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CRIMINAL LAW REVIEW

BOOK 2 NOTES
ATTY. V. GARCIA
~ Atty. Victoria Garcia ~

By: Dizon | Manalo | Navarez | Shyu | Tubio


Faculty of Civil Law University of Santo Tomas

CRIMINAL LAW REVIEW Book 2 Notes

Atty. V. Garcia

TITLE ONE
CRIMES AGAINST NATIONAL SECURITY AND THE
LAW OF NATIONS (Articles 114 122)
ARTICLE 114 TREASON
is committed by a Filipino citizen or an alien residing in
the Philippines who levies war against the Philippine
Government or adheres to her enemies by giving them
aid and comfort
ELEMENTS:
1. The offender is by birth, a Filipino Citizen or
an alien residing in the Philippines, even if
temporary allegiance
The offender may either be a Filipino
citizen, because a Filipino citizen
owes permanent allegiance to the
Philippine Government; or another
offender is a foreigner, an alien
temporarily
residing
in
the
Philippines. During his temporary
stay in the Philippines, he is given
protection
by
the
Philippine
Government under its laws therefore
it is but incumbent upon him to have
temporary
allegiance
to
the
Philippine Government. That is why
even
an
alien,
a
foreigner
temporarily
residing
in
the
Philippines can also commit treason
in times of war.
2.

That there is a war in which the Philippines is


involved
The second element is that there is a
war in which the Philippines is
involved. In the case of Laura vs.
Misa, treason is a war time offense.
It can be committed only in times of
war. In times of peace, Treason
remains to be dormant crime,
however, the moment when an
emergency arises, the moment a
war arises, it is immediately put into
effect as an act self-defense and
self-preservation of the Philippine
Government. Treason cannot be
committed in times of peace,
because in times of peace, there are
no traitors.

Who are these traitors?


These enemies are troops of the
enemy state which is in war with the
Philippines. Filipino men like the

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MILF, NPAs, even if they are at war


with the Philippine government, they
cannot be considered as enemies
because they are still considered as
Filipino citizens. So the aliens refer
to the citizens of the enemy state
which is at war with the Philippines.
3.

That the offender either


a) Levies
war
against
the
Philippine government, or
b) Adheres to the enemies by
giving them aid or comfort.
The third element refers to the
mode of committing treason.
treason may be committed by
either:
a. Levies war against the
Philippine government ,requires
the
concurrence
of
two
elements:
1) there must be an
actual of assembly of men
2) it is for the purpose
of
executing
or
effecting a treasonable
design by force.
This means that the said
offenders, Filipino citizens who
are said to be in collaboration
with the enemy troops in order
to hand over the Philippine
Government to the enemy
troops.
Absent
of
that
collaboration, it cannot be
considered as treason
b. Adheres to the enemies by
giving them aid or comfort.
Adherence to the enemies
mean that the Filipino citizen or
the
offender
intentionally,
intellectually and emotionally
favors
the
enemy.
Therefore,adherence to the
enemies is an internal state of
mind, it is mental state, you
cannot see adherence to the
enemies

How now would you know


that a person is adhering to
the enemy state?

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CRIMINAL LAW REVIEW Book 2 Notes

It is manifested by his
acts of giving aid or
comfort to the enemy.
That is why these two
must concur:
1. Adherence to the
enemies
2. Giving them aid or
comfort
Mere adherence to
the enemies, without
any act of giving aid or
comfort to the enemy
will not bring along
treason, it is the act of
giving aid or comfort
which
is
the
manifestation of the
adherence
to
the
enemies.

EXAMPLES OF ACTS OF ADHERING TO THE ENEMIES


BY GIVING AID OR COMFORT:
o By giving the enemies information, transportation,
arms, supplies, all of these will weaken the
defense of the Philippines and strengthen the
enemy state.
o People vs. Perez:The court said, "the act of
commandeering women or giving women to the
enemy troops in times of war, to satisfy the lust of
the enemy troops is not considered as a
treasonable act." Because according the Court,
whatever benefit is given to the enemy is merely
trivial in nature,imperceptible and it was not the
intent of the offender (unintentionally).

There are two ways of proving treason under Article


114:
1. TESTIMONY OF TWO WITNESSES, AT
LEAST, TO THE SAME OVERT ACT,
OTHERWISE KNOWN AS THE "TWO-WITNESS
RULE"
There must be two witnesses who will prove
only on the commission by the offender of an
overt act showing that he adheres to the
enemy. Therefore, treason cannot be proven
by mere substantial evidence. There must be
direct evidence, a witness to this act of giving
aid or comfort to the enemy.
2. CONFESSION OF THE OFFENDER OR THE
ACCUSED MADE IN AN OPEN COURT
Confession of guilt must be made before a
court. Extra-judicial confession will not give

Dizon | Manalo | Navarez | Shyu | Tubio

Atty. V. Garcia
rise to conviction in case of the crime of
treason.
ILLUSTRATION:
Q: What if there is war which the Philippines is involved? X
was among those who committed treason against the
government. now X in committing treason killed a public
officer of the government of the Philippines, in furtherance
of his act of treason. Will such act amounting to murder
give rise to a separate and distinct crime? Will you charge
him for two crimes based on treason and murder?
A: There is only one crime committed by him
and the crime committed is treason. Common
crimes such as Murder, physical injuries,
homicide, arson, if they are committed in
furtherance to, in connection with or incidentally to
treason shall be absorbed in the crime of treason
because they are atrocities for war and therefore,
they are considered as absorbed in the crime of
treason. It cannot even be complex, they are
considered absorbed in the crime of treason.
Q: What if A, B and C, conspired and agreed to commit
treason against the Philippine Government. After their
conspiracy and agreement, A went to X. A told his friend X
that he was in conspiracy with B and C to commit treason
against the Philippine Government. After A told him such
conspiracy with X, A left. X, despite knowledge of the
conspiracy to commit treason among A, B, and C, did not
disclose such information to the proper authorities. What
crime/crimes is/are committed by A, B, C, and X?
A: A, B, and C are liable for the conspiracy to
commit treason. There is a meeting of two or
more persons come to an agreement to commit
the crime of treason and decide to commit it.There
is proposal to commit treason when a person has
decided to commit the crime of treason and
proposes its execution to some other person or
persons. The moment that other person whom the
proposal was given, raise to the commission of
crime, we no longer have proposal, but we have
Conspiracy to commit treason. In the problem, A,
B, and C, conspired, agreed to commit the crime
of treason against the Philippine government,
therefore they are all liable for conspiracy to
commit treason.
Q: X, who had knowledge of the conspiracy to commit
treason among A, B, and C, however, despite that
knowledge, he did not disclose it to the proper authorities.
What is the liability of X?
A: X is liable for misprision of treason is
committed by any person who owes permanent
allegiance to the Philippine Government who fails

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CRIMINAL LAW REVIEW Book 2 Notes

Atty. V. Garcia

to disclose of knowledge to commit treason as


soon as possible to the proper authorities.In the
problem, C, despite having knowledge of the
conspiracy to commit treason among A, B, and C
did not divulge it, did not disclose it to the proper
authorities, therefore, X is liable for misprision of
treason.

TREASON can be committed both by Filipino citizens


and a foreigner temporarily residing in the Philippines,
but MISPRISION OF TREASON can only be
committed by a Filipino citizen who owes permanent
allegiance to the Philippine government, it cannot be
committed by a foreigner residing in the Philippines.

ARTICLE 117 ESPIONAGE


There are two ways of committing espionage under Article
117:
I.
By entering, without authority therefor, a
warship,
fort,
or
naval
or
military
establishment or reservation to obtain any
information, plans, photographs or other data
of a confidential nature, relative to the defense
of the Philippines
The offender can be any person. He can be a
Filipino citizen, or a foreigner, or he can be a
public officer or employee, or he can be a
private individual.

When will the crime of espionage arise?


Under the first mode, the crime of espionage
will arise moment the offender enters the
warship, fort or naval or military establishment
or reservation, without authority if his intention
is to obtain any information, plans,
photographs or other data of a confidential
nature, relative to the defense of the
Philippines.

II.

It is not necessary that for the crime to arise


that he is successful in obtaining the data. It
is not necessary that he indeed obtained the
data. The mere act of entering without
authority is sufficient if his intention is to
obtain the data of confidential manner relative
to the defense of the Philippines.

By disclosing to the representative of a foreign


nation the contents of the articles, data or
information referred to in paragraph No. 1 of
art. 117, which he had in his possession by
reason of the public office he holds.
This mode of committing espionage can only
be committed by a public officer who has

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been trusted, by reason of his public position,


of articles, data of confidential nature relative
to the defense of the Philippines.
The crime of espionage will arise the moment
the offender divulges or discloses the data
and information to a representative of a
foreign nation.
So even if he is in possession of the same,
but he does not divulge it to any
representative of a foreign nation, the crime
will not arise.

Espionage can be committed in BOTH, in times of


peace and in times of war.

ARTICLE 118 INCITING TO WAR OR GIVING MOTIVES


FOR REPRISALS
ELEMENTS:
1. That the offender performs unlawful or
unauthorized acts by the Philippine government.
2. That the said act provoke or give occasion for a
war involving or liable to involve the Philippines or
expose Filipino citizens to reprisals on their
persons and property while they are in a foreign
country.
3. He is not legally authorized to do so.

Inciting to war connotes that there is yet no war. It is


committed in times of peace.

Case of CAPTAIN MENDOZA


Hostage drama in Luneta. There were Hongkong
citizens boarded the bus and here comes captain
mendoza who was no longer a member of the
military, he entered the bus, with different
weapons and grenades and even killed some
hongkong citizens. Captain mendoza performed
unlawful, unauthorized acts which expose
overseas Filipino workers in Hongkong and china
to reprisals on their person or property. In fact,
there were news at that time that Hongkong or
China would be engaging in war with the
Philippines. Head captain Mendoza, one of the
crimes that may be held against him is inciting to
war or giving motives for reprisals.
ARTICLE119 VIOLATION OF NEUTRALITY
ELEMENTS:
1. The crime is committed when there is a war but
the Philippines is not involved in the said war and;
2. The competent authority issued a regulation for
the purpose of enforcing neutrality among Filipino
citizens and ;
3. The offender violates such regulation imposed.

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CRIMINAL LAW REVIEW Book 2 Notes

Atty. V. Garcia

Q: There is a war between country X and country Y. Here


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

ARTICLE 121 FLIGHT TO ENEMY'S COUNTRY


ELEMENTS:
1. That there is s war in which the Philippines is
involved.
2. That the offender must be owing allegiance to the
Philippine Government
3. That the offender attempts to flee or go to enemy's
country
4. That going to the enemy country is prohibited by a
competent authority

The violation will only arise if there is a proclamation or


regulation imposing neutrality and a Filipino citizen
violates such declaration or regulation issued by a
competent authority. Therefore, absence of such
declaration of neutrality, the crime of violation of
neutrality does not arise.

ARTICLE120 CORRESPONDENCE WITH HOSTILE


COUNTRY
ELEMENTS:
1. That it is in time of war in which the Philippines is
involved.
2. That the offender makes correspondence with an
enemy country or any territory occupied by enemy
troops.
3. That the correspondence is either
a.) Prohibited by the Philippine Government
b.) Carried on in ciphers or conventional signs
c.) Containing notice or information which might
be useful to the enemy

Here, there is war but the Philippines is not involved in


the said war.

Here, there is a war in which the Philippines is


involved.

Q: The Philippines is at war with the another country. Here


comes X, a Filipino citizen, he has a pen pal who is a
citizen of the country which is at war with the Philippines.
The competent authority or the President issued a
declaration of proclamation saying that there should be no
correspondence to the enemy state. But X missed his
penpal, and so, he wrote in a small piece of paper, "i love
you, i miss you, muamua!" Is X liable of the crime of
correspondence with the enemy?
A:X is liable because there was a declaration issued
by a competent authority that correspondence with the
hostile country is prohibited and if there is no
declaration, proclamation coming from the competent
authority prohibiting correspondence, the crime will
only arise if the said crime is carried on in ciphers or
conventional signs or Containing notice or information
which might be useful to the enemy.

Dizon | Manalo | Navarez | Shyu | Tubio

There must be a declaration or a proclamation issued


by a competent authority, that no Filipino shall flee to
the enemy's country and the offender violates such
proclamation.
Mere attempt will readily rise to the crime. It is not
necessary that the offender has actually gone to the
country.
There must be declaration or proclamation prohibiting
flight to enemy state.

ARTICLE 122 PIRACY


ELEMENTS:
1. The first element is where the vessel is
located. The vessel can either be on the high
seas or on Philippine waters (this was brought
about by the amendment of RA 7659). Before
the amendment of RA 7659, Piracy under
Article 122 can only be committed when the
vessel is on the high seas. But because of
this amendment brought about by RA 7659,
Piracy now under Article 122 can be
committed when the vessel is on Philippine
waters.
2.

The second element provides for the


offenders. The offenders must NOT be
members of the complement or passengers of
the vessel. Therefore, the offenders must be
STRANGERS to the vessel. They must be
coming from the outside, not from the inside.

3.

The third element refers to the mode of


committing piracy.
a. The offenders either ATTACK or
SEIZE the vessel.
b. The offenders either SEIZE IN
WHOLE or IN PART the cargo, the
equipment
or
the
personal
belongings of the passengers or
members of the complement.

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CRIMINAL LAW REVIEW Book 2 Notes

Based on these elements, you will notice that piracy is


akin to robbery. It is in effect robbery. It is just called
piracy because the object of the thing is either the
vessel or the cargo or equipment of the said vessel.
There is also the use of force or intimidation. There is
also the use of violence against persons. There is also
intent to gain.So it is akin, similar to robbery.

Atty. V. Garcia
ARTICLE122 MUTINY
COMMITTED WHEN:
1. The vessel is either on the high seas or on
Philippine waters
2. The OFFENDERS are MEMBERS OF THE
COMPLEMENT or PASSENGERS OF THE
VESSEL
3. The offenders raise a commotion or
disturbance on the board the ship against the
lawful command of the captain or the
commander of the ship.
In mutiny, there is no taking because in mutiny there is no
intent to gain. Mutiny is the rising of commotion, a
resistance against the lawful command, against the lawful
authority of the commander or captain of the ship.
Since in mutiny, there is no intent to gain, mutiny is akin to
sedition. The rising of commotion, an uprising, an act of
dissent against lawful authority.
SO HOW DO YOU DISTINGUISH PIRACY VS. MUTINY?
1. In piracy, the offenders are strangers to the
vessel, whereas, in mutiny, the offenders are
necessarily inside the vessel, they are either
members of the complement or passengers of the
vessel
2. In Piracy, there is intent to gain because it is
similar to robbery, whereas, in mutiny, there is no
intent to gain because the essence of the crime is
to go against the lawful authority of the
commander of the ship.
ILLUSTRATION:
Q: The vessel is on the sea going to Mindoro. So while the
ship is on its way to Mindoro, suddenly there comes a big
storm. The commander or the captain of the ship said that
they should first move towards the shore and let the storm
comes calm in order to ensure the safety of the passengers
of the vessel. The passengers of the vessel and members
of the complement didnt want the decision of the said
captain of the ship and so they seize the captain of the ship
and manned the vessel until they reach Mindoro. What
crime, if any, is committed by these members of the
complement and passengers of the vessel?
A: They are liable of MUTINY. The vessel is on
Philippine waters. The offenders are members of
the complement and they go against the lawful
authority of the captain of the ship. Therefore they
are liable of mutiny.
Q: While a vessel is on Philippine waters, here comes a
second vessel. Four men from the second vessel boarded
the first vessel and at gunpoint, took the cargo and
equipment of the said vessel. Placed them in the second

Dizon | Manalo | Navarez | Shyu | Tubio

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CRIMINAL LAW REVIEW Book 2 Notes


vessel and off they went. What crime is committed by these
four men?
A: They are liable of PIRACY UNDER ARTICLE
122. The vessel is on Philippine waters, the
offenders are not members of the complement or
passengers of the ship. They seize the cargo and
equipment of the vessel. Therefore, it is piracy
under Article 122.
Q: The vessel is on Philippine waters. While the vessel is
on Philippine waters, the members of the complement and
passengers of the said vessel in conspiracy with one
another took the cargo and equipment of the said vessel,
and then they boarded a second vessel and off they went.
What crime is committed by the members of the
complement and passengers of the said vessel?
A: The members of the complement and
passengers of the vessel committed ACTS OF
PIRACY because they seize in whole or in part
the cargo or equipment of the vessel but NOT
PIRACY UNDER ARTICLE 122 because in Article
122, it is a requisite that the offenders must be
strangers to the vessel. Here, the offenders are
members of the complement and passengers of
the vessel. So the crime committed is PIRACY
BUT UNDER PD 532.

Atty. V. Garcia
ANTI-PIRACY AND ANTI-ROBBERY LAW OF 1974 (PD
532)
Under PD 532, piracy is committed by attacking or seizing
the vessel or seizing in whole or in part the cargo,
equipment or personal belongings of the members of the
complement or passengers of the vessel IRRESPECTIVE
of the value thereof, committed by means of force and
violence and committed by any person whether he may a
member of the complement or passenger of the vessel or
strangers to the vessel BUT the vessel is on Philippine
waters. Therefore, for PIRACY UNDER PD 532 to arise, it
necessary that the vessel is on Philippine waters.If the
vessel is on the high seas, immediately rule out PD
532.
HOW COULD YOU KNOW IF IT IS PIRACY UNDER PD
532 OR PIRACY UNDER ARTICLE 122 OF RPC?
If the vessel is on Philippine waters, your choice is
either Piracy under PD 532 or Piracy Article 122.
Where lies the difference?
Since Article 122 of RPC is the
main law, we have to reconcile it
with PD 532. Or PD 532 must
be reconciled with Article 122.
Piracy under PD 532, the
offenders can be any person.
He can be a stranger. He can
be
members
of
the
complement.
Therefore, where does PD 532 apply?
It will apply when the offenders
are
members
of
the
complement or passengers of
the vessel and the vessel is
on the Philippine waters.
Q: The vessel is on Philippine waters, suddenly men from
the outside committed acts of piracy. What crime is
committed?
A: Piracy under Article 122
Q: The vessel is on Philippine waters. Acts of piracy were
committed by the members of the complement or
passengers of the vessel. What crime is committed?
A: Piracy under PD 532
Q: What if the vessel is on the high seas? While the vessel
is on the high seas, there comes a second vessel. Four
men from the second vessel boarded the first vessel and at
gunpoint took the cargo and equipment of the first vessel.
What crime is committed by these four men?
A: Piracy under Article 122. The vessel is on the
high seas. The offenders are not members of the
complement or the passengers of the vessel.

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CRIMINAL LAW REVIEW Book 2 Notes


They seize in whole or in part the cargo and
equipment of the said vessel.
Q: While the vessel is on the high seas,members of the
complement or passengers of the vessel in conspiracy with
one anothertook away the cargo and equipment of the
vessel. What crime is committed?
NOTE: It is not piracy under Article 122
because here, the offenders are
members of the complement or
passengers of the vessel. In Article 122,
it is required that the offenders must be
strangers to the vessel. It cannot be
piracy under PD 532 because the vessel
must be on Philippine waters. In our
problem, the vessel is on the high seas.
So, what crime is committed?
A: Again, piracy is akin to robbery. Since Piracy
under Article 122 and Piracy under PD 532 do not
apply, the crime committed is ROBBERY IN AN
UNINHABITED PLACE.
ARTICLE 123 QUALIFIED PIRACY
What are the circumstances which will qualify piracy?
Under Article 122, the following
circumstances will qualify piracy:
1. Whenever the offender have seized
a vessel by boarding or firing
upon; or
2. Whenever the offenders have
aband0ned their victims without
means of saving themselves; or
There is intent to kill.
3. Whenever
the
crime
is
accompanied
by
murder,
homicide, physical injuries or
rape
Whenever
these
four
crimes accompanied the
act of piracy, it will not bring
about a separate and
distinct crime or a separate
and distinct charge of
murder, homicide, physical
injuries or rape. These
crimes
are
absorbed
because
they
are
circumstances which will
qualify the penalty to death.
NOTE:
These
circumstances
are
separate and distinct from each other. It
is not necessary that all of themmust be
present. The presence of one will qualify
piracy. Notice the conjunction OR. These

Dizon | Manalo | Navarez | Shyu | Tubio

Atty. V. Garcia
are qualifying circumstances which are
prejudicial to the accused therefore they
must be strictly construed.
ILLUSTRATION:
Q: What if the vessel is on Philippine waters, and there
comes a second vessel. Four men from the second vessel
boarded the first vessel and at gunpoint, they asked the
passengers to give to them all their valuables. One woman
didnt want to give her wedding ring because it was so
precious to her and so one of the men forcibly took the
wedding ring from the finger such that the finger was
severed from it. What crime is committed?
A: QUALIFIED PIRACY because piracy was
accompanied by physical injuries.
Q: What if in the same problem, the woman didnt want to
give the ring, one of the men slapped the woman on the
face three times and the face of the woman became
reddish. She suffered slight physical injuries. What about
the fact that the injury suffered was only slight?
A: It will not make a difference although the injury
suffered was only slight. In the third circumstance
which will qualify piracy, the word physical
injuries is used in its generic sense. Therefore,
whatever be of kind of physical injuries, whether
serious or slight for as long as it was accompanied
by piracy, it will be considered as qualified piracy.
Q: What if in the same problem, the woman didnt want to
give the ring and one of the men touched the private parts
of the said woman and after touching the private parts of
the said woman with lust, he forcibly took the ring. What
crime is committed by the said men?
A: All of them will be liable for piracy. However,
the man who touched the private part of the
woman will be liable for two crimes: piracy and
acts of lasciviousness. Acts of lasciviousness is
not mentioned in Article 123. Therefore, its
presence will not qualify piracy. It will bring about
a separate and distinct charge of acts of
lasciviousness.
So, only these four crimes (murder, homicide,
physical injuries and rape) will qualify piracy. If
other crime is committed and accompanied by
piracy and is not among these four crimes
mentioned in Article 123, it will bring about a
separate and distinct charge.

QUALIFIED MUTINY
Insofar as mutiny is concerned, what are the
circumstances which will qualify mutiny?

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CRIMINAL LAW REVIEW Book 2 Notes

In Article 123, there is no specific mention of


qualified mutiny, however according to Reyes
and other legal luminaries, of the three
circumstances stated in Article 123,
paragraphs 2 and 3 are considered as
circumstances which will qualify mutiny. That
is:
1. whenever the offenders have
abandoned their victims without
means of saving themselves; or
2. whenever
the
crime
is
accompanied
with
murder,
homicide, physical injuries or
rape
According to Reyes and
other legal luminaries, only
these two are considered
qualified in mutiny because
in mutiny, the offenders are
necessarily,
ordinarily
inside the vessel because
they are members of the
complement or passengers
of the vessel.

Atty. V. Garcia

ANTI-HIJACKING LAW (R.A. No. 6235 otherwise known


as An Act Prohibiting Certain Acts inimical to Civil
Aviation)
Under RA 6235, there are four prohibited acts.
1. By compelling the pilot of an aircraft of Philippine
registry to change its course or destination OR by
seizing or usurping control thereof while it is in
flight
2.

By compelling an aircraft of foreign registry to land


in Philippine territory OR by seizing or usurping
control thereof while the same is in Philippine
territory
These are the first two prohibited acts. How could
you distinguish the first act from the second act?
If the aircraft is of Philippine registry, the
seizure or usurpation to amount in
violation of RA 6235, requires that the
aircraft must be in flight. An aircraft is in
flight the moment all its external doors
had been closed, following embarkation
until any of it external doors had been
opened for purposes of disembarkation.
On the other hand, if the aircraft is of
foreign registry, the seizure or
usurpation did not need while it is in
flight. For as long as the aircraft of
foreign registry is within the Philippine

Dizon | Manalo | Navarez | Shyu | Tubio

territory, seizure or usurpation thereof


will bring about violation of RA 6235
even if all its doors are opened; even if it
is not in flight.
Insofar as these two prohibited acts are
concerned, what are the circumstances which will
qualify the penalty?
Under
RA
6235,
the following
circumstances will qualify the first two
acts:
a. By firing upon the pilot or the
member of the crew or passenger
of the aircraft; or
b. By exploding or attempting to
explode by mean of a bomb or
explosive
for
purposes
of
destroying the aircraft; or
c. Whenever
the
crime
is
accompanied by murder, homicide,
serious physical injuries or rape

3.

4.

NOTE: In case of piracy, the law


uses the word physical injuries in
its generic sense. Whatever be the
kind of physical injury that will
accompany piracy, the crime
committed is qualified piracy. But
in case of hijacking under RA
6235, the law is specific; it must
be serious physical injuries.
Therefore, if the physical injuries
that would accompany the act of
usurpation and seizure of the
aircraft would only be less serious
physical injuries or slight physical
injuries, the penalty is not
qualified. The penalty is qualified
because from the penalty of 12 to
20 years, it would become 15
years to death.

By carrying or loading on board a PASSENGER


AIRCRAFT operating as a public utility in the
Philippines materials or substances which are
explosive, flammable, corrosive or poisonous
By shipping, carrying or loading on board a
CARGO AIRCRAFT operating as a public utility in
the Philippines materials or substances which are
explosive, flammable, corrosive or poisonous in a
manner not in accordance with the rules and
regulations of the Air Transportation Office

HOW WOULD YOU DISTINGUISH THE 3RD FROM THE


4TH ACT?

Page 8

CRIMINAL LAW REVIEW Book 2 Notes

If the aircraft is a PASSENGER AIRCRAFT,


the mere act of carrying or loading explosive,
flammable,
corrosive
or
poisonous
substances will immediately constitute a
violation of RA 6235.
If however the aircraft is a CARGO
AIRCRAFT, the loading of these poisonous
substances, flammable substances, is
allowed because it is a cargo aircraft. The
crime will only arise if such act of loading is
not in accordance with the rules and
regulations of the Air Transportation Office.

HUMAN SECURITY ACT OF 2007 (R.A. No. 9372)


Q: What if there is a bus and the bus is parked at
Lunetapark and it was full of children. And here comes X, X
had different kinds of explosive all over his body. And at
gunpoint, entered the said bus and told the children to keep
quiet. Thereafter, there is a cartolina on the glass window
of the said bus. Written on the cartolina were his demands
to the government. His demands were first, that his brother,
a member of NPA and who is being incarcerated by the
military be released and his second demand, was that
funds be transferred to his account. So these were the
demands made by X against the government. Because of
this, the parents of the children arrived, the media arrived,
all the cabinet secretaries arrived. Only the president did
not arrive. So everybody was there. They were afraid that
the children might die so there was chaos in the entire
Philippines. It took the members of the military and police
12 hours to subdue X. So after 12 hours, they were able to
arrest X. What crime, if any, may be filed against X?
A: X will be charged of the crime of terrorism
under RA 9372, the Human Security Act of 2007.
Under Section 3 of Ra 9372, terrorism is
committed when the offender commits any of the
following acts punishable under the RPC:
a. Piracy
b. Rebellion
c. Coup dEtat
d. Murder
e. Kidnapping and Serious Illegal
Detention
f. Crimes involving Destruction
If the offender commits any of these acts
punishable under the RPC or any of the following
acts punishable under special penal laws:
1. Article 122 (Piracy in General and Mutiny in the High
Seas or in the Philippine Waters);
2. Article 134 (Rebellion or Insurrection);
3. Article 134-a (Coup dEtat), including acts committed by
private persons;

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Atty. V. Garcia
4. Article 248 (Murder);
5. Article 267 (Kidnapping and Serious Illegal Detention);
6. Article 324 (Crimes Involving Destruction,
or under
1. Presidential Decree No. 1613 (The Law on Arson);
2. Republic Act No. 6969 (Toxic Substances and
Hazardous and Nuclear Waste Control Act of 1990);
3. Republic Act No. 5207, (Atomic Energy Regulatory and
Liability Act of 1968);
4. Republic Act No. 6235 (Anti-Hijacking Law);
5. Presidential Decree No. 532 (Anti-piracy and Antihighway Robbery Law of 1974); and,
6. Presidential Decree No. 1866, as amended (Decree
Codifying the Laws on Illegal and Unlawful Possession,
Manufacture, Dealing in, Acquisition or Disposition of
Firearms, Ammunitions or Explosives)

If the offender commits any of these crimes under


the RPC and any of the crimes under special
penal laws, thereby sowing and creating a
condition widespread and extraordinary fear and
panic among the populace in order to coerce the
government to give in to an unlawful demand, he
is liable of terrorism and the penalty is 40 years
imprisonment without the benefit of parole under
the Indeterminate Sentence Law. So it is the
maximum penalty of 40 years. He has to serve it
totally. Even if he has already served the
minimum, he cannot be given the benefit of parole
under the Indeterminate Sentence Law. So it is
necessary that he must commit any of these
predicate crimes and after committing these
predicate crimes, where lies the difference?
Because his act that sowed and created fear and
panic among the populace coupled with an
unlawful demand against the government.
Q: So let us say that X was charged with terrorism based
on a valid complaint or information a case of terrorism was
filed against him before the RTC. However, after trial on the
merits, the judge acquitted him. According to the judge, the
prosecution failed to prove the guilt of the accused beyond
reasonable doubt therefore acquittal for reasonable doubt.
Since he is acquitted of terrorism under RA 9372, can he
still be prosecuted for his predicate crime of kidnapping and
illegal detention because he detained the children for more
than 12 hours? Can he still be prosecuted for Illegal and
Unlawful Possession of Firearms, Ammunitions or
Explosives because he was full of firearms and
ammunitions and explosives?
A: No more. Because of Section 49 of RA 9372.
Under Section 49 of RA 9372, whenever a person

Page 9

CRIMINAL LAW REVIEW Book 2 Notes


has been charged of terrorism, or any act
punishable under RA 9372, based on the valid
complaint or information, sufficient information and
substance to bring about and thereafter he is
acquitted or the case is dismissed, he can no
longer be subsequently prosecuted for any other
felony or offense necessarily included in the crime
charged. The crime of kidnapping and serious
illegal detention is necessarily included in
terrorism because it is one of the predicate crimes.
Likewise, violation of PD 1866, as amended Illegal
and Unlawful Possession of Firearms is also
necessarily included in terrorism because it is one
of the predicated crimes in terrorism. Or any of
these predicated crimes, he can no longer be
charged because they are necessarily included in
terrorism. This is known as the ABSORPTION
PRINCIPLE in terrorism.
Q: But what if in the same problem, while X was waiting for
his demands to be given by the government, he saw a girl
and with lewd design, he touched the private parts of the
seven-year old girl. Therefore he committed a violation of
RA 7610 the Anti-Child Abuse Law. He was acquitted of
terrorism. Can the state prosecute him for violation of RA
7610?
A: Yes, because it is not among the predicate
crimes. It is not a crime necessarily included in
the crime of terrorism.

Dizon | Manalo | Navarez | Shyu | Tubio

Atty. V. Garcia
TITLE TWO
CRIMES AGAINST THE FUNDAMENTAL LAWS OF THE
STATE (Articles 124 133)
The acts under TITLE TWO are made criminal because
they both appease the Bill of Rights. The rights stated
under the Constitution and the first of these is under
ARTICLE 124, 125 and 126 Arbitrary Detention.
3 KINDS OF ARBITRARY DETENTION:
1. Arbitrary Detention by detaining a person without
legal ground under Article 124
2. Arbitrary Detention by failing to deliver the
detained person to the proper judicial authorities
within 12, 18 or 36 hours under Article 125
3. Arbitrary Detention by delaying the release of
prisoners despite the judicial or executive order to
do so under Article 126
ARTICLE124

ARBITRARY
DETENTION
BY
DETAINING A PERSON WITHOUT LEGAL GROUND
ELEMENTS:
1. That the offender is a public officer or employee
Who is the offender in Article 124?
The offender is a public officer or
employee. BUT NOT ALL PUBLIC
OFFICERS OR EMPLOYEES can
commit arbitrary detention.
The
public officer of employee can
commit arbitrary detention are only
those who have been vested with
authority to effect arrest and
detain a person or at least to
cause the detention of a person.
Public officers who have been vested
with authority to effects arrest and detain
a person are POLICE OFFICERS. On
the other hand, public officers vested with
authority to cause the detention of a
person are MEMBERS OF CONGRESS.
They can order the detention of a person
who has been cited of contempt for
failing to accurate their proof, or we have
JUDGES they can order the summary
detention of persons cited in contempt of
court.
2. That he detains a person
The second element requires that the
offender detains a person.
So when is there detention?
There is detention when the
offended party is placed in
incarceration. When the offended
party is placed behind bars or when

Page 10

CRIMINAL LAW REVIEW Book 2 Notes

3.

the offended party is restrained of


his person or liberty.
In order to amount arbitrary
detention there must be an act of
restraint on the person or liberty
of the offended party. Absent that
intent, absent the actual restraint on
the person or liberty of the offended
party It can be any other crime
BUT
NOT
ARBITRARY
DETENTION. Therefore, Supreme
Court said that intent to detain must
be manifest, it must be evident.
Absent that, it can be any other
crime but not arbitrary detention.

That the detention is without legal grounds


The third element requires that the detention
must be without legal ground.
So when is detention without legal
grounds under Article 124?
1. When the said offended party was
arrested without a warrant of arrest.
2. When the said offended party was
arrested and his arrest and detention
does not fall under any of the
circumstances or a valid warrantless
arrest.
3. When he is not suffering from
violent insanity or any other ailment
which
requires
compulsory
confinement.
All of these are not
considered valid grounds
for detention.
So to reverse, what are the valid
grounds for detention?
The following are valid grounds for
detention:
a.) If the person does not receive
and detained by virtue of a
warrant of arrest.
b.) If a person was arrested and
detained under any of the
circumstances for a valid
warrantless arrest
c.) If a person was suffering violent
insanity or any illness which
requires
compulsory
confinement.
These are the valid ground
for the arrest and detention
of a person.

Dizon | Manalo | Navarez | Shyu | Tubio

Atty. V. Garcia
ILLUSTRATION:
Q: So if a person, driving his vehicle entered a one way
street and in violation of the LTO rules and regulation, was
stopped by police officer, his license was taken and gave
him a ticket and was bought to the nearest PNP station and
was placed behind bars. He was detained. That was 8
oclock in the morning then the arresting officer left. And on
the afternoon, the police officer returned to the police
station. Upon his arrival, he immediately released the
incarcerated person whom he detained for entering a one
way street. Is the said police officer liable for arbitrary
detention under Article 124?
A:
YES,
he
is
liable
ofARBITRARY
DETENTION. He is a public officer vested with
authority to effect arrest and detain a person. If
he detained the person, the detention was without
legal ground. It is without legal ground because
entering a one way street and violating the traffic
rules and regulation is not a ground for
incarceration. It is not a ground for a person to be
placed behind bars. If a person committed a
violation of traffic rules and regulation like entering
a one way street or beating the red light, he
should only be given a ticket. There should not
even be a confiscation of license. After that, he
should be allowed to leave but that is not a ground
for him to be placed under detention. Since the
officer detained the person without any legal
ground HE IS LIABLE FOR ARBITRARY
DETENTION.
Q: What if X is suspected to be a snatcher and many
complaints was filed against him. One time, when the
police officers were conducting a patrol they saw X who
was perhaps waiting for a ride. When the police officers
saw X they immediately arrested X and brought him to the
nearest police station. They told X that he is to be
investigated for he is said to be a cellphone snatcher. So
he was brought to the investigation room however, the
investigation officer was not around so the arresting officer
told him that he needs to be investigated and that he can
leave but he must make sure to come back for purposes of
investigation otherwise if he does not come back the next
time they see him they will kill him. So because of that, X
would get out of the precinct but would immediately return.
Are the police officers liable for arbitrary detention?
A: NO, the police officers are not liable for
arbitrary detention. There is no intent to restrain
or detain the person or liberty of X, the offended
party. In order to amount to arbitrary detention it is
necessary that the intent of the public officer to
restrain the person or liberty of the offended party
must be manifest and it must be evident. In this
case however, it is not.

Page 11

CRIMINAL LAW REVIEW Book 2 Notes

Atty. V. Garcia
probable cause to believe
based
on
personal
knowledge of facts and
circumstances that the
person to be arrested is the
one who committed the
crime. This is otherwise
known as HOT PURSUIT
ARREST.
c.) When the person to be
arrested is a prisoner who
has escaped from a penal
establishment or a place
where he is serving final
sentence or temporarily
detained while his case is
pending, or has escaped
while being transferred from
one penal institution to
another.
These
are
the
circumstances for a
valid
warrantless
arrest. These are the
circumstances referred
to in the second
element of Article 125.

Even if there is a threat on the part of the police


officer there is however no intent to detain X.
What are the crimes if any are the police officer
liable for?
They
committed
GRAVE
THREATS
because they threatened to kill X if he would
not come back. It is the grave threats that
made X come back in the police station.

ARTICLE125 ARBITRARY DETENTION BY FAILING


TO DELIVER THE DETAINED PERSON TO THE
PROPER JUDICIAL AUTHORITIES WITHIN 12, 18 OR 36
HOURS
ELEMENTS:
1. The offender here is a public officer or
employee vested with authority to effect arrest
and detain a person
2. That offender has detained a person for some
legal ground
The second element requires that the
offender arrests and detains a person
for
some legal ground.
What are these legal grounds referred to
under Article 125?
The legal ground being referred to in
Article 125 is not the fact that the
said arrest was made by virtue of a
warrant of arrest because if the
offended party was arrested by the
public officer by virtue of a valid
warrant of arrest he does not have
the obligation to deliver him to the
proper judicial authorities.
So what are these valid instances in
arresting a person?
These refer to circumstances of valid
warrantless arrests under Section 5
Rule 112 of the Rules of Court. It
requires that a peace officer or a
private individual may even without a
warrant arrest a person under the
following circumstances:
a.) That in his presence the
person to be arrested has
committed,
is
actually
committing, or is attempting
to commit a crime. This is
otherwise
known
as
INFLAGRANTE DELICTO
ARREST
b.) When a crime has in fact
just been committed, and
the police officer has

Dizon | Manalo | Navarez | Shyu | Tubio

3.

That the offender fails to deliver the person


arrested to the proper judicial authorities
within 12, 18 or 36 hours.
The third element requires that that the
offender fails to deliver the person arrested to
the proper judicial authorities within 12, 18 or
36 hours.
What do you mean by delivery?
Delivery does not mean that you
really have to deliver the physical
body of the person arrested to the
court. It means constructive delivery
or legal delivery, meaning, the filing
of the appropriate case before the
proper court. That is delivery to
proper judicial authorities - filing of
the case before the proper court.
The law says that a public officer must
deliver to the proper judicial authorities.
So judicial authority, what does it mean?
The proper judicial authorities refers
to COURTS OF JUSTICES OR
JUDGES OF THE COURTS THAT
HAS THE POWER TO ORDER THE
INCARCERATION OR DETENTION
OF
A
PERSON
OR
HIS

Page 12

CRIMINAL LAW REVIEW Book 2 Notes


TEMPORARY RESTRAIN UPON
POSTING
OF
APPROPRIATE
COMPLAIN.
The FISCAL does not belong to the
proper judicial authority because he
belongs to the executive branch. The
Fiscal is under the Department of
Justice and not under the Supreme
Court. The head of the Fiscal is
Secretary De Lima and the President
and not Chief Justice Sereno. Thats
why a Fiscal is not within the
meaning of a judicial authority.
Second, fiscal may recommend the
bail but he does not have the power
to fix the bail and allow the accused
to go on temporary liberty. Only the
judges are allowed to fix the bail and
order the temporary liberty of the
accused until upon the posting of the
said bail.
The law says that a public officer must deliver the person
arrested to proper judicial authority within:
a) 12 hours, for crimes punishable by light penalties,
or their equivalent
b) 18 hours, for crimes punishable by correctional
penalties, or their equivalent
c) 36 hours, for crimes punishable by afflictive or
capital penalties, or their equivalent
ILLUSTRATION:
Q: What if a person has been arrested Inflagrante Delicto
in possession of an unlicensed firearm. Possession of
unlicensed firearm is punished by a special penal law (P.D.
1866 as amended). Is the arresting officer required to
deliver the accused to the proper judicial authorities? Does
Article 125 apply even to violation of special penal laws?
A: Yes, because the law says or their
equivalent. 12 hours, for crimes punishable by
light penalties, or their equivalent. That means all
their equivalent refers to their equivalent even in
cases of violation of special penal laws.
Therefore, even if the crime committed or the
crime for which the offender is being arrested is
based on violation of special penal laws, the
arresting police officer has the obligation to deliver
the person arrested to the proper judicial
authorities in consonance with Article 125 of the
Revised Penal Code.
Q: What if the police officers caught X in the actual act of
killing Y. So they saw X and Y fighting and they saw X

Dizon | Manalo | Navarez | Shyu | Tubio

Atty. V. Garcia
stabbed Y to death. Therefore, X is liable of homicide. They
arrested X and that was Saturday, 3 oclock in the
afternoon. Sunday, there is no office. The following day,
Monday, happens to be declared a special non-working
holiday. Therefore, the police officers were able to deliver X
to the proper judicial officer only on Tuesday, 8 oclock in
the morning. They were able to file the case in the Fiscals
office for purposes of proceedings Tuesday, 8 oclock in the
morning, beyond 36 hours which was required by law. Are
the police officers liable for arbitrary detention?
A: NO, the police officers are not liable for
arbitrary detention. The Secretary of the
Department of Justice has made a legal opinion
that the said 12, 18 and 36 hours refers to
WORKING HOURS. These refer to the time when
the courts are open in order to receive the cases
to be filed against them. This does not include the
crime wherein the courts are closed and they did
not receive the complaint or information to be filed
against the accused.
ARTICLE126 ARBITRARY DETENTION BY DELAYING
THE RELEASE OF PRISONERS DESPITE THE
JUDICIAL OR EXECUTIVE ORDER TO DO SO
ELEMENTS:
1. The offender is a public officer or employee
2. That there is a judicial or executive order for
the release of the prisoner or detention
prisoner, or that there is a proceeding upon a
petition for the liberation of such person.
3. That the offender without good/valid reason
delays: (1) the service of the notice of such
order to the prisoner; or (2) the performance
of such judicial or executive order for the
release of the prisoner; or (3) the proceeding
upon a petition for the release of such person.
NOTE: What is punishable is the delay without valid
reason, the delay of the release of the prisoner despite the
judicial or executive order to do so.
Example of judicial order for the release of a
prisoner lets say that a person has been charged
in court and the public prosecutor failed to present
any evidence for consecutive times and no
witnesses has ever been presented since the
beginning. The judge will dismiss the case and
order the release of the accused from jail. This is
an example of a judicial order for the release of a
prisoner. Or lets say the judge acquitted the
accused then he will order the release of the said
accused from jail.
How about an example of an executive order for a
release of a prisoner? A person was arrested and
placed behind bars and proceeding was filed
before the fiscals office. The fiscal ordered the

Page 13

CRIMINAL LAW REVIEW Book 2 Notes

Atty. V. Garcia

release of the prisoner. This is an example of


executive order for the release the prisoner.
Q: What if X has been charged of two crimes - Illegal sale
of dangerous drugs and illegal possession of dangerous
drugs? So, two crimes were filed against him. The illegal
possession of dangerous drugs was filed before the RTC
Branch 6 on the other hand; the illegal sale was filed before
RTC Branch 87. Two different courts were filed with. In the
illegal possession of dangerous drugs which was filed in
RTC Branch 6, no witnesses were ever presented and so
the judge immediately declared the dismissal of the case
and he ordered that X should already be released from jail.
However, the case for illegal sale of dangerous drugs
under RTC Branch 87 is still ongoing. The jail warden
receives the order coming from the judge RTC Branch 6
that X should be released. The jail warden did not comply.
Is the jail warden liable for arbitrary detention under Article
126 - Arbitrary Detention by delaying the release of
prisoners despite the judicial or executive order to do so?
A: NO, the jail warden is not liable for arbitrary
detention under Article 126 because there is still
another pending case against the said prisoner
before another court. Therefore, it is incumbent
upon him not to compel with the judge of Branch 6
since there is another case in Branch 87 which is
still ongoing. What the law punishes is delay
without valid reason for the release of the
prisoner.
ARTICLE127 EXPULSION
Expulsion is committed by public officers or employees who
shall expel any person from the Philippines or who compels
him to change his residence without any lawful authority to
do so.Again, the offender is a public officer or employee
who acts either:
a.) By expelling a person from the Philippines
b.) By compelling a person to change his
residence

What the law prohibits is that if this public officer


or employee expels him from the Philippines or
compels him to change his residence without
lawful authority to do so because there are
persons who have been authorized by law to
deport a person from the Philippines or to compel
a person to change his residence.

VIOLATION OF DOMICILE (ARTICLE 128, 129, 130)


a public officer or employee entered into a
dwelling of another which is not armed with a
search warrant
different prohibited acts constituting violation of
domicile:
I.
By entering any dwelling against the will
of the owner thereof; or
II.
By searching papers or other effects
found therein without the previous
consent of such owner; or
III.
By refusing to leave the premises, after
having surreptitiously entered
ARTICLE128 VIOLATION OF DOMICILE
ELEMENTS:
1. The offender is a public officer or employee

Who is the offender in the violation of domicile?


He must be a public officer or employee
acting under color of authority
A public officer or employee is said to be
acting under color of authority if he has been
vested with the authority to implement a
search warrant, but when he entered in the
said dwelling, he is not armed with a search
warrant. Therefore, he was acting under color
of authority.
Even if he is a public officer or employee, but
he did not act under color of authority, is
liable only, not for violation of domicile, but is
either liable for qualified trespass to dwelling
or trespass to property because the public
officer or employee is acting under his private
capacity.
2.

He was not authorized by a judicial order to enter


the dwelling and/or make a search therein for
papers or other effects
The second element requires that
entering upon the dwelling of another
which is not authorized by a judicial
order. The judicial order refers to a
search warrant

3.

He either enters the dwelling of another against

For example, the President has the power to


deport or expel a person from the Philippines.
Another example is a foreigner who is known to
be a persona non grata; the President may order
his deportation to his home.

Dizon | Manalo | Navarez | Shyu | Tubio

The courts on the other hand, have the power to


compel a person to change his place of residence.
Lets say the offender is a concubine and the
penalty to be imposed to a concubine is destierro.
Therefore, the concubine is prohibited from
entering a particular place based on the judgment
of the court. Now, theprohibited place from which
she is prohibited from entering is the place where
she lives. She cannot enter the said place
therefore; the court is empowered to compel her
to change her place of residence because she
cannot enter the place wherein her house is
situated.

Page 14

CRIMINAL LAW REVIEW Book 2 Notes


the will of the latter or searching for papers or
other effects found therein without the consent of
the owner, or after having surreptitiously entered
the dwelling, being discovered and asked to leave,
he refuses to leave.
The third elements provides for the different modes of
violation of domicile
(These three modes are separate and distinct from each
other do not look for all the three modes in a problem,
violation of one of them will bring about violation of
domicile)
1.
-

2.
-

3.
-

By entering any dwelling against the will of the


owner thereof; or
There must a prohibition, an opposition from entering.
It can either be an implied or expressed opposition
from entering.
Example:
implied opposition the door is closed. It can
be said that the owner is saying that No one
can enter my house
expressed prohibition when the owner is
inside the house and the officer knocks upon
the door and upon seeing the officer, the owner
closes the door.
if there are sayings Do not enter, No entry
It does not mean entering without the consent. An
entry without the consent is not an entry against the
will.
When you say entry against the will, there must be an
opposition or a prohibition from entering the dwelling.
By searching papers or other effects found therein
without the previous consent of the owner; or
The consent of the owner matters. Even if the public
officer or employee is allowed inside, the fact that he is
allowed inside does not mean that he is allowed to
conduct the search.
He must ask first for the previous consent of the owner
before proceeding with the search. Without the
previous consent of the owner to conduct the search,
any search would be a violation of domicile.
By refusing to leave the premises, after having
surreptitiously entered the dwelling
it is his refusal to leave the premises that will bring
about the violation of domicile, NOT the surreptitiously
entering. But it is required that entering must be done
surreptitiously.
Surreptitious entering means entering the dwelling
secretly, candidly.
Therefore, it is important that he mus-t refuse to leave
after being discovered and asked to leave in order to
amount to violation of domicile.
Mere surreptitious entering will not bring about
violation of domicile.

Dizon | Manalo | Navarez | Shyu | Tubio

Atty. V. Garcia
ILLUSTRATION:
Q:What if the door of the house was opened, a police
officer without being armed with a search warrant, entered
the door of the house and went up to the sala. The owner
of the house saw him and asked him to leave, and he left.
Is he liable for violation of domicile?
A: He is not liable for violation of domicile.
When the door of the house is open, there is no
prohibition; there is no opposition from entering.
Anybody may enter even without a search
warrant; therefore, since there is no prohibition or
opposition from entering, violation of domicile
cannot be committed under the first act. Under the
second act, it cannot be committed because he
did not conduct the search. The third act also not
done because the entering of the house is not
done surreptitiously.
Q: What if in the same problem, the door of the house was
opened, a public officer with the intent to conduct a search
warrant entered the house, when he was in the sala, the
owner of the house saw him and told him to leave. He did
not leave; he just stayed there and sat on the sofa. Is he
liable for violation of domicile?
A: He is not liable for violation of domicile.
Under the first act, is entry against the will? NO,
the door was opened. Therefore, there was no
opposition or prohibition from entering. Under the
second act, he did not conduct a search. Under the
third act, is the entering done surreptitiously? NO,
because the door of the house was opened;
therefore, he did not violate any of the following
acts amounting to violation of domicile.
But he did not leave the house, although the
owner of the house asked him to leave. Is he
liable?
Yes. He is liable for unjust vexation.
(Nangiinislangsiya)
Although he did not the house, he
cannot be liable for violation of
domicile because his act does not
constitute the acts prohibited by
Article 128.
Q: The door of the house was closed, but it was not locked.
A police officer without a search warrant opened the door,
realizing it was not locked, entered the house and went up
to the sala intending to conduct the search. Before he could
conduct the search, the owner of the house saw him, and
told him to leave and he left. Is he liable for violation of
domicile?
A: Yes. He is laible for violation of domicile.
Even if he left the said place upon being told to do
it, he is already liable because his entry was
against the will of the owner. The door was closed
although it was not locked. Therefore, there was

Page 15

CRIMINAL LAW REVIEW Book 2 Notes

Atty. V. Garcia

an implied opposition, an implied prohibition from


entering.When he entered without a search
warrant intending to conduct a search is already a
violation of domicile
Q: What if the police officer knocked on the door of the
house of X. X opened the door, upon seeing the public
officers, X allowed them to enter. The police officer told X
that they were looking for a stolen car stereo in the
neighborhood; we are going to conduct a search in your
house. X said, "No, you cannot conduct a search inside my
house. The police officers agreed and left the house. Are
they liable for violation of domicile?
A: They are not liable. It is not entry against the
will. They did not conduct a search. The entry was
not done surreptitiously. It does not fall any of the
acts, therefore, they are not liable for violation of
domicile.
Q: In the same problem, when they told the owner that they
were conducting a search for the stolen car stereo, the
owner of the house said, No, you cannot conduct a
search. There is nothing stolen inside my house but the
police officers proceeded with the search.
A: This time, they are liable for violation of
domicile because they made a search without the
previous consent of the owner under the second
act of Art. 128
Q: What if in the same problem, the owner of the house
told the police officers, No you cannot conduct a search,
there is nothing stolen inside my house The police officers
obliged, they were going to leave the house, obeying the
order of the owner. However, on their way out, before they
could go out, they saw near the door, a table and on top of
it, there were drug paraphernalia, contraband. And so, they
seized and confiscated the contraband and then thereafter
they leave the house. Are they liable for violation of
domicile? Are the evidences confiscated admissible against
the owner?
A: They are not liable of violation of domicile.
When they were told not to conduct the search,
they did not conduct the search and they were
about to leave, therefore, not liable for violation of
domicile. But they confiscated the drug
paraphernalia that they saw. Yes, the confiscated
drug paraphernalia were admissible against the
owner because they were contraband. They are
illegal per se. And the police officers saw them
without conducting the search, they saw them
inadvertently. Even without conducting the search,
the police officers would see contraband,
narcotics, in their presence, in their plain view,
they are mandated by law to seize and confiscate

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the same under the plain view doctrine. So in this


case, these drug paraphernalia where under the
plain view and therefore under the obligation to
seize and confiscate them and these are
admissible as evidence against the owner of the
house.
Q: What if a police officer was conducting a surveillance of
X, a well-known drug pusher, so he was always within the
vicinity of the house of X. One time, it was the birthday of
X, the gate of the house was open, and the door of the
house was opened. The police officer disguised himself as
one of the guests and he entered the house together with
the flow of the guests. His intention was to conduct a
search. He was already about to conduct the search when
the owner of the house recognized him. The owner of the
house came up to him. I know you, you are a police
officer. Get out of my house right now and he left. Is he
liable for violation of domicile?
A: No, he is not liable for violation of domicile.
The entry was done surreptitiously, secretly,
candidly, he was in disguise. It was not against
the will of the owner because the gates and the
door were open. He did not conduct the search
because the owner saw him before he could do
so. The entry was done surreptitiously. He was
discovered and ordered to leave, and he left.
Therefore, he is not liable for violation of domicile
However, upon being discovered and ordered to
leave and stayed in the house.
Here, he is liable for violation of
domicile.

Under Articles 129 and 130, there is still violation of


domicile despite the public officer or employee is
armed with a search warrant.

ARTICLE129 SEARCH WARRANTS MALICIOUSLY


OBTAINED AND ABUSE IN THE SERVICE OF THOSE
LEGALLY OBTAINED
Prohibited acts violation of domicile (search
warrants maliciously obtained and abuse in the
service of those legally obtained) is committed
through:
I.
By procuring a search warrant without just
cause
When a public officer or employee
conducts a search and the search
warrant was an illegally procured
search warrant. It was procured
without just cause.
SEARCH WARRANT is an order in writing, issued in the
name of the People of the Philippines, signed by a judge
and directed to a peace officer, commanding him to search

Page 16

CRIMINAL LAW REVIEW Book 2 Notes

Atty. V. Garcia

for personal property described therein and to bring to court


the particular things to be seized.
Before a search warrant may be issue, the following
are the requisites to a valid search warrant:
1.) It is required that it is for one specific offense.
2.) There must be probable cause
3.) The said probable cause was determined by the
issuing judge personally through searching questions
and answers in writing, under oath or affirmation as the
testimony given by applicant of the said search warrant
or any witnesses he may produce.
4.) The applicant of the search warrant and his witnesses
must testify only as to facts personally known to them
5.) The said search warrant must specifically state the
place to be searched and the place to be seized.
-

If any of these requisites is wanting, then the said


search warrant is illegally procured. It is procured
without just cause
A search conducted by virtue of a search warrant
illegally procured without just cause is a kin to a search
without a search warrant.

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


warrant, he procured the search warrant illegally without
just cause. The police had an enemy, B, then proceeded to
a judge to issue a search warrant testifying under oath, the
he is positive under his surveillance that B was in
possession of an unlicensed firearm inside his house. The
judge believed the police and issued a search warrant
against B. The police officer is now armed with a search
warrant, and went to the house of B and showed it to B. B,
upon reading the search warrant, knew it was maliciously
procured, it was procured without just cause. Should B
allow the police officer to conduct the search?
A: Yes. Even if the said search warrant was
procured without just cause, the police officer
must be allowed to enter and conduct the search,
because of the so-called, REGULARITY OF
PERFORMANCE OF DUTY on the part of the
judge in issuing the said search warrant. He is
armed with a search warrant issued by the judge
and therefore, he must allow him to enter his
house and to conduct his search.
What now would be the remedy of the owner
of the house?
The owner of the house has the
following remedies:
1.) He can file a motion to quash the
said warrant
2.) He can file a motion to suppress the
evidence that have been confiscated
inside the house.
In addition to these motions, he can
file a case of violation of domicile
against the said public officer who
conducted the search. Violation of

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II.

domicile under Art. 129 because he


procured the said search warrant
without just cause.
So in other words, the said police
officers must be allowed to enter and
allowed to conduct the search and the
owner of the house shall have the
abovementioned remedies thereafter.

By exceeding his authority or by using


unnecessary severity in executing a
search warrant legally procured
A search warrant is valid only for a period of 10
days from the date of its issuance appearing on
the search warrant.

ILLUSTRATION:
A search warrant was dated Dec. 1, a police officer
received it on Dec 3. The search was conducted Dec. 13.
The said search warrant is already invalid.

When they conducted the said search on Dec.


13, they already exceeded the authority in the
said search warrant. Therefore, they are liable
of violation of domicile under Article 129.
Q: What if the said search warrant says that they could
conduct the search, anytime of the day. They conducted
the search at night time.
A: They are liable of violation of domicile under
Article 129 because they exceeded the authority
in the said search warrant.
A search warrant may only be conducted at day time. It
may only be implemented at day time, EXCEPTIONS:

When there is a specific order in the


search warrant stating that if can be
conducted at anytime of the day or night.

Absence of such order in the said search


warrant, a search warrant can only be
implemented at day time.
Q: What if a search warrant was issued against X, the
place to be search is located at 123 valentiono St. They
police went there. The house was owned not by X, but by
Y. So they look for the house of X, the house of X was 321
valentino St. They presented a search warrant to X. X said,
you cannot conduct a search inside my house. The
address in the search warrant is 123 valentinost. and my
address is 321 valentinost. Nevertheless, the officers
conducted the search and they found the illegal items
inside the house. Are the police officers liable of violation of
domicile? Are the confiscated admissible evidence against
the owner?
A: The officers are liable for the violation of
domicile. When they conducted the said search,
on a house that has a different address from that

Page 17

CRIMINAL LAW REVIEW Book 2 Notes


said search warrant, they exceeded their authority
in the said search warrant. The search warrant is
so worded, expressly, as to the thing or place to
be searched. The police officer cannot exercise
discretion. They have to follow what is stated in
the search warrant. The moment they did not
follow what is stated in the search warrant, then
they exceeded the authority.

In that case, when there is variance between what


is stated in the search warrant and the actual facts
of the case to be searched, the have to go back to
the judge that issued the said search warrant and
they have to ask or move for the amendment of
the said search warrant.

Q: What if the third punishable act under Art. 129


amounting to the violation of domicile, when the public
officer or employee exercised excessive severity in the
implementation of the said search warrant.
What if a search warrant is issued against X, the
police officers went to the house of X, upon reaching the
house of X, they showed the warrant to X and he allowed
them to enter. The search warrant said that they could
search for dangerous drugs, particularly, shabu. In
searching for shabu, they turned upside down and
deliberately destroyed each and every furniture and
appliance inside the house of X. When the wife of X saw
this, she told the police officers to stop, but she was
slapped twice. she then suffered less serious physical
injuries. In deliberately destroying the furniture and
appliances of X, the public officers committed malicious
mischief. In slapping the wife, they committed less serious
physical injuries. What crime/crimes would you file against
the police officers?
A: You have to file 3 cases:
1. Violation of domicile because they
exercised excessive severity in the
implementation of the said search warrant.
They need not destroy the property. They
need not slap the wife. All of these are
excess of the search warrant.

Therefore they should be filed in


violation of Art. 129, violation of
domicile, for exercising excessive
severity.
2. Malicious mischief for destroying the
furniture and appliances
3. less serious physical injuries for slapping
the wife

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


must be file within the court?

Violation of domicile cannot absorb malicious


mischief nor less serious physical injuries.

Although in reality, these two are merely the


manifestations of the excess in the

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Atty. V. Garcia

implementation of the said search warrant, they


cannot be absorbed, they cannot be complex.
Under Art. 129, he expressly prohibits such
absorption and such complexity of crimes
Under Article 129, the liability for violation of
domicile shall be in addition to the liability
attaching to the offender for commission of any
other crime. Therefore, if aside from violation of
domicile, Another crime is committed by the
police officers, they had to be charged with all
these cases. Art. 129 prohibits the complexing
of a crime. It also prohibits the absorption of
this crime, therefore all 3 cases must be filed
against the said police officers.

ARTICLE130 SEARCHING DOMICILE WITHOUT


WITNESSES
Prohibited act:
I.
By conducting a search in the absence of the
owner of the house, or any member of his
family, or two witnesses residing in the same
locality
ILLUSTRATION:
Q: What if under Article 130, violation of domicile is
committed when the search was conducted in the absence
of the owner of the house, or any member of his family or
two witnesses residing from the same locality.
A search warrant was issued against X and the
police officers went to the house of X. They showed the
search warrant to X and they were allowed inside to
conduct the search. In conducting the search, the search
was witnessed by 2 barangay tanods who came with them,
who arrived with them in the house of X. in the conduct of
the search, they told the owner of the house, X, that his
wife and his two children to remain in the sala while they
conduct the search inside the bedroom of X. In conducting
the search in the bedroom of X, the search was witnessed
by 2 barangay tanods and they found 2 plastic sachets of
shabu underneath the pillow inside the bedroom of X. Are
the police officers liable of violation of domicile under
Article 130? Are the evidence seized admissible against
the owner?
A: The police officers are liable of violation of
domicile under Article 130.
Article 130 provides for an hierarchy of witnesses
who must be present in the conduct of the search.
The law says it must witnessed by the owner of
the house, it is only in the absence of the owner of
the house that it must be witnessed by any
member of his family. It is only in the absence of
the owner of the house or any member of his
family that there must be 2 witnesses residing
from the same locality.
In the problem, the owner of the house was
there, the members of his family were there

Page 18

CRIMINAL LAW REVIEW Book 2 Notes


but, they were not allowed to witness the said
search. Therefore, the said search was
conducted in violation of Article 130 and any
evidence confiscated will be inadmissible
against the owner of the house for being fruits
of poisonous tree under the exclusionary rule in
Political Law
GALVANTE VS. CASIMIRO
The Supreme Court says,
There is no such crime as illegal search. So, what
is prohibited only the searching of the dwelling under Article
129. But, in case of search under vehicle or any other
places, there is no such thing as illegal search. The remedy
is to file an action for damages, a civil action for damages.
ARTICLE131 PROHIBITION, INTERRUPTION AND
DISSOLUTION OF PEACEFUL MEETINGS
This is committed by a public officer or employee
who commits any of the following acts:
I.
By prohibiting or by interrupting,
dissolving, without legal ground, the
holding of a peaceful meeting, or by
dissolving the same. (any peaceful
meeting)
II.
By hindering any person from joining any
lawful association or from attending any
of its meetings.
III.
By prohibiting or hindering any person
from addressing, either alone or together
with others, any petition to the authorities
for the correction of abuses or redress of
grievances.

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


that was prevented, interrupted or dissolved must be a
peaceful meeting and it must be for any lawful
purpose. If the meeting is not a peaceful meeting or if
the meeting is not for lawful purpose, a public officer or
employee has all the rights to prevent, interrupt or
dissolve the said meeting.

This is in the exercise of the freedom of speech,


freedom of expression and freedom of assembly. However,
these 3 freedoms are not absolute. The Supreme Court
has enjoined the power of the State to regulate these
meetings through permits.
Before any of these peaceful meetings for a lawful purpose
may be held in a public place, there must be a permit
coming from the local authority of the place. The permit is
only to regulate the said meeting and not to prohibit it.
Regulate as to the time, place and to the date, so that the
public would not be in inconvenience.

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Atty. V. Garcia
ARTICLE132 INTERRUPTION OF RELIGIOUS
WORSHIP
ELEMENTS:
1. This is committed by an offender who is again
a public officer or employee.
2. Then there is a religious ceremony or
manifestations of any religion are about to
take place or are going on.
3. That the offender prevents or disturbs the
said religious worship or religious ceremony.
If the offender makes us of violence or threats in
committing the crime, such use of violence or
threats would not constitute a separate and
distinct charge. Rather it is considered as an
aggravating or qualifying circumstance which
would mean an imposition of a higher penalty.
ILLUSTRATION:
Q: So what if there is a barrio fiesta and the priest is about
to celebrate the mass. Here comes X and he went to the
priest and point the gun to the priest. Then the priest was
about to celebrate the mass. At first the priest did not mind
him. But X intentionally pointed the gun to the head of the
priest and said, I will kill you if you will celebrate the mass!
So the priest did not celebrate the mass and all the faithful
went out of the church. What crime if any is committed by
X?
A: X is liable for interruption of religious
worship under Article 132. What about the fact
that he pointed a gun at the head of the priest?
Would it constitute a separate and distinct crime of
grave threats? It will not. The fact that threats
were employed in the commission of the crime
would only mean the penalty will be imposed in its
maximum period. It would be considered an
aggravating circumstance in committing the crime
of interruption of religious worship. BUT, IT WILL
NOT BRING ABOUT A SEPARATE AND
DISTINCT CHARGE FOR GRAVE THREATS OR
EVEN UNDER LIGHT THREATS.
ARTICLE133 OFFENDING THE RELIGIOUS FEELINGS
ELEMENTS:
1. Committed by a public officer or employee or
a private individual.
The first element provides for the
offender. The offender may be a
public officer or employee or a
private individual. This is the only
crime under Title Two where the
offender can be a private individual.
From Article 124 to Article 132 under
Title Two, the offender can ONLY be
a public officer or employee. The

Page 19

CRIMINAL LAW REVIEW Book 2 Notes


only exception is Article 133,
offending the religious feelings
wherein the offender can either be a
public officer or employee or a
private individual. The reason is,
whoever may be the offender, a
public officer or employee or a
private individual, there will be the
same offense made on the feelings
of the faithful.
2.

3.

The said offender performs acts (1) in a place


devoted to religious worship, or (2) during the
celebration of any religious ceremony.
The second element requires that
the
offender
performs
acts
notoriously offensive to the feelings
of the faithful. Acts notoriously
offensive to the feelings of the
faithful are those acts directed
against their religious dogma, ritual,
faith of the religion, or mocks,
ridicule, or scoffs of the said dogma,
ritual, faith or he attempts to damage
the object of veneration of a certain
religion. The law says notoriously
offensive, according to Reyes, it
means that it is offensive to all
kinds of religion. If the same thing
would be done to any religion they
will also be offended.

Atty. V. Garcia
was being received by Catholics during communion. He
poured the host in the floor then he destroyed them, spit on
them and stepped on them. Is he liable under Article 133?
A: YES. The act he performed is notoriously
offensive to the feelings of the Catholics. If the
same act is done to the object of veneration of the
Buddhists or if the same act is done to the object
of veneration of the Muslims, they will also be
offended. Therefore, it is notoriously offensive to
the feelings of the faithful because even if it is
applied to other religions they would be offended
too. And it was done in a place devoted to
religious worship because it is done inside the
church even if no religious ceremony is ongoing.
Q: What if inside the PICC there was this art exhibit
ongoing and one artist, this was a controversy before right?
There was this picture of Jesus Christ and on the picture of
Jesus Christ he put a representation of a penis on his face.
Is the said artist liable under Article 133 offending the
religious feelings?
A: NO. He cannot be liable for offending
religious feelings under Article 133. Because
the PICC is not a place devoted for religious
worship and the art exhibit is not a celebration of a
religious ceremony. Therefore, since the last
element is not present even if it offends religious
feelings, he cannot be held liable under Article
133 for the absence of the 3rd element.

That the acts must be notoriously offensive to


the feelings of the faithful.
The third element requires that the
said acts notoriously offensive to the
feelings of the faithful can be
committed only (1) in a place
devoted to religious worship, or (2)
during the celebration of any
religious ceremony. The law uses
the word or therefore, if the act is
done in a place devoted to religious
worship, it is not necessary that
there be a religious ceremony
ongoing. Because it can either be
with or without a religious ceremony
for as long as the place is devoted
for religious worship.

ILLUSTRATION:
Q: So what if X (A private individual) entered a catholic
church after that the tabernacle was opened and he took
out the chalice and inside the chalice was the host which

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Page 20

CRIMINAL LAW REVIEW Book 2 Notes


TITLE THREE
CRIMES AGAINST PUBLIC ORDER (Articles
134 160)
ARTICLE134 - REBELLION OR INSURRECTION
ELEMENTS:
1. That there must be (a) public uprising, and (b)
taking arms against the Government
2. That the purpose of the uprising or movement
is either
a.
to remove from the allegiance to said
Government or its laws:
(1)
the territory of the Philippines or
any part thereof; or
(2)
any body of land, naval or other
armed forces; or
b.
to deprive the Chief Executive or
Congress, wholly or partially, of any their
powers or prerogatives.
The essence or the gravamen of REBELLION is :
The armed uprising against the Philippine
Government. So it is a public uprising with the taking
up of arms. AN ARMED PUBLIC UPRISING.
In case of Rebellion, it can be committed by any
person, or with a participation of the public.
THE LEADERS - Any person who
(a) promotes
(b) maintains or
(c) heads a rebellion or insurrection
THE PARTICIPANTS Any person who
(a) participates
(b) executes the commands of others in rebellion or
insurrection
ARTICLE134-A COUP DETAT
ELEMENTS:
1. That the offender is a person or persons
belonging to the military or police or holding any
public office or employment;
2. That it is committed by means of a swift attack
accompanied by violence, intimidation, threat,
strategy or stealth;
3. That the attack is directed against duly constituted
authorities of the Republic of the Philippines, or
any military camp or installation, communication
networks, public utilities or other facilities needed
for the exercise and continued possession of
power;
4. That the purpose of the attack is to seize or
diminish state power.

Committed by any person or persons belonging to the


military or police or holding any public office or
employment, with or without civilian support, carried
out singly or simultaneously anywhere in the
Philippines for the purpose of seizing or diminishing
state power.

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Atty. V. Garcia

The essence of COUP DETAT is a swift attack


directed against the duly constituted authorities, with or
without civilians.

REBELLION
Essence an Armed public
Uprising
against
the
Government
Crime of the Masses, it
involves a multitude of
people

Purpose Overthrow the


Government
of
the
Philippines and replace it
with the Government of the
Rebels
Can only be committed by
means of force and violence

COUP DETAT
Essence swift attack
against the duly constituted
authorities
It can be committed with or
without the participation of
the public because it says,
with or without civilian
support, provided it has
been committed by any
member of the military, the
police or those holding
public office or employment.
Purpose only to diminish
state power, to destabilize
the government, not entirely
to
overthrow
the
government.
Can be committed not only
by means of force and
violence but also by means
of
intimidation,
threat,
strategy or stealth

THE LEADERS - Any person who


(a) leads
(b) directs or
(c) command others to undertake a coup detat
THE PARTICIPANTS Any member of the Government
who
(a) participates
(b) executes the commands of others in undertaking a coup
detat
Any person who is not in the Government service who
(a) Participates
(b) Supports
(c) Finances
(d) abets or
(e) aids in the undertaking of a coup detat

What if common crimes are committed in the


course of Rebellion?
Common crimes committed in furtherance of,
incident to or in connection with Rebellion are
considered as ABSORBED in the crime of
Rebellion known as the THEORY OF
ABSORPTION IN REBELLION.

THEORY OF ABSORPTION IN REBELLION


Whenever in the course of committing rebellion,
murder, homicide, arson, physical injuries, other
common crimes are committed, and these
common crimes are in furtherance to, incident to,

Page 21

CRIMINAL LAW REVIEW Book 2 Notes


in connection with Rebellion is considered as
absorbed in the crime of Rebellion. Therefore,
only one charge of Rebellion should be charged
against the said offender.
ENRILE v SALAZAR
Senator Juan Ponce Enrile was charged with the Following
crimes:
1. charged with Rebellion
2. charged with multipleMurder
3. Multiple frustrated murder
4. violation of PD 1829 obstruction of Justice because
he harbored or concealed then Colonel Gregorio
Honasan.

What did the Supreme Court say?


The Supreme Court said:
only one charge and it should be rebellion. The
violation of PD 1829, the multiple murder and
multiple frustrated murder are absorbed in
Rebellion under the theory of absorption in
Rebellion.
The Supreme Court further said that although
violation of PD 1829 is a violation of a special
penal law, still if it is committed in furtherance of
Rebellion, it can still be absorbed in the crime of
Rebellion.

ILLUSTRATION:
Q: What if a police officer was on his way to the office,
suddenly here comes a member of the NPA, he saw the
police officer and shot him. What crime is committed? is it
Rebellion or murder?
Rebellion can only be absorbed common
crime such as murder, if the commission
of the crimes was done in furtherance of
Rebellion. Therefore, it is necessary that
there must be evidence shown in what
way the said killing has promoted,
fostered the idea of the Rebels. Absent
any connection with the commission of
the common crime and the furtherance of
rebellion, the appropriate charge is only
murder, homicide, arson or physical
injuries as the case maybe.
A: In the case, the proper charged would be
murder. There was no evidence showing in what
way the said NPA has promoted the ideas of the
Rebels in killing of the said police officer. Absent
of that evidence, it would be a charge of murder
and not rebellion.
Rebellion is a continuing crime. Therefore, these
NPA who rebelled against the Government, to
overthrow the Government, that one time uprising
is sufficient, they are already considered as rebels
because it is a continuing offense.

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Atty. V. Garcia
GONZALES v ABAYA
Senator Trillanes and company was charged with 2 crimes,
coup detat in the RTC of Makati and the violation of
articles of war, particularly acts of unbecoming of an officer
and a gentleman filed before the military court. While the
case was pending in the RTC of Makati, the lawyer filed a
petition, a motion, saying that the violation of the articles of
war should be absorbed by the case filed before the RTC
of Makati. Can Coup detat absorb the violations of article
of war?

The Supreme Court ruled in the NEGATIVE.

According to the Supreme Court, for the theory


of absorption to apply, it is necessary that both
cases must be heard or may be heard before
the same civilian court.

In this case, the coup detat must be heard in a


civilian court, RTC of Makati, whereas the
violations of the articles of war can be heard
only before a military court. Therefore, one
cannot absorb the other.

Second reasoning given by the Supreme


Court, for the theory to absorption to apply, it is
necessary that both crimes are punished by the
same penal statute

Third reasoning, violation of the articles of war


is sui generis. It is a kind of its own. Nothing
compares to it. Therefore, it cannot be
absorbed by any other crime.
ARTICLE136 CONSPIRACY AND PROPOSAL TO
COMMIT
COUP
DETAT,
REBELLION
OR
INSURRECTION
There
is
CONSPIRACY
TO
COMMIT
REBELLION when two or more persons come
into an agreement concerning the commission of
rebellion (to rise publicly and take arms against
the Government to any of the purposes of
rebellion) and decide to commit it.
There is PROPOSAL TO COMMIT REBELLION
when a person who decides to commit rebellion
proposes its execution to another person it is
necessary that the other person would not agree,
if that person agree, then it is already conspiracy
to commit rebellion
Conspiracy is a bilateral act which involves two or
more persons, whereas proposal is a unilateral act
only one person decides to commit the crime and
he proposes its execution to another person.
There is a conspiracy to commit coup detat the same
way of committing it. Also the proposal to commit coup
detat.
ARTICLE138 INCITING TO REBELLION OR
INSURRECTION
Inciting to Rebellion is a crime under the Revised Penal
Code.
ELEMENTS:
1. It is committed by any person who does not take
up arms or is not in open hostility with the
Government

Page 22

CRIMINAL LAW REVIEW Book 2 Notes


2.

he incites others to uprise for any of the purposes


of rebellion (incite others to the execution of any of
the acts of rebellion)
3. by means of speeches, proclamations, writings,
emblems, banners or other representations
tending to the same end.
There is NO SUCH CRIME AS INCITING TO COUP
DETAT.

Atty. V. Garcia

SEDITION (ARTICLE 139)


ELEMENTS:
1. That the offender rise (1) publicly, and (2)
tumultuously;
2. That they employ force, intimidation or other
means outside of legal methods;
3. That the offenders employ any of those means to
attain any of the following objectives:
a.
To prevent the promulgation or execution
of any law or the holding of any popular
election
b.
To prevent the National Government, or
any provincial or municipal government,
or any public officer thereof from freely
exercising its or his functions, or prevents
the execution of any administrative order;
c.
To inflict any act of hate or revenge upon
the person or property of any public
officer or employee;
d.
To commit, for any political or social end,
any act of hate or revenge against
private persons or any social class; and
e.
To despoil, for any political or social end,
any person, municipality or province or
the National Government of all its
property or any part thereof
There is a public uprising again but no taking up of
arms but it is done tumultuously by means of
force, intimidation or any other means outside the
legal methods.

Therefore, based on the objects of sedition, the


purposes of sedition can either be political in nature or
social in nature.

The purpose of sedition is not to overthrow the


government but to go against what the
government wants to implement. To go against a
new law, an administrative order or public officer
or employee.
It is a disturbance, a commotion against the lawful
command of the authority.
The rallies that you see everyday, the rallies
against a new law to be implemented, they are
considered as ordinary protest or rallies, but the
moment they are carried outside of legal methods,
by means of force and violence, they will become
to be a seditious act.

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


seditious because there is the public uprising, done
tumultuously, by means of force, violation or any other
means outside of the legal method.

Dizon | Manalo | Navarez | Shyu | Tubio

REBELLION
SEDITION
Both have a public uprising
Objective Political in nature Objective can either be
To
overthrow
the Political or social in nature
Government and to replace
the it with the Government of
the Rebels
ARTICLE141 CONSPIRACY TO COMMIT SEDITION
There is a crime conspiracy to commit sedition but
not proposal to commit sedition. A proposal to
commit sedition is not a punishable act under the
RPC.
ARTICLE142 INCITING TO SEDITION
ELEMENTS:
1. The offender is not a participant (does not take
direct part) in the crime of sedition
2. He incites others to uprise for any of the purposes
of sedition
3. By means of speeches, proclamations, writings,
emblems,
cartoon,
banners,
or
other
representation tending to the same end.

Inciting to Rebellion or Inciting to Sedition can only


be committed by a person who is not a participant
in the Rebellion or the Sedition, because if he is a
participant in the Rebellion or Sedition, the
appropriate charge is Rebellion or Sedition as the
case may be. Not merely inciting to Rebellion or
Sedition.

Inciting to Sedition is committed not only by


inciting others for any of the purposes of sedition.
Different acts of inciting to sedition:
I.
Inciting others to the accomplishment of any
of the acts which constitute sedition by means
of
speeches,
proclamations,
writings,
emblems, etc.
II.
Uttering seditious words or speeches which
tend to disturb the public peace
III.
Writing, publishing or circulating scurrilous
libels against the Government, or any of the
duly constituted authorities thereof, which
tend to disturb the public peace.

USE OF UNLICENSED FIREARM (PD 1866 as amended


by RA 8294 otherwise known as the laws on
illegal/unlawful possession, manufacture, dealing in,
acquisition or disposition of firearms, ammunition or
explosives or instruments used in the manufacture of
firearms, ammunition or explosives)
See: People vs. Ladjaalam and Celino Sr. vs. People
Under Section 1 If the use of an unlicensed
firearm is in furtherance of, incident to, or in
connection with the crime of rebellion or sedition,
or attempted coup dtat, such use of unlicensed

Page 23

CRIMINAL LAW REVIEW Book 2 Notes


firearm shall be absorbed in the crime of rebellion,
sedition or attempted coup dtat.

Therefore, the use of unlicensed firearm in case of


rebellion or sedition, or attempted coup dtat will
not bring about a separate or distinct charge.
There is only one crime that is rebellion or
sedition, or attempted coup dtat. The use of
unlicensed firearm is not even an aggravating
circumstance. It is absorbed in the crime of
rebellion or sedition, or attempted coup dtat.

Under the same Section 1 of PD 1866 as


amended by RA 8294, if the use of an unlicensed
firearm is in the crime of homicide or murder, as
the case may be, the use of unlicensed firearm
shall be considered as an aggravating
circumstance. So in the law, it is an
AGGRAVATING CIRCUMSTANCE.

WHAT
KIND
OF
AGGRAVATING
CIRCUMSTANCE?
As decided by the Supreme Court in number
of cases, it is a SPECIAL AGGRAVATING
CIRCUMSTANCE which cannot be offset by
any mitigating circumstance. The Supreme
Court also held that the use of the word
homicide or murder under Section 1 is in its
generic sense, therefore, whatever be the
kind of killing for as long as the unlicensed
firearm is used, such use of unlicensed
firearm is considered as a SPECIAL
AGGRAVATING CIRCUMSTANCE.

ILLUSTRATION:
Q: So if a son had an argument with his father, in the
course of the argument with his father, the son killed the
father, the firearm was recovered. What crime or crimes
would you file against the son?
A: The son is liable of the crime ofPARRICIDE,
for having killed his own father. The use of
unlicensed firearm shall be considered as a
SPECIAL AGGRAVATING CIRCUMSTANCE.
Because as held by the Supreme Court, the use
of the word murder is in its generic sense,
therefore it includes any kind wherein the
imposable penalty is RECLUSION PERPETUA
TO DEATH such as Parricide.
Under Section 1 of PD 1866 as amended, it also provided
that a person can only be held liable of illegal possession of
unlicensed firearm provided that no other crime was
committed by the person arrested. It is necessary that no
other crime was committed by the person arrested.

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Atty. V. Garcia
PEOPLE VS. LADJAALAM
The police officers armed with a warrant of arrest
went to the house of WalpanLadjaalam to effect
the warrant of arrest. WalpanLadjaalam, upon
seeing the police officers, fired shots at the
officers. Hence, he was charged with direct
assault with multiple attempted homicide. Aside
from that, he was also charged with illegal
possession of unlicensed firearms. He was
convicted of both crimes before the Regional Trial
Court. On appeal before the Supreme Court, SC
said the illegal possession of firearms case should
be dismissed. He should be acquitted in the said
case because he committed another crime, and
that is, DIRECT ASSAULT WITH MULTIPLE
ATTEMPTED HOMICIDE.
What about in the case of CELINO, SR. VS. PEOPLE?
In this case, it was election time, there was a
COMELEC gun ban. A person was found in
possession of an unlicensed firearm. Arrested, he
was charged of 2 crimes: (1) violation of the
COMELEC gun ban, and (2) illegal possession of
unlicensed firearms. During the arraignment for
the violation of the COMELEC gun ban, he
pleaded not guilty. However, during the
arraignment for illegal possession of an
unlicensed firearm, he filed a motion to quash the
information. According to him, he cannot be
charged of illegal possession of an unlicensed
firearm because the law says that you can only be
charged of illegal possession of an unlicensed
firearm provided that no other crime is committed
by the person arrested. He said here, he
committed violation of COMELEC gun ban,
therefore, he can no longer be liable for violation
of PD 1866 that is Illegal Possession of
Unlicensed Firearm.
IS HIS CONTENTION CORRECT?
His contention is wrong because according
to the Supreme Court, when the law says
provided that no other crime is committed by
the person arrested, the word committed
means that there is already a final
determination of guilt a final conviction of
guilt based on a successful prosecution or a
judicial admission. Therefore, the word
committed means he has already been held
guilty beyond reasonable doubt a final
judgment.

In the case of CELINO SR., he was not yet convicted. He


was only being prosecuted. He was only being charged of

Page 24

CRIMINAL LAW REVIEW Book 2 Notes


illegal possession of unlicensed firearm. Therefore, both
cases can proceed. He can be charged both of illegal
possession of unlicensed firearms and violation of
COMELEC gun ban. However, the moment he is convicted
of violation of COMELEC gun ban, he should be acquitted
of illegal possession of unlicensed firearm, because this
time, the law says provided that no other crime is
committed by the person arrested. Therefore, a final
conviction is necessary before the illegal possession
of unlicensed firearm may be dismissed or he may be
acquitted of the same. So that is the relation of PD 1866
to sedition, rebellion and coup dtat.
ARTICLE143 ACTS TENDING TO PREVENT THE
MEETING OF THE ASSEMBLY AND SIMILAR BODIES
Punishes acts preventing the meeting of Congress
The crime is committed if there is a projected or
actual meeting of the Congress and the offender,
by means of force or fraud, prevents such meeting
The offender here is any person: he may be a
private individual, public officer or employee
It is necessary that the offender prevents the
meeting of the Congress or any of its committees,
or constitutional committees or any provincial city
or municipal board.
ILLUSTRATION:
Q: So what if there is a meeting of the Sangguniang
Panlungsod. It was being presided by the Vice Mayor as
the presiding officer of the city council. During the session
of the SangguniangPanlungsod, here comes the mayor
together with some police officers. They entered the
session of and disturbed and prevented the said meeting
by force. What crime, if any, was committed?
A: It is the violation of Article 143 ACTS
TENDING TO PREVENT THE MEETING OF
CONGRESS AND SIMILAR BODIES.
ARTICLE144 DISTURBANCE OF PROCEEDINGS
Punishes disturbance of proceedings
In disturbance of proceedings, there is a meeting
of Congress or of any of its committees or
subcommittees, constitutional commissions or
committees or divisions thereof, or of any
provincial board or city or municipal council or
board
The offender either disturbs any of such
proceedings or he behaves while in the presence
of such proceedings in such a manner as to
interrupt the proceedings or impair the respect
due it.
So here, it is necessary that the offender, who
was present in the meeting, either he disturbs the
said proceeding, or while being there, he

Dizon | Manalo | Navarez | Shyu | Tubio

Atty. V. Garcia
performed an act which impair the respect due to
them or which interrupted the said proceeding
ILLUSTRATION:
Q: The FREEDOM OF INFORMATION BILLwas on the
committee level. It was votation time. On the right side of
the said place or meeting, there were some observers or
people who were coming from the media. On the left side,
there were ordinary people who do not agree on the
freedom of information bill. It was time to vote for the
passage of Freedom of Information bill, the members of the
committee were voting when suddenly some members of
the media immediately pulled out a placard and shouted:
YES TO FREEDOM TO INFORMATION BILL!Are they
liable of any crime?
A: YES. They are liable of disturbance of
proceedings under Article 144. Because while
in the presence of the said meeting, they behaved
in such a manner as to interrupt the proceedings,
or impair the respect due it.
ARTICLE145 VIOLATION OF PARLIAMENTARY
IMMUNITY
Punishes violation of parliamentary immunity
There are TWO (2) ACTS
PUNISHED IN
VIOLATION OF PARLIAMENTARY IMMUNITY:
1. Penalty: Prision Mayor committed
by any person who by means of
force, intimidation, fraud or threat, or
any other means and by said means,
he tried to prevent any member of
the Congress either from attending
any meeting of the Congress or its
committees
or
subcommittees,
constitutional
commissions
or
committees or divisions thereof ,
from expressing his opinions or
casting his vote

can be committed by
anyone
(private
individual, public officer
or employee)
2.

Penalty: PrisionCorreccional can


only be committed by a public officer
or employee who shall, while the
Congress is in regular or special
session, arrest or search any
member thereof, except in case such
member has committed a crime
punishable under this Code by a
penalty higher than prision mayor.

Offender should be
only a public officer or

Page 25

CRIMINAL LAW REVIEW Book 2 Notes

employee and not any


individual because any
individual cannot make
a search or arrest a
member
of
the
Congress
It is necessary that at
the time of the arrest,
the
member
of
Congress,
the
Congress must be in
its regular or special
session.
Likewise,
it
is
necessary that the said
member of Congress
has committed a crime
which is not higher
than Prision Mayor.

ILLUSTRATION:
Q: How about in the case of Panfilo Lacson?
A: The case against Sen. Lacson was fortunately
dismissed by the Court of Appeals. But let us say,
it is not dismissed by the Court of Appeals, he was
being charged of double murder Dacer-Corbito
double murder slay. He went into hiding. Let us
say that he made his appearance. Can he be
arrested even if the Congress is in regular or
special session? YES. Because the crime
committed by him is punishable by a crime
committer higher than prision mayor. It is
punishable by reclusion perpetua. Therefore, had
it not been dismissed by Congress and he
apparently appeared and the Congress is in
regular or special session, he could be arrested.
Q: What if a Congressman is charged with the crime of libel
before the RTC. The RTC issued a warrant of arrest
against the Congressman. The police officers armed with a
warrant of arrest went inside the walls of Congress and
they arrested the said Congressman. Are the police officers
liable under this Article?
A:YES, they are liable for violation of
parliamentary immunity under the second.
Because at the time the Congress is in its regular
session and they arrested the said Congressman,
Libel under Article 355 is punishable only by
Prision Correcional in its minimum and medium
period, therefore it is below Prision Mayor, hence,
the Congressman cannot be arrested while the
Congress is in its regular or special session.

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Atty. V. Garcia
Q: What if Congressman A is charged with the crime of
attempted homicide. The fiscal found probable cause, the
case was filed in court. The court agrees with the fiscal and
a warrant of arrest was issued against Congressman A.
The warrant of arrest was issued by the judge on
December 24, the police officers had possession of the
said warrant of arrest on December 25, on Christmas Day.
While Congressman was inside his house, the police
officers arrived and arrested the said Congressman for
having been charged of the crime of Attempted Homicide.
The penalty for Attempted Homicide is Prision Correcional
because under Article 249, the penalty for Homicide is
Reclusion Temporal and the attempted is two degrees
lower, one degree is Prision Mayor, two degrees lower is
Prision Correcional, therefore, the penalty to be imposed in
this Attempted Homicide is Prision Correcional. So the
police officers armed with a warrant of arrest went inside
the house of the Congressman and arrested him on
Christmas Day, December 25, are the police officers liable
for violating parliamentary immunity under Article 145?
A:YES, they are liable for violation of
Parliamentary
Immunity.Because
during
Christmas break or during Holy week break or any
other kind of break, Congress is still in its regular
session. Because as stated in Political Law, in
Constitution, when does Congress start? 4th
Monday of July, that is when the President states
his SONA. When does Congress ends? 30 days
before the start of Congress. Therefore, during
Christmas break or during Holy week break or any
other break, the Congress is still in its regular
session. Any arrest of a member of Congress
during this time, if the said member of Congress
has not committed a crime where a penalty is
higher than Prision Mayor, shall be punished as
violation parliamentary immunity under Article 145.
ARTICLE146 ILLEGAL ASSEMBLY
There are 2 KINDS OF ILLEGAL ASSEMBLY:
I.
Any meeting attended by armed persons for
the purpose of committing any of the crimes
punishable under this Code
ELEMENTS:
1. That there be a meeting, a
gathering or group of
persons, whether in fixed
place or moving
2. The meeting is attended by
armed persons
3. The purpose of the meeting
is to9 commit any of the
crimes punishable under
the Code

Page 26

CRIMINAL LAW REVIEW Book 2 Notes


II.

Any meeting in which the audience, whether


armed or not, is incited to the commission of
the crime of treason, rebellion or insurrection,
sedition or assault upon a person in authority
or his agents
ELEMENTS:
1. There is a meeting, a
gathering or group of
persons, whether in fixed
place or moving
2. The audience, whether
armed or not, is incited to
the commission of the
crime of treason, rebellion,
or insurrection, sedition or
direct assault
The said gathering of
men or men, may or
may not be armed. It is
not required that they
be armed. Provided
that
the
audience
where
incited
to
commit
treason,
rebellion,
or
insurrection, sedition or
assault upon a person
in authority or his
agents)

In case of illegal assembly, it is only necessary that


there be a meeting, the meeting must be attended
by armed persons, under the first mode. In here,
when it says armed persons, it is not required that
all those persons present in the meeting must be
with arms. It suffices that one, two or more, or some
of them would be with arms.
When we say arms, it does not only mean firearms,
it refers to any things, knives, stones, anything which
can cause violence or injury to another person.
It is necessary however, that the purpose of the
meeting is unlawful that is to commit any of the
crimes punishable under the RPC.
Under the second mode of committing illegal
assembly, again there is a meeting, and there is no
requisite that those in attendance must be armed,
therefore, they may or may not be with arms. But it is
requires for the crime to arise that the audience
must be incited to commit treason, rebellion, or
insurrection, sedition or assault upon a person in
authority or his agents. Otherwise, the crime will not
arise.

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Atty. V. Garcia

In case of illegal assembly, the organizers or leader


of the meeting will be criminally liable, as well as the
persons merely present in the said meeting.
Under Article 146, first paragraph, last sentence
it is provided that persons who are merely present at
the meeting shall be punished by Arresto Mayor,
unless they are armed, the penalty shall be Prision
Correcional, therefore, whether you are armed or
not, you can be held criminally liable for illegal
assembly, it will only differ in the penalty.
o If you are armed - Prision Correcional
o Not armed - Arresto Mayor (lower)

ARTICLE147 ILLEGAL ASSOCIATIONS


WHAT ARE ILLEGAL ASSOCIATIONS?
1. Associations totally or partially organized for the
purpose of committing any of the crimes
punishable under the Code
2. Associations totally or partially organized for some
purpose contrary to public morals
In case of illegal associations, it is necessary that
there be a formation of a group, not merely a
meeting and in the said association, not only the
members of the association should be penalized, but
also the founders, directors and president of the said
association or organization should be held criminally
liable.
ILLEGAL ASSEMBLY
the purpose will always be
a violation under the RPC.
Even under the second
mode inciting to commit
treason, rebellion, or
insurrection, sedition or
assault upon a person in
authority or his agents
Necessary that there is an
actual meeting or
assembly
Meeting and the
attendance at such
meeting are the acts
punished

ILLEGAL ASSOCIATION
the purpose of the
association may be for
purpose of committing crimes
violating the RPC or even in
violation of special penal
laws, provided that it is in
violation of special penal law,
it must be against public
morals
Not necessary that there be
an actual meeting
Act of forming or organizing
and membership in the
association are the acts
punished

ILLUSTRATION:
Q: So what if A, B and C gathered 20 persons and
proposed to them the idea of committing simultaneous
bank robbery all over Metro Manila, so they will commit
robbery in 4 banks simultaneously. So these 20 men
agreed to the said commission of bank robbery, and after
they have come to the agreement, here comes the police,
the police got a tip from an informer, the police arrived and

Page 27

CRIMINAL LAW REVIEW Book 2 Notes


they were all arrested. What crime or crimes if any should
they be charged of?
A:They could not be charged of any crime.
There is no such thing as conspiracy to commit
robbery. Because in robbery, robbery is only a
mode of committing the crime, it is not a crime by
itself, unlike in case of treason, rebellion, there is
such a crime of conspiracy to commit treason,
conspiracy to commit rebellion, and they are
punished by such acts. There is no such crime as
conspiracy to commit robbery. So here,
conspiracy is a mere preparatory act which is not
yet punishable by law. For them to be punished, it
is necessary that they must at least perform an
overt act directly connected to bank robbery. So
here, they just merely conspired to commit
robbery without the performance of any overt act
directly connected to robbery. Hence, they are not
criminally liable. What they did is only a
preparatory act not directly connected to robbery.
Q: Why not illegal assembly?
A: Because in the problem, it is not mentioned
that the persons were armed. Also, the crime of
bank robbery is not among the crimes mentioned
in the second act.
Q: Why not illegal association?
A: Because what they did was only a mere
meeting, it was not an organization or association.
Therefore, they are not liable of any crime.
LET US ADD FACTS TO THE PROBLEM.
Q: Let us say A, B, and C gathered 20 men 10 were
armed and the other 10 were not armed. Again, they
conspired and agreed to commit simultaneous bank
robbery all over Metro Manila. After their agreement here
comes the police officers, the police officers arrested them.
Of what crime or crimes may the police officer file against
them?
A:They should be charged of illegal assembly
under the first act. They have the gathering of
men and their purpose is to commit a crime
punishable under the RPC which is robbery and it
is attended by armed persons, even if only 10
were with arms, still it is considered as illegal
assembly. Because the law does not require a
number as to the persons who should be armed.
So, all of them should be held criminally liable.
A, B and C, as leaders or organizers of the said
meeting, are liable for illegal assembly. Those
persons who are armed, the penalty is higher than
those who are not armed. Prision Correcional if
they are armed
Arresto Mayor if they are not armed

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Atty. V. Garcia
Q: What if A, B and C gathered 1000 men and women.
Their intention was to incite the people to uprise against the
government to overthrow the present administration. These
1000 men and women arrived in the said designated place.
These 1000 men and women were arranging the chairs
when suddenly here comes the police officers who got a tip
about the said meeting. The police officers immediately
arrested A, B and C and the 1000 men and women. What
crime or crimes if any may these 1000 men and women be
charged of?
A:They have not committed any crime. It
cannot be under the first act of illegal assembly
because the said 1000 men and women were not
armed. It cannot be under the second act of illegal
assembly, because for one to be liable under this
act, note that even if not all of them need not to be
armed, it is required that the audience must be
incited to commit treason, rebellion, or
insurrection, sedition or assault upon a person in
authority or his agents. Here the intention of A, B
and C is to incite them to commit rebellion, BUT
there was no statement in the problem that they
were indeed incited to commit rebellion. In fact,
they were just arranging the chairs, the meeting
was only about to begin. Therefore, they have not
yet committed any crime.
Q: What if the jueteng lords of Southern Tagalog gathered,
they gathered in Batangas. So their purpose was to define
ways and means to propagate jueteng considering that the
government would not want to legalize jueteng, their
decision was define ways and means to propagate jueteng
by using minors, those 15 years of age or below as
kubrador in the case of jueteng, so that was the purpose of
their meeting. In the said meeting, they elected their wouldbe president, vice president, treasurer, etc. So they formed
an organization, an association and they said that at the
end of the month, they would meet and define ways and
means to propagate jueteng. The police officers arrived
and they were all arrested. But they are not with arms, it is
not mentioned that any of them were with arms.
A:The crime committed is illegal association
under Article 147. It is an association totally and
partially organized for some purpose contrary to
public morals. Jueteng is in violation of PD 1602,
illegal gambling as amended and it is against
public morals because it has not yet been
legalized by law.
ARTICLE148 DIRECT ASSAULT
The two forms in committing the crime of direct assault
under Article 148 are:
I.
Without public uprising, by employing FORCE or
INTIMIDATION for the attainment of any of the

Page 28

CRIMINAL LAW REVIEW Book 2 Notes


purposes enumerated defining the crimes of
rebellion and sedition.
The intention of the offender is to commit
any of the purposes of rebellion or sedition.
PURPOSES OF REBELLION:
1. To remove from the allegiance to the
Government or its laws:
(a) the
territory
of
the
Philippines or any part
thereof; or
(b) any body of land, naval, or
other armed forces; or
2.
To deprive the Chief Executive or
Congress, wholly or partially, of any of
their powers or prerogatives.
PURPOSES OF SEDITION:
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
officer thereof from freely exercising
its or his functions, or PREVENT the
execution of any administrative
order;
3. To INFLICT any act of 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;
5. To DESPOIL, for any political or
social end, any person, municipality,
province,
or
the
National
Government of all its property or any
part thereof
NOTE: The law says that there is no
public uprising, therefore whenever there
is actual commission of rebellion or
sedition, direct assault can never be
committed because the element of direct
assault in whatever form is that there be
no public uprising, on the other hand, a
necessary element in the crime of
sedition or rebellion is there be public
uprising.
ELEMENTS:
1. The
offender
intimidation

employs

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force

or

Atty. V. Garcia
2.

3.
II.

AIM of the offender is to attain any of the


purposes of the crime of rebellion or any
of the objects of the crime of sedition
There is no public uprising

Without public uprising, by ATTACKING, by


EMPLOYING FORCE, or by SERIOUSLY
INTIMIDATING or SERIOUSLY RESISTING any
person in authority or any of his agents, while in
the performance of official duties, or on the
occasion of such performance.
Most popular form of direct assault
ELEMENTS:
1. The offender
a. Makes an attack,
b. Employs force,
c. Makes a serious intimidation, or
d. Makes a serious resistance
If the offended party is a
person in authority, the
attack or the employment of
force need not be serious
because under Article 148, the
mere act of laying of hands in
the person in authority is
already qualified direct assault.
Therefore, the mere act of
pushing a person in authority is
already qualified direct assault
because the offender already
laid hands upon a person in
authority. Hence, it need not be
serious. However, if the
offended party is a mere
agent of a person in
authority, it is necessary that
the employment of force must
be serious. The reason is that
in order to show defiance of
law against a mere agent of
person in authority, it is
necessary that the attack or
force employed must be
serious in nature.
If what has been done is
intimidation or resistance, to
amount to direct assault, it
must always be serious
whether the offended party is a
person in authority or a mere
agent of a person in authority.

Page 29

CRIMINAL LAW REVIEW Book 2 Notes


2.

The second element requires that the


assault is against a person in authority or
an agent of a person in authority
Who are these so-calledpersons in
authority? (Art 152)
1. Any person directly vested
with jurisdiction, whether as
an individual or as a
member of some court or
government-owned
and
controlled
corporation,
board or commission
2. A barangay captain and a
barangay chairman
3. Teachers, professors, or
persons charged with the
supervision of public or duly
recognized private schools,
colleges or institutions
4. Lawyers while engaged in
their professional duties or
while in the act of their
professional duties

3.

Atty. V. Garcia

Who is an agent of a person in


authority? (Art 152, par 2)
A person who, by direct
provision of law, 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
(e.g.
police
officer,
councilors). Likewise, it is
stated that any person who
comes to the aid of a person
in authority is deemed an
agent of person in authority.

The third element provides that at the


time of the assault, the person in
authority is engaged in the performance
of his official duties or the attack was on
occasion of such performance of official
duty.
Direct assault can be
committed
whether
the
public officer or employee.
Direct assault can be
committed
whether
the
public officer or agent of a
person in authority is in the
engaged in the performance
of his official duties or on

Dizon | Manalo | Navarez | Shyu | Tubio

4.

occasion
of
such
performance.
If a person in authority or his
agent is engaged in the
performance of his official
duty at the time of the
assault, regardless of the
motive of the offender, direct
assault will always arise.
Whether there is a personal
vendetta, whether it is a
public reason or whatever
reason, there is always
direct assault. There is
defiance
of
authority
because the person in
authority or his agent is
actually engaged in the
performance of official duty
But if the person in authority
or his agent is not engaged
in the performance of his
official duty at the time of the
assault, motive on the part of
offender becomes material.
You have to determine the
motive on the part of the
offender. If the motive on the
part of the offender is a
personal vendetta, the crime
committed
is
murder,
homicide, serious physical
injuries or less serious
physical injuries, as the case
may be. But if the motive is
by reason of the authorities
past performance of his
official duty, the crime
committed is still direct
assault.
The phrase on occasion of
such performance means
that the said assault was by
reason
of
the
past
performance of official duty.
So on occasion means it is
by reason of the past
performance of official duty.

The fourth element provides that the


offender knows him to be a person in
authority or an agent of a person in
authority. So it is that the offender knows
him to be a person in authority because

Page 30

CRIMINAL LAW REVIEW Book 2 Notes


otherwise, he cannot be said that he
defied the law, he defied the authority. In
the first place, he didnt know that the
person he is attacking is a person in
authority or an agent of a person in
authority.
5.

The fifth element requires that there be


no public uprising.

QUALIFIED DIRECT ASSAULT


There are three circumstances which will qualify direct
assault:
1. When the assault is committed by means of a
weapon;
WEAPON - firearms, knives or any other
items which will inflict injury.
2.

When the offender is a public officer or employee;


So when a public officer or employee attacks
a person in authority, it is always qualified
direct assault.

3.

When the offender lays hands upon a person in


authority
Will only lie if the laying of hands is upon a
person in authority.
Any of these three circumstances will qualify direct assault.
NOTE: The first two qualifying circumstance affects both a
person in authority or agent of a person in authority.
However, the third qualifying circumstance (laying hands
upon a person in authority) will only lie if the offended party
is a person in authority. Mere laying of hands to an agent of
person in authority is not qualified. It will only qualify if the
laying of hands is upon a person in authority.
COMPLEX CRIME OF DIRECT ASSAULT:
Whenever the crime of direct assault is committed, and
there is a resulting felony (e.g. death, physical injuries), you
always complex it.
Under Article 48, you should always complex it because
from a single act, two or more grave or less grave felonies
had resulted. Under Article 48, Book I, you have to complex
it. So it could be:
o Direct assault with Murder
o Direct assault with Homicide
o Direct assault with Serious Physical
Injuries
o Direct assault with Less Serious Physical
Injuries

But if the resulting felony is only SLIGHT


PHYSICAL INJURIES, you cannot complex it. It is
prohibited under Article 48 because:

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Atty. V. Garcia
1.

2.

It is only a light felony. Under Article 48, you


can only complex two or more grave or less
grave felonies but not a light felony.
Slight physical injury or light felony is
already absorbed in direct assault because
whenever you assault somebody, definitely,
somehow, any injury would happen to him.
That is why it is already absorbed in direct
assault.

ILLUSTRATION:
Q: What if the city mayor attended the flag ceremony. It
was a mandate. So there was this flag ceremony attended
by the city mayor. After the flag ceremony, the mayor went
to the platform and was making an announcement to the
city hall employees. Suddenly here comes X. X went near
the mayor and shot the mayor on the head. The mayor
died. What crime is committed by X?
A: QUALIFIED DIRECT ASSAULT WITH
MURDER. The city mayor was engaged in the
performance of his official duty at the time of the
assault therefore it is direct assault. Because the
city mayor was engaged in the performance of his
official duty regardless of the motive of X, even if it
is by mayors past performance of official duty or
by reason of personal vendetta, regardless of the
motive of X, the offender, since the mayor is
engaged in the performance of his official duty, it
is direct assault.
Now, the mayor died. Therefore there is a
resulting felony of murder because obviously there
was treachery; therefore, it is direct assault with
murder.
Now, the offender made use of a weapon, he
made use of a pistol gun, a firearm which is a
qualifying circumstance, therefore, the crime
committed is QUALIFIED DIRECT ASSAULT
WITH MURDER.
(EXAM TIP: the corresponding explanation must
be completewhat is the qualifying circumstance,
what is direct assault, what is a complex crime)
Q: What if the city mayor has just attended a Sunday mass.
He and his wife and children were getting out of the church
when suddenly here comes X. X, onboard the motorcycle
went straight to the city mayor and fired at the head of the
city mayor. The city mayor died. It was found that X was a
former employee of the city hall, who was dismissed by the
city mayor because he engaged in an anomalous
transaction. What crime is committed by X?
A:QUALIFIED
DIRECT
ASSAULT
WITH
MURDER.The city mayor was not engaged in the
performance of his official duty. Since the city
mayor was not engaged in the performance of his

Page 31

CRIMINAL LAW REVIEW Book 2 Notes


official duty, he is a person in authority, you have
to know the reason, the motive of the offender.
The offender was a city hall employee who was
dismissed by the city mayor, therefore the motive
was by reason of the past performance of the said
person in authority. So it is by reason of the past
performance of his official duty, the attack, the
firing was done on occasion of such performance
of official duty therefore the crime committed is
direct assault.
The mayor died. Obviously there was treachery
therefore it is direct assault with murder.
The offender made use of a firearm, which is a
qualifying circumstance in direct assault therefore
it is QUALIFIED DIRECT ASSAULT WITH
MURDER.
Q: What if in the same problem, here comes X, the mayor
was coming out of the church, X shot the city mayor. Now
X happened to be a former gardener who was dismissed
from the service of the household because he performed a
wrongful act while gardening. Therefore his reason was a
personal vendetta. What crime is committed by X?
A: X committed a crime ofMURDER. Obviously,
there was treachery on the part of X.
It is not direct assault because the mayor was
not engaged in the performance of his official duty
and the reason behind the assault was personal
vendetta. Therefore it cannot be said that the
attack was on occasion of such performance of
official duty.
Q: What if the judge has just rendered judgment. After
rendering the judgment, after finding the accused guilty
beyond reasonable doubt, the accused got mad. He
jumped on the judge and he boxed the judge several times.
The court interpreter, the person nearest to the judge,
came to the aid of the judge. This angered the accused.
The accused got mad at the court interpreter and he boxed
the court interpreter as well. Thereafter the security guards
arrived and took away the said accused. The judge
suffered serious physical injuries whereas the court
interpreter suffered slight physical injuries. What crime or
crimes is/are committed by the accused, first against the
judge, and second against the court interpreter?
A: As against the judge, the accused is liable
of the crime of QUALIFIED DIRECT ASSAULT
WITH SERIOUS PHYSICAL INJURIES. The
judge is a person in authority under Article 152.
He was engaged in the performance of his official
duty at the time of the assault therefore the crime
committed is direct assault. It has a resulting
felony, serious physical injuries; therefore it should
be direct assault with serious physical injuries.

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Atty. V. Garcia
The accused in boxing the judge, laid hands upon
a person in authority therefore it is QUALIFIED
DIRECT ASSAULT WITH SERIOUS PHYSICAL
INJURIES.
As against the court interpreter, the accused is
liable of the crime of DIRECT ASSAULT. At the
time the court interpreter came to the aid of a
person in authority, who was the victim of direct
assault. Note under Article 152, any person who
comes to the aid of a person in authority is
deemed an agent of a person in authority
therefore, when the court interpreter came to the
aid of the said judge, who was a person in
authority, he became an agent of a person in
authority. And under Article 148, any attack on an
agent of a person in authority is direct assault.
Therefore the crime committed is direct assault.
The said interpreter suffered slight physical injury.
You cannot complex it because it is only a light
felony. Therefore it is only direct assault not
complex. The said accused laid hands upon the
court interpreter, would you qualify it? No,
because he is mere agent of person in authority.
Therefore the crime committed is only direct
assault.
ARTICLE149 INDIRECT ASSAULT
Indirect assault can be committed only when a direct
assault is also committed
ELEMENTS:
1. An AGENT of a person in authority is the victim
of any of the forms of direct assault defined in
Article 148.
2. A person comes to the aid of such agent
3. Offender makes use of force or intimidation
upon such person coming to the aid of the
agent.
Q: What if a police officer was manning the traffic and it
was a heavy traffic so the vehicles were stuck. What if one
of the owners of the vehicles got mad at the police officer
and he went straight to the police officer, who at the time
has no pistol, and boxed the police officer. While he was
boxing a police officer a pedestrian saw the incident .the
pedestrian came to the aid of the police officer. This
angered the owner of the vehicle so he, too, boxed the said
pedestrian. The said pedestrian suffered slight physical
injuries while the police officer suffered less serious
physical injuries. What crime or crimes is/are committed by
the said owner of the vehicle against:
a. The police officer
b. The pedestrian?

Page 32

CRIMINAL LAW REVIEW Book 2 Notes


A: a. DIRECT ASSAULT WITH LESS SERIOUS
PHYSICAL INJURIES. The said owner of the
vehicle boxed the said police officer. The police
officer is an agent of a person in authority under
Article 152 because he was charged with the
maintenance of public order. The police officer is
in the actual performance of his official duty at the
time of the assault therefore the crime committed
is direct assault. There is also a resulting felony
which is less serious physical injuries, a less grave
felony; therefore we have to complex it, direct
assault with less serious physical injuries. The
offender laid hands upon the police officer,
however, laying of hands will not qualify because
he is a mere agent of person in authority;
therefore the crime committed against the police
officer is direct assault with less serious physical
injuries.
(NOTE: an MMDA officer is also an agent of a
person in authority because he is charged with the
maintenance of public order and the protection
and security of life and property)
b. INDIRECT ASSAULT under Art 149. An agent
of a person in authority was the victim of direct
assault. A person came to his aid who is the
pedestrian. When the pedestrian came to the aid
of this agent of person in authority, he did not
become an agent of a person in authority under
Art 152 because under Art 152, a person would
only become an agent of a person in authority if
he came to the aid of a person in authority. Here,
the pedestrian merely came to the aid of an agent
of a person in authority who is the police officer.
Therefore, when the pedestrian came to the aid of
the police officer, he did not become also an agent
of a person in authority; as such, the crime
committed is INDIRECT ASSAULT. When the
pedestrian came to the aid of the police officer,
force and intimidation were employed against him
so the crime committed by the owner of the
vehicle against the pedestrian is indirect assault.
Are you going to complex it to the crime of
slight physical injuries?
No, because it is absorbed and it is
only a light felony.
Under Article 149, INDIRECT ASSAULT is committed if a
person in authority or an agent of a person in authority
is the victim of direct assault. Any person who came to
his aid and that person was employed with force or
intimidation by the offender.
Why is it in the given problem, when the person under
attacked is a person in authority and when someone

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Atty. V. Garcia
came to his aid, and that someone was also attacked,
the crime committed is direct assault against that
someone. But when the victim of direct assault is a
mere agent of a person in authority, and someone
came to his aid, and that someone was also attacked,
the crime is indirect assault.
The reason is that the Congress
amended
Article
152
without
correspondingly amending Article 149.
Based on the amendment made by
Congress in Article 152, it is stated that
any person who comes to the aid of a
person in authority is deemed an agent
of person in authority. And if an agent of
a person in authority is attacked, such
attack is under Article 148 which is direct
assault and not indirect assault under
Article 149.
But if the victim of the said direct assault
is a mere agent of a person in authority,
and someone who comes to his aid will
not become an agent of a person in
authority; therefore when he is also
attacked, it will only be indirect assault
under Article 149.

In statcon, when there are two provisions which


are contrary, you reconcile. So to reconcile, Article
149 or indirect assault will only apply if the victim
of direct assault is a mere agent of person in
authority and someone came to his aid, and that
someone was also employed with force and
intimidation.

ARTICLE150 DISOBEDIENCE TO SUMMONS ISSUED


BY THE NATIONAL ASSEMBLY, ITS COMMITTEES OR
SUBCOMMITTTES,
BY
THE
CONSTITUTIONAL
COMMISSIONS, ITS COMMITTEES, SUBCOMITTEES
OR DIVISIONS
Acts Punished:
I.
By refusing, without legal excuse, to obey
summons issued by the Congress or any of
its extensions or any of its standing
committees or subcommittees, by the
Constitutional Commissions, its committees,
subcommittees or any other body which has
the power to issue summons.
Under the first act, for the crime to arise,
it is necessary that the offenders refusal
to obey the summons is without any
legal excuse. If there is a valid reason, a
legal excuse, why the offender didnt
attend the said committee hearing of the
congress or why he failed to comply

Page 33

CRIMINAL LAW REVIEW Book 2 Notes


with the said summons or any of the
acts under Art. 150; the crime will not
arise.
II.

By refusing to be sworn or placed under


affirmation while being before such legislative
or constitutional body or official.
Under the second act the public official
or the person was required to appear in
the said meeting and obey the
summons however, the moment he
appeared in the said meeting, he
refused to be sworn to. He does not
want to be sworn to and he refused to
be placed under affirmation before such
legislative or constitutional body. Art.
150 is still violated.

III.

By refusing to answer any legal inquiry or to


produce any books, papers, documents, or
records in his possession, when required by
them to do so in the exercise of their
functions.

IV.

By refusing another from attending as a


witness in such legislative or constitutional
body.
Under the fourth act punished, the said
offender did not fail to attend in the
summons; he restrained another from
attending as a witness. He prevented
another person in attending as a witness
in such legislative or constitutional body
hearing.

V.

By inducing disobedience to a summons or


refusal to be sworn by any such body or
official.
NOTE that Congress where it be the
House of Representatives or the Senate
has the power to issue summons
because they have the power to
investigate that is inquiry in aid of
legislation. Whatever be the findings in
the said investigating body, it will be used
in the making of a bill, a proposal. NOTE
that they dont have the power to file a
case so whatever be the product of their
investigation, they will give it either to the
Ombudsman or to the DOJ. It is upto the
DOJ or to the Ombudsman to file a case
because the purpose of the Senate or
the HOR is only inquiry in aid of
legislation.

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Atty. V. Garcia
ILLUSTRATION:
Q: What if there is this committee hearing, an investigation
about anomalous transactions entered into by a former
officials of the DENR. While the said official received the
summons, he failed to appear because he was at St.
Lukes. He was confined because he was suffering from
hypertension. Can he be held liable under Art. 150?
A: He cannot be held liable because he has a
legal excuse to attend or to obey the summons
issued by the Congress. The moment that there is
a legal excuse, the crime will not arise BUT if his
measure is without any legal excuse NOTE that
aside from violation of Art. 150, he can also be
held liable or cited for contempt by the said
committee of Congress and usually when cited for
contempt, he is placed in detention in the Senate
Blue Ribbon Committee.
Q: He obeyed the summons, he appeared, he allowed
himself to be sworn in however, the moment that the
Senators asked him questions, and he refused to answer
the questions. He said: I invoke my right against selfincrimination. When he was solely required to produce the
books which were confirmed to be in his possession; He
didnt want to produce the said books because according to
him, the production of these books would incriminate
himself. Can he be held liable under Art. 150?
A: He cannot. If the answer to any of the
questions or if the conduction of the same will
incriminate the person in the said crime; he has
the right not to do so. Under the Constitution, No
person can be compelled to be a witness against
himself and asking him, requiring him, ordering
him to produce the books or to answer any
questions which would incriminate himself is akin
to making him a witness against himself and it is
unconstitutional.
ARTICLE151 RESISTANCE AND DISOBEDIENCE TO
A PERSON IN AUTHORITY OR THE AGENTS OF SUCH
PERSON
Punishes two acts:
I. RESISTANCE AND SERIOUS DISOBEDIENCE
(PAR 1)
ELEMENTS:
1. The person in authority or his agent
a. is
engaged
in
the
performance of official duty;
or
b. gives a lawful order to the
offender
2. Offender resists or seriously disobey
such person in authority or his agent

Page 34

CRIMINAL LAW REVIEW Book 2 Notes


3. That such resistance or disobedience
will not amount to
a. direct assault (Art 148),
b. indirect assault (Art 149); or
c. disobedience to summons
issued by Congress
II. SIMPLE DISOBEDIENCE (PAR 2)
ELEMENTS:
1. An AGENT of a person in authority
a.
is engaged in the performance
of official duty; or
b. gives a lawful order to the
offender
2. The offender disobeys such order of
the agent
3. Such disobedience is not serious in
nature
ILLUSTRATION:
Q: What if the mayor has a project, a cleaning act
operation in order to prevent dengue. So they were
cleaning up the canals. While the mayor was cleaning up
the canals together with other city hall employees, here
comes Mang Pedro who had taken beer and was a little
tipsy. So the went there and was shouting and making
noise, disturbing the people who were busy cleaning up the
canals. And so the police officer cleaning told Mang Pedro
to go home because he was disturbing the cleaning up
operation. Mang Pedro, instead of going home, merely sat
nearby the canal being cleaned by the people. What crime,
if any, did Mang Pedro commit?
A:
Mang
Pedro
committed
SIMPLE
DISOBEDIENCE UNDER ARTICLE 151 par 2.
Article
151,
second
paragraph,
simple
disobedience is committed when an agent of a
person in authority is engaged in the performance
of official duty or gives a lawful order to the
offender, that the offender disobeys and such
disobedience is not of serious nature. In the
problem, it was the police officer, an agent of a
person in authority, who gave the order to Mang
Pedro and Mang Pedro disobeyed him but such
disobedience was not serious in nature because
he merely sat nearby the canal; therefore there
was no showing that such disobedience is serious
in nature so the crime committed is simple
disobedience.
Q: Is there direct assault with robbery? Lets say that the
city mayor was assaulted and thereafter he took the watch
of the mayor.
A: No, there is no such crime. The crime
committed is not direct assault with robbery. It is

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Atty. V. Garcia

already robbery with any resulting felony, if there


is one.
What if the original motive was to assault the city
mayor?
If the original motive is to assault the city
mayor and not to commit robbery, but the
offender took the watch, there will be two
crimes because the offender already
performed two acts.
If there are two separate and distinct crimes,
there shall be two information that will be filed
to the court. If it is a complex crime, only one
information is filed before the court.
If the intention is to rob, and in the occasion of
the said robbery, homicide, serious physical
injuries, rape, intentional mutilation, arson
was committed, the crime committed under
Article 294 is robbery with homicide, robbery
with intentional mutilation, robbery with rape,
robbery with arson or robbery with serious
physical injuries.
If the original intention was to assault the city
mayor and thereafter he committed robbery,
there will be two acts. Because his intention
was to assault and thereafter he committed
the second act of taking away the personal
property of the city mayor.
In case of DIRECT ASSAULT WITH MURDER
or HOMICIDE, it is considered a complex
crime under Article 48 because based on the
single act performed, two or more grave or
less grave offense was committed. Because
with the single act of boxing, the offender
committed direct assault and serious/less
serious physical injuries.

ARTICLE152 PERSONS IN AUTHORITHY AND


AGENTS OF PERSONS IN AUTHORITY
Q: Who are persons in authority?
A: The following are the persons in authority:
1. Municipal Mayors
2. Division Superintendent of schools
3. Public and private school teachers
4. Teacher-nurse
5. President of the sanitary division
6. Provincial Fiscal
7. Judges
8. Lawyers in actual performance of
duties
9. Sangguniang Bayan member
10. Barangay Chairman
Q: Who is an agent of a person in authority?
A: Those who are in charged with:

Page 35

CRIMINAL LAW REVIEW Book 2 Notes

Atty. V. Garcia

The maintenance of public order; and


The protection and security of life and
property

we have no more death penalty.


Death Penalty is prohibited to be
imposed.

ARTICLE153 TUMULTS AND OTHER DISTURBANCES


*Offender must be a participant.
Acts punished:
I.
Causing any serious disturbances in a public
place, office or establishment;
For the said disturbance to be
considered as a violation of Art 153;
it is necessary that the said offender
deliberately intended to disturb the
said meeting or public place. It was a
planned intentional act.
II.

III.

IV.

V.

Interrupting or disturbing performances,


functions or gatherings, or peaceful meetings,
if the act is not included in Arts. 131 and 132;
NOTE that there is a qualification
made by law provided that the said
interruption or disturbance of public
gatherings, functions and peaceful
meetings must not fall as a violation
under Art 131 or Art 132.
Making any outcry tending to incite rebellion
or sedition in any meeting, association or
public place.
Displaying placards or emblems which
provoke a disturbance of public order in such
place;
Whether this making of an outcry or
the displaying of placards or
emblems, it is necessary that such
act of displaying placards or
emblems must be an unconscious
outburst of emotion. It must not be
intentionally calculated to incite
people to rebel or to commit sedition
because otherwise, the crime would
be inciting to rebellion or inciting to
sedition.
Burying with pomp the body of a person who
has been legally executed.
When you say legally executed; it
means that the said person has
committed a heinous crime. The
penalty prescribed by law is death
and so he was killed by means of
lethal injection but at present
because of Republic Act No. 9346,

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But in burying with pomp the body of


the person who has been legally
executed; the said person must be
legally executed because the said
person has committed a heinous
crime yet when he was buried he
was buried with such extravagance
as if as he is a hero, as if as the
government has committed a crime
in legally executing him therefore it
causes sympathy arising on the part
of the people hence, it was a
disturbance of public order.

If any of these prohibited acts


constituting violation of Art 153 is
committed by more than 3 persons
who are provided with arms or any
means of violence it is said to be
tumultuous therefore there must be
at least four persons who are armed
or provided with means of violence
for it to be considered as tumultuous.

SO WHERE LIES THE DIFFERENCE BETWEEN ART


153 AND ART 131 OR 132?
Article 153 punishes TUMULTS ANS OTHER
DISTURBANCES OF PUBLIC ORDER, Article 131
punishes PROHIBITION, INTERRUPTION AND
DISSOLUTION OF PEACEFUL MEETINGS, Article
132 punishes INTERRUPTING OF RELIGIOUS
WORSHIP

Articles 131 and 132 can only be committed by a


Public Officer. It cannot be committed by a private
individual whereas under Art 153, it can be
committed both by a Public Officer and a private
individual.

What if the offender is a public officer and he disturbs


a peaceful meeting. How would you distinguish if it is a
violation of Art 153 or a violation of Art 131?

First, In Art 131, the public officer must not be a


participant in the meeting that he disturb or
interrupted. He must be an outsider, a stranger in
the said meeting. On the other hand, in Art 153,
the said Public Officer must be a participant, one
in attendance in the said meeting.

Page 36

CRIMINAL LAW REVIEW Book 2 Notes


Second, in Art 131, the mere intention of the
public officer is to prevent a person from freely
exercising his freedom of speech and expression
whereas in Art 153, the intention of the offender is
to disturb public peace and tranquility.
ILLUSTRATION:
Q: What if since RH Bill was enacted into law, there was a
huge rally at the EDSA Shrine which was initiated by the
members of the CBCP. They were against this law and
they encouraged the people to file a case before the
Supreme Court questioning the constitutionality of the said
law. At first, the head of the CBCP spoke then after him
another person, a private individual spoke, the head of the
organization spoke and he kept on attacking and attacking
the President. He said that the President bribed the
members of the Congress in order to pass this bill so he
kept on attacking and attacking the President. One of the
police officers, who was assigned to maintain the peace
and order in the place, heard the attacks against the
President. This Police Officer was indebted to the President
he owed his position to the President. He went straight to
the person talking against the President and told him to
stop. When he didnt stop, the Police Officer fired shots in
the air and the people scampered away and the peaceful
meeting/gathering was dissolved/ interrupted. What crime
was committed by the Police Officer?
A: The crime committed by the Police Officer
is not Art 153 but Art 131.Because the
distinctions lie in this case. First, the said Public
Officer, a Police Officer is not a participant in the
said meeting. He is a stranger, an outsider in the
said meeting. Second, his only purpose is to
prevent the said person in freely exercising his
freedom of speech and expression, it is his right to
express his anger against the President yet the
said person prevented him in exercising such
freedom of Speech and expression therefore the
Police Officer is liable under Art 131 and not under
Art 153.
For him to be liable under Art 153, lets say that he
is a public officer, he is a participant in the said
meeting and while participating in the said
meeting, he interrupted the said meeting in order
for him to cause a disturbance of the said
meeting. The crime is Art 153.
Q: There was this peaceful gathering, lets say a public
meeting, a peaceful meeting about the increase of fares of
the MRT and the LRT. One of the participants therein, one
of the persons therein went to the platform and took the mic
and then he incite the people, induced the people to go to

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Atty. V. Garcia
the streets, uprise, rebel against the government, to
overthrow the government. What crime was committed?
A:The crime committed was inciting to
rebellion.
Q: What if, he was among the participants. The head of the
meeting, the Public Officer was discussing about the
increase of fares of the MRT and LRT. This person could
no longer control his emotions. Suddenly he stood up and
he said: buwisit na gobyerno na ito naiinis na ako. Dapat
na tayong mag rebelled sa gobyerno walang ginawa kundi
increase ng taxes. They go and rebel against the
government. What crime was committed?
A:Tumults and other disturbances of public
order. It is just an unconscious outburst of
emotions not an intentionally calculated to incite
people to rebel against the government.
ARTICLE154 UNLAWFUL USE OF MEANS OF
PUBLICATION AND UNLAWFUL UTTERANCES
Acts punished:
I.
By 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.
II.
By encouraging disobedience to the law or to
the constituted authorities or by praising,
justifying ot extolling any act punished by law,
by the same means or by words, utterances
or speeches.
III.
By maliciously publishing or causing to be
published any official resolution or document
without proper authority, or before they have
been published officially.
NOTE that in the third act there is
the word Malicious. The offender
must maliciously publish or cause to
be published any official resolution. If
the publication of the official
resolution without official authority or
the publication was not done
maliciously, there was no intent to
cause damage, it was not done
maliciously. Art 154 is not violated. It
is necessary that the said publication
must be done maliciously under the
third act.
IV.
By 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.

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CRIMINAL LAW REVIEW Book 2 Notes

It is necessary that any publication


has contained the real printers
name.
It
must
have
been
anonymous. The publisher, the
printer, the author, must be stated
even at the bottom.

Q: What if the Philippine Daily Inquirer has as its headline:


KC Concepcion said..PioloPascual is gay. So that is the
headline of the Philippine Daily Inquirer. It was posted. KC
never categorically stated that Piolo is gay, she only
impliedly stated it but she never categorically stated it. So
the Daily Inquirer published a false news and PioloPascual
filed a case in violation of Art 154 against the Philippine
Daily Inquirer. The Philippine Daily Inquirer knew that it is a
false news yet they still published it as news.
A: Art. 154 is not violated because whether or
notPiolo is gay it will not endanger public order. It
will not cause damage to the credit or interest of
the state.
Q: What if the headline of the Philippine Daily Inquirer said:
Tomorrow, Megamall will be bombed from a very reliable
source. That was the headline of the Philippine Daily
Inquirer. The Philippine Daily Inquirer later on learned that
it was false nevertheless; since it was already there they
still published it and distributed it. Can they be held liable
under Art 154?
A: Yes because the said news will endanger
public order. It can cause damage to the credit or
interest of the state. Imagine Megamall will be
bomb, no person will go to the said place, tourists
will not go to the said place therefore it will
endanger public order and can cause damage to
the interest of the state when the said newspaper
published it despite knowing that it was false
news. Art 154 is violated.
Q: What if members of the CBCP, they are against the RH
Law. They made leaflets, pamphlets and distributed it to all
persons in the church, in market.. Therein is stated:
Anyone who would obey or comply with the RH Bill which is
a Catholic will be ex-communicated. Can they be held
liable of Art 154?
A:Yes because they encouraged disobedience
to the law. It has been enacted into law and by
encouraging the people that they would be excommunicated if you will obey it, then you can be
held liable for unlawful use of means of
publication.
ARTICLE155 ALARMS AND SCANDALS
Acts punished:

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Atty. V. Garcia
I.

II.

III.

IV.

Discharging any firearm, rocket, firecracker,


or other explosives within any town or public
place calculated to cause (which produces)
alarm or danger.
Instigating or taking an active part in any
charivari or other disorderly meeting offensive
to another or prejudicial to public tranquility.

Charivari includes a medley of


discordant voices, a mock serenade
of discordant noises made on
kettles, tins, horns, etc. designed to
annoy and insult.
Disturbing the public peace while wandering
about at night or while engaged in any other
nocturnal amusement.
Causing any disturbance or scandal in public
places while intoxicated or otherwise,
provided Art 153 is not applicable

*Note: As of now, those who are guilty of committing the


crime of Alarms and Scandals may apply for Probation (for
imprisonment of 6 years or below).
Those involving crimes against national security cannot
apply.
ILLUSTRATION:
Q: In a public park, there were so many people here comes
X. X went in the middle of the park and fired shots in the
air. The people were so afraid they scampered away. What
crime is committed?
A: Alarms and Scandals under Art 155. His act
can cause damage to public peace and tranquility.
Q: What if in the same problem, in a public park, there
were so many people and here comes X. X saw his enemy
Y. He took out his firearm, aiming his firearm at Y without
any intent to kill because he knew Y would not be killed and
he discharged the firearm. What crime is committed?
A: The crime committed is illegal discharged
of firearms under Art. 1254.
Q: What if in the same public place, X saw his enemy Y. He
pulled out his firearm with intent to kill, he aimed his firearm
at Y, discharged the firearm but Y was not killed. What
crime was committed?
A: Attempted murder or Homicide as the case
may be.

In case of alarms and scandals, the only


intention of the offender is to cause
damage to public peace and tranquility
that is to cause alarm and danger. That is
his intention.

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CRIMINAL LAW REVIEW Book 2 Notes

In Illegal Discharge of Firearms under Art


1254 his intention is to threaten the said
person or any other persons. He aimed
the firearm and discharges the firearm
pointing at a particular person absent:
intent to kill. There was no intent to kill, it
is illegal discharge of firearm.
But given in the same problem, he knows
his enemy, pointed the firearm at his
enemy but with intent to kill. He
discharged the firearm but his enemy
was not killed. It is attempted homicide or
murder as the case may be. Since there
is an intent to kill on the part of the
offender even if the victim was not killed
it is still in the attempted stage.

Q: What if in the same problem, it was in a public place, X


went to the said place, he saw his enemy Y. He went near
Y, took out his gun and poked the gun at Y but did not
discharge the said gun. What crime is committed?
A:The crime committed is other light threats.
NOTE that under other light threats the offender
merely poked the firearm at the victim without
discharging or firing the firearm. If the firearm has
been discharged, 3 crimes may be committed
depending on the intent. It can be alarms and
scandals, illegal discharge of firearms or
attempted homicide or murder as the case may
be.
Q: You have a neighbor, it was his birthday. They rented a
videoke and kept on singing along till 12mn. The guests
already left, the birthday celebrant was the only one left, its
already 1:30am and hes still singing at the top of his voice
with the use of the mic. His neighbors cannot sleep
because of his ugly voice. Everyone in the neighborhood
could hear him and cannot sleep. Can he be held liable
under Art 155 alarms and scandals?
A: Yes. He can be held liable under alarms and
scandals because his only intention that night is to
cause a disturbance of public peace and order.
Q: Lets say a person was intoxicated. He was drunk. He
was on his way home. He was singing at the top of his
voice. Is he liable for alarms and scandals?
A: No because it is normal to sing at the top of his
voice.
Q: What if he saw this lead pipe (tubo) and upon seeing
this lead pipe, he would bang all the gates that he would
pass by. Is he liable for alarms and scandals?
A: Yes because his acts caused damage to public
peace and tranquility.

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Atty. V. Garcia
ARTICLE156 DELIVERING PRISONERS FROM JAIL
ELEMENTS:
1. That there is a person confined in a jail or penal
establishment.
2. That the offender removes therefrom such
persons, or helps the escape of such person.

The PENALTY for the crime is QUALIFIED if violence


or intimidation has been used in the commission of the
crime also if bribery is used in delivering prisoners from
jail.

Who is the offender?


The offender is any person. He can be a private
individual or a public officer or employee provided
that he is not the custodian of the said prisoner
because if the offender who helped in the escape
of the prisoner from jail is the custodian of the said
prisoner, the crime is under Art 223 Infidelity in the
custody of prisoners because the element of
breach of trust and confidence reposed on him by
the government.

Who is the prisoner being referred to in delivering


persons from jail?
He can be a detention prisoner or a prisoner
convicted by final judgment for as long as he is in
a jail or penal institution.

A detention prisoner is a prisoner who is


behind bars but the case against him is
ongoing either because the crime he
committed is a non-bailable offense and
evidence of guilt is strong or the crime he
committed is a bailable offense but he does
not have the enough funds to put up the
required bail.
The prisoners at the provincial jail, city jail,
municipal jail, they are merely detention
prisoners. They are not yet convicts. They are
only accused, suspects therefore they are
presumed innocent unless and until proven
that theyre guilty of the crime charged. They
are merely detention prisoners.

On the other hand, a prisoner that is


convicted by final judgment is one who has
been convicted by the lower court and who
did not appeal his conviction within the period
to perfect an appeal then the judgment
becomes final and executory. He has to serve
the sentence. Or he has been convicted then

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CRIMINAL LAW REVIEW Book 2 Notes

Atty. V. Garcia
also liable for direct bribery because in
case of infidelity in the custody of prisoners,
the giving and receiving of bribe is not a
qualifying or aggravating circumstance
therefore the jail warden custodian will be
liable for 2 crimes; Infidelity in the custody of
prisoners and direct bribery for having
received the bribed money in the amount of
P500,000.00.

he appealed to the higher court within the


period to perfect an appeal and the said
higher court affirmed the said conviction. The
conviction will now become final and
executory so he is now a prisoner convicted
by final judgment. Generally, they are those
who are serving sentence in Muntinlupa.
ILLUSTRATION:
Q: Lets say A is a prisoner convicted by final judgment. He
is serving his sentence in Muntinlupa. B his friend visited
him. B was a rich man. He planned As escape on his
birthday. He did this by talking to the jail warden custodian.
B the friend gave the jail warden custodian P500,000.00.
He gave bribe to the jail warden custodian to allow A his
friend to escape at that night. He also went to the guard at
the entrance gate of the New Bilibid Prison and gave the
guard P100,000.00, also to allow his friend to leave at that
night. That night, A escaped and left the penal institution.
He went to the house of another friend who harbored him
and concealed him despite the fact that he was an escapee
from a penal institution. What are the crimes committed by
A (the prisoner), B (the friend), jail warden custodian, the
guard of the penal institution, and the friend who harbored
him?
A: A is liable of evasion of service of sentence
under Art 157. He is a prisoner convicted by final
judgment therefore he is liable for evasion of
service of sentence.

B the friend is liable under Art 156


Delivering prisoners from jail qualified by
the giving of bribe therefore his penalty will
be qualified because he gave bribe money
inorder to help in the escape of his friend. He
will not be liable for another crime of
corruption of public official because the giving
of bribe is considered clearly as a qualifying
or as an aggravating circumstance in
delivering prisoners from jail.
The jail warden custodian who received the
bribed money and allowed As escape is
liable under Art 223 infidelity in the
custody of prisoners. Aside from that, he is

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The guard at the entrance gate of the penal


institution will be liable for delivering
prisoners from jail. He is not the custodian
and he helped in the escape/removal of the
prisoner from jail. Therefore, he is liable for
delivering prisoners from jail. The fact that he
received bribed money will not make him
liable of direct bribery because in delivering
prisoners from jail, it is only a qualifying
circumstance which will only increase the
imposable penalty.

The friend who harbored and concealed him


will be liable under PD 1829 that is
obstruction of justice. It is committed by any
person who willfully or deliberately obstructs
or impedes the investigation or the
apprehension of a criminal.
Why not an accessory?
o Because I did not mention in the problem
the crime committed by the prisoner. For
an accessory to the crime, it is necessary
that the crime committed by the prisoner
must be treason, parricide, murder,
attempt to take the life of the chief
executive or is known to be habitually
guilty of some other crime. I did not
mention the crime committed by the
prisoner. Therefore his liability is under
PD 1829 Obstruction of Justice.

Q: What if he is not serving his sentence in Muntinlupa.


Lets say he is just a detention prisoner. Can he be held
liable for evasion of service of sentence?
A: No. Evasion of service of sentence can only be
committed by a prisoner convicted by final judgment.

In the given problem, A is convicted by final


judgment therefore A is liable for evasion of
service of sentence under Art 157.

ARTICLE157 EVASION OF SERVICE OF SENTENCE


(Art 157)
ELEMENTS:
1. That the offender is a convict by final judgment.
2. That he is serving his sentence which consists in
deprivation of liberty.
3. That he evades the service of his sentence by
escaping during the term of his sentence.

Evasion of service of sentence can only be committed


by a person convicted by final judgment. It cannot be
committed by a mere detention prisoner.

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CRIMINAL LAW REVIEW Book 2 Notes

Atty. V. Garcia

PENALTY IS QUALIFIED if such evasion or escape takes


place:
1. By means of unlawful entry
2. By breaking doors, windows, gates, walls, roofs or
floors;
3. By using picklocks, false keys, disguise, deceit,
violence or intimidation; or
4. Through connivance with other convicts or
employees of the penal institution.
ILLUSTRATION:
Q: You often read in the newspapers, heard over the
radios, watch on TV, 5 prisoners escaped from the
Caloocan city jail, 10 prisoners escaped from Palawan
Provincial Jail. Did they commit evasion of service of
sentence?
A: No. These persons did not commit evasion of
service of sentence under art 157 because they
are merely detention prisoners. For evasion of
sentence to arise, the prisoner who has escaped
must be a prisoner convicted by final judgment.
Under Art 157, the said prisoner the said prisoner
must be serving which involves deprivation of
liberty and he escapes during the service of his
sentence by evading the service of sentence.
The law says, it is a prisoner serving his sentence
which involves deprivation of liberty. It is
necessary that the sentence imposed on him must
involve deprivation of liberty either it is behind
bars or he has been convicted of a crime wherein
the penalty is destierro. Even if the penalty
prescribed is destierro, the moment he enters the
place wherein he is prohibited from entering in the
judgment of the court, he also committed evasion
of service of sentence.

Destierro under Art 27; Destierro is also a


penalty which involves deprivation of
liberty although partial not complete
deprivation of liberty because the
offender or the convict is not allowed to
enter a place designated in the judgment
of the court. The moment he enters the
said place, he commits evasion of
service of sentence.
ARTICLE158 EVASION OF SERVICE OF SENTENCE
ON
THE
OCCASION
OF
DISORDERS,
CONFLAGRATIONS, EARTHQUAKES, OR OTHER
CALAMITIES (ART 158)
ELEMENTS:
1. That the offender is a convict by final judgment
who is confined in a penal institution.
2. That there is a disorder resulting from ---a. Conflagration

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3.

4.

b. Earthquake
c. Explosion
d. Similar catastrophe
e. Mutiny in which he has not participated
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.
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.

It is required under Art 158 that the prisoner is serving


his sentence in a penal institution.
In this kind of evasion of service of sentence under Art
158, the crime will arise not upon the act of leaving the
penal institution but upon the convicts failure to
return/to give himself to the proper authorities within 48
hours. That is only when the crime will arise.

ILLUSTRATION:
Q: What if there was this earthquake, X was a prisoner
convicted by final judgment. Everything was shaking and
because of the earthquake, X escaped the penal institution.
He went to the house of his mother. That night while
watching the television, he saw the president
announced/declared that the calamity had already
ceased/passed away. Within 48hrs he returned. What is
the effect on his criminal liability?
A:If the said convict escaped and returned to
the proper authorities within 48hrs; there shall
be a credit or a deduction from his sentence.
There is 1/5 deduction/credit from his sentence.
Under Art 98 this is special time allowance for
loyalty. He was too loyal to the government that
even if he already left the penal institution he still
returned; such kind of loyalty must be rewarded.
Q: What if 48 hrs had lapsed, still he did not return. What is
the effect of his criminal liability?
A:There will be an additional penalty imposed
on him. 1/5 on the basis of the remainder of his
sentence but note that it shall not exceed six
months.
Q: There was this earthquake, everything was shaking. He
just hid under the table. He did not leave the penal
institution. He was so loyal to the government that he did
not even think to leave. Will he be given credit?
A:No. Under Art 158 there is no credit to be
given to him. Under Art 98, there is no special
time allowance of loyalty for just hiding under the
table and not leaving the penal institution. (note:

Page 41

CRIMINAL LAW REVIEW Book 2 Notes

Atty. V. Garcia

not applicable now. 2/5 credit is to be applied


now)
Q: Why those who are loyal to the government and did not
leave the penal institution be not given credit? Isnt it
unfair?
A: The reason is that prisoners are considered as
accountabilities of the government. It is the duty of
the government to protect the prisoners. In times
of calamities or public disorders, the state cannot
protect these prisoners therefore the State
encourages them to leave in order to protect
themselves. But important thing is that they show
their loyalty to the government hence they will
return.
ARTICLE159 EVASION OF SERVICE OF SENTENCE
BY VIOLATION OF CONDITIONAL PARDON
ELEMENTS:
1. The offender was a convict
2. He was granted a conditional pardon by the Chief
Executive
3. He violated any of the conditions of such pardon
TWO KINDS OF PARDON:
1. Absolute Pardon which totally extinguishes the
criminal liability
2. Conditional Pardon which partially extinguishes
criminal liability.
Conditional Pardon is said to only partially
extinguishes criminal liability because the said
pardon is subject to strict terms and
conditions. Therefore, there must be an
acceptance in the part of the prisoner granted
pardon. The moment he accepts the
conditional pardon, it means it is incumbent
upon him to comply to all of the strict
conditions. The moment he violate any of the
terms and conditions he commits evasion of
service of sentence because it shows that he
just accepted the conditional pardon so as to
free himself from taking place behind bars.

Is violation of conditional pardon a substantive


offense or not?
It depends. If you will look at Art 159, there
are 2 situations. Under Art 159, if the penalty
remitted by the grant of pardon does not
exceed 6yrs, the moment he violates any of
the conditional pardon, there is a new penalty
imposed upon him that is prision correccional
minimum 6 months and 1 day to 2 years and
4 months. A new penalty is imposed on him
therefore in this case, violation of the

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conditional pardon is a substantive offense


because a new penalty is imposed on him.
BUT on the second part of Art 159, if the
penalty remitted is more than 6 years; no new
penalty is imposed on him for having violated
the terms of the pardon. He is only required to
serve the remainder of the sentence. In this
case, violation of the conditional pardon is not
a substantive offense because there is no
new penalty imposed for the commission of
the crime.
ARTICLE160 COMMISSION OF ANOTHER CRIME
DURING SERVICE OF PENALTY IMPOSED FOR
ANOTHER PREVIOUS OFFENSE
ELEMENTS:
1. The offender was already convicted by final
judgment of one offense.
2. He committed a new felony before beginning to
serve such sentence or while serving the same.

Who is a quasi-recidivist?
A quasi-recidivist is any person who shall commit
a felony after having been convicted by final
judgment before serving his sentence or while
serving his sentence.

Under Art 160 it is stated that the maximum penalty


prescribed by law shall be imposed therefore it is a
special aggravating circumstance.
Art 160 is a misplaced article because book 2 is
about felonies and art 160 is a special aggravating
circumstance.
TITLE FOUR
CRIMES AGAINST PUBLIC INTEREST (Articles 161
189)

ARTICLE161 COUNTERFEITING THE GREAT SEAL


OF THE GOVERNMENT OF THE PHILIPPINE ISLANDS,
FORGING THE SIGNATURE OR STAMP OF THE CHIEF
EXECUTIVE
Acts punished:
I.
Forging the Great Seal of the Government of the
Philippines.
II.
Forging the signature of the President.
III.
Forging the stamp of the President.

Art 161 punishes the person who forges the great seal
of the Philippines, signature of the chief executive and
forging the stamp of the chief executive.

Art 161 is the crime when the person is the one who
committed the forgery, but if the offender is not the one

Page 42

CRIMINAL LAW REVIEW Book 2 Notes

Atty. V. Garcia

who forges the great seal, signature but he knows that


the document contain a forge stamp, signature of the
President and despite such knowledge that it was a
forgery he makes use of the same, liability is under
162.
ARTICLE162 USING FORGED SIGNATURE OR
COUNTERFEIT SEAL OR STAMP (Art 162)
ELEMENTS:
1. That the Great Seal of the Republic was
counterfeited or the signature or stamp of the
Chief Executive was forged by another person.
2. That the offender knew of the counterfeiting or
forgery.
3. That he used the counterfeit seal or forged
signature or stamp.

Art 162 punishes the person who, despite knowledge


of the forged signature, stamp or great seal of the
Republic of the Philippines still he makes use of the
same document.

ILLUSTRATION:
Q: In an official document, the signature of the President
was forged by A then it was given to B. B knew that it was
a forgery nevertheless he made use of the same. What
crime was committed?
A:A committed a crime under 161. And B
committed a crime under 162.
ARTICLE163 MAKING AND IMPORTING AND
UTTERING FALSE COINS
ELEMENTS:
1. That there be false or counterfeited coins
2. That the offender either made, imported or uttered
such coins.
3. That in case of uttering such false or counterfeited
coins, he connived with the counterfeiters or
importers

When is it committed?
A. Counterfeiting (imitation of false coins)
is committed by any person who shall imitate
a genuine and authentic coin making it
appear that it is a true, genuine, and authentic
coin. The offender copies the peculiar design
of the coin and makes a spurious one out of
it.
B. Importing false coins is committed by
any person who shall bring into the Philippine
ports any false and counterfeited coins. It is
not necessary for the offender to be liable that

he shall circulate the false coins because


there is a third act of uttering false coins.
C. Uttering false coins is committed by any
person who shall circulate, give away to
another, pass from one person to another any
counterfeited or false coins.

In case of counterfeited or imitated false coins, it is not


necessary that the coins be the subject of
counterfeiting must be of legal tender. Even if the coin
is not a gold coin, if the offender copies or imitates or
counterfeits the peculiar design of the said coin; he
becomes liable under Art 163.

ILLUSTRATION:
Q: A is in possession of a coin which was of legal tender
during the time of Marcos in 1972. It was a proven genuine
coin. He copied the said coin and made a spurious one out
of it. Is he liable under Art 163?
A: Yes he is liable for making and importing and
uttering false coins under Article 163.
Q: What if while he was in possession of the said coin; he
took out a part of the metal content of the said coin. Can he
be liable for Mutilation of coins under Art 164?
A:No, he cannot because in Art 164 or mutilation
of coins, it is necessary that the coin subject of
mutilation must be of legal tender. It must be in
present currency because otherwise, it cannot be
said that the public has been deceived.
ARTICLE164 MUTILATION OF COINS
Acts punished:
I.
Mutilating coins of the legal currency, with the
further requirement that there be intent to damage
or to defraud another.
II.
Importing or uttering such mutilated coins, with the
further requirement that there must be connivance
with the mutilator or importer in case of uttering.

Mutilation is the act of taking off a part of the metal


content by filing it or substituting it for another metal of
inferior quality.
The offender gathers the metal dust that he has taken
off from the said coin.
While the offender took out a part of the metal coin, he
is in effect diminishing the intrinsic value of the said
coin therefore who would be given the said coin would
be deceived of the this crime hence a crime in violation
of public interest is committed.

ILLUSTRATION:

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CRIMINAL LAW REVIEW Book 2 Notes


Q: There were 3 children/adults. They were playing karakrus. So they toss the coin, however before doing that, they
would scratch the coin on the steel therefore the metal
content of the coin is diminished. Can they be held liable
under Art 164?
A: No. because there was no intent to gather the
metal dust of the said coin.
Can they be held liable of any crime?
Yes. They can be held liable under PD
247

PD 247 punishes any person who willfully or knowingly


defaces, mutilates, tears, burns or destroys any
currency
notes
or
coins
issued
by
the
BangkoSentralngPilipinas.
In case of violation of PD 247 it is not required that
there is intent to mutilate on the part of the offender. It
is not required that the offender has the intent to
gather the metal dust of the coin although these are
required under Art 164.

Q: In a P 1000.00 bill, a person put his cell phone no. on it.


Is he liable under PD 247?
A: Yes he is liable under PD 247.

But PD 247 is akin to a dead law because no one has


been prosecuted by it.

ARTICLE165 SELLING OF FALSE OR MUTILATED


COIN, WITHOUT CONNIVANCE
Acts punished:
I.
Possession of coin, counterfeited or mutilated by
another person, with intent to utter the same,
knowing that it is false or mutilated.
ELEMENTS:
1. Possession,
2. With intent to utter, and
3. Knowledge
Under the first act, the offender is in
possession of the false, mutilated,
counterfeited coin. It is another person
who counterfeited the coin. The offender
is only in possession of it but in order for
him to be held liable; he must have the
knowledge that the coin is counterfeited
or mutilated and despite having such
knowledge; he has the intent to utter,
circulate, pass away, to give away to
another the said coin.
II.

Actually uttering such false or mutilated coin


knowing the same to be false or mutilated.
ELEMENTS:
1. Actually uttering, and

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Atty. V. Garcia
2. Knowledge.
In the second act it is the act of actually
circulating or uttering the counterfeited
coin despite knowledge that it is
counterfeited or mutilated.
ILLUSTRATION:
Q: What if A is under surveillance, reports came to the
police that he had been circulating false coins. A went to
the bakery store, he bought bread worth P 50.00. He gave
the store owner 5 P 10.00 counterfeited coins. Thereafter,
after giving the counterfeited coins, he immediately left.
The police arrived and A was gone and it was the owner of
the store who is left. The police officer asked the owner of
the store to open the cash bin. There they saw the 5 P
10.00 coins which were counterfeited. They arrested the
owner of the store. Is the owner of the store liable under Art
165?
A:No he is not liable of selling of false coins or
mutilated coins, without connivance under Article 165.
First, he was caught in possession.
Was there possession?
Yes. The counterfeited coins were found
in his cash drawer. Possession does not
only mean physical or actual possession.
Possession
means
constructive
possession which means that the
counterfeited or mutilated coins are in his
control and custody. Therefore the first
element of possession is present.

Was there intent to utter the counterfeited coins


on the part of the said owner?
Yes. The fact that he placed it in the cash
drawer means he can use it to buy
another thing or as a change to the
people who will buy from his bakery
therefore circulation has a way from one
person to another. Therefore the second
element is also present.

How about the third element of knowledge on his


part the coin was counterfeited?
The third element is absent evidently
based on the facts that the store owner
has no knowledge that the coins are
counterfeited. In fact he gave bread
worth P 50.00. He was also deceived. If
he had only known that the coins were
counterfeited, he would not have given
bread worth P 50.00.
Therefore, he may not be held liable
because also he is in possession, and he
has the intent to utter the coins; he does

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CRIMINAL LAW REVIEW Book 2 Notes

Atty. V. Garcia

not have the knowledge that the said


coins were counterfeited.
ARTICLE166 FORGING TREASURY OR BANK NOTES
OR OTHER DOCUMENTS PAYABLE TO BEARER;
IMPORTING, AND UTTERING SUCH FALSE OR
FORGED NOTES AND DOCUMENTS
Acts punished:
I.
Forging or falsification of treasury or bank
notes or other documents payable to bearer.
II.
Importation of such false or forged obligations
or notes.
III.
Uttering of such false or forged obligations or
notes in connivance with the forgers or
importers.
ARTICLE167 COUNTERFEITING, IMPORTING, AND
UTTERING INSTRUMENTS NOT PAYABLE TO BEARER
ELEMENTS:
1. That there be an instrument payable to order
or other document of credit not payable to
bearer.
2. That the offender either forged, imported or
uttered such instrument.
3. That in case of uttering, he connived with the
forger or importer.
ARTICLE168 ILLEGAL POSSESSION AND USE OF
FALSE TREASURY OR BANK NOTES AND OTHER
INSTRUMENTS OF CREDIT
ELEMENTS:
1. 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.
2. That the offender knows that any of those
instruments is forged or falsified.
3. That he performs any of these acts ---a. Using any of such forged or falsified
instruments; or
b. Possessing with intent to use any of
such forged or falsified instruments.

An instrument is payable to bearer when it can be


transferred by mere delivery.
e.g. Check payable to cash. Whoever is
in possession of the said check can
come to the bank. It can be transferred
by mere delivery.
On the other hand a check is payable to order where
it can be transferred by mere delivery when there is an

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endorsement coming from the person named or


specified therein. It is an instrument payable to the
order of a specific person or his order.
e.g. Payable to the order of Charmaine.
This cannot be transferred from one
person to another without an order
coming from Charmaine.
ARTICLE169 HOW FORGERY IS COMMITTED (Art
169)
1. By giving to a treasury or bank note or any
instrument payable to bearer or to order
mentioned therein, the appearance of a true
and genuine document.
2. By erasing, substituting, counterfeiting, or
altering by any means the figures, letters,
words, or sign contained therein.

If what has been falsified is a coin; you call it


counterfeiting.
If it is the stamp, seal or signature of the President;
you call it forging.
If it is treasury or bank notes; it is considered as
forging.
It is a document; you call it falsification.

FALSIFICATION (ART 170, 171, 172)


In case of FALSIFICATION, to amount to falsification,
it is necessary that the writing that is falsified must be a
document in a legal sense of the word capable of
making rights and/or extinguishing an obligation.
Therefore, it must be complete in itself so that it would
be sufficient in evidence.
Falsification of mere forms does not amount to
falsification of a public document. Because the said
form is not yet complete in itself it has no name, no
address an unfilled-out/up form. It is not falsification.
ILLUSTRATION:
Q: So what if A was found outside the building of the LTO
office. He was carrying falsified unfilled-out/up forms of
drivers license. It was distinct, it was falsified, it was not the
real drivers license form. He was arrested by the NBI. Can
he be held liable for falsification of a public document?
A: NO. Because what he is carrying is only an
unfilled-out form. It is not yet complete in itself. It is
not yet capable of creating rights or extinguishing
an obligation. It is not yet susceptible of evidence
of the facts stated thereon.
Q: So what crime if any was committed by A?
A: A merely committed violation of Article 176
that is mere possession of instrument or
implements for falsification, but not yet falsification
of a public document.

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CRIMINAL LAW REVIEW Book 2 Notes


There 4 types of documents which may be falsified:
1. PUBLIC DOCUMENT a document which is
issued by a notary public or competent public
official with the solemnities required by law
2.

OFFICIAL DOCUMENT a document issued by a


public official in the exercise of his official
functions

3.

COMMERCIAL DOCUMENT any document


defined and regulated by the Code of Commerce
or any other mercantile law

4.

PRIVATE DOCUMENT a document, a deed or


instrument executed by a private person without
the intervention of the notary public of any other
person legally authorized, by which document
some disposition or agreement is proved,
evidenced or set forth

Is a public document distinct from an official


document?

All official documents are considered as


public documents, but not all public
documents
are
considered
official
documents. Before a public document may
be considered as an official document, it is
necessary that it shall be issued by a public
officer in the exercise of his official functions.
There is a law that requires a public officer to
issue the said public document, then it
becomes an official document.

A PRIVATE DOCUMENT, one which has been


executed by a private person, if there is no intervention
of public official.

A PRIVATE DOCUMENT however, even though


executed by a private person without the intervention
of a notary public or a legally authorized person, can
also become a public document. That is when the said
private document is submitted to the public officer and
it becomes part of the public records. The moment the
said private document becomes part of the public
records, it is now a public document and when it is
issued and it is falsified, what is falsified is a public
document and no more a private document.

It is necessary to distinguish the kind of document that


is being falsified - whether it is a public, official,
commercial or private because of the different effects.

If what has been falsified is a PUBLIC, OFFICIAL OR


COMMERCIAL DOCUMENT, damage or intent to
cause damage to the offended party or to any other
person is not an element.

On the other hand, if what has been falsified is a


PRIVATE DOCUMENT, for the crime to arise, it is
necessary that there must be damage or at least,

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Atty. V. Garcia

intent to cause damage to the private offended party or


to any other party.
If what has been falsified is a PUBLIC OR OFFICIAL
DOCUMENT, it is not necessary that there be damage
or intent to cause damage. Because a public
document an official document - is presumed
authentic and legal. It is presumed to be prima facie
evidence of the facts stated therein.
As such, the
moment it is falsified, the crime will immediately arise,
without need that there be damage on the part of the
offended party. Because in Falsification of a Public
Document, what has been violated is the
PERVERSION OF TRUTH being solemnly proclaimed
by the said document. Hence DAMAGE IS NOT AN
ELEMENT.

ARTICLE171 FALSIFICATION BY PUBLIC OFFICER,


EMPLOYEE OR NOTARY OR ECCLESIASTICAL
MINISTER
The first kind of falsification under Article 171, we have
the falsification committed by a public officer,
employee or notary public or an ecclesiastical minister.
ELEMENTS:
1. The offender is a public officer, employee, notary
public or an ecclesiastical minister.
2.

He takes advantage of his official position.


The offender is said to have taken
advantage of his position or office when:
a. He has the duty to make or prepare
or to otherwise intervene in the
preparation of the document; or
b. He has the official custody of the
document which he falsifies

3.

That the said offender falsifies a document by


committing any of the following modes stated
therein:
a. By counterfeiting or imitating any
handwriting, signature or rubric.
b. Causing it to appear that persons
have participated in any act or
proceeding when they did not in fact
so participate.
c. Attributing to persons who have
participated in an act or proceeding
statement other than those in fact
made by them
d. Making untruthful statements in a
narration of facts
e. Altering true dates
f. Making any alteration or intercalation
in a genuine document which
changes its meaning
g. Issuing in authenticated form a
document purporting to be a copy of
any original document when no such
original exists or including in such a
copy a statement contrary to or
different from that of the genuine
original

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CRIMINAL LAW REVIEW Book 2 Notes


h.

4.

Atty. V. Garcia

Intercalating any instrument or note


relative to the issuance thereof in a
protocol, registry or official book.

In case the offender is an ecclesiastical minister,


the act of falsification is committed with respect to
any record or document of such character that the
falsification may affect the civil status of persons.

EXPLANATIONS:
1. The offender is a public officer, employee, notary
public or an ecclesiastical minister.
If the offender is an ecclesiastical
minister, for him to be liable under Article
171, it is necessary that the document
that he falsifies must affect the civil status
of a person.
If the document falsified by an
ecclesiastical minister will not affect the
civil status of a person, he is still liable for
falsification, but not under Art. 171, rather
under Art. 172.
So, a priest falsified the communion
certificates of one of the students/pupils
receiving the first communion, the crime
committed is falsification under Art. 172,
not under Art. 171 because a certificate
of communion will not affect the civil
status of the said child.
2.

He takes advantage of his official position.


It requires that the offender takes
advantage of his official position.
The offender is said to have taken
advantage of his position or office when:
a. He has the duty to make or prepare
or to otherwise intervene in the
preparation of the document; or
b. He has the official custody of the
document which he falsifies

3.

That the said offender falsifies a document by


committing any of the following modes stated
therein:
If you will look at Art. 171, it does not
state the kind of document that has been
falsified, it may not be stated because it
necessarily follows that the document
falsified is a public or official document
because the offender is public officer or
employee or notary public. Therefore
necessarily, the document being falsified
in Art. 171 is a public official or official
document.

Art. 171 provides for the DIFFERENT ACTS OF


FALSIFICATION. These acts of falsification are also
applicable in Art. 172:
I.
BY COUNTERFEITING OR IMITATING ANY
HANDWRITING, SIGNATURE OR RUBRIC.
So what is COUNTERFEITING?
The
offender is said to have
counterfeited a signature, handwriting or

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II.

rubric if he has imitated an official


handwriting, signature or rubric.
So there is an original handwriting or
signature and the offender imitiated or
copied the said original handwriting or
signature.

Is COUNTERFEITING the same as


FEIGNING?
Feigning a handwriting, signature or
rubric is NOT THE SAME as
counterfeiting. When you say FEIGNING,
it means simulating a handwriting,
signature or rubric. That is, making a
handwriting, signature or rubric out of
nothing which does not exist. It is an
imaginable, an inexistent handwriting,
signature or rubric.

CAUSING IT TO APPEAR THAT PERSONS HAVE


PARTICIPATED IN ANY ACT OR PROCEEDING
WHEN THEY DID NOT IN FACT SO PARTICIPATE.
Q: What if a notary public issued, he prepared or issued an
extrajudicial settlement of an estate. In the said
extrajudicial settlement of an estate, it is stated that all the
heirs of a certain decedent can already agree by
themselves to partition the property. So it is an extrajudicial
settlement of an estate and in it, the notary public made it
appear that all the 12 heirs of the decedent had
participated, but un truth and in fact, two of the heirs where
in another country and they did not participate in the
execution of this extrajudicial settlement of the estate. Is
the notary public liable?
A: YES. The notary public is LIABLE under the
second act (causing it to appear that persons
have participated in any act or proceeding
when they did not in fact so participate).He
caused it to appear that A and B participated in
the execution of the extrajudicial settlement of the
estate, when they did not in fact so participate.

III.

ATTRIBUTING
TO
PERSONS
WHO
HAVE
PARTICIPATED IN AN ACT OR PROCEEDING
STATEMENT OTHER THAN THOSE IN FACT MADE
BY THEM
So under the third act, persons participated in
an act or proceeding, they made statements
therein, however, the offender in a document
may appear that these persons have made
certain statements which were not in fact
made by them.
Q: So what if in the Sangguniang Panglungsod, an
ordinance was being passed. There was a votation,
majority of the councilors voted, two of the councilors
dissented and their vote were NO. They just stated that
they were voting in the negative, but, they did not give any
explanation for their dissent or the vote of NO. However, in
the minutes appeared by the Sangguniang Secretary, the
latter made it appear that the two councilors made
statements that they voted NO because the said ordinance

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CRIMINAL LAW REVIEW Book 2 Notes

Atty. V. Garcia

is contrary to law. Is the said secretary liable for


falsification?
A: YES. He is a public officer. He is the one who
prepared
the
minutes
for
the
SangguniangPanglungsod and he made it appear
that the 2 councilors stated that the said ordinance
is contrary to law and in truth and fact, they did not
made those statements. So the said secretary is
liable for falsification.
IV.

MAKING UNTRUTHFUL STATEMENTS IN A


NARRATION OF FACTS
The evidence of this act of falsification
requires:
i. That the offender makes in a document
untruthful statement in a narration of
facts;
ii. That he has legal obligation to disclose
the truth of the facts narrated by him
iii. The facts narrated by the offender are
absolutely false
iv. The untruthful narration must be such
as to effect the integrity of the
document and that the offender does
so with the intent to injure or prejudice
another person

It is necessary that the intention of the


intention of the offender must be to INJURE
ANOTHER PERSON.
In case of making false statements in a
narration of facts, it is necessary that the
offender must have the legal obligation to
disclose the truth in the said narration of facts.
Absence of such legal obligation, then it
cannot be said that he is liable for
falsification.
When you say legal obligation, there is a law
which requires him to state nothing but the
truth in the said document.

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


statement in his residence certificate or community tax
certificate. Although he stated his true name, he did not
state his address, citizenship, etc. So makes false
statement of facts in his residence certificate or community
tax certificate, otherwise known as cedula. So he was
charged with falsification. He contended that there is no law
which requires him to state the truth in his residence
certificate. Is his contention correct?
A: His contention is wrong. According to a ruling in
the Supreme Court, if it is a residence certificate
or community tax certificate, there need not be a
law which requires a person to state the truth in
the said residence certificate, it is inherent in the
kind of document. Since it is a residence
certificate or cedula, it is inherent that in this
document, nothing but the truth must be stated
no falsity. Because it requires identification.
V.

It is necessary that what has been altered


must be a true date and in the alteration of
the said true date, the document will no
longer have any effect.

VI.

MAKING ANY ALTERATION OR INTERCALATION IN


A GENUINE DOCUMENT WHICH CHANGES ITS
MEANING
2 ACTS:
i.
The offender makes an alteration
ii.
The offender makes an intercalation in a
genuine document which changes its
meaning
ALTERATION changes in a document
INTERCALATION there must be some
insertion made in the said document, in a
genuine document that changed the meaning
of the said document

VII.

ISSUING IN AUTHENTICATED FORM A DOCUMENT


PURPORTING TO BE A COPY OF ANY ORIGINAL
DOCUMENT WHEN NO SUCH ORIGINAL EXISTS
OR INCLUDING IN SUCH A COPY A STATEMENT
CONTRARY TO OR DIFFERENT FROM THAT OF
THE GENUINE ORIGINAL
2 ACTS PUNISHED:
1. The offender issued in an authenticated
form a document purporting to be an
authenticated copy of an original document,
but no such original exists
2. By including such copy a statement
contrary to or different from a genuine original
ILLUSTRATION:
Q: What if a notary public issued a deed of absolute sale
and he said that it is an original copy of a deed of absolute
sale between A and B. A selling his property to B, but in
truth and in fact, no such deed of absolute sale was
executed between A and B. Is the notary public liable?
A: YES. He is liable under the first act of
falsification in the seventh act of the 3rd element in
Art. 171.
Q: What if a civil registrar issued a certificate of live birth.
So here comes A. A was asking that he should be given a
certified copy of a certificate of live birth. In the said
certificate of live birth issued by the said civil registrar, there
was a statement that A was an illegitimate child, but in the
original copy of the certificate of live birth submitted to the
office of the Office of the Civil Registrar, there was no such
statement. Is the civil registrar liable?
A: YES. He is liable under the second act of
falsification in the seventh act of the 3rd element in
Art. 171. Because he included in the said copy a
statement contrary to or different from that of a
genuine original.

ALTERING TRUE DATES

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Page 48

CRIMINAL LAW REVIEW Book 2 Notes


VIII.

INTERCALATING ANY INSTRUMENT OR NOTE


RELATIVE TO THE ISSUANCE THEREOF IN A
PROTOCOL, REGISTRY OR OFFICIAL BOOK.
INTERCALATION making any insertion in
any instrument or note

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


same acts punished under Art. 172.

Atty. V. Garcia

ARTICLE172

FALSIFICATION
BY
PRIVATE
INDIVIDUALS AND USE OF FALSIFIED DOCUMENTS
THREE PUNISHABLE ACTS/FELONIES?
I.
Falsification of a public, official or commercial
document by a private individual
So in case of FALSIFICATION OF A PUBLIC,
OFFICIAL OR COMMERCIAL DOCUMENT
by a PRIVATE INDIVIDUAL, is just the same
as ARTICLE 171 they only differ in that in
Art. 171, the offender is a public officer or
employee.
In ARTICLE 172, yes, the document falsified
is a public, official or commercial document,
but, the offender is a private individual even if
the offender is a private individual, since the
document falsified is a public, official or
commercial document, DAMAGE OR INTENT
TO CAUSE DAMAGE IS NOT AN ELEMENT.
II.

III.

Falsification of private document by any


person
The document falsified is a PRIVATE
DOCUMENT. The offender is any person. He
can be a private individual, he can be a
private officer or employee for as long as the
document falsified is a private document, it
necessary that there must be damage caused
to a third person or at least the intention of
the offender is to CAUSE DAMAGE.
Absence of damage or intent to cause
damage, then falsification of a private
document will not arise.
Use of falsified document
A document has been falsified and the
offender uses the said document.
If the falsified document is used in a
JUDICIAL PROCEEDING, again, DAMAGE
or INTENT TO CAUSE DAMAGE is NOT AN
ELEMENT because it is a judicial proceeding.
But if the said falsified document is used in
any other transaction, this time, damage or
intent to cause damage is an ELEMENT.

ARTICLE173 FALSIFICATION OF WIRELESS


TELEGRAPH AND TELEPHONE MESSAGES
Punishable acts
I.
Uttering fictitious, wireless, telegraph or
telephone message
II.
Falsifying
wireless,
telegraph
or
telephone message
III.
Using such falsified message

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If the act punished is UTTERING FICTITIOUS,


WIRELESS,
TELEGRAPH
OR
TELEPHONE
MESSAGES
and
FALSIFYING
WIRELESS,
TELEGRAPH OR TELEPHONE MESSAGES, note
that these can only be committed by a person working
in a department, agency or corporation which is
engaged in a business of receiving and sending
wireless, telegraph and telephone messages.
Under the third act USING FALSIFIED WIRELESS,
TELEGRAPH OR TELEPHONE MESSAGES, this
time, it can be committed by any person.

Articles 174 and 175 refer to the persons who shall be


criminally liable in case of falsified document.
ARTICLE174 FALSE MEDICAL CERTIFICATES,
FALSE CERTIFICATES OF MERIT OR SERVICE, ETC
Under Art. 174, if the offender is a PHYSICIAN OR
SURGEON who issues a false medical certificate in
the practice of his profession, he becomes liable under
Art. 174.
Likewise, Art. 174 punishes a PUBLIC OFFICER who
issues a false certificate of merit, service or good
conduct, moral character, etc.
And, under Art. 174, ANY PRIVATE INDIVIDUAL who
falsifies a medical certificate or certificate of merit or
service or good conduct shall be also criminally liable.
The offender is the person who falsifies, issues the
false medical certificate or certificate or merit.
If the offender is not the falsifier, but he knows that the
said document is falsified and he makes use of the
same, his liability is under Art. 175.
ARTICLE175 USING FALSE CERTIFICATE
Under Art. 175, the offender knows that the medical
certificate or certificate of merit has been falsified and
despite that knowledge, he makes use of the same.
ILLUSTRATION:
Q: So what if the defense counsel is about to present his
witness. The witness is a person who was present in the
scene of the crime who actually saw the incident that is
according to the defense counsel. However, on the date of
the said hearing, the said witness failed to appear, the
defense counsel said to the judge: Your Honor, my
witness is in the hospital, he cannot even get out of bed.
He is very, very sick. The judge, however, was doubtful of
the said manifestation of the defense counsel and so the
judge told the defense counsel: Okay, let him appear in
the next hearing and make sure that he brings with him a
medical certificate to show that indeed he can testify in this
hearing. With that, the defense counsel informed the
witness of the said order of the court. The said witness was
in that time, healthy, it is just that he was too afraid to
testify. However, in the next hearing, he is deemed
required to produce a medical certificate showing that he
was bedridden. And so, he went to his medical doctor. He
asked the doctor to issue a medical certificate saying that
he was very, very sick and that he could not get out of bed
on the said date. The said doctor issued the said medical
certificate and then his witness appeared on the second
hearing and presented him to the court. It was submitted to
the records of the court. What crime or crimes is/are

Page 49

CRIMINAL LAW REVIEW Book 2 Notes


committed by doctor or the physician as well as by the
witness?
A: The PHYSICIAN is liable under Art. 174. He
issues a false medical certificate in the exercise or
in the practice of his profession.
On the other hand, the WITNESS, despite
knowledge that it is a falsified medical certificate,
still made use of the same and he presented and
submitted it to the court.
ARTICLE176 MANUFACTURING AND POSSESSION
OF
INSTRUMENTS
OR
IMPLEMENTS
FOR
FALSIFICATION
This is the felony that is if a person was found in
possession of unfilled-out forms of drivers license, he
can be held liable for falsification of a public document
and liable only in Article 176.
Under Art. 176, what was being punished are:
1. Making or introducing into the Philippines any
stamps, dies, marks or other instruments or
implements for counterfeiting or falsification.
2. Possessing with intent to use the instrument or
implements for counterfeiting or falsification made
in or introduced into the Philippines by another
person.
ARTICLE177 USURPATION OF AUTHORITY OR
OFFICIAL FUNCTIONS
I.
Usurpation of authority is committed when a
person knowingly and falsely represents himself to
be an officer or agent of any department of the
Philippine government or agency thereof or of a
foreign government.
The crime will immediately arise from the mere
act of person of knowingly and falsely
representing himself to be an officer or agent
of any department or agency of the
Philippines or of a foreign country. It is not
necessary for the offender to commit any act,
to perform any act. It suffices that he falsely
represents himself to be an officer or agent of
the Philippine government. The crime will
immediately arise. However, the said false
representation, aside from being done
knowingly, must be such that he intended to
be known by such other person or by public
as a representative or agent of Philippine
government.
II.

There is usurpation of official function if any


person performs an act pertaining to a person in
authority or a public officer of the Philippine
Government or of a foreign government or agency
thereof, under pretense of official position, and
without being lawfully entitled to do so.
It is necessary that the offender performs an
act. Mere representation will not suffice. It is

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Atty. V. Garcia
necessary that he performs an act pertaining
to a person in authority or a public officer of
any department or agency of the Philippine
government or of a foreign government.
In usurpation of official functions, it is
necessary that the act pertaining to a person
in authority or a public officer must be under
pretense of official position and without being
lawfully entitled to do so.
ILLUSTRATION:
Q: What if an administrative case was filed against the
mayor before the Office of the Ombudsman. During the
investigation of the case, the Ombudsman preventively
suspended the mayor for a period of six months. The DILG
implemented the suspension order and the vice-mayor was
made the acting mayor. However, upon advice of his
counsel, the suspended mayor began working, began
performing the acts of being a mayor after 90 days of
preventive suspension. That is because according to his
counsel, he can only be suspended for a period of 90 days.
So on the 91st day of his suspension, he again began
assuming the function of a mayor. He signed documents,
he issued memorandum, etc. as the city mayor. Is he liable
under Article 177 for usurpation of official function?
A: Yes, he is liable for usurpation of official
function under Article 177. The reason is that he
is still under preventive suspension. Unless and
until it is lifted by the Ombudsman and the said
lifting was implemented by the DILG, he remains
to be a suspended mayor. And for having acted,
for having performing an act pertaining to the
office of a mayor, he is said to be committed a
violation of Article 177, usurpation of official
function.
Q: What if there was heavy traffic. So there was no MMDA
officer or policeman manning the traffic. One of the owners
of the vehicle caught in the traffic alighted from the vehicle
and he manned the traffic to ease the flow of the traffic.
The said man performed an act pertaining to an officer of
the MMDA, pertaining to a traffic enforcer. Is the said man
liable for usurpation of official function?
A: NO. While the man performed however he did
not do so under pretense of official position and
without being lawfully entitled to do so. There was
no intent on his part to falsely represent himself as
to be in that position. There was no false pretense
of official position therefore he cannot be held
liable under Article 177 or usurpation of official
function because his act was only done out of
pacific (promote peace; to end a conflict) spirit to
help ease the said traffic.

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CRIMINAL LAW REVIEW Book 2 Notes


ARTICLE178 USING FICTITIOUS NAME AND
CONCEALING TRUE NAME
Punishes two acts:
I.
USING FICTITIOUS NAME
Committed by any person who shall use
a name other than his real name publicly
for concealing a crime, or evade the
execution of a judgment, or to cause
damage to public interest.
ELEMENTS:
1. The offender uses a name other than his
real name
2. That he uses that fictitious name publicly
3. That the purpose of the offender is either:
a. to conceal a crime; or
b. to evade execution of a judgment; or
c. to cause damage to public interest.
II.
CONCEALING TRUE NAME
ELEMENTS:
1. The offender conceals
a. his true name; AND
b. all other personal circumstances
2. That the purpose is only to conceal his
identity
HOW WOULD YOU DISTINGUISH IF THE CRIME
COMMITTED IS USING FICTITIOUS NAME OR
CONCEALING TRUE NAME?
In case of using fictitious name, the use of a name
other than his real name, is done publicly. There is
the element of publicity. Whereas, in case of
concealing true name, it is not necessary that the
use of another name, concealing his true and real
name must be done publicly.
Using fictitious name and concealing true name
differ in purposes. In case of using fictitious name,
the purpose is to conceal a crime, evade the
execution of judgment or to cause damage to
public interest. On the other hand, in concealing
true name, the only purpose of the offender is to
conceal his true and real identity.
ANTI-ALIAS LAW (C.A. No. 142, as amended)
SO RELATED IN ARTICLE 178 IS C.A. 142 AS AMENDED
What is an alias? What does C.A. 142, as amended,
or the Anti-Alias Law provide?
According to the SC, an alias is a name or names
use intended to be used by a person publicly and
habitually, usually in business transaction other
than the name registered at birth for the first time
before the local civil registrar.
Under C.A. 142 as amended, except as
pseudonym, in literary, cinema, television, radio
and other entertainment purposes, and in athletic

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Atty. V. Garcia

events wherein the use of a pseudonym is a


normal practice, no person can use any name
other than his name by which he is registered at
birth at the local civil registrar or by which he is
registered by the Bureau of Immigration upon his
entry into the Philippines, in case of an alien.
The use of any other name must only be upon
approval by the judicial or competent authority.
Therefore, no person can use any other name
other than the name by which he is baptized at the
office of the civil registrar in your place other than
the name by which he is recorded in Bureau of
Immigration, if case he is a foreigner coming here
in the Philippines. He can only use his name.
EXCEPT if he is an actor, if he is an athlete, then
he is allowed to use a pseudonym. When he is a
writer of a book, then he is allowed to use a
pseudonym, a pen name other than his real name
because it is a normal practice OR if he files the
use of a substitute name before the court and he
is allowed by judicial or competent authority to use
any other name, then he can also use another
name. But outside these, a person can only use
the name by which he is registered at the office of
civil registrar.

CESARIO URSUA v. CA
The said accused made use of a different name.
he used the name of Oscar Perez in the office of
the Ombudsman as he was trying to get a copy of
the complaint filed against him. It was however
discovered that a case of violation of CA 142 was
filed against him.
The SC held that he is not criminally liable. The
SC acquitted the accused because according to
the SC, the use of the name Oscar Perez in an
isolated transaction, without any showing, absent
an evidence that henceforth he wanted to be
known by the name of Oscar Perez in not within
the prohibition of CA 142 as amended. There was
no evidence that showed that henceforth he
wanted to be known by that name. There was no
showing that henceforth, he wanted to be called
by the said name therefore it cannot be said that
Oscar Perez is an alias of the accused.
PEOPLE v. ESTRADA
In this case, the former president made use of the
name Jose Velarde in signing a trust account. So
he signed a trust account, using the name Jose
Velarde and so he was charged with violation of
CA 142 as amended.
Again, the SC said, the use by Erap of the name
Jose Velarde in a single, isolated transcation,

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CRIMINAL LAW REVIEW Book 2 Notes


without any showing that henceforth he wanted to
be known by such name, is not within the
prohibition of CA 142 as amended. First, it was
not done publicly and was in fact done secretly in
the presence of Laquian and Chua and the said
act of signing does not make it public because
these two are his close friends therefore it was
done secretly, in a discreet manner. Hence, it was
not done publicly. It was also not done habitually.
The element of habituality is not present because
there was no showing that in any other
transaction, he made use of the name Jose
Velarde. Hence, he was also acquitted although
convicted by Sandiganbayan, he was acquitted by
the SC.
Q: What if a lawyer was having a massage in a sauna bath
parlor. He did not know that as a front it is a sauna bath
parlor but in truth and in fact, it was a prostitution den. At
the time that he was having this massage service, the
police raided the place because they were able to secure a
search warrant. And among those arrested was the said
attorney. The said attorney was brought to the PNP station
and he was asked of his name, ashamed to reveal his true
identity, his true name, he said that he was Y and did not
state that he was Atty. X. However, when he was asked his
residence, he stated the truth. As of the name of his wife,
he stated the truth. As of the name of his children, he
stated the truth. Is he liable for using fictitious name?
A: He is not liable for using fictitious name.
First, he did not do so publicly. Second, his use of
the name was not done to conceal a crime, to
evade the execution of sentence or to cause
damage to public interestnone of these
purposes is present; therefore he is not liable for
using fictitious name.
Is he liable for concealing true name?
No, he is not liable for concealing true
name. Although he concealed his real
name, Atty. X, he did not conceal his other
personal circumstances. He divulged his
address. He divulged the name of his wife,
the names of his children; therefore, it
cannot be said that he has the intention to
conceal his true identity. In fact, his true
identity can easily be verified just by going to
the said address; therefore he is not also
liable for concealing true name.
Is he liable under CA 142, as amended?
He is also not liable under CA 142, as
amended, because the use of the name Y in
a single transaction, in a single isolated
transaction, without any showing that
henceforth he wanted to be known as Y is

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Atty. V. Garcia
not within the prohibition of CA 142, as
amended.
ARTICLE179 ILLEGAL USE OF UNIFORMS AND
INSIGNIA
Committed by any person who makes use of any
insignia, uniform or dress which pertains to an
office not being held by the offender or to a class
of person of which he is not a member and he
makes use of such insignia, uniform or dress
publicly and improperly.
ELEMENTS:
1. The offender makes use of INSIGNIA,
UNIFORM or DRESS
2. That the insignia, uniform or dress pertains to
an office not being held by the offender or to a
class of person of which he is not a member.
3. That the said insignia, uniform or dress is used
publicly and improperly.
The offender uses the insignia, uniform or dress of an
office not held by him or a by a class of person of
which he is not a member and he used the same
publicly and improperly.
ILLUSTRATION:
Q: What if a person was wearing a uniform. So he said that
it was a uniform of a certain organization known as H world
but in fact, no such organization ever existed. Is he liable
under Article 179?
A: No, he is not liable of Illegal use of insignia,
uniform or dress Article 179. The reason is that
H world does not belong to any office, doesnt
refer to a class of persons; therefore, he is not
liable under Article 179.
Q: What if a person made use of a uniform of a prisoner.
So you see a person, he was receiving a holy communion,
he was wearing an orange t-shirt with a big letter P at the
back which means Prisoner. Can he be held liable under
Article 179?
A: He is not liable of Illegal use of insignia,
uniform or dress under Article 179. Although he used the
uniform of a prisoner, it is not an office held by the offender,
it is not also a class of persons. When you say a class of
persons of which he is a member, it refers to a dignified
class of persons. He is assuming that he belongs to the
said class of persons. Here, he is even belittling himself
because he was wearing a uniform of a prisoner. Hence, it
cannot be said that he violated Article 179.
FALSE TESTIMONY (ART 180, 181, 182)
False testimony can either be false testimony in
criminal cases (Articles 180 and 181), false

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CRIMINAL LAW REVIEW Book 2 Notes

testimony in civil cases (Article 182) and false


testimony in other cases.
False testimony in criminal cases can either be:
(1) false testimony against a defendant (Article
180) and (2) false testimony favorable to
defendant (Article 181).

ARTICLE180 FALSE TESTIMONY AGAINST A


DEFENDANT
In a criminal proceeding, the offender-witness
testified falsely against a defendant knowing that
his testimony is false and then the said defendant
is either acquitted or convicted.
ELEMENTS:
1. That there be a criminal proceeding
2. That the offender testifies falsely under oath
against the defendant therein.
3. That the offender who gives false testimony
knows that it is false.
4. That the defendant against whom the false
testimony is given is either acquitted or
convicted in a final judgment. (People v.
Maneja)
ARTICLE181 FALSE TESTIMONY FAVORABLE TO
DEFENDANT
In a criminal proceeding, the offender-witness
testified falsely in favor of the defendant and he
knew that his testimony is indeed false.

Whether it be a false testimony against or false


testimony in favor of a defendant, it is immaterial
whether the court will consider or not the said false
testimony. The case may be filed.

ILLUSTRATION:
Q: What if A is being prosecuted for the crime of homicide,
for having killed the victim. So while he is being
prosecuted, the fiscal presented a witness. This witness
was also brought in by the heirs of the victim. The heirs of
the victim said that the witness saw the said act of killing.
The fiscal believed and the fiscal presented the said
witness. The witness however was not present at the scene
of the crime but in his testimony the witness said that he
was present at the scene of the crime and that he actually
saw the accused stabbing the victim to death. The
accused, A knew that the witness was testifying falsely
because he knew that at the scene of the crime, it was only
he and the victim who were present. After trial on the
merits, the judge, acquitted the said accused A. In other
words, the judge did not give weight to the testimony of the
false witness. Can A still file a case against the false
witness?

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Atty. V. Garcia
A:Yes, A can still file a case of false testimony
against the false witness. He can still file a case
of false testimony against the said false witness
even of the court did not consider the said false
testimony. Even if the court did not give any merit
on the said false testimony and acquitted him. The
crime will arise the moment the said offender
testified falsely in open court whether in favor or
against a defendant.
Q: What if in the same case, A was being prosecuted for
homicide. Then the prosecution presented the witness. The
witness testified falsely against the defendant saying that
he saw the actual act of killing. After trial on the merits, the
judge convicted the accused, the judge believed the false
testimony and so the judge convicted him. Upon conviction,
within 15 days from the promulgation of judgment, the said
accused, the said convict, filed an appeal before the CA.
While the case was pending before the CA, can the said
accused, the convicted person, already file a case of false
testimony against the false witness who testified against
him?
A:Not yet. Any case would still be a premature
case. In fact, you would not know what court will
have jurisdiction. You would not know if the court
that will have jurisdiction over the false testimony
is the RTC or the MTC because the penalty to be
imposed on the false witness is always dependent
on the penalty imposed on the convict.
Under Article 180, if the defendant has been
convicted and the penalty imposed is capital
punishment or death then the false witness shall
be imposed with a penalty of reclusion temporal. If
the defendant, upon conviction is imposed with a
penalty of reclusion perpetua and reclusion
temporal, the penalty will be imposed on the false
witness is prision mayor. If the said defendant is
convicted and the penalty imposed on him is any
other afflictive penalty, the penalty to be imposed
on the false witness is prision correcional. On the
other hand, if the penalty imposed on the said
defendant is prision correcional, arresto mayor,
fine or he was acquitted. If he was acquitted, the
penalty to be imposed on the said person who
testified falsely is arresto mayor.
So in this case, the penalty on the false witness is
always dependent on the penalty to be imposed
by the court on the defendant; therefore, there
must first be a final conviction by final judgment.
NOTE: if it is an acquittal, the case can be
immediately filed because an acquittal is
immediately executory. You cannot appeal an
acquittal. It is immediately executory.

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CRIMINAL LAW REVIEW Book 2 Notes


(IN FAVOR)
Q: So the case was filed against A for homicide, here
comes a witness, the witness testified falsely in favor of the
accused. Can the private complainant, the heirs of the
victim, immediately file a case of false testimony against
the witness right after the giving thereof?
A: Yes, because in case of false testimony in
favor of the defendant, the penalty of the false
witness is not dependent on the penalty to be
imposed on the said accused or defendant.
ARTICLE182 FALSE TESTIMONY IN CIVIL CASES
Right after the giving of the false testimony, the
private complainant or the aggrieved party, can
immediately file a case against the false witness
who testified in favor of the defendant.
ELEMENTS:
1. The testimony must be given in a civil case
2. The testimony must relate to the issues
presented in said case (relative or pertinent)
3. The testimony must be false
4. The false testimony must be given by the
defendant knowing the same to be false.
5. The testimony must be malicious and given with
intent to affect the issues presented in the
said case (U.S. v. Aragon)
In case of false testimony in a civil case, right after
the giving of the false testimony, the false witness
can be immediately prosecuted in court.
In order to amount in false testimony in civil cases,
there must be litigation. Take for example a sum
of money, breach of contract. If the false testimony
is given in a special proceeding, for example,
petition for nullity of marriage, petition for
separation, petition for habeas corpus, these are
special proceedings and a false testimony of a
person who testified falsely during this special
proceeding, the case is under Article 183, false
testimony in other proceedings.
ARTICLE183 PERJURY
PERJURY is the willful and deliberate assertion of
falsehood on a material matter made before an officer
duly authorized to receive and administer oath.
ELEMENTS:
1. The accused made a statement under oath or
executed an affidavit upon a material matter
There are two ways of committing
perjury:
The offender either:
1. Makes a statement under
oath (he makes a false testimony); or
2. Executes an affidavit on a
material matter (if it is an

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Atty. V. Garcia

2.

affidavit, it is also required


under oath)
The said statement under oath or affidavit
was made before a competent officer duly
authorized to receive and administer oath
In order to amount to perjury, it is
necessary that the said oath must be
given before an officer duly authorized to
receive and administer. Otherwise, it
cannot be considered as perjury because
the essence of perjuryis the violation
of the solemnity of oath.
If the person who received the oath is not
duly authorized, it cannot be said that
there is a violation of the solemnity of the
oath.

3.

That in the said statement or affidavit, the


offender makes a willful and deliberate
assertion of falsehood
It is necessary for perjury to arise that the
offender
deliberately,
knowingly
ascertained a falsehood. There was a
deliberate intent on his part; therefore,
good faith is a defense in perjury.
Perjury likewise cannot be committed out
of mere negligence. It is necessary that
there must be a deliberate intent on his
part to assert a falsity either in the
statement or affidavit.

4.

The said statement or affidavit containing


falsity is required by law.
If it is not required by law then it cannot
be considered as a crime.

ILLUSTRATION:
Q: What if X made a false statement in a criminal
proceeding, what crime is committed?
A: The crime committed is FALSE TESTIMONY.
Q: A makes a statement in a labor case against B. What
crime is committed?
A: The crime committed is PERJURY.
If the false statement under oath is made in a judicial
proceeding whether it be a criminal or civil proceeding,
the crime committed is FALSE TESTIMONY. If the
said false statement, however, is made in a nonjudicial proceeding, administrative proceedings, or
quasi-judicial proceedings, then the crime committed is
PERJURY. So if the false testimony or the false
statement is made in a labor case, in an administrative
case, in an application for search warrant, during the

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CRIMINAL LAW REVIEW Book 2 Notes


preliminary investigation, before the fiscals office, the
crime committed is perjury.
Q: What if the offender makes false narration of facts in a
cedula. The offender makes a false narration of facts in a
drivers license. What crime is committed?
A: FALSIFICATION.
Q: What if the offender makes a false narration of facts in a
statement of assets, liabilities and net worth. So a public
officer filed a statement of assets, liabilities and net worth.
It contains falsities, false narration of facts. What is the
liability?
A: The liability is PERJURY.
WHERE
LIES
THE
DIFFERENCE
BETWEEN
FALSIFICATION AND PERJURY?
In falsification, the document is not required to be
under oath. In case of perjury, the document is
required to be under oath.
HOW ABOUT THE DIFFERENCE OF FALSE
STATEMENT AND PERJURY?
If the false statement is made in a judicial
proceeding, it is false testimony. If the false
statement is made in a non-judicial proceeding or
administrative
proceeding
or
quasi-judicial
proceeding, it is perjury.
ILLUSTRATION:
Q: An applicant for the bar filled out an application form for
the bar, there was a statement therein, Have you ever
been fined or convicted of any crime? and the answer was
no, however, in truth and in fact, he has already been fined
for the crime of jaywalking. He answered no and then this
application for the bar is required to be under oath. He was
looking for a notary public since it was a Sunday, there was
no office opened so he went to the legal office of his father,
hoping that there was a lawyer there. However, there was
only the janitor and he asked the janitor to sign in the
notary public part and then submitted it to the office of the
bar confidante. Is the said applicant for the bar liable for
perjury or is he liable for falsification?
A: He is liable of FALSIFICATION and not of
perjury because the person who received and
administered the oath is not a confidante officer
duly authorized to receive and administer the
oath. He was a mere janitor and not a notary
public. As such, the crime committed is
falsification. Again, the essence of perjury is the
violation of the solemnity of the oath.

Atty. V. Garcia
stated I love you and I miss you and they were all
falsities. He even asked it to be notarized and sent it to his
third girlfriend. Is he liable for perjury?
A: No, he is not liable for perjury. He is not
liable for perjury because the said love letter is not
required by law. The fourth element requires, to
amount to perjury, the sworn statement under
oath or the said affidavit must be required by law
because it is a crime against public interest not a
crime against personal interest.
Q: What if in a case submitted in a fiscals office, so there
was a complaint and attached thereto is a sworn statement.
In the said sworn statement, the witness said that he saw
the accident. He saw the accused bumped the victim.
According to him, at the time, he was watching Saksi, when
suddenly a commotion occurred outside, he ran out of the
window, he saw at that particular time the accused hitting
the said victim with his vehicle and so he saw the accused
that caused the death of the victim. That was his statement
in the affidavit filed to the fiscals office. During
investigation, however, it was discovered he was not
watching Saksi, he was watching Bandila, the news
program in ABS-CBN and not the news program in GMA. Is
he liable of perjury?
A:No, he is not liable of perjury. Although it was
under oath, administered by a fiscal, still it is no
perjury because it is not on a material matter.
Whatever it is that he was watching at the time,
even if it is cartoon, it doesnt matter. What
matters is that he heard the commotion, he ran to
the window, and he saw the accused bumping the
victim. He saw that it was the accused who killed
the victim and that it was the car of the accused
that hit the victim. Only then, it will be considered
as perjury but whatever he was watching, it was
immaterial. It was not on a material matter;
therefore it will not amount to perjury.
SUBORNATION OF PERJURY is committed by a person
who knowingly and willfully procures another to swear
falsely and the witness suborned does testify under the
circumstances rendering him guilty of perjury.
NOTE: Subornation of perjury is not expressly penalized in
RPC; but the direct induction of a person by another to
commit perjury may be punished under Article 183 in
relation to Article 7, meaning, the crime is plain perjury but
the one inducing another will be liable as principal by
inducement and the one who testified as principal by direct
participation.

Q: A wrote a love letter to the girl that he is pursuing. In the


said love letter, he stated falsities such as You are the only
one in my life. when in truth there were three of them. He

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CRIMINAL LAW REVIEW Book 2 Notes


ARTICLE184 OFFERING FALSE TESTIMONY IN
EVIDENCE
Committed by any person who shall offer in evidence
any false testimony or any false witness either in a
judicial proceeding or in any official proceeding.
ELEMENTS:
1. The offender offered in evidence a false witness
or false testimony.
2. The offender knew the witness or the testimony
was false.
3. The offer was made in a judicial or official
proceeding.
Is this the same as subornation of perjury?
Subornation of perjury is committed by any
person who procures a false witness in order
to perjures himself and testify falsely in a
case. There is no such crime as
subornation of perjury under the present
RPC because we already have Article 184.
Article 184 is committed when any person
who procures a witness and offers him as
evidence in court can be held liable under
Article 184 or he can be held liable as a
principal by inducement in false testimony or
as a principal by inducement in perjury;
therefore subornation of perjury is not
necessary and it is not a crime under
Philippine jurisdiction, under the RPC.
ARTICLE185 MACHINATIONS IN PUBLIC AUCTIONS
There are two acts punishable under Article 185
I.
SOLICITING GIFT OR PROMISE
By soliciting any gift or promise as a
consideration for refraining from taking
part in any public auction.
The mere act of soliciting any gift or
promise, so that he will refrain from
taking part of the public auction, will
already give rise to the crime. It is not
necessary that he actually received the
gift, it is not necessary that he actually
will not participate in the said auction.
ELEMENTS:
1. There be a public auction.
2. The accused solicited any gift or a
promise from any of the bidders.
3. That such gift or promise was the
consideration for his refraining from
taking part in that public auction.
4. The accused had the intent to cause
the reduction of the price of the thing
auctioned.

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Atty. V. Garcia
II.

ATTEMPTING TO CAUSE BIDDERS TO


STAY AWAY
By attempting to cause bidders to stay
away from an auction by threats, gifts,
promises or any other artifice
The mere attempt to cause bidders not to
participate in the said public auction by
threats, gifts or promise will already give
rise to the crime. It is not necessary that
the bidders would not actually participate.
ELEMENTS:
1. There be a public auction
2. The accused attempted to cause the
bidders to stay away from that public
auction.
3. It was done by threats, gifts, promises
or any other artifice.
4. The accused had the intent to cause
the reduction of the price of the thing
auctioned.

In order to be liable for this crime, whether it be the act


of solicitation or the act of attempting to cause bidders
to stay away from public auction, it is necessary that
the intention of the offender is to cause the reduction
of the price of the thing which is the subject of the
public auction. The acts complained of must be done
for the purpose of reducing the price of the thing
being auctioned.

In public auction, it is necessary that the public must


be able to get the best price for the thing being
auctioned. If there will be less bidders, less
participants in the said public auction, then the public
will not be able to get the best price for the thing
subject of the public auction. Here, if the nonparticipation of the other bidders was caused by a
person, then he is liable under Article 185. Again, the
intention of the offender is to cause the reduction of
the price of the thing which is the subject of the public
auction.

ARTICLE186 MONOPOLIES AND COMBINATIONS IN


RESTRAINT OF TRADE
Acts punished:
I.
COMBINATION TO PREVENT
FREE
COMPETITION IN THE MARKET
This is committed by any person who
shall enter into any contract or
agreement or taking part in any
combination whether in the form of trust
or otherwise, in restraint of trade or
commerce or to prevent by artificial
means free competition in the market.

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CRIMINAL LAW REVIEW Book 2 Notes


II.

III.

MONOPOLY
TO
RESTRAIN
FREE
COMPETITION IN THE MARKET
This is committed by monopolizing any
merchandise or object of trade or
commerce or by combining with any
other person or persons 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.
MANUFACTURER,
PRODUCER,
OR
PROCESSOR OR IMPORTER COMBINING,
CONSPIRING OR AGREEING WITH ANY
PERSON TO MAKE TRANSACTIONS
PREJUDICIAL TO LAWFUL COMMERCE
OR TO INCREASE THE MARKET PRICE
OF MERCHANDISE

The FIRST TWO ACTS under Article 186 can be


committed by any person and not necessarily by
manufacturers, producer or processors. The THIRD
ACT however, can be committed only by
manufacturers, processors, producers and importers
who combined with any other person or persons in
order to commit a transaction prejudicial to lawful
commerce or to increase the market price of any
merchandise or object of commerce
Whether it be the first, second or third act, the mere
conspiracy in order to restrain or to prevent free
competition will already give rise to the crime. It is not
necessary that there be actual restraint in trade or
commerce.

ILLUSTRATION:
Q: What if Petron, Caltex and Shell connived, combined
and agreed with one another to hoard fuel. They know that
the fuel prices will increase by March and so they decided
to hoard it. Can they be held liable under Article 186?
Juridical corporations cannot be the subject of
criminal action. First, it cannot be said that juridical
persons can act with intent. Second, you cannot
imprison a juridical person in case of conviction.
So if the offender is a juridical entity, who shall be
held liable?
The president, the directors or any of the
members of the said corporation, association
or partnership, who knowingly permitted and
allowed this combination or monopoly in
restraint of trade or commerce. Note that they
must have knowingly permitted the same
otherwise, they cannot be held criminally
liable.

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Atty. V. Garcia

If the objects, which are the subject of this monopoly or


combination in restraint of trade or commerce are
prime commodities such as food, motor fuel,
lubricants, it is not even necessary that there be
conspiracy. A mere proposal, a mere intial step to
hoard, to prevent free competition in the market
will already give rise to the crime.

ARTICLE187 IMPORTATION AND DISPOSITION OF


FALSELY MARKED ARTICLES
Committed by any person who shall imports, sells or
disposes any article or merchandise made of gold,
silver, other precious materials, or their alloys
ELEMENTS:
1. The offender IMPORTS, SELLS or DISPOSES
any article or merchandise made of gold,
silver, other precious materials, or their alloys
2. That the STAMPS, BRANDS, or MARKS of
those articles or merchandise FAIL TO
INDICATE the actual fitness or quality of said
metals or alloys
3. The OFFENDER KNOWS that the stamps,
brands or marks fail to indicate the actual
fitness or quality of the metals or alloys.

This is considered a criminal act because the offender,


despite knowing that the articles or merchandise that
he imported are misbranded, he still imports the same,
sells the same or disposes the same

Mere importation is a punishable act; therefore it is not


necessary for the offender to become liable under
Article 187 that he must have sold the misbranded
articles or that he must have disposed the article
because mere importationwill already give rise to
the crime.

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CRIMINAL LAW REVIEW Book 2 Notes

Atty. V. Garcia

TITLE FIVE
CRIMES RELATIVE TO OPIUM AND OTHER
PROHIBITED DRUGS
COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002
(RA 9165)
SECTION 4 IMPORTATION OF DANGEROUS DRUGS
AND/OR
CONTROLLED
PRECURSORS
AND
ESSENTIAL CHEMICALS
Is committed by:
Any person, who, unless authorized by
law, shall import or bring into the Philippines any
dangerous drug, regardless of the quantity and
purity involved.

In one Supreme Court decision, it held that: For


one to be liable for importation of dangerous
drugs, it is necessary to be proven that the
dangerous drugs that were taken in a vessel came
from a foreign country with the said dangerous
drugs on board the said vessel; therefore the
prosecution must prove that the vessel which
came into the Philippine ports had with it the
dangerous drugs. Only then can it be said that
the dangerous drugs have been imported from
another country.

dangerous drugs because the third


element is lacking.
Q: What if a person has been prosecuted for Illegal sale of
Dangerous Drugs. The said operation was a buy bust
operation. It is an entrapment procedure which is allowed
by law. Here, the criminal/evil intent originated mainly from
the offender himself thats why it is not considered as an
absolutory cause. Here, the Police Officers employed
means and methods to entrap and capture the criminal in
flagrante that is in the actual act of committing the crime.
So what if in the buy bust operation, the accused drug
seller was arrested. In the said operation, the informant
acted as the posuer buyer. He was given marked money.
The policemen ran into the place of the drug seller. Only
the poseur-buyer knocked at the door of the drug seller.
The drug seller came out and the poseur-buyer said that he
wanted to buy dangerous drugs in the amount of P200. The
drug seller said okay and gave 2 plastic sachets of
dangerous drugs to the poseur buyer. However, the
poseur-buyer without having given the marked money yet
to the drug seller negligently removed his eyeglasses so
the Police officers thought that that was the signal that the
sale has been consummated. They arrived at the said
place and arrested the drug seller. The marked money was
not given to drug seller. Does that constitute his acquittal?
A: No provided that all the elements are

SECTION 5 SALE, TRADING, ADMINISTRATION,


DISPENSATION, DELIVERY, DISTRIBUTION AND
TRANSPORTATION OF DANGEROUS DRUGS AND/OR
CONTROLLED
PRECURSORS
AND
ESSENTIAL
CHEMICALS
Selling Dangerous Drugs
Act of giving away any dangerous drug and/or
controlled precursor and essential chemical
whether for money of any other consideration.
ELEMENTS OF SALE OF ILLEGAL DRUGS:
1. The identity of the buyer and the seller

It is necessary that the identity of the


buyer and the seller are clearly
identified.
2. The object and the consideration
3. The delivery of the thing sold and the payment

present:
Note that the second element only requires the
crime must be established. The corpus delicti and
the price must be established. It does not require
that there must be giving of the price/money. It
suffices that the crime was established.
When the poseur-buyer said that he wants to buy
illegal drugs for P200, the price has already been
established. Therefore, all the elements will suffice
even if the marked money has not been given by
the buyer to the seller. In fact, even if the marked
money is not presented in court it will not be a
hiatus on the evidence of the prosecution provided
that the police officers and the witnesses were
able to prove the crime of illegal sale of dangerous
drugs.

thereof

Because if the dangerous drugs had


not been delivered, the third element
is lacking, the sale is abds forted,
there is only ATTEMPTED ILLEGAL
SALE of dangerous drugs not
consummated
illegal
sale
of

Dizon | Manalo | Navarez | Shyu | Tubio

Q: How about the poseur-buyer? Is it necessary for the


poseur buyer to testify in court? What if the prosecutor
failed to have the poseur-buyer testify in court? Does it
mean to an acquittal?
A: The testimony of the poseur-buyer is not
indispensable in a case of illegal sale of

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CRIMINAL LAW REVIEW Book 2 Notes


dangerous drugs. It is not indispensable because
the transaction can be proven by the other police
officers who have witnessed the transaction.
However if the seller denies the existence of the
said transaction; it is the incumbent upon the
prosecution to grove the said transaction by the
presentation the said poseur-buyer.
General Rule: The testimony of the poseur-buyer
is not indispensable in a case of illegal sale of
dangerous drugs.
Exemption: When the accused denies the
existence of the said transaction. If the
prosecution failed to present the poseur-buyer to
testify in court, it will amount to the dismissal of
the case.
Q: Lets say there is this cigarette vendor on the side walk
and here comes a man who parked his car near the side
walk. He called the cigarette vendor and told the cigarette
vendor to deliver a package to the man inside the car which
is parked on the other side of the street. He told the
cigarette vendor that he will give him P1000 if the he
agreed to deliver the package to the man inside the car
which is parked at the other side of the street. The cigarette
vendor asked the man what is inside the package however
the man said its none of your business to know whats
inside that. I will give you P1000 if you deliver this to the
man inside that car parked at the other side of the street.
So the cigarette vendor with the P1000 got the bag and
delivered it to the man at the other side of the street. He
knocked at the window and the man lowered his window.
However at the time of the said delivery the police officers
arrived and arrested the cigarette vendor. Can he be
prosecuted for delivery of dangerous drugs? Can he be
convicted for delivery of dangerous drugs?
A: He can be prosecuted for delivery of
dangerous drugs however it is a defense on his
part that he has no knowledge that the thing he is
delivering is dangerous drugs because under RA
9165, delivering has been defined as the act of
knowingly passing a dangerous drug to another,
personally or otherwise, and by any means, with
or without consideration. Therefore it is necessary
that the one delivering dangerous drug must have
the knowledge of the thing that he is delivering is
dangerous drug.
DELIVER an act of knowingly passing a dangerous drug
to another, personally or otherwise, and by any means,
with or without consideration.

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Atty. V. Garcia
SECTION 6 MAINTENANCE OF A DEN, DIVE, OR
RESORT
Any person who maintains a den, dive, or resort
for the use of illegal drugs are liable under this
section.

Are the owners, persons maintaining the said


dangerous drug dens are only the ones who are
criminally liable?
Under Section 7 of the act, even the
employees who are aware of the nature of the
said den, dive or resort for the use and sale of
dangerous drugs are also criminally liable.
Likewise, even persons who are not
employees which knowingly visit the same
place despite the knowledge of the nature of
such den, dive, or resort are also criminally
liable.

Q: What if the said den, dive, or resort is owned by a third


person? Lets say A and B rented a house. After giving the
down payment, A and B went to the said house. A and B
used the house as a den for illegal sale of dangerous
drugs. The police officers were able to secure a warrant
and A and B were arrested. Can the owner of the said
house be criminally liable for the maintenance of the said
den? How about the house? Can it be forfeited in favor of
the government?
A: Under Sec. 6, the said den, dive, or resort for
the use of illegal sale of dangerous drugs shall be
escheated in favor of the government provided
that the following circumstances concur:
1. The information must allege that the said
place is intentionally being used in
furtherance of illegal sale/use of
dangerous drugs.
2. Such intent must be proven by the
prosecutor.
3. The owner of the said house must be
included as an accused in the
information or complaint.
If these 3 elements are present; then the said
house shall be confiscated and escheated in
favor of the government.
SECTION 8 MANUFACTURE OF DANGEROUS
DRUGS
The presence if any controlled precursor and
essential chemical or laboratory equipment in the
clandestine laboratory is a prima facie evidence of
manufacture of any dangerous drug.

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CRIMINAL LAW REVIEW Book 2 Notes


SECTION
11

ILLEGAL
DANGEROUS DRUGS

POSSESSION

Atty. V. Garcia

OF

thing in his possession is dangerous


drugs.

ELEMENTS OF POSSESSION OF ILLEGAL

SECTION 12 - ILLEGAL POSSESSION OF DRUG


PARAPHERNALIA
e.g. A person was found in possession of empty
plastic sachets and other instruments used for
using dangerous drugs. He is therefore liable for
Illegal Possession of Drug Paraphernalia.

DRUGS:
1. The accused was in possession of prohibited
drug

In illegal possession of dangerous drugs;


the word possession does not only
mean
actual
possession of the
dangerous drug in his body. It suffices
that the said dangerous drug is found in
a place under the control and
dominion of the said offender.
Q: By virtue of a search warrant the police officers
conducted a search in the house of A to look for cocaine.
They looked inside the bedroom and underneath the pillow
on the bedroom of A, the found several sachets of cocaine.
Can it be held that A is in possession of the said drugs?
A: Yes because it is under his control
and dominion. Possession does not only
mean physical or actual possession. It
also means as constructive possession
for as long as the dangerous drugs is
under his control and dominion.
2.

3.

Such possession is not authorized by law

The offender is not authorized by law to


possess such drugs. Dangerous drugs
are per se contraband. They are per se
illegal items. The presumption is that
such possession is without authority of
law. Therefore the burden of proof is on
the accused to prove that he has the
authority to possess unlike illegal
possession
of
firearms.
Illegal
possession of firearms is not per se
contraband
therefore
in
illegal
possession of firearms, it is the
prosecution who has the burden of proof
that the said person lacks license.
The accused freely and consciously
possessed the prohibited drug

There must be an animus posidendi on


the part of the said accused. This animus
posidendi on the part of the accused is a
prima facie presumed by law. The
moment a person was found in
possession of dangerous drugs, the
presumes that the person knows that the

Dizon | Manalo | Navarez | Shyu | Tubio

Q: What if a person was found in possession of drug


paraphernalia can they avail the benefit of probation?
A: Yes he can avail for probation. The penalty
prescribed by law for illegal possession of drug
paraphernalias is an imprisonment ranging from 6
months and 1 day to 4 years which is within the
probationable penalty. Under Sec. 24 of R.A.
9165, any person convicted for drug pushing and
drug trafficking, regardless of the penalty imposed
by the Court, cannot avail for probation.
So under Sec. 24; only those who are convicted of
drug pushing and drug trafficking which cannot
avail for probation therefore for any other violation
of Dangerous Drugs Act, for as long as the
penalty imposed by the court is 6 years and
below, he can avail for the benefit of probation.
But if he is a drug trafficker/ pusher, one who is
engaged in selling dangerous drugs, he cannot
avail of the benefit of probation even if the penalty
imposed by the court is within the probationable
penalty because it is expressly prohibited by Sec.
24 of RA 9165.
SECTION
13

ILLEGAL
POSSESSION
OF
DANGEROUS DRUGS DURING PARTIES, SOCIAL
GATHERINGS OR MEETINGS
in Sec. 13, if any person was found in possession
of dangerous drug in a party, social gatherings or
meetings, or in the proximate company of at least
two (2) persons; the maximum penalty prescribed
by law shall be imposed.
SECTION 15 ILLEGAL USE OF DANGEROUS DRUGS
ELEMENTS
OF
ILLEGAL
USE
OF
DANGEROUS DRUGS:
1. The offender was apprehended/ arrested in
the actual use of dangerous drugs.

The first element requires that the


offender must be actually using,
sniffing the dangerous drugs.
2.

After a confirmatory test; he was found to be


positive for use of any dangerous drugs.

He was at the PNP Crime Lab and


after the confirmatory test, he was

Page 60

CRIMINAL LAW REVIEW Book 2 Notes


found to be positive for use of
dangerous drugs.
3.

No other amount of dangerous drugs must be


found in his possession.

If any other amount of dangerous


drugs was found in his possession,
then the proper charge would no
longer be illegal use but illegal
possession of dangerous drugs.

Q: The police officers saw a man snatched the cell phone


of a woman. Since the police officers saw the man in
committing the crime inflagrante delicto of actual act of
snatching and the man runaway, they followed the man.
The man entered the house. The police officers upon
entering the house saw 3 men on a round table; they were
in the actual act of sniffing shabu. They were arrested and
they were asked to stand up and fold their arms up and
they were searched. Upon the search, they found out that
these 3 men; each of them was found a sachet of illegal
drugs in their pockets aside from the dangerous drug that
they were using. What cases will you file against the 3
men?
A: Illegal Possession of Dangerous Drugs. No
illegal use of dangerous drugs because the third
element is one thing. Lets say after the
confirmatory test they were found to be positive
however 3 elements must concur: 1st element:
They were caught in the actual act of sniffing
shabu. 2nd element: After confirmatory test they
were found positive of the use of dangerous drugs
however the 3rd element is lacking because they
found to have in their possession a plastic sachet
of other dangerous drugs other than the one they
used. Therefore the proper crime charged is illegal
possession of dangerous drugs.
SECTION 21 PROCEDURE IN THE SEIZURE AND
CONFISCATION OF DANGEROUS DRUG
The apprehending team which has the initial
possession of the seized/confiscated dangerous drugs
shall:
1. Inventory the dangerous drugs
2. Take photographs of the same in the
presence of the accused or from the
person whom the dangerous drugs
have been confiscated or in the
presence of his counsel, a
representative from the media, a
representative from the Department
of Justice, and an elected public

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Atty. V. Garcia
official who shall be given a copy of
the said inventory and who shall be
required to sign the same.
Procedure:
1. Upon seizure/ confiscation of dangerous drugs,
the same must be stated in the inventory list.
2. There must be a picture taking of the dangerous
drugs in the presence of the accused or from the
person whom the dangerous drugs have been
confiscated or in the presence of his counsel, a
representative from the media, a representative
from the Department of Justice, and an elected
public official.
3. The elected public official must be required to sign
the inventory list and shall be given a copy of the
same.

Q: What if the police officers failed to comply with this


procedure? In People vs. Sta. Maria, the police officers
failed to comply with this procedure however there was
conviction. However, in the case of Dolera vs. People; the
police officers failed to comply with Sec. 21 procedure and
this time there was an acquittal. Why is there an acquittal in
the case of Dolera and why is there a conviction in the case
of Sta. Maria?
A: The Supreme Court held that even if there is
failure to comply with the procedure underlined in
Sec 21 of RA 9165 by the arresting officers, there
will still be conviction if the said non-compliance is
due to justifiable reasons and provided that the
police officers were able to preserve the integrity
and evidentiary bond of the confiscated
dangerous drugs this is in consonance with the
chain of custody rule.
If the police officers were not able to comply with
the procedure due to justifiable cause, they must
be able to preserve the integrity and evidentiary
bond of the confiscated dangerous drug that is;
right after confiscation, it must be marked to
ensure that it was the dangerous drugs taken from
the accused and must be turned over to the
forensic laboratory for testing.
CHAIN OF CUSTODY RULE
What is the Chain of Custody rule? (People v
Gutierrez)
It is defined as the duly recorded authorized
movements and custody of dangerous drugs
from the time of confiscation/seizure to the
receipt in the forensic laboratory to

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CRIMINAL LAW REVIEW Book 2 Notes

Atty. V. Garcia

safekeeping to presentation in court for


destruction.

What is the purpose Chain of Custody rule?


The purpose of Chain of Custody rule is to
ensure
that
the
dangerous
drug
seized/confiscated from the accused is the
very same dangerous drug which has
been tested by the forensic chemist and it
is the very same dangerous drug
presented in court that is; there has been
no substitution of evidence.
Dangerous drugs are so small. There can be
a replacement of the effects therefore this
Chain of Custody rule will ensure that there
will be no substitution of the very same
dangerous drug seized/confiscated from the
accused at the time that they were presented
to the court.

Q: What if a person is charged for illegal possession of


dangerous drugs and during his arraignment, he pleaded
not guilty and during the pre-trial, he said that he will
change his plea if he will be allowed to plead guilty for a
lesser offense of illegal possession of drug paraphernalia.
So he wanted to avail of the plea-bargaining rule under the
rules of court. Under the plea-bargaining rule, you can
plead guilty to a lesser offense provided that the said lesser
offense is necessary included in the offense charged. Here,
the charge is illegal possession of dangerous drugs; can he
plead for a lesser offense of illegal possession of drug
paraphernalia?
A: He cannot because Sec. 28 of R.A. 9165
provides that any person charged in violation of
any of the crimes charged under this act cannot
avail of the plea-bargaining under the rules of
court. Therefore any person charged in violation of
any of the punishable acts under R.A. 9165
cannot plead guilty to a lower offense.

SECTION 25 A POSITIVE FINDING FOR THE USE OF


DANGEROUS DRUGS SHALL BE A QUALIFYING
AGGRAVATING CIRCUMSTANCE
Q: A killed B. The police officers arrested A and they
brought him to the crime lab to be tested for the use of
illegal use of dangerous drugs. After testing, he was found
positive for the use of dangerous drugs. What is the effect
of it in the criminal liability of A?
A: Sec 25 states the a positive finding for the use
of dangerous drugs shall be a qualifying
aggravating circumstance.

Dizon | Manalo | Navarez | Shyu | Tubio

What is the effect of a qualifying aggravating


circumstance?
It changes the nature of the crime or even
without changing the nature of the crime it will
bring about a higher imposition of penalty.

SECTION 26 ATTEMPT OR CONSPIRACY


Express exception to the general rule that in case
of violation of a penal law, there are no stages and
there is no conspiracy.

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


attempted stages. In violation of special penal laws,
conspiracy unless expressly provided because these
are only for violation of the RPC, for felonies. One of
those exceptions is under Section 26 of RA 9165.
Under Section 26 of RA 9165, any attempt or
conspiracy of any of the following acts shall be
punished already by penalty prescribed by law:
1.
2.
3.
4.
5.

Importation of any dangerous drug;


Sale,
trading,
administration,
delivery,
distribution, transportation of dangerous drug;
Maintenance of a den, dive, or resort where
any dangerous drug is used in any form;
Manufacture of any dangerous drug;
Cultivation or culture of plants which are the
sources of dangerous drugs.

If any of these acts mentioned is committed by the


offender, a mere attempt; or conspiracy will
already give rise to the crime as an exception to
the rule that in case of violation of penal law, there
are no stages in the commission of the crime and
conspiracy will not lie. So if any of the crime
committed is any of these five acts, mere attempt
will lie against the offender, conspiracy will lie
against the offender.

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


charge was only attempted illegal sale of dangerous drugs.
The sale was aborted because even before the said drug
poseur was able to transfer the dangerous drug to the
police officer, the police officers already introduced
themselves as such and arrested him. As such, we only
have attempted illegal sale of dangerous drugs.
SECTON 98 LIMITED APPLICABILITY OF THE RPC
In Book I, under Article 10, the provisions of the
RPC shall apply suppletorily or supplementarily to
the provisions of the special penal laws UNLESS
the special penal law provides otherwise.

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CRIMINAL LAW REVIEW Book 2 Notes

One of the exceptions is provided for in Sec 98 of


RA 9165, it is provided that the provisions of RPC,
as amended, shall not apply to the provisions of
RA 9165. The law uses the word shall; therefore
you cannot apply the provision of RPC to the
provisions of RA 9165.
Exception to Section 98: If the offender is a minor
offender.
Where the offender is a minor, the penalty
for acts punishable by life imprisonment to
death provided shall be reclusion perpetua
to death.

TITLE SIX
CRIMES AGAINST PUBLIC MORALS (Articles 200
202)
ARTICLE200 GRAVE SCANDAL
Grave Scandal a highly scandalous act
offensive to good morals, good customs and
decency committed in a public place or within
public knowledge or public view.
ELEMENTS:
1. The offender performs an act or acts
2. Such act or acts be HIGHLY SCANDALOUS as
offending against decency or good customs
It is necessary that the act must be
highly scandalous and offensive to
morals, offensive to decency and
offensive to good customs.
3. That the highly scandalous conduct is not
expressly falling within any other article of this
Code.
The third element requires that it must
not expressly fall within any other
article of this code. It must not
constitute any other violation in the
RPC. Grave scandal is a crime of
last resort because you only file a
complaint for grave scandal when the
said act is not punishable under any
other article in the RPC.
4. The act or act complained of be committed in a
public place or within the public knowledge or
view.
Then the fourth element provides that
the highly scandalous act must be
committed either in a public place or
within public knowledge or view. If the
highly scandalous act is committed in
a public place, the crime of grave
scandal will immediately arise. The
place being public, the law presumes
that someone may have witnessed
the commission of the highly
scandalous act. However, if the crime
is committed or if the highly

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Atty. V. Garcia
scandalous act is committed in a
private place, for the crime of grave
scandal to arise, it is necessary that it
must be witnessed by one or more
persons to be said that it is within the
public knowledge or public view.
ILLUSTRATION:
Q: So let us say that A and B are boyfriend and girlfriend
and it is their anniversary. They went to Luneta Park and
at exactly 12 midnight, in the middle of Luneta Park, they
engaged in sexual intercourse. No one witnessed their
sexual intercourse. Are they liable for grave scandal?
A: YES. They are liable for grave scandal. They
have the right to engage in sexual conduct but the
fact that they performed the sexual conduct in
Luneta Park, a public place makes the act
offensive to public morals, decency and good
customs and the said act does not constitute any
other violation in the RPC because they have the
right to engage in sexual intercourse. Therefore,
the crime committed is grave scandal because
they performed the act in a public place even if no
one saw the commission of the said act still, still
because it is performed in a public place , it is
presumed that someone may have seen the
commission of the highly scandalous act.
Q: So what if a wife and a husband, celebrating their
anniversary, engaged in sexual intercourse in their terrace.
So the act is committed in their premises, in the terrace of
their house. However, the gate was open and so passersby
would see them performing the sexual intercourse. Are
they liable for grave scandal?
A: YES. They are liable for grave scandal. The
said act does not constitute another offense in the
RPC because they have the right to engage in
sexual conduct. The sexual conduct was
performed in the privacy of their home however;
people witnessed the commission of the said act.
It now becomes a highly scandalous act because
it is within the knowledge of the public or within
public view.
Q: What if A and B are boyfriend and girlfriend. The
girlfriend is 11 yrs old and the boyfriend is 21 yrs old. And
because it is their monthsary the girlfriend thought of giving
herself as a gift and engaged in sexual intercourse in a
public place Are they liable for grave scandal?
A: NO. They are not liable for grave scandal. The
man is liable for statutory rape. A man who had
sexual intercourse with a child under 12 years of
age, regardless of the consent, regardless of the
willingness of the said child, the man is liable for
statutory rape. Because in so far as criminal law is
concerned, a child under 12 yrs old has no
intelligence of his/her own and is not capable of
giving a valid consent. Therefore, even if the girl
voluntarily gave herself in so far as the law is
concerned, it is still statutory rape. It is not grave
scandal because the third element is wanting. The
said act fall under the violation of article of RPC
that is under article 266-A for rape. As I said,

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CRIMINAL LAW REVIEW Book 2 Notes


grave scandal is a crime of last resort. You only
charge it when the crime committed does not
constitute any other violation in the RPC.
ARTICLE201 IMMORAL DOCTRINES, OBSCENE
PUBLICATIONS AND EXHIBITIONS, AND INDECENT
SHOWS
Punishes:
I.
Public proclamations of doctrines openly contrary
to public morals
II.
Publication of obscene literature. In case of
publication of obscene literature, it is the author,
the editor, the owner or proprietor of the
establishment that sells the said materials SHALL
BE HELD CRIMINALLY LIABLE.
III.
The third act punished is the exhibition of indecent
shows, plays, scenes or acts in fairs, theaters,
cinemas or any other places.
IV.
Selling, giving away or exhibiting films,,
engravings, sculptures or literature which are
offensive to public morals.
ILLUSTRATION:
Q: So what if there is this building, when the person
entered the said building, on the floor of the said building
were these magazines. And the magazines contain men
and women engaging in sexual intercourse, naked women
and men, and other obscene materials. Who shall be held
liable when the place was raided by the police?
A: The author of the said literature, the editors
publishing such literature and the owner or
proprietor of the establishment where the said
magazines were being sold. They will be held
criminally liable under Article 201.
VAGRANTS AND PROSTITUTES (ART 202)
Q: Let us say that there is this man, a healthy man and he
can look for work but he does not want to work. So he was
just roaming around and he saw houses of prostitutes or
houses of ill-fames and he is always in this places. Can he
be held liable for vagrancy?
A:NO,
because
vagrancy
has
been
decriminalized by R.A. No. 10158 which was
approved on March 27, 2012. We no longer have
the crime of vagrancy. No person can longer be
prosecuted for being a vagrant.

How about prostitution? Is there still a crime


for prostitution?
YES.

Who is a prostitute?
A prostitute is any woman who, for money or
profit, indulges in sexual intercourse or
lascivious conduct. So it is the work or job of
a woman. Note that the law defines it to be a
woman therefore; a man cannot be
considered a prostitute. Before, if a man
engages in sexual intercourse or lascivious
conduct he can be punished under Article 202
but now since vagrancy has been
decriminalized by R.A. No. 10158, he can no

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Atty. V. Garcia
longer be prosecuted. Only prostitutes who
are woman.
TITLE SEVEN
CRIMES COMMITTED BY PUBLIC OFFICERS (Articles
203 245)
ARTICLE203 PUBLIC OFFICERS
REQUISITES TO BE A PUBLIC OFFICER:
1. One must be taking part in the performance of
public functions in the Government or one
must be performing in said Government or in
any of its branches public duties as an
employee, agent or subordinate official, of any
rank or class; and
2. That his authority to take part in the
performance of public functions or to perform
public duties must be
a. by direct provision of the law; or
b. by popular election; or
c. by appointment by competent authority
Whenever a person applies to a public office, he has the
so-called, OATH OF OFFICE. If he is high-ranking official,
the oath is also before a high-ranking official. If he is a
cabinet secretary, the oath is before the President or to the
Supreme Court Chief Justice. If he is only an ordinary
employee, still he has oath of office. It is a document which
is entitled, OATH OF OFFICE, he merely signs it.
Felonies under TITLE SEVEN are felonies in violation of
this oath of office, they can either be:
NONMISFEASANCE
MALFEASANCE
FEASANCE
A public officer
A public officer
performs an
knowingly,
A public officer
official acts in a
willfully refuses
performs in his
manner not in
or refrains from
public office an act
accordance with
doing an act
prohibited by law.
what the law
which is his
provides
official duty to
do.
(GN: Performance
(GN: Improper
of some act which
performance of
(GN: Omission
ought not to be
some act which
of some act
done
might be lawfully
which ought to
done)
be performed)
ARTICLE 210211
ARTICLE 204
ARTICLE
TO 207
208
ARTICLE204 KNOWINGLY RENDERING UNJUST
JUDGMENT
ELEMENTS:
1. The offender is a judge
2. That he renders a judgment in a case submitted
to him for decision

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CRIMINAL LAW REVIEW Book 2 Notes


3. That the judgment is unjust
4. The judge knows that his judgment is unjust
UNJUST JUDGMENT is one which is contrary to law, or
one that is not supported by evidence or both.
The source of unjust judgment can either be mere
error or ill-will. If the source of an unjust judgment is
mere error on the part of the judge, then the said judge
is not civilly, criminally, and administratively liable.
ILLUSTRATION:
In a case submitted to him for decision, the judge
wrongfully interpreted a provision of law. It is a new law,
there is no jurisprudence yet, the judge wrongfully
interpreted it. The judge cannot be held civilly,
administratively, and more so, criminally liable. The said
judgment is an unjust judgment because it was based on
this error in the interpretation of the law. However, there
was no intent on the part of the said judge. Considering the
basis of the unjust judgment is mere error. The said judge
acted in good faith.
If however, the unjust judgment is based on bad
faith, that is, it is based on ill-motive on the part of the said
judge, therefore, he can be held liable criminally, civilly and
administratively

Atty. V. Garcia
ARTICLE206 UNJUST INTERLOCUTORY ORDER
ELEMENTS:
1. The offender is a judge
2. That he performs any of the following acts:
a. knowingly renders unjust interlocutory
order or decree
b.
renders
a
manifestly
unjust
interlocutory order or decree through
inexcusable negligence or ignorance
ARTICLE207

MALICIOUS
DELAY
IN
THE
ADMINISTRATION OF JUSTICE
ELEMENTS:
1. The offender is a judge
2. There is a proceeding in his court
3. He delays the administration of justice
4. The delay is malicious, that is, delay is caused
by the judge with deliberate intent to inflict
damage on either party in the case.

BASED ON MERE ERROR no criminal, no civil, no


administrative liability

ARTICLE208 PROSECUTION OF OFFENSES;


NEGLIGENCE AND TOLERANCE
ACTS PUNISHABLE:
I.
By maliciously refraining from instituting
prosecution against violators of the law
Note that the first crime, he knows that a
crime was committed but he does not
prosecute the offender;
II.
By maliciously tolerating the commission
of offenses
the second act, a crime was about to be
committed, he tolerates its commission. It
must be done with MALICE. Absent
malice, Article 208 will not apply.

ARTICLE205 JUDGMENT RENDERED THROUGH


NEGLIGENCE
This is again committed by a judge, who in a case
submitted to him for decision, renders manifestly unjust
judgment.
ELEMENTS:
1. The offender is a judge
2. That he renders a judgment in a case submitted
to him for decision
3. That the judgment is manifestly unjust
4. The it is due to his inexcusable negligence or
ignorance

ELEMENTS OF DERELICTION OF DUTY IN THE


PROSECUTION OF OFFENSES:
1. 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.
2. That there is a dereliction of the duties of his
office; that is knowing the commission of the
crime, he does not cause the prosecution of the
criminal or knowing that a crime is about to be
committed, he tolerates its commission.
3. That the offender acts with malice and
deliberate intent to favor the violator of the law.

For him to be criminally liable, knowing that he


rendered an unjust judgment, it is necessary that
the unjust judgment is rendered out of ill-motive
or bad faith, out of greed, revenge, envy, or any
other ill-motive. Hence he is known to have
rendered an unjust judgment.

MANIFESTLY UNJUST JUDGMENT means that it is


evident that a judgment is unjust. A first year law student
would know that it is unjust, therefore it is manifestly unjust
judgment, because he acted in inexcusable negligence or
ignorance.

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Otherwise known as DERELICTION.


Can only be committed by a public officer or a officer
of the law who has the duty to cause the prosecution
of or to prosecute the offenders. The said public officer
commits dereliction of duty in the prosecution of
offenses under any of the following circumstances:
a. knowing the commission of the crime, he

Page 65

CRIMINAL LAW REVIEW Book 2 Notes

does not cause the prosecution of the


criminal, or
b. knowing that a crime is about to be
committed, he tolerates its commission
and the said offender acts with malice and
deliberate intent to favor the violator of the
law
The dereliction of duty in the prosecution of offenses
cannot be committed by just any public officer.
The public officer must be charged with the
prosecution of the cases or he is the one who can
cause the prosecution of these offenders.

CHARGED WITH THE PROSECUTION


OFFENDERS:
Fiscals
Prosecutors
State Prosecutors

OF

THE

THOSE WHO CAN CAUSE THE PROSECUTION OF THE


OFFENDERS:
Judges
Barangay Chairman
Persons in authority
ARTICLE209 BETRAYAL OF TRUST BY AN
ATTORNEY OR SOLICITOR REVELATION OF
SECRETS
ACTS PUNISHED AS BETRAYAL OF TRUST
BY ATTORNEY:
I.
By causing damage to his client, either
a. by any malicious breach of
professional duty
b. by inexcusable negligence or
ignorance
THERE MUST BE DAMAGE TO HIS
CLIENT
II.
By revealing any of the secrets of his
client learned by him in his professional
capacity.
DAMAGE IS NOT NECESSARY
III.

By undertaking the defense of the


opposing party in the same case, without
the consent of his first client, after having
undertaken the defense of said first client
or after having received confidential
information from said client.
IF THE CLIENT CONSENTS TO
THE ATTORNEYS TAKING THE
DEFENSE OF THE OTHER PARTY,
THERE IS NO CRIME

Atty. V. Garcia

2.
3.

a. by any malicious breach of professional duty


b. by inexcusable negligence or ignorance
Revealing any of the secrets of his client learned
by him in his professional capacity
Undertaking the defense of the opposing party in
the same case, without the consent of his first
client or after having received confidential
information from said client

Under Article 209, this betrayal of trust is IN ADDITION


TO A PROPER ADMINISTRATIVE CASE which may
be filed against an attorney or solicitor. So aside from
the criminal case in violation of Article 209, he can also
be charged in a case also for disbarment, for violation
of lawyers oath of duty may be filed against him, and
these two cases can be proceeded at the same time.

ILLUSTRATION:
A lawyer for 3 consecutive times, without any
justifiable reason, failed to file his formal offer of exhibits.
During the first time he was given 15 days, he failed to file,
second time he was given 15 days, he failed to file. On the
third time, he was given 5 days still, he failed to file, without
giving any justifiable reason for his non-compliance with the
order of the court. By reason thereof, there is no evidence
in behalf of the defense of his client was admitted by the
Court. Because only evidences offered may be admitted by
the court. And so, the judge convicted the accused, the
client was prejudiced because of the counsels malicious
breach of his professional duty. It is incumbent upon any
counsel to file a pleading within the reglementary period
provided by law or required by the court.
For failing to do so without any justifiable reason,
he caused damage to his client by malicious
breach of his professional duty.
Q: What if Atty. A was the counsel of X, he was behind
bars for the crime of kidnapping for ransom. Atty. A visited
X to ask the facts of the case in order for him to study and
to nput up a good defense. During their conversation, X
informed his counsel, Atty. A that there will be another
kidnapping tomorrow night at 9PM in Quezon City, to be
done by his other gang mates who were at large. Atty. A,
upon knowing this information from his client X,
immediately went to the police officers of Quezon City in
order to pre-empt the commission of the crime. Is Atty. A
liable for the second act because he divulged the secrets of
his client which he learned in his professional capacity?
A: Atty. A is not liable under Article 209. The
secrets being referred to under Article 209 refers
to the past crimes of the said client and it refers
to the facts and circumstances related to the
crime which is being handed by the said
Attorney or counsel.

ELEMENTS:
1. Causing damage to his client, either:

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CRIMINAL LAW REVIEW Book 2 Notes

Atty. V. Garcia

It does not refer to future crimes that are still


about to be committed. When a lawyer takes his
oath of office, he says, or he promise, he swears
that he shall be liable not only to the client, but
also to the STATE, to the GOVERNMENT.

in connection with the performance of his


official duties.
ELEMENTS:
1. The offender be a public officer within
the scope of Article 203
2. The offender accepts an offer or a
promise or receives a gift or present
by himself or through another.
3. That such offer or promise be
accepted, or received by the public
officer with a view of committing
some crime.
4. That the act which the offender
agrees to perform or which he
executes be connected with the
performance of his official duties.

It is his duty to the Government, to the State of


any future crime that is about to be committed
more than his duty to his client. Hence, in this
case, since it refers to a future crime, for the
protection of the state and the citizenry, it is
incumbent upon him to divulge, disclose or to
reveal the said secrets.
Q: What if A filed a case against B, Atty. X was the counsel
of A, A failed to give Atty. X his appearance list for 5
consecutive hearings, no appearance list. So Atty. X, filed a
motion to withdraw as counsel of A. The said motion to
withdraw was with the CONSENT OF A, because without
the consent of A, the said motion to withdraw will not be
granted by the court. So the court granted and Atty. X is no
longer the counsel of A. When B learned about this, went
immediately to the office of X and secured the services of
X. Atty. X signed a contract and he is now the counsel of B.
Is Atty. X liable for betrayal of trust by an attorney?
A: Atty. X is liable for betrayal of trust by an
attorney. He takes the case of B, the opposing
party, even after he has already taken the case
of A and after he has acquired valuable
information about his client. How can he prevent
himself from being convicted of the betrayal of
trust?

He must first secure the consent of the


said first client
In the said problem, there was no consent. The
said consent was only in the motion to withdraw.
The said consent in the motion to withdraw is not
the consent on the acceptance of the case. For
every motion to withdraw, there must be a
consent written, otherwise the court will not grant
the motion to withdraw. The consent here is to
secure or to accept the service s of the other
party.
Since consent was not given, he is liable for
betrayal of trust by an attorney.

Just remember aside from betrayal of


trust, an attorney or solicitor can also be
held liable of administrative case. So
there may be disbarment.

He can be disbarred or he can be


suspended by reason of committing any
of these acts.
ARTICLE210 DIRECT BRIBERY
ACTS PUNISHABLE:
I.
By agreeing to perform, or by performing,
in consideration of any offer, promise, gift
or present an act constituting a crime,

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II.

By accepting a gift in consideration of the


execution of an act which does not
constitute a crime, in connection with the
performance of his official duty.
ELEMENTS:
1. The offender be a public officer within
the scope of Article 203
2. The offender accepts an offer or a
promise or receives a gift or present
by himself or through another.
3. That such offer or promise be
accepted, or received by the public
officer in consideration of the
execution of an act, which does not
constitute a crime, but the act must
be unjust
4. That the act which the offender
agrees to perform or which he
executes be connected with the
performance of his official duties.

III.

By agreeing to refrain, or by refraining,


from doing something which it is his
official duty to do, in consideration of gift
or promise.
ELEMENTS:
1. The offender be a public officer within
the scope of Article 203
2. The offender accepts an offer or a
promise or receives a gift or present
by himself or through another.
3. That such offer or promise be
accepted, or received by the public
officer to refrain from doing
something which it is his official duty
to do so.
4. That the act which the offender
agrees to perform or which he
executes be connected with the
performance of his official duties.

Under the First Act - By agreeing to perform or


performing, in consideration of offer or promise, gift or

Page 67

CRIMINAL LAW REVIEW Book 2 Notes


present any act constituting a crime in connection with
the performance of his official duties
If the thing which the public officer is required to
do, is an act which will constitute a crime, a mere
agreement to do so, will already give rise to
direct bribery. It is not necessary that he actually
commits the crime, it is not necessary that he
actually receives the gift or present.

A MERE AGREEMENT WILL SUFFICE.


Likewise in the Third Act - By agreeing to
refrain or by refraining from doing an act which is his
official duty to do, in consideration of an offer,
promise, gift or present.
If the thing that a public officer is required to do,
is to refrain from doing an act which is his official
duty to do, a mere agreement to refrain to do an
act will already give rise to direct bribery. It is not
necessary to refrain from doing an act, it is not
necessary to receive the said gift.
However, if the thing that a public officer is
required to do, does not constitute a crime, under the
Second Act, mere agreement will not suffice. There
must be actual acceptance of the thing. There must be
acceptance of the gift, in consideration of the execution of
an act which does not constitute a crime in connection with
the performance of his official duty. WHY?
because the thing that he is being required to do
is not a criminal act. It is his official thing to do,
but he doesnt want to do it without the bribe first
to be given to him. So it is only upon
ACCEPTANCE OF THE BRIBE that criminal
liability for direct bribery will arise.
Whatever may be the act constituting direct
bribery, in order to amount to direct bribery, it must always
be in connection with the performance of his official duty. If
it is not in connection with his official duty, it could other
crime like estafa or swindling, but NOT DIRECT BRIBERY.
ACEJAS, III vs. PEOPLE
It is the second act of direct bribery that has been
violated. The second act because it is the duty of the said
BID agent to return the passport. The duty to return the
passport is not a criminal act. It is also not an act of
refraining to do so. But he does not want to perform the act
without the bribe, so he becomes liable under the 2nd act.
ILLUSTRATION:
Q: What if a mother wanted her daughter to work in
another country. The daughter was still a minor, 16 years
old. So what the mother did, was to ask the civil registrar to
alter the birth date or the date in the certificate of live birth
with a promise that the first 2 months of the salary of the
daughter will be given to the civil registrar. The civil
registrar altered the date in the birth certificate. What

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Atty. V. Garcia
crime/crimes is/are committed by the civil registrar and by
the mother?
A: The civil registrar is liable for direct
bribery because he agreed to perform an act
constituting a crime in consideration of a promise
that the 2 months salary will be given to him. The
said act is in connection with his performance of
his official duty. Therefore he is liable for direct
bribery. He actually performs the act, he actually
committed a crime, therefore he is also liable for
the falsification of a public document because he
actually altered the birth date which is a very
important date in the birth certificate so he is
also liable for the falsification of a public
document.
Without the said bribe, the mother would not
have committed falsification, so are you going to
complex them? because direct bribery is a
necessary means to commit falsification.

Even if in reality, they should be complex


because direct bribery is a necessary
means to commit falsification, you cannot
complex them because ARTICLE 210
PROHIBITS SUCH COMPLEXITY OF
CRIMES.
Under Article 210, it is expressly provided that
the penalty for direct bribery shall be IN
ADDITION TO THE LIABILITY FOR THE
CRIME COMMITTED. Here, he actually altered,
actually committed the crime, therefore his
liability for falsification is in addition for his
liability for direct bribery. Therefore, 2 separate
distinct charges have to be filed against the civil
registrar, we have direct bribery and the other
one is falsification of the public document.
The mother is liable for corruption of public
official (Art. 212). Direct bribery is the crime of
the public officer who receives the bribe. On the
other hand, the private individual or the public
officer who gives the bribe is liable for corruption
of public official under Art. 212. (Refer to Art.
212 elements)
The
mother
gives
a
promise
under
circumstances in which the public officer
becomes liable for direct bribery. She is liable for
corruption of public official. The mother is also
liable for falsification of a public document as a
principal by inducement. Without the bribe,
without the said inducement, the said public
officer will not have committed the said
falsification.

Page 68

CRIMINAL LAW REVIEW Book 2 Notes


ARTICLE211 INDIRECT BRIBERY
ELEMENTS:
1. The offender is a public officer
2. That he accepts gifts
3. That the gifts are offered to him by reason of his
office.

Indirect Bribery is committed if the public officer


accepts any gift or present by reason of his office that
he owns. In case of indirect bribery, the public officer is
not deemed required to do a thing. By the MERE
ACCEPTANCE, indirect bribery is consummated. NO
ACCEPTANCE, NO CRIME IS COMMITTED.

ILLUSTRATION:
A is the newly appointed secretary of DENR. On his
first day of office, Mr. X visited him, paid a courtesy call. Mr.
X is the president of a big logging company. They
exchanged some pleasantries, thereafter, when this
president of the logging company left, he placed a small
box on the table. When he left, the new DENR secretary
opened the box and it was a key to a car parked in front of
the building. The new DENR secretary used it and drove
the car
He is liable for Indirect Bribery. The president
of the logging company does not require him to
do anything, it was merely given to him because
he was newly appointed as the DENR secretary.
His acceptance brings about consummated
indirect bribery; therefore, indirect bribery has no
attempted or frustrated stage because outside
acceptance, no crime is committed.
ARTICLE211-A QUALIFIED BRIBERY
ELEMENTS:
1. The offender is a public officer entrusted with
law enforcement
2. The offender refrains from arresting or
prosecuting an offender who has committed a
crime punishable by reclusion perpetua and/or
death
3. The offender refrains from arresting or
prosecuting the offender in consideration of
any promise, gift or present.

Qualified bribery is committed by any public officer who


is in charge with the enforcement of the law. So, in
order to amount to qualified bribery, it is necessary that
the offender whom the public officer does not want to
prosecute must have committed a crime punishable by
reclusion perpetua and/or death.

ILLUSTRATION:
Q: A police officer was conducting a patrol. He saw a man
behind the tree, looking at the other house adjacent to the
tree as if waiting for someone. So the police officer parked
his vehicle and observed what this man would do. The

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Atty. V. Garcia
moment that a man came out of the gate of the house, this
man hiding behind the tree, immediately went directly to
him and shot him 5 times, and killing him instantly. Then,
the said man rode a motorcycle and left. The police officer
chased him. The Police officer arrested him, however, he
gave the police officer P500,000 and told the police officer,
Mr. Police officer, you saw nothing, you heard nothing.
And the police officer allowed him to leave. What
crime/crimes is/are committed by the said police officer?
A: The said police officer is liable for
qualified bribery. The crime committed by the
said man is murder, because obviously, in his
act of killing, there was treachery, the other party
was defenseless and obviously the said man
deliberately and consciously adopted the ways
means and methods employed by him in killing
the victim. Since there was treachery, the crime
committed is murder, punishable by reclusion
perpetua to death. His failure to arrest and
prosecute this man constitute qualified bribery
because he did so after accepting P500,000.
Q: What if a police officer was conducting a patrol, he saw
A and B fighting, boxing each other, killing each other, until
they already on the ground. In the course thereof, A pulls
out his balisong and stabbed B several times on the heart,
a vital organ. B died instantly. Thereafter, A ran away, the
police officer tried to catch up with A and he was able to
arrest A. However A, gave the police officer P100,000. The
police officer allowed him to leave. What crime/crimes
is/are committed by the said police officer?
A: The crime committed by A in killing B is
precedent by a fight, therefore it is merely
homicide. Homicide is punishable only by
reclusion temporal. Since it is only punishable by
reclusion temporal, therefore, qualified bribery is
not applicable.
He committed direct bribery, because he
accepts a bribe, in consideration of an act of
refraining to arrest the said criminal. He actually
refrain from arresting and prosecuting the
criminal, therefore in addition to direct bribery, he
also committed dereliction of duty in the
prosecution of offenses because he actually
committed dereliction of duty by refraining from
arresting the person who has actually committed
a crime. So this time, there are 2 crimes
committed:

DIRECT BRIBERY (ARTICLE 210) AND

DERELICTION OF DUTY IN THE


PROSECUTION
OF
OFFENSES
(ARTICLE 208)

Page 69

CRIMINAL LAW REVIEW Book 2 Notes


ARTICLE 212 CORRUPTION OF PUBLIC OFFICIALS
ELEMENTS:
1. The offender makes offers or promises or gives
or presents to a public officer.
2. That the offers or promises are made or the
gifts or the gifts or presents given to a public
officer, under circumstances that will make the
public officer liable for direct bribery or indirect
bribery.
THE ANTI-GRAFT AND CORRUPT PRACTICES ACT
(RA 3019)
PUBLIC OFFICER
- a public officer is any
elective and appointive officials and employees,
permanent or temporary, whether in the classified
or unclassified or exemption service receiving
compensation,
even
nominal,
from
the
government. (Sec 2, RA 3019)
JAVIER v SANDIGANBAYAN
Although Javier has been appointed as a
representative of the private sector, in the book
publishing board attached to the office of the
president (NBDB), she is still considered as a
public officer; first, the said board functions as a
collegial body performing public functions;
second, according to SC, she was receiving
allowance, a salary even though nominal, from the
government. Hence, she considered as a public
officer.
SECTION 3 CORRUPT PRACTICES OF PUBLIC
OFFICERS
IMPORTANT PROVISIONS OF SECTION 3:
(e) Causing any undue injury to any party including the
government, or giving any private party any
unwarranted benefits, advantage or preference in the
discharge of his official, administrative or judicial
functions through manifest partiality, evident bad faith
or gross inexcusable negligence.
ELEMENTS:
1. The said offender was in charge of his official,
administrative or judicial function
2. That he acted with manifest partiality, evident
bad faith or gross inexcusable negligence
3. The said accused caused any undue injury to
any party, including the government, or gave any
private party unwarranted benefits, advantage, or
preference in the discharge of his official
functions.
SANTOS
v PEOPLE
The Supreme Court said that there are two acts
punished under Section 3 (e) of RA 3019:

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Atty. V. Garcia
1. Causing any undue injury; or
2. Giving any private party any unwarranted
benefit, advantage or preference
The law uses the conjunctive or;
therefore, the fact that the offender
causes any undue injury to any party or
the fact that the offender gave any party
unwarranted benefit, advantage or
preference, they can be charged
distinctly or separately from each other.
The Supreme Court also stated that the elements
of Sec 3 (e) of RA 3019
UNDUE INJURY means there must be an actual
damage caused to the offended party. Absent any
actual damage caused to the offended party, then
section 3 (e) is not violated.
(g) Entering, on behalf of the government, into any
contract or transaction manifestly and grossly
disadvantageous to the same, whether or not the
public officer profited or will profit thereby
The public officer entered into any contract or
transaction on behalf of the government. The
said contract is manifestly and grossly
disadvantageous to the government.
In NAVA v PALLATTAO, the violation was Section 3 (g).
The DECS officials bought laboratory science materials
and after COA audited, it was discovered that there was an
overpricing. The same is true in CAUNAN v PEOPLE
where Joey Marquez and company bought walis-tingting,
and according to the COA auditors, there was also
overpricing of these walis-tingting. But in the case of Nava,
there was conviction but in the case of Caunan, there was
an acquittal.
Where lies the difference?
In the case of Nava, the COA officials proved
the overpricing because they bought the very
same laboratory materials from the same
supplier where the DECS officials bought and
by reason thereof, it was discovered that
there was indeed an overpricing.
However, in the case of Caunan, Joey
Marquez bought from a different supplier than
where the COA officials bought. The COA
officials bought from a Las Pinas supplier
which they compared with the price of walistingting bought by Joey Marquez. Not only did
they buy the said walis-tingting from a
different supplier, the walis-tingting bought by
COA officials was of different specifications
from that of the walis-tingting bought by Joey
Marquez and company. Hence, the Supreme
Court said that prosecution was not able to

Page 70

CRIMINAL LAW REVIEW Book 2 Notes


prove beyond reasonable doubt that there
was overpricing. Because the walis-tingting
bought by Joey Marquez was very much
different from the walis-tingting bought by the
COA officials. They were not able to prove
beyond reasonable doubt that there was
overpricing because of the difference in
specifications.

In both cases, there was NO PUBLIC BIDDING.

Will the mere lack of public bidding bring about a


violation of Section 3 (g) of RA 3019?
The Supreme Court said that mere lack of
public bidding may mean that the government
was not able to get the best price for the thing
purchased. However, it does not bring
about a violation of Section 3 (g) because
what Section 3 (g) requires is the transaction
must
be
manifestly
and
grossly
disadvantageous to the government and
mere lack of public bidding will not show such
gross and manifest disadvantage.

SECTION 4 PROHIBITION ON PRIVATE INDIVIDUALS


Under Section 4, it is unlawful for any private
individual who has a close personal relation
to any public officer to request, ask or receive
present from any person in any case from
which the said public officer has to control.
Close personal relation does not only
include family members. It also includes those
who have social and fraternal relations;
therefore even a private individual who is not
in conspiracy of a public officer can be held
liable under RA 3019.
Not only public officers but also private
individuals can be held liable under RA 3019.
Enumerated corrupt practices of Public Officials
(a) Persuading, inducing or influencing another public
officer to perform an act constituting a violation of rules and
regulations duly promulgated by competent authority or an
offense in connection with the official duties of the latter, or
allowing himself to be persuaded, induced, or influenced to
commit such violation or offense.
Persons liable:
1. Public officer who persuades, induces, or
influences another public officer;
2. Public officer who is persuaded induced or
influenced
Note: requesting or receiving any gift, present, or benefit is
not required in this provision.
(b) Directly or indirectly requesting or receiving any gift,
present, share, percentage, or benefit, for himself or for any

Dizon | Manalo | Navarez | Shyu | Tubio

Atty. V. Garcia
other person, in connection with any contract or transaction
between the Government and any other part, wherein the
public officer in his official capacity has to intervene under
the law.
Note:

the lack of demand is immaterial, the law uses the


word OR between requesting and receiving.

There must be clear intention on the part of the public


officer and consider it as his or her own property from
then on. Mere physical receipt unaccompanied by
any other sign, circumstance or act to show
acceptance is not sufficient to lead the court to
conclude that the crime has been committed

Refers to a public officer whose official intervention is


required by law in a contract or transaction

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


present or other pecuniary or material benefit, for himself or
for another, from any person for whom the public officer, in
any manner or capacity, has secured or obtained, or will
secure or obtain, any Government permit or license, in
consideration for the help given or to be given, without
prejudice to Section thirteen of this Act.
(d) Accepting or having any member of his family accept
employment in a private enterprise which has pending
official business with him during the pendency thereof or
within one year after its termination.
(e) Causing any undue injury to any party, including the
Government, or giving any private party any unwarranted
benefits, advantage or preference in the discharge of his
official administrative or judicial functions through manifest
partiality, evident bad faith or gross inexcusable
negligence. This provision shall apply to officers and
employees of offices or government corporations charged
with the grant of licenses or permits or other concessions.
(f) Neglecting or refusing, after due demand or request,
without sufficient justification, to act within a reasonable
time on any matter pending before him for the purpose of
obtaining, directly or indirectly, from any person interested
in the matter some pecuniary or material benefit or
advantage, or for the purpose of favoring his own interest
or giving undue advantage in favor of or discriminating
against any other interested party.
(g) Entering, on behalf of the Government, into any contract
or transaction manifestly and grossly disadvantageous to
the same, whether or not the public officer profited or will
profit thereby.
(h) Director or indirectly having financing or pecuniary
interest in any business, contract or transaction in
connection with which he intervenes or takes part in his
official capacity, or in which he is prohibited by the
Constitution or by any law from having any interest.

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CRIMINAL LAW REVIEW Book 2 Notes


(i) Directly or indirectly becoming interested, for personal
gain, or having a material interest in any transaction or act
requiring the approval of a board, panel or group of which
he is a member, and which exercises discretion in such
approval, even if he votes against the same or does not
participate in the action of the board, committee, panel or
group.

Atty. V. Garcia

Interest for personal gain shall be presumed against those


public officers responsible for the approval of manifestly
unlawful, inequitable, or irregular transaction or acts by the
board, panel or group to which they belong.
(j) Knowingly approving or granting any license, permit,
privilege or benefit in favor of any person not qualified for or
not legally entitled to such license, permit, privilege or
advantage, or of a mere representative or dummy of one
who is not so qualified or entitled.
(k) Divulging valuable information of a confidential
character, acquired by his office or by him on account of his
official position to unauthorized persons, or releasing such
information in advance of its authorized release date.
Note: if damage was caused, Article 229 under the RPC is
committed.
SECTION 9 PENALTIES FOR VIOLATIONS
Under Section 9, both private individuals and
public officers have just the same penalty. It is
six years and one month to fifteen years plus
forfeiture of the ill-gotten wealth.
SECTION 7 STATEMENT OF ASSETS AND
LIABILITIES & RA 6713
When do the officers file the statement of assets,
liabilities and net worth?
The said public officer can file his SALN within 30
days from assumption into office. And then it must
be filed on or before the 30th day of April of the
next years and within 30 days after separation
from the service.
In RA 3019, it is stated on or before 15th of April
but there is another law which provides also for
the filing of SALN and that is RA6713 which is the
code of ethical standards for public officers.
Under RA 6713, and this is what is being followed,
it must be on or before the 30th day of April.
So you file first within 30 days upon assumption to
office and then the years thereafter on or before
the 30th day of April and then if you got separated
from office, within 30 days from separation from
office.
SECTION 8 PRIMA FACIE EVIDENCE OF AND
DISMISSAL DUE TO UNEXPLAINED WEALTH

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When is there a prima facie presumption of graft and


corrupt practices?
There arises a prima facie presumption of graft
and corrupt practices if a public officer has been
found to have in his possession money or
property, whether in his name or in that name of
another person, which is manifestly out of
proportion from his lawful income. There arises a
prima facie presumption of graft and corrupt
practices.

SECTION 10 COMPETENT COURT & RA 8429


Where do you file a case for violation of RA 3019?
You file a case of violation of Article 3019 before
the Sandiganbayan. The Sandiganbayan has
jurisdiction unless otherwise provided by law.
There is a law, RA 8429 which provides for the
jurisdiction of Sandiganbayan. Under this law, if a
public officer is of salary grade 27 and above, it
must be before the Sandiganbayan. If the public
officer is below salary grade 27, it must be before
the RTC.
SECTION 11 PRESCRIPTION OF OFFENSES
When is the prescriptive period?
Violation for RA 3019 shall prescribe after 15
years. However, the right of the government to
forfeit or to recover ill-gotten wealth does not
prescribe. So there are no latches and estoppel
insofar as the right of the government to recover
ill-gotten wealth is concerned.

When do you start counting the running of the


prescriptive period of crime?
From the time the crime has been committed or if
it is not known, that is from the time of the
discovery of the said crime, then it is from the time
of the institution of the criminal perseverance.

SECTION 13 SUSPENSION AND LOSS OF BENEFITS


Q: What if a public officer, has been charged for violation of
RA 3019, the Ombudsman found probable cause. The
case was now filed before the Sandiganbayan. Is it
incumbent upon the Sandiganbayan to immediately place
him under preventive suspension? Is preventive
suspension automatic?
Is preventive suspension
mandatory?
A: Preventive suspension is mandatory but it
is not automatic. There must first be a presuspension period to determine the validity of the
information. The moment the Sandiganbayan
discovers the said information is valid, sufficient in
substance to bring about a conviction, it is now
mandatory upon the Sandiganbayan to place the

Page 72

CRIMINAL LAW REVIEW Book 2 Notes

said accused public officer under preventive


suspension.
So it is not automatic because there must first be
a pre-suspension period. The only issue in the
pre-suspension period is the information filed by
the Ombudsman against the said public officer
valid, is it sufficient enough to bring about a
conviction in court? If the answer is yes,
immediately, mandatory on the part of the
Sandiganbayan, a ministerial duty, the said public
officer must be placed under preventive
suspension. It it ministerial not discretionary, not
either or.
For how long should the suspension be?
The suspension must not exceed the
maximum of ninety days, in consonance with
Section 52 of the Administrative Code.

SECTION 14 - EXCEPTION
Q: What if a public officer saw an old man waiting line. So
the old man received a notice, the notice said that his
license is ready, it has already been approved. So he was
waiting in line for the release of his license, it was already
approved. The head of office saw the old man. 85 years
old, under the heat of the sun and with his frail body. So the
head of office took the man and the head of office asked
the man to his office. The head of office asked the
secretary, Is the license of this man approved? The
secretary said yes. The head of office said, get it. The
secretary took it and gave to the head of office. The head
of office, upon seeing that it is approved, and the man was
only waiting for its release, gave it to the man; therefore the
man need not wait in the long line. The man was so
thankful that the following day, the man went back to the
office with two big bilaos of bibingka to the said head of
office to say thank you. The said head of office received
two big bilaos of bibingka. Is the said head of office liable
under RA 3019?
A: No. It falls under the exception. Under
Section 14, unsolicited gifts or presents of small or
insignificant value offered or given as a mere ordinary
token of friendship or gratitude, according to local customs
or usage is excepted from the provisions of RA 3019;
therefore the said public officer will not be held criminally
liable.

Atty. V. Garcia
RA 7080: ANTI-PLUNDER ACT
Ill-gotten wealth
- means any asset, property, business enterprise or
material possession of any person within the purview of
Section two (2) hereof, acquired by him directly or indirectly
through dummies, nominees, agents, subordinates and/or
business associates by any combination or series of the
following means or similar schemes:
1. Through misappropriation, conversion, misuse, or
malversation of public funds or raids on the public treasury;
2. By receiving, directly or indirectly, any commission, gift,
share, percentage, kickbacks or any/or entity in connection
with any government contract or project or by reason of the
office or position of the public officer concerned;
3. By the illegal or fraudulent conveyance or disposition of
assets belonging to the National government or any of its
subdivisions, agencies or instrumentalities or governmentowned or controlled corporations and their subsidiaries;
4. By obtaining, receiving or accepting directly or indirectly
any shares of stock, equity or any other form of interest or
participation including the promise of future employment in
any business enterprise or undertaking;
5. By establishing agricultural, industrial or commercial
monopolies or other combinations and/or implementation of
decrees and orders intended to benefit particular persons
or special interests;or
6. By taking undue advantage of official position, authority,
relationship, connection or influence to unjustly enrich
himself or themselves at the expense and to the damage
and prejudice of the Filipino people and the Republic of the
Philippines
Sec. 2. Definition of the Crime of Plunder, Penalties. Any
public officer who, by himself or in connivance with
members of his family, relatives by affinity or consanguinity,
business associates, subordinates or other persons,
amasses, accumulates or acquires ill-gotten wealth through
a combination or series of overt or criminal acts as
described in Section 1 (d) hereof, in the aggregate amount
or total value of at least Fifty million pesos
(P50,000,000.00), shall be guilty of the crime of plunder
and shall be punished by life imprisonment with perpetual
absolute disqualification from holding any public office. Any
person who participated with the said public officer in the
commission of plunder shall likewise be punished. In the
imposition of penalties, the degree of participation and the
attendance of mitigating and extenuating circumstances
shall be considered by the court.
Sec. 4. Rule of Evidence. For purposes of establishing the
crime of plunder, it shall not be necessary to prove each
and every criminal act done by the accused in furtherance
of the scheme or conspiracy to amass, accumulate or
acquire ill-gotten wealth, it being sufficient to establish
beyond reasonable doubt a pattern of overt or criminal acts
indicative of the overall unlawful scheme or conspiracy.

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CRIMINAL LAW REVIEW Book 2 Notes


Sec. 6. Prescription of Crime. The crime punishable under
this Act shall prescribe in twenty (20) years. However, the
right of the State to recover properties unlawfully acquired
by public officers from them or from their nominees or
transferees shall not be barred by prescription, laches, or
estoppel.

RA 9745 ANTI-TORTURE ACT:

Atty. V. Garcia
(6) Being tied or forced to assume fixed and
stressful bodily position;
(7) Rape and sexual abuse, including the insertion
of foreign objects into the sex organ or rectum, or
electrical torture of the genitals;
(8) Mutilation or amputation of the essential parts
of the body such as the genitalia, ear, tongue,
etc.;

Torture refers to:


1. an act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a
person for such purposes as obtaining from
him/her or a third person information or a
confession;
2. punishing him/her for an act he/she or a third
person has committed or is suspected of having
committed;
3. or intimidating or coercing him/her or a third
person;
4. or for any reason based on discrimination of any
kind, when such pain or suffering is inflicted by or
at the instigation of or with the consent or
acquiescence of a person in authority or agent of
a person in authority.

(9) Dental torture or the forced extraction of the


teeth;

It does not include pain or Buffering arising only from,


inherent in or incidental to lawful sanctions.

(i) The administration or drugs to induce


confession and/or reduce mental competency; or

Acts of torture:
(a) Physical torture is a form of treatment or punishment
inflicted by a person in authority or agent of a person in
authority upon another in his/her custody that causes
severe pain, exhaustion, disability or dysfunction of one or
more parts of the body, such as:
(1) Systematic beating, headbanging, punching,
kicking, striking with truncheon or rifle butt or other
similar objects, and jumping on the stomach;

(10) Pulling out of fingernails;


(11) Harmful exposure to the elements such as
sunlight and extreme cold;
(12) The use of plastic bag and other materials
placed over the head to the point of asphyxiation;
(13) The use of psychoactive drugs to change the
perception, memory. alertness or will of a person,
such as:

(ii) The use of drugs to induce extreme pain or


certain symptoms of a disease; and
(14) Other analogous acts of physical torture; and
(b) "Mental/Psychological Torture" refers to acts committed
by a person in authority or agent of a person in authority
which are calculated to affect or confuse the mind and/or
undermine a person's dignity and morale, such as:
(1) Blindfolding;

(2) Food deprivation or forcible feeding with


spoiled food, animal or human excreta and other
stuff or substances not normally eaten;

(2) Threatening a person(s) or his/fher relative(s)


with bodily harm, execution or other wrongful acts;

(3) Electric shock;

(3) Confinement in solitary cells


detention places;

(4) Cigarette burning; burning by electrically


heated rods, hot oil, acid; by the rubbing of pepper
or other chemical substances on mucous
membranes, or acids or spices directly on the
wound(s);
(5) The submersion of the head in water or water
polluted with excrement, urine, vomit and/or blood
until the brink of suffocation;

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or secret

(4) Prolonged interrogation;


(5) Preparing a prisoner for a "show trial", public
display or public humiliation of a detainee or
prisoner;
(6) Causing unscheduled transfer of a person
deprived of liberty from one place to another,
creating the belief that he/she shall be summarily
executed;

Page 74

CRIMINAL LAW REVIEW Book 2 Notes


(7) Maltreating a member/s of a person's family;
(8) Causing the torture sessions to be witnessed
by the person's family, relatives or any third party;
(9) Denial of sleep/rest;
(10) Shame infliction such as stripping the person
naked, parading him/her in public places, shaving
the victim's head or putting marks on his/her body
against his/her will;
(11) Deliberately prohibiting the victim to
communicate with any member of his/her family;
and
(12) Other analogous acts of mental/psychological
torture.
Any confession, admission or statement obtained as a
result of torture shall be inadmissible in evidence in any
proceedings, except if the same is used as evidence
against a person or persons accused of committing torture.
Rights of Tortured Victims:
(a) To have a prompt and an impartial investigation by the
CHR and by agencies of government concerned such as
the Department of Justice (DOJ), the Public Attorney's
Office (PAO), the PNP, the National Bureau of Investigation
(NBI) and the AFP. A prompt investigation shall mean a
maximum period of sixty (60) working days from the time a
complaint for torture is filed within which an investigation
report and/or resolution shall be completed and made
available. An appeal whenever available shall be resolved
within the same period prescribed herein,
(b) To have sufficient government protection against all
forms of harassment; threat and/or intimidation as a
consequence of the filing of said complaint or the
presentation of evidence therefor. In which case, the State
through its appropriate agencies shall afford security in
order to ensure his/her safety and all other persons
involved in the investigation and prosecution such as, but
not limited to, his/her lawyer, witnesses and relatives; and
(c) To be accorded sufficient protection in the manner by
which he/she testifies and presents evidence in any fora in
order to avoid further trauma.
Who are Criminally Liable. - Any person who actually
participated Or induced another in the commission of
torture or other cruel, inhuman and degrading treatment or
punishment or who cooperated in the execution of the act
of torture or other cruel, inhuman and degrading treatment
or punishment by previous or simultaneous acts shall be
liable as principal

Dizon | Manalo | Navarez | Shyu | Tubio

Atty. V. Garcia
Any superior military, police or law enforcement officer or
senior government official who issued an order to any lower
ranking personnel to commit torture for whatever purpose
shall be held equally liable as principals.
The immediate commanding officer of the unit concerned of
the AFP or the immediate senior public official of the PNP
and other law enforcement agencies shall be held liable as
a principal to the crime of torture or other cruel or inhuman
and degrading treatment or punishment for any act or
omission, or negligence committed by him/her that shall
have led, assisted, abetted or allowed, whether directly or
indirectly, the commission thereof by his/her subordinates.
If he/she has knowledge of or, owing to the circumstances
at the time, should have known that acts of torture or other
cruel, inhuman and degrading treatment or punishment
shall be committed, is being committed, or has been
committed by his/her subordinates or by others within
his/her area of responsibility and, despite such knowledge,
did not take preventive or corrective action either before,
during or immediately after its commission, when he/she
has the authority to prevent or investigate allegations of
torture or other cruel, inhuman and degrading treatment or
punishment but failed to prevent or investigate allegations
of such act, whether deliberately or due to negligence shall
also be liable as principals.
Any public officer or employee shall be liable as an
accessory if he/she has knowledge that torture or other
cruel, inhuman and degrading treatment or punishment is
being committed and without having participated therein,
either as principal or accomplice, takes part subsequent to
its commission in any of the following manner:
(a) By themselves profiting from or assisting the
offender to profit from the effects of the act of
torture or other cruel, inhuman and degrading
treatment or punishment;
(b) By concealing the act of torture or other cruel,
inhuman and degrading treatment or punishment
and/or destroying the effects or instruments
thereof in order to prevent its discovery; or(c) By
harboring, concealing or assisting m the escape of
the principal/s in the act of torture or other cruel,
inhuman and degrading treatment or punishment:
Provided, That the accessory acts are done with
the abuse of the official's public functions.
Aggravating Circumstances in torture:
(1) Torture resulting in the death of any person;
(2) Torture resulting in mutilation;
(3) Torture with rape;
(4) Torture with other forms of sexual abuse and, in
consequence of torture, the victim shall have become
insane, imbecile, impotent, blind or maimed for life; and
(5) Torture committed against children.

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CRIMINAL LAW REVIEW Book 2 Notes


Note:

Torture as a crime shall not absorb or shall not be


absorbed by any other crime or felony committed
as a consequence, or as a means in the conduct
or commission thereof. In which case, torture shall
be treated as a separate and independent criminal
act whose penalties shall be imposable without
prejudice to any other criminal liability provided for
by domestic and international laws. (Sec 15)
Persons who have committed any act of torture
shall not benefit from any special amnesty law or
similar measures that will have the effect of
exempting them from any criminal proceedings
and sanctions. (sec 16)

REFOULER- No person shall be expelled, returned or


extradited to another State where there are substantial
grounds to believe that such person shall be in danger of
being subjected to torture.

CHAPTER THREE FRAUDS


EXACTIONS AND TRANSACTIONS

AND

ILLEGAL

ARTICLE 213 FRAUDS AGAINST THE PUBLIC


TREASURY AND SIMILAR OFFENSES
Article 213 punishes two (2) acts:
1. Fraud against public treasury (par.1)
2. Illegal exactions (par. 2)
ELEMENTS OF FRAUD AGAINST PUBLIC TREASURY
(ART. 213, PAR. 1):
1. That the offender is a public officer
2. that he should have taken advantage of his office, that
is he intervened in the transaction of his official
capacity
3. That he entered into an agreement with any interested
party or speculator or made use of any other scheme
with regard to:
(1) furnishing supplies
(2) the making of contracts
(3) the adjustment or settlement of accounts
relating to public property or funds
4. That the accused had intent to defraud the
Government
So here, the public officer took advantage of his official
position in entering into contract which involves the
furnishing of supplies, or which involves public funds or
property and the intention is to DEFRAUD THE
GOVERNMENT. It is not necessary that the Government,
the treasury be actually be defrauded, it suffices that
entering in the said contract, the intention of the said
offender, the public officer, is to defraud the Government.
ELEMENTS OF ILLEGAL EXACTION (ART. 213, PAR. 2)
1. That the offender is a public officer entrusted with the
collection of taxes, licenses, fees and other imposts.
2. He is guilty of any of the following acts or omissions:
(1) Demanding, directly or indirectly, the payment of

Dizon | Manalo | Navarez | Shyu | Tubio

Atty. V. Garcia
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.
Here, the offender is a COLLECTING PUBLIC
OFFICER. A public officer who has been entrusted with
duty to collect taxes, licenses, fees or other imposts. Only
this kind of public officer can commit this crime because
ILLEGAL EXACTION involves violation of rules on
collection.
1st Act - Demanding, directly or indirectly, the payment of
sums different from or larger than those authorized by
law;or
ILLUSTRATION:
Q: There was this cashier in the city treasurers office. Here
comes X, X said that he is going to get a cedula (residence
certificate) and then X said, How much am I going to pay?
and then, the cashier or the collecting officer said, you
have to pay Php200 but it is actually Php20. X said, hmp,
angmahalpala, ayokona. and so he left. Is the said
collecting officer liable of any crime?
A:YES, he is liable. For merely demanding an
amount larger than that authorized by law, he is
already liable for ILLEGAL EXACTION under
Article 213, Par. 2.
Q: He is already liable, he merely demanded, but what if in
the same problem, X said he was going to get a cedula.
The collecting officer saw him and he appears to be poor
man and so X asked the collecting officer, How much am I
going to pay? and the collecting officer took pity of X and
said, Only Php 10. So, the poor man said, Oh, I have
more money, Ill get two. Is the collecting officer liable of
any crime?
A:YES, he is liable because he demanded an
amount different from that authorized by law. Note
that what the law requires is the demanding of an
amount, directly or indirectly, different from or
larger than those authorized by law. Therefore,
even if it is lower, so long as it is different from that
provided by law, and so long as it is demanded by
the said collecting officer, then it is considered as
ILLEGAL EXACTION.
It is not necessary for the said collecting officer to
have misappropriate the funds, the moment that he
misappropriates the funds, in addition to illegal
exaction, he may also be held liable for
MALVERSATION, because Illegal Exaction is only
about the rules on collection. It has nothing to do
with the appropriation or misappropriation of funds
or property. Only a violation of the rules on
collection.

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CRIMINAL LAW REVIEW Book 2 Notes


2nd Act - Failing voluntarily to issue a receipt, as provided
by law, for any sum of money collected by him officially;
ILLUSTRATION:
Q: So what if it was January 2, all kinds of payment are
being made at the start of the year. So the collecting officer
in the treasurers office rans out of official receipt (O.R.).
And so he got a half sheet of typewriting paper and he note
there about the said payment and a provisional receipt and
he gave it to the same person who made the payment. Is
the said collecting officer liable of illegal exaction?
A: He IS NOT. Because he did not voluntarily
fail to issue the said O.R. He ran out of the said
O.R., it was not voluntary on his part. It was an
emergency situation. It is good that she even
gave a provisional receipt as a proof of
payment. In this case, he cannot be held liable
for illegal exaction.
3rd Act - Collecting or receiving, directly or indirectly, by way
of payment or otherwise, things or objects of a nature
different from that provided by law.
Here, under the third act, it does not refer to the
amount of payment. It refers to the KIND OR NATURE OF
PAYMENT. So, when the law says that it should be paid in
cash, ONLY CASH may be received by the said collecting
officer.
ILLUSTRATION:
So the collecting officer is known as a sabungero. So
here comes one of the persons who was making payment.
He has no money, but said, he has a magandangtandang.
And so, that was the payment received. He commits a
violation of illegal exaction.
Q: What if the person who demanded an amount or
different from or larger than that which is provided for by
law is an officer, a collecting officer from the Bureau of
Internal Revenue, or a collecting officer form the Bureau of
Customs. Is he liable under Article 213?
A: He is not liable for illegal exaction under
Art. 213. He is liable under the Tax Code or
under the Tariffs and Customs Code. Under
Art. 213, it is expressly provided that if the
collecting officer is a collecting officer coming
from the Bureau of Internal Revenue or Bureau
of Customs is not liable under this Article. The
reason here is that, this collecting officer from
the BIR and the BOC, have the right to ask for
penalties, surcharges, and compromise.
Therefore, they can always demand and
amount different from or that which is larger
than that authorized by law. If they exceeded
that authority, then they are liable under the
Tariffs and Customs Code or under the Tax
Code, but NOT UNDER THE RPC.
ARTICLE 214 OTHER FRAUDS
ELEMENTS:
1. Offender is a public officer
2. He takes advantage of his official position
3. He commits any of the frauds or deceits enumerated in

Dizon | Manalo | Navarez | Shyu | Tubio

Atty. V. Garcia
Articles 315-318
If any of the public officer commits any of the frauds or
deceits constituting ESTAFA or SWINDLING, under Art.
315-318, and he does so by taking advantage of his official
position, his criminal liability is Other Frauds under Art. 214.
Not estafa, Not swindling. the reason is that in
case of a public officer, there is additional
penalty. If you look at Article 214, the law says
that the penalty is the same penalty as the first
offense under Art. 315-318. But additional to
that, temporary disqualification to perpetual
disqualification for having taken advantage of his
official position. Therefore, if it is a public officer
who commits estafa or swindling, the crime is
under Art. 214 and there is an additional penalty.
ARTICLE 215 PROHIBITED TRANSACTIONS
ELEMENTS:
1. Offender is an appointive public officer
2. He becomes interested, directly or indirectly in any
transaction of exchange or speculation
3. Transaction takes place within the territory subject to
his jurisdiction
4. He becomes interested in the transaction during his
incumbency
ARTICLE 216 POSSESSION OF PROHIBITED
INTEREST BY A PUBLIC OFFICER
PERSONS LIABLE:
1. Public Officer who, directly or indirectly, became
interested in any contract or business in which it was
his official duty to intervene.
2. Experts, arbitrators, and private accountants who, in
like manner, took part in any contract or transaction
connected with the estate or property in the appraisal,
distribution or adjudication of which they had acted
3. Guardians and executors with respect to the property
belonging to their wards or the estate
CHAPTER FOUR MALVERSATION
FUNDS OR PROPERTY

OF

PUBLIC

ARTICLE 217 MALVERSATION OF PUBLIC FUNDS


OR PROPERTY (PRESUMPTION OF MALVERSATION)
ELEMENTS:
1. Offender is a public officer or employee
2. He has the custody or control of funds or property by
reason of the duties of his office
3. Those funds or property were public funds or property
for which he was accountable
4. He appropriated, took, misappropriated or consented,
or through abandonment or negligence, permitted
another person to take them

Who is the offender?


The offender is an accountable public officer. An
accountable of public officer is an officer in the
course of the performance of his duties, receives
funds or property from the government which he
has the obligation to account later. So he has in
his custody, public funds or public property and he

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CRIMINAL LAW REVIEW Book 2 Notes


has the obligation to account these to the
Government.
Punishable acts:
1. Appropriating public funds or property
2. Taking or misappropriating the same
3. Consenting, through abandonment or negligence,
permitting any other person to take such public funds
or property
4. Being otherwise guilty of the misappropriation or
malversation of such funds or property
Malversation of Public Funds and Property can be
committed either through a positive act, that is, that the
said public officer is the one who misappropriates, takes or
appropriates the public funds and property, OR, through a
passive act, that is, through his abandonment or
negligence, he permitted others to misappropriate the
same.
-

Malversation can be committed either through a


positive act, which is through deliberate intent or
through dolo. He is the one who appropriates or
misappropriates, who took the the said public funds
or property
Passive Act which is through his abandonment or
negligence, or cupla. he allowed others to
appropriate or misappropriate the said public funds
or property

When is there prima facie presumption of malversation?


Under Article 217, there arises prima facie
presumption of malversation of public funds or
property when demand is made by a duly
authorized officer to an accountable public officer
to account for public funds or property, and the
same is not forthcoming
ILLUSTRATION:
So the COA auditor, appeared and conducted an
audit He demanded for the said amount, the said
accountable public officer cannot reduce the said amount.
There arises the prima facie presumption that he has
malverse the said public funds or property. Although that is
what is written under Article 217, last paragraph. The
Supreme Court in the number of cases said:
Mere shortage in audit will not suffice. For the Prima
facie presumption to arise the following requisites
must be present: - It is necessary that there must be
complete, thorough and reliable audit.
In the said complete, thorough and reliable audit,
the following were discovered:
a.
The public officer indeed receive the public
funds or property. That is, he is an
accountable public officer
b.
The said public funds and property was
missing, or there was a shortage, or he
cannot produce it, and
c.
The said public officer cannot give a
justifiable reason, a legal excuse for the said
shortage or missing of public funds or
property.

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Atty. V. Garcia
If all of these are present, the Supreme Court says
that there arises the prima facie presumption that there is
malversation of public funds or property. Therefore, there
may NOT be direct evidence to convict one for
malversation of public funds or property. Obviously, there
cannot be any witness, because when you say direct
evidence, there is a witness. Of course, he would not let
anyone see him malversing the funds. It suffices in the
audit, these three things were discovered. If these three are
discovered, then there arises the prima facie presumption
that there is a so-called MALVERSATION OF PUBLIC
FUNDS OR PROPERTY
ILLUSTRATION:
Q: What if a man was walking, in the middle of the night, a
police officer who was conducting a patrol saw something
bulging on his waist. The police officer stopped him and
frisked him and there, they saw a firearm. They ask for the
license, the said man could not produce the license for the
said firearm. He was arrested for illegal possession of
unlicensed firearm, and the firearm was confiscated. During
the trials of the case, the fiscal move for subpoena for the
custodian of the said firearm. The custodian appeared but
failed to bring the firearm. He had already sold the said
firearm confiscated. What crime is committed by the said
custodian?
A: He is liable for Malversation under Article 217.
Q: His contention was, it cannot be malversation, because
the firearm was owned by a private person. It is not a public
property, therefore I cannot be held liable for malversation.
Is the contention correct?
A: His contention is wrong. The said firearm
has already been confiscated by public
authority, therefore it is now deemed,
CUSTODIA LEGIS. The moment it is in
custodialegis, it loses its character as a private
property and it now assumes a character of a
public property. Hence the crime committed is
Malversation.
Q: What if, there was this collecting officer, a cashier, and
there were many persons paying. And the long line persons
paying, one cashier said that he needed to answer the call
of nature, and so he asked another fellow cashier to look
after his drawer, and so, he left and went to the restroom.
But he also left the key of his drawing on the key holder.
And so, the moment he left, his fellow cashier went to his
drawer and opened it and took Php 2000 from the
collection of A on the same day. Then A arrived, and he
then accepted collections. In the afternoon, there was a
surprise audit coming from the COA. and it was discovered
that based on the receipts, The php 2000 were missing
from the collection of A. Therefore, A was charged. What
crime if any, has been committed by A? Is A liable for
malversation?
A: Yes, he is liable for malversation through
negligence. That is the passive act. That is
through his abandonment or negligence, he
permitted another person, Cashier B to
misappropriate a part of his collection for the day.
Hence A is also liable for Malversation. Not B, but

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CRIMINAL LAW REVIEW Book 2 Notes


A, the one who went to the restroom, because he
is the one accountable for the said public funds in
his drawer.
That other person, B, who took the said property
is liable for qualified theft. because he was
entrusted with the same funds, and he took the
same funds.
Q: What if, in the same problem, after the COA auditor
found out that Php 2000 was missing, A was charged with
Malversation of public funds and property through dolo. So,
in the information, it was stated that he is the one who
misappropriate, appropriates or has taken the said public
funds, and so he was charged with Malversation through
dolo, through deliberate intent. That was the case filed
against him because they did not know that it was B who
took the money. So, the presumption is that, he is the one
who took the money, who appropriated it. During the trial
of the merits, during the presentation of the defense
evidence, when it was already As term to testify, it was
divulged or disclosed to the court that it was in fact another
cashier, B who misappropriated the said funds through the
negligence of A. And by reason of this evidence presented
in court, the said judge, convicted A of Malversation
through culpa, in an information of malversation through
dolo. Is the judge correct? can he convict A?
A: Yes, the judge is correct. The reason is that,
according to the Supreme Court, whether
Malversation is committed through deliberate
intent or culpa, DOLO and CULPA are merely
modalities of committing the crime. Nevertheless,
it is still malversation, and if you look at Article
217, whether malversation is committed through
deliberate intent or through negligence, they just
have one and the same penalties. Further, the
Supreme Court said, Malversation through
negligence or culpa is NECESSARILY INCLUDED
in Malversation through deliberate intent or dolo.
Hence, even if the information is Malversation
through dolo, one can be convicted of
Malversation through Culpa or Negligence.
Q: What if, there was this rape in a warehouse, in the
course of the said rape, dangerous drugs worth millions of
pesos were confiscated and they were placed in the PDEA
warehouse. The persons therein were charged with illegal
possession of dangerous drugs. In the course of the
hearing in this possession of dangerous drugs, the court
sent a subpoena to the PDEA custodian, to bring to the
Court the said dangerous drugs which were confiscated.
And so, on the designated day, the said PDEA agent
boarded all the dangerous drugs confiscated in a PDEA
van and off he went to the Court. However, before the
PDEA agent could reach the court, here comes two
motorcycles who went in and fired at him, and he fell on his
seat, lifeless. And then, a big vehicle arrived at the back of
the said PDEA van and took all the said dangerous drugs.
Now the said PDEA agent was brought into the hospital
and despite the fatal wound, because of the immediate
medical intervention, he survived. Is he liable of any
crime?

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Atty. V. Garcia
A: Yes, he is liable of Malversation of public
funds or property under Article 217 through
Negligence. There was inexcusable negligence
on his part said the Supreme Court, because all
by himself, carried the millions worth of dangerous
drugs in the PDEA van, considering the value of
the said dangerous drugs, he should have asked
for back up. Yes, he survived, but he was charged
with Malversation of public funds or property
through CULPA.
Q: What if, there is a public officer whose office is in pasay.
He is going to have a meeting in Caloocan. And so he went
to Caloocan in one afternoon and attended the said
meeting. He had to go to pasay in order to make a report,
However, the traffic was heavy, so instead of using his car
on the way back, he rode the LRT. Upon reaching the
office, he realized that his bag was opened, and the
cellphone which was __5:17___ by the Government was
already gone. By reason thereof, he was charged with
Malversation under Article 217 because through his
negligence, the cellphone which was ____ to him by the
Government and for which he is accountable to the
Government was now missing. It was taken or stolen by
somebody. Is he liable? He was convicted by the
SandiganBayan but when it came to the Supreme Court,
the Supreme Court acquitted him.
A: According to the Supreme Court, there was no
negligence on the part of the said public officer.
He cannot be faulted for having taken the LRT
because of the said heavy traffic. It cannot be said
that there was negligence on his part in placing
the cellphone inside his bag, because, where else
would you place a cellphone but inside the bag for
safekeeping. It would have been different while on
board, he was using the said cellphone. Hence,
the Supreme Court said, there was no negligence
and therefore, although convicted by the
SandiganBayan, he was acquitted by the
Supreme Court.
ARTICLE 218 FAILURE OF ACCOUNTABLE OFFICER
TO RENDER ACCOUNTS
ELEMENTS:
1. Offender is a public officer, whether in the service or
separated therefrom
2. He must be an accountable officer for public funds or
property
3. He is required by law or regulation to render accounts
to the Commission on Audit, or to a provincial Auditor
4. He fails to do so for a period of two months after such
accounts should be rendered
ARTICLE 219 FAILURE OF RESPONSIBLE PUBLIC
OFFICER TO RENDER ACCOUNTS BEFORE LEAVING
THE COUNTRY
ELEMENTS:
1. Offender is a public officer
2. He must be an accountable officer for public funds or
property
3. He must have unlawfully left (or be on the point of
leaving) the Philippines without securing from the

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CRIMINAL LAW REVIEW Book 2 Notes


Commission on Audit a certificate showing that his
accounts have been finally settled
ARTICLE 220 ILLEGAL USE OF PUBLIC FUNDS OR
PROPERTY (Technical Malversation)
ELEMENTS:
1. Offender s a public officer
2. there is a public fund or property under his
administration
3. Such public fund or property has been appropriated by
law or ordinance
4. He applies the same to a public use other than that for
which such fund or property has been appropriated by
law or ordinance.
ILLUSTRATION:
Q: What if a public officer has under his administration
public funds which is for a certain project. So let us say that
X is the city administrator. Under his administration, there
was Php500,000, the said Php 500,000 was for the
construction of a bridge between one barangay to another
barangay. Then suddenly there was a typhoon, a big
typhoon and many of the constituents were rendered
homeless. And so, they had to stay in the basketball court,
they need food, clothing, water and other basic needs. And
so, the city administrator made use of the Php 500,000
under his administration to buy these basic needs of his
constituents. Is the said public officer, the city administrator
liable of any crime?
A: Yes, he is liable for technical Malversation
under Article 220.
BEST EXAMPLE:
GMA and other head of Philhealth before was
charged by Frank Chavez because of Technical
Malversation because of transfer of COA funds, which was
used for Philhealth purposes during the elections. And so,
because of that, according to Frank Chavez, they are liable
for Malversation. They were charged with Technical
Malversation. But their contention was there was a law that
allowed it. If there was a law that allowed it, then, there was
no violation. But, if there is no law, there is an illegal
transfer of funds, therefore, technical Malversation will
resolve.
ARTICLE 217
The
public
officer
misappropriates the fund for
his personal use.

ARTICLE 220
The public officer did not
misappropriate the funds for
his personal use, he used it
for another public purpose
other than that which has
been appropriated by law or
ordinance that is why it is
TECHNICAL
MALVERSATION the
offense
is
on
the
technicality of the use of
funds.

The public officer has in his


possession public funds or

The public officer has in his


possession public funds or

Dizon | Manalo | Navarez | Shyu | Tubio

Atty. V. Garcia
property for safekeeping. It
is under his custody and
control and therefore it is for
his safekeeping and he has
the obligation to account it
later on to the Government

property is only under his


administration.
Not
for
safekeeping, but only for
the
purpose
of
administrating it that is, for
applying it for the purpose
which
it
has
been
appropriated by law or
ordiance

ARTICLE 221 FAILURE TO MAKE DELIVERY OF


PUBLIC FUNDS OR PROPERTY
ELEMENTS:
1. That the public officer has government funds in his
possession
2. That he is under obligation to make payments from
such funds
3. That he fails to make payment maliciously
Punishable acts:
1. Failing to make payment by a public officer who is
under obligation to make such payment from
Government funds in his possession
2. Refusing to make delivery by a public officer who has
been ordered by competent authority to deliver any
property in his custody or under his administration
ARTICLE 222 OFFICERS INCLUDED IN PRECEDING
PROVISIONS
Private Individual who may be liable under Art. 217221:
1. Private Individual who in any capacity whatsoever,
have charge of national, provincial or municipal funds,
revenue or property
2. Administrator, depository of funds or property
attached, seized or deposited by public authority even
if such property belongs to a private individual
3. Those who acted in conspiracy in malversation
4. Accomplice and accessories to malversation
Can private property be the subject of Malversation?
YES, under the 2nd act in Article 222, that is when
the said funds or property has been attached,
seized or deposited by public authority, it now
becomes in custodialegis and it now assumes the
character of being public funds or property. If any
are misappropriated, then the crime committed is
Malversation and not theft.
INFIDELITY IN THE CUSTODY OF PRISONERS (Articles
223, 224, 225)
ARTICLE 223 CONNIVING WITH OR CONSENTING TO
EVASION
ELEMENTS:
1. Offender is a public officer
2. He has in his custody or charge a prisoner, either
detention prisoner or prisoner by final judgment
3. Such prisoner escaped from his custody
4. That he was in connivance with the prisoner in the
latters escape, or is with his consent
ARTICLE 224 EVASTION THROUGH NEGLIGENCE

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CRIMINAL LAW REVIEW Book 2 Notes


ELEMENTS:
1. Offender is a public officer
2. He is charged with the conveyance or custody of a
prisoner, either detention prisoner or prisoner by final
judgment
3. Such prisoner escapes through his negligence
ARTICLE 225 ESCAPE OF PRISONER UNDER THE
CUSTODY OF A PERSON NOT A PUBLIC OFFICER
ELEMENTS:
1. Offender is a private individual
2. Conveyance (or charge) of custody of prisoner or
person under arrest is confided to him
3. Prisoner or person under arrest escapes
4. Offender consents to the escape of the prisoner or
person under arrest or that the escape takes place
through his negligence
Whether it be under Art. 223, 224, 225, the offender
infidelity in the custody of prisoners is one who has been
entrusted with the custody and charge of the prisoner.
Whether the prisoner is a prisoner convicted by final
judgment or a detention prisoner. He must be charged, he
must be the custodian of the said prisoner because the
essence of the crime is the violation of the trust reposed on
him. Because prisoners are accountabilities of the
Government.
Can a private individual commit infidelity?
Yes, under Art. 225. If he is entrusted with the
custody of this prisoner and the prisoner escapes,
either in connivance with him or through his
negligence, then his liability is infidelity in the
custody of prisoners
ILLUSTRATION:
Q: A has been charged with illegal sale of dangerous
drugs. She is behind bars, it is a non-bailable offense, and
therefore, while the case is ongoing, she is behind bars.
So, it was the hearing date, she was accompanied by the
jail warden, the jail guard to the court, and after trial, there
was this husband and two children of the said woman who
was in jail. The husband and two children talked, and when
the said woman prisoner was about to be brought to jail,
the husband talked to the jail warden. He invited the jail
warden for a merienda, in a canteen inside the hall of
justice. And so, the jail warden saw nothing wrong and so,
he had merienda with the woman prisoner, the husband
and the two children. The handcuffs had to be removed for
the woman prisoner to eat. After eating, the woman
prisoner said that she needed to answer the call of nature,
and so, she went to the restroom, also inside or within the
hall of justice. The jail guard allowed her inside while the
jail guard was left outside, waiting. Hours passed, no
woman prisoner came out. It so happens that the said
husband put some disguise for the woman to use so that
she could escape without being noticed by the said jail
guard, and woman prisoner was able to escape without
being noticed by the said jail guard. Is the said jail guard
liable for infidelity in the custody of prisoner, or is it a mere
laxity which would not amount to infidelity in the custody of
prisoner?

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Atty. V. Garcia
A: People vs. Nava The Supreme Court said
that mere laxity would not amount to negligence
under Art. 224. Because
according to the
Supreme Court in that old case, the negligence
being required in order that a public officer may be
entitled, must be a deliberate non-performance of
his duty. Here, it is only a mere laxity on the part of
the said public officer for not having accompanying
the said woman in the rest room.
Rodriguez vs. SandiganBayan(new case) The
Supreme Court said otherwise. According to the
Supreme Court, the moment that a public officer, a
jail warden has accompanied a prisoner outside
jail, he must not have lost sight of the said
prisoner. The only obligation of the said jail warden
after the trial was to bring her back to the court.
The fact that the said jail guard allowed himself to
have a merienda, and even allowed the woman
prisoner to go to the restroom alone, there was
laxity on the part of the said jail guard. The
Supreme Court said, LAXITY is a deliberate nonperformance of his official duty as the guard of the
said prisoner, thereby amounting to infidelity in the
custody of prisoner under Art. 224.
INFIDELITY IN THE CUSTODY OF DOCUMENTS
(ARTICLES 226, 227, 228)
ARTICLE 226 REMOVAL, CONEALMENT OR
DESTRUCTION OF DOCUMENT
ELEMENTS:
1. Offender is a public officer
2. He removes, destroys, or conceals documents or
papers
3. Said documents or papers should have been entrusted
to such public officer by reason of his office
4. Damage, whether serious or not, to a third party or to
the public interest should have been caused
Under Article 226, in order for infidelity in the custody
of documents to arise, it is necessary that there be damage
caused to a third person or to the public interest. If damage
is serious, the penalty is QUALIFIED, therefore, the
damage may or may not be serious provided that there is
damage, the crime will arise.
DAMAGE IS NECESSARY in order to give rise to
infidelity in the custody of documents.
ARTICLE 227 OFFICER BREAKING SEAL
ELEMENTS:
1. Offender is a public officer
2. He is charged with the custody of papers or property
3. These papers or property are sealed by proper
authority
4. He breaks the seals or permits them to be broken
Under Article 227, officer breaking the seal, infidelity in
the custody of prisoners to arise, even without damage
caused to a third party or to public interest. Damage is NOT
an element.
MERE BREAKING of the seal of the document will
already consummate the crime.

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CRIMINAL LAW REVIEW Book 2 Notes

Atty. V. Garcia
A: The crime committed is infidelity in the
custody of documents under Art. 226 by the
public officer in destroying the said document.
This marked money becomes documentary
evidence, the moment they have been marked as
exhibits. Money here is not used as a medium of
exchange, but as documents because they have
been marked as documentary evidence. The
moment they have been taken, removed,
concealed or destroyed, the crime committed is
infidelity in the custody of documents because the
clerk of court is the custodian of the documentary
exhibits. If money is used, not as a medium of
exchange, but like this, as documentary exhibits
or any other use other than as a medium of
exchange, the one who malverse, or use it is the
custodian of the said documents, the crime is
infidelity in the custody of documents and NOT
malversation.

ARTICLE 228 OPENING A CLOSED DOCUMENT


ELEMENTS:
1. Offender is a public officer
2. Any closed papers, documents, or objects are
entrusted to his custody
3. He opens or permits to be opened said closed papers,
documents or objects
4. He does not have proper authority
Infidelity in the custody of documents, the public officer
has been entrusted with papers, documents or objects,
which have been closed by proper authority and the said
public officer opened the said closed document or
permitted others to open the same. Again, Damage is NOT
an element.
MERE ACT OF OPENING the said closed document
will give rise to the crime.
ILLUSTRATION:
Q: What if A has been charged with illegal sale of
dangerous drugs. The case was on trial, during the trial of
the case, the fiscal presented the first police officer who
acted as the poseur buyer in the course of the testimony of
the police officer, the fiscal produced and showed to him for
identification the marked money. So the marked money
consists of 5, 100 peso bill. The fiscal presented it to the
police and the police identified it as indeed the marked
money because of the serial numbers and because of the
markings, and thereafter the marked money have been
marked as Exhibit A, B, C, D, E for the prosecution. After
the trial, they were placed inside an envelope and given to
the clerk of court, the custodian of the evidence which have
already been marked. So trial ended that day, it was now
lunch time. The clerk of court was on her table and so the
vendor arrived. The clerk of court wanted to buy lunch and
she said, how much. The vendor said it costs 50 peso. The
clerk of court pulled out her money; it was a 1000 peso bill.
The vendor said, anglakinamanniyan, walaakongpanukli
And so, by reason thereof, he gave it back to the clerk of
court. The clerk of court said that she had no smaller bills,
and he remembered the exhibits. And so, he took 100 peso
bill, marked as Exhibit E. And she paid it to the vendor and
the vendor gave him the change of 50 peso. After eating,
before 1:00, the said clerk of court immediately went
outside to change her big 1000 peso bill into smaller bills.
When he now has these smaller bills, he got one 100 peso
bill and marked it as Exhibit E and then he signed it and
placed it inside the envelope. Here comes the next hearing
date, on the next hearing date, another police officer was
presented, the fiscal produced the said documentary
exhibits, the marked money and asked it from the clerk of
court. So the fiscal showed it to the police officer, the police
officer identified Exhibits A, B, C, D. However, when it
comes to exhibit E, the police officer said, Your Honor, it
has a different serial number from the one in our sworn
statement and so because of that, an investigation
happened and the court learned that it was taken by said
clerk of court and used in buying food. What crime, if any is
committed by the said clerk of court? Is it malversation or is
it infidelity in the custody of documents?

Dizon | Manalo | Navarez | Shyu | Tubio

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


destroyed the exhibit, the documentary exhibit of
the said prosecution and the prosecution was
seriously damaged interface.
REVELATION OF SECRETS (Article 229-230)
ARTICLE 229 REVELATION OF SECRETS BY AN
OFFICER
Punishable acts:
1. By revealing any secrets which affect public interest
learned by him in his official capacity
ELEMENTS:
(1) Offender is a public officer
(2) He knows of a secret by reason of his
official capacity
(3) He reveals such secret without authority or
justifiable reasons
(4) Damage, great or small, is cause to the
public interest
It is necessary that there be Damage caused, whether
serious or not.
2.

Wrongfully delivering papers or copies of papers of


which he may have charge and which should not be
published thereby causing damage, whether serious or
not, to a third party or to public interest.
ELEMENTS:
i.
Offender is a public officer
ii.
He has charge of papers
iii.
Those papers should not be published
iv.
He delivers those papers or copies thereof
to a third person
v.
The delivery is wrongful
vi.
Damage is caused to public interest

ARTICLE 230 PUBLIC OFFICER REVEALING


SECRETS OF PRIVATE INDIVIDUAL
ELEMENTS:
1. Offender is a public officer
2. He knows of the secrets of private individual by reason
of his office

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CRIMINAL LAW REVIEW Book 2 Notes


3.

He reveals such secrets without authority or justifiable


reason
Damage is NOT an element in Article 230.

ARTICLE 231 OPEN DISOBEDIENCE


ELEMENTS:
1. Offender is a judicial or executive officer
2. There is judgment, decision, or order of a superior
authority
3. Such judgment, decision or order was made within the
scope of the jurisdiction of the superior authority and
issued with all the legal formalities
4. Offender without any legal justification openly refuses
to execute the said judgment, decision or order which
he is duty bound to obey
Open Disobedience is committed by any judicial or
executive officer who shall openly refuse without any legal
motive to execute a judgment or decision rendered by a
superior authority in the exercise of his duty and in the legal
infirmities of the law.
ILLUSTRATION:
Q: What if in the case of Duterte, the sheriff wishes to
execute a writ of execution and cause the squatters to
leave the place because of the execution issued by the
court has to be implemented. Had not the sheriff performed
the said act, is he liable of any crime? Had the sheriff
refused to execute the writ of execution issued by the said
judge? Is he liable of any crime?
A: Yes, he is liable of Open Disobedience
under Article 231. He openly refused to execute
a writ of execution issued by a judge.
ARTICLE 232 DISOBEDIENCE TO ORDER OF
SUPERIOR OFFICER, WHEN SAID ORDER WAS
SUSPENDED BY INFERIOR OFFICER
ELEMENTS:
1. Offender is a public officer
2. An order is issued by his superior for execution
3. He has for any reason suspended the execution of
such order
4. His superior disapproves the suspension of the
execution of the order
5. Offender disobeys his superior despite the disapproval
of the suspension
The offender refuses to disobey the suspension of the
said order which was disapproved by the said public officer.
ARTICLE 233 REFUSAL OF ASSISTANCE
ELEMENTS:
1. Offender is a public officer
2. Competent authority demands from the offender that
he lend his cooperation towards the administration of
justice or other public service
3. Offender fails to do so maliciously
Public officer who shall fail to lend his cooperation
towards the administration of justice or any other public
service despite demand by competent authority.

Dizon | Manalo | Navarez | Shyu | Tubio

Atty. V. Garcia
ILLUSTRATION:
Q: A raped B. B was treated by a medico legal officer at the
PNP. This medico legal officer who has examined A,
issued a medical certificate, And so in the case filed by B
against A for this so-called rape, the fiscal moved that the
subpoena (adjustificandum) be sent to this public officer,
the medico legal office who examined the rape victim.
However, despite receipt of the said subpoena, the medico
legal officer failed to appear. He did not appear without any
justifiable reason at all. The said prosecutor move again for
the issuance of another subpoena, a second subpoena.
Again, despite the receipt, the medico legal officer failed to
appear in court and testified and failed to give the copy of
the medico legal certificate. What crime if any has the said
medico legal officer has committed?
A: He is liable for Refusal of Assistance under
Article 233. It is committed by a public offcer that despite
demands of the public authority shall fail to lend his
cooperation toward the administration of justice or any
other public service. Thereby, causing damage serious or
not, to public interest.
NOTE: If the damage is serious, the penalty is QUALIFIED.
ARTICLE 234 REFUSAL TO DISCHARGE ELECTIVE
OFFICE
ELEMENTS:
1. Offender is elected by popular election to a public
office
2. He refuses to be sworn in or to discharge the duties of
the said office
3. There is no legal motive for such refusal to be sworn in
or to discharge the duties of said office
This is a crime which cannot be committed in
Philippine Jurisdiction. Refusal to discharge public duties is
committed by any person entitled to a public office by
means of popular election, refuses to assume to assume
the powers and duties of his office. He refuses to be sworn
in. This will not happen in our lifetime. This will never
happen in the Philippine Jurisdiction because here, even if
he did not win in the election, he wanted to hold office.
ARTICLE 235 MALTREATMENT OF PRISONERS
ELEMENTS:
1. Offender is a public officer or employee
2. He has under his charge a prisoner or detention
prisoner
3. He maltreats such prisoner either of the following
manners:
a.
By overdoing himself in the correction or
handling of a prisoner or detention prisoner
under his charge either:
i. By the imposition of punishments not
authorized by the rules and regulations
ii. By inflicting such punishments (those
authorized) in a cruel or humiliating
manner

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CRIMINAL LAW REVIEW Book 2 Notes


b.

By maltreating such prisoner to extort a


confession or to obtain some information from
the prisoner

Who is the offender?


Any public officer or employee
Who is the offended party?
He must be a prisoner
In order to be considered a prisoner, it is necessary that the
said person has already been arrested, brought to the PNP
station and he has been incarcerated. If he is not a
prisoner, then, the crime can be physical injuries, whatever
injuries that may have been sustained by the prisoner, but
NOT maltreatment of prisoners

Atty. V. Garcia
Maltreatment of Prisoners because he is a
prisoner who was maltreated in order to extort a
confession and Serious physical injuries because
by reason of the injury inflicted, he lost an eye.
Q: Are you going to complex them? because a single act
constitute a grave and less grave felony, are you going to
complex them under Art. 48?
A: No. You cannot complex them. Because under
Article 235, it is expressly provided that the liability for
maltreatment of prisoners shall be in addition to the
liability for any other physical injuries or damage
caused. Therefore two crimes will be charged against
the police officer.

What if maltreatment does not only include physical


maltreatment. It shall also include moral, emotional,
psychological maltreatment because the law uses the
phrase physical injuries or damage caused.

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


Act, because under Section 14 of the Anti-Torture
Act, Torture shall not absorb and shall not be
absorbed by any other crime committed as a
consequence. Therefore, he can also be held liable
under the so-called Anti-Torture Law.

ILLUSTRATION:
Q: What if A has just withdrew his money from her ATM
account, she placed the money inside her bag and she was
already walking towards home when suddenly here comes
X. X snatched the handbag with the money. A police officer
passing by saw the incident and on boarded their mobile
patrol. They were able to arrest the man, took the bag and
returned it to the said victim. Thereafter, they placed X
inside the mobile patrol. While inside, they kicked, mauled
the man. And so, the man suffered less serious physical
injuries. What crime is committed by the said police
officers?

ARTICLE 236 ANTICIPATION OF DUTIES OF A


PUBLIC OFFICE
ELEMENTS:
1. That the offender is entitled to hold a public office or
employment either by election or appointment
2. Shall assume the performance of the duties and
powers of a public official or employee
3. Without being sworn into office or having given the
bond required by law

A: The crime committed is less serious


physical injuries. It is not maltreatment of prisoners
because the said person, X, is not yet a prisoner. He is only
a person under arrest because he has just been arrested
for having committed a crime, but he is not yet a prisoner.
In order to be considered as a prisoner, he must be brought
to the PNP station, taken a picture, left view, side view,
front view, thumbmark and incarcerated. He is now an
accountability of the Government, he is now a prisoner. But
before that, he is not yet a prisoner. He is only a person
under arrest. That is why in the problem, the police officers
are liable only for less serious physical injuries and not of
maltreatment of prisoners.
Q: What if in the same problem, they chased the man.
They were able to catch the said man and brought him to
the PNP station. Booked him and incarcerated him, and all
the things needed to be done to a prisoner. Later, he was
brought out of jail for investigation to be brought in the
Investigation section. In the investigation, he was being
forced to admit to the commission of the crime. And so, by
reason thereof, the police officer boxed him and gave him a
huge black eye. The left eye suffered so much that he lost
sight, amounting to serious physical injuries. What are the
crimes committed by the police officer?
A: Two crimes Maltreatment of Prisoners and
Serious Physical Injuries.

Dizon | Manalo | Navarez | Shyu | Tubio

ARTICLE 237 PROLONGING PERFORMANCE OF


DUTIES AND POWERS
ELEMENTS:
1. That the offender is holding a public office
2. That the period allowed by law for him to exercise such
function and duties has already expired
3. That the offender continues to exercise such function
and duties
ARTICLE 238 ABANDONMENT OF OFFICE OR
POSITION
ELEMENTS:
1. That the offender is holding a public office
2. That he formally resigns from his office
3. But before the acceptance of his resignation, he
abandons his office
Abandonment of office is committed by a public officer
who has already formally resigns from his position, and
having formally resigned from his position, he abandons to
the detriment of public service. Despite the fact that his
resignation has not yet been accepted by a superior
authority. Under Labor Law, when you are an employee,
when you file a resignation, it does not mean you are
already resigned. There must be an ACCEPTANCE from
the superior officer before it can be said that he have
already resigned.
So here, the public officer has already formally
resigned, his resignation has not been accepted, yet he

Page 84

CRIMINAL LAW REVIEW Book 2 Notes


abandons to the detriment of public service. What is the
penalty?
In the abandonment of office, the penalty is
QUALIFIED if the purpose of the said public officer
is to evade the prosecution punishment of the
crime involving violation of Title 1 Book 2 (Crimes
against National Security), or Chapter 1 Title 3 of
Book 2 (Rebellion, Coup detat, Sedition, etc.)
ARTICLE 239 USURPATION OF LEGISLATIVE
POWERS
ELEMENTS:
1. That the offender is an executive or judicial officer
2. That he:
a.
Makes general rules and regulations beyond
the scope of his authority, or
b.
Attempts to repeal a law, or
c.
Suspend the execution of thereof
NOTE: It can only be committed by an executive or
judicial officer
ARTICLE 240 USURPATION OF EXECUTIVE
FUNCTIONS
ELEMENTS:
1. That the offender is a judge
2. That the offender:
a.
Assumes the power exclusively vested to
executive authorities of the Government, or
b.
Obstructs executive authorities from the lawful
performance of their functions
NOTE: It can only be committed by a Judge
ARTICLE 241 USURPATION OF JUDICIAL
FUNCTIONS
ELEMENTS:
1. That the offender is holding office under the Executive
Branch of the Government
2. That he:
a.
Assumes the power exclusively vested in the
Judiciary, or
b.
Obstructs the execution of any order or
decision given by a judge within his jurisdiction
NOTE: It can only be committed by a public officer of the
Executive Branch of the Government
Therefore, if the person who assumes judicial
power does not belong to the Executive Branch, but
belongs to the legislative branch, the crime is not
Usurpation of Judicial Function, but USURPATION OF
PUBLIC FUNCTION AND OFFICIAL AUTHORITY under
Article 177, because Article 239, 240 and 241 are specific
as to the offenders.
So, let us say, in the one who encroached upon
the powers of the Judge, does not belong to the executive
branch but he is legislator, it cannot be considered as
usurpation of judicial functions, rather it will beUsurpation
Of Public Function And Official Authority Under Article 177.
ARTICLE 242 DISOBEYING REQUEST OF
DISQUALIFICATION
ELEMENTS:
1. That the offender is a public officer
2. That a proceeding is pending before such public officer

Dizon | Manalo | Navarez | Shyu | Tubio

Atty. V. Garcia
3.
4.

That there has been a question regarding the


jurisdiction brought before the proper authority
There is a question brought before the proper authority
regarding his jurisdiction, which is yet to be decided

ARTICLE 243 ORDERS OR REQUESTS BY


EXECUTIVE OFFICERS TO ANY JUDICIAL AUTHORITY
ELEMENTS:
1. That the offender is an executive officer
2. That the offender addresses any order or suggestion
to any judicial authority
3. That the order or suggestion relates to any case or
business within the exclusive jurisdiction of the courts
of justice
ARTICLE 244 UNLAWFUL APPOINTMENTS
ELEMENTS:
1. Offender is a public officer
2. He nominates or appoints a person to a public office
3. Such person lacks the legal qualification thereof
4. Offender knows that his nominee or employee lacks
the qualifications at the time he made the nomination
or appointment
ARTICLE 245 ABUSES AGAINST CHASTITY
ELEMENTS:
1. That the offender is a public officer
2. That he solicits or makes any indecent or immoral
advances to a woman
3. That the offended party is a woman who is:
a.
Interested in matters pending before the public
officer for his decision or where the public
officer is required to submit a report or to
consult with a superior officer; or
b.
Under the custody of the offender, who is a
warden or other public officer directly charged
with the care and custody of prisoners or
persons under arrest; or
c.
The wife, daughter, sister or any relative falling
within the same degree of affinity of the person
under the custody and charge of the offender
(Mother is not included here)
How are abuses against chastity is committed?
There are three acts. (Refer to the elements)
1. Public officer solicits or makes any
indecent or immoral advances to a woman
who is interested in matters pending
before his for his decision or where the
public officer is required to submit a report
or to consult with a superior officer
2. Warden or other public officer directly
charged with the care and custody of
prisoners or persons under arrest, and he
solicits or makes any indecent or immoral
advances to a woman
3. Warden or other public officer directly
charged with the care and custody of
prisoners or persons under arrest, and the
said officer makes any indecent or immoral
advances to the wife, daughter, sister or
any relative falling within the same degree
of affinity of the male prisoner.

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CRIMINAL LAW REVIEW Book 2 Notes


Who is the offender?
He must be a public officer because there must be
abuse of public office in making immoral or
indecent advances.
Essence of the crime is taking advantage of ones
position in soliciting or making immoral or indecent
advances.
Mere act of soliciting or making immoral and indecent
advances will already give rise to the crime. It is not
necessary that the woman will comply with the said
solicitation or immoral or indecent advances.
The solicitation must not be the gospel type of
solicitation. It must be bad, persistent, threatening such that
if the woman would not comply then it would adverse on
her part.
If a jail warden impregnated a female detainee, even if they
love one another, still liable because detainees are
liabilities of the state.

TITLE EIGHT
CRIMES AGAINST PERSONS (ARTICLES 246 266-A)
ART 246 PARRICIDE
ELEMENTS:
1. That a person is killed
2. That the deceased is killed by the accused
3. That the deceased is the father, mother, or child,
whether legitimate or illegitimate, or a legitimate
other ascendant, or legitimate other descendant, or
legitimate spouse of the accused
Parricide is committed when a person kills his father,
mother, child, whether legitimate or illegitimate,
legitimate
other
ascendant,
legitimate
other
descendant, or legitimate spouse. Therefore the
offended party or deceased or the victim is specified,
he must be the father, mother, child whether legitimate
or illegitimate, legitimate other ascendant, legitimate
other descendant, or legitimate spouse.
Parricide is a crime based on relationship.
What kind of relationship?
First, it must be a legitimate relationship
except in the case of parent and child.
Second, the said relationship must be in the
direct line
Third, the relationship must be by blood
(grandfather killed a grandson, a mother
killing a son, a son killing a father)
Q: So a father killed an illegitimate son. What crime is
committed?
A: It is parricide. Although the crime is based on
legitimate relationship, the exception is in case of
children, whether legitimate or illegitimate.
Q: A brother killed another brother. Is the crime committed
parricide?

Dizon | Manalo | Navarez | Shyu | Tubio

Atty. V. Garcia
A: No, the crime committed is murder or
homicide, as the case may be and not
parricide because the relationship between a
brother and another brother is in the collateral line
and not in the direct line.
Q: What if a stepfather killed his stepson?
A: The stepfather is not liable for parricide. It
can either be murder or homicide, as the case
may be, because their relationship is not based on
blood.
Again, the relationship must be
legitimate, in the direct line and by
blood.

In Parricide, the circumstance which will qualify is the


relationship, therefore relationship between the
offender and the offended party must be stated in the
information.
Q: Let us say that the husband killed the wife. In the
information filed by the fiscal, the fiscal failed to state that
the husband is the legal husband of the said victim.
However, during trial, by virtue of a certificate of marriage, it
was proven that the accused was the legal husband of the
said victim-wife. Can the husband be convicted of
parricide?
A: No, the husband cannot be convicted of
parricide. This is because the relationship was
not alleged in the information although proven
during trial. Since the relationship between the
husband and the wife is not alleged in the
information, although proven during trial, he
cannot be convicted of parricide. It can only be
murder or homicide, as the case may be.
Q: What if a husband wanted to kill his wife. So he has a
mistress, the husband wanted to dispose his wife.
However, he cannot do it on his own and so the husband
hired a high-profile killer, he paid the man 100,000 pesos to
kill the wife. And so the man conducted surveillance on the
wife, checked the itinerary of the wife and so when the wife
was getting out of the grocery, here comes the killer. The
killer, on board a motorcycle, went directly to the wife, shot
her and off he went. The wife died. What crime/crimes
is/are committed?
A: The husband is liable for principal but said
killer is liable for murder. Conspiracy will not lie.
Although they conspired for the killing of the wife,
the husband, being the principal by inducement
and the killer, being the principal by direct
participation, conspiracy will not lie. This is
because the circumstance which qualifies
parricide, the relationship, is personal to the
husband and cannot be transferred to a stranger.
That is why there will two informations filed, one is
parricide as against the husband as a principal by
inducement and the other one is murder as
against the killer.
ART 247 DEATH OR PHYSICAL INJURIES INFLICTED
UNDER EXCEPTIONAL CIRCUMSTANCES
ELEMENTS:
1. That a legally married person or a parent
surprises his spouse or his daughter, the latter

Page 86

CRIMINAL LAW REVIEW Book 2 Notes

2.

3.

under 18 years of age and living with him, in the


act of committing sexual intercourse with
another person.
That the said legally married spouse he or she
kills any or both of them or inflicts upon any or
both of them any serious physical injury in the
act or immediately thereafter
That he has not promoted or facilitated the
prostitution of his wife or daughter, or that he or
she has not consented to the infidelity of the
other spouse.

FIRST REQUISITE/ELEMENT:
Under the first element, it is required that the
legally married spouse surprises the other spouse
while in the actual act of sexual intercourse with
another person. So note the surprising must be
in the actual act of sexual intercourse and NOT
before, NOT after.
If you will read the book of Reyes, Justice Laurel,
naghinanakitsya. Sabinya, Why? Why should it
be in the actual act of sexual intercourse, you
already saw your spouse with another man, why
wait for the sexual intercourse? You know it will
happen, why wait for it for Article 247? This is
what Justice Laurel said. But the Supreme Court
said no, the surprising must be in the act of sexual
intercourse with another person. Not before, not
after, not during the preliminaries.
SECOND REQUISITE/ELEMENT:
The second element requires that the said
legally married spouse kills any or both of them
or he inflicts serious physical injuries upon any or
both of them. Again, while in the act of sexual
intercourse or immediately thereafter. There is
no question as to the actual act of sexual
intercourse but what about immediately
thereafter?
What does the phrase immediately thereafter
mean?
The Supreme Court said, immediately
thereafter means there must not be lapse of
time between the surprising and the killing or
infliction of serious physical injuries.
Therefore the surprising and the killing or
infliction of serious physical injuries must be a
continuing process.
Q: What if the husband arrived home and the wife arrived
home from the market. She was about to go the kitchen
when suddenly, she heard voices in the masters bedroom
and so she opened the said masters bedroom and saw her
legal husband in actual sexual intercourse with another
person. Notice that the law says, other person which
means it could be a man or a woman. Upon seeing that,
the wife who still has a knife in the basket, immediately
went towards the husband and stabbed him. The woman
fled. The husband died. Of what crime would you prosecute
the said wife? The wife is liable for parricide under Article
246 for having killed her husband. If you are the counsel of
the said wife, what defense would you put up in order to
free your client from criminal liability?

Dizon | Manalo | Navarez | Shyu | Tubio

Atty. V. Garcia
A: Article 247 or Death under exceptional
circumstances. The Supreme Court said that
Article 247 is not a felony. Article 247 is a
privilege, in fact is it a defense. If Article 247 is
invoked, the accused is free from criminal liability.
It is an absolutory cause, an exempting
circumstance. The Supreme Court said that the
penalty stated therein, destierro, is not really a
penalty on the legally married spouse who killed
the other spouse. It is not a penalty but it is more
of a guard, a privilege for him so that he may be
free from any retaliation of any of the family of the
victim. So destierro here is not really a penalty.
Again, Article 247 is not a felony. It is a defense, a
privilege; it is an exempting circumstance or an
absolutory cause.
PEOPLE v. ABARCA
In this case, there was this student reviewing for the
bar. There were already rumors that his wife was having an
affair. So one time, he went home unannounced. Upon his
arrival, he saw his wife in sexual intercourse with another
man. The man jumped out the window. The husband
wanted to kill the man but he had no weapon at the time.
The man went away. It took the husband an hour before he
was able to find a weapon and upon finding a weapon, he
went directly to the whereabouts of the man, the lover of
the wife and killed the man. It took him one hour. The killing
took place an hour, not in the actual sexual intercourse, but
is it immediately thereafter? Despite the fact that one hour
had lapsed, would it be within the meaning of immediately
thereafter?
The Supreme Court, in this special case, said yes.
According to Supreme Court, when the law uses the
phrase immediately thereafter; that the killing or the
infliction of serious physical injuries must take place
immediately thereafter, the law did not say that the killing
must be done instantly. According to the Supreme Court, it
suffices that the proximate cause for the said killing is the
said pain and the look on the said husband upon chancing
his wife in the basest act of infidelity. This is an exceptional
case.
Why an exceptional case?

Because henceforth, after People v Abarca,


the Supreme Court has already interpreted
immediately thereafter, as there must be no
lapse of time between the surprising and the
killing. The surprising and the killing must be
continuous.
Legal luminaries say that this is an
exceptional case because the husband was
reviewing for the bar which is why he was
given this special _. Because in all other
cases after this, the Supreme Court is strict in
implementing immediately thereafter. The
Supreme Court is strict because this is not a
felony, it is a privilege therefore it must be
strictly interpreted and not liberally interpreted
in favor of the accused.
Look that if the injury inflicted by the legally
married spouse on the lover or the other

Page 87

CRIMINAL LAW REVIEW Book 2 Notes

spouse, is less serious physical injuries or


slight physical injuries, he is totally free from
criminal liability. Liability will only come in if
the other spouse is killed or inflicted with
serious physical injuries.
With regards to the liability of the accused to
the injuries sustained by other people, liable
to physical injuries through negligence, as the
case maybe. There is no intent to kill the
other victims.
Note that the SC ruled that inflicting death
under exceptional circumstances is NOT
murder.

ART 248 MURDER


ELEMENTS:
1. That a person was killed
2. That the accused killed him
3. That the killing was attended by any of the qualifying
circumstances mentioned in Article 248
4. That the killing is not parricide or infanticide

Murder is committed by any person who shall kill


another person which will not amount to parricide or
infanticide and the killing is attended by the following
qualifying circumstances:
1. Treachery, taking advantage of superior
strength, with the aid of armed men, or
employing means to weaken the defense, or
of means or persons to insure or afford
mutiny.
2. In consideration of price, reward or promise
3. By means of inundation, fire, poison,
explosion, shipwreck, stranding of a vessel,
derailment or assault upon a railroad, fall of
an airship, by means of motor vehicles, or
with the use of any other means involving
great waste and ruin.
4. On occasion of any calamities enumerated
in the preceding paragraph, or of an
earthquake, eruption of a volcano, destructive
cyclone, epidemic, or any other public
calamities.
5. With evident premeditation.
6. With cruelty, by deliberately and inhumanly
augmenting the suffering of the victim or
outraging or scoffing at his person or
corpse (RA 7659)

Atty. V. Garcia
circumstances but as mere generic aggravating
circumstances.
ART 249 HOMICIDE
ELEMENTS:
1. That a person was killed
2. That the accused killed him without any justifying
circumstance
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.
When a person kills another person, and it is not
attended by any qualifying circumstance under Article
248, the killing is considered as Homicide under Article
249.
ART 250 PENALTY FOR FRUSTRATED
ATTEMPTED PARRICIDE, MURDER OR HOMICIDE

ART 251 DEATH CAUSED IN A TUMULTOUS AFFRAY


What is a tumultuous affray?
A tumultuous affray is a commotion, wherein
people fight in a tumultuous or confused manner
such that it cannot be ascertained or determined
who has killed the victim or who has inflicted
physical injuries on the victim.
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.

Article 251, death in a tumultuous affray, is committed


when there are several persons who do not compose
groups which have been organized to assault and
quarrel with one another reciprocally, assaulted and
attacked each other reciprocally and in the course of
the affray, someone is killed. And it cannot be
ascertained or identified or determined who killed the
victim, then the person who inflicted serious physical
injuries or those who used violence against the said
victim can be identified.

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


can be someone from the affray, he can be a mere
passerby, he can be just someone watching the affray,
so long as he is killed in the affray and it cannot be
ascertained who killed him, then the person who
inflicted serious physical injuries on him is liable if he
can be identified. If this person cannot be identified,

These are the qualifying circumstances for murder


(See Article 14-aggravating circumstances, Book
I) Know the elements in Article 14.
All of these are aggravating circumstance under
Article 14. Note, in order to qualify a killing to
murder, only one is necessary.

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


treachery, in consideration of a price, reward or
promise, by means of a motor vehicle, so there are
three qualifying circumstances. Only one will suffice to
qualify the murder to killing, all the other aggravating
circumstances will be considered not as qualifying

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OR

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Atty. V. Garcia

then the person who used any kind of violence against


him shall be criminally liable.
ART 252 PHYSICAL INJURIES INFLICTED IN
TUMULTUOUS AFFRAY
ELEMENTS:
1. That there is a tumultuous affray
2. That a participant or some participants thereof suffer
serious physical injuries or physical injuries of a
less serious nature only.
3. That the person responsible thereof cannot be
identified
4. That all those who appear to have used violence
upon the person of the offended party are known.

Note that the victim here must be a participant. The


law is specific. The participants must be the one
injured with serious physical injuries or less serious
physical injuries. Not slight physical injuries.

Article 252, we have physical injuries inflicted in


tumultuous affray, is committed when in a tumultuous
affray, a participant has suffered serious physical
injuries or less serious physical injuries and it cannot
be ascertained who inflicted these injuries but the
person who used violence on the victim can be
identified or determined.
If the injury caused to the victim is only slight physical
injuries, then no one is liable because if a person
engaged in a tumultuous affray or participated therein,
the law presumes that it is __ therefore no one is liable
if the injuries sustained is only slight physical injury
and it cannot be determined who inflicted the said
slight physical injury on the victim.

Q: There was this tumultuous affray, several people were


attacking and fighting each other. Suddenly, here comes a
balot vendor. He saw the affray. He was just there,
watching, suddenly he fell on the ground. He died because
of a stab wound. Now, it cannot be ascertained who
stabbed him, so no one saw who stabbed him. Who will be
held criminally liable?
A: Any person who inflicted serious physical
injuries on him. No one has seen also who had
inflicted serious physical injuries against him. The
any person who inflicted any violence against
him shall be criminally liable.
Q: There was this tumultuous affray, several people were
attacking and fighting each other. Suddenly, here comes a
balot vendor who saw the affray and he was just there,
watching. While he was watching the affray, one of the
participants of the affray, X, saw him and went directly to
the balot vendor and stabbed him twice. The balot vendor
died. What crime is committed? Is it under Article 251,
Death in tumultuous affray?
A: No. It is murder or homicide as the case
may be. This is because the perpetrator of the
crime is identified, ascertained or determined.
Death in a tumultuous affray under Article 251 can
only be charged if the actual perpetrator of the

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crime who killed the victim cannot be ascertained


or identified.
ART 253 GIVING ASSISTANCE TO SUICIDE
TWO ACTS PUNISHABLE:
I.By assisting another to commit suicide, whether the
suicide is consummated or not; or
II.By lending assistance to another to commit suicide to
the extent of doing the killing himself.

Giving assistance to suicide binigyan mong rope;


binigyan mo ng poison.
A friend wanted to commit suicide, he doesnt know
the way, the means and you agreed with him, you
assisted and gave the best poison in the world. So you
assisted the said friend in committing suicide. Note
that if a person assisted in committing suicide by giving
him poison, the initiative must come from him. The
desire to kill himself must come from the victim. He
wanted to commit suicide and you merely provide
assistance in the commission of suicide.
B wanted to commit suicide, here comes A, A gave
assistance to B but B survived. B did not die. Only A is
criminally liable because suicide or attempt to commit
suicide is not a felony within Philippine jurisdiction. It is
only the one who assisted to commit suicide is
criminally liable but not the person who attempted to
commit suicide.

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


lying in bed, almost lifeless and it was only a machine that
was giving life to his body. Now, the mother of the patient
and she took pity of her son because the son was
agonizing and was only breathing through the said
machine. The mother wanted to finish the suffering of the
son and at the time she visited the hospital, she turned off
the machine and the son died. He killed her son out of
mercy. So it is mercy-killing or euthanasia. Is the mother
liable for giving assistance to suicide?
A: No because the initiative to kill did not come
from the sai person who was ill. The crime
committed by the mother is parricide for killing
her son. If it were other person, it was murder.
Evidently, it was murder because there was
evident premeditation; there was thinking before
doing the act of mercy-killing.
ART 254 DISCHARGE OF FIREARMS/ ILLEGAL
DISCHARGE OF FIREARMS
ELEMENTS:
1. That the offender discharges a firearm against or at
another person
2. That the offender has no intention to kill that person
Q: What if there was this park. The park was full of people
and then suddenly, here comes X, X went to the park, put
out his firearm, and he fired shots in the air. What crime is
committed?
A: X committed Alarms and Scandals under
Article 155. When he fired shots in the air, his
intention was to cause disturbance of public peace
and tranquility. The firearm was not aimed towards
any person.

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CRIMINAL LAW REVIEW Book 2 Notes


Q: What if X went to a public place full of people. X saw his
enemy, Y, and so to threaten Y, X pulled out his firearm,
aimed the firearm at Y in order to threaten him. X
discharges the firearm, however, with no intention to kill Y.
His only intention is to threaten Y and Y was not killed.
What crime is committed?
A: The crime committed is Article 254, Illegal
Discharge of Firearms. Illegal discharge of
firearms is committed by any person who aims
and discharges the firearm to any other person
absent the intent to kill the said person. The
purpose is merely to threaten the said person.
Q: What if in the same public place, X went there and
pulled out his firearm because he saw his enemy, Y. He
aimed the gun at Y with intent to kill, because he wanted to
kill his enemy. However, Y saw it and was able to avoid.
What crime is committed?
A: X committed attempted homicide or murder,
as the case may be. Although Y was not hit, the
fact that the said firearm was discharged with
intent to kill, it is already attempted homicide or
murder, as the case may be.
Q: What if in the said merry-making, there were so many
people. X went there. He saw his enemy Y and went
directly to Y, took out his gun and he poked the gun without
discharging. What crime is committed?
A: The crime committed is other light threats.
So here, threatening another with a gun, without
discharging, only poking. It is other light threats. It
is not grave threats, it is not light threats. It is only
other light threats, arrestomenor.

So kapag discharge, pinutok it could either be alarms


and scandals, illegal discharge of firearms or
attempted or frustrated murder or homicide, as the
case may be.
If no discharging, only poking, or threatening with a
firearm, it is only other light threats

ARTICLE 255 INFANTICIDE


Infanticide is the killing of a child less than three
(3) days old or less than seventy-two (72) hours. So in the
case of infanticide, it is the age of the victim that is
controlling. The victim, the child, the infant, must be less
than three (3) days old. He must be less than seventy-two
hours. If it is only three (3) days old or above it is any other
crime but not infanticide.
Who is the offender in Infanticide?
The offender can be the parents, the mother, the
father, the grandparents or it can be any other person so
long as the child is less than three (3) days old, it is
infanticide. It is the age that is controlling, not the
relationship.
ILLUSTRATION:
Q: So what if there was this woman and this woman gave
birth to a child. After giving birth to the child while the child
was only a day old, she already wanted to kill the child in
order to conceal her dishonor. However, she could not kill

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Atty. V. Garcia
the child by herself and so she asked a favor from a friend.
And so the friend arrived and both the mother and the said
friend killed the child, a day old, by suffocating the said
child with a big pillow. The child less than three days old,
died. What crime/s is/are committed?
A: The mother is liable for infanticide. The
said stranger friend is also liable for
infanticide. There was conspiracy on them. This
time conspiracy on life, both of them are liable for
infanticide under only one information. Isang
information langsa court and that is infanticide.
Both the mother and the friend are conspirators of
infanticide.
Now let us say that the mother is convicted. If the
mother is convicted, the penalty imposed by the law as
provided in Article 255 is equivalent to parricide which is
reclusion perpetua to death. On the other hand, if the
stranger is convicted under Article 255, the penalty to be
imposed is equivalent to murder therefore, also reclusion
perpetua to death. But note the charge is that he is guilty
of infanticide.
The fact that the said mother killed the child, less
than three days old, in order to conceal dishonorwill
mitigate the criminal liability of the mother. NOTE:The
penalty will be lowered not by one, but by two degrees,
from reclusion perpetua to death, the penalty of the mother
will only now become prision mayor.
Q: What if let us say that the killer of the less than three
day old child is the maternal grandparents. The
grandparents conspired in the killing in order to conceal the
dishonor of their daughter. What is the effect of the
concealment of the dishonor?
A: The concealment of the dishonor will also
mitigate the criminal liability of the maternal
grandparents that is one degree lower. So sa
mother, two degrees lower, from reclusion
perpetua to death magigingprision mayor. Sa
maternal grandparents one degree lower lang,
from reclusion perpetua to death it will now
become reclusion temporal.
Whatever it is,
concealment of dishonor is akin to a privilege
mitigating circumstance because the lowering of
the penalty is not merely by periods but by
degrees. So it is akin to a privilege mitigating
circumstance.
Q: So what if in the same problem I gave, the woman gave
birth to the child and wanted to kill the child but this time
the infant is already three days old and the child was killed
by the said mother and the friend. What are the crimes
committed?
A:
The mother is liable for
parricidewhile the stranger/friend is liable for
murder. And this time no amount of concealment
of dishonor will mitigate the criminal liability of the
mother. So there lies a difference between
parricide and infanticide if the offender is the
parent or the mother of the child.
JUST REMEMBER: If the child is less than three days old
or less than 72 hours, IT IS INFANTICIDE. It is the age
that controls. If the child is three days old and above,

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CRIMINAL LAW REVIEW Book 2 Notes


PARRICIDE OR MURDER, as the case may be. It is
obvious murder because a three day old child or infant is
totally defenseless.
ARTICLE 256, 257, 258 AND 259 ARE ALL ABOUT
ABORTION
ARTICLE 256 INTENTIONAL ABORTION
ARTICLE 257 UNINTENTIONAL ABORTION
ARTICLE 258 ABORTION PRACTICED BY THE
WOMAN HERSELF OR BY HER PARENTS
ARTICLE 259 - ABORTION PRACTICED BY A
PHYSICIAN OR MIDWIFE AND DISPENSING OF
ABORTIVES
Note that there are four (4) articles on abortion but there
are only two (2) type of abortion:
1.) INTENTIONAL ABORTION
2.) UNINTENTIONAL ABORTION
Because the abortion practiced by the woman herself or
the mother and the abortion practiced by a physician or
midwife are all intentional abortion. So in effect, we only
have to kinds of abortion. We have intentional abortion and
unintentional abortion.
ABORTION is the willful killing of a fetus from the
mothers womb or the violent expulsion of a fetus from the
maternal womb which results in the death of the fetus.
INTENTION ABORTION is committed in three (3) ways:
1.) By using violence upon the person of the pregnant
woman resulting to abortion.
2.) Without violence, by acting without violence,
without the consent of the woman by
administering aborting drugs or beverages without
the consent of the pregnant woman.
3.) By acting without violence, with the consent of the
pregnant woman that is by administering aborting
drugs or beverages to a pregnant woman this time
with her consent.
UNINTENTIONAL ABORTION can only be committed in
one (1) way and that is by exerting physical violence on a
pregnant woman. And in result thereof, an unintentional
abortion was suffered.
In unintentional abortion the force employed was
physically exerted on a pregnant woman. The intention of
the offender is not against the baby or the fetus but against
the mother. His intention is against the mother but in so
doing, since the mother is pregnant, the baby/fetus was
also aborted. So abortion was unintentionally caused.
ILLUSTRATION:
Q: So what if there were two college students, a boyfriend
and girlfriend. The girlfriend became pregnant and the
boyfriend said, I am not yet ready. We are still so young so
I cannot marry you. And so by reason thereof the girlfriend
said, how about my situation? I am already pregnant. And
so by reason thereof, they both decided in order to conceal
the dishonor of the said female student, they both decided
to abort the fetus. So what the boyfriend did was he went to
the sidewalks of Quiapo and bought there aborting
beverages and he administered the same to the said
woman. And the female student drank the aborting

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Atty. V. Garcia
beverage and the fetus died.
What crime/s is/are
committed?
A: In so far as the boyfriend is concerned, the
crime committed is intentional abortion under
Article 256. In so far as the said female student is
concerned, the crime committed is also intentional
abortion but it is under Article 258 Abortion
practiced by the woman herself or by her parents.
So, both of them are liable for intentional abortion.
Q: But what if despite the fact that the female student had
already taken or drank the abortive beverage still the fetus
survived? Malakasangkapitngbatasa maternal womb. What
crime is committed if any by the boyfriend and the
girlfriend? Is there a crime such as frustrated intentional
abortion?
A: YES. There is a crime such as frustrated
intentional abortion. Here, the said woman has
already taken the said abortive beverage. He has
already performed all the acts necessary to
consume the crime of abortion however, abortion
did not result because of causes independent of
their will.
Malakasangkapitngbatasa maternal
womb and so the baby survived. And so, they are
both liable for frustrated intentional abortion.
IS THERE A CRIME SUCH AS FRUSTRATED
UNINTENTIONAL ABORTION?
NO. This time there is no crime such as
frustrated unintentional abortion.
Because in
unintentional abortion, the intention is against the
woman and abortion only happens unintentional.
ILLUSTRATION:
Q: So lets say a man exerted physical violence against the
woman who happens to be his enemy. The said woman
was severely hurt however, the baby was not hurt. The
fetus inside the tummy did not die. What is the crime
committed by the said man?
A: Only serious physical Injuries against the
woman. No crimes against the fetus because there
was no intent in so far as the fetus is concerned.
Q: But what if in the said problem, the man inflicted
violence on the pregnant woman who happens to be his
enemy. Lets say he kicked and moved the said woman
severely and by reason thereof the pregnant woman was
1:44:17. What crime/s is/are committed?
A: The crime committed against the woman is
serious physical injuries. As against the fetus,
the crime committed is unintentional abortion.
Now, it resulted from one single act therefore it will
result to a complex crime of SERIOUS PHYSICAL
INJURIES WITH UNINTENTIONAL ABORTION
under ARTICLE 48 OF BOOK 1. It is a complex
crime. It is a single act resulting to two less grave
felonies.
Q: What if a husband arrived home at 5 oclock in the
morning. He saw his wife looking at the children and is
making breakfast. Suddenly the cellphone of the wife rang,
the pregnant wife answered the cellphone and she began
giggling. When she began giggling, the husband took the

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CRIMINAL LAW REVIEW Book 2 Notes


cellphone from the said wife and listened to the cellphone.
He heard a voice of a man on the other line of the
cellphone. Since he heard the voice of the man and he just
arrived from work, he became jealous and with the use of a
knife he stabbed the wife. The wife died and the fetus died.
What crime/s is/are committed?
A: In so far as the wife is concerned, the crime
committed is parricide. In so far as the baby is
concerned,
the
crime
committed
is
unintentional abortion. Again, it resulted from
one single act of stabbing the wife therefore it will
give rise to a COMPLEX CRIME OF PARRICIDE
WITH UNINTENTIONAL ABORTION. There is a
crime against the wife which is parricide and
against the fetus which is unintentional abortion
resulting from a single act therefore, it is parricide
with unintentional abortion.
ARTICLE 259 - ABORTION PRACTICED BY A
PHYSICIAN OR MIDWIFE AND DISPENSING OF
ABORTIVES
UNDER ARTICLE 259, there is another act punished and
that is dispensing of abortives. Dispensing of abortives is
committed by a pharmacist who shall dispense an abortive
without a prescription from a physician. The mere act of
dispensing the said abortives without prescription from a
physician will hold the said pharmacist criminally liable.
ARTICLE 260 - DUEL
ARTICLE 261 CHALLENGING TO A DUEL
What is a duel?
A duel is a combat with deadly weapons
concerted between two or more persons who have decided
or agreed to fight.
ELEMENTS OF A DUEL:
1.) It is necessary that the offenders that there was
an agreement to engage in combat or in a fight.
2.) There must be two or more seconds for each
combatant.
3.) The firearms or the arms to be used as well as the
other terms of the combat must be agreed upon
by the said seconds.
Under Article 260 - Duel, there are three acts punished in
a duel:
1.) By killing ones adversary in a duel.
2.) By inflicting physical injuries upon ones
adversary.
3.) By making a combat by merely entering into a
duel.
So under Article 260, the persons who are liable are the
combatants and adversaries, those who engage in a duel
and yungkanilangalalay, yung seconds.
Under Article 261- Challenging to a duel, there are also
three acts punished:
1.) By challenging another to a duel.
2.) By inciting another to give or accept a challenge to
a duel.

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Atty. V. Garcia
3.) By scoffing at or decrying another publicly for
having refused to accept a challenge to fight a
duel.
Under Article 261, the persons criminally liable are both the
challenger and the instigator.
NOTE that if it is not a duel or there is no agreement to
combat or to fight, lets say there was no agreement
between A and B to fight and yet they fought and B died,
the crime committed is HOMICIDE because Article 260 and
261 only applies if there is an agreement to fight, to a duel
or a combat.
CRIMES OF PHYSICAL INJURIES:
ARTICLE 262 MUTILATION
Mutilation is the clipping off or chopping off of a
particular part of a body which is not susceptible to grow
again.
Two kinds of mutilation:
1.) By intentionally depriving another of a part of his
body which is an essential part for reproduction.
2.) By intentionally committing other mutilation that is,
by depriving him of any other part of his body with
intent to deprive him of such part of his body.
Under the first kind, that is mutilating an organ
essential for reproduction, is otherwise known as
CASTRATION. You will know that the penalty is even
higher than homicide. Killing a person is only punishable
by reclusion perpetua while castrating a person is
punishable by reclusion temporal to reclusion perpetua.
Because if you are castrated it is as if you are already
killed. Thats why it has a higher penalty.
Mutilation is a felony which cannot be committed
out of imprudence or negligence. Because the
law requires that there must be the deliberate
intent to mutilate, the deliberate intent to clip off, to
severe a particular part of the body of a person.
Absent that deliberate intent, any person who
loses a part of his body, it can only be serious
physical injuries but not mutilation. So in mutilation
it is always committed with deliberate intent or
dolo to mutilate. Absent that, it is serious physical
injury.
ILLUSTRATION
Q: Lets say A and B were engaged in a fight, they were
both fighting and A was losing and so he took out his bolo.
His intention was to cut the body of B in order to defeat him
however, B tried to prevent him and placed his hand and by
reason thereof, the right hand of B was severed from his
body. Is the crime committed mutilation?
A: NO. It is not mutilation because there was no
deliberate intent to clip off or to severe the right
hand of B. His intention was to attack or to stab B
and in so doing, it resulted to the loss of an arm
therefore, the CRIME COMMITTED IS SERIOUS
PHYSICAL INJURIES. Physical injuries can either
be serious physical injuries, less serious physical
injuries or slight physical injuries.
PHYSICAL INJURIES is the act of wounding, beating or
assaulting another with no intent to kill. It also involves the
act of knowingly administering injurious beverages or

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CRIMINAL LAW REVIEW Book 2 Notes


substances absent intent to kill. So always there is no
intent to kill in order to amount to physical injuries because
even if the injury is only slight or no injury at all but if there
is intent to kill, it is already in the stage of homicide. So
there must be no intent to kill.
It also includes the act of knowing administering injurious
substances absent intent to kill.
So always, there is no intent to kill in order to amount to
physical injuries.
Because even if the injury is only SLIGHT or no injury at all,
but there is intent7 to kill, it is already in the attempted
stage of Homicide. So there must be no intent to kill.
ARTICLE 263 SERIOUS PHYSICAL INJURIES
Under Art. 263, the serious physical injuries punished
are:

Atty. V. Garcia
IMBECILITY is when a person is already advanced in age,
yet he has only the mind of a 2-7 year old child.
IMPOTENCY includes the inability to copulate or sterility.
BLINDNESS requires loss of vision of both eyes by reason
of the injury inflicted. Mere weakness in vision is not
contemplated.
Under the SECOND CATEGORY:
The offender loses the use of speech or the power to heal
or to smell, or looses an eye, a hand, a foot, an arm or a
leg.
So if it is only an eye which has been lost, it is
serious physical injury but under the Second
Category already. The penalty is lesser than that
of the First Category.
Under the THIRD CIRCUMSTANCE/CATEGORY:

1.

When the injured person becomes insane,


imbecile, impotent, or blind in consequence of the
physical injuries inflicted.
2. When the injured person:
a. Loses the use of speech or the
power to heal or to smell, or looses
an eye, a hand, a foot, an arm or a
leg; or
b. Loses the use of any such member,
or
c. Becomes incapacitated for the work
in which he was therefore habitually
engaged in the consequence of the
physical injuries inflicted
3. When the injured:
a. Becomes deformed
b. Loses any other member of his
body; or
c. Becomes ill or incapacitated for the
performance of the work in which he
was habitually engaged for more
than 90 days, in consequence of the
physical injuries inflicted
4. When the injured person becomes ill or
incapacitated for labor for more that 30 days (but
must not be more than 90 days), as a result of the
physical injuries inflicted.
Note: All of this, all of the enumeration mentioned in Art.
263 are already considered serious physical injury. If a
person becomes ill or incapacitated for more than 30 days,
it is already serious physical injuries. It is already divided
into categories for purposes of penalty. Because they differ
in penalty. But the moment the said person, by reason of
the said injury becomes ill or incapacitated for labor for
more than 30 days, it is already, serious physical injury.

When the offender becomes DEFORMED.


So what is this so-called DEFORMITY which will result in
serious physical injury?
Q: A hacked B with the use of a bolo on his stomach. So
there was a big mark on his stomach despite the fact that it
was already healed, there was a big scar on the said
stomach. The doctor said that the said injury requires
medical treatment for 2 weeks. What crime is committed?
Is it serious physical injury or is it less serious physical
injury?
A: The crime committed is only LESS SERIOUS
PHYSICAL INJURY. There was no deformity.
Although there was a big scar on the stomach, it
would not amount to deformity. An injury in order
to amount to deformity which would bring about
serious physical injury must result to a physical
ugliness on a person. There are 3 requisites befor
deformity may be considered as a serious physical
injury:
1.
2.

3.

There must be physical ugliness produced on


a body of a person
The said deformity should be permanent and
definite abnormality and it would not heal
through the natural healing process
The said deformity must be located in a
conspicuous and visible place

EXAMPLE OF The said deformity should be permanent


and definite abnormality and it would not heal through the
natural healing process:

So the FIRST CATEGORYis, that the injured person


becomes INSANE.

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


crime was committed?

INSANITY refers to a mental disease by reason thereof a


person can no longer appreciate the consequences of his
act.

A: The crime committed was SERIOUS


PHYSICAL INJURY. Because it is a deformity
even if the doctor says that he can still replace it,

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CRIMINAL LAW REVIEW Book 2 Notes


the fact still remains that it cannot be healed
through a natural healing process.

Atty. V. Garcia
10-30 days. So the requirement of medical attendance or
his incapacity to do his work for a period of 10-30 days, it
will bring about less serious physical injury.

A boxed B, A lost a molar tooth.


A: The crime committed will LESS SERIOUS OR
SLIGHT PHYSICAL INJURIES depending on the
medical attendance. Because it cannot be seen. It
is not located in a visible or conspicuous place.

Q: What circumstances will QUALIFY LESS SERIOUS


PHYSICAL INJURIES?
1.
2.

A poured muriatic acid on the face of another person whom


he hates and so because of that, the face of that person
becomes deformed, it became ugly. Later, she went on a
plastic surgeon. When he got out of the plastic surgery
clinic, she now looks like Vilma Santos. Is the accused
person liable for serious physical injuries?
A: Yes. Even if she became prettier than before, it
is still a fact that by reason of the said injury it
cannot be healed through the natural healing
process. It will require the attendance of medical
surgeon. Therefore, it is considered as a
deformity.
If the said physical ugliness is not located on a visible or
conspicuous place, it would be depending on the
deployment of medical attendance.
Q: When is serious physical injuries qualified?
A: Serious physical injuries is qualified:
1. If it is committed against any of the persons
enumerated in Parricide. That is when serious
physical injuries is committed against the
father, mother, child, whether legitimate or
illegitimate; legitimate other ascendant or
other descendant and legitimate spouse of
the accused.
2. If in the infliction of serious physical injuries, it
is attended by any of the qualifying
circumstances for murder. That is, if it is done
with treachery, evident premeditation, the
crime committed is qualified serious physical
injuries.
ARTICLE
264
ADMINISTERING
SUBSTANCE OR BEVERAGES

INJURIOUS

ELEMENTS:
1. The offender inflicted serious physical injuries
upon another
2. It was done by knowingly administering to him any
injurious substances or beverages or by taking
advantage of his weakness of mind or cruelty
3. He had no intent to kill

3.
4.

When there is manifest intent to insult or offend


the injured person
When there are circumstances adding ignominy to
the offense
When the victim is the offenders parents,
ascendants, guardians, curators, or teachers
When the victim is a person of rank or person in
authority, provided the crime is not direct assault

So the crime committed here, with the attendance of these


circumstances qualify less serious physical injuries.
ARTICLE 266 SLIGHT PHYSICAL INJURIES AND
MALTREATMENT
3 KINDS OF SERIOUS PHYSICAL INJURIES AND
MALTREATMENT:
1. Physical injuries which incapacitated the offended
party for labor from 1 to 9 days, or required
medical attendance during the same period
2. Physical injuries which did not prevent the
offended party from engaging in his habitual work
or which did not require medical attendance
3. Ill-treatment of another by deed without causing
any injury
Maltreatment of another by deed without causing any injury
is the act of INFLICTING PAIN ON ANOTHER PERSON
WITHOUT CAUSING ANY WOUND OR INJURY.
CASE: PEOPLE VS MAPALO (in Book I)
Let us say that A was walking. Here comes B. B
used a lead pipe, he went to A and hit the head of A with a
lead pipe. Thereafter, he ran away. The medical certificate
showed that the head of A did not sustain any injury. He
was charged with wttempted homicide. Supreme Court
said, the crime committed is ILL-TREATMENT OF
ANOTHER BY DEED, a form of slight physical injury under
Art. 266.
According to the Supreme Court, there was pain
inflicted on A, but there was no injury and there was no
intent to kill because the said offender immediately ran
away after hitting him a single time. So the crime committed
is MALTREATMENT OF ANOTHER PARTY.
ARTICLE 266-A RAPE

ARTICLE 265 LESS SERIOUS PHYSICAL INJURIES


LESS SERIOUS PHYSICAL INJURIES is
committed if by reason of the injury inflicted, the offended
party requires medical attendance or he cannot perform
the work with which he is habitually engaged for a period of

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RAPE is now a crime against person; it is no


longer a crime against chastity. Because of the amendment
brought about by RA 8353 THE ANTI-RAPE LAW.
2 TYPES OF RAPE/HOW RAPE IS COMMITTED:

Page 94

CRIMINAL LAW REVIEW Book 2 Notes


1.
2.

By a man who shall have carnal knowledge of a


woman
Sexual Assault

There is RAPE BY CARNAL KNOWLEDGE when a man


has carnal knowledge of a woman against her will.
ELEMENTS OF A RAPE BY A MAN WHO SHALL HAVE
CARNAL KNOWLEDGE OF A WOMAN :
1. Offender is a man
2. Offender had carnal knowledge of the woman
against her will
3. Such act is accomplished under any of the
following circumstance:
a. Through force, threat, or intimidation
b. When the offended party is deprived of
reason or is otherwise unconscious
c. By means of fraudulent machination or grave
abuse of authority
d. When the offended party is under 12 years of
age or is demented, even though the
circumstances mentioned above be present
FIRST - OFFENDER IS A MAN
So in rape by carnal knowledge, who is the offender? A
MAN.
Who is the offendeaprty? A WOMAN.
The law is SPECIFIC.

Atty. V. Garcia
Q: What if, so the law requires that the said act of carnal
knowledge must be with the use of force, threat, or
intimidation, a father raped his daughter. The daughter did
not put up a fight, the father did not use force, threat, or
intimidation in the said carnal knowledge of a daughter. Is
the crime committed rape?
A: Yes. The crime committed is rape. It is
INCESTUOUS RAPE. In case of incestuous rape,
it is the overpowering and overbearing moral
influence or moral ascendency of an ascendant
over a descendant which takes place of force,
threat, or intimidation. That is why in case of
inceuous rape, force, threat, or intimidation is not
indispensable; it is not necessary. Because it is
the overpowering and overbearing moral influence
or moral ascendency which a father has over his
daughter which takes place of force, threat or
intimidation.
Q: What if A and B are lovers and then suddenly B filed a
case against A because according to B, he was raped by
her boyfriend. In the course of the trial of the case, the
defense of the man was the so-called, sweetheart defense
theory. According to him, We are sweet lovers. Therefore
according to him, it is impossible for him to have raped her
because we are sweet lovers. Will said sweetheart defense
theory lie in his favor?

SECOND - OFFENDER HAD CARNAL KNOWLEDGE


OF THE WOMAN AGAINST HER WILL"
The offender has carnal knowledge of a woman against her
will and it is committed by using force, threat, or
intimidation. When the offended party is deprived of reason
or otherwise unconscious.

A: Supreme Court said, in case of sweetheart


defense theory, for it to lie, mere oral testimonty
will not suffice. There must be documentary
evidence, memorabilia, picture, love letters, etc.
which would show that indeed they are
sweethearts boyfriend & girlfriend or lovers. But
mind you, even the Supreme Court said this, there
was not a case wherein the sweetheart defense
theory has acquitted a man.

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


carnal knowledge of the said woman. Is it rape by carnal
knowledge?
A: Yes. The Supreme Court said that the woman
who is sleeping is unconscious.
Q: What if the woman is half asleep when the carnal
knowledge was done by the said man? Is it still rape?
A: Yes, said by the Supreme Court. The woman
was unconscious.
THIRD:
A is 11 years old. He is cohabiting with a man who is 20
years old. They are luvingtgether as if they are husband
and wife. Of course, they had carnal knowledge. The man
is liable for STATUTORY RAPE. The number of times that
he had carnal knowledge of the said woman, that is the
number of the counts of rape. So if he had carnal
knowledge of the woman 5 times during the time that they
were together 5 counts of statutory rape. That is because
the child, the victim, is below 12 years of age. Insofar as
criminal law is concerned, she does not have a mind of her
own, she cannot give a valid consent.

Therefore, under any all circumstances which involves the


sweetheart defense theory will not lie in favor of a man.
Because it does not mean that when you are the
sweetheart, you can no longer rape the other person.
In Book I, there is no such thing as FRUSTRATED RAPE.
Rape admits only 2 stages: ATTEMPTED RAPE and
CONSUMMATED RAPE.
The reason is that a mere touch of an erected penis on the
labia or lips of a womans genitalia will already
consummate rape.
It is not necessary that there be deep or complete
penetration. It is not necessary that the vagina did
lacerated. Mere touch of the lips or the labia of a womans
genitalia already consummates rape.
Q: What if, what the erectile penis has touched was the
outer portion of genitalia, that portion which became hairy
during puberty, you have to distinguish whether it is acts of
lasciviousness or attempted rape.
A:

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Page 95

CRIMINAL LAW REVIEW Book 2 Notes

Atty. V. Garcia

CASE: PEOPLE VS JALOSJOS


If when an erectile penis has touched the outer
portion of a womans genitalia which becomes
hairy during puberty, if the intention of the said
offender is to lie, to have carnal knowledge
against the said woman, it is attempted rape. But
if in doing so, the said man has no intention to lie
or to have carnal knowledge, that is only ACTS
OF LASCIVIOUSNESS.
What about the other form of Rape RAPE BY SEXUAL
ASSAULT
ELEMENTS:
1. Offender commits an act of sexual assault
2. The act of sexual assault is committed by any of
the following means
a. By inserting his penis into another persons
mouth or anal orifice, or
b. By inserting any instrument or object into the
genital or anal orifice of another person
3. The act of sexual assault is accomplished under
any of the following circumstances:
a. By using force or intimidation
b. When the woman is deprived of reason or
otherwise unconscious, or
c. By means of fraudulent machination or grave
abused of authority
d. When the woman is under 12 years of age or
demented
*So what if what has been inserted is the penis inside the
mouth or the anal orifice, before that would only amount to
acts of lasciviousness - before the passage of RA 8353.
*The law says that it must be an instrument or object which
was inserted in the genitalia or in the anal orifice of another
person.
Q: What if it was the finger which was inserted in the
genitalia of a person? Is it acts of lasciviousness or rape by
sexual assault?
A: Supreme Court said it is RAPE BY SEXUAL
ASSAULT. According to the Supreme Court, it
would be so weird if what has been inserted is an
instrument or object, it would be rape by sexual
assault, but if it was finger, it would be rape by
acts of lasciviousness. The finger is within the
mean of an instrument or object insofar as rape by
sexual assault is concerned.
Q: In case of RAPE, what are the circumstances which will
qualify the penalty?
A: In case of RAPE BY SEXUAL ASSAULT, the
penalty is only PRISION MAYOR. It is a bailable
offense.
If it is a RAPE BY CARNAL KNOWLEDGE, note
that the penalty is RECLUSION PERPETUA. It is
a non-bailable offense

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


a penalty qualified?
A: Reclusion Perpetua to Death:
1. When rape is committed with the use of a
deadly weapon
2. When rape is committed by two or more
persons
3. When by reason or on occasion of rape, the
victim becomes insane
4. When rape is attempted and homicide is
committed
Q: What are the instances wherein the penalty to be
imposed is the capital punishment of death, so the extreme
penalty of death?
1.

When by reason or on the occasion of rape,


homicide is committed
2. When the victim is under 18 years of age and the
offender is a parent, ascendant, step-parent,
guardian, relative by consanguinity or affinity
within the 3rd civil degree, or the common law
spouse of the victim
3. When the victim is under the custody of the police
or military authorities or any penal institution
4. When the rape is committed in full view of the
spouse, the parent, any of the children of the
relative by consanguinity within the 3rd civil degree
5. When the victim is a religious and gauged in
legitimate religious calling or vocation and he
known to be such by the offender before or during
the commission of the rape
6. When the victim of the rape is below 7 years of
age
7. When the said offender knows that he has been
afflicted with HIV virus or AIDS or any other
sexually transmissible disease and the virus of the
disease is transmitted to the victim
8. When the said offender is a member of the AFP or
parliamentary units, the PNP or any other member
of the law enforcement agency who took
advantage of his position in order to facilitate the
commission of the crime
9. By reason or on the occasion of rape, the said
victim suffered permanent physical mutilation or
disability
10. When the offender knew that the offended party or
victim is pregnant at the time of the commission of
rape
11. When the offender knew of the mental disability,
emotional disorder and/or physical handicap of the
offended party at the time of the commission of
the crime
The presence of any of these circumstances will bring
about the imposition of the maximum penalty of death.
However, death is lifted because of RA 9346 which
prohibits the imposition of death penalty.

Page 96

CRIMINAL LAW REVIEW Book 2 Notes


In case of rape, PARDON will not extinguish the criminal
liability of the offender. According to Art. 266, pardon will
not extinguish the criminal liability of the offender. It is only
through:
1. The offended woman may pardon the offender
through a subsequent valid marriage, the effect of
which would be the extinction of the offenders
liability
2. The legal husband maybe pardoned by
forgiveness of the wife provided that the marriage
is not void ab initio
EXCEPTION: In case of MARITAL RAPE. If the legal wife
has forgiven or pardoned the legal husband.
Q: When is there PRESUMPTION OF RESISTANCE?
A: If in the course of the commission of rape, the
said offended party has performed any acts in any
degree amounting to resistance of rape or when
the said offended party cannot give a valid
consent.
VIOLENCE AGAINST WOMEN AND THEIR CHILDREN
ACT (VAWC) R.A. 9262

Violence against women and their children


- refers to any act or a series of acts committed by

any person against a woman who is his wife,


former wife, or against a woman with whom the
person has or had a sexual or dating relationship,
or with whom he has a common child, or against
her child whether legitimate or illegitimate, within or
without the family abode, which result in or is likely
to result in physical, sexual, psychological harm or
suffering, or economic abuse including threats of
such acts, battery, assault, coercion, harassment
or arbitrary deprivation of liberty.
Acts consisting violence against women and children:
A. "Physical Violence" refers to acts that include bodily or
physical harm;
B. "Sexual violence" refers to an act which is sexual in
nature, committed against a woman or her child. It
includes, but is not limited to:
a)
rape,
sexual
harassment,
acts
of
lasciviousness, treating a woman or her child as a
sex object, making demeaning and sexually
suggestive remarks, physically attacking the
sexual parts of the victim's body, forcing her/him
to watch obscene publications and indecent
shows or forcing the woman or her child to do
indecent acts and/or make films thereof, forcing
the wife and mistress/lover to live in the conjugal
home or sleep together in the same room with the
abuser;

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Atty. V. Garcia
b) acts causing or attempting to cause the victim
to engage in any sexual activity by force, threat of
force, physical or other harm or threat of physical
or other harm or coercion;
c) Prostituting the woman or child.
C. "Psychological violence" refers to acts or omissions
causing or likely to cause mental or emotional suffering of
the victim such as but not limited to intimidation,
harassment, stalking, damage to property, public ridicule or
humiliation, repeated verbal abuse and mental infidelity. It
includes causing or allowing the victim to witness the
physical, sexual or psychological abuse of a member of the
family to which the victim belongs, or to witness
pornography in any form or to witness abusive injury to
pets or to unlawful or unwanted deprivation of the right to
custody and/or visitation of common children.
D. "Economic abuse" refers to acts that make or attempt to
make a woman financially dependent which includes, but is
not limited to the following:
1. withdrawal of financial support or preventing the
victim from engaging in any legitimate profession,
occupation, business or activity, except in cases
wherein the other spouse/partner objects on valid,
serious and moral grounds as defined in Article 73
of the Family Code;
2. deprivation or threat of deprivation of financial
resources and the right to the use and enjoyment
of the conjugal, community or property owned in
common;
3. destroying household property;
4. controlling the victims' own money or properties
or solely controlling the conjugal money or
properties.
Acts of Violence Against Women and Their Children.- The
crime of violence against women and their children is
committed through any of the following acts:
(a) Causing physical harm to the woman or her
child;
(b) Threatening to cause the woman or her child
physical harm;
(c) Attempting to cause the woman or her child
physical harm;
(d) Placing the woman or her child in fear of
imminent physical harm;
(e) Attempting to compel or compelling the woman
or her child to engage in conduct which the
woman or her child has the right to desist from or
desist from conduct which the woman or her child
has the right to engage in, or attempting to restrict
or restricting the woman's or her child's freedom of
movement or conduct by force or threat of force,
physical or other harm or threat of physical or

Page 97

CRIMINAL LAW REVIEW Book 2 Notes


other harm, or intimidation directed against the
woman or child. This shall include, but not limited
to, the following acts committed with the purpose
or effect of controlling or restricting the woman's or
her child's movement or conduct:
(1) Threatening to deprive or actually
depriving the woman or her child of
custody to her/his family;
(2) Depriving or threatening to deprive
the woman or her children of financial
support legally due her or her family, or
deliberately providing the woman's
children insufficient financial support;
(3) Depriving or threatening to deprive
the woman or her child of a legal right;
(4) Preventing the woman in engaging in
any legitimate profession, occupation,
business or activity or controlling the
victim's own mon4ey or properties, or
solely controlling the conjugal or common
money, or properties;
(f) Inflicting or threatening to inflict physical harm
on oneself for the purpose of controlling her
actions or decisions;
(g) Causing or attempting to cause the woman or
her child to engage in any sexual activity which
does not constitute rape, by force or threat of
force, physical harm, or through intimidation
directed against the woman or her child or her/his
immediate family;
(h) Engaging in purposeful, knowing, or reckless
conduct, personally or through another, that
alarms or causes substantial emotional or
psychological distress to the woman or her child.
This shall include, but not be limited to, the
following acts:
(1) Stalking or following the woman or
her child in public or private places;
(2) Peering in the window or lingering
outside the residence of the woman or
her child;
(3) Entering or remaining in the dwelling
or on the property of the woman or her
child against her/his will;
(4) Destroying the property and personal
belongings or inflicting harm to animals
or pets of the woman or her child; and
(5) Engaging in any form of harassment
or violence;
(i) Causing mental or emotional anguish, public
ridicule or humiliation to the woman or her child,
including, but not limited to, repeated verbal and
emotional abuse, and denial of financial support or
custody of minor children of access to the
woman's child/children.

DATING RELATIONSHIP- refers to a situation wherein the


parties live as husband and wife without the benefit of
marriage or are romantically involved over time and on a
continuing basis during the course of the relationship. A
casual acquaintance or ordinary socialization between two

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Atty. V. Garcia
individuals in a business or social context is not a dating
relationship.
Q: The neighbor was aware of the beatings that the
husband has been doing to his wife so the neighbor who
was a witness to all these beatings filed a case against the
husband. Will the case prosper?
A: Yes because under sec. 25, Violation Against
Women and Children (VAWC) is a public
offense.
Q: When does the crime prescribe?
A: If it involves physical abuse; it shall prescribe
after 20 years. If it involves psychological, sexual,
and economical abuse; it shall prescribe in 10
years.
Q: Lets say the wife filed a case against the husband for
violation of RA 9262; during the presentation of evidence
by the defense, the husband testified that he was always
drunk. He was alcoholic. Thats why he lost temper and
beats the wife. Will such defense mitigate the criminally
guilty husband? Can he use such defense?
A: Under Sec. 27 it cannot be used because
under Sec. 27; the fact that the husband is under
the influence of alcohol, any illicit drug, or any
other mind-alteringsubstance cannot be used as
defense in VAWC therefore; alcoholism and drug
addiction cannot be a defense in VAWC.
Battered Women Syndrome (Sec. 26)
Scientifically defined pattern of psychological
and behavioral symptoms found in the
battering relationship as a result of cumulative
abuse.

Under Sec. 26, it is provided that victim survivors


founded to be suffering from this battered women
syndrome shall be exempted from both criminal
and civil liability notwithstanding the absence of
any of the elements of self-defense.

The court however shall be held by a testimony of


a psychologist or psychiatrist if the woman is
indeed suffering from the so called battered
women syndrome.
ANTI-HAZING LAW R.A. 8049

Q: What is hazing?
A: Hazing is an initiation rite or practice which is
used as an admission into membership in any
fraternity or any other organization wherein the
said recruit/neophyte/applicant is placed under the
an embarrassing or humiliating situations such as
forcing him to do menial, silly, and foolish tasks or
services or subjecting him into psychological or
physical injury or crime.
Q: Is hazing totally prohibited in the Philippines?
A: No. Hazing is not totally prohibited in the
Philippines. Hazing is allowed provided that the
following requisites are present:

Page 98

CRIMINAL LAW REVIEW Book 2 Notes


1.

2.

There must be a prior written notice sent to


the head of the school authorities or the head
of the organization 7 days before the said
initiation rites and this prior written notice shall
contain the following:
a. It shall indicate the date of the said
initiation rites which shall not be more
than 3 days.
b. It shall indicate/state the names of the
neophytes or applicants who will
undergo the said hazing or initiation
rites.
c. It shall contain an undertaking which
states that there shall be no physical
violence employed in any form on
these neophyte recruits or applicants.

Atty. V. Garcia
said: I have no intention to commit so grave a wrong as
that committed. Can such defense be used so as to
mitigate his criminal liability?
A: No such defense is prohibited defense. Under
RA 8049; the defense that such person has no
intention to commit so grave a wrong as that
committed cannot be used by an accused under
RA 8049.

Whenever
a
person
hits
an
applicant/neophyte, he is already performing a
felonious act therefore he shall be held
criminally liable for all the consequences of his
actions. (Art 4 book 1)
In the case of Lenny Villa Hazing; Sereno et.
al. considered Art. 4 wherein they ruled
Reckless Imprudence resulting to homicide.
o (I disagree) In Reckless imprudence,
the said person must be performing an
act which is not felonious but by
reason of negligence or imprudence, a
felony resulted. Therefore, in the case
of Lenny Villa, the ruling shall be
homicide, it shall not be reckless
imprudence.

Upon the receipt of such prior written notice;


the head of the school or organization shall
assign atleast 2 representatives from their
school or organization who must be present
during the time of the said initiation rite or
hazing and these 2 representatives shall see
to it that no amount of physical violence shall
be employed on any person or any neophyte
or recruit or applicant during the said hazing
or initiation rite.

ANTI- CHILD ABUSE ACT R.A. 7610


Q: What if in the course of the said hazing or initiation rite
someone died or suffered physical injuries; who shall be
held criminally liable?
A: If in the course of hazing or initiation rite,
someone died or some suffered any physical
injuries; all of the officers and members of the said
fraternity or organization who are present and who
participated in the said initiation rite shall be
liable as principal.
Q: What if the said initiation rite was conducted or held in a
house of an Aling Nene? Is Aling Nene criminally liable?
A: Aling Nene is liable as an accomplice if
she has knowledge of the conduct of the said
initiation rites and she did not do any act in order
to prevent its occurrence.

If the said initiation rite took place in the


house of a member or an officer of the said
fraternity or sorority; the parents of the said
members or officers shall be held liable not as
an accomplice but as a principal if they have
such knowledge of the said conduct of the
initiation rites and they did not perform any
act inorder to prevent its occurrence.
Q: When is there a prima facie evidence of participation?
A: Any person who is present in the said hazing
or initiation rite shall constitute a prima facie
evidence that there is a participation and shall be
held liable as principal.
Q: What if in the said hazing an officer beat an applicant
and he hit the neck thereby causing the death of the said
neophyte/recruit/applicant and so when prosecuted he

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In so far as RA 7610 is concerned; Children are those:

Below 18 years of age


Above 18 years of age who does not have the
capacity to fully protect themselves against any
abuse, cruelty or maltreatment because of their
physical or mental disability.

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


toy. The mother of A saw B beating A so As mother held B
and gave him a tender slap. However, because B is still a
child, his face became reddish. Based in the medical
certificate, it showed that the said act of slapping was the
cause of the injury sustained by B that made his face
reddish. What crime was committed by the mother of A? Is
the mother liable for Child abuse or is the mother liable for
slight physical injuries?
A: The mother of A is liable for slight physical
injuries only and not for violation of RA 7610.
Q: What do you mean by Child Abuse?
A: Child abuse refers to the maltreatment,
whether habitual or not, of the child which includes
any of the following:

Physical or psychological abuse, neglect,


cruelty, sexual abuse and emotional
maltreatment;
Any act by deeds or words which debases,
degrades or demean the intrinsic worth and
dignity of a child as a human being.

Page 99

CRIMINAL LAW REVIEW Book 2 Notes

Unreasonable deprivation of his basic needs


for survival, such as food and shelter; or
Failure to immediately give medical treatment
to an injured child resulting in serious
impairment of his growth and development or
in his permanent incapacity or death.

Not all acts committed against a child will result to


child abuse. It is necessary that in the said act,
there was this intention to debase, degrade or
demean the intrinsic worth of a child as a human
being.

Child Prostitution and Other Sexual Abuse


What is child prostitution?
Children, whether male or female, who for money, profit, or
any other consideration or due to the coercion or influence
of any adult, syndicate or group, indulge in sexual
intercourse or lascivious conduct, are deemed to be
children exploited in prostitution and other sexual abuse.
Aggravating Circumstances:
(a) Those who engage in or promote, facilitate or
induce child prostitution which include, but are not
limited to, the following:
(1) Acting as a procurer of a child
prostitute;
(2) Inducing a person to be a client of a
child prostitute by means of written or
oral advertisements or other similar
means;
(3) Taking advantage of influence or
relationship to procure a child as
prostitute;
(4) Threatening or using violence towards
a child to engage him as a prostitute; or
(5) Giving monetary consideration goods
or other pecuniary benefit to a child with
intent to engage such child in
prostitution.
(b) Those who commit the act of sexual
intercourse of lascivious conduct with a child
exploited in prostitution or subject to other sexual
abuse; Provided, That when the victims is under
twelve (12) years of age, the perpetrators shall be
prosecuted under Article 335, paragraph 3, for
rape and Article 336 of Act No. 3815, as
amended, the Revised Penal Code, for rape or
lascivious conduct, as the case may be: Provided,
That the penalty for lascivious conduct when the
victim is under twelve (12) years of age shall be
reclusion temporal in its medium period; and
(c) Those who derive profit or advantage
therefrom, whether as manager or owner of the
establishment where the prostitution takes place,
or of the sauna, disco, bar, resort, place of
entertainment or establishment serving as a cover
or which engages in prostitution in addition to the
activity for which the license has been issued to
said establishment.

Atty. V. Garcia
1.

2.

when any person who, not being a relative of a


child, is found alone with the said child inside the
room or cubicle of a house, an inn, hotel, motel,
pension house, apartelle or other similar
establishments, vessel, vehicle or any other
hidden or secluded area under circumstances
which would lead a reasonable person to believe
that the child is about to be exploited in
prostitution and other sexual abuse.
when any person is receiving services from a child
in a sauna parlor or bath, massage clinic, health
club and other similar establishments.

What is Child Trafficking


Any person who shall engage in trading and dealing with
children including, but not limited to, the act of buying and
selling of a child for money, or for any other consideration,
or barter
Aggravating Circumstance: if the victim is under 12 years
of age
Attempt to Commit Child Trafficking. There is an
attempt to commit child trafficking under Section 7 of this
Act:
(a) When a child travels alone to a foreign country
without valid reason therefor and without
clearance issued by the Department of Social
Welfare and Development or written permit or
justification from the child's parents or legal
guardian;
(b) when the pregnant mother executes an
affidavit of consent for adoption for consideration;
(c) When a person, agency, establishment or
child-caring institution recruits women or couples
to bear children for the purpose of child trafficking;
or
(d) When a doctor, hospital or clinic official or
employee, nurse, midwife, local civil registrar or
any other person simulates birth for the purpose of
child trafficking; or
(e) When a person engages in the act of finding
children among low-income families, hospitals,
clinics, nurseries, day-care centers, or other childduring institutions who can be offered for the
purpose of child trafficking.

When is there attempt to commit child prostitution?

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CRIMINAL LAW REVIEW Book 2 Notes


TITLE NINE
CRIMES AGAINST PERSONSAL
SECURITY (ARTICLES 267 292)

Atty. V. Garcia
2.

LIBERTY

AND
3.

ART 267 KIDNAPPING AND SERIOUS ILLEGAL


DETENTION
It is committed when: a private individual kidnaps or
detains another or in any other manner to deprive him
of his liberty when such detention is illegal and it is
committed in any of the following circumstances:
1. If the kidnapping or detention should have
lasted for more than 3 days.
2. If it is committed simulating a public authority.
3. If threats to kill had been made upon the
person kidnapped or any serious physical
injuries are inflicted upon same.
4. If the person kidnapped or detained is a
minor, female, or a public officer.

Any of the circumstances present, then we have


serious illegal detention.

Q: Who is the offender in Art 267?


A: He must be a private individual because
if he is a public officer who has been vested
by law to make arrest and he detains a
person; it will be arbitrary detention under Art
124.
Q: Can a public officer commit kidnapping and serious
illegal detention?
A: Yes if the said public officer has not been
vested by law with the authority to effect
arrest and to detain a person then the said
public officer is acting in his private capacity.
Although a public officer; since he is acting in
his private capacity, the crime committed is
kidnapping and serious illegal detention under
Art 267 and not arbitrary detention under Art
124.

The second element requires that the offender kidnaps


or detains another or in any other manner depriving
him of his liberty.
Q: When is there detention?
A: There is detention if the offender restrains
a person or the liberty of another person. He
must be detained, incarcerated. There must
be showing that there is a restraint on his
person or liberty; otherwise, if there is no
restraint on the person or liberty on the part of
the offended party, it could be any other crime
but not kidnapping and serious illegal
detention.

The law requires that the kidnapping and detention


must be illegal therefore there must be no reasonable
ground.
Circumstances which will make the crime serious:
1. The kidnapping or detention should have lasted
for more than 3 days;

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4.

If it is committed by simulating public authority.

By pretending to be police officers,


pretending to be NBI agents
If any serious physical injuries are inflicted upon
the person kidnapped or detained or threats to kill
him are made.
If the person kidnapped or detained is a minor
(unless the offender is his parents); a female, or a
public officer.

The presence of any of these circumstances will meet


the crime of Serious Illegal Detention and the absence
of any of the circumstance will make the crime Slight
Illegal Detention under Art 268.

Note that the penalty is reclusion perpetua to death.

Circumstances which will qualify the penalty:


1. If the purpose of the kidnapping is to extort
ransom from the victim or from any other person.

Kidnapping and Serious Illegal Detention


for Ransom.
Q: What is ransom?
A: A ransom is the money, price, or any
other consideration given or demanded
for the redemption of the liberty of the
person who has been detained or
incarcerated.
PEOPLE VS. MAMANTAK
While the mother and the daughter where in a
food chain in tondo; the mother lost the said child.
she had been looking for the said child for a year.
A year and six months thereafter, the said mother
received a call from a woman who sounded to be
a masculine man from Lanaodel Norte according
to the said woman.
The woman said that she has the child with her
and the woman was demanding P 30,000 in
exchange for the child.
The said woman, Mamantak and company asked
the mother to go to a certain restaurant.
The mother went to the said restaurant however
the mother already informed the authorities.
Upon the exchange of the child and the demand;
Mamantak and co. were arrested by the said
authorities.
The crime charged was: Kidnapping and Serious
Illegal Detention for Ransom.
RTC ruled that it is only kidnapping and serious
illegal detention but not for ransom because
according to the trial court; the amount given is
measly a sum to be considered as ransom
because according to the RTC; it is only in
payment for the board and logging of the child
during the time that she was in the captivity of the
said woman.
SC ruled that the crime committed is kidnapping
and serious illegal detention for ransom. Even if it
is only 5 centavos; if it was given in exchange for
the liberty of a person who has been detained, by

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Atty. V. Garcia
Q: What if in the same problem; the father learned
about the said kidnapping so the father informed the
NBI agents. The NBI agents were able to track down
the place where the said child was being hidden so the
NBI agents together with the said father went to the
hideout. There was an exchange of gun fires between
A (the kidnapper) and the NBI agents. While there was
an exchange of gun fires, the father saw his child so
the father rushed towards the son, carry the son and
they were able to leave the said hideout. While they
were leaving, A the kidnapper saw them and A the
kidnapper shot the father. What crime/s is/are
committed?
A: In so far as the minor is concerned;
the crime committed is Kidnapping and
serious illegal detention even if it did
not last for a period of more than 3 days,
the fact that the offended party is a
minor, it is already kidnapping and
serious illegal detention.

whose liberty has been restricted; it is already


considered as ransom.
There is no such thing as small amount in so
far as ransom is concerned.

Q: Lets say A is indebted to B; B was asking payment


from A, A however said that he has no money until B
got fed up so what B did is he kidnapped and detained
the minor child of A. He then called A telling the same:
I will only release your minor child the moment you
give your indebtedness in the amount of a million
pesos. Is the crime committed kidnapping and serious
illegal detention for ransom?
A: Yes it is already kidnapping and
serious illegal detention for ransom even
if the amount being asked by the
kidnapper is the indebtedness of the
father of the said child. Any amount
demanded in exchange for the liberty of
the person detained; that is already
considered as ransom.
2.

In so far as the father who has been


killed; since he is not the victim of serious
illegal detention, it will constitute a
separate and distinct crime of: homicide.

When the victim is killed or dies as a consequence


of the kidnapping or detention.

Kidnapping
and
Serious
Illegal
Detention with Homicide.
This is a special complex crime.
Therefore, since it is a special
complex crime; regardless of
the number of victims killed; it is
still kidnapping and serious
illegal detention with homicide.

Therefore, there are 2 crimes committed


by the said kidnapper. Kidnapping and
serious illegal detention in so far as the
child is concerned and homicide in so far
as the father who has been killed is
concerned.

PEOPLE VS. LARANAGA


There were two kidnap victims and these two
sisters were both killed and raped yet the SC held
that the crime committed was kidnapping and
serious illegal detention with homicide and rape.
Despite the fact that there were 2 victims who
were killed and raped because regardless of the
numbers of the victims killed, since it is a special
complex crime; in the eyes of the law there is only
one crime committed so it is only: Kidnapping and
Serious illegal detention with homicide.

Note however that it is required that the victim himself


is the one who has been killed. If it is another person; it
will result to a separate and distinct crime because the
law is particular that the person detained/ kidnapped
must be the one who is killed or died as a
consequence thereof.
Q: What if A kidnapped the child of B who is his
enemy. The said child is 10 years old and he was
placed in a hideout. The child tried to escape but A
saw him so A fired a shot towards the child which
resulted to the death of the child. What crime is
committed?
A: The crime committed is kidnapping
with serious illegal detention with
homicide.

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3.

When the victim is raped.

Kidnapping
and
Serious
Detention with Rape.

4.

Illegal

It is necessary that the victim is the one who


has been raped.
Again; since this is a special complex crime;
regardless of the times that the victim has
been raped. The crime committed is only
kidnapping and serious illegal detention with
rape. There is no kidnapping and serious
illegal detention with multiple rape.

When the victim is subjected to torture or any


dehumanizing acts.

The presence of any of these circumstances will bring


about the imposition of maximum penalty of death.
Q: A, a 6 yr old child is playing at a playground at
about 5 oclock in the afternoon while the mother is
hanging clothes. A man (X) gave the child a candy and
the child was so happy. Later, the man again
approached the child and gave the child money and
then the said man invited the child to go with him.
Since the child was so happy because the man was so
good to her; the child went with the said man. At 6
oclock; the mother came looking for the child but the
child was no longer in the playground. Meanwhile, the
man brought the child to his place. That evening, the

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mother kept on looking for the child however they
could not locate the child. In the house of the man, the
child was molested and raped twice. The following
morning, when the mother opened the door of the
house, she saw her child at the door with torn clothes
and blood. So the man was charged with serious
illegal detention with rape. Is the charge correct?
A: The charge is wrong because the
obvious intention of the man is to rape
the child and not to detain the child
therefore the SC said: the crime
committed would be 2 counts of
statutory rape not only a single
indivisible offense of kidnapping and
serious illegal detention with rape but 2
counts of statutory rape because the said
child is under 12 years of age and she
was raped and molested twice.
Therefore, unless and until there was an
intent to detain on the part of the
offender; it could be any other crime but
not kidnapping and serious illegal
detention.

Atty. V. Garcia

A: Under Art 268 (Slight Illegal


Detention); if the offended party has
been released. Such release will be
considered as a privileged mitigating
circumstance because from the penalty
of reclusion temporal, the penalty would
be lowered by one degree that is prision
mayor.
Note however that this voluntary release of the victim
may only be considered as a privileged mitigating
circumstance the ff requisites must concur:
1. It is necessary the release has been
made within 3 days from the
commencement
of
the
said
kidnapping.
2. It must have been made without the
offender
having
attained
or
accomplished his purpose.
3. It must have been made before the
institution
of
the
criminal
proceedings
against the said
offender.

Q: A saw his enemy walking. He abducted his enemy


and placed him inside the van. The following morning,
the said enemy was found in a vacant lot with 10
gunshot wounds. What crime is committed?
A: The crime committed is Murder.
Obviously, there was no intent to detain
the offended party. The intent was to kill
him. Therefore the crime committed is
murder and not kidnapping and serious
illegal detention with homicide or murder
as the case may be.

Inorder for kidnapping and serious illegal detention to


amount to with rape, murder, with homicide with
physical injuries; it is necessary that there is an intent
to detain and in the course of the said detention, the
victim dies, raped, subjected to torture or other
dehumanizing acts.
Again, as mentioned earlier; the absence of any of the
circumstances which will make illegal detention serious
will make the crime Slight Illegal Detention under Art
268.

ART 268 SLIGHT ILLEGAL DETENTION


Slight illegal detention is committed by: any
person who shall kidnap or detains another or in
any other manner deprive him of his liberty when
the said detention is illegal absent of any of the
circumstances under Art 267; it will only be slight
illegal detention.
Q: What if A was so envious of his neighbor. To teach
the neighbor a lesson, he kidnapped and detained the
said neighbor and placed the said neighbor in a
secluded place in a vacant area one morning.
However, later on, A felt sorry for his neighbor and he
released his neighbor that night. What is the effect in
the criminal liability of the offender A?

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If all of these 3 are present then such


voluntary release of the offender will
mitigate the criminal liability of the said
offender.

Q: What if the person kidnapped by A is a public


officer? He is mad with the said public officer and
so he kidnapped the same and detained him in
the morning. In the evening, he immediately
released the public officer because he told himself
that perhaps the NBI would look after him so he
immediately released the public officer. Will such
release mitigate his criminal liability?
A: No. the fact that the person kidnapped
is a public officer; the crime would
immediately be kidnapping and serious
illegal detention under 267. And if the
crime is committed under Art 267, no
amount of voluntary release will mitigate
the criminal liability of the offender.

So if the victim is a minor, a female, or a public


officer; automatically, it will be kidnapping and
serious illegal detention and no amount of
voluntary release will mitigate the offenders
criminal liability.

ART 269 UNLAWFUL ARREST


Unlawful arrest is committed by: any person who
shall arrest or detain another without authority by
law or without reasonable ground therefore and
his main purpose is to deliver him to the proper
authorities.
The purpose is: to deliver him to the proper
authorities.
Q: A was walking when suddenly he was arrested by
B, a police officer. The police officer said that a case
has to be filed against him. The arrest was made
without warrant of arrest. A was not caught committing

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a crime inflagrante delicto and not also an escapee but
he was incarcerated. Thereafter a case has been filed
against him however since there was no complainant,
the fiscal dismissed the case for lack of probable
cause. What crime is committed by the police officer?
A: The crime committed is unlawful
arrest.
Q: What about the fact that he has been detained
arbitrarily?
A: It is already absorbed because the
intention of the said police officer is to file
a case against him that is; to deliver him
to the proper authorities. Therefore the
arbitrary detention is merely incidental in
the said act of unlawful arrest.

Atty. V. Garcia
5 yr old child has been given definitely to the mother.
However the father has been given visiting rights. One
Sunday, the father visited the 5 yr old son and the son
was brought out by the father. Usually, whenever the
father takes his son out; he will return the child by night
time. However this time, the father did not bring back
the child to the house of the mother and so the mother
demanded the return of her son but the father still
failed to return their child therefore the mother filed a
case of Kidnapping and failure to return a minor under
Art 270 against the father. Will the case prosper?
A: Yes the case will prosper. Under Art
271 it is provided that Art 270 and 271
can also be committed not only by
strangers but also by the father or the
mother. The only difference is that under
Art 270; if the offender is any other
person the penalty is reclusion perpetua.
But if the offender is the father or the
mother, note that the penalty is so low;
only arresto mayor or a fine of not more
than P300 or both fine and penalty
depending upon the discretion of the
court therefore, even the father or the
mother can be held liable under Articles
270 and 271. The only difference is their
respective penalties.

ART 270 KIDNAPPING AND FAILURE TO RETURN A


MINOR
Kidnapping and failure to return a minor is
committed by: any person who had been
entrusted with the custody of a minor who shall
deliberately fail to restore the said minor to his
parents or guardians.
Q: Who is the offender?
A: The offender is the person entrusted
with the custody of a minor.
Q: When will the crime arise?
A: The crime will arise if the offender
shall deliberately fail to restore the said
minor to his parents or guardians.
Q: What if A and B has a child and they entrusted the
child to X as they will be going for a vacation for a
week. They told X to deliver the child to them after 7
days. A week after, the husband and wife arrived
home but X failed to deliver the said child. The reason
of X was he was so busy with his work that he forgot
that it was already the 7th day from the time that he has
been entrusted with the child. Can he be held liable
under Art 270?
A: No because he did not deliberately fail
to restore the said minor to his parents or
guardians. The law requires deliberate
failure. Here, he only failed because of
negligence or just because he was so
busy.
ART 271 INDUCING A MINOR TO ABANDON HIS
HOME
It is committed by: any person who induces a
minor to leave the home of his parents, guardians,
or person entrusted with the custody of the said
minor.
The crime will arise even if the child hasnt left the
house of the parents or guardians. Mere
inducement with intent to cause damage will
suffice.

ART 272 SLAVERY


ELEMENTS:
1. The offender purchases, sells,
kidnaps or detains a human being.
2. The purpose of the offender is to
enslave such human being.

It is committed by: Any person who shall buy,


sells, kidnaps or detains a person for the purpose
of enslaving the said person.
If the purpose is to engage in immoral traffic; then
the penalty will be qualified.

ART 273 EXPLOITATION OF CHILD LABOR


ELEMENTS:
1. Offender retains a minor in his
service.
2. It is against the will of the minor.
3. It is under the pretext of reimbursing
himself of a debt incurred by an
ascendant, guardian or person
entrusted with the custody of such
minor.

It is committed by: Any person who shall detain a


child in his service against the will of the child
under the pretext of reimbursing a debt incurred
by the parents, ascendants, guardian or any
person entrusted with the custody of the child.

Q: A and B husband and wifes marriage has been


declared a nullity by the court and the custody of their

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Atty. V. Garcia

ART
274

SERVICES
RENDERED
UNDER
COMPULSION IN PAYMENT OF DEBT
ELEMENTS:
1. Offender compels a debtor to work for
him, either as household servant or farm
laborer.
2. It is against the debtors will.
3. The purpose is to require or enforce the
payment of a debt.

no detriment on the part of A to render


assistance but he failed to render
assistance therefore A may be held liable
for violation of Art 275.
Q: But what if when A found B and he was bitten
by a snake and the snake was still there. B was
asking for help however A did not give help
because theres a snake. Hes afraid that he might
get bitten by the snake too. Can A be held liable
under Art 275?
A: No because helping B will be
detrimental on his part.

It is committed by: a creditor to shall compel a


debtor to work for him as a household servant or a
farm laborer against the will of the said debtor
inorder to require or enforce the payment of a
debt.

Q: What if A was driving his vehicle when


suddenly his car tripped on a stone so the stone
flew and hit an eye of a bystander. The left eye
bled. Is A liable?
A: No because it is purely accidental; it is
an exempting circumstance. He was
performing an act with due care and
accident happened without fault or
negligence on his part

ART 275 ABANDONMENT OF PERSONS IN DANGER


AND ABANDONMENT OF ONES OWN VICTIM
ACTS PUNISHED:
1. Failing to render assistance to any
person whom the offender found in
an uninhabited place wounded or in
danger of dying when he can render
such assistance without detriment to
himself, unless such omission shall
constitute a more serious offense.
2.

Failing to render help or assistance


to another whom the offender has
accidentally wounded or injured.

3.

Failing to deliver a child under 7


years of age whom the offender has
found abandoned, to the authorities
or to his family, or failing to take him
to a safe place.

Q: A saw B at Luneta Park. He was wounded and


bitten by a dog and he was crying for help.
However, A, instead of helping B left. Is A liable
under Art 275?
A: No because the place is not an
uninhabited place. Luneta Park is a
public place. People come and go there.
Therefore, A is not liable under Art 275
despite the fact that B is wounded and
dying.

Q: What if when the left eye of the bystander bled;


A saw him and he knows that the bystander is his
victim. However, instead of bringing the bystander
to the hospital; he increased his speed and left. Is
A criminally liable this time?
A: Yes.

ART 276 ABANDONING A MINOR


ELEMENTS:
1. Offender has the custody of the
child.
2. Child is under 7 years of age.
3. He abandons such child.
4. He has no intent to kill the child
when the latter is abandoned.

Uninhabited place
One wherein theres a remote possibility for the
victim to receive some help.
Q: What if in the same problem, A found B in a
forest? So A went hunting in a forest when he
suddenly saw B in the middle of the forest. There
was this big trunk of tree on the neck of B and he
cannot move. He was begging for the help of A. A
however left. Later, B was rescued. Can he file a
case in violation of Art 275 against A?
A: Yes because B was found by A in an
uninhabited place and he was wounded
and in danger of dying because theres a
big trunk of tree on his neck and theres

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For the first act he is not liable because it


is purely accidental but when he failed to
render help or assistance to his own
victim. This time, he is criminally liable
under Art 275.

Abandoning a minor is committed by any person


who has been entrusted with the custody of a
child under 7 years of age and he abandons the
said child permanently, deliberately, and
consciously with no intent to kill the said child.
The penalty will be qualified if DEATH resulted
from the said abandonment or WHEN THE
SAFETY OF THE CHILD HAS BEEN PLACED IN
DANGER.
Q: A woman; an OFW worker who left her newly
born child inside a garbage bin of an
aircraft/airplane and later she has been arrested.
What crime is committed by the said mother?
A: The crime committed is Abandoning
a Minor under Art. 276. The mother is in

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CRIMINAL LAW REVIEW Book 2 Notes


custody of the child and she deliberately
or and consciously abandoned her child
without the intent to kill. Obviously there
was no intent to kill because she could
have killed the said child instead she
placed her child inside a garbage can in
the restroom of an aircraft so there was
no intent to kill therefore the crime
committed is Abandoning a Minor under
Art. 276.
ART 277 ABANDONMENT OF MINOR BY A PERSON
ENTRUSTED WITH HIS CUSTODY; INDIFFERENCE OF
PARENTS
ACTS PUNISHED:
1. Abandonment of a child by a person
entrusted with his custody.
It is committed by: any person
who, having entrusted with the
living and education of a minor
shall deliver a minor to a public
institution or other persons
without the consent of the person
who entrusted such minor to the
care of the offender or, in his
absence, without the consent of
the proper authorities.
2.

Indifference of parents
It is committed by: any parent
who neglects any of his children
by not giving them the education
which their station in life requires
and financial capability permits.

ART 278 EXPLOITATION OF A CHILD


ACTS PUNISHED:
1. Causing any boy or girl under 16 to
engage in any dangerous feat of
balancing, physical strength or contortion,
the offender being any person.
2. Employing children under 16 years of age
who are not the children or descendants
of the offender in exhibitions of acrobat,
gymnast, rope walker, diver, or wild animal
tamer, the offender being an acrobat, etc.,
or circus manager or person engaged in
any of said callings.
3. Employing any descendants under 12
years of age in dangerous exhibitions
enumerated on the next preceding
paragraph, the offender being engaged in
any of the said callings.
4. Delivering a child under 16 years of age
gratuitously to any person if any of the
callings enumerated in paragraph 2, or to
any habitual vagrant or beggar, the
offender being an ascendant, guardian,
teacher, or a person entrusted in any
capacity with the care if such child.
5. Including any child under 16 years of age
to abandon the home of its ascendants,
guardians, curators or teachers to follow

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Atty. V. Garcia
any person entrusted in any of the callings
mentioned in paragraph 2 or to
accompany any habitual vagrant or
beggar, the offender being any person.

These acts are considered as exploitation of minors


because these acts endanger the life and safety, the
growth and development of the minors. (usually these
involves circus)

Note: If the delivery of the said child is on the basis of a


consideration, compensation or money, the penalty will be
QUALIFIED.

Mere act of delivering the child gratuitously under 16


years of age; the crime is already committed.
The fact that it is with consideration; the penalty will be
qualified.

ART 280 QUALIFIED TRESSPASS TO DWELLING


It is committed by: a private individual who shall
enter the dwelling of another against the will of
the latter.
ELEMENTS:
1. Offender is a private individual
It is committed by a private individual
because if it is a public officer; then the
crime is under Art 128 which is: Violation
of Domicile.
2. He enters the dwelling of another
3. Such entrance is against the will of the latter.
As discussed under Art. 128; when
the law says against the will, there
must be a prohibition or opposition
from entering whether express or
implied.

Mere entry without consent will not bring about


QUALIFIED TRESSPASS TO DWELLING.
If the door is opened therefore it means that anyone
could enter even without the consent of the owner and
the moment he enters he is not liable for qualified
trespass to dwelling because there is no prohibition or
opposition from entering.
It is necessary that there is an opposition or prohibition
from entering. It can be expressed prohibition (e.g. A
note which states: Do Not Enter or the door was
closed and a person knocked so the owner got up and
opened the door but upon seeing the person he
immediately closed the door) or implied prohibition
(e.g. Door is closed even if it is not locked).

ART 281 OTHER FORMS OF TRESSPASS TO


DWELLING
(TRESSPASS TO PROPERTY)
ELEMENTS
1. Offender enters the closed premises
or the fenced estate of another.
2. Entrance is made while wither of
them is uninhabited.
3. Prohibition to enter is manifest.

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CRIMINAL LAW REVIEW Book 2 Notes


4.

Trespasser has not secured the


permission of the owner or the
caretaker thereof.

Trespass to property is committed by: any person


who enters a closed premises or fenced estate
which at that time is uninhabited and the
prohibition to enter is manifest and the offender
enters the said uninhabited place without
securing the permission of the owner or the care
taker thereof.

TRESSPASS TO
DWELLING

TRESSPASS TO
PROPERTY

Place entered into is


a dwelling and
uninhabited.

Place entered into is a


closed premises or a
fenced estate which is
uninhabited.

Prohibition to enter
can either be
expressed or implied.
Entry was made
against the will of the
owner or the
possessor of the said
dwelling.

Prohibition to enter
must be manifest.
Entry was made without
securing the permission
from the owner or the
care taker of the said
property.

Q: Lets say there are these town houses. In one


of the town houses, town house A; theres no
person living at the moment and there was this
sign: FOR RENT/ FOR LEASE. X entered the said
town house. What crime is committed by X? Is it
qualified trespass to dwelling or is it trespass to
property?
A: It is trespass to property because it
is a closed premises which is uninhabited
at the time of the entering and he entered
without first securing the permission of
the owner/care taker.
Q: What if there is this house which is occupied by
husband A and B. Husband A and B went for a
vacation for a month. So for a month, there is no
person in the said place. X learned that there is no
person in the said place. He entered the said
place. What crime is committed? Is it qualified
trespass to dwelling or trespass to property?
A: The crime committed is Qualified
Trespass to Dwelling. The said place is
a residential place and there is someone
who is occupying it even if at the moment
there are no people because the said
husband A and B are on vacations, it is
still considered as an inhabited place.
Therefore, the moment anyone enters,
the crime committed is trespass to
dwelling and not trespass to property.

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Atty. V. Garcia
THREE KINDS OF THREATS:
1. Grave threats
2. Light threats
3. Other light threats
DISTINCTION: GRAVE, LIGHT, OTHER LIGHT
THREATS
GRAVE
LIGHT
OTHER LIGHT
THREATS
THREATS
THREATS
The threat is The threat does Committed
by
always & always not amount to a threatening another
amounting
to crime.
It
is with a weapon or
and constituting always
and draw such weapon
a crime. It may always subject in a quarrel, unless
or may not be to a demand of it be in lawful selfsubject
to money or the defense; or orally
demand
of imposition
of threatening, in the
money
or any
other heat
of
anger,
imposition
of condition, even another with some
other conditions. though
not harm
not
The
offender unlawful.
constituting a crime,
may or may not
and
who
by
attain
his
subsequent
acts
purpose.
show that he did not
persist in the idea
involved
in
his
threat; or
orally
threatening to do
any
harm
not
constituting a felony.
ARTICLE 282 GRAVE THREATS
PUNISHABLE ACTS:
1. Threatening another with the infliction upon his
person, honor or property or 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 attained his
purpose.
2. By making such threat with the infliction upon his
person, honor or property or that of his family of
any wrong amounting to a crime and demanding
money or imposing any other condition even
though not unlawful and without the offender
attaining his purpose. (Elements for this act are
the same with the first except that the purpose is
not attained.)
3. By threatening another with the infliction upon his
person, honor or 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 any demand of money or imposition of any
condition.

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CRIMINAL LAW REVIEW Book 2 Notes


ARTICLE 283 LIGHT THREATS
Light threats is committed if a person threatens another
with the commission of any wrong which does not amount
to a crime. But it always subject to a demanded money or
the imposition of any other condition even though not
unlawful.
Art. 284 BOND FOR GOOD BEHAVIOR
In all cases falling within the two next preceding
articles, the person making the threats may also be
required to give bail not to molest the person threatened, or
if he shall fail to give such bail, he shall be sentenced to
destierro.
ARTICLE 285 OTHER LIGHT THREATS
There are 3 instances or punishable acts under light
threats:
1. Threatening another with a weapon or by drawing
such weapon in a quarrel, unless it be in lawful
self-defense. Here, the weapon must not be
discharged.
2. Orally threatening another, in the heat of anger,
with some harm constituting a crime, without
persisting in the idea involved in his threat.
3. Any threat made in a jest or in the heat of anger
constitutes light threat only.
4. Orally threatening to do another any harm not
constituting a felony.
So whether it be grave threats, light threats or other light
threats, the essence of threats is INTIMIDATION. It is a
promise of a future wrong, a promise of a future harm. Not
now, but in the future.
So, since it is a promise of a future wrong, threats may be
committed either personally or orally or it can also be
committed in writing or through an intermediary. If threats
are committed through writing or through an intermediary,
the penalty is qualified.
Q: What is the difference between grave threats, light
threats or other light threats?
A: In GRAVE THREATS, the threat will always
amount or constitute a crime. It may or may not be
subject to a demand money or condition. The
offender may or may not attain his purpose. But,
in grave threats, the threats will always amount or
will always constitute to a crime. On the other
hand, in case of LIGHT THREATS, the threat will
not constitute to a crime but it is always and
always subject to a demand of money or the
imposition of any other condition.
So in LIGHT THREATS, the threat threatened to
be committed will not amount to a crime, will not
constitute to a crime, however it is always subject
to a demand of money or the imposition of any
other condition, even though not unlawful.
Lastly, in case of OTHER LIGHT THREATS, other
light threats can be done by threatening another
with a weapon or by drawing such weapon in a

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Atty. V. Garcia
quarrel, unless it be in lawful self-defense or it can
be done by orally threatening another with a harm
amounting to a crime in the heat of anger. So it is
necessary that the offender is in the heat of anger
or he threatens another with a harm amounting to
a crime. But he did not pursue with the idea
involved in his threat. And the last one is by orally
threatening another which does not constitute a
crime.
Q: So what if A went to the store and then from the said
store he learned that had been spreading negative rumors
against him. And so A was so mad, he was so angry that
he went to the house of B and he called on B: B get out of
the house! I will kill you! I will kill you! Get out of the house
B! But B did not get out of the house. Instead, it was the
son of B who came out of the house and said: What do
you want with my father? A angrily said that, You let your
father come out or I will kill him because he has been
spreading negative rumors about me. The son went inside
the house and did not come back. The father also did not
come out of the house. And so later, A just left the house.
What crime is committed by A? Is it grave threats, light
threats or is it other light threats?
A: The crime committed is under Article 285
OTHER LIGHT THREATS. Orally, in the heat of
anger, he threatened another with a harm
constituting a crime, but he did not pursue with the
idea in his threat. It is only other light threats.
Q: What if, let us say, A saw that B has a new car. It was a
luxury car. He knew that it was smuggled and so he told B:
B, if you will not give me P500,000, I will call the Bureau of
Customs, I will tell Comissioner Biazon right now that your
car is smuggled. What crime if any is committed by A
against B?
A: It is LIGHT THREATS. He threatened to
commit a wrong which does not constitute a crime.
It is not a crime to inform the Bureau of Customs
that the car was smuggled and it is subject to a
demand of money and the imposition of any other
condition even though not unlawful.
Q: What if A, who is the creditor of B, was inside the house
of B. He was asking B to pay his indebtedness. B said:
Get out of my house. If I still see you in the afternoon
when I get back inside my house and if you are still here, I
will kill you. What crime is committed?
A: In this instance where B told A : Get out of my
house. If I still see you in the afternoon when I get
back inside my house and if you are still here, I
will kill you. The crime committed is GRAVE
THREATS. There is a promise of a future wrong
to be committed in the afternoon if A is still there in
the house.
Q: What if in the same problem, A was asking B to pay his
indebtedness. B said: Get out of my house! Otherwise, I
will kill you. What crime is committed?
A: The crime committed is GRAVE COERCION.
The threat is present, direct, personal, immediate
and imminent. Not in the future, but now direct,
personal and immediate.

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CRIMINAL LAW REVIEW Book 2 Notes


Note that in case of threats made while committing
physical injuries, threats are absorbed.
ARTICLE 286 GRAVE COERCIONS
2 way of committing grave coercion:
1. Preventive Coercion
2. Compulsive Coercion
PREVENTIVE COERCION if a person prevents another,
by means of violence, threat or intimidation, from doing
something not prohibited by law.
COMPULSIVE COERCION if a person compels another,
by means of violence, threat or intimidation, to do
something against his will, whether it be right or wrong,
whether it be prohibited or not by law.
So, to amount to preventive coercion, the offender by
means of violence prevents someone form doing
something which is not prohibited by law.
Q: Therefore, what if, the offender prevents someone form
doing something which is prohibited by law? So let us say
A, wanted to enter the house of B, against the will of B. X
saw A wanting to enter the house of B against the will of B.
X prevented A. A in his act of wanting to enter the house of
B, is an act prohibited by law, so X prevented A from doing
so. However, A still pursued with the act of entering and so
what X did in order to prevent him is that X boxed A
resulting in his injury of slight physical injuries. What crime
is committed by X?
A: It is not grave coercion. Because X is
preventing A by means of violence and
intimidation, not from doing something which is
prohibited by law but from doing something which
is prohibited by law. Therefore, it is not grave
coercion.
So what crime is committed?
The crime committed is SLIGHT PHYSICAL
INJURIES.
Q: What if in case of grave coercion, it is necessary that the
offender compels another to do something against his will,
regardless of whether
it be right or wrong, regardless
of whether it is allowed or prohibited by law. The fact is a
person cannot put the law in his hands and prevent
someone from doing something so long as it is against his
will.
A: So in case of grave coercion, if the essence of
threats is intimidation or a promise of a future
wrong, a promise of a future injury, the injury or
threat is present, direct, personal, immediate and
imminent. It is NOW. That is why, grave coercion
cannot be committed in writing or through an
intermediary because it is always personal.
Hence, it is about to take place imminent and
immediate.

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Atty. V. Garcia
Q: So how would you distinguish threat vs. coercion?
THREAT
COERCION
The wrong threatened to be
The wrong threatened to be
committed is direct,
committed is in the future
personal, immediate and
imminent
Cannot be committed in
May be committed in writing
writing or through internet
or through an internet
chatting because it is always
chatting
personal and immediate
It is violence or intimidation
The essence of threat is
amounting serious enough
intimidation
to amount to violence
ARTICLE 287 LIGHT COERCION
It is committed by a creditor who shall seize anything
belonging to his debtor by means of violence or intimidation
in order to apply the same to the indebtedness.
There is one form of light coercion under Article 287, that
is UNJUST VEXATION. It is a form of light coercion.
UNJUST VEXATION refers to any human conduct, which
although not capable of producing any material harm or
injury, annoys, vexes or irritates an innocent person.
Example in Book I: a person walking and hit with a lead
pipe on the head.
CASE OF BALEROS, JR.:
There was a UST medical student. There was a
cloth soaked with chemical pressed on her face.
So there was this man, she was awakened with a
man on top of her placing a cloth soaked with
chemical pressed on her face. The charge was
attempted rape. Supreme Court said it was just
UNJUST VEXATION nang-iinis lang daw yung
lalaking yun. So, Supreme Court said it is a
human conduct which annoys or vexes the said
female medical student.
Art.
288

OTHER
SIMILAR
COERCIONS;
(COMPULSORY PURCHASE OF MERCHANDISE AND
PAYMENT OF WAGES BY MEANS OF TOKENS)
Other light coercion is committed by forcing or compelling
directly or indirectly or knowingly permitting the forcing or
compelling any employee or laborer to buy merchandise or
commodities from the said employer. And lastly, by paying
the wages due to the laborer or employees by any tokens
or object other than the legal tender currency of the
Philippines unless to be requested by the said employee or
laborer.
So it is more on LABOR other light coercion.
Q: What if a person, A threatened to kill B. and so B filed a
case of grave threats against A. The case was filed before
the court. Upon the filing of the court, what bail, if any,
should the court impose on A in order to insure that A will
not make good the said threat?
A: Under Article 284, we have BOND FOR
GOOD BEHAVIOR. Bond for good behavior is a
bail which is required by the court to be posted by
any accused only in the crimes of grave threats

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CRIMINAL LAW REVIEW Book 2 Notes


and other light threats. In the crimes of grave
threats or other light threats, the court would allow
or would require an accused to file or to post a
bond for good behavior in order to ensure that he
will not make good the said threat. If the said
accused failed to pay or post the said bond for
good behavior, then the penalty hat would be
imposed is destierro in order to ensure that he
will not make good the said threat.

Atty. V. Garcia

2.)

3.)
4.)

REVELATION OF SECRETS:
ARTICLE 290 DISCOVERING SECRETS THROUGH
SEIZURE OF CORRESPONDENCE
We have seizure of correspondence in order to discover
the secrets of another.
This is committed by any person who shall seize any
correspondence of another in order to discover the secret
of any person.
NOTE: In case of seizure of correspondence in order to
discover the secrets of another, DAMAGE is not element.
Likewise, REVELATION is not an element.
The mere act of seizing the correspondence of another
with the intention to discover the secrets, the crime is
already consummated. It is not necessary that the secret
be revealed, it is not necessary that there be damage on
the part of the offended party.
ARTICLE 291 REVEALING SECRETS WITH THE
ABUSE OF OFFICE
This is committed by a manager or by an employee or by a
servant who reveals the secrets of his principal or master
learned by him in such capacity.
It is the REVELATION OF SECRETS which will
consummate the crime, not merely discovery but
revelation of the said secrets. Again, damage is not an
element. It is not necessary that the offended party be
prejudiced or damaged.
ARTICLE 292 REVELATION OF INDUSTRIAL
SECRETS
This is committed by any person in charge, employee or
workman of a manufacturing or industrial establishment
who shall learn and discover the secrets of the industry and
shall reveal the same to the prejudice of the owner thereof.
In case of revelation of industrial secrets, mere revelation
of those secrets will not suffice. There must be
DAMAGE OR PREJUDICE CAUSED TO THE
OFFENDED PARTY.
The law requires to the prejudice of the owner thereof.

5.)

device commonly known as a Dictaphone or


dictagraph, walkie talkie, tape recorder, or
other similar devices.
Knowingly possessing any tape record, wire
record, disc record, or any other such record,
or copies thereof, of these private
communication or spoken word.
Replaying these any tape record, wire record,
disc record to another person.
Communicating the contents of the said tape
record, wire record or disc record, in writing or
verbally to another person.
Furnishing transcriptions of these tape record,
wire record or disc record whether totally or
partially to any other person.

What is foremost prohibited is the act of tapping, recording


or intercepting any private communication or spoken word
without the consent of all the parties. Without being
authorized by all the parties to the said private
communication or spoken word.
Q: So what if A told B to come inside his room and when B
entered the room, A started scolding B. In scolding B, A
said scandalous remarks against B. Unknown to A, B was
tape recording the private conversation between them. Can
B later use the said tape recording in order to file a case of
defamation or slander against A?
A: NO. Because the said act of tape recording
without being authorized by all the parties to a
private communication or spoken word is
inadmissible in any judicial, quasi-judicial,
legislative or administrative proceedings or
investigation.
The ONLY EXCEPTION is when a police officer or peace
officer is authorized by written order of the court to listen to,
intercept or record any communication in crimes involving
treason, espionage, inciting to war or giving motives for
reprisals, piracy, mutiny, rebellion, conspiracy and proposal
to commit rebellion, sedition, conspiracy to commit sedition
and kidnapping. Only in these instances and provided that
the said peace officer is authorized by a written order
coming from the court may he be allowed to intercept,
listen to or record the private communication or spoken
word.

RA 92400 - ANTI-WARTAPPING LAW


The following acts are punishable:
1.) It shall be unlawful for any person, without
securing the consent of all the parties to any
private communication or spoken word, to tap
any wire or cable, or by using any other
device or arrangement to secretly overhear,
intercept
or
record
such
private
communication or spoken word by using a

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CRIMINAL LAW REVIEW Book 2 Notes


TITLE TEN
CRIMES AGAINST PROPERTY
Art. 293 Who are guilty of robbery?
Robbery is committed by any person, who with
intent to gain shall take any personal property belonging to
another by means of violence against, or intimidation of any
person, or using force upon anything.
Elements of Robbery:
1. That the offender unlawfully takes a personal
property
2. That the said personal property belongs to
another person
3. There must be intent to gain in the taking of the
said property
4. That the said taking is either by means of violence
against, or intimidation of any person, or using
force upon anything
5.
Unlawful taking is the deprivation of the offended party of
his personal property with an element of permanency. So, it
is necessary that in taking the personal property from
another person, there is an element of permanency.
The law requires that the property must be personal
property, not real property because real property is under
Article 312 Occupation of real property.
The personal property must belong to another person
because if it do not belong to another person it cannot be
said that there is intent to gain on the part of the offender.
The law requires that there must be intent to gain.
Intent to gain is an internal state of mind. So how can you
prove intent to gain? The law presumes there is intent to
gain the moment there is taking of the personal property of
another person. Intent to gain is presumed by law.
Two ways of committing robbery:
1.) Robbery with violence against or intimidation
(Art.294)
2.) Robbery with the use of force upon things
(Art.299)
The value of the property taken in robbery with violence
against or intimidation against people is immaterial
because the penalty is dependent on the violence used by
the offender against the offended party. However, in
Robbery with the use of force upon things (Art.299), the
value of the property taken is material because the penalty
is dependent on the value of the property taken.
Art.294 - Robbery with violence against or intimidation
of persons
The following acts constitute robbery with violence against
or intimidation of persons:
1.) When by reason or on occasion of the robbery,
the crime of homicide is committed.
2.) When robbery is accompanied by rape or
intentional mutilation or arson.
3.) When by reason or on occasion of such robbery,
any of the physical injuries resulting in insanity,
imbecility, impotency or blindness is inflicted.
4.) When by reason or on occasion of robbery, any of
the physical injuries resulting in the loss of the use

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Atty. V. Garcia
of speech or the power to hear or to smell, or the
loss of an eye, a hand, foot, an arm, or a leg or
the loss of the use of any such member or
incapacity to go to work in which the injured
person is thereto habitually engaged is inflicted.
5.) If violence or intimidation employed in the
commission of the robbery is carried to a degree
clearly unnecessary for the commission of the
crime
6.) When in the course of its execution, the offender
shall have inflicted upon any person not
responsible for the commission of the robbery any
of the physical injuries in consequence of which
the person injured becomes deformed or loses
any other member of his body or loses the use
thereof or becomes ill or incapacitated for the
performance of the work in which he is habitually
engaged for more than 90 days or the person
injured becomes ill or incapacitated for labor for
more than 30 days
7.) If violence employed by the offender does not
cause any of the serious physical injuries defined
in Article 263, or if the offender employs
intimidation only.
In other words, we have robbery with homicide, robbery
with rape, robbery with intentional mutilation, robbery with
arson, robbery with serious physical injuries, robbery with
unnecessary violence and lastly, simple robbery.
Robbery with Homicide
Robbery with homicide is a special complex crime or a
composite crime or a single indivisible offense. In reality
two or more crimes have been committed, the robbery and
the homicide yet, in the eyes of the law only one crime, a
single indivisible offense of robbery with homicide.
Q: When should the killing or the homicide take place?
A: In case of robbery with homicide, for as long as
the original intent of the offender, for as long original
criminal design is to commit robbery or to rob, the killing
may take place before, during or after the said robbery
provided, that the original intent/ original criminal design is
to commit robbery or to rob.
Since it is a special complex crime, regardless of
the number of the persons killed there is only a single
indivisible offense of robbery with homicide. Even if the
killing is an unintentional killing or accidental killing still, it is
a single indivisible offense of robbery with homicide. Even if
the victim of the said robbery is different from the victim of
the killing, it is still robbery with homicide. There lies the
difference between Article 294 and Article 267.
In
kidnapping and serious illegal detention with homicide, the
victim of the kidnapping and serious illegal detention must
be the victim in the said killing to amount to kidnapping and
serious illegal detention. But in case of robbery with
homicide, regardless of who the offended party may be,
whether the offended party in robbery is different from the
offended party in the killing it is still robbery with homicide.
Q: So let us say, A entered the house of B in order to
commit robbery. He took the valuables therein and after

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CRIMINAL LAW REVIEW Book 2 Notes


taking the jewelries suddenly the box of jewelries fell so X
was awaken. When A saw that X was awaken, A shot X. X
died. What crime is committed?
A: Robbery with homicide. Because by reason or
on occasion of robbery, homicide was committed.
Q: What if in the same problem, when X was awaken, the
robber, A, shot X. The wife was also awaken and so the
wife started shouting so A also shot the wife.
The
wife also died. What crime/s is committed?
A: Two persons are killed still, the crime
committed is still a single indivisible offense of
robbery with homicide. All the killings are merged
into a composite intergraded whole that is a single
indivisible offense of robbery with homicide.
Q: What if let us say, in the same problem, so A went to the
house of X and took the jewelries. He was on his way out
when he bumped the door and so the owner of the house
was awaken. So A went down and saw the back of the
robber. And so he chased the robber. In the garden, A tried
to shoot the owner of the house and so A jumped on him
and they struggled for the possession of the gun. In the
course of struggle for the possession of the gun, the gun
fired hitting a ballot vendor passing by. The ballot vendor
died. What crime/s is committed?
A: The crime committed is still the single
indivisible offense of robber with homicide. Since
it is a special complex crime, even if the victim of
the robbery is different from the victim of the
homicide, it is still robbery with homicide. Even if it
is only accidental killing it is still robbery with
homicide so long as the killing is by reason or on
occasion of the said robbery.
Q: So what if, A, B, and C entered the house of X in order
to commit robbery. They have already taken the valuables
when the owner of the house was awaken. It was only A
who saw the owner of the house was awaken and so A
shot X and killed him. Are they all liable for robbery with
homicide or only A who shot X?
A: All of them are criminally liable for the crime of
robbery with homicide. Under Article 8, that in case of an
express or direct conspiracy, the conspirators are liable
only for the crime agreed upon. The crime agreed is to
commit robbery but how come all of them are liable for
homicide? Because it falls under the exception that when
the resulting felony is a special complex crime because you
cannot separate or divide a special complex crime.
Therefore, even if it was only A who killed the victim, even
if their agreement is only to commit robbery, because
homicide or the killing was committed by reason or on
occasion of the said robbery, all of them are criminally
liable for the crime of robbery with homicide.
The only exception to the exception is when B
and C performed acts in order to prevent A from committing
the homicide.
CASE OF PEOPLE vs CABBAB
Let us say, A and B versus X, Y and Z. A and B
committed robbery and upon leaving the said place, X and
Y saw A and B and shot them and made gun fires. Z, a
police officer dove into the canal in order to prevent himself

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Atty. V. Garcia
from being killed. A and B went directly to X and Y and
killed them both. And thereafter, A and B took the winnings.
Based on the circumstances or facts the fiscal filed the
following cases before the RTC, robbery, double murder,
and attempted murder, robbery because of the taking of the
winnings, double murder for the death of X and Y and
attempted murder as to the police officer who dove into the
canal. What is the ruling of the RTC? It said wrong ka
fiscal! The crime is robbery with double homicide and
attempted murder. Then it went to appeal on the Court of
Appeals, sabiniya wrong fiscal! Wrong ka din RTC! The
crime committed is robbery with homicide and attempted
murder. Then it went up to the Supreme Court. Sc said,
malika fiscal! Mali ka RTC! Mali kadn CA! Mali kayo lahat!
The only crime committed is the single indivisible crime of
robbery with homicide. Because all the acts are considered
absorbed in the crime of robbery with homicide despite the
fact that two persons were killed, despite the fact that one
person was greatly injured, all these circumstances are
merged into a composite integrated whole that is single
indivisible offense of robbery with homicide.
Robbery with rape
Just like robbery with homicide, is also a special
complex crime or a single indivisible offense. So, for as
long as the intention of the offender is to commit robbery,
rape may be committed before, during or after the
commission of robbery. Since it is a special complex crime,
regardless of the number of times the victim was raped, the
crime committed is only robbery with rape. There is no such
crime as robbery with multiple rapes. There is only robbery
with rape.
Q: So a woman was walking on her way home and
because it was pay day here comes X. X dragged the
woman in a dark place and took the bag and took the
money inside it. And then he found the woman attractive so
he raped the woman not once but twice. What crime/s is
committed?
A: X committed the crime of robbery with rape
regardless of the times the woman was raped.
CASE OF PEOPLE vs SUYU
Two persons, boyfriend and girlfriend, they were
having snack and saw the shadow of 3 men. And these 3
men were pushing the truck trying to open the door. They
took their valuables and the boyfriend hurriedly left the
girlfriend allegedly to ask help to the police. And so the
girlfriend was alone with the three men and they dragged
her into a nipa hut and there she was raped by the
mastermind, Suyu. Not only she was raped by Suyu but
also Cainglet while, the other two was outside serving as
lookouts. So the said woman, Clarissa, was raped by two
persons and she was raped three times. Suyu and Cainglet
raped her by carnal knowledge. Not only that, Cainglet also
inserted two fingers to her genitals therefore, he also
committed rape by sexual assault. What crimes are
committed by the 4 persons? What crime/s they should be
criminally liable of?
Supreme Court said, they are all liable for the
single indivisible offense of Robbery with Rape.
Regardless of the fact that two persons raped the victim,

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Atty. V. Garcia

regardless of the fact that the victim was raped 3 times,


regardless of the fact that there is two nature of rape
committed against the victim (rape by carnal knowledge
and rape by sexual assault), still the crime committed is the
single indivisible offense of robbery with rape.
There are four conspirators but not all of them
raped the victim. Yet they are all liable for robbery with rape
because the two lookouts did not perform acts in order to
prevent the consummation of the said rape. So since it is a
special complex crime and a single indivisible offense all
the other rapes are merged into a composite integrated
whole that is robbery with rape.
The same theory applies in case of robbery with intentional
mutilation and robbery with arson.
Robbery with intentional mutilation, arson and serious
physical injuries
For as long as the intent or the criminal design of
the offender is to commit robbery, the intentional mutilation,
arson or serious physical injuries may be committed before,
during or after the commission of the said robbery.
Q: So let say A and B saw X walking. It was pay day and
so A and B announced a holdup. They were both armed
with guns and so what X did since they were both armed
with guns, he gave the bag. By reason thereof, A and B
already left the place. While A and B was waiting for a ride
in a waiting shed, A and B divided the things they took from
X. So A told B, this is your share. B said, why is my share
smaller than your share?! And so B got and he shot A. A
died. What is the crime committed?
A: The crime committed is robbery with homicide
because even if it was also an offender who was
killed, the killing took place by reason of the said
robbery.
Q: So what if in the same problem, so A and B were
already dividing the things they took and B said, wait why is
my share so small? B got mad shot A but A did not die. A
suffered serious physical injuries.
What crime is
committed?
A: The crime committed is robbery with serious
physical injuries.
Q: What if in the same problem, A were dividing the things
and B said, why is my share so small compared to your
share? B got mad and what he did was took an ice pick
from his pocket and stab A in his face and placed the ice
pick in As face. A suffered serious physical injuries and
deformity in his face. It caused physical ugliness to A
therefore there is deformity. What crime/s is committed?
A: This time the crime committed by B is not the
single indivisible crime of robbery with serious
physical injuries but two crimes, Robbery and
Serious physical injuries under paragraph 3 of
Article 263 because of the deformity. Why?
Because under paragraph 4 of Article 294, when
the serious physical injury that resulted is a
deformity or the loss of any of the member of his
body, the law requires that the said physical injury
or deformity must be inflicted because of the

Dizon | Manalo | Navarez | Shyu | Tubio

execution of a robbery and to a person not


responsible to the commission of the crime of
robbery. Here, the deformity was inflicted after the
robbery, not before. Not only that. The deformity
was inflicted on A, the person responsible for the
commission of the robbery.
If the serious physical injuries inflicted resulted to a
deformity or to a loss of any of the member of his body or
loss of the use of any such member or incapacity to go to
work in which the injured person is thereto habitually
engaged for more than 90 days, under paragraph 3 of
Article 263, it is required that in order to amount to a single
indivisible offense the said deformity or serious physical
injury must be inflicted in the course of the execution of the
robbery and to a person not responsible to the commission
of the robbery. Otherwise, it will bring about a separate and
distinct crime.
Art. 295. Robbery with physical injuries, committed in
an uninhabited place and by a band, or with the use of
firearm on a street, road or alley.

Art. 296. Definition of a band and penalty incurred by


the members thereof.

Art. 297. Attempted and frustrated robbery committed


under certain circumstances.
Art. 298. Execution of deeds by means of violence or
intimidation.
Section Two Robbery by the use of force upon things

ROBBERY
THINGS

WITH USE

OF FORCE

UPON

Art. 299. Robbery in an inhabited house or public


building or edifice devoted to worship
Another form of robbery is robbery with the use of
force upon things in Art 299.
In case of violence against persons, the value of the
property is not important because the penalty is the
basis of the violence.
In Art. 299, the basis of the penalty is the value of the
property taken.
3 ways of committing robbery with use of force upon
things:

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CRIMINAL LAW REVIEW Book 2 Notes


1)

When a person enters the dwelling, house, public


building or edifice devoted to worship where
personal property is taken through:
a. 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
d. By using any fictitious name or
pretending the exercise of public
authority

NOTE:
Under the first act, the essence of the crime is in
the unlawful entry; it is the act of trespassing and
also the taking of the property of another.

It is necessary that the entire body must have


enter, otherwise, even if there is breaking, it would
only amount to theft and that breaking would
amount only to aggravating circumstance. The
Supreme Court ruled that when the law used the
word enter, it means that the entire body must
have entered said place to take the property of
another.

Example
A, in order to rob the house made an opening in the roof,
sufficient for him to enter. So he used a rope in going
down and thereafter he took the valuables and then left.
What crime is committed?
Robbery by use of force upon things. A made an
opening and he was able to enter fully.
What if he made an entry, let down a rope with a hook
and used it in taking the valuable.
The crime committed only is theft with aggravating
circumstance of the breaking of the roof. His body
did not enter the premises.
2)

When the offender manages to enter said


inhabited place, dwelling, public place or place
dedicated to religious worship without any
unlawful entry, or is an insider, and once inside,
he used force in opening in order to:
a.
Break doors, wardrobes, chests, or
any other kind of locked or sealed
furniture or receptacle

NOTE:
The second act is when the offender was able to
enter without unlawful entry or was an insider and
once inside, breaks the doors, wardrobes, chest,
receptacles, and thereafter took the personal
properties inside the house.

Dizon | Manalo | Navarez | Shyu | Tubio

Atty. V. Garcia
Example
A and B are brothers, living in the same house and in the
same room but have different cabinets where each of the
cabinets have locks. One time brother A was in need of
money and wanted to borrow money from brother B, but
brother B was out of the house. So what brother A did
was that he forcibly opened the cabinet of brother B and
took the expensive jewelries of brother B and
appropriated the jewelry? What are the crimes
committed? Is Brother A only liable civilly?
A is guilty of robbery with use of force upon things.
He is an insider, and he used force to break open
the cabinet of B. He did not commit theft. Since
the crime committed is robbery, brother A is
criminally liable and civilly liable. Because under
Article 332, it is only on cases of theft, swindling,
estafa, and malicious mischief, wherein theres no
criminal liability but only civil liability in case of
relatives living together.
In the same problem, what if A was in need of money, he
saw the expensive watch of B on top of the table and
sold the watch. What crime was committed?
A committed the crime of theft since there is no
breaking or forcibly opening the receptacle. Under
Art 332, he is only liable for civil liability. They are
free from criminal liability.
Art. 332. Persons exempt from
criminal liability. No criminal, but
only civil liability, shall result from the
commission of the crime of theft,
swindling
or
malicious
mischief
committed or caused mutually by the
following persons:
1.
Spouses,
ascendants
and
descendants, or relatives by affinity
in the same line.
2. The widowed spouse with respect
to the property which belonged to
the deceased spouse before the
same shall have passed into the
possession of another; and
3. Brothers and sisters and brothersin-law and sisters-in-law, if living
together.
The exemption established by this article
shall not be applicable to strangers
participating in the commission of the
crime.
Since it refers to simple crimes, if the crime committed is
estafa through falsification of public document, there will

Page 114

CRIMINAL LAW REVIEW Book 2 Notes


be criminal liability. This exemption from criminal liability
will only lie in the cases mentioned in Art. 332.
3)

When the offender manages to enter said


inhabited place, dwelling, public place, or place
dedicated to religious worship without any
unlawful entry, once inside he took the sealed
receptacle outside to be opened or forced open.

The offender was able to enter and once inside,


he did not use force to open the close cabinet or
receptacle. Instead, he took the cabinet and
receptacle outside to open it.

Circumstances that will qualify robbery with use of


force upon things:
Art. 300. Robbery in an uninhabited place and by a
band.
Under Article 300, if robbery is committed with
in an uninhabited place and by a band the
law used the conjunction AND, both must
concur in order to amount a qualifying
circumstance, to increase the penalty. So it
should be in an uninhabited place and by a
band, therefore both must be present.
Art. 295. Robbery with physical injuries, committed in
an uninhabited place and by a band, or with the use of
firearm on a street, road or alley.
In case of robbery with serious physical injuries,
unnecessary violence or simple violence, how will the
crime be qualified?
The answer is under Art. 295, where if the said
robbery is:
1. Committed in an uninhabited place OR
by a band
2. By attacking any moving train, street car,
motor vehicle or airship
3. By
entering
the
passengers
compartments in a train; or
4. Taking the passengers by surprise in
their respective conveyances
5. On a street, road, highway, or alley and
the Intimidation is made use of a firearm
NOTE:
That in case of robbery with violence or
intimidation
on
persons,
the
qualifying
circumstances are present, only one of these is
sufficient to qualify the penalty. The law here uses
the conjunction OR not AND.
Example:

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Atty. V. Garcia
A went to the house of B. A told B this is a hold up and
bring out the valuables. Instead of bringing the valuables
to A, B panicked and shouted. A therefore shot B. B died.
A also panicked and left the place without bringing his
loot. What is/are the crime/s committed?
The crime committed by A is attempted robbery
with homicide. This is also a special complex
crime. Here robbery was attempted because he
was unable to take any of the property. The fact
that A was able to announce hold-up and bring the
valuables to him means that the original design is
to commit robbery. It was attempted because he
was unable to take the property, and in the course
of thereof, he killed the owner.

In order to amount to special complex crime, it is


necessary that both the robbery and homicide
must be consummated.

What if in the course of robbery, the said owner was shot


but was able to survive. What crime is committed?
The crime committed is robbery with physical
injuries depending on the injuries sustained by the
victim. In order to amount to robbery with
homicide, it is necessary that both crimes must be
present and there is no such thing as robbery
with frustrated homicide or attempted
homicide, for it is the law which provides for the
crime which must be complexed, and the law does
not provide that frustrated homicide or attempted
homicide must be complexed with robbery.
In the instant case, since the killing took place at
the spur of the moment, then it is robbery with
homicide.
Chapter Two
BRIGANDAGE
What if robbery was committed by 4 armed men?
Art. 296. Definition of a band and penalty incurred by
the members thereof.
A was walking, suddenly there are 4 men with knives and
took As bag which is full of money. A put up a fight. And
so these armed men killed A. What crime is committed?
Is the crime committed robbery in band with homicide?
There is no such crime as robbery by a band with
homicide. The said use of band is only an
aggravating circumstance. The proper designation
of the crime is robbery with homicide. The fact that
it is committed by 4 armed men is only an
aggravating circumstance. Under Art. 296, if a

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CRIMINAL LAW REVIEW Book 2 Notes

Atty. V. Garcia
Chapter Three
THEFT

band committed robbery, it is only an aggravating


circumstance.
Art. 306. Brigandage.
Under Article 306, it is committed by at least 4 armed men
for the purposes of 1. committing robbery in the highway;
2. kidnapping persons for the purpose of extortion or
ransom
3. for any other purpose to be attained by means of
force and violence.
Art. 296
Art. 306
Both require at least 4 armed persons
It is required that the 4 The
crime
is
already
armed men must actually consummated by the mere
take part in the commission fact that 4 armed men
of the robbery
formed a band of robbers.
It is not required that they
actually
commit
the
enumerated purposes.
PD 532 (THE ANTI-HIGHWAY ROBBERY LAW OF 1974)
In PD 532, brigandage is defined as the seizure of any
person for ransom, extortion, or other unlawful purposes, or
the taking away of property of another by means of
violence against or intimidation of persons of force upon
things or other unlawful means, committed by any person
on any Philippine highway.
Art 306 vs. PD 532, or the Anti-Highway Robbery Law
of 1974
Art. 306
Requires that there must be
at least 4 armed men

The mere formation of the


band of robbers for any of
the purposes mentioned will
bring about the crime
There is a predetermined or
preconceived victim

PD 532
No requisite as to the # of
perpetrators of the crime
Even a single person can
commit
the
crime
of
brigandage
There must be an actual
commission of the crime or
no crime will arise
There is no preconceived
victim. It is committed
indiscriminately
on
any
person passing on the
highway as long as it is
committed in a Philippine
highway.

Art. 308. Who are liable for theft. Theft is committed


by any person who, with intent to gain but without
violence against or intimidation of persons nor force
upon things, shall take personal property of another
without the latter's consent.
Theft is likewise committed by:
1. Any person who, having found lost property,
shall fail to deliver the same to the local
authorities or to its owner;
2. Any person who, after having maliciously
damaged the property of another,
shall
remove or make use of the fruits or object of
the damage caused by him; and
3. Any person who shall enter an inclosed estate
or a field where trespass is forbidden or which
belongs to another and without the consent of
its owner, shall hunt or fish upon the same or
shall gather cereals, or other forest or farm
products.
The definition is almost the same as robbery. The
difference lies in the case of robbery where there is
violence or intimidation of persons and use of force upon
things, while in theft, there is no violence, intimidation
against persons or force upon things.
Example:
1. A person who found a lost personal property of
another but did not give it to the police, there is
theft.
2. A damaged the property of B, he make use of that
damage.
3. There is a vacant lot guarded by X. A person
entered the vacant lot and took the fruits.
Valenzuela v. People
There is no frustrated theft. In this case, the offender took
boxes of tide from SM North Edsa and placed it in the taxi.
Before they were able to left the premises of SM, they were
apprehended.
The
offenders
were
charged
of
consummated theft. They did not deny that they committed
theft but their defense is that they committed frustrated
theft.
The SC En Banc in 2007 ruled that there is no crime as
frustrated theft. In case of theft, unlawful taking is deemed
complete the moment the offender gain possession of the
property of another, theft is consummated.
Art. 309. Penalties

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CRIMINAL LAW REVIEW Book 2 Notes

Atty. V. Garcia

When is theft qualified?


Art. 310. Qualified Theft
Theft is qualified in the following instances:
1. If theft is committed by a domestic servant
2. If committed with grave abuse of confidence
3. If the property stolen is a (a) motor vehicle, (b)
mail matter, or (c) large cattle
4. If the property stolen consists of coconuts taken
from the premises of the plantation
5. If the property stolen is taken from a fishpond or
fishery
6. If property taken on the occasion of fire,
earthquake, typhoon, volcanic eruption, or any
other calamity, vehicular accident or civil
disturbance.
Example:
A is a domestic servant. When his master was out of the
house, A went to the masters bedroom and took the
jewelries. In the information cited that he was a domestic
servant but the information did not state that A took the
jewelries with grave abuse of confidence. Is A liable for
qualified theft?
Yes, according to the Supreme Court, the law
uses the conjunction OR. The fact that the
accused is a domestic servant, it will suffice. The
law does not require that abuse of confidence to
be established. It will suffice that the accused is a
domestic servant.
A was a security guard. The owner of the house left his
key to the security guard. However, the security guard
used the key to open the house of the owner and took
the valuables. What crime is committed?
The Security Guard is liable for qualified theft
because of grave abuse of confidence.

RA 6539 (ANTI-CARNAPPING ACT)


Carnapping- is the taking with intent to gain, of motor
vehicle belonging to another without the consent of the
latter, or by means of violence against or intimidation of
persons, or by use of force upon things.
Elements:
1. Actual taking of motor vehicle
2. The vehicle belongs to another
3. There is intent to gain in the taking of the vehicle
of another
4. Said taking is taking without the consent of the
owner or by means of violence or intimidation or
by means of force upon things.

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Example:
A was driving his car and suddenly felt the need to
answer the call of nature so he parked his vehicle.
Suddenly, there was X and saw A was out of the car, and
the door of the car was open and the key was left inside
the car. X drove away with the car. What is the crime
committed?
The crime committed is carnapping. Even if there
is no violence or intimidation against person or
force upon things, so long as said taking is without
the consent of the owner, it will amount to
carnapping.
Under Sec. 14, the penalty if there no violence or
intimidation against persons or use of force on
things, the penalty is 14 years and 8 months to 17
years and 4 months.
In the given situation, what if A saw X and there was a
fight that ensued between them. X shot A, and X was
able to take the vehicle. A however survived due to
immediate medical treatment. What is/are the crimes
committed by X?
The crime committed by X is only carnapping. The
fact that X shot A, where there is frustrated
homicide, it falls under violence or intimidation
which was used by the offender in committing the
crime. Since there is violence, the penalty is 17
years and 4 months to 30 years.
If again, in the same problem, A tried to stop X and X
shot A. A died. What is the crime committed?
The fact that the owner is killed or raped as a
consequence, the penalty is reclusion perpetua to
death. It will bring about a higher penalty, but
not as a special complex crime because it is a
Special Penal Law. Though it is akin to a special
complex crime, the killing is absorbed. The crime
is carnapping. It is also not a bailable offense.

PD 533 (ANTI-CATTLE RUSTLING LAW)


Cattle Rustling - defined as the taking away by any
means, method or scheme, without the consent of the
owner/raiser, of any large cattle whether or not for profit or
for gain, or whether committed with or without violence
against or intimidation of persons or force upon things. It
includes the killing of a large cattle or taking it as a meat or
hide without the consent of the owner/raiser.
Large Cattle- shall include cow, carabao, horse, mule, ass,
or other domesticated member of the bovine family. Goats

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CRIMINAL LAW REVIEW Book 2 Notes


are not large cattle. (sabi nung isang justice sa SC na prof
naming dati, si Lawyer daw pag kinidnap cattle rustling daw
tawag dun. Ang evil nya!)
Example:
As carabao was tied on the mango tree. X saw the
carabao alone. So what X did was he untied the carabao
and took the carabao away. A saw X with his carabao so
A tried to catch up with X. As A was able to catch up with
X, a fight ensued. X took his bolo and hacked A to death.
What is the crime committed by X?
The crime committed by X is only cattle rustling.
The fact that the owner was killed is within the
meaning of violence or intimidation against
persons. It will not bring about a separate and
distinct crime of murder. The Anti-Cattle Rustling
Law, although a special law, is not malum
prohibitum but a malum in se. Under Sec. 10 of
the law, it is expressly provided that this law
amends Art. 309 and 310 of the RPC. Since it is
an amendment, the SC it is a malum in se and not
a malum prohibitum.
Art. 311. Theft of the property of the National Library
and National Museum.
The value of the property is immaterial because
the law prescribed the penalty of arresto mayor or
fine or both.
Chapter Four
USURPATION
Art. 312. Occupation of real property or usurpation of
real rights in property.

Atty. V. Garcia
the course of the argument, A and B killed the guard.
What is/are the crimes committed?
The crime committed is only occupation of real
property. The killing is only a means to occupy the
real property. It falls under violence against or
intimidation of persons in occupying the real
property.
In the same problem A and B put up their house in the
vacant property. The owner learned this and went to A
and Bs house. However, A and B killed the owner.
In this case, two crimes are committed. The killing
took place after occupying the place. This time,
the crimes committed are occupation and
homicide or murder as the case maybe.
Art. 313. Altering boundaries or landmarks. Any
person who shall alter the boundary marks or monuments
of towns, provinces, or estates, or any other marks
intended to designate the boundaries of the same, shall be
punished by arresto menor or a fine not exceeding 100
pesos, or both.
Chapter Five
CULPABLE INSOLVENCY
Art. 314. Fraudulent insolvency. Any person who shall
abscond with his property to the prejudice of his creditors,
shall suffer the penalty of prision mayor, if he be a
merchant and the penalty of prision correccional in its
maximum period to prision mayor in its medium period, if
he be not a merchant.

2 acts punished under Art 312:


1) Occupation of real property which is committed by
any person who by means of violence against or
intimidation shall occupy the real property of
another
2) Usurpation of real rights in property committed by
any person who by means of violence against or
intimidation shall usurp any real rights in property
of another person
Example:
There was a vacant lot. Here comes A and B and his
family. The said land or property was being guarded by
X. A and B went inside the vacant lot and tried to build a
nipa house because they do not have any house. And so
the guard told them that A and B has no right to build a
nipa house because the lot is owned by Y. However, A
and B told the guard that they do not have any house. In

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CRIMINAL LAW REVIEW Book 2 Notes

Atty. V. Garcia

CHAPTER SIX SWINDLING AND OTHER DECEITS

committed if there is an alteration or


substitution.

ART 315 SWINDLING/ESTAFA


THREE KINDS OF ESTAFA:
I.

ESTAFA WITH UNFAITHFULNESS OR ABUSE OF


AUTHORITY ART 315 (1)
ESTAFA BY MEANS OF FALSE PRETENSES OR
FRAUDULENT ACTS EXECUTED PRIOR TO OR
SIMULTANEOUSLY WITH THE COMMISSION OF
THE CRIME ART 315 (2)
ESTAFA THROUGH FRAUDULENT MEANS ART
315 (3)

II.

III.

Q: A and B entered into an agreement, A has to deliver to


B premium quality of marijuana. B paid. A delivered two
boxes of marijuana to B. When B reviewed the said boxes
of marijuana, B discovered that on the uppermost portion,
they were premium quality marijuana but on the lower
portion, they were of poor quality marijuana. Can B file a
case of estafa against A?
A: Yes, B can file a case of estafa with
unfaithfulness or abuse of confidence against
A. This is because the law says that even if it is
based on an illegal or immoral consideration,
there must be a substitution of the quality or
quantity, in this case, of the said dangerous drugs
which have been delivered by A to B.

ELEMENTS: (whatever be the crime of estafa, there are


always two general/common elements):
1.

2.

The offender defrauded another by reason of abuse of


confidence or by means of deceit.
It does not necessarily mean that there must
always be deceit. In lieu of deceit, estafa can
be committed by means of abuse of
confidence.
Damage or prejudice capable of pecuniary estimation
is caused to the offended party or to a third person.
It is necessary that there must be damage or
prejudice caused to the offended party or to a
third person.
The law requires that this damage or
prejudice must be capable of pecuniary
estimation because the penalty in estafa is
dependent on the damage caused to the
offended party. Hence, it is necessary that the
said damage or prejudice must be capable of
pecuniary estimation. You can estimate its
value because the penalty is dependent on
the value of the damage caused.

I.

Whatever be the kind of estafa, there must always


be the presence of these two elements.

ESTAFA WITH UNFAITHFULNESS OR ABUSE OF


CONFIDENCE
THREE PUNISHABLE ACTS:
a) By altering the substance, quantity, or quality
or anything of value which the offender shall
deliver by virtue of an obligation to do so, even
though such obligation be based on an
immoral or illegal consideration.
It can either be based on legal or illegal
consideration. The law does not take into
consideration that it must always be
legal. Even if the consideration is
immoral or illegal, still, estafa is

Dizon | Manalo | Navarez | Shyu | Tubio

b)

By misappropriating or converting, to the


prejudice of another, money, goods, or any
other personal property received by the
offender in trust or on commission, or for
administration, or under any other obligation
involving the duty to make delivery of or to
return the same, even though such obligation
be totally or partially guaranteed by a bond; or
by denying having received such money,
goods, or other property.
VERY POPULAR KIND OF ESTAFA
It is necessary that the offender received
from the offended party money, goods or
other personal property. When the said
offender receives such thing from the
offended party money, goods or personal
property, what has been transferred to
the
offender
was
JURIDICAL
POSSESSION of the said property.
If only material possession has been
transferred to the offender, and the
offender misappropriated or converted
the same, the crime committed is only
theft or qualified theft but not estafa. So
in order for the crime of estafa to arise, it
is necessary that the offender has
juridical possession of the money, goods
or personal property.
Juridical Possession is a possession
in the concept of an owner; it is a real
right over the property during the time
that the property is in his possession, he

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CRIMINAL LAW REVIEW Book 2 Notes

Atty. V. Garcia
A: The crime committed by the teller is only
Qualified Theft. It is not estafa because when A
gave the money to the teller to deposit to his bank
account, what has been transferred was only
material possession of the said money. It is not
the juridical possession taking into consideration
that the participation of the said teller is as that of
the bank, the teller being a mere employee of the
said bank. In fact, in case of deposits in bank, the
said client will not be able to get back the very
same money that he has deposited. Hence, the
crime committed by the teller is only qualified theft
but not estafa.

has better right even than that of the


owner of the said property.
Q: What if A rented a bicycle from B. A will use the bicycle
for three hours and shall pay B 500 pesos for the use of the
said bicycle. Upon payment, A is now using the bicycle.
Three hours had lapsed, A failed to deliver the bicycle to B.
B demanded the return of the bicycle. A did not return the
bicycle. Can B file a case of estafa against A?
A: B can file a case of estafa against A. Estafa
is the crime committed by A because when B gave
the bicycle to A, it was based on a contract of
lease (a contract of rent), hence, juridical
possession had been transferred from B to A. A,
during the three-hour period has juridical
possession over the said bicycle and during this
period, A has better right to the property than B,
the owner thereof. When A failed to return the said
bicycle to B after three hours, then he committed
estafa.

Q: What if A is an employee in a company, XYZ


corporation. He was a field worker and whenever he goes
to the field to work, he has this cash advance given by the
company. One time, he went to work with a cash advance,
however, upon returning to work, he failed to liquidate the
cash advance. A, despite notices by the company, failed to
liquidate the cash advance. So the corporation filed a case
against A. Will the case prosper?

Q: What if A told B to obtain a loan in his favor in a bank


and then he gave B his diamond ring as collateral for the
said loan. However, B, instead of using the ring as
collateral for the loan, B sold the ring and misappropriated
the proceeds of sale. What case, if any, may A file against
B? Is B liable for estafa?

A: The case will not prosper. The Supreme


Court said that a cash advance is equivalent to a
loan, therefore when the company gave cash
advance to the employee, there is not only
transfer of the said money to the employee but
transfer of ownership of the said money. The
employee is now the owner of the said money.
When you say liquidate, it means that he is paying
his indebtedness to the company, therefore their
relationship as employer and employee, insofar as
the cash advance is concerned, is that of a
creditor-debtor and not that of entrustor-entrustee.
Hence, there is no estafa committed, there is no
theft committed. The liability of the employee is
only civil in nature. The company can only file a
case of sum of money against the employee for
failing to pay his indebtedness in the form of cash
advance to the company.

A: B is not liable for Estafa. When A gave the


ring to B, what has been transferred to B is only
material possession of the ring. It is not juridical
possession because B is merely an agent of A so
that B will be the one to use the said ring as
collateral in order to obtain a loan in favor of A.
Juridical possession remains with the owner, A,
hence the crime committed is only qualified
theft.

Q: What if A is a regular customer in the bank. A went to


the bank, went to the teller who usually deposits his money
and he gave the teller 1 million in cash plus the passbook.
A told the teller, Here is my passbook and 1 million in
cash. Please deposit it to my account. I am in a hurry to go
to work and be back in the afternoon. A left the passbook
to the teller and went to the office. In the afternoon, before
going home, A went back to the bank, however the teller
was not there so A asked for his passbook. The bank gave
him the passbook but when A looked at the passbook, the
1 million was not deposited to his account. What
crime/crimes if any may A file against the teller on whom he
gave the said money to deposit in his bank account?

Dizon | Manalo | Navarez | Shyu | Tubio

c)

By taking undue advantage of the signature of


the offended party in blank, and by writing any
document above such signature in blank, to
the prejudice of the offended party or of any
third person.

Q: The manager of a company has a blank document


which contains only the signature. The manager gave it to
the secretary and told the secretary to use the document
for emergency purposes. When the manager left, the
secretary wrote in the document stating that the manager

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CRIMINAL LAW REVIEW Book 2 Notes

Atty. V. Garcia

will shoulder or pay his entire loan in a lending firm. What


crime is committed by the said secretary? Is the said
secretary liable for estafa or estafa through falsification of a
private document or falsification of a private document.
Which of the three crimes is committed by the secretary?

A: The crime committed is Estafa. This is


because the manager entrusted to the secretary
the document in blank which contains his
signature and the secretary wrote therein above
the signature to the prejudice of the manager
because the manager now assumes an obligation.
SO the crime committed by the secretary is estafa.

Q: What if in the same problem, the secretary placed the


blank document on top of his table. Here comes B, a
customer of the said company. B while talking to the
secretary saw the document with the signature of the
manager and so he surreptitiously took one of those
documents, brought it home and wrote in the document
above the signature that the manager shall be the one to
pay all his indebtedness in a lending firm. What crime is
committed by the said customer? Is the customer liable for
estafa or estafa through falsification of a private document.
A: The customer is liable for Falsification of a
Private Document under Art 172. This is because
he caused that the manager participated in an act
or proceeding when he did not so participate, one
of the acts of falsification punished in Article 171
and 172.

Why not estafa through falsification of a


private document?
Because there is no such crime as estafa
through falsification of a private
document. You cannot complex estafa
with falsification of a private document
because both estafa and falsification of a
private document HAVE DAMAGE AS
ELEMENT, and one and the same
damage cannot give rise to two crimes
therefore you can never complex estafa
and falsification of a private document. It
is either estafa or falsification of a private
document.
When is it estafa?
If estafa can be committed without
falsifying the private document but the
falsification of a private document merely
facilitated the commission of the crime,
then the appropriate charge is estafa

Dizon | Manalo | Navarez | Shyu | Tubio

II.

because the falsification of a private


document is merely incidental.
If estafa cannot be committed without
falsifying the private document, the crime
committed is falsification of a private
document because estafa is a mere
consequence.
So you only have to choose between
estafa and falsification of a private
document but you can never complex the
two. There is no such crime as estafa
through falsification of a private
document.
But there is such a thing as estafa
through falsification of a public document
because in falsification of a public
document, damage is not an element. So
in a deed of absolute sale was falsified in
order to deceive another in the crime of
estafa, it will give rise to the complex
crime of estafa through falsification of a
public
document,
estafa
through
falsification of an official document,
estafa through falsification of a
commercial document. Because in these
kinds of falsification, damage is not an
element.

ESTAFA BY MEANS OF FALSE PRETENSES OR


FRAUDULENT ACTS EXECUTED PRIOR TO OR
SIMULTANEOUSLY WITH THE COMMISSION OF
THE FRAUD
FIVE PUNISHABLE ACTS:

a) By using fictitious name, or falsely pretending


to possess power, influence, qualifications,
property,
credit,
agency,
business
or
imaginary transactions, or by means of other
similar deceits.
Q: What of there were four licensed nurses who all want to
work in Canada. Here comes X. X learned that A, B, C and
D passed the board so he went to their house and told
them that X has a placement agency that has all the
qualifications to help them find work in Canada. A, B, C and
D believed X, and X demanded that they give X 100k for
processing fees. They gave the money to X. A, B, C and
Dnever saw X again. Later X was arrested. What are the
crimes committed by X?

A: A, B, C and D can file two cases against X.


Estafa under article 315 (2)(a) and Illegal

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CRIMINAL LAW REVIEW Book 2 Notes


Recruitment in Large Scale under the Labor
Code. These two cases are cumulative and not
exclusive each other, hence, the offender can be
charged of these two crimes at the same time.

Estafa under 315 (2) (a) is committed because X


misrepresented to them that he has the
qualification and the agency to bring them to work
in another country when in fact, he does not have
such qualification and agency. Where it not for the
said misrepresentation by X, the offended parties
A, B, C and D would not have parted with the said
100 Thousand pesos in cash.

The other crime committed by X is Illegal


Recruitment in Large Scale. In Labor Code, if
Illegal Recruitment is committed against three or
more persons, individually or as a whole, it is
considered as Illegal Recruitment in Large
Scale. On the other hand, if it is committed by five
or more persons, it is considered as Syndicated
Illegal Recruitment. Both crimes are considered
crimes involving economic sabotage under the
Labor Code and is the reason why it is a nonbailable offense.

So if the only charge is estafa under 315 (2)


(a) is the only charge, the offender can post
bail but if there is also a charge of Illegal
Recruitment in Large Scale, then he shall be
behind bars while the case is ongoing.

b) By altering the quality, fitness, or weight of


anything pertaining to his art or business.
Q: In the market, you bought a kilo of apples. The vendor
put on the scale one apple which is already one kilo. What
crime if any is committed by the vendor?
A: The crime committed estafa by altering the
quality, fitness or weight of anything
pertaining to his art or business. He alters the
weight of the apple which pertains to his business
and therefore he can be held liable for estafa
under 315 (2)(b).

c) By pretending to have bribed a Government


employee

Dizon | Manalo | Navarez | Shyu | Tubio

Atty. V. Garcia
d) By postdating a check or issuing a check in
payment of an obligation when the offender
had no funds in the bank OR his funds
deposited therein were not sufficient to cover
the amount of the check.

Also a very popular form of estafa


estafa by postdating a check.

For this kind of estafa to arise, it is

necessary that the issuance of the check


must be in concomitance with the
defraudation (act of defrauding) because
note that Art 315 says that estafa by
means of false pretenses or fraudulent
acts exerted prior to or simultaneously
with the commission of fraud. Therefore,
it is necessary that the issuance of the
check is in concomitance with the
defraudation, that is, the offender would
not have parted with his property would it
not for the promise that the check would
be funded.
The offender is given a period of three
days to make good of the check. If the
offender failed to make good the check, it
is said to be prima facie evidence of
deceit constituting the fraudulent act or
false pretenses.

Q: A was constructing his vacation house. He was


suddenly run out of materials so A went to B. A told B that
he is in need of the construction materials. B said, okay,
you can get your construction materials. A said I dont
have money at the moment. I will pay next week. So B
gave the needed construction materials, boarded them in
As truck and A went. A week after, B went to A, asking for
the payment of the construction materials. A said B, I have
no money at the moment. B, I am issuing to you a check,
post-dated, on the thirtieth day of the month. B, I guarantee
you, on the thirtieth day of the month, this check will be
funded. I will have money deposited in here because it is
my payday. B received the check. On the thirtieth day of
the month, the date stated on the check, B deposited the
check, however the check was dishonored due to
insufficiency of funds. B sent a notice of dishonor to A.
However, A, despite receipt of the said notice of dishonor
failed to make good of the check or make arrangement with
the bank in order to cover the amount of the check. What
case, if any, can B file against A? May B file a case of
estafa under Art 315 (2)(d) against A or can B file a case of
violation of BP 22 against A?
A: B can only file a case of violation of BP 22
against A. B cannot file a case of estafa under
Art 315 (2) (d) because B has already boarded

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CRIMINAL LAW REVIEW Book 2 Notes

Atty. V. Garcia

the construction materials and A has already


taken the construction materials. A week later, B
went to A asking for the payment and it was only
at the time that A gave the check that bounced.
Therefore the issuance of the check was in
payment of an obligation which already exists at
the time. Estafa under 315 (2)(d) cannot be
committed if the check was issued in payment of a
pre-existing obligation because for estafa under
Art 315 (2)(d) to arise, it is necessary that the
issuance of the check is in concomitance with the
defraudation.

Q: A is in need of construction materials, he went to B. A


said he needed construction materials. B said he can get it
if he had money. A said he didnt have any money at the
moment but was issuing a postdated check instead dated
on the thirtieth day of the month. He guaranteed B that the
check will be funded on the thirtieth day of the month. B
received the check and boarded the construction materials
needed by A inside the truck of A. On the thirtieth day of
the month, B deposited the check but the check was
dishonored by the bank for insufficiency of funds. Notice of
dishonor was sent to A. However, despite of lapse of three
days, A failed to make good of the check or at least made
arrangement with the bank in order to cover the full amount
of check. May B file a case of estafa under Art 315 (2) (d)
against A? May B file a case of violation of BP 22 against
A?
A: B can file both Estafa under Art 315 (2) (d)
and violation of BP 22 against A. Estafa was
committed by A because the check was issued, it
was only received by B at the time of the
construction of materials was delivered. The check
was received by B upon guarantee given by A that
on the thirtieth day of the month, the check will be
funded. Therefore, the issuance of the check was
in concomitance with the defraudation. Estafa
under Art 315(2)(d) is committed.

Likewise, violation against BP 22 is committed


because violation of BP 22 will arise whenever a
check had been issued and the said check was
dishonored upon presentment to the drawee bank.
There immediately arises violation of BP 22. (The
essence of the crime of BP 22 is the issuance of a
worthless check)

A can be prosecuted for two crimes Estafa


under Article 315 (2)(d) and violation of BP 22 at
the same time. These remedies are committed not

Dizon | Manalo | Navarez | Shyu | Tubio

exclusively of each other therefore A can be


prosecuted at the same time of both cases.

e) By obtaining any food, refreshment or


accommodation at a hotel, inn, restaurant,
boarding house, lodging house, or apartment
house and the like without paying therefor,
with intent to defraud the proprietor or
manager thereof, OR by obtaining credit at a
hotel, inn, restaurant, boarding house, lodging
house, or apartment house by the use of any
false pretense, OR by abandoning or
surreptitiously removing any part of his
baggage from a hotel, inn, restaurant,
boarding house, lodging house or apartment
house after obtaining credit, food, refreshment
or accommodation therein without paying for
his food, refreshment or accommodation.
The offender went to a hotel or inn to
obtain
food,
refreshment
or
accommodation, he did not pay. Or he
obtain credit, he did not pay. Or his
goods are inside the hotel, he abandons
his goods, he abandons his valuables, he
surreptitiously removes parts of his
baggage therein.

III.

ESTAFA THROUGH FRAUDULENT MEANS


THREE PUNISHABLE ACTS:

a) By inducing another, by means of deceit, to


sign any document
CASE: INTESTATE ESTATE OF
MANOLITA GONZALES VDA. DE
CARUNGCONG v. PEOPLE
In this case, the Japanese son-in-law
asks the mother-in-law to sign a
document. He induced her to sign a
document saying that it was about taxes
but in truth and in fact, it is a SPA for the
sale of the property in Tagaytay and by
reason thereof, the mother-in-law, who
was already blind, signs the document
therefore Sato, the Japanese son-in-law,
was able to sell the said property. This is
the kind of Estafa by inducing another by
means of deceit to sign a document.

b) By resorting to some fraudulent practice to


insure success in a gambling game
In the book of Reyes, there was a
cockfight. The offender removed the
thing on the feet of rooster and so, by
reason thereof, he won the game. So the
offender resorted to some fraudulent

Page 123

CRIMINAL LAW REVIEW Book 2 Notes


practice to insure
gambling game.

success

in

Atty. V. Garcia
3. The drawer of the check failed to make
good of the check within 5 banking days.

the

c) By removing, concealing, or destroying, in


whole or in part, any court record, office files,
document, or any other papers

No prima facie knowledge of insufficiency of funds

BOUNCING CHECKS LAW (B.P. 22)


[relate to Art 315 (2) (d)]

SECTION 1 CHECKS WITHOUT SUFFICIENT FUNDS


ACTS PUNISHABLE:
I.

II.

Making or drawing and issuance of a check


knowing at the time of issue that the offender does
not have sufficient funds in the bank.
The drawer of the check knew that at the time of
the issuing of the check, he has no funds in the
bank
The failing to give sufficient funds or credit with
the drawee bank such that when the check
presented within the period of 90 days from the
date appearing on the check, it was dishonored by
the drawee bank.
At the time of the issuance of the check, the
drawer has funds in the bank, however, the crime
will arise because he failed to make good the
check or he failed to keep funds to the said
drawee bank within the period of 90 days such
that when the check was deposited within 90
days, it was dishonored by the drawee bank.

SECTION 2 PRIMA FACIE EVIDENCE


KNOWLEDGE OF INSUFFICIENCY OF FUNDS

This prima facie knowledge of insufficiency of


funds, however, will not arise if the drawer of
the check deposited the amount necessary to
cover the check within five (5) banking days
from the date of receipt of notice thereof.
Therefore, for the prima facie of knowledge of
insufficiency of funds to arise, the following
are the elements or the requisites:
1. The check must be deposited within 90
days from the date appearing on the check.
2. That the drawer of the check received a
notice of dishonor either from the bank or
from the payee or holder of the check

Dizon | Manalo | Navarez | Shyu | Tubio

Q: What if A issued a check to B in favor of an obligation, B


was however a businessman who was too busy so he was
able to deposit the check 120 days from the date appearing
on the check (beyond the 90-day period). The check
presented was dishonored. Notice of dishonor was sent to
A and A failed to make good the check within 5 banking
days. Can B still file a case for violation of BP 22 against
A?
A: Yes, B can file a case for violation of BP 22
against A. This is because for as long as a check
is not yet a stale check, if the check was
deposited and it was dishonored, violation of BP
22 is committed. Here, the check was deposited
120 days from the date appearing on the check.
The fact that it was deposited beyond the 90-day
period would only mean that there is no longer
prima facie presumption of knowledge of
insufficiency of funds. However, such prima facie
presumption knowledge of insufficiency of funds
can be proven through other evidence, so still,
violation of BP 22 is committed.

OF

The making, drawing and issuance of a check payment of


which is refused by the drawee because of insufficient
funds in or credit with such bank, when presented within
ninety (90) days from the date of the check shall constitute
prima facie knowledge of insufficiency of funds.

The drawer of the check received a notice of


dishonor within five days, he deposited the
amount in the bank to cover the check, there will
arise no prima facie evidence of knowledge of
insufficiency of funds.
Within 5 banking days, he went to the bank and
made arrangement for the amount necessary to
cover the check.
Five banking days is important

When is BP 22 not committed?


WONG v. CA
In this case, the check was deposited 157 days
after the date appearing on the check.
The SC said that it is not yet a stale check. A
check becomes stale when it is deposited after six
months or after 180 days.

Q: B was so busy, he deposited the check on the 181st day


from the date appearing on the check. The check was
dishonored. Can he file a case of violation of BP 22 against
A?
A: No, B cannot file a case of violation of BP
22 against A. This is because the check has no
more value since it is already a stale check under
the Negotiable Instruments Law. It is no longer the
fault of the drawer that he has no funds in the

Page 124

CRIMINAL LAW REVIEW Book 2 Notes


bank. It is the fault of the holder or the payee of
the check that he failed to deliver or deposited the
check within the period required by law.

Atty. V. Garcia

ART. 316 OTHER FORMS OF SWINDLING


OTHER FORMS OF SWINDLING CAN BE COMMITTED
BY THE FOLLOWING:

SECTION 1 PENALTY

1.

Under Section 1 of BP 22, the penalty for violation of BP 22


is imprisonment of 30 days to 1 year or a fine not less than
but not more than double the value of the check or in no
case to exceed 200, 000 pesos, or both fine and
imprisonment at the discretion of the court

2.

3.

Are these still the penalties or have they been


amended by the SC by SC-A.C. No. 12-2000 and
SC-A.C. No. 13-2001?
The penalty of 30 days to 1 year and the fine
are still the penalty prescribed by law. Even if
the SC issued these two circulars, the SC
cannot amend the law. The SC does not have
that power; only congress has that power.

4.
5.

SC-A.C. No. 12-2000


It is stated in SC-A.C. No. 12-2000 that in lieu of
imprisonment, the penalty to be imposed in violation of BP
22 should only be fine, that is, if based on the facts and
circumstances of the offense and the offender, the check
was issued in good faith or under mere mistake of fact
without any taint of negligence. SC said that the
appropriate penalty should be fine in lieu of imprisonment.
Because of this SC-AC No. 12-2000, many MTC
judges imprisonment is no longer a penalty for violation of
BP 22. They thought that now, the penalty for violation of
BP 22 is only fine. And because of this misunderstanding
on the part of MTC judges, the SC has to issue another
administrative circular, the SC-A.C. No. 13-2001 in order to
clarify SC-A.C. No. 12-2000.
SC-A.C. No. 13-2001
The SC made the following clarifications:
1. The SC-A.C. No. 12-2000 does not remove
imprisonment as an alternative penalty for violation of
BP 22. Therefore, imprisonment is still a penalty for
violation of BP 22.
2. What SC-A.C. No. 12-2000 only establishes is a rule
of preference on the imposition of the penalty such that
if the offender acted in good faith or under mere
mistake of fact without any taint of negligence, the
appropriate penalty is fine in lieu of imprisonment.
3. The SC said if the penalty imposed by the court is
fine only, and the said offender or drawer of the check
is insolvent to pay the fine, then there is no legal
obstacle for the imposition of subsidiary imprisonment
under Art. 39 of Book I of RPC.

Dizon | Manalo | Navarez | Shyu | Tubio

6.

Any person who, pretending to be owner of any


real property, shall convey, sell, encumber or
mortgage the same.
Any person, who, knowing that real property is
encumbered, shall dispose of the same, although
such encumbrance be not recorded.
The owner of any personal property who shall
wrongfully take it from its lawful possessor, to the
prejudice of the latter or any third person.
Any person who, to the prejudice of another, shall
execute any fictitious contract.
Any person who shall accept any compensation
given him under the belief that it was in payment
of services rendered or labor performed by him,
when in fact he did not actually perform such
services or labor.
Any person who, while being a surety in a bond
given in a criminal or civil action, without express
authority from the court or before the cancellation
of his bond or before being relieved from the
obligation contracted by him, shall sell, mortgage,
or, in any other manner, encumber the real
property or properties with which he guaranteed
the fulfillment of such obligation.

Q: What if A is a debtor, in order to defraud his creditor, A


as the debtor, has an obligation which is due and
demandable. He has only 1 property a property in
Quezon City which can be attached by his creditor. Now,
in order to defraud his creditor, he executed a fictitious
contract selling the said property to B with the intention to
defraud his creditor. What is the crime committed by A? Is
A liable for Fraudulent Insolvency under Art. 314 or is A
liable of other forms of swindling under Art. 316?
A: A is liable of other forms of swindling under
Art. 316. Because the contract that he executed in
favor of B is only a fictitious contract. It is not a
real contract of sale conveying his property to B.
Q: What if A is a debtor, in order to defraud his creditor, A
as the debtor, has an obligation which is due and
demandable. He has only 1 property a property in
Quezon City which can be attached by his creditor. To
defraud his creditor what he did was, he sold the said
property to B via a deed of absolute sale, his intention to
defraud his creditor. What crime if any is committed by A?

Page 125

CRIMINAL LAW REVIEW Book 2 Notes

Atty. V. Garcia
CHAPTER SEVEN CHATTEL MORTGAGE

A: A committed Fraudulent Insolvency. The


contract is a real transfer of property from A to B.
It is not a fictitious contract.

Art. 319 REMOVAL,


MORTGAGED PROPERTY

If it is a fictitious contract the crime committed is


other forms of swindling under Art. 316
If it is not - the crime committed is Fraudulent
Insolvency

Who is liable?
Any person who taking advantage of the
inexperience or emotions or feelings of a
minor, to his detriment, shall induce him to
assume any obligation or to give any release
or execute a transfer of any property right in
consideration of some loan of money, credit
or other personal property, whether the loan
clearly appears in the document or is shown
in any other form.

I.

Who is liable?
Any person who, for profit or gain, shall
interpret dreams, make forecasts, tell
fortunes, or take advantage of the credulity of
the public in any other similar manner.
If the offender commits any act of swindling, any act of
deprivati0n not punishable under Art. 315, 316 and
317, it is punishable under Art. 318 Other Deceits.
So any other form of deprivation would be under Art.
318 Other Deceits.

Q: What about Madam Auring? She tells fortune. What if a


person went to Madam Auring asking for his fortune and
what is in his future, and based on the readings of the card,
Madam Auring said You will get sick on this particular day.
You will die upon this particular day. Because of this, the
person could no longer sleep. He has been thinking about
his sickness and his death. Can he file a case against
Madam Auring for Other Deceits under Art. 318?
A: Yes, he can file a case of Other Deceits
against Madam Auring. Because obviously for
profit or for gain, Madam Auring tells his fortune,
which is obviously an erroneous one. How can
someone predict the death of a person? How can
someone predict when a person will be ill or sick?
Obviously it is done in order to defraud this person
and this person had been damaged because this
person could no longer sleep and can think only of
his sickness and death.

PLEDGE

OF

Any person who shall knowingly remove any personal


property mortgaged under the Chattel Mortgage Law
to any province or city other than the one in which it
was located at the time of the execution of the
mortgage, without the written consent of the
mortgagee, or his executors, administrators or assigns.
Any mortgagor who shall sell or pledge personal
property already pledged, or any part thereof, under
the terms of the Chattel Mortgage Law, without the
consent of the mortgagee written on the back of the
mortgage and noted on the record hereof in the office
of the Register of Deeds of the province where such
property is located.

II.

Art. 318 OTHER DECEITS

OR

ACTS PUNISHABLE

Art. 317 SWINDLING A MINOR

SALE

CHAPTER EIGHT ARSON AND OTHER CRIMES


INVOLVING DESTRUCTIONS

ARTICLES 320 326 speak about Arson. These had


already been repealed by PD 1613 THE LAW ON
ARSON. However, although Articles 320 326 had been
repealed by PD 1613, Article 320 has been brought back
into life by RA 7659.

That is why, insofar Article 320, the crime is


Destructive Arson. And we have PD 1613 which
punishes Simple Arson or Other Cases of Arson.
Do not consider Section 2 of PD 1613 which punishes
Destructive Arson because Destructive Arson is
under Article 320 of the RPC as it has been brought
back by RA 7659.

Q: What if there was this maid, the want to go to the


province, lets say it was Christmas time. He asked
permission from the master of the house, the master of the
house did not allow the maid to go to her province. So the
maid got mad. To make revenge, she burned the house at
night and left the house. However, the master of the house
together with his family were not awakened by the said
burning and so they all died by reason of the said fire. Not
only that, the sad burning of the house of the master also
affected 5 nearby houses. All in all, 5 houses were burned
by the said fire and also the master and said members of
the family all died in the course of the said fire. What crime
is/are committed by the said helper?
A: The helper is liable only for the crime of
Simple Arson Other Cases of Arson under PD

Dizon | Manalo | Navarez | Shyu | Tubio

Page 126

CRIMINAL LAW REVIEW Book 2 Notes


1613 Sec. 3. The fact that the master died
would only qualify the penalty imposable of her.
But, it will not bring about the crime of Arson with
Homicide. There is no such crime as Arson with
Homicide or Arson with Multiple Homicide.

Why is it that the crime committed is only


Simple Arson or Other Cases of Arson?
The crime committed is Simple Arson or
Other Cases of Arson because the fact that
what the maid burned is an inhabited house
or dwelling, the crime is only Simple Arson or
Other Cases of Arson.

Destructive Arson is found under Art 320 of the


RPC while Simple Arson and other arson is
repealed by PD 1613 repealing Article 320 to 326
B of the RPC. Even though there are five deaths,
the deaths will be absorbed in the crime of arson
and will only qualify the penalty to death. The
maid is only liable for simple arson, because what
has been burned is an inhabited dwelling. For as
long as the thing burned is an inhabited house or
dwelling, the crime committed is simple arson. If in
the course of burning the dwelling, homicide
results, the crime committed is still arson.
If the intention is to kill the offended
party, and the means employed is through burning
the house, the crime committed is MURDER. If
however, the intention of the offender is to destroy
the property of the offended party by fire, and the
offender did not know that someone is inside and
death results, the crime is still simple arson. It will
only qualify the penalty to RP to death.

Atty. V. Garcia
ART. 320 DESTRUCTIVE ARSON
HOW IS DESTRUCTIVE ARSON COMMITTED?
1.

2.

3.

4.

5.

There is also destructive arson in the following


instances:
1.

Q: A killed B while sleeping. The crime committed is


murder. In order to conceal the crime, A burned the house.
A: This time, there are two crimes committed. A is
liable for Murder for killing B and Arson, in
order to hide the crime committed. The arson
committed is destructive arson, as it is defined by
the law.

So what is Arson?
Arson is the malicious destruction of the property
by means of fire.

One or more buildings or edifices, consequent to


one single act of burning, or as a result of
simultaneous burnings or committed on several or
different occasions;
Any building of public or private ownership,
devoted to public in general, or where people
usually gather or congregate for a definite purpose
such as but not limited to official government
function or business, private transaction,
commerce,
trade
workshop,
meetings,
conferences, or merely incidental to or for a
definite purpose such as but not limited to motels,
transient dwellings, public conveyances or stops,
or terminals, regardless of whether the offender
had knowledge that there are persons in said
building or edifice at the time set on fire and
regardless also of whether the building is actually
inhabited or not.
Any train, locomotive, ship or vessel, airship or
airplane, devoted to transportation or conveyance,
or for public use, entertainment and leisure;
Any building, factory, warehouse installation and
any other appurtenances thereto, which are
devoted to the service of public utilities;
Any building the burning of which is for the
purpose of concealing or destroying the evidence
of another violation of law, or for the purpose of
concealing bankruptcy or defrauding creditors or
to collect from insurance.

2.

When the arson is committed by 2 or more


persons, regardless of whether their purpose is
merely to burn or destroy the building or the
burning merely constitutes an overt act in the
commission of another violation of the law;
When any person shall burn:
a. Any arsenal, shipyard, storehouse or
military power or fireworks factory,
ordinance, storehouse, archives or
general museum of the Government; or
b. In an inhabited place, any storehouse or
factory of inflammable or explosive
materials.

2 KINDS OF ARSON:
1.
2.

DESTRUCTIVE ARSON punished under Art.


320 of the RPC
SIMPLE ARSON punished under PD 1613
particular Section 3

Dizon | Manalo | Navarez | Shyu | Tubio

Q: What if in the course of the commission of Destructive


Arson, someone died. The airplane was burned. The
purpose was to burn the said airplane. Unknown to the
offender, someone was inside the said airplane and the
said person died. What crime is committed by the offender?

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CRIMINAL LAW REVIEW Book 2 Notes


A: The offender is liable for Destructive Arson
under Article 320. The fact that someone died
will not give rise to a complex crime. The crime
committed is only Arson.
After the last paragraph of Article 320, it is stated that
if as a consequence of the commission of any of the acts
constituting Arson, death results, then, the mandatory
penalty of death shall be imposed. So here, the fact that
someone died in the course of the commission of
Destructive Arson would mean that the penalty to be
imposed of the said offender would be death. But, the
crime committed is only Arson. There is no such thing as
Arson with Homicide.

ANTI-ARSON LAW (P.D. 1613)


SIMPLE ARSON OR OTHER CASES OF ARSON IS
COMMITTED IF WHAT HAS BEEN BURNED IS:
1.
2.
3.
4.
5.
6.

Any building used as offices of the government or


any of its agencies;
Any inhabited house or dwelling;
Any industrial establishment, shipyard, oil well or
mine shaft, platform or tunnel;
Any plantation, farm, pasture land, growing crop,
grain field, orchard, bamboo grove or forest;
Any rice mill, sugarmill, cane mill, or mill central;
Any railway or bus station, airport, wharf, or
warehouse.

Q: A plantation was burned. While the plantation was


burning, the field worker was sleeping and the field worker
died as a result of the said burning of the plantation. What
crime is committed by the offender?
A: The crime committed by the offender is only
Simple Arson or Other Cases of Arson under
PD 1613.

What about the fact the someone died?


Under Section 5 of PD 1613, if by
reason or on occasion of the said arson,
death results, the penalty shall be
reclusion perpetua to death.Therefore,
the crime committed is only Arson.
You do not complex it with Homicide. But
the fact that someone died, the penalty is
qualified. The penalty is increased to
reclusion perpetua to death.

Atty. V. Garcia

If as a result of the commission of any acts of


destructive arson, death results, the penalty
should be death.

PENALTY
FOR
SIMPLE
ARSON:
TEMPORAL TO RECLUSION PERPETUA

RECLUSION

Under Section 5 of PD 1613, if by reason or on


the occasion of simple arson, death results, the
penalty is reclusion perpetua to death.
Therefore, whatever may be the crime may be, if
by reason of said arson, death results, it will
aggravate the crime of arson and the homicide
will be absorbed in the arson.

Q: What if a person wants to kill B. So in order to kill B, B


was sleeping inside his nipa hut, A burned the said nipa hut
and so, B died while sleeping. What crime is committed by
A?
A: A committed the crime of murder. His
intention is to kill B by burning.
Q: If A went inside the house of B and then he saw B and
stabbed B several times. B died. Thereafter, to conceal the
killing of B, a burned the house of B. it was a total burn.
A: This time, A committed two crimes. Murder
for killing B treacherously and Arson, because
he burned the house of B in order to conceal the
commission of the said act of killing. The arson
committed is simple arson.

Q: What if A wanted to get revenge at B so he decided to


burn the property of B. in the course thereof, a servant was
sleeping inside. What crime is committed by A?
A: A is liable only for Arson. The fact that
someone is killed in the course of the said Arson,
the crime committed is only arson. And the fact
that the said servant died while the said burning
took place, you only qualify the penalty, the crime
committed is Arson and the penalty is qualified to
reclusion perpetua to death.

Q: What if A wanted to burn the property of B. So what he


did was he poured gas on the said walls of the property.
However, before he could set the property on fire.
Someone saw him and so, he was arrested. What crime is
committed?
A: The crime committed is Attempted Arson.

PENALTY FOR DESTRUCTIVE ARSON: RECLUSION


PERPETUA TO DEATH
Q: What if A placed rags near the property of B. His
intention is to burn the property of B. and then he placed

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CRIMINAL LAW REVIEW Book 2 Notes


gasoline on the said rags and set fire on the said rags. The
rags were burning. However, before said fire could have
burned any of the structure of the house, A was already
arrested. What crime is committed?
A: Some legal luminaries say, the crime
committed is frustrated arson. Other legal
luminaries say there is no such crime as frustrated
arson.

Pros. Garcia is on the second luminary. She


believes that there is no such crime as frustrated
arson because arson is the burning of the property
of another by means of fire. The moment any part
of the said structure or building is burned, arson is
already consummated. If no part of the said
structure or building is burning, it is only Attempted
Arson. There cannot be a circumstance of
frustrated arson.
Because how did a crime frustrate a felony? A
frustrated felony is committed when the offender
has performed all the acts of execution that would
produce the felony but nevertheless the felony
was not produced by reason of the causes
independent of the will of the perpetrator. The
offender has performed all the acts of execution in
the crime f arson, for the offender to be said that
he had performed all the acts of execution, it is
necessary that the building or the property has
already been burned, otherwise, it cannot be said
that he has performed all the acts of execution.

Atty. V. Garcia
It is a crime which can only be committed by means of
intent. There must be deliberate intent to cause damage to
the property of another, because if there is no intent to
cause damage in the property, the liability will be damages
only; civil liability and not criminal liability.
In order for a crime to be considered as malicious mischief,
it is necessary that there must be DELIBERATE INTENT to
cause damage to the property of another. Absent that
deliberate intent to damage, to injure the property of
another, it cannot be considered as malicious mischief. The
said offender will only be liable for damages for causing
damage to the property of another; civil liability and not
criminal liability. Or, if there was negligence, imprudence on
his part, it would be reckless imprudence or simple
negligence causing damage to property. But for malicious
mischief to arise, it is necessary that there must be
deliberate intent to damage the property of another, only for
the purpose of damaging it or for the purpose of invoking
revenge.

Q: A and B were fighting, and in the course of their fight, A


fell on the floor and the floor was damaged.
A: The liability will only be a civil action for
damages.

ART. 328 SPECIAL CASES OF MALICIOUS


MISCHIEF/QUALIFIED MALICIOUS MISCHIEF
(Penalty is qualified)
1.

So by the definition of a frustrated felony, she is


with the other legal luminaries who say that there
is no such thing as frustrated arson. Because the
moment any part of the property has been
burned, it is already considered as
consummated arson.

Art. 327 MALICIOUS MISCHIEF

Who are liable for malicious mischief?


Any person who shall deliberately cause the
property of another any damage not falling
within the terms of the next preceding chapter
shall be guilty of malicious mischief.

Malicious Mischief is the willful damaging of anothers


property for the sake of causing damage due to hate,
revenge or other evil motive.
If the intention of the offender is to cause damage in the
property of another, by any means outside arson, is
malicious mischief.

Dizon | Manalo | Navarez | Shyu | Tubio

2.
3.
4.

Causing damage to obstruct the performance of


public functions;
Using poisonous or corrosive substances
Spreading any infection or contagion among cattle
Causing damage to the property of the National
Library or to any archive or registry, waterworks,
road, promenade, or any other thing used in
common by public

ART. 329 OTHER MISCHIEFS

Other damage would constitute ordinary malicious


mischief.
The mischiefs not included in the next preceding
article.

ART. 330 DAMAGE AND OBSTRUCTION TO MEANS


OF COMMUNICATION

What is punished is the damage and obstruction to


means of communication.
Who is liable?

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CRIMINAL LAW REVIEW Book 2 Notes

The penalty of prision correccional in its medium


and maximum periods shall be imposed upon any
person who shall damage any railway,
telegraph or telephone lines.
If the damage shall result in any derailment of
cars, collision or other accident, the penalty is
qualified to prision mayor, without prejudice to
the criminal liability of the offender for the other
consequences of his criminal act.
For the purpose of the provisions of the article, the
electric wires, traction cables, signal system
and other things pertaining to railways, shall be
deemed to constitute an integral part of a railway
system.

ART. 331 DESTROYING OR DAMAGING STATUES,


PUBLIC MONUMENTS OR PAINTINGS

Who is liable?
Any person who shall destroy or damage statues
or any other useful or ornamental public
monument. (penalty of arresto mayor in its
medium period to prision correccional in its
minimum period)
If what has been damaged are only private
monuments or private paintings, it is only ordinary
malicious mischief.
Any person who shall destroy or damage any
useful or ornamental painting of a public nature
shall suffer the penalty of arresto menor or a fine
not exceeding 200 pesos, or both such fine and
imprisonment, in the discretion of the court.

CHAPTER TEN EXEMPTION FROM CRIMINAL


LIABILITY IN CRIMES AGAINST PROPERTY
Art. 332 PERSONS EXEMPT FROM CRIMINAL
LIABILITY.

No criminal, but only civil liability, shall result from the


commission of the crime of THEFT, SWINDLING (or
estafa) or MALICIOUS MISCHIEF committed or
caused mutually by the following persons:
1. Spouses, ascendants and descendants, or
relatives by affinity in the same line.
2. The widowed spouse with respect to the property
which belonged to the deceased spouse before
the same shall have passed into the possession of
another; and
3. Brothers and sisters and brothers-in-law and
sisters-in-law, if living together.

The exemption established by this article shall not be


applicable to strangers participating in the

Dizon | Manalo | Navarez | Shyu | Tubio

Atty. V. Garcia
commission of the crime. This exempting circumstance
will not apply to strangers. If the strangers connived
with any the persons mentioned in Article 332, so in
that case, the stranger is liable, only the enumerated
persons is not criminally liable.

INTESTATE ESTATE OF MANOLITA GONZALES VDA.


DE CARUNGCONG v. PEOPLE:

The Supreme Court said, this absolutory cause or


exempting circumstance under Article 332 applies
exclusively to simple crimes of theft, swindling (or
estafa) and malicious mischief. The exemption
under Article 332 will not arise, it will not absorb
the offender if the crime committed is already a
complex crime.

In this case, the son-in-law of a Japanese National


committed estafa through falsification of a
public document. Because the special power of
attorney was falsified. Since the crime committed
was estafa through falsification of a public
document, the Supreme Court said, the said sonin-law can be held criminally liable. So this apply
only to simple cases of theft, swindling (or estafa)
and malicious mischief.
The son in law a Japanese National , by means of
deceit made his mother in law sign a SPA, said
SPA was used to sell the property of Tagaytay.
The mother died without receiving the proceeds of
the sale. The daughter of the mother wanted to file
a case against the son-in law. Note that the wife of
the Japanese national is already deceased. Does
article apply in this case where the crime
committed is estafa even if the wife of the
Japanese National is already dead?
The relationship by affinity is still existing. The
purpose is to ensure harmony within the family.
Article 332 will still apply. The son-in-law may be
prosecuted. The crime is estafa through
falsification of public document. The crime
committed is the complex crime of estafa through
falsification of public document. Article 332 will not
apply though there is a relationship because the
crime is already complexed.

Based on jurisprudence:
The word SPOUSES include paramours and
mistresses, and other wives.
The word ASCENDANTS include step father and
step mother.
The word DESCENDANTS include step children,
adopted children and natural children.

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CRIMINAL LAW REVIEW Book 2 Notes

Atty. V. Garcia

The reason is that the exempting circumstance, the


absolutory cause under Article 332 is made in order to
insure HARMONY within the family.

TITLE ELEVEN
CRIMES AGAINST CHASTITY
(Articles 333 346)

CHAPTER ONE ADULTERY AND CONCUBINAGE

Example:
A, the wife had sexual intercourse with B, the lover.
H, the husband can file a case for adultery against the
both of them. During trial of the merits, B was able to
prove beyond reasonable doubt that A represented
herself to be single and that B believed that she was
indeed single.

ART. 333 WHO ARE GUILTY OF ADULTERY


Adultery is committed by any married woman who shall
have sexual intercourse with a man not her husband and
by the man who has carnal knowledge of her knowing her
to be married, even if the marriage be subsequently
declared void.

Adultery shall be punished by prision correcional in its


medium and maximum periods.
If the person guilty of adultery committed this offense while
being abandoned without justification by the offended
spouse, the penalty next lower in degree than that provided
in the next preceding paragraph shall be imposed.
The penalty shall be mitigated; therefore it is akin
to a mitigating circumstance.

Legally Married Woman

Offended party

Husband

To whom shall the case


be filed

Wife and Lover

Who shall file

Only by the Offended


Husband

The wife can be convicted for adultery


and the lover has his defense that he did
not know that the woman is married. It is
a matter of defense.

Both shall still be prosecuted. Otherwise, the case will


not prosper under Art. 344

Offender

Without the complaint filed by the offended


spouse, no crime.
o
Therefore, the state cannot, on its own,
file a case of adultery against the wife.
If the lover does not know that the woman is
married, still the husband should file the case
on both of them.
o
It is a matter of defense only on the lover
to say that I do not know that she is
married.
o
So, there are cases wherein only one is
convicted and the other one is acquitted.

If wife is abandoned by her husband without


justification, mitigated
Adultery is a crime of consequence, so there is
no attempted or frustrated stage.
o It is always in the consummated stage.
o It is an instantaneous crime
consummated upon the carnal union of
the wife with the lover of the wife.
Adultery may be proven by circumstantial
evidence.

Example:
ELEMENTS:
1.
That the woman is married
2.
She has sexual intercourse with a man who is not
her husband
3.
As regards the man whom she has sexual
intercourse, he must know her to be married

The husband was working in Saudi for 10 years, and upon


reaching home, he sees his wife pregnant for 9 months,
obviously, if the wife is not a victim of rape, the wife
committed adultery.

ART. 334 CONCUBINAGE


Adultery is a private crime.

It can only be prosecuted by the offended


spouse.

Dizon | Manalo | Navarez | Shyu | Tubio

Any husband who shall keep a mistress in the conjugal


dwelling, or shall have sexual intercourse, under
scandalous circumstances, with a woman who is not his
wife, or shall cohabit with her in any other place, shall be

Page 131

CRIMINAL LAW REVIEW Book 2 Notes


punished by prision correccional in its minimum and
medium periods.

Atty. V. Garcia

The concubine shall suffer the penalty of destierro.

Q: What if a married man who had sexual intercourse with


a woman inside a motel. Is the man liable for concubinage?

ELEMENTS:
1.
2.

The man must be married


That he committed any of the following acts:
a. Keeping a mistress in the conjugal
dwelling;
b. Having
sexual
intercourse
under
scandalous circumstances;
c. Cohabiting with her in any other place
The woman must know that the man must be
married

3.

The best witnesses are the neighbors of the


husband. It must be in such a manner that the
neighbors are shocked.

A: NO, because it was done in secrecy. In order for


the husband to be liable for concubinage by having
sexual intercourse with a woman who is not his wife,
it is necessary that the sexual intercourse was
committed under scandalous circumstances. Their
sexual congress must set a bad example,
misconduct among the people in the neighborhood.

THIRD ACT: COHABITING WITH A WOMAN IN ANY


OTHER PLACE
Offender

Legally Married Husband

Offended party

Wife

To whom shall the case


be filed

Husband and Concubine

Who shall file

Only by the Offended Wife

CHAPTER TWO RAPE AND ACTS OF


LASCIVIOUSNESS

Just like adultery, Concubinage is a private crime.

The wife must initiate the filing of the complaint


because it is a private crime.
Without the complaint, the state cannot, on its
own, file the case of concubinage
The wife must file the case against both the
husband and the concubine and is married.

Q: What if the concubine does not know that the husband


is married?
A: It is a matter of defense on the part of the
concubine that she was also deceived. She did not
know that the man is married. But she also must be
prosecuted.

Cohabitation means that the husband and the


concubine were living together as if they were
husband and wife without the benefit of marriage.

Art. 335 - RAPE IS ALREADY REPEALED. Rape is no


longer a private crime. It is already a public crime and
located under title 8, crimes against persons.

TWO KINDS OF ACTS OF LASCIVIOUSNESS:


1.
2.

Acts of Lasciviousness under circumstances of rape


under Art. 336
Acts of Lasciviousness under circumstances of
seduction under Art. 339
When the offended party consented to the
acts of lasciviousness

ACTS OF LASCIVIOUSNESS refers to acts which is


prompted by lust or lewd design.

ART. 336. ACTS OF LASCIVIOUSNESS


FIRST ACT: KEEPING A MISTRESS IN THE CONJUGAL
DWELLING

The conjugal dwelling refers the house of the


husband and the wife
Husband brought her to the house

Any person who shall commit any act of lasciviousness


upon other persons of either sex, under any of the
circumstances mentioned in the preceding article, shall be
punished by prision correcional.
ELEMENTS:
1.

SECOND ACT: HAVING SEXUAL INTERCOURSE


UNDER SCANDALOUS CIRCUMSTANCES

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2.

That the offender commits any act of


lasciviousness or lewdness;
That the act of lasciviousness is committed
against a person of either sex;

Page 132

CRIMINAL LAW REVIEW Book 2 Notes

CHAPTER THREE SEDUCTION, CORRUPTION OF


MINORS AND

3.

That it is done under any of the following


circumstances:
a. Using force or intimidation
b. When the offended party is deprived of
reason or otherwise unconscious
c. By means of fraudulent machination or
grave abuse of authority
d. When the offended party is under 12
years of age or demented
It is committed with unchaste design and done under
circumstances of rape.

Atty. V. Garcia

Offender any person


Offended party any person

Q: Offender is the woman while the offended party is a


man. The man was being held by 2 other men when the
woman undressed the man, touched the private parts of
the man. What crime is committed?
A: Acts of Lasciviousness under circumstances
of rape under Art. 336. Under Art. 336, the offender
and the offended party may be any person. The man
was held by other two men and the act of the woman
was prompted by lust or lewd design. Therefore it is
acts of lasciviousness under circumstances of rape.

WHITE SLAVE TRADE


TWO KINDS OF SEDUCTION:
1.
2.

Qualified Seduction
Simple Seduction

ART. 337 QUALIFIED SEDUCTION


The seduction of a virgin over twelve years and under
eighteen years of age, committed by any person in public
authority, priest, home-servant, domestic, guardian,
teacher, or any person who, in any capacity, shall be
entrusted with the education or custody of the woman
seduced, shall be punished by prision correccional in its
minimum and medium periods.
The penalty next higher in degree shall be imposed upon
any person who shall seduce his sister or descendant,
whether or not she be a virgin or over eighteen years of
age.
Under the provisions of this Chapter, seduction is
committed when the offender has carnal knowledge of any
of the persons and under the circumstances described
herein.
TWO KINDS OF QUALIFIED SEDUCTION:

Q: In a school, the woman after unbuttoning the pants of


the said man, the woman forcibly entered the penis of the
man inside her mouth. Is the crime committed rape by
sexual assault?
A: No, but it is acts of lasciviousness. If you look
at rape by sexual assault, it is committed by the man
inserting his penis into another persons mouth or
orifice. It is the offender who must insert his penis
into the mouth or orifice. In the problem, it is not the
man who inserted his penis. It was the woman who
forcibly inserts the penis of the man inside her mouth.
Therefore, crime committed is only acts of
lasciviousness, because in rape by sexual assault, it
is the offender who has the penis and inserted it
forcibly to another.

1.

Seduction of a virgin over 12 years of age and under


18 years of age by persons who abuse their authority
or confidence reposed in them
ELEMENTS:
1.
2.
3.

The offended party must be a virgin


She must be over 12 and under 18 years of age
The offender is a person in public authority, priest,
house servant, domestic, teacher, guardian or any
person, in any manner, shall be entrusted with the
education or custody of the woman seduced
The offender had sexual intercourse with of the
said offended party
There is abuse of authority, confidence or
relationship on the part of the offender

4.
5.

Offended party must be:


o
Virgin
o
over 12 under 18 years of age
If the victim is under 12 years of age, even if there
was consent, it is statutory rape.
Offender must be:
o
o

Dizon | Manalo | Navarez | Shyu | Tubio

Person in public authority


priest

Page 133

CRIMINAL LAW REVIEW Book 2 Notes


o
o
o
o
o

house servant
domestic
teacher
guardian
any person who has custody of the seduced
woman

VIRGINITY does not refer to physical virginity.


It would suffice that the woman is not married, she is
single and living a chaste life.
The law presumes that she is a virgin.

Atty. V. Garcia
In case of simple seduction, the offended party must be a
WOMAN who is single or widow of good reputation, over
12 but must be under 18 years of age.
Offender any person

DECEIT- the offended party gave herself to the man


because of the latters promise.

2.

sexual intercourse is an element of any kind of


seduction. It is committed with the abuse of
authority, confidence or relationship.

Seduction of a sister by her brother or descendant by


her ascendant, regardless of her age and reputation.
Offended party must be:
o

Sister or Descendant

Offender must be:


o

Brother or Ascendant

The brother or ascendant had sexual intercourse with


the sister or descendant, which is committed with
abuse of relationship.
Age does not matter. Even if the sister is 18 and
above, still, seduction can still be committed.
Status in life is not an element. Even if she is a
married woman, still, there can be seduction.
(Virginity does not matter)

ART. 338 SIMPLE SEDUCTION


The seduction of a woman who is single or a widow of
good reputation, over twelve but under eighteen years of
age, committed by means of deceit, shall be punished by
arresto mayor.
ELEMENTS:
1.
2.
3.
4.

Offended party is over 12 and under 18 years of


age
She must be of good reputation, single or widow
Offender has sexual intercourse with her
It is committed by means of deceit.

Dizon | Manalo | Navarez | Shyu | Tubio

who had sexual intercourse with her by means of


deceit.

It may come in the form of inducement, a false


promise.

Q: In order to have sexual congress with the woman, the


man promised to marry the woman. The woman who
believed the promise gave herself to the man. What crime
is committed if any by the said man?
A: Simple seduction. In order to induce the woman
to give up her virginity was due to the deceit employed.

Q: The woman committed sexual congress with a married


man because the man promised that he will marry the
woman.
A: The SC said that there is no seduction. The fact
that the woman knows that the man is married, the
man cannot marry her. There is no deceit.

ART. 339 ACTS OF LASCIVIOUSNESS WITH THE


CONSENT OF THE OFFENDED PARTY
The penalty of arresto mayor shall be imposed to punish
any other acts of lasciviousness committed by the same
persons and the same circumstances as those provided in
Articles 337 and 338.

This is done with the consent of the offended party


This is under circumstances of seduction.

Offender: Man
Offended Party: Woman

In seduction, the offended party is always the woman


ELEMENTS:
1.
2.

Offender commits acts of lasciviousness or


lewdness
Acts were committed upon a woman who is a
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

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CRIMINAL LAW REVIEW Book 2 Notes


3.

Offender accomplishes the acts by :


a. Abuse of authority
b. Abuse of confidence
c. Abuse of relationship
d. Means of deceit

ART. 340 CORRUPTION OF MINORS


Any person who shall promote or facilitate the prostitution
or corruption of persons underage to satisfy the lust of
another, shall be punished by prision mayor, and if the
culprit is a pubic officer or employee, including those in
government-owned or controlled corporations, he shall also
suffer the penalty of temporary absolute disqualification.
(As amended by Batas Pambansa Blg. 92).

Corruption is committed by persons who:


1.

Promote or facilitate the prostitution or the


corruptions of minors in order to satisfy the lust
of another
It is committed by pimps, or more commonly
known as Bugaw

Q: If the offender is a public officer or employee, including


those in the government owned-controlled corporations?
A: there
disqualification

is

an additional temporary absolute

ART. 341 WHITE SLAVE TRADE


The penalty of prision mayor in its medium and maximum
period shall be imposed upon any person who, in any
manner, or under any pretext, shall engage in the business
or shall profit by prostitution or shall enlist the services of
any other for the purpose of prostitution (As amended by
Batas Pambansa Blg. 186.)
PUNISHABLE ACTS:
I.
II.
III.

Engaging in the Business of Prostitution


Shall Profit by Prostitution
Enlist the services of any woman for the purpose of
prostitution

Atty. V. Garcia
The same penalty shall be imposed in every case, if the
female abducted be under twelve years of age.
Forcible Abduction- abduction, taking away, or carrying
away of a woman against her will and with lewd design.

Woman can be any person.


Regardless of age, virginity, civil status. They are not
material.
For as long as the taking away is done with lewd
design and against her will.

Sexual intercourse is NOT an element.


If by reason of or on the occasion of forcible
abduction, the man had sexual intercourse with the
woman, it may result in a COMPLEX CRIME OF
RAPE WITH FORCIBLE ABDUCTION.

Q: Nena was waiting near the gate of her house, while


waiting for her father. Suddenly here comes Pedro. Pedro
abducted her. Forcibly took her away from her house and
brought her inside his house. The said taking was done
with lewd design. So Pedro held Nena inside her house for
7 days. Pedro said, Marry Me, Nena said, I will never
marry you. By reason thereof, Pedro rape Nena, and
during the 7 days when Nena was held in captivity inside
the house of Pedro, Pedro rape her one time a day. There
were 7 acts of rape. What crime/s is/are committed by
Pedro?
A: The crimes committed by X are 7 crimes. Pedro
shall be charged by 7 information. 1 crime forcible
abduction with rape and 6 crimes of distinct and
separate charges of rape. One act of sexual
intercourse constitute equals one charge. Here, only
1 rape can be complexed with forcible abduction. It is
a complexity of crimes under Art. 48, Book I of the
Revised Penal Code. It is not a special complex
crime, but merely a complex crime.

only 1 forcible abduction is necessary to commit


the crime of rape and only 1 rape is necessary to
bring about complex crime of forcible abduction
with rape.

Chapter Four ABDUCTION


TWO KINDS OF ABDUCTION:
1.
2.

Forcible Abduction
Consented Abduction

ART. 342 FORCIBLE ABDUCTION


The abduction of any woman against her will and with lewd
designs shall be punished by reclusion temporal.

Dizon | Manalo | Navarez | Shyu | Tubio

Q: In the same case, the Nena was inside the house of the
Pedro. Pedro tried to rape Nena, he attempted to rape,
however, Nena was able to put up a fight and Nena kicked
Pedro, as a result, she ran outside the house. What crime/s
is/are committed by Pedro?
A: 2 crimes are committed, Forcible Abduction and
Attempted Rape. BUT one charge can be filed which

Page 135

CRIMINAL LAW REVIEW Book 2 Notes


is FORCIBLE ABDUCTION. The attempt to rape
Nena is only the manifestation of the lewd design
which is an element of forcible abduction. Therefore,
he can only be charged of Forcible abduction.
o
o

Attempted rape was absorbed in the element of


lewd design.
No such thing as Forcible Abduction with
Attempted Rape.

ART. 343 CONSENTED ABDUCTION


The abduction of a virgin over twelve years and under
eighteen years of age, carried out with her consent and
with lewd designs, shall be punished by the penalty of
prision correccional in its minimum and medium periods.
ELEMENTS:
1.
2.
3.
4.

The woman must be a virgin


She must be over 12 years but under 18 years of
age
The taking away must be with her consent, after
solicitation or cajolery from the offender
The taking away must be with lewd designs.

Offended party :
o
o

Atty. V. Garcia
WITH RAPE. Abduction was a necessary means in
order to commit rape.
Q: The girl was 15 and the boyfriend was 25. The said
boyfriend was able to take away the girl with her consent.
The parents of the girl filed a case. Per Maam, she was
able to handle a similar case where the girl was 16 and the
man was above 18. The parents of the girl do not like the
man so the lovers eloped and lived in the house of the
man. The mother filed a case of consented abduction.
During the P.I., the said girl loved the man and even if the
mother will take her away from the man, she will always
return to the man. Also, the woman has keys of the house
of the man. Per maam the man was not at fault because it
was always the woman who would go to the mans house.
So she dismissed the case.
In qualified seduction and consented abduction, acts of
lasciviousness in circumstances of seduction: INSTANCES
WHERE VIRGINITY IS AN ELEMENT

Note: In consented abduction, sexual intercourse is not an


element, so if after the woman ran away with the man, yet
she does not want to have sexual intercourse but the man
forced her and was able to succeed in having sexual
intercourse, the crime committed is consented abduction
with rape.

She must be a virgin


Over 12 and under 18 years of Age

Offender: Any Person

CHAPTER FIVE - PROVISIONS RELATIVE TO THE


PRECEDING

Taking away of the woman must be WITH HER CONSENT.

It was with her consent because it was made after


solicitation or cajolery from the offender

NOTE: the age (12-18) is what makes the crime of


abduction.
Q: A and B were girlfriend and boyfriend. A was a virgin
who was 16 years old, the man is 25 years old. The
parents did not like the man. So with the inducement from
the said man, with the solicitation, A and B decided to
elope. So the man carried away the said woman with her
consent and with lewd design and put the woman inside his
house. That night while they were sleeping, the said man
tried to have sexual congress with the virgin girl. However,
the girl refused. Nevertheless, the man by use of force, was
able to have sexual congress with her. What crime/s is/are
committed by B, the boyfriend?
A: Consented Abduction, There was taking away of
the woman with lewd design and with her consent. In
the course thereof, the man raped the girl, because
force was used in the sexual intercourse, therefore
there is another crime of rape. You have a
COMPLEX CRIME OF CONSENTED ABDUCTION

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CHAPTERS OF TITLE ELEVEN


ART. 344 PROSECUTION OF THE CRIMES OF
ADULTERY,
CONCUBINAGE,
SEDUCTION,
ABDUCTION, RAPE AND ACTS OF LASCIVIOUSNESS
The crimes of adultery and concubinage shall not be
prosecuted except upon a complaint filed by the offended
spouse.

The offended party cannot institute criminal prosecution


without including both the guilty parties, if they are both
alive, nor, in any case, if he shall have consented or
pardoned the offenders.

The offenses of seduction, abduction, rape or acts of


lasciviousness, shall not be prosecuted except upon a
complaint filed by the offended party or her parents,
grandparents, or guardian, nor, in any case, if the offender
has been expressly pardoned by the above named
persons, as the case may be.

Page 136

CRIMINAL LAW REVIEW Book 2 Notes

In cases of seduction, abduction, acts of lasciviousness


and rape, the marriage of the offender with the offended
party shall extinguish the criminal action or remit the
penalty already imposed upon him. The provisions of this
paragraph shall also be applicable to the co-principals,
accomplices and accessories after the fact of the abovementioned crimes.

CRIME

WHO MAY
FILE

Atty. V. Garcia

Civil Liability of Persons guilty of Rape, Seduction, or


Abduction:
1. To indemnify the offended woman.
2. To acknowledge the offspring, unless the law
should prevent him from so doing.
3. In every case to support the offspring.

Q: What if it is a gang rape, so let us say that 5 men raped


the said woman, how can there be acknowledgement
because the woman suddenly became pregnant and all of
them are convicted. All of them shall indemnify the
offended party. How about the acknowledgement?
FILED AGAINST

A: It can be easily determined from the DNA


testing.

Adultery

Husband

Wife and the Lover

Concubinage

Wife

Husband and the


Concubine

These are private crimes which can be prosecuted


upon the complaint filed by the private proper party.

Seduction, Abduction, Acts of Lasciviousness

These are private crimes which can be prosecuted


upon the complaint by:
a. Offended party
b. Parents
c. Grandparents
d. Guardians in the order named above
In Seduction, Abduction and even public crime of
Rape, the subsequent marriage of the offended party
and the offender shall extinguish the liability and shall
remove the penalty already imposed by the court

ART. 345 CIVIL LIABILITY OF PERSONS GUILTY OF


CRIMES AGAINST CHASTITY Person guilty of rape,
seduction or abduction, shall also be sentenced:
1. To indemnify the offended woman.
2. To acknowledge the offspring, unless the law
should prevent him from so doing.
3. In every case to support the offspring.

The adulterer and the concubine in the case provided


for in Articles 333 and 334 may also be sentenced, in
the same proceeding or in a separate civil
proceeding, to indemnify for damages caused to the
offended spouse.

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ART. 346 LIABILITY OF ASCENDANTS, GUARDIANS,


TEACHERS, OR OTHER PERSONS ENTRUSTED WITH
THE CUSTODY OF THE OFFENDED PARTY
The ascendants, guardians, curators, teachers and any
person who, by abuse of authority or confidential
relationships, shall cooperate as accomplices in the
perpetration of the crimes embraced in chapters, second,
third and fourth, of this title, shall be punished as principals.

Teachers or other persons in any other capacity entrusted


with the education and guidance of youth, shall also suffer
the penalty of temporary special disqualification in its
maximum period to perpetual special disqualification.

Any person falling within the terms of this article, and any
other person guilty of corruption of minors for the benefit of
another, shall be punished by special disqualification from
filling the office of guardian.

ANTI-SEXUAL HARRASMENT ACT OF 1995 (R.A. 7877)


Sexual Harassment is about power. It is the use of sex as
an instrument or means of domination or supremacy.
Sexual Harassment in work, education and training-related
environment is committed by:
1. employer
2. employee
3. manager
4. supervisor
5. agent of employer
6. teacher
7. instructor

Page 137

CRIMINAL LAW REVIEW Book 2 Notes

Atty. V. Garcia

8. professor
9. coach
10. trainor
11. any person who having authority, influence or
moral ascendancy over another person
shall demand, request or otherwise requires sexual
favor from the other, regardless if whether the sexual
favor is accepted by the offended party.

2.
3.

IN
WORK
RELATED
ENVIRONMENT,
SEXUAL
COMMITTED WHEN:
1.

2.
3.

OR
EMPLOYMENT
HARASSMENT
IS

Sexual favor is made as a condition in the hiring,


or in the employment of said individual, or in
granting said individual favorable compensation,
terms, conditions, promotions, or privileges; or
the refusal to grant the sexual favor results in
limiting, segregating, or classifying the employee
which in any way would discriminate, deprive or
diminish employment opportunities or otherwise
adversely affect said employee;
The above acts would impair the employers
rights or privileges under existing labor laws; or
The above acts would result in an intimidating,
hostile or offensive environment for the
employee.

IN AN EDUCATION OR TRAINING ENVIRONMENT,


SEXUAL HARASSMENT IS COMMITTED:
1.
2.

3.

4.

Against one who is under the care, custody or


supervision of the offender
Against one whose education, training,
apprenticeship or tutorship is entrusted with the
offender
When the sexual favor is made a condition to the
giving of a passing grade, or the granting of
honors and scholarships, or the payment of a
stipend, allowance or other benefits, privilege or
consideration or;
When the sexual advances result in the
intimidating, hostile, or offensive environment for
the student trainee or practice.

Q: A is the victim of sexual harassment. What are the


remedies on the part of A? What is/are cases may A file
against the offender B?
A: A has 3 Remedies under the Law.
1.

She can file a case for violation of R.A.


7877 and the penalty is imprisonment of 1
month to 6 months or a fine of P10,000 to
P20,000 or both fine and imprisonment at
the discretion of the court

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She can file a civil action for damages or


any other affirmative defense
She can also file an administrative case
against the said offender. If he is a doctor,
she can file a case at the head of the
hospital; if he professor, she can file a
case at the head of the school.

These remedies are CUMULATIVE. They are not


exclusive of each other
o
The offended party may, therefore, file all 3
cases at the same time.
o
A criminal case, civil case, and administrative
case for the expulsion or suspension of the
said offender.

PEOPLE v. JACUTIN
There was this nursing graduate who wanted to
apply for work and so she applied for work at the City
Health Office. She was interviewed, but before the
interview end, the City Health Officer told her to meet him
in a certain place. And so, the City Health Officer went to
the said place and picked up the girl and inside the car he
asked the girl to lower down her pants to see if there are
varicose veins. He said it was part of the Physical
Examination to lower her pants. However, the moment that
the City Health Officer inserted his hands inside the
genitalia of the girl, the said woman immediately pull up her
pants. Then, the said City Health Officer to put up her shirt.
The moment the girl put up her shirt, she thought it was still
part of the physical examination. The City Health Officer
fondled with her breast, and that was the moment that the
girl took her bag and left out of the said car. And so, the girl
wanted to file a case of violation of R.A 7877 against the
City Health Officer. It was a hard struggle for the girl, the
police came to the girl giving her money for the girl not to
pursue the case. All the relatives of the girl convinced her
not to file a case against the City Health Officer. So this is
the fight of the girl alone. She won
The SandiganBayan convicted the Officer. After, an
appeal to the Supreme Court, the Supreme Court convicted
the said Officer and impose upon him the maximum penalty
of 6 months imprisonment and a fine of P20,000 plus moral
damages in the amount of P30,000 and exemplary
damages in the amount of P20,000.

The Penalty for sexual harassment is so low


o
Imagine only 1 to 6 months and a fine of
P10,000 to P20,ooo
o
So if you become congressmen and senators,
you can amend the law, increase the penalty

Page 138

CRIMINAL LAW REVIEW Book 2 Notes


ANTI PHOTO and VIDEO VOYEURISM ACT OF 2009
(R.A 9995)
ACTS PROHIBITED:
I.

Taking photo or video coverage of a person or a group


of persons performing sexual act or any similar activity
or to capture an image of a private area of a person
such as the naked or undergarment clad genitals,
public area, buttocks, or female breasts without the
consent of the persons involved and under
circumstances in which the person/s has/have a
reasonable expectation of privacy
It is necessary for the crime to arise, there must be NO
consent on the part of the said offended party. And, it
must be in place where he or she has a reasonable
expectancy of privacy.

II.

To copy or reproduce, or to cause to be copied or


reproduced such photo or video or recording of sexual
act or any similar activity with or without consideration

III.

To sell or distribute or to cause to be sold or distributed


, such photo or video or recording of sexual act,
whether the original copy or reproduction thereof;

IV.

To publish or broadcast, or to cause to be published or


broadcast whether in print or broadcast media, or
show or exhibit the photo or video coverage or
recordings of such sexual act or any similar activity
through VCD/DVDV, internet, cellular phones and
other similar means or device.

Atty. V. Garcia
Q: What if the woman went to the mall, there was a need to
answer the call of nature, she went to the rest room. In the
rest room, she saw a camera inserted near and in between
the wall of the said cubicle. The janitor placed it there. Is
the Janitor liable under R.A 9995?
A: Yes, he is liable for R.A. 9995.

Case of Hayden Kho and Katrina Halili


If their case took place after the effectivity of this
act, Hayden Kho should not be off the hook. It just so
happen that this act was not yet enforced at that time. So
the case filed against him is violation of R.A. 9262
Violence against woman and their children. Because the
reason why the RTC dismissed the case was that,
according to the said court, there was consent given by
Katrina Halili and so, according to the court, there was no
violence against women and their children. But had R.A
9995 in effect at that time, even if consent was allegedly,
although not proven, given by Katrina Halili, Hayden Kho
can be held liable under the 2nd and the 3rd Act. He was so
lucky that this law was not yet in effect at that time.

Q: What if A and B are lovers, as lovers they often had


sexual congress. So A the man, told the girl can I videotape
our sexual congress, the girl said yes. So the girl
consented. So, while they engage in sexual congress, it
was being videotaped by the man. Is the man liable under
R.A. 9995?
A: No, he is not liable, because there was a
consent given by the said girl.

Q: What if the man reproduced and distributed the said


tape. Is the said man liable?
A: Yes, he is liable.

PENALTY: imprisonment of not less than 3 years but


not more than 7 years AND fine of not less than 100k
but not more than 500k, or both the fine and
imprisonment at the discretion of the court.

Dizon | Manalo | Navarez | Shyu | Tubio

Page 139

CRIMINAL LAW REVIEW Book 2 Notes

Atty. V. Garcia

TITLE TWELVE
CRIMES AGAINST THE CIVIL STATUS OF PERSONS
(Articles 347 352)

CHAPTER ONE SIMULATION OF BIRTHS AND


USURPATION OF CIVIL STATUS
ART. 347 SIMULATION OF BIRTHS, SUBSTITUTION
OF ONE CHILD FOR ANOTHER AND CONCEALMENT
OR ABANDONMENT OF A LEGITIMATE CHILD
THREE ACTS PUNISHED UNDER ART. 347:
1.

Simulation of birth
Simulation of birth- takes place when the woman
pretends to be pregnant when in fact she is not and on
the day of the delivery, takes the child of another as
her own.

If the simulation is done in the birth certificate,


the crime committed is simulation of birth
If the simulation is done in any other document
aside from birth certificate, the crime committed
is falsification of a public or private document as
the case may be.

Q: A was a pregnant. She told the midwife that she does


not want the baby. The midwife said that she knew a
couple who wanted a child. The couple arrived and the
mother gave the child to the couple. This couple took the
baby and registered the child as their own. What are the
crimes committed and who are criminally liable?
A: All of them are all liable for simulation of
birth. The mother, the midwife and the couple.
The said couple pretended that the child is their
own child. In that case, said child lost its original
status.
2.

Substitution of a child with another


In substitution of a child with another, the classic
example is MARA and CLARA.
Mara was substituted as Clara and Clara was
substituted as Mara. As a result, Mara loses
her real civil status of being a daughter of a
rich family and assumes a new civil status of
being a daughter of a poor family. The same
happened to Clara, Clara assumes a civil
status of being a daughter of a rich family and
loses her real civil status of being a daughter
of a poor family. Crime committed is
Substitution of a child with another child

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3.

which tend the child to lose his or her real civil


status
Concealing or abandoning any legitimate child with
intent to cause such child to lose its civil status

The offender conceals or abandons the legitimate child


and the intention of the offender is to lose the childs civil
status.
It is necessary that the child is legitimate, not illegitimate.

Q: A and B husband and wife had a child. the child was


born without legs. So A and B could not accept the fact that
their child has no legs. They brought the child in the forest
for the child to die, to a forest with no people. Thereafter,
left the child. What crime is committed by A and B?
A: If the child died, and the child was less than 3
days old, the crime committed is infanticide. If not,
the crime committed is attempted infanticide if the
child was later on discovered and rescued.

If the child is above 3 days old, the crime committed


would be parricide, in case the child died when left
in the forest. Or, it not, attempted parricide.

Q: What if A and B, instead of going to the forest, went to


the mall. The mother went inside the restroom and placed
the said child in one of the cubicles in one of the restrooms
of the mall. What crime is committed by the mother and the
husband?
A: Abandoning the Minor under Art. 276. The
parents left her deliberately, consciously, and
permanently, without intent to kill. There was no
intent to kill because they could not kill the child.
They left it inside the restroom therefore obviously
there was no intent to kill.

Q: What if this husband and wife and the child that they
have happens to be their 13th child. They already had 12
children and these children are not going to school. So their
13th child was born and they wrapped the child in a nice
towel, placed it inside a basket and then placed it at the
gate of the house of a rich family. Then they rang the bell.
What crime is committed by the husband and the wife?
A: Violation of Art. 347 Abandoning a legitimate
child with intent to lose its real civil status.
Obviously, the intent of the parents is for the child,
their 13th child to lose its real civil status of being that
of a poor family and assume a new civil status of
coming from a rich family because the child was left
at the gate and the parents rang the bell.

Page 140

CRIMINAL LAW REVIEW Book 2 Notes

NOTE: It depends on the intent of the offender. It could be


any other crime, depending on the intent of the offender.

Atty. V. Garcia
marriage has not yet been declared null and void by
the court, or her spouse is absent and he or she
contracts a second or subsequent marriage before
the court has declared that the said spouse is
presumptively dead

ART. 348 USURPATION OF CIVIL STATUS


The penalty of prision mayor shall be imposed upon any
person who shall usurp the civil status of another, should
he do so for the purpose of defrauding the offended part or
his heirs; otherwise, the penalty of prision correccional in its
medium and maximum periods shall be imposed.

It shall be committed by any person who shall usurp


the civil status of another, who shall assumes the
filiation, or the paternal, or the marital rights of
another
Intention of the offender is to enjoy the civil rights
arising from the civil status of the person whom he
impersonates.
If the intention of the offender is to defraud the
offended party, or his heirs, the penalty is
QUALIFIED.
CHAPTER TWO ILLEGAL MARRIAGES

ART. 349 BIGAMY

Old case in the Book:


The wife contracted a second marriage because she
inquired from the relatives of the husband and the relatives
of the husband said, He is already dead and because of
that, the wife contracted a second or subsequent marriage.
The first husband appeared, and filed a case of bigamy
against the said wife. Is the wife liable for bigamy?

Is there such a crime of bigamy through reckless


imprudence?

The penalty of prision mayor shall be imposed upon any


person who shall contract a second or subsequent
marriage before the former marriage has been legally
dissolved, or before the absent spouse has been declared
presumptively dead by means of a judgment rendered in
the proper proceedings.
ELEMENTS:
1.
2.

3.
4.

That the offender has been legally married


That the marriage has not been legally
dissolved, in case his or her spouse is absent,
the absent spouse could not yet be presumed
dead according to the Civil Code
That he contracts a second or subsequent
marriage
That the second or subsequent marriage has all
the essential requisites for validity.

Bigamy shall be committed by any person who shall


contracts a second or subsequent marriage before
the former marriage has been legally dissolved, or
who shall contract a subsequent or second marriage
before the absent spouse has been declared
presumptively dead, meaning in a decision made in
an appropriate proceedings.
The offender is a married person, but he contracted a
second or subsequent marriage, his previous

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The court said that the woman is liable for


bigamy through reckless imprudence, because
according to the court, there was imprudence
because just by mere reliance on the statement
made by the parents of the husband, she
already contracted a second marriage

I do not believe in that decision. It is impossible


for this crime to have happened. because the
law says, without the first marriage being
legally dissolved, it means there must be a
court declaration of nullity of marriage, without
that the absent spouse being declared
presumptively dead in a decision made in an
appropriate proceeding, there must be a court
decision.
Since there is a need of a court decision before
one could contract a second or subsequent
marriage, there cannot be an instance of
bigamy through reckless imprudence. The
moment the said married person contracted a
second or subsequent marriage, without any
court decision, the crime committed is evidently
BIGAMY. It cannot be done through reckless
imprudence or simple negligence.

Sample problem:
A and B are married. B, the husband fell in love with
another woman, and married the woman thereafter. It is
now a bigamous married. A bigamous marriage is an
otherwise valid marriage, except for the fact that there is a
subsisting marriage.

Page 141

CRIMINAL LAW REVIEW Book 2 Notes

Atty. V. Garcia

ART. 350 MARRIAGE CONTRACTED AGAINST


PROVISIONS OF LAWS
The penalty of prision correccional in its medium and
maximum periods shall be imposed upon any person who,
without being included in the provisions of the next
proceeding article, shall have not been complied with or
that the marriage is in disregard of a legal impediment.

A: This is to en sure that there is no doubt as to the


paternity of the child to be delivered, in order for the
child to know who is his father. Otherwise, if he is not
the one who died, he is the new husband of the wife.

If either of the contracting parties shall obtain the consent


of the other by means of violence, intimidation or fraud, he
shall be punished by the maximum period of the penalty
provided in the next preceding paragraph.

Illegal marriage- marriage


requisites of the law.

contracted

without

the

Committed by any person who shall contract a


marriage knowing that he was not able to comply
with the requisites of law or if there is a legal
impediment of the said marriage.
In the Family Code, before one can contract a
marriage, there is the so called essential and formal
requisites. All of these must be complied with. The
absence of any of these, the contracting parties
knows its absence, yet contracted the marriage, the
liability falls under Art. 350 f0r illegal marriage.

The period of 301 days is only important if the


woman is not pregnant
If the woman is pregnant at the time of the death or
at the time of the declaration of the nullity of
marriage, it is only at the time of the delivery of the
baby. After the baby is delivered, she can already
marry because there is no doubt as to the paternity of
the child.
Nowadays, you can easily determine the paternity of
the child through DNA testing.

ART. 352 PERFORMANCE OF ILLEGAL MARRIAGE


CEREMONY
Priests or ministers of any religious denomination or sect,
or civil authorities who shall perform or authorize any illegal
marriage ceremony shall be punished in accordance with
the provisions of the Marriage Law.

Q: What if the priest, or the minister who contracted or


solemnized the marriage, knows that there is a legal
impediment or knows that the parties failed to comply with
the requisites, What is the liability?
A: Liability is under Art. 352. Under Art. 352, there is
a liability of any priest, or minister of any
denomination or religious sect, or also civil authorities
who shall contract or solemnize any marriage which
is not in accordance with any requisites of the law.
ART. 351 PREMATURE MARRIAGES
Person Liable:
1.

2.

A woman who married within 301 days from the


death of her husband, or before delivery of her
baby if she is pregnant at the time of his death
A woman whose marriage having been annulled
or dissolved, married before delivery or before
expiration of the period of 301 days after the date
of legal separation.

Q: Why is a woman prohibited from marrying for a period of


301 days?

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CRIMINAL LAW REVIEW Book 2 Notes


TITLE THIRTEEN
CRIMES AGAINST HONOR
(Articles 353 364)

Atty. V. Garcia
Q: What if A, in the same incident, using a microphone,
using an amplifier sound system, called B isa kang
estafadora. Is the crime committed libel or is it oral
defamation?
A: The crime committed is Oral Defamation or
Slander. The use of the microphone or the amplifier
is not within the means provided for Art. 355.

CHAPTER ONE LIBEL


Section One: Definitions, forms, and punishment of
this crime.
DEFAMATION Kinds of Defamation:
1.
2.
3.

Written defamation or Libel


Oral defamation or Slander
Slander by deed

THIRD ELEMENT:

Identity of the person- must be identified, not


necessary that the person must be named or
described.
It suffices that any reader or a person who heard
would know that he is the person being referred to.
The moment a 3rd party has recognized or has known
that he is the one being referred to in the defamatory
statement, the identity of the offended party is
already present.

ART. 353 DEFINITION OF LIBEL

LIBEL is public and malicious imputation of a crime, or of


a vice or defect, whether real or imaginary, or any act,
omission, condition, status, or circumstance tending to
cause the dishonor, discredit, or contempt of a natural or
juridical person, or to blacken the memory of one who is
dead.

FOURTH ELEMENT in relation


Requirement for Publicity:

ELEMENTS:

1.

2.
3.
4.

There must be an imputation or allegation of a


crime, or a vice of defect, whether real or
imaginary, or any act or omission, condition,
status or circumstance which tend to dishonor or
discredit a natural or juridical person.
That there must be a publication of the said
defamatory statement or article
The identity of the person defamed must be
established or identified
The existence of malice

SECOND ELEMENT:

Publication- satisfied the moment that a 3rd person


has heard or read the libelous statement, even if the
person pertained has not heard or read it.
o
So the basis is that a 3rd person has heard or
read the libelous statement.

Q: What if A, in national television said, ikaw B, isa kang


estafadora. A accused B of the crime of estafa. Is the
crime committed libel or oral defamation (slander)?
A: The crime committed is LIBEL. According to the
Supreme Court, Television is within the phrase any
similar means.

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to

Art.

354

As a rule, every defamatory statement is presumed to


be MALICIOUS, even if it is true.
In defamatory statements, if the offender cannot state
any good intention or justifiable motive for stating
defamatory statements, the law presumes malice.
MALICE IN LAW Prosecution need not prove
malice. It is the defense who must prove that in
stating the defamatory statements, there was no
malice on the part of the offender because the law
presumes malice in law.
There are certain statements wherein the law does
not presumes malice. In this kind of malice, it must be
proven by the prosecution. This is MALICE IN FACT.
It is available in privilege communication.
o
It is the burden of the prosecution to prove the
existence of malice on the part of the offender
when he said the defamatory mark or
statement. Otherwise, if not proven. There will
be an acquittal.

ART. 354 REQUIREMENT FOR PUBLICITY


Kinds of Privilege Communications (Exceptions)
1.

A private communication made by any person to


another in the performance of any legal, moral or
social duty; and

2.

A fair and true report, made in good faith, without


any comments or remarks, of any judicial,
legislative or other official proceedings which are

Page 143

CRIMINAL LAW REVIEW Book 2 Notes


not of confidential nature, or of any statement,
report or speech delivered in said proceedings,
or of any other act performed by public officers in
the exercise of their functions.

These are considered as privilege communications.


The said prosecution, the complainant must prove
malice, otherwise, there will be an acquittal of the
said offender or accused.

ART. 355 LIBEL MEANS BY WRITINGS OR SIMILAR


MEANS
A libel committed by means of writing, printing, lithography,
engraving, radio, phonograph, painting, theatrical
exhibition, cinematographic exhibition, or any similar
means, shall be punished by prision correccional in its
minimum and medium periods or a fine ranging from 200 to
6,000 pesos, or both, in addition to the civil action which
may be brought by the offended party.

If the defamatory statement or article is published


through any of these means, then, the crime
committed is LIBEL.

Atty. V. Garcia
Q: If you will not give me P100,000, I will publish on the
magazine, on the newspaper, your love letters to the said
man who is not your husband. What crime is committed?
A: Crime committed is Threatening to Publish
a Libel, also a form of Blackmailing.

BLACKMAILING is an unlawful extortion of money


appearing [on the fears] of the offended party, can either be
light threats or threatening to publish libel

Where do you file a case of Libel?

ART. 356 THREATENING TO PUBLISH AND OFFER


TO
PRESENT
SUCH
PUBLICATION
FOR
A
COMPENSATION
The penalty of arresto mayor or a fine from 200 to 2,000
pesos, or both, shall be imposed upon any person who
threatens another to publish a libel concerning him or the
parents, spouse, child, or other members of the family of
the latter or upon anyone who shall offer to prevent the
publication of such libel for a compensation or money
consideration.
Art. 355 enumerates how libel can be committed:
1. Writing
2. Printing
3. Lithography
4. Engraving
5. Radio
6. Phonograph
7. Painting
8. Theatrical Exhibition
9. Cinematographic Exhibition
10. Any similar means

Q: What if A told B, if you will not give me P100,000, I will


inform your husband that you are having an affair with
another man. What crime is committed by A?
A: Crime committed is Light Threats. It is a
form of Blackmailing which constitutes light
threats.

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It is light threats if the offender asks the money or


any other consideration in exchange for a doing of a
wrong which does not constitute a crime.
Otherwise, if the thing to be published would involve
the morality of the person, then you are threatening
to publish a libel.

You file a case of Libel before the Regional Trial


Court (RTC). Although the penalty for libel is prision
correcional in its minimum and medium period, it
should be filed before the MTC under the Rules of
Court, yet Revised Penal Code (RPC) itself, a
substantive law, states that all libel cases must be
filed before the RTC.
Rules of Court is only a procedural law. Therefore
the substantive law, the Revised Penal Code,
should be followed.

Where shall be these cases of libel be filed?

It depends. Generally, it should be filed before the


RTC where the article was printed or first published
or the RTC where the offended party is residing at
the time of the commission of the crime.
If the offended party is a public officer and is working
in City of Manila, it must be filed before RTC of
Manila or the RTC where the article was printed and
first published.
If the public officer is not working in Manila, it shall be
filed in the RTC of the province or city where he is
working at the time of the commission of the offense
or where the libelous article was printed or was first
published.
If libelous article refers to a private individual who is
the offended party, it can be filed before the RTC of
the place where the private individual resides at the
time of the actual commission of the offense or where
the libelous material was printed or first published.

Page 144

CRIMINAL LAW REVIEW Book 2 Notes

Atty. V. Garcia

ART. 357 PROHIBITED PUBLICATION OF ACTS


REFERRED TO IN THE COURSE OF OFFICIAL
PROCEEDINGS
The penalty of arresto mayor or a fine of from 20 to 2,000
pesos, or both, shall be imposed upon any reporter, editor
or manager or a newspaper, daily or magazine, who shall
publish facts connected with the private life of another and
offensive to the honor, virtue and reputation of said person,
even though said publication be 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.

A: In the case of Pader vs. People, PUTANG INA


MO is not a slanderous remark. It is merely an
expression of the Filipino People. When a Filipino is
sad, happy, angry or surprised, he says this word.

PADER v. PEOPLE
There was a drunk man who passed by the house
of a political candidate. Their families are enemies. A told
to the family of B, putang ina mo B, magnanakaw ka sa
bayan. So because of this, B filed a case of oral
defamation or slander.

Oral defamation shall be punished by arresto mayor in its


maximum period to prision correccional in its minimum
period if it is of a serious and insulting nature; otherwise the
penalty shall be arresto menor or a fine not exceeding 200
pesos.

The Supreme Court said that phrase is not


considered as a defamatory statement. It is a mere
expression on the part of the Filipino People. The crime
committed by the offender is only SIMPLE ORAL
DEFAMATION or SIMPLE SLANDER, not grave. Although
the offended party is running for a political position. The
Court has taken into consideration the antecedent facts of
the case, their families are enemies of each other.

ORAL DEFAMATION/SLANDER

ART. 359 SLANDER BY DEED

ART. 358 SLANDER

1.
2.

Grave Slander- when serious and insulting in


nature.
Simple Slander

Factors to consider whether serious or insulting in


nature:
-

there are no concrete parameters in order to determine


whether the said defamatory statement is serious or
insulting in nature. You have to take into consideration
not only the grammar and meaning sense of the
statement, but also the:
a. Personal relations of the accused and
the offended party
b. Facts and Circumstances surrounding
the case
c. Social standing and position of the
offended party.

All of which must be considered in order to determine


whether it would constitute Grave Slander or Simple
Slander

Q: Calling a public officer a magnanakaw without any


evidence.
A: It would constitute criminal case of Slander

Q: What about the phrase of Putang ina mo? Is it


considered as a slanderous remark?

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The penalty of arresto mayor in its maximum period to


prision correccional in its minimum period or a fine ranging
from 200 to 1,000 pesos shall be imposed upon any person
who shall perform any act not included and punished in this
title, which shall cast dishonor, discredit or contempt upon
another person. If said act is not of a serious nature, the
penalty shall be arresto menor or a fine not exceeding 200
pesos.
SLANDER BY DEED refers to the commission of acts, it
does not refer to the use of words, with the intent to
blemish the credit and reputation of another person.
It can also be
a.
b.

serious, grave slander by deed serious and


insulting
simple slander by deed.

The Supreme Court said that there are no concrete


parameters when you should consider it grave
slander by deed or simple slander by deed. It
depends on the sound discretion of the court.

Q: What if A, intending to defame or slander a priest,


slapped the priest in front of his ___
A: Crime committed is SERIOUS SLANDER BY
DEED because of the reputation, the status in life of
the said person.

Page 145

CRIMINAL LAW REVIEW Book 2 Notes


BUATIS v. PEOPLE
An open letter was addressed to the Atty. Pieraz which
contained Libelous statements such as Satan, senile,
stupid and according to the offender, the offended party
uses carabao English and ended the letter in Satans
name. This letter was read by the wife of the offended
party. It came to the knowledge of not only the wife but also
the children.
Issue: would you consider the wife as a 3rd person, a
public, in so far as libel is concerned?
SC: The wife is still considered as a third person.
For an imputation to be libelous, the following requisites
must concur:
1.
2.
3.
4.

It must be defamatory
it must be malicious
It must be given publicly
The victim must be identifiable

DEFAMATORY The latter contained libelous remarks


such us satan, senile, stupid, and English carabao
MALICIOUS every defamatory imputation is presumed to
be malicious, even if it be true, if NO GOOD INTENTIOON
or JUSTIFIABLE MOTIVE for making it is shown
PUBLICLY publication means the making the defamatory
matter, after it is written, known to someone other than the
person against whom it has been written. It is enough that
the author of the libel has communicated it to a third
person.
-

In addition, the open letter was found in a mailbox,


open to the public.

IDENTIFIABLE The libelous letter was addressed to the


respondent himself.

Section two: General Provisions


[not discussed]
ART. 360 PERSONS RESPONSIBLE.

Atty. V. Garcia
filed simultaneously or separately with the court of first
instance of the province or city where the libelous article is
printed and first published or where any of the offended
parties actually resides at the time of the commission of the
offense: Provided, however, That where one of the
offended parties is a public officer whose office is in the
City of Manila at the time of the commission of the offense,
the action shall be filed in the Court of First Instance of the
City of Manila, or of the city or province where the libelous
article is printed and first published, and in case such public
officer does not hold office in the City of Manila, the action
shall be filed in the Court of First Instance of the province
or city where he held office at the time of the commission of
the offense or where the libelous article is printed and first
published and in case one of the offended parties is a
private individual, the action shall be filed in the Court of
First Instance of the province or city where he actually
resides at the time of the commission of the offense or
where the libelous matter is printed and first published:
Provided, further, That the civil action shall be filed in the
same court where the criminal action is filed and vice
versa: Provided, furthermore, That the court where the
criminal action or civil action for damages is first filed, shall
acquire jurisdiction to the exclusion of other courts: And,
provided, finally, That this amendment shall not apply to
cases of written defamations, the civil and/or criminal
actions which have been filed in court at the time of the
effectivity of this law.

Preliminary investigation of criminal action for written


defamations as provided for in the chapter shall be
conducted by the provincial or city fiscal of the province or
city, or by the municipal court of the city or capital of the
province where such action may be instituted in
accordance with the provisions of this article.
No criminal action for defamation which consists in the
imputation of a crime which cannot be prosecuted de oficio
shall be brought except at the instance of and upon
complaint expressly filed by the offended party. (As
amended by R.A. 1289, approved June 15, 1955, R.A.
4363, approved June 19, 1965).

Any person who shall publish, exhibit, or cause the


publication or exhibition of any defamation in writing or by
similar means, shall be responsible for the same.

ART. 361 PROOF OF THE TRUTH

The author or editor of a book or pamphlet, or the editor or


business manager of a daily newspaper, magazine or serial
publication, shall be responsible for the defamations
contained therein to the same extent as if he were the
author thereof.

In every criminal prosecution for libel, the truth may be


given in evidence to the court and if it appears that the
matter charged as libelous is true, and, moreover, that it
was published with good motives and for justifiable ends,
the defendants shall be acquitted.

The criminal and civil action for damages in cases of


written defamations as provided for in this chapter, shall be

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Proof of the truth of an imputation of an act or omission not


constituting a crime shall not be admitted, unless the
imputation shall have been made against Government

Page 146

CRIMINAL LAW REVIEW Book 2 Notes


employees with respect to facts related to the discharge of
their official duties.
In such cases if the defendant proves the truth of the
imputation made by him, he shall be acquitted.

Atty. V. Garcia
sachet of shabu in the pocket of B and then he told the
police that B has a shabu inside his pocket. What crime if
any is committed by A?
A: Crime committed is Sec. 29 of R.A. 9165,
planting of evidence. If what has been planted is
any dangerous drugs, the crime committed is
particular, Sec. 29 of R.A. 9165, because the special
penal law specifically punishes the planting of
dangerous drugs. If it is any other thing, a necklace
was lost and A planted it inside the bag of B, the
crime committed is incriminating innocent persons.

ART. 362 LIBELOUS REMARKS.


Libelous remarks or comments connected with the matter
privileged under the provisions of Article 354, if made with
malice, shall not exempt the author thereof nor the editor or
managing editor of a newspaper from criminal liability.

CHAPTER TWO INCRIMINATORY MACHINATIONS


ART. 363 INCRIMINATING INNOCENT PERSON
Any person who, by any act not constituting perjury, shall
directly incriminate or impute to an innocent person the
commission of a crime, shall be punished by arresto
menor.

Q: What if a police officer was mad at X, and so what he


did was, while X was sitting, he deliberately planted an
unlicensed firearm inside the bag of X and thereafter
arrested X, what crime is committed by the said police
officer?
A: He committed unlawful arrest. He arrested X
without any justifiable reason thereof. He
incriminates upon the innocent person the
commission of the crime which is illegal
possession of unlicensed firearm. So here,
unlawful arrest was committed by incriminating
innocent
persons.
UNLAWFUL
ARREST
THROUGH
INCRIMINATING
INNOCENT
PERSONS. It is a complex crime under Art. 48 of
Book I because the incriminating of innocent
persons is a necessary means to commit unlawful
arrest.

Act commited by any person, directly incriminating or


imputes to an innocent person the commission of the
crime outside perjury
It is necessary that it must not be made on an
affidavit, because if it is through an affidavit, it will be
perjury.
EXCEPTIONS:
o
perjury (sworn affidavit), or
o
sec 29 of RA 9165 (Planting of evidence)

Q: A in his counter-affidavit, in his sworn statement,


imputed upon A the commission of the crime of theft, what
crime is committed?
A: PERJURY. It is a sworn statement under oath
before a public officer.

ART. 364. INTRIGUING AGAINST HONOR


The penalty of arresto menor or fine not exceeding 200
pesos shall be imposed for any intrigue which has for its
principal purpose to blemish the honor or reputation of a
person.

Q: What if a Magic ballpen was lost in a party. A took the


magic ballpen of B, and then surreptitiously entered it
inside the bag of C. And so when everybody was looking
for it, it was found in the bag of C. However, someone saw
A did the act. What crime if any is committed by A?
A: A IS LIABLE FOR INCRIMINATING INNOCENT
PERSONS. Incriminating innocent persons is about
PLANTING OF EVIDENCE in order to impute,
incriminate another person the commission of the
crime.

Q: A and B are neighbors, A is mad at B, and deliberately


bumped B and in course thereof, he inserted a plastic

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This refers to any intrigue which has for its purpose


to cause blemish or dishonor on the reputation of any
person
It refers to any scheme or plot which is designed to
blemish or dishonor the reputation of any person

Common Example:
Isang chismis na hindi alam kung saan
nagsimula
o

It is an intrigue which spread a negative


rumor, you dont even know where it
started. It is a plot, a scheme in order to
detain or blemish the reputation of
another person

Crime committed is INTRIGUING AGAINST HONOR.

Page 147

CRIMINAL LAW REVIEW Book 2 Notes

TITLE FOURTEEN
QUASI-OFFENSES
Sole Chapter CRIMINAL NEGLIGENCE
Art. 365 IMPRUDENCE AND NEGLIGENCE
Any person who, by reckless imprudence, shall commit
any act which, had it been intentional, would constitute a
grave felony, shall suffer the penalty of arresto mayor in its
maximum period to prision correccional in its medium
period; if it would have constituted a less grave felony, the
penalty of arresto mayor in its minimum and medium
periods shall be imposed; if it would have constituted a light
felony, the penalty of arresto menor in its maximum period
shall be imposed.
Any person who, by simple imprudence or negligence,
shall commit an act which would otherwise constitute a
grave felony, shall suffer the penalty of arresto mayor in its
medium and maximum periods; if it would have constituted
a less serious felony, the penalty of arresto mayor in its
minimum period shall be imposed.
When the execution of the act covered by this article shall
have only resulted in damage to the property of another,
the offender shall be punished by a fine ranging from an
amount equal to the value of said damages to three times
such value, but which shall in no case be less than twentyfive pesos.
A fine not exceeding two hundred pesos and censure shall
be imposed upon any person who, by simple imprudence
or negligence, shall cause some wrong which, if done
maliciously, would have constituted a light felony.
In the imposition of these penalties, the court shall exercise
their sound discretion, without regard to the rules
prescribed in Article sixty-four.
The provisions contained in this article shall not be
applicable:
1. When the penalty provided for the offense is
equal to or lower than those provided in the first
two paragraphs of this article, in which case the
court shall impose the penalty next lower in degree
than that which should be imposed in the period
which they may deem proper to apply.
2. When, by imprudence or negligence and with
violation of the Automobile Law, to death of a
person shall be caused, in which case the
defendant shall be punished by prision correccional
in its medium and maximum periods.

Atty. V. Garcia
damage results by reason of inexcusable lack of precaution
on the part of the person performing of failing to perform
such act, taking into consideration his employment or
occupation, degree of intelligence, physical condition and
other circumstances regarding persons, time and place.
Simple imprudence consists in the lack of precaution
displayed in those cases in which the damage impending to
be caused is not immediate nor the danger clearly
manifest.
The penalty next higher in degree to those provided for in
this article shall be imposed upon the offender who fails to
lend on the spot to the injured parties such help as may be
in this hand to give. (As amended by R.A. 1790, approved
June 21, 1957).

IVLER v. HON MODESTO


There was this vehicular accident and the husband, Ponce,
died. The wife suffered only slight physical injuries. Two
charges were filed in the court: Reckless Imprudence
Resulting to Slight Physical Injuries and Reckless
Imprudence Resulting to Homicide and Damage to
Property. In the case of Reckless Imprudence Resulting to
Slight Physical, Jason Ivler immediately pleaded guilty to
the crime charged. The judgment became final and
executory.
During the arraignment of Reckless
Imprudence Resulting to Homicide and Damage to
Property, the council of Jason Ivler filed a motion to quash
claiming that he can no longer be prosecuted for Reckless
Imprudence Resulting to Homicide and Damage to
Property because he has already been convicted of
Reckless Imprudence Resulting to Slight Physical Injuries.
He cannot be prosecuted based on the same offense
otherwise; the accused will be placed in double jeopardy.
This was denied so it went up to the SC by a petition for
certiorari. The SC said, Jason Ivler and his counsel are
correct. A person can no longer be prosecuted for
Reckless Imprudence Resulting to Homicide and Damage
to Property after he is convicted of Reckless Imprudence
Resulting to Slight Physical Injuries. SC said, what is being
punished is the reckless imprudence. Since what is
punished is reckless imprudence the damage to property
and slight physical injuries or homicide are only resulting
felonies. Since they are only resulting felonies, since the
crime being punished is the imprudence or negligence,
one can no longer be prosecuted or convicted after he has
already been convicted and prosecuted of the same
offense. Reckless imprudence and simple negligence are
crimes by themselves. THEY ARE QUASI-OFFENSES.
Therefore, to prosecute a person after he has been
convicted of simple negligence, will result to double
jeopardy.

Reckless imprudence consists in voluntary, but without


malice, doing or falling to do an act from which material

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Page 148

CRIMINAL LAW REVIEW Book 2 Notes

Atty. V. Garcia

Take note of the case of Ivler v. Hon Modesto.


Reckless imprudence or negligence is the crime itself.
Hence, once committed or acquitted of a specific act of
reckless imprudence, the accused may not be prosecuted
again for that same act. For the essence of the quasi
offense of criminal negligence under Art 365 of the RPC
lies in the execution of an imprudent or negligent act that if
intentionally done, would be punishable as a felony. The
law penalizes thus the negligent or careless act, not the
result thereof. The gravity of the consequence is only taken
into account to determine the penalty; it does not qualify
the substance of the offense. And, as the careless act is
single, whether the injurious result should affect one person
or several persons, the offense (criminal negligence)
remains one and the same, and cannot be split into
different crimes and prosecutions.

the imprudence and negligence. Homicide and


damage to property are merely results of the said
imprudence or negligence.

Remember also that under Art 265 that if the result of


imprudence or negligence is only damage to property
the penalty shall only be fine. There is no penalty of
imprisonment.

1st case: reckless imprudence resulting to slight physical


injuries
2nd case: reckless imprudence resulting to homicide and
damage to property

One quasi-offense cannot give rise to another


quasi-offense.
Note simple negligence is not a means to commit
a crime. They are crimes by themselves.

Q: What if A was driving his car and he collided with


another car. As a result thereof, lets say that a person
died and 4 persons suffered serious physical injuries, they
have wounds but they survived. And 1 person suffered
slight physical injuries. What is/are the crime committed by
A?
A: The offender is liable for RECKLESS
IMPRUDENCE RESULTING TO HOMICIDE AND
MULTIPLE PHYSICAL INJURIES BUT NOT
SLIGHT PHYSICAL INJURY. There should be
another charge for RECKLESS IMPRUDENCE
RESULTING TO SLIGHT PHYSICAL INJURIES.
You cannot complex slight physical injury in the
first crime because it is only a light felony. And its
complexity is prohibited under Art.48. But in
reality, you no longer file a case of reckless
imprudence resulting to slight physical injury
because the moment the offender is convicted,
patay na yung first case. Because there will
already be double jeopardy.
In reckless
imprudence and simple negligence what is being
punished is the imprudence and negligence thats
why the appropriate name is reckless imprudence
resulting to homicide, simple negligence causing
damage to property, simple negligence resulting
to homicide not homicide through reckless
imprudence because what is being punished is

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Page 149