. Paragraph 2 of Article 123 specifically mentions pirates thereby excluding mutineers from said paragraph. It would seem, however, that it should be in paragraph 1 where the word pirates should be specifically mentioned and not in paragraph 2, because in paragraph 1, the mutineers, being already in the vessel, cannot seize the vessel by boarding or firing upon the same. [Reyes, 2008] Murder, rape, homicide, physical injuries are mere circumstances qualifying piracy and cannot be punished as separate crimes, nor can they be complexed with piracy. Although Article 123 refers to qualified piracy, there is also the crime of qualified mutiny. Mutiny is qualified under the following circumstances: (1) When the offenders abandoned the victims without means of saving themselves; or (2) When the mutiny is accompanied by rape, murder, homicide, or physical injuries The first circumstance which qualifies piracy does not apply to mutiny. PD 532: ANTI-PIRACY AND ANTI-HIGHWAY ROBBERY
DEFINITION OF TERMS

Abetting Piracy In Section 4 of Presidential Decree No. 532, the act of aiding pirates or abetting piracy is penalized as a crime distinct from piracy. Said section penalizes any person who knowingly and in any manner aids or protects pirates, such as giving them information about the movement of the police or other peace officers of the government, or acquires or receives property taken by such pirates, or in any manner derives any benefit therefrom; or who directly or indirectly abets the commission of piracy. Also, it is expressly provided in the same section that the offender shall be considered as an accomplice of the principal offenders and punished in accordance with the Revised Penal Code. This provision of PD No. 532 with respect to piracy in Philippine waters has not been incorporated into the RPC. Neither may it be considered repealed by RA 7659 since there is nothing in the amendatory law which is inconsistent with said section. Apparently, there is still the crime of abetting piracy in Philippine waters under PD No. 532. RA 9372 A person who commits an act punishable as piracy and mutiny under Article 122 thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand shall be guilty of the crime of terrorism. ARTICLE 123 - QUALIFIED PIRACY Elements: (1) The vessel is on the high seas or Philippine waters (2) Offenders may or may not be members of its complement, or passengers of the vessel (3) Offenders either (a) Attack or seize the vessel; or (b) Seize the whole or part of its cargo, its equipment, or personal belongings of its

Section 2. Definition of Terms. The following terms shall mean and be understood, as follows: (a) Philippine Waters. It shall refer to all bodies of water, such as but not limited to, seas, gulfs, bays around, between and connecting each of the Islands of the Philippine Archipelago, irrespective of its depth, breadth, length or dimension, and all other waters belonging to the Philippines by historic or legal title, including territorial sea, the sea-bed, the insular shelves, and other submarine areas over which the Philippines has sovereignty or jurisdiction. (b) Vessel. Any vessel or watercraft used for transport of passengers and cargo from one
PAGE 110

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

place to another through Philippine Waters. It shall include all kinds and types of vessels or boats used in fishing. (c) Philippine Highway. It shall refer to any road, street, passage, highway and bridges or other parts thereof, or railway or railroad within the Philippines used by persons, or vehicles, or locomotives or trains for the movement or circulation of persons or transportation of goods, articles, or property or both. (d) Piracy. Any attack upon or seizure of any vessel, or the taking away of the whole or part thereof or its cargo, equipment, or the personal belongings of its complement or passengers, irrespective of the value thereof, by means of violence against or intimidation of persons or force upon things, committed by any person, including a passenger or member of the complement of said vessel, in Philippine waters, shall be considered as piracy. The offenders shall be considered as pirates and punished as hereinafter provided. (e) Highway Robbery/Brigandage. The seizure of any person for ransom, extortion or other unlawful purposes, or the taking away of the property of another by means of violence against or intimidation of person or force upon things of other unlawful means, committed by any person on any Philippine Highway.
PUNISHABLE ACTS

penalty of reclusion temporal in its medium and maximum periods shall be imposed. If kidnapping for ransom or extortion, or murder or homicide, or rape is committed as a result or on the occasion thereof, the penalty of death shall be imposed. Section 4. Aiding pirates or highway robbers/brigands or abetting piracy or highway robbery/brigandage. Any person who knowingly and in any manner aids or protects pirates or highway robbers/brigands, such as giving them information about the movement of police or other peace officers of the government, or acquires or receives property taken by such pirates or brigands or in any manner derives any benefit therefrom; or any person who directly or indirectly abets the commission of piracy or highway robbery or brigandage, shall be considered as an accomplice of the principal offenders and be punished in accordance with the Rules prescribed by the Revised Penal Code. It shall be presumed that any person who does any of the acts provided in this Section has performed knowingly, unless the contrary is proven. RA 6235: ANTI-HIJACKING LAW
PUNISHABLE ACTS

Section 3. Penalties. Any person who commits piracy or highway robbery/brigandage as herein defined, shall, upon conviction by competent court be punished by: (a) Piracy. The penalty of reclusion temporal in its medium and maximum periods shall be imposed. If physical injuries or other crimes are committed as a result or on the occasion thereof, the penalty of reclusion perpetua shall be imposed. If rape, murder or homicide is committed as a result or on the occasion of piracy, or when the offenders abandoned the victims without means of saving themselves, or when the seizure is accomplished by firing upon or boarding a vessel, the mandatory penalty of death shall be imposed. (b) Highway Robbery/Brigandage. The penalty of reclusion temporal in its minimum period shall be imposed. If physical injuries or other crimes are committed during or on the occasion of the commission of robbery or brigandage, the

Section 1. It shall be unlawful for any person to compel a change in the course or destination of an aircraft of Philippine registry, or to seize or usurp the control thereof, while it is in flight. An aircraft is in flight from the moment all its external doors are closed following embarkation until any of such doors is opened for disembarkation. It shall likewise be unlawful for any person to compel an aircraft of foreign registry to land in Philippine territory or to seize or usurp the control thereof while it is within the said territory. Section 3. It shall be unlawful for any person, natural or juridical, to ship, load or carry in any passenger aircraft operating as a public utility within the Philippines, and explosive, flammable, corrosive or poisonous substance or material. Section 4. The shipping, loading or carrying of any substance or material mentioned in the preceding section in any cargo aircraft operating as a public utility within the Philippines shall be in accordance with regulations issued by the Civil Aeronautics Administration

PAGE 111

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

RA 9372: HUMAN SECURITY ACT OF 2007 SEC. 3.Terrorism. Any person who commits an act punishable under any of the following provisions of the Revised Penal Code: (1) Article 122 (Piracy in General and Mutiny in the High Seas or in the Philippine Waters); (2) Article 134 (Rebellion or Insurrection); (3) Article 134-a (Coup detat), including acts committed by private persons; (4) Article 248 (Murder); (5) Article 267 (Kidnapping and Serious Illegal Detention); (6) Article 324 (Crimes Involving Destruction), (7) or under (1) Presidential Decree No. 1613 (The Law on Arson); (2) Republic Act No. 6969 (Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990); (3) Republic Act No. 5207, (Atomic Energy Regulatory and Liability Act of 1968); (4) Republic Act No. 6235 (Anti-Hijacking Law); (5) Presidential Decree No. 532 (Anti-piracy and Anti-highway Robbery Law of 1974); and, (6) Presidential Decree No. 1866, as amended (Decree Codifying the Laws on Illegal and Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunitions or Explosives) thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand shall be guilty of the crime of terrorism and shall suffer the penalty of forty (40) years of imprisonment, without the benefit of parole as provided for under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended. Who Are Liable SEC. 4.Conspiracy to Commit Terrorism. Persons who conspire to commit the crime of terrorism shall suffer the penalty of forty (40) years of imprisonment. There is conspiracy when two or more persons come to an agreement concerning the commission of the crime of terrorism as defined in Section 3 hereof and decide to commit the same. SEC. 5.Accomplice. Any person who, not being a principal under Article 17 of the Revised Penal Code or a conspirator as defined in Section 4 hereof, cooperates in the execution of either the crime of terrorism or conspiracy to commit terrorism by previous or simultaneous acts shall suffer the

penalty of from seventeen (17) years, four (4) months one day to twenty (20) years of imprisonment. SEC. 6.Accessory. Any person who, having knowledge of the commission of the crime of terrorism or conspiracy to commit terrorism, and without having participated therein, either as principal or accomplice under Articles 17 and 18 of the Revised Penal Code, takes part subsequent to its commission in any of the following manner: (a) by profiting himself or assisting the offender to profit by the effects of the crime; (b) by concealing or destroying the body of the crime, or the effects, or instruments thereof, in order to prevent its discovery; (c) by harboring, concealing, or assisting in the escape of the principal or conspirator of the crime, shall suffer the penalty of ten (10) years and one day to twelve (12) years of imprisonment. Notwithstanding the above paragraph, the penalties prescribed for accessories shall not be imposed upon those who are such with respect to their spouses, ascendants, descendants, legitimate, natural, and adopted brothers and sisters, or relatives by affinity within the same degrees, with the single exception of accessories falling within the provisions of subparagraph (a).

Title II. Crimes against Fundamental Laws of the State


(1) Art. 124: Arbitrary Detention (2) Art. 125: Delay in the Delivery Of Detained Persons to the Proper Judicial Authorities (3) Art. 126: Delaying Release (4) Art. 127: Expulsion (5) Art. 128: Violation of Domicile (6) Art.129: Search Warrants Maliciously Obtained and Abuse in the Service of those Legally Obtained (7) Art. 130: Searching Domicile Without Witnesses (8) Art. 131: Prohibition, Interruption and Dissolution of Peaceful Meetings (9) Art. 132: Interruption of Religious Worship (10) Art. 133: Offending the Religious Feelings Crimes under this title are those that violate certain provisions of the Bill of Rights. All offenses under this title can only be committed by public officers except offending the religious feelings

PAGE 112

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

under Article 133. The primary offender in ARTICLES 124-132 is a public officer acting under supposed exercise of official functions, albeit illegally. A private person may be liable under these articles ONLY WHEN he: (1) Conspires with a public officer; OR (2) He becomes an accomplice or accessory to said crimes ARTICLE 133 can be committed by EITHER a public officer OR a private person. ARTICLE 124 - ARBITRARY DETENTION Elements: (1) That the offender is a public officer or employee (2) That he detains a person (3) That the detention is without a legal ground. The Crime of Arbitrary Detention assumes several forms: (1) Detaining a person without legal grounds (Article 124); (2) Having arrested the offended party for legal grounds but without warrant of arrest, and the public officer does not deliver the arrested person to the proper judicial authority within the period of 12, 18, or 36 hours, as the case may be (Article 125); or (3) Delaying release by competent authority with the same period mentioned in number 2 (Article 126). The detention of a person is without legal ground: (1) when he has not committed any crime or, at least, there is no reasonable ground for suspicion that he has committed a crime, or (2) when he is not suffering from violent insanity or any other ailment requiring compulsory confinement in a hospital. A public officer is deemed such when he is acting within the bounds of his official authority or function. A police officer who employs force in excess of what is necessary is acting outside the bounds of his duties and is considered acting in his private capacity.[Boado, Comprehensive Reviewer in Criminal Law] In the crime of arbitrary detention, although the offender is a public officer, not any public officer can commit this crime. Only those public officers whose official duties carry with it the authority to make an arrest and detain persons can be guilty of this crime.

In a case decided by the Supreme Court a Barangay Chairman who unlawfully detains another was held to be guilty of the crime of arbitrary detention. This is because he is a person in authority vested with jurisdiction to maintain peace and order within his barangay. [Milo v. Salanga (1987)] There must be an actual restraint of liberty of the offended party. The crime committed is only grave or light threats if the offended party may still go to the place where he wants to go, even though there have been warnings. If the offender falsely imputes a crime against a person to be able to arrest him and appear not determined to file a charge against him, the crime is arbitrary detention through unlawful arrest. [Boado, Comprehensive Reviewer in Criminal Law] A case where a DENR team was invited to Mayor Astorgas house from 530pm to 230am for dinner and drinks, does not fall under Arbitrary Detention. Absent any physical restraint, an element of the said crime is fear. No record on evidence showed that the mayor instilled fear into the minds of the DENR team while they were in the Mayors house.[Astorga v. People (2004)] Arrest without warrant is the usual cause of arbitrary detention. Difference between Arbitrary Detention, Illegal Detention and Unlawful Arrest Arbitrary Detention Offender Illegal Detention Unlawful Arrest

Public officer (1) Private Any person who has person; authority to OR make arrests (2) Public and detain officer persons who is acting in a private capacity or beyond the scope of his official duty Violate the offended partys constitutional freedom Deprive the offended party of his personal liberty Accuse the offended party of a crime he did not

Criminal Intent

PAGE 113

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

Arbitrary Detention against warrantless arrest

Illegal Detention

Unlawful Arrest commit, deliver him to the proper authority, and file the necessary charges to incriminate him

Where the invitation comes from a powerful group composed predominantly of ranking military officers and the designated interrogation site is a military camp, the same can be easily taken NOT as a strictly voluntary invitation. It is an authoritative command that one can only defy at ones peril. [Sanchez v. Demetriou (1993)] Detained person should be released when a judge is not available. [Albior vs. Aguis (2003)] Waiver of the provisions of Article 125 Before the complaint or information is filed, the person arrested may ask for a preliminary investigation in accordance with Rule 112 of the Revised Rules of Criminal Procedure, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the investigation must be terminated within fifteen days from its inception. (Section 7,par. 2, Rule 112 of the Revised Rules of Criminal Procedure) ARTICLE 126 - DELAYING RELEASE Elements: (1) Offender is a public officer or employee (2) There is a: (a) Judicial or executive order for the release of a prisoner or detention prisoner, OR (b) A proceeding upon a petition for the liberation of such person (3) Offender without good reason delays (a) The service of the notice of such order to the prisoner (b) The performance of such judicial or executive order for the release of the prisoner; OR (c) The proceedings upon a petition for the release of such person ARTICLE 127 EXPULSION Elements: (1) Offender is a public officer or employee (2) He either (a) Expels any person from the Philippines; OR (b) Compels a person to change residence (c) Offender is not authorized to do so by law. The city mayor of Manila committed the crime of expulsion when he ordered certain prostitutes to be transferred to Davao WITHOUT observing due process since they have not been charged with any crime. [Villavicencio v. Lukban (1919)]

ARTICLE 125 - DELAY IN THE DELIVERY OF DETAINED PERSONS TO THE PROPER JUDICIAL AUTHORITIES Elements: (1) Offender is a public officer or employee (2) He detains a person for some legal ground (3) He fails to deliver such person to the proper judicial authorities within (a) 12 hours for light penalties (b) 18 hours for correctional penalties (c) 36 hours for afflictive or capital penalties This is applicable only when the arrest is without a warrant. But the arrest must be lawful. At the beginning, the detention is legal since it is in the pursuance of a lawful arrest. Detention becomes arbitrary when the: (1) Applicable period lapses (2) Without the arresting officer filing a formal charge with the proper court. The periods stated are counted only when the prosecutors office is ready to receive the complaint or information. Nighttime is not included in the period. Delivery means the filing of correct information with the proper court (or constructive delivery -turning over the person arrested to the jurisdiction of the court). The purpose is to determine whether the offense is bailable or not. (Upon delivery, judge or court acquires jurisdiction to issue an order of release or of commitment of prisoner.) [Sayo v. Chief of Police (1948)] The elements of custodial investigation are: (1) The suspect is deprived of liberty in any significant manner; (2) The interrogation is initiated by law enforcement authorities; (3) The interrogation is inculpatory in character. [People v. Tan (1998)]

PAGE 114

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

The right to return to ones country is not among the rights specifically guaranteed in the Bill of Rights, which treats only of the Liberty of Abode and the right to travel. However, it is a well-settled view that the right to return may be considered as a generally accepted principle of international law and, under the Constitution, forms part of the law of the land. However, it is distinct and separate from the right to travel. The constitutional guarantees invoked by the Marcoses are neither absolute nor inflexible for the exercise of such freedoms has limits and must adjust to the concerns which involve the public interest.[Marcos v. Manglapus (1989)] ARTICLE 128 - VIOLATION OF DOMICILE Acts punished: (1) Entering any dwelling against the will of the owner thereof (2) Searching papers or other effects found therein without the previous consent of such owner, OR (3) Refusing to leave the premises, after having surreptitiously entered said dwelling and after having been required to leave the same Elements COMMON to the three acts: (1) Offender is a public officer or employee (2) He is not authorized by judicial order (a) To enter the dwelling; (b) To make a search therein for papers or other effects; or (c) He refuses to leave, after having surreptitiously entered such dwelling and been required to leave the same Qualifying circumstances: (1) Night time (2) Papers or effects not constituting evidence of a crime are not returned immediately after the search made by the offender. RULE 113 OF THE REVISED RULES OF COURT: a public officer, who breaks into the premises, incurs no liability WHEN a person to be arrested enters said premises and closes it thereafter, provided that the officer first gives a notice of arrest. The public officer should have first given notice of an arrest. According to People vs. Doria (1999) and People vs. Elamparo (2000), the following are the accepted exceptions to the warrant requirement: (1) Search incidental to an arrest;
PAGE 115

(2) (3) (4) (5) (6)

Search of moving vehicles; Evidence in plain view; Stop and frisk; Customs searches; AND Consented warrantless search.

[M]ere suspicion or a hunch will not validate a "stop and frisk." A genuine reason must exist, in light of the police officer's experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him. Finally, a "stop-and-frisk" serves a two-fold interest: (1) The general interest of effective crime prevention and detection, which underlies the recognition that a police officer may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause; and (2) The more pressing interest of safety and selfpreservation which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used against the police officer. [Malacat v. CA (1997)] Against the will means that the offender ignored the prohibition of the owner which may be express or implied as when the door is closed even though not locked. [Boado, Comprehensive Reviewer in Criminal Law] The offender must be a public officer or employee. If the offender is a private individual then the crime is trespass to dwelling under Article 280. ARTICLE 129 - SEARCH WARRANTS MALICIOUSLY OBTAINED, AND ABUSE IN THE SERVICE OF THOSE LEGALLY OBTAINED Elements of procuring a search warrant without just cause: (1) Offender is a public officer or employee (2) He procures a search warrant (3) There is no just cause Elements of exceeding authority or using unnecessary severity in executing a search warrant legally procured: (1) Offender is a public officer or employee (2) He has legally procured a search warrant (3) He exceeds his authority or uses unnecessary severity in executing the same.

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

ARTICLE 130 - SEARCHING DOMICILE WITHOUT WITNESSES Elements: (1) Offender is a public officer or employee (2) He is armed with search warrant legally procured (3) He searches the domicile, papers or other belongings of any person (4) The owner, or any members of his family, or two witnesses residing in the same locality are not present. RULE 116: SEARCH AND SEIZURE A search warrant is an order in writing (1) Signed by a judge (2) Directed to a peace officer, commanding him to search for personal property described therein and bring it before the court Requisites for issuing a search warrant: (1) Probable cause, in connection with one specific offense, to be determined personally by the judge AFTER examination under oath or affirmation of the complainant and the witness he may produce (2) Particular description of: (a) Place to be searched; AND (b) Things to be seized which may be anywhere in the Philippines An officer may break open any outer or inner door or window of a house or any part of a house or anything therein WHEN these circumstances concur: (1) He is refused admittance to the place of directed search; (2) His purpose is to execute the warrant to liberate himself or any person lawfully aiding him when unlawfully detained therein; and (3) He has given notice of his purpose and authority. The warrant must direct that it be served in the daytime. HOWEVER, it can be served at any time of the day or night WHEN the affidavit asserts that the property is on the person or in the place ordered to be searched. A search warrant shall be valid for ten (10) days from its date. Thereafter, it shall be void. The officer seizing the property under the warrant must give a detailed receipt for the same to the lawful occupant of the premises in whose presence the search and seizure were made. In the absence of such occupant, the officer must:

(1) leave a receipt in the place in which he found the seized property; (2) In the presence of at least two witnesses of sufficient age and discretion residing in the same locality. ARTICLE 131 - PROHIBITION, INTERRUPTION AND DISSOLUTION OF PEACEFUL MEETINGS Elements: (1) Offender is a public officer or employee (2) He performs any of the following acts: (a) Prohibiting or interrupting, without legal ground, the holding of a peaceful meeting, or by dissolving the same (b) Hindering any person from joining any lawful association, or from attending any of its meetings (c) Prohibiting or hindering any person from addressing, either alone or together with others, any petition to the authorities for the correction of abuses or redress of grievances The government has a right to require a permit before any gathering can be made. HOWEVER, the government only has regulatory, NOT PROHIBITORY, powers with regard to such requirement. The permit should state the day, time, and place of the gathering. If the permit is denied arbitrarily, OR the officer dictates the place where the meeting is to be held, this article is VIOLATED. If in the course of the assembly, which started out peacefully, the participants committed illegal acts like oral defamation or inciting to sedition, a public officer or law enforcer can stop or dissolve the meeting. Two criteria to determine whether this article would be violated: (1) Dangerous tendency rule applied during times of national unrest such as to prevent coup detat. (2) Clear and present danger rule applied during times of peace. Stricter rule. ARTICLE 132 - INTERRUPTION OF RELIGIOUS WORSHIP Elements: (1) Offender is a public officer or employee (2) Religious ceremonies or manifestations of any religion are about to take place or are going on (3) Offender prevents or disturbs the same

PAGE 116

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

RA 9372 : HUMAN SECURITY ACT Circumstances qualifying the offense: if the crime is committed with violence or threats. ARTICLE 133 - OFFENDING THE RELIGIOUS FEELINGS Elements: (1) Acts complained of were performed in a place devoted to religious worship, OR during the celebration of any religious ceremony (2) The acts must be notoriously offensive to the feelings of the faithful. In the phrase 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 during the celebration is separated by the word or from the phrase place devoted to religious worship, which indicates that the religious ceremony need not be celebrated in a place of worship. [Reyes (2008)] Jurisprudence: A Catholic priest complained against a group that passed by the churchyard as they were holding the funeral rites of a Church of Christ member. An act is NOTORIOUSLY OFFENSIVE to the religious feelings when a person: (1) Ridicules or makes light of anything constituting religious dogma (2) Works or scoffs at anything devoted to religious ceremonies (3) Plays with or damages or destroys any object of veneration of the faithful WON an act is offensive to the religious feelings, is a question of fact which must be adjudged only according to the feelings of the Catholics and not those of other faithful ones. [People v. Baes (1939)] Laurel Dissent: The determination should NOT be made to depend upon a more or less broad or narrow conception of any given religion. Facts and circumstances should be viewed through an unbiased judicial criterion. (Note: This later became the majority decision in People v. Tengson) The crime is only UNJUST VEXATION when the act is NOT directed at the religious belief itself and there is no intention of causing so serious a disturbance as to interrupt a religious ceremony. [People v. Nanoy]
PERIOD OF DETENTION

SEC. 18. Period of Detention Without Judicial Warrant of Arrest. The provisions of Article 125 of the Revised Penal Code to the contrary notwithstanding, any police or law enforcement personnel, who, having been duly authorized in writing by the Anti-Terrorism Council has taken custody of a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism shall, without incurring any criminal liability for delay in the delivery of detained persons to the proper judicial authorities, deliver said charged or suspected person to the proper judicial authority within a period of three (3) days counted from the moment the said charged or suspected person has been apprehended or arrested, detained, and taken into custody by the said police, or law enforcement personnel: Provided, That the arrest of those suspected of the crime of terrorism or conspiracy to commit terrorism must result from the surveillance under Section 7 and examination of bank deposits under Section 27 of this Act. The police or law enforcement personnel concerned shall, before detaining the person suspected of the crime of terrorism, present him or her before any judge at the latters residence or office nearest the place where the arrest took place at any time of the day or night. It shall be the duty of the judge, among other things, to ascertain the identity of the police or law enforcement personnel and the person or persons they have arrested and presented before him or her, to inquire of them the reasons why they have arrested the person and determine by questioning and personal observation whether or not the suspect has been subjected to any physical, moral or psychological torture by whom and why. The judge shall then submit a written report of what he/she had observed when the subject was brought before him to the proper court that has jurisdiction over the case of the person thus arrested. the judge shall forthwith submit his/her report within three (3) calendar days from the time the suspect was brought to his/her residence or office. Immediately after taking custody of a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism, the police or law enforcement personnel shall notify in writing the judge of the court nearest the place of apprehension or arrest: Provided, That where the arrest is made during Saturdays, Sundays, holidays or after office hours, the written notice shall be served at the residence of the judge nearest the place where the accused was arrested.

PAGE 117

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

The penalty of ten (10) years and one day to twelve (12) years of imprisonment shall be imposed upon the police or law enforcement personnel who fails to notify any judge as provided in the preceding paragraph. SEC. 19.Period of Detention in the Event of an Actual or Imminent Terrorist Attack. In the event of an actual or imminent terrorist attack, suspects may not be detained for more than three (3) days without the written approval of a municipal, city, provincial or regional official of a Human Rights Commission or judge of the municipal, regional trial court, the Sandiganbayan or a justice of the Court of Appeals nearest the place of the arrest. If the arrest is made during Saturdays, Sundays, holidays or after office hours, the arresting police or law enforcement personnel shall bring the person thus arrested to the residence of any of the officials mentioned above that is nearest the place where the accused was arrested. The approval in writing of any of the said officials shall be secured by the police or law enforcement personnel concerned within five (5) days after the date of the detention of the persons concerned: Provided, however, That within three (3) days after the detention the suspects, whose connection with the terror attack or threat is not established, shall be released immediately. RA 9745: ANTI-TORTURE ACT
PUNISHABLE ACTS

(5) The submersion of the head in water or water polluted with excrement, urine, vomit and/or blood until the brink of suffocation; (6) Being tied or forced to assume fixed and stressful bodily position; (7) Rape and sexual abuse, including the insertion of foreign objects into the sex organ or rectum, or electrical torture of the genitals; (8) Mutilation or amputation of the essential parts of the body such as the genitalia, ear, tongue, etc.; (9) Dental torture or the forced extraction of the teeth; (10) Pulling out of fingernails; (11) Harmful exposure to the elements such as sunlight and extreme cold; (12) The use of plastic bag and other materials placed over the head to the point of asphyxiation; (i) The administration or drugs to induce confession and/or reduce mental competency; or (ii) The use of drugs to induce extreme pain or certain symptoms of a disease; and (14) Other analogous acts of physical torture; and (b) "Mental/Psychological Torture" refers to acts committed by a person in authority or agent of a person in authority which are calculated to affect or confuse the mind and/or undermine a person's dignity and morale, such as: (1) Blindfolding; (2) Threatening a person(s) or his/her relative(s) with bodily harm, execution or other wrongful acts; (3) Confinement in solitary cells or secret detention places; (4) Prolonged interrogation; (5) Preparing a prisoner for a "show trial", public display or public humiliation of a detainee or prisoner; (6) Causing unscheduled transfer of a person deprived of liberty from one place to another, creating the belief that he/she shall be summarily executed;

Section 4. Acts of Torture. - For purposes of this Act, torture shall include, but not be limited to, the following: (a) Physical torture is a form of treatment or punishment inflicted by a person in authority or agent of a person in authority upon another in his/her custody that causes severe pain, exhaustion, disability or dysfunction of one or more parts of the body, such as: (1) Systematic beating, headbanging, punching, kicking, striking with truncheon or rifle butt or other similar objects, and jumping on the stomach; (2) Food deprivation or forcible feeding with spoiled food, animal or human excreta and other stuff or substances not normally eaten; (3) Electric shock; (4) Cigarette burning; burning by electrically heated rods, hot oil, acid; by the rubbing of pepper or other chemical substances on mucous membranes, or acids or spices directly on the wound(s);

PAGE 118

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

(7) Maltreating a member/s of a person's family; (8) Causing the torture sessions to be witnessed by the person's family, relatives or any third party; (9) Denial of sleep/rest; (10) Shame infliction such as stripping the person naked, parading him/her in public places, shaving the victim's head or putting marks on his/her body against his/her will; (11) Deliberately prohibiting the victim to communicate with any member of his/her family; and (12) Other analogous acts of mental/psychological torture. Section 5. Other Cruel, Inhuman and Degrading Treatment or Punishment. - Other cruel, inhuman or degrading treatment or punishment refers to a deliberate and aggravated treatment or punishment not enumerated under Section 4 of this Act, inflicted by a person in authority or agent of a person in authority against another person in custody, which attains a level of severity sufficient to cause suffering, gross humiliation or debasement to the latter. The assessment of the level of severity shall depend on all the circumstances of the case, including the duration of the treatment or punishment, its physical and mental effects and, in some cases, the sex, religion, age and state of health of the victim. Section 6. Freedom from Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, An Absolute Bight. - Torture and other cruel, inhuman and degrading treatment or punishment as criminal acts shall apply to all circumstances. A state of war or a threat of war, internal political instability, or any other public emergency, or a document or any determination comprising an "order of battle" shall not and can never be invoked as a justification for torture and other cruel, inhuman and degrading treatment or punishment. Section 7. Prohibited Detention. - Secret detention places, solitary confinement, incommunicado or other similar forms of detention, where torture may be carried out with impunity. Are hereby prohibited. In which case, the Philippine National Police (PNP), the Armed Forces of the Philippines (AFP) and other law enforcement. agencies concerned shall make an updated list of all detention centers and facilities under their respective jurisdictions with the

corresponding data on the prisoners or detainees incarcerated or detained therein such as, among others, names, date of arrest and incarceration, and the crime or offense committed. This list shall be made available to the public at all times, with a copy of the complete list available at the respective national headquarters of the PNP and AFP. A copy of the complete list shall likewise be submitted by the PNP, AFP and all other law enforcement agencies to the Commission on Human Rights (CHR), such list to be periodically updated, by the same agencies, within the first five (5) days of every month at the minimum. Every regional office of the PNP, AFP and other law enforcement agencies shall also maintain a similar list far all detainees and detention facilities within their respective areas, and shall make the same available to the public at all times at their respective regional headquarters, and submit a copy. updated in the same manner provided above, to the respective regional offices of the CHR.
WHO ARE LIABLE

Section 13. Who are Criminally Liable. - Any person who actually participated Or induced another in the commission of torture or other cruel, inhuman and degrading treatment or punishment or who cooperated in the execution of the act of torture or other cruel, inhuman and degrading treatment or punishment by previous or simultaneous acts shall be liable as principal 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 shall be held equally liable as principals. The immediate commanding officer of the unit concerned of the AFP or the immediate senior public official of the PNP and other law enforcement agencies shall be held liable as a principal to the crime of torture or other cruel or inhuman and degrading treatment or punishment for any act or omission, or negligence committed by him/her that shall have led, assisted, abetted or allowed, whether directly or indirectly, the commission thereof by his/her subordinates. If he/she has knowledge of or, owing to the circumstances at the time, should have known that acts of torture or other cruel, inhuman and degrading treatment or punishment shall be committed, is being committed, or has been committed by his/her subordinates or by others within his/her area of responsibility and, despite such knowledge, did not take preventive or corrective action either before, during or immediately after its commission, when he/she has the authority to prevent or investigate allegations of torture or other

PAGE 119

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

cruel, inhuman and degrading treatment or punishment but failed to prevent or investigate allegations of such act, whether deliberately or due to negligence shall also be liable as principals. Any public officer or employee shall be liable as an accessory if he/she has knowledge that torture or other cruel, inhuman and degrading treatment or punishment is being committed and without having participated therein, either as principal or accomplice, takes part subsequent to its commission in any of the following manner: (a) By themselves profiting from or assisting the offender to profit from the effects of the act of torture or other cruel, inhuman and degrading treatment or punishment; (b) By concealing the act of torture or other cruel, inhuman and degrading treatment or punishment and/or destroying the effects or instruments thereof in order to prevent its discovery; or(c) By harboring, concealing or assisting m the escape of the principal/s in the act of torture or other cruel, inhuman and degrading treatment or punishment: Provided, That the accessory acts are done with the abuse of the official's public functions.

(18) Article 150 - Disobedience to Summons Issued by Congress, Its Committees or Subcommittees, by the Constitutional Commissions, Its Committees, Subcommittees or Divisions (19) Article 153 - Tumults and Other Disturbances of Public Order (20) Article 151 - Resistance and Disobedience to a Person in Authority or the Agents of Such Persons (21) Article 154 - Unlawful Use of Means of Publication and Unlawful Utterances (22) Article 156 - Delivering Persons from Jail (23) Article 155 - Alarms and Scandals (24) Article 157 - Evasion of Service of Sentence (25) Article 159 - Other Cases of Evasion of Service of Sentence (26) Article 158 - Evasion of Service of Sentence on the Occasion of Disorders, Conflagrations, Earthquakes, or Other Calamities (27) Article 160 - Quasi Recidivism CHAPTER I - REBELLION, SEDITION AND DISLOYALTY COUP DETAT,

ARTICLE 134 - REBELLION /INSURRECTION

Title III. Crimes against Public Order


(1) Article 134 - Rebellion/Insurrection (2) Article 134-A - Coup d tat (3) Article 135 - Penalty for Rebellion, Insurrection or Coup d tat (4) Article 136 - Conspiracy and Proposal to Commit Coup d tat, Rebellion or Insurrection (5) Article 137 - Disloyalty of Public Officers or Employees (6) Article 138 - Inciting to Rebellion or Insurrection (7) Article139 Sedition (8) Article141 - Conspiracy to Commit Sedition (9) Article142 Inciting to Sedition (10) Article140 - Persons Liable for Sedition (11) Article 143 - Acts Tending to Prevent the Meeting of the Congress of the Philippines and Similar Bodies (12) Article 144 - Disturbance of Proceedings (13) Article 145 - Violation of Parliamentary Immunity (14) Article 146 - Illegal Assemblies (15) Article 147 - Illegal Associations (16) Article 148 - Direct Assault (17) Article 149 - Indirect Assault

Elements: (1) There is a public uprising and taking arms against the government; (2) The purpose of the uprising or movement is: (a) To remove from the allegiance to the government or its laws the Philippine territory or any part thereof, or any body of land, naval, or other armed forces; or (b) To deprive the Chief Executive or Congress, wholly or partially, of any of their powers or prerogatives Rule on Complexing of Rebellion: Rebellion cannot be complexed with, but absorbs other crimes committed in furtherance of rebellion. There is no complex crime of rebellion with murder and other common crimes. Jurisprudence: The doctrine laid down in People v. Hernandez remains good law. This prohibits the complexing of rebellion with any other offense committed in the occasion thereof, either as a means to its commission or as an unintended effect of an activity that constitutes rebellion. [Enrile v Salazar (1990)] All crimes, whether punishable under special or general law, which are mere components or ingredients, or committed in furtherance thereof, become absorbed in the crime of rebellion and

PAGE 120

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

cannot be isolated and charged as separate crimes themselves.[Ponce Enrile v Amin (1990)] Both motive and overt acts are essential components of the crime of rebellion. If the political motive of a supposedly rebellious act cannot be sufficiently proven, the accused should be convicted of the common crime (e.g. murder) and not of rebellion. Rebellion is not covered by Art. 2 on extraterritorial jurisdiction. [People v. Lovedioro (1995)] Rebellion vs. Insurrection Rebellion Insurrection Object is to completely A movement seeking to overthrow and supplant effect some change of the existing government minor importance or to prevent the exercise of governmental authority with respect to particular matters or subjects Rebellion vs. Treason Rebellion The levying of war against the government during peace time for any purpose mentioned in Art. 134 Treason The levying of war against the government would constitute treason when performed to aid the enemy; it would also constitute adherence to the enemy, giving him aid and comfort

Rebellion vs. Sedition Rebellion Sedition There must be taking up It is sufficient that the of arms against the public uprising be government. tumultuous. The purpose is always The purpose may political. political or social. be

NOTE : When any of the objectives of rebellion is pursued but there is no public uprising in the legal sense, the crime is direct assault of the first form.
ARTICLE 134-A - COUP D TAT

Elements: (1) Offender is a person or persons belonging to the military or police or holding any public office or employment; (2) It is committed by means of a swift attack accompanied by violence, intimidation, threat, strategy or stealth; (3) The attack is directed against the duly constituted authorities of the Republic of the Philippines, or any military camp or installation, communication networks, public utilities or other facilities needed for the exercise and continued possession of power; (4) The purpose of the attack is to seize or diminish state power. Persons who may commit coup detat: (1) It may be committed singly or collectively (2) Requires as a principal offender a member of the AFP, PNP, or a public officer with or without civilian support The crime of coup detat may be committed with or without civilian participation. Coup detat, when considered as Terrorism A person who commits an act punishable as coup detat under Article 134-A of the Revised Penal Code, including acts committed by private persons, thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand shall be guilty of the crime of terrorism.
ARTICLE 135 - PENALTY FOR REBELLION, INSURRECTION OR COUP D TAT

Always involves taking up Mere adherence to the arms against the enemy giving him aid and government. comfort NOTE: No crime of misprision of rebellion. Rebellion vs. Subversion Rebellion Crime order against Subversion public Crime against national security

There must be public Being officers and ranking uprising to overthrow the members of subversive government groups constitute subversion NOTE: There is no longer a crime of subversion by virtue of RA 7636, which repealed RA 1700.

Persons liable for rebellion, insurrection or coup d'etat (1) The leaders: (a) Any person who promotes, maintains or heads a rebellion or insurrection; or (b) Any person who leads, directs or commands
PAGE 121

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

Conspiracy when two or more persons come to an agreement to rise publicly and take arms against government for any of the purposes of rebellion and decide to commit it

Proposal when the person who has decided to rise publicly and take arms against the government for any of the purposes of rebellion proposes its execution to some other person or persons

Mode 2: Proposal to commit coup dtat, rebellion or insurrection Elements: (1) A person has decided to swiftly attack or to rise publicly and take arms against the Government for any of the purposes of rebellion or insurrection; (2) Such person proposes its execution to some other person or persons
ARTICLE 137 EMPLOYEES

others to undertake a coup d'etat; (2) The participants: (a) Any person who participates or executes the commands of others in rebellion or insurrection; (b) Any person in the government service who participates or executes directions or commands of others in undertaking a coup detat; (c) Any person not in the government service who participates, supports, finances, abets or aids in undertaking a coup d'etat. (d) If under the command of unknown leaders, any person who directed the others, spoke for them, signed receipts and other documents issued in their name on behalf of the rebels shall be deemed a leader. It is not a defense in rebellion that the accused never took the oath of allegiance to, or that they never recognized the Government. [US vs. del Rosario] Mere silence or omission is not punishable in rebellion. [US vs. Ravidas] There is no complex crime of rebellion with murder and other common crimes. Acts committed in furtherance of rebellion though crimes in themselves are deemed absorbed in one single crime of rebellion. [ Enrile vs. Amin (1990)]
ARTICLE 136 - CONSPIRACY AND PROPOSAL TO COMMIT COUP D TAT, REBELLION OR INSURRECTION

- DISLOYALTY OF PUBLIC OFFICERS OR

Elements: (1) Offender is a public officer or employee; (2) Offender commits any of the following acts: (a) Failing to resist a rebellion by all the means in their power; (b) Continuing to discharge the duties of their offices under the control of the rebels (c) Accepting appointment to office under them. The crime presupposes rebellion committed by other persons. Offender must not be in conspiracy with the rebels. Effect of conspiracy: Public officer is himself guilty of rebellion.
ARTICLE 138 - INCITING TO REBELLION OR INSURRECTION

Elements: (1) Offender does not take arms or is not in open hostility against the government; (2) He incites others to the execution of any of the acts of rebellion; (3) The inciting is done by means of speeches, proclamations, writings, emblems, banners or other representations tending to the same end. NOTE: There is no crime of inciting to treason. Inciting to Rebellion vs. Proposal to Commit Rebellion Proposal to Commit Inciting to Rebellion Rebellion The offender induces another to commit rebellion. Rebellion should not be actually committed by the persons to whom it is proposed or who are incited. Otherwise, they become principals by inducement in the crime of rebellion. The person who proposes There is no need that the has decided to commit offender has decided to rebellion. commit rebellion.

Mode 1: Conspiracy to commit coup dtat, rebellion or insurrection Elements: (1) Two or more persons come to an agreement to swiftly attack or to rise publicly and take arms against the Government for any of the purposes of rebellion or insurrection; (2) They decide to commit it.

PAGE 122

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

Proposal to Commit Rebellion

Inciting to Rebellion

Sedition vs. Coup detat Sedition There is no distinction as to who may commit; a private individual may commit the offense Coup detat Offender belongs to the military or police or holding any public office or employment

The person who proposes The act of inciting is done the execution of the crime publicly. uses secret means.
ARTICLE 139 - SEDITION

Elements: (1) Offenders rise publicly and tumultuously; (2) Offenders employ force, intimidation, or other means outside of legal methods; (3) Purpose is to attain any of the following objects: (a) To prevent the promulgation or execution of any law or the holding of any popular election; (b) To prevent the national government or any provincial or municipal government or any public officer from exercising its or his functions, or prevent the execution of an administrative order; (c) To inflict any act of hate or revenge upon the person or property of any public officer or employee; (d) To commit, for any political or social end, any act of hate or revenge against private persons or any social classes; (e) To despoil for any political or social end, any person, municipality or province, or the national government of all its property or any part thereof. Tumultuous: If caused by more than three persons who are armed or provided with the means of violence. (Art. 163) The purpose of this crime is not the overthrowing of the government but the violation of public peace. Under R.A. 8294, sedition absorbs the use of unlicensed firearm as an element thereof; hence, it is not an aggravating circumstance, and the offender can no longer be prosecuted for illegal possession of firearm. (Boado, Comprehensive Reviewer in Criminal Law). Sedition vs. Rebellion Sedition Rebellion There must be a public uprising. It is sufficient that the There must be taking up public uprising is of arms against the tumultuous. government. The purpose of the The purpose offenders may be political offenders is or social political. of the always

Primary purpose is to To seize or to diminish disturb public peace state power Sedition vs. Treason Sedition Treason It is the raising of It is the violation by a commotions or subject of his allegiance disturbances in the State. to his sovereign. A friction between the Philippine constabulary and the Manila police escalated and resulted in the deaths of 6 policemen and 2 civilians and in the serious injuries of 3 civilians. The Court held that unlike the crime of rebellion, common crimes committed in the occasion of sedition are to be appreciated as separate crimes.[People v Cabrera (1922)]
ARTICLE 140 - PERSONS LIABLE FOR SEDITION

(1) The leader of the sedition; (2) Other person participating in the sedition
ARTICLE 141 - CONSPIRACY TO COMMIT SEDITION

Elements: (1) Two or more persons come to an agreement and a decision to rise publicly and tumultuously to attain any of the objects of sedition; (2) They decide to commit it. NOTE: There is no proposal to commit sedition.
ARTICLE 142 INCITING TO SEDITION

Mode 1. Inciting others to the accomplishment of any of the acts which constitute sedition by means of speeches, proclamations, writings, emblems, etc. Elements: (1) Offender does not take direct part in the crime of sedition; (2) He incites others to the accomplishment of any of the acts which constitute sedition by means of speeches, proclamations, writings, emblems, cartoons, banners, or other representations tending towards the same end.

PAGE 123

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

Mode 2. Mode 3.

Uttering seditious words or speeches which tend to disturb the public peace; Writing, publishing, or circulating scurrilous libels against the government or any of the duly constituted authorities thereof, which tend to disturb the public peace.

CHAPTER II - CRIMES AGAINST POPULAR REPRESENTATION


ARTICLE 143 - ACTS TENDING TO PREVENT THE MEETING OF THE CONGRESS OF THE PHILIPPINES AND SIMILAR BODIES

Elements: (1) Offender does not take part in the crime of sedition. (2) He uttered words or speeches and writing, publishing or circulating scurrilous libels and that (a) Tend to disturb or obstruct any lawful officer in conducting the functions of his office; (b) Tend to instigate others to cabal and meet together for unlawful purposes; (c) Suggest or incite rebellious conspiracies or riots; OR (d) Lead or tend to stir up the people against the lawful authorities or to disturb the peace of the community, the safety and order of the government. Considering that the objective of sedition is to express protest against the government and in the process creating hate against public officers, any act that will generate hatred against the government or a public officer concerned or a social class may amount to Inciting to Sedition. Article 142 is, therefore, quite broad. Constitutional Tests relative to seditious words: Clear and Present Danger Rule: The words must be of such nature that by uttering them there is a danger of a public uprising and that such danger should be both clear and imminent. The danger must not only be probable but very likely inevitable. Dangerous Tendency Rule: If the words used tend to create a danger of public uprising, then those words could properly be the subject of a penal clause The manifest, unmistakable tendency of the dramatic play, in view of the time, place, and manner of its presentation, was to inculcate a spirit of hatred and enmity against the American people and the Government of the US in the Philippines.[US v Tolentino (1906)]

Elements: (1) There is a projected or actual meeting of Congress or any of its committees or subcommittees, constitutional committees or divisions thereof, or of any provincial board or city or municipal council or board; (2) Offender, who may be any person, prevents such meetings by force or fraud.
ARTICLE 144 - DISTURBANCE OF PROCEEDINGS

Elements: (1) There is a meeting of Congress or any of its committees or subcommittees, constitutional commissions or committees or divisions thereof, or of any provincial board or city or municipal council or board; (2) Offender does any of the following acts: (a) He disturbs any of such meetings; (b) He behaves while in the presence of any such bodies in such a manner as to interrupt its proceedings or to impair the respect due it. Complaint may be filed by a member of the legislative body. One who disturbs may also be punished for contempt by Congress.
ARTICLE 145 - VIOLATION OF PARLIAMENTARY IMMUNITY

Mode 1: Using force, intimidation, threats, or frauds to prevent any member of Congress from attending the meetings of Congress or of any of its committees or subcommittees, constitutional commissions or committees or divisions thereof, or from expressing his opinion or casting his vote; Elements: (1) Offender uses force, intimidation, threats or fraud; (2) The purpose of the offender is to prevent any member of Congress from: (a) Attending the meetings of the Congress or of any of its committees or constitutional commissions; (b) Expressing his opinion; OR (c) Casting his vote. Note: Offender in mode 1 is any person Mode 2: Arresting or searching any member thereof while Congress is in regular or special session,

PAGE 124

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

except in case such member has committed a crime punishable under the Code by a penalty higher than prision mayor. Elements: (1) Offender is a public officer of employee; (2) He arrests or searches any member of Congress; (3) Congress, at the time of arrest or search, is in regular or special session; (4) The member arrested or searched has not committed a crime punishable under the Code by a penalty higher than prision mayor. Parliamentary immunity does not protect members of Congress from responsibility in accordance with the disciplinary rules of Congress itself. 1987 Constitution: Members of Congress cannot be arrested for offenses punishable by a penalty less than prision mayor (6 yrs and 1 day to 12 yrs), while Congress is in session. They can be prosecuted after Congress adjourns. CHAPTER III ILLEGAL ASSEMBLIES AND ASSOCIATIONS
ARTICLE 146 - ILLEGAL ASSEMBLIES

(2) Persons merely present at the meeting, who must have a common intent to commit the felony of illegal assembly. In the first form of illegal assembly, the persons present at the meeting must be armed. But the law does not require that all the persons present must be armed. The unarmed persons present at the meeting are also liable. Presumptions if a person carried an unlicensed firearm: (1) The purpose of the meeting insofar as he is concerned is to commit acts punishable under the RPC (2) He is considered a leader or organizer of the meeting. NOTE: Not all persons present at the meeting of the first form of illegal assembly must be armed.
ARTICLE 147 - ILLEGAL ASSOCIATIONS

(1) Associations totally or partially organized for the purpose of committing any of the crimes punishable under the Code; (2) Associations totally or partially organized for some purpose contrary to public morals. Persons liable for illegal associations: (1) Founders, directors and president of the association; (2) Mere members of the association. Public Morals: matters which affect the interest of society and public convenience, not limited to good customs Illegal Assemblies vs. Illegal Associations Illegal Assembly Illegal Association not There must be an actual Actual meeting meeting or assembly necessary

Mode 1: Any meeting attended by armed persons for the purpose of committing any of the crimes punishable under the Code; Elements: (1) There is a meeting, a gathering or group of persons, whether in a fixed place or moving; (2) The meeting is attended by armed persons; (3) The purpose of the meeting is to commit any of the crimes punishable under the Code. Mode 2: Any meeting in which the audience, whether armed or not, is incited to the commission of the crime of treason, rebellion or insurrection, sedition, or assault upon person in authority or his agents. Elements: (1) There is a meeting, a gathering or group of persons, whether in a fixed place or moving; (2) The audience, whether armed or not, is incited to the commission of the crime of treason, rebellion or insurrection, sedition or direct assault. Persons liable for illegal assembly: (1) The organizer or leaders of the meeting;

What is punished are the What is punished is the meeting and the act of forming or attendance therein organizing the association Persons liable: Persons liable: (1) Organizers or leaders (1) Founders, directors, of the meeting president (2) Persons present (2) The members See also: BP 880 - Public Assembly Act of 1985

PAGE 125

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

CHAPTER IV - ASSAULT UPON AND RESISTANCE AND DISOBEDIENCE TO, PERSONS IN AUTHORITY AND THEIR AGENTS
ARTICLE 148 - DIRECT ASSAULT

corporation, board, or commission, shall be deemed a person in authority. Directly vested with jurisdiction means the power or authority to govern and execute the laws. Teachers, professors and persons in charged with the supervision of public or duly recognized private schools, colleges and universities shall be deemed persons in authority, in applying the provisions of Articles 148 and 151. For other purposes, such as to increase the penalty by reason of the aggravating circumstances where a person in authority is involved, the teachers and professors are not persons in authority. When the assault results in the killing of that agent or of a person in authority, the offense committed is complex crime of direct assault with murder or homicide. The only time when it is not complexed is when material consequence is a light felony, that is, slight physical injury. Direct assault absorbs the lighter felony. The force employed need not be serious when the offended party is a person in authority; Intimidation or resistance must be serious whether the offended party is a person in authority OR an agent of a person in authority If the public officer is not a person in authority, the assault on him is an aggravating circumstance in Art. 14, no. 3 (rank). (Boado, Comprehensive Reviewer in Criminal Law). There must be however an intent to disregard the victims rank. Gabutero was acting in the performance of his duties [as he was trying to pacify Dollantes who was causing trouble] as barangay captain when he was stabbed to death. Thus, the crime committed was murder with assault upon a person in authority.[People v. Dollantes (1987)]
ARTICLE 152 - PERSONS IN AUTHORITY AND AGENTS OF PERSONS IN AUTHORITY

Mode 1.

Without public uprising, by employing force or intimidation for the attainment of any of the purposes enumerated in defining the crimes of rebellion and sedition;

Elements: (1) Offender employs force or intimidation; (2) The aim of the offender is to attain any of the purposes of the crime of rebellion or any of the objects of the crime of sedition; (3) There is no public uprising. Mode 2. Without public uprising, by attacking, by employing force or by seriously intimidating or by seriously resisting any person in authority or any of his agents, while engaged in the performance of official duties, or on occasion of such performance.

Elements: (1) Offender makes an attack, employs force, makes a serious intimidation, or makes a serious resistance; (2) The person assaulted is a person in authority or his agent; (3) At the time of the assault, the person in authority or his agent is engaged in the actual performance of official duties, OR that he is assaulted by reason of the past performance of official duties; (4) Offender knows that the one he is assaulting is a person in authority or his agent in the exercise of his duties. (5) There is no public uprising. The first form of direct assault is tantamount to rebellion or sedition, except that there is no public uprising. Classifications of direct assault: simple and qualified. Assault is qualified when: (1) There is a weapon employed in the attack (2) The offender is a public officer (3) The offender lays hands on a public authority Person in authority means any person directly vested with jurisdiction, whether as an individual or as a member of some court or governmental

Public Officer (Art. Persons in 207) Authority (Art. 152) Any person who takes part in the performance of public functions in the government. Any person directly vested with jurisdiction, whether as an individual or as a

Agents of a Person in Authority (Art. 152) Any person who, by direct provision of law or by election or by appointment by competent

PAGE 126

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

Public Officer (Art. Persons in 207) Authority (Art. 152) member of some court or governmental corporation, board or commission.

Agents of a Person in Authority (Art. 152) authority, charged with maintenance public order the protection security of life property. is the of and and and

witnesses; Mode 2. By refusing to be sworn or placed under affirmation while being before such legislative or constitutional body or official; By refusing to answer any legal inquiry or to produce any books, papers, documents, or records in his possession, when required by them to do so in the exercise of their functions; By restraining another from attending as a witness in such legislative or constitutional body; By inducing disobedience to a summons or refusal to be sworn by any such body or official.

Mode 3.

Teachers, lawyers and heads of schools recognized by government are persons in authority only for purposes of Art. 152 in relation to Arts. 148 and 151, and in connection with their duties. A person in authority includes a barangay chairman and members of the Lupong Tagapagkasundo as provided under the Local Government Code. [Boado] The status as a person in authority being a matter of law, ignorance thereof is no excuse.
ARTICLE 149 - INDIRECT ASSAULT

Mode 4.

Mode 5.

The testimony of a person summoned must be upon matters into which the legislature has jurisdiction to inquire.
ARTICLE 151 - RESISTANCE AND DISOBEDIENCE TO A PERSON IN AUTHORITY OR THE AGENTS OF SUCH PERSONS

Elements: (1) A person in authority or his agent is the victim of any of the forms of direct assault defined in Article 148; (2) A person comes to the aid of such authority or his agent; (3) Offender makes use of force or intimidation upon such person coming to the aid of the authority or his agent. Indirect assault can only be committed when a direct assault is also committed. Article 152 clothes any person who comes to the aid of a person in authority with the fiction of an agent of a person in authority. Any assault on him on the occasion of his aiding a person in authority or his agent is indirect assault.
ARTICLE 150 - DISOBEDIENCE TO SUMMONS ISSUED BY CONGRESS, ITS COMMITTEES OR SUBCOMMITTEES, BY THE CONSTITUTIONAL COMMISSIONS, ITS COMMITTEES, SUBCOMMITTEES OR DIVISIONS

Mode 1:

Resistance and serious disobedience

Elements: (1) A person in authority or his agent is engaged in the performance of official duty or gives a lawful order to the offender; (2) Offender resists or seriously disobeys such person in authority or his agent; (3) The act of the offender is not included in the provision of Articles 148, 149 and 150. Mode 2: Simple disobedience

Elements: (1) An agent of a person in authority is engaged in the performance of official duty or gives a lawful order to the offender; (2) Offender disobeys such agent of a person in authority; (3) Such disobedience is not of a serious nature Resistance and Serious Disobedience The accused must have knowledge that the person giving the order is a peace officer. [US vs. Bautista] The disobedience contemplated consists in the failure or refusal to obey a direct order from the authority or his agent.

Mode 1.

By refusing, without legal excuse, to obey summons of Congress, its special or standing committees and subcommittees, the Constitutional Commissions and its committees, subcommittees or divisions, or by any commission or committee chairman or member authorized to summon

PAGE 127

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

Simple Disobedience In simple disobedience, the offended party must be only an agent of a person in authority. The order must be lawful. The disobedience should not be of a serious nature. Serious Disobedience vs. Direct Assault Serious Disobedience Direct Assault Person in authority or his The person in authority or agent must be in actual his agent must be performance of his duties engaged in the performance of official duties or that he is assaulted Committed only by Committed in four ways resisting or seriously (see Art. 148, Mode 2 disobeying a person in above) authority or his agent Use of force in resistance There is force employed is not so serious, as there is no serious

If done unconsciously or without intent to incite the listeners to rise to sedition or rebellion, this article applies. If done with intent to commit rebellion or sedition: The crime is inciting to rebellion or sedition. Definition of tumultuous: If caused by more than 3 persons who are armed or provided with the means of violence Definition of burying with pomp the body of a person: ostentatious display of a burial
ARTICLE 154 - UNLAWFUL USE OF PUBLICATION AND UNLAWFUL UTTERANCES MEANS OF

Mode 1.

Publishing or causing to be published, by means of printing, lithography or any other means of publication, as news any false news which may endanger the public order, or cause damage to the interest or credit of the State. Encouraging disobedience to the law or to the constituted authorities or praising, justifying or extolling any act punished by law, by the same means or by words, utterances or speeches; Maliciously publishing or causing to be published any official document or resolution without proper authority, or before they have been published officially Printing, publishing or distributing (or causing the same) books, pamphlets, periodicals, or leaflets which do not bear the real printers name, or which are classified as anonymous.

CHAPTER V - PUBLIC DISORDERS


ARTICLE 153 - TUMULTS AND OTHER DISTURBANCES OF PUBLIC ORDER

Mode 2.

Mode 1: Mode 2:

Causing any serious disturbance in a public place, office or establishment; Interrupting or disturbing performances, functions or gatherings, or peaceful meetings, if the act is not included in Arts. 131 and 132; Making any outcry tending to incite rebellion or sedition in any meeting, association or public place; Displaying placards or emblems which provoke a disturbance of public order in such place; Burying with pomp the body of a person who has been legally executed.

Mode 3:

Mode 4:

Mode 3:

Mode 4:

To be liable, the offender must know that the news is false. Actual public disorder or actual damage to the credit of the State is not necessary. The mere possibility of causing such danger or damage is sufficient.
ARTICLE 155 - ALARMS AND SCANDALS

Mode 5:

Serious disturbance must be planned or intended. This article applies if the disturbance is not caused by a public officer; or, if it is committed by a public officer, he is a participant therein. Definition of outcry: to shout subversive or provocative words tending to stir up the people to obtain by means of force or violence any of the objects of rebellion or sedition.
PAGE 128

Mode 1:

Discharging any firearm, rocket, firecracker, or other explosive within any town or public place, calculated to cause (which produces) alarm or danger; Instigating or taking an active part in any charivari or other disorderly meeting

Mode 2:

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

offensive to another or prejudicial to public tranquility; Mode 3: Disturbing the public peace while wandering about at night or while engaged in any other nocturnal amusements; Causing any disturbances or scandal in public places while intoxicated or otherwise, provided Art. 153 is not applicable.

criminally liable for leaving the penal institution only when there is evasion of the service of his sentence, which can only be committed only by a convict by final judgment. Offender is usually an outsider. The violation of Article 156 is committed by a public officer when he is not the custodian of the prisoner at the time the prisoner was made to escape. If the offender is a public officer who had the prisoner in his custody or charge, he is liable for infidelity in the custody of a prisoner under Article 223. If three persons are involved a stranger, the custodian and the prisoner three crimes are committed: (1) Infidelity in the custody of prisoners [public officer-custodian]; (2) Delivery of the prisoner from jail [stranger]; and (3) Evasion of service of sentence [prisoner]. Cledera, as the governor, is the jailer of the Province. Esmeralda is the Assistant Provincial Warden. As public officials who have the custody or charge of the prisoner, they cannot be prosecuted under Art. 156. Art 223 would have applied; however, there is no sufficient evidence to warrant their prosecution for infidelity in the custody of prisoner. It is necessary that the public officer had consented to, or connived in, the escape of the prisoner under his custody or charge. [Alberto v. Dela Cruz (1980)] CHAPTER VI - EVASION OF SERVICE OF SENTENCE
ARTICLE 157 - EVASION OF SERVICE OF SENTENCE

Mode 4:

The crime alarms and scandal is only one crime. Scandal here does not refer to moral scandal; that one is grave scandal in Article 200. The essence of the crime is disturbance of public tranquility and public peace. Disturbance of serious nature falls under Article 153, not under paragraph 4 of this article. Any kind of disturbance of public order where the circumstance at the time renders the act offensive to the tranquility prevailing, the crime is committed. Definition of charivari: includes a medley of discordant voices, a mock serenade of discordant noises made on kettles, tin, horns, etc. designed to annoy or insult NOTE: Calculated to cause should be which produces alarm and danger according to the correct translation of the RPC. Hence, the result, and not the intent, that counts. (Reyes)
ARTICLE 156 - DELIVERING PRISONERS FROM JAIL

Elements: (1) There is a person confined in a jail or penal establishment; (2) Offender removes therefrom such person, or helps the escape of such person. If the prisoner who escapes is only a detention prisoner, he does not incur liability from escaping if he does not know of the plan to remove him from jail. But if such prisoner knows of the plot to remove him from jail and cooperates therein by escaping, he himself becomes liable for delivering prisoners from jail as a principal by indispensable cooperation. If the prisoner removed or whose escape is made possible by the commission of the crime of delivering prisoner from jail is a detention prisoner, such prisoner is not criminally liable. A prisoner is

Elements: (1) Offender is a convict by final judgment; (2) He is serving sentence which consists in the deprivation of liberty; (3) He evades service of his sentence by escaping during the term of his imprisonment. Qualifying circumstances as to penalty imposed if such evasion or escape takes place: (1) By means of unlawful entry (this should be by scaling - Reyes); (2) By breaking doors, windows, gates, walls, roofs or floors; (3) By using picklock, false keys, disguise, deceit, violence or intimidation; or (4) Through connivance with other convicts or employees of the penal institution.

PAGE 129

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

Evasion of service of sentence has three forms: (1) By simply leaving or escaping from the penal establishment under Article 157; (2) Failure to return within 48 hours after having left the penal establishment because of a calamity, conflagration or mutiny and such calamity, conflagration or mutiny has been announced as already passed under Article 158; (3) Violating the condition of conditional pardon under Article 159. In leaving or escaping from jail or prison, that the prisoner immediately returned is immaterial. It may be mitigating, but it will not absolve his criminal liability. Not applicable to sentence executed by deportation because the convict was not sentenced to imprisonment and thereafter broke jail. Not applicable to sentence of destierro since Article 157 refers only to persons who are imprisoned in a penal institution and completely deprived of their liberty.
ARTICLE 158 - EVASION OF SERVICE OF SENTENCE ON THE OCCASION OF DISORDERS, CONFLAGRATIONS, EARTHQUAKES, OR OTHER CALAMITIES

If the prisoner fails to return within said 48 hours, there will be an additional penalty of 1/5 of the time still remaining to be served under the original sentence. In no case shall that penalty exceed six months. Mutiny is one of the causes which may authorize a convict serving sentence in the penitentiary to leave the jail provided he has not taken part in the mutiny.
ARTICLE 159 SENTENCE

- OTHER CASES OF EVASION OF SERVICE OF

Elements: (1) Offender was a convict; (2) He was granted a conditional pardon by the Chief Executive; (3) He violated any of the conditions of such pardon. Violation of conditional pardon is a distinct crime. In violation of conditional pardon, as a rule, the violation will amount to this crime only if the condition is violated during the remaining period of the sentence. Offender must be found guilty of subsequent offense before he can be prosecuted under Article 159. [Torres vs. Gonzales] If the condition of the pardon is violated when the remaining unserved portion of the sentence has already lapsed, there will be no more criminal liability for the violation. However, the convict maybe required to serve the unserved portion of the sentence, that is, continue serving original penalty. Violation of Conditional Pardon vs. Evasion of Service of Sentence by Escaping Violation of Conditional Evasion of Service of Pardon Sentence Does not cause harm or injury to the right of another person nor does it disturb the public order; merely an infringement of the stipulated terms in conditional pardon An attempt at least to evade the penalty inflicted by the courts upon criminals and thus defeat the purpose of the law of either reforming or punishing them for having disturbed the public order.

Elements: (1) Offender is a convict by final judgment, who is confined in a penal institution; (2) There is disorder, resulting from (a) conflagration; (b) earthquake; (c) explosion; (d) similar catastrophe; or (e) mutiny in which he has not participated; (3) He evades the service of his sentence by leaving the penal institution where he is confined, on the occasion of such disorder or during the mutiny; (4) He fails to give himself up to the authorities within 48 hours following the issuance of a proclamation by the Chief Executive announcing the passing away of such calamity. Leaving the penal establishment is not the basis of criminal liability. What is punished is the failure to return within 48 hours after the passing of the calamity, conflagration or mutiny had been announced. Under Article 158, those who return within 48 hours are given credit or deduction from the remaining period of their sentence equivalent to 1/5 of the original term of the sentence.

PAGE 130

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

CHAPTER VII - COMMISSION OF ANOTHER CRIME DURING SERVICE OF PENALTY IMPOSED FOR ANOTHER PREVIOUS OFFENSE
ARTICLE 160 - QUASI RECIDIVISM

Elements: (1) Offender was already convicted by final judgment of one offense; (2) He committed a new felony before beginning to serve such sentence or while serving the same. Quasi-recidivism is a special aggravating circumstance where a person, after having been convicted by final judgment, shall commit a new felony before beginning to serve such sentence, or while serving the same. He shall be punished by the maximum period of the penalty prescribed by law for the new felony. The first crime for which the offender is serving sentence need not be a felony. [People vs. Peralta]
PD 1866 AS AMENDED BY RA 8294: ILLEGAL POSSESSION OF FIREARMS

If the violation of this section is in furtherance of or incident to, or in connection with the crime of rebellion or insurrection, sedition, or attempted coup detat, such violation shall be absorbed as an element of the crime of rebellion, or insurrection, sedition, or attempted coup detat. The same penalty shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any of the firearms owned by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs or willfully or knowingly allow any of them to use unlicensed firearms or firearms without any legal authority to be carried outside of their residence in the course of their employment. The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal authority therefor. Sec. 2. Presumption of Illegal Manufacture of Firearms or Ammunition. The possession of any machinery, tool or instrument used directly in the manufacture of firearms or ammunition, by any person whose business or employment does not lawfully deal with the manufacture of firearms or ammunition, shall be prima facie evidence that such article is intended to be used in the unlawful/illegal manufacture of firearms or ammunition. Sec. 3.Unlawful manufacture, sale, acquisition, disposition or possession of explosives. The penalty of prision mayor in its maximum period to reclusion temporal and a fine of not less than Fifty thousand pesos (P50,000) shall be imposed upon any person who shall unlawfully manufacture, assemble, deal in, acquire, dispose or possess hand grenade(s), rifle grenade(s), and other explosives, including but not limited to 'pillbox,' 'molotov cocktail bombs,' 'fire bombs,' or other incendiary devices capable of producing destructive effect on contiguous objects or causing injury or death to any person. When a person commits any of the crimes defined in the Revised Penal Code or special laws with the use of the aforementioned explosives, detonation agents or incendiary devices, which results in the death of any person or persons, the use of such explosives, detonation agents or incendiary devices shall be considered as an aggravating circumstance.

Section 1. Unlawful manufacture, sale, acquisition, disposition or possession of firearms or ammunition or instruments used or intended to be used in the manufacture of firearms or ammunition. The penalty of prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed. The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested. If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance.

PAGE 131

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

If the violation of this Sec. is in furtherance of, or incident to, or in connection with the crime of rebellion, insurrection, sedition or attempted coup d'etat, such violation shall be absorbed as an element of the crimes of rebellion, insurrection, sedition or attempted coup d'etat. The same penalty shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any of the explosives owned by such firm, company, corporation or entity, to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs Sec. 3-A. Unlawful Manufacture, Sales, Acquisition, Disposition, Importation or Possession of a Part, Ingredient, Machinery, Tool or Instrument Used or Intended to be Used for the Manufacture, Construction, Assembly, Delivery or Detonation. The penalty of reclusion perpetua shall be imposed upon any person who shall willfully and unlawfully manufacture, assemble, deal in, acquire, dispose, import or possess any part, ingredient, machinery, tool or instrument of any explosive or incendiary device, whether chemical, mechanical, electronic, electrical or otherwise, used or intended to be used by that person for its manufacture, construction, assembly, delivery or detonation, where the explosive or incendiary device is capable or is intended to be made capable of producing destructive effect on contiguous objects or causing injury or death to any person. Provided, That the mere possession of any part, ingredient, machinery, tool or instrument directly used in the manufacture, construction, assembly, delivery or detonation of any explosive or incendiary device, by any person whose business activity, or employment does not lawfully deal with the possession of such article shall be prima facie evidence that such article is intended to be used by that person in the unlawful/illegal manufacture, construction, assembly, delivery or detonation of an explosive or incendiary device. Provided, however, That a temporary incidental, casual, harmless or transient possession or control of any part, machinery, tool or instrument directly used in the manufacture, construction, assembly, delivery or detonation of any explosive or incendiary device, without the knowledge of its existence or character as part, ingredient, machinery, tool or instrument directly used in the manufacture, construction, assembly, delivery or detonation of any explosive or

incendiary device, shall not be a violation of this Section. Provided, further, That the temporary, incidental, casual, harmless, or transient possession or control of any part, ingredient, machinery, tool or instrument directly used in the manufacture, construction, assembly, delivery or detonation of any explosive or incendiary device for the sole purpose of surrendering it to the proper authorities shall not be a violation of this Section. Provided, finally, That in addition to the instances provided in the two (2) immediately preceding paragraphs, the court may determine the absence of the intent to possess, otherwise referred to as animus possidendi, in accordance with the facts and circumstances of each case and the application of other pertinent laws, among other things, Articles 11 and 12 of the Revised Penal Code, as amended. Sec. 3-B. Penalty for the Owner, President, Manager, Director or Other Responsible Officer of Any Public or Private Firm, Company, Corporation or Entity. The penalty of reclusion perpetua shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any explosive or incendiary device or parts thereof owned or controlled by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs. Sec. 3-C. Relationship of Other Crimes with a Violation of this Decree and the Penalty Therefor. When a violation of Section 3, 3-A or 3-B of this Decree is a necessary means for committing any of the crimes defined in the Revised Penal Code or special laws, or is in furtherance of, incident to, in connection with, by reason of, or on occasion of any of the crimes defined in the Revised Penal Code or special laws, the penalty of reclusion perpetua and a fine ranging from One hundred Thousand pesos (P100,000.00) to One million pesos (P1,000,000.00) shall be imposed. Sec. 3-D. Former Conviction or Acquittal; Double Jeopardy. Subject to the provisions of the Rules of Court on double jeopardy, if the application thereof is more favorable to the accused, the conviction or acquittal of the accused or the dismissal of the case for violation of this Decree shall be a bar to another prosecution of the same accused for any offense where the violation of this Decree was a necessary means for committing the offense or in furtherance of which, incident to which, in connection with which, by reason of which, or on occasion of which, the

PAGE 132

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

violation of this Decree was committed, and vice versa. Sec. 4. Responsibility and liability of Law Enforcement Agencies and Other Government Officials and Employees in Testifying as Prosecution Witnesses. Any member of law enforcement agencies or any other government official and employee who, after due notice, fails or refuses, intentionally or negligently, to appear as a witness for the prosecution of the defense in any proceeding, involving violations of this Decree, without any valid reason, shall be punished with reclusion temporal and a fine of Five hundred Thousand pesos (P500,000.00) in addition to the administrative liability he/she may be meted out by his/her immediate superior and/or appropriate body. The immediate superior of the member of the law enforcement agency or any other government employee mentioned in the preceding paragraph shall be penalized with prision correccional and a fine of not less than Ten Thousand pesos (P10,000.00) but not more than Fifty thousand pesos (P50,000.00) and in addition, perpetual absolute disqualification from public office if despite due notice to them and to the witness concerned, the former does not exert reasonable effort to present the latter to the court. The member of the law enforcement agency or any other government employee mentioned in the preceding paragraphs shall not be transferred or reassigned to any other government office located in another territorial jurisdiction during the pendency of the case in court. However, the concerned member of the law enforcement agency or government employee may be transferred or reassigned for compelling reasons: Provided, That his/her immediate superior shall notify the court where the case is pending of the order to transfer or reassign, within twenty-four (24) hours from its approval: Provided, further, That his/her immediate superior shall be penalized with prision correccional and a fine of not less than Ten thousand pesos (P10,000.00) but not more than Fifty thousand pesos (P50,000.00) and in addition, perpetual absolute disqualification from public office, should he/she fail to notify the court of such order to transfer or reassign. Prosecution and punishment under this Section shall be without prejudice to any liability for violation of any existing law. Sec. 4-A. Criminal Liability for Planting of Evidence. Any person who is found guilty of planting any explosive or incendiary device or any

part, ingredient, machinery, tool or instrument of any explosive or incendiary device, whether chemical, mechanical, electronic, electrical or otherwise, shall suffer the penalty of reclusion perpetua. Planting of evidence shall mean the willful act by any person of maliciously and surreptitiously inserting, placing, adding or attaching, directly or indirectly, through any overt or covert act, whatever quantity of any explosive or incendiary device or any part, ingredient, machinery, tool or instrument of any explosive or incendiary device, whether chemical, mechanical, electronic, electrical or otherwise in the person, house, effects or in the immediate vicinity of an innocent individual for the purpose of implicating incriminating or imputing the commission of any violation of this Decree. Sec. 4-D. Types of Chemicals/Accessories Covered. The chemicals and accessories mentioned in the preceding Section shall exclusively refer to chlorates, nitrates, nitric acid and such other chemicals and accessories that can be used for the manufacture of explosives and explosive ingredients. Sec. 5. Tampering of Firearms Serial Number. The penalty of prision correccional shall be imposed upon any person who shall unlawfully tamper, change, deface or erase the serial number of any firearm. Sec. 6. Repacking or Altering the Composition of Lawfully Manufactured Explosives. The penalty of prision correccional shall be imposed upon any person who shall unlawfully repack, alter or modify the composition of any lawfully manufactured explosives. Sec. 7. Unauthorized Issuance of Authority to Carry Firearm and/or Ammunition Outside of Residence. The penalty of prision correccional shall be imposed upon any person, civilian or military, who shall issue authority to carry firearm and/or ammunition outside of residence, without authority therefor.
RA 9372: HUMAN SECURITY ACT (SEE SPECIAL LAWS IN TITLE I)

PAGE 133

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

Title IV. Crimes against Public Interest


Acts of Counterfeiting (1) Article 162 - Using Forged Signature or Counterfeit Seal or Stamp (2) Article 161 - Counterfeiting the Great Seal of the Government of the Philippine Islands, Forging the Signature or Stamp of the Chief Executive (3) Article 164 - Mutilation of Coins (4) Article 163 - Making and Importing and Uttering False Coins (5) Article 165 - Selling of False or Mutilated Coin, Without Connivance (6) Article 167 - Counterfeiting, Importing, and Uttering Instruments Not Payable to Bearer (7) Article 166 - Forging Treasury or Bank Notes or Other Documents Payable to Bearer; Importing and Uttering Such False or Forged Notes and Documents Acts of Forgery (1) Article 168 - Illegal Possession and Use of False Treasury or Bank Notes and Other Instruments of Credit (2) Article 169 - How Forgery is Committed Acts of Falsification (1) Article 170 - Falsification of Legislative Documents (2) Article 171 - Falsification by Public Officer, Employee or Notary or Ecclesiastical Minister (3) Article 172 - Falsification by Private Individual and Use of Falsified Documents (4) Article 173 - Falsification of Wireless, Cable, Telegraph and Telephone Messages, and Use of Said Falsified Messages (5) Article 175 - Using False Certificates (6) Article 174 - False Medical Certificates, False Certificates of Merits or Service, etc. (7) Article 176 - Manufacturing and Possession of Instruments or Implements for Falsification Other Falsities (1) Article 177 - Usurpation of Authority or Official Functions (2) Article 179 - Illegal Use of Uniforms and Insignia (3) Article 178 - Using Fictitious and Concealing True Name (4) Article 180 - False Testimony Against a Defendant (5) Article 181 - False Testimony Favorable to the Defendant (6) Article 182 - False Testimony in Civil Cases (7) Article 184 - Offering False Testimony in

Evidence (8) Article 183 - False Testimony in Other Cases and Perjury in Solemn Affirmation (9) Article 185 - Machinations in Public Auctions (10) Article 186 Monopolies and Combinations in Restraint of Trade (11) Article 187 Importation and Disposition of Falsely Marked Articles or Merchandise Made of Gold, Silver, or other Precious Metals or their Alloys. The crimes in this title are in the nature of fraud or falsity to the public. Deceit perpetrated upon the public is the act being punished. ACTS OF COUNTERFEITING
ARTICLE 161 - COUNTERFEITING THE GREAT SEAL OF THE GOVERNMENT OF THE PHILIPPINE ISLANDS, FORGING THE SIGNATURE OR STAMP OF THE CHIEF EXECUTIVE

Acts punished: Forging the (1) Great Seal of the Government of the Philippines; (2) Signature of the President; (3) Stamp of the President. When the signature of the president is forged, the crime committed is covered by this provision and not falsification of public document. Intent to use is necessary. Actual use, however, is not required, as long as the forger intended to use it.
ARTICLE 162 - USING FORGED COUNTERFEIT SEAL OR STAMP SIGNATURE OR

Elements: (1) The great Seal of the Republic was counterfeited OR the Signature or stamp of the Chief Executive was forged by another person; (2) Offender Knew of the counterfeiting or forgery; (3) He Used the counterfeit seal or forged signature or stamp. Remember: Offender under this article should not be the forger. Otherwise, he will be penalized under Article 161. The participation of the offender is in effect that of an accessory. Although the general rule is that he should be punished by a penalty of two degrees lower, under Article 162 he is punished by a penalty only one degree lower.

PAGE 134

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

ARTICLE 163 FALSE COINS

- MAKING AND IMPORTING AND UTTERING Requisites of Mutilation under the RPC: (1) Coin mutilated is of legal tender; (2) Offender gains from the precious metal dust abstracted from the coin; (3) It has to be a coin. Mutilation means to take off part of the metal either by filling it or substituting it for another metal of inferior quality. Since the coins before were made of silver and/or other precious metal, shaving the metal from the coins became a practice. Hence, the coins intrinsic value is diminished. This is the only article that requires that the mutilated coin be legal tender. Foreign coins are covered in this article. Deliberate intent arises only when the offender collects the precious metal dust from the mutilated coin.
ARTICLE 165 - SELLING OF FALSE OR MUTILATED COIN, WITHOUT CONNIVANCE

Elements: (1) There be False or counterfeited coins; (2) Offender either made, imported or uttered such coins; (3) In case of uttering such false or counterfeited coins, he Connived with the counterfeiters or importers. To utter is to pass counterfeited coins. It includes delivery or the act of giving them away. A counterfeited coin is uttered when it is paid, when the offender is caught counting the counterfeited coins preparatory to the act of delivering them, even though the utterer may not obtain the gain he intended [Decisions of the Supreme Court of Spain] To import fake coins means to bring them into port. The importation is complete before entry at the Customs House [US vs. Lyman] Kinds of coins the counterfeiting of which is punished A. Silver coins of the Philippines or coins of the Central Bank of the Philippines; B. Coins of the minor coinage of the Philippines or of the Central Bank of the Philippines; C. Coin of the currency of a foreign country. The counterfeiting of foreign currency is punishable, regardless of whether or not it is still in official circulation. The reason behind this is not only the harm that it may cause to the public in case it goes into circulation again, but also the possibility that the counterfeiter may later apply his trade to the making of coins in actual circulation. [People vs. Kong Leon]
ARTICLE 164 - MUTILATION OF COINS

Mode 1: Possession of coin, counterfeited or mutilated by another person, with intent to utter the same, knowing that it is false or mutilated; Elements: (1) Possession; (2) With Intent to utter; and (3) Knowledge. Mode 2: Actually uttering such false or mutilated coin, knowing the same to be false or mutilated. Elements: (1) Actually uttering; and (2) Knowledge. Possession prohibited in this article is not only actual and physical possession, but also that of a constructive one, or the subjection of the thing to ones control. The possessor should not be the counterfeiter, mutilator or importer of the coins. As long as the offender has knowledge that the coin is false or mutilated, there is no need for him to connive with the counterfeiter or mutilator.
ARTICLE 166 - FORGING TREASURY OR BANK NOTES OR OTHER DOCUMENTS PAYABLE TO BEARER; IMPORTING AND UTTERING SUCH FALSE OR FORGED NOTES AND DOCUMENTS

Acts punished (1) Mutilating coins of the legal currency, with the further requirement that there be intent to damage or to defraud another; (2) Importing or uttering such mutilated coins, with the further requirement that there must be connivance with the mutilator or importer in case of uttering. The first acts of falsification or falsity include: (1) Counterfeiting (2) Forgery (3) Falsification In so far as coins in circulation are concerned, there are two crimes that may be committed: (1) Counterfeiting coins (2) Mutilation of coins

PAGE 135

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

Acts punished (1) Forging or falsification of treasury or bank notes or other documents payable to bearer; (2) Importation of such false or forged obligations or notes; (3) Uttering of such false or forged obligations or notes in connivance with the forgers or importers. Forging: By giving any treasury or bank note, or any instrument payable to bearer, or to order the appearance of a true and genuine document. Falsification: By erasing, substituting, counterfeiting or altering by any means, the figures, letters, words, or signs contained therein. The instrument is payable to bearer: (1) When expressed to be so payable (2) When payable to a person named therein or bearer (3) When payable to the order of a fictitious or nonexisting person, and such fact was known to the person making it so payable (4) When the name of the payee does not purport to be the name of any person (5) When the only or last endorsement is an endorsement in blank. Reason for this is that the forging tends to bring such documents into discredit and the offense produces a lack of confidence on the part of the holders of said documents to the prejudice of society and of the State.
ARTICLE 167 - COUNTERFEITING, IMPORTING, AND UTTERING INSTRUMENTS NOT PAYABLE TO BEARER

Connivance is not required in uttering if the utterer is the forger. ACTS OF FORGERY
ARTICLE 168 - ILLEGAL POSSESSION AND USE OF FALSE TREASURY OR BANK NOTES AND OTHER INSTRUMENTS OF CREDIT

Elements: (1) Any treasury or bank note or certificate or other obligation and security: (a) Payable to bearer, or any instrument payable to order or other document of credit not payable to bearer is (b) Forged or falsified by another person; (2) Offender Knows that any of those instruments is forged or falsified; (3) He either (a) Uses any of such forged or falsified instruments; or (b) Possesses with intent to use any of such forged or falsified instruments. The rule is that if a person had in his possession a falsified document and he made use of it, taking advantage of it and profiting thereby, the presumption is that he is the material author of the falsification. Possession of false treasury or bank notes alone is not a criminal offense. Intent to use is sufficient to consummate the crime when the offender is in possession of false or falsified notes or obligations. [People vs. Sendaydiego, (1978)] The accused must have knowledge of the forged character of the note.
ARTICLE 169 - HOW FORGERY IS COMMITTED

Elements: (1) There is an Instrument payable to order or other document of credit not payable to bearer; (2) Offender either Forged, imported or uttered such instrument; (3) In case of uttering, he Connived with the forger or importer. An instrument is payable to order where it is drawn payable to the order of a specified person or to him or his order. This covers instruments or other documents of credit issued by a foreign government or bank. Forgery of currency is punished so as to maintain integrity of the currency and thus insure the credit standing of the government.

(1) By Giving to a treasury or bank note or any instrument payable to bearer or to order mentioned therein, the appearance of a true and genuine document; (2) By Erasing, substituting, counterfeiting, or altering by any means the figures, letters, words, or sign contained therein. Forgery includes falsification and counterfeiting. For possession of false treasury or bank note to constitute a criminal offense, it must be with intent to use. The essence of forgery is giving a document the appearance of a true and genuine document.

PAGE 136

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

Not any alteration of a letter, number, figure or design would amount to forgery. At most, it would only be frustrated forgery. Forgery can be committed through the use of genuine paper bills that have been withdrawn from circulation, by giving them the appearance of some other true and genuine document. [People vs. Galano] ACTS OF FALSIFICATION
ARTICLE 170 DOCUMENTS

ARTICLE 171 - FALSIFICATION BY PUBLIC OFFICER, EMPLOYEE OR NOTARY OR ECCLESIASTICAL MINISTER

FALSIFICATION

OF

LEGISLATIVE

Elements: (1) There is a Bill, resolution or ordinance enacted or approved or pending approval by either House of the Legislature or any provincial board or municipal council; (2) Offender Alters the same; (3) He has No proper authority therefor; (4) The alteration has Changed the meaning of the documents. The writing must be: (1) complete in itself; and (2) capable of extinguishing an obligation or creating rights; or (3) capable of becoming evidence of the facts stated therein. Five classes of falsification: (1) Falsification of legislative documents; (2) Falsification of a document by a public officer, employee or notary public; (3) Falsification of a public or official, or commercial documents by a private individual; (4) Falsification of a private document by any person; (5) Falsification of wireless, telegraph and telephone messages. Falsification vs Forgery Forgery As used in Article 169, forgery refers to the falsification and counterfeiting of treasury or bank notes or any instruments payable to bearer or to order Falsification The commission of any of the 8 acts mentioned in Article 171 on legislative (only the act if making alteration) public or official, commercial or private documents or wireless or telegraph messages.

Elements: (1) Offender is a Public officer, employee, or notary public; (2) He Takes advantage of his official position; (3) He falsifies a document by committing any of the following acts: (a) Counterfeiting or imitating any handwriting, signature or rubric; (b) Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate; (c) Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them; (d) Making untruthful statements in a narration of facts; (e) Altering true dates; (f) Making any alteration or intercalation in a genuine document which changes its meaning; (g) Issuing in an authenticated form: (i) A document purporting to be a copy of an original document (ii) When no such original exists, or (iii) Including in such a copy a statement contrary to, or different from, that of the genuine original; (h) Intercalating any instrument or note relative to the issuance thereof in a protocol, registry, or official book. 1 Element: Persons Liable under this Article Under this article, only a public officer, employee or notary public, or ecclesiastical minister can be the offender. The ecclesiastical minister is liable with respect to any record or document that its falsification may affect the civil status of persons. 2 Element: Offender Take Advantage of his Official Position Offender takes advantage of his official position in falsifying a document when: (1) He has the duty to make or prepare, or intervene in the preparation of the document; or (2) He has the official custody of the document he falsifies. 3 Element: Offender Falsifies a Document A document is any written statement by which a right or status is established or an obligation is extinguished.
rd nd st

PAGE 137

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

PAR 1: Counterfeiting or imitating any handwriting, signature or rubric. 2 ways of committing falsification under this paragraph: (1) Counterfeiting, which is imitating any handwriting, signature or rubric (a) There should be an intent to imitate, or an attempt to imitate (b) Two signatures, the genuine and the forged, should bear some resemblance. (2) Feigning, which is simulating a signature, handwriting or rubric out of one which does not actually exist. PAR 2: Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate. Two Requisites: (1) Offender caused it to appear in a document that a person/s participated in an act or proceeding. (2) Such person/s did not in fact participate. PAR 3: Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them Three Requisites: (1) Person/s participated in an act or proceeding (2) Such person/s made statements in that act or proceeding (3) Offender, in making a document, attributed to such person/s statements other than those they in fact made. PAR 4: Making untruthful statements in a narration of facts Four Requisites: (1) Offender makes in a document statements in a narration of facts (2) He has a legal obligation to disclose truth of facts (3) Facts narrated are absolutely false (4) Perversion of truth in the narration was made with the wrongful intent of injuring a third person. There must be narration of facts, not conclusion of law. There should be a legal obligation to disclose the truth. [Beradio vs. CA] The person making the narration of facts must be aware of the falsity of facts narrated by him. The narration of facts must be absolutely false. If there is some colorable truth in such statements, crime of falsification is not deemed to have been committed.

The existence of a wrongful intent to injure a third person is immaterial in falsification of a public document. [Siquian vs. People] There can be falsification by omission. An assistant bookkeeper is guilty of falsification by intentionally not putting a record in his personal account of chits and destroyed them so he could avoid paying the same. [People vs. Dizon] PAR 5: Altering true dates (1) The date must be essential (2) The alteration of the date must affect the veracity of the documents or the effects thereof (such as dates of birth, marriage, or death). PAR 6: Making any alteration or intercalation in a genuine document which changes its meaning Four Requisites: (1) There be an alteration (change) or intercalation (insertion) on a document. (2) It was made on a genuine document. (3) Alteration or intercalation has changed the meaning of the document. (4) Change made the document speak something false. PAR 1 May be a genuine (later falsified) or an entirely fabricated document PAR 5 May be a genuine (later falsified) or an entirely fabricated document PAR 2 May be a genuine (later falsified) or an entirely fabricated document PAR 6 There must be a genuine document PAR 3 May be a genuine (later falsified) or an entirely fabricated document PAR 4 May be a genuine (later falsified) or an entirely fabricated document

PAR 7 There must be a genuine document

PAR 8 There must be a genuine document

Change or insertion must affect the integrity or effects of the document. Furthermore, the alteration should make the document speak something false. Otherwise, it would merely be a correction.

PAGE 138

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

PAR 7: Issuing in an authenticated form a document purporting to be a copy of an original document when no such original exists, or including in such a copy a statement contrary to, or different from, that of the genuine original Falsification in this paragraph cannot be committed by a private individual, or by a notary public, or by a public officer, who does not take advantage of his official position. This is because authentication of a document can only be made by the custodian or the one who prepared and retained a copy of the original. (1) Purporting to be a copy of the original when no such original exists. (2) Including a copy a statement contrary to, or different from, that of the genuine original. A private person who cooperates with a public officer in the falsification of a public document is guilty of the crime and incurs the same liability and penalty. There are four kinds of documents: (1) Public document in the execution of which, a person in authority or notary public has taken part; (a) A document created, executed or issued (b) By a public official (c) In response to the exigencies of the public service, (d) Or in execution of w/c public official intervened. (2) Official document in the execution of which a public official takes part; (a) A document issued by a public official in the exercise of the functions of his office. It falls within the larger class called public documents. (b) A document required by a bureau to be filled by its officers for purposes of record and information is a public document. (3) Commercial document or any document recognized by the Code of Commerce or any commercial law; and (4) A deed or instrument executed by a private person without the intervention of a notary public or other persons legally authorized. Private document in the execution of which only private individuals take part. The element of damage is not necessary because it is the interest of the community which is intended to be guaranteed. The character of the offender and his faithfulness to his duty is mainly taken into consideration.

Public and Private writings under the Rules of Court: The following are public documents: (1) Written official acts, or records, of the official acts of the sovereign authority, official bodies and tribunals, and public officers (2) Documents acknowledged before a notary public except last will and testaments (3) Public records kept in the Philippines, of private documents required by law to be entered therein. All other writings are private. After an investigation, a group of public officers were caught and convicted of falsifying cash vouchers. On appeal the SC held that cash vouchers are NOT commercial documents because they are not documents used by merchants or businessmen to promote or facilitate credit transactions nor they are defined and regulated by the Code of Commerce or other commercial law. Rather, they are private documents which have been defined as: (1) Deeds or instruments executed by a private person (2) Without the intervention of a public notary or of other person legally authorize, (3) By which some disposition or agreement is proved, evidenced or set forth.[People v. Batulanon (2007)]
ARTICLE 172 - FALSIFICATION BY PRIVATE INDIVIDUAL AND USE OF FALSIFIED DOCUMENTS

Mode 1: Falsification of public, official or commercial document by a private individual; Elements: (1) Offender is a Private individual OR Public officer or employee who did not take advantage of his official position; (2) He committed any act of Falsification (Art. 171); (3) The falsification was committed in a public, official, or commercial Document or letter of exchange. Mode 2: Falsification of private document by any person; Elements: (1) Offender committed any of the acts of Falsification except Article 171(7), that is, (a) Issuing in an authenticated form a document purporting to be a copy of an original document when no such original

PAGE 139

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

exists, or (b) Including in such a copy a statement contrary to, or different from, that of the genuine original; (2) Falsification was committed in any Private document; (3) Falsification causes Damage to a third party or at least the falsification was committed with intent to cause such damage. Mode 3: Use of falsified document. Elements in introducing in a judicial proceeding (1) Offender Knew that the document was falsified by another person; (2) The False document is in Articles 171 or 172 (1 or 2); (3) He Introduced said document in evidence in any judicial proceeding. Elements in use in any other transaction (1) Offender Knew that a document was falsified by another person; (2) The False document is embraced in Articles 171 or 172 (1 or 2); (3) He Used such document; (4) The use caused Damage to another or at least used with intent to cause damage. In the falsification of public or official documents, it is not necessary that there be present the idea of gain or the intent to cause damage. This is because the principal thing punished is the violation of public faith and destruction of the truth as therein solemnly proclaimed. The existence of a wrongful intent to injure a third person is not necessary when the falsified document is a public document. [Siquian vs People] NOTE: This statement applies as well to commercial documents, because as to this kind of document, a credit is sought to be protected. [Reyes] Since damage is not an element of falsification of a public document, it could be complexed with estafa, theft or malversation as a necessary means to commit the latter crimes. There is no crime of falsification of private document through negligence or imprudence. If the document is intended by law to be part of the public or official record, the falsification, although it was private at the time of falsification, it is regarded as falsification of a public or official document.

Falsification through imprudence implies lack of such intent, thus there is no crime of falsification of a private document through negligence or imprudence. The possessor of a falsified document is presumed to be the author of the falsification. [People vs. Manansala] The presumption also holds if the use was so closely connected in time with the falsification and the user had the capacity of falsifying the document. [People vs. Sendaydiego] There is no crime of estafa through falsification of a private document. Both crimes, separately, require the element of damage, which each of the two should have its own. The fraudulent gain obtained through deceit should not be the very same damage caused by the falsification of the private document. In this case, the petitioners are charged under Article 171, paragraphs 2 and 7 of the RPC. Petitioners Regidor and Zapatos, as Mayor, and Member and Temporary Presiding Officer of the Sangguniang Panglungsod, respectively, made it appear that private complainants, among others, participated in the Sangguniang Panglungsod sessions when they did not in fact so participate, and issued, in authenticated forms, the assailed resolutions purporting to be copies of original documents when no such originals exist. SC held that all the elements of the offense punishable under Article 171, paragraphs 2 and 7 of the RPC are present in this case. Furthermore, it is a fundamental principle in the law on public officers that administrative liability is separate from and independent of criminal liability. A simple act or omission can give rise to criminal, civil or administrative liability, each independently of the others. This is known as the threefold liability rule. Thus, absolution from a criminal charge is not a bar to an administrative prosecution, and vice-versa. In this criminal prosecution, the dismissal of the administrative cases against the petitioners will not necessarily result in the dismissal of the criminal complaints filed against them.[Regidor v. People of the Phils & Sandiganbayan (2009)]

PAGE 140

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

ARTICLE 173 - FALSIFICATION OF WIRELESS, CABLE, TELEGRAPH AND TELEPHONE MESSAGES, AND USE OF SAID FALSIFIED MESSAGES

ARTICLE 174 - FALSE MEDICAL CERTIFICATES, FALSE CERTIFICATES OF MERITS OR SERVICE, ETC.

Mode 1: Uttering fictitious wireless, telegraph or telephone message; Elements: (1) Offender is an officer or employee of the government or an officer or employee of a private corporation, engaged in the service of sending or receiving wireless, cable or telephone message; (2) He utters fictitious wireless, cable, telegraph or telephone message. Mode 2: Falsifying wireless, telegraph or telephone message; Elements: (1) Offender is an officer or employee of the government or an officer or employee of a private corporation, engaged in the service of sending or receiving wireless, cable or telephone message; (2) He falsifies wireless, cable, telegraph or telephone message. Mode 3: Using such falsified message. Elements: (1) Offender knew that wireless, cable, telegraph, or telephone message (a) Was falsified by an officer or employee of the government or an officer or employee of a private corporation, (b) Engaged in the service of sending or receiving wireless, cable or telephone message; (2) He used such falsified dispatch; (3) The use resulted in the prejudice of a third party or at least there was intent to cause such prejudice. The public officer, to be liable, must be engaged in the service of sending or receiving wireless, cable, telegraph or telephone message. A private individual cannot be a principal by direct participation in falsification of telegraphic dispatches under Article 173, unless he is an employee of a corporation engaged in the business of sending or receiving wireless, telegraph or telephone messages. But a private individual can be held criminally liable as principal by inducement.

Persons liable (1) Physician or surgeon who, in connection with the practice of his profession, issues a false certificate (it must refer to the illness or injury of a person); Note: The crime here is false medical certificate by a physician. (2) Public officer who issues a false certificate of merit of service, good conduct or similar circumstances; Note: The crime here is false certificate of merit or service by a public officer. (3) Private person who falsifies a certificate falling within the classes mentioned in the two preceding subdivisions. Note: The crime here is false medical certificate by a private individual or false certificate of merit or service by a private individual.
ARTICLE 175 - USING FALSE CERTIFICATES

Elements: (1) The following Issues a false certificate: (a) Physician or surgeon, in connection with the practice of his profession, issues a false Medical certificate; (b) Public officer issues a false certificate of Merit of service, good conduct or similar circumstances; (c) Private Person falsifies a certificate falling within the 2 preceding subdivisions. (2) Offender Knows that the certificate was false; (3) He Uses the same. When any of the false certificates mentioned in Article 174 is used in the judicial proceeding, Article 172 does not apply, because the use of false document in judicial proceeding under Article 172 is limited to those false documents embraced in Articles 171 and 172.
ARTICLE 176 - MANUFACTURING AND POSSESSION OF INSTRUMENTS OR IMPLEMENTS FOR FALSIFICATION

Acts punished: (1) Making or introducing into the Philippines any stamps, dies, marks, or other instruments or implements for counterfeiting or falsification; (2) Possession with intent to use the instruments or implements for counterfeiting or falsification made in or introduced into the Philippines by another person.
PAGE 141

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

As in Article 165, the possession contemplated here is constructive possession. The implements confiscated need not form a complete set. OTHER FALSITIES
ARTICLE 177 FUNCTIONS

(3) Purpose of use is to conceal a crime, to evade the execution of a judgment or to cause damage [to public interest Reyes]. Mode 2: Concealing true name

- USURPATION OF AUTHORITY OR OFFICIAL

Mode 1: Usurpation of authority. (no connection with the office represented) The mere act of knowingly and falsely representing oneself to be an officer is sufficient. It is not necessary that he perform an act pertaining to a public officer. Elements: (1) Offender knowingly and falsely Represents himself; (2) As an Officer, agent or representative of any department or agency of the Philippine government or of any foreign government. Mode 2: Usurpation of official functions. (excess of authority) In usurpation of official functions, it is essential that the offender should have performed an act pertaining to a person in authority or public officer, in addition to other requirements. Elements (1) Offender Performs any act; (2) Pertaining to any person in authority or public officer of the Philippine government or any foreign government, or any agency thereof; (3) Under Pretense of official position; (4) Without being lawfully entitled to do so. The offender should have: (1) represented himself to be an officer, agent or representative of any agency of the government; or (2) performed an act pertaining to a person in authority or public officer. Article 177 may be violated by a public officer.
ARTICLE NAME

Elements: (1) Offender conceals his true name and other personal circumstances; (2) Purpose is only to conceal his identity. Use of Fictitious Name Element of Publicity Concealing True Name Publicity not necessary

Purpose is to conceal a Merely to conceal identity. crime, evade execution of judgment, cause damage) If the purpose is for causing damage, it must be damage to public interest. If it is damage to private interest, the crime will be estafa under Art 315 2(a).
ARTICLE 179 - ILLEGAL USE OF UNIFORMS AND INSIGNIA

Elements: (1) Offender makes Use of insignia, uniforms or dress; (2) The insignia, uniforms or dress pertains to an Office not held by such person or a class of persons of which he is not a member; (3) Said insignia, uniform or dress is Used publicly and improperly. Exact imitation of a uniform or dress is unnecessary; a colorable resemblance calculated to deceive the common run of people is sufficient. RA 75 also punishes using the use of uniform, decoration or regalia of a foreign state by people not entitled to do so. RA 493 punishes wearing an insignia, badge, or emblem of rank of the members of the AFP or constabulary.
ARTICLE 180 - FALSE TESTIMONY AGAINST A DEFENDANT

178 - USING FICTITIOUS AND CONCEALING TRUE

Mode 1: Using fictitious name Elements: (1) Offender uses a name other than his real name; (2) He uses the fictitious name publicly;

Elements: (1) There is a Criminal proceeding; (2) Offender Testifies falsely under oath against the defendant therein; (3) Offender who gives false testimony Knows that it is false. (4) Defendant against whom the false testimony is given is either acquitted or convicted in a Final

PAGE 142

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

judgment. The witness who gave the false testimony is liable even if his testimony was not considered by the court. False Testimony: Committed by a person who, being under oath and required to testify as to the truth of a certain matter at a hearing before a competent authority, shall deny the truth or say something contrary to it. False testimony is punished because of its tendency to prejudice defendant. Three forms of false testimony: (1) False testimony in criminal cases under Article 180 and 181; (2) False testimony in civil case under Article 182; (3) False testimony in other cases under Article 183. Articles 180 184 punish the acts of making false testimonies because such acts seriously expose society to miscarriage of justice.
ARTICLE 181 DEFENDANT

(2) Testimony Relates to the issues presented in said case; (3) Testimony is False; (4) Offender Knows that testimony is false; (5) Testimony is Malicious (6) And given with an intent to affect the issues presented in said case. Falsity of testimony must first be established. Art. 182 does not apply in special proceedings. These are covered by 183 under other cases. Pending the determination of the falsity of the subject testimonies in the civil case, the criminal action for false testimony must perforce be suspended.
ARTICLE 183 - FALSE TESTIMONY IN OTHER CASES AND PERJURY IN SOLEMN AFFIRMATION

Acts Punished (1) By falsely Testifying under oath; (2) By Making a false affidavit. Note: The false testimony should not be in a judicial proceeding. [Diaz vs. People] Elements of perjury: (1) Offender Makes a statement under oath or executes an affidavit upon a material matter; (2) The statement or affidavit is made Before a competent officer, authorized to receive and administer oaths; (3) Offender makes a Willful and deliberate assertion of a falsehood in the statement or affidavit; (4) The sworn statement or affidavit containing the falsity is Required by law, that is, it is made for a legal purpose. The statement should be outside the coverage of art 180-181. Oath: Any form of attestation by which a person signifies that he is bound by conscience to perform an act faithfully and truthfully. Affidavit: Sworn statement in writing; declaration in writing, made upon oath before an authorized magistrate or officer. There could be no perjury through negligence or imprudence. This is because of the requirement that the assertion of a falsehood be made willfully and deliberately. Hence, good faith or lack of malice is a defense in perjury.

- FALSE TESTIMONY FAVORABLE TO THE

Elements: (1) A person Gives false testimony; (2) In Favor of the defendant; (3) In a Criminal case. The testimony need not in fact be beneficial to the defendant. It is not necessary that the testimony should directly influence the decision of acquittal, it being sufficient that it was given with the intent to favor the accused. Conviction or acquittal of defendant in the principal case is not necessary. Rectification made spontaneously after realizing the mistake is not false testimony. Penalty for false testimony against the accused is based on the sentence imposed or if accused is acquitted; that for testimony favorable to the accused is based on the imposable penalty. The rationale for the difference is the measure of the wrong occasioned by the injustice in each case, i.e. the undeserved sentence and the imposable penalty avoided, respectively.
ARTICLE 182 - FALSE TESTIMONY IN CIVIL CASES

Elements: (1) Testimony Given in a civil case;

PAGE 143

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

It is not necessary that there be a law requiring the statement to be made under oath, as long as it is made for a legal purpose. Perjury is a crime other than false testimony in criminal cases or false testimony in civil cases, which are perversions of truth in judicial proceedings. Perjury is an offense which covers false oaths other than those taken in the course of judicial proceedings. [US vs. Estrada] Good faith or lack of malice is a defense in perjury. Subornation of perjury is committed by a person who knowingly and willfully procures another to swear falsely and the witness suborned does testify under circumstances rendering him guilty of perjury. [US vs. Ballena] Subornation of perjury is not expressly penalized in the RPC; but the direct induction of a person by another to commit perjury may be punished under Article 183 in relation to Article 17.
ARTICLE 184 - OFFERING FALSE TESTIMONY IN EVIDENCE

Elements: (1) There is a Public auction; (2) Offender Attempts to cause the bidders to stay away from that public auction; (3) It is Done by threats, gifts, promises or any other artifice; (4) Offender had the Intent to cause the reduction of the price of the thing auctioned. The crime is consummated by: (1) Mere solicitation of gift or promise as consideration for not bidding, or (2) By mere attempt to cause prospective bidders to stay away from an auction.
ARTICLE 186 MONOPOLIES AND COMBINATIONS IN RESTRAINT OF TRADE

Elements: (1) Offender Offers in evidence a false witness or testimony; (2) He Knows that the witness or the testimony was false; (3) The offer is made in any Judicial OR Official proceeding. Offer of evidence begins at the moment a witness is called to the stand and interrogated by counsel. The witness must testify.
ARTICLE 185 - MACHINATIONS IN PUBLIC AUCTIONS

Mode 1: Combination to prevent free competition in the market Elements: (1) Entering into any contract or agreement; OR taking part in any conspiracy or combination in the form of a trust or otherwise; (2) In restraint of trade or commerce or to prevent by artificial means free competition in the market Mode 2: Monopoly to restrain free competition in the market Elements: (1) Monopolizing any merchandise or object of trade or commerce; OR (2) Combining with any other person or persons to monopolize said merchandise or object in order to alter the prices thereof by spreading false rumors or making use of any other artifice to restrain free competition in the market Mode 3: Manufacturer, producer, or processor or importer combining, conspiring or agreeing with any person to make transactions prejudicial to lawful commerce or to increase the market price of merchandise Elements: (1) Person liable: (1) manufacturer, (2) producer, (3) processor, or (4) importer of any merchandise or object of commerce (2) Crime committed by: (1) combining, (2) conspiring, or (3) agreeing with any person (3) Purpose: (1) to make transactions prejudicial to lawful commerce, or (2) to increase the market price of any merchandise or object

Mode 1: Soliciting any gift or promise as a consideration for refraining from taking part in any public auction; Elements: (1) There is a Public auction; (2) Offender Solicits any gift or a promise from any of the bidders; (3) Such gift or promise is the Consideration for his refraining from taking part in that public auction; (4) Offender has the Intent to cause the reduction of the price of the thing auctioned. Mode 2: Attempting to cause bidders to stay away from an auction by threats, gifts, promises or any other artifice.

PAGE 144

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

of commerce manufactured, produced, processed, assembled, or imported into the Philippines. Theory of the law: Competition, not combination, should be the law of trade Mere conspiracy or combination is punished. If the offense affects any food substance or other article of prime necessity, it is sufficient that initial steps are taken. When offense is committed by a corporation or association, the president and directors or managers are liable.
ARTICLE 187 IMPORTATION AND DISPOSITION OF FALSELY MARKED ARTICLES OR MERCHANDISE MADE OF GOLD, SILVER, OR OTHER PRECIOUS METALS OR THEIR ALLOYS

"5. any circumstance relating to the transaction which is observed to deviate from the profile of the client and/or the clients past transactions with the covered institution; "6. the transaction is in any way related to an unlawful activity or offense under this Act that is about to be, is being or has been committed; or "7. any transaction that is similar or analogous to any of the foregoing." "SEC. 4.Money Laundering Offense. Money laundering is a crime whereby the proceeds of an unlawful activity as herein defined are transacted, thereby making them appear to have originated from legitimate sources. It is committed by the following: (a) Any person knowing that any monetary instrument or property represents, involves, or relates to, the proceeds of any unlawful activity, transacts or attempts to transact said monetary instrument or property. (b) Any person knowing that any monetary instrument or property involves the proceeds of any unlawful activity, performs or fails to perform any act as a result of which he facilitates the offense of money laundering referred to in paragraph (a) above. (c) Any person knowing that any monetary instrument or property is required under this Act to be disclosed and filed with the Anti-Money Laundering Council(AMLC), fails to do so."

Elements: (1) Offender imports, sells or disposes of any of those articles or merchandise (i.e. gold, silver, other precious metals or their alloys) (2) The stamps, brands, or marks of those articles of merchandise fail to indicate the actual fineness or quality of said metals or alloys (3) Offender knows that the stamps, brands, or marks fail to indicate the actual fineness or quality of the metals or alloys. Selling the misbranded articles is not necessary. Article 187 does not apply to manufacturer of misbranded articles he would be liable for estafa under Art. 315(2)(b).
RA 9194 ANTI-MONEY LAUNDERING ACT

Title V. Crimes Relative to Opium and Other Prohibited Drugs


A. B. C. D. Acts Punished Penalties for Unlawful Acts: Definition of Important Terms: Other Important Points.

'Covered transaction' is a transaction in cash or other equivalent monetary instrument involving a total amount in excess of Five hundred thousand pesos (P500,000.00) within one (1) banking day. 'Suspicious transaction' are transactions with covered institutions, regardless of the amounts involved, where any of the following circumstances exist: "1. there is no underlying legal or trade obligation, purpose or economic justification; "2. the client is not properly identified; "3. the amount involved is not commensurate with the business or financial capacity of the client; "4. taking into account all known circumstances, it may be perceived that the clients transaction is structured in order to avoid being the subject of reporting requirements under the Act;

NOTE: Art 190-194 were repealed by RA 6425, known as the Dangerous Drug Act of 1972. RA No. 9165, known as the Comprehensive Dangerous Drug Act of 2002 in turn repealed RA No. 6425
ACTS PUNISHED

(1) Importation of Dangerous Drugs and/or Controlled Precursors and Essential Chemical (Sec. 4) (2) Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of

PAGE 145

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

(3) (4) (5) (6) (7)

(8) (9) (10) (11)

(12) (13) (14)

(15) (16)

Dangerous Drugs and/or Controlled Precursors and Essential Chemicals (Sec. 5) Maintenance of a Den, Dive or Resort. (Sec. 6) Employees and Visitors of a Den, Dive or Resort(Sec. 7) Manufacture of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals (Sec. 8) Illegal Chemical Diversion of Controlled Precursors and Essential Chemicals. (Sec. 9) Manufacture or Delivery of Equipment, Instrument, Apparatus, and Other Paraphernalia for Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. (Sec. 10) Possession of Dangerous Drugs (Sec. 11) Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs (Sec. 12) Possession of Dangerous Drugs During Parties, Social Gatherings or Meetings (Sec. 13) Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs During Parties, Social Gatherings or Meetings(Sec. 14) Use of Dangerous Drugs (Sec. 15) Cultivation or Culture of Plants Classified as Dangerous Drugs or are Sources Thereof. (Sec. 16) Maintenance and Keeping of Original Records of Transactions on Dangerous Drugs and/or Controlled Precursors and Essential Chemicals (Sec. 17) Unnecessary Prescription of Dangerous Drugs(Sec. 18) Unlawful Prescription of Dangerous Drugs (Sec. 19)

(3) The maximum penalty provided for under sections 4, 5, 6, 8 and 16 shall be imposed upon any person, who organizes, manages or acts as a "financier" of any of the illegal activities prescribed in those sections. (4) Any person charged under any provision of this Act regardless of the imposable penalty shall not be allowed to avail of the provision on pleabargaining. Section 23, Article II, RA 9165 Any person convicted for drug trafficking or pushing under this Act, regardless of the penalty imposed by the Court, cannot avail of the privilege granted by the Probation Law or Presidential Decree No. 968, as amended. [Section 24, Article II, RA 9165] Notwithstanding the provisions of any law to the contrary, a positive finding for the use of dangerous drugs shall be a qualifying aggravating circumstance in the commission of a crime by an offender, and the application of the penalty provided for in the Revised Penal Code shall be applicable. [Section 25, Article II, RA 9165] The maximum penalties of the unlawful acts provided for in this Act shall be imposed, in addition to absolute perpetual disqualification from any public office, if those found guilty of such unlawful acts are government officials and employees. [Section 28, Article II, RA 9165] Any person who is found guilty of "planting" any dangerous drug and/or controlled precursor and essential chemical, regardless of quantity and purity, shall suffer the penalty of death. [Section 29, Article II, RA 9165] In case any violation of this Act is committed by a partnership, corporation, association or any juridical entity, the partner, president, director, manager, trustee, estate administrator, or officer who consents to or knowingly tolerates such violation shall be held criminally liable as a co-principal. [Section 30, Article II, RA 9165] In addition to the penalties prescribed in the unlawful act committed, any alien who violates such provisions of this Act shall, after service of sentence, be deported immediately without further proceedings, unless the penalty is death. [Section 31, Article II, RA 9165] Accessory Penalties: A person convicted under this Act shall be disqualified to exercise his/her civil rights such as but not limited to: (1) the rights of parental authority or guardianship, either as to the person or property of any ward

PENALTIES FOR UNLAWFUL ACTS: (1) The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) - Those acts which include or involve any dangerous drugs (Sections 4, 5, 6, 8, 11, 16 and 19) (2) The penalty of twelve (12) years and one (1) day to twenty (20) years of imprisonment and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) (a) Those acts which involve any controlled precursor and essential chemical(Sections 4, 5, 6, 8, 9 and 10) (b) Anyone who acts as a "protector/coddler" of any violator of the provisions under sections 4, 5, 6, 8 and 16 (c) Sections 7, 10, 16, 17.

PAGE 146

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

(2) the rights to dispose of such property by any act or any conveyance inter vivos, (3) and political rights such as but not limited to, (4) the right to vote and be voted for. (5) Such rights shall also be suspended during the pendency of an appeal from such conviction. [Section 35, Article II, RA 9165] 32 possession of marijuana is absorbed in the sale thereof, except where the seller is further apprehended in possession of another quantity of the prohibited drugs not covered by or included in the sale and which are probably intended for some future dealings or use by the seller. [People v. Lacerna] Art. 36 (f), concerning mandatory drug testing for all persons charged with crimes is declared unconstitutional because it violates the right against self-incrimination. Art 36 (g), concerning mandatory drug testing for candidates for public office is also unconstitutional.[SJS v. Dangerous Drugs Board]
DEFINITION OF IMPORTANT TERMS

the fourth degree of consanguinity or affinity, apply to the Board or its duly recognized representative, for treatment and rehabilitation of the drug dependency. Upon such application, the Board shall bring forth the matter to the Court which shall order that the applicant be examined for drug dependency (Section 54, Article VIII, RA 9165). Is there also compulsory confinement? Yes. Notwithstanding any law, rule and regulation to the contrary, any person determined and found to be dependent on dangerous drugs shall, upon petition by the Board or any of its authorized representative, be confined for treatment and rehabilitation in any Center duly designated or accredited for the purpose. A petition for the confinement of a person alleged to be dependent on dangerous drugs to a Center may be filed by any person authorized by the Board with the Regional Trial Court of the province or city where such person is found. (Section 61, Article VIII, RA 9165). How long will the drug dependent be confined for treatment and rehabilitation? Confinement in a Center for treatment and rehabilitation shall not exceed one (1) year, after which time the Court, as well as the Board, shall be apprised by the head of the treatment and rehabilitation center of the status of said drug dependent and determine whether further confinement will be for the welfare of the drug dependent and his/her family or the community (Section 54, Article VIII, RA 9165). How will a drug dependent who is under the voluntary submission program and is finally discharged from confinement in the Center be exempt from criminal liability? (1) He/she has complied with the rules and regulations of the center, the applicable rules and regulations of the Board, including the after-care and follow-up program for at least eighteen (18) months following temporary discharge from confinement in the Center (2) He/she has never been charged or convicted of any offense punishable under this Act, the Dangerous Drugs Act of 1972 or Republic Act No. 6425, as amended; the Revised Penal Code, as amended; or any special penal laws (3) He/she has no record of escape from a Center (4) He/she poses no serious danger to himself/herself, his/her family or the community by his/her exemption from criminal liability (Section 55, Article VIII, RA 916)

Dangerous drugs: include those listed (1) in the Schedules annexed to the 1961 Single Convention on Narcotic Drugs, as amended by the 1972 Protocol, and (2) in the Schedules annexed to the 1971 Single Convention on Psychotropic Substances as enumerated in the attached annex which is an integral part of this Act. [Section 3 (j), RA 9165] Chemical Diversion: The sale, distribution, supply or transport of legitimately imported, in-transit, manufactured or procured controlled precursors and essential chemicals, in diluted, mixtures, or in concentrated form, to any person or entity engaged in the manufactured of any dangerous drugs, and shall include packaging, labelling, or concealment of such transaction. Controlled Precursors and Essential Chemicals: Include those listed in Tables I and II of the 188 UN Convention Against Illicit traffic in Narcotics Drugs and Psychotropic Substances.
OTHER IMPORTANT POINTS

May a drug dependent who is found guilty of the use of dangerous drugs voluntarily submit himself for treatment and rehabilitation? Yes. The drug dependent may, by himself/herself or through his/her parent, spouse, guardian or relative within

PAGE 147

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

What are the functions of the Dangerous Drugs Board? (1) Be the policy-making and strategy-formulating body in the planning and formulation of policies and programs on drug prevention and control. (2) Develop and adopt a comprehensive, integrated, unified and balanced national drug abuse prevention and control strategy. (3) Be under the Office of the President. (Section 77, Article IX, RA 9165) What is the PDEA? The PDEA is the Philippine Drug Enforcement Agency. It serves as the implementing arm of the Dangerous Drugs Board. It shall be responsible for the efficient and effective law enforcement of all the provisions on any dangerous drug and/or controlled precursor and essential chemical as provided in this Act. (Section 82, Article IX, RA 916)

Customs: established usage, social conventions carried on by tradition and enforced by social disapproval of any violation thereof. Grave Scandal: consists of acts which are offensive to decency and good customs which, having committed publicly, have given rise to public scandal to persons who have accidentally witnessed the same. The acts must be performed in a public place or within the public knowledge or view. If it is committed in a private place, the crime of grave scandal is not committed. In conducts involving lasciviousness, it is grave scandal only where there is mutual consent. (Boado, Comprehensive Reviewer in Criminal Law) Any act which is notoriously offensive to decency may bring about criminal liability for the crime of grave scandal, Provided such act does not constitute some other crime under the Revised Penal Code. Grave scandal is a crime of last resort.
ARTICLE 201 - IMMORAL DOCTRINES, OBSCENE PUBLICATIONS AND EXHIBITIONS AND INDECENT SHOWS

Title VI. Crimes against Public Morals


CHAPTER I: Gambling and Betting (1) Gambling (Art 195) (2) Importation, sale and possession of lottery tickets or advertisements (Art 196) (3) Betting in sports contests (Art 197) (4) Illegal betting on horse races (Art 198) (5) Illegal cockfighting (Art 199) CHAPTER II: Offenses against Decency and Good Customs (1) Grave Scandal (Art 200) (2) Immoral doctrines, obscene publications and exhibitions (Art 201) (3) Vagrancy and prostitution (Art 202) CRIMES AGAINST PUBLIC MORALS
ARTICLE 200 - GRAVE SCANDAL

Acts punished (as amended by PD No. 960, 969) (1) Those who shall publicly expound or proclaim doctrines openly contrary to public morals; (2) The authors of obscene literature, published with their knowledge in any form, (3) The editors publishing such literature; (4) The owners/operators of the establishment selling the same; (5) Those who, in theaters, fairs, cinematographs, or any other place, exhibit indecent or immoral plays, scenes, acts, or shows, it being understood that the obscene literature or indecent or immoral plays, scenes, acts or shows, whether live or in film, which are proscribed by virtue hereof, shall include those which: (a) glorify criminals or condone crimes; (b) serve no other purpose but to satisfy the market for violence, lust or pornography; (c) offend any race, or religion; (d) tend to abet traffic in and use of prohibited drugs; and (e) are contrary to law, public order, morals, good customs, established policies, lawful orders, decrees and edicts (6) Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are offensive to morals. MORALS: imply conformity with the generally accepted standards of goodness or rightness in
PAGE 148

Elements: (1) Offender performs an act or acts; (2) Such act or acts be highly scandalous as offending against decency or good customs; (3) The highly scandalous conduct is not expressly falling within any other article of this Code; and (4) The act or acts complained of be committed in a public place or within the public knowledge or view. (Reyes). Decency: means proprietary of conduct; proper observance of the requirements of modesty, good taste, etc.

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

conduct or character, sometimes, specifically, to sexual conduct. Offense in any of the forms mentioned in the article is committed only when there is publicity The test of obscenity: (1) The test is objective. (2) It is more on the effect upon the viewer and not alone on the conduct of the performer. (3) If the material has the tendency to deprave and corrupt the mind of the viewer then the same is obscene and where such obscenity is made publicly, criminal liability arises. (4) As long as the pornographic matter or exhibition is made privately, there is no crime committed under the Revised Penal Code because what is protected is the morality of the public in general. Jurisprudence: Postcards of Philippine inhabitants in native attire were not obscene because the aggregate judgment of the community, and the moral sense of the people were not shocked by those pictures. They were not offensive to chastity but merely depicted persons as they actually lived. [People v Kottinger (1923)] The reaction of the public during the performance of a dance by one who had nothing to cover herself with, except nylon patches over her breasts and too abbreviated pair of nylon panties to interrupt her stark nakedness should be made the gauge in the determination of whether the dance or exhibition was indecent or immoral. [People v Aparici (1955)] An actual exhibition of the sexual act can have no redeeming featureno room for art. Therefore, it is a clear and unmitigated obscenity. [People v Padan (1957)]
ARTICLE

place belonging to another without any lawful or justifiable purpose; and (5) Prostitutes. Prostitutes: women who, for money or profit habitually indulge in sexual intercourse or lascivious conduct Dissolute: lax, unrestrained, immoral Ruffian: brutal, violent, lawless persons Pimp: One who provides gratification for the lust of others Even millionaires or one who has more than enough for his livelihood can commit vagrancy by habitually associating with prostitutes, pimps, ruffians, or by habitually lodging in houses of ill-repute. The purpose of the law is not simply to punish a person because he has no means of livelihood; it is to prevent further criminality. Any person found wandering in an estate belonging to another whether public or private without any lawful purpose also commits vagrancy, unless his acts constitutes some other crime in the Revised Penal Code. The term prostitution is applicable to a woman who for profit or money habitually engages in sexual or lascivious conduct. A man, if he engages in the same conduct sex for money is not a prostitute, but a vagrant. In law, the mere indulging in lascivious conduct habitually because of money or gain would amount to prostitution, even if there is no sexual intercourse. Virginity is not a defense. Habituality is the controlling factor; it has to be more than one time. There cannot be prostitution by conspiracy. One who conspires with a woman in the prostitution business like pimps, taxi drivers or solicitors of clients are guilty of the crime under Article 341 for white slavery. See Special Law: PD 1563 (Mendicancy Law of 1978)
RA 10158: AN ACT DECRIMINALIZING AMENDING ARTICLE 202 OF THE RPC VAGRANCY,

202 - VAGRANCY AND PROSTITUTION (SEE RA

10158) Persons Liable: (1) Any person having no apparent means of subsistence, who has the physical ability to work and who neglects to apply himself or herself to some lawful calling; (2) Any person found loitering about public or semipublic buildings or places or trampling or wandering about the country or the streets without visible means of support; (3) Any idle or dissolute person who lodges in houses of ill fame; ruffians or pimps and those who habitually associate with prostitutes; (4) Any person who, not being included in the provisions of other articles of this Code, shall be found loitering in any inhabited or uninhabited

SECTION 1. Article 202 of the Revised Penal Code is hereby, amended to read as follows: Article 202.Prostitutes; Penalty. For the purposes of this article, women who, for money or profit,
PAGE 149

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

habitually indulge in sexual intercourse or lascivious conduct, are deemed to be prostitutes. Any person found guilty of any of the offenses covered by this article shall be punished by arresto menor or a fine not exceeding 200 pesos, and in case of recidivism, by arresto mayor in its medium period to prision correctional in its minimum period or a fine ranging from 200 to 2,000 pesos, or both, in the discretion of the court. SEC. 2.Effect on Pending Cases. All pending cases under the provisions of Article 202 of the Revised Penal Code on Vagrancy prior to its amendment by this Act shall be dismissed upon effectivity of this Act. SEC. 3.Immediate Release of Convicted Persons. All persons serving sentence for violation of the provisions of Article 202 of the Revised Penal Code on Vagrancy prior to its amendment by this Act shall be immediately released upon effectivity of this Act: Provided, That they are not serving sentence or detained for any other offense or felony. Under the Mendicancy Law of 1978 (PD 1563), (1) one who has no visible and legal means of support, or lawful employment (2) and who is physically able to work but neglects to apply himself to some lawful calling (3) and instead uses begging as a means of living, (4) is a mendicant. Any person who abets mendicancy by giving alms directly to mendicants, exploited infants and minors on public roads, sidewalks, parks and bridges shall be punished by a fine.
P.D. 1602 ANTI-GAMBLING ACT AS AMENDED BY R.A. 9287 ILLEGAL NUMBERS GAME WHICH REPEALED ARTICLES 195-199 OF THE RPC

c) Masiao. - An illegal numbers game where the winning combination is derived from the results of the last game of Jai Alai or the Special Llave portion or any result thereof based on any fictitious Jai Alai game consisting of ten (10) players pitted against one another, and its variants. d) Last Two. - An illegal numbers game where the winning combination is derived from the last two (2) numbers of the first prize of the winning Sweepstakes ticket which comes out during the weekly draw of the Philippine Charity Sweepstakes Office (PCSO), and its variants. e) Bettor ("Mananaya", "Tayador" or variants thereof). - Any person who places bets for himself/herself or in behalf of another person, or any person, other than the personnel or staff of any illegal numbers game operation. f) Personnel or Staff of Illegal Numbers Game Operation. - Any person, who acts in the interest of the maintainer, manager or operator, such as, but not limited to, an accountant, cashier, checker, guard, runner, table manager, usher, watcher, or any other personnel performing such similar functions in a building structure, vessel, vehicle, or any other place where an illegal numbers game is operated or conducted. g) Collector or Agent ("Cabo", "Cobrador", "Coriador" or variants thereof). - Any person who collects, solicits or produces bets in behalf of his/her principal for any illegal numbers game who is usually in possession of gambling paraphernalia. h) Coordinator, Controller or Supervisor ("Encargado" or variants thereof). - Any person who exercises control and supervision over the collector or agent. i) Maintainer, Manager or Operator. - Any person who maintains, manages or operates any illegal number game in a specific area from whom the coordinator, controller or supervisor, and collector or agent take orders. j) Financiers or Capitalist. - Any person who finances the operations of any illegal numbers game. k) Protector or Coddler. - Any person who lends or provides protection, or receives benefits in any manner in the operation of any illegal numbers game.

Sec. 2.Definition of Terms. - As used in this Act, the following terms shall mean: a) Illegal Numbers Game. - Any form illegal gambling activity which uses numbers or combinations thereof as factors in giving out jackpots. b) Jueteng. - An illegal numbers game that involves the combination of thirty-seven (37) numbers against thirty-seven (37) numbers from number one (1) to thirty seven (37) or the combination of thirty-eight (38) numbers in some areas, serving as a form of local lottery where bets are placed and accepted per combination, and its variants.

PAGE 150

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

Punishable Acts Sec. 3. Punishable Acts. - Any person who participates in any illegal numbers game shall suffer the following penalties: a) The penalty of imprisonment from thirty (30) days to ninety (90) days, if such person acts as a bettor; b) The penalty of imprisonment from six (6) years and one (1) day to eight (8) years, if such person acts as a personnel or staff of an illegal numbers game operation; The same penalty shall likewise be imposed to any person who allows his vehicle, house, building or land to be used in the operation of the illegal numbers games. c) The penalty of imprisonment from eight (8) years and one (1) day to ten (10) years, if such person acts as a collector or agent; d) The penalty of imprisonment from ten (10) years and one (1) day to twelve (12) years, if such person acts as a coordinator, controller or supervisor; e) The penalty of imprisonment from twelve (12) years and one (1) day to ten (10) fourteen (14) years, if such person acts as a maintainer, manager or operator; and f) The penalty of imprisonment from fourteen (14) years and one (1) day to sixteen (16) years, if such person acts as a financier or capitalist; g) The penalty of imprisonment from sixteen (16) years and one (1) day to twenty (20) years, if such person acts as protector or coddler. Sec. 4. Possession of Gambling Paraphernalia or Materials. - The possession of any gambling paraphernalia and other materials used in the illegal numbers game operation shall be deemed prima facie evidence of any offense covered by this Act. Sec. 5. Liability of Government Employees and/or Public Officials. - a) If the collector, agent, coordinator, controller, supervisor, maintainer, manager, operator, financier or capitalist of any illegal numbers game is a government employee and/or public official, whether elected or appointed shall suffer the penalty of twelve (12) years and one (1) day to twenty (20) years and a fine ranging from Three million pesos (P3,000,000.00) to Five million pesos (P5,000,000.00) and perpetual absolute disqualification from public office.

In addition to the penalty provided in the immediately preceding section, the accessory penalty of perpetual disqualification from public office shall be imposed upon any local government official who, having knowledge of the existence of the operation of any illegal numbers game in his/her jurisdiction, fails to abate or to take action, or tolerates the same in connection therewith. b) In the case of failure to apprehend perpetrators of any illegal numbers game, any law enforcer shall suffer an administrative penalty of suspension or dismissal, as the case may be, to be imposed by the appropriate authority. Sec. 6.Liability of Parents/Guardians. - The penalty of imprisonment from six (6) months and one (1) day to one (1) year or fine ranging from One hundred thousand pesos (P100,000.00) to Four hundred thousand pesos (P400,000.00) shall be imposed upon any parent, guardian or person exercising moral authority or ascendancy over a minor, ward or incapacitated person, and not otherwise falling under any of the foregoing subsections, who induces or causes such minor, ward or incapacitated person to commit any of the offenses punishable in this Act. Upon conviction, the parent, guardian or person exercising moral authority or ascendancy over the minor, ward or incapacitated person shall be deprived of his/her authority over such person in addition to the penalty imposed. Sec. 7.Recidivism. - The penalty next higher in degree as provided for under Section 3 hereof shall be imposed upon a recidivist who commits any of the offenses punishable in this Act. RA 9208 (ANTI-TRAFFICKING IN PERSONS ACT) Section 4.Acts of Trafficking in Persons. - It shall be unlawful for any person, natural or juridical, to commit any of the following acts: (a) To recruit, transport, transfer; harbor, provide, or receive a person by any means, including those done under the pretext of domestic or overseas employment or training or apprenticeship, for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; (b) To introduce or match for money, profit, or material, economic or other consideration, any person or, as provided for under Republic Act No. 6955, any Filipino woman to a foreign national, for marriage for the purpose of acquiring, buying, offering, selling or trading him/her to engage in

PAGE 151

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; (c) To offer or contract marriage, real or simulated, for the purpose of acquiring, buying, offering, selling, or trading them to engage in prostitution, pornography, sexual exploitation, forced labor or slavery, involuntary servitude or debt bondage; (d) To undertake or organize tours and travel plans consisting of tourism packages or activities for the purpose of utilizing and offering persons for prostitution, pornography or sexual exploitation; (e) To maintain or hire a person to engage in prostitution or pornography; (f) To adopt or facilitate the adoption of persons for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; (g) To recruit, hire, adopt, transport or abduct a person, by means of threat or use of force, fraud, deceit, violence, coercion, or intimidation for the purpose of removal or sale of organs of said person; and (h) To recruit, transport or adopt a child to engage in armed activities in the Philippines or abroad. Section 5.Acts that Promote Trafficking in Persons. The following acts which promote or facilitate trafficking in persons, shall be unlawful: (a) To knowingly lease or sublease, use or allow to be used any house, building or establishment for the purpose of promoting trafficking in persons; (b) To produce, print and issue or distribute unissued, tampered or fake counseling certificates, registration stickers and certificates of any government agency which issues these certificates and stickers as proof of compliance with government regulatory and predeparture requirements for the purpose of promoting trafficking in persons; (c) To advertise, publish, print, broadcast or distribute, or cause the advertisement, publication, printing, broadcasting or distribution by any means, including the use of information technology and the internet, of any brochure, flyer, or any propaganda material that promotes trafficking in persons; (d) To assist in the conduct of misrepresentation or fraud for purposes of facilitating the acquisition of clearances and necessary exit documents from government agencies that are mandated to provide

pre-departure registration and services for departing persons for the purpose of promoting trafficking in persons; (e) To facilitate, assist or help in the exit and entry of persons from/to the country at international and local airports, territorial boundaries and seaports who are in possession of unissued, tampered or fraudulent travel documents for the purpose of promoting trafficking in persons; (f) To confiscate, conceal, or destroy the passport, travel documents, or personal documents or belongings of trafficked persons in furtherance of trafficking or to prevent them from leaving the country or seeking redress from the government or appropriate agencies; and (g) To knowingly benefit from, financial or otherwise, or make use of, the labor or services of a person held to a condition of involuntary servitude, forced labor, or slavery. Section 6.Qualified Trafficking in Persons. - The following are considered as qualified trafficking: (a) When the trafficked person is a child; (b) When the adoption is effected through Republic Act No. 8043, otherwise known as the "Inter-Country Adoption Act of 1995" and said adoption is for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage; (c) When the crime is committed by a syndicate, or in large scale. Trafficking is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring or confederating with one another. It is deemed committed in large scale if committed against three (3) or more persons, individually or as a group; (d) When the offender is an ascendant, parent, sibling, guardian or a person who exercises authority over the trafficked person or when the offense is committed by a public officer or employee; (e) When the trafficked person is recruited to engage in prostitution with any member of the military or law enforcement agencies; (f) When the offender is a member of the military or law enforcement agencies; and (g) When by reason or on occasion of the act of trafficking in persons, the offended party dies,

PAGE 152

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

becomes insane, suffers mutilation or is afflicted with Human Immunodeficiency Virus (HIV) or the Acquired Immune Deficiency Syndrome (AIDS). Section 7.Confidentiality. - At any stage of the investigation, prosecution and trial of an offense under this Act, law enforcement officers, prosecutors, judges, court personnel and medical practitioners, as well as parties to the case, shall recognize the right to privacy of the trafficked person and the accused. Towards this end, law enforcement officers, prosecutors and judges to whom the complaint has been referred may, whenever necessary to ensure a fair and impartial proceeding, and after considering all circumstances for the best interest of the parties, order a closed-door investigation, prosecution or trial. The name and personal circumstances of the trafficked person or of the accused, or any other information tending to establish their identities and such circumstances or information shall not be disclosed to the public. In cases when prosecution or trial is conducted behind closed-doors, it shall be unlawful for any editor, publisher, and reporter or columnist in case of printed materials, announcer or producer in case of television and radio, producer and director of a film in case of the movie industry, or any person utilizing tri-media facilities or information technology to cause publicity of any case of trafficking in persons. Section 10.Penalties and Sanctions. - The following penalties and sanctions are hereby established for the offenses enumerated in this Act: (a) Any person found guilty of committing any of the acts enumerated in Section 4 shall suffer the penalty of imprisonment of twenty (20) years and a fine of not less than One million pesos (P1,000,000.00) but not more than Two million pesos (P2,000,000.00); (b) Any person found guilty of committing any of the acts enumerated in Section 5 shall suffer the penalty of imprisonment of fifteen (15) years and a fine of not less than Five hundred thousand pesos (P500,000.00) but not more than One million pesos (P1,000,000.00); (c) Any person found guilty of qualified trafficking under Section 6 shall suffer the penalty of life imprisonment and a fine of not less than Two million pesos (P2,000,000.00) but not more than Five million pesos (P5,000,000.00); (d) Any person who violates Section 7 hereof shall suffer the penalty of imprisonment of six (6) years and a fine of not less than Five hundred thousand pesos (P500,000.00) but not more than One million pesos (P1,000,000.00);

(e) If the offender is a corporation, partnership, association, club, establishment or any juridical person, the penalty shall be imposed upon the owner, president, partner, manager, and/or any responsible officer who participated in the commission of the crime or who shall have knowingly permitted or failed to prevent its commission; (f) The registration with the Securities and Exchange Commission (SEC) and license to operate of the erring agency, corporation, association, religious group, tour or travel agent, club or establishment, or any place of entertainment shall be cancelled and revoked permanently. The owner, president, partner or manager thereof shall not be allowed to operate similar establishments in a different name; (g) If the offender is a foreigner, he shall be immediately deported after serving his sentence and be barred permanently from entering the country; (h) Any employee or official of government agencies who shall issue or approve the issuance of travel exit clearances, passports, registration certificates, counseling certificates, marriage license, and other similar documents to persons, whether juridical or natural, recruitment agencies, establishments or other individuals or groups, who fail to observe the prescribed procedures and the requirement as provided for by laws, rules and regulations, shall be held administratively liable, without prejudice to criminal liability under this Act. The concerned government official or employee shall, upon conviction, be dismissed from the service and be barred permanently to hold public office. His/her retirement and other benefits shall likewise be forfeited; and (i) Conviction by final judgment of the adopter for any offense under this Act shall result in the immediate rescission of the decree of adoption. Section 11.Use of Trafficked Persons. - Any person who buys or engages the services of trafficked persons for prostitution shall be penalized as follows: (a) First offense - six (6) months of community service as may be determined by the court and a fine of Fifty thousand pesos (P50,000.00); and (b) Second and subsequent offenses - imprisonment of one (1) year and a fine of One hundred thousand pesos (P100,000.00). Section 17.Legal Protection to Trafficked Persons. Trafficked persons shall be recognized as victims of

PAGE 153

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

the act or acts of trafficking and as such shall not be penalized for crimes directly related to the acts of trafficking enumerated in this Act or in obedience to the order made by the trafficker in relation thereto. In this regard, the consent of a trafficked person to the intended exploitation set forth in this Act shall be irrelevant. Note Sec. 17: Persons trafficked (including prostitutes) are exempt from criminal liability. Note also: Under RA 9208, persons who hire trafficked persons are criminally liable. Not so in Art 202 RPC.

(3) Article 219 - Failure of a Responsible Public Officer to Render Accounts Before Leaving the Country (4) Article 220 - Illegal Use of Public Funds or Property (5) Article 221 - Failure to Make Delivery of Public Funds or Property (6) Article 222 - Officers Included in the Preceding Provisions Chapter 5: Infidelity of Public Officers (1) Article 223 - Conniving With or Consenting to Evasion (2) Article 224 - Evasion through Negligence (3) Article 225 - Escape of Prisoner under the Custody of a Person Not a Public Officer (4) Article 226 - Removal, Concealment, or Destruction of Documents (5) Article 227 - Officer Breaking Seal (6) Article 228 - Opening of Closed Documents (7) Article 229 - Revelation of Secrets by an Officer (8) Article 230 - Public Officers Revealing Secrets of Private Individuals Chapter 6: Other Offenses and Irregularities by Public Officers (1) Article 231 - Open Disobedience (2) Article 232 - Disobedience to the Order of Superior Officer When Said Order Was Suspended by Inferior Officer (3) Article 233 - Refusal of Assistance (4) Article 234 - Refusal to Discharge Elective Office (5) Article 235 - Maltreatment of Prisoners (6) Article 236 - Anticipation of Duties of a Public Officer (7) Article 237 - Prolonging Performance of Duties and Powers (8) Article 238 - Abandonment of Office or Position (9) Article 239 - Usurpation of Legislative Powers (10) Article 240 - Usurpation of Executive Functions (11) Article 241 - Usurpation of Judicial Functions (12) Article 242 - Disobeying Request for Disqualification (13) Article 243 - Orders or Request by Executive Officer to Any Judicial Authority (14) Article 244 - Unlawful Appointments (15) Article 245 - Abuses against Chastity. Remember: This is one of the instances where the Revised Penal Code may be given extra-territorial application under Article 2 (5) thereof. Crimes under this title can be committed by public officers or a non-public officer, when the latter become a conspirator with a public officer, or an

Title VII. Crimes Committed by Public Officers


Chapter 1: Preliminary Provisions (1) Article 203 - Who Are Public Officers Chapter 2: Malfeasance and Misfeasance in Office (1) Article 204 - Knowingly Rendering Unjust Judgment (2) Article 205 - Judgment Rendered Through Negligence (3) Article 206 - Unjust Interlocutory Order (4) Article 207 - Malicious Delay in the Administration of Justice (5) Article 208 - Prosecution of Offenses; Negligence and Tolerance (6) Article 209 - Betrayal of Trust by an Attorney or a Solicitor - Revelation of Secrets (7) Article 210 - Direct Bribery (8) Article 211 - Indirect Bribery (9) Article 211-A - Qualified Bribery (10) Article 212 - Corruption of Public Officials (11) Article 214 - Other Frauds Chapter 3: Frauds and Illegal Exactions and Transactions (1) Article 213 - Fraud against the Public Treasury and Similar Offenses (2) Article 215 - Prohibited Transactions (3) Article 216 - Possession of Prohibited Interest by a Public Officer Chapter 4: Malversation of Public Funds and Properties (1) Article 217 - Malversation of Public Funds or Property - Presumption of Malversation (2) Article 218 - Failure of Accountable Officer to Render Accounts

PAGE 154

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

accomplice, or accessory to the crime. The public officer has to be the principal. CHAPTER I PRELIMINARY PROVISIONS
ARTICLE 203 - WHO ARE PUBLIC OFFICERS

him for decision; (3) Judgment is unjust; (4) The judge knows that his judgment is unjust. Defense: Mere error in good faith. An unjust judgment is one which is contrary to law or is not supported by the evidence, or both. There must be positive evidence imputing an unjust judgment; presumption will not suffice. The offense refers only to a judgment of an individual judge in his court, and not to the judgment rendered in a collegial court by the members thereof [In Re: Wenceslao Laureta (1987)] Before a criminal action against a judge for violation of Articles 204 and 205 can be entertained, there must be a trial or authoritative judicial declaration that his decision or order is really unjust which may result from either an action of certiorari or prohibition in a higher court. [De Vera v. Pelayo (2000)]
ARTICLE 205 NEGLIGENCE

Requisites: (1) Taking part in the performance of public functions in the government; (2) Performing in said government or in any of its branches public duties as an employee, agent or subordinate official, or any rank or class; (3) His authority to take part in the performance of public functions or to perform public duties must be (a) By direct provision of the law; (b) By popular election; or (c) By appointment by competent authority. The term public officers embraces every public servant from the highest to lowest. Officers and employees of government owned and controlled corporations included but not those of a sequestered corporation. The better rule is that GOCCs created by law are covered while GOCCs registered with the SEC (including sequestered companies) are not. [Macalino v. Sandiganbayan] The more recent case of People v. Sandiganbayan held that, based on RA 8249, presidents, directors, trustees, and managers of all GOCCs, regardless of type, are subject to the jurisdiction of the Sandiganbayan when they are involved in graft and corruption. CHAPTER II: MALFEASANCE AND MISFEASANCE IN OFFICE Malfeasance (see Arts 210 and 211) Misfeasance (see Arts 204 to 207) Nonfeasance Art 208) (see Doing of an act which a public officer should not have done Improper doing of an act which a person might lawfully do Failure of an agent to perform his undertaking for the principal

- JUDGMENT RENDERED THROUGH

Elements: (1) Offender is a judge; (2) He renders a judgment in a case submitted to him for decision; (3) The judgment is manifestly unjust; (4) It is due to his inexcusable negligence or ignorance. A manifestly unjust judgment is one which is so manifestly contrary to law that even a person having basic knowledge of the law cannot doubt the injustice. Abuse of discretion or mere error of judgment, not punishable. The Supreme Court held that a judgment is said to be unjust when it is contrary to the standards of conduct prescribed by law. The test to determine whether an order or judgment is unjust may be inferred from the circumstances that it is contrary to law or is not supported by evidence. [Louis Vuitton SA v. Judge Villanueva]
ARTICLE 206 - UNJUST INTERLOCUTORY ORDER

ARTICLE 204 JUDGMENT

- KNOWINGLY RENDERING UNJUST

Elements: (1) Offender is a judge; (2) He renders a judgment in a case submitted to

Elements: (1) Offender is a judge; (2) He performs any of the following acts: (a) Knowingly rendering an unjust interlocutory order or decree; or (b) Rendering a manifestly unjust interlocutory

PAGE 155

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

order or decree through negligence or ignorance.

inexcusable

ARTICLE 209 BETRAYAL OF TRUST BY AN ATTORNEY OR A SOLICITOR REVELATION OF SECRETS

If the order leaves something to be done in the trial court with respect to the merits of the case, it is interlocutory. If it does not, it is final. The unjust interlocutory order must have been issued by the judge with deliberate intent to cause damage to the party concerned.
ARTICLE 207 - MALICIOUS DELAY IN THE ADMINISTRATION OF JUSTICE

Elements: (1) Offender is a judge; (2) There is a proceeding in his court; (3) He delays in the administration of justice; (4) The delay is malicious, that is, with deliberate intent to inflict damage on either party in the case. Malice must be proven. Malice is present where the delay is sought to favor one party to the prejudice of the other. Mere delay without malice is not a felony under this provision.
ARTICLE 208 - PROSECUTION OF OFFENSES; NEGLIGENCE AND TOLERANCE

Elements: (1) Causing damage to his client, either (a) By any malicious breach of professional duty; (b) By inexcusable negligence or ignorance. (2) Revealing any of the secrets of his client learned by him in his professional capacity (damage is not necessary); (3) Undertaking the defense of the opposing party in the same case, without the consent of his first client, (a) after having undertaken the defense of said first client, or (b) after having received confidential information from said client. When the attorney acts with malicious abuse of his employment or inexcusable negligence or ignorance, there must be damage to his client. Communications made with prospective clients to a lawyer with a view to engaging his professional services are already privileged even though the client-lawyer relationship did not eventually materialize. The confidential matters or information must be confided to the lawyer in the latters professional capacity. Mere malicious breach without damage is not a violation of Article 209; at most he will be liable administratively as a lawyer, e.g., suspension or disbarment under the Code of Professional Responsibility. Modes of Commission: (1) Maliciously causing damage to his client through a breach of his professional duty. Note: The breach of professional duty must be malicious. If it is just incidental, it would not give rise to criminal liability, although it may be the subject of administrative discipline; (2) Through gross ignorance, causing damage to the client; (3) Inexcusable negligence; (4) Revelation of secrets learned in his professional capacity; (5) Undertaking the defense of the opposite party in a case without the consent of the first client whose defense has already been undertaken.

Mode 1. Maliciously refraining from instituting prosecution against violators of the law; Mode 2. Maliciously tolerating the commission of offenses. Elements: (1) Offender is a public officer or officer of the law who has a duty to cause the prosecution of, or to prosecute, offenses; (2) There is a dereliction of the duties of his office, that is, knowing the commission of the crime, he does not cause the prosecution of the criminal, or knowing that a crime is about to be committed, he tolerates its commission; (3) Offender acts with malice and deliberate intent to favor the violator of the law. This crime can only be committed by a public officer whose official duty is to prosecute offenders. Ex. Chief of police, barrio captain and fiscal. The crime committed by the law violator must be proved first. [US v. Mendoza] Also known as prevaricacion.

PAGE 156

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

The Supreme Court held that not all information received by counsel from client is classified as privileged. A distinction must be made between confidential communications relating to past crimes already committed, and future crimes intended to be committed by the client. [People v. Sandiganbayan]
ARTICLE 210 - DIRECT BRIBERY

not fall under corruption of public officials due to the involuntariness of the act). In the FIRST MODE of bribery, actual receipt of the gift is not necessary. An accepted offer or promise of a gift is sufficient. However, if the offer is not accepted, only the person offering the gift is liable for attempted corruption of a public officer. In the SECOND MODE of bribery, the gift must be accepted by the public officer. The GIFT must have a value or capable of pecuniary estimation. It could be in the form of money, property or services. It cannot consist of a mere offer or promise of a gift. If the act required of the public officer amounts to a crime and he commits it, he shall be liable for the penalty corresponding to the crime. The THIRD MODE of bribery and prevaricacion (art 208) are similar offenses, both consisting of omission of an act required to be performed. In direct bribery however, a gift or promise is given in consideration of the omission. This is not necessary in prevaricacion. Direct bribery does not absorb Art. 208 (dereliction of duty). See Qualified Bribery (211-A) Police Sergeant Malfrosque asked and accepted money in exchange for the recovery of the reported stolen gas tanks to the owners. This made him liable under the 2nd mode of Art 210 since in the act of returning the gas tanks to the owners does not constitute a crime; he demanded money and said act was in connection with the performance of his duty as a policeman. [People v. Malfrosque (2004)]
ARTICLE 211 - INDIRECT BRIBERY

Mode 1.

Mode 2.

Mode 3.

Agreeing to perform, or performing, in consideration of any offer, promise, gift or present; an act constituting a crime, in connection with the performance of his official duties; Accepting a gift in consideration of the execution of an act which does not constitute a crime, in connection with the performance of his official duty; Agreeing to refrain, or by refraining, from doing something which is his official duty to do, in consideration of gift or promise.

Elements: (1) Offender is a public officer within the scope of Article 203; (2) Offender accepts an offer or a promise or receives a gift or present by himself or through another; (3) Such offer or promise be accepted, or gift or present received by the public officer (a) With a view to committing some crime; or (b) In consideration of the execution of an act which does not constitute a crime, but the act must be unjust; or (c) To refrain from doing something which it is his official duty to do. (4) The act which offender agrees to perform or which he executes be connected with the performance of his official duties. The crime of bribery has no frustrated stage. If one party does not concur, then there is no agreement and not all the acts necessary to commit the crime were present. Temporary performance of public functions is sufficient to constitute a person a public officer. Bribery exists when the gift is: (1) voluntarily offered by a private person; (2) solicited by the public officer and voluntarily delivered by the private person; (3) solicited by the public officer but the private person delivers it out of fear of the consequences should the public officer perform his functions (here the crime by the giver does
PAGE 157

Elements: (1) Offender is a public officer; (2) He accepts gifts; (3) The gifts are offered to him by reason of his office. The principal distinction between direct and indirect bribery is that in the former, the officer agrees to perform or refrain from doing an act in consideration of the gift or promise.

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

In the latter case, it is not necessary that the officer do any act. It is sufficient that he accepts the gift offered by reason of his office. If after receiving the gift, the officer does any act in favor of the giver which is unfair to the others, the crime continues to be indirect bribery. Precisely the evil of indirect bribery is in its tendency to produce future, unspecified, and unwarranted favors from the official. This is always in the consummated stage. There is no attempted much less frustrated stage in indirect bribery. There must be clear intention on the part of the public officer: (1) to take the gift offered and (2) consider the property as his own for that moment. Mere physical receipt unaccompanied by any other sign, circumstance or act to show such acceptance is not sufficient to convict the officer. Public officers receiving gifts and private persons giving gifts on any occasion, including Christmas are liable under PD 46.
ARTICLE 211-A - QUALIFIED BRIBERY

Dacumas v. Sandiganbayan expanded the meaning of official duties. It included those which may be in ones capacity to perform by reason of his office.
ARTICLE 212 - CORRUPTION OF PUBLIC OFFICIALS

Elements: (1) Offender makes offers or promises or gives gifts or presents to a public officer; (2) The offers or promises are made or the gifts or presents given to a public officer, under circumstances that will make the public officer liable for direct bribery or indirect bribery. The offender is the giver of the gift or the offeror of the promise. The act may or may not be accomplished. CHAPTER III: FRAUDS AND ILLEGAL EXACTIONS AND TRANSACTIONS
ARTICLE 213 - FRAUD AGAINST THE PUBLIC TREASURY AND SIMILAR OFFENSES

Mode 1

Elements: (1) Offender is a public officer entrusted with law enforcement; (2) He refrains from arresting or prosecuting an offender who has committed a crime punishable by reclusion perpetua and/or death; (3) Offender refrains from arresting or prosecuting in consideration of any offer, promise, gift, or present. The crime of qualified bribery may be committed only by public officers entrusted with enforcement (those whose official duties authorize them to arrest or prosecute offenders). The penalty is qualified if the public officer is the one who asks or demands such present. If the penalty imposed is lower than reclusion perpetua and/or death had the offender been arrested or the crime prosecuted, the crime is direct bribery. The dereliction of the duty punished under Article 208 of the Revised Penal Code is absorbed in Qualified Bribery.
PAGE 158

Entering into an agreement with any interested party or speculator or making use of any other scheme, to defraud the government, in dealing with any person with regard to furnishing supplies, the making of contracts, or the adjustment or settlement of accounts relating to public property or funds; Demanding, directly or indirectly, the payment of sums different from or larger than those authorized by law, in collection of taxes, licenses, fees, and other imposts; Failing voluntarily to issue a receipt, as provided by law, for any sum of money collected by him officially, in the collection of taxes, licenses, fees and other imposts;

Mode 2

Mode 3

Mode 4 Collecting or receiving, directly or indirectly, by way of payment or otherwise, things or objects of a nature different from that provided by law, in the collection of taxes, licenses, fees and other imposts. Elements of Fraud against Public Treasury (par.1): (1) That the offender is a public officer (2) That he should have taken advantage of his public office, that is, he intervened in the transaction in his official capacity (3) That he entered into an agreement with any interested party or speculator or made use of any other scheme with regard to:

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

(a) Furnishing supplies (b) The making of contracts (c) The adjustment or settlement of accounts relating to public property or funds Consummated by merely entering into agreement with any interested party or speculator or by merely making use of other scheme to defraud the government. It is not necessary that the Government is actually defrauded by the reason of the transaction Elements of Illegal Exactions (par.2.): (1) That the offender is a public officer entrusted with the collection of taxes, licenses, fees and other imports; (2) He is guilty of the following acts or omissions: (a) Demanding directly or indirectly, the payment of sums of different from or larger than those authorized by law; (b) Failing voluntarily to issue a receipt as provided by law, for ay sum of money collected by him officially; or (c) Collecting or receiving, directly or indirectly, by way of payment or otherwise, things or object of a nature different from that provided by law This can only be committed principally by a public officer whose official duty is to collect taxes, license fees, import duties and other dues payable to the government. Mere demand of a larger or different amount is sufficient to consummate the crime. The essence is the improper collection (damage to government is not required). The act of receiving payment due the government without issuing a receipt will give rise to illegal exaction even though a provisional receipt has been issued. What the law requires is a receipt in the form prescribed by law, which means official receipt. If sums are received without demanding the same, a felony under this article is not committed. However, if the sum is given as a sort of gift or gratification, the crime is indirect bribery. When there is deceit in demanding a greater fee than those prescribed by law, the crime committed is estafa and not illegal exaction. Illegal exaction may be complexed with malversation if illegal exaction was committed as a necessary means to commit malversation.

Officers and employees of the BIR or Customs are not covered by the article. The NIRC or the Revised Administrative Code is the applicable law.
ARTICLE 214 - OTHER FRAUDS

Elements: (1) Offender is a public officer; (2) He takes advantage of his official position; (3) He commits any of the frauds or deceits enumerated in Article 315 to 318 (estafa, other forms of swindling, swindling a minor, other deceits). Additional penalty of temporary special disqualification in its maximum period to perpetual special disqualification, apart from the penalties imposed in Arts 315-318.
ARTICLE 215 - PROHIBITED TRANSACTIONS

Elements: (1) Offender is an appointive public officer; (2) He becomes interested, directly or indirectly, in any transaction of exchange or speculation; (3) The transaction takes place within the territory subject to his jurisdiction; (4) He becomes interested in the transaction during his incumbency. Examples of transactions of exchange or speculation are: buying and selling stocks, commodities, land etc wherein one hopes to take advantage of an expected rise or fall in price Purchasing of stocks or shares in a company is simple investment and not a violation of the article. However, regularly buying securities for resale is speculation. The offender may also be held liable under RA 3019 Sec 3(i).
ARTICLE 216 - POSSESSION OF PROHIBITED INTEREST BY A PUBLIC OFFICER

Persons liable: (1) Public officer who, directly or indirectly, became interested in any contract or business in which it was his official duty to intervene; (2) Experts, arbitrators, and private accountants who, in like manner, took part in any contract or transaction connected with the estate or property in the appraisal, distribution or adjudication of which they had acted; (3) Guardians and executors with respect to the property belonging to their wards or the estate.

PAGE 159

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

Fraud is not necessary. Intervention must be by virtue of the public office held. The basis here is the possibility that fraud may be committed or that the officer may place his own interest above that of the government or party he represents. CHAPTER IV: MALVERSATION FUNDS OR PROPERTY OF PUBLIC

If the public officer is not accountable for the funds or property but someone else is, the crime committed is theft or qualified theft if there is an abuse of confidence. Returning the malversed funds is not exempting, it is only mitigating. A person whose negligence made possible the commission of malversation by another can be held liable as a principal by indispensable cooperation Demand as well as damage to the government are not necessary elements A private person may also commit malversation under the following situations: (1) Conspiracy with a public officer in committing malversation; (2) When he has become an accomplice or accessory to a public officer who commits malversation; (3) When the private person is made the custodian in whatever capacity of public funds or property, whether belonging to national or local government, and he misappropriates the same; (4) When he is constituted as the depositary or administrator of funds or property seized or attached by public authority even though said funds or property belong to a private individual. Technical malversation (Article 220) is not included in the crime of malversation. Presumption of misappropriation: When a demand is made upon an accountable officer and he cannot produce the fund or property involved, there is a prima facie presumption that he had converted the same to his own use. There must be indubitable proof that thing unaccounted for exists. Audit should be made to determine if there was shortage. Audit must be complete and trustworthy. If there is doubt, presumption does not arise. The accused incurred shortage (P1.74) mainly because the auditor disallowed certain cash advances the accused granted to employees. But on the same date that the audit was made, he partly reimbursed the amount and paid it in full three days later. The Supreme Court considered the circumstances as negative of criminal intent. The cash advances were made in good faith and out of good will to coemployees which was a practice tolerated in the

ARTICLE 217 - MALVERSATION OF PUBLIC FUNDS OR PROPERTY - PRESUMPTION OF MALVERSATION

Mode 1. Mode 2. Mode 3.

Appropriating public funds or property; Taking or misappropriating the same; Consenting, or through abandonment or negligence, permitting any other person to take such public funds or property; and Being otherwise guilty of the misappropriation or malversation of such funds or property.

Mode 4.

Elements common to all modes: (1) Offender is a public officer; (2) He had the custody or control of funds or property by reason of the duties of his office; (3) Those funds or property were public funds or property for which he was accountable; (4) He appropriated, took, misappropriated or consented or, through abandonment or negligence, permitted another person to take them. Malversation is also called embezzlement. The public officer must have official custody or the duty to collect or receive funds due the government, or the obligation to account for them. It is not necessary that the offender profited for as long as the accountable officer was remiss in his duty of safekeeping public funds or property. He is liable for malversation if such funds were lost or otherwise misappropriated by another. It can be committed either with malice or through negligence or imprudence. This is one crime in the Revised Penal Code where the penalty is the same whether committed with dolo or through culpa. The nature of the duties of the public officer, not the name of the office, is controlling. The funds or property must be received in an official capacity. Otherwise, the crime committed is estafa.
PAGE 160

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

office. There was no negligence, malice, nor intent to defraud. [Quizo v. Sandiganbayan] Malversation (Art. 217) Estafa with Abuse of Confidence (Art. 315) are

Demand for accounting is not necessary. It is also not essential that there be misappropriation because if present, the crime would be malversation.
ARTICLE 219 - FAILURE OF A RESPONSIBLE PUBLIC OFFICER TO RENDER ACCOUNTS BEFORE LEAVING THE COUNTRY

Funds or property usually Funds/property public always private

Offender is usually a public Offender is a private officer who is accountable for individual or even a the public funds/property public officer who is not accountable for public funds/property Crime is committed by appropriating, taking, or misappropriating/consenting or through abandonment or negligence, permitting any other person to take the public funds/property No element of damage. Demand not necessary. Crime is committed by misappropriating, converting, or denying having received money, goods or other personal property There is damage. There is a need for prior demand.

Elements: (1) Offender is a public officer; (2) He is an accountable officer for public funds or property; (3) He unlawfully leaves or attempts to leave the Philippine Islands without securing a certificate from the Commission on Audit showing that his accounts have been finally settled. The act of leaving the country must be unauthorized or not permitted by law. The purpose of the law is to discourage responsible or accountable officers from leaving without first liquidating their accountability. It is not necessary that they really misappropriated public funds.
ARTICLE 220 PROPERTY

- ILLEGAL USE OF PUBLIC FUNDS OR

A routine government audit was conducted in WaAcons office and it was discovered that the sacks of rice entrusted to him for safekeeping were missing. Art 217 no longer requires proof by the State that the accused actually appropriated, took, or misappropriated public funds or property; instead, a presumption, though disputable and rebuttable, was installed upon demand by any duly authorized officer, the failure of a public officer to have duly forthcoming any public funds or property which said officer is accountable for should be prima facie evidence that he had put such missing funds or properties to personal use. [People v. Wa-Acon (2006)]
ARTICLE 218 - FAILURE OF ACCOUNTABLE OFFICER TO RENDER ACCOUNTS

Elements: (1) Offender is a public officer; (2) There are public funds or property under his administration; (3) Such fund or property were appropriated by law or ordinance; (4) He applies such public fund or property to any public use other than for which it was appropriated for. Illegal use of public funds or property is also known as technical malversation. The term technical malversation is used because in this crime, the fund or property involved is already appropriated or earmarked for a certain public purpose. Regardless of damage or embarrassment to the public service. Malversation (Art. 217) The offender misappropriates public funds or property for his own personal use, or allows any other person to take such funds or property for the latters own personal use. Technical malversation (Art. 220) The public officer applies the public funds or property under his administration to another public use different from that for which the public fund was appropriated by law or ordinance.

Elements: (1) Offender is public officer, whether in the service or separated therefrom by resignation or any other cause; (2) He is an accountable officer for public funds or property; (3) He is required by law or regulation to render account to the Commission on Audit, or to a provincial auditor; (4) He fails to do so for a period of two months after such accounts should be rendered.

PAGE 161

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

ARTICLE 221 - FAILURE TO MAKE DELIVERY OF PUBLIC FUNDS OR PROPERTY

Mode 1.

Failing to make payment by a public officer who is under obligation to make such payment from government funds in his possession; Refusing to make delivery by a public officer who has been ordered by competent authority to deliver any property in his custody or under his administration.

Classes of prisoners involved (1) Those who have been sentenced by final judgment to any penalty; (2) Detention prisoners who are temporarily held in custody for any crime or violation of law or municipal ordinance. This includes allowing prisoners to sleep and eat in the officers house or utilizes the prisoners services for domestic chores. The release of a detention prisoner who could not be delivered to judicial authorities within the time fixed by law is not infidelity in the custody of a prisoner.
ARTICLE 224 - EVASION THROUGH NEGLIGENCE

Mode 2.

Elements: (1) Public officer has government funds in his possession; (2) He is under obligation to either: (a) make payment from such funds; (b) to deliver any property in his custody or under his administration (3) He maliciously fails to make the payment or refuses to make delivery. (4) He maliciously fails to make the payment.
ARTICLE 222 PROVISIONS

Elements: (1) Offender is a public officer; (2) He is charged with the conveyance or custody of a prisoner or prisoner by final judgment; (3) Such prisoner escapes through negligence. This covers only positive carelessness and definite laxity which amounts to deliberate non-performance of duties. The fact that the public officer recaptured the prisoner who had escaped from his custody does not afford complete exculpation. The liability of an escaping prisoner: (1) If he is a prisoner by final judgment, he is liable for evasion of service (Art. 157) (2) If he is a detention prisoner, he does not incur criminal liability (unless cooperating with the offender).
ARTICLE 225 - ESCAPE OF PRISONER UNDER THE CUSTODY OF A PERSON NOT A PUBLIC OFFICER

- OFFICERS INCLUDED IN THE PRECEDING

(1) Private individual who, in any capacity, have charge of any national, provincial or municipal funds, revenue, or property (2) Administrator or depositary of funds or property that has been attached, seized or deposited by public authority, even if owned by a private individual. Sheriffs and receivers fall under the term administrator. A judicial administrator in charge of settling the estate of the deceased is not covered by the article. Private property is included, provided it is (1) attached, (2) seized or (3) deposited by public authority. CHAPTER V: INFIDELITY OF PUBLIC OFFICERS
ARTICLE EVASION

223 - CONNIVING WITH OR CONSENTING TO

Elements: (1) Offender is a private person; (2) The conveyance or custody of a prisoner or person under arrest is confided to him; (3) The prisoner or person under arrest escapes; (4) Offender consents to the escape, or that the escape takes place through his negligence. If the offender who aided or consented to the prisoners escaping from confinement, whether the prisoner is a convict or a detention prisoner, is not the custodian, the crime is delivering prisoners from jail under Article 156. The party who is not the custodian but who conspired with the custodian in allowing the prisoner to escape does not commit infidelity in the custody of the prisoner.

Elements: (1) Offender is a public officer; (2) He had in his custody or charge a prisoner, either detention prisoner or prisoner by final judgment; (3) Such prisoner escaped from his custody; (4) He was in connivance with the prisoner in the latters escape. (shall consent to the escape).

PAGE 162

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

Art. 225 not applicable if a private person was the one who made the arrest and he consented to the escape of the person he arrested. Policeman Rodillas escorted detained prisoner Sacris to the court. After the court adjourned he let her eat lunch with her family, permitted her to go to the ladies washroom unescorted and after her escape, did not report it immediately to his superiors, instead he went around looking for her. SC held that he is guilty of the crime in Art 224 for being negligent in the performance of his duties which made the escape of Sacris possible. [People v. Rodillas]
ARTICLE 226 - REMOVAL, CONCEALMENT, OR DESTRUCTION OF DOCUMENTS

Damage to public interest is necessary. However, material damage is not necessary. Removal is consummated upon taking or secreting away of the document from its usual place. It is immaterial whether or not the illicit purpose of the offender has been accomplished. This could cover failure on the part of the post office to forward the letters to their destination. Damage in this article may consist in mere alarm to the public or in the alienation of its confidence in any branch of the government service.
ARTICLE 227 - OFFICER BREAKING SEAL

Revelation Of Secrets By An Removal, Concealment or Officer (Art. 229) Destruction of Documents (Art. 226) The papers contain secrets The papers do not contain and therefore should not secrets but their removal is be published, and the for an illicit purpose. public officer having charge thereof removes and delivers them wrongfully to a third person. Elements: (1) Offender is a public officer; (2) He abstracts, destroys or conceals a document or papers; (3) Said document or papers should have been entrusted to such public officer by reason of his office; (4) Damage, whether serious or not, to a third party or to the public interest has been caused. Can only be committed by the public officer who is made the custodian of the document in his official capacity. If the officer was placed in possession of the document but it is not his duty to be the custodian thereof, this crime is not committed. The document must be complete and one by which a right could be established or an obligation could be extinguished. If the writings are mere forms, there is no crime.

Elements: (1) Offender is a public officer; (2) He is charged with the custody of papers or property; (3) These papers or property are sealed by proper authority; (4) He breaks the seal or permits them to be broken. In "breaking of seal", the word "breaking" should not be given a literal meaning. Even if actually, the seal was not broken, because the custodian managed to open the parcel without breaking the seal. The element of damage is not required.
ARTICLE 228 - OPENING OF CLOSED DOCUMENTS

Elements: (1) Offender is a public officer; (2) Any closed papers, documents, or objects are entrusted to his custody; (3) He opens or permits to be opened said closed papers, documents or objects; (4) He does not have proper authority. The act should not fall under 227. Damage also not necessary
ARTICLE 229 - REVELATION OF SECRETS BY AN OFFICER

Mode 1.

Revealing any secrets known to the offending public officer by reason of his official capacity;

Elements: (1) Offender is a public officer; (2) He knows of a secret by reason of his official capacity; (3) He reveals such secret without authority or justifiable reasons; (4) Damage, great or small, is caused to the public

PAGE 163

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

interest. Mode 2. Wrongfully delivering papers or copies of papers of which he may have charge and which should not be published.

CHAPTER VI: OTHER OFFENSES IRREGULARITIES BY PUBLIC OFFICERS


ARTICLE 231 - OPEN DISOBEDIENCE

OR

Elements: (1) Offender is a public officer; (2) He has charge of papers; (3) Those papers should not be published; (4) He delivers those papers or copies thereof to a third person; (5) The delivery is wrongful; (6) Damage is caused to public interest. Espionage is not contemplated in this article since revelation of secrets of the State to a belligerent nation is already defined in Art 117 and CA 616. Secrets must affect public interest. Secrets of private persons are not included. Charge: means custody or control. If he is merely entrusted with the papers and not with the custody thereof, he is not liable under this article. If the papers contain secrets which should not be published, and the public officer having charge thereof removes and delivers them wrongfully to a third person, the crime is revelation of secrets. On the other hand, if the papers do not contain secrets, their removal for an illicit purpose is infidelity in the custody of documents. Damage is essential to the act committed.
ARTICLE 230 - PUBLIC OFFICERS REVEALING SECRETS OF PRIVATE INDIVIDUALS

Elements: (1) Officer is a judicial or executive officer; (2) There is a judgment, decision or order of a superior authority; (3) Such judgment, decision or order was made within the scope of the jurisdiction of the superior authority and issued with all the legal formalities; (4) He, without any legal justification, openly refuses to execute the said judgment, decision or order, which he is duty bound to obey.
ARTICLE 232 - DISOBEDIENCE TO THE ORDER OF SUPERIOR OFFICER WHEN SAID ORDER WAS SUSPENDED BY INFERIOR OFFICER

Elements: (1) Offender is a public officer; (2) An order is issued by his superior for execution; (3) He has for any reason suspended the execution of such order; (4) His superior disapproves the suspension of the execution of the order; (5) Offender disobeys his superior despite the disapproval of the suspension. This does not apply if the order of the superior is illegal.
ARTICLE 233 - REFUSAL OF ASSISTANCE

Elements: (1) Offender is a public officer; (2) He knows of the secrets of a private individual by reason of his office; (3) He reveals such secrets without authority or justifiable reason. Revelation to one person is sufficient. When the offender is a public attorney or a solicitor, the act of revealing the secret should not be covered by Art 209. Damage to private individual is not necessary. The reason for this provision is to uphold faith and trust in public service.

Elements: (1) Offender is a public officer; (2) A competent authority demands from the offender that he lend his cooperation towards the administration of justice or other public service; (3) Offender maliciously fails to do so. The request must come from one public officer to another. If he receives consideration therefore, bribery is committed. But mere demand will fall under the prohibition under the provision of Republic Act No. 3019 (AntiGraft and Corrupt Practices Act). Applies whether or not serious damage to the public interest was committed.
ARTICLE 234 - REFUSAL TO DISCHARGE ELECTIVE OFFICE

Elements:

PAGE 164

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

(1) Offender is elected by popular election to a public office; (2) He refuses to be sworn in or to discharge the duties of said office; (3) There is no legal motive for such refusal to be sworn in or to discharge the duties of said office. Once an individual is elected to an office by the will of the people, discharge of duties becomes a matter of duty, not only a right. This only applies for elective, not appointive officers.
ARTICLE 235 - MALTREATMENT OF PRISONERS

ARTICLE 236 - ANTICIPATION OF DUTIES OF A PUBLIC OFFICER

Elements: (1) Offender is entitled to hold a public office or employment, either by election or appointment; (2) The law requires that he should first be sworn in and/or should first give a bond; (3) He assumes the performance of the duties and powers of such office; (4) He has not taken his oath of office and/or given the bond required by law.
ARTICLE 237 - PROLONGING PERFORMANCE OF DUTIES AND POWERS

Elements: (1) Offender is a public officer or employee; (2) He has under his charge a prisoner or detention prisoner; (3) He maltreats such prisoner in either of the following manners: (a) By overdoing himself in the correction or handling of a prisoner or detention prisoner under his charge either (i) By the imposition of punishment not authorized by the regulations; (ii) By inflicting such punishments (those authorized) in a cruel and humiliating manner; (b) By maltreating such prisoners to extort a confession or to obtain some information from the prisoner. This is committed only by such public officer charged with direct custody of the prisoner. Offender may also be held liable for physical injuries or damage caused. If the public officer is not the custodian of the prisoner, and he manhandles the latter, the crime is physical injuries. The offended party can either be a convict by final judgment or a detention prisoner. To be considered a detention prisoner, the person arrested must be placed in jail even for just a short while. The maltreatment does not really require physical injuries. Any kind of punishment not authorized or although authorized if executed in excess of the prescribed degree. If the maltreatment was done in order to extort confession, the penalty is qualified to the next higher degree. See: Human Security Act of 2007 (R.A. 9372)

Elements: (1) Offender is holding a public office; (2) The period provided by law, regulations or special provision for holding such office, has already expired; (3) He continues to exercise the duties and powers of such office. The offenders here can be those suspended, separated, declared over-aged, or dismissed.
ARTICLE 238 - ABANDONMENT OF OFFICE OR POSITION

Elements: (1) Offender is a public officer; (2) He formally resigns from his position; (3) His resignation has not yet been accepted; (4) He abandons his office to the detriment of the public service. For the resignation to be formal, it has to be in written form. The offense is qualified when the purpose of the abandonment is to evade the discharge of duties of preventing, prosecuting, punishing any of the crimes falling within Title One and Chapter One of Title Three of book two of the RPC. Abandonment of Office or Position (Art. 238) Dereliction of Duty (Art. 208)

Committed by any public Committed only by public officer officers who have the duty to institute prosecution for the punishment of violations of the law There is abandonment actual Public officer does not through abandon his office but

PAGE 165

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

Abandonment of Office or Position (Art. 238)

Dereliction of Duty (Art. 208)

The disobedient officer is liable even if the jurisdictional question is resolved in his favor.
ARTICLE 243 - ORDERS OR REQUEST BY EXECUTIVE OFFICER TO ANY JUDICIAL AUTHORITY

resignation to evade the merely fails to prosecute a discharge of duties violation of the law.
ARTICLE 239 - USURPATION OF LEGISLATIVE POWERS

Elements: (1) Offender is an executive or judicial officer; (2) That he: (a) makes general rules or regulations beyond the scope of his authority; or (b) attempts to repeal a law; or (c) suspends the execution thereof. Arts 239-241 punish interference by public officers of the executive or judiciary with the functions of another department of government to keep them within legitimate confines of their respective jurisdictions. Legislative officers are not liable for usurpation of powers.
ARTICLE 240 - USURPATION OF EXECUTIVE FUNCTIONS

Elements: (1) Offender is an executive officer; (2) He addresses any order or suggestion to any judicial authority; (3) The order or suggestion relates to any case or business coming within the exclusive jurisdiction of the courts of justice. The purpose is to maintain the independence of the judiciary from executive dictations.
ARTICLE 244 - UNLAWFUL APPOINTMENTS

Elements: (1) Offender is a judge; (2) That he: (a) assumes a power pertaining to the executive authorities, or (b) obstructs the executive authorities in the lawful exercise of their powers.
ARTICLE 241 - USURPATION OF JUDICIAL FUNCTIONS

Elements: (1) Offender is a public officer; (2) He nominates or appoints a person to a public office; (3) Such person lacks the legal qualifications therefore; (4) Offender knows that his nominee or appointee lacks the qualification at the time he made the nomination or appointment. This can also be covered by RA 3019. Recommending, knowing that the person recommended is not qualified is not a crime. There must be a law providing for the qualifications of a person to be nominated or appointed to a public office.
ARTICLE 245 - ABUSES AGAINST CHASTITY

Elements: (1) Offender is an officer of the executive branch of the government; (2) That he: (1) assumes judicial powers, or (2) obstructs the execution of any order or decision rendered by any judge within his jurisdiction.
ARTICLE 242 - DISOBEYING REQUEST FOR DISQUALIFICATION

Mode 1.

Soliciting or making immoral or indecent advances to a woman interested in matters pending before the offending officer for decision, or with respect to which he is required to submit a report to or consult with a superior officer; Soliciting or making immoral or indecent advances to a woman under the offenders custody; Soliciting or making immoral or indecent advances to the wife, daughter, sister or relative within the same degree by affinity of any person in the custody of the offending warden or officer.

Mode 2.

Elements: (1) Offender is a public officer; (2) A proceeding is pending before such public officer; (3) There is a question brought before the proper authority regarding his jurisdiction, which is not yet decided; (4) He has been lawfully required to refrain from continuing the proceeding; (5) He continues the proceeding.
PAGE 166

Mode 3.

Elements:

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

(1) Offender is a public officer; (2) He solicits or makes immoral or indecent advances to a woman; (3) Such woman is (a) interested in matters pending before the offender for decision, or with respect to which he is required to submit a report to or consult with a superior officer; or (b) under the custody of the offender who is a warden or other public officer directly charged with the care and custody of prisoners or persons under arrest; or (c) the wife, daughter, sister or relative within the same degree by affinity of the person in the custody of the offender. The crime is consummated by mere proposal. The mother of the person in the custody of the public officer is not included but the offender may be prosecuted under the Section 28 of RA 3019 (AntiGraft and Corrupt Practices Act). If the offender were not the custodian, then crime would fall under Republic Act No. 3019 (The AntiGraft and Corrupt Practices Act). Solicit: means to propose earnestly and persistently something unchaste and immoral to a woman. The advances must be immoral or indecent. Proof of solicitation is not necessary when there is sexual intercourse. Abuse against chastity is not absorbed in rape because the basis of penalizing the acts is different from each other
RA 3019: ANTI-GRAFT AND CORRUPT PRACTICES

(c) "Receiving any gift" includes the act of accepting directly or indirectly a gift from a person other than a member of the public officer's immediate family, in behalf of himself or of any member of his family or relative within the fourth civil degree, either by consanguinity or affinity, even on the occasion of a family celebration or national festivity like Christmas, if the value of the gift is under the circumstances manifestly excessive. (d) "Person" includes natural and juridical persons, unless the context indicates otherwise. Section 3.Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: (a) Persuading, inducing or influencing another public officer to perform an act constituting a violation of rules and regulations duly promulgated by competent authority or an offense in connection with the official duties of the latter, or allowing himself to be persuaded, induced, or influenced to commit such violation or offense. (b) Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other person, in connection with any contract or transaction between the Government and any other part, wherein the public officer in his official capacity has to intervene under the law. (c) Directly or indirectly requesting or receiving any gift, present or other pecuniary or material benefit, for himself or for another, from any person for whom the public officer, in any manner or capacity, has secured or obtained, or will secure or obtain, any Government permit or license, in consideration for the help given or to be given, without prejudice to Section thirteen of this Act. (d) Accepting or having any member of his family accept employment in a private enterprise which has pending official business with him during the pendency thereof or within one year after its termination. (e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or

Section 2.Definition of terms. As used in this Act, that term (a) "Government" includes the national government, the local governments, the government-owned and government-controlled corporations, and all other instrumentalities or agencies of the Republic of the Philippines and their branches. (b) "Public officer" includes elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exempt service receiving compensation, even nominal, from the government as defined in the preceding subparagraph.

PAGE 167

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

government corporations charged with the grant of licenses or permits or other concessions. (f) Neglecting or refusing, after due demand or request, without sufficient justification, to act within a reasonable time on any matter pending before him for the purpose of obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage, or for the purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party. (g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby. (h) Director or indirectly having financing or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having any interest. (i) Directly or indirectly becoming interested, for personal gain, or having a material interest in any transaction or act requiring the approval of a board, panel or group of which he is a member, and which exercises discretion in such approval, even if he votes against the same or does not participate in the action of the board, committee, panel or group. Interest for personal gain shall be presumed against those public officers responsible for the approval of manifestly unlawful, inequitable, or irregular transaction or acts by the board, panel or group to which they belong. (j) Knowingly approving or granting any license, permit, privilege or benefit in favor of any person not qualified for or not legally entitled to such license, permit, privilege or advantage, or of a mere representative or dummy of one who is not so qualified or entitled. (k) Divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date. The person giving the gift, present, share, percentage or benefit referred to in subparagraphs (b) and (c); or offering or giving to the public officer the employment mentioned in subparagraph (d); or urging the divulging or untimely release of the

confidential information referred to in subparagraph (k) of this section shall, together with the offending public officer, be punished under Section nine of this Act and shall be permanently or temporarily disqualified in the discretion of the Court, from transacting business in any form with the Government. Section 4.Prohibition on private individuals. (a) It shall be unlawful for any person having family or close personal relation with any public official to capitalize or exploit or take advantage of such family or close personal relation by directly or indirectly requesting or receiving any present, gift or material or pecuniary advantage from any other person having some business, transaction, application, request or contract with the government, in which such public official has to intervene. Family relation shall include the spouse or relatives by consanguinity or affinity in the third civil degree. The word "close personal relation" shall include close personal friendship, social and fraternal connections, and professional employment all giving rise to intimacy which assures free access to such public officer. (b) It shall be unlawful for any person knowingly to induce or cause any public official to commit any of the offenses defined in Section 3 hereof. Section 5.Prohibition on certain relatives. It shall be unlawful for the spouse or for any relative, by consanguinity or affinity, within the third civil degree, of the President of the Philippines, the VicePresident of the Philippines, the President of the Senate, or the Speaker of the House of Representatives, to intervene, directly or indirectly, in any business, transaction, contract or application with the Government: Provided, That this section shall not apply to any person who, prior to the assumption of office of any of the above officials to whom he is related, has been already dealing with the Government along the same line of business, nor to any transaction, contract or application already existing or pending at the time of such assumption of public office, nor to any application filed by him the approval of which is not discretionary on the part of the official or officials concerned but depends upon compliance with requisites provided by law, or rules or regulations issued pursuant to law, nor to any act lawfully performed in an official capacity or in the exercise of a profession. Section 6.Prohibition on Members of Congress. It shall be unlawful hereafter for any Member of the Congress during the term for which he has been elected, to acquire or receive any personal pecuniary interest in any specific business enterprise which will

PAGE 168

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

be directly and particularly favored or benefited by any law or resolution authored by him previously approved or adopted by the Congress during the same term. The provision of this section shall apply to any other public officer who recommended the initiation in Congress of the enactment or adoption of any law or resolution, and acquires or receives any such interest during his incumbency. It shall likewise be unlawful for such member of Congress or other public officer, who, having such interest prior to the approval of such law or resolution authored or recommended by him, continues for thirty days after such approval to retain such interest. Section 8.Prima facie evidence of and dismissal due to unexplained wealth. If in accordance with the provisions of Republic Act Numbered One thousand three hundred seventy-nine, a public official has been found to have acquired during his incumbency, whether in his name or in the name of other persons, an amount of property and/or money manifestly out of proportion to his salary and to his other lawful income, that fact shall be a ground for dismissal or removal. Properties in the name of the spouse and dependents of such public official may be taken into consideration, when their acquisition through legitimate means cannot be satisfactorily shown. Bank deposits in the name of or manifestly excessive expenditures incurred by the public official, his spouse or any of their dependents including but not limited to activities in any club or association or any ostentatious display of wealth including frequent travel abroad of a non-official character by any public official when such activities entail expenses evidently our of proportion to legitimate income, shall likewise be taken into consideration in the enforcement of this section, notwithstanding any provision of law to the contrary. The circumstances hereinabove mentioned shall constitute valid ground for the administrative suspension of the public official concerned for an indefinite period until the investigation of the unexplained wealth is completed. Section 9.Penalties for violations. (a) any public officer or private person committing any of the unlawful acts or omissions enumerated in Sections 3, 4, 5 and 6 of this Act shall be punished with imprisonment for not less than six years and one month nor more than fifteen years, perpetual disqualification from public office, and confiscation or forfeiture in favor of the Government of any prohibited interest and unexplained wealth

manifestly out of proportion to his salary and other lawful income. Any complaining party at whose complaint the criminal prosecution was initiated shall, in case of conviction of the accused, be entitled to recover in the criminal action with priority over the forfeiture in favor of the Government, the amount of money or the thing he may have given to the accused, or the fair value of such thing. (b) Any public officer violating any of the provisions of Section 7 of this Act shall be punished by a fine of not less than one thousand pesos nor more than five thousand pesos, or by imprisonment not exceeding one year six months, or by both such fine and imprisonment, at the discretion of the Court. The violation of said section proven in a proper administrative proceeding shall be sufficient cause for removal or dismissal of a public officer, even if no criminal prosecution is instituted against him. Section 13.Suspension and loss of benefits. Any incumbent public officer against whom any criminal prosecution under a valid information under this Act or under Title 7, Book II of the Revised Penal Code or for any offense involving fraud upon government or public funds or property whether as a simple or as complex offense and in whether stage of execution and mode of participation, is pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him. In the event that such convicted officer, who may have already been separated from the service, has already received such benefits he shall be liable to restitute the same to the Government. Section 14.Exception. Unsolicited gifts or presents of small or insignificant value offered or given as a mere ordinary token of gratitude or friendship according to local customs or usage, shall be excepted from the provisions of this Act. Nothing in this Act shall be interpreted to prejudice or prohibit the practice of any profession, lawful trade or occupation by any private person or by any public officer who under the law may legitimately practice his profession, trade or occupation, during his incumbency, except where the practice of such

PAGE 169

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

profession, trade or occupation involves conspiracy with any other person or public official to commit any of the violations penalized in this Act.
RA 7080: ANTI-PLUNDER ACT

6) By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines. Section 2. Definition of the Crime of Plunder; Penalties - Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts as described in Section 1(d) hereof, in the aggregate amount or total value of at least Seventy-five million pesos (P75,000,000.00), shall be guilty of the crime of plunder and shall be punished by life imprisonment with perpetual absolute disqualification from holding any public office. Any person who participated with said public officer in the commission of plunder shall likewise be punished. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances shall be considered by the court. The court shall declare any and all illgotten wealth and their interests and other incomes and assets including the properties and shares of stock derived from the deposit or investment thereof forfeited in favor of the State.
RA 9372: HUMAN SECURITY ACT

Section 1. Definition of Terms - As used in this Act, the term a) Public Officer means any person holding any public office in the Government of the Republic of the Philippines by virtue of an appointment, election or contract. b) Government includes the National Government, and any of its subdivisions, agencies or instrumentalities, including government-owned or controlled corporations and their subsidiaries. c) Person includes any natural or juridical person, unless the context indicates otherwise. d) Ill-gotten wealth means any asset, property, business enterprise or material possession of any person within the purview of 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 following means or similar schemes: 1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; 2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned; 3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities or government-owned or controlled corporations and their subsidiaries; 4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including promise of future employment in any business enterprise or undertaking; 5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or

(Refer to Title I)

Title VIII. Crimes against Persons


Chapter I: Destruction of Life (1) Article 246 Parricide (2) Article 247 - Death or Physical Injuries Under Exceptional Circumstances (3) Article 248 Murder (4) Article 249 Homicide (5) Article 250 - Penalty for Frustrated Parricide, Murder or Homicide (6) Article 251 - Death Caused in Tumultuous Affray (7) Article 252 - Physical Injuries Caused in Tumultuous Affray (8) Article 253 - Giving Assistance to Suicide (9) Article 254 - Discharge of Firearms (10) Article 255 Infanticide (11) Article 256 - Intentional Abortion (12) Article 257 - Unintentional Abortion

PAGE 170

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

(13) Article 258 - Abortion Practiced by the Woman Herself or by Parents (14) Article 259 - Abortion by a Physician or Midwife and Dispensing of Abortives (15) Article 260 - Responsibility of Participants in a Duel (16) Article 261 - Challenging to a Duel Chapter II: Physical Injuries (1) Article 262 Mutilation (2) Article 263 - Serious Physical Injuries (3) Article 264 - Administering Injurious Substances or Beverages (4) Article 265 - Less Serious Physical Injuries (5) Article 266 - Slight Physical Injuries and Maltreatment (6) Article 266-A - Rape (amended by RA 8353) About this Title: The essence of crimes involves the taking of human life, destruction of the fetus, or inflicting injuries. CHAPTER I DESTRUCTION OF LIFE
ARTICLE 246 - PARRICIDE

parricide but only homicide or murder, as the case may be. The key element in parricide is the relationship of the offender with the victim. Ergo, the fact of the relationship should be alleged in the information. [People vs. Dalag] Since the accuseds relationship to the victim is not alleged in the information, she can be convicted of murder only. Relationship can be appreciated as a generic aggravating circumstance onlyl. [People v. Jumawan]
ARTICLE 247 - DEATH OR PHYSICAL INJURIES UNDER EXCEPTIONAL CIRCUMSTANCES

Elements: (1) Person is killed; (2) Deceased is killed by the accused; (3) Deceased is the (a) legitimate/illegitimate father (b) legitimate/illegitimate mother (c) legitimate/illegitimate child * should not be less than 3 days old, otherwise crime is infanticide (d) other legitimate ascendant (e) other legitimate descendant (f) legitimate spouse. Essential element: relationship of offender with the victim; except for spouses, only relatives by blood and in direct line. Hence, adopted are not included. [Reyes] Supreme Court ruled that Muslim husbands with several wives can be convicted of parricide only in case the first wife is killed. Parricide when the penalty shall not be reclusion perpetua to death: (1) Reckless or simple imprudence (Art. 365) (2) Parricide by mistake (Art. 49) (3) Parricide under exceptional circumstances (Art. 247) A stranger who cooperates and takes part in the commission of the crime of parricide, is not guilty of

Elements: (1) A legally married person, or a parent, surprises his spouse or his daughter, the latter under 18 years of age and living with him in the act of sexual intercourse with another person; (2) He or she kills any or both of them, or inflicts upon any or both of them any serious physical injury in the act or immediately thereafter; (3) He has not promoted or facilitated the prostitution of his wife or daughter, or that she has not consented to the infidelity of the other spouse. Living with parent(s) is understood to be in their own dwelling. If done in a motel, article does not apply. Surprise means to come upon suddenly and unexpectedly. Immediately thereafter: there is no set time as jurisprudence has held 1 hour or even 4 hours as immediately thereafter. However, the act done must be a direct result of the outrage of the cuckolded spouse, and a continuous act from the moment of the surprising. Article does not apply: If the surprising took place before any actual sexual intercourse could be done. Destierro for killer spouse is not so much a penalty as it is meant to protect him from acts of reprisal by relatives of dead spouse. This is because law regards the act done in 247 as a lawful action. No criminal liability when less serious or slight physical injuries are inflicted. Does this article apply even if the daughter is married? Although the article does not use the word unmarried, this article applies only when the
PAGE 171

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

daughter is single because while under 18 and single, she is still under parental authority. If she is married, her husband alone can claim the benefits of this article. Evidence of the victims promiscuity is inconsequential to the killing. The offender must prove that he actually surprised his wife and [her paramour] in flagrante delicto, and that he killed the man during or immediately thereafter. [People v. Puedan] The killing must be the direct result of the outrage suffered by the cuckolded husband. Although about one hour had passed between the time the accused discovered his wife having sexual intercourse with the victim and the time the latter was actually killed, it was held that Article 247 was applicable, as the shooting was a continuation of the pursuit of the victim by the accused. Inflicting death under exceptional circumstances is not murder. Two other persons suffered physical injuries as they were caught in the crossfire when the accused shot the victim. A complex crime of double frustrated murder was not committed as the accused did not have the intent to kill the two victims. Here, the accused did not commit murder when he fired at the paramour of his wife. No aberratio ictus because he was acting lawfully. [People v. Abarca]
ARTICLE 248 - MURDER

destructive cyclone, epidemic, or any other public calamity; (e) with evident premeditation; (f) with cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse. (4) The killing is not parricide or infanticide. One attendant qualifying circumstance is enough. If there are more than one alleged in the information for murder, only one will qualify the killing to murder and the other circumstances will be taken as generic aggravating circumstance. Any of the qualifying circumstances enumerated in Art. 248 must be alleged in the information. When the other circumstances are absorbed or included in one qualifying circumstance, they cannot be considered as generic aggravating. When the victim is already dead, intent to kill becomes irrelevant. It is important only if the victim did not die to determine if the felony is physical injury or attempted or frustrated homicide. TREACHERY The essence of treachery is that the offended party was denied the chance to defend himself because of the means, methods, deliberately adopted by the offender and were not merely incidental to the killing. Killing of a child of tender age is murder qualified by treachery. Abuse of superior strength is inherent in and comprehended by the circumstance of treachery or forms part of treachery. FIRE When a person is killed by fire, the primordial criminal intent of the offender is considered. If the primordial criminal intent of the offender is to kill and fire was only used as a means to do so, the crime is only murder. If the primordial criminal intent of the offender is to destroy property with the use of pyrotechnics and incidentally, somebody within the premises is killed, the crime is arson with homicide, a single indivisible crime penalized under Article 326, which is death as a consequence of arson.

Elements: (1) Person was killed; (2) Accused killed him; (3) Killing attended by any of the following 2 2 qualifying circumstances (EPIC SW AT) (a) with treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense, or of means or persons to insure or afford impunity; (b) in consideration of a price, reward or promise; (c) by means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a railroad, fall of an airship, by means of motor vehicles, or with the use of any other means involving great waste and ruin; (d) on occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano,

PAGE 172

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

Intent to kill must be present for the use of fire to be appreciated as a qualifying circumstance. Intending to make fun of a mentally-disabled person, Pugay poured gasoline on the latter while Samson set him on fire. The victim died. There was no animosity between the two accused and the victim such that it cannot be said that they resort to fire to kill him. It was merely a part of their fun making but because their acts were felonious, they are criminally liable. [People v. Pugay and Samson] POISON Treachery and evident premeditation are inherent in murder by poison only if the offender has the intent to kill the victim by use of poison. EVIDENT PREMEDITATION Act of the offender manifestly indicating that he clung to his determination to kill his victim. Evident premeditation is absorbed in price, reward or promise, if without the premeditation the inductor would not have induced the other to commit the act but not as regards the one induced. Pariseo Tayag was shot dead by several policemen in the course of their pursuit to get his fan knife. Although it has not been shown which of the policemen fired the fatal shot each should be held guilty of murder since they are in conspiracy to effect the death of the victim. [People v. Buensuceso (1984)] CRUELTY Under Article 14, the generic aggravating circumstance of cruelty requires that the victim be alive, when the cruel wounds were inflicted and, therefore, there must be evidence to that effect. Yet, in murder, aside from cruelty, any act that would amount to scoffing or decrying the corpse of the victim will qualify the killing to murder.
ARTICLE 249 - HOMICIDE

Use of unlicensed firearm is an aggravating circumstance in homicide. Intent to kill is conclusively presumed when death resulted. Evidence of intent to kill is important only in attempted or frustrated homicide. In attempted or frustrated homicide, there is intent to kill. In physical injuries, there is none. However, if as a result of the physical injuries inflicted, the victim died, the crime will be homicide because the law presumes intent to kill and punishes the result, and not the intent of the act. The accused will, however, be entitled to the mitigating circumstance of lack of intent to commit so grave a wrong. Physical injuries sufficient to cause death are one of the essential elements of frustrated homicide. In accidental homicide wherein death of a person is brought about by a lawful act performed with proper care and skill and without homicidal intent, there is no liability. There is no offense of frustrated homicide through imprudence. Accused pharmacist prepared the medicine on prescription but erroneously used a highly poisonous substance. When taken by the patient, the latter nearly died. Accused is guilty only of reckless imprudence resulting in serious physical injuries. The element of intent to kill in frustrated homicide is incompatible with negligence or imprudence. [People v. Castillo]
ARTICLE 250 - PENALTY FOR FRUSTRATED PARRICIDE, MURDER OR HOMICIDE

Courts may impose a penalty: (1) 2 degrees lower for frustrated parricide, murder, or homicide (2) 3 degrees lower for attempted parricide, murder, or homicide. For frustrated parricide, homicide or murder, the courts, in view of the facts f the case, may impose a penalty lower by one degree than that imposed under Art. 50. Art. 50 provides that the penalty next lower in degree than that prescribed by law for the consummated felony shall be imposed upon a principal in a frustrated felony. Thus, under Art. 50, the court can impose a penalty of TWO DEGREES LOWER for frustrated parricide, murder, or homicide.

Elements: (1) Person was killed; (2) Offender killed him without any justifying circumstances; (3) Offender had the intention to kill, which is presumed; (4) Killing was not attended by any of the qualifying circumstances of murder, or by that of parricide or infanticide.

PAGE 173

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

For attempted parricide, homicide, or murder, the courts, in view of the facts of the case may impose a penalty by one degree than that imposed under Art. 51. Art. 51 provides that the penalty lower by two degrees than that prescribed by law for the consummated felony shall be imposed upon the principal in an attempted felony. Thus, under Art. 250, the court can impose a penalty of THREE DEGREES LOWER for attempted parricide, murder, or homicide. NOTE: Any attempt on, or conspire against, the life of the Chief Executive of the Philippines or that of any member of his family, or against the life of any member of his cabinet or that of any member of the latters family, shall suffer the penalty of death.
ARTICLE 251 - DEATH CAUSED IN TUMULTUOUS AFFRAY

tumultuous disturbance, or if property destroyed, it could be malicious mischief.


ARTICLE 252 - PHYSICAL INJURIES CAUSED IN TUMULTUOUS AFFRAY

was

Elements: (1) There is a tumultuous affray; (2) A participant or some participants thereof suffered serious physical injuries or physical injuries of a less serious nature only; (3) The person responsible thereof cannot be identified; (4) All those who appear to have used violence upon the person of the offended party are known. Unlike in Article 251, the injured party in this article must be one or some of the participants in the affray. All those who appear to have used violence shall suffer the penalty next lower in degree than that provided for the serious physical injuries inflicted. For less serious physical injuries, the penalty is arresto mayor from five to fifteen days. Physical injury should be serious or less serious. No crime of physical injuries resulting from a tumultuous affray if the physical injury is only slight. Slight physical injury is considered as inherent in a tumultuous affray.
ARTICLE 253 - GIVING ASSISTANCE TO SUICIDE

Elements: (1) There are several persons; (2) They do not compose groups organized for the common purpose of assaulting and attacking each other reciprocally; (3) These several persons quarreled and assaulted one another in a confused and tumultuous manner; (4) Someone was killed in the course of the affray; (5) It cannot be ascertained who actually killed the deceased; (6) The person or persons who inflicted serious physical injuries or who used violence can be identified. Tumultuous affray is a commotion in a confused manner to an extent that it would not be possible to identify who the killer is if death results, or who inflicted the serious physical injury, but the person or persons who used violence are known. Who are liable? (a) The person or persons who inflicted the serious physical injuries (b) If it is not known who inflicted the serious physical injuries on the deceased, all persons who used violence upon the person of the victim are liable. If there is conspiracy, this crime is not committed. The crime would be murder or homicide. If nobody could still be traced to have employed violence upon the victim, nobody will answer. The crimes committed might be disturbance of public order, or if participants are armed, it could be
PAGE 174

Mode 1: Mode 2:

Assisting another to commit suicide, whether the suicide is consummated or not; Lending his assistance to another to commit suicide to the extent of doing the killing himself.

Giving assistance to suicide means giving means (arms, poison, etc.) or whatever manner of positive and direct cooperation (intellectual aid, suggestions regarding the mode of committing suicide, etc.). If the person does the killing himself, the penalty is similar to that of homicide, which is reclusion temporal. The relation of the offender to the person committing suicide is not material, the law does not distinguish. Hence, penalty would be the same if the offender is the father, mother or child.

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

There can be no qualifying circumstance because the determination to die must come from the victim. The person attempting suicide is not liable. Reason: He should be pitied, not punished. This does not contemplate euthanasia or mercy killing where the crime is murder. (if without consent; with consent, covered by Article 253). Euthanasia is not lending assistance to suicide. In euthanasia, the victim is not in a position to commit suicide. A doctor who resorts to euthanasia of his patient may be liable for murder. But if the patient himself asks to be killed by his doctor, this Article applies.
ARTICLE 254 - DISCHARGE OF FIREARMS

Only the mother and maternal grandparents of the child are entitled to the mitigating circumstance of concealing the dishonor. Concealment of dishonor is not an element of infanticide. It merely lowers the penalty. A stranger who cooperates in the perpetration of infanticide committed by the mother or grandparent on the mothers side, is liable for infanticide, but he must suffer the penalty prescribed for murder. If the child is abandoned without any intent to kill and death results as a consequence, the crime committed is not infanticide but abandonment under Article 276. No crime of infanticide is committed when the child was born dead, or although born alive, it could not sustain an independent life when it was killed.
ARTICLE 256 - INTENTIONAL ABORTION

Elements: (1) Offender discharges a firearm against or at another person. (2) Offender has no intention to kill that person. No crime if firearm is not discharged. It is essential for prosecution to prove that the discharge of firearm was directed precisely against the offended party. The crime is discharge of firearm, even if the gun was not pointed at the offended party when it fired, as long as it was initially aimed by the accused at or against the offended party If there is intention to kill, it may be classified as attempted parricide, murder, or homicide. No presumed intent to kill if the distance is 200 meters. There is a special complex crime of illegal discharge of firearm with serious or less serious physical injuries.
ARTICLE 255 - INFANTICIDE

Elements: (1) There is a pregnant woman; (2) Violence is exerted, or drugs or beverages administered, or that the accused otherwise acts upon such pregnant woman; (3) As a result of the use of violence or drugs or beverages upon her, or any other act of the accused, the fetus dies, either in the womb or after having been expelled therefrom; (4) The abortion is intended. Ways of committing intentional abortion (1) Using any violence upon the person of the pregnant woman; (2) Acting, but without using violence, without the consent of the woman. (By administering drugs or beverages upon such pregnant woman without her consent.) (3) Acting (by administering drugs or beverages), with the consent of the pregnant woman. ABORTION vs. INFANTICIDE Abortion Infanticide Fetus could not sustain Fetus could sustain an independent life. No independent life after legal viability. separation from the mothers womb. If the mother as a consequence of abortion suffers death or physical injuries, you have a complex crime of murder or physical injuries and abortion. In intentional abortion, the offender must know of the pregnancy because the particular criminal intent is to cause an abortion.
PAGE 175

Elements: (1) A child was killed by the accused; (2) The deceased child was less than 3 days old. If the offender is the parent and the victim is less than three days old, the crime is infanticide and not parricide. The fact that the killing was done to conceal her dishonor will not mitigate the criminal liability anymore because concealment of dishonor in killing the child is not mitigating in parricide.

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

If the woman turns out not to be pregnant and someone performs an abortion upon her, he is liable for an impossible crime if the woman suffers no physical injury. If she dies or suffers injuries, the crime will be homicide, serious physical injuries, etc. Frustrated abortion is committed if the fetus that is expelled is viable and, therefore, not dead as abortion did not result despite the employment of adequate and sufficient means to make the pregnant woman abort.
ARTICLE 257 - UNINTENTIONAL ABORTION

The accused must have merely intended to kill the victim but not necessarily to cause abortion. The accused is liable for complex crime of parricide with unintentional abortion for it was merely incidental to the killing. [People v. Salufrania (1988)] For the crime of abortion, even unintentional, to be held committed, the accused must have known of the pregnancy. [People v. Carnaso]
ARTICLE 258 - ABORTION PRACTICED BY THE WOMAN HERSELF OR BY PARENTS

Elements: (1) There is a pregnant woman; (2) Violence is used upon such pregnant woman without intending an abortion; (3) The violence is intentionally exerted; (4) Result of violence fetus dies, either in the womb or expelled therefrom. Unintentional abortion requires physical violence inflicted deliberately and voluntarily by a third person upon the pregnant woman, without intention to cause the abortion. If the pregnant woman aborted because of intimidation, the crime committed is not unintentional abortion because there is no violence; the crime committed is light threats. If the pregnant woman was killed by violence by her husband, the crime committed is the complex crime of parricide with unlawful abortion. Unintentional abortion may be committed through negligence as it is enough that the use of violence be voluntary. If the act of violence is not felonious, that is, act of self-defense, and there is no knowledge of the womans pregnancy, there is no liability. Jose is declared guilty of the crime of unintentional abortion through reckless imprudence for having bumped a calesa which resulted in a pregnant woman bumping her abdomen against the wall of the calesa and eventually led to an abortion. [People v. Jose] Mere boxing of the stomach taken together with the immediate strangling of the victim in a fight, is not sufficient proof to show an intent to cause abortion.

Elements: (1) There is a pregnant woman who has suffered an abortion; (2) Abortion is intended; (3) Abortion is caused by (a) The pregnant woman herself; (b) Any other person, with her consent; or (c) Any of her parents, with her consent for the purpose of concealing her dishonour. If the purpose of abortion is to conceal dishonor, mitigation applies only to pregnant woman and not to parents of pregnant woman, unlike in infanticide. If the purpose of parents is not to conceal dishonor, the crime is intentional abortion. Liability of the pregnant woman is mitigated if purpose is to conceal dishonor. No mitigation for parents of pregnant woman even if the purpose is to conceal dishonor. The penalty for the parents in this case is the same as the penalty for a pregnant woman committing abortion, without the purpose of concealing dishonor.
ARTICLE 259 - ABORTION BY A PHYSICIAN OR MIDWIFE AND DISPENSING OF ABORTIVES

Elements: (1) There is a pregnant woman who has suffered an abortion; (2) The abortion is intended; (3) Offender, who must be a physician or midwife, caused or assisted in causing the abortion; (4) Said physician or midwife took advantage of his or her scientific knowledge or skill. The penalties provided for intentional abortion shall be imposed in the maximum period for physicians and midwives violating this article.

PAGE 176

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

Reason: heavier guilt in making use of their knowledge for the destruction of human life, when it should be used only for its preservation. If the abortion is produced by a physician to save the life of the mother, there is no liability. Elements (for pharmacists): (1) The offender is a pharmacist; (2) There is no proper prescription from a physician; (3) The offender dispenses any abortive. Article punishes a pharmacist who merely dispenses with an abortive without the proper prescription of a physician. It is not necessary that the pharmacist knows that the abortive would be used to cause an abortion. What is punished is the dispensing of the abortive without the proper prescription. It is not necessary that the abortive be actually used either. If pharmacist knew that the abortive would be use for abortion, her would be liable as an accomplice in the crime of abortion.
ARTICLE 260 - RESPONSIBILITY OF PARTICIPANTS IN A DUEL

If these are not the conditions of the fight, it is not a duel in the sense contemplated in the Revised Penal Code. It will be a quarrel and anyone who killed the other will be liable for homicide or murder, as the case may be.
ARTICLE 261 - CHALLENGING TO A DUEL

Mode 1. Challenging another to a duel; Mode 2. Inciting another to give or accept a challenge to a duel; Mode 3. Scoffing at or decrying another publicly for having refused to accept a challenge to fight a duel. Persons Responsible under Art. 261: (1) Challenger (2) Instigators If one challenges another to a duel by shouting Come down, Olympia, let us measure your prowess. We will see whose intestines will come out. You are a coward if you do not come down, the crime of challenging to a duel is not committed. What is committed is the crime of light threats under Article 285, paragraph 1 of the Revised Penal Code.[People v. Tacomoy] CHAPTER II PHYSICAL INJURIES
ARTICLE 262 - MUTILATION

Mode 1: Mode 2: Mode 3:

Killing ones adversary in a duel; Inflicting upon such adversary physical injuries; Making a combat although no physical injuries have been inflicted.

Mode 1.

Persons liable (1) The person who killed or inflicted physical injuries upon his adversary, or both combatants in any other case, as principals. (2) The seconds, as accomplices. Duel is a formal or regular combat previously consented to by two parties in the presence of two or more seconds of lawful age on each side, who make the selection of arms and fix all the other conditions of the fight to settle some antecedent quarrel. Persons Liable: (1) The person who killed or inflicted physical injuries upon his adversary, or both combatants in any other case, as principals. (2) The seconds, as accomplices There is no such crime nowadays because people hit each other even without entering into any preconceived agreement. This is an obsolete provision.
PAGE 177

Intentionally mutilating another by depriving him, either totally or partially, of some essential organ for reproduction; (Mutilation)

Elements: (1) There be a castration, that is, mutilation of organs necessary for generation, such as the penis or ovarium; (2) The mutilation is caused purposely and deliberately Mode 2. Intentionally making other mutilation, that is, by lopping or clipping off any part of the body of the offended party, other than the essential organ for reproduction, to deprive him of that part of his body. (Mayhem).

Intent to mutilate must be established. If there is no intent, the crime is only serious physical injury. The offender must have the intention to deprive the offended party of a part of his body. If there is no

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

such intention, the crime will be serious physical injuries. MUTILIATION the lopping or clipping off of some part of the body CASTRATION - intentionally mutilating another by depriving him, either totally or partially, of some essential organ for reproduction MAYHEM - intentionally making other mutilation other than some essential organ for reproduction and to deprive him of that part of the body
ARTICLE 263 - SERIOUS PHYSICAL INJURIES

Loss of the use of hand, or incapacity for work under the second type, must be permanent. All the body parts mentioned in the second type are principal members of the body (eye, hand, foot etc.) The third type covers any other part of the body which is not a principal member of the body. Deformity physical ugliness, permanent and definite abnormality. It must be conspicuous and visible. Elements of deformity: (a) physical ugliness, (b) permanent and definite abnormality, and (c) it must be conspicuous and visible. All these elements must concur. Deformity by loss of teeth refers to injury which cannot be repaired by the action of nature. Loss of both outer ears is a deformity. Loss of the lobule of the ear is a deformity. Loss of index and middle fingers only is either deformity or loss of a member, not a principal one, of his body or use of the same. Loss of power to hear of right ear only is loss of use of other part of body. Illness when the wound inflicted did not heal with a certain period of time. Note that under serious physical injuries of the fourth type, illness or incapacity is required, NOT medical attendance. Paragraphs 2 and 3 refers to the work in which he was theretofore habitually engaged Must the injured party have an avocation at the time at the time of the injury? YES, insofar as these two paragraphs are concerned. Incapacity therefore must related to a certain kind of work only. However, in paragraph 4, incapacity for any kind of work is acceptable, because the phrase incapacity for labor is used. Injury requiring hospitalization for more than thirty days is serious physical injuries under paragraph 4. When the category of the offense of serious physical injuries depends on the period of illness or incapacity for labor, there must be evidence of the length of

Modes of Commission: (1) By wounding; (2) By beating; (3) By assaulting; or (4) By administering injurious substance. (Art. 264) Levels of Penalty: When the injured person, in consequence of the physical injuries inflicted (1) becomes insane, imbecilic, impotent or blind (2) loses the use of speech or the power to hear or to smell, or loses an eye, a hand, afoot, an arm, or a leg; (3) loses the use of any such member; (4) becomes incapacitated for the work in which he was theretofore habitually engaged, in consequence of the physical injuries inflicted; (5) becomes deformed; or (6) loses any other member of his body; (7) loses the use thereof; or (8) becomes ill or incapacitated for the performance of the work in which he was habitually engaged for more than 90 days in consequence of the physical injuries inflicted; (9) becomes ill or incapacitated for labor for more than 30 days (but must not be more than 90 days), as a result of the physical injuries inflicted. In physical injuries, there must not be intent to kill, otherwise the crime is frustrated/attempted murder or homicide as the case may be. Impotence under first type means an inability to copulate. It is used synonymously with sterility. Penalty under the first type is one degree higher when the victim is under 12 years of age. Blindness under the second type must be of two eyes. If there is loss of one eye only, the serious physical injuries is of the second type. Loss of power to hear under the second type must be of both ears. If hearing in only one ear is lost, it falls under the third type.
PAGE 178

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

that period; otherwise, the offense is only slight physical injuries. Lessening of efficiency due to injury is NOT incapacity. Distinguished from mutilation: In mutilation, the body parts should have been purposely and deliberately lopped or clipped off. This intention is not present in serious physical injuries.
ARTICLE 264 - ADMINISTERING INJURIOUS SUBSTANCES OR BEVERAGES

(c) The ugliness will not disappear through natural healing process.

Illustration: (1) Loss of molar tooth This is not deformity as it is not visible. (2) Loss of permanent front tooth This is deformity as it is visible and permanent. (3) Loss of milk front tooth This is not deformity as it is visible but will be naturally replaced. Serious physical injuries is punished with higher penalties in the following cases: (1) If it is committed against any of the persons referred to in the crime of parricide under Article 246; (2) If any of the circumstances qualifying murder attended its commission. See Special Law: RA 8049 (The Anti-Hazing Law) See Special Law: RA 9745 (The Anti-Torture Law)
ARTICLE 265 - LESS SERIOUS PHYSICAL INJURIES

Elements: (1) Offender inflicted upon another any serious physical injury; (2) It was done by knowingly administering to him any injurious substance or beverages or by taking advantage of his weakness of mind or credulity; (3) He had no intent to kill. Physical Injuries vs. Attempted or Frustrated homicide Physical Injuries Attempted or Frustrated homicide The offender inflicts physical injuries. Attempted homicide may be committed, even if no physical injuries are inflicted.

Offender has no intent to The offender has an intent kill the offended party to kill the offended party. The reason why there is no attempted or frustrated crime of physical injuries is because this felony is defined by the gravity of the injury. It is a crime of result. As long as there is no injury, there can be no attempted or frustrated stage thereof. Classification of physical injuries: (1) Between less serious physical injuries and serious physical injuries, you do not consider the period of medical treatment. You only consider the period when the offended party is rendered incapacitated for labor. (2) When the injury created a deformity upon the offended party, you disregard the healing duration or the period of medical treatment involved. At once, it is considered serious physical injuries. (3) Deformity requires the concurrence of the following conditions: (a) The injury must produce ugliness; (b) It must be visible;

Elements: (1) Offended party is incapacitated for labor for 10 days or more (but not more than 30 days), or needs medical attendance for the same period of time; (2) The physical injuries must not be those described in the preceding articles. Qualified as to penalty (1) A fine not exceeding P 500.00, in addition to arresto mayor, when (a) There is a manifest intent to insult or offend the injured person; or (b) There are circumstances adding ignominy to the offense. (2) A higher penalty is imposed when the victim is either: (a) The offenders parents, ascendants, guardians, curators or teachers; or (b) Persons of rank or person in authority, provided the crime is not direct assault.
ARTICLE 266 - SLIGHT PHYSICAL INJURIES AND MALTREATMENT

Mode 1.

Physical injuries incapacitated the offended party for labor from 1-9 days, OR required medical attendance during the same period; Physical injuries which did not prevent

Mode 2.

PAGE 179

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

the offended party from engaging in his habitual work or which did not require medical attendance; Mode 3. Ill-treatment of another by deed without causing any injury.

otherwise unconscious; (c) By means of fraudulent machination or grave abuse of authority; (d) When the woman is under 12 years of age (Statutory Rape) or is demented. Mode 2: Rape Through Sexual Assault

This involves even ill-treatment where there is no sign of injury requiring medical treatment. Slapping the offended party is a form of ill-treatment which is a form of slight physical injuries. But if the slapping is done to cast dishonor upon the person slapped, or to humiliate or embarrass the offended party out of a quarrel or anger, the crime is slander by deed. Between slight physical injuries and less serious physical injuries, not only the healing duration of the injury will be considered but also the medical attendance required to treat the injury. So the healing duration may be one to nine days, but if the medical treatment continues beyond nine days, the physical injuries would already qualify as less serious physical injuries. The medical treatment may have lasted for nine days, but if the offended party is still incapacitated for labor beyond nine days, the physical injuries are already considered less serious physical injuries. Where there is no evidence of actual injury, it is only slight physical injuries. In the absence of proof as to the period of the offended partys incapacity for labor or of the required medical attendance, the crime committed is slight physical injuries. See Special Law: RA 7610 (Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act)
ARTICLE 266-A - RAPE (AMENDED BY RA 8353)

Elements: (1) Offender commits an act of sexual assault; (2) The act of sexual assault is committed by any of the following means: (a) By inserting his penis into another person's mouth or anal orifice; or (b) By inserting any instrument or object into the genital or anal orifice of another person; (3) The act of sexual assault is accomplished under any of the following circumstances: (a) By using force or intimidation; or (b) When the woman is deprived of reason or otherwise unconscious; or (c) By means of fraudulent machination or grave abuse of authority; or (d) When the woman is under 12 years of age or demented. Classification of rape (1) Traditional Rape (a) Offended party is always a woman (b) Offender is always a man. (2) Sexual assault (a) Rape can now be committed by a man or a woman, that is, if a woman or a man uses an instrument on anal orifice of male, she or he can be liable for rape. (b) Inserting a finger inside the genital of a woman is rape through sexual assault within the context of object. Penalties Traditional Rape Sexual Assault In general: Reclusion In general: Prision perpetua mayor (A) Committed: (1) with the use of a deadly weapon; or (2) by 2 or more persons Reclusion perpetua to Prision mayor to death reclusion temporal (B) Victim becomes insane by reason or on the occasion of rape Reclusion perpetua to Reclusion temporal death (C) Rape is attempted & homicide is committed by reason or on the occasion thereof Reclusion perpetua to Reclusion temporal to

Mode 1:

Rape through sexual intercourse without consent of the woman: (Traditional Rape)

Elements: (1) Offender is a man; (2) Offender had carnal knowledge of a woman; (3) Such act is accomplished under any of the following circumstances: (a) By using force, threat or intimidation; (b) When the woman is deprived of reason or is

PAGE 180

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

death reclusion perpetua (D) Rape is consummated & homicide is committed by reason or on the occasion thereof (a special complex crime) Death Reclusion perpetua Committed with any of the ff. aggravating circumstances: (1) On the VICTIM: (a) victim is under 18 yrs. old, & the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity w/in the rd 3 civil degree, or the common law spouse of the parent of the victim (b) victim is under the custody of the police / military authorities / law enforcement agency (c) victim is a religious and such legitimate vocation is known by the offender before or at the time of rape (d) victim is a child below 7 yrs. old (e) victim suffered permanent or physical mutilation or disability by reason or on the occasion of rape (2) On the OFFENDER: (a) Offender is afflicted with a sexually transmissible disease & the virus / disease is transmitted to the victim (b) Offender is a member of the AFP / PNP / any law enforcement agency / penal institution, & took advantage of his position (c) Offender knew of the pregnancy of the offended party at the time of the commission of rape (d) Offender knew of the mental disability, emotional disorder, & / or physical handicap of the offended party at the time of the commission of rape (3) On 3 PERSONS: Rape is committed in full view of the of the spouse, parent, any of the rd children, or other relatives w/in the 3 civil degree of consanguinity Old Anti-Rape Law vs. RA 8353 Old Anti-Rape Law Crime against chastity May be committed by a man against a woman only PRIVATE CRIME Complaint must be filed by the woman or her RA 8353 Crime against persons nd Under the 2 type, sexual assault may be committed by ANY PERSON against ANY PERSON May be prosecuted even if the woman does not file a complaint
RD

Old Anti-Rape Law parents, grandparents or guardian if the woman was a minor or incapacitated Marriage of the victim w/ one of the offenders benefits not only the principal but also the accomplices and accessories Marital rape recognized NOT

RA 8353

Marriage extinguishes the penal action only as to the principal (the person who married the victim), and cannot be extended to coprincipals in case of MULTIPLE RAPE Marital rape recognized

Complete penetration is NOT necessary. The slightest penetrationcontact with the labiawill consummate the rape. Rape must have specific intent or lewd design. A soldier raped a 19-year old student by poking a knife on her neck. Only a portion of his penis entered her vagina because the victim kept on struggling until she was able to escape. The accused was convicted of frustrated rape. There is NO crime of FRUSTRATED RAPE because in rape, from the moment the offender has carnal knowledge of the victim, he actually attains his purpose, all the essential elements of the offense have been accomplished. [People v. Orita] The accused had his pants down and was on top of the 4-year old child when the childs mother arrived. Medical findings showed no signs of genital injury and the victims hymen was intact. For rape to be consummated, a slight brush or scrape of the penis on the external layer of the vagina will not suffice. Mere touching of the external layer of the vagina without the intent to enter the same cannot be construed as slight penetration. Accused is only liable for ATTEMPTED RAPE. Conviction does not require a medico-legal finding of any penetration on the part of the woman. Force employed against the victim of the rape need not be of such character as could be resisted. When the offender has an ascendancy or influence over the girl, it is not necessary that she put up a determined

PAGE 181

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

resistance. A rape victim does not have the burden of proving resistance. Rape by means of fraudulent machinations and grave abuse of authority absorbs the crime of qualified and simple seduction. Statutory Rape is the rape of a woman who is below 12 years of age. In statutory rape, the under twelve years old victim is conclusively presumed incapable of giving consent to sexual intercourse with another. [People v. Negosa, GR No. 142856-57, Aug. 25, 2003] Statutory rape is consummated when the victim is below 12 yrs. old. Victims consent is immaterial. Offenders knowledge of the victims age is immaterial in statutory rape. Carnal knowledge of a child below 12 yrs. old even if she is engaged in prostitution is still considered statutory rape. [People v. Campuhan] A 16-year old mental retardate, who has the intellectual capacity of a 9, was repeatedly raped by the accused. The accused was found guilty of raping a woman deprived of reason or otherwise unconscious, and was also held liable for rape under the provision that pertains to a victim under 12 notwithstanding the victims actual age. Age requirement was subsequently amended to refer also to mental age. Incestuous rape refers to rape committed by an ascendant of the offended woman. [People v. Atento] Gallo was found guilty of the crime of qualified rape with the penalty of death. The information filed against him does not allege his relationship with the victim, his daughter, thus, it CANNOT be considered as a qualifying circumstance. Special qualifying circumstances have to be alleged in the information for it to be appreciated. The case was reopened and the judgment is modified from death to reclusion perpetua. [People v. Gallo] A 14-year old was raped by her brother-in-law. To effectively prosecute the accused for the crime of rd rape committed by a relative by affinity w/in the 3 civil degree, it must be established that:

(1) the accused is legally married to the victims sister; and (2) the victim and the accuseds wife are full or halfblood siblings. Since relationship qualifies the crime of rape, there must be clearer proof of relationship and in this case, it was not adequately substantiated. [People v. Berana] Unconscious or Deprived of Reason Deprived or reason or unconscious mean that the victim has no will to give consent intelligently and freely. The inquiry should likewise determine whether the victim was fully informed of all considerations so as to make a free and informed decision regarding the grant of consent. Whether the complaint stated that the victim was fast asleep or half-asleep or drowsy or semiconscious is not determinative of the crime of rape. For he who lies with a woman while the latter is in a state of being drowsy is guilty of rape. Drowsiness is defined as the state of being drowsy, i.e., ready to fall asleep or half-asleep. [People v. Siarza, Jr., GR No. L117682, Aug. 18, 1997] Rape through Sexual Assault The insertion of appellants fingers constituted consummated rape through sexual assault under RA 8353. The contact of the males penis with the womans vagina is referred to as rape with sexual intercourse, while the sexual abuse under par.2 of Art.266-A, RPC is categorized as rape through sexual assault. In People vs. Soriano [G.R. Nos 142779-95, 388 SCRA 140], it was ruled that the appellant is guilty of Rape through Sexual Assault when he inserted his finger into the vagina of the victim. [People v. Palma, GR No. 148869-74, Dec. 11, 2003] Insertion of penis into the mouth of a 10-year old boy is Rape by Sexual Assault punished under par.2, Article 266-A, RPC. [Ordinario v. People, et al., GR No. 155415, May 20, 2004] Evidence which may be accepted in the prosecution of rape: (1) Any physical overt act manifesting resistance against the act of rape in any degree from the offended party; or (2) Where the offended party is so situated as to render him/her incapable of giving his consent Rape shield rule: Character of the offended woman is immaterial in rape.

PAGE 182

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

An accused may be convicted of rape on the sole testimony of the offended woman. When several persons conspired to rape a single victim, each shall be liable for the rape committed personally by him, as well as those committed by the others. An accused may be considered a principal by direct participation, by inducement, or by indispensable cooperation. This is true in a charge of rape against a woman, provided, a man is charged together with her. What Determines the Number of Times the Victim was Raped? Appellant ejaculated twice during the time that he consummated the rape. Appellant did not withdraw his penis to insert it again into the vagina or to touch the labia majora and the labia minora when he ejaculated the second time. It is not the number of times that appellant ejaculated but the penetration or touching that determines the consummation of the sexual act. Thus appellant committed only one count of rape.[People v. Ferrer, GR No. 142662, Aug. 14, 2001; People v. Orilla, GR No. 148939-40, Feb. 13, 2004] Effect of Pardon (1) Subsequent valid marriage between the offender and the offended party shall extinguish the criminal action or the penalty imposed. (2) When the legal husband is the offender, the subsequent forgiveness by the wife as the offended party shall extinguish the criminal action or the penalty, provided that their marriage is NOT VOID ab initio. Jurisprudence on TITLE EIGHT: Frustrated Homicide By invoking self-defense, accused, in fact, admitted that he inflicted injuries on the victim. The burden of proving with clear and convincing evidence the justifying circumstances to exculpate him from criminal liability was thereby shifted to him. [De Leon v. People (2007)] Homicide Direct evidence of the crime is not the only matrix wherefrom a trial court may draw its conclusion and finding of guilt. The rules of evidence allow a trial court to rely on circumstantial evidence to support its conclusion of guilt. Circumstantial evidence is that evidence which proves a fact or series of facts from which the facts in

issue may be established by inference. At times, resort to circumstantial evidence is imperative since to insist on direct testimony would, in many cases, result in setting felons free and deny proper protection to the community. All the circumstances must be consistent with one another, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with the hypothesis that he is innocent. Thus, conviction based on circumstantial evidence can be upheld, provided that the circumstances proven constitute an unbroken chain which leads to one fair and reasonable conclusion that points to the accused, to the exclusion of all others, as the guilty person. [Salvador v. People (2008)] Murder Murder is committed by any person who, not falling within the provisions of Article 246 of the Revised Penal Code (RPC), kills another, if the killing is committed with treachery. The essence of treachery is the sudden and unexpected attack by an aggressor on an unsuspecting victim, depriving the latter of any real chance to defend himself and thereby ensuring its commission without risk to himself. The killing occurred at around two oclock in the morning, an hour when generally people are asleep and the victim was shot at the back. [People v. Bohol (2008)] Qualified Rape There is qualified rape when the facts alleged in the Information and the facts proven in court establish the qualifying circumstances of minority and relationship. [People v. Abellano (2007)] A stepfather, who exercises moral and physical ascendancy over his stepdaughter, need not make any threat against her because the latter is cowed into submission when gripped with the fear of refusing the advances of a person she customarily obeys. Rape may, likewise, be committed in a room adjacent to where the victim's family is sleeping, or even in a room shared with other people. There is no rule that rape can only be committed in seclusion. [People v. Glivano (2008)] Rape Physical resistance need not be established in rape when intimidation is exercised upon the victim who

PAGE 183

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

submits against her will to the rapists lust because of fear for her life or personal safety. The force, violence or intimidation in rape is a relative term, depending not only on the age, size, and strength of the parties but also on their relationship with each other. Because of the victims youthfulness, coupled with the fact that the assailant is her stepfather, it was easy for her to believe that appellant would make good his threat to kill her should she resist. [People v. Tuazon (2007)] Rape An information is valid as long as it distinctly states the elements of the offense and the acts or omissions constitutive thereof. The precise time or date of the commission of an offense need not be alleged in the complaint or information, unless it is an essential element of the crime charged. In rape, it is not. The gravamen of rape is carnal knowledge of a woman through force and intimidation. In fact, the precise time when the rape takes place has no substantial bearing on its commission. As such, the date or time need not be stated with absolute accuracy. It is sufficient that the complaint or information states that the crime has been committed at any time as near as possible to the date of its actual commission. [People v. Domingo (2007)] Rape BY a Minor The accused at the time of the commission of the offense was only 13 years old and it occurred prior to RA 9344 or the Juvenile Justice and Welfare Act of 2006. The subsequently enacted law should be construed to retroact in favor of the accused. While the latter is now 25 years old as of this decision, he is still exculpated from criminal liability. However, RA 9344 does not relieve the minor of civil liability arising from the offense. [Ortega v. People (2008)] See Also: (1) RA 9262: Anti-Violence against Women and their Children (2) RA 9775: Anti-Child Pornography Law (3) RA 8049: Anti-Hazing Law (4) RA 7610: Special Protection of Children Against Child Abuse (5) RA 9344: Juvenile Justice and Welfare act (6) PD 603: Child and Youth Welfare Code

(7) RA 9372: Human Security Act

Title IX. Crimes against Personal Liberty and Security


Chapter I: Crimes against Liberty (1) Article 267 - Kidnapping and Serious Illegal Detention (2) Article 268 - Slight Illegal Detention (3) Article 269 - Unlawful Arrest (4) Article 270 - Kidnapping and Failure to Return a Minor (5) Article 271 - Inducing a Minor to Abandon His Home (6) Article 272 Slavery (7) Article 273 - Exploitation of Child Labor (8) Article 274 - Services Rendered Under Compulsion in Payment of Debt Chapter II: Crimes against Security (1) Article 275 - Abandonment of Persons in Danger and Abandonment of Own Victim (2) Article 276 - Abandoning a Minor (3) Article 277 - Abandonment of Minor by Person Entrusted With Custody; Indifference of Parents (4) Article 278 - Exploitation of Minors (5) Article 280 - Qualified Trespass to Dwelling (6) Article 281 - Other Forms of Trespass (7) Article 282 - Grave Threats (8) Article 283 - Light Threats (9) Article 284 - Bond for Good Behavior (10) Article 285 - Other Light Threats (11) Article 286 - Grave Coercions (12) Article 287 - Light Coercions (13) Article 288 - Other Similar Coercions (14) Article 289 - Formation, Maintenance, and Prohibition of Combination of Capital or Labor through Violence or Threats Chapter III: Discovery and Revelation of Secrets (1) Article 290 - Discovering Secrets through Seizure of Correspondence (2) Article 291 - Revealing Secrets with Abuse of Office (3) Article 292 - Revelation of Industrial Secrets CHAPTER I CRIMES AGAINST LIBERTY
ARTICLE 267 DETENTION

- KIDNAPPING AND SERIOUS ILLEGAL

Elements: (PICK) (1) Offender is a private individual; (2) He kidnaps or detains another, or in any
PAGE 184

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

other manner deprives the latter of his liberty; (3) The act of detention or kidnapping must be illegal; (4) In the commission of the offense, any of the following circumstances is present: (a) The kidnapping lasts for more than 3 days; (b) it is committed simulating public authority; (c) Any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or (d) The person kidnapped or detained is a minor, female, or a public officer. The essential element of kidnapping is the deprivation of the offended partys liberty under any of the four instances enumerated. But when the kidnapping was committed for the purpose of extorting ransom, it is not necessary that one or any of circumstances enumerated be present. Qualifying Circumstances: (r kt) (1) Purpose is to extort ransom. (2) When the victim is killed or dies as a consequence of the detention. (3) When the victim is raped. (4) When victim is subjected to torture or dehumanizing acts. The offenders here are private individuals or public officers acting in their private capacity. If they are public officers, they are covered by the crimes under Title 2. When a public officer conspires with a private person in the commission of any of the crimes under Title IX, the crime is also one committed under this title and not under Title II. The purpose is immaterial when any of the circumstances in the first paragraph of Art. 267 is present. Definition of ransom: It is the money, price or consideration paid or demanded for redemption of a captured person or persons, a payment that releases a person from captivity. When the kidnapping was done to extort ransom, it is not necessary that one or any of circumstances enumerated be present.
2

Actual demand for ransom not necessary, as long as it can be proven that the kidnapping was done for the purpose of extorting money. In the crime of Kidnapping for Ransom, ransom means money, price or consideration paid or demanded for the redemption of a captured person that would release him from captivity. No specific form of ransom is required to consummate the felony as long as the ransom was intended as a bargaining chip in exchange for the victims freedom. Whether or not ransom is actually paid to or received by the perpetrator is of no moment. [People v. Jatulan, GR No. 171653, April 24, 2007] Essential: There be actual confinement or restriction of the person of the offended party. It is not necessary that the victim be placed in an enclosure, as long as he is deprived, in any manner, of his liberty. It suffices that there be actual or manifest restraint on the person or liberty of the victim. Accused were guilty of kidnapping although the victim was found, at the time of her rescue, outside of the house where she was brought, talking to the house owner who was the uncle of the accused. Her failure to attempt to escape was explained by her to be due to her fear and threats of the accused to kill her should she do so. In kidnapping, it is not necessary that the offended party be kept within an enclosure to restrict her freedom of locomotion. [People v. Cortez, et al., GR No. 131619-20, Feb 1, 2000] The victims lack of consent is also a fundamental element of kidnapping and serious illegal detention. The involuntariness of the seizure and detention is the very essence of the crime. Although the victim may have inceptually consented to go with the offender to a place, but the victim is thereafter prevented, with the use of force, from leaving the place where he was brought to with his consent and is detained against his will, the offender is still guilty of kidnapping and serious illegal detention. [People v. Pickrell, GR No. 120409, Oct. 23, 2003] When detention is illegal: It is not ordered by competent authority nor permitted by law. Special complex crime of Kidnapping with Murder: When the victim dies or is killed as a consequence of the detention, which is covered by the last paragraph of Art. 267 as amended. Forcible abduction: If a woman is transported from one place to another by virtue of restraining her of her liberty, and that act is coupled with lewd designs.

PAGE 185

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

Serious illegal detention: If a woman is transported just to restrain her of her liberty. There is no lewd design or lewd intent. Grave coercion: If a woman is carried away just to break her will, to compel her to agree to the demand or request by the offender. Illegal detention Committed by a private individual who unlawfully deprives a person of his liberty Crime against personal liberty Arbitrary detention Committed by public officer or employee who detains a person without legal ground Crime against the fundamental laws of the State

Neither actual demand for nor payment of ransom is necessary for the consummation of the felony. It is sufficient that the deprivation of liberty was for extorting ransom even if none of the four circumstances mentioned in Article 267 were present in its perpetration. [People v. Cenahonon (2007)] Article 267 has been modified by Republic Act No. 7659 (AN ACT TO IMPOSE THE DEATH PENALTY ON CERTAIN HEINOUS CRIMES, AMENDING FOR THAT PURPOSE THE REVISED PENAL LAWS, AS AMENDED, OTHER SPECIAL PENAL LAWS, AND FOR OTHER PURPOSES) in the following respects: (1) Illegal detention becomes serious when it shall have lasted for more than three days, instead of five days as originally provided; (2) In paragraph 4, if the person kidnapped or detained was a minor and the offender was anyone of the parents, the latter has been expressly excluded from the provision. The liability of the parent is provided for in the last paragraph of Article 271; (3) A paragraph was added to Article 267, which states: When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to torture, or dehumanizing acts, the maximum penalty shall be imposed. (4) The amendment introduced in our criminal statutes the concept of "special complex crime" of kidnapping with murder or homicide. (5) It eliminated the distinction drawn by the courts between those cases where the killing of the kidnapped victim was purposely sought by the accused, and those where the killing of the victim was not deliberately resorted to but was merely an afterthought.
ARTICLE 268 - SLIGHT ILLEGAL DETENTION

Where the evident purpose of taking the victim was to kill him, and from the acts of the accused it cannot be inferred that the latters purpose was to actually detain or deprive the victim of his liberty, the subsequent killing of the victim did not constitute the crime of kidnapping. The demand for ransom did not convert the crime into kidnapping, since no deprivation of liberty was involved. [People v Padica (1993)] The essence of kidnapping is the actual deprivation of the victims liberty coupled with the intent of the accused to effect it. [People v Luartes (1999)] The duration of the detention even if only for a few hours does not alter the nature of the crime committed. [People v Pavillare (2000)] Physical detention is not necessary. It is enough that the victim is under the complete control of the perpetrators as in this case when the Japanese victim had to rely on his abductors for survival after he was tricked into believing that the police was after him. It was also held in this case that keeping a person as collateral for payment of an obligation is kidnapping. [People v. Tomio] The elements of kidnapping for ransom under Article 267 of the Revised Penal Code (RPC), as amended by Republic Act (R.A.) 7659 warranting the imposition of the death penalty, are as follows: (1) intent on the part of the accused to deprive the victim of his liberty; (2) actual deprivation of the victim of his liberty; and (3) motive of the accused, which is extorting ransom for the release of the victim.

Elements: (PrIKO) (1) Offender is a private individual; (2) He kidnaps or detains another, or in any other manner deprives him of his liberty. (3) The act of kidnapping or detention is illegal; (4) The crime is committed without the attendance of any of the circumstances enumerated in Article 267. This felony is committed if any of the five circumstances in the commission of kidnapping or detention enumerated in Article 267 is not present. The penalty is lowered if: (1) The offended party is voluntarily released within three days from the start of illegal detention; (2) Without attaining the purpose; (3) Before the institution of the criminal action.

PAGE 186

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

The prevailing rule now is Asistio v. Judge, which provides that voluntary release will only mitigate criminal liability if crime was slight illegal detention. If serious, it has no effect. The liability of one who furnishes the place where the offended party is being held captive is that of a principal and not of an accomplice.
ARTICLE 269 - UNLAWFUL ARREST

Delay in The Delivery of Unlawful Arrest (Art. 269) Detained Persons (Art. 125) Crime is committed by Committed by making an failing to deliver such arrest not authorized by person to the proper law judicial authority within a certain period.
ARTICLE MINOR

270 - KIDNAPPING AND FAILURE TO RETURN A

Elements: (ADU) (1) Offender arrests or detains another person; (2) The purpose of the offender is to deliver him to the proper authorities; (3) The arrest or detention is not authorized by law or there is no reasonable ground therefor. (unauthorized). This felony consists in making an arrest or detention without legal or reasonable ground for the purpose of delivering the offended party to the proper authorities. Generally, this crime is committed by incriminating innocent persons by the offenders planting evidence to justify the arrest a complex crime results, that is, unlawful arrest through incriminatory machinations under Article 363. If the arrest is made without a warrant and under circumstances not allowing a warrantless arrest, the crime would be unlawful arrest. If the person arrested is not delivered to the authorities, the private individual making the arrest incurs criminal liability for illegal detention under Article 267 or 268. If the offender is a public officer, the crime is arbitrary detention under Article 124. If the detention or arrest is for a legal ground, but the public officer delays delivery of the person arrested to the proper judicial authorities, then Article 125 will apply. Note: This felony may also be committed by public officers. Unlawful Arrest vs. Delay in the Delivery of Detained Persons Delay in The Delivery of Unlawful Arrest (Art. 269) Detained Persons (Art. 125) Detention is for some legal ground. Detention is not authorized by law.

Elements: (EF) (1) Offender is entrusted with the custody of a minor person (whether over or under seven years but less than 18 years of age) (2) He deliberately fails to restore the said minor to his parents or guardians If any of the foregoing elements is absent, the kidnapping of the minor will then fall under Article 267. The essential element which qualifies the crime of kidnapping a minor under Art. 270 is that the offender is entrusted with the custody of the minor. If the accused is any of the parents, Article 267 does not apply; Articles 270 and 271 apply. If the taking is with the consent of the parents, the crime in Article 270 is committed. What is punished is the deliberate failure of the custodian of the minor to restore the latter to his parents or guardians. The deliberate failure to return a minor under ones custody constitutes deprivation of liberty. Kidnapping and failure to return a minor is necessarily included in kidnapping and serious illegal detention of a minor under Article 267(4). [People v. Generosa] Where a minor child was taken by the accused without the knowledge and consent of his parents, the crime is kidnapping and serious illegal detention under Article 267, not kidnapping and failure to return a minor under Article 270. [People v. Mendoza] Art. 270 distinguished from Art. 267 Art. 270 Offender is entrusted with the custody of the minor Art. 267 The offender is not entrusted with the custody of the minor.

PAGE 187

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

without remuneration whatever and to remain there so long as she has not paid her debt, there is slavery.
ARTICLE 271 - INDUCING A MINOR TO ABANDON HIS HOME

Elements: (LI) (1) A minor (whether over or under seven years of age) is living in the home of his parents or guardians or the person entrusted with his custody; (2) Offender induces said minor to abandon such home. Inducement must be (a) actual, and (b) committed with criminal intent The minor should not leave his home of his own free will. What constitutes the crime is the act of inducing a minor to abandon his home of his guardian, and it is not necessary that the minor actually abandons the home. Father or mother may commit the crimes in Art. 170 and 171 where they are living separately and the custody of the minor children is given to one of them.
ARTICLE 272 - SLAVERY

See Special Law: RA 9208 (Anti-Trafficking of Person Act of 2003)


ARTICLE 273 - EXPLOITATION OF CHILD LABOR

Elements: (RARage) (1) Offender retains a minor in his services; (2) It is against the will of the minor; (3) It is under the pretext of reimbursing himself of a debt incurred by an ascendant, guardian or person entrusted with the custody of such minor. The existence of indebtedness constitutes no legal justification for holding a person and depriving him of his freedom to live where he wills.
ARTICLE 274 - SERVICES RENDERED UNDER COMPULSION IN PAYMENT OF DEBT

Elements: (CAP) (1) Offender compels a debtor to work for him, either as a household servant or farm laborer; (2) It is against the debtors will; (3) The purpose is to require or enforce the payment of a debt. See Special Law: RA 9231 (Anti-Child Labor Act of 2003) Service under Compulsion distinguished from Exploitation of Child Labor Service under Compulsion Exploitation of Child Labor Does not distinguish Victim must be a minor whether the victim is a minor or not The debtor himself is the The minor is compelled one compelled to work to render services for the for the offender supposed debt of his parents or guardian Limited to household Service is not limited work or farm labor CHAPTER II: CRIMES AGAINST SECURITY
ARTICLE 275 - ABANDONMENT OF PERSONS IN DANGER AND ABANDONMENT OF OWN VICTIM

Elements: (PE) (1) Offender purchases, sells, kidnaps or detains a human being; (2) The purpose of the offender is to enslave such human being. This is committed if anyone shall purchase, kidnap, or detain a human being for the purpose of enslaving him. The penalty is increased if the purpose of the offender is to assign the offended party to some immoral traffic. If the purpose of the kidnapping or detention is to enslave the offended party, slavery is committed. The crime is slavery if the offender is not engaged in the business of prostitution. If he is, the crime is white slave trade under Article 341. The employment or custody of a minor with the consent of the parent or guardian, although against the childs own will, cannot be considered involuntary servitude. But where is proven that the defendant was obliged to render service in plaintiffs house as a servant

MODE 1:

Failing to render assistance to any person whom the offender finds in an uninhabited place, wounded or in danger of dying when he can render such assistance without detriment to himself, unless such omission shall constitute a more serious offense.

PAGE 188

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

Elements: (UWOF) (1) The place is not inhabited; (2) Accused found there a person wounded or in danger of dying; (3) Accused can render assistance without detriment to himself; (4) Accused fails to render assistance. MODE 2: Failing to help or render assistance to another whom the offender has accidentally wounded or injured; (FA) By failing to deliver a child, under seven years of age, whom the offender has found abandoned, to the authorities or to his family, or by failing to deliver him to a safe place. (SAD).

The ruling that the intent to kill is presumed from the death of the victim of the crime is applicable only to crimes against persons, and not to crimes against security, particularly the crime of abandoning a minor under Art. 276.
ARTICLE 277 - ABANDONMENT OF MINOR BY PERSON ENTRUSTED WITH CUSTODY; INDIFFERENCE OF PARENTS

MODE 1:

MODE 3:

Delivering a minor to a public institution or other persons without the consent of the one who entrusted such minor to the care of the offender or, in the absence of that one, without the consent of the proper authorities;

Does not apply: When a person intentionally wounds another and leaves him in an uninhabited place. Immaterial: That the offender did not know that the child is under seven years.
ARTICLE 276 - ABANDONING A MINOR

Elements: (1) Offender has charge of the rearing or education of a minor; (2) He delivers said minor to a public institution or other persons; (3) The one who entrusted such child to the offender has not consented to such act; or if the one who entrusted such child to the offender is absent, the proper authorities have not consented to it. MODE 2. Neglecting his (offenders) children by not giving them the education which their station in life requires and financial condition permits.

Elements: (SCAN) (1) Offender has the custody of a child; (2) The child is under seven years of age; (3) He abandons such child; (4) He has no intent to kill the child when the latter is abandoned. Circumstances qualifying the offense: (1) When the death of the minor resulted from such abandonment; or (2) If the life of the minor was in danger because of the abandonment. The purpose in abandoning the minor under his custody is to avoid the obligation of taking care of said minor. A permanent, conscious and deliberate abandonment is required in this article. There must be an interruption of the care and protection the minor needs by reason of his age. Intent to kill cannot be presumed from the death of the child. When there is intent to kill, this article does not apply. The purpose in abandoning the minor must be to avoid the obligation of taking care of said minor

Elements: (1) Offender is a parent; (2) He neglects his children by not giving them education; (3) His station in life requires such education and his financial condition permits it. Obligation to educate children terminates, if the mother and children refuse without good reason to live with the accused. Failure to give education must be due to deliberate desire to evade such obligation. If the parents cannot give education because they had no means to do so, then they will not be liable under this article.
ARTICLE 278 - EXPLOITATION OF MINORS

Mode 1.

Causing any boy or girl under 16 years of age to perform any dangerous feat of balancing, physical strength or contortion, the offender being any person; Employing children under 16 years of age who are not the children or descendants of the offender in exhibitions of acrobat, gymnast, rope-walker, diver, or wild-

Mode 2.

PAGE 189

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

animal tamer, the offender being an acrobat, etc., or circus manager or engaged in a similar calling; Mode 3. Employing any descendant under 12 years of age in dangerous exhibitions enumerated in the next preceding paragraph, the offender being engaged in any of the said callings; Delivering a child under 16 years of age gratuitously to any person following any of the callings enumerated in paragraph 2, or to any habitual vagrant or beggar, the offender being an ascendant, guardian, teacher or person entrusted in any capacity with the care of such child; Inducing any child under 16 years of age to abandon the home of its ascendants, guardians, curators or teachers to follow any person engaged in any of the callings mentioned in paragraph 2 or to accompany any habitual vagrant or beggar, the offender being any person.

ARTICLE 280 - QUALIFIED TRESPASS TO DWELLING

Elements (PrEA) (1) Offender is a private person; (2) He enters the dwelling of another; (3) Such entrance is against the latters will. DWELLING: This is the place that a person inhabits. It includes the dependencies which have interior communication with the house. It is not necessary that it be the permanent dwelling of the person; hence, a persons room in a hotel may be considered a dwelling. It also includes a room where one resides as a boarder. If the purpose in entering the dwelling is not shown, trespass is committed. If the purpose is shown, it may be absorbed in the crime as in robbery with force upon things, the trespass yielding to the more serious crime. If the purpose is not shown and while inside the dwelling he was found by the occupants, one whom he subsequently injured if there was a struggle, the crime committed will be trespass to dwelling and frustrated homicide or physical injuries, or if there was no injury, unjust vexation. If the entry is made by a way not intended for entry that is presumed to be against the will of the occupant (example, entry through a window). It is not necessary that there be a breaking. Against the will: This means that the entrance is, either expressly or impliedly, prohibited or the prohibition is presumed. Fraudulent entrance may constitute trespass. The prohibition to enter may be made at any time and not necessarily at the time of the entrance. To prove that an entry is against the will of the occupant, it is not necessary that the entry should be preceded by an express prohibition, provided that the opposition of the occupant is clearly established by the circumstances under which the entry is made, such as the existence of enmity or strained relations between the accused and the occupant. Offender is public officer: crime is violation of domicile.
PAGE 190

Mode 4.

Mode 5.

Circumstance qualifying the offense: (1) If the delivery of the child to any person following any of the calling of acrobat, gymnast, rope-walker, diver, wild-animal tamer or circus manager or to any habitual vagrant or beggar is made in consideration of any price, compensation or promise, the penalty is higher. (2) The offender is engaged in a kind of business that would place the life or limb of the minor in danger, even though working for him is not against the will of the minor. Nature of the Business: this involves circuses which generally attract children so they themselves may enjoy working there unaware of the danger to their own lives and limbs. Age: Must be below 16 years. Article 278 has no application if minor is 16 years old and above, but the exploitation will be dealt with by RA 7610. If the employer is an ascendant, the crime is not committed, unless the minor is less than 12 years old. If the minor so employed would suffer some injuries as a result of a violation of Article 278, Article 279 provides that there would be additional criminal liability for the resulting felony.

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

No overt act of the crime intended to be committed: Crime is trespass to dwelling. Examples of trespass by means of violence: (1) Pushing the door violently and maltreating the occupants after entering. (2) Cutting of a ribbon or string with which the door latch of a closed room was fastened. The cutting of the fastenings of the door was an act of violence. (3) Wounding by means of a bolo, the owner of the house immediately after entrance Examples of trespass by means of intimidation: (1) Firing a revolver in the air by persons attempting to force their way into a house. (2) The flourishing of a bolo against inmates of the house upon gaining an entrance In the prosecution for trespass, the material fact or circumstance to be considered is the occurrence of the trespass. The gravamen of the crime is violation of possession or the fact of having caused injury to the right of the possession. [Marzalado v. People]
ARTICLE 281 - OTHER FORMS OF TRESPASS

Qualified Trespass to Dwelling (Art. 280)

Other Forms of Trespass (Art. 281) the owner or caretaker thereof

Prohibition to enter is Prohibition to enter must express or implied be manifest


ARTICLE 282 - GRAVE THREATS

Mode 1.

Threatening another with the infliction upon his person, honor or property or that of this family of any wrong amounting to a crime and demanding money or imposing any other condition, even though not unlawful, and the offender attained his purpose;

Elements: (1) Offender enters the closed premises or the fenced estate of another; (2) The entrance is made while either of them is uninhabited; (3) The prohibition to enter is manifest; (4) The trespasser has not secured the permission of the owner or the caretaker thereof. Premises: signifies distinct and definite locality. It may mean a room, shop, building or definite area, but in either case, locality is fixed. Qualified Trespass vs. Other Forms of Trespass Qualified Trespass to Other Forms of Trespass Dwelling (Art. 281) (Art. 280) Offender person Offender dwelling is a private The offender is any person a Offender enters closed premises or fenced estate is

Elements: (1) That the offender threatens another person with the infliction upon the latters person, honor or property, or upon that of the latters family, of any wrong. (2) That such wrong amounts to a crime. (3) That there is a demand for money or that any other condition is imposed, even though not unlawful. (4) That the offender attains his purpose. Mode 2. Mode 3. Making such threat without the offender attaining his purpose; Threatening another with the infliction upon his person, honor or property or that of his family of any wrong amounting to a crime, the threat not being subject to a condition.

Elements: (1) That the offender threatens another person with the infliction upon the latters person, honor or property, or upon that of the latters family, of any wrong. (2) That such wrong amounts to a crime. (3) That the threat is not subject to a condition. Qualifying Circumstance: If threat was made (1) in writing OR (2) through a middleman. It is essential that there be intimidation. It is not necessary that the offended party was present at the time the threats were made. It is sufficient that the threats came to his knowledge.

enters

Place entered is inhabited Place entered uninhabited Act constituting the crime is entering the dwelling against the will of the owner

It is the entering the closed premises or the fenced estate without securing the permission of

PAGE 191

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

When consummated: As soon as the threats came to the knowledge of the offended party. As the crime consists in threatening another with some future harm, it is not necessary that the offended party was present at the time the threats were made. It is sufficient that the threats, came to the knowledge of the offended party. The crime of grave threats is consummated as soon as the threats come to the knowledge of the person threatened. Threats made in connection with the commission of other crimes are absorbed by the latter. The offender in grave threats does not demand the delivery on the spot of the money or other personal property demanded by him. When threats are made and money is taken on the spot, the crime may be robbery with intimidation. The penalties for the first two types of grave threats depend upon the penalties for the crimes threatened to be committed. One degree lower if the purpose is attained and two degrees lower if the purpose is not attained. If the threat is not subject to a condition, the penalty is fixed at arresto mayor and a fine not exceeding 500 pesos. In the first two types, if the threat is made in writing or thorough a middleman, the penalty is to be imposed in its maximum period. The third type of grave threats must be serious and deliberate; the offender must persist in the idea involved in his threats. The threat should not be made in the heat of anger, because such is punished under Article 285.If the condition is not proved, it is grave threats of the third type.
ARTICLE 283 - LIGHT THREATS ARTICLE 284 - BOND FOR GOOD BEHAVIOR

When a person is required to give bail bond: (1) When he threatens another under circumstances mentioned in Art. 282. (2) When he threatens another under circumstances mentioned in Art. 283.

the the

Bond for Good Behavior distinguished from Bond to Keep the Peace Bond for Good Behavior Bond to Keep the Peace Applicable only to grave Not made applicable to threats and light threats any particular case If offender fails to give If the offender fails to give bail, he shall be bond, he shall be sentenced to destierro detained for a period not exceeding 6 months (if prosecuted for grave/less grave felony) or not exceeding 30 days (light felony) NOT a distinct penalty A distinct penalty

ARTICLE 285 OTHER LIGHT THREATS

Mode 1.

Threatening another with a weapon, or by drawing such weapon in a quarrel, unless it be in lawful self-defense; Orally threatening another, in the heat of anger, with some harm constituting a crime, without persisting in the idea involved in his threat; Orally threatening to do another any harm not constituting a felony.

Mode 2.

Mode 3.

Under the first type, the subsequent acts of the offender must show that he did not persist in the idea involved in the threat. Threats which are ordinarily grave threats, if made in the heat of anger, may be other light threats. If the threats are directed to a person who is absent and uttered in a temporary fit of anger, the offense is only other light threats.
ARTICLE 286 - GRAVE COERCIONS

Elements: (1) Offender makes a threat to commit a wrong; (2) The wrong does not constitute a crime; (3) There is a demand for money or that other condition is imposed, even though not unlawful; (4) Offender has attained his purpose or, that he has not attained his purpose. The harm threatened must not be in the nature of crime and there is a demand for money or any other condition is imposed, even though lawful. Blackmailing may be punished under this article.
PAGE 192

Mode 1.

Preventing another, by means of violence, threats or intimidation, from doing something not prohibited by law;

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

Mode 2.

Compelling another, by means of violence, threats or intimidation, to do something against his will, whether it be right or wrong.

the damage arising to the owner from the interference, is much greater. (Art. 432, Civil Code) Neither the crime of threats nor coercion is committed although the accused, a branch manager of a bank made the complainant sign a withdrawal slip for the amount needed to pay the spurious dollar check she had encashed, and also made her execute an affidavit regarding the return of the amount against her better sense and judgment. The complainant may have acted reluctantly and with hesitation, but still, it was voluntary. [Lee v. CA]
ARTICLE 287 - LIGHT COERCIONS

Elements: (1) A person prevented another from doing something not prohibited by law, or that he compelled him to do something against his will; be it right or wrong; (2) The prevention or compulsion be effected by violence, threats or intimidation; and (3) The person that restrained the will and liberty of another had not the authority of law or the right to do so, or in other words, that the restraint shall not be made under authority of law or in the exercise of any lawful right. Purpose of the Law: To enforce the principle that no person may take the law into his hands, and that our government is one of law, not of men. Arises only if the act which the offender prevented another to do is not prohibited by law or ordinance. If a person prohibits another to do an act because the act is a crime, even though some sort of violence or intimidation is employed, it would not give rise to grave coercion. It may only give rise to threat or physical injuries, if some injuries are inflicted. In case of grave coercion where the offended party is being compelled to do something against his will, whether it be wrong or not, the crime of grave coercion is committed if violence or intimidation is employed in order to compel him to do the act. A public officer who shall prevent by means of violence or threats the ceremonies or manifestations of any religion is guilty of interruption of religious worship (Art. 132). Any person who, by force, prevents the meeting of a legislative body is liable under Art. 143. Any person who shall use force or intimidation to prevent any member of Congress from attending the meetings thereof, expressing his opinions, or casting his vote is liable under Art. 145. The crime is not grave coercion when the violence is employed to seize anything belonging to the debtor of the offender. It is light coercion under Art. 287. The owner of a thing has no right to prohibit the interference of another with the same, if the interference is necessary to avert an imminent danger and the threatened damage, compared to
PAGE 193

Elements: (1) Offender must be a creditor; (2) He seizes anything belonging to his debtor: (3) The seizure of the thing be accomplished by means of violence or a display of material force producing intimidation; (4) The purpose of the offender is to apply the same to the payment of the debt. Deals with light coercions wherein violence is employed by the offender who is a creditor in seizing anything belonging to his debtor for the purpose of applying the same to the payment of the debt. Unjust Vexation: Any act committed without violence, but which unjustifiably annoys or vexes an innocent person amounts to light coercion. It should include any human conduct which, although not productive of some physical or material harm would, however, unjustifiably annoy or vex an innocent person. Unjust Vexation is distinguished from grave coercion by the absence of violence.
ARTICLE 288 - OTHER SIMILAR COERCIONS

Mode 1. Forcing or compelling, directly or indirectly, or knowingly permitting the forcing or compelling of the laborer or employee of the offender to purchase merchandise of commodities of any kind from him; Elements: (1) Offender is any person, agent or officer of any association or corporation; (2) He or such firm or corporation has employed laborers or employees; (3) He forces or compels, directly or indirectly, or knowingly permits to be forced or compelled, any of his or its laborers or employees to purchase merchandise or commodities of any kind from him or from said firm or corporation.

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

Mode 2. Paying the wages due his laborer or employee by means of tokens or object other than the legal tender currency of the Philippines, unless expressly requested by such laborer or employee. Elements: (1) Offender pays the wages due a laborer or employee employed by him by means of tokens or object; (2) Those tokens or objects are other than the legal tender currency of the Philippines; (3) Such employee or laborer does not expressly request that he be paid by means of tokens or objects. General rule: wages shall be paid in legal tender and the use of tokens, promissory notes, vouchers, coupons or any other forms alleged to represent legal tender is absolutely prohibited even when expressly requested by the employee. (Section 1, Rule VIII, Book III, Omnibus Rules Implementing the Labor Code) No employer shall limit or otherwise interfere with the freedom of any employee to dispose of his wages. He shall not in any manner force, compel, oblige his employees to purchase merchandise, commodities or other property from the employer or from any other person. (Art. 112, Labor Code.)
ARTICLE 289 - FORMATION, MAINTENANCE, AND PROHIBITION OF COMBINATION OF CAPITAL OR LABOR THROUGH VIOLENCE OR THREATS

(4) Offender is informed of the contents of the papers or letters seized. This is a crime against the security of ones papers and effects. The purpose must be to discover its effects. The act violates the privacy of communication. The last paragraph of Article 290 expressly makes the provision of the first and second paragraph thereof inapplicable to parents, guardians, or persons entrusted with the custody of minors placed under their care or custody, and to the spouses with respect to the papers or letters of either of them. The teachers or other persons entrusted with the care and education of minors are included in the exceptions. Distinction from estafa, damage to property, and unjust vexation: (1) If the act had been executed with intent of gain, it would be estafa; (2) If, on the other hand, the purpose was not to defraud, but only to cause damage to anothers, it would merit the qualification of damage to property; (3) If the intention was merely to cause vexation preventing another to do something which the law does not prohibit or compel him to execute what he does not want, the act should be considered as unjust vexation. Relevant Special Penal Law: RA 4200 (ANTI WIRE TAPPING ACT)
ARTICLE 291 - REVEALING SECRETS WITH ABUSE OF OFFICE

Elements: (1) Offender employs violence or threats, in such a degree as to compel or force the laborers or employers in the free and legal exercise of their industry or work; (2) The purpose is to organize, maintain or prevent coalitions of capital or labor, strike of laborers or lockout of employers. Repealed by the Labor Code. CHAPTER III: DISCOVERY AND REVELATION OF SECRETS
ARTICLE 290 - DISCOVERING SECRETS THROUGH SEIZURE OF CORRESPONDENCE

Elements: (1) Offender is a manager, employee or servant; (2) He learns the secrets of his principal or master in such capacity; (3) He reveals such secrets. An employee, manager, or servant who came to know of the secret of his master or principal in such capacity and reveals the same shall also be liable regardless of whether or not the principal or master suffered damages. Essence of this crime is that the offender learned of the secret in the course of his employment. He is enjoying a confidential relation with the employer or master so he should respect the privacy of matters personal to the latter.

Elements: (1) Offender is a private individual or even a public officer not in the exercise of his official function; (2) He seizes the papers or letters of another; (3) The purpose is to discover the secrets of such another person;

PAGE 194

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

If the matter pertains to the business of the employer or master, damage is necessary and the agent, employee or servant shall always be liable. Reason: no one has a right to the personal privacy of another.
ARTICLE 292 - REVELATION OF INDUSTRIAL SECRETS

(10) Article 303 - Robbery of Cereals, Fruits or Firewood in an Inhabited Place or Private Building (11) Article 304 - Possession of Picklock or Similar Tools (12) Article 305 - Defines False Keys Chapter 2: Brigandage (1) Article 306 - Who Are Brigands (2) Article 307 - Aiding and Abetting a Band of Brigands Chapter 3: Theft (1) Article 308 - Who Are Liable for Theft (2) Article 309 Penalties (3) Article 310 - Qualified Theft (4) Article 311 - Theft of the Property of the National Library and National Museum Chapter 4: Usurpation (1) Article 312 - Occupation of Real Property or Usurpation of Real Rights in Property (2) Article 313 - Altering Boundaries or Landmarks Chapter 5: Culpable Insolvency (1) Article 314 - Fraudulent Insolvency Chapter 6: Swindling (1) Article 315 Estafa (2) Article 316 - Other Forms of Swindling (3) Article 317 - Swindling of a Minor (4) Article 318 - Other Deceits Chapter 7: Chattel mortgage (1) Article 319 - Removal, Sale, or Pledge of Mortgaged Property Chapter 8: Arson and other Crimes involving Destruction Chapter 9: Malicious mischief (1) Article 327 - Who Are Responsible (2) Article 328 - Special Cases of Malicious Mischief (3) Article 329 - Other Mischiefs (4) Article 330 - Damage and Obstruction to Means of Communication (5) Article 331 - Destroying or Damaging Statues, Public Monuments or Paintings Chapter 10: Exemption from Criminal Liability (1) Article 332 - Exemption from Criminal Liability in Crimes Against Property. CHAPTER I: ROBBERY IN GENERAL
ARTICLE 293 - WHO ARE GUILTY OF ROBBERY

Elements: (1) Offender is a person in charge, employee or workman of a manufacturing or industrial establishment; (2) The manufacturing or industrial establishment has a secret of the industry which the offender has learned; (3) Offender reveals such secrets; (4) Prejudice is caused to the owner. Secrets must relate to manufacturing processes. The act constituting the crime is revealing the secret of the industry which the offender has learned. The revelation of the secret might be made after the employee or workman had ceased to be connected with the establishment. Prejudice is an element of the offense.

Title X. Crimes against Property


Chapter I: Robbery in General (1) Article 293 - Who Are Guilty of Robbery (2) Article 294 - With Violence or Intimidation of Persons (3) Article 295 - Robbery with Physical Injuries, in an Uninhabited Place and by a Band (4) Article 296 - Definition of a Band and Penalty Incurred by the Members Thereof (5) Article 297 - Attempted and Frustrated Robbery with Homicide (6) Article 298 - Execution of Deeds through Violence or Intimidation (7) Article 299 - Robbery in an Inhabited House or Public Building or Edifice Devoted to Worship (8) Article 300 - Robbery in an Uninhabited Place and by a Band (9) Article 302 -In an Uninhabited Place or Private Building

Elements of Robbery in General: (PAUI, V/I/F)


PAGE 195

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

(1) (2) (3) (4) (5)

Personal property Belonging to another There be Unlawful taking With Intent to gain Violence against or intimidation of any person OR force upon anything

intimidation only

offenders carry arms;

The property taken must be personal, if real property/right is usurped the crime is usurpation (Art. 312). Prohibitive articles may be the subject of robbery, e.g., opium From the moment the offender gains possession of the object, even without the chance to dispose of the same, the unlawful taking is complete. Taking: depriving the offended party of possession of the thing taken with the character of permanency. Intent to gain is presumed from the unlawful taking. It cannot be established by direct evidence, except in case of confession. It is not necessary that violence or intimidation is present from the beginning. The violence or intimidation at any time before asportation is complete, the taking of property is qualified to robbery. Violence against or intimidation of person The taking robbery. is Use of force upon things

ARTICLE 294 - WITH VIOLENCE OR INTIMIDATION OF PERSONS

always The taking is robbery only if force is used to: (1) enter the building VALUE OF THE (2) break doors, PROPERTY TAKEN IS wardrobes, chests, or any IMMATERIAL. other kind of locked or sealed furniture or receptacle inside the building; OR (3) force them open outside after taking the same from the building (Art. 299 & 302) The penalty depends on: 1) the result of the violence used (homicide, rape, intentional mutilation, serious physical injuries, less serious or slight physical injuries resulted) and 2) the existence of If committed in an inhabited house, public building, or edifice devoted to religious worship, the penalty is based on: (1) the value of the thing taken and (2) whether or not the

Acts punished under: (1) When by reason or on occasion of the robbery, Homicide is committed. (Robbery with Homicide) (2) When the robbery is accompanied by Rape or Intentional Mutilation or Arson. (Robbery with Rape, Robbery with Intentional Mutilation, Robbery with Arson) (3) When by reason or on occasion of such robbery, any of the Physical Injuries resulting in insanity, imbecility, impotency, or blindness is inflicted. (4) When by reason or on occasion of robbery, any of the Physical Injuries resulting in the loss of the use of speech or the power to hear or to smell, or the loss of an eye, a hand, a foot, an arm or a leg or the loss of the use of any such member, or incapacity for the work in which the injured person is theretofore habitually engaged is inflicted. (5) If the Violence or Intimidation employed in the commission of the robbery is carried to a degree clearly Unnecessary for the commission of the crime. (6) When in the course of its execution, the offender shall have inflicted upon any person not responsible for the commission of the robbery any of the Physical Injuries in consequence of which the person injured becomes deformed or loses any other member of his body or loses the use thereof or becomes ill or incapacitated for the performance of the work in which he is habitually engaged for labor for more than 30 days (7) If the violence employed by the offender does not cause any of the serious physical injuries defined in Art. 263, or if the offender employs intimidation only. The crime defined in this article is a special complex crime. On the occasion and by reason mean that homicide or serious physical injuries must be committed in the course or because of the robbery. The violence must be against the person, not upon the thing taken. It must be present before the taking of personal property is complete.

PAGE 196

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

Homicide is used in its generic sense, as to include parricide and murder. Hence, there is no robbery with murder. The crime is still robbery with homicide even if, in the course of the robbery, the person killed was another robber or a bystander. Even if the rape was committed in another place, it is still robbery with rape. When the taking of personal property of a woman is an independent act following defendants failure to consummate the rape, there are two distinct crimes committed: attempted rape and theft. Additional rape committed on the same occasion of robbery will not increase the penalty. Absence of intent to gain will make the taking of personal property grave coercion if there is violence used (Art. 286). If both violence/intimidation of persons (294) and force upon things (299/302) co-exist, it will be considered as violation of Art 294 because it is more serious than in Art 299/302. BUT when robbery is under Art 294 par 4 & 5 the penalty is lower than in Art 299 so the complex crime should be imputed for the higher penalty to be imposed without sacrificing the principle that robbery w/ violence against persons is more severe than that w/ force upon things. [Napolis v. CA (1972)] When the taking of the victims gun was to prevent the victim from retaliating, then the crimes committed are theft and homicide not robbery with homicide. [People v. Millian (2000)]
ARTICLE 295 - ROBBERY WITH PHYSICAL INJURIES, IN AN UNINHABITED PLACE AND BY A BAND

Any of these qualifying circumstances must be alleged in the information and proved during the trial. The intimidation with the use of firearm qualifies only robbery on a street, road, highway or alley. Art 295 does not apply to robbery with homicide, or robbery with rape, or robbery with serious physical injuries under par 1 of Art 263. NOTE: the circumstances and applicability of Art 295 are very specific
ARTICLE 296 - DEFINITION OF A BAND AND PENALTY INCURRED BY THE MEMBERS THEREOF

Outline of Art. 296: When at least 4 armed malefactors take part in the commission of a robbery, it is deemed committed by a band. When any of the arms used in the commission of robbery is not licensed, penalty upon all the malefactors shall be the maximum of the corresponding penalty provided by law, without prejudice to the criminal liability for illegal possession of such firearms. Any member of a band who was present at the commission of a robbery by the band, shall be punished as principal of any of the assaults committed by the band, unless it be shown that he attempted to prevent the crime. Requisites for Liability for the acts of the other members: (1) Member of the band. (2) Present at the commission of the robbery. (3) Other members committed an assault. (4) He did not attempt to prevent assault. Conspiracy is presumed when robbery is by band. When the robbery was not committed by a band, the robber who did not take part in the assault by another is not liable for that assault. When the robbery was not by a band and homicide was not determined by the accused when they plotted the crime, the one who did not participate in the killing is liable for robbery only. It is only when the robbery is in band that all those present in the commission of the robbery may be punished for any of the assaults which any of its members might commit.

Robbery with violence against or intimidation or persons is qualified when it is committed: (1) In an Uninhabited place, or (2) By a Band, or (3) By Attacking a moving train, street car, motor vehicle, or airship, or (4) By Entering the passengers compartments in a train, or in any manner taking the passengers thereof by surprise in the respective conveyances, or (5) On a Street, road, highway, or alley, AND the intimidation is made with the use of firearms, the offender shall be punished by the maximum periods of the proper penalties in Art. 294. It cannot be offset by a generic mitigating circumstance. The intimidation with the use of firearm qualifies only robbery on a street, road, highway, or alley.
PAGE 197

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

But when there is conspiracy to commit homicide and robbery, all the conspirators, even if less than 4 armed men, are liable for the special complex crime of robbery with homicide. Art 296 is not applicable to principal by inducement, who was not present at the commission of the robbery, if the agreement was only to commit robbery. The article speaks of more than 3 armed malefactors who takes part in the commission of the robbery and member of a band who is present at the commission of a robbery by a band. Thus, a principal by inducement, who did not go with the band at the place of the commission of the robbery, is not liable for robbery with homicide, but only for robbery in band, there being no evidence that he gave instructions to kill the victim or intended that this should be done. When there was conspiracy for robbery only but homicide was also committed on the occasion thereof, all members of the band are liable for robbery with homicide. Whenever homicide is committed as a consequence of or on the occasion of a robbery, all those who took part in the commission of the robbery are also guilty as principals in the crime of homicide unless it appears that they endeavored to prevent the homicide. Proof of conspiracy is not essential to hold a member of the band liable for robbery with homicide actually committed by the other members of the band. There is no crime as robbery with homicide in band. Band is only ordinary aggravating circumstance in robbery w/ homicide In order that special aggravating circumstance of unlicensed firearm be appreciated, it is condition sine qua non that offense charged be robbery by a band under Art 295. Pursuant to Art 295, circumstance of a band is qualifying only in robbery under par 3, 4 & 5 of Art 294. Hence, Art. 295 does not apply to robbery with homicide, or robbery with rape, or robbery with serious physical injuries under par. 1 of Art. 263.

Special aggravating circumstance of unlicensed firearm is inapplicable to robbery w/ homicide, or robbery with rape, or robbery with physical injuries, committed by a band. [People v. Apduhan]
ARTICLE 297 - ATTEMPTED AND FRUSTRATED ROBBERY WITH HOMICIDE

Homicide includes multiple homicides, murder, parricide, or even infanticide. The penalty is the same, whether robbery is attempted or frustrated. Robbery with homicide and attempted or frustrated robbery with homicide are special complex crimes, not governed by Art. 48, but by the special provisions of Arts.294 & 297, respectively. There is only one crime of attempted robbery with homicide even if slight physical injuries were inflicted on other persons on the occasion or by reason of the robbery.
ARTICLE 298 - EXECUTION OF DEEDS THROUGH VIOLENCE OR INTIMIDATION

Elements: (1) Offender has Intent to defraud another (2) Offender Compels him to sign, execute, or deliver any public instrument or document (3) Compulsion is by means of Violence or Intimidation. If the violence resulted in the death of the person to be defrauded, crime is robbery with homicide and shall be penalized under Art 294 par. 1. Art. 298 applies to private or commercial document, but it does not apply if document is void. When the offended party is under obligation to sign, execute or deliver the document under the law, it is not robbery but coercion. BY FORCE UPON THINGS Robbery by the use of force upon things is committed only when either: (1) Offender entered a House or Building by any of the means specified in Art. 299 or Art. 302, or (2) Even if there was no entrance by any of those means, he broke a wardrobe, chest, or any other kind of locked or closed or sealed furniture or receptacle in the house or building, or he took it away to be broken or forced open outside.

PAGE 198

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

from that in the other means which is only constructive force.


ARTICLE 299 - ROBBERY IN AN INHABITED HOUSE OR PUBLIC BUILDING OR EDIFICE DEVOTED TO WORSHIP

Elements of robbery with force upon things under SUBDIVISION (A): (1) Offender entered (a) Inhabited House (b) Public Building (c) Edifice devoted to Religious Worship (2) Entrance was effected by any of the following means: (a) Through an opening Not intended for entrance or egress; (b) By Breaking any wall, roof, or floor, or door or window; (c) By using False keys, picklocks or similar tools; or (d) By using any Fictitious name or pretending the exercise of public authority. (e) That once inside the building, the offender Took personal property belonging to another with intent to gain. There must be evidence that accused entered the dwelling house or building by any of the means enumerated in subdivision (a). In entering the building, there must be the intent to take personal property. Inhabited house: any shelter, ship, or vessel constituting the dwelling of one or more persons even though the inhabitants thereof are temporarily absent when the robbery is committed. Public building: every building owned by the Government or belonging to a private person but used or rented by the Government, although temporarily unoccupied by the same. Any of the four means described in subdivision (a) must be resorted to enter a house or building, not to get out otherwise it is only theft. The whole body of the culprit must be inside the building to constitute entering. Illustration: If the culprit had entered the house through an open door, and the owner, not knowing that the culprit was inside, closed and locked the door from the outside and left, and the culprit, after taking personal property in the house, went out through the window, it is only theft, not robbery. Breaking: means entering the building. The force used in this means must be actual, as distinguished
PAGE 199

False keys: genuine keys stolen from the owner or any keys other than those intended for use in the lock forcibly opened by the offender. The genuine key must be stolen, not taken by force or with intimidation, from the owner. If false key is used to open wardrobe or locked receptacle or drawer or inside door it is only theft Elements of robbery with force upon things under SUBDIVISION (B) of Art. 299: (1) Offender is inside a dwelling house, public building, or edifice devoted to religious worship, regardless of the circumstances under which he entered it. (2) Offender takes personal property belonging to another, with intent to gain, under any of the following circumstances. (a) Breaking of doors, wardrobes, chests, or any other kind of locked or sealed furniture or receptacle; or (b) Taking such furniture or objects away to be broken or forced open outside the place of the robbery. Entrance into the building by any of the means mentioned in subdivision (a) is not required in robbery under subdivision (b) The term door in par. 1, subdivision (b) of Art. 299, refers only to doors, lids or opening sheets of furniture or other portable receptaclesnot to inside doors of house or building. Breaking the keyhole of the door of a wardrobe, which is locked, is breaking a locked furniture. It is theft, if the locked or sealed receptacle is not forced open in the building where it is kept or taken from to be broken outside. The penalty depends on the value of property taken and on whether or not offender carries arm. Arms carried must not be used to intimidate. Liability for carrying arms is extended to all those who participated in the robbery, including those without arms. The provision punishes more severely the robbery in a house used as a dwelling than that committed in an uninhabited place, because of the possibility that the inhabitants in the former might suffer bodily harm during the robbery.

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

ARTICLE 301 - WHAT IS AN UNINHABITED HOUSE, PUBLIC BUILDING DEDICATED TO RELIGIOUS WORSHIP AND THEIR DEPENDENCIES: Even if the occupant was absent during the robbery, the place is still inhabited if the place was ordinarily inhabited and intended as a dwelling. Dependencies: all interior courts, corrals, warehouses, granaries or inclosed places contiguous to the building or edifice, having an interior entrance connected therewith, and which form part of the whole (Art. 301, par. 2). Requisites: (1) Contiguous to the building; (2) Interior entrance connected therewith; (3) Form part of the whole. Orchards and lands used for cultivation or production are not included in the term dependencies (Art. 301, par. 3).
ARTICLE 300 ROBBERY IN AN UNINHABITED PLACE AND BY A BAND

or (e) A Closed or sealed receptacle was removed, even if the same be broken open elsewhere. (f) With intent to gain, the offender took therefrom personal property belonging to another. Building: includes any kind of structure used for storage or safekeeping of personal property, such as (a) freight car ad (b) warehouse. Entrance through an opening not intended for entrance or egress is not necessary, if there is breaking of wardrobe, chest, or sealed or closed furniture or receptacle, or removal thereof to be broken open elsewhere. Breaking padlock is use of force upon things. Use of fictitious name or pretending the exercise of public authorities is not covered under this article. A receptacle is a container, which must be closed or sealed. Penalty is based only on value of property taken. Robbery in a store Punishable under Art. 299 If the store is used as a dwelling, the robbery committed therein would be considered as committed in an inhabited house (People v Suarez) Punishable under Art. 302

Robbery in an inhabited house, public building or edifice to religious worship is qualified when committed by a band and located in an uninhabited place. See discussion on Art. 296 for definition of band. To qualify Robbery w/ force upon things (Art 299) It must be committed in uninhabited place AND by a band (Art 300)
ARTICLE 302 BUILDING

To qualify Robbery w/ violence against or intimidation It must be committed in an uninhabited place OR by a band (Art. 295)

- IN AN UNINHABITED PLACE OR PRIVATE

Elements: (1) Offender entered an Uninhabited place or a building which was not a dwelling house, not a public building, or not an edifice devoted to religious worship. (2) That any of the following circumstances was present: (a) Entrance was effected through an opening Not intended for entrance or egress; (b) A Wall, roof, floor, or outside door or window was broken (c) Entrance was effected through the use of False keys, picklocks or other similar tools; (d) A Door, wardrobe, chest, or any sealed or closed furniture or receptacle was broken;

If the store was not actually occupied at the time of the robbery and was not used as a dwelling, since the owner lived in a separate house, the robbery committed therein (People v If the store is located on Silvestre) the ground floor of the house belonging to the owner, having an interior entrance connected therewith, it is a dependency of an inhabited house and the robbery committed therein (US v Tapan).
ARTICLE 303 - ROBBERY OF CEREALS, FRUITS OR FIREWOOD IN AN INHABITED PLACE OR PRIVATE BUILDING

The penalty is one degree lower only when robbery is committed by use of force upon things, without intimidation or violence against a person.

PAGE 200

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

Cereals are seedlings which are the immediate product of the soil. The palay must be kept by the owner as seedling or taken for that purpose by the robbers.
ARTICLE 304 - POSSESSION OF PICKLOCK OR SIMILAR TOOLS

Brigandage Purpose (1) Commit robbery in a highway (2) Kidnap to extort or get ransom (3) Any other purpose to be achieved by means of force or violence Mere formation of a band for any of the above purposes is sufficient. There is no requirement that the brigands consummate the crime.

Robbery in band Commit robbery, and not necessarily in a highway

Elements: (1) Offender has in his possession Picklocks or similar tools; (2) Such picklock or similar tools are especially Adopted to the commission of robbery; (3) Offender does Not have lawful cause for such possession.
ARTICLE 305 - DEFINES FALSE KEYS

TO INCLUDE THE FOLLOWING: (1) Tools mentioned in Article 304; (2) Genuine keys Stolen from the owner; (3) Any key other than those intended by the owner for Use in the lock forcibly opened by the offender. CHAPTER 2: BRIGANDAGE (ARTICLES 306-307)
ARTICLE 306 - WHO ARE BRIGANDS

Proof

It is necessary to prove that the band actually committed the robbery. Conspiracy to commit robbery is not punishable.

Elements of Brigandage: (1) There be at least 4 armed persons (2) They Formed a band of robbers (3) The Purpose is any of the following: (a) To commit Robbery in the highway; or (b) To Kidnap for the purpose of extortion or to obtain ransom; or (c) To Attain by means of force and violence any other purpose. Presumption of law as to brigandage: all are presumed highway robbers or brigands, if any of them carries unlicensed firearm. The arms carried may be any deadly weapon. The main object of the law is to prevent the formation of band of robbers. The term highway includes city streets. The following must be proved: (1) Organization of more than 3 armed persons forming a band of robbers (2) Purpose of the band is any of those enumerated in Art. 306. (3) That they went upon the highway or roamed upon the country for that purpose. (4) That the accused is a member of such band.

ARTICLE 307 - AIDING AND ABETTING A BAND OF BRIGANDS

Elements: (1) There is a Band of brigands (2) Offender Knows the band to be of brigands (3) Offender Does any of the following acts: (a) He in any manner Aids, abets or protects such band of brigands; or (b) He gives them Information of the movements of the police or other peace officers; or (4) He Acquires or receives the property taken by such brigands. It is presumed that the person performing any of the acts provided in this article has performed them knowingly, unless the contrary is proven. Any person who aids or protects highway robbers or abets the commission of highway robbery or brigandage shall be considered as an accomplice. See Special Law: PD 532 Anti-Piracy And AntiHighway Robbery It is necessary to prove that the intention and purpose of the accused was to commit robbery indiscriminately and such robbery is committed on any Philippine Highway. [People v. Pulusan (1998)]

PAGE 201

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

CHAPTER 3 THEFT
ARTICLE 308 - WHO ARE LIABLE FOR THEFT

In accordance with the definition in Art 308, there is no frustrated theft. The offender has either complete control of the property (consummated) or without (attempted). Intent to gain is presumed from the unlawful taking of personal property belonging to another. [Valenzuela v. People (2007)] If a person takes property of another, believing it to be his own, presumption of intent to gain is rebutted. Hence, he is not guilty of theft. If one takes personal property openly and avowedly under claim of title made in good faith, he is not guilty of theft even though claim of ownership is later found to be untenable. If possession was only material or physical, the crime is THEFT. If possession was juridical, crime is ESTAFA. Selling share of a partner or co-owner is not theft. Actual or real gain is not necessary in theft. The consent contemplated in this article refers to consent freely given, and not mere lack of opposition by owner of the property taken. It is not robbery when violence is for a reason entirely foreign to the fact of taking. Gulinao shot Dr. Chua and left. Then he went back & took Dr. Chuas diamond ring. The crime was Theft and not robbery. Circumstances show that the taking was merely an afterthought. Violence used in killing Dr. Chua had no bearing on the taking of the ring.[People v. Gulinao, (1989)] Properties were taken after accused has already carried out his primary criminal intent of killing the victim. Considering that the victim was already heavily wounded when his properties were taken, there was no need to employ violence against or intimidation against his person. Hence, accused can only be held guilty of the separate offense of theft.[People vs Basao (1999)] One in possession of part of recently stolen property is presumed to be thief of all. Lost property: embraces loss by stealing or by act of the owner or by a person other than the owner, or through some casual occurrence. It is necessary to prove the following in order to establish theft by failure to deliver or return lost property:

Elements of Theft: (1) Taking of personal property (2) That Belongs to another (3) With Intent to gain. (4) Without the Consent of the owner. (5) Accomplished Without the use of violence against or intimidation of persons or force upon things. Theft: committed by any person who, with intent to gain but without violence against or intimidation of persons nor force upon things, shall take personal property of another without the latters consent. Persons liable for theft: (1) Those who, (a) with intent to gain, (b) without violence against or intimidation of persons nor force upon things, (c) take, (d) personal property, (e) of another, (f) without the latters consent. (2) Those who, (a) having found lost property, (b) fail to deliver the same to the local authorities or to its owner. (3) Those who, (a) after having maliciously damaged the property of another, (b) remove or make use of the fruits or object of the damage caused by them. (4) Those who, (a) enter an inclosed estate or field where (b) trespass is forbidden or which belongs to another and, without the consent of its owner, (c) hunt or fish upon the same or gather fruits, cereals, or other forest or farm products. The theft is consummated & taking completed once the culprit is able to place the thing taken under his control, and in such a situation that he could dispose of it at once.

PAGE 202

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

(1) Time of the seizure of the thing (2) It was a lost property belonging to another; and (3) That the accused having had the opportunity to return or deliver the lost property to its owner or to the local authorities, refrained from doing so. The law does not require knowledge of the owner of the property. Elements of hunting, fishing or gathering fruits, etc., in enclosed estate: (1) That there is an enclosed estate or a field, where trespass is forbidden or which belongs to another (2) Offender enters the same (3) Offender hunts or fishes upon the same or gathers fruits, cereals or other forest or farm products in the estate or field; and (4) That the hunting or fishing or gathering of products is without the consent of the owner.
ARTICLE 309 - PENALTIES

Theft by domestic servant is always qualified. Theres no need to prove grave abuse of discretion. The abuse of confidence must be grave. There must be allegation in the information and proof of a relation, by reason of dependence, guardianship or vigilance, between the accused and the offended party that has created a high degree of confidence between them, which the accused abused. Theft of any material, spare part, product or article by employees and laborers is heavily punished under PD 133. Motor vehicle: all vehicles propelled by power, other than muscular power. Theft of motor vehicle may now fall under the anti-carnapping law. When the purpose of taking the car is to destroy by burning it, the crime is arson. If a private individual took a letter containing postal money order it is qualified theft. If it was the postmaster, to whom the letter was delivered, the crime would be infidelity in the custody of documents. Regarding the theft of coconuts and fish, what matters is not the execution, but the location where it is taken. It should be in the plantation or in the fishpond.
RA 6539: ANTI-CARNAPPING LAW

The basis of the penalty in theft is (1) the value of the thing stolen, or (2) the value and nature of the property taken, or (3) the circumstances that impelled the culprit to commit the crime. If there is no evidence of the value of the property stolen, the court should impose the minimum penalty corresponding to theft involving the value of P5.00. The court may also take judicial notice of its value in the proper cases.
ARTICLE 310 - QUALIFIED THEFT

Theft is qualified if: (1) Committed by a Domestic servant (2) Committed with Grave abuse of confidence (3) The property stolen is (a) motor vehicle, (b) mail matter, or (c) large cattle The property stolen consists of coconuts taken from the premises of a: (1) plantation (2) The property stolen is fish taken from a fishpond or fishery (3) The property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance. The penalty for qualified theft is 2 degrees higher.

Carnapping: taking, with intent to gain, of motor vehicle belonging to another without the latters consent or by means of violence against or intimidation of persons, or by force upon things (Izon v. People, 1981) Motor Vehicle: any vehicle which is motorized using the streets which are public, not exclusively for private use (Boado, Comprehensive Reviewer in Criminal Law)
PD 533 ANTI-CATTLE RUSTLING LAW

Cattle rustling: taking away by means, methods or schemes, without the consent of the owner/raiser, of any large cattle whether or not for profit, or whether committed with or without violence against or intimidation of person or force upon things. It includes killing of large cattle, taking its meat or hide without the consent of owner/raiser. Large cattle: include cow, carabao, horse, mule, ass, other domesticated member of bovine family. A goat is not included because it is not large (Boado, Comprehensive Reviewer in Criminal Law)

PAGE 203

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

Presumption: Every person in possession of large cattle shall upon demand by competent authorities exhibit required documents. Failure to do so is prima facie evidence that large cattle in possession are fruits of crime of cattle rustling Killing of owner is absorbed in cattle rustling (Boado, Comprehensive Reviewer in Criminal Law) Considering that the gravamen of the crime is the taking or killing of large cattle or taking its meat or hide without the consent of the owner or raiser, conviction for the same need only be supported by the fact of taking without the cattle owners consent. There is a disputable presumption that a person found in possession of a thing taken in the doing of a recent wrongful act is the taker and the doer of the whole act. [Ernesto Pil-ey vs. People (2007)]
PD 704: ILLEGAL FISHING

Mere possession of any good, article, item, object, or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing. [People v. Dizon-Pamintuan] Robbery/theft and fencing are separate and distinct offenses.
ARTICLE 311 - THEFT OF THE PROPERTY OF THE NATIONAL LIBRARY AND NATIONAL MUSEUM

Theft of property of the National Museum and National Library has a fixed penalty regardless of its value. But if it was with grave abuse of confidence, the penalty for qualified theft shall be imposed. CHAPTER 4: USURPATION
ARTICLE 312 - OCCUPATION OF REAL PROPERTY OR USURPATION OF REAL RIGHTS IN PROPERTY

Prima facie presumption of illegal fishing when: (1) Explosive, obnoxious or poisonous substance or equipment or device for electric fishing are found in the fishing boat or in the possession of fisherman; or (2) When fish caught with the use of explosives, obnoxious or poisonous substances or by electricity are found in a fishing boat PD 1612: ANTI-FENCING LAW Fencing: (1) the act of any person who, (2) with intent to gain for himself or for another, (3) shall buy, receive, keep, acquire, conceal, sell, or dispose of, or shall buy and sell or in any other manner deal in (4) any article, item, object, or anything of value (5) which he knows, or should be known to him, (6) to have been derived from the proceeds of the crime of robbery or theft. Elements: (1) Robbery or theft has been committed. (2) The accused, who is not a principal or accomplice in the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any article, item, object, or anything of value, which has been derived from the proceeds of the said crime. (3) The accused knows or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft. (4) There is, on the part of the accused, intent to gain for himself or another.

Acts punishable under Art. 312: (1) Taking possession of any real property belonging to another by means of violence against or intimidation of persons (2) Usurping any real rights in property belonging to another by means of violence against or intimidation of persons. Elements: (1) Offender takes possession of any real property OR usurps any real rights in property (2) Real property or real rights belong to another (3) Violence against or intimidation of persons is used by the offender in occupying real property or usurping real rights in property. (4) There is intent to gain. If no violence or intimidation only civil liability exists. Violence or intimidation must be the means used in occupying real property or in usurping real rights. Art. 312 does not apply when the violence or intimidation took place subsequent to the entry into the property. Art. 312 does not apply to a case of open defiance of the writ of execution issued in the forcible entry case. Criminal action for usurpation of real property is not a bar to civil action for forcible entry.

PAGE 204

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

Usurpation Act Occupation or Usurpation

Theft or Robbery Taking or asportation

Art 314

Insolvency law

What is Taken

Real property or Personal Real Right property To Gain To Gain

No need for insolvency Crime should be proceedings. committed after the institution of insolvency No need to be adjudged proceedings bankrupt or insolvent CHAPTER 6: SWINDLING AND OTHER DECEITS

Intent

ARTICLE 315 - ESTAFA

RA 947 punishes entering or occupying public agricultural land including lands granted to private individuals.
ARTICLE 313 - ALTERING BOUNDARIES OR LANDMARKS

Elements: (1) That there be boundary marks or monuments of towns, provinces, or estates, or any other marks intended to designate the boundaries of the same. (2) That the offender alters said boundary marks. Provision does not require intent to gain. The word alter may include: (1) destruction of stone monument (2) taking it to another place (3) removing a fence CHAPTER 5: CULPABLE INSOLVENCY
ARTICLE 314 - FRAUDULENT INSOLVENCY

Elements of Estafa in General: (1) That the accused defrauded another (a) by abuse of confidence; or (b) by means of deceit; and (2) That damage or prejudice capable of pecuniary estimation is caused to the offended party or third person. (3) Through (a) With unfaithfulness or abuse of confidence (315 par. 1(a) (b) (c)) (b) Estafa by means of fraudulent acts (315 Par. 2(A) (B) (C)(D) (E) ; BP22): (c) Through other fraudulent means (315 par 3(a) (b) (c) ) With Unfaithfulness or Abuse of Confidence (315 par. 1(a) (b) (c)) Par 1(a): Altering substance, quantity or quality of object subject of obligation to deliver Elements: (1) Offender has an Onerous obligation to deliver something of value. (2) That he Alters its substance, quantity, or quality (3) That Damage or prejudice is caused to another. Deceit is NOT an essential element of estafa with abuse of confidence. Damage or prejudice must be capable of estimation, because it is the basis of the penalty. Delivery of anything of value must be by virtue of an onerous obligation to do so. When the fraud committed consists in the adulteration or mixing of some extraneous substance in an article of food so as to lower its quantity, it may be a violation of the Pure Food Law. Its not estafa if the thing delivered is not acceptable to the complainant when there is no agreement as to its quality.

Elements: (1) That the offender is a debtor; that is, he has obligations due and payable (2) That he absconds with his property (3) That there be prejudice to his creditors. Actual prejudice, not intention alone, is required. Even if the debtor disposes of his property, unless it is shown that it has actually prejudiced his creditor, conviction will not lie. Fraudulent concealment of property is not sufficient if the debtor has some property with which to satisfy his obligation. Abscond: does not require that the debtor should depart and physically conceal his property. Real property could be the subject matter of Art. 314. The person prejudiced must be creditor of the offender.
PAGE 205

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

Estafa may arise even if thing delivered is not subject of lawful commerce, such as opium. Par.1(b): Misappropriation and Conversion Elements: (1) That Money, goods, or other personal property be received by the offender in trust, or in commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return, the same; (2) There be Misappropriation or conversion of such money or property by the offender, or denial on his part of such receipt; (3) That such misappropriation or conversion or denial is to the Prejudice of another; and (4) That there is a demand made by the offended party to the offender. The 4th element is not necessary when there is evidence of misappropriation of goods by the defendant. Check is included in the word money. Money, goods or other personal property must be received by the offender under certain kinds of transaction transferring juridical possession to him. The offender acquires both physical possession and juridical possession when the thing received by the offender from the offended party (1) in trust, or (2) on commission, or (3) for administration, Juridical possession: means a possession which gives the transferee a right over the thing which he may invoke even as against the owner. When the delivery of a chattel does not transfer juridical possession/title, it is presumed that the possession/title of the thing remain w/ owner. Failure to turn over to the bank the proceeds of sale of goods covered by trust receipts is estafa. The phrase or under any obligation involving the duty to make delivery of, or to return the same, includes quasi-contracts and certain contracts of bailment. The obligation to return the thing must be contractual but without transferring to accused ownership of the thing. When ownership is transferred to recipient, his failure to return it results in civil liability only.

Applicable Civil Code provisions: (1) Art. 1477. The ownership of the thing sold shall be transferred to the vendee upon actual or constructive delivery thereof. (2) Art. 1482. Whenever earnest money is given in a contract of sale, it shall be considered as part of the price and as proof of the perfection of the contract. In estafa with abuse of confidence under par. (b), subdivision 1 of Art. 315, the thing received must be returned if there is an obligation to return it. If no obligation to return there is only civil liability. No estafa when: (1) Transaction sale fails. There is no estafa if the accused refused to return the advance payment. (2) The money or personal property received by accused is not to be used for a particular purpose or to be returned. (3) Thing received under a contract of sale on credit Payment by students to the school for the value of materials broken is not mere deposit. Novation of contract of agency to one of sale, or to one of loan, relieves defendant from incipient criminal liability under the first contract. He exerted all efforts to retrieve dump truck, albeit belatedly and to no avail. His ineptitude should not be confused with criminal intent. Criminal intent is required for the conviction of Estafa. Earnest effort to comply with obligation is a defense against estafa. [Manahan vs CA (1996)] 3 Ways Of Committing Estafa With Abuse Of Confidence Under Art. 315 Par. (B): (1) Misappropriating the thing received. (2) Converting the thing received. (3) Denying that the thing was received. Misappropriating: means to something for one's own benefit. own, to take

Converting: Using or disposing of anothers property as if it were ones own. Conversion: presupposes that the thing has been devoted to a purpose or use different from that agreed upon. The fact that an agent sold the thing received on commission for a lower price than the one fixed, does not constitute estafa (US v Torres).

PAGE 206

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

The law does not distinguish between temporary and permanent misappropriations. No estafa under Art. 315 par (b) when there is neither misappropriation nor conversion. Right of agent to deduct commission from amounts (1) If agent is authorized to retain his commission out of the amounts he collected, there is no estafa. (2) Otherwise he is guilty of estafa, because his right to commission does not make the agent a coowner of money 3rd element of estafa with abuse of confidence is that the conversion, or denial by offender resulted in the prejudice of the offended party. To the prejudice of another: not necessarily of the owner of the property. General rule: Partners are not liable for estafa of money or property received for the partnership when the business commenced and profits accrued. Failure of partner to account for partnership funds may give rise to civil obligation only, not estafa. Exception: when a partner misappropriates the share of another partner in the profits, the act constitutes estafa. A co-owner is not liable for estafa, but he is liable if, after the termination of the co-ownership, he misappropriates the thing which has become the exclusive property of the other. Estafa with abuse of confidence Theft

the offender receives the thing under a lawful transaction. Demand is not required by law, but it may be necessary, because failure to account upon demand is circumstantial evidence of misappropriation. Presumption arises only when the explanation of the accused is absolutely devoid of merit. The mere failure to return the thing received for safekeeping or under any other obligation w/ the duty to return the same or deliver the value thereof to the owner could only give rise to a civil action and does not constitute the crime of estafa. There is no estafa through negligence. The gravity of the crime of estafa is based on the amount not returned before the institution of the criminal action. Test to distinguish theft from estafa: In theft, upon the delivery of the thing to the offender, the owner expects a return of the thing to him. General rule: When the owner does not expect the immediate return of the thing he delivered to the accused, the misappropriation of the same is estafa. Exception: When the offender received the thing from the offended party, with the obligation to deliver it to a third person and, instead of doing so, misappropriated it to the prejudice of the owner, the crime committed is qualified theft. Sale of thing received to be pledged for owner is theft, when the intent to appropriate existed at the time it was received. Estafa with abuse of confidence Malversation

With juridical possession Only with physical / of thing misappropriated material possession of thing misappropriated Offender receives the Offender takes the thing thing from the victim

Entrusted with funds or property Both are continuing offenses Funds or property are always private Funds or property usually public

But when the money or property had been received by a partner for specific purpose and he misappropriated it, there is estafa. Under the 4th element of estafa with abuse of confidence demand may be required. In estafa by means of deceit, demand is not needed, because the offender obtains the thing wrongfully from the start. In estafa with abuse of confidence,

Offender is a private Offender is a public officer individual or public officer accountable for public not accountable for public funds or property funds or property Committed by misappropriating, converting or denying having received money, other personal property Committed by misappropriating, or thru abandonment or negligence, letting other person to take the public funds or property

PAGE 207

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

Estafa with abuse of confidence

Malversation

There is no estafa through There can be negligence. malversation through abandonment or negligence. When in prosecution for malversation the public officer is acquitted, the private individual in conspiracy w/ him may be held liable for estafa, depending on the nature of the funds. Misappropriation of firearms received by a police (1) ESTAFA: if it is not involved in the commission of a crime (2) MALVERSATION: if it is involved in the commission of a crime. (3) Par.1(c): Taking advantage of signature in blank

In false pretenses the deceit consists in the use of deceitful words, in fraudulent acts the deceit consists principally in deceitful acts. The fraudulent acts must be performed prior to or simultaneously with the commission of the fraud. The offender must be able to obtain something from the offended party because of the fraudulent acts. Knowledge of criminal intent of the principal is essential to be convicted as an accomplice in Estafa through falsification of commercial document. There must be knowing assistance in the execution of the offense. [Abejuela vs People (1991)] In the case where a tenant-landowner relationship exists between the parties, the jurisdiction for the prosecution of the crime Estafa is not divested from the RTC; though the matter before us apparently presents an agrarian dispute, the RTC cannot shirk from its duty to adjudicate on the merits a criminal case initially filed before it, based on the law and evidence presented, in order to determine whether an accused is guilty beyond reasonable doubt of the crime charged. In a tenant-landowner relationship, it was incumbent upon the tenant to hold in trust and, eventually, account for the share in the harvest appertaining to the landowner, failing which the tenant could be held liable for misappropriation. As correctly pointed out by the respondents, share tenancy has been outlawed for being contrary to public policy as early as 1963, with the passage of R.A. 3844. What prevails today, under R.A. 6657, is agricultural leasehold tenancy relationship, and all instances of share tenancy have been automatically converted into leasehold tenancy. In such a relationship, the tenants obligation is simply to pay rentals, not to deliver the landowners share. Given this dispensation, the petitioners allegation that the respondents misappropriated the landowners share of the harvest as contained in the information is untenable. Accordingly, the respondents cannot be held liable under Article 315, paragraph 4, No. 1(b) of the Revised Penal Code. [People v. Vanzuela (2008)] It is well established in jurisprudence that a person may be convicted of both illegal recruitment and estafa. The reason, therefore, is not hard to discern: illegal recruitment is malum prohibitum, while estafa is malum in se. In the first, the criminal intent of the accused is not necessary for conviction. In the second, such intent is

Elements: (1) Paper with the signature of the offended party be in Blank. (2) Offended party should have Delivered it to the offender. (3) That above the signature of the offended party a Document is written by the offender without authority to do so. (4) That the document so written Creates a liability of, or causes damage to, the offended party or any third person. Estafa by Means of False Pretenses or Fraudulent Acts (315 par. 2(a) (b) (c) (d) (e); BP22): Elements of estafa by means of deceit: (1) There must be a False pretense, fraudulent act or fraudulent means. (2) That such false pretense, fraudulent act or fraudulent means must be made or executed Prior to or Simultaneously with the commission of the fraud. (3) Offended party must have Relied on the false pretense, fraudulent act, or fraudulent means, that is, he was induced to part with his money or property because of the false pretense, fraudulent act, or fraudulent means. (4) As a result thereof, the offended party Suffered damage. The acts must be fraudulent. Acts must be founded on, deceit, trick, or cheat, and such must be made prior to or simultaneously with the commission of the fraud.

PAGE 208

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

imperative. Petitioners claim that she did not represent herself as a licensed recruiter, but that she merely tried to help the complainants secure a tourist visa could not make her less guilty of illegal recruitment, it being enough that she gave the impression of having had the authority to recruit workers for deployment abroad; consequently she is also held liable for the violation of Estafa under Article 315(2)(a). [Lapasaran v. People (2009)] Par 2(a): Using fictitious name or false pretenses at power, influence or other similar deceits Ways of committing the offense: (1) By using fictitious name; (2) By falsely pretending to possess: (a) power, (b) influence, (c) qualifications, (d) property, (e) credit, (f) agency, (g) business or imaginary transactions; (3) By means of other similar deceits.. For estafa under Art. 315 par. 2(a), it is indispensable that the false statement or fraudulent representation of the accused, (1) be made prior to, or, at least simultaneously with, (2) the delivery of the thing by the complainant. It is essential that such false statement or fraudulent representation constitutes the cause or only motive which induced the complainant to part with the thing. If there be no such prior or simultaneous false statement or fraudulent representation, any subsequent act of the accused, however fraudulent and suspicious it may appear, cannot serve as a basis for prosecution for the class of estafa. A creditor who deceived his debtor is liable for estafa. In estafa by means of deceit under Art. 315 2(a), there must be evidence that the pretense of the accused is false. Without such proof, criminal intent to deceive cannot be inferred. Fraud must be proved with clear and positive evidence. Where commission salesman took back the machines from prospective customers and misappropriated them, it is theft, not estafa. Estafa through false pretenses made in writing is only a simple crime of estafa, not a complex crime of estafa through falsification.
PAGE 209

Manipulation of scale is punished under the Revised Administrative Code Par 2(b): by altering the quality, fineness or weight of anything pertaining to art or business Par. 2(c): by pretending to have bribed any government employee Person would ask money from another for the alleged purpose of bribing a government employee but just pocketed the money. Par 2(d): By postdating a check or issuing a bouncing check Elements: (1) Offender Postdated a check, or issued a check in payment of an obligation; (2) Such postdating or issuing a check was done when the offender had No funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check. The check must be genuine, and not falsified. The check must be postdated or for an obligation contracted at the time of the issuance and delivery of the check and not for pre-existing obligation. Exception: (1) When postdated checks are issued and intended by the parties only as promissory notes (2) When the check is issued by a guarantor The accused must be able to obtain something from the offended party by means of the check he issues and delivers. The mere fact that the drawer had insufficient or no funds in the bank to cover the check at the time he postdated or issued a check, is sufficient to make him liable for estafa. RA 4885 deleted the phrase the offender knowing at the time he had no funds in the bank:
1

AN ACT TO AMEND SECTION TWO, PARAGRAPH (d), ARTICLE THREE HUNDRED FIFTEEN OF ACT NUMBERED THIRTY-EIGHT HUNDRED AND FIFTEEN, AS AMENDED, OTHERWISE KNOWN AS THE REVISED PENAL CODE. (re: issuance of checks.) Section 1. Section Two, Paragraph (d), Article Three hundred fifteen of Act Numbered Thirty-eight hundred and fifteen is hereby amended to read as follows: "Sec. 2. By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud:

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

(1) the failure of the drawer to deposit the amount needed to cover his check (2) within 3 days from receipt of notice of dishonor of check for lack or insufficiency of funds (3) shall be prima facie evidence of deceit constituting false pretense or fraudulent act. Good faith is a defense in a charge of estafa by postdating or issuing a check. One who got hold of a check issued by another, knowing that the drawer had no sufficient funds in the bank, and used the same in the purchase of goods, is guilty of estafa. [People v. Isleta] PD 818 applies only to estafa under par 2(d) of Art. 315, and does not apply to other forms of estafa. [People v Villaraza, 81 SCRA 95] Hence, the penalty prescribed in PD 818, not the penalty provided for in Art. 315, should be imposed when the estafa committed is covered by par 2(d) of Art. 315. Estafa by issuing a bad check is a continuing crime. See Special Law: BP 22 (Anti-Bouncing Checks Law)
2

Estafa Through Other Fraudulent Means (315 Par 3 (a) (b) (c)) Par 3 (a): By inducing another, through deceit, to sign any document

Elements: (1) Offender Induced the offended party to sign a document. (2) That deceit be Employed to make him sign the document. (3) Offended party Personally signed the document. (4) That Prejudice be caused. Offender must induce the offended party to sign the document. If offended party is willing from the start to sign the document, because the contents are different from those which the offended told the accused to state in the document, the crime is falsification. There can be no conviction for estafa in the absence of proof that defendant made statements tending to mislead complainant. Par.3 (b): By resorting to some fraudulent practice to ensure success in a gambling game Par.3 (c): By removing, concealing or destroying any court record, office files, document or any other papers Elements: (1) That there be court Record, office files, documents or any other papers If there is no malicious intent to defraud, the destruction of court record is malicious mischief. Elements of deceit and abuse of confidence may coexist. If there is neither deceit nor abuse of confidence, its not estafa, even if there is damage. There is only civil liability. Deceit through Fraudulent Means Offender is a private person OR a public person not entrusted w/ documents Infidelity in Custody of Documents Offender is a public person entrusted with the documents

"(d) By postdating a check, or issuing a check in payment of an obligation when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check. The failure of the drawer of the check to deposit the amount necessary to cover his check within three (3) days from receipt of notice from the bank and/or the payee or holder that said check has been dishonored for lack or insufficiency of funds shall be prima facie evidence of deceit constituting false pretense or fraudulent act." Section 2. This Act shall take effect upon its approval. Approved: June 17, 1967 2 AMENDING ARTICLE 315 OF THE REVISED PENAL CODE BY INCREASING THE PENALTIES FOR ESTAFA COMMITTED BY MEANS OF BOUNCING CHECKS Section 1. Any person who shall defraud another by means of false pretenses or fraudulent acts as defined in paragraph 2(d) of Article 315 of the Revised Penal Code, as amended by Republic Act No. 4885, shall be punished by: 1st. The penalty of reclusion temporal if the amount of the fraud is over 12,000 pesos but not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos but the total penalty which may be imposed shall in no case exceed thirty years. In such cases, and in connection with the accessory penalties which may be imposed under the Revised Penal Code, the penalty shall be termed reclusion perpetua; 2nd. The penalty of prision mayor in its maximum period, if the amount of the fraud is over 6,000 pesos but does not exceed 12,000 pesos; 3rd. The penalty of prision mayor in its medium period, if such amount is over 200 pesos but does not exceed 6,000 pesos; and, 4th. By prision mayor in its maximum period, if such amount does not exceed 200 pesos. Section 2. This decree shall take effect immediately.

There is intent to defraud Intent to defraud is not required

PAGE 210

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

Double jeopardy does not apply because RPC is a distinct crime from BP 22. Deceit and damage are essential elements of RPC, which are not required in BP 22. [Nierras vs Dacuycuy (1990)] The element of damage or prejudice capable of pecuniary estimation may consist in: (1) The offended party being deprived of his money or property, as result of the fraud; (2) Disturbance in property right; or (3) Temporary prejudice Payment subsequent to the commission of estafa does not extinguish criminal liability or reduce the penalty. The crime of estafa is not obliterated by acceptance of promissory note. A private person who procures a loan by means of deceit through a falsified public document of mortgage, but paid loan within the period agreed upon, is not guilty of estafa but only falsification of a public document. Accused cannot be convicted of estafa with abuse of confidence if charged w/ estafa by means of deceit
ARTICLE 316 - OTHER FORMS OF SWINDLING AND DECEITS

encumbrance, although such encumbrance be not recorded Elements: (1) That the thing disposed of be Real property. (2) Offender Knew that the real property was encumbered, whether the encumbrance is recorded or not. (3) There must be Express representation by the offender that the real property is free from encumbrance. (4) Act of disposing of the real property be made to the Damage of another. Act constituting the offense is disposing of the real property representing that it is free from encumbrance. Dispose: includes encumbering or mortgaging. Encumbrance: includes every right or interest in the land which exists in favor of third persons. The offended party would not have granted the loan had he known that the property was already encumbered. When the loan had already been granted when defendant offered the property as security for the loan, Art. 316 par. 2 is not applicable. Usurious loan with equitable mortgage is not an encumbrance on the property. If 3rd element not established, there is no crime. There must be damage caused. It is not necessary that act prejudice the owner of the land. The omitted phrase as free from encumbrance in par 2 of Art. 316 is the basis of the ruling that silence as to such encumbrance does not involve a crime. Par. 3. By wrongfully taking by the owner of his personal property from its lawful possessor Elements: (1) Offender is the Owner of personal property. (2) Said property is in the Lawful possession of another. (3) Offender wrongfully takes it from its lawful possessor. (4) Prejudice is thereby caused to the lawful possessor or third person. Offender must wrongfully take the personal property from the lawful possessor. Wrongfully take does not include the use of violence, intimidation.

Par 1. By conveying, selling, encumbering, or mortgaging any real property, pretending to be the owner of the same Elements: (1) That the thing be Immovable, such as a parcel of land or a building. (2) Offender who is not the owner of said property should Represent that he is the owner thereof. (3) Offender should have Executed an act of ownership (selling, encumbering or mortgaging the real property). (4) Act be made to Prejudice of the owner or a third person. The thing disposed of must be real property. If its chattel, crime is Estafa. There must be existing real property. Even if the deceit is practiced against the second purchaser but damage is incurred by the first purchaser, there is violation of par.1 of Art. 316. Since the penalty is based on the value of the damage there must be actual damage caused. Par. 2. By disposing of real property as free from

PAGE 211

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

If the thing is taken by means of violence, without intent to gain, it is not estafa, but grave coercion. If the owner took the personal property from its lawful possessor without the latters knowledge and later charged him with the value of the property, the crime is theft. If there is intent to charge the bailee with its value, the crime is robbery. [US v Albao] Par. 4. By executing any fictitious contract to the prejudice of another. Illustration: A person who simulates a conveyance of his property to another, to defraud his creditors. If the conveyance is real and not simulated, the crime is fraudulent insolvency. Par. 5. By accepting any compensation for services not rendered or for labor not performed Elements: (1) Accepting a compensation given to accused for service not rendered (2) Malicious failure to return the compensation wrongfully received (fraud). There must be fraud. Otherwise, it will only be solutio indebiti, with civil obligation to return the wrong payment. If the money in payment of a debt was delivered to a wrong person, Art. 316 par 5 is not applicable. In case the person who received it later refused or failed to return it to the owner of the money, Art. 315 subdivision 1(b) is applicable. Par. 6. By selling, mortgaging or encumbering real property or properties with which the offender guaranteed the fulfilment of his obligation as surety Elements: (1) Offender is a Surety in a bond given in a criminal or civil action. (2) He Guaranteed the fulfillment of such obligation with his real property or properties. (3) He Sells, mortgages, or, in any other manner encumbers said real property. (4) That such sale, mortgage, or encumbrance is (a) Without express authority from the court, or (b) Made Before the cancellation of his bond, or (c) Before being relieved from the obligation contracted by him. There must be damage caused under Art. 316.

ARTICLE 317 - SWINDLING OF A MINOR

Elements: (1) That the offender Takes advantage of the inexperience or emotions or feelings of a minor. (2) That he induces such minor (a) to Assume an obligation, or (b) to Give release, or (c) to Execute a transfer of any property right. (3) That the consideration is (a) some Loan of money, (b) Credit, or (c) Other Personal property. (4) That the transaction is to the Detriment of such minor. Real property is not included because only money, credit and personal property are enumerated, and because a minor cannot convey real property without judicial authority.
ARTICLE 318 - OTHER DECEITS

Other deceits are: (1) By Defrauding or damaging another by any other deceit not mentioned in the preceding articles. (2) By Interpreting dreams, by making forecasts, by telling fortunes, or by taking advantage of the credulity of the public in any other manner, for profit or gain. Any other kind of conceivable deceit may fall under this article. As in other cases of estafa, damage to the offended party is required. The deceits in this article include false pretenses and fraudulent acts. Chattel Mortgage The object of the Chattel Mortgage Law is to give the necessary sanction to the statute, so that mortgage debtors may be deterred from violating its provisions and mortgage creditors may be protected against loss of inconvenience from wrongful removal or sale of mortgaged property. CHAPTER 7: CHATTEL MORTGAGE
ARTICLE 319 - REMOVAL, SALE, MORTGAGED PROPERTY OR PLEDGE OF

Acts punishable under Art. 319: (1) By knowingly removing any personal property mortgaged under the Chattel Mortgage Law to any province or city other than the one in which it was located at the time of execution of the mortgage, without the written consent of the mortgagee or his executors, administrators or

PAGE 212

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

assigns. (2) By selling or pledging personal property already pledged, or any part thereof, under the terms of the Chattel Mortgage Law, without the consent of the mortgagee written on the back of the mortgage and noted on the record thereof in the office of the register of deeds of the province where such property is located. Chattel mortgage must be valid and subsisting. If chattel mortgage does not contain an affidavit of good faith and is not registered, it is void and cannot be prosecuted under Art 319 Elements of knowingly removing mortgaged personal property: (1) Personal property is mortgaged under the Chatter Mortgage Law. (2) Offender knows that such property is so mortgaged. (3) He removes such mortgaged personal property to any province or city other than the one in which it was located at the time of the execution of the mortgage. (4) That the removal is permanent. (5) That there is no written consent of the mortgagee or his executors, administrators or assigns to such removal. A person other than the mortgagor who removed the property to another province, knowing it to be mortgaged, may be liable. The removal of the mortgaged personal property must be coupled with intent to defraud. No felonious intent if transfer of personal property is due to change of residence. If the mortgagee opted to file for collection, not foreclosure, abandoning the mortgage as basis for relief, the removal of property to another province is not a violation of Art 319 par1. In estafa, the property involved is real property. In sale of mortgaged property, it is personal property. Elements of selling or pledging personal property already pledged: (1) That personal property is already pledged under the terms of the Chattel Mortgage Law. (2) That the offender, who is the mortgagor of such property, sells or pledges the same or any part thereof. (3) That there is no consent of the mortgagee written on the back of the mortgage and noted on the record thereof in the office of the register of deeds.
PAGE 213

The consent of the mortgagee must be (1) in writing, (2) on the back of the mortgage, and (3) noted on the record thereof in the office of the register of deeds. Damage is NOT essential. Chattel mortgage may give rise to estafa by means of deceit. Art 319 Personal property Committed by the mere failure to obtain consent of the mortgagee in writing, even if offender should inform the purchaser that the thing sold is mortgaged Art 316 Estafa Property involved is real property(Art. 316 par 2) Committed by selling real property mortgaged as free, even though the vendor may have obtained the consent of the mortgagee in writing.

In both there is selling of a mortgaged property.

Purpose: to protect the Purpose: to protect the mortgagee purchaser (1st or 2nd) CHAPTER 8: ARSON AND OTHER CRIMES INVOLVING DESTRUCTION Kinds of Arson: (1) Arson (PD 1613, Sec. 1) (2) Destructive arson (Art. 320, as amended by RA 7659) (3) Other cases of arson (Sec. 3, PD 1613) Attempted, Frustrated, and Consummated Arson Attempted arson: A person, intending to burn a wooden structure, collects some rags, soaks them in gasoline and places them beside the wooden wall of the building. When he about to light a match to set fire to the rags, he is discovered by another who chases him away. In attempted arson, it is not necessary that there be a fire. Frustrated arson: If that person is able to light or set fire to the rags, but the fire was put out before any part of the building was burned. Consummated arson: If before the fire was put out, it had burned a part of the building. If the property burned is an inhabited house or dwelling, it is not required that the house be occupied by one or more persons and the offender knew it when the house was burned.

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

No complex crime of arson with homicide. If by reason of or on the occasion of arson death results, the penalty of reclusion perpetua to death shall be imposed. Homicide is absorbed. Any of 7 circumstances in Sec. 6 of PD 1613 is sufficient to establish fact of arson if unexplained. How is the crime of Arson proved? In the prosecution for Arson, proof of the crime charged is complete where the evidence establishes: 1. the corpus delicti, i.e., a fire because of criminal agency; and 2. the identity of the defendant as the one responsible for the crime. In Arson, the corpus delicti rule is satisfied by proof of the bare fact of the fire and of it having been intentionally caused. [Gonzales, Jr. v. People, GR No. 159950, Feb. 12, 2007]
PD 1613, 1. DESTRUCTIVE ARSON

(3) Any industrial establishment, shipyard, oil well or mine shaft, platform or tunnel (4) Any plantation, farm, pasture land, growing crop, grain field, orchard, bamboo grove or forest; (5) Any rice mill, sugar mill, cane mill or mill central (6) Any railway or bus station, airport, wharf or warehouse Article 320, RPC, as amended, with respect to destructive arson, and the provisions of PD 1613 respecting other cases of arson provide only one penalty for the commission of arson, whether destructive or otherwise, where death results therefrom. The raison detre is that arson is itself the end and death is simply the consequence. In cases where both burning and death occur, in order to determine what crime/crimes was/were perpetrated whether arson, murder, or arson and homicide/murder, it is de rigueur to ascertain the main objective of the malefactor: (a) if the main objective is the burning of the building or edifice, but death results by reason or on the occasion of arson, the crime is simply Arson, and the resulting homicide is absorbed; (b) if, on the other hand, the main objective is to kill a particular person who may be in a building or edifice, when fire is resorted to as the means to accomplish such goal, the crime committed is Murder only; and lastly, (c) if the objective is, likewise, to kill a particular person, and in fact the offender has already done so, but fire is resorted to as means to cover up the killing, then there are two separate and distinct crimes committed Homicide/Murder and Arson CHAPTER 9 MALICIOUS MISCHIEF MALICIOUS MISCHIEF: It is the willful causing of damage to anothers property for the sake of causing damage because of hate, revenge or other evil motive.
ARTICLE 327 - WHO ARE RESPONSIBLE

SEC. 2. Destructive ArsonThe penalty of Reclusion Temporal in its maximum period to Reclusion Perpetua shall be imposed if the property burned is any of the following: (1) Any ammunition factory and other establishment where explosives, inflammable or combustible materials are stored. (2) Any archive, museum, whether public or private, or any edifice devoted to culture, education or social services. (3) Any church or place of worship or other building where people usually assemble. (4) Any train, airplane or any aircraft, vessel or watercraft, or conveyance for transportation of persons or property. (5) Any building where evidence is kept for use in any legislative, judicial, or administrative or other official proceeding. (6) Any hospital, hotel, dormitory, lodging house, housing tenement, shopping center, public or private market, theater or movie house or any similar place or building. (7) Any building, whether used as a dwelling or not, situated in a populated or congested area. SEC. 3. Other Cases of ArsonThe penalty of Reclusion Temporal to Reclusion Perpetua shall be imposed if the property burned is any of the following: (1) Any building used as offices of the government or any of its agencies (2) Any inhabited house or dwelling

Elements of malicious mischief: (1) Offender deliberately caused damage to the property of another. (2) Such act does not constitute arson or other crimes involving destruction (3) Act of damaging anothers property be committed merely for the sake of damaging it. If there is no malice in causing damage, the obligation to pay for the damages is only civil (Art. 2176)

PAGE 214

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

Damage means not only loss but also diminution of what is a mans own. Thus, damage to anothers house includes defacing it. [People v Asido]
ARTICLE 328 - SPECIAL CASES OF MALICIOUS MISCHIEF

ARTICLE 331 DESTROYING OR DAMAGING STATUES, PUBLIC MONUMENTS OR PAINTINGS

The penalty is lower if the thing destroyed is a public painting, rather than a public monument. CHAPTER 10: EXEMPTION FROM CRIMINAL LIABILITY
ARTICLE 332 - EXEMPTION FROM CRIMINAL LIABILITY IN CRIMES AGAINST PROPERTY

Special cases of malicious mischief: (qualified malicious mischief) (1) causing damage to obstruct the performance of public functions (2) using any poisonous or corrosive substance (3) Spreading infection or contagion among cattle (4) causing damage to property of the National Museum or National Library, or to any archive or registry, waterworks, road, promenade, or any other thing used in common by the public.
ARTICLE 329 - OTHER MISCHIEFS

Crimes involved in the exemption: (1) Theft (2) Swindling (estafa) (3) Malicious mischief If the crime is robbery, exemption does not lie. Persons exempt from criminal liability: (1) Spouses, ascendants and descendants, or relatives by affinity in the same line. (2) The widowed spouse with respect to the property which belonged to the deceased spouse before the same passed into the possession of another. (3) Brothers and sisters and brothers-in-law and sisters-in-law, if living together. The law recognizes the presumed co-ownership of the property between the offender and the offended party. There is no criminal, but only civil liability. Art. 332 does not apply to a stranger who participates in the commission of the crime. Stepfather and stepmother are included as ascendants by affinity. [People v Alvarez; People v Adame] Guevarra: An adopted or natural child should also be considered as included in the term descendants and a concubine or paramour within the term spouses. Art. 332 also applies to common-law spouses. [Art. 144, CC; People v Constantino] Jurisprudence THEFT The fact that beans (subject of the crime were sacks of beans) were scattered on the floor inside and in front of the stall of petitioner and in the parking lot does not necessarily lead to the conclusion that petitioner is the perpetrator of the crime. This cannot be equated with the principle of law that a person in possession or control of stolen goods is presumed to be the author of the larceny. Absent

Other mischiefs not included in Art. 328 are punished based on value of the damage caused. If the amount involved cannot be estimated, the penalty of arresto menor of fine not exceeding P200 is fixed by law. When several persons scattered coconut remnants which contained human excrement on the stairs and floor of the municipal building, including its interior, the crime committed is malicious mischief under Art. 329. [People v Dumlao]
ARTICLE 330 - DAMAGE AND OBSTRUCTION TO MEANS OF COMMUNICATION

Committed by damaging any railway, telegraph, or telephone lines. If the damage shall result in any derailment of cars, collision, or other accident, a higher penalty shall be imposed. (Qualifying Circumstance) Telegraph/phone lines must pertain to railways. Q: What is the crime when, as a result of the damage caused to railway, certain passengers of the train are killed? A: It depends. Art. 330 says without prejudice to the criminal liability of the offender for other consequences of his criminal act. If there is no intent to kill, the crime is damages to means to means of communication with homicide because of the first paragraph of Art. 4 and Art. 48. If there is intent to kill, and damaging the railways was the means to accomplish the criminal purpose, the crime is murder

PAGE 215

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

proof of any stolen property in the possession of a person, as in the case at bar, no presumption of guilt can arise. The place was a market and presumably, petitioner was not the only vendor of beans. Where the proven facts and circumstances are capable of two or more explanations, one of which is consistent with innocence and the other with guilt, the evidence does not fulfill the test of moral certainty and is not sufficient to convict the accused. [Aoas v. People (2008)] DESTRUCTIVE ARSON It is clear that the place of the commission of the crime was a residential and commercial building located in an urban and populated area. This qualifying circumstance places the offense squarely within the ambit of Section 2(7) of P.D. 1613, and converts it to destructive arson. It was also established that the subject building was insured against fire for an amount substantially more than its market value, a fact that has given rise to the unrebutted prima facie evidence of arson, as provided in Section 6 of P.D. 1613. [Amora v. People (2008)] ROBBERY WITH HOMICIDE Does not include taking the gun to shoot its previous holder. The Court disagrees with the Court of Appeals that appellant committed the crime of robbery with homicide. There is nothing in the records that would show that the principal purpose of appellant was to rob the victim of his shotgun (Serial No. 9600942). It must be emphasized that when the victim and appellant met and had a heated argument, the absence of the intent to rob on the part of the appellant was apparent. Appellant was not trying to rob the victim. Appellants act of taking the shotgun was not for the purpose of robbing the victim, but to protect himself from the victim. No one would in ones right mind just leave a firearm lying around after being in a heated argument with another person. Having failed to establish that appellants original criminal design was robbery, appellant could only be convicted of the separate crimes of either murder or homicide, as the case may be, and theft. [People vs. Lara] ROBBERY WITH RAPE If the intention of the accused was to rob, but rape was committed even before the asportation, the

crime is the special complex crime of Robbery with Rape. So long as the intent of the accused is to rob, rape may be committed before, during or after the robbery. But if the primary intent ofthe accused was to rape and his taking away the belongings of the victim was only a mere afterthought, two separate felonies are committed: Rape and Theft or Robbery depending upon the circumstances surrounding the unlawful taking. [People v. Naag, GR No. 1361394, Feb. 15, 2001] QUALIFIED THEFT (Abuse of Confidence) Mere circumstance that petitioners were employees of Western does not suffice to create the relation of confidence and intimacy that the law requires. The element of grave abuse of confidence requires that there be a relation of independence, guardianship or vigilance between the petitioners and Western. Petitioners were not tasked to collect or receive payments. They had no hand in the safekeeping, preparation and issuance of invoices. They merely assisted customers in making a purchase and in demonstrating the merchandise to prospective buyers. While they had access to the merchandise, they had no access to the cashiers booth or to the cash payments subject of the offense. [Astudillo vs. People(2006)] THEFT (Corpus Delicti) The Petitioner contends that he cannot be held liable for the charges on the ground that he was not caught in possession of the missing funds. This is clutching at straws. To be caught in possession of the stolen property is not an element of the corpus delicti in theft. Corpus delicti means the body or substance of the crime, and, in its primary sense, refers to the fact that the crime has been actually committed. In theft, corpus delicti has two elements, namely: (1) that the property was lost by the owner, and (2) that it was lost by felonious taking. In the case before us, these two elements were established. The amounts involved were lost by WUP because petitioner took them without authority to do so. [Gan vs. People(2007)] THEFT; Attempted or Consummated only The Revised Penal Code provisions on theft have not been designed in such fashion as to accommodate the Adiao, Dino and Empelis rulings. Again, there is no language in Article 308 that expressly or impliedly allows that the free disposition of the

PAGE 216

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

items stolen is in any way determinative of whether the crime of theft has been produced. We thus conclude that under the Revised Penal Code, there is no crime of frustrated theft.[Valenzuela vs. People (2007)] ROBBERY WITH HOMICIDE; (Absorption Theory applied) Attempted homicide or attempted murder committed during or on the occasion of the robbery, as in this case, is absorbed in the crime of Robbery with Homicide which is a special complex crime that remains fundamentally the same regardless of the number of homicides or injuries committed in connection with the robbery. [People v. Cabbab, Jr.(2007)] ESTAFA; Essence of Misappropriation The words convert and misappropriate connote an act of using or disposing of anothers property as if it were ones own or devoting it to a purpose or use different from that agreed upon. To misappropriate for ones own use includes not only conversion to ones personal advantage but also every attempt to dispose of the property of another without any right. [Tan vs. People] ESTAFA (Sale of jewelry; Failure to return) In an agency for the sale of jewelries, as in the present case, it is the agents duty to return the jewelry upon demand of the owner and failure to do so is evidence of conversion of the property by the agent. In other words, the demand for the return of the thing delivered in trust and the failure of the accused to account for it are circumstantial evidence of misappropriation. However, this presumption is rebuttable. If the accused is able to satisfactorily explain his failure to produce the thing delivered in trust or to account for the money, he may not be held liable for estafa. [People v. Manantan] ADDITIONAL NOTES THEFT (a) Presumption of thievery -- possession of stolen goods [People vs. Dela Cruz (2000)] (b) No frustrated theft; Either attempted or consummated only [Valenzuela vs. People (2007)] QUALIFIED THEFT Related Laws (1) Anti-Carnapping Act of 1972 (RA 6539); (2) Anti-Cattle Rustling Law of 1974 (PD 533); (3) Heavier Penalties for Thefts by Employees and Laborers (PD 133); (4) Anti-Electricity Pilferage Act (RA 7832);

(5) Some LGUs have anti-Cable Television Theft Ordinances. (6) Theft of Forestry Products (PD 330); (7) Theft of Minerals/Ores (PD 581); Cases: (a) Theft by bank teller considered Qualified Theft [Roque vs. People(2004)] (b) Grave abuse of confidence, requirements [Astudillo vs. People(2006)] (c) Carnapping vs. Qualified Theft [People vs. Bustinera(2004)] ESTAFA (a) Conversion/Misappropriation, explained [Lee vs. People (2005)] (b) Estafa may coincide with Illegal recruitment [People vs. Hernandez (2002)] (c) Deceit/False Pretense, explained [Pablo vs. People (2004)] (d) SYNDICATED ESTAFA/Economic Sabotage (Presidential Decree No. 1689)Ponzi scheme; Pyramid Scams Case: Soliciting funds from and eventually defrauding the general public constitutes syndicated estafa amounting to economic sabotage [People vs. Balasa (1998)] BOUNCING CHECKS LAW (a) Modes of committing violations of BP 22; (b) Presumptions/Evidentiary Rules Cases: (a) Rule of Preference in BP 22 violations: Court may impose imprisonment or a fine [Bernardo vs. People (2007)] (b) Only a full payment of the face value of the second check at the time of its presentment or during the five-day grace period could exonerate one from criminal liability. [Macalalag vs. People (2006)] See Also: (1) PD 1612: Anti-Fencing Law (2) BP 22: Bouncing Check Law (3) RA 6539: Anti-Carnapping Act (4) RA 9372: Human Security Act (5) PD 1613: Anti-Arson Law

PAGE 217

UP COLLEGE OF LAW

CRIMINAL LAW: BOOK TWO

BAR OPERATIONS COMMISSION

Title XI. Crimes against Chastity


(1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) (12) (13) Art. 333: Adultery Art. 334: Concubinage Art. 336: Acts of Lasciviousness Art. 337: Qu