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* Success is not important. What matters is the actual assembly of men and the execution of
treasonable design by force. Ways of proving treason: a. 2 witnesses testifying to same overt act > The testimonies must refer to the same act, place and moment of time. Treason cannot be proved by circumstantial evidence or by extrajudicial confession. Example: X saw arms landed in La Union and loaded into a motor vehicle. At this stage, not sufficient to convict yet. Y later saw the arms unloaded in a warehouse. Will X + Y be sufficient witnesses to convict? Answer: NO. Because the law requires that 2 witnesses see the SAME OVERT ACT.
> Acts which strengthen or tend to strengthen the enemy in the conduct of war against the traitors country or that which weaken and tend to weaken the power of the same. Example: Financing arms procurement of enemy country. But giving of shelter is not necessarily giving aid and comfort. Adherence and giving aid or comfort must concur together. ADHERENCE: when a citizen intellectually or emotionally favors the enemy and harbors convictions disloyal to his countrys policy. But membership in the police force during the occupation is NOT treason. Example: Giving information to, or commandeering foodstuffs for the enemy. Adherence may be proved by: (1) one witness; (2) from the nature of the act itself; (3) from the circumstances surrounding the act.
* Treason is a continuing offense. It can be committed by a single act or by a series of acts. It can be committed in one single time or at different times and only one criminal intent. In construing the provisions relating to the commission of several acts, the same must be done in pursuance or furtherance of the act of treason. * No matter how many acts of treason are committed by the offender, he will be liable for only one crime of treason. If you convict a person for treason by reason of irresistible force or uncontrollable fear, you may use Art.12. No treason through negligence
* In the imposition of the penalty for the crime of treason, the court may disregard the presence of mitigating and aggravating circumstances. It may consider only the number, nature and gravity of the acts established during the trial. The imposition of the penalty rests largely on the exercise of judicial discretion. Defenses that may be availed of by the accused. 1. Duress or uncontrollable fear of immediate death; and 2. Lawful obedience to a de facto government. When killings and other common crimes are charged as overt act of treason, they cannot be regarded as (1) separate crimes or (2) as complex with treason.
* In the act of levying war or giving aid or comfort to the enemy, murder, robbery, arson or falsification may be committed by the offender. BUT the offender does not commit the crime of treason complexed with common crimes because such crimes are inherent to treason, being an indispensable element of the same. Treason distinguished from Rebellion.
The manner in which both crimes are committed in the same. In treason however, the purpose
of the offender is to deliver the government to the enemy country or to a foreign power. In rebellion, the purpose of the rebels is to substitute the government with their own form of government. No foreign power is involved. Treason distinguished from Sedition. In treason, the offender repudiates his allegiance to the government by means of force or intimidation. He does not recognize the supreme authority of the State. He violates his allegiance by fighting the forces of the duly constituted authorities. In sedition, the offender disagrees with certain policies of the State and seeks to disturb public peace by raising a commotion or public uprising.
Mere agreement and decisions to commit treason is punishable Mere proposal even without acceptance is punishable too. If the other accepts, it is already conspiracy.
* While Treason as a crime should be established by the two-witness rule, the same is not observed when the crime committed conspiracy to commit treason or when it is only a proposal to commit treason.
* While in treason, even aliens can commit said crime because of the amendment to the article, no such amendment was made in misprision of treason. Misprision of treason is a crime that may be committed only by citizens of the Philippines.
* Take note that the offender is a principal to the crime of misprision of treason, yet he is penalized only as an accessory. In the imposition of the penalty, the court is not bound by the provisions of Article 63 and 64, referring to indivisible penalties. In the presence of mitigating and aggravating circumstances, the offender is punished two degrees lower than the penalty for the crime of treason.
* The criminal liability arises if the treasonous activity was still at the conspiratorial stage
This crime does not apply if the crime of treason is already committed Crime of omission
* This is a felony by omission although committed with dolo, not with culpa .
To report within a reasonable time depends on time, place and circumstance the RPC did not fix time. RPC states 4 individuals, what if you report to some other high-ranking government official? Ex. PNP Director? Judge Pimentel says any govt official of the DILG is OK.
* Whether the conspirators are parents or children, and the ones who learn the conspiracy is a parent or child, they are required to report the same. The reason is that although blood is thicker than water so to speak, when it comes to security of the state, blood relationship is always subservient to national security. Article 20 does not apply here because the persons found liable for this crime are not considered accessories; they are treated as principals.
Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 117 Espionage by entering, without authority therefor, warship, fort, or naval or military establishments or reservation to obtain any information, plans, photographs or other data of a confidential nature relative to the defense of the Philippines.
ELEMENTS: a. 1. That the offender enters any of the places mentioned therein 2. That he has no authority therefore; b. That his purpose is to obtain information, plans, photographs or other data of a confidential nature relative to the defense of the Philippines * Under the first mode of committing espionage, the offender must have the intention to obtain information relative to the defense of the PHIL. It is sufficient that he entered the prohibited premises. Here, the offender is any private individual, whether an alien or a citizen of the Philippines, or a public officer.
Espionage by disclosing to the representative of a foreign nation the contents of the articles, data, or information referred to in paragraph 1 of Article 117, which he had in his possession by reason of the public office holds
ELEMENTS: a. That the offender is a public officer b. That he has in his possession the articles, data or information referred to in par 1 of art 117, by reason of the public office he holds c. That he discloses their contents to a representative of a foreign nation Purpose: to gather data
* Under the second mode, the offender must be a public officer who has in possession the articles, data or information by reason of the office he holds. Taking advantage of his official position, he reveals or discloses the information which are confidential and are relevant to the defense of the Philippines. ESPIONAGE: the offense of gathering, transmitting, or losing information respecting the national defense with the intent or reason to believe that the information is to be used to the injury of the Philippines or the advantage of any foreign nation. It is not conditioned on citizenship. Not necessary that Philippines is at war with the country to which the information was revealed. What is important is that the information related is connected with the defense system of the Philippines. Wiretapping is NOT espionage if the purpose is not something connected with the defense
Commonwealth Act No. 616 An Act to Punish Espionage and Other Offenses against National Security Acts punished 1. Unlawfully obtaining or permitting to be obtained information affecting national defense; 2. Unlawful disclosing of information affecting national defense; 3. Disloyal acts or words in times of peace; 4. Disloyal acts or words in times of war; 5. Conspiracy to violate preceding sections; 6. Harboring or concealing violators of law. and 7. Photographing vital military information
Crime is committed in time of peace, intent is immaterial Inciting to war offender is any person Reprisals is not limited to military action, it could be economic reprisals, or denial of entry into their country.
EXAMPLE. X burns Chinese flag. If China bans the entry of Filipinos into China, that is already reprisal.
* The regulation must be issued by a competent authority like the President of the Philippines or the Chief of Staff of the Armed Forces of the Philippines, during a war between different countries in which the Philippines is not taking sides. It is neutrality of the Phil that is violated Congress has the right to declare neutrality
* The violations can be done either by means of dolo or by means of culpa. So violation of neutrality can be committed through reckless imprudence.
PIRACY Robbery or forcible degradation on the high seas, without lawful authority and done with animo lucrandi and in the spirit and intention of universal hostility.
Intent to gain is an element. No criminal intent Attack from outside. Offenders are Attack from the inside. strangers to the vessel.
under the amended article, piracy can only be committed by a person who is not a passenger nor member of the complement of the vessel irrespective of venue. So if a passenger or complement of the vessel commits acts of robbery in the high seas, the crime is robbery, not piracy. If in the Phil. waters still piracy
* However, despite the amendment, P.D. No. 532 may still apply where the offender is not stranger to the vessel since it provides: Any attack upon or seize of any vessel, or the taking
away of the whole of part thereof or its cargo, equipment or the personal belongings of its complement or passengers, irrespective of the value hereof, 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. After all,
under the Revised Penal Code, for one to be called a pirate, the offender must be a stranger to the vessel.
While the Article 122 limits the offenders to non-passengers or non-members of the crew, P.D. 532 states that the attack upon or seizure of any vessel, or taking away the whole or part thereof or its cargo, equipment or personal belongings of its complement or passengers committed by any person including a passenger or member of the complement of said vessel shall be considered Piracy.
* Note, however, that 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 Presidential Decree No. 532 with respect to piracy in Philippine water has not been incorporated in the Revised Penal Code. Neither may it be considered repealed by Republic Act No. 7659 since there is nothing in the amendatory law is inconsistent with said section. Apparently, there is still the crime of abetting piracy in Philippine waters under Presidential Decree No. 532. * Considering that the essence of piracy is one of robbery , any taking in a vessel with force upon things or with violence or intimidation against person is employed will always be piracy. It cannot co-exist with the crime of robbery. Robbery, therefore, cannot be committed on board a vessel. But if the taking is without violence or intimidation on persons or force upon things, the crime of piracy cannot be committed, but only theft.
MUTINY is the unlawful resistance to a superior officer, or the raising of commotions and disturbances aboard a ship against the authority of its commander.
* Murder, rape, homicide, physical injuries are mere circumstances qualifying piracy and cannot be
punished as separate crimes, nor can they be complexed with piracy.
Parricide/infanticide should be included (Judge Pimentel) Murder/rape/homicide/physical injuries must have been committed on the passengers or complement
* In piracy, where rape, murder or homicide is committed, the mandatory penalty of death is imposable. This means that even if the accused enters a plea of guilty, the penalty of death will still be imposed because death is a single and indispensable penalty. (People vs. Rodriguez, 135 SCRA 485) * The penalty for qualified piracy is reclusion perpetua to death. If any of the circumstances enumerated under the law is proven or established, the mandatory penalty of death should be imposed. The presence of mitigating or aggravating circumstances will be ignored by the court.
Although in Article 123 merely refers to qualified piracy, there is also the crime of qualified mutiny. Mutiny is qualified under the following circumstances: (1) (2) When the offenders abandoned the victims without means of saving themselves; or When the mutiny is accompanied by rape, murder, homicide, or physical injuries.
Note that the first circumstance which qualifies piracy does not apply to mutiny.
(3)
(4)
Between numbers 1 and 2, the point of distinction is whether the aircraft is of Philippine registry or foreign registry. The common bar question on this law usually involves number 1. The important thing is that before the anti hi-jacking law can apply, the aircraft must be in flight. If not in flight, whatever crimes committed shall be governed by the Revised Penal Code. The law makes a distinction between aircraft of a foreign registry and of Philippine registry. If the aircraft subject of the hi-jack is of Philippine registry, it should be in flight at the time of the hi-jacking. Otherwise, the anti hi-jacking law will not apply and the crime is still punished under the Revised Penal Code. The correlative crime may be one of grave coercion or grave threat. If somebody is killed, the crime is homicide or murder, as the case may be. If there are some explosives carried there, the crime is destructive arson. Explosives are by nature pyrotechniques. Destruction of property with the use of pyro-technique is destructive arson. If there is illegally possessed or carried firearm, other special laws will apply. On the other hand, if the aircraft is of foreign registry, the law does not require that it be in flight before the anti hi-jacking law can apply. This is because aircrafts of foreign registry are considered in transit while they are in foreign countries. Although they may have been in a foreign country, technically they are still in flight, because they have to move out of that foreign country. So even if any of the acts mentioned were committed while the exterior doors of the foreign aircraft were still open, the anti hi-jacking law will already govern. Note that under this law, an aircraft is considered in flight from the moment all exterior doors are closed following embarkation until such time when the same doors are again opened for disembarkation. This means that there are passengers that boarded. So if the doors are closed to bring the aircraft to the hangar, the aircraft is not considered as in flight. The aircraft shall be deemed to be already in flight even if its engine has not yet been started.
Questions & Answers 1. The pilots of the Pan Am aircraft were accosted by some armed men and were told to proceed to the aircraft to fly it to a foreign destination. The armed men walked with the pilots and went on board the aircraft. But before they could do anything on the aircraft, alert marshals arrested them. What crime was committed? The criminal intent definitely is to take control of the aircraft, which is hi-jacking. It is a question now of whether the anti-hi-jacking law shall govern. The anti hi-jacking law is applicable in this case. Even if the aircraft is not yet about to fly, the requirement that it be in flight does not hold true when in comes to aircraft of foreign registry. Even if the problem does not say that all exterior doors are closed, the crime is hi-jacking. Since the aircraft is of foreign registry, under the law, simply usurping or seizing control is enough as long as the aircraft is within Philippine territory, without the requirement that it be in flight. Note, however, that there is no hi-jacking in the attempted stage. This is a special law where the attempted stage is not punishable. 2. A Philippine Air Lines aircraft is bound for Davao. While the pilot and co-pilot are taking their snacks at the airport lounge, some of the armed men were also there. The pilots were followed by these men on their way to the aircraft. As soon as the pilots entered the cockpit, they pulled out their firearms and gave instructions where to fly the aircraft. Does the anti hi-jacking law apply? No. The passengers have yet to board the aircraft. If at that time, the offenders are apprehended, the law will not apply because the aircraft is not yet in flight. Note that the aircraft is of Philippine registry. 3. While the stewardess of a Philippine Air Lines plane bound for Cebu was waiting for the passenger manifest, two of its passengers seated near the pilot surreptitiously entered the pilot cockpit. At gunpoint, they directed the pilot to fly the aircraft to the Middle East. However, before the pilot could fly the aircraft towards the Middle East, the offenders were subdued and the aircraft landed. What crime was committed?
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CLASSES OF ARBITRARY DETENTION: a. By detaining a person without legal ground b. Delay in the delivery of detained persons to the proper judicial authorities c. Delaying release
* 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. So, if the offender does not possess such authority, the crime committed by him is illegal detention.
Though the elements specify that the offender be a public officer or employee, private individuals who conspire with public officers can also be liable.
* 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 the jurisdiction to maintain peace and order within his barangay. In the maintenance of such peace and order, he may cause the arrest and detention of troublemakers or those who disturb the peace and order within his barangay. But if the legal basis for the apprehension and detention does not exist, then the detention becomes arbitrary.
Legal grounds for the detention of any person: a. commission of a crime b. violent insanity or other ailment requiring compulsory confinement of the patient in a hospital c. escaped prisoner
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* Arbitrary detention can be committed thru simple imprudence or negligence. (People vs. Misa) Periods of Detention penalized: 1. Detention not exceeding three days; 2. Detention for more than three days but not more than 15 days; 3. Detention for more than 15 days but not more than 6 months; and 4. Detention for more than 6 months. Continuing crime is different from a continuous crime Ramos v. Enrile: Rebels later on retire. According to the SC, once you have committed rebellion and have not been punished or amnestied, then the rebels continue to engage in rebellion, unless the rebels renounce his affiliation. Arrest can be made without a warrant because this is a continuing crime.
Distinction between arbitrary detention and illegal detention 1. In arbitrary detention -The principal offender must be a public officer. Civilians cannot commit the crime of arbitrary detention except when they conspire with a public officer committing this crime, or become an accomplice or accessory to the crime committed by the public officer; and The offender who is a public officer has a duty which carries with it the authority to detain a person. 2. In illegal detention -The principal offender is a private person. But a public officer can commit the crime of illegal detention when he is acting in a private capacity or beyond the scope of his official duty, or when he becomes an accomplice or accessory to the crime committed by a private person. The offender, even if he is a public officer, does not include as his function the power to arrest and detain a person, unless he conspires with a public officer committing arbitrary detention. * Whether the crime is arbitrary detention or illegal detention, it is necessary that there must be an actual restraint of liberty of the offended party. If there is no actual restraint, as the offended party may still go to the place where he wants to go, even though there have been warnings, the crime of arbitrary detention or illegal detention is not committed. There is either grave or light threat.
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Really means delay in filing necessary information or charging of person detained in court. May be waived if a preliminary investigation is asked for.
* Under the Revised Rules of Court, when the person arrested is arrested for a crime which gives him the right to preliminary investigation and he wants to avail his right to a preliminary investigation, he would have to waive in writing his rights under Article 125 so that the arresting officer will not immediately file the case with the court that will exercise jurisdiction over the case. If he does not want to waive this in writing, the arresting officer will have to comply with Article 125 and file the case immediately in court without preliminary investigation. In such case, the arrested person, within five days after learning that the case has been filed in court without preliminary investigation, may ask for preliminary investigation. In this case, the public officer who made the arrest will no longer be liable for violation of Article 125.
Does not contemplate actual physical delivery but at least there must be a complaint filed. Duty complied with upon the filing of the complaint with the judicial authority (courts, prosecutors though technically not a judicial authority, for purposes of this article, hes considered as one.)
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Q. Within what period should a police officer who has arrested a person under a warrant of arrest turn over the arrested person to the judicial authority? A. There is no time limit specified except that the return must be made within a reasonable time. The period fixed by law under Article 125 does not apply because the arrest was made by virtue of a warrant of arrest.
Delay in Delivery of Detained (125) Detention is legal in the beginning, but illegality starts from the expiration of the specified periods without the persons detained having been delivered to the proper judicial authority.
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* In the Philippines, only the President of the Republic has the power to deport aliens whose continued stay in the country constitutes a menace to the peace and safety of the community. * In the case of Filipino citizens, only the court, by final judgment, can order a person to change his residence.
In Villavicencio v. Lukban, 39 Phil 778, the mayor of the City of Manila wanted to make the city free from prostitution. He ordered certain prostitutes to be transferred to Davao, without observing due processes since they have not been charged with any crime at all. It was held that the crime committed was expulsion.
1. Certain aliens were arrested and they were just put on the first aircraft which brought them to the country so that they may be out without due process of law. Was there a crime committed? Yes. Expulsion. 2. If a Filipino citizen is sent out of the country, what crime is committed?
Grave coercion, not expulsion, because a Filipino cannot be deported. This crime refers only to aliens.
If X (Filipino) after he voluntarily left, is refused re-entry is considered forcing him to change his address here Threat to national security is not a ground to expel or change his address.
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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 128 VIOLATION OF DOMICILE
ELEMENTS: a. That the offender is a public officer or employee b. That he is not authorized by judicial order to enter the dwelling and/or to make a search therein for papers or other effects c. That he commits any of the following acts: 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 3. refusing to leave the premises, after having surreptitiously entered said dwelling and after having been required to leave the same Aggravating Circumstance (medium and maximum of penalty imposed): a. Offense committed at nighttime b. Papers or effects not constituting evidence of a crime be not returned immediately * In order to commit this crime, the entry must be against the will of the owner. If the entry is only without the consent of the owner, the crime of violation of domicile is not committed. The prohibition may be expressed or implied. If the signs Do not enter and Strangers keep out are posted in front of the house or dwelling, then the prohibition is express. If the door is locked, or even if it is open but these are barriers to indicate the manifest intention of the owner to bar strangers from entering, there is implied prohibition. * The primary object of the law is to preserve the privacy of abode of the offended party. Hence, if the privacy is already lost, as when the offender has been allowed by the owner to enter the dwelling together with other persons, any subsequent change of attitude will not restore the privacy which was already lost. When privacy is waived, trespass to dwelling or violation of domicile cannot be committed. If the offender who enters the dwelling against the will of the owner thereof is a private individual, the crime committed is trespass to dwelling (Art 280) When a public officer searched a person outside his dwelling without a search warrant and such person is not legally arrested for an offense, the crime committed by the public officer is grave coercion, if violence or intimidation is used (Art 286), or unjust vexation, if there is no violence or intimidation (Art 287) A public officer without a search warrant cannot lawfully enter the dwelling against the will of the owner, even if he knew that someone in that dwelling is having unlawful possession of opium
Under Rule 113(sec. 11) of the Revised Rules of Court, when a person to be arrested enters a premise and closes it thereafter, the public officer, after giving notice of an arrest, can break into the premise. He shall not be liable for violation of domicile.
3 acts punishable: a. person enters dwelling w/o consent or against the will
In the plain view doctrine, public officer should be legally entitled to be in the place where the effects were found. If he entered the place illegally and he saw the effects, doctrine inapplicable; thus, he is liable for violation of domicile.
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BEING AUTHORIZED BY LAW means with search warrant, to save himself or do some things good for humanity
There are only three recognized instances when search without a warrant is considered valid, and, therefore, the seizure of any evidence done is also valid . Outside of these, search would be invalid and the objects seized would not be admissible in evidence. (1) (2) Search made incidental to a valid arrest; Where the search was made on a moving vehicle or vessel such that the exigency of he situation prevents the searching officer from securing a search warrant; When the article seized is within plain view of the officer making the seizure without making a search therefore.
(3)
In order that a search warrant may be issued, it must be based on probable cause in
connection with one offense, to be determined by a judge after examination under oath of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.
* This means there was no probable cause determined in obtaining the search warrant. Although void, the search warrant is entitled to respect because of presumption of regularity . One remedy is a motion to quash the search warrant, not refusal to abide by it. The public officer may also be prosecuted for perjury, because for him to succeed in obtaining a search warrant without a probable cause, he must have perjured himself or induced someone to commit perjury to convince the court.
* The true test of lack of just cause is whether the sworn statement filed in support of the application for search warrant has been done in such a manner that perjury could be charged and the affiant can be held liable for making such false statement. The oath required refers to the truth of the facts within the personal knowledge of the applicant and his witnesses.
ABUSE IN THE SERVICE OF WARRANT OR EXCEEDING AUTHORITY OR USING UNNECESSARY SEVERITY IN EXECUTING A SEARCH WARRANT LEGALLY PROCURED
ELEMENTS: a. That the offender is a public officer or employee b. That he has legally procured a search warrant c. That he exceeds his authority or uses unnecessary severity in executing the same
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The officer exceeded his authority under the warrant To illustrate, let us say that there was a pusher in a condo unit. The PNP Narcotics Group obtained a search warrant but the name of person in the search warrant did not tally with the address stated. Eventually, the person with the same name was found but in a different address. The occupant resisted but the public officer insisted on the search. Drugs were found and seized and occupant was prosecuted and convicted by the trial court. The Supreme Court acquitted him because the public officers are required to follow the search warrant to the letter. They have no discretion on the matter. Plain view doctrine is inapplicable since it presupposes that the officer was legally entitled to be in the place where the effects where found. Since the entry was illegal, plain view doctrine does not apply.
Malicious warrant. Example. X was a respondent of a search warrant for illegal possession of firearms. A return was made. The gun did not belong to X and the witness had no personal knowledge that there is a gun in that place. Abuse examples: a. X owner was handcuffed while search was going-on. b. Tank was used to ram gate prior to announcement that a search will be made
The search warrant is not a license to commit destruction.
* Article 130 has no application to search and seizure made on moving vehicles because the application of this law is limited to dwelling and personal properties such as papers and effects found therein. * There are searches and seizures which are authorized by law and which can be done without the attendance of witnesses. For instance, the Tariff and Customs Code authorizes persons with police authority under Sec. 2203, to enter; pass through or search any land, enclosure, warehouse, store or building, not being used as a dwelling house; and to inspect, search and
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Two criteria to determine whether Article 131 would be violated: (1) (2) Dangerous tendency rule applicable in times of national unrest such as to prevent coup detat. Clear and present danger rule applied in times of peace. Stricter rule.
If the offender is a private individual, the crime is disturbance of public order (Art 153) Meeting must be peaceful and there is no legal ground for prohibiting, dissolving or interrupting that meeting
If in the course of the assembly the participants commit illegal acts like oral defamation or inciting to sedition, a public officer or law enforcer can stop or dissolve the meeting . The permit given is not a license to commit a crime.
* If the permit is denied arbitrarily, Article 131 is violated. If the officer would not give the permit unless the meeting is held in a particular place which he dictates, such defeats the exercise of the right to peaceably assemble, Article 131 is violated.
Offender must be a stranger, not a participant, in the peaceful meeting; otherwise, its unjust vexation Interrupting and dissolving a meeting of the municipal council by a public officer is a crime against the legislative body, not punishable under this article The person talking on a prohibited subject at a public meeting contrary to agreement that no speaker should touch on politics may be stopped But stopping the speaker who was attacking certain churches in public meeting is a violation of this article Prohibition must be without lawful cause or without lawful authority Those holding peaceful meetings must comply with local ordinances. Example: Ordinance requires permits for meetings in public places. But if police stops a meeting in a private place because theres no permit, officer is liable for stopping the meeting.
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* In determining whether an act is offensive to the feelings of the faithful, the same must be viewed or judged from the standpoint of the offended religion and not from the point of view of the offender (People vs. Baes, 68 Phil. 203).
CRIME Prohibition, Interruption and Dissolution of Peaceful Meeting (131) Interruption of Religious Worship (132)
Nature of Crime Who are Liable If Element Missing Crime against the Public officers, If not by public officer = fundamental law of Outsiders tumults the state
Crime against the Public officers, If by insider = unjust fundamental law of Outsiders vexation the state If not religious = tumult or alarms If not notoriously offensive = unjust vexation Offending the Crime against Public officers, If not tumults = alarms Religious Feeling public order private persons, and scandal (133) outsiders If meeting illegal at onset = inciting to sedition or rebellion
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* The crime of rebellion cannot be committed by a single individual. Invariably, it is committed by several persons for the purpose of overthrowing the duly constituted or organized government. In the Philippines, what is known to the ordinary citizen as a symbol of Government would be the barangay, represented by its officials; the local government represented by the provincial and municipal officials; and the national government represented by the President, the Chief Justice and the Senate President and the Speaker of the House of Representatives. Success is immaterial, purpose is always political
* The crime of rebellion is essentially a political crime. The intention of the rebel is to substitute himself in place of those who are in power. His method of placing himself in authority with the use of violence, duress or intimidation, assassination or the commission of common crimes like murder, kidnapping, arson, robbery and other heinous crimes in what we call rebellion. REBELLION used where the object of the movement is completely to overthrow and supersede the existing government INSURRECTION refers to a movement which seeks merely to effect some change of minor importance to prevent the exercise of govt authority w/ respect to particular matters or subjects The phrase to remove allegiance from the government is used to emphasize that the object of the uprising could be limited to certain areas, like isolating a barangay or municipality or a province in its loyalty to the duly constituted government or the national government.
* Allegiance is a generic term which includes loyalty, civil obedience and civil service.
* The law on rebellion however, does not speak only of allegiance or loss of territory. It also includes the efforts of the rebel to deprive the President of the Philippines of the exercise of his power to enforce the law, to exact obedience of laws and regulations duly enacted and promulgated by the duly constituted authorities. Actual clash of arms w/ the forces of the govt, not necessary to convict the accused who is in conspiracy w/ others actually taking arms against the govt Purpose of the uprising must be shown but it is not necessary that it be accomplished A change of government w/o external participation RISING PUBLICLY and TAKING ARMS AGAINST GOVERNMENT actual participation. If there is no public uprising, the crime is of direct assault.
* 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. But if there is rebellion, with public uprising, direct assault cannot be committed.
Mere giving of aid or comfort is not criminal in the case of rebellion. Merely sympathizing is not participation, there must be ACTUAL participation
* There must be a public apprising and taking up of arms for the specified purpose or purposes mentioned in Article 134. The acts of the accused who is not a member of the Hukbalahap organization of sending
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* Rebellion may be committed even without a single shot being fired. No encounter needed. Mere public uprising with arms enough.
> Common crimes perpetrated in furtherance of a political offense are divested of their character as common offenses and assume the political complexion of the main crime which they are mere ingredients, and consequently, cannot be punished separately from the principal offense, or complexed with the same. ORTEGA OPINION:
Rebellion can now be complexed with common crimes. Not long ago, the Supreme Court, in Enrile v. Salazar, 186 SCRA 217, reiterated and affirmed the rule laid down in People v. Hernandez, 99 Phil 515, that rebellion may not be complexed with common crimes which are committed in furtherance thereof because they are absorbed in rebellion. In view of said reaffirmation, some believe that it has been a settled doctrine that rebellion cannot be complexed with common crimes, such as killing and destruction of property, committed on the occasion and in furtherance thereof. This thinking is no longer correct; there is no legal basis for such rule now. The statement in People v. Hernandez that common crimes committed in furtherance of rebellion are absorbed by the crime of rebellion, was dictated by the provision of Article 135 of the Revised Penal Code prior to its amendment by the Republic Act No. 6968 (An Act Punishing the Crime of Coup De tat), which became effective on October 1990. Prior to its amendment by Republic Act No. 6968, Article 135 punished those who while holding any public office or employment, take part therein by any of these acts: engaging in war against the forces of Government; destroying property; committing serious violence; exacting contributions, diverting funds for the lawful purpose for which they have been appropriated. Since a higher penalty is prescribed for the crime of rebellion when any of the specified acts are committed in furtherance thereof, said acts are punished as components of rebellion and, therefore, are not to be treated as distinct crimes. The same acts constitute distinct crimes when committed on a different occasion and not in furtherance of rebellion. In short, it was because Article 135 then punished said acts as components of the crime of rebellion that precludes the application of Article 48 of the Revised Penal Code thereto. In the eyes of the law then, said acts constitute only one crime and that is rebellion. The Hernandez doctrine was reaffirmed in Enrile v. Salazar because the text of Article 135 has remained the same as it was when the Supreme Court resolved the same issue in the People v. Hernandez. So the Supreme Court invited attention to this fact and thus stated: There is a an apparent need to restructure the law on rebellion, either to raise the penalty therefore or to clearly define and delimit the other offenses to be considered absorbed thereby, so that it cannot be conveniently utilized as the umbrella for every sort of illegal activity undertaken in its name. The court has no power to effect such change, for it can only interpret the law as it stands at any given time, and what is needed lies beyond interpretation. Hopefully, Congress will perceive the need for promptly seizing the initiative in this matter, which is purely within its province. Obviously, Congress took notice of this pronouncement and, thus, in enacting Republic Act No. 6968, it did not only provide for the crime of coup detat in the Revised Penal Code but moreover, deleted from the provision of Article 135 that portion referring to those who, while holding any public office or employment takes part therein [rebellion or insurrection], engaging in war against the forces of government, destroying property or committing serious violence, exacting contributions or diverting public funds from the lawful purpose for which they have been appropriated Hence, overt acts which used to be punished as components of the crime of rebellion have been severed therefrom by Republic Act No. 6968. The legal impediment to the application of Article 48 to rebellion has been removed. After the amendment, common crimes involving killings, and/or destructions of property, even though committed by rebels in furtherance of rebellion, shall bring about complex crimes of rebellion with murder/homicide, or rebellion with robbery, or rebellion with arson as the case may be. To reiterate, before Article 135 was amended, a higher penalty is imposed when the offender engages in war against the government. "War" connotes anything which may be carried out in pursuance of war.
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However, illegal possession of firearms in furtherance of rebellion is distinct from the crime of rebellion.
* The offense of illegal possession of firearm is a malum prohibitum, in which case, good faith and absence of criminal intent are not valid defenses.
Furthermore, it is a continuing crime such along with the crime of conspiracy or proposal to commit such A private crime may be committed during rebellion. Examples: killing, possessions of firearms, illegal association are absorbed. Rape, even if not in furtherance of rebellion cannot be complexed If killing, robbing were done for private purposes or for profit, without any political motivation, the crime would be separately be punished and would not be embraced by rebellion (People v. Fernando) Person deemed leader of rebellion in case he is unknown: Any person who in fact: a. directed the others b. spoke for them c. signed receipts and other documents issued in their name d. performed similar acts on behalf of the rebels
Distinctions between rebellion and sedition (1) As to nature In rebellion, there must be taking up or arms against the government. In sedition, it is sufficient that the public uprising be tumultuous. (2) As to purpose In rebellion, the purpose is always political. * In sedition, the purpose may be political or social. Example: the uprising of squatters against Forbes park residents. The purpose in sedition is to go against established government, not to overthrow it.
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e. f.
* The essence of the crime is a swift attack upon the facilities of the Philippine government, military camps and installations, communication networks, public utilities and facilities essential to the continued possession of governmental powers. It may be committed singly or collectively and does not require a multitude of people. The objective may not be to overthrow the government but only to destabilize or paralyze the government through the seizure of facilities and utilities essential to the continued possession and exercise of governmental powers. It requires as principal offender a member of the AFP or of the PNP organization or a public officer with or without civilian support. Finally, it may be carried out not only by force or violence but also through stealth, threat or strategy.
How do you distinguish between coup detat and rebellion? Rebellion is committed by any person whether a private individual or a public officer whereas in coup detat, the offender is a member of the military or police force or holding a public office or
employment. In rebellion, the object is to alienate the allegiance of a people in a territory, whether wholly or partially, from the duly constituted government; in coup detat, the object or purpose is to seize or diminish state power. In both instances, the offenders intend to substitute themselves in place of those who are in power. Coup detat (134-A) Nature of Crime against Crime against Crime Crime National Security Public Order against Public Order Overt levying war Public uprising See article. Acts against the govt; AND OR Taking up arms adherence and against the govt giving aid or comfort to enemies Purpose Deliver the govt See article. Seizing or of to enemy during diminishing objective war state power. Treason (114) Rebellion (134) Sedition (139) Crime against Public Order Rising publicly or tumultuously (caused by more than 3 armed men or provided with means of violence) See enumeration in article.
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NOTES: > Public officer must take active part because mere silence or omission not punishable in rebellion > It is not a defense in rebellion that the accused never took the oath of allegiance to, or that they never recognized the government > Rebellion cannot be complexed with murder and other common crimes committed in pursuance of the movement to overthrow the government * Subversion, just like the crimes of rebellion, conspiracy or proposal to commit the crimes of rebellion or subversion and crimes or offenses committed in furtherance thereof constitute direct assaults against the State and are in the nature of continuing crimes ( Umil vs. Ramos). > Killing, robbing etc for private persons or for profit, without any political motivation, would be separately punished and would not be absorbed in the rebellion.
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* Disloyalty as a crime is not limited to rebellion alone but should now include the crime of coup detat. Rebellion is essentially a crime committed by private individuals while coup detat is a crime that should be classified as a crime committed by public officers like malversation, bribery, dereliction of duty and violations of the anti-Graft and Corrupt Practices Act. * If the public officer or employee, aside from being disloyal, does or commits acts constituting the crime of rebellion or coup detat, he will no longer be charged for the simple crime of disloyalty but he shall be proceeded against for the grave offense of rebellion or coup detat.
* One who promotes, maintains or heads a rebellion and who act at the same time incites or influences others to join him in his war efforts against the duly constituted government cannot be held criminally liable for the crime of inciting to rebellion because, as the principal to the crime of rebellion, the act of inciting to commit a rebellion is inherent to the graver crime of rebellion.
Proposal to Commit Rebellion (136) Inciting to Rebellion (138) The person who proposes has decided to Not required that the offender commit rebellion. decided to commit rebellion. The person who proposes the execution The inciting is done publicly. of the crime uses secret means.
has
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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 139 SEDITION
ELEMENTS: a. That the offenders rise 1. Publicly (if no public uprising = tumult and other disturbance of public order) 2. Tumultuously (vis--vis rebellion where there must be a taking of arms) b. That they employ force, intimidation, or other means outside of legal methods c. That the offenders employ any of those means to attain any of the following objects: 1. to prevent the promulgation or execution of any law or the holding of any popular election 2. to prevent the national government, or any provincial or municipal government, or any public thereof from freely exercising its or his functions, or prevent the execution of any administrative order 3. to inflict any act or hate or revenge upon the person or property of any public officer or employee 4. to commit for any political or social end, any act of hate or revenge against private persons or any social class (hence, even private persons may be offended parties) 5. 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 Sedition: raising of commotion or disturbances in the State. Its ultimate object is a violation of the public peace or at least such measures that evidently engenders it. The crime of sedition is committed by rising publicly and tumultuously. The two elements must concur.
The crime of sedition does not contemplate the taking up of arms against the government because the purpose of this crime is not the overthrow of the government. Notice from the purpose of the crime of sedition that the offenders rise publicly and create commotion and disturbance by way of protest to express their dissent and obedience to the government or to the authorities concerned. This is like the so-called civil disobedience except that the means employed, which is violence, is illegal.
For sedition sufficient that uprising is tumultuous. In rebellion there must be taking up of arms against the government. Sedition purpose may be either political or social. In rebellion always political TUMULTUOUS is a situation wherein the disturbance or confusion is caused by at least four persons. There is no requirement that the offenders should be armed. Preventing public officers from freely exercising their functions In sedition offender may be a private or public person (Ex. Soldier) Public uprising and the object of sedition must concur Q: Are common crimes absorbed in sedition?
In P v. Umali, SC held that NO. Crimes committed in that case were independent of each other. Preventing election through legal means NOT sedition
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* The conspiracy must be to prevent the promulgation or execution of any law or the holding of any popular election. It may also be a conspiracy to prevent national and local public officials from freely exercising their duties and functions, or to prevent the execution of an administrative order.
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* Inciting to sedition is an element of sedition. It cannot be treated as a separate offense against one who is a part of a group that rose up publicly and tumultuously and fought the forces of 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. * The mere meeting for the purpose of discussing hatred against the government is inciting to sedition. Lambasting government officials to discredit the government is Inciting to sedition. But if the objective of such preparatory actions is the overthrow of the government, the crime is inciting to rebellion.
CRIMES AGAINST POPULAR REPRESENTATION Article 143 ACTS TENDING TO PREVENT THE MEETING OF CONGRESS AND SIMILAR BODIES
ELEMENTS: a. That there be a projected or actual meeting of Congress or any of its committees or subcommittees, constitutional commissions or committees or division thereof, or of any provincial board or city or municipal council or board b. That the offender who may be any persons prevents such meeting by force or fraud * The crime is against popular representation because it is directed against officers whose primary function is to meet and enact laws. When these legislative bodies are prevented from meeting and performing their duties, the system of government is disturbed. The three branches of government must continue to exist and perform their duties. Chief of Police and mayor who prevented the meeting of the municipal council are liable under Art 143, when the defect of the meeting is not manifest and requires an investigation before its existence can be determined.
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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 145 VIOLATION OF PARLIAMENTARY IMMUNITY
Acts punishable: a. By using force, intimidation, threats, or frauds to prevent any member of Congress from 1. attending the meeting of the assembly or any of its committees, constitutional commissions or committees or divisions thereof, or from 2. expressing his opinions or 3. casting his vote b. By arresting or searching any member thereof while Congress is in a regular or special session, except in case such member has committed a crime punishable under the code by a penalty higher than prision mayor ( 6 years up ) Elements: 1. That the offender is a public officer or employee 2. That he arrests or searches any member of Congress 3. That Congress, at the time of arrest or search, is in a regular or special session 4. That the member searched has not committed a crime punishable under the code by a penalty higher than prision mayor (1987 constitution: privilege from arrest while congress in session in all offenses punishable by not more than 6 years imprisonment).
* Under Section 11, Article VI of the Constitution, a public officer who arrests a member of Congress who has committed a crime punishable by prision mayor (six years and one day, to 12 years) is not liable Article 145. * According to Reyes, to be consistent with the Constitution, the phrase "by a penalty higher than prision mayor" in Article 145 should be amended to read: "by the penalty of prision mayor or higher."
* The offender is any person and the offended party who is a member of Congress, has not committed any crime to justify the use of force, threat, intimidation or fraud to prevent him from attending the meeting of Congress.
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Two forms of illegal assembly (1) No attendance of armed men, but persons in the meeting are incited to commit treason, rebellion or insurrection, sedition or assault upon a person in authority . When the illegal purpose of the gathering is to incite people to commit the crimes mentioned above, the presence of armed men is unnecessary. The mere gathering for the purpose is sufficient to bring about the crime already. Armed men attending the gathering If the illegal purpose is other than those mentioned above, the presence of armed men during the gathering brings about the crime of illegal assembly. Example: Persons conspiring to rob a bank were arrested. Some were with firearms. Liable for illegal assembly, not for conspiracy, but for gathering with armed men. Distinction between illegal assembly and illegal association In illegal assembly, the basis of liability is the gathering for an illegal purpose which constitutes a crime under the Revised Penal Code. In illegal association, the basis is the formation of or organization of an association to engage in an unlawful purpose which is not limited to a violation of the Revised Penal Code. It includes a violation of a special law or those against public morals. Meaning of public morals: inimical to public welfare; it has nothing to do with decency., not acts of obscenity.
(2)
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Act of forming or organizing membership in the association Founders, directors, president members
and and
Public morals refers to crimes punished under Title Six of the Revised Penal Code, namely, gambling, grave scandal, prostitution and vagrancy.
ELEMENTS OF THE 2ND FORM OF DIRECT ASSAULT: a. That the offender (a) makes an attack, (b) employs force, (c) makes a serious intimidation, or (d) makes a serious resistance. b. That the person assaulted is a person in authority or his agent. c. That at the time of the assault the person in authority or his agent (a) is engaged in the actual performance of official duties (motive is not essential), or that he is assaulted (b) by reason of the past performance of official duties (motive is essential). d. That the offender knows that the one he is assaulting is a person in authority or his agent in the exercise of his duties (with intention to offend, injure or assault). e. That there is no public uprising.
* Crime of direct assault can only be committed by means of dolo. It cannot be committed by culpa. Always complexed with the material consequence of the act (e.g. direct assault with murder) except if resulting in a light felony, in which case, the consequence is absorbed
* The crime is not based on the material consequence of the unlawful act. The crime of direct assault punishes the spirit of lawlessness and the contempt or hatred for the authority or the rule of law.
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Hitting the policeman on the chest with fist is not direct assault because if done against an agent of a person in authority, the force employed must be of serious character The force employed need not be serious when the offended party is a person in authority (ex. Laying of hands) The intimidation or resistance must be serious whether the offended party is an agent only or a person in authority (ex. Pointing a gun) Force Employed Need not be serious Must be of serious character Intimidation/Resistance Serious Serious
PERSON IN AUTHORITY: any person directly vested with jurisdiction (power or authority to govern and execute the laws) whether as an individual or as a member of some court or governmental corporation, board or commission A barangay captain is a person in authority, so is a Division Superintendent of schools, President of Sanitary Division and a teacher
* In applying the provisions of Articles 148 and 151, teachers, professors, and persons charged with the supervision of public or duly recognized private schools, colleges and universities and lawyers in the actual performance of their duties or on the occasion of such performance, shall be deemed a person in authority.
AGENT: is one who, by direct provision of law or by election or by appointment by competent authority, is charged with the maintenance of public order and the protection and security of life and property. (Example. Barrio councilman and any person who comes to the aid of the person in authority, policeman, municipal treasurer, postmaster, sheriff, agents of the BIR, Malacaang confidential agent) Even when the person in authority or the agent agrees to fight, still direct assault. When the person in authority or the agent provoked/attacked first, innocent party is entitled to defend himself and cannot be held liable for assault or resistance nor for physical injuries, because he acts in legitimate self-defense
* The offended party in assault must not be the aggressor. If there is unlawful aggression employed by the public officer, any form of resistance which may be in the nature of force against him will be considered as an act of legitimate defense. (People vs. Hernandez, 59 Phil. 343) There can be no assault upon or disobedience to one authority by another when they both contend that they were in the exercise of their respective duties.
* The offender and the offended party are both public officers. The Supreme Court said that assault may still be committed, as in fact the offender is even subjected to a greater penalty (U.S. vs. Vallejo, 11 Phil. 193). When assault is made by reason of the performance of his duty there is no need for actual performance of his official duty when attacked
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* On the other hand, if the person in authority or the agent was killed when no longer performing official functions, the crime may simply be the material consequence of he unlawful act: murder or homicide. For the crime to be direct assault, the attack must be by reason of his official function in the past. Motive becomes important in this respect. Example, if a judge was killed while resisting the taking of his watch, there is no direct assault. In the second form of direct assault, it is also important that the offended knew that the person he is attacking is a person in authority or an agent of a person in authority, performing his official functions. No knowledge, no lawlessness or contempt. For example, if two persons were quarreling and a policeman in civilian clothes comes and stops them, but one of the protagonists stabs the policeman, there would be no direct assault unless the offender knew that he is a policeman. In this respect it is enough that the offender should know that the offended party was exercising some form of authority. It is not necessary that the offender knows what is meant by person in authority or an agent of one because ignorantia legis non excusat.
Complex crime of direct assault with homicide or murder, or with serious physical injuries.
* If the crime of direct assault is committed with the use of force and it resulted in the infliction of slight physical injuries, the latter shall not be considered as a separate offense. It shall be absorbed by the greater crime of direct assault. (People vs. Acierto, 57 Phil. 614) Direct assault cannot be committed during rebellion.
May direct assault be committed upon a private individual? Yes. When a private person comes to the aid of a person in authority, and he is likewise assaulted. Under Republic Act No. 1978, a private person who comes to the aid of a person in authority is by fiction of law deemed or is considered an agent of a person in authority.
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* The victim in indirect assault should be a private person who comes in aid of an agent of a person in authority. The assault is upon a person who comes in aid of the agent of a person in authority. The victim cannot be the person in authority or his agent. * Take note that under Article 152, as amended, when any person comes in aid of a person in authority, said person at that moment is no longer a civilian he is constituted as an agent of the person in authority. If such person were the one attacked, the crime would be direct assault
Article 151 RESISTANCE/DISOBEDIENCE TO A PERSON IN AUTHORITY OR THE AGENT OF SUCH PERSON (par. 1)
ELEMENTS: a. That a person in authority or his agent is engaged in the performance of official duty or gives a lawful order to the offender. b. That the offender resists or seriously disobeys such person in authority or his agent. c. That the act of the offender is not included in the provisions of arts. 148, 149 and 150.
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legal provisions of the law, nor to judicial decisions defining or declaring the rights and obligations of the parties for the same give reliefs only in the form of civil actions. Rather, the disobedience or resistance is to the orders directly issued by the authorities in the exercise of their official duties.
Resistant and Disobedience to a Person in Authority or Agents of such Person (151) PIA or his agent must be engaged in the PIA or his agent must be in the actual performance of official duties or that he performance of his duties. is assaulted Direct assault is committed in 4 ways Committed by resisting or seriously by attacking, employing force, and disobeying a PIA or his agent. seriously resisting a PIA or his agent. Use of force against an agent of PIA Use of force against an agent of a PIA is not must be serious and deliberate. so serious; no manifest intention to defy the law and the officers enforcing it.
* In both resistance against an agent of a person in authority and direct assault by resisting an agent of a person in authority, there is force employed , but the use of force in resistance is not so serious, as there is no manifest intention to defy the law and the officers enforcing it. * The attack or employment of force which gives rise to the crime of direct assault must be serious and deliberate; otherwise, even a case of simple resistance to an arrest, which always requires the use of force of some kind, would constitute direct assault and the lesser offense of resistance or disobedience in Article 151 would entirely disappear. But when the one resisted is a person in authority , the use of any kind or degree of force will give rise to direct assault. If no force is employed by the offender in resisting or disobeying a person in authority , the crime committed is resistance or serious disobedience under the first paragraph of Article 151.
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CRIMES AGAINST PUBLIC DISORDERS Article 153 TUMULTS AND OTHER DISTURBANCES OF PUBLIC ORDER TYPES:
a. Causing any serious disturbance in a public place, office or establishment b. Interrupting or disturbing public performances, functions, gatherings or peaceful meetings, if the act is not included in Art 131 and 132 (Public Officers interrupting peaceful meetings or religious worship). c. Making any outcry tending to incite rebellion or sedition in any meeting, association or public place d. Displaying placards or emblems which provoke a disturbance of public order in such place e. Burying with pomp the body of a person who has been legally executed. If the act of disturbing or interrupting a meeting or religious ceremony is NOT committed by public officers, or if committed by public officers who are not participants therein, this article applies. Art 131 and 132 punishes the same acts if committed by public officers who areNOT participants in the meeting The outcry is merely a public disorder if it is an unconscious outburst which, although rebellious or seditious in nature, is not intentionally calculated to induce others to commit rebellion or sedition, otherwise, its inciting to rebellion or sedition.
This article should be distinguished from inciting to rebellion or sedition as discussed under Article 138 and 142. In the former, the meeting is legal and peaceful. It becomes unlawful only because of the outcry made, which tends to incite rebellion or sedition in the meeting. In the latter case, the meeting is unlawful from the beginning and the utterances made are deliberately articulated to incite others to rise publicly and rebel against the government. What makes it inciting to rebellion or sedition is the act of inciting the audience to commit rebellion or sedition.
TUMULTUOUS if caused by more than 3 persons who are armed or provided with means of violence (circumstance qualifying the disturbance/interruption) tumultuous in character
* The essence is creating public disorder. This crime is brought about by creating serious disturbances in public places, public buildings, and even in private places where public functions or performances are being held. For a crime to be under this article, it must not fall under Articles 131 (prohibition, interruption, and dissolution of peaceful meetings) and 132 (interruption of religious worship).
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* The disturbance of the pubic order is tumultuous and the penalty is increased if it is brought about by armed men. The term armed does not refer to firearms but includes even big stones capable of causing grave injury. It is also disturbance of the public order if a convict legally put to death is buried with pomp . He should not be made out as a martyr; it might incite others to hatred.
The crime of disturbance of public order may be committed in a public or private place. If committed in a private place, the law is violated only where the disturbance is made while a public function or performance is going on. Without a public gathering in a private place, the crime cannot be committed.
Article 154 UNLAWFUL USE OF MEANS OF PUBLICATION AND UNLAWFUL UTTERANCES TYPES:
a. 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. b. Encouraging disobedience to the law or to the constituted authorities or by praising, justifying or extolling any act punished by law, by the same means or by words, utterances or speeches c. Maliciously publishing or causing to be published any official resolution or document without proper authority, or before they have been published officially d. 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. * The purpose of the law is to punish the spreading of false information which tends to cause panic, confusion, distrust and divide people in their loyalty to the duly constituted authorities.
* Actual public disorder or actual damage to the credit of the State is not necessary. Republic Act No. 248 prohibits the reprinting, reproduction or republication of government publications and official documents without previous authority
The article also punishes any person who knowingly publishes official acts or documents which are not officially promulgated.
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Charivari mock serenade or discordant noises made with kettles, tin horns etc, designed to deride, insult or annoy
WHEN A PERSON DISCHARGES A FIREARM IN PUBLIC, the act may constitute any of the possible crimes under the Revised Penal Code: (1) (2) Alarms and scandals if the firearm when discharged was not directed to any particular person; Illegal discharge of firearm under Article 254 if the firearm is directed or pointed to a particular person when discharged but intent to kill is absent; Attempted homicide, murder, or parricide if the firearm when discharged is directed against a person and intent to kill is present.
(3)
In this connection, understand that it is not necessary that the offended party be wounded or hit. Mere discharge of firearm towards another with intent to kill already amounts to attempted homicide or attempted murder or attempted parricide. It can not be frustrated because the offended party is not mortally wounded. In Araneta v. Court of Appeals, it was held that if a person is shot at and is wounded, the crime is automatically attempted homicide. Intent to kill is inherent in the use of the deadly weapon. (4) (5) Grave Threats If the weapon is not discharged but merely pointed to another Other Light Threats If drawn in a quarrel but not in self defense
What governs is the result, not the intent Who are Liable Private persons, outsider Private persons, outsider
CRIME Nature of Crime Tumults and other Crime against Public Order Disturbances (153) Alarms and Scandals (155) Crime against Public Order
* Even if the prisoner is in the hospital or asylum or any place for detention of prisoner, as long as he is classified as a prisoner, that is, a formal complaint or information has been filed in court, and he has been officially categorized as a prisoner, this article applies, as such place is considered extension of the penal institution. A policeman assigned to the city jail as guard who while off-duty released a prisoner is liable here
* Even if the prisoner returned to the jail after several hours, the one who removed him from jail is liable. It may be committed through negligence Circumstances qualifying the offense is committed by means of violence, intimidation or bribery.
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* correlate the crime of delivering person from jail with infidelity in the custody of prisoners punished under Articles 223, 224 and 225 of the Revised Penal Code . In both acts, the offender may be a public officer or a private citizen. Do not think that infidelity in the custody of prisoners can only be committed by a public officer and delivering persons from jail can only be committed by private person. Both crimes may be committed by public officers as well as private persons.
> In both crimes, the person involved may be a convict or a mere detention prisoner. * The only point of distinction between the two crimes lies on whether the offender is the custodian of the prisoner or not at the time the prisoner was made to escape. If the offender is the custodian at that time, the crime is infidelity in the custody of prisoners. But if the offender is not the custodian of the prisoner at that time , even though he is a public officer, the crime he committed is delivering prisoners from jail.
LIABILITY OF THE PRISONER OR DETAINEE WHO ESCAPED When these crimes are committed, whether infidelity in the custody of prisoners or delivering prisoners from jail, the prisoner so escaping may also have criminal liability and this is so if the prisoner is a convict serving sentence by final judgment. The crime of evasion of service of sentence is committed by the prisoner who escapes if such prisoner is a convict serving sentence by final judgment. 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 three persons are involved a stranger, the custodian and the prisoner three crimes are committed: (1) Infidelity in the custody of prisoners; (2) Delivery of the prisoner from jail; and (3) Evasion of service of sentence.
It is possible that several crimes may be committed in one set of facts. For instance,
assuming that Pedro, the jail warden, agreed with Juan to allow Maria to escape by not locking the gate of the city jail. Provided that Juan comes across with P5,000.00 pesos as bribe money. The arrangement was not known to Maria but when she noticed the unlocked gate of the city jail she took advantage of the situation and escaped. From the facts given, there is no question that Pedro, as the jail warden, is liable for the crime of infidelity in the custody of the prisoner. He will also be able for the crime of bribery. Juan will be liable for the crime of delivering a prisoner from jail and for corruption of public official under Art. 212. If Maria is a sentenced prisoner, she will be liable for evasion of service of sentence under Article 157. if she is a detention prisoner, she commits no crime.
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destierro.
* A detention prisoner even if he escapes from confinement has no criminal liability . Thus, escaping from his prison cell when his case is still on appeal does not make said prisoner liable for Evasion of Service of Sentence.
In leaving or escaping from jail or prison, that the prisoner immediately returned is immaterial . It is enough that he left the penal establishment by escaping therefrom. His voluntary return may only be mitigating, being analogous to voluntary surrender. But the same will not absolve his criminal liability.
A continuing offense. Offenders not minor delinquents nor detention prisoners If escaped within the 15 day appeal period no evasion No applicable to deportation as the sentence
The crime of evasion of service of sentence may be committed even if the sentence is destierro, and this is committed if the convict sentenced to destierro will enter the prohibited places or come within the prohibited radius of 25 kilometers to such places as stated in the judgment.
* If the sentence violated is destierro, the penalty upon the convict is to be served by way of destierro also, not imprisonment. This is so because the penalty for the evasion can not be more severe than the penalty evaded.
Circumstances qualifying the offense (done thru): a. unlawful entry (by scaling) b. breaking doors, windows, gates, walls, roofs or floors c. using picklocks, false keys, disguise, deceit, violence or intimidation d. connivance with other convicts or employees of the penal institution
* A, a foreigner, was found guilty of violation of the law, and was ordered by the court to be deported. Later on, he returned to the Philippines in violation of the sentence. Held: He is not guilty of Evasion of Service of Sentence as the law is not applicable to offenses executed by deportation. (U.S. vs. Loo Hoe, 36 Phil. 867).
Article 158 EVASION OF SERVICE OF SENTENCE ON THE OCCASION OF DISORDERS, CONFLAGRATIONS, EARTHQUAKES OR OTHER CALAMITIES
ELEMENTS : a. That the offender is a convict by final judgement who is confined in a penal institution. b. That there is disorder, resulting from- 1. conflagration, 2. earthquake, or 3. explosion, or 4. similar catastrophe, or 5. mutiny , not participated. c. That the offender 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. d. That the offender 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.
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> Those who did not leave the penal establishment are not entitled to the 1/5 credit. Only those who left and returned within the 48-hour period.
For such event to be considered as a calamity, the President must declared it to be so. He must issue a proclamation to the effect that the calamity is over. Even if the events herein mentioned may be considered as calamity, there is a need for the Chief Executive to make such announcement. Absent such declaration. Even if the prisoner will return to the penal institution where he was confined, the same is of no moment as in the meantime he has committed a violation of the law, not under the present article but for pure evasion of service of sentence under Article 157. Mutiny organized unlawful resistance to a superior officer, a sedition, a revolt
The mutiny referred to in the second form of evasion of service of sentence does not include riot. The mutiny referred to here involves subordinate personnel rising against the supervisor within the penal establishment. One who escapes during a riot will be subject to Article 157, that is, simply leaving or escaping the penal establishment.
* Violation attributed to the accused is no longer referred to the court for judicial inquiry or resolution. The law has provided sufficient guidelines for the jail warden to follow. * This disquisition will not apply if the offender who escapes taking advantage of the calamities enumerated herein is apprehended by the authorities after 48 hours from the declaration that the calamity is over. It is only extended to one who returns but made inside the 48 hours delimited by the proclamation. At this stage, the violation is not substantive but administrative in nature.
* If the condition of the pardon is violated, the remedy against the accused may be in the form of prosecution under Article 159. it may also be an administrative action by referring the violation to the court of origin and praying for the issuance of a warrant of arrest justified under Section 64 of the Revised Administrative Code.
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Offender must have been found guilty of the subsequent offense before he can be prosecuted under this Article. But if under Revised Admin Code, no conviction necessary. President has power to arrest, reincarnate offender without trial
* Article 159 is a distinct felony. It is a substantive crime. For one to suffer the consequence of
its violation, the prisoner must be formally charged in court. He will be entitled to a full blown hearing, in full enjoyment of his right to due process. Only after a final judgment has been rendered against him may he suffer the penalty prescribed under Article 159 (Torres vs. Gonzales, et al., 152 SCRA 292) VIOLATION OF PARDON Infringement of conditions/terms of President ORDINARY EVASION To evade the penalty given by the courts disturbs the public order
Two penalties provided: a. prision correccional in its minimum period if the penalty remitted does not exceed 6 years b. the unexpired portion of his original sentence if the penalty remitted is higher than 6 years
COMMISSION OF ANOTHER CRIME Article 160 COMMISSION OF ANOTHER CRIME DURING SERVICE OF PENALTY IMPOSED FOR ANOTHER PREVIOUS OFFENSE-PENALTY: (quasi-recidivism)
ELEMENTS a. That the offender was already convicted by final judgement of one offense. b. That he committed a new felony before beginning to serve such sentence or while serving the same. Quasi-recidivism : a person after having been convicted by final judgement shall commit a new felony before beginning to serve such sentence, or while serving the same. Second crimes must belong to the RPC, not special laws. First crime may be either from the RPC or special laws Reiteracion: offender shall have served out his sentence for the prior offense A quasi-recidivist may be pardoned at age 70. Except: Unworthy or Habitual Delinquent If new felony is evasion of sentence offender is not a quasi-recidivist Penalty: maximum period of the penalty for the new felony should be imposed
* Quasi-recidivism is a special aggravating circumstance which directs the court to impose the maximum period of the penalty prescribed by law for the new felony. The court will do away or will ignore mitigating and aggravating circumstances in considering the penalty to be imposed. There will be no occasion for the court to consider imposing the minimum, medium or maximum period of the penalty. The mandate is absolute and is justified by the finding that the accused is suffering from some degree of moral perversity if not total incorrigibility. (People vs. Alicia, et al., 95 SCRA 227)
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TYPES:
a. Forging the great seal of the Government b. Forging the signature of the President c. Forging the stamp of the President
When the signature of the President is forged, it is not falsification but forging of signature under this article
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Kinds of coins the counterfeiting of which is punished 1. 2. 3. Silver coins of the Philippines or coins of the Central Bank of the Philippines; Coins of the minor coinage of the Philippines or of the Central Bank of the Philippines; Coin of the currency of a foreign country.
Counterfeiting imitation of legal or genuine coin (may contain more silver, different design) such as to deceive an ordinary person in believing it to be genuine Utter to pass counterfeited coins, deliver or give away Import to bring to port the same Both Philippine and foreign state coins Applies also to coins withdrawn from circulation Essence of article: making of coins without authority
Acts punished 1. Mutilating coins of the legal currency, with the further requirements that there be intent to damage or to defraud another; Importing or uttering such mutilated coins, with the further requirement that there must be connivances with the mutilator or importer in case of uttering.
2.
The first acts of falsification or falsity are (1) Counterfeiting refers to money or currency;
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(3)
In so far as coins in circulation are concerned, there are two crimes that may be committed: (1) Counterfeiting coins -- This is the crime of remaking or manufacturing without any authority to do so.
* In the crime of counterfeiting, the law is not concerned with the fraud upon the public such that even though the coin is no longer legal tender, the act of imitating or manufacturing the coin of the government is penalized. In punishing the crime of counterfeiting, the law wants to prevent people from trying their ingenuity in their imitation of the manufacture of money. (2) Mutilation of coins -- This refers to the deliberate act of diminishing the proper metal contents of the coin either by scraping, scratching or filling the edges of the coin and the offender gathers the metal dust that has been scraped from the coin.
Requisites of mutilation under the Revised Penal Code (1) (2) (3) Coin mutilated is of legal tender; Offender gains from the precious metal dust abstracted from the coin; and It has to be a coin. There is no expertise involved here. In mutilation of coins under the Revised Penal Code, the offender does nothing but to scrape, pile or cut the coin and collect the dust and, thus, diminishing the intrinsic value of the coin.
* Mutilation of coins is a crime only if the coin mutilated is legal tender . If it is not legal tender anymore, no one will accept it, so nobody will be defrauded. But if the coin is of legal tender, and the offender minimizes or decreases the precious metal dust content of the coin, the crime of mutilation is committed. * The offender must deliberately reduce the precious metal in the coin. Deliberate intent arises only when the offender collects the precious metal dust from the mutilated coin. If the offender does not collect such dust, intent to mutilate is absent, but Presidential Decree No. 247 will apply.
Article 164
MULTILATION OF COINS IMPORTATION AND UTTERANCE:
This has been repealed by PD 247. (Defacement, Mutilation, Tearing, Burning or Destroying Central Bank Notes and Coins)
Under this PD, the acts punishable are: a. willful defacement b. mutilation c. tearing d. burning e. destruction of Central Bank notes and coins Mutilation to take off part of the metal either by filling it or substituting it for another metal of inferior quality, to diminish by inferior means (to diminish metal contents). Foreign notes and coins not included. Must be legal tender. Must be intention to mutilate.
Mutilation under the Revised Penal Code is true only to coins. It cannot be a crime under the Revised Penal Code to mutilate paper bills because the idea of mutilation under the code is collecting the precious metal dust. However, under Presidential Decree No. 247, mutilation is not limited to coins. Questions & Answers
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* If the falsification is done on a document that is classified as a government security, then the crime is punished under Article 166. On the other hand, if it is not a government security, then the offender may either have violated Article 171 or 172.
Article 167 COUNTERFEITING, IMPORTING, AND UTTERING INSTRUMENTS NOT PAYABLE TO BEARER
ELEMENTS : a. That there be an instrument payable to order or other document of credit not payable to bearer. b. That the offender either forged, imported or uttered such instruments. c. That in case of uttering, he connived with the forger or importer.
Article 168 ILLEGAL POSSESSION AND USE OF FALSE TREASURY OR BANK NOTES AND OTHER INSTRUMENT OF CREDIT
ELEMENTS: a. That any treasury or bank note or certificate or other obligation and security payable to bearer, or any instrument payable to order or other document of credit not payable to bearer is forged or falsified by another person. b. That the offender knows that any of those instruments is forged or falsified. c. That he performs any of these acts 1. using any of such forged or falsified instrument, or 2. possessing with intent to use any of such forged or falsified instrument.
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* Forgery under the Revised Penal Code applies to papers, which are in the form of obligations and securities issued by the Philippine government as its own obligations, which is given the same status as legal tender. Generally, the word counterfeiting is not used when it comes to notes; what is used is forgery. Counterfeiting refers to money, whether coins or bills. * Notice that mere change on a document does not amount to this crime. The essence of forgery is giving a document the appearance of a true and genuine document . Not any alteration of a letter, number, figure or design would amount to forgery. At most, it would only be frustrated forgery. * When what is being counterfeited is obligation or securities , which under the Revised Penal Code is given a status of money or legal tender, the crime committed is forgery. Questions & Answers 1. Instead of the peso sign (P), somebody replaced it with a dollar sign ($). Was the crime of forgery committed? No. Forgery was not committed. The forged instrument and currency note must be given the appearance of a true and genuine document. The crime committed is a violation of Presidential Decree No. 247. Where the currency note, obligation or security has been changed to make it appear as one which it purports to be as genuine, the crime is forgery. In checks or commercial documents, this crime is committed when the figures or words are changed which materially alters the document. 2. An old man, in his desire to earn something, scraped a digit in a losing sweepstakes ticket, cut out a digit from another ticket and pasted it there to match the series of digits corresponding to the winning sweepstakes ticket. He presented this ticket to the Philippine Charity Sweepstakes Office. But the alteration is so crude that even a child can notice that the supposed digit is merely superimposed on the digit that was scraped. Was the old man guilty of forgery? NO Because of the impossibility of deceiving whoever would be the person to whom that ticket is presented, the Supreme Court ruled that what was committed was an impossible crime. Note, however, that the decision has been criticized. In a case like this, the Supreme Court of Spain ruled that the crime is frustrated. Where the alteration is such that nobody would be deceived, one could easily see that it is a forgery, the crime is frustrated because he has done all the acts of execution which would bring about the felonious consequence but nevertheless did not result in a consummation for reasons independent of his will. 3. A person has a twenty-peso bill. He applied toothache drops on one side of the bill. He has a mimeograph paper similar in texture to that of the currency note and placed it on top of the twentypeso bill and put some weight on top of the paper. After sometime, he removed it and the printing on the twenty-peso bill was reproduced on the mimeo paper. He took the reverse side of the P20 bill, applied toothache drops and reversed the mimeo paper and pressed it to the paper. After sometime, he removed it and it was reproduced. He cut it out, scraped it a little and went to a sari-sari store trying to buy a cigarette with that bill. What he overlooked was that, when he placed the bill, the printing was inverted. He was apprehended and was prosecuted and convicted of forgery. Was the crime of forgery committed? The Supreme Court ruled that it was only frustrated forgery because although the offender has performed all the acts of execution, it is not possible because by simply looking at the forged document, it could be seen that it is not genuine. It can only be a consummated forgery if the document which purports to be genuine is given the appearance of a true and genuine document. Otherwise, it is at most frustrated.
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Elements and Notes in Criminal Law Book II by RENE CALLANTA Five classes of falsification:
(1) (2) (3) (4) (5) Falsification of legislative documents; Falsification of a document by a public officer, employee or notary public; Falsification of a public or official, or commercial documents by a private individual; Falsification of a private document by any person; Falsification of wireless, telegraph and telephone messages.
* The crime of falsification must involve a writing that is a document in the legal sense. The writing must be complete in itself and capable of extinguishing an obligation or creating rights or capable of becoming evidence of the facts stated therein. Until and unless the writing has attained this quality, it will not be considered as document in the legal sense and, therefore, the crime of falsification cannot be committed in respect thereto. Distinction between falsification and forgery: Falsification is the commission of any of the eight acts mentioned in Article 171 on legislative (only the act of making alteration), public or official, commercial, or private documents, or wireless, or telegraph messages. The term forgery as used in Article 169 refers to the falsification and counterfeiting of treasury or bank notes or any instruments payable to bearer or to order. * Note that forging and falsification are crimes under Forgeries.
Accused must not be a public official entrusted with the custody or possession of such document otherwise Art 171 applies .
* The falsification must be committed on a genuine, true and authentic legislative document. If committed on a simulated, spurious or fabricated legislative document, the crime is not punished under this article but under Article 171 or 172.
Article 171 FALSIFICATION OF DOCUMENTS BY PUBLIC OFFICER, EMPLOYEE, OR NOTARY OR ECCLESTASTICAL MINISTER
ELEMENTS: a. That the offender is a public officer, employee, or notary public. b. That he takes advantage of his official position. c. That he falsifies a document by committing any of the following acts: 1. Counterfeiting or imitating any handwriting, signature or rubric.
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2. Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate. 3. Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them. Requisites: i. That the offender caused it to appear in a document that a person/s participated in an act or a proceeding; and ii. That such person/s did not in fact so participate in the act or proceeding 4. Making untruthful statements in a narration of facts; Requisites: i. That the offender makes in a document statements in a narration of facts ii. That he has a legal obligation to disclose the truth of the facts narrated by him; (required by law to be done) and iii. That the facts narrated by the offender are absolutely false; and iv. That the perversion or truth in the narration of facts was made with the wrongful intent of injuring a third person There must be a narration of facts, not a conclusion of law. Must be on a material matter
* For one to be held criminally liable for falsification under paragraph 4, the untruthful statement must be such as to effect the integrity of the document or to change the effects which it would otherwise produce. Legal obligation means that there is a law requiring the disclosure of the truth of the facts narrated. Ex. Residence certificates The person making the narration of facts must be aware of the falsity of the facts narrated by him. This kind of falsification may be committed by omission
5. Altering true dates. date must be essential * For falsification to take place under this paragraph, the date of the document must be material to the right created or to the obligation that is extinguished. 6. Making any alteration or intercalation in a genuine document which changes its meaning. Requisites: i. That there be an alteration (change) or intercalation (insertion) on a document ii. That it was made on a genuine document iii. That the alteration/intercalation has changed the meaning of the document iv. That the change made the document speak something false.
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* Alteration or changes to make the document speak the truth do not constitute falsification. (US vs. Mateo, 25 Phil. 324) Persons liable public officer, employee or notary public or ecclesiastical minister > Either he has duty to intervene in the preparation of the document or it may be a situation wherein the public officer has official custody of the document. So even if the offender is a public officer, if her causes the falsification of a document which is not in his official custody or if the falsification committed by him is not related whatsoever to the performance of his duties, he will still be liable for falsification but definitely not under this Article but under Article 172. (falsification of documents by a private person)
Not necessary that what is falsified is a genuine or real document, enough that it gives an appearance of a genuine article
As long as any of the acts of falsification is committed, whether the document is genuine or not, the crime of falsification may be committed. Even totally false documents may be falsified.
COUNTERFEITING imitating any handwriting, signature or rubric FEIGNING simulating a signature, handwriting, or rubric out of one of which does not in fact exist
* It does not require that the writing be genuine. Even if the writing was through and through false, if it appears to be genuine, the crime of falsification is nevertheless committed. THERE ARE FOUR KINDS OF DOCUMENTS: (1) Public document in the execution of which, a person in authority or notary public has taken part; (2) Official document in the execution of which a public official takes part; (3) Commercial document or any document recognized by the Code of Commerce or any commercial law; and (4) Private document in the execution of which only private individuals take part.
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Under Republic Act 7975, when a public officer who holds a position classified as Grade 27 or
higher, commits a crime in relation to the performance of his official functions, the case against him will fall under the jurisdiction of the Sandiganbayan. If a private person is included in the accusation because of the existence of conspiracy in the commission of the crime, the Sandiganbayan shall maintain jurisdiction over the person of the co-accused, notwithstanding the fact that said co-accused is a private individual. If the public officer is found guilty, the same liability and penalty shall be imposed on the private individual. (U.S. vs. Ponce, 20 Phil. 379)
Article 172 FALSIFICATION OF PUBLIC, OFFICIAL, OR COMMERCIAL DOCUMENT BY A PRIVATE INDIVIDUAL (par 1)
ELEMENTS a. That the offender is a private individual or a public officer or employee who did not take advantage of his official position. b. That he committed any of the acts of falsification enumerated in ART. 171. 1. Counterfeiting or imitating any handwriting, signature or rubric. 2. Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participated. 3. Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them. 4. Making untruthful statements in a narration of facts; 5. Altering true dates. 6. Making any alteration or intercalation in a genuine document which changes its meaning. c. That the falsification was committed in any public or official or commercial document. Under this paragraph, damage is not essential, it is presumed
* If the falsification of public, official or commercial documents, whether they be public official or by private individuals, it is not necessary that there be present the idea of gain or the intent to injure a third person. What is punished under the law is the violation of public faith and the perversion of the truth as solemnly proclaimed by the nature of the document. (Sarep vs. Sandiganbayan) Defense: lack of malice or criminal intent The following writings are public: a. the written acts or records of acts of the sovereign authority of official bodies and tribunals, and of the public officers, legislative, judicial and executive, whether of the Philippines or of a foreign country. b. Public records kept in the Philippines. Examples of commercial documents warehouse receipts, airway bills, bank checks, cash files, deposit slips and bank statements, journals, books, ledgers, drafts, letters of credit and other negotiable instruments
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imprudence.
Cash disbursement vouchers or receipts evidencing payments are not commercial documents A mere blank form of an official document is not in itself a document The possessor of falsified document is presumed to be the author of the falsification
* Falsification of a private document is consummated when such document is actually falsified with the intent to prejudice a third person whether such falsified document is or is not thereafter put to illegal use for which it is intended. (Lopez vs. Paras, 36 Phil. 146) * What is emphasized at this point is the element of falsification of private document. There must be intent to cause damage or damage is actually caused. The intention is therefore must be malicious or there is deliberate intent to commit a wrong. Reckless imprudence is
* There is no falsification through reckless imprudence if the document is a private document. Falsification by omission
* Mere falsification of a private document is not enough to commit crime under paragraph 2 of Article 172. Two acts must be done by the offender. 1) He must have performed in the private document the falsification contemplated under Article 171. 2) He must have performed an independent act which operates to cause damage or prejudice to a third person. The third person mentioned herein may include the government. Damage is not limited to money or pecuniary prejudice. Damage to ones honor, reputation or good name is included. A document falsified as a necessary means to commit another crime must be public, official or commercial There is no complex crime of estafa through falsification of a private document because the immediate effect of the latter is the same as that of estafa
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* A private document which is falsified to obtain money from offended party is a falsification of private document only. A private document may acquire the character of a public document when it becomes part of an official record and is certified by a public officer duly authorized by law The crime is falsification of public documents even if falsification took place before the private document becomes part of the public records
Examples:
An employee of a private company who punches the bundy clock on behalf on a co-employee is guilty of falsification of a private document. One who will take the civil service examination for another and makes it appear that he is the examinee is guilty of falsification of a public document.
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1. It is a crime when knowingly introduced in a judicial proceeding even if there is not intent to cause damage to another. Knowingly introducing a falsified document in a judicial proceeding, the use alone is not a crime. The mere introduction of the forged document is the crime itself. But when the falsified document is knowingly introduced in an administrative proceeding, the use alone is not a crime. There must be intent to cause damage or damage is actually inflicted. 2. Falsification of document is a separate and distinct offense from that of the use of falsified documents. So if the falsification of document was done or performed because it was necessary to the use of the same and in the commission of the crime, then we may have a complex crime defined and punished under Article 48 of the Revised Penal Code. 3. Good faith is a defense in falsification of public document.
Article 173 FALSIFICATION OF WIRELESS, CABLE, TELEGRAPH, MESSAGES, AND USE OF SAID FALSIFIED MESSAGES
AND
TELEPHONE
Acts punishable: 1. Uttering fictitious, wireless, telegraph or telephone message Requisites: a. That the 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. b. That the accused commits any of the following acts: - uttering fictitious wireless, cable, telegraph, or telephone message, or - falsifying wireless, cable, telegraph, or telephone message 2. Falsifying wireless, telegraph or telephone message Requisites: a. That the 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. b. That the accused commits any of the following acts: - uttering fictitious wireless, cable, telegraph, or telephone message, or - falsifying wireless, cable, telegraph, or telephone message 3. Using such falsified message Requisites: a. That the accused knew that wireless, cable, telegraph, or telephone message was falsified by any of the person specified in the first paragraph of art. 173. b. That the accused used such falsified dispatch.
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Article 174 FALSIFICATION OF MEDICAL CERTIFICATES, CERTIFCATES OF MERIT OR SERVICE AND THE LIKE:
Persons liable: a. Physician or surgeon who, in connection with the practice of his profession, issued a false certificate (note: such certificate must refer to the illness or injury of a person) b. Public officer who issued a false certificate of merit of service, good conduct or similar circumstances c. Private individual who falsified a certificate under (1) and (2)
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Elements 1. 2.
In usurpation of official functions: It is essential that the offender should have performed an act pertaining to a person in authority Offender performs any act; Pertaining to any person in authority or public officer of the Philippine government or any foreign government, or any agency thereof; Under pretense of official position; Without being lawfully entitled to do so.
Elements 1. 2.
3. 4.
A public officer may also be an offender The act performed without being lawfully entitled to do so must pertain: a. to the govt b. to any person in authority c. to any public office
* Foreign government adverted to in this article refers to public officers duly authorized to perform governmental duties in the Philippines. The law cannot refer to other foreign governments as its application may bring us to legal problems which may infringe on constitutional boundaries. * If the offender commits the acts of usurpation as contemplated herein, and he does it because he is a rebel and pursuant to the crime of rebellion or insurrection or sedition, he will not be liable under this article because what is attributed against him as a crime of usurpation is in fact one of the elements of committing rebellion. * The elements of false pretense is necessary to commit the crime of usurpation of official function.
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* The wearing of insignia, badge or emblem of rank of the members of the armed forced of the Philippines or constabulary (now PNP) is punished by Republic Act No. 493. * When the uniform or insignia is used to emphasize the pageantry of a play or drama or in moving picture films, the crime is not committed.
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It cannot be committed through reckless imprudence because false testimony requires criminal intent or intent to violate the law is an essential element of the crime.
2. If the false testimony is due to honest mistake or error or there was good faith in making the false testimony, no crime is committed.
* The probative value of the testimonial evidence is subject to the rules of evidence. It may not be considered at all by the judge. But whether the testimony is credible or not or whether it is appreciated or not in the context that the false witness wanted it to be, the crime of false testimony is still committed, since it is punished not because of the effect it produces, but because of its tendency to favor the accused. (People vs. Reyes) Penalty is dependent upon sentence imposed on the defendant
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d. That the false testimony must be given by the defendant knowing the same to be false. e. That the testimony must be malicious and given with an intent to affect the issues presented in the said case Not applicable when testimony given in a special proceeding (in this case, the crime is perjury) Basis of penalty: amount involved in the civil case
Distinctions between perjury and false testimony: PERJURY FALSE TESTIMONY 1. Non-judicial proceedings. 1. Given in a judicial proceeding. 2. Statement or testimony is required by 2. Testimony need not be required by law. law. 3. Amount involved is not material. 3. Amount involved in civil cases is material. 4. immaterial whether statement or 4. It is always material in criminal cases. testimony is favorable or not to the accused.
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* The test of materiality is whether a false statement can influence the court (People vs. Bnazil). A competent person authorized to administer an oath means a person who has a right to inquire into the questions presented to him upon matters under his jurisdiction
* There is no perjury if the accused signed and swore the statement before a person not authorized to administer oath (People vs. Bella David). There is no perjury through negligence or imprudence since the assertion of falsehood must be willful and deliberate
* Because of the nature of perjury, which is the willful and corrupt assertion of a falsehood, there is no perjury committed through reckless imprudence or simple negligence under Article 365. Since admittedly perjury can only be committed by means of dolo, then good faith or lack
of malice is a good defense when one is indicted for the crime of perjury.
Even if there is no law requiring the statement to be made under oath, as long as it is made for a legal purpose, it is sufficient
* If there is no requirement of law to place the statement or testimony under oath, there is no Perjury considering the phrases oath in cases in which the law so requires in Article 183. * The affidavit or sworn statement must be required by law like affidavit of adverse claim to protect ones interest on real property; or an affidavit of good moral character to take the bar examination. So if the affidavit was made but the same is not required by law, even if the allegations are false, the crime of perjury is not committed. (Diaz vs. People, 191 SCRA 86) Perjury is an offense which covers false oaths other than those taken in the course of judicial proceedings False testimony before the justice of the peace during the P.I. may give rise to the crime of perjury because false testimony in judicial proceedings contemplates an actual trial where a judgment of conviction or acquittal is rendered A person who knowingly and willfully procures another to swear falsely commits subornation of perjury and the witness suborned does testify under circumstances rendering him guilty of perjury. The false testimony is not in a judicial proceeding
When one testifies falsely before the court, the crime committed is false testimony. If one testifies falsely in a non-judicial proceeding, the crime committed is perjury. In false testimony, it is not required that the offender asserts a falsehood on a material matter. It is enough that he testifies falsely with deliberate intent. In perjury, the witness must testify or assert a fact on a material matter with a full knowledge that the information given is essentially contrary to the truth. Material matter means the main fact which is the subject or object of the inquiry.
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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 184 OFFERING FALSE TESTIMONY IN EVIDENCE
ELEMENTS: a That the offender offered in evidence a false witness or false testimony. b c That he knew the witness or the testimony was false. That the offer was made in a judicial or official proceeding.
The false witness need not be convicted of false testimony. The mere offer is sufficient.
* The offender in this article knows that the witness to be presented is a false witness or that the witness will lie while testifying. The proceedings is either judicial or official. There is a formal offer of testimonial evidence in the proceedings. The witness is able to testify and the offender, knowing the testimony is given by the witness to be false, nevertheless offers the same in evidence. In this case, the person offering the false testimony must have nothing to do in the making of the false testimony. He knows that the witness is false and yet he asks him to testify and thereafter offers the testimony in evidence. So if the offeror, aside from being such, is also the person responsible in inducing or convincing the false witness to lie, Article 184 will not apply. The applicable article will be Article 180, 181, 182, or 183 as the case may be. The offenders in this case will be charged with perjury; the inducer as principal by inducement and the induced party as the principal by direct participation. * It is for this reason that subornation of perjury is no longer treated as a specific felony with a separate article of its own. Nevertheless, it is a crime defined and punished under the Revised Penal Code. The crime committed by one who induces another to testify falsely and the person who agrees and in conspiracy with the inducer, testifies falsely, is perjury. (People vs. Padol, 66 Phil. 365)
ELEMENTS OF ATTEMPTING TO CAUSE BIDDERS TO STAY AWAY: a That there be a public auction. b c d That the accused attempted to cause the bidders to stay away from that public auction That it was done by threats, gifts, promises, or any other artifice. That the accused had the intent to cause the reduction of the price of the thing auctioned.
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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 186 MONOPOLIES AND COMBINATIONS IN RESTRAINT OF TRADE:
Acts punished: a. 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; In restraint of trade or commerce or to prevent by artificial means free competition in the market.
2.
b. By entering into a contract or agreement or taking part in any conspiracy or combination in the form of a trust or otherwise, in restraint of trade or commerce or prevent by artificial means free competition in the market (It is enough that initial steps are taken. It is not necessary that there be actual restraint of trade) c. Monopoly to restrain free competition in the market Elements 1. By monopolizing any merchandise or object of trade or commerce, or by 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
2.
3.
d. 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 the merchandise. Elements 1. Manufacturer, producer, processor or importer of any merchandise or object of commerce; Combines, conspires or agrees with any person; Purpose is to make transactions prejudicial to lawful commerce or to increase the market price of any merchandise or object of commerce manufactured, produced, processed, assembled or imported into the Philippines.
2. 3.
Person/s liable: a. manufacturer b. producer c. processor d. importer Crime is committed by: a. combining b. conspiring c. agreeing with another person The purpose is: a. to make transactions prejudicial to lawful commerce b. to increase the market price of any merchandise or object of commerce manufactured, produced, processed, assembled or imported into the Phil
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Article 187 IMPORTATION AND DISPOSITION OF FALSELY MARKED ARTICLES OR MERCHANDISE MADE OF GOLD, SILVER, OR OTHER PRECIOUS METALS OR THEIR ALLOYS
ELEMENTS: a That the offender imports, sells or disposes of any of those articles or merchandise. b That the stamps, brands, or marks or those articles or merchandise fails to indicate the actual fineness or quality of said metals or alloys. That the offender knows that the said stamp, brand, or mark fails to indicate the actual fineness or quality of the metals or alloys.
* To be criminally liable, it is important to establish that the offender knows the fact that the imported merchandise fails to indicate the actual fineness or quality of the precious metal. If the importer has no expertise on the matter such that he has no way of knowing how the fraud was committed, the existence of such fact may be seriously considered as a defense. * What the law punishes herein is the selling of misbranded goods made of gold, silver and other precious metals. Therefore, it must be shown that the seller knows that the merchandise is misbranded. Hence, dishonesty is an essential element of the crime.
If a particular person is defrauded by the offender; as in the case of locally manufactured goods, which the offender, by altering the label, are made to appear as imported articles and sold to a particular person, the crime committed is undoubtedly estafa as far as the particular person is concerned. But if the falsely mislabeled goods are displayed in a store and offered for sale to the public in general, the crime committed is punished under Article 188. So, if the deception is isolated and is confined to a particular person or group of persons, estafa is committed. If the fraud is employed against the public, Article 188 is violated.
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* Take note that after making the substitution the goods are displayed in the store or market for sale, Article 188 is already committed even if no customer comes to buy any of the goods on display. The mere offer for sale to the public consummates the crime. * The pendency of the administrative aspect of the case is not a prejudicial question in the resolution of the criminal case.
Article 189 UNFAIR COMPETITION, FRAUDULENT REGISTRATION OF TRADENAME, TRADEMARK SERVICE MARK, FRAUDULENT DESIGNATION OF ORIGIN, AND FALSE DESCRIPTION
Acts punished: a Unfair competition by selling his goods, giving them the general appearance of the goods of another manufacturer or dealer b Fraudulent designation of origin; false description by (a) affixing to his goods or using in connection with his services a false designation of origin; or any false description or representation, and (b) selling such goods or services Fraudulent registration by procuring fraudulently from the patent office the registration of t/m, t/m or service mark.
ELEMENTS: a That the offender gives his goods the general appearance of the goods of another manufacturer or dealer b That the general appearance is shown in the (a) goods themselves, or in the (b) wrapping of their packages, or in the (c) device or words therein, or in (d) any other feature of their appearance That the offender offers to sell or sells those goods or gives other persons a chance or opportunity to do the same with a like purpose. That there is actual intent to deceive the public or defraud a competitor.
* Under Republic Act No. 166, Section 29, paragraph 2, unfair competition is defined as follows: It consists in employing deception or any other means contrary to good faith by which any person shall pass off the goods manufactured by him or in which he deals, or his business, or services for those of the one having established goodwill, or committing any acts calculated to produce such result. * The true test of unfair competition is whether certain goods have been clothed with an appearance which is likely to deceive the ordinary purchaser exercising ordinary care. (U.S. vs. Manuel, 7 Phil. 221)
* For unfair competition to take place, it must be the manufacturer of the goods who will cloth
or label his goods with the trade name or trademark of another manufacturer, who has established a good name or good will in the mind of the public because of the quality of the merchandise manufactured by him. The imitator is also a manufacturer of the same kind of product but of inferior quality. By labeling his product with the trademark or trade name of said manufacturer, he profits from the goodwill of another.
* If the labeling or clothing of the goods is not done by another manufacturer, the crime
committed is not unfair competition but substitution of trademark or trade name under Article 188. * When the honorable Supreme Court declared that unfair competition is broader and more inclusive than infringement of trade name or trademark. In infringement of trade name or
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identified in the mind of the public the goods he manufactures to distinguish it from the goods of the other manufacturers. In infringement of trade name or trademark, the offender uses the trade name or trademark of another in selling his goods, while in unfair competition, the offender gives his goods the general appearance of the goods of another manufacturer and sells the same to the public. (E. Spinner & Co. vs. New Hesslein Corp., 54 Phil. 224)
TITLE FIVE CRIMES RELATED TO OPIUM AND OTHER PROHIBITED DRUGS (190-194)
DRUG SYNDICATE any organized group of two(2) or more persons forming or joining together with the intention of committing any offense prescribed under the act. PLANTING OF EVIDENCE 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 dangerous drug and/or controlled precursor and essential chemical 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 Act. P D E A Philippine Drug Enforcement Unit Importation of prohibited/regulated drugs. PENALTY : Life to death & fine of 500,000 to 10 million regardless of the Quantity purity involved MAXIMUM PENALTY : 1) Use of diplomatic Passport 2) Financier and
- NOT BAILABLE PENALTY : Life to death & fine of 500,000 to 10 million regardless of the Quantity and purity involved ( includes BROKER ) Qualifying Circumstances 1) if the victim of the offense is a minor or should a prohibited/regulated drug involve in any offense under this section be the proximate cause of the death of a victim thereof, the maximum penalty herein shall be imposed. 2) Financier 3) Sale made within 100m from school Maintenance of a den, dive, or resort for prohibited/regulated drug users. ** Property escheated in favor of the government
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10 gms. Opium, morphine, heroine, cocaine, marijuana resin and Ecstasy. 50 gms. Shabu 500 gms. Marijuana b. Life Imprisonment and a fine of P400,000.00-P500,000.00 10-50 gms. Shabu c. 20 years to Life and a fine of 400,000.00-500,000.00 5-10 gms. Shabu d. 12 20 years and a fine of 300,000.00-400,000.00 Less than 5 gms. Of any dangerous drugs
Possession of paraphernalia
6 mos. 4 yrs. & fine of 10,000 50,000 Use of Dangerous Drugs A person apprehended or arrested, who is found to be positive for use of any dangerous drug, after a confirmatory test, shall be imposed a penalty of a minimum of six (6) months rehabilitation in a government center for the first offense, subject to the provisions of Article VIII of this Act. If apprehended using any dangerous drug act for the second time, he/she shall suffer the penalty of imprisonment ranging from six (6) years and one (1) day to twelve(12) years and a fine ranging from Fifty thousand pesos (P50,000.00) to Two hundred thousand pesos (P200,000.00); Provided, That this section shall not be applicable where the person tested is also found to have in his/her possession such quantity of any dangerous drug provided for under Section 11 of this Act, in which case the provisions stated therein shall apply.
Cultivation of plants which are sources of prohibited drugs.
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Confiscation and forfeiture of the proceeds or instruments of the unlawful act, including the properties of the proceeds derived from the illegal trafficking of dangerous drugs. Forfeited infavor of the government After the conviction in the Regional Trial Court in the appropriate criminal case filed, the Court shall immediately schedule a hearing for the confiscation and forfeiture of all the proceeds of the offense and all the assets and properties of the accused either owned or held by him or in the name of some other persons if the same shall be found to be manifestly out of proportion of his/her income; Provided, however, That if the forfeited property is a vehicle, the same shall be auctioned off not later than five (5) days upon order of confiscation or forfeiture. During the pendency of the case in the Regional Trial Court, no property, or income derived therefrom, which may be confiscated and forfeited, shall be disposed, alienated or transferred and the same shall be in custodia legis and no bond shall be admitted for the release of the same. Custody and disposition of confiscated, seized and/or surrendered dangerous drugs PDEA in charge and custody for proper disposition Procedure in Disposal 1. Apprehending team immediately after seizure shall make physical inventory and photograph the seized drugs in the presence of the accused or his counsel, a representative of the media and DOJ and any elected public official who shall sign the copies of the inventory. 2. Within 24 hours upon confiscation/seizure of dangerous drugs, such drug shall be submitted to the PDEA forensic laboratory for a qualitative and quantitative examination. 3. Certification of the forensic examination results shall be issued within 24 hours. 4. After the filing of the criminal case, the proper court shall conduct and ocular inspection within 72 hours of the confiscated, seized and/or surrendered dangerous drugs. 5. After ocular inspection by the court, PDEA shall destroy or burn the confiscated, seized and/or surrendered dangerous drugs within 24 hours in the presence of the accused or his counsel, representative of the media and the DOJ, civil society groups and any elected public officer. 6. PDEA shall issue a certification of such destruction and samples of the dangerous drugs shall be submitted to the court. Plea-Bargaining Any person charged under any commission of this act regardless of the imposable penalty shall not be allowed to avail of the provision on plea-bargaining.
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Elements and Notes in Criminal Law Book II by RENE CALLANTA Probation Law Any person convicted for drug trafficking regardless of the penalty imposed cannot avail of the privilege granted by the probation law. Qualifying Aggravating Circumstance 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 RPC.
Possession of opium pipe, equipment, apparatus or any paraphernalia fit or intended for smoking, consuming, administering, injecting, ingesting, or otherwise using opium or any other prohibited drug, shall be prima facie evidence that the possessor has smoked, consumed, administered to himself, injected or used a prohibited drug. Attempt and conspiracy to commit the following offenses: a Importation of dangerous drugs b c d e Sale, administration, delivery, distribution and transportation of dangerous drugs Maintenance of a den, dive or resort for prohibited drugs Manufacture of dangerous drugs Cultivation or culture of plants which are sources of prohibited drugs
Other persons liable: a If the violation of the Act is committed by a partnership, corporation, association or any judicial person, the partner, president, director, or manager who consents to or knowingly tolerates such violation shall be held criminally liable as co-principal. Partner, president, director, manager, officer or stockholder, who knowingly authorizes, tolerates, or consents to the use of a vehicle, vessel, or aircraft as an instrument in the importation, sale, delivery, distribution or transportation of dangerous drugs, or to the use of their equipment, machines or other instruments in the manufacture of any dangerous drugs, if such vehicle, vessel, aircraft, equipment, or other instrument, is owned or under the control and supervision of the partnership, corporation, association or judicial entity to which they are affiliated.
Criminal liability of a public officer or employee for misappropriation, misapplication or failure to account for the confiscated, seized and/or surrendered dangerous drugs Penalty - life to death and a fine of P500,000.00 to P10 Million in addition to absolute perpetual disqualification from any public office. Any elective local or national official found to have benefited from the proceeds of the trafficking of dangerous drugs or have received any financial or material contributions from persons found guilty of drug trafficking dangerous drugs, shall be removed from office and perpetually disqualified from holding any elective or appointive positions in the government. Planting of Evidence Any person who is found guilty of planting any dangerous drug regardless of the quantity and purity, shall suffer the penalty of death. Drug Testing 1. Applicants for drivers license - mandatory 2. Applicants for firearms license and for permit to carry - mandatory 3. Students of secondary and tertiary schools random (school shall shoulder expenses) 4. Officers and employees of private and public offices random (employer shall shoulder expenses)
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Voluntary submission a. Voluntary submission of a drug dependent to confinement, treatment and rehabilitation by the drug dependent himself or through his parent, guardian or relative within the 4 th civil degree of consanguinity or affinity, in a center and compliance with such conditions therefor as the Dangerous Drugs Board may prescribe shall exempt from criminal liability for possession or use of the prohibited/regulated drug. (Applicable only to those liable for use of dangerous drugs and not to possession and sale) b. Should the drug dependent escape from the center, he may submit himself for confinement within 1 week from the date of his escape, of his parent guardian or relative may, within the same period surrender him for confinement. c. Upon application of the Board, the Court shall issue an order for recommitment if the drug dependent does not resubmit himself for confinement or if he is not surrendered for recommitment. d. If, subsequent to such recommitment, he should escape again, he shall no longer be exempt from criminal liability for the use or possession of any dangerous drug. e. If a person charged with an offense is found by the fiscal or by the Court at any stage of the proceedings, to be a drug dependent, the fiscal or court as the case may be, shall suspend all further proceedings and transmit records of the case to the Board. f. After his rehabilitation, he shall be prosecuted for such violation. In case of conviction, the judgement shall, if the accused is certified by the treatment and rehabilitation center to
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Compulsory submission If a person charged with an offense where the imposable penalty is imprisonment of not more than six (6) years and one (1) day, and is found by the prosecutor or by the court, at any stage of the proceedings, to be a drug dependent, the prosecutor of the court as the case may be, shall suspend all further proceedings and transmit copies of the record of the case to the Board. Jurisdiction Over Dangerous Drug Cases
Section 90. Jurisdiction The Supreme Court shall designate special courts from among the existing Regional Trial Court in each judicial region to exclusively try and hear cases involving violations of this Act. The number of court designated in each judicial region shall be based on population and the number of cases pending in their respective jurisdiction. The DOJ shall designate special prosecutors to exclusively handle cases involving violations of this Act. The preliminary investigation of cases filed under this Act shall be terminated within a period of thirty (30) days from the date of their filing. When the preliminary investigation is conducted by a public prosecutor and a probable cause is established, the corresponding information shall be filed in court within 24 hours from the termination of the investigation. If the preliminary investigation is conducted by a judge and a probable cause is found to exist, the corresponding information shall be filed by the proper prosecutor within 48 hours from the receipt of the records of the case. Section 91. Responsibility and Liability of Law Enforcement Agencies and Other Government Officials and Employees Testifying as Prosecution Witnesses in Dangerous Drugs Cases Any member of law enforcement agencies or any other government official and employees who, after due notice, fails or refuses intentionally or negligently, to appear as a witness for the prosecution in any proceedings, involving violations of this Act, without any valid reason, shall be punished with imprisonment of not less than twelve (12) years and one (1) day to 20 years and a fine of not less than P500,000.00, in addition to the administrative liability he/she may be meted out by his/her immediate superior and/or appropriate body. Sigma Rho ( ) reviewers
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Elements and Notes in Criminal Law Book II by RENE CALLANTA The immediate superior of a member of the law enforcement agency or any other government employee mentioned in the preceding paragraph shall be penalized with imprisonment of not less than two (2) months and one (1) day but not more than six (6) years and a fine of not less than P10,000.00 but not more than P50,000 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 re-assigned to any other 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 re-assigned for compelling reasons; Provided, That his/her immediate superior shall notify the court where the case is pending of the order of transfer or re-assign, within 24 hours from its approval; Provided further, That his/her immediate superior shall be penalized with imprisonment of not less than two (2) months and one (1) day but not less than six (6) years and a fine of not less than P10,000.00 but not more than 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 re-assign. Prosecution and punishment under this Section shall be without prejudice to any liability for violation of any existing law.
Section 92. Delay and Bungling in the Prosecution of Drug Cases. - Any government officer or employee tasked with the prosecution of drug-related cases under this Act, who, through patent laxity, inexcusable neglect, unreasonable delay or deliberately causes the unsuccessful prosecution and/or dismissal ranging from 12 years and 1 day to 20 years without prejudice to his/her prosecution under the pertinent provisions of the Revised Penal Code. a Buy Bust Operation no law or rule to require policemen to adopt a uniform way of identifying BUY MONEY (P v. Abedes) Absence of ultraviolet powder is not fatal in the prosecution Transportation/importation of MJ immaterial whether there may or may not be a distinction for the MJ Distinguish Entrapment and Instigation: 1. If prosecution can prove the crime without presenting the informer or asset not necessary because their testimonies are merely corroborative. Poseur buyer it depends on whether the prosecution can prove the crime without their testimonies (P v. Rosalinda Ramos) 2. Under the RA, special aggravating circumstance if a crime has been committed while the accused was high on drugs (P v. Anthony Belgar) 3. Delivery or Sale of Prohibited Drugs the accused must be aware that what he is selling or delivering was prohibited drug. But the moment the fact of sale or delivery is proved by prosecution, the burden to prove that the accused is not aware that drugs are prohibited falls on the defense (P v. Aranda) 4. P v. Angelito Manalo burden of proving the authority to possess shabu is a matter of defense 5. P v. Hilario Moscaling court may take judicial notice of the word shabu 6. Criminal liabilities of a policeman who sold the drugs confiscated from a pusher: violation of RA 9165 and malversation under RPC. e f Planting evidence to implicate another Buy Bust Operation form of entrapment (P v. Alberto) not necessary to have prior police surveillance (P v. Carlos Franca)
b c
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b.
2.
Knowingly permitting any form of gambling to be carried on in any place owned or controlled by the offender; Being maintainer, conductor, or banker in a game of jueteng or similar game;
3.
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What is gambling?
It is a game or device or method, the result of which depends wholly or chiefly upon chance or hazard. So, if the game depends wholly upon skill or ability of the players, there is no gambling. The manner of determining whether the game played is prohibited or not is whether the result will depend wholly or chiefly upon chance or hazard. Significantly, if the game has been identified and declared as a form of gambling by express provision of law, there will be no need or requirement to go into the methods upon how the game is played.
What is lottery?
It is a scheme for the distribution of prizes by chance among persons who have paid, or agreed to pay, a valuable consideration for a chance to obtain a prize. (US vs. Filart, et al., 30 Phil. 80) Pinball machines or slot machines are considered gambling devices because the result depends upon chance or hazard. If the prizes do not come out of the funds or contributions of the participants, there is no lottery. (Uy vs. Palomar, 27 SCRA 287)
AND
POSSESSION
OF
LOTTERY
TICKETS
OR
Importing into the Philippines from any foreign place or port any lottery ticket or advertisement; or
2. Selling or distributing the same in connivance with the importer; 3. Possessing, knowingly and with intent to use them, lottery tickets or advertisements; or 4. Selling or distributing the same without connivance with the importer of the same.
Note that possession of any lottery ticket or advertisement is prima facie evidence of an intent to sell, distribute or use the same in the Philippines.
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Article 198. ILLEGAL BETTING ON HORSE RACE Acts punished Betting on horse races during periods not allowed by law; Maintaining or employing a totalizer or other device or scheme for betting on races or realizing profit therefrom during the periods not allowed by law. When horse races not allowed: July 4 (Republic Act No. 137); December 30 (Republic Act No. 229); Any registration or voting days (Republic Act No. 180, Revised Election Code); and Holy Thursday and Good Friday (Republic Act No. 946).
II.
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Presidential Decree No. 1602 (Simplifying and Providing Stiffer Penalties for Violations of Philippine Gambling Laws)
Section 1. Violations and Penalties. -- The penalty of prision mayor in its medium degree or a fine ranging from Five Hundred Pesos to Two Thousand Pesos and in case of recidivism the penalty of prision correccional in its medium degree or a fine of ranging from One Thousand Pesos to Six Thousand Pesos shall be imposed upon: (a) Any person other than those referred to in the succeeding subsection who in any manner, shall directly or indirectly take part in any game of cockfighting, jueteng, bookies (jai- alai or horse racing to include game fixing) and other lotteries, cara y cruz or pompiang and the like, black jack, lucky nine, pusoy or Russian Poker, monte, baccarat and other card games, palk que, domino, mahjong, high and low, slot machines, roulette, pinball and other mechanical inventories or devices, dog racing, boat racing, car raising and other races, basketball, volleyball, boxing, seven-eleven dice games and the like and other contests to include game fixing, point shaving and other machinations banking or percentage game, or any other game or scheme, whether upon chance or skill, which do not have a franchise from the national government, wherein wagers consisting of money, articles of value of representative of value are made; (b) Any person who shall knowingly permit any form of gambling referred to in the preceding subdivision to be carried on in inhabited or uninhabited places or any building, vessel or other means of transportation owned or controlled by him. If the place where gambling is carried on has a reputation of a gambling place or that prohibited gambling is frequently carried on therein or the place is a public or government building or barangay hall, the culprit shall be punished by the penalty provided for in its maximum period and a fine of Six Thousand Pesos. The penalty of prision correccional in its maximum degree and a fine of Six Thousand Pesos shall be imposed upon the maintainer, conductor of the above gambling schemes. The penalty of prision mayor in its medium degree and temporary absolute disqualification and a fine of Six Thousand Pesos shall be imposed if the maintainer, conductor or banker is a government
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While the acts under the Revised Penal Code are still punished under the new law, yet the concept of gambling under it has been changed by the new gambling law. Before, the Revised Penal Code considered the skill of the player in classifying whether a game is gambling or not. But under the new gambling law, the skill of the players is immaterial. Any game is considered gambling where there are bets or wagers placed with the hope to win a prize therefrom. Under this law, even sports contents like boxing, would be gambling insofar as those who are betting therein are concerned. Under the old penal code, if the skill of the player outweighs the chance or hazard involved in winning the game, the game is not considered gambling but a sport. It was because of this that betting in boxing and basketball games proliferated. Unless authorized by a franchise, any form of gambling is illegal. resolution of the case against the operation of jai-alai. So said the court in the recent
There are so-called parlor games which have been exempted from the operation of the decree like when the games are played during a wake to keep the mourners awake at night. Pursuant to a memorandum circular issued by the Executive Branch, the offshoot of the exemption is the intentional prolonging of the wake of the dead by gambling lords. As a general rule, betting or wagering determines whether a game is gambling or not. Exceptions: These are games which are expressly prohibited even without bets. Monte, jueteng or any form of lottery; dog races; slot machines; these are habit-forming and addictive to players, bringing about the pernicious effects to the family and economic life of the players. Mere possession of lottery tickets or lottery lists is a crime punished also as part of gambling. However, it is necessary to make a distinction whether a ticket or list refers to a past date or to a future date. Illustration: X was accused one night and found in his possession was a list of jueteng. If the date therein refers to the past, X cannot be convicted of gambling or illegal possession of lottery list without proving that such game was indeed played on the date stated. Mere possession is not enough. If the date refers to the future, X can be convicted by the mere possession with intent to use. This will already bring about criminal liability and there is no need to prove that the game was played on the date stated. If the possessor was caught, chances are he will not go on with it anymore. There are two criteria as to when the lottery is in fact becomes a gambling game: 1. If the public is made to pay not only for the merchandise that he is buying, but also for the chance to win a prize out of the lottery, lottery becomes a gambling game. Public is made to pay a higher price. If the merchandise is not saleable because of its inferior quality, so that the public actually does not buy them, but with the lottery the public starts patronizing such merchandise. In effect, the public is paying for the lottery and not for the merchandise, and therefore the lottery is a gambling game. Public is not made to pay a higher price.
2.
Illustrations: (1) A certain supermarket wanted to increase its sales and sponsored a lottery where valuable prices are offered at stake. To defray the cost of the prices offered in the lottery, the management increased their prices of the merchandise by 10 cents each. Whenever someone buys from that
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Under this decree, a barangay captain who is responsible for the existence of gambling dens in their own locality will be held liable and disqualified from office if he fails to prosecute these gamblers. But this is not being implemented. Gambling, of course, is legal when authorized by law. Fund-raising campaigns are not gambling. They are for charitable purposes but they have to obtain a permit from Department of Social Welfare and Development. This includes concerts for causes, Christmas caroling, and the like.
OFFENSES AGAINST DECENCY AND GOOD CUSTOMS Article 200 GRAVE SCANDAL
ELEMENTS: a. Offender performs an act b. Act is highly scandalous as offending against decency or good customs c. Highly scandalous conduct does not expressly fall within any other article of the RPC d. Committed in a public place or within the public knowledge or view. (The public view is not required, it is sufficient if in public place. For public knowledge, it may occur even in a private place; the number of people who sees it is not material). GRAVE SCANDAL: consists of acts which are offensive to decency and good customs. They are committed publicly and thus, give rise to public scandal to persons who have accidentally witnessed the acts
* The crime of grave scandal is a crime against public morals . Necessarily, the offender
must commit the crime in a public place or within the view of the public.
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Decency: means properly observing the requirements of modesty, good taste etc Customs: refers to established usage, social conventions carried on by tradition and enforced by social disapproval in case of violation If the acts complained of are punishable under another provision of the RPC, Art 200 is not applicable
* 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.
The essence of grave scandal is publicity and that the acts committed are not only contrary to morals and good customs but must likewise be of such character as to cause public scandal to those witnessing it.
Distinction should be made as to the place where the offensive act was committed, whether in the public place or in a private place: (1) In public place, the criminal liability arises irrespective of whether the immoral act is open to the public view. In short public view is not required. When act offensive to decency is done in a private place, public view or public knowledge is required.
(2)
* Public view does not require numerous persons . Even if there was only one person who witnessed the offensive act for as long as the third person was not an intruder, grave scandal is committed provided the act does not fall under any other crime in the Revised Penal Code. Illustrations: (1) A man and a woman enters a movie house which is a public place and then goes to the darkest part of the balcony and while there the man started performing acts of lasciviousness on the woman. If it is against the will of the woman, the crime would be acts of lasciviousness. But if there is mutuality, this constitutes grave scandal. Public view is not necessary so long as it is performed in a public place. (2) A man and a woman went to Luneta and slept there. They covered themselves their blanket and made the grass their conjugal bed. This is grave scandal. (3) In a certain apartment, a lady tenant had the habit of undressing in her room without shutting the blinds. She does this every night at about eight in the evening. So that at this hour of the night, you can expect people outside gathered in front of her window looking at her silhouette. She was charged of grave scandal. Her defense was that she was doing it in her own house. It is no defense that she is doing it in her private home. It is still open to the public view. (4) In a particular building in Makati which stands right next to the house of a young lady who goes sunbathing in her poolside. Every morning several men in the upper floors would stick their heads out to get a full view of said lady while in her two-piece swimsuit. The lady was then charged with grave scandal. Her defense was that it is her own private pool and it is those men looking down at her who are malicious. This is an act which even though done in a private place is nonetheless open to public view.
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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 201 IMMORAL DOCTRINES, OBSCENE PUBLICATIONS AND EXHIBITIONS:
Persons liable: a. Those who publicly expound or proclaim doctrines that are contrary to public morals b. Authors of obscene literature, published with their knowledge in any form c. Editors publishing such obscene literature d. Owners or operators of establishments selling obscene literature e. Those who exhibit indecent or immoral plays, scenes, acts or shows ion theaters, fairs, cinemas or any other place f. Those who sell, distribute, or exhibit prints, engraving, sculptures or literature which are offensive to morals
MORALS: implies conformity to generally accepted standards of goodness or rightness in conduct or character TEST OF OBSCENITY: whether the matter has a tendency to deprave or corrupt the minds of those who are open to immoral influences. A matter can also be considered obscene if it shocks the ordinary and common sense of men as indecency.
> The test is objective. It is more on the effect upon the viewer and not alone on the conduct of the performer. * 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. * The law is not concerned with the moral of one person . 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.
* In committing this crime, there must be publicity. It means the act or acts done must come to the knowledge of third persons. However, Art 201 enumerates what are considered as obscene literature or immoral or indecent plays, scenes or acts: a. those w/c glorify criminals or condone crimes b. those w/c serve no other purpose but to satisfy the market for violence, lust or pornography c. those w/c offend against any race or religion d. those w/c tend to abet the traffic in and the use of prohibited drugs e. those that are contrary to law, public order, morals, good customs, established policies, lawful orders, decrees and edicts Mere nudity in paintings and pictures is not obscene Pictures w/ a slight degree of obscenity having no artistic value and intended for commercial purposes fall within this article Publicity is an essential element
* Sexual indulgence is not in itself immoral if done within the bounds of privacy and performed normally. The moment the parties carry their private rights and privileges to public view, they expose themselves to public scrutiny.
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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 202 VAGRANTS AND PROSTITUTES:
Who are considered vagrants: a. Those who have no apparent means of subsistence and who have the physical ability to work yet neglect to apply themselves to some useful calling b. Persons found loitering around public and semi-public places without visible means of support c. Persons tramping or wandering around the country or the streets with no visible means of support d. Idle or dissolute persons lodging in houses of ill-fame e. Ruffians or pimps and those who habitually associate with prostitutes (may include even the rich) f. Persons found loitering in inhabited or uninhabited places belonging to others, without any lawful or justifiable reason provided the act does not fall within any other article of the RPC
If fenced and with prohibition of entry If fenced and entered to hunt/fish If not fenced and with no prohibition of entry
Who are considered prostitutes - refer to women who habitually indulge in sexual intercourse or lascivious conduct for money or profit (if a man indulges in the same conduct: vagrancy)
* 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.
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* The designation of the title is misleading. Crimes under this title can be committed by public officers or a non-public officer, when the latter become a conspirator with a public officer, or an accomplice, or accessory to the crime. The public officer has to be the principal. * In some cases, it can even be committed by a private citizen alone such as in Article 275 (infidelity in the custody of a prisoner where the offender is not a public officer) or in Article 222 (malversation).
* A government laborer is not a public officer. However, temporary performance by a laborer of public functions makes him a public officer
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* The unjust judgment is merely the result of inexcusable negligence or ignorance of the law. The ignorance may refer to substantive or procedural law. There must be an apparent and notorious manifestation of lack of logic and false interpretation of the law. (Cortes vs. Catral, 279 SCRA 1)
* The crime of knowingly rendering an unjust judgment, or knowingly issuing an unjust interlocutory order, may be committed only by a judge of a trial court and never of an appellate court . The reason for this is that in appellate court, not only one magistrate renders or issues the interlocutory order. An appellate court functions as a division and the resolutions thereof are handed down only after deliberations among the members of a division so that it cannot be said that there is malice or inexcusable negligence or ignorance in the rendering of a judgment or order that is supposedly unjust as held by the Supreme Court in one administrative case.
* Malice must be proven. Malice is present where the delay is sought to favor one party to the prejudice of the other. * These have been interpreted by the Supreme Court to refer only to judges of the trial court.
* The Constitution provides that cases submitted for decision before the Supreme Court must be resolved within two years. Before the Court of Appeals, such cases must be resolved within 1 year; and before the Regional Trial Court and Metropolitan Trial Court, such cases must be decided within a period of three months or ninety days.
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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 208 PROSECUTION OF OFFENSES; NEGLIGENCE AND TOLERANCE
Acts Punished 1. Maliciously refraining from instituting prosecution against violators of the law; 2. Maliciously tolerating the commission of offenses.
ELEMENTS OF DERELICTION OF DUTY IN THE PROSECUTION OF OFFENSES: a. That the offender is a public officer or officer of the law who has a duty to cause the prosecution of, or to prosecute offenses. b. That there is dereliction of the duties of his office, that is, knowing the commission of the crime, he does not cause (a) the prosecution of the criminal (People vs. Rosales, G.R. no. 42648) or (b) knowing that a crime is about to be committed he tolerates its commission ( if gift/promise is a consideration for his conduct: direct bribery) c. That the offender acts with malice and deliberate intent to favor the violator of the law.
* A public officer engaged in the prosecution of offenders shall maliciously tolerate the commission of crimes or refrain from prosecuting offenders or violators of the law. * This crime can only be committed by a public officer whose official duty is to prosecute offenders, that is, state prosecutors. Hence, those officers who are not duty bound to perform these obligations cannot commit this crime in the strict sense.
There must be a duty on the part of the public officer to prosecute or move for the prosecution of the offender. Note however, that a fiscal is under no compulsion to file an information based upon a complaint if he is not convinced that the evidence before him does not warrant filing an action in court
When a policeman tolerates the commission of a crime or otherwise refrains from apprehending the offender, such peace officer cannot be prosecuted for this crime but they can be prosecuted as: (1) An accessory to the crime committed by the principal in accordance with Article 19, paragraph 3; or He may become a fence if the crime committed is robbery or theft, in which case he violates the Anti-Fencing Law; or He may be held liable for violating the Anti-Graft and Corrupt Practices Act.
(2)
(3)
Illustration: The offender was caught for white slavery. The policeman allowed the offender to go free for some consideration. The policeman does not violate Article 208 but he becomes an accessory to the crime of white slavery. But in the crime of theft or robbery, where the policeman shared in the loot and allowed the offender to go free, he becomes a fence. Therefore, he is considered an offender under the Anti-Fencing Law. However, in distant provinces or municipalities where there are no municipal attorneys, the local chief of police is the prosecuting officer. If he is the one who tolerates the violations of laws or otherwise allows offenders to escape, he can be prosecuted under this article. This is also true in the case of a barangay chairman. They are supposed to prosecute violators of laws within their jurisdiction. If they do not do so, they can be prosecuted for this crime.
The crime must be proved first before an officer can be convicted of dereliction of duty A public officer who harbors, conceals, or assists in the escape of an offender, when it is his duty to prosecute him is liable as principal in the crime of dereliction of duty in the prosecution of offenses. He is not an accessory Article not applicable to revenue officers
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Note that only numbers 1, 2 and 3 must approximate malice. * A lawyer who had already undertaken the case of a client cannot later on shift to the opposing party. This cannot be done. * Under the circumstances, it is necessary that the confidential matters or information was confided to the lawyer in the latters professional capacity. * It is not the duty of the lawyer to give advice on the commission of a future crime. It is, therefore, not privileged in character. The lawyer is not bound by the mandate of privilege communication if he reports such commission of a future crime. It is only confidential information relating to crimes already committed that are covered by the crime of betrayal of trust if the lawyer should undertake the case of opposing party or otherwise divulge confidential information of a client. * Under the law on evidence on privileged communication, it is not only the lawyer who is protected by the matter of privilege but also the office staff like the secretary. * The nominal liability under this article may be constituted either from breach of professional duties in the handling of the case or it may arise out of the confidential relation between the lawyer and the client.
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For purposes of this article, temporary performance of public functions is sufficient to constitute a person a public officer. A private person may commit this crime only in the case in which custody of prisoners is entrusted to him Applicable also to assessors, arbitrators, appraisal and claim commissioners, experts or any other person performing public duties Cannot be frustrated, only attempted or consummated.
* Direct bribery may be committed only in the attempted and consummated stages because, in frustrated felony, the offender must have performed all the acts of execution which would produce the felony as a consequence. In direct bribery, it is possible only if the corruptor concurs with the offender. Once there is
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Bribery exists when the gift is: a. voluntarily offered by a private person b. solicited by the public officer and voluntarily delivered by the private person c. 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 giver is not corruption of public officials due to involuntariness)
Actual receipt of the gift is not only if acts constitutes a crime 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 The gift must have a value or capable of pecuniary estimation. It could be in the form of money, property or services 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 in addition to the penalty for bribery
* In direct bribery, consider whether the official act, which the public officer agreed to do, is a crime or not. * If it will amount to a crime, it is not necessary that the corruptor should deliver the consideration or the doing of the act. The moment there is a meeting of the minds, even without the delivery of the consideration, even without the public officer performing the act amounting to a crime, bribery is already committed on the part of the public officer. Corruption is already committed on the part of the supposed giver. The reason is that the agreement is a conspiracy involving the duty of a public officer. The mere agreement is a felony already. If the public officer commits the act which constitutes the crime, he, as well as the corruptor shall be liable also for that other crime. Illustrations: (1) If the corruptor offers a consideration to a custodian of a public record to remove certain files, the mere agreement, without delivery of the consideration, brings about the crime of direct bribery and corruption of public official. If the records were actually removed, both the public officer and the corruptor will in addition to the two felonies above, will also be liable for the crime committed, which is infidelity in the custody of
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The third type of bribery and prevaricacion (art 208) are similar offenses, both consisting of omissions to do 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
Distinction between direct bribery and indirect bribery Bribery is direct when a public officer is called upon to perform or refrain from performing an official act in exchange for the gift, present or consideration given to him. If he simply accepts a gift or present given to him by reason of his public position, the crime is indirect bribery. Bear in mind that the gift is given "by reason of his office", not "in consideration" thereof. So never use the term consideration. The public officer in Indirect bribery is not to perform any official act. * Note however that what may begin as an indirect bribery may actually ripen into direct bribery. Illustration: Without any understanding with the public officer, a taxi operator gave an expensive suiting material to a BLT registrar. Upon receipt by the BLT registrar of his valuable suiting material, he asked who the giver was. He found out that he is a taxi operator . As far as the giver is concerned, he is giving this by reason of the office or position of the public officer involved. It is just indirect bribery If the BLT registrar calls up his subordinates and said to take care of the taxis of the taxi operator so much so that the registration of the taxis is facilitated ahead of the others, what originally would have been indirect bribery becomes direct bribery.
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* Robbery should be distinguished from Bribery where a law enforcer, say a policeman, extorts money from a person, employing intimidation and threatening to arrest the latter if he will not come across with money may be guilty of Robbery (Article 294, par. 5) or Bribery (Article 210). If the victim actually committed a crime, and the policeman demanded money so he will not be arrested, the crime is Bribery. But if no crime has been committed and the policeman is falsely charging him of having committed one, threatening to arrest him if he will not come across with some consideration, the crime is Robbery.
* The Supreme Court has laid down the rule that for indirect bribery to be committed, the public officer must have performed an act of appropriating of the gift for himself, his family or employees. It is the act of appropriating that signifies acceptance. Merely delivering the gift to the public officer does not bring about the crime. Otherwise it would be very easy to remove a public officer: just deliver a gift to him.
There is no attempted or frustrated indirect bribery 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. 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 Public officers receiving gifts and private persons giving gifts on any occasion, including Christmas are liable under PD 46. The criminal penalty or imprisonment is distinct from the administrative penalty of suspension from the service
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> He need not receive the gift or present because a mere offer or promise is sufficient.
Before the bribe-giver may be dropped from the information, he has to be charged first with the receiver. Before trial, prosecutor may move for dropping bribe-giver from information and be granted immunity. But first, five conditions have to be met: (1) (2) (3) Information must refer to consummated bribery; Information is necessary for the proper conviction of the public officer involved; That the information or testimony to be given is not yet in the possession of the government or known to the government; That the information can be corroborated in its material points; That the informant has not been convicted previously for any crime involving moral turpitude.
(4) (5)
* These conditions are analogous to the conditions under the State Witness Rule under Criminal Procedure. * The immunity granted the bribe-giver is limited only to the illegal transaction where the informant gave voluntarily the testimony. If there were other transactions where the informant also participated, he is not immune from prosecution. The immunity in one transaction does not extend to other transactions. * The immunity attaches only if the information given turns out to be true and correct . If the same is false, the public officer may even file criminal and civil actions against the informant for perjury and the immunity under the decree will not protect him.
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Elements and Notes in Criminal Law Book II by RENE CALLANTA Republic Act No. 7080 (Plunder)
Plunder is a crime defined and penalized under Republic Act No. 7080, which became effective in 1991. This crime somehow modified certain crimes in the Revised Penal Code insofar as the overt acts by which a public officer amasses, acquires, or accumulates ill-gotten wealth are felonies under the Revised Penal Code like bribery (Articles 210, 211, 211-A), fraud against the public treasury [Article 213], other frauds (Article 214), malversation (Article 217), when the ill-gotten wealth amounts to a total value of P50,000,000.00. The amount was reduced from P75,000,000.00 by Republic Act No. 7659 and the penalty was changed from life imprisonment to reclusion perpetua to death. Short of the amount, plunder does not arise. Any amount less than P50,000,000.00 is a violation of the Revised Penal Code or the Anti-Graft and Corrupt Practices Act. Under the law on plunder, the prescriptive period is 20 years commencing from the time of the last overt act. Plunder is committed through a combination or series of overt acts: (1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project by reason of the office or position of the public officer; By illegal or fraudulent conveyance or disposition of asset belonging to the national government or any of its subdivisions, agencies or instrumentalities or government-owned or controlled corporations and their subsidiaries; By obtaining, receiving, or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business or undertaking; By establishing agricultural, industrial, or commercial monopolies or other combinations and/or implementations of decrees and orders intended to benefit particular persons or special interests; or By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people, and the Republic of the Philippines.
(2)
(3)
(4)
(5)
(6)
While the crime appears to be malum prohibitum, Republic Act No. 7080 provides that in the imposition of penalties, the degree of participation and the attendance of mitigating and aggravating circumstances shall be considered by the court.
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III.
Prima Facie Evidence of and Dismissal due to unexplained Wealth (Sec. 8) If 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. 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 nonofficial character by any public official when such activities entail expenses evidently out of proportion to legitimate income.
III. Competent court: All prosecutions under this Act shall be within the original jurisdiction of the Sandiganbayan (Sec. 10). * In case none of the principal accused are occupying positions corresponding to salary grade 27 or higher; PNP officers occupying the rank of superintendent or higher of their equivalent, exclusive jurisdiction over the case shall be vested in the proper Regional Trial Court, Metropolitan Trial Court and Municipal Circuit Trial Court as the case may be. The decision of the court in these cases shall be appealable to the Sandiganbayan which exercises exclusive appellate jurisdiction over them. IV. Prescription of offenses: all offenses punishable under this Act shall prescribe in 15 years (Sec. 11). V. Exceptions: Unsolicited gifts or presents of small or insignificant value offered or given as a mere ordinary token of gratitude of friendship according to local customs or usage, shall be excepted from the provisions of this act (Sec. 14). * Once the case is filed with the Sandiganbayan, by express provision of the law, it becomes incumbent upon the court to place under preventive suspension the public officer who stands accused before it. However, before the order of suspension is issued, it is necessary that a presuspension hearing be held by the court wherein the accused is afforded the opportunity to challenge the validity of the information filed against him. Such right of the accused to challenge the validity of the information covers (a) the right to challenge the sufficiency of the recitals of the information vis--vis the essential elements of the offense as defined by substantive law; (b) the right to challenge the validity of the criminal proceedings leading to the filing of the information, i.e., that he has not been afforded the right of due preliminary investigation, or that the acts for which he stands charged do not constitute a violation of the provisions of R.A. No. 3019, which would warrant his mandatory suspension from office under Section 13 of this Act; and (c) the right to raise the issue that the information can be quashed under any of the grounds provided in Section 2, Rule 117 of the Rules of Court (People vs. Albano, 163 SCRA 511).
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FRAUDS AND ILLEGAL EXACTIONS AND TRANSACTIONS Article 213 FRAUDS AGAINST PUBLIC TREASURY
ELEMENTS: (par. 1) a. That the offender be a public officer. b. That he should have taken advantage of his office, that is, he intervened in the transaction in his official capacity. c. That he entered into an agreement with any interested party or speculator or made use of any other scheme with regard to (a) furnishing supplies (b) the making of contracts, or (c) the adjustment or settlement of account relating to a public property or funds. d. That the accused had intent to defraud the government. Notes: > The public officer must act in his official capacity > The felony is consummated by merely entering into an agreement with any interested party or speculator or by merely making use of any scheme to defraud the Government
* The essence of this crime is making the government pay for something not received or making it pay more than what is due. It is also committed by refunding more than the amount which should properly be refunded. This occurs usually in cases where a public officer whose official duty is to procure supplies for the government or enter into contract for government transactions, connives with the said supplier with the intention to defraud the government. Also when certain supplies for the government are purchased for the high price but its quantity or quality is low. * Not all frauds will constitute this crime. There must be no fixed allocation or amount on the matter acted upon by the public officer. * The allocation or outlay was made the basis of fraudulent quotations made by the public officer involved. For example, there was a need to put some additional lighting along a street and no one knows how much it will cost. An officer was asked to canvass the cost but he connived with the seller of light bulbs, pricing each light bulb at P550.00 instead of the actual price of P500.00. This is a case of fraud against public treasury. If there is a fixed outlay of P20,000.00 for the lighting apparatus needed and the public officer connived with the seller so that although allocation was made a lesser number was asked to be delivered, or of an inferior quality, or secondhand. In this case there is no fraud against the public treasury because there is a fixed allocation. The fraud is in the implementation of procurement. That would constitute the crime of other fraud in Article 214, which is in the nature of swindling or estafa. * Be sure to determine whether fraud is against public treasury or one under Article 214.
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Elements and Notes in Criminal Law Book II by RENE CALLANTA ILLEGAL EXACTIONS (par 2)
ELEMENTS: a. The offender is a public officer entrusted with the collection of taxes, licenses, fees and other imposts. b. He is guilty of any of the following acts or omissions: 1. demanding, directly or indirectly the payment of sums different from or larger than those authorized by law, or 2. failing voluntarily to issue a receipt, as provided by law, for any sum of money collected by him officially, or 3. Collecting or receiving, directly or indirectly, by way of payment or otherwise, things or objects of a nature different from that provided by law. Notes:
* This can only be committed principally by a public officer whose official duty is to collect taxes, license fees, import duties and other dues payable to the government. * Not any public officer can commit this crime. Otherwise, it is estafa. Fixers cannot commit this crime unless he conspires with the public officer authorized to make the collection. * The essence of the crime is not misappropriation of any of the amounts but the improper making of the collection which would prejudice the accounting of collected amounts by the government.
* Mere demand of a larger or different amount is sufficient to consummate the crime. The essence is the improper collection (damage to govt is not required)
On the first form of illegal exaction In this form, mere demand will consummate the crime, even if the taxpayer shall refuse to come across with the amount being demanded. That will not affect the consummation of the crime. > In the demand, it is not necessary that the amount being demanded is bigger than what is payable to the government. The amount being demanded maybe less than the amount due the government.
* 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 larger fees, the crime committed is estafa * May be complexed with malversation
* Note that this is often committed with malversation or estafa because when a public officer shall demand an amount different from what the law provides, it can be expected that such public officer will not turn over his collection to the government. Illustrations: (1) A taxpayer goes to the local municipal treasurer to pay real estate taxes on his land. Actually, what is due the government is P400.00 only but the municipal treasurer demanded P500.00 . By that demand alone, the crime of illegal exaction is already committed even though the taxpayer does not pay the P500.00. Suppose the taxpayer came across with P500.00. But the municipal treasurer, thinking that he would abstract the P100.00, issued a receipt for only P400.00. The taxpayer would naturally ask the municipal treasurer why the receipt was only for P400.00. The treasurer answered that the P100.00 is supposed to be for documentary stamps. The taxpayer left. He has a receipt for P400.00. The municipal treasurer turned over to the government coffers P400.00 because that is due the government and pocketed the P100.00. The mere fact that there was a demand for an amount different from what is due the government, the public officer already committed the crime of illegal exaction.
(2)
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(b)
(c)
Should the falsification be complexed with the malversation? As far as the crime of illegal exaction is concerned, it will be the subject of separate accusation because there, the mere demand regardless of whether the taxpayer will pay or not, will already consummate the crime of illegal exaction. It is the breach of trust by a public officer entrusted to make the collection which is penalized under such article. The falsification or alteration made on the duplicate can not be said as a means to commit malversation. At most, the duplicate was altered in order to conceal the malversation. So it cannot be complexed with the malversation. It cannot also be said that the falsification is a necessary means to commit the malversation because the public officer can misappropriate the P100.00 without any falsification. All that he has to do is to get the excess of P100.00 and misappropriate it. So the falsification is a separate accusation. However, illegal exaction may be complexed with malversation because illegal exaction is a necessary means to be able to collect the P100.00 excess which was malversed. In this crime, pay attention to whether the offender is the one charged with the collection of the tax, license or impost subject of the misappropriation. If he is not the one authorized by disposition to do the collection, the crime of illegal exaction is not committed. If it did not give rise to the crime of illegal exaction, the funds collected may not have become part of the public funds. If it had not become part of the public funds, or had not become impressed with being part of the public funds, it cannot be the subject of malversation. It will give rise to estafa or theft as the case may be. (3) The Municipal Treasurer demanded P500.00 when only P400.00 was due. He issued the receipt at P400.00 and explained to taxpayer that the P100 was for documentary stamps. The Municipal Treasurer placed the entire P500.00 in the vault of the office. When he needed money, he took the P100.00 and spent it. The following crimes were committed: (a) (b) (c) Illegal exaction for demanding a different amount; Estafa for deceiving the taxpayer; and Malversation for getting the P100.00 from the vault.
Although the excess P100.00 was not covered by the Official Receipt, it was commingled with the other public funds in the vault; hence, it became part of public funds and subsequent extraction thereof constitutes malversation.
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Note that numbers 1 and 2 are complexed as illegal exaction with estafa, while in number 3, malversation is a distinct offense. * The issuance of the Official Receipt is the operative fact to convert the payment into public funds . The payor may demand a refund by virtue of the Official Receipt. * In cases where the payor decides to let the official to keep the change, if the latter should pocket the excess, he shall be liable for malversation. The official has no right but the government, under the principle of accretion, as the owner of the bigger amount becomes the owner of the whole. On the second form of illegal exaction The act of receiving payment due the government without issuing a receipt will give rise to illegal exaction even though a provisional receipt has been issued. What the law requires is a receipt in the form prescribed by law, which means official receipt. Illustration: If a government cashier or officer to whom payment is made issued a receipt in his own private form, which he calls provisional, even though he has no intention of misappropriating the amount received by him, the mere fact that he issued a receipt not in the form prescribed by law, the crime of illegal exaction is committed. There must be voluntary failure to issue the Official Receipt. On the third form of illegal exaction Under the rules and regulations of the government, payment of checks not belonging to the taxpayer, but that of checks of other persons, should not be accepted to settle the obligation of that person. Illustration: A taxpayer pays his obligation with a check not his own but pertaining to another. Because of that, the check bounced later on. The crime committed is illegal exaction because the payment by check is not allowed if the check does not pertain to the taxpayer himself, unless the check is a managers check or a certified check, amended already as of 1990. (See the case of Roman Catholic.) * Under Article 213, if any of these acts penalized as illegal exaction is committed by those employed in the Bureau of Customs or Bureau of Internal Revenue, the law that will apply to them will be the Revised Administrative Code or the Tariff and Customs Code or National Revenue Code. * This crime does not require damage to the government.
Officers and employees of the BIR or Customs are not covered by the article. The NIRC or Administrative Code is the applicable law
>These officers are authorized to make impositions and to enter into compromises. Because of this discretion, their demanding or collecting different from what is necessary is legal
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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 215 PROHIBITED TRANSACTIONS
ELEMENTS: a. That the offender is an appointive public officer. b. That he becomes interested, directly or indirectly, in any transaction of exchange or speculation. c. That the transaction takes place within the territory subject to his jurisdiction. d. That he becomes interested in the transaction during his incumbency. Notes: 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
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MALVERSATION OF PUBLIC FUNDS OR PROPERTY Article 217 MALVERSATION OF PUBLIC FUNDS OR PROPERTY
ELEMENTS COMMON TO ALL ACTS MALVERSATION OF PUBLIC FUNDS OR PROPERTY : a. That the offender be a public officer (or private person if entrusted with public funds or connived with public officers) b. That he had the custody or control of funds or property (if not accountable for the funds, theft or qualified theft) c. That those funds or property were public funds or property (even if private funds if attached, seized, deposited or commingled with public funds) d. That he: 1. Appropriated the funds or property 2. Took or misappropriated them 3. Consented or, through abandonment or negligence, permitted any other person to take such public funds or property. (it is not necessary that the offender profited thereby. His being remiss in the duty of safekeeping public funds violates the trust reposed) Concept of Malversation It consists in the misappropriation or conversion of public funds or property to ones personal use or knowingly, or through abandonment or negligence allowing other to use or appropriate the same. The offender is made liable because of the nature of his duties to take care of the funds or property entrusted to him with the diligence of a good father of a family. He is accountable by virtue of the nature of his office to account for funds or properties that come to his possession. If he is not accountable for the funds or properties and he misappropriates the
same, the crime will not be malversation but estafa under Article 315.
Malversation is otherwise called embezzlement
* This crime is predicated on the relationship of the offender to the property or funds involved. The offender must be accountable for the property misappropriated. If the fund or property, though public in character is the responsibility of another officer, malversation is not committed unless there is conspiracy.
* In determining whether the offender is liable for malversation, it is the nature of the duties of the public officer that controls. While the name of the office is important, what is controlling is whether in performing his duties as a public officer, he has to account or is required by the nature of the performance of a duty, to render an account on the money or property that came into his possession.
* It is not necessary that the offender profited because somebody else may have misappropriated the funds in question for as long as the accountable officer was remiss in his duty of safekeeping public funds or property. He is liable for malversation if such funds were lost or otherwise misappropriated by another.
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In determining whether the offender is a public officer, what is controlling is the nature of his office and not the designation
* The offender, to commit malversation, must be accountable for the funds or property misappropriated by him. If he is not the one accountable but somebody else, the crime committed is theft. It will be qualified theft if there is abuse of confidence. * Accountable officer does not refer only to cashier, disbursing officers or property custodian . Any public officer having custody of public funds or property for which he is accountable can commit the crime of malversation if he would misappropriate such fund or property or allow others to do so.
The funds or property must be received in an official capacity. Otherwise, the crime committed is estafa
* When private property is attached or seized by public authority and the public officer accountable therefor misappropriates the same, malversation is committed also. Illustration: If a sheriff levied the property of the defendants and absconded with it, he is not liable of qualified theft but of malversation even though the property belonged to a private person. The seizure of the property or fund impressed it with the character of being part of the public funds it being in custodia legis. For as long as the public officer is the one accountable for the fund or property that was misappropriated, he can be liable for the crime of malversation. Absent such relation, the crime could be theft, simple or qualified.
Estafa It is usually committed by a private individual Funds or property of misappropriation are privately owned. The offender appropriates personally the funds or property.
Malversation Committed by accountable public officers The object is public fund or property. Personal appropriation is not indispensable because allowing others to commit the misappropriation is also malversation.
When a public officer has official custody or the duty to collect or receive funds due the government, or the obligation to account for them, his misappropriation of the same constitutes malversation
* Note that the moment any money is commingled with the public fund even if not due the government, it becomes impressed with the characteristic of being part of public funds. Once they are commingled, you do not know anymore which belong to the government and which belong to the private persons. So that a public vault or safe should not be used to hold any fund other that what is due to the government.
In malversation thru negligence, the negligence of the accountable public officer must be positively and clearly shown to be inexcusable, approximating fraud or malice
> Under jurisprudence, when the public officer leaves his post without locking his drawer, there is negligence. Thus, he is liable for the loss.
The measure of negligence to be observed is the standard of care commensurate with the occasion When malversation is not committed through negligence, lack of criminal intent or good faith is a defense The failure of a public officer to have any duly forthcoming public funds or property upon demand, by any authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal use. However, if at the very moment when the shortage is discovered, the accountable officer is notified, and he immediately pays the amount from his pocket, the presumption does not arise
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* To rebut the presumption of guilt prima facie under Article 217, the accused must raise the
issue of accuracy, correctness and regularity in the conduct of audit. If asked for a second audit before the filing of the information against him and the same was denied, and during the trial, some disbursement vouchers were introduced which were not considered in the first audit, the denial of the request for a second audit is fatal to the cause of the prosecution because in the meantime, the evidence introduced does not establish a fact beyond reasonable doubt. Had the re-audit requested by the accused been accorded due course, the remaining balance could have been satisfactorily accounted for. (Mahinay vs. The Sandiganbayan. G. R. No. 61442, May 9, 1989) Returning the embezzled funds is not exempting, it is only mitigating
* Payment of the amount misappropriated or restitution of property misappropriated does not erase criminal liability but only civil liability.
There is also no malversation when the accountable officer is obliged to go out of his office and borrow the amount corresponding to the shortage and later, the missing amount is found in an unaccustomed place A person whose negligence made possible the commission of malversation by another can be held liable as a principal by indispensable cooperation
* It is not necessary that the accountable public officer should actually misappropriate the fund or property involved. It is enough that he has violated the trust reposed on him in connection with the property.
* Note that damage on the part of the government is not considered an essential element. It is enough that the proprietary rights of the government over the funds have been disturbed through breach of trust.
* The grant of loans through the vale system is a clear case of an accountable officer consenting to the improper or unauthorized use of public funds by other persons, which is punishable by law. To tolerate such a practice is to give a license to every disbursing officer to conduct a lending operation with the use of public funds. There is no law or regulation allowing accountable officers to extend loans to anyone against the vales or chits given in exchange by the borrowers. (Meneses vs. Sandiganbayan) A private person may also commit malversation under the following situations:
(1) (2) (3) Conspiracy with a public officer in committing malversation; When he has become an accomplice or accessory to a public officer who commits malversation; When the private person is made the custodian in whatever capacity of public funds or property, whether belonging to national or local government, and he misappropriates the same; When he is constituted as the depositary or administrator of funds or property seized or attached by public authority even though said funds or property belong to a private individual.
(4)
* Technical malversation is not included in the crime of malversation. In malversation, the offender misappropriates public funds or property for his own personal use, or allows any other person to take such funds or property for the latters own personal use. In technical malversation, the public officer applies the public funds or property under his administration to another public use different from that for which the public fund was appropriated by law or ordinance. Recourse: File the proper information.
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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 218 FAILURE OF ACCOUNTABLE OFFICER TO RENDER ACCOUNTS
ELEMENTS: a. That the offender is a public officer, whether in the service or separated therefrom. b. That he must be an accountable officer for public funds property. c. That he is required by law or regulation to render accounts to the commission on audit, or to a provincial auditor. d. That he fails to do so for a period of two months after such accounts should be rendered. The public officers who are bound to render accounts are the following:
1. cashiers 2. storekeepers 3. warehousemen and 4. those who by the nature of their position become custodian or public funds or property.
Note: Demand and misappropriation are not necessary
* It is sufficient that there is a law or regulation requiring him to render an account. It is the failure to follow the requirement of the law that is made punishable. It is not necessary that the offender prevent the situation of the crime being committed because of the failure of the accountable officer to render an account.
Article 219 FAILURE OF A RESPONSIBLE PUBLIC OFFICER TO RENDER ACCOUNTS BEFORE LEAVING THE COUNTRY
ELEMENTS: a. That the offender is a public officer. b. That he must be an accountable officer for public funds or property. c. That he must have unlawfully left (or be on the point of leaving) the Philippines without securing from the Commission on Audit a certificate showing that his accounts have been finally settled.
Who can commit this crime? A responsible public officer, not necessarily an accountable one, who leaves the country without first securing clearance from the Commission on Audit.
Note: The act of leaving the Philippines must be unauthorized or not permitted by law
* Mere leaving without securing clearance constitutes violation of the Revised Penal Code. It is not necessary that they really misappropriated public funds.
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To distinguish this article with Art 217, just remember that in illegal use of public funds or property, the offender does not derive any personal gain, the funds are merely devoted to some other public use Absence of damage is only a mitigating circumstance
* Since damage is not an element of malversation , even though the application made proved to be more beneficial to public interest than the original purpose for which the amount or property was appropriated by law, the public officer involved is still liable for technical malversation. * If public funds were not yet appropriated by law or ordinance, and this was applied to a public purpose by the custodian thereof, the crime is plain and simple malversation, not technical malversation. If the funds had been appropriated for a particular public purpose, but the same was applied to private purpose , the crime committed is simple malversation only. Illustration: The office lacked bond papers. What the government cashier did was to send the janitor, get some money from his collection, told the janitor to buy bond paper so that the office will have something to use. The amount involved maybe immaterial but the cashier commits malversation pure and simple. * This crime can also be committed by a private person. Illustration: A certain road is to be cemented. Bags of cement were already being unloaded at the side. But then, rain began to fall so the supervisor of the road building went to a certain house with a garage, asked the owner if he could possibly deposit the bags of cement in his garage to prevent the same from being wet. The owner of the house, Olive, agreed. So the bags of cement were transferred to the garage of the private person. After the public officer had left, and the workers had left because it is not possible to do the cementing, the owner of the garage started using some of the cement in paving his own garage. The crime of technical malversation is also committed. * Note that when a private person is constituted as the custodian in whatever capacity, of public funds or property, and he misappropriates the same, the crime of malversation is also committed. See Article 222. Illustration: The payroll money for a government infrastructure project on the way to the site of the project, the officers bringing the money were ambushed. They were all wounded. One of them, however, was able to get away from the scene of the ambush until he reached a certain house. He told the occupant of the house to safeguard the amount because it is the payroll money of the government laborers of a particular project. The occupant of the house accepted the money for his own use. The crime is not theft but malversation as long as he knew that what was entrusted in his custody is public fund or property.
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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 222 PERSONS WHO MAY BE HELD LIABLE UNDER ARTS 217 TO 221
a. Private individual who, in any capacity, have charge of any national, provincial or municipal funds, revenue, or property b. 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
* Here, the funds or property belong to private individuals, but they are considered public funds or property if they come to the possession of the public officer because of 1) a writ of attachment; or 2) if they are seized by virtue of a search warrant. Or 3) if they are ordered deposited pending determination of ownership in the administrative or judicial proceedings. * Private individuals may also be liable for malversation if they act as conspirators in the commission of the crime.
* A municipal mayor who utilized the prisoners services for domestic chores in his house, including using him as a cook is liable for faithlessness in the custody of prisoner (Art. 223) even though the convict may not have fled, in as much as the prisoners leaving the prison was effected through him. (People vs. Evangelista, C.A. 38 O.G. 158).
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* Not every error is negligence under this article. To be liable, the negligence must be notorious and apparent. The laxity must be definite and must seriously suggest a deliberate nonperformance of a duty. * The negligence which is punishable however is not such definite laxity at all but that which amounts to deliberate non-performance of the jailer or the guard. So that if a policemen on guard duty unlocked the door of the jail to let a detention prisoner go out so he can clean the premises, but on the latters third trip to a nearby faucet, he walked behind the police headquarters climbed over the wall and escape, the crime is not committed. (People vs. Solis, C.A. 43 O.G. 580). 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: a. if he is a prisoner by final judgment, he is liable for evasion of service (art 157) b. if he is a detention prisoner, he does not incur criminal liability (unless cooperating with the offender).
Article 225 ESCAPE OF PRISONERS UNDER THE CUSTODY OF A PERSON NOT A PUBLIC OFFICER
ELEMENTS: a. That the offender is a private person (note: must be on duty) b. That the conveyance or custody of a prisoner or person under arrest is confined to him. c. That the prisoner or person under arrest escapes. d. That the offender consents to the escape of the prisoner or person under arrest, or that the escape takes place through his negligence Note: This article is not applicable if a private person made the arrest and he consented to the escape of the person he arrested
* The offender under this article is not the one who arrested the escaping prisoner but one who agreed to
have the custody or charge of the prisoner or person under arrest. ORTEGA NOTES:
The crime is infidelity in the custody of prisoners if the offender involved is the custodian of the prisoner. If the offender who aided or consented to the prisoners escaping f rom confinement, whether the prisoner is a convict or a detention prisoner, is not the custodian, the crime is delivering prisoners from jail under Article156. The crime of infidelity in the custody of prisoners can be committed only by the custodian of the prisoner. If the jail guard who allowed the prisoner to escape is already off-duty at that time and he is no longer the custodian of the prisoner, the crime committed by him is delivering prisoners from jail. Note that you do not apply here the principle of conspiracy that the act of one is the act of all. The party who is not the custodian who conspired with the custodian in allowing the prisoner to escape does not commit infidelity in the custody of the prisoner. He commits the crime of delivering prisoners from jail.
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> Removal of a document presupposes unlawful appropriation of the official document. > Destruction means to render the document useless. Its nature to prove the existence of a
fact is lost such that it cannot anymore prove the probability or improbability of a fact in issue. available.
> Concealment on the other hand means to make it appear that the document is not
A post office official who retained the mail without forwarding the letters to their destination is guilty of infidelity in the custody of papers Removal of a document or paper must be for an illicit purpose.
* If the removal of the document is for a lawful purpose and that is, to secure the same from imminent danger or loss, there is no crime committed under the law, (Kataniag vs. People, 74 Phil. 45). There is illicit purpose when the intention of the offender is to: a. tamper with it b. to profit by it c. to commit any act constituting a breech of trust in the official thereof
* The act of removal, destruction or concealment should be coupled with criminal intent or malice (Manzanaris vs. Sandiganbayan, et al., G.R. No. 64750, Jan. 30, 1984). Removal is consummated upon removal 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
* Removal of public records by the custodian does not require that the record be brought out of the premises where it is kept. It is enough that the record be removed from the place where it should be and transferred to another place where it is not supposed to be kept. If damage is caused to the public service, the public officer is criminally liable for infidelity in the custody of official documents.
Infidelity in the custody of documents through destruction or concealment does not require proof of an illicit purpose
Where in case for bribery or corruption, the monetary considerations was marked as exhibits, such considerations acquires the nature of a document such that if the same would be spent by the custodian the crime is not malversation but Infidelity in the custody of public records, because the money adduced as exhibits partake the nature of a document and not as money. Although such monetary consideration acquires the nature of a document, the best evidence rule does not apply here. Example, photocopies may be presented in evidence.
Delivering the document to the wrong party is infidelity in the custody thereof The damage may either be great or small
* Damage to public interest is necessary. However, material damage is not necessary. Although there is no material damage caused, mere delay in rendering public service is considered damage.
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Distinction between infidelity in the custody of public document, estafa and malicious mischief In infidelity in the custody of public document, the offender is the custodian of the official document removed or concealed. In estafa, the offender is not the custodian of the document removed or concealed. In malicious mischief, the offender purposely destroyed and damaged the property/document.
* If the official document is sealed or otherwise placed in an official envelope, the element of damage is not required. The mere breaking of the seal or the mere opening of the document would already bring about infidelity even though no damage has been suffered by anyone or by the public at large. The offender does not have to misappropriate the same. Just trying to discover or look what is inside is infidelity already. * A crime is already committed regardless of whether the contents of the document are secret or private. It is enough that it is entrusted to him in a sealed form or in a closed envelope and he broke the seal or opened the envelop. Public trust is already violated if he managed to look into the contents of the document. Distinction between infidelity and theft There is infidelity if the offender opened the letter but did not take the same. There is theft if there is intent to gain when the offender took the money. * Note that the document must be complete in legal sense. If the writings are mere form, there is no crime. Illustration: As regard the payroll, which has not been signed by the Mayor, no infidelity is committed because the document is not yet a payroll in the legal sense since the document has not been signed yet. * In "breaking of seal", the word "breaking" should not be given a literal meaning. Even if actually, the seal was not broken, because the custodian managed to open the parcel without breaking the seal.
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* In Article 227, the mere breaking of the seal is what is made punishable while in Article 228, the mere opening of closed documents is enough to hold the offender criminally liable. The breaking of the seal or the opening of the closed document must be done without lawful authority or order from competent authority. In both offenses, damage to the public interest is not required.
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
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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 230 PUBLIC OFFICER REVEALING SECRETS OF PRIVATE INDIVIDUAL
ELEMENTS: a. That the offender is a public officer b. That he knows of the secret of a private individual by reason of his office. c. That he reveals such secrets without authority or justification reason. Revelation to one person is sufficient If the offender is an attorney, he is properly liable under Art 209 (betrayal of trust by an attorney) Damage to private individual is not necessary
* The term execute as found in the law does not only means performance of an act since the judgment, decision or order may also direct the non-performance of an act. * The article does not apply to the members of Congress.
Article 232 DISOBEDIENCE TO ORDER OF SUPERIOR OFFICER WHEN SAID ORDER WAS SUSPENDED BY INFERIOR OFFICER
ELEMENTS: a. That the offender is a public officer. b. That an order is issued by his superior for execution.
c. That he has for any reason suspended the execution of such order. d. That his superior disapproves the suspension of the execution of the order. e. That the offender disobeys his superior despite the disapproval of the suspension. Note: A public officer is not liable if the order of the superior is illegal
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* Damage is essential whether great or small. But the penalty is affected by the seriousness of the damage. Note that the refusal must be done with malice. Demand is necessary
* The situation contemplated herein may refer to the administration of justice before the case is filed in court. Competent authority may refer to persons in authority who are charged by the law to help in the administration of justice. The term may refer to police authorities. However, when a case under investigation reaches the court, the remedy may not be limited to incurring criminal liability under this article because the refusal may already be punished as direct or indirect contempt of court.
* This is a crime, which a policeman may commit when, being subpoenaed to appear in court in connection with a crime investigated by him but because of some arrangement with the offenders, the policeman does not appear in court anymore to testify against the offenders. He tried to assail the subpoena so that ultimately the case would be dismissed. It was already held that the policeman could be prosecuted under this crime of refusal of assistance and not that of dereliction of duty.
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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 235 MALTREATMENT OF PRISONERS
ELEMENTS: a. That the offender is a public officer or employee. b. That he has under charge a prisoner or detention prisoner (otherwise the crime is physical injuries) c. That he maltreats such prisoner in either of the following manners: 1. By overdoing himself in the correction or handling of a prisoner or detention prisoner under his charge either by the imposition of punishments not authorized by the regulations, or by inflicting such punishments (those authorized) in a cruel and humiliating manner, or
2. by maltreating such prisoner to extort a confession or to obtain some information from the prisoner.
* The maltreatment does not really require physical injuries. Any kind of punishment not authorized or though authorized if executed in excess of the prescribed degree. > But if as a result of the maltreatment, physical injuries were caused to the prisoner , a separate crime for the physical injuries shall be filed. You do not complex the crime of physical injuries with the maltreatment because the way Article 235 is worded, it prohibits the complexing of the crime. * If the maltreatment was done in order to extort confession, therefore, the constitutional right of the prisoner is further violated. The penalty is qualified to the next higher degree.
The public officer must have actual charge of the prisoner in order to be held liable
* If the public officer is not the custodian of the prisoner, and he manhandles the latter, the crime is physical injuries.
* If a Barangay Captain maltreats a person after the latters arrest but before confinement, the offense is not maltreatment but physical injuries. The victim must actually be confined either as a convict or a detention prisoner for Art. 235 to apply. (People vs. Baring, et al., 37 O.G. 1366). To be considered a detention prisoner, the person arrested must be placed in jail even for just a short while
* The offended party here must be a prisoner in the legal sense . The mere fact that a private citizen had been apprehended or arrested by a law enforcer does not constitute him a prisoner. To be a prisoner, he must have been booked and incarcerated no matter how short it is. Illustration: A certain snatcher was arrested by a law enforcer, brought to the police precinct, turned over to the custodian of that police precinct. Every time a policeman entered the police precinct, he would ask, What is this fellow doing here? What crime has he committed?. The other policeman would then tell, This fellow is a snatcher. So every time a policeman would come in, he would inflict injury to him. This is not maltreatment of prisoner because the offender is not the custodian. The crime is only physical injuries. > But if the custodian is present there and he allowed it , then he will be liable also for the physical injuries inflicted, but not for maltreatment because it was not the custodian who inflicted the injury. > But if it is the custodian who effected the maltreatment, the crime will be maltreatment of prisoners plus a separate charge for physical injuries.
Offender may also be held liable for physical injuries or damage caused
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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 236 ANTICIPATION OF DUTIES OF A PUBLIC OFFICE
ELEMENTS: a. That the offender is entitled to hold a public office or employment, either by election or appointment. b. That the law requires that he should first be sworn in and/or should first give a bond. c. That he assumes the performance of the duties and powers of such office. d. That he has not taken his oath of office and /or given the bond required by law.
* The crime is committed only if the public officer has lost every right to the office because there are offices which require the officer to continue serving as such properly relieved. The law is intended to put an end to the principle of hold over.
* Oral resignation is not allowed. The resignation must be in writing and directed to the
appointing power who has the authority to accept or disapprove the same. This requirement is indispensable because the letter of resignation goes into a process.
The offense is qualified if the purpose behind the abandonment is to evade the discharge of duties consisting of preventing, prosecuting or punishing any of the crimes against national security. The penalty is higher ( one degree ). This involves the following crimes: a. treason b. conspiracy and proposal to commit conspiracy c. misprision of treason d. espionage e. inciting to war or giving motives to reprisals f. violation of neutrality g. correspondence with hostile country h. flight to enemy country i. piracy and mutiny on the high seas
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Abandonment of Office or Position Dereliction of Duty (208) (238) There is actual abandonment through Public officer does not abandon his office resignation to evade the discharge of but merely fails to prosecute a violation of duties. the law.
Note: Legislative officers are not liable for usurpation of executive functions
Note: A mayor is guilty under this article when he investigates a case while a justice of the peace is in the municipality
d. e.
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Note: Legislative or judicial officers are not liable under this article
Recommending, knowing that the person recommended is not qualified is not a crime
* The word nominate is not the same as recommend. To nominate is to guarantee to the appointing power that the person nominated has all the qualifications to the office. Recommendation on the other hand does not make any guarantee as to the legal fitness of the candidate to public office. There must be a law providing for the qualifications of a person to be nominated or appointed to a public office
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The mother of the person in the custody of the public officer is not included
* This crime cannot be committed if the warden is a woman and the prisoner is a man. Men have no chastity. * If the warden is also a woman but is a lesbian, it is submitted that this crime could be committed, as the law does not require that the custodian be a man but requires that the offended be a woman.
Solicit: means to propose earnestly and persistently something unchaste and immoral to a woman
* The word solicit means to demand earnestly. In this case, the demand is for sexual favor. It must be immoral or indecent and done by the public officer taking advantage of his position as one who can help by rendering a favorable decision or unwarranted benefits, advantage or preference to a person under his custody. The crime is consummated by mere proposal
* It is not necessarily for the offended party to surrender her virtue to consummate the crime. > Mere proposal is sufficient to consummate the crime.
* Even if the woman may have lied with the hearing officer or to the public officer and acceded to him, that does not change the crime because the crime seeks to penalize the taking advantage of official duties. * It is immaterial whether the woman did not agree or agreed to the solicitation. If the woman did not agree and the public officer involved pushed through with the advances, attempted rape may have been committed. * Legally, a prisoner is an accountability of the government. So the custodian is not supposed to interfere. Even if the prisoner may like it, he is not supposed to do that. Otherwise, abuse against chastity is committed. * If he forced himself against the will of the woman, another crime is committed, that is, rape aside from abuse against chastity. * You cannot consider the abuse against chastity as absorbed in the rape because the basis of penalizing the acts is different from each other.
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* Except between husband and wife, the offender must be related to the offended party by blood. * Parents and children are not included in the term ascendants or descendants * The other ascendant or descendant must be legitimate. On the other hand, the father, mother or child may be legitimate or illegitimate
* If the offender and the offended party, although related by blood and in the direct line, are separated by an intervening illegitimate relationship, parricide can no longer be committed. The illegitimate relationship between the child and the parent renders all relatives after the child in the direct line to be illegitimate too. * The only illegitimate relationship that can bring about parricide is that between parents and illegitimate children as the offender and the offended parties.
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* A, an illegitimate son of B, who killed the legitimate father of the latter, is not guilty of Parricide because in case of other ascendants (grandparents, great grandparents, etc.), the relationship with the killer must be legitimate. The same is true with other descendants that is, grandchildren, great grandchildren, etc.
* The child should not be less than 3 days old. Otherwise, the offense is infanticide
* That the mother killed her child in order to conceal her dishonor is not mitigating . This is immaterial to the crime of parricide, unlike in the case of infanticide. If the child is less than three days old when killed, the crime is infanticide and intent to conceal her dishonor is considered mitigating.
* Even if the offender did not know that the person he had killed is his son, he is still liable for parricide because the law does not require knowledge of the relationship * Article 365 expressly provides that parricide can be committed through reckless imprudence. The penalty will not be under Article 246 but under Article 365. * Similarly, parricide can be committed by mistake. This is demonstrated in a situation where a person wanting to kill a stranger, kills his own father by mistake. Although the crime committed is parricide, the offender will not be punished under Article 246 but under Article 49, which prescribes a penalty much lower than that provided under Article 246.
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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 247 DEATH OR PHYSICAL INJURIES UNDER EXCEPTIONAL CIRCUMSTANCES
Requisites: 1. A legally married person or parent surprises his spouse or daughter ( the latter must be under 18 and living with them) in the act of committing sexual intercourse with another person 2. He/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 he has not consented to the infidelity of the other spouse. Notes: * Article does not define or penalize a felony
* Article 247, far from defining a felony merely grants a privilege or benefit, more of an exempting circumstance as the penalty is intended more for the protection of the accused than a punishment. Death under exceptional character can not be qualified by either aggravating or mitigating circumstances.
* If the accused fails to establish the circumstances called for in Article 247, he/she will be guilty of Parricide and Murder or Homicide if the victims were killed. * Not necessary that the parent be legitimate * Article applies only when the daughter is single * SURPRISE: means to come upon suddenly or unexpectedly * Art 247 is applicable when the accused did not see his spouse in the act sexual intercourse with another person. However, it is enough that circumstances reasonably show that the carnal act is being committed or has been committed * It is not necessary that the spouse actually saw the sexual intercourse being committed. It is enough that he/she surprised them under such circumstances that no other reasonable conclusion can be inferred but that a carnal act was being performed or has just been committed.
* The article does not apply where the wife was not surprised in flagrant adultery but was being abused by a man as in this case there will be defense of relation. * If the offender surprised a couple in sexual intercourse, and believing the woman to be his wife, killed them, this article may be applied if the mistake of facts is proved. * The benefits of this article do not apply to the person who consented to the infidelity of his spouse or who facilitated the prostitution of his wife.
* IMMEDIATELY THEREAFTER: means that the discovery, escape, pursuit and the killing must all form parts of one continuous act
* The phrase immediately thereafter has been interpreted to mean that between the surprising and the killing of the inflicting of the physical injury, there should be no break of time. In other words, it must be a continuous process. * If there was already a break of time between the sexual act and the killing or inflicting of the injury, the law presupposes that the offender regained his reason and therefore, the article will not apply anymore.
* The killing must be the direct by-product of the rage of the accused
* Article 247 does not provide that the victim is to be killed instantly by the accused after surprising his spouse in the act of intercourse. What is required is that the killing is the proximate result of the outrage
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* No criminal liability is incurred when less serious or slight physical injuries are inflicted. Moreover, in case third persons caught in the crossfire suffer physical injuries, the accused is not liable. The principle that one is liable for the consequences of his felonious act is not applicable because he is not committing a felony
* In the case of People v. Abarca, 153 SCRA 735, two persons suffered physical injuries as they were caught in the crossfire when the accused shot the victim. A complex crime of double frustrated murder was not committed as the accused did not have the intent to kill the two victims. Here, the accused did not commit murder when he fired at the paramour of his wife. Inflicting death under exceptional circumstances is not murder. The accused was held liable for negligence under the first part, second paragraph of Article 365, that is, less serious physical injuries through simple negligence. No aberratio ictus because he was acting lawfully. * A person who acts under Article 247 is not committing a crime. Since this is merely an exempting circumstance, the accused must first be charged with: (1) (2) Parricide if the spouse is killed; Murder or homicide depending on how the killing was done insofar as the paramour or the mistress is concerned; Homicide through simple negligence, if a third party is killed; Physical injuries through reckless imprudence, if a third party is injured.
(3) (4)
* If death results or the physical injuries are serious, there is criminal liability although the penalty is only destierro. The banishment is intended more for the protection of the offender rather than a penalty. * If the crime committed is less serious physical injuries or slight physical injuries, there is no criminal liability.
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* When killing was accomplished by means of fire alleged in the information, it does not qualify killing to Murder unless the use of fire was employed to kill the victim.
In People v. Pugay and Samson, 167 SCRA 439, there was a town fiesta and the two accused were at the town plaza with their companions. All were uproariously happy, apparently drenched with drink. Then, the group saw the victim, a 25 year old retard walking nearby and they made him dance by tickling his sides with a piece of wood. The victim and the accused Pugay were friends and, at times, slept in the same place together. Having gotten bored with their form of entertainment, accused Pugay went and got a can of gasoline and poured it all over the retard. Then, the accused Samson lit him up, making him a frenzied, shrieking human torch. The retard died. It was held that Pugay was guilty of homicide through reckless imprudence. Samson only guilty of homicide, with the mitigating circumstance of no intention to commit so grave a wrong. There was no animosity between the two accused and the victim such that it cannot be said that they resort to fire to kill him. It was merely a part of their fun making but because their acts were felonious, they are criminally liable.
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(5)
* When the actual victim turns out to be different from the intended victim, premeditation is not aggravating. (People vs. Guillen, 85 Phil. 307)
(6) Cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse. Cruelty includes the situation where the victim is already dead and yet, acts were committed which would decry or scoff the corpse of the victim. The crime becomes murder. Hence, this is not actually limited to cruelty. It goes beyond that because even if the victim is already a corpse when the acts deliberately augmenting the wrong done to him were committed, the killing is still qualified to murder although the acts done no longer amount to cruelty. Under Article 14, the generic aggravating circumstance of cruelty requires that the victim be alive, when the cruel wounds were inflicted and, therefore, must be evidence to that effect. Yet, in murder, aside from cruelty, any act that would amount to scoffing or decrying the corpse of the victim will qualify the killing to murder. Illustration: Two people engaged in a quarrel and they hacked each other, one killing the other. Up to that point, the crime is homicide. However, if the killer tried to dismember the different parts of the body of the victim, indicative of an intention to scoff at or decry or humiliate the corpse of the victim, then what would have murder because this circumstance is recognized under Article 248, even though it was inflicted or was committed when the victim was already dead. The following are holdings of the Supreme Court with respect to the crime of murder: (1) Killing of a child of tender age is murder qualified by treachery because the weakness of the child due to his tender age results in the absence of any danger to the aggressor. Evident premeditation is absorbed in price, reward or promise, if without the premeditation the inductor would not have induced the other to commit the act but not as regards the one induced. Abuse of superior strength is inherent in and comprehended by the circumstance of treachery or forms part of treachery. Treachery is inherent in poison. Where one of the accused, who were charged with murder, was the wife of the deceased but here relationship to the deceased was not alleged in the information, she also should be convicted of murder but the relationship should be appreciated as aggravating. Killing of the victims hit by hand grenade thrown at them is murder qualified by explosion not by treachery. Where the accused housemaid gagged a three year old boy, son of her master, with stockings, placed him in a box with head down and legs upward and covered the box with some sacks and other boxes, and the child instantly died because of suffocation, and then the accused demanded ransom from the parents, such did not convert the offense into kidnapping with murder. The accused was well aware that the child could be suffocated to death in a few minutes after she left. Ransom was only a part of the diabolical scheme to murder the child, to conceal his body and then demand money before discovery of the body.
(2)
(3
(4) (5)
(6)
(7)
* The essence of kidnapping or serious illegal detention is the actual confinement or restraint of the victim or deprivation of his liberty. If there is no showing that the accused intended to deprive their victims of their liberty for some time and there being no appreciable interval between their being taken and their being shot, murder and not kidnapping with murder is committed.
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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 249 HOMICIDE
ELEMENTS: 1. That a person was killed. 2. That the accused killed him without any justifying circumstances. 3. That the accused had the intention to kill, which is presumed. 4. That the killing was not attended by any of the qualifying circumstances of murder, or by that of parricide or infanticide. Notes:
* Homicide is the unlawful killing of a person not constituting murder, parricide or infanticide.
* Intent to kill is conclusively presumed when death resulted. Hence, evidence of intent to kill is required only in attempted or frustrated homicide * In all crimes against persons in which the death of the victim is an element, there must be satisfactory evidence of (1) the fact of death and (2) the identity of the victim
Distinction between homicide and physical injuries: In attempted or frustrated homicide, there is intent to kill. In physical injuries, there is none. However, if as a result of the physical injuries inflicted, the victim died, the crime will be homicide because the law punishes the result, and not the intent of the act. The following are holdings of the Supreme Court with respect to the crime of homicide: (1) (2) Physical injuries are included as one of the essential elements of frustrated homicide. If the deceased received two wounds from two persons acting independently of each other and the wound inflicted by either could have caused death, both of them are liable for the death of the victim and each of them is guilty of homicide. If the injuries were mortal but were only due to negligence, the crime committed will be serious physical injuries through reckless imprudence as the element of intent to kill in frustrated homicide is incompatible with negligence or imprudence. Where the intent to kill is not manifest, the crime committed has been generally considered as physical injuries and not attempted or frustrated murder or homicide. When several assailants not acting in conspiracy inflicted wounds on a victim but it cannot be determined who inflicted which would which caused the death of the victim, all are liable for the victims death.
(3)
(4)
(5)
* Note that while it is possible to have a crime of homicide through reckless imprudence, it is not possible to have a crime of frustrated homicide through reckless imprudence.
* If a boxer killed his opponent in a boxing bout duly licensed by the Government without any violation of the governing rules and regulations, there is no Homicide to speak of. If he hit his opponent below the belt without any intention to do so, it is Homicide Through Reckless Imprudence if the latter died as a result. If he intentionally hit his opponent on that part of his body causing the death, the crime is Homicide. * The shooting of a peace officer who was fully aware of the risks in pursuing the malefactors when done in a spur of the moment is only Homicide. (People vs. Porras, 255 SCRA 514).
Common misconception on the meaning of corpus delicti. Corpus delicti means body of the crime. It does not refer to the body of the murdered person. In
all crimes against persons in which the death of the victim is an element of the crime, there must be proof of the fact of death and identity of the victim. (Cortez vs. Court of Appeals, 162 SCRA
139)
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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 250 PENALTY FOR FRUSTRATED PARRICIDE, MURDER OR HOMICIDE Article 251 DEATH IN A TUMULTOUS AFFRAY
ELEMENTS: 1. That there be several persons. 2. That they did not compose groups organized for the common purpose of assaulting and attacking each other reciprocally. 3. That these several persons quarreled and assaulted one another in a confused and tumultuous manner. 4. That someone was killed in the course of the affray. 5. That it cannot be ascertained who actually killed the deceased. 6. That the person or persons who inflicted serious physical injuries or who used violence can be identified. Notes: * Tumultuous affray exists when at least 4 persons take part in it * When there are 2 identified groups of men who assaulted each other, there is no tumultuous affray Persons liable are: a. person/s who inflicted serious physical injuries b. if it is not known who inflicted serious physical injuries on the deceased, all persons who used violence upon the person of the victim * If those who actually killed the victim can be determined, they will be the ones to be held liable, and those who inflicted serious or less serious or slight physical injuries shall be punished for said corresponding offenses provided no conspiracy is established with the killers.
TUMULTUOUS AFFRAY simply means a commotion in a tumultuous and confused manner, to such an extent that it would not be possible to identify who the killer is if death results, or who inflicted the serious physical injury, but the person or persons who used violence are known. * It is not a tumultuous affray which brings about the crime; it is the inability to ascertain actual perpetrator. It is necessary that the very person who caused the death can not be known, not that he can not be identified. Because if he is known but only his identity is not known, then he will be charged for the crime of homicide or murder under a fictitious name and not death in a tumultuous affray. If there is a conspiracy, this crime is not committed. To be considered death in a tumultuous affray, there must be: (1) (2) a quarrel, a free-for-all, which should not involve organized group; and someone who is injured or killed because of the fight.
* The person killed in the affray need not be one of the participants.
* As long as it cannot be determined who killed the victim, all of those persons who inflicted serious physical injuries will be collectively answerable for the death of that fellow. The Revised Penal Code sets priorities as to who may be liable for the death or physical injury in tumultuous affray: (1) The persons who inflicted serious physical injury upon the victim;
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(3)
the crime of physical injuries inflicted in tumultuous affray must be one or some of those involved in the quarrel.
* In physical injuries caused in a tumultuous affray , the conditions are also the same. But you do not have a crime of physical injuries resulting from a tumultuous affray if the physical injury is only slight. The physical injury should be serious or less serious and resulting from a tumultuous affray. So anyone who may have employed violence will answer for such serious or less serious physical injury. * If the physical injury sustained is only slight, this is considered as inherent in a tumultuous affray. The offended party cannot complain if he cannot identify who inflicted the slight physical injuries on him.
* Note that in slight physical injuries is inflicted in the tumultuous affray and the identity of the offender is established, the provisions of this article will not be observed. Instead, the offender shall be prosecuted in the ordinary course of law.
* 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.).
* A pregnant woman who tried to commit suicide by means of poison but instead of dying, the fetus in her womb was expelled, is not liable for abortion
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* Penalty is mitigated if suicide is not successful * Even if the suicide did not materialize, the person giving assistance to suicide is also liable but the penalty shall be one or two degrees lower depending on whether it is frustrated or attempted suicide.
The following are holdings of the Supreme Court with respect to this crime: (1) The crime is frustrated if the offender gives the assistance by doing the killing himself as firing upon the head of the victim but who did not die due to medical assistance. The person attempting to commit suicide is not liable if he survives. The accused is liable if he kills the victim, his sweetheart, because of a suicide pact.
(2)
* This crime cannot be committed through imprudence because it requires that the discharge must be directed at another.
* The offender must shoot at another with any firearm without intention of killing him. If the firearm is not discharged at a person, the act is not punished under this article
* If the firearm is directed at a person and the trigger was pressed but did not fire, the crime is frustrated discharge of firearm. * If the discharge is not directed at a person, the crime may constitute alarm and scandal.
* A discharge towards the house of the victim is not discharge of firearm. On the other hand, firing a gun against the house of the offended party at random, not knowing in what part of the house the people were, it is only alarm under art 155. * Usually, the purpose of the offender is only to intimidate or frighten the offended party * Intent to kill is negated by the fact that the distance between the victim and the offender is 200 yards * A person can be held liable for discharge even if the gun was not pointed at the offended party when it fired for as long as it was initially aimed at or against the offended party
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(2)
* The gun used in the crime must be licensed, or the person using the firearm must be authorized to carry the same, otherwise, in addition to the crime punished under this article, accused may also be held liable for illegal possession of firearm under Republic Act No. 1866 as amended by Republic Act No. 8294.
* When infanticide is committed by the mother or maternal grandmother in order to conceal the dishonor, such fact is only mitigating * The delinquent mother who claims that she committed the offense to conceal the dishonor must be of good reputation. Hence, if she is a prostitute, she is not entitled to a lesser penalty because she has no honor to conceal
* Concealment of dishonor is not an element of infanticide. It merely lowers the penalty. If the child is abandoned without any intent to kill and death results as a consequence, the crime committed is not infanticide but abandonment under Article 276. * If the purpose of the mother is to conceal her dishonor, infanticide through imprudence is not committed because the purpose of concealing the dishonor is incompatible with the absence of malice in culpable felonies. * There is no infanticide when the child was born dead, or although born alive it could not sustain
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3.
> Abortion is the violent expulsion of a fetus from the maternal womb . If the fetus has been delivered but it could not subsist by itself, it is still a fetus and not a person. Thus, if it is killed, the crime committed is abortion not infanticide. Distinction between infanticide and abortion It is infanticide if the victim is already a person less that three days old or 72 hours and is viable or capable of living separately from the mothers womb. It is abortion if the victim is not viable but remains to be a fetus. > Abortion is not a crime against the woman but against the fetus . If mother as a consequence of abortion suffers death or physical injuries, you have a complex crime of murder or physical injuries and abortion. > In intentional abortion, the offender must know of the pregnancy because the particular criminal intention is to cause an abortion. Therefore, the offender must have known of the pregnancy for otherwise, he would not try an abortion. > If the woman turns out not to be pregnant and someone performs an abortion upon her, he is liable for an impossible crime if the woman suffers no physical injury. If she does, the crime will be homicide, serious physical injuries, etc. > Under the Article 40 of the Civil Code, birth determines personality. A person is considered born at the time when the umbilical cord is cut. He then acquires a personality separate from the mother.
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* Take note that while unintentional abortion appears to be a crime that should be committed with deliberate intent because of the requirement that the violence employed on the victim must be intentional, nevertheless, if the circumstances of the case justifies the application of the other means of committing a felony (like culpa), then the same should be applied but the penalty will not be the penalty provided under Article 257. Instead, the offender shall be subject to the penalty prescribed for simple or reckless imprudence under Article 365. * The accused can only be held liable if he knew that the woman was pregnant
- DEBATABLE
In US v. Jeffry, 15 Phil. 391, the Supreme Court said that knowledge of pregnancy of the offended party is not necessary. In People v. Carnaso, decided on April 7, 1964, however, the Supreme Court held that knowledge of pregnancy is required in unintentional abortion. Criticism: Under Article 4, paragraph 1 of the Revised Penal Code, any person committing a felony is criminally liable for all the direct, natural, and logical consequences of his felonious acts although it may be different from that which is intended. The act of employing violence or physical force upon the woman is already a felony. It is not material if offender knew about the woman being pregnant or not. If the act of violence is not felonious, that is, act of self-defense, and there is no knowledge of the womans pregnancy, there is no liability. If the act of violence is not felonious, but there is knowledge of the womans pregnancy, the offender is liable for unintentional abortion. Illustration: The act of pushing another causing her to fall is a felonious act and could result in physical injuries. Correspondingly, if not only physical injuries were sustained but abortion also resulted, the felonious act of pushing is the proximate cause of the unintentional abortion.
* If there is no intention to cause abortion and neither was violence exerted, arts 256 and 257 does not apply
Questions & Answers 1. A pregnant woman decided to commit suicide. She jumped out of a window of a building but she landed on a passerby. She did not die but an abortion followed. Is she liable for unintentional abortion? No. What is contemplated in unintentional abortion is that the force or violence must come from another. If it was the woman doing the violence upon herself, it must be to bring about an abortion, and therefore, the crime will be intentional abortion. In this case, where the woman tried to commit suicide, the act of trying to commit suicide is not a felony under the Revised Penal Code. The one penalized in suicide is the one giving assistance and not the person trying to commit suicide. 2. If the abortive drug used in abortion is a prohibited drug or regulated drug under Presidential Decree No. 6425 (The Dangerous Drugs Act of 1972), as amended, what are the crimes committed? The crimes committed are (1) intentional abortion; and (2) violation of the Dangerous Drugs Act of 1972.
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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 258 ABORTION PRACTICED BY THE WOMAN HERSELF OR BY HER PARENTS
ELEMENTS : 1. That there is a pregnant woman who has suffered an abortion. 2. That the abortion is intended. 3. That the 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 dishonor. Notes: * Liability of the pregnant woman is mitigated if the purpose is to conceal her dishonor. However, there is no Mitigation for the parents of the pregnant women even if their purpose is to conceal their daughters dishonor * In infanticide, parents can avail of the mitigating circumstance of concealing the dishonor of their daughter. This is not so for art 258
Question & Answer What is the liability of a physician who aborts the fetus to save the life of the mother? None. This is a case of therapeutic abortion which is done out of a state of necessity. Therefore, the requisites under Article 11, paragraph 4, of the Revised Penal Code must be present. There must be no other practical or less harmful means of saving the life of the mother to make the killing justified.
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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 260 RESPONSIBILITY OF PARTICIPANTS IN A DUEL
Acts punished: 1. Killing ones adversary in a duel 2. Inflicting upon the adversary serious physical injuries 3. Making a combat although no physical injuries have been inflicted Persons liable: 1. Principals person who killed or inflicted physical injuries upon his adversary, or both combatants in any other cases 2. Accomplices as seconds * The person who killed or injured his adversary. If both survive, both will be liable for the crime of duel as principals by direct participation. The seconds will be held liable as accomplices. Notes: DUEL: a formal or regular combat previously concerted between 2 parties in the presence of 2 or more seconds of lawful age on each side, who make the selection of arms and fix all the other conditions of the fight * If death results, the penalty is the same as that for homicide * While the agreement is to fight to the death, the law will disregard the intent to kill, if only physical injuries is inflicted. The crime will not be classified as attempted or frustrated homicide. * If the accused and the deceased, after a verbal heated argument in a bar, left the place at the same time and pursuant to their agreement, went to the plaza to fight each other to death with knives which they bought on the way, the facts do not constitute the crime of dueling since there were no seconds who fixed the conditions of the fight in a more or less formal manner. If one was killed, the crime committed would be Homicide.
* There is no such crime nowadays because people hit each other even without entering into any preconceived agreement. This is an obsolete provision.
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Elements and Notes in Criminal Law Book II by RENE CALLANTA PHYSICAL INJURIES Article 262 MUTILATION
Kinds of Mutilation 1. Intentionally mutilating another by depriving him, totally or partially, of some essential organ for reproduction 2. Intentionally making another mutilation, i.e. lopping, 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 the body Elements: 1. There be a castration i.e. mutilation of organs necessary for generation 2. Mutilation is caused purposely and deliberately Notes:
MUTILATION is the lopping or clipping off of some part of the body. * The intent to deliberately cut off the particular part of the body that was removed from the offended party must be established. If there is no intent to deprive victim of particular part of body, the crime is only serious physical injury. * The common mistake is to associate this with the reproductive organs only. Mutilation includes any part of the human body that is not susceptible to grow again. * If what was cut off was a reproductive organ, the penalty is much higher than that for homicide. * This cannot be committed through criminal negligence.
* In the first kind of mutilation, the castration must be made purposely. Otherwise, it will be considered as mutilation of the second kind MAYHEM: refers to any other intentional mutilation
What are serious physical injuries: 1. Injured person becomes insane, imbecile, impotent or blind 2. Injured person a. loses the use of speech or the power to hear or to smell, loses an eye, a hand, foot, arm or leg
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* Serious physical injuries may be committed through reckless imprudence or simple imprudence * There must be no intent to kill IMPOTENT should include inability to copulate and sterility BLINDNESS requires lost of vision in both eyes. Mere weakness in vision is not contemplated Loss of power to hear must involve both ears. Otherwise, it will be considered as serious physical injuries under par 3 Loss of use of hand or incapacity of usual work in par 2 must be permanent * Par 2 refers to principal members of the body. Par 3 on the other hand, covers any other member which is not a principal part of the body. In this respect, a front tooth is considered as a member of the body, other than a principal member DEFORMITY: means physical ugliness, permanent and definite abnormality. Not curable by natural means or by nature. It must be conspicuous and visible. Thus, if the scar is usually covered by a dress, it would not be conspicuous and visible * The loss of 3 incisors is a visible deformity. Loss of one incisor is not. However, loss of one tooth which impaired appearance is a deformity * Deformity by loss of teeth refers to injury which cannot be impaired by the action of the nature * Loss of both outer ears constitutes deformity and also loss of the power to hear. Meanwhile, loss of the lobule of the ear is only a deformity * Loss of the index and middle fingers is either a deformity or loss of a member, not a principal one of his body or use of the same * Loss of the power to hear in the right ear is considered as merely loss of use of some other part of the body * If the injury would require medical attendance for more than 30 days, the illness of the offended party may be considered as lasting more than 30 days. The fact that there was medical attendance for that period of time shows that the injuries were not cured for that length of time
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Thus, a father who inflicts serious physical injuries upon his son will be liable for qualified serious physical injuries.
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That the physical injuries must not be those described in the preceding articles
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Republic Act No. 7610 (Special Protection of Children against Child Abuse, Exploitation and Discrimination Act), in relation to murder, mutilation or injuries to a child
The last paragraph of Article VI of Republic Act No. 7610, provides: For purposes of this Act, the penalty for the commission of acts punishable under Articles 248, 249, 2 62 (2) and 263 (1) of Act No 3815, as amended of the Revised Penal Code for the crimes of murder, homicide, other intentional mutilation, and serious physical injuries, respectively, shall be reclusion perpetua when the victim is under twelve years of age. The provisions of Republic Act No. 7160 modified the provisions of the Revised Penal Code in so far as the victim of the felonies referred to is under 12 years of age. The clear intention is to punish the said crimes with a higher penalty when the victim is a child of tender age. Incidentally, the reference to Article 249 of the Code which defines and penalizes the crime of homicide were the victim is under 12 years old is an error. Killing a child under 12 is murder, not homicide, because the victim is under no position to defend himself as held in the case of People v. Ganohon, 196 SCRA 431. For murder, the penalty provided by the Code, as amended by Republic Act No. 7659, is reclusion perpetua to death higher than what Republic Act no. 7610 provides. Accordingly, insofar as the crime is murder, Article 248 of the Code, as amended, shall govern even if the victim was under 12 years of age. It is only in respect of the crimes of intentional mutilation in paragraph 2 of Article 262 and of serious physical injuries in paragraph 1 of Article 263 of the Code that the quoted provision of Republic Act No. 7160 may be applied for the higher penalty when the victim is under 12 years old.
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g. offender knows he is afflicted with HIV or AIDS or any other sexually transmissible disease and the virus is transmitted to the victim h. offender; member of the AFP, or para-military units thereof, or the PNP, or any law enforcement agency or penal institution, when the offender took advantage of his position to facilitate the commission of the crime i. j. victim suffered permanent physical mutilation or disability the offender knew of the pregnancy of the offended party at the time of the commission of the crime; and
k. when the offender knew of the mental disability, emotional disorder and/or physical handicap or the offended party at the time of the commission of the crime Rape committed under par 2 is punishable by: 1. prision mayor 2. prision mayor to reclusion temporal a. use of deadly weapon or b. by two or more persons 3. reclusion temporal when the victim has become insane 4. reclusion temporal to reclusion pepetua rape is attempted and homicide is committed 5. reclusion perpetua homicide is committed by reason or on occasion of rape 6. reclusion temporal committed with any of the 10 aggravating circumstances mentioned above Notes: DIVIDING AGE IN RAPE: a. less than 7 yrs old, mandatory death b. less than 12 yrs old, statutory rape c. less than 18 yrs old and there is relationship (e.g. parent etc); mandatory death * Because of this amendment which reclassified rape as a crime against persons, an impossible crime may now be committed in case of rape; that is, if there is inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means.
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and allowed only attempted rape and consummated rape to remain in our statute books.
* The act of touching should be understood as inherently part of the entry of the penis into the labia of the female organ and not the mere touching alone of the mons pubis or the pudendum. Jurisprudence dictates that the labia majora (or he outer lips of the female organ) must be entered for rape to be consummated, and not merely for the penis to stroke the surface of the female organ. Thus, grazing of the surface of the female organ or touching the mons pubis of the pudendum is not sufficient to constitute rape. ( Pp vs. Campuhan)
Classification of rape !) Traditional concept under Article 335 carnal knowledge with a woman against her will. The offended party is always a woman and the offender is always a man. 2) Sexual assault - committed with an instrument or an object or use of the penis with penetration of mouth or anal orifice. The offended party or the offender can either be man or 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. Since rape is not a private crime anymore, it can be prosecuted even if the woman does not file a complaint. If carnal knowledge was made possible because of fraudulent machinations and grave abuse of authority, the crime is rape. This absorbs the crime of qualified and simple seduction when no force or violence was used, but the offender abused his authority to rape the victim. Under Article 266-C, the offended woman may pardon the offender through a subsequent valid marriage, the effect of which would be the extinction of the offenders liability . Similarly, the legal husband may be pardoned by forgiveness of the wife provided that the marriage is not void ab initio. Obviously, under the new law, the husband may be liable for rape if his wife does not want to have sex with him. It is enough that there is indication of any amount of resistance as to make it rape. Incestuous rape was coined in Supreme Court decisions. It refers to rape committed by an ascendant of the offended woman. In such cases, the force and intimidation need not be of such nature as would be required in rape cases had the accused been a stranger. Conversely, the Supreme Court expected that if the offender is not known to the woman, it is necessary that there be evidence of affirmative resistance put up by the offended woman. Mere no, no is not enough if the offender is a stranger, although if the rape is incestuous, this is enough. The new rape law also requires that there be a physical overt act manifesting resistance, if the offended party was in a situation where he or she is incapable of giving valid consent, this is admissible in evidence to show that carnal knowledge was against his or her will. When the victim is below 12 years old, mere sexual intercourse with her is already rape. Even if it was she who wanted the sexual intercourse, the crime will be rape. This is referred to as statutory rape.
If the victim however is exactly twelve (12) years old (she was raped on her birthday) or more, and there is consent, there is no rape. However, Republic Act No. 7610, Sec. 5 (b) provides that: Even if the victim is over twelve (12) year old and the carnal act was with her consent as long as she falls under the classification of a child exploited in prostitution and other sexual abuse, the crime is rape.
In other cases, there must be force, intimidation, or violence proven to have been exerted to bring about carnal knowledge or the woman must have been deprived of reason or otherwise unconscious.
It is not necessary that the force or intimidation employed be so great or of such character as could not be resisted it is only necessary that it be sufficient to consummate the purpose which the accused had in mind. (People vs. Canada, 253 SCRA 277). Carnal knowledge with a woman who is asleep constitutes Rape since she was either deprived of reason or otherwise unconscious at that time. (People vs. Caballero, 61 Phil. 900). Sexual intercourse with an insane, deranged or mentally deficient, feeble-minded or idiotic woman is Rape pure and simple. The deprivation of reason contemplated by law need not be complete; mental abnormality or deficiency is sufficient.
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The new law, R.A. 8353, added new circumstance that is, when carnal knowledge was had by means of fraudulent machinations or grave abuse of authority. It would seem that if a woman of majority age had sexual intercourse with a man through the latters scheme of pretending to marry her which is the condition upon which the woman agreed to have sex with him, manipulating a sham marriage, the man would be guilty of Rape under this Section. So also, a prostitute who willingly had sexual congress with a man upon the latters assurance that she would be paid handsomely, may be guilty of Rape if later on he refuses to pay the said amount. A person in authority who maneuvered a scheme where a woman landed in jail, and who upon promise of being released after having sex with the officer, willingly consented to the sexual act, may also be found guilty of Rape under this new section. IN RAPE CASES, COURT MUST ALWAYS BE GUIDED BY THE FOLLOWING PRINCIPLES: 1. An accusation of rape can be made with facility; it is difficult to prove, but more difficult for the person accused, though innocent, to disprove; 2. In view of the intrinsic nature of the crime where only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; and 3. The evidence for the prosecution must stand or fall on its own merits, and cannot be allowed to draw strength from the weakness of the evidence for the defense. (People vs. Ricafort)
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Elements and Notes in Criminal Law Book II by RENE CALLANTA TITLE NINE CRIMES AGAINST PERSONAL LIBERTY AND SECURITY
Crimes against liberty 1. Kidnapping and serious illegal detention (Art. 267); 2. Slight illegal detention (Art. 268); 3. Unlawful arrest (Art. 269); 4. Kidnapping and failure to return a minor (Art. 270); 5. Inducing a minor to abandon his home (Art. 271); 6. Slavery (Art. 272); 7. Exploitation of child labor (Art. 273); 8. Services rendered under compulsion in payment of debts (Art. 274). Crimes against security 1. Abandonment of persons in danger and abandonment of one's own victim (Art. 275); 2. Abandoning a minor (Art. 276); 3. Abandonment of minor by person entrusted with his custody; indifference of parents (Art. 277); 4. Exploitation of minors (Art. 278); 5. Trespass to dwelling (Art. 280); 6. Other forms of trespass (Art. 281); 7. Grave threats (Art. 282); 8. Light threats (Art. 283); 9. Other light threats (Art. 285); 10. Grave coercions (Art. 286); 11. Light coercions (Art. 287); 12. Other similar coercions (Art. 288); 13. Formation, maintenance and prohibition of combination of capital or labor through violence or threats (Art. 289); 14. Discovering secrets through seizure of correspondence (Art. 290); 15. Revealing secrets with abus of office (Art. 291); 16. Revealing of industrial secrets (Art. 292).
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(2)
(3)
Palattao notes: When the person is deprived of his liberty or is seized and forcibly taken to another place, the inquiry would, be what is the purpose of the offender in taking him or her away:
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make the arrest and detention without authority to do so; or without acting in his official capacity.
* This felony consists in making an arrest or detention without legal or reasonable ground for the purpose of delivering the offended party to the proper authorities. * The offended party may also be detained but the crime is not illegal detention because the purpose is to prosecute the person arrested. The detention is only incidental; the primary criminal intention of the offender is to charge the offended party for a crime he did not actually commit. * Generally, this crime is committed by incriminating innocent persons by the offenders planting evidence to justify the arrest a complex crime results, that is, unlawful arrest through incriminatory machinations under Article 363.
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* In art 125, the detention is for some legal ground while here, the detention is not authorized by law * In art 125, the crime pertains to failure to deliver the person to the proper judicial authority within the prescribed period while here, the arrest is not authorized by law
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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 272 SLAVERY
ELEMENTS: 1. That the offender purchases. Sells, kidnaps or detains a human being. 2. That the purpose of the offender is to enslave such human being. SLAVERY is the treatment of a human being as a mere property, stripped of dignity and human rights. The person is reduced to the level of an ordinary animal, a mere chattel with material value capable of pecuniary estimation and for which reason, the offender purchases and sells the same. Note: Qualifying circumstance if the purpose of the offender is to assign the offended party to some immoral traffic (prostitution), the penalty is higher
* This is distinguished from illegal detention by the purpose. If the purpose of the kidnapping or detention is to enslave the offended party, slavery is committed. * The crime is slavery if the offender is not engaged in the business of prostitution. If he is, the crime is white slave trade under Article 341.
Involuntary servitude or service. In this article, no distinction is made whether the offended
is a minor or an adult.
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Elements and Notes in Criminal Law Book II by RENE CALLANTA CRIMES AGAINST SECURITY Article 275 ABANDONMENT OF PERSON IN DANGER AND ABANDONMENT OF ONES OWN VICTIM
Acts punishable: 1. By failing to render assistance to any person whom the offender finds in an inhabited 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 Elements a. That place is not inhabited. b. c. d. The accused found there a person wounded or in danger of dying. The accused can render assistance without detriment to himself. The accused fails to render assistance.
2. By failing to help or render assistance to another whom the offender has accidentally wounded or injured 3. By failing to deliver a child, under 7 whom the offender has found abandoned, to the authorities or to his family, or by failing to take him to a safe place
* Under the first act, the offender is liable only when he can render such assistance without detriment to himself, unless such omission shall constitute a more serious offense . Where the person is already wounded and already in danger of dying, there is an obligation to render assistance only if he is found in an uninhabited place. If the mortally wounded, dying person is found in a place not uninhabited in legal contemplation, abandonment will not bring about this crime. An uninhabited place is determined by possibility of person receiving assistance from another . Even if there are many houses around, the place may still be uninhabited if possibility of receiving assistance is remote. * If what happened was an accident at first, there would be no liability pursuant to Article 12 (4) of the RPC damnum absque injuria. But if you abandon your victim, you will be liable under Article 275. Here, the character of the place is immaterial. As long as the victim was injured because of the accident caused by the offender, the offender would be liable for abandonment if he would not render assistance to the victim.
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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 277 ABANDONMENT OF MINOR BY PERSON ENTRUSTED WITH HIS CUSTODY; INDIFFERENCE OF PARENTS
Acts punished: 1. By delivering a minor to a public institution or other persons w/o 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 Elements: a. That the offender has charged of the rearing or education of a minor. b. That he delivers said minor to a public institution or other persons. c. That 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. 2. By neglecting his (offenders) children by not giving them education which their station in life requires and financial condition permits Elements: a. That the offender is a parent. b. That he neglects his children by not giving them education. c. That his station in life requires such education and his financial condition permits it.
Indifference of parents while they are financially capable of supporting the needs of their
children, they deliberately neglect to support the educational requirements of these children through plain irresponsibility caused by wrong social values.
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ADDITIONAL PENALTIES FOR OTHER OFFENSES: (279) Article 280 QUALIFIED TRESPASS TO DWELLING
ELEMENTS: 1. That the offender is a private person. 2. That he enters the dwelling of another. 3. That such entrance is against the latters will. Notes:
DWELLING This is the place that a person inhabits. It includes the dependencies which have interior communication with the house. It is not necessary that it be the permanent dwelling of the person. So, a persons room in a hotel may be considered a dwelling. It also includes a room where one resides as a boarder.
Qualifying circumstance: if the offense is committed by means of violence or intimidation, the penalty is higher * There must be an opposition to the entry of the accused
* 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.
* Lack of permission to enter a dwelling does not amount to prohibition. So, one who enters a building is not presumed to be trespasser until the owner tells him to leave the building. In such a case, if he refuses to leave, then his entry shall now be considered to have been made without the express consent of the owner. (People vs. De Peralta, 42 Phil. 69) * Even if the door is not locked, for as long as it is closed, the prohibition is presumed especially if the entry was done at the late hour of the night or at an unholy hour of the day. (U. S. vs. Mesina, 21 Phil. 615) * Implied prohibition is present considering the situation late at night and everyones asleep or entrance was made through the window
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.
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* When there is no overt act of the crime intended to be committed, this is the crime
* If the purpose in entering the dwelling is not shown, trespass is committed. If the purpose is shown, it may be absorbed in the crime as in robbery with force upon things, the trespass yielding to the more serious crime. But if the purpose is not shown and while inside the dwelling he was found by the occupants, one of whom was injured by him, the crime committed will be trespass to dwelling and frustrated homicide, physical injuries, or if there was no injury, unjust vexation.
* May be committed even by the owner (as against the actual occupant) * Even if the house belonged to the accused, if the possession has been delivered to another by reason of contract or by a mere tolerance, his being the owner would not authorize him to enter the house against the will of the lawful occupant. His ownership is no authority for him to place the law in his hands. (People vs. Almeda, 75 Phil. 476)
Distinction between qualified trespass to dwelling and violation of domicile Unlike qualified trespass to dwelling, violation of domicile may be committed only by a public officer or employee and the violation may consist of any of the three acts mentioned in Article 128 (1) entering the dwelling against the will of the owner without judicial order; (2) searching papers or other effects found in such dwelling without the previous consent of the owner thereof; and (3) refusing to leave the dwelling when so requested by the owner thereof, after having surreptitiously entered such dwelling.
Not applicable to: a. entrance is for the purpose of preventing harm to himself, the occupants or a third person b. purpose is to render some service to humanity or justice c. place is a caf, tavern etc while open
* Pursuant to Section 6, Rule 113 of the Rules of Court, a person who believes that a crime has been committed against him has every right to go after the culprit and arrest him without any warrant even if in the process he enters the house of another against the latters will.
Medina case: when the accused entered the dwelling through the window, he had no intent to kill any person inside, but the intention to kill came to his mind when he was being arrested by the occupants thereof, the crime of trespass to dwelling is a separate and distinct offense from frustrated homicide
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Elements and Notes in Criminal Law Book II by RENE CALLANTA THREATS and COERCIONS Article 282 GRAVE THREATS
Acts punishable: 1. By threatening another with the infliction upon his person, honor or property that of his family of any wrong amounting to a crime and demanding money or imposing any other condition, even though not unlawful and the offender (Note: threat is with condition) Elements a. 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. b. That such wrong amounts to a crime. c. That there is a demand for money or that any other condition is imposed, even though not unlawful. d. That the offender attains his purpose. 2. By making such threat without the offender attaining his purpose 3. By 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 (Note: threat is without condition) Elements a. 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. b. That such wrong amounts to a crime. c. That the threat is not subject to a condition Notes:
Intimidation is an indispensable element in the crime of threat. The very essence of threat is
to sow fear, anxiety and insecurity in the mind of the offended party. It is done by threatening to commit the crime upon the person, honor and property of the offended party. There is a promise of some future harm or injury. Aggravating circumstances: if made in writing or thru a middleman Frustrated if not received by the person being threatened * Art 284 bond for good behavior may be imposed (only in these offenses) Ortega Notes:
Threat is a declaration of an intention or determination to injure another by the commission upon his person, honor or property or upon that of his family of some wrong which may or may not amount to a crime: (1) Grave threats when the wrong threatened to be inflicted amounts to a crime. The case falls under Article 282. Light threats if it does not amount to a crime. The case falls under Article 283.
(2)
But even if the harm intended is in the nature of a crime, if made orally and in the heat of anger and after the oral threat, the issuer of the threat did not pursue the act, the crime is only other light threats under Article 285.
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(2)
(3)
(4)
(5)
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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 284 BOND FOR GOOD BEHAVIOR
* The law imposes the penalty of bond for good behavior only in case of grave and light threats. If the offender can not post the bond, he will be banished by way of destierro to prevent him from carrying out his threat.
* Bond for good behavior means the posting of bond on the part of the accused in order to
guarantee that he will not molest the offended party. It is in the nature of an additional penalty.
* Bond to keep peace under Article 35 is applicable to all cases and is treated as a distinct
penalty. If the sentenced prisoner fails to give the bond, he shall be detained for a period not exceeding six months if the crime for which he was convicted is classified as grave felony or for a period not exceeding thirty days if convicted for a light felony.
2.
* In grave coercion, the act of preventing by force must be made at the time the offended party was doing or was about to do the act to be prevented.
* Grave coercion arises only if the act which the offender prevented another to do is not prohibited by law or ordinance. If the act prohibited was illegal, he is not liable for grave coercion.
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UNJUST VEXATION
* In unjust vexation, any act committed without violence, but which unjustifiably annoys or vexes an innocent person amounts to light coercion. * As a punishable act, unjust vexation should include any human conduct which, although not productive of some physical or material harm would, however, unjustifiably annoy or vex an innocent person. * It is distinguished from grave coercion under the first paragraph by the absence of violence. Illustration: Persons stoning someone elses house. So long as stoning is not serious and it is intended to annoy, it is unjust vexation. It disturbs the peace of mind.
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Article 289 FORMATION, MAINTENANCE, AND PROHIBITION OF COMBINATION OF CAPITAL OR LABOR THROUGH VIOLENCE OR THREATS
ELEMENTS: 1. That the 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. That the purpose is to organize, maintain or prevent coalitions of capital or labor, strike of laborers or lockout of employees. * Peaceful picketing is part of the freedom of speech and is not covered by this article. * Preventing employees or laborers from joining any registered labor organization is punished under Art. 248 of the Labor Code.
DISCOVERY AND REVELATION OF SECRETS Article 290 DISCOVERING SECRETS THROUGH SEIZURE OF CORRESPONDENCE
ELEMENTS: 1. That the offender is a private individual or even a public officer not in the exercise of his official function,
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Circumstances qualifying the offense: when the offender reveals contents of such papers or letters of another to a 3rd person, the penalty is higher
Distinction from estafa, damage to property, and unjust vexation: If the act had been executed with intent of gain, it would be estafa; If, on the other hand, the purpose was not to defraud, but only to cause damage to anothers, it would merit the qualification of damage to property; If the intention was merely to cause vexation preventing another to do something which the law does not prohibit or compel him to execute what he does not want, the act should be considered as unjust vexation.
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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 292 REVELATION OF INDUSTRIAL SECRETS
ELEMENTS: 1. That the offender is a person in charge, employee or workman of a manufacturing or industrial establishment. 2. That the manufacturing or industrial establishment has a secret of the industry which the offender has learned. 3. That the offender reveals such secrets. 4. That the prejudice is caused to the owner.
* A business secret must not be known to other business entities or persons. It is a matter to be discovered, known and used by and must belong to one person or entity exclusively. One who merely copies their machines from those already existing and functioning cannot claim to have a business secret, much less, a discovery within the contemplation of Article 292.
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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 293 ROBBERY IN GENERAL
ELEMENTS: 1. That there be personal property belonging to another. 2. That there is unlawful taking of that property. 3. That the taking must be with intent to gain, and 4. That there is violence against or intimidation of any person, or force upon anything. Notes:
ROBBERY This is the taking or personal property belonging to another, with intent to gain, by means of violence against, or intimidation of any person, or using force upon anything.
Two kinds of robbery: 1) robbery with violence or intimidation and 2) robbery with force upon
things. Belonging to another person from whom property was taken need not be the owner, legal possession is sufficient * The property must be personal property and cannot refer to real property. * Name of the real owner is not essential so long as the personal property taken does not belong to the accused except if crime is robbery with homicide * The owner of the property may be held liable for robbery where he forcible takes the property from the possession of the bailee with intent to charge the latter with its value. (U. S. vs. Albao, 29 Phil. 86) * In the absence of any explanation as to how one has come into possession of stolen effects belonging to a person wounded and treacherously killed, the possessor must necessarily be considered the author of the aggression and death of the victim as well as of the robbery committed. (People vs. Rapuela. G. R. NO. 85178, March 15, 1990) Suppose the property is res nullus or without an owner? The crime of robbery or theft cannot be committed if the property is without an owner for the simple reason that no one can be prejudiced by the taking of the personal property, even though the intent to gain is present in the taking. Taking of personal property must be unlawful; if given in trust estafa * The taking of the property must be coupled with the intention to permanently deprive the offended party of his possession of the things taken. (People vs. Kho Choc, C. A., 50 O. G. 1667) As to robbery with violence or intimidation from the moment the offender gains possession of the thing even if offender has had no opportunity to dispose of the same, the unlawful taking is complete As to robbery with force upon things thing must be taken out of the building Intent to gain presumed from unlawful taking * Intent to gain may be presumed from the unlawful taking of anothers property. However, when one takes a property under the claim of ownership or title, the taking is not considered to be with intent to gain. (U. S. vs. Manluco, et al., 28 Phil. 360) * When theres no intent to gain but there is violence in the taking grave coercion * Violence or intimidation must be against the person of the offended party, not upon the thing
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Robbery Bribery X didnt commit crime but is intimidated to X has committed a crime and gives deprive him of his property money as way to avoid arrest or prosecution Deprived of money thru force or intimidation Giving of money is in one sense voluntary Neither Transaction is voluntary and mutual Ex. defendant demands payment of P2.00 with threats of arrest and prosecution, therefore, robbery because (a) intent to gain and (b) immediate harm ANTI CARNAPPING ACT ( RA # 6539 )
Carnapping is the taking, with intent to gain, of a motor vehicle belonging to another
without the latters consent, or by means of violence against or intimidation of persons, or by using force upon things.
Any vehicle which is motorized using the streets which are public, not exclusively for private use is covered within the concept of motor vehicle under the Anti-Carnapping Law. A tricycle which is not included in the enumeration of exempted vehicles under the Carnapping Law is deemed to be motor vehicle as defined in the law, the stealing of which comes within its penal sanction. If the vehicle uses the streets with or without the required license, the same comes within the protection of the law, for the severity of the offense is not to be measured by what kind of street or highway the same is used but by the nature of the vehicle itself and the case to which it is devoted. (Izon, et al., vs. People, 107 SCRA 118)
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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 294 ROBBERY WITH VIOLENCE AGAINST OR INTIMIDATION OF PERSON
Acts punished as robbery with violence against or intimidation of persons By reason or on occasion of the robbery, the following are committed: 1. homicide 2. robbery accompanied with rape or intentional mutilation, SPI insane, imbecile, impotent or blind 3. SPI lost the use of speech, hear, smell, eye, hand, foot, arm, leg, use of any such member, incapacitated for work habitually engaged in 4. Violence/intimidation shall have been carried to a degree clearly unnecessary for the crime or when in the cause of its execution SPI/deformity, or shall have lost any part of the body or the use thereof or shall have been ill or incapacitated for the performance of the work for > 90 days; > 30 days 5. Any kind of robbery with less serious physical injuries or slight physical injuries Notes: SPECIAL COMPLEX CRIMES (specific penalties prescribed)
c. Still robbery with homicide if the person killed was an innocent bystander and not the person robbed and if death supervened by mere accident. * The original criminal design of the culprit must be Robbery and the Homicide is perpetrated with a view to the consummation of the Robbery.
* If death results or even accompanies a robbery , the crime will be robbery with homicide provided that the robbery is consummated.
* As long as the criminal objective or plan is to rob, whether the killing committed by reason or on occasion thereof is intentional or accidental, the crime is Robbery with Homicide. ( Pp vs. Pecato, 151 scra 14 ) As long as there was killing when Robbery was taking place, Robbery with Homicide was committed, the killing occurring on the occasion thereof. Problem: A, B, C and D robbed a bank. When they were about to flee, policemen came, and they traded shots with them. If one of the policemen was killed, the offense is Robbery with Homicide. If one of the robbers was the one killed, the remaining robbers shall be charged also with Robbery with Homicide. If a bank employee was the one killed either by the robbers or by the policemen in the course of the latters action of arresting or trying to arrest the robbers, the crime is still Robbery with Homicide. * As long as the criminal intent is to rob, that is, robbery was the real motive, the offense would still be classified as Robbery with Homicide even if the killing preceded or was done ahead of the robbing. (People vs. Tolentino, 165 SCRA 490). * Thus, as a member of the agaw-armas gang whose plan and design is to rob a policeman of his service revolver, but because he fears that said policeman may beat him to the draw, first shoots the policeman
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* If robbery is proved but the homicide is not proven, the accused should be convicted of
robbery only and the penalty shall not be based under paragraph 1 but on paragraph 5 of the same article, since only intimidation or violence was employed and it did not result in any of the situations mentioned in paragraphs 1 to 4.
* If the robbery is not proven but the homicide is established, then the accused should be held
liable only for homicide and the penalty shall be taken from Article 249, which deals with crimes against property, so, if several homicides are alleged in the information for robbery with homicide, and all of these homicides are proven beyond reasonable doubt, the court will impose a separate penalty for each of the homicide that is established by the evidence. (People vs. Barruga, 61 Phil. 318) * It is important to remember that the special complex crime of robbery with homicide is committed, where there exists a direct relation, an intimate connection between the robbery and the killing, irrespective of whether the killing be prior or subsequent to the robbery; or whether both crimes were committed at the same time. (People vs. Puesca, 87 SCRA 130)
* Robbery with homicide need not be committed inside a building. What constitutes the crime as
robbery with homicide is the killing of a person on the occasion or by reason of the taking of personal property belonging to another with intent to gain. * The killing on the occasion of robbery may come in different forms. 1) It may be done by the offender for the purpose of suppressing evidence, like when the victim is killed because he happens to know the person of the offender; or 2) when the killing is done in order to prevent or remove any opposition which the victim may put up as regards the taking of his personal belongings. 3) The killing may also result from the offenders defense of his possession of the stolen goods. 4) Or it may be resorted to by the offender to facilitate his escape after the commission of the robbery. * In People vs. Macalalad, 9 Phil. (1907), the Supreme Court ruled that whenever homicide is
committed as a consequence or on the occasion of a robbery, all those who took part in the commission of the robbery are guilty as principals in the crime of robbery with homicide unless it appears that the principal claiming innocence in the killing, has attempted or tried to prevent the killing. The burden of proving the attempt to prevent others from killing the victim rests on the
co-principal of the crime who makes such assertion or claim. * The same principle has been applied by the Supreme Court where the crime committed is robbery accompanied by rape. The criminal liability of the person or persons who took no part in
the commission of the rape which accompanied the robbery is the same as the robber or robbers who actually committed the rape unless the robber or robbers claiming innocence of the rape had endeavored to prevent the commission of the rape. (People vs. Tiongco, 37 Phil. 95)
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* Pardon by the offended party will not alter the criminal liability of the offender because in robbery with rape, the crime committed is not a crime against chastity but a crime against property. Even under the present amendment which classifies rape as a crime against person, the change has no legal effect on the provision of Article 294 since the special complex crime of robbery with rape is considered, by express provision of law, a single crime notwithstanding that there is a plurality of crimes committed.
* If the rape is attempted, since it will be a separate charge and the offended woman pardoned the offender, that would bring about a bar to the prosecution of the attempted rape. If the offender married the offended woman, that would extinguish the criminal liability because the rape is the subject of a separate prosecution. * The intention must be to commit robbery and even if the rape is committed before the robbery, robbery with rape is committed. But if the accused tried to rape the offended party and because of resistance, he failed to consummate the act, and then he snatched the vanity case from her hands when she ran away, two crimes are committed: attempted rape and theft. * There is no complex crime under Article 48 because a single act is not committed and attempted rape is not a means necessary to commit theft and vice-versa. * The Revised Penal Code does not differentiate whether rape was committed before, during or after the robbery. It is enough that the robbery accompanied the rape. Robbery must not be a mere accident or afterthought.
* If the two (2) crimes were separated both by time and place, there is no complex crime of Robbery with Rape. Thus, when complainant went out of her room about 1:30 a.m. to urinate, one of the accused grabbed her, poked an icepick on her neck , and dragged her out of the house and was made to board a taxi; and before boarding, she saw the two (2) companions of the man carrying her typewriter and betamax and then joining them in the taxi, and that after alighting from the taxi, the two (2) companions left her, and the man who had grabbed her brought her to a motel, where by means of force and intimidation he was able to have sex with her, the crimes committed are Robbery and Forcible Abduction with Rape. The Rape committed cannot be complexed with Robbery. (People vs. Angeles, 222 SCRA 451).
* In People v. Flores, 195 SCRA 295, although the offenders plan was to get the victims money, rape her and kill her, but in the actual execution of the crime, the thoughts of depriving the victim of her valuables was relegated to the background and the offenders prurient desires surfaced. They pers isted in satisfying their lust. They would have forgotten about their intent to rob if not for the accidental touching of the victims ring and wristwatch. The taking of the victims valuables turned out to be an afterthought. It was held that two distinct crimes were committed: rape with homicide and theft. * In People v. Dinola, 183 SCRA 493, it was held that if the original criminal design of the accused was to commit rape and after committing the rape, the accused committed robbery because the opportunity presented itself, two distinct crimes rape and robbery were committed not robbery with rape. In the latter, the criminal intent to gain must precede the intent to rape.
* If rape was the primary objective of the accused and the taking of her jewelries was not done with intent to gain but as a token of her supposed consent to the sexual intercourse, the accused is guilty of two distinct crimes: rape and unjust vexation. (People vs. Villarino, C. A. G. R. No. 6342-R, Nov. 26, 1951)
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Elements and Notes in Criminal Law Book II by RENE CALLANTA ROBBERY WITH INTIMIDATION
* acts done by the accused which by their own nature or by reason of the circumstances inspire fear in the person against whom they are directed * In the taking of personal property, it is necessary that violence must be employed by the offender in order that the taking may be considered as robbery. So, where the taking is without violence or intimidation and the same is complete, but the victim pursued the offender in order to recover the personal property taken and by the reason thereof, he suffers less serious or slight physical injuries in the hands of the offender, the violence employed on the victim which resulted to his injuries will not convert the taking of his personal property to robbery. In such a case, the offender is liable for two crimes, namely, theft and less serious or slight physical
injuries.
* The intimidation must be present at the time of the taking before it is completed. If the taking is completed without intimidation and it is employed by the offender only to prevent the owner from recovering his stolen property, two crimes are committed by the offender: theft and grave
threat.
* If violence is employed against the offended party in order to deprive him of his personal property and the violence resulted to the infliction of less serious or slight physical injuries, the crime committed would only be robbery. Hence, there is no crime of robbery with less serious or slight injuries. (U. S. vs. Barroga, 21 Phil 161)
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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 297 ATTEMPTED OR FRUSTRATED ROBBERY WITH HOMICIDE
Notes: * Whether robbery is attempted or frustrated, penalty is the same * When the robbery is attempted or frustrated, Art. 294 has no application because the robbery and the homicide must be both consummated. * Where the homicide is only attempted or frustrated, Article 297 does not apply. In the same manner, where the attempted or frustrated robbery results in the commission of serious physical injuries, Article 297 has no application. In such a case, the crime shall be treated under the provisions of Article 48 on ordinary complex crimes. Consequently, the penalty prescribed by Article 48 shall be observed.
Article 299 ROBBERY IN AN INHABITED HOUSE OR PUBLIC BUILDING OR EDIFICE DEVOTED TO WORSHIP
ELEMENTS: 1. That the offender entered (a) an inhabited house, or (b) public buildings, or (c) edifice devoted to religious worship. 2. That the 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 breaking any 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. 3. That once inside the building, the offender took personal property belonging to another with intent to gain. Notes: * In this kind of Robbery, no violence or intimidation against persons is ever used. * Includes dependencies (stairways, hallways, etc.) * A small store located on the ground floor of a house is a dependency of the house, there being no partition between the store and the house and in going to the main stairway, one has to enter the store which has a door. (U.S. vs. Ventura, 39 Phil. 523).
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* The term force upon things has a legal meaning. It means the employment of force to effect entrance into the house or building by destroying the door, window, roof, wall or floor of the aforesaid house or building. In other words, the force upon things has no reference to personal
* Entrance is necessary mere insertion of hand is not enough (whole body); not to get out but to enter therefore, evidence to such effect is necessary
Two predicates that will give rise to the crime as robbery: 1. 2. By mere entering alone, a robbery will be committed if any personal property is taken from within; The entering will not give rise to robbery even if something is taken inside. It is the breaking of the receptacle or closet or cabinet where the personal property is kept that will give rise to robbery, or the taking of a sealed, locked receptacle to be broken outside the premises.
* If by the mere entering, that would already qualify the taking of any personal property inside as robbery, it is immaterial whether the offender stays inside the premises. The breaking of things inside the premises will only be important to consider if the entering by itself will not characterize the crime as robbery with force upon things. * Modes of entering that would give rise to the crime of robbery with force upon things if something is taken inside the premises: entering into an opening not intended for entrance or egress, under Article 299 (a). Illustration: The entry was made through a fire escape. The fire escape was intended for egress . The entry will not characterize the taking as one of robbery because it is an opening intended for egress, although it may not be intended for entrance. If the entering were done through the window, even if the window was not broken, that would characterize the taking of personal property inside as robbery because the window is not an opening intended for entrance. Illustration: On a sari-sari store, a vehicle bumped the wall. The wall collapsed. There was a small opening there. At night, a man entered through that opening without breaking the same . The crime will already be robbery if he takes property from within because that is not an opening intended for the purpose. Even of there is a breaking of wall, roof, floor or window, but the offender did not enter, it would not give rise to robbery with force upon things. * Note that in the crime of robbery with force upon things, what should be considered is the means of entrance and means of taking the personal property from within. If those means do not come within the definition under the Revised Penal Code, the taking will only give rise to theft. * Those means must be employed in entering. If the offender had already entered when these means were employed, anything taken inside, without breaking of any sealed or closed receptacle, will not give rise to robbery.
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P v. Lamahang intent to rob being present is necessary Place: house or building; not car PUBLIC BUILDING every building owned, rented or used by the government (though owned by private persons) though temporarily vacant * Not robbery passing through open door but getting out of a window * If accused entered the house through a door, and it was while escaping that he broke any wall, floor or window after taking personal property inside the house there is no Robbery committed, only Theft. * Outside door must be broken, smashed. Theft if lock is merely removed or door was merely pushed
* Breaking of the door under Article299 (b) Originally, the interpretation was that in order that there be a breaking of the door in contemplation of law, there must be some damage to the door. * Before, if the door was not damaged but only the lock attached to the door was broken, the taking from within is only theft. But the ruling is now abandoned because the door is considered useless without the lock. Even if it is not the door that was broken but only the lock, the breaking of the lock renders the door useless and it is therefore tantamount to the breaking of the door. Hence, the taking inside is considered robbery with force upon things.
FALSE KEYS genuine keys stolen from the owner or any keys other than those intended by the owner for use in the lock PICKLOCKS specially made, adopted for commission of robbery KEY stolen not by force, otherwise, its robbery by violence and intimidation against persons * False key used in opening house and not furniture inside, otherwise, theft (for latter to be robbery., must be broken and not just opened)
* Use of picklocks or false keys refers to the entering into the premises If the picklock or false key was used not to enter the premises because the offender had already entered but was used to unlock an interior door or even a receptacle where the valuable or personal belonging was taken, the use of false key or picklock will not give rise to the robbery with force upon things because these are considered by law as only a means to gain entrance, and not to extract personal belongings from the place where it is being kept.
> E.g. pretending to be police to be able to enter (not pretending after entrance)
* When the robbery is committed in a house which is inhabited, or in a public building or in a place devoted to religious worship, the use of fictitious name or pretension to possess authority in order to gain entrance will characterize the taking inside as robbery with force upon things.
* If A and B told the occupant of the house that they were the nephews of the spouse of the owner of the house, and because of that, the closed door was opened, or that they were NBI agents executing a warrant
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ELEMENTS OF ROBBERY WITH FORCE UPON THINGS, SUBDIVISION (B) ART. 299
1. That the offender is inside a dwelling house, public building, or edifice devoted to religious worship, regardless of the circumstances under which he entered it 2. That the offender takes personal property belonging to another with intent to gain, under any of the following circumstances. a. by the breaking of doors, wardrobes, chests, or any other kind of locked or sealed furniture or receptacle, or b. by taking such furniture or objects away to be broken or forced open outside the place of the robbery. Notes: * Entrance ( no matter how done)
* If the entering does not characterize the taking inside as one of robbery with force upon things, it is the conduct inside that would give rise to the robbery if there would be a breaking of sealed, locked or closed receptacles or cabinet in order to get the personal belongings from within such receptacles, cabinet or place where it is kept.
* Offender may be servants or guests * A friend who has invited in a house and who enters a room where he finds a closed cabinet where money is kept, is guilty of robbery if he forcibly opens the said cabinet and takes the money contained therein. * When sealed box is taken out for the purpose of breaking it, no need to open already consummated robbery Estafa if box is in the custody of accused Theft if box found outside and forced open
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Article 301 WHAT IS AN INHABITED HOUSE, PUBLIC BUILDING OR BUILDING DEDICATED TO RELIGIOUS WORSHIP AND THEIR DEPENDENCIES
Notes:
Inhabited house Any shelter, ship, or vessel constituting the dwelling of one or more persons, even though the inhabitants thereof shall temporarily be absent therefrom when the robbery is committed. Public building Includes every building owned by the government or belonging to a private person but used or rented by the government, although temporarily unoccupied by the same.
dependencies are all interior courts, corrals, warehouses, granaries or enclosed places: a. contiguous to the building b. having an interior entrance connected therewith c. which form part of the whole Garage must have 3 requirements. Exception: orchards/lands
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Article 303 ROBBERY OF CEREALS, FRUITS OR FIRE WOOD IN AN UNINHABITED PLACE OR PRIVATE BUILDING
* Under Article 303, if the robbery under Article 299 and 302 consists in the taking of cereals, fruits, or firewood, the penalty imposable is lower.
* The word cereals however must be understood to mean seedlings or semilla. It does not include hulled rice. It may include palay or unhulled palay. * While the law uses the term uninhabited place, it however refers to uninhabited building and its dependencies. If the cereals, fruits or firewood were taken outside a building and its dependencies, the crime committed would only be theft even though the taking was done in an uninhabited place.
Supposing that in the crime of robbery, the offender used a picklock to enter a building. Can he be charged of illegal possession of picklocks or similar tools? The answer is NO since the same
possession of these tools is already absorbed in the graver crime of robbery.
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Presumption of Brigandage: a. if members of lawless band and possession of unlicensed firearms (any of them) b. possession of any kind of arms (not just firearm) BRIGANDAGE ROBBERY IN BAND Purposes are given Only to commit robbery, not necessarily in hi-way Mere formation of a band for If the purpose is to commit a part robbery the above purpose Necessary to prove that band actually committed robbery * There is no need for the band robbers to execute the object of their association in order to hold them criminally liable for the crime of brigandage.
* The primary object on the law on brigandage is to prevent the formation of bands of robbers.
Hence, if the formed band commits robbery with the use of force upon persons or force upon things, their criminal liability shall be limited to the commission of such crimes.
* Likewise, if the offenders are charged with robbery but the same is not established by the evidence and what appears clear are the elements of brigandage where the allegation in the information necessarily includes such offense, the offender can be convicted of the crime of brigandage. * It does not mean however that to constitute violation of P.D. 532, there must be a band. One or two persons can be held liable under this law if they perpetrated their acts of depredation in Philippine Highways against persons who are not pre-determined victims.
* If the agreement among more than three armed men is to commit a particular robbery, brigandage is not committed because the latter must be an agreement to commit robbery in general or indiscriminately.
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(2)
* Brigandage under Presidential Decree No. 532 refers to the actual commission of the robbery on the highway and can be committed by one person alone. It is this brigandage which deserves some attention because not any robbery in a highway is brigandage or highway robbery. A distinction should be made between highway robbery/brigandage under the decree and ordinary robbery committed on a highway under the Revised Penal Code. * In People v. Puno, decided February 17, 1993, the trial court convicted the accused of highway robbery/ brigandage under Presidential Decree No. 532 and sentenced them to reclusion perpetua. On appeal, the Supreme Court set aside the judgment and found the accused guilty of simple robbery as punished in Article 294 (5), in relation to Article 295, and sentenced them accordingly. The Supreme Court pointed out that the purpose of brigandage is, inter alia, indiscriminate highway robbery. And that PD 532 punishes as highway robbery or Brigandage only acts of robbery perpetrated by outlaws indiscriminately against any person or persons on a Philippine highway as defined therein, not acts committed against a predetermined or particular victim. A single act of robbery against a particular person chosen by the offender as his specific victim, even if committed on a highway, is not highway robbery or brigandage. * In US v. Feliciano, 3 Phil. 422, it was pointed out that highway robbery or brigandage is more than ordinary robbery committed on a highway. The purpose of brigandage is indiscriminate robbery in highways. If the purpose is only a particular robbery, the crime is only robbery or robbery in band, if there are at least four armed participants. * Presidential Decree No. 532 introduced amendments to Article 306 and 307 by increasing the penalties. It does not require at least four armed persons forming a band of robbers. It does not create a presumption that the offender is a brigand when he an unlicensed firearm is used unlike the Revised Penal Code. But the essence of brigandage under the Revised Penal Code is the same as that in the Presidential Decree, that is, crime of depredation wherein the unlawful acts are directed not only against specific, intended or preconceived victims, but against any and all prospective victims anywhere on the highway and whoever they may potentially be.
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Elements and Notes in Criminal Law Book II by RENE CALLANTA THEFT Article 308 THEFT
ELEMENTS: 1. That there be taking of personal property. 2. That said property belongs to another. 3. That the taking be done with intent to gain. 4. That the taking be done without the consent of the owner. 5. That the taking be accomplished without the use of violence against or intimidation of persons or force upon things. PERSONS LIABLE: 1. Those who a) with intent to gain b) But without violence against or intimidation of persons nor force upon things c) take personal property of another d) without the latters consent The taking from an enclosed corral of a carabao belonging to another, after force is employed to destroy a part of the corral to enter the same, is considered merely as theft because corral is not a building nor a dependency of a building. (U. S. vs. Rosales, et al., 1 Phil. 300)
2. Those who a) having found lost property b) fail to deliver the same to local authorities or its owner Notes: * Retention of money/property found is theft. Retention is failure to return (intent to gain) * The word lost is used in the generic sense. It embraces loss by stealing or any act of a person other than the owner, as well as the act of the owner, or through some casual occurrence. (People vs. Rodrigo, 16 SCRA 475) * The felony is not limited to the actual finder. Theft of a lost property may be committed even by a person who is not the actual finder. (People vs. Avila, 44 Phil. 720) * Knowledge of owner is not required, knowledge of loss is enough * It is not necessary that the owner of the lost property be known to the accused. What is important is that he knows or has reason to know that the property was lost and for this fact alone, it is his duty to turn it over to the authorities. If he does otherwise, like, if he sells the thing to another, then the crime of theft is committed. * Finder in law is liable
Hidden Treasure
Under Article 438 and 439 of the Civil Code, the finder of hidden treasure on the property of another and by chance is entitled to one-half of the treasure that he found. His duty is to tell the owner about the treasure. If he appropriates the other half pertaining to the owner of the property, he is liable for theft as to that share. (People vs. Longdew, C. A. G. R. No. 9380-R, June 4, 1953)
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4. Those who a) enter an enclosed estate or a field where b) trespass is forbidden or which belongs to another and, without the consent of its owner c) hunts or fish upon the same or gather fruits, cereals or other forest or farm products Notes: Theft is consummated when offender is able to place the thing taken under his control and in such a situation as he could dispose of it at once (though no opportunity to dispose) i.e, the control test * In the crime of theft, the law makes only of the term taking and not taking away. The non-inclusion of the word away is significant because it means that as soon as the culprit takes
possession of the things taken by him, the crime of theft is already consummated since the law does not require that the thief be able to carry away the thing taken from the owner. (People vs.
Jaranilla, 55 SCRA 563)
* The consummation of the crime of theft takes place upon the voluntary and malicious taking of the property belonging to another which is realized by the material occupation of the thing. The property need not be actually taken away by the thief. It is enough that he has obtained, at some particular moment, complete control and possession of the thing desired, adverse to the right of the lawful owner. (People vs. Naval, 46 O. G. 2641) P v. Dino applies only in theft of bulky goods (meaning there has to be capacity to dispose of the things). Otherwise, P v. Espiritu full possession is enough * Servant using car without permission deemed qualified theft though use was temporary Reyes says: there must be some character of permanency in depriving owner of the use of the object and making himself the owner, therefore must exclude joyride Theft: if after custody (only material possession) of object was given to the accused, it is actually taken by him (no intent to return) e.g. felonious conversion. But it is estafa if juridical possession is transferred e.g., by contract of bailment
* Juridical possession of a thing is transferred to another when he receives the thing in trust or
on commission or for administration, or under a quasi-contract or a contract of bailment. When possession by the offender is under any of these circumstances and he misappropriates the thing received, he cannot be held guilty of theft but of estafa because here, he has both the physical and juridical possession of the property. * Includes electricity and gas a. inspector misreads meter to earn b. one using a jumper
Personal Property
Personal property in the crime of theft includes electric current or properties that may have no material or concrete appearance. The test is not whether the subject is corporeal or incorporeal
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Gain means the acquisition of a thing useful for the purpose of life. It includes the benefit which
in any other sense may be derived or expected from the act performed. * Actual gain is not necessary (intent to gain necessary) * Allege lack of consent in info is important
Consent as an element of the crime of theft must be in the concept of consent that is freely
given and not one which is inferred from mere lack of opposition on the part of the owner. * Where the charge of theft under the first sentence of Article 308, the information must allege lack of consent. The allegation of lack of consent is indispensable under the first paragraph of Article 308 since the language or epigraph of the law expressly requires that the (unlawful) taking should be done without the consent of the owner. In view of the clear text of the law, an information which does not aver lack of consent of the owner would render the allegation insufficient and the information may be quashed for failure to allege an essential element of the crime. (Pua Yi Kun vs. People, G. R. No. 26256, June 26, 1968)
Presumption:
A person found in possession of a thing taken in the recent doing of a wrongful act is the taker of the thing and the doer of the whole act. * Possession is not limited to actual personal custody. One who deposits stolen property in a place where it cannot be found may be deemed to have such property in his possession.
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Elements and Notes in Criminal Law Book II by RENE CALLANTA ELEMENTS OF HUNTING, FISHING OR GATHERING FRUITS, ETC. IN ENCLOSED ESTATE (PAR. NO.3, ART. 308)
1. That there is an enclosed estate or a field where trespass is forbidden or which belongs to another; 2. That the offender enters the same. 3. That the offender hunts or fishes upon the same or gathers fruits, cereals or other forest or farm products, and 4. That the hunting or fishing or gathering of products is without the consent of the owner. Note: Fish not in fishpond, otherwise, qualified Ortega Notes:
Fencing under Presidential Decree No. 1612 is a distinct crime from theft and robbery. If the participant who profited is being prosecuted with person who robbed, the person is prosecuted as an accessory. If he is being prosecuted separately, the person who partook of the proceeds is liable for fencing. In People v. Judge de Guzman, it was held that fencing is not a continuing offense. Jurisdiction is with the court of the place where the personal property subject of the robbery or theft was possessed, bought, kept, or dealt with. The place where the theft or robbery was committed was inconsequential. Since Section 5 of Presidential Decree No. 1612 expressly provides that mere possession of anything of value which has been subject of theft or robbery shall be prima facie evidence of fencing, it follows that a possessor of stolen goods is presumed to have knowledge that the goods found in his possession after the fact of theft or robbery has been established. The presumption does not offend the presumption of innocence in the fundamental law. This was the ruling in Pamintuan v. People, decided on July 11, 1994. Burden of proof is upon fence to overcome presumption; if explanation insufficient or unsatisfactory, court will convict. This is a malum prohibitum so intent is not material. But if prosecution is under the Revised Penal Code, as an accessory, the criminal intent is controlling. When there is notice to person buying, there may be fencing such as when the price is way below ordinary prices; this may serve as notice. He may be liable for fencing even if he paid the price because of the presumption. Cattle Rustling and Qualified Theft of Large Cattle The crime of cattle-rustling is defined and punished under Presidential Decree No. 533, the Anti-Cattle Rustling law of 1974, as the taking by any means, method or scheme, of any large cattle, with or without intent to gain and whether committed with or without violence against or intimidation of person or force upon things, so long as the taking is without the consent of the owner/breed thereof. The crime includes the killing or taking the meat or hide of large cattle without the consent of the owner. Since the intent to gain is not essential, the killing or destruction of large cattle, even without taking any part thereof, is not a crime of malicious mischief but cattle-rustling. The Presidential Decree, however, does not supersede the crime of qualified theft of large cattle under Article 310 of the Revised Penal Code, but merely modified the penalties provided for theft of large cattle and, to that extent, amended Articles 309 and 310. Note that the overt act that gives rise to the crime of cattle-rustling is the taking or killing of large cattle. Where the large cattle was not taken, but received by the offender from the owner/overseer thereof, the crime is not cattle-rustling; it is qualified theft of large cattle. Where the large cattle was received by the offender who thereafter misappropriated it, the crime is qualified theft under Article 310 if only physical or material possession thereof was yielded to him. If both material and juridical possession thereof was yielded to him who misappropriated the large cattle, the crime would be estafa under Article 315 (1b). Presidential Decree No. 533 is not a special law in the context of Article 10 of the Revised Penal Code. It merely modified the penalties provided for theft of large cattle under the Revised Penal Code and amended Article 309 and 310. This is explicit from Section 10 of the Presidential Decree. Consequently, the trial court should not have convicted the accused of frustrated murder separately from cattle-rustling, since the former should have been absorbed by cattle-rustling as killing was a result of or on the occasion of cattle-rustling. It should only be an aggravating circumstance. But because the information did not allege the injury, the same can no longer be appreciated; the crime should, therefore be only, simple cattle-rustling. (People v. Martinada, February 13, 1991)
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Elements and Notes in Criminal Law Book II by RENE CALLANTA PENALTIES FOR QUALIFIED THEFT; (309)
* The basis of the penalty is the value of the things stolen. * If the property has some value but is not proven with reasonable certainty, the minimum penalty shall be imposed under par. 6 of Art. 309 (People vs. Reyes, 58 Phil. 964). * When there is no evidence as to the value of the property stolen, the court is allowed to take judicial knowledge of the value of such property. (People vs. dela Cruz, 43 O. G. 3206) * When the resulting penalty for the accessory to the crime of theft has no medium period, the court can impose the penalty which is found favorable to the accused. (Cristobal vs. People, 84 Phil. 473).
* In the case of abuse of confidence, the latter must be grave in order to comply with the requirement of the law because abuse of confidence is not enough. There must be an allegation
in the information that there is a relation between the accused and the offended party wherein the latter confided his security as to his person, life and property to the accused with such degree of confidence and that the accused abused the same.
* Abuse of confidence is determined from the trust reposed by the offended party to the offender. It may also refer to the nature of the work of the offender which must necessarily
involve trust and confidence.
* Abuse of confidence is also an element of estafa. To avoid confusion between theft with abuse
of confidence (qualified theft) and estafa with abuse of confidence, where the offender misappropriates a thing after he receives it from the victim, the student must remember that in
qualified theft, only the physical or material possession of the thing is transferred. If the offender acquires the juridical as well as the physical possession of the thing and he misappropriates it, the crime committed is estafa. Juridical possession of the thing is acquired
when one holds the thing in trust, or on commission, or for administration or under any other obligation involving the duty to deliver or to return the thing received. If the possession of the offender is not under any of these concepts, the crime is qualified theft. * no confidence, not qualified theft
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transfers ownership of the property to the possessor, any misappropriation made by the possessor will not result in the commission of any crime, either for theft of estafa.
Qualified: if done by one who has access to place where stolen property is kept e.g., guards, tellers * novation theory applies only if theres a relation * industrial partner is not liable for QT (estafa) * when accused considered the deed of sale as sham (modus) and he had intent to gain, his absconding is QT * motor vehicle in kabit system sold to another-theft. Motor vehicle not used as PU in kabit system but under K of lease-estafa
On carnapping and theft of motor vehicle
When the subject is motor vehicle, the Theft becomes qualified. Under R.A. 6539, Anti-Carnapping Act of 1972, the term motor vehicle includes, within its protection, any vehicle which uses the streets, with or without the required license, or any vehicle which is motorized using the streets, such as a motorized tricycle. (Izon vs. People, 107 SCRA 123)
* The taking with intent to gain of a motor vehicle belonging to another, without the latters consent, or by means of violence or intimidation of persons, or by using force upon things is penalized as carnapping under Republic Act No. 6539 (An Act Preventing and Penalizing Carnapping), as amended. The overt act which is being punished under this law as carnapping is also the taking of a motor vehicle under circumstances of theft or robbery. If the motor vehicle was not taken by the offender but was delivered by the owner or the possessor to the offender, who thereafter misappropriated the same, the crime is either qualified theft under Article 310 of the Revised Penal Code or estafa under Article 315 (b) of the Revised Penal Code. Qualified theft of a motor vehicle is the crime if only the material or physical possession was yielded to the offender; otherwise, if juridical possession was also yielded, the crime is estafa.
* mail matter private mail to be QT, Not postmaster Art. 226 * theft of large cattle
Article 311 THEFT OF PROPERTY OF THE NATIONAL LIBRARY AND NATIONAL MUSEUM
USURPATION Article 312 OCCUPATION OF REAL PROPERTY OR USURPATION OF REAL RIGHTS IN PROPERTY
Acts punished: 1. Taking possession of any real property belonging to another by means of violence against or intimidation of persons; Usurping any real rights in property belonging to another by means of violence against or intimidation of persons.
2.
ELEMENTS: 1. That the offender takes possession of any real property or usurps any real rights in property. 2. That the real property or real rights belong to another.
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* Since this is a crime against property, there must be intent to gain. In the absence of the intent to gain, the act may constitute Coercion.
* Use the degree of intimidation to determine the degree of the penalty to be applied for the usurpation. * Usurpation under Article 312 is committed in the same way as robbery with violence or intimidation of persons. The main difference is that in robbery, personal property is involved; while in usurpation of real rights, it is real property. (People v. Judge Alfeche, July 23, 1992)
* The possession of the land or real rights must be done by means of violence or intimidation. So, if the evidence of the prosecution shows that the accused entered the premises by means of strategy, stealth or methods other than the employment of violence, no crime was committed by the offender. (People vs. Alfeche, Jr., 211 SCRA 770)
* Usurpation of real rights and property should not be complexed using Article 48 when violence or intimidation is committed. There is only a single crime, but a two-tiered penalty is prescribed to be determined on whether the acts of violence used is akin to that in robbery in Article 294, grave threats or grave coercion and an incremental penalty of fine based on the value of the gain obtained by the offender.
* There is no crime of threat and usurpation of real property since threat is an indispensable element of usurpation of real rights. Hence, where threats are uttered to the owner of real property by one illegally occupying it, the crime committed is not the complex crime of usurpation of real property with grave threats because making a threat is an inherent element of usurpation of real property. (Castrodes vs. Cubelo, 83 SCRA 670)
* The complainant must be the person upon whom violence was employed. If a tenant was occupying the property and he was threatened by the offender, but it was the owner who was not in possession of the property who was named as the offended party, the same may be quashed as it does not charge an offense. The owner would, at most, be entitled to civil recourse only. On squatting According to the Urban Development and Housing Act, the following are squatters: 1. Those who have the capacity or means to pay rent or for legitimate housing but are squatting anyway; Also the persons who were awarded lots but sold or lease them out; Intruders of lands reserved for socialized housing, pre-empting possession by occupying the same.
2. 3.
* Note that violation of Article 312 is punishable only with fine. So, if physical injuries are inflicted on the victim due to the violence employed by the offender in the usurpation of real rights, the latter shall be punished separately for the crime of physical injuries. * Violence employed results to the death of the offended party. When such eventuality does occur, then the crime may rightfully be denominated as usurpation of real rights resulting to homicide, murder, parricide, or infanticide as the case may be.
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Elements and Notes in Criminal Law Book II by RENE CALLANTA CULPABLE INSOLVENCY Article 314 FRAUDULENT INSOLVENCY (culpable insolvency)
ELEMENTS 1. That the offender is a debtor; that is, he was obligations due and payable. 2. That he absconds with his property. 3. That there be prejudice to his creditors. * To be liable for fraudulent insolvency, the disposal of the merchandise must be done with malice. The mere circumstance that a person has disposed of his merchandise by removing them from the place where they were kept would necessarily imply fraud. What is required is actual prejudice to the creditor. The intention of the accused alone is not enough. (People vs. Guzman, C. A. 40 O. G. 2655) * The law does not require the offender to be a merchant. The law says any person, and this refers to anyone who becomes a debtor and performs the acts made punishable by the law. * The property which the offender may abscond which consists of both real and personal property. (People vs. Chong Chuy Lingobo, 45 Phil. 372) * The law on fraudulent insolvency is different from the Insolvency Law. For the Insolvency Law to apply, the criminal act must have been committed after the institution of the insolvency proceedings against the offending debtor. But under the present article, there is no requirement that the accused should be adjudged bankrupt or insolvent.
B. ELEMENTS OF ESTAFA WITH UNFAITHFULNESS: (315) 1. That the 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. * The accused does not receive the goods but delivers a thing under an onerous obligation which is not in accordance with the substance, quantity or quality agreed upon. It is the altering
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* It is necessary in this kind of estafa, for the money, goods or personal property to have been received by the offender in trust, or on commission or for administration. He must acquire both material or physical as well as juridical possession of the thing received. In these instances, the
offender, who is the transferee, acquires a right over a thing which he may set up even against the owner.
* A money market transaction however partakes of the nature of a loan, and non-payment thereof would not give rise to criminal liability for Estafa through misappropriation or conversion. In money market placements, the unpaid investor should institute against the middleman or dealer, before the ordinary courts, a simple action for recovery of the amount he had invested, and if there is allegation of fraud, the proper forum would be the Securities and Exchange Commission. (Sesbreno vs. Court of Appeals, et al., 240 SCRA 606).
2ND ELEMENT OF ESTAFA WITH ABUSE OF CONFIDENCE UNDER PARAGRAPH (B), SUBDIVISION N0.1, ART. 315 = 3 WAYS OF COMMITTING:
D. 1. By misappropriating the thing received. 2. By converting the thing received. 3. By denying that the thing was received. Notes: Unfaithfulness or Abuse of Confidence a. by altering the substance b. existing obligation to deliver even if it is not a subject of lawful commerce c. thing delivered has not been fully or partially paid for not estafa c. no agreement as to quality No estafa if delivery is unsatisfactory
By misappropriating and converting a. thing is received by offender under transactions transferring juridical possession, not ownership
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g. Converting act of using or disposing of anothers property as if it was ones own; thing has been devoted for a purpose or use different from that agreed upon h. There must be prejudice to another not necessary that offender should obtain gain * There is no estafa through negligence. There is likewise no estafa where the accused did not
Partners No estafa of money or property received for the partnership when the business is commercial and profits accrued. BUT if property is received for specific purpose and is misappropriated estafa! Failure to account after the DEMAND is circumstantial evidence of misappropriation
j.
k. DEMAND is not a condition precedent to existence of estafa when misappropriation may be established by other proof l. In theft, upon delivery of the thing to the offender, the owner expects an immediate return of the thing to him otherwise, Estafa
m. Servant, domestic or employee who misappropriates a thing he received from his master is NOT guilty of estafa but of qualified theft When in the prosecution for malversation the public officer is acquitted, the private individual allegedly in conspiracy with him may be held liable for estafa MALVERSATION offenders are entrusted with funds or property and are continuing offenses Funds: public funds or property Offender: public officer accountable for public funds Committed by appropriating, taking, misappropriating
ESTAFA WITH ABUSE OF CONFIDENCE Offenders are entrusted with funds or property and are continuing offenses Funds: always private Offender: private individual, or public officer not accountable Committed by misappropriating, converting, denying having received money
E. ELEMENTS OF ESTAFA BY TAKING UNDUE ADVANTAGE OF THE SIGNATURE IN BLANK: (315) 1. That the paper with the signature of the offended party be in blank. 2. That the offended party should have delivered it to 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.
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F. ELEMENTS OF ESTAFA BY MEANS OF DECEIT: (315) 1. that there must be a false pretense, fraudulent means must be made or executed prior to or 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. That the 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. That as a result thereof, the offended party suffered damage. Notes: FALSE PRETENSES OR FRAUDULENT ACTS executed prior to or simultaneously with delivery of the thing by the complainant * There must be evidence that the pretense of the accused that he possesses power/influence is false * The representation that accused possessed influence, to deceive and inveigle the complainant into parting with his money must however be false to constitute deceit under No. 2 of Article 315, RPC. (Dela Cruz vs. Court of Appeals, et al., 265 SCRA 299).
Elements of estafa by means of false pretenses or fraudulent acts under Article 315 (2) Acts punished under paragraph (a) 1. 2. Using fictitious name; Falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions; or By means of other similar deceits.
3.
* In the prosecution of estafa under Article 315, no. 2(a), it is indispensable that the element of
deceit consisting in the false statement or fraudulent representation of the accused, be made prior to, before or at least simultaneously with the delivery of the thing by the offended party. The added requirement that such false statement or fraudulent representation constitutes the very motive or the only reason or cause which induces the offended party to part with the thing
while they may be false representation after the delivery of the goods or the thing by the aggrieved party, such false statement or false representation, no matter how fraudulent and obnoxious it may appear, cannot serve as a basis for prosecution under this category of estafa. For the case to prosper against the accused, the prosecution must prove two indispensable elements: deceit and damage to another. (Celino vs. Court of Appeals, 163 SCRA 97) CREDIT means the ability to buy things or merchandise on the basis of ones character, capacity to pay or goodwill in the business community. So, if it is used to deceive another and the deception is the principal reason for the delivery of the goods which results in damage to the offended party, the crime committed is estafa.
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Under paragraph (c) Pretending to have bribed any government employee, without prejudice to the action for calumny which the offended party may deem proper to bring against the offender.
G. ELEMENTS OF ESTAFA BY POSTDATING A CHECK OR ISSUING A CHECK IN PAYMENT OF AN OBLIGATION: (315) 1. That the offender postdated a check, or issued a check in payment of an obligation. 2. That such postdatig 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. Notes:
Note that this only applies if (1) (2) The obligation is not pre-existing; The check is drawn to enter into an obligation; (Remember that it is the check that is supposed to be the sole consideration for the other party to have entered into the obligation. For example, Rose wants to purchase a bracelet and draws a check without insufficient funds. The jeweler sells her the bracelet solely because of the consideration in the check.) (3) It does not cover checks where the purpose of drawing the check is to guarantee a loan as this is not an obligation contemplated in this paragraph
* The check must be genuine. If the check is falsified and is cashed with the bank or exchanged for cash, the crime is estafa thru falsification of a commercial document. * The general rule is that the accused must be able to obtain something from the offended party by means of the check he issued and delivered. Exception: when the check is issued not in payment of an obligation. * It must not be promissory notes, or guaranties.
* good faith is a defense. (PP. VS. VILLAPANDO, 56 PHIL.31) * dishonor for lack of funds - prima facie evidence of deceit or failure to make good within three days after notice of.
* If the checks were issued by the defendant and he received money for them, then stopped payment and did not return the money, and he had an intention to stop payment when he issued the check, there is estafa. * Deceit is presumed if the drawer fails to deposit the amount necessary to cover the check within three days from receipt of notice of dishonor or insufficiency of funds in the bank.
* If check was issued in payment of pre-existing debt no estafa * It is therefore essential that the check be issued in payment of a simultaneous obligation. The check in question must be utilized by the offender in order to defraud the offended party. So, if the check was issued in payment of a promissory note which had matured and the check was dishonored, there is not estafa since the accused did not obtain anything by means of said check. (People vs. Canlas, O. G. 1092)
* If a bouncing check is issued to pay a pre-existing obligation, the drawer is liable under B. P. Blg. 22 which does not make any distinction as to whether a bad check is issued in payment of
an obligation or to guarantee an obligation. (Que vs. People, 73217-18, Sept. 21, 1987)
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BP 22
1. That a person makes or draws and issues any check. 2. That the check is made or drawn and issued to apply on account or for value. 3. That the person who makes or draws and issues the check knows at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment. 4. That the check is subsequently dishonored by the drawee bank for insufficiency of funds or credit, or would have been dishonored for the same reason had not the drawee, without any valid reason, ordered the bank to stop payment. Note: Failure to make good within 5 banking days prima facie evidence of knowledge of lack and insufficiency
SECTION 1: BP 22
1. That a person has sufficient funds in or credit with the drawee bank when he makes or draws and issues a check.
2. That he fails to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of 90 days from the date appearing thereon.
3. That the check is dishonored by the drawee bank. Note: Failure to make good within 5 banking days prima facie evididence of knowledge of lack and insufficiency
Distinction between estafa under Article 315 (2) (d) of the Revised Penal Code and violation of Batas Pambansa Blg. 22: (1) Under both Article 315 (2) (d) and Batas Pambansa Blg. 22, there is criminal liability if the check is drawn for non-pre-existing obligation. If the check is drawn for a pre-existing obligation, there is criminal liability only under Batas Pambansa Blg. 22. (2) Estafa under Article 315 (2) (d) is a crime against property while Batas Pambansa Blg. 22 is a crime against public interest. The gravamen for the former is the deceit employed, while in the latter, it is the issuance of the check. Hence, there is no double jeopardy. In the estafa under Article 315 (2) (d), deceit and damage are material, while in Batas Pambansa Blg. 22, they are immaterial. In estafa under Article 315 (2) (d), knowledge by the drawer of insufficient funds is not required, while in Batas Pambansa Blg. 22, knowledge by the drawer of insufficient funds is reqired.
(3)
(4)
* When is there prima facie evidence of knowledge of insufficient funds? * There is a prima facie evidence of knowledge of insufficient funds when the check was presented within 90 days from the date appearing on the check and was dishonored.
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b.
* The drawee must cause to be written or stamped in plain language the reason for the dishonor. * If the drawee bank received an order of stop-payment from the drawer with no reason, it must be stated that the funds are insufficient to be prosecuted here.
* If the drawer has valid reasons for stopping payment, he cannot be held criminally liable under B.P. Blg. 22.
* The unpaid or dishonored check with the stamped information re: refusal to pay is prima facie evidence of (1) the making or issuance of the check; (2) the due presentment to the drawee for payment & the dishonor thereof; and (3) the fact that the check was properly dishonored for the reason stamped on the check. On issuance of a bouncing check The issuance of check with insufficient funds may be held liable for estafa and Batas Pambansa Blg. 22. Batas Pambansa Blg. 22 expressly provides that prosecution under said law is without prejudice to any liability for violation of any provision in the Revised Penal Code. Double Jeopardy may not be invoked because a violation of Batas Pambansa Blg. 22 is a malum prohibitum and is being punished as a crime against the public interest for undermining the banking system of the country, while under the Revised Penal Code, the crime is malum in se which requires criminal intent and damage to the payee and is a crime against property. In estafa, the check must have been issued as a reciprocal consideration for parting of goods (kaliwaan). There must be concomitance. The deceit must be prior to or simultaneous with damage done, that is, seller relied on check to part with goods. If it is issued after parting with goods as in credit accommodation only, there is no estafa. If the check is issued for a pre-existing obligation, there is no estafa as damage had already been done. The drawer is liable under Batas Pambansa Blg. 22. For criminal liability to attach under Batas Pambansa Blg. 22 , it is enough that the check was issued to "apply on account or for value" and upon its presentment it was dishonored by the drawee bank for insufficiency of funds, provided that the drawer had been notified of the dishonor and inspite of such notice fails to pay the holder of the check the full amount due thereon within five days from notice. Under Batas Pambansa Blg. 22, a drawer must be given notice of dishonor and given five banking days from notice within which to deposit or pay the amount stated in the check to negate the presumtion that drawer knew of the insufficiency. After this period, it is conclusive that drawer knew of the insufficiency, thus there is no more defense to the prosecution under Batas Pambansa Blg. 22. * The mere issuance of any kind of check regardless of the intent of the parties, whether the check is intended to serve merely as a guarantee or as a deposit, makes the drawer liable under Batas Pambansa Blg. 22 if the check bounces. As a matter of public policy, the issuance of a worthless check is a public nuisance and must be abated.
* Each act of drawing and issuing a bouncing check constitutes a violation of B. P. Blg. 22.
* In De Villa v. CA, decided April 18, 1991, it was held that under Batas Pambansa Blg. 22, there is no distinction as to the kind of check issued. As long as it is delivered within Philippine territory, the Philippine courts have jurisdiction. Even if the check is only presented to and dishonored in a Philippine bank, Batas Pambansa Blg. 22 applies. This is true in the case of dollar or foreign currency checks. Where the law makes no distinction, none should be made. * In People v. Nitafan, it was held that as long as instrument is a check under the negotiable instrument law, it is covered by Batas Pambansa Blg. 22. A memorandum check is not a promissory note, it is a check which have the word memo, mem, memorandum written across the face of the check which signifies that if the holder upon maturity of the check presents the same to the drawer, it will be paid absolutely. But there is no prohibition against drawer from depositing memorandum check in a bank. *
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* Cross checks do not make them non-negotiable and therefore they are within the coverage of
B. P. Blg. 22.
* The law does not distinguish between foreign and local checks. (De Villa vs. Court of Appeals, et al., 195 SCRA 722).
* But overdraft or credit arrangement may be allowed by banks as to their preferred clients and Batas Pambansa Blg. 22 does not apply. If check bounces, it is because bank has been remiss in honoring agreement. * The check must be presented for payment within a 90-day period. If presented for payment beyond the 90 day period and the drawers funds are insufficient to cover it, there is no Batas Pambansa Blg. 22 violation. * Where check was issued prior to August 8, 1984, when Circular No. 12 of the Department of the Justice took effect, and the drawer relied on the then prevailing Circular No. 4 of the Ministry of Justice to the effect that checks issued as part of an arrangement/agreement of the parties to guarantee or secure fulfillment of an obligation are not covered by Batas Pambansa Blg. 22, no criminal liability should be incurred by the drawer. Circular should not be given retroactive effect. (Lazaro v. CA, November 11, 1993, citing People v. Alberto, October 28, 1993)
b. 3. a.
b. c.
* Failure to pay food or accommodation in a hotel, restaurant or inn usually gives rise to civil liability but if the intent to defraud is clear like a surreptitious removal of baggage from the hotel, or resorting to deceitful means to evade payment, the act shall be punished criminally as Estafa.
K. ELEMENTS OF ESTAFA BY INDUCING ANOTHER TO SIGN ANY DOCUMENTS : (315) 1. That the offender induced the offended party to sign a document. 2. That deceit be employed to make him sign the document. 3. That the offended party personally signed the document. 4. That prejudice be caused. Note: If offended party willingly signed the document and there was deceit as to the character or contents of the document falsification; but where the accused made representation to mislead the complainants as to the character of the documents - estafa
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L. ELEMENTS OF ESTAFA BY REMOVING, CONCEALING OR DESTROYING DOCUMENTS: (315) 1. That there be court records, office files, documents or any other papers. 2. That the offender removed, concealed or destroyed any of them. 3. That the offender had intent to defraud another. * In order to commit a crime, the offender must have the intention to defraud. In other words, the removal, concealment or destruction of the court record should be done with the intent to defraud the victim. This is distinguished from the crime of removal, concealment or destruction
of documents under Article 226 wherein fraud is not an element of the crime, and which is committed only by public officers. What is punished under this Article is the damage to public
interest. * If the act of removing, concealing or destroying results from hatred, revenge, or other evil motive, the crime committed is malicious mischief under Article 327. Note: No intent to defraud destroying or removal = malicious mischief When a lawyer, pretending to verify a certain pleading in a case pending before a court, borrows the folder of the case, and removes or destroys a document which constitute evidence in the said case, said lawyer is guilty of Estafa under par. 3 (c) of Article 315, RPC.
SYNDICATED ESTAFA.
A syndicate of five or more persons formed with intent to carry out an unlawful or illegal act, transaction or scheme and defraudation which results in misappropriation of money contributed by stockholders or members of rural banks, cooperatives, samahang nayon or formers association; or funds contributed by corporations or associations for the general welfare.
M. DAMAGE OR PREJUDICE CAPABLE OF PECUNIARY ESTIMATION : (315) (second element of any form of estafa) THE ELEMENTS OF DAMAGE OR PREJUDICE MAY CONSIST OF THE FF.: 1. The offender party being deprived of his money or property, as a result of the defraudation. 2. Disturbance in property right or 3. Temporary prejudice.
ELEMENTS OF SWINDLING (PAR.1) BY CONVEYING, SELLING, ENCUMBERING, OR MORTGAGING ANY REAL PROPERTY, PRETENDING TO BE THE OWNER OF THE SAME: (316)
N. 1. That the thing be immovable, such as a parcel of land or a building. 2. That the offender who is not the owner of said property represented that he is the owner thereof. 3. That the offender should have executed an act of ownership (selling, leasing, encumbering or mortgaging the real property). 4. That the act be made to the prejudice of the owner or a third person.
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P. ELEMENTS OF SWINDLING (PAR.3) BY WRONGFULLY TAKING BY THE OWNER HIS PERSONAL FROM ITS LAWFUL POSSESSOR: (316) 1. That the offender is the owner of personal property. 2. That said personal property is in the lawful possession of another. 3. That the offender wrongfully takes it from its lawful possessor. 4. That prejudice is thereby caused to the possessor or third person.
Under paragraph 4 by executing any fictitious contract to the prejudice of another Under paragraph 5 by accepting any compensation for services not rendered or for labor not performed
ENCUMBERING REAL PROPERTY OR PROPERTIES WITH WHICH THE OFFENDER GUARANTEED THE FULFILLMENT OF HIS OBLIGATION AS SURETY:
(316) 1. That the offender is a surety in a bond given in a criminal or civil action. 2. That he guaranteed the fulfillment of such obligation with his real property or properties. 3. That he sells, mortgages, or, in any other manner encumbers said real property. 4. That such sale, mortage 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.
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S. ELEMENTS OF OTHER DECEITS: (318) 1. not mentioned above; 2. interpretation of dreams, forecast, future-telling for profit or gain. * The meaning of other deceits under this article has reference to a situation wherein fraud or damage is done to another by any other form of deception which is not covered by the preceding articles. * Another form of deceit would be in the nature of interpreting dreams, or making forecasts, telling fortunes or simply by taking advantage of the credulity of the public by any other similar manner, done for profit or gain.
CHATTEL MORTGAGE Article 319 A. SELLING OR PLEDGING PERSONAL PROPERTY ALREADY PLEDGED
ELEMENTS: 1. That personal property is already pledged under the terms of the chattel mortgage law. 2. That the offender, who is the mortgagee 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.
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g. destroying telegraph wires and posts or those of any other system h. other similar effective means of destruction
D. ELEMENTS OF ARSON
1. That the property burned is the exclusive property of the offender 2. That (a) the purpose of the offender is burning it is to defraud or cause damage to another or (b) prejudice is actually caused, or (c) the thing burned is a building in an inhabited place Palattao notes: Arson is defined as the intentional or malicious destruction of a property by fire.
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* If the crime of arson was employed by the offender as a means to kill the offended party , the crime committed is murder. The burning of the property as the means to kill the victim is what is contemplated by the word fire under Article 248 which qualifies the crime to
murder. (People vs. Villarosa, 54 O. G. 3482)
* When the burning of the property was done by the offender only to cause damage but the arson resulted to death of a person, the crime committed is still arson because the death of
the victim is a mere consequence and not the intention of the offender. (People vs. Paterno, 47 O. G. 4600)
* There is no special complex crime of arson with homicide. What matters in resolving cases involving intentional arson is the criminal intent of the offender. * There is such a crime as reckless imprudence resulting in the commission of arson. When the arson results from reckless imprudence and it leads to death, serious physical injuries and damage to the property of another, the penalty to be imposed shall not be for the crime of arson under P. D. No. 1613 but rather, the penalty shall be based on Article 365 of the Revised Penal Code as a felony committed by means of culpa.
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Article 331 DESTROYING OR DAMAGING STATUES, PUBLIC MONUMENTS OR PAINTINGS Article 332 EXEMPTION FROM CRIMINAL LIABILITY IN CRIMES AGAINST PROPERTY
Persons exempt from criminal liability 1. Spouse, ascendants and descendants or relatives by affinity in the same line 2. The widowed spouse with respect to the property w/c 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 Offenses involved in the exemption 1. Theft ( not robbery ) 2. Swindling 3. Malicious mischief Notes: * Exemption is based on family relations * For the exemption to apply insofar as brothers and sisters, and brothers-in-law and sisters-inlaw are concerned, they must be living together at the time of the commission of the crime of theft, estafa or malicious mischief. * Parties to the crime not related to the offended party still remains criminally liable Persons exempt include: a. b. c. d. stepfather/mother (ascendants by affinity) adopted children (descendants) concubine/paramour (spouse) common law spouse (property is part of their earnings)
* Only the relatives enumerated incur no liability if the crime relates to theft (not robbery), swindling, and malicious mischief. Third parties who participate are not exempt. The relationship between the spouses is not limited to legally married couples; the provision applies to live-in partners. * Estafa should not be complexed with any other crime in order for exemption to operate.
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* Mitigated if wife was abandoned without justification by the offended spouse (man is entitled to this mitigating circumstance)
* Abandonment without justification is not exempting but only a mitigating circumstance. One
who invokes abandonment in the crime of adultery hypothetically admits criminal liability for the crime charged. (U. S. vs. Serrano, et al., 28 Phil. 230)
* While abandonment is peculiar only to the accused who is related to the offended party and must be considered only as to her or him as provided under Article 62, paragraph 3, nonetheless, judicially speaking, in the crime of adultery, there is only one act committed and consequently both accused are entitled to this mitigating circumstance. (People vs. Avelino, 40 O.G. Supp. 11, 194) Attempted: caught disrobing a lover
* There is no frustrated adultery because of the nature of the offense.
* In the case of People vs. Pontio Guinucud, et al., (58 Phil. 621), a private agreement was entered into between the husband and wife for them to separate from bed and board and for each of them to go for his and her own separate way. Thereafter, the wife Rosario Tagayum lived with her co-accused Pontio Guinucud in a nearby barangay. Their love affair ultimately embroiled the spouses conservative and reputable families in a human drama exposed in legal battles and whispers of unwanted gossips. In dismissing the complaint, the Court ruled that
while a private agreement between the husband and wife was null and void, the same was admissible proof of the express consent given by the condescending husband to the prodigal wife, a license for her to commit adultery. Such agreement bars the husband from instituting a
criminal complaint for adultery. * After filing the complaint for adultery and while the case is pending trial and resolution by the trial court, the offended spouse must not have sexual intercourse with the adulterous wife since an act of intercourse subsequent to the adulterous conduct is considered as implied pardon. (People vs. Muguerza, et al., 13 C.A. Rep. 1079) * It is seldom the case that adultery is established by direct evidence. The legal tenet has been and still is circumstancial and corroborative evidence as will lead the guarded discretion of a reasonable and just man to the conclusion that the criminal act of adultery has been committed will bring about conviction for the crime. (U. S. vs. Feliciano, 36 Phil. 753)
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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 334 CONCUBINAGE
ELEMENTS: 1. That the man must be married. 2. That he committed any of the following acts: a. Keeping a mistress in the conjugal dwelling. b. Having sexual intercourse under scandalous circumstances with a woman who is not his wife. c. Cohabiting with her in any other place. 3. That as regards the woman she must know him to be married. Note: Scandal consists in any reprehensible word/deed that offends public conscience, redounds to the detriment of the feelings of honest persons and gives occasions to the neighbors spiritual damage and ruin
* With respect to concubinage the same principle applies: only the offended spouse can bring the prosecution. This is a crime committed by the married man, the husband. Similarly, it includes the woman who had a relationship with the married man. * It has been asked why the penalty for adultery is higher than concubinage when both crimes are infidelities to the marital vows. The reason given for this is that when the wife commits adultery, there is a probability that she will bring a stranger into the family. If the husband commits concubinage, this probability does not arise because the mother of the child will always carry the child with her. So even if the husband brings with him the child, it is clearly known that the child is a stranger. Not in the case of a married woman who may bring a child to the family under the guise of a legitimate child. This is the reason why in the former crime the penalty is higher than the latter. * Unlike adultery, concubinage is a continuing crime.
* If the charges consist in keeping a mistress in the conjugal dwelling, there is no need for proof of sexual intercourse. The conjugal dwelling is the house of the spouse even if the wife happens to be temporarily absent therefrom. The woman however must be brought into the conjugal house by the accused husband as a concubine to fall under this article. Thus, if the co-accused was voluntarily taken and sheltered by the spouses in their house and treated as an adopted child being a relative of the complaining wife, her illicit relations with the accused husband does not make her a mistress. (People vs. Hilao, et al., (C.A.) 52 O.G. 904). * It is only when a married man has sexual intercourse with a woman elsewhere that scandalous circumstances becomes an element of crime. * For the existence of the crime of concubinage by having sexual intercourse under scandalous circumstances, the latter must be imprudent and wanton as to offend modesty and sense of morality and decency. * When spies are employed to chronicle the activities of the accused and the evidence presented to prove scandalous circumstances are those taken by the detectives, it is obvious that the sexual intercourse done by the offenders was not under scandalous circumstances. (U.S. vs. Campos-Rueda, 35 Phil. 51)
* Causal sexual intercourse with a woman in a hotel is not concubinage. Likewise, keeping of a
mistress in a townhouse procured and furnished by a married man who does not live or sleep with her in said townhouse does not constitute concubinage since there is no cohabitation.
* The rule is that, if a married mans conduct with a woman who is not his wife was not confined to occasional or transient interview for carnal intercourse but is carried n in the manner of husband and wife and for some period of time, then such association is sufficient to constitute cohabitation. (People vs. Zuniga, CA 57 O.G. 2497)
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2.
Article 339. Acts of Lasciviousness with the Consent of the Offended Party: Under this article, the victim is limited only to a woman. The circumstances under which the lascivious acts were committed must be that of qualified seduction or simple seduction, that is, the offender took advantage of his position of ascendancy over the offender woman either because he is a person in authority, a domestic, a househelp, a priest, a teacher or a guardian, or there was a deceitful promise of marriage which never would really be fulfilled.
* Always remember that there can be no frustration of acts of lasciviousness, rape or adultery because no matter how far the offender may have gone towards the realization of his purpose, if his participation amounts to performing all the acts of execution, the felony is necessarily produced as a consequence thereof. * Intent to rape is not a necessary element of the crime of acts of lasciviousness . Otherwise, there would be no crime of attempted rape.
* In the crime of acts of lasciviousness, the intention of the wrongdoer is not very material. The motive that impelled the accused to commit the offense is of no importance because the essence of lewdness is in the act itself.
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* To be guilty of this crime however, the acts of lasciviousness must be committed under any of the circumstances that had there been sexual intercourse, the crime would have been Rape. Where circumstances however are such, indicating a clear intention to lie with the offended party, the crime committed as Attempted Rape. * This crime (Art. 336) can be committed by either sex unlike in Acts of Lasciviousness with Consent under Article 339. Thus, a lesbian who toyed with the private part of an eleven-year-old girl who enjoyed it since she was given $50 dollars before the act, is guilty of Act of Lasciviousness under this Article as the victim is below twelve year old; and had sexual intercourse been possible and done, the act would have been Rape.
2.
3.
* This crime also involves sexual intercourse. The offended woman must be over 12 but below 18 years. * The distinction between qualified seduction and simple seduction lies in the fact, among others, that the woman is a virgin in qualified seduction, while in simple seduction, it is not necessary that the woman be a virgin. It is enough that she is of good repute.
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* The virginity referred to here, is not to be understood in so material a sense as to exclude the idea of abduction of a virtuous woman of a good reputation. Thus, when the accused claims he had prior intercourse with the complainant, the latter is still to be considered a virgin (U.S. vs. Casten, 34 Phil. 808). But if it was established that the girl had a carnal relations with other men, there can be no crime of Seduction as she is not a virgin.
* Although in qualified seduction, the age of the offended woman is considered, if the offended party is a descendant or a sister of the offender no matter how old she is or whether she is a prostitute the crime of qualified seduction is committed. Illustration: If a person goes to a sauna parlor and finds there a descendant and despite that, had sexual intercourse with her, regardless of her reputation or age, the crime of qualified seduction is committed. * In the case of a teacher, it is not necessary that the offended woman be his student. It is enough that she is enrolled in the same school. * Deceit is not necessary in qualified seduction. Qualified seduction is committed even though no deceit intervened or even when such carnal knowledge was voluntary on the part of the virgin. This is because in such a case, the law takes for granted the existence of the deceit as an integral element of the crime and punishes it with greater severity than it does the simple seduction, taking into account the abuse of confidence on the part of the agent. Abuse of confidence here implies fraud.
* The fact that the offended party gave her consent to the sexual intercourse is not a defense.
Lack of consent on the part of the complainant is not an element of the crime.
* The term domestic refers to a person usually living under the same roof with the offended party. It includes all those persons residing with the family and who are members of the same household, regardless of the fact that their residence may only be temporary or that they may be paying for their board and lodging. * A domestic should not be confused with a house servant. A domestic is not necessarily a house servant. * Where the offended party is below 12 years of age, regardless of whether the victim is a sister or a descendant of the offender, the crime committed is rape. * If the offended party is married and over 12 years of age, the crime committed will be
adultery.
* An essential element of a qualified seduction is virginity (doncella). It is a condition existing in a woman who has had no sexual intercourse with any man. It does not refer to the condition of the hymen as being intact. * One who is charged with qualified seduction can be convicted of rape. But one who is charged with rape cannot be convicted of qualified seduction under the same information. (People vs. Ramirez, 69 SCRA 144) * Even if the woman has already lost her virginity because of rape, in the eyes of the law, she remains a virtuous woman even if physically she is no longer a virgin.
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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 338 SIMPLE SEDUCTION
ELEMENTS: 1. That the offended party is over 12 and under 18 years of age. 2. That she must be of good reputation, single or widow. 3. That the offender has sexual intercourse with her. 4. That it is committed by means of deceit.
* Deceit generally takes the form of unfulfilled promise to marry. The promise of marriage must
serve as the inducement. The woman must yield on account of the promise of marriage or other forms of inducement. (People vs. Hernandez, 29 Phil. 109)
* Where the accused failed to have sex with this sweetheart over twelve (12) but below eighteen (18) years old because the latter refused as they were not yet married, and the accused procured the performance of a fictitious marriage ceremony because of which the girlfriend yielded, he is guilty of Simple Seduction. (U.S. vs. Hernandez, 29 Phil. 109). Here, there was deceit employed. This act may now be considered Rape under R.A. 8353, Sec. 2 par. 6. * A promise of material things in exchange for the womans surrender of her virtue does not constitute deceit. * If a woman under 18 years of age but over 12 agrees to a sexual intercourse with a man who promised her precious jewelries but the man reneges on his promise, there is no seduction that the woman is of loose morals. (Luis B. Reyes)
> A promise of marriage made by the accused after sexual intercourse had taken place, or after the woman had yielded her body to the man by mutual consent will not render the man liable for simple seduction.
* The offended woman must be under 18 but not less than 12 years old ; otherwise, the crime is statutory rape. * Unlike in qualified seduction, virginity is not essential in this crime. What is required is that the woman be unmarried and of good reputation. Simple seduction is not synonymous with loss of virginity. If the woman is married, the crime will be adultery.
Article 339 ACTS OF LASCIVIOUSNESS WITH THE CONSENT OF THE OFFENDED PARTY
ELEMENTS: 1. that the offender commits acts of lasciviousness or lewdness. 2. That the acts are committed upon a woman who is virgin or single or widow of good reputation, under 18 years of age but over 12 years, or a sister or descendant regardless of her reputation or age. 3. that the offender accomplishes the acts by abuse of authority, confidence, relationship, or deceit.
* When the acts of lasciviousness is committed with the use of force or intimidation or when the offended party is under 12 years of age, the object of the crime can either be a woman or a
man. * Where the acts of the offender were limited to acts of lewdness or lasciviousness, and no carnal knowledge was had; but had there been sexual intercourse, the offense would have been Seduction, he is guilty of Acts of Lasciviousness under this article.
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* In the commission of the acts of lasciviousness either by force or intimidation, or with the consent of the offended party, there must be no sexual intercourse, or the acts performed are short of sexual intercourse. In the first situation, the crime would either be qualified seduction or simple seduction if the offender succeeds in having sexual intercourse with the victim. In these two cases, there is consent but the same is procured by the offender through the employment of deceit, abuse of confidence, abuse of authority or because of the existence of blood relationship.
* A single act of promoting or facilitating the corruption or prostitution of a minor is sufficient to constitute violation of this article. * What the law punishes is the act of pimp (bugaw) who facilitates the corruption of a minor. It is not the unchaste act of the minor which is being punished. So, a mere proposal to promote or facilitate the prostitution or corruption of a minor is sufficient to consummate the crime. * Young minor should enjoy a good reputation. Apparently, a prostitute above 12 and under 18 years of age cannot be the victim in the crime of corruption of minors.
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Elements and Notes in Criminal Law Book II by RENE CALLANTA ABDUCTION Article 342 FORCIBLE ABDUCTION
ELEMENTS: 1. That the person abducted is any woman, regardless of her age, civil status, or reputation. 2. That the abduction is against her will. 3. That the abduction is with lewd designs. Note: Sexual intercourse is NOT necessary Crimes against chastity where age and reputation of victim are immaterial: rape, acts of lasciviousness, qualified seduction of sister/descendant, forcible abduction Forcible abduction defined. > It is the taking away of any woman against her will, from her house or the place where she may be, for the purpose of carrying her to another place with intent to marry or corrupt her.
* A woman is carried against her will or brought from one place to another against her will with lewd design.
* Unlike in Rape and Seduction, in the crime of Abduction, whether Forcible or Consented, there is no sexual intercourse. The acts are limited to taking away from a place the victim, but the same must be with lewd designs, that is, with unchaste design manifested by kissing and touching the victims private parts.
* If the element of lewd design is present, the carrying of the woman would qualify as abduction; otherwise, it would amount to kidnapping. If the woman was only brought to a certain place in order to break her will and make her agree to marry the offender, the crime is only grave coercion because the criminal intent of the offender is to force his will upon the woman and not really to restrain the woman of her liberty.
* Where lewd design was not proved or shown, and the victim was deprived of her liberty, the crime is Kidnapping with Serious Illegal Detention under this Article 267, RPC. * The element of lewd designs, which is essential to the crime of abduction through violence refers to the intention to abuse the abducted woman. If such intention is lacking or does not exist, the crime may be illegal detention. It is necessary to establish the unchaste design or purpose of the offender. But it is sufficient that the intent to seduce the girl is present. The evil purpose of the offender may be established or inferred from the overt acts of the accused.
* If the offended woman is under 12 years old, even if she consented to the abduction, the crime is forcible abduction and not consented abduction. * Where the offended woman is below the age of consent, even though she had gone with the offender through some deceitful promises revealed upon her to go with him and they live together as husband and wife without the benefit of marriage, the ruling is that forcible abduction is committed by the mere carrying of the woman as long as that intent is already shown. In other words , where the man cannot possibly give the woman the benefit of an honorable life, all that man promised are just machinations of a lewd design and, therefore, the carrying of the woman is characterized with lewd design and would bring about the crime of abduction and not kidnapping. This is also true if the woman is deprived of reason and if the woman is mentally retardate. Forcible abduction is committed and not consented abduction. * Lewd designs may be demonstrated by the lascivious acts performed by the offender on her. Since this crime does not involve sexual intercourse, if the victim is subjected to this, then a crime of rape is further committed and a complex crime of forcible abduction with rape is committed.
* Lewd design does not include sexual intercourse. So, if sexual intercourse is committed against
the offended party after her forcible abduction, the offender commits another crime separate and distinct from forcible abduction. In this case, the accused should be charged with forcible abduction with rape. (People vs. Jose, et al., 37 SCRA 450)
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* If the main object of the offender is to rape the victim, and the forcible abduction was
resorted to by the accused in order to facilitate the commission of the rape, then the crime committed is only rape. (People vs. Toledo, 83 Phil. 777)
* Where the victim was taken from one place to another, solely for the purpose of killing him and not detaining him for any legal length of time, the crime committed is murder. (People vs. Ong, 62 SCRA 174) * True intention of the offender should be ascertained. If the detention is only incidental, the same should be considered as absorbed. Otherwise, it should be treated as a separate offense. When such a situation arises, we should consider the application of Article 48 on complex crimes.
* The taking away of the woman may be accomplished by means of deceit at the beginning and then by means of violence and intimidation later. * The virginity of the complaining witness is not a determining factor in forcible abduction . * In order to demonstrate the presence of the lewd design, illicit criminal relations with the person abducted need not be shown. The intent to seduce a girl is sufficient. * If there is a separation in fact, the taking by the husband of his wife against her will constitutes grave coercion. Distinction between forcible abduction and illegal detention: When a woman is kidnapped with lewd or unchaste designs, the crime committed is forcible abduction. When the kidnapping is without lewd designs, the crime committed is illegal detention. > But where the offended party was forcibly taken to the house of the defendant to coerce her to marry him, it was held that only grave coercion was committed and not illegal detention.
* Forcible abduction must be distinguished from the crime of kidnapping. When the violent taking of a woman is motivated by lewd design, the crime committed is forcible abduction. But if
the motive of the offender is to deprive the woman of her liberty, the crime committed is kidnapping. Abduction is a crime against chastity while kidnapping is a crime against personal liberty.
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Article 344 PROSECUTION OF ADULTERY, CONCUBINAGE, SEDUCTION, ABDUCTION RAPE AND ACTS OF LASCIVIOUSNESS
1. Adultery and concubinage must be prosecuted upon complaint signed by the offended spouse 2. Seduction, abduction, rape or acts of lasciviousness must be prosecuted upon complaint signed by: a. b. c. d. offended party by her parents grandparents guardians in the order in which they are named above
* The crimes of adultery and concubinage must be prosecuted upon a complaint signed by the offended spouse. In the complaint, the offended party must include both guilty parties if they are both alive. * Distinguished between a private crime and a public crime. In the case of a private crime, the same cannot be prosecuted de oficio, meaning it cannot be initiated by any person except the offended party. These are the crimes against chastity such as seduction, adultery, concubinage and acts of lasciviousness. These are crimes which are initiated with the filing of an information. A public crime is one which can be prosecuted de officio, meaning it can be prosecuted by any person interested to prosecute the same. The accusation is usually initiated with the filling of an information. * The law requires that the complaint must be initiated by the said persons in order that they are named or enumerated in the article. If this legal requirement is not observed, the case should be dismissed for lack of jurisdiction over the subject matter. * If the offended party is of age and is in complete possession of her mental faculties, she alone can file the complaint (People vs. Mandia, 60 Phil. 372) * If the offended party cannot sign the complaint because of her tender age, the parents can do it for her. The same can be done either by the father or the mother. (U.S. vs. Gariboso, 25 Phil 171 )
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What is the meaning of shall have consented which bars the institution of criminal action for adultery or concubinage? The term consent has reference to the tie prior to the commission of the crime. In other
words, the offended party gives his or her consent to the future infidelity of the offending spouse. > And so, while consent refers to the offense prior to its commission, pardon refers to the offense after its commission. (People vs. Schnekenburger, et al., 73 Phil. 413) Note: Marriage of the offender with the offended party extinguishes the criminal action or remit the penalty already imposed upon him. This applies as well to the accomplices, accessoriesafter-the-fact. But marriages must be in good faith. This rule does not apply in case of multiple rape
* In the crimes involving rape, abduction, seduction, and acts of lasciviousness, the marriage by the offender with the offended woman generally extinguishes criminal liability, not only of the principal but also of the accomplice and accessory. However, the mere fact of marriage is not enough because it is already decided that if the offender marries the offended woman without any intention to perform the duties of a husband as shown by the fact that after the marriage, he already left her, the marriage would appear as having been contracted only to avoid the punishment. Even with that marriage, the offended woman could still prosecute the offender and that marriage will not have the effect of extinguishing the criminal liability. * Pardon by the offended woman of the offender is not a manner of extinguishing criminal liability but only a bar to the prosecution of the offender. Therefore, that pardon must come before the prosecution is commenced. When the prosecution is already commenced or initiated, pardon by the offended woman will no longer be effective because pardon may preclude prosecution but not prevent the same.
* Pardon in crimes against chastity, is a bar to prosecution. But it must come before the institution of the criminal action. (See the cases of People vs. Villorente, 210 SCRA 647; People vs. Avila, 192 SCRA 635) To be effective, it must include both accused.
How about pardon declared by the offended party during the trial of the case? Such a
declaration is not a ground for the dismissal of the case. Pardon is a matter of defense which the accused must plead and prove during the trial. (People vs. Riotes, C.A., 49 O.G.3403).
* All these private crimes except rape cannot be prosecuted de officio. If any slander or written defamation is made out of any of these crimes, the complaint of the offended party is still necessary before such case for libel or oral defamation may proceed. It will not prosper because the court cannot acquire jurisdiction over these crimes unless there is a complaint from the offended party. The paramount decision of whether he or she wanted the crime committed on him or her to be made public is his or hers alone, because the indignity or dishonor brought about by these crimes affects more the offended party than social order. The offended party may prefer to suffer the outrage in silence rather than to vindicate his honor in public.
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Article 346 LIABILITY OF ASCENDANTS, OTHER PERSONS ENTRUSTED WITH CUSTODY OF OFFENDED PARTY WHO BY ABUSE OF AUTHORITY OR CONFIDENCE SHALL COOPERATE AS ACCOMPLIES
Article 347 SIMULATION OF BIRTHS, SUBSTITUTION OF ONE CHILD FOR ANOTHER, AND CONCEALMENT OR ABANDONMENT OF A LEGITIMATE CHILD
Acts Punished: 1. Simulation of births 2. Substitution of one child for another 3. Concealing or abandoning any legitimate child with the intent to cause such child to lose its civil status Requisites: 1. The child must be legitimate 2. The offender conceals or abandons such child 3. The offender has the intent to cause the child to lose its civil status Elements of Simulation of Birth 1. Child is baptized or registered in the Registry of birth as hers 2. Child loses its real status and acquiires a new one 3. Actors purpose was to cause the loss of any trace as to the childs true filiation
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* Committed by asuming the filiation, or the parental or conjugal rights of another * Usurpation is committed by assuming the filiation or parental (when maternal, paternal or conjugal) claim of another. To be liable for usurpation of civil status, the offender must have the intent to enjoy the rights arising from the civil status of another. Circumstances qualifying the offense: penalty is heavier when the purpose of the impersonation is to defraud the offended party or his heirs
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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 349 BIGAMY
ELEMENTS: 1. That the offender has been legally married. 2. That the marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the civil code. 3. That he contracts a second or subsequent marriage. 4. That the second or subsequent marriage has all the essential requisites for validity. Notes: * The crime does not fall within the category of private crimes that can be prosecuted only at the instance of the offended party PUBLIC CRIME For the crime of bigamy to prosper the first marriage must be valid. If the first marriage is void from the beginning, such nullity of the marriage is not a defense in a charge of bigamy. Consequently, when raised as a defense, the accused should be convicted since until and unless annulled, the bond of matrimony remains or is maintained. Need for judicial declaration of nullity
The second marriage must have all the essential requisites for validity were it not for the existence of the first marriage.
* A simulated marriage is not marriage at all and can be used as a defense for bigamy
* Good faith is a defense in bigamy. * One who, although not yet married before, knowingly consents to be married to one who is already married is guilty of bigamy knowing that the latters marriage is still valid and subsisting.
* In the crime of bigamy, the second spouse is not necessarily liable. The language of Article 349 indicates the crime of bigamy is committed by one person who contracts a subsequent marriage while the former marriage is valid and subsisting. If the second wife knew of the
previous marriage of the accused, she will be liable for the crime of bigamy but only as an accomplice.
* There must be a summary proceeding to declare the absent spouse presumptively dead for purposes of remarriage
* Failure to exercise due diligence to ascertain the whereabouts of the 1st wife is bigamy through reckless imprudence * A judicial declaration of the nullity of a marriage void ab initio is now required * The language of the law is clear when it declared before the former marriage has been legally dissolved. The Supreme Court said the even if the accused, as plaintiff in the civil case prevails, and his first marriage is annulled, such pronouncement has no retroactive effect as to exculpate him in the bigamy case. Parties to a marriage should not be permitted to judge its nullity, for only competent courts have such authority. (Landicho vs. Relova, 22 SCRA 731, 735) * The civil case for annulment of the first marriage does not pose a prejudicial question as to warrant the suspension of the trial and proceeding in the criminal case for bigamy. (Roco, et al., Cinco, et al., 68 O.G.2952) * One convicted for bigamy may be prosecuted for concubinage as both are distinct offenses
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* One who vouches that there is no legal impediment knowing that one of the parties is already married is an accomplice
Distinction between bigamy and illegal marriage: Bigamy is a form of illegal marriage. The offender must have a valid and subsisting marriage. Despite the fact that the marriage is still subsisting, he contracts a subsequent marriage. Illegal marriage includes also such other marriages which are performed without complying with the requirements of law, or such premature marriages, or such marriage which was solemnized by one who is not authorized to solemnize the same.
5. Marriage solemnized by a minister or priest who does not have the required authority to marriages.
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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 351 PREMATURE MARRIAGE
Acts punished: 1. A widow who within 301 days from death of husband, got married or before her delivery, if she was pregnant at the time of his death 2. A woman whose marriage having been dissolved or annulled, married before her delivery or within 301 days after the legal separation * The Supreme Court has already taken into account the reason why such marriage within 301 days is
made criminal, that is, because of the probability that there might be a confusion regarding the paternity of the child who would be born. If this reason does not exist because the former husband is impotent, or was shown to be sterile such that the woman has had no child with him, that belief of the woman that after all there could be no confusion even if she would marry within 301 days may be taken as evidence of good faith and that would negate criminal intent.
* Article 84 of the Civil Code provides that no marriage license shall be issued to a widow until after 300 days following the death of her husband, unless in the meantime she has given birth to a child.
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charge is sufficient if the words are calculated to induce the hearer to suppose and understand that the person against whom they are uttered is guilty of certain offenses, or are sufficient to impeach his honesty, virtue or reputation, or to hold him up to public ridicule. (U.S. vs.
OConnell, 37 Phil. 767) Malice has been defined as a term used to indicate the fact that the defamer is prompted by personal ill or spite and speaks not in response to duty but merely to injure the reputation of the person defamed. Kinds of Malice.
Malice in law This is assumed and is inferred from the defamatory character of an
imputation. The presumption of malice attaches to the defamatory statement especially if it appears to be insulting per se. The law presumes that the defamer made the imputation without good intention or justifiable motive. or spite may still appear even if the statement is not defamatory. So, where the defamatory acts may be presumed from the publication of the defamatory acts imputed refer to the private life of the individual, malice may be presumed from the publication of the defamatory statement because no one has a right to invade anothers privacy.
Malice in fact This refers to malice as a fact. The presence and existence of personal ill-will
Distinction between malice in fact and malice in law Malice in fact is the malice which the law presumes from every statement whose tenor is defamatory . It does not need proof. The mere fact that the utterance or statement is defamatory negates a legal presumption of malice. In the crime of libel, which includes oral defamation, there is no need for the prosecution to present evidence of malice. It is enough that the alleged defamatory or libelous statement be presented to the court verbatim. It is the court which will prove whether it is defamatory or not. If the tenor of the utterance or statement is defamatory, the legal presumption of malice arises even without proof. Malice in fact becomes necessary only if the malice in law has been rebutted. Otherwise, there is no need to adduce evidence of malice in fact. So, while malice in law does not require evidence, malice in fact requires evidence. Malice in law can be negated by evidence that, in fact, the alleged libelous or defamatory utterance was made with good motives and justifiable ends or by the fact that the utterance was privileged in character. In law, however, the privileged character of a defamatory statement may be absolute or qualified. When the privileged character is said to be absolute, the statement will not be actionable whether criminal or civil because that means the law does not allow prosecution on an action based thereon. Illustration: As regards the statements made by Congressmen while they are deliberating or discussing in Congress, when the privileged character is qualified, proof of malice in fact will be admitted to take the place of malice in law. When the defamatory statement or utterance is qualifiedly privileged, the malice in law is negated. The utterance or statement would not be actionable because malice in law does not exist. Therefore, for the complainant to prosecute the accused for libel, oral defamation or slander, he has to prove that the accused was actuated with malice (malice in fact) in making the statement.
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innuendos.
* This discussion leads to the conclusion that the determination of libelous meaning is left to the good judgment of the court after considering all the circumstances which lead to the utterance or publication of the defamatory statement. The question is not what the writer of an alleged libel means but what the words used by him mean. The meaning given by the writer or the words used by him is immaterial. The question is not what the writer meant but what he conveyed to those who heard or read him (People vs. Encarnacion, 204 SCRA 1) How to overcome the presumption of malice.
Publication is the communication of the defamatory matter to a third person or persons. So,
the delivery of a defamatory writing to a typesetter is sufficient publication. Writing a letter to another person other than the person defamed is sufficient publication. (See Sazon vs. Court of Appeals, 255 SCRA 692)
> The crime is libel if the defamation is in writing or printed media. > The crime is slander or oral defamation if it is not printed.
* Person libeled must be identified. But the publication need not refer by name to the libeled party. If not named it must be shown that the description of the person referred to in the defamatory publication was sufficiently clear so that at least a 3rd person would have identified the plaintiff.
* When a libel is addressed to several persons, unless they are identified in the same libel, even if there are several persons offended by the libelous utterance or statement , there will only be one count of libel. * If the offended parties in the libel were distinctly identified, even though the libel was committed at one and the same time, there will be as many libels as there are persons dishonored. Illustration: If a person uttered that All the Marcoses are thieves," there will only be one libel because these particular Marcoses regarded as thieves are not specifically identified. If the offender said, All the Marcoses the father, mother and daughter are thieves. There will be three counts of libel because each person libeled is distinctly dishonored. * If you do not know the particular persons libeled, you cannot consider one libel as giving rise to several counts of libel. In order that one defamatory utterance or imputation may be considered as having dishonored more than one person, those persons dishonored must be identified. Otherwise, there will only be one count of libel. * Note that in libel, the person defamed need not be expressly identified . It is enough that he could possibly be identified because innuendos may also be a basis for prosecution for libel. As a matter of fact, even a compliment which is undeserved, has been held to be libelous.
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2.
Requisites of defense in defamation 1. 2. 3. If it appears that the matter charged as libelous is true; It was published with good motives; It was for justifiable ends.
If a crime is a private crime, it cannot be prosecuted de officio. A complaint from the offended party is necessary.
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* Malice is now understood to mean publication with knowledge of falsehood or reckless disregard of the statements veracity. The burden of proof has not only been shifted to the plaintiff in libel, but proof has not only been shifted to the plaintiff in libel, but proof of malice must now be clear and convincing.
Case Doctrines: * The fact that a communication is privileged is not a proper ground for the dismissal of a complaint for libel. In the first place, it is a matter of defense. Secondly, the fact that a communication is privileged does not mean that it is not actionable. The privileged character
simply does away with the presumption of malice which the prosecution has to prove in such a case. (Lu Chu Sing, et al., vs. Lu Tiong Gui, 76 Phil. 669)
* Libel in answer to another libel is not a defense. (Pellicena vs. Gonzales, 6 Phil. 50)
* If the defamatory imputation is in the nature of self-defense under Article 11 of the Revised Penal Code such that the publication was done in good faith, without malice and just adequate enough to protect his good name, the statement may be considered privileged. (People vs. Baja, 40 O.G. 206; People vs. Mendoza, C.A. 74 O.G. 5607) * The fair and true report of official proceedings refer to proceedings in the three branches of government, to wit: judicial, legislative and executive. The publisher is limited only to the narration of what had taken place even if the report contains defamatory and injurious matter affecting another person, libel is not committed for as long as what is contained is a fair and true report of the proceedings. * Under Article 354, the publisher becomes liable when he makes comments or remarks upon the private character of person, which are not relevant or related to the judicial, legislative or executive proceedings. * Under our libel law, defamatory remarks against government employees with respect to facts related to the discharge of their official duties will not constitute libel, if defendant is able to prove the truth of the imputations. But any attack on the private character of the officer on matters which are not related to the discharge of his official functions may constitute libel since under our laws, the right of the press to criticize public officers does not authorize defamation. (U.S. vs. Bustos, supra; Sazon vs. Court of Appeals, supra).
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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article354 REQUIREMENT OF PUBLICITY
Kinds of privileged communication a. ABSOLUTELY PRIVILEGED not actionable even if the actor has acted in bad faith b. QUALIFIEDLY PRIVILEGED those which although containing defamatory imputations could not be actionable unless made with malice or bad faith * When the defamatory imputation comes under the criteria of an absolute privileged communication, the presumption of malice under Article 354 has no application. * The presumption of malice, however, comes into play when the defamatory statement is a conditional or qualified privileged communication. To overcome this presumption of malice in law, the defamer must prove during the proceeding that the defamatory imputation was committed because of a legal, moral or social duty. * Privileged communication as categorized in this discussion is a matter of defense. It is not a ground for a motion to quash after the arraignment of the accused. (See Mercado vs. CFI of Rizal, 116 SCRA 93). If after the prosecution has presented its evidence, it becomes evident that the defamatory statement was made by the accused because of a legal, moral or social duty, then the accused can file a demurrer to evidence, as in the meantime, there is absence of malice in law which is presumed in all defamatory imputations. GENERAL RULE: Every defamatory imputation is presumed malicious even if it be true, if no good intention and justifiable motive for making it is shown EXCEPTION: a. private communication in performance of legal, moral or social duty Requisites 1. that the person who made the communication had a legal, moral or social duty to make the communication or at least he had an interest to be upheld 2. that the communication is addressed to an officer or a board, or superior, having some interest or duty on the matter 3. that the statements in the communication are made in good faith without malice in fact b. fair and true report, made in good faith, without any comments and remarks Requisites 1. that the publication of a report of an official proceeding is a fair and true report of a judicial, legislative, or other official proceedings which are not of confidential nature, or of a statement, report, or speech delivered in said proceedings, or of any other act performed by a public officer 2. that it is made in good faith 3. that it is made without any comments or remarks Doctrine of fair comment A fair comment on matters of public interest is included and is covered by the mantle of privileged communication which constitutes a valid defense against libel and slander. If the
comment is an expression of opinion based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might be reasonably inferred from the facts.
Further explaining the right to comment on a public issue, the Court said, If a matter is a subject of public or general interest, it cannot become less so merely because a private individual is involved. The public primary interest is in the event; the public focus is on the
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* In the enumeration above, television is not included, probably because at the time the Revised Penal Code was conceived, television had not yet been invented. However, the law provides, or any similar means which easily qualifies television is such species or category. (People vs. Casten, C.A., G.R. No. 07924-CR promulgated December 13, 1974)
AND
OFFER
TO
PREVENT
SUCH
Threatening another to publish a libel concerning him, or his parents, spouse, child, or other members of his family; Offering to prevent the publication of such libel for compensation or money consideration.
2.
* It involves the unlawful extortion of money by appealing to the fear of the victim, through threats of accusation or exposure. It contemplates of two offenses: a threat to establish a libel and an offer to prevent such publication. The gravamen of the crime is the intent to extort money or other things of value.
Blackmail In its metaphorical sense, blackmail may be defined as any unlawful extortion of money by threats of accusation or exposure. Two words are expressive of the crime hush money. (US v. Eguia, et al., 38 Phil. 857) Blackmail is possible in (1) light threats under Article 283; and (2) threatening to publish, or offering to prevent the publication of, a libel for compensation, under Article 356.
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Elements and Notes in Criminal Law Book II by RENE CALLANTA Article 357 PROHIBITED PUBLICATION OF ACTS REFERRED TO IN THE COURSE OF OFFICIAL PROCEEDINGS
ELEMENTS: 1. That the offender is a reporter, editor or manager of a newspaper, daily or magazine. 2. That he publishes facts connected with the private life of another. 3. That such facts are offensive to the honor, virtue and reputation of said person. Note: * Even though made in connection with or under the pretext that it is necessary in the narration of any judicial or administrative proceedings wherein such facts have been mentioned. * With its provisions, Article 357 has come to be known as the Gag Law. It prohibits reporters, editors or managers of newspapers from publishing articles containing facts connected with the private life of an individual; facts which are offensive to the honor, virtue and reputation of persons. But these must refer to facts which are intimately related to the offended partys family and home. Occasionally, it involves conjugal troubles and quarrels because of infidelity, adultery or crimes involving chastity. Lacsa v IAC Lacsa found that Marquez was not a proprietary member of PCA thus not qualified to be president. He wrote to the BOD and to Marquez. He caused to publish the second letter. HELD: Letter is not privileged communication. To be classified as such it must be free from malice. Granting that the letter was privileged communication, written out of a duty of an officer towards the members, such character was lost when it was published. * Under Republic Act No. 1477, amending Rep. Act. No. 58, the publisher, editor, columnist or duly accredited reporter of any newspaper, magazine or periodical of general circulation cannot be compelled to reveal the source of any news report information appearing in the said publication which was related to him in confidence unless the court or a house or committee of Congress finds that such revelation is demanded by the security of the State.
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Atienza, G.R. No. L-19857, Oct. 26, 1968 ) It is a common expression of anger or displeasure. It is seldom taken in its literal sense by the hearer. It is viewed more as a threat on the part of the accused to manifest and emphasize a point. (Reyes vs. People, 27 SCRA 686) Article 359 SLANDER BY DEED
ELEMENTS: 1. That the offender performs any act not included in any other crime against honor. 2. That such act is performed in the presence of other person or persons. 3. That such act casts dishonor, discredit or contempt upon the offended party. Notes: Slander by deed is a defamation committed by the offender against the complainant through the performance of any act which casts dishonor, discredit or contempt upon another person. * Slander by deed refers to performance of an act, not use of words.
Two kinds of slander by deed 1. 2. Simple slander by deed; and Grave slander by deed, that is, which is of a serious nature.
* Whether a certain slanderous act constitutes slander by deed of a serious nature or not, depends on the
social standing of the offended party, the circumstances under which the act was committed, the occasion, etc.
* The acts of slapping and boxing the woman, a teacher, in the presence of many people has put her to dishonor, contempt and ridicule. (P v Costa) * If the acts committed against the offended party caused her physical injury which did not require medical attendance, then the crime would be maltreatment which is classified as slight physical injuries. P v Motita > Accused held a mirror between the legs of complainant to reflect her private parts. The crowd laughed. Guilty of slander by deed. Distinctions: a. Unjust Vexation-irritation or annoyance/anything that annoys or irritates without justification. b. Slander by Deed-irritation or annoyance + attendant publicity and dishonor or contempt. c. Acts of lasciviousness-irritation or annoyance + any of 3 circumstance provided in Art335 of RPC on rape
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Elements and Notes in Criminal Law Book II by RENE CALLANTA INCRIMINATORY MACHINATIONS Article363 INCRIMINATING INNOCENT PERSON
ELEMENTS: 1. That the offender performs an act. 2. That by such act he directly incriminates or imputes to an innocent person the commission of a crime. 3. That such act does not constitute perjury. Two Kinds: a. making a statement which is i. defamatory or ii. perjurious (if made under oath and is false) b. planting evidence Note: article is limited to planting evidence and the like * This crime cannot be committed through verbal incriminatory statements. It is defined as an act and,
therefore, to commit this crime, more than a mere utterance is required.
* If the incriminating machination is made orally, the crime may be slander or oral defamation. * If the incriminatory machination was made in writing and under oath , the crime may be perjury if there is
a willful falsity of the statements made.
* If the statement in writing is not under oath, the crime may be falsification if the crime is a material
matter made in a written statement which is required by law to have been rendered.
* As far as this crime is concerned, this has been interpreted to be possible only in the so-called planting
of evidence.
* There is such a crime as incriminating an innocent person through unlawful arrest. (People vs. Alagao, et al., G.R. No. L-20721, April 30, 1966)
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CRIMINAL NEGLIGENCE
Article 365 ELEMENTS OF RECKLESS IMPRUDENCE:
1. That the offender does or fails to do an act. 2. That the doing of or the failure to do that act is voluntary. 3. That it be without malice. 4. That material damage results. 5. That there is inexcusable lack of precaution on the part of the offender, taking into consideration a. his employment or occupation b. degree of intelligence, physical condition, and c. other circumstances regarding persons, time and place.
2.
3.
4.
Distinction between reckless imprudence and negligence: The two are distinguished only as to whether the danger that would be impending is easily perceivable or not. If the danger that may result from the criminal negligence is clearly perceivable, the imprudence is reckless. If it could hardly be perceived, the criminal negligence would only be simple.
* There is no more issue on whether culpa is a crime in itself or only a mode of incurring criminal liability.
It is practically settled that criminal negligence is only a modality in incurring criminal liability. This is so because under Article 3, a felony may result from dolo or culpa.
Notes: Test for determining whether or not a person is negligent of doing of an act which results in injury or damages to another person or his property.
Would a prudent man in the position of the person to whom negligence is attributed, foresee harm to the person injured? If so, the law imposes on the doer, the duty to refrain from the
course of action, or to take precaution against such result. Failure to do so constitutes negligence. Reasonable foresight of harm, followed by ignoring the admonition borne of this provisions, is the constitutive fact of negligence. (Picart vs. Smith, 37 Phil. 809, 813)
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Did the defendant, in doing the alleged negligent act, use the reasonable care and caution which an ordinary prudent person would have used in the same situation? If not, then he is guilty of
negligence. The penalties under Article 365 has no application in the following cases: 1. When the penalty provided for the offense ifs equal or lower than that provided in pars.1 and 2 of Article 365. In this case, the penalty shall be that which is next lower in degree than that which should be imposed, in the period which the court may deem proper to apply. 2. When by imprudence or negligence and with violation of the Automobile Law, the death of a person is caused, the penalty is prision correccional in its medium and maximum periods. 1) Art.64 on mitigating and aggravating circumstances not applicable. 2) Failure to lend on the spot assistance to victim of his negligence: penalty next higher in degree. 3) Abandoning usually punishable under Art 275, if charged under Art 365 is only qualifying and if not alleged cannot even be an aggravating circumstance. 4) Contributory negligencenot a defense, only mitigating * The defense of contributory negligence does not apply in criminal cases committed through reckless imprudence. It is against public policy to invoke the negligence of another to escape criminal liability. (People vs. Quiones, C.A., 44 O.G. 1520) * The above-mentioned doctrine should be reconciled with the doctrine of concurrent
* In the case of People vs. Desalis, et al., C.A., 57 O.G. 8689, the two accused were drivers of two speeding vehicles which overtook vehicles ahead of them and even encroached on the others lane without taking due precaution as required by the circumstances. The court found the concurrent or successive negligent act or omission of the two drivers as the direct and proximate cause of the injury caused to the offended party. The court could not determine in what proportion each driver contributed to the injury. Both were declared guilty for the injury suffered by the third person. * When negligence does not result in any injury to persons or damage to property, then no crime is committed. Negligence becomes punishable when it results in the commission of a crime. (Lantok, Jr. vs. Hon. Gorgonio, L-37396, April 30, 1979, 75 O.G. 7763) Last clear chance doctrine> The contributory negligence of the injured party 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 Emergency rule> An automobile driver, who, by the negligence of another, is suddenly placed in an emergency and compelled to act instantly to avoid a collision or injury is not guilty of negligence if he makes a choice which a person of ordinary prudence placed in such a position might make even though he did not make the wisest choice. Doctrine of Pre-emption > It is a rule in collision cases which the driver of a motor vehicle to make a full stop when crossing a thru-street. Any accident therefore which takes place in said corner gives to rise to the presumption of negligence on the part driver of the motor vehicle running thru-street has already reached the middle part of the intersection. In such a case, the other driver who has the right of way has the duty to stop his motor vehicle in order to avoid a collision. (People vs. Taradji, 3 C.A. Rep. [25] 460)
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* Do not separate the accusation from the slight physical injuries from the other material result of the
negligence.
* If the criminal negligence resulted, for example, in homicide, serious physical injuries and slight physical
injuries, do not join only the homicide and serious physical injuries in one information for the slight physical injuries. You are not complexing slight when you join it in the same information. It is just that you are not splitting the criminal negligence because the real basis of the criminal liability is the negligence .
* If you split the criminal negligence, that is where double jeopardy would arise. * Accused is not criminally liable for the death or injuries caused by his negligence to trespassers whose presence in the premises he was not aware of. In the case of People vs. Cuadra, C.A., 53 O.G. 7265, accused was a truck driver. Unknown to him, several persons boarded his truck and while driving along a slippery road which has a declinations of 25 degrees, the left front wheel of the truck fell into a ditch. In his effort to return the truck to the center of the road, the truck turned turtle, throwing off two of the passengers who boarded the truck without his knowledge. As a consequence, one of them died. Cuadra was acquitted of the crime of reckless imprudence resulting in homicide and physical injuries. * Overtaking of another vehicle is a normal occurrence in driving. But when the overtaking is done from right, it shows recklessness and disregard of traffic laws and regulations. It is likewise so when the overtaking is done while another vehicle is approaching from the opposite direction. This is a violation of Section 59(b) of the Motor Vehicle Law (People vs. Songalla, C.A., 67 O.G. 8330) * Driving within the speed limit is not a guaranty of due care. Speed limits impose the maximum speed which should not be exceeded. The degree of care required of a motorist is not governed by speed limits but by the circumstances and conditions obtaining in the place at the particular time. So, if the maximum speed limit is 80 kilometers per hour and the vehicle driven at 30 kilometers per hour, but because of the very slow pace of the vehicle, an accident occurs, the observation of the speed limit will not be acceptable evidence of due care. (people vs. Caluza, C.A., 58 O.G. 8060) Force majeure in relation to negligence. > Force majeure has reference to an event which cannot be foreseen or which being foreseen, is inevitable. It implies an extraordinary circumstance independent of the will of the actor or perpetrator. In negligence, the immediate personal harm or damage to property is perceivable and can be prevented by the exercise of reasonable care. As the event is foreseeable, the failure of the actor to use reasonable care to prevent harm or damage constitutes reckless imprudence or simple negligence. (People vs. Eleazar )
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