Académique Documents
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TITLE I. CRIMES AGAINST NATIONAL Almost all of these are crimes committed in
SECURITY AND THE LAW OF NATIONS times of war, except the following, which
can be committed in times of peace:
Crimes against national security (1) Espionage, under Article 114 This
is also covered by Commonwealth
1. Treason (Art. 114); Act No. 616 which punishes
conspiracy to commit espionage.
2. Conspiracy and proposal to commit This may be committed both in
treason (Art. 115); times of war and in times of peace.
3. Misprision of treason (Art. 116); and (2) Inciting to War or Giving Motives for
Reprisals, under Article 118 This
4. Espionage (Art. 117). can be committed even if the
Philippines is not a participant.
Exposing the Filipinos or their
Crimes against the law of nations properties because the offender
performed an unauthorized act, like
1. Inciting to war or giving motives for those who recruit Filipinos to
reprisals (Art. 118); participate in the gulf war. If they
involve themselves to the war, this
2. Violation of neutrality (Art. 119); crime is committed. Relevant in the
cases of Flor Contemplacion or
3. Corresponding with hostile country Abner Afuang, the police officer who
(Art. 120); stepped on a Singaporean flag.
4. Flight to enemy's country (Art. 121); (3) Violation of Neutrality, under Article
and 119 The Philippines is not a party
to a war but there is a war going on.
5. Piracy in general and mutiny on the This may be committed in the light
high seas (Art. 122). of the Middle East war.
1. There is a war in which the While in treason, even aliens can commit
Philippines is involved; said crime because of the amendment to
the article, no such amendment was made
2. At least two persons come to an in misprision of treason. Misprision of
agreement to treason is a crime that may be committed
only by citizens of the Philippines.
a. levy war against the
government; or The essence of the crime is that there are
persons who conspire to commit treason
b. adhere to the enemies, and the offender knew this and failed to
giving them aid or comfort; make the necessary report to the
government within the earliest possible
3. They decide to commit it. time. What is required is to report it as
soon as possible. The criminal liability
arises if the treasonous activity was still at
Elements of proposal to commit treason the conspiratorial stage. Because if the
treason already erupted into an overt act,
1. There is a war in which the the implication is that the government is
Philippines is involved; already aware of it. There is no need to
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
4. Disloyal acts or words in times of Penal Code was enacted, rebellion was
war; carried out only with bolos and spears;
hence, national security was not really
5. Conspiracy to violate preceding threatened. Now, the threat of rebellion or
sections; and internal wars is serious as a national threat.
Elements
Article 121. Flight to Enemy's Country
1. There is a war in which the Philippines
is not involved; Elements
a foreign registry and of Philippine registry. it to a foreign destination. The armed men
If the aircraft subject of the hi-jack is of walked with the pilots and went on board
Philippine registry, it should be in flight at the aircraft. But before they could do
the time of the hi-jacking. Otherwise, the anything on the aircraft, alert marshals
anti hi-jacking law will not apply and the arrested them. What crime was committed?
crime is still punished under the Revised
Penal Code. The correlative crime may be The criminal intent definitely is to
one of grave coercion or grave threat. If take control of the aircraft, which is hi-
somebody is killed, the crime is homicide or jacking. It is a question now of whether the
murder, as the case may be. If there are anti-hi-jacking law shall govern.
some explosives carried there, the crime is
destructive arson. Explosives are by nature The anti hi-jacking law is applicable
pyro-techniques. Destruction of property in this case. Even if the aircraft is not yet
with the use of pyro-technique is destructive about to fly, the requirement that it be in
arson. If there is illegally possessed or flight does not hold true when in comes to
carried firearm, other special laws will apply. aircraft of foreign registry. Even if the
problem does not say that all exterior doors
On the other hand, if the aircraft is of are closed, the crime is hi-jacking. Since
foreign registry, the law does not require the aircraft is of foreign registry, under the
that it be in flight before the anti hi-jacking law, simply usurping or seizing control is
law can apply. This is because aircrafts of enough as long as the aircraft is within
foreign registry are considered in transit Philippine territory, without the requirement
while they are in foreign countries. that it be in flight.
Although they may have been in a foreign
country, technically they are still in flight, Note, however, that there is no hi-
because they have to move out of that jacking in the attempted stage. This is a
foreign country. So even if any of the acts special law where the attempted stage is
mentioned were committed while the not punishable.
exterior doors of the foreign aircraft were
still open, the anti hi-jacking law will already 2. A Philippine Air Lines aircraft
govern. is bound for Davao. While the pilot and co-
pilot are taking their snacks at the airport
Note that under this law, an aircraft is lounge, some of the armed men were also
considered in flight from the moment all there. The pilots were followed by these
exterior doors are closed following men on their way to the aircraft. As soon as
embarkation until such time when the same the pilots entered the cockpit, they pulled
doors are again opened for disembarkation. out their firearms and gave instructions
This means that there are passengers that where to fly the aircraft. Does the anti hi-
boarded. So if the doors are closed to bring jacking law apply?
the aircraft to the hangar, the aircraft is not
considered as in flight. The aircraft shall be No. The passengers have yet to
deemed to be already in flight even if its board the aircraft. If at that time, the
engine has not yet been started. offenders are apprehended, the law will not
apply because the aircraft is not yet in flight.
Note that the aircraft is of Philippine
registry.
Questions & Answers
3. While the stewardess of a
1. The pilots of the Pan Am Philippine Air Lines plane bound for Cebu
aircraft were accosted by some armed men was waiting for the passenger manifest, two
and were told to proceed to the aircraft to fly of its passengers seated near the pilot
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
surreptitiously entered the pilot cockpit. At packing of such kind of articles, the quantity
gunpoint, they directed the pilot to fly the in which they may be loaded at any time,
aircraft to the Middle East. However, before etc. Otherwise, the anti hi-jacking law does
the pilot could fly the aircraft towards the not apply.
Middle East, the offenders were subdued
and the aircraft landed. What crime was However, under Section 7, any physical
committed? injury or damage to property which would
result from the carrying or loading of the
The aircraft was not yet in flight. flammable, corrosive, explosive, or
Considering that the stewardess was still poisonous substance in an aircraft, the
waiting for the passenger manifest, the offender shall be prosecuted not only for
doors were still open. Hence, the anti hi- violation of Republic Act No. 6235, but also
jacking law is not applicable. Instead, the for the crime of physical injuries or damage
Revised Penal Code shall govern. The to property, as the case may be, under the
crime committed was grave coercion or Revised Penal Code. There will be two
grave threat, depending upon whether or prosecutions here. Other than this
not any serious offense violence was situation, the crime of physical injuries will
inflicted upon the pilot. be absorbed. If the explosives were
planted in the aircraft to blow up the aircraft,
However, if the aircraft were of the circumstance will qualify the penalty and
foreign registry, the act would already be that is not punishable as a separate crime
subject to the anti hi-jacking law because for murder. The penalty is increased under
there is no requirement for foreign aircraft to the anti hi-jacking law.
be in flight before such law would apply.
The reason for the distinction is that as long All other acts outside of the four are merely
as such aircraft has not returned to its home qualifying circumstances and would bring
base, technically, it is still considered in about higher penalty. Such acts would not
transit or in flight. constitute another crime. So the killing or
explosion will only qualify the penalty to a
higher one.
As to numbers 3 and 4 of Republic Act No.
6235, the distinction is whether the aircraft
is a passenger aircraft or a cargo aircraft. Questions & Answers
In both cases, however, the law applies only
to public utility aircraft in the Philippines.
Private aircrafts are not subject to the anti 1. In the course of the hi-jack, a
hi-jacking law, in so far as transporting passenger or complement was shot and
prohibited substances are concerned. killed. What crime or crimes were
committed?
If the aircraft is a passenger aircraft, the
prohibition is absolute. Carrying of any The crime remains to be a violation
prohibited, flammable, corrosive, or of the anti hi-jacking law, but the penalty
explosive substance is a crime under thereof shall be higher because a
Republic Act No. 6235. But if the aircraft is passenger or complement of the aircraft
only a cargo aircraft, the law is violated only had been killed. The crime of
when the transporting of the prohibited homicide or murder is not committed.
substance was not done in accordance with
the rules and regulations prescribed by the 2. The hi-jackers threatened to
Air Transportation Office in the matter of detonate a bomb in the course of the hi-
shipment of such things. The Board of jack. What crime or crimes were
Transportation provides the manner of committed?
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10. Offending the religious feelings (Art. 3. The person detained has no ailment
133); which requires compulsory
confinement in a hospital.
to the investigating officer who booked him the accused may be detained without
and filed a charge of reckless imprudence formal charge. But he must cause a formal
against him, then the crime would be charge or application to be filed with the
unlawful arrest. The detention of the driver proper court before 12, 18 or 36 hours
is incidental to the supposed crime he did lapse. Otherwise he has to release the
not commit. But if there is no supposed person arrested.
crime at all because the driver was not
charged at all, he was not given place Note that the period stated herein does not
under booking sheet or report arrest, then include the nighttime. It is to be counted
that means that the only purpose of the only when the prosecutors office is ready to
offender is to stop him from driving his receive the complaint or information.
jeepney because he refused to contribute to
the tong. This article does not apply if the arrest is
with a warrant. The situation contemplated
here is an arrest without a warrant.
Article 125. Delay in the Delivery of
Detained Persons to the Proper Judicial
Authorities Question & Answer
Elements
Within what period should a police
1. Offender is a public officer or employee; officer who has arrested a person under a
warrant of arrest turn over the arrested
person to the judicial authority?
2. He detains a person for some legal
ground; There is no time limit specified
except that the return must be made within
3. He fails to deliver such person to the a reasonable time. The period fixed by law
proper judicial authorities within under Article 125 does not apply because
the arrest was made by virtue of a warrant
a. 12 hour for light penalties; of arrest.
Note that delivery of the arrested person to The arrest of the suspect was done
the proper authorities does not mean in Baguio City. On the way to Manila, where
physical delivery or turn over of arrested the crime was committed, there was a
person to the court. It simply means putting typhoon so the suspect could not be
the arrested person under the jurisdiction of brought to Manila until three days later.
the court. This is done by filing the Was there a violation of Article 125?
necessary complaint or information against
the person arrested in court within the There was a violation of Article 125.
period specified in Article 125. The purpose The crime committed was arbitrary
of this is for the court to determine whether detention in the form of delay in the delivery
the offense is bailable or not and if bailable, of arrested person to the proper judicial
to allow him the right to bail. authority. The typhoon or flood is a matter
of defense to be proved by the accused, the
Under the Rule 114 of the Revised Rules of arresting officer, as to whether he is liable.
Court, the arrested person can demand In this situation, he may be exempt under
from the arresting officer to bring him to any paragraph 7 of Article 12.
judge in the place where he was arrested
and post the bail There. Thereupon, the
arresting officer may release him. The Before Article 125 may be applied, it is
judge who granted the bail will just forward necessary that initially, the detention of the
the litimus of the case to the court trying his arrested person must be lawful because the
case. The purpose is in order NOT to arrest is based on legal grounds. If the
deprive the arrested person of his right to arrest is made without a warrant, this
post the bail. constitutes an unlawful arrest. Article 269,
not Article 125, will apply. If the arrest is not
Under the Revised Rules of Court, when based on legal grounds, the arrest is pure
the person arrested is arrested for a crime and simple arbitrary detention. Article 125
which gives him the right to preliminary contemplates a situation where the arrest
investigation and he wants to avail his right was made without warrant but based on
to a preliminary investigation, he would legal grounds. This is known as citizens
have to waive in writing his rights under arrest.
Article 125 so that the arresting officer will
not immediately file the case with the court
that will exercise jurisdiction over the case. Article 126. Delaying Release
If he does not want to waive this in writing,
the arresting officer will have to comply with Acts punished
Article 125 and file the case immediately in
court without preliminary investigation. In 1. Delaying the performance of a
such case, the arrested person, within five judicial or executive order for the
days after learning that the case has been release of a prisoner;
filed in court without preliminary
investigation, may ask for preliminary 2. Unduly delaying the service of the
investigation. In this case, the public officer notice of such order to said prisoner;
who made the arrest will no longer be liable
for violation of Article 125. 3. Unduly delaying the proceedings
upon any petition for the liberation of
such person.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
dwelling and after having been (1) Search made incidental to a valid
required to leave the same arrest;
2. He is not authorized by judicial order (3) When the article seized is within
to enter the dwelling or to make a plain view of the officer making the
search therein for papers or other seizure without making a search
effects. therefore.
Under Rule 113 of the Revised Rules of (3) Refusing to leave premises after
Court, when a person to be arrested enters surreptitious entry and being told to
a premise and closes it thereafter, the leave the same. The act punished
public officer, after giving notice of an is not the entry but the refusal to
arrest, can break into the premise. He shall leave. If the offender upon being
not be liable for violation of domicile. directed to Leave, followed and left,
there is no crime of violation of
There are only three recognized instances domicile. Entry must be done
when search without a warrant is surreptitiously; without this, crime
considered valid, and, therefore, the seizure may be unjust vexation. But if
of any evidence done is also valid. Outside entering was done against the will of
of these, search would be invalid and the the occupant of the house, meaning
objects seized would not be admissible in there was express or implied
evidence. prohibition from entering the same,
even if the occupant does not direct
him to leave, the crime of is already
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Article 129. Search Warrants Maliciously 4. The owner, or any members of his
Obtained, and Abuse in the Service of family, or two witnesses residing in
Those Legally Obtained the same locality are not present.
Acts punished
Crimes under Articles 129 and 130 are
1. Procuring a search warrant without referred to as violation of domicile. In these
just cause; articles, the search is made by virtue of a
valid warrant, but the warrant
Elements notwithstanding, the liability for the crime is
still incurred through the following situations:
1. Offender is a public officer or
employee; (1) Search warrant was irregularly
obtained This means there was no
2. He procures a search probable cause determined in
warrant; obtaining the search warrant.
Although void, the search warrant is
3. There is no just cause. entitled to respect because of
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
(3) When the public officer employs But the requiring of the permit shall be in
unnecessary or excessive severity in exercise only of the governments
the implementation of the search regulatory powers and not really to prevent
warrant. The search warrant is not a peaceful assemblies as the public may
license to commit destruction. desire. Permit is only necessary to regulate
the peace so as not to inconvenience the
(4) Owner of dwelling or any member of public. The permit should state the day,
the family was absent, or two time and the place where the gathering may
witnesses residing within the same be held. This requirement is, therefore,
locality were not present during the legal as long as it is not being exercised in
search. as a prohibitory power.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
At the beginning, it may happen that the In Article 153, the offender need not
assembly is lawful and peaceful. If in the be a public officer. The essence of
course of the assembly the participants the crime is that of creating a
commit illegal acts like oral defamation or serious disturbance of any sort in a
inciting to sedition, a public officer or law public office, public building or even
enforcer can stop or dissolve the meeting. a private place where a public
The permit given is not a license to commit function is being held.
a crime.
There are two criteria to determine whether Article 132. Interruption of Religious
Article 131 would be violated: Worship
In Article 131, the offender must be There must be deliberate intent to hurt the
a public officer and, without any feelings of the faithful.
legal ground, he prohibits, interrupts,
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TITLE III. CRIMES AGAINST PUBLIC 17. Tumults and other disturbances of
ORDER public order (Art. 153);
1. Rebellion or insurrection (Art. 134); 19. Alarms and scandals (Art. 155);
2. Conspiracy and proposal to commit 20. Delivering prisoners from jails (Art.
rebellion (Art. 136); 156);
The essence of this crime is a public to its amendment by the Republic Act No.
uprising with the taking up of arms. It 6968 (An Act Punishing the Crime of Coup
requires a multitude of people. It aims to Detat), which became effective on October
overthrow the duly constituted government. 1990. Prior to its amendment by Republic
It does not require the participation of any Act No. 6968, Article 135 punished those
member of the military or national police who while holding any public office or
organization or public officers and generally employment, take part therein by any of
carried out by civilians. Lastly, the crime these acts: engaging in war against the
can only be committed through force and forces of Government; destroying property;
violence. committing serious violence; exacting
contributions, diverting funds for the lawful
purpose for which they have been
Rebellion and insurrection are not appropriated.
synonymous. Rebellion is more frequently
used where the object of the movement is Since a higher penalty is prescribed for the
completely to overthrow and supersede the crime of rebellion when any of the specified
existing government; while insurrection is acts are committed in furtherance thereof,
more commonly employed in reference to a said acts are punished as components of
movement which seeks merely to effect rebellion and, therefore, are not to be
some change of minor importance, or to treated as distinct crimes. The same acts
prevent the exercise of governmental constitute distinct crimes when committed
authority with respect to particular matters on a different occasion and not in
of subjects (Reyes, citing 30 Am. Jr. 1). furtherance of rebellion. In short, it was
because Article 135 then punished said acts
as components of the crime of rebellion that
Rebellion can now be complexed with precludes the application of Article 48 of the
common crimes. Not long ago, the Revised Penal Code thereto. In the eyes of
Supreme Court, in Enrile v. Salazar, the law then, said acts constitute only one
186 SCRA 217, reiterated and crime and that is rebellion. The Hernandez
affirmed the rule laid down in People doctrine was reaffirmed in Enrile v. Salazar
v. Hernandez, 99 Phil 515, that because the text of Article 135 has
rebellion may not be complexed with remained the same as it was when the
common crimes which are committed Supreme Court resolved the same issue in
in furtherance thereof because they the People v. Hernandez. So the Supreme
are absorbed in rebellion. In view of Court invited attention to this fact and thus
said reaffirmation, some believe that it stated:
has been a settled doctrine that
rebellion cannot be complexed with There is a an apparent need to restructure
common crimes, such as killing and the law on rebellion, either to raise the
destruction of property, committed on penalty therefore or to clearly define and
the occasion and in furtherance delimit the other offenses to be considered
thereof. absorbed thereby, so that it cannot be
conveniently utilized as the umbrella for
This thinking is no longer correct; there is every sort of illegal activity undertaken in its
no legal basis for such rule now. name. The court has no power to effect
such change, for it can only interpret the
The statement in People v. Hernandez that law as it stands at any given time, and what
common crimes committed in furtherance of is needed lies beyond interpretation.
rebellion are absorbed by the crime of Hopefully, Congress will perceive the need
rebellion, was dictated by the provision of for promptly seizing the initiative in this
Article 135 of the Revised Penal Code prior matter, which is purely within its province.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
lower penalty for those who are only communication networks, public
followers of the rebellion. utilities or other facilities needed for
the exercise and continued
Distinctions between rebellion and sedition possession of power;
Article 143. Acts Tending to Prevent the 1. Using force, intimidation, threats, or
Meeting of the Congress of the frauds to prevent any member of
Philippines and Similar Bodies Congress from attending the
meetings of Congress or of any of its
Elements committees or subcommittees,
constitutional commissions or
1. There is a projected or actual committees or divisions thereof, or
meeting of Congress or any of its from expressing his opinion or
committees or subcommittees, casting his vote;
constitutional committees or
divisions thereof, or of any provincial Elements
board or city or municipal council or
board; 1. Offender uses force,
intimidation, threats or fraud;
2. Offender, who may be any person,
prevents such meetings by force or 2. The purpose of the offender
fraud. is to prevent any member of
Congress from
1. Any meeting attended by armed If any person present at the meeting carries
persons for the purpose of an unlicensed firearm, it is presumed that
committing any of the crimes the purpose of the meeting insofar as he is
punishable under the Code; concerned is to commit acts punishable
under the Revised Penal Code, and he is
Elements considered a leader or organizer of the
meeting.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
2. Without public uprising, by attacking, So, where the spirit is present, it is always
by employing force or by seriously complexed with the material consequence
intimidating or by seriously resisting of the unlawful act. If the unlawful act was
any person in authority or any of his murder or homicide committed under
agents, while engaged in the circumstance of lawlessness or contempt of
performance of official duties, or on authority, the crime would be direct assault
with murder or homicide, as the case may
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
be. In the example of the judge who was Agent of a person in authority is any person
killed, the crime is direct assault with who by direct provision of law or
murder or homicide. by election or by appointment by
competent authority, is charged
The only time when it is not complexed is with the maintenance of public
when material consequence is a light order and the protection and
felony, that is, slight physical injury. Direct security of life and property, such
assault absorbs the lighter felony; the crime as a barangay councilman, barrio
of direct assault can not be separated from policeman, barangay leader and
the material result of the act. So, if an any person who comes to the aid
offender who is charged with direct assault of a person in authority.
and in another court for the slight physical
Injury which is part of the act, acquittal or In applying the provisions of Articles 148
conviction in one is a bar to the prosecution and 151, teachers, professors, and persons
in the other. charged with the supervision of public or
duly recognized private schools, colleges
Example of the first form of direct assault: and universities and lawyers in the actual
performance of their duties or on the
Three men broke into a National Food occasion of such performance, shall be
Authority warehouse and lamented deemed a person in authority.
sufferings of the people. They called on
people to help themselves to all the rice. In direct assault of the first form, the stature
They did not even help themselves to a of the offended person is immaterial. The
single grain. crime is manifested by the spirit of
lawlessness.
The crime committed was direct assault.
There was no robbery for there was no In the second form, you have to distinguish
intent to gain. The crime is direct assault by a situation where a person in authority or
committing acts of sedition under Article his agent was attacked while performing
139 (5), that is, spoiling of the property, for official functions, from a situation when he
any political or social end, of any person is not performing such functions. If attack
municipality or province or the national was done during the exercise of official
government of all or any its property, but functions, the crime is always direct assault.
there is no public uprising. It is enough that the offender knew that the
person in authority was performing an
Person in authority is any person directly official function whatever may be the reason
vested with jurisdiction, whether for the attack, although what may have
as an individual or as a member happened was a purely private affair.
of some court or government
corporation, board, or On the other hand, if the person in authority
commission. A barangay or the agent was killed when no longer
chairman is deemed a person in performing official functions, the crime may
authority. simply be the material consequence of he
unlawful act: murder or homicide. For the
crime to be direct assault, the attack must
be by reason of his official function in the
past. Motive becomes important in this
respect. Example, if a judge was killed
while resisting the taking of his watch, there
is no direct assault.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Acts punished
Article 149. Indirect Assault
1. By refusing, without legal excuse, to
Elements obey summons of Congress, its
special or standing committees and
1. A person in authority or his agent is subcommittees, the Constitutional
the victim of any of the forms of Commissions and its committees,
direct assault defined in Article 148; subcommittees or divisions, or by
any commission or committee
2. A person comes to the aid of such chairman or member authorized to
authority or his agent; summon witnesses;
A person in authority is one directly vested Article 153. Tumults and Other
with jurisdiction, that is, the power and Disturbances of Public Order
authority to govern and execute the laws.
Acts punished
An agent of a person in authority is one
charged with (1) the maintenance of public 1. Causing any serious disturbance in
order and (2) the protection and security of a public place, office or
life and property. establishment;
2. Interrupting or disturbing
Examples of persons in authority performances, functions or
gatherings, or peaceful meetings, if
1. Municipal mayor; the act is not included in Articles 131
and 132;
2. Division superintendent of schools;
3. Making any outcry tending to incite
3. Public and private school teachers; rebellion or sedition in any meeting,
association or public place;
4. Teacher-nurse;
4. Displaying placards or emblems
5. President of sanitary division; which provoke a disturbance of
public order in such place;
6. Provincial fiscal;
5. Burying with pomp the body of a
7. Justice of the Peace; person who has been legally
executed.
8. Municipal councilor;
possible crimes under the Revised Penal Charivari is a mock serenade wherein the
Code: supposed serenaders use broken
cans, broken pots, bottles or other
(1) Alarms and utensils thereby creating discordant
scandals if the firearm when notes. Actually, it is producing noise,
discharged was not directed to any not music and so it also disturbs
particular person; public tranquility. Understand the
nature of the crime of alarms and
(2) Illegal discharge of firearm under scandals as one that disturbs public
Article 254 if the firearm is directed tranquility or public peace. If the
or pointed to a particular person annoyance is intended for a particular
when discharged but intent to kill is person, the crime is unjust vexation.
absent;
Even if the persons involved are engaged in
(3) Attempted homicide, murder, or nocturnal activity like those playing
parricide if the firearm when patintero at night, or selling balut, if they
discharged is directed against a conduct their activity in such a way that
person and intent to kill is present. disturbs public peace, they may commit the
crime of alarms and scandals.
In this connection, understand that it is not
necessary that the offended party be
wounded or hit. Mere discharge of firearm Article 156. Delivering Prisoners from
towards another with intent to kill already Jail
amounts to attempted homicide or
attempted murder or attempted parricide. It Elements
can not be frustrated because the offended
party is not mortally wounded. 1. There is a person confined in a jail
or penal establishment;
In Araneta v. Court of Appeals, it was held
that if a person is shot at and is 2. Offender removes therefrom such
wounded, the crime is automatically person, or helps the escape of such
attempted homicide. Intent to kill is person.
inherent in the use of the deadly
weapon. Penalty of arresto mayor in its maximum
period to prision correccional in its minimum
The crime alarms and scandal is only one period is imposed if violence, intimidation or
crime. Do not think that alarms and bribery is used.
scandals are two crimes.
Penalty of arresto mayor if other means are
Scandal here does not refer to moral used.
scandal; that one is grave scandal in Article
200. The essence of the crime is Penalty decreased to the minimum period if
disturbance of public tranquility and public the escape of the prisoner shall take place
peace. So, any kind of disturbance of outside of said establishments by taking the
public order where the circumstance at the guards by surprise.
time renders the act offensive to the
tranquility prevailing, the crime is
committed.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
In relation to infidelity in the custody of prisoner knows of the plot to remove him
prisoners, correlate the crime of from jail and cooperates therein by
delivering person from jail with escaping, he himself becomes liable for
infidelity in the custody of delivering prisoners from jail as a principal
prisoners punished under Articles by indispensable cooperation.
223, 224 and 225 of the Revised
Penal Code. In both acts, the If three persons are involved a stranger,
offender may be a public officer the custodian and the prisoner three
or a private citizen. Do not think crimes are committed:
that infidelity in the custody of
prisoners can only be committed (1) Infidelity in the custody of prisoners;
by a public officer and delivering
persons from jail can only be (2) Delivery of the prisoner from jail;
committed by private person. and
Both crimes may be committed
by public officers as well as (3) Evasion of service of sentence.
private persons.
In both crimes, the person involved may be Article 157. Evasion of Service of
a convict or a mere detention prisoner. Sentence
a. conflagration;
b. earthquake;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
The mutiny referred to in the second form of In violation of conditional pardon, as a rule,
evasion of service of sentence the violation will amount to this
does not include riot. The mutiny crime only if the condition is
referred to here involves violated during the remaining
subordinate personnel rising period of the sentence. As a rule,
against the supervisor within the if the condition of the pardon is
penal establishment. One who violated when the remaining
escapes during a riot will be unserved portion of the sentence
subject to Article 157, that is, has already lapsed, there will be
simply leaving or escaping the no more criminal liability for the
penal establishment. violation. However, the convict
maybe required to serve the
Mutiny is one of the causes which may unserved portion of the sentence,
authorize a convict serving sentence that is, continue serving original
in the penitentiary to leave the jail penalty.
provided he has not taken part in the
mutiny. The administrative liability of the convict
under the conditional pardon is different and
The crime of evasion of service of sentence has nothing to do with his criminal liability
may be committed even if the for the evasion of service of sentence in the
sentence is destierro, and this is event that the condition of the pardon has
committed if the convict sentenced been violated. Exception: where the
to destierro will enter the prohibited violation of the condition of the pardon will
places or come within the constitute evasion of service of sentence,
prohibited radius of 25 kilometers even though committed beyond the
to such places as stated in the remaining period of the sentence. This is
judgment. when the conditional pardon expressly so
provides or the language of the conditional
If the sentence violated is destierro, the pardon clearly shows the intention to make
penalty upon the convict is to be served by the condition perpetual even beyond the
way of destierro also, not imprisonment. unserved portion of the sentence. In such
This is so because the penalty for the case, the convict may be required to serve
evasion can not be more severe than the the unserved portion of the sentence even
penalty evaded. though the violation has taken place when
the sentence has already lapsed.
Article 159. Other Cases of Evasion of In order that the conditional pardon may be
Service of Sentence violated, it is conditional that the pardonee
received the conditional pardon. If he is
Elements of violation of conditional pardon released without conformity to the
conditional pardon, he will not be liable for
1. Offender was a convict; the crime of evasion of service of sentence.
12. Falsification of wireless, cable, 27. Substituting and altering trade marks
telegraph and telephone messages and trade names or service marks
and use of said falsified messages (Art. 188);
(Art. 173);
28. Unfair competition and fraudulent
13. False medical certificates, false registration of trade mark or trade
certificates of merit or service (Art. name, or service mark; fraudulent
174); designation of origin, and false
description (Art. 189).
14. Using false certificates (Art. 175);
15. Manufacturing and possession of The crimes in this title are in the nature of
instruments or implements for fraud or falsity to the public. The essence
falsification (Art. 176); of the crime under this title is that which
defraud the public in general. There is
16. Usurpation of authority or official deceit perpetrated upon the public. This is
functions (Art. 177); the act that is being punished under this
title.
17. Using fictitious name and concealing
true name (Art. 178);
Article 161. Counterfeiting the Great
18. Illegal use of uniforms or insignia Seal of the Government of the Philippine
(Art. 179); Islands, Forging the Signature or Stamp
of the Chief Executive
19. False testimony against a defendant
(Art. 180); Acts punished
20. False testimony favorable to the 1. Forging the great seal of the
defendant (Art. 181); Government of the Philippines;
21. False testimony in civil cases (Art. 2. Forging the signature of the
182); President;
22. False testimony in other cases and 3. Forging the stamp of the President.
perjury (Art. 183);
23. Offering false testimony in evidence Article 162. Using Forged Signature or
(Art. 184); Counterfeit Seal or Stamp
develop the expertise to make the (2) Offender gains from the precious
counterfeiting more or less no longer metal dust abstracted from the coin;
discernible or no longer noticeable, they and
could make use of their ingenuity to
counterfeit coins of legal tender. From that (3) It has to be a coin.
time on, the government shall have difficulty
determining which coins are counterfeited Mutilation is being regarded as a crime
and those which are not. It may happen because the coin, being of legal tender, it is
that the counterfeited coins may look better still in circulation and which would
than the real ones. So, counterfeiting is necessarily prejudice other people who may
penalized right at the very start whether the come across the coin. For example, X
coin is legal tender or otherwise. mutilated a P 2.00 coin, the octagonal one,
by converting it into a round one and
extracting 1/10 of the precious metal dust
from it. The coin here is no longer P2.00
Question & Answer
but only P 1.80, therefore, prejudice to the
public has resulted.
X has in his possession a coin which
was legal tender at the time of Magellan and There is no expertise involved here. In
is considered a collectors item. He mutilation of coins under the Revised Penal
manufactured several pieces of that coin. Is Code, the offender does nothing but to
the crime committed? scrape, pile or cut the coin and collect the
dust and, thus, diminishing the intrinsic
Yes. It is not necessary that the value of the coin.
coin be of legal tender. The provision
punishing counterfeiting does not require Mutilation of coins is a crime only if the coin
that the money be of legal tender and the mutilated is legal tender. If the coin whose
law punishes this even if the coin metal content has been depreciated
concerned is not of legal tender in order to through scraping, scratching, or filing the
discourage people from practicing their coin and the offender collecting the
ingenuity of imitating money. If it were precious metal dust, even if he would use
otherwise, people may at the beginning try the coin after its intrinsic value had been
their ingenuity in imitating money not of reduced, nobody will accept the same. If it
legal tender and once they acquire is not legal tender anymore, no one will
expertise, they may then counterfeit money accept it, so nobody will be defrauded. But
of legal tender. if the coin is of legal tender, and the
offender minimizes or decreases the
precious metal dust content of the coin, the
(2) Mutilation of coins -- This refers to crime of mutilation is committed.
the deliberate act of diminishing the
proper metal contents of the coin In the example, if the offender has collected
either by scraping, scratching or 1/10 of the P 2.00 coin, the coin is actually
filling the edges of the coin and the worth only P 1.80. He is paying only P1.80
offender gathers the metal dust that in effect defrauding the seller of P .20.
has been scraped from the coin. Punishment for mutilation is brought about
by the fact that the intrinsic value of the coin
Requisites of mutilation under the Revised is reduced.
Penal Code
The offender must deliberately reduce the
(1) (1) Coin mutilated is of legal tender; precious metal in the coin. Deliberate intent
arises only when the offender collects the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
precious metal dust from the mutilated coin. 3. Sometime before martial law
If the offender does not collect such dust, was imposed, the people lost confidence in
intent to mutilate is absent, but Presidential banks that they preferred hoarding their
Decree No. 247 will apply. money than depositing it in banks. Former
President Ferdinand Marcos declared upon
declaration of martial law that all bills
Presidential Decree No. 247 without the Bagong Lipunan sign on them
(Defacement, Mutilation, Tearing, will no longer be recognized. Because of
Burning or Destroying Central Bank this, the people had no choice but to
Notes and Coins) surrender their money to banks and
exchange them with those with the Bagong
It shall be unlawful for any person to willfully Lipunan sign on them. However, people
deface, mutilate, tear, burn, or destroy in who came up with a lot of money were also
any manner whatsoever, currency notes being charged with hoarding for which
and coins issued by the Central Bank. reason certain printing presses did the
stamping of the Bagong Lipunan sign
themselves to avoid prosecution. Was
Mutilation under the Revised Penal Code is there a violation of Presidential Decree No.
true only to coins. It cannot be a crime 247?
under the Revised Penal Code to mutilate
paper bills because the idea of mutilation Yes. This act of the printing presses
under the code is collecting the precious is a violation of Presidential Decree No.
metal dust. However, under Presidential 247.
Decree No. 247, mutilation is not limited to
coins. 4. An old woman who was a
cigarette vendor in Quiapo refused to
accept one-centavo coins for payment of
the vendee of cigarettes he purchased.
Questions & Answers
Then came the police who advised her that
she has no right to refuse since the coins
1. The people playing cara y are of legal tender. On this, the old woman
cruz, before they throw the coin in the air accepted in her hands the one-centavo
would rub the money to the sidewalk coins and then threw it to the face of the
thereby diminishing the intrinsic value of the vendee and the police. Was the old woman
coin. Is the crime of mutilation committed? guilty of violating Presidential Decree No.
247?
Mutilation, under the Revised Penal
Code, is not committed because they do not She was guilty of violating
collect the precious metal content that is Presidential Decree No. 247 because if no
being scraped from the coin. However, this one ever picks up the coins, her act would
will amount to violation of Presidential result in the diminution of the coin in
Decree No. 247. circulation.
Elements
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
3. He either
Questions & Answers
a. uses any of such forged or
falsified instruments; or
1. Instead of the peso sign (P),
b. possesses with intent to use somebody replaced it with a dollar sign ($).
any of such forged or falsified Was the crime of forgery committed?
instruments.
No. Forgery was not committed.
The forged instrument and currency note
How forgery is committed under Article 169 must be given the appearance of a true and
genuine document. The crime committed is
1. By giving to a treasury or bank note or a violation of Presidential Decree No. 247.
any instrument payable to bearer or Where the currency note, obligation or
to order mentioned therein, the security has been changed to make it
appearance of a true and genuine appear as one which it purports to be as
document; genuine, the crime is forgery. In checks or
commercial documents, this crime is
2. By erasing, substituting, committed when the figures or words are
counterfeiting, or altering by any changed which materially alters the
means the figures, letters, words, or document.
sign contained therein.
2. An old man, in his desire to
earn something, scraped a digit in a losing
Forgery under the Revised Penal Code sweepstakes ticket, cut out a digit from
applies to papers, which are in the form of another ticket and pasted it there to match
obligations and securities issued by the the series of digits corresponding to the
Philippine government as its own winning sweepstakes ticket. He presented
obligations, which is given the same status this ticket to the Philippine Charity
as legal tender. Generally, the word Sweepstakes Office. But the alteration is so
counterfeiting is not used when it comes crude that even a child can notice that the
to notes; what is used is forgery. supposed digit is merely superimposed on
Counterfeiting refers to money, whether the digit that was scraped. Was the old
coins or bills. man guilty of forgery?
Public document is broader than the term copy of an original document when
official document. Before a document may no such original exists, or including
be considered official, it must first be a in such a copy a statement contrary
public document. But not all public to, or different from, that of the
documents are official documents. To genuine original;
become an official document, there must be
a law which requires a public officer to issue 2. Falsification was committed in any
or to render such document. Example: A private document;
cashier is required to issue an official
receipt for the amount he receives. The 3. Falsification causes damage to a third
official receipt is a public document which is party or at least the falsification was
an official document. committed with intent to cause such
damage.
Commonwealth Act No. 142 (Regulating 2. Offender testifies falsely under oath
the Use of Aliases) against the defendant therein;
No person shall use any name different 3. Offender who gives false testimony
from the one with which he was registered knows that it is false.
at birth in the office of the local civil registry,
or with which he was registered in the 4. Defendant against whom the false
bureau of immigration upon entry; or such testimony is given is either acquitted
substitute name as may have been or convicted in a final judgment.
authorized by a competent court.
Wearing the uniform of an imaginary office Article 182. False Testimony in Civil
is not punishable. Cases
Acts punished
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
merchandise or object of
1. Combination to prevent free commerce;
competition in the market;
2. Combines, conspires or
Elements agrees with any person;
3. Manufacturer, producer, or
processor or importer combining, Article 188. Substituting and Altering
conspiring or agreeing with any Trademarks, Trade names, or Service
person to make transactions Marks
prejudicial to lawful commerce or to
increase the market price of Acts punished
merchandise.
1. Substituting the trade name or
Elements trademark of some other
manufacturer or dealer, or a
1. Manufacturer, producer, colorable imitation thereof for the
processor or importer of any trade name or trademark of the real
manufacturer or dealer upon any
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
without the consent of the owner of the good faith by which he shall pass off the
registered mark: goods manufactured by him or in which he
deals, or his business, or services for those
155.1. Use in commerce any of the one having established such goodwill,
reproduction, counterfeit, copy, or colorable or who shall commit any acts calculated to
imitation of a registered mark or the same produce said result, shall be guilty of unfair
container or a dominant feature thereof in competition, and shall be subject to an
connection with the sale, offering for sale, action therefor.
distribution, advertising of any goods or
services including other preparatory steps 168.3. In particular, and without in
necessary to carry out the sale of any goods any way limiting the scope of protection
or services on or in connection with which against unfair competition, the following
such use is likely to course confusion, or to shall be deemed guilty of unfair competition:
cause mistake, or to deceive; or
(a) Any person, who is selling
155.2. Reproduce, counterfeit, copy his goods and gives them the general
or colorably imitate a registered mark or a appearance of goods of another
dominant feature thereof and apply such manufacturer or dealer, either as to the
reproduction, counterfeit, copy or colorable goods themselves or in the wrapping of the
imitation to labels, signs, prints, packages, packages in which they are contained, or
wrappers, receptacles or advertisement the devices or words thereon, on in any
intended to be used in commerce upon or in other feature or their appearance, which
connection with the sale, offering for sale, would be likely to influence purchasers to
distribution, or advertising of goods or believe that the goods offered are those of a
services on or in connection with which manufacturer or dealer, other than the
such use is likely to cause confusion, or to actual manufacturer or dealer, or who
cause mistake, or to deceive shall be liable otherwise clothes the goods with such
in a civil action for infringement by the appearance as shall deceive the public and
registrant for the remedies hereinafter set defraud another of his legitimate trade, or
forth: Provided, that the infringement takes any subsequent vendor of such goods or
place at the moment any of the acts stated any agent of any vendor engaged in selling
in Subsection 155.1 or this subsection are such goods with a like purpose; or
committed regardless of whether there is
actual sale of goods or services using the (b) Any person who by any
infringing material. artifice, or device, or who employs any other
means calculated to induce the false belief
Section 168. Unfair Competition, that such person is offering the services of
Rights, Regulation and Remedies. another who ahs identified such services in
the mind of the public; or
168.1. Any person who has
identified in the mind of the public the goods (c) Any person who shall make
he manufactures or deals in, his business or any false statement in the course of trade or
services from those of others, whether or who shall commit any other act contrary to
not a registered mark is employed, has a good faith of a nature calculated to discredit
property right in the goodwill of the said the goods, business or services of another.
goods, business or service so identified,
which will be protected in the same manner 168.4. The remedies provided by
as other property rights. Section 156, 157 and 161 shall apply
mutatis mutandis.
168.2. Any person who shall employ
deception or any other means contrary to
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
and other mechanical inventories or other matter containing letter, figures, signs
devices, dog racing, boat racing, car raising or symbols which pertain to or in any
and other races, basketball, volleyball, manner used in the game of jueteng, jai-alai
boxing, seven-eleven dice games and the or horse racing bookies and similar game or
like and other contests to include game lottery which has taken place or about to
fixing, point shaving and other machinations take place.
banking or percentage game, or any other
game or scheme, whether upon chance or Section 2. Barangay Official.
skill, which do not have a franchise from the Any barangay official in whose jurisdiction
national government, wherein wagers such gambling house is found and which
consisting of money, articles of value of house has the reputation of a gambling
representative of value are made; place shall suffer the penalty of prision
correccional in its medium period and a fine
(b) Any person who shall ranging from Five Hundred to Two
knowingly permit any form of gambling Thousand Pesos and temporary absolute
referred to in the preceding subdivision to disqualifications.
be carried on in inhabited or uninhabited
places or any building, vessel or other
means of transportation owned or controlled While the acts under the Revised Penal
by him. If the place where gambling is Code are still punished under the new law,
carried on has a reputation of a gambling yet the concept of gambling under it has
place or that prohibited gambling is been changed by the new gambling law.
frequently carried on therein or the place is
a public or government building or barangay Before, the Revised Penal Code considered
hall, the culprit shall be punished by the the skill of the player in classifying whether
penalty provided for in its maximum period a game is gambling or not. But under the
and a fine of Six Thousand Pesos. new gambling law, the skill of the players is
immaterial.
The penalty of prision correccional
in its maximum degree and a fine of Six Any game is considered gambling where
Thousand Pesos shall be imposed upon the there are bets or wagers placed with the
maintainer, conductor of the above hope to win a prize therefrom.
gambling schemes.
Under this law, even sports contents like
The penalty of prision mayor in its boxing, would be gambling insofar as those
medium degree and temporary absolute who are betting therein are concerned.
disqualification and a fine of Six Thousand Under the old penal code, if the skill of the
Pesos shall be imposed if the maintainer, player outweighs the chance or hazard
conductor or banker is a government involved in winning the game, the game is
official, or if a player, promoter, referee, not considered gambling but a sport. It was
umpire, judge or coach in cases of game- because of this that betting in boxing and
fixing, point-shaving and other game basketball games proliferated.
machination.
Unless authorized by a franchise, any form
The penalty of prision correccional of gambling is illegal. So said the court in
in its medium degree and a fine ranging the recent resolution of the case against the
from Five Hundred pesos to Two Thousand operation of jai-alai.
Pesos shall be imposed upon any person
who shall knowingly and without lawful There are so-called parlor games which
purpose in any hour of any day shall have in have been exempted from the operation of
his possession any lottery list, paper, or the decree like when the games are played
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
during a wake to keep the mourners awake 2. If the merchandise is not saleable
at night. Pursuant to a memorandum because of its inferior quality, so that
circular issued by the Executive Branch, the the public actually does not buy
offshoot of the exemption is the intentional them, but with the lottery the public
prolonging of the wake of the dead by starts patronizing such
gambling lords. merchandise. In effect, the public is
paying for the lottery and not for the
As a general rule, betting or wagering merchandise, and therefore the
determines whether a game is gambling or lottery is a gambling game. Public is
not. Exceptions: These are games which not made to pay a higher price.
are expressly prohibited even without bets.
Monte, jueteng or any form of lottery; dog Illustrations:
races; slot machines; these are habit-
forming and addictive to players, bringing (1) A certain supermarket wanted to
about the pernicious effects to the family increase its sales and sponsored a
and economic life of the players. lottery where valuable prices are
offered at stake. To defray the cost
Mere possession of lottery tickets or lottery of the prices offered in the lottery,
lists is a crime punished also as part of the management increased their
gambling. However, it is necessary to make prices of the merchandise by 10
a distinction whether a ticket or list refers to cents each. Whenever someone
a past date or to a future date. buys from that supermarket, he pays
10 cents more for each merchandise
Illustration: and for his purchase, he gets a
coupon which is to be dropped at
X was accused one night and found in his designated drop boxes to be raffled
possession was a list of jueteng. If the date on a certain period.
therein refers to the past, X cannot be
convicted of gambling or illegal possession The increase of the price is to
of lottery list without proving that such game answer for the cost of the valuable
was indeed played on the date stated. prices that will be covered at stake.
Mere possession is not enough. If the date The increase in the price is the
refers to the future, X can be convicted by consideration for the chance to win
the mere possession with intent to use. in the lottery and that makes the
This will already bring about criminal liability lottery a gambling game.
and there is no need to prove that the game
was played on the date stated. If the But if the increase in prices of the
possessor was caught, chances are he will articles or commodities was not
not go on with it anymore. general, but only on certain items
and the increase in prices is not the
There are two criteria as to when the lottery same, the fact that a lottery is
is in fact becomes a gambling sponsored does not appear to be
game: tied up with the increase in prices,
therefore not illegal.
1. If the public is made to pay not only
for the merchandise that he is Also, in case of manufacturers, you
buying, but also for the chance to have to determine whether the
win a prize out of the lottery, lottery increase in the price was due to the
becomes a gambling game. Public lottery or brought about by the
is made to pay a higher price. normal price increase. If the
increase in price is brought about by
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
the normal price increase [economic Fund-raising campaigns are not gambling.
factor] that even without the lottery They are for charitable purposes but they
the price would be like that, there is have to obtain a permit from Department of
no consideration in favor of the Social Welfare and Development. This
lottery and the lottery would not includes concerts for causes, Christmas
amount to a gambling game. caroling, and the like.
(2) The merchandise is not really 2. Such act or acts be highly scandalous
saleable because of its inferior as offending against decency or
quality. A certain manufacturer, good customs;
Bhey Company, manufacture
cigarettes which is not saleable 3. The highly scandalous conduct is not
because the same is irritating to the expressly falling within any other
throat, sponsored a lottery and a article of this Code; and
coupon is inserted in every pack of
cigarette so that one who buys it 4. The act or acts complained of be
shall have a chance to participate. committed in a public place or within
Due to the coupons, the public the public knowledge or view.
started buying the cigarette.
Although there was no price
increase in the cigarettes, the lottery In grave scandal, the scandal involved
can be considered a gambling game refers to moral scandal offensive to
because the buyers were really after decency, although it does not disturb public
the coupons not the low quality peace. But such conduct or act must be
cigarettes. open to the public view.
If without the lottery or raffle, the In alarms and scandals, the scandal
public does not patronize the involved refers to disturbances of the public
product and starts to patronize them tranquility and not to acts offensive to
only after the lottery or raffle, in decency.
effect the public is paying for the
price not the product. Any act which is notoriously offensive to
decency may bring about criminal liability
for the crime of grave scandal provided
Under this decree, a barangay captain who such act does not constitute some other
is responsible for the existence of gambling crime under the Revised Penal Code.
dens in their own locality will be held liable Grave scandal is a crime of last resort.
and disqualified from office if he fails to
prosecute these gamblers. But this is not Distinction should be made as to the place
being implemented. where the offensive act was
committed, whether in the public
Gambling, of course, is legal when place or in a private place:
authorized by law.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
(1) In public place, the criminal liability Her defense was that she was doing
arises irrespective of whether the it in her own house.
immoral act is open to the public
view. In short public view is not It is no defense that she is doing it in
required. her private home. It is still open to
the public view.
(2) When act offensive to decency is
done in a private place, public view (4) In a particular building in Makati
or public knowledge is required. which stands right next to the house
of a young lady who goes
Public view does not require numerous sunbathing in her poolside. Every
persons. Even if there was only one person morning several men in the upper
who witnessed the offensive act for as long floors would stick their heads out to
as the third person was not an intruder, get a full view of said lady while in
grave scandal is committed provided the act her two-piece swimsuit. The lady
does not fall under any other crime in the was then charged with grave
Revised Penal Code. scandal. Her defense was that it is
her own private pool and it is those
Illustrations: men looking down at her who are
malicious.
(1) A man and a woman enters a movie
house which is a public place and This is an act which even though
then goes to the darkest part of the done in a private place is
balcony and while there the man nonetheless open to public view.
started performing acts of
lasciviousness on the woman.
Article 201. Immoral Doctrines, Obscene
If it is against the will of the woman, Publications and Exhibitions and
the crime would be acts of Indecent Shows
lasciviousness. But if there is
mutuality, this constitutes grave Acts punished
scandal. Public view is not
necessary so long as it is performed 1. Those who shall publicly expound or
in a public place. proclaim doctrines openly contrary to
public morals;
(2) A man and a woman went to Luneta
and slept there. They covered 2. a. The authors of obscene
themselves their blanket and made literature, published with their
the grass their conjugal bed. knowledge in any form, the editors
publishing such literature; and the
This is grave scandal. owners/operators of the
establishment selling the same;
(3) In a certain apartment, a lady tenant
had the habit of undressing in her b. Those who, in theaters,
room without shutting the blinds. fairs, cinematographs, or any
She does this every night at about other place, exhibit indecent or
eight in the evening. So that at this immoral plays, scenes, acts, or
hour of the night, you can expect shows, it being understood that
people outside gathered in front of the obscene literature or
her window looking at her silhouette. indecent or immoral plays,
She was charged of grave scandal. scenes, acts or shows, whether
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
(2) Attempted theft under Article 308, 3. Unjust interlocutory order (Art. 206);
paragraph 3, if the estate is fenced
and the offender entered the same 4. Malicious delay in the administration
to hunt therein or fish from any of justice (Art. 207);
waters therein or to gather any farm
products therein without the consent 5. Prosecution of offenses; negligence
of the owner or overseer thereof; and tolerance (Art. 208);
Crimes committed by public officers 18. Illegal use of public funds or property
(Art. 220);
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
19. Failure to make delivery of public 36. Usurpation of legislative powers (Art.
funds or property (Art. 221); 239);
21. Evasion through negligence (Art. 38. Usurpation of judicial functions (Art.
224); 241);
24. Officer breaking seal (Art. 227); 41. Unlawful appointments (Art. 244);
and
25. Opening of closed documents (Art.
228); 42. Abuses against chastity (Art. 245).
2. His authority to take part in the perform an official duty which his
performance of public functions or to office requires him to perform.
perform public duties must be
3. Judgment is unjust;
Originally, Title VII used the phrase public
officer or employee but the latter word has 4. The judge knows that his judgment is
been held meaningless and useless unjust .
because in criminal law, public officer
covers all public servants, whether an
official or an employee, from the highest to Article 205. Judgment Rendered through
the lowest position regardless of rank or Negligence
class; whether appointed by competent
authority or by popular election or by direct
1. Offender is a judge;
provision of law.
2. He renders a judgment in a case
Under Republic Act No. 3019 (The Anti-
submitted to him for decision;
Graft and Corrupt Practices Act), the term
public officer is broader and more
comprehensive because it includes all 3. The judgment is manifestly unjust;
persons whether an official or an employee,
temporary or not, classified or not, 4. It is due to his inexcusable negligence
contractual or otherwise. Any person who or ignorance.
receives compensation for services
rendered is a public officer.
Article 206. Unjust Interlocutory Order
Breach of oath of office partakes of three
forms: 1. Offender is a judge;
(1) Malfeasance - when a public officer 2. He performs any of the following acts:
performs in his public office an act
prohibited by law. a. Knowingly rendering an
unjust interlocutory order or
Example: bribery. decree; or
(3) He may be held liable for violating But in the crime of theft or robbery, where
the Anti-Graft and Corrupt Practices the policeman shared in the loot and
Act. allowed the offender to go free, he becomes
a fence. Therefore, he is considered an
However, in distant provinces or offender under the Anti-Fencing Law.
municipalities where there are no municipal
attorneys, the local chief of police is the Relative to this crime under Article 208,
prosecuting officer. If he is the one who consider the crime of qualified bribery.
tolerates the violations of laws or otherwise Among the amendments made by Republic
allows offenders to escape, he can be Act No. 7659 on the Revised Penal Code is
prosecuted under this article. a new provision which reads as follows:
entrusted with enforcement whose official by a penalty lower than reclusion perpetua,
duties authorize then to arrest or prosecute the crime is direct bribery.
offenders. Apparently, they are peace
officers and public prosecutors since the In the latter situation, three crimes are
nonfeasance refers to arresting or committed: direct bribery and dereliction of
prosecuting. But this crime arises only duty on the part of the fiscal; and corruption
when the offender whom such public officer of a public officer by the giver.
refrains from arresting or prosecuting, has
committed a crime punishable by reclusion
perpetua and/or death. If the crime were Article 209. Betrayal of Trust by An
punishable by a lower penalty, then such Attorney or Solicitor Revelation of
nonfeasance by the public officer would Secrets
amount to direct bribery, not qualified
bribery. Acts punished
If the crime was qualified bribery, the 1. Causing damage to his client, either
dereliction of the duty punished under
Article 208 of the Revised Penal Code a. By any malicious breach of
should be absorbed because said article professional duty;
punishes the public officer who maliciously
refrains from instituting prosecution for the b. By inexcusable negligence or
punishment of violators of the law or shall ignorance.
tolerate the commission of offenses. The
dereliction of duty referred to is necessarily Note: When the attorney acts with
included in the crime of qualified bribery. malicious abuse of his employment
or inexcusable negligence or
On the other hand, if the crime was direct ignorance, there must be damage to
bribery under Article 210 of the Revised his client.
Penal Code, the public officer involved
should be prosecuted also for the 2. Revealing any of the secrets of his
dereliction of duty, which is a crime under client learned by him in his
Article 208 of the Revised Penal Code, professional capacity;
because the latter is not absorbed by the
crime of direct bribery. This is because in 3. Undertaking the defense of the
direct bribery, where the public officer opposing party in the same case,
agreed to perform an act constituting a without the consent of his first client,
crime in connection with the performance of after having undertaken the defense
his official duties, Article 210 expressly of said first client of after having
provides that the liabilty thereunder shall be received confidential information
in addition to the penalty corresponding to from said client.
the crime agreed upon, if the crime shall
have been committed.
Under the rules on evidence,
Illustration: communications made with prospective
clients to a lawyer with a view to engaging
A fiscal, for a sum of money, refrains from his professional services are already
prosecuting a person charged before him. privileged even though the client-lawyer
If the penalty for the crime involved is relationship did not eventually materialize
reclusion perpetua, the fiscal commits because the client cannot afford the fee
qualified bribery. If the crime is punishable being asked by the lawyer. The lawyer and
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
his secretary or clerk cannot be examined detail of the criminal case. If B will disclose
thereon. what was narrated to him there is no
betrayal of trust since B is acting as a
That this communication with a prospective notary public and not as a counsel. The
client is considered privileged, implies that lawyer must have learned the confidential
the same is confidential. Therefore, if the matter in his professional capacity.
lawyer would reveal the same or otherwise
accept a case from the adverse party, he Several acts which would make a lawyer
would already be violating Article 209. criminally liable:
Mere malicious breach without damage is
not violative of Article 209; at most he will (1) Maliciously causing damage to his
be liable administratively as a lawyer, e.g., client through a breach of his
suspension or disbarment under the Code professional duty. The breach of
of Professional Responsibility. professional duty must be malicious.
If it is just incidental, it would not
Illustration: give rise to criminal liability, although
it may be the subject of
B, who is involved in the crime of seduction administrative discipline;
wanted A, an attorney at law, to handle his
case. A received confidential information (2) Through gross ignorance, causing
from B. However, B cannot pay the damage to the client;
professional fee of A. C, the offended party,
came to A also and the same was (3) Inexcusable negligence;
accepted.
(4) Revelation of secrets learned in his
A did not commit the crime under Article professional capacity;
209, although the lawyers act may be
considered unethical. The client-lawyer (5) Undertaking the defense of the
relationship between A and B was not yet opposite party in a case without the
established. Therefore, there is no trust to consent of the first client whose
violate because B has not yet actually defense has already been
engaged the services of the lawyer A. A is undertaken.
not bound to B. However, if A would reveal
the confidential matter learned by him from Note that only numbers 1, 2 and 3 must
B, then Article 209 is violated because it is approximate malice.
enough that such confidential matters were
communicated to him in his professional A lawyer who had already undertaken the
capacity, or it was made to him with a view case of a client cannot later on shift to the
to engaging his professional services. opposing party. This cannot be done.
Note however that what may begin as an (1) If the corruptor offers a
indirect bribery may actually ripen into direct consideration to a custodian of a
bribery. public record to remove certain files,
the mere agreement, without
Illustration: delivery of the consideration, brings
about the crime of direct bribery and
corruption of public official.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Under Article 210, the mere The idea of the law is that he is being paid
agreement to commit the act, which salary for being there. He is not supposed
amounts to a crime, is already to demand additional compensation from
bribery. That stenographer the public before performing his public
becomes liable already for service. The prohibition will apply only
consummated crime of bribery and when the money is delivered to him, or if he
the party who agreed to give that performs what he is supposed to perform in
money is already liable for anticipation of being paid the money.
consummated corruption, even
though not a single centavo is Here, the bribery will only arise when there
delivered yet and even though the is already the acceptance of the
stenographer had not yet made the consideration because the act to be done is
alterations. not a crime. So, without the acceptance,
the crime is not committed.
If he changed the transcript, another
crime is committed: falsification. Direct bribery may be committed only in the
attempted and consummated stages
because, in frustrated felony, the offender
The same criterion will apply with respect to must have performed all the acts of
a public officer who agrees to refrain from execution which would produce the felony
performing his official duties. If the as a consequence. In direct bribery, it is
refraining would give rise to a crime, such possible only if the corruptor concurs with
as refraining to prosecute an offender, the the offender. Once there is concurrence,
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
the direct bribery is already consummated. therefore, he could not perform all
In short, the offender could not have the acts of execution.
performed all the acts of execution to
produce the felony without consummating Be sure that what is involved is a
the same. crime of bribery, not extortion. If it
were extortion, the crime is not
Actually, you cannot have a giver unless bribery, but robbery. The one who
there is one who is willing to receive and yielded to the demand does not
there cannot be a receiver unless there is commit corruption of a public officer
one willing to give. So this crime requires because it was involuntary.
two to commit. It cannot be said, therefore,
that one has performed all the acts of
execution which would produce the felony Article 211. Indirect Bribery
as a consequence but for reasons
independent of the will, the crime was not Elements
committed.
1. Offender is a public officer;
It is now settled, therefore, that the crime of
bribery and corruption of public officials 2. He accepts gifts;
cannot be committed in the frustrated stage
because this requires two to commit and 3. The gifts are offered to him by reason of
that means a meeting of the minds. his office.
Illustrations:
The public official does not undertake to
(1) If the public official accepted the perform an act or abstain from doing an
corrupt consideration and turned it official duty from what he received. Instead,
over to his superior as evidence of the official simply receives or accepts gifts
the corruption, the offense is or presents delivered to him with no other
attempted corruption only and not reason except his office or public position.
frustrated. The official did not agree This is always in the consummated stage.
to be corrupted. There is no attempted much less frustrated
stage in indirect bribery.
If the public officer did not report the
same to his superior and actually The Supreme Court has laid down the rule
accepted it, he allowed himself to be that for indirect bribery to be committed, the
corrupted. The corruptor becomes public officer must have performed an act of
liable for consummated corruption of appropriating of the gift for himself, his
public official. The public officer family or employees. It is the act of
also becomes equally liable for appropriating that signifies acceptance.
consummated bribery. Merely delivering the gift to the public officer
does not bring about the crime. Otherwise
(2) If a public official demanded it would be very easy to remove a public
something from a taxpayer who officer: just deliver a gift to him.
pretended to agree and use marked
money with the knowledge of the
police, the crime of the public official Article 211-A. Qualified Bribery
is attempted bribery. The reason is
that because the giver has no Elements
intention to corrupt her and
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Note that the penalty is qualified if the Before the bribe-giver may be dropped from
public officer is the one who asks or the information, he has to be charged first
demands such present. with the receiver. Before trial, prosecutor
may move for dropping bribe-giver from
information and be granted immunity. But
Presidential Decree No. 46 first, five conditions have to be met:
The decree grants immunity from The immunity granted the bribe-giver is
prosecution to a private person or public limited only to the illegal transaction where
officer who shall voluntarily give information the informant gave voluntarily the testimony.
and testify in a case of bribery or in a case If there were other transactions where the
informant also participated, he is not
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Republic Act No. 3019 (Anti-Graft and that he performed the prohibited act
Corrupt Practices Act) voluntarily. Even though the prohibited act
may have benefited the government. The
The mere act of a public officer demanding crime is still committed because the law is
an amount from a taxpayer to whom he is to not after the effect of the act as long as the
render public service does not amount to act is prohibited.
bribery, but will amount to a violation of the
Anti-graft and Corrupt Practices Act. Section 3 (g) of the Anti-Graft and Corrupt
Practices Act where a public officer
Illustration: entered into a contract for the government
which is manifestly disadvantageous to the
A court secretary received P500 .00 from a government even if he did not profit from
litigant to set a motion for an early hearing. the transaction, a violation of the Anti-Graft
This is direct bribery even if the act to be and Corrupt Practices Act is committed.
performed is within his official duty so long
as he received a consideration therefor. If a public officer, with his office and a
private enterprise had a transaction and he
If the secretary persuaded the judge to allows a relative or member of his family to
make a favorable resolution, even if the accept employment in that enterprise, good
judge did not do so, this constitutes a faith is not a defense because it is a malum
violation of Anti-Graft and Corrupt Practices prohibitum. It is enough that that the act
Act, Sub-Section A. was performed.
Under the Anti-Graft and Corrupt Practices Where the public officer is a member of the
Act, particularly Section 3, there are several board, panel or group who is to act on an
acts defined as corrupt practices. Some of application of a contract and the act
them are mere repetitions of the act already involved one of discretion, any public officer
penalized under the Revised Penal Code, who is a member of that board, panel or
like prohibited transactions under Article group, even though he voted against the
215 and 216. In such a case, the act or approval of the application, as long as he
omission remains to be mala in se. has an interest in that business enterprise
whose application is pending before that
But there are acts penalized under the Anti- board, panel or group, the public officer
Graft and Corrupt Practices Act which are concerned shall be liable for violation of the
not penalized under the Revised Penal Anti-Graft and Corrupt Practices Act. His
Code. Those acts may be considered as only course of action to avoid prosecution
mala prohibita. Therefore, good faith is not under the Anti-graft and Corrupt Practices
a defense. Act is to sell his interest in the enterprise
which has filed an application before that
Illustration: board, panel or group where he is a
member. Or otherwise, he should resign
Section 3 (e) of the Anti-Graft and Corrupt from his public position.
Practices Act causing undue injury to the
government or a private party by giving Illustration:
unwarranted benefit to the party whom does
not deserve the same. Sen. Dominador Aytono had an interest in
the Iligan Steel Mills, which at that time was
In this case, good faith is not a defense being subject of an investigation by the
because it is in the nature of a malum Senate Committee of which he was a
prohibitum. Criminal intent on the part of chairman. He was threatened with
the offender is not required. It is enough prosecution under Republic Act No. 3019 so
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
he was compelled to sell all his interest in booked and incarcerated no matter how
that steel mill; there is no defense. Because short the time may be.
the law says so, even if he voted against it,
he commits a violation thereof. The policeman could not be said as having
assisted the escape of the offender
These cases are filed with the Ombudsman because as the problem says, he is
and not with the regular prosecutors office. assigned to direct traffic in a busy corner
Jurisdiction is exclusively with the street. So he cannot be considered as
Sandiganbayan. The accused public officer falling under the third 3rd paragraph of
must be suspended when the case is Article 19 that would constitute his as an
already filed with the Sandiganbayan. accessory.
Under the Anti-Graft and Corrupt Practices The same is true with the civilian because
Act, the public officer who is accused the crime committed by the offender, which
should not be automatically suspended is snatching or a kind of robbery or theft as
upon the filing of the information in court. It the case may be, is not one of those crimes
is the court which will order the suspension mentioned under the third paragraph of
of the public officer and not the superior of Article 19 of the Revised Penal Code.
that public officer. As long as the court has
not ordered the suspension of the public Where the public officer is still incumbent,
officer involved, the superior of that public the prosecution shall be with the
officer is not authorized to order the Ombudsman.
suspension simply because of the violation
of the Anti-Graft and Corrupt Practices Act. Where the respondent is separated from
The court will not order the suspension of service and the period has not yet
the public officer without first passing upon prescribed, the information shall be filed in
the validity of the information filed in court. any prosecutions office in the city where
Without a hearing, the suspension would be the respondent resides. The prosecution
null and void for being violative of due shall file the case in the Regional Trial Court
process. unless the violation carries a penalty higher
than prision correccional, in which case the
Illustration: Sandiganbayan has jurisdiction.
A public officer was assigned to direct traffic The fact that the government benefited out
in a very busy corner. While there, he of the prohibited act is no defense at all, the
caught a thief in the act of lifting the wallet violation being mala prohibita.
of a pedestrian. As he could not leave his
post, he summoned a civilian to deliver the Section 3 (f) of the Anti-Graft and Corrupt
thief to the precinct. The civilian agreed so Practices Act where the public officer
he left with the thief. When they were neglects or refuses to act on a matter
beyond the view of the policeman, the pending before him for the purpose of
civilian allowed the thief to go home. What obtaining any pecuniary or material benefit
would be the liability of the public officer? or advantage in favor of or discriminating
against another interested party.
The liability of the traffic policeman would
be merely administrative. The civilian has The law itself additionally requires that the
no liability at all. accuseds dereliction, besides being without
Firstly, the offender is not yet a prisoner so justification, must be for the purpose of
there is no accountability yet. The term obtaining from any person interested in the
prisoner refers to one who is already matter some pecuniary or material benefit
or for the purpose of favoring any interested
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
1. Entering into an agreement with any The essence of this crime is making the
interested party or speculator or government pay for something not received
making use of any other scheme, to or making it pay more than what is due. It
defraud the government, in dealing is also committed by refunding more than
with any person with regard to the amount which should properly be
furnishing supplies, the making of refunded. This occurs usually in cases
contracts, or the adjustment or where a public officer whose official duty is
settlement of accounts relating to to procure supplies for the government or
public property or funds; enter into contract for government
transactions, connives with the said supplier
2. Demanding, directly or indirectly, the with the intention to defraud the
payment of sums different from or government. Also when certain supplies for
larger than those authorized by law, the government are purchased for the high
in collection of taxes, licenses, fees, price but its quantity or quality is low.
and other imposts;
Illustrations:
3. Failing voluntarily to issue a receipt,
as provided by law, for any sum of (1) A public official who is in charge of
money collected by him officially, in procuring supplies for the
the collection of taxes, licenses, government obtained funds for the
fees, and other imposts; first class materials and buys inferior
quality products and pockets the
4. Collecting or receiving, directly or excess of the funds. This is usually
indirectly, by way of payment or committed by the officials of the
otherwise, things or objects of a Department of Public Works and
nature different from that provided Highways.
by law, in the collection of taxes,
licenses, fees, and other imposts. (2) Poorest quality of ink paid as if it
were of superior quality.
Elements of frauds against public treasury (3) One thousand pieces of blanket for
under paragraph 1 certain unit of the Armed Forces of
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
the Philippines were paid for but Elements of illegal exactions under
actually, only 100 pieces were paragraph 2
bought.
1. Offender is a public officer entrusted
(4) The Quezon City government with the collection of taxes, licenses,
ordered 10,000 but what was fees and other imposts;
delivered was only 1,000 T-shirts,
the public treasury is defrauded 2. He is guilty of any of the following
because the government is made to acts or omissions:
pay that which is not due or for a
higher price. a. Demanding, directly or
indirectly, the payment of
Not all frauds will constitute this crime. sums different from or larger
There must be no fixed allocation or amount than those authorized by law;
on the matter acted upon by the public or
officer.
b. Failing voluntarily to issue a
The allocation or outlay was made the basis receipt, as provided by law,
of fraudulent quotations made by the public for any sum of money
officer involved. collected by him officially; or
This provision of the Revised Penal Code treasurer, thinking that he would
was provided before the Bureau of Internal abstract the P100.00, issued a
Revenue and the Tariff and Customs Code. receipt for only P400.00. The
Now, we have specific Code which will taxpayer would naturally ask the
apply to them. In the absence of any municipal treasurer why the receipt
provision applicable, the Revised was only for P400.00. The treasurer
Administrative Code will apply. answered that the P100.00 is
supposed to be for documentary
The essence of the crime is not stamps. The taxpayer left.
misappropriation of any of the amounts but
the improper making of the collection which He has a receipt for P400.00. The
would prejudice the accounting of collected municipal treasurer turned over to
amounts by the government. the government coffers P400.00
because that is due the government
On the first form of illegal exaction and pocketed the P100.00.
In this form, mere demand will The mere fact that there was a
consummate the crime, even if the demand for an amount different from
taxpayer shall refuse to come across what is due the government, the
with the amount being demanded. That public officer already committed the
will not affect the consummation of the crime of illegal exaction.
crime.
On the P100.00 which the public
In the demand, it is not necessary that the officer pocketed, will it be
amount being demanded is bigger than malversation or estafa?
what is payable to the government. The
amount being demanded maybe less than In the example given, the public
the amount due the government. officer did not include in the official
receipt the P100.00 and, therefore, it
Note that this is often committed with did not become part of the public
malversation or estafa because when a funds. It remained to be private. It
public officer shall demand an amount is the taxpayer who has been
different from what the law provides, it can defrauded of his P100.00 because
be expected that such public officer will not he can never claim a refund from
turn over his collection to the government. the government for excess payment
since the receipt issued to him was
Illustrations: only P400.00 which is due the
government. As far as the P100.00
(1) A taxpayer goes to the local is concerned, the crime committed is
municipal treasurer to pay real estafa.
estate taxes on his land. Actually,
what is due the government is (3) A taxpayer pays his taxes. What is
P400.00 only but the municipal due the government is P400.00 and
treasurer demanded P500.00. By the public officer issues a receipt for
that demand alone, the crime of P500.00 upon payment of the
illegal exaction is already committed taxpayer of said amount demanded
even though the taxpayer does not by the public officer involved. But
pay the P500.00. he altered the duplicate to reflect
only P400.00 and he extracted the
(2) Suppose the taxpayer came across difference of P100.00.
with P500.00. But the municipal
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
In this case, the entire P500.00 was exaction. It is the breach of trust by
covered by an official receipt. That a public officer entrusted to make
act of covering the whole amount the collection which is penalized
received from the taxpayer in an under such article. The falsification
official receipt will have the or alteration made on the duplicate
characteristics of becoming a part of can not be said as a means to
the public funds. The crimes commit malversation. At most, the
committed, therefore, are the duplicate was altered in order to
following: conceal the malversation. So it
cannot be complexed with the
(a) Illegal exaction for malversation.
collecting more than he is
authorized to collect. The It cannot also be said that the
mere act of demanding is falsification is a necessary means to
enough to constitute this commit the malversation because
crime. the public officer can misappropriate
the P100.00 without any falsification.
(b) Falsification because there All that he has to do is to get the
was an alteration of official excess of P100.00 and
document which is the misappropriate it. So the
duplicate of the official falsification is a separate
receipt to show an amount accusation.
less than the actual amount
collected. However, illegal exaction may be
complexed with malversation
(c) Malversation because of because illegal exaction is a
his act of misappropriating necessary means to be able to
the P100.00 excess which collect the P100.00 excess which
was covered by an official was malversed.
receipt already, even though
not payable to the In this crime, pay attention to
government. The entire whether the offender is the one
P500.00 was covered by the charged with the collection of the
receipt, therefore, the whole tax, license or impost subject of the
amount became public misappropriation. If he is not the
funds. So when he one authorized by disposition to do
appropriated the P100 for his the collection, the crime of illegal
own benefit, he was not exaction is not committed.
extracting private funds
anymore but public funds. If it did not give rise to the crime of
illegal exaction, the funds collected
Should the falsification be may not have become part of the
complexed with the malversation? public funds. If it had not become
part of the public funds, or had not
As far as the crime of illegal become impressed with being part
exaction is concerned, it will be the of the public funds, it cannot be the
subject of separate accusation subject of malversation. It will give
because there, the mere demand rise to estafa or theft as the case
regardless of whether the taxpayer may be.
will pay or not, will already
consummate the crime of illegal
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Although the excess P100.00 was Under the rules and regulations of the
not covered by the Official Receipt, government, payment of checks not
it was commingled with the other belonging to the taxpayer, but that of
public funds in the vault; hence, it checks of other persons, should not be
became part of public funds and accepted to settle the obligation of that
subsequent extraction thereof person.
constitutes malversation.
Illustration:
Note that numbers 1 and 2 are complexed A taxpayer pays his obligation with a check
as illegal exaction with estafa, while in not his own but pertaining to another.
number 3, malversation is a distinct offense. Because of that, the check bounced later
on.
The issuance of the Official Receipt is the
operative fact to convert the payment into The crime committed is illegal exaction
public funds. The payor may demand a because the payment by check is not
refund by virtue of the Official Receipt. allowed if the check does not pertain to the
taxpayer himself, unless the check is a
In cases where the payor decides to let the managers check or a certified check,
official to keep the change, if the latter amended already as of 1990. (See the
should pocket the excess, he shall be liable case of Roman Catholic.)
for malversation. The official has no right
but the government, under the principle of Under Article 213, if any of these acts
accretion, as the owner of the bigger penalized as illegal exaction is committed
amount becomes the owner of the whole. by those employed in the Bureau of
Customs or Bureau of Internal Revenue,
On the second form of illegal exaction the law that will apply to them will be the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
shall strictly avoid conflict of interest in the 2. He had the custody or control of
conduct of their office. funds or property by reason of the
duties of his office;
Section 2, Article IX-A of the Constitution 3. Those funds or property were public
funds or property for which he was
No member of a Constitutional accountable;
Commission shall, during his tenure, hold
any office or employment. Neither shall he 4. He appropriated, took,
engage in the practice of any profession or misappropriated or consented or,
in the active management or control of any through abandonment or negligence,
business which in any way may be affected permitted another person to take
by the functions of his office, nor shall he be them.
financially interested, directly or indirectly, in
any contract with, or in any franchise or
privilege granted by the government, or any This crime is predicated on the relationship
of its subdivisions, agencies, or of the offender to the property or funds
instrumentalities, including government- involved. The offender must be
owned or controlled corporations or their accountable for the property
subsidiaries. misappropriated. If the fund or property,
though public in character is the
responsibility of another officer,
Article 217. Malversation of Public malversation is not committed unless there
Funds or Property Presumption of is conspiracy.
Malversation
It is not necessary that the offender profited
Acts punished because somebody else may have
misappropriated the funds in question for as
1. Appropriating public funds or long as the accountable officer was remiss
property; in his duty of safekeeping public funds or
property. He is liable for malversation if
2. Taking or misappropriating the such funds were lost or otherwise
same; misappropriated by another.
placed all his collections inside his table and (4) When he is constituted as the
requested his employee B to watch over his depositary or administrator of funds
table while he goes to the restroom. B took or property seized or attached by
advantage of As absence and took P50.00 public authority even though said
out of the collections. A returned and found funds or property belong to a private
his money short. What crimes have been individual.
committed?
Illustration:
A is guilty of malversation through
negligence because he did not exercise due Municipal treasurer connives with outsiders
diligence in the safekeeping of the funds to make it appear that the office of the
when he did not lock the drawer of his table. treasurer was robbed. He worked overtime
Insofar as B is concerned, the crime is and the co-conspirators barged in, hog-tied
qualified theft. the treasurer and made it appear that there
was a robbery. Crime committed is
malversation because the municipal
Under jurisprudence, when the public officer treasurer was an accountable officer.
leaves his post without locking his drawer,
there is negligence. Thus, he is liable for Note that damage on the part of the
the loss. government is not considered an essential
element. It is enough that the proprietary
Illustration: rights of the government over the funds
have been disturbed through breach of
A government cashier did not bother to put trust.
the public fund in the public safe/vault but
just left it in the drawer of his table which It is not necessary that the accountable
has no lock. The next morning when he public officer should actually misappropriate
came back, the money was already gone. the fund or property involved. It is enough
He was held liable for malversation through that he has violated the trust reposed on
negligence because in effect, he has him in connection with the property.
abandoned the fund or property without any
safety. Illustration:
denied the use of the public fund. the payment. He then opens the public
With more reason if that check vault and counts the cash. Whatever will be
bounce because the government the excess or the overage, he gets. In this
suffers. case, malversation is committed.
(2) An accountable public officer, out of Note that the moment any money is
laziness, declares that the payment commingled with the public fund even if not
was made to him after he had due the government, it becomes impressed
cleaned his table and locked his with the characteristic of being part of public
safe for the collection of the day. A funds. Once they are commingled, you do
taxpayer came and he insisted that not know anymore which belong to the
he pay the amount so that he will government and which belong to the private
not return the next day. So he persons. So that a public vault or safe
accepted the payment but is too lazy should not be used to hold any fund other
to open the combination of the that what is due to the government.
public safe. He just pocketed the
money. When he came home, the When does presumption of
money was still in his pocket. The misappropriation arise?
next day, when he went back to the
office, he changed clothes and he When a demand is made upon an
claims that he forgot to put the accountable officer and he cannot produce
money in the new funds that he the fund or property involved, there is a
would collect the next day. prima facie presumption that he had
Government auditors came and converted the same to his own use. There
subjected him to inspection. He must be indubitable proof that thing
was found short of that amount. He unaccounted for exists. Audit should be
claimed that it is in his house -- with made to determine if there was shortage.
that alone, he was charged with Audit must be complete and trustworthy. If
malversation and was convicted. there is doubt, presumption does not arise.
Any overage or excess in the collection of Presumption arises only if at the time the
an accountable public officer should not be demand to produce the public funds was
extracted by him once it is commingled with made, the accountability of the accused is
the public funds. already determined and liquidated. A
demand upon the accused to produce the
Illustration: funds in his possession and a failure on his
part to produce the same will not bring
When taxpayers pay their accountabilities about this presumption unless and until the
to the government by way of taxes or amount of his accountability is already
licenses like registration of motor vehicles, known.
the taxpayer does not bother to collect
loose change. So the government cashier
accumulates the loose change until this
amounts to a sizable sum. In order to avoid
malversation, the cashier did not separate
what is due the government which was left
to her by way of loose change. Instead, he
gets all of these and keeps it in the public
vault/safe. After the payment of the taxes
and licenses is through, he gets all the
official receipts and takes the sum total of
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Article 218. Failure of Accountable Who can commit this crime? A responsible
Officer to Render Accounts public officer, not necessarily an
accountable one, who leaves the country
Elements without first securing clearance from the
Commission on Audit.
1. Offender is public officer, whether in the
service or separated therefrom by The purpose of the law is to discourage
resignation or any other cause; responsible or accountable officers from
leaving without first liquidating their
2. He is an accountable officer for public accountability.
funds or property;
Mere leaving without securing clearance
constitutes violation of the Revised Penal
3. He is required by law or regulation to Code. It is not necessary that they really
render account to the Commission misappropriated public funds.
on Audit, or to a provincial auditor;
4. He fails to do so for a period of two Article 220. Illegal use of public funds or
months after such accounts should property
be rendered.
Elements
the fund or property was already the garage started using some of the
appropriated by law, the public officer cement in paving his own garage. The
applied it to another purpose. crime of technical malversation is also
committed.
Since damage is not an element of
malversation, even though the application
made proved to be more beneficial to public Note that when a private person is
interest than the original purpose for which constituted as the custodian in whatever
the amount or property was appropriated by capacity, of public funds or property, and he
law, the public officer involved is still liable misappropriates the same, the crime of
for technical malversation. malversation is also committed. See Article
222.
If public funds were not yet appropriated by
law or ordinance, and this was applied to a Illustration:
public purpose by the custodian thereof, the
crime is plain and simple malversation, not The payroll money for a government
technical malversation. If the funds had infrastructure project on the way to the site
been appropriated for a particular public of the project, the officers bringing the
purpose, but the same was applied to money were ambushed. They were all
private purpose, the crime committed is wounded. One of them, however, was able
simple malversation only. to get away from the scene of the ambush
until he reached a certain house. He told
Illustration: the occupant of the house to safeguard the
amount because it is the payroll money of
The office lacked bond papers. What the the government laborers of a particular
government cashier did was to send the project. The occupant of the house
janitor, get some money from his collection, accepted the money for his own use. The
told the janitor to buy bond paper so that crime is not theft but malversation as long
the office will have something to use. The as he knew that what was entrusted in his
amount involved maybe immaterial but the custody is public fund or property.
cashier commits malversation pure and
simple.
1. Public officer has government funds Article 225. Escape of Prisoner under the
in his possession; Custody of a Person not a Public Officer
3. Such prisoner escaped from his The crime is infidelity in the custody of
custody; prisoners if the offender involved is the
custodian of the prisoner.
4. He was in connivance with the
prisoner in the latters escape.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
If the offender who aided or consented to shot at with a view to liberate the prisoner
the prisoners escaping from confinement, from his custody. The policeman fought the
whether the prisoner is a convict or a attacker but he was fatally wounded. When
detention prisoner, is not the custodian, the he could no longer control the prisoner, he
crime is delivering prisoners from jail under went to a nearby house, talked to the head
Article156. of the family of that house and asked him if
he could give the custody of the prisoner to
The crime of infidelity in the custody of him. He said yes. After the prisoner was
prisoners can be committed only by the handcuffed in his hands, the policeman
custodian of a prisoner. expired. Thereafter, the head of the family
of that private house asked the prisoner if
If the jail guard who allowed the prisoner to he could afford to give something so that he
escape is already off-duty at that time and would allow him to go. The prisoner said,
he is no longer the custodian of the Yes, if you would allow me to leave, you
prisoner, the crime committed by him is can come with me and I will give the money
delivering prisoners from jail. to you. This private persons went with the
prisoner and when the money was given,
Note that you do not apply here the he allowed him to go. What crime/s had
principle of conspiracy that the act of one is been committed?
the act of all. The party who is not the
custodian who conspired with the custodian Under Article 225, the crime can be
in allowing the prisoner to escape does not committed by a private person to whom the
commit infidelity in the custody of the custody of a prisoner has been confided.
prisoner. He commits the crime of
delivering prisoners from jail. Where such private person, while
performing a private function by virtue of a
provision of law, shall accept any
consideration or gift for the non-
Question & Answer
performance of a duty confided to him,
Bribery is also committed. So the crime
If a private person approached the committed by him is infidelity in the custody
custodian of the prisoner and for a certain of prisoners and bribery.
consideration, told the custodian to leave
the door of the cell unlocked for the prisoner If the crime is delivering prisoners from jail,
to escape. What crime had been bribery is just a means, under Article 156,
committed? that would call for the imposition of a
heavier penalty, but not a separate charge
It is not infidelity in the custody of of bribery under Article 156.
prisoners because as far as the private
person is concerned, this crime is delivering But under Article 225 in infidelity, what is
prisoners from jail. The infidelity is only basically punished is the breach of trust
committed by the custodian. because the offender is the custodian. For
that, the crime is infidelity. If he violates the
This crime can be committed also by a trust because of some consideration,
private person if the custody of the prisoner bribery is also committed.
has been confided to a private person.
A higher degree of vigilance is required.
Illustration: Failure to do so will render the custodian
liable. The prevailing ruling is against laxity
A policeman escorted a prisoner to court. in the handling of prisoners.
After the court hearing, this policeman was
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Illustration:
Illustration:
A prison guard accompanied the prisoner in
the toilet. While answering the call of A letter is entrusted to a postmaster for
nature, police officer waiting there, until the transmission of a registered letter to
prisoner escaped. Police officer was another. The postmaster opened the letter
accused of infidelity. and finding the money, extracted the same.
The crime committed is infidelity in the
There is no criminal liability because it does custody of the public document because
not constitute negligence. Negligence under Article 226, the law refers also to
contemplated here refers to deliberate papers entrusted to public officer involved
abandonment of duty. and currency note is considered to be within
the term paper although it is not a
Note, however, that according to a recent document.
Supreme Court ruling, failure to accompany
lady prisoner in the comfort room is a case With respect to official documents, infidelity
of negligence and therefore the custodian is is committed by destroying the document,
liable for infidelity in the custody of prisoner. or removing the document or concealing the
document.
Prison guard should not go to any other
place not officially called for. This is a case Damage to public interest is necessary.
of infidelity in the custody of prisoner However, material damage is not
through negligence under Article 224. necessary.
Illustration:
Article 226. Removal, Concealment, or
Destruction of Documents If any citizen goes to a public office,
desiring to go over public records and the
Elements custodian of the records had concealed the
same so that this citizen is required to go
1. Offender is a public officer; back for the record to be taken out, the
crime of infidelity is already committed by
2. He abstracts, destroys or conceals a the custodian who removed the records and
document or papers; kept it in a place where it is not supposed to
be kept. Here, it is again the breach of
3. Said document or papers should public trust which is punished.
have been entrusted to such public
officer by reason of his office; Although there is no material damage
caused, mere delay in rendering public
4. Damage, whether serious or not, to service is considered damage.
a third party or to the public interest
has been caused. Removal of public records by the custodian
does not require that the record be brought
Crimes falling under the section on infidelity out of the premises where it is kept. It is
in the custody of public documents can only enough that the record be removed from
be committed by the public officer who is the place where it should be and transferred
made the custodian of the document in his to another place where it is not supposed to
official capacity. If the officer was placed in be kept. If damage is caused to the public
possession of the document but it is not his service, the public officer is criminally liable
duty to be the custodian thereof, this crime for infidelity in the custody of official
is not committed. documents.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
4. He does not have proper authority. Article 230. Public Officer Revealing
Secrets of Private individual
and issued with all the legal service, may be prosecuted for refusal of
formalities; assistance.
4. He, without any legal justification, This is a crime, which a policeman may
openly refuses to execute the said commit when, being subpoenaed to appear
judgment, decision or order, which in court in connection with a crime
he is duty bound to obey. investigated by him but because of some
arrangement with the offenders, the
policeman does not appear in court
Article 232. Disobedience to Order of anymore to testify against the offenders.
Superior Officer When Said Order Was He tried to assail the subpoena so that
Suspended by Inferior Officer ultimately the case would be dismissed. It
was already held that the policeman could
Elements be prosecuted under this crime of refusal of
assistance and not that of dereliction of
1. Offender is a public officer; duty.
3. Offender fails to do so maliciously. Note that the request must come from one
public officer to another.
3. There is no legal motive for such The maltreatment does not really require
refusal to be sworn in or to physical injuries. Any kind of punishment
discharge the duties of said office. not authorized or though authorized if
executed in excess of the prescribed
degree.
Article 235. Maltreatment of Prisoners
Illustration:
Elements
Make him drink dirty water, sit on ice, eat on
1. Offender is a public officer or a can, make him strip, hang a sign on his
employee; neck saying snatcher.
Elements Elements
interest in the subject of the case custodian be a man but requires that
under investigation. the offended be a woman.
Otherwise, abuse against chastity is otherwise requires any sexual favor from
committed. the other regardless of whether the
Being responsible for the pregnancy demand, request or requirement for
is itself taking advantage the submission is accepted by the object of the
prisoner. said act (for a passing grade, or granting of
scholarship or honors, or payment of a
If he forced himself against the will stipend, allowances, benefits,
of the woman, another crime is considerations; favorable compensation
committed, that is, rape aside from terms, conditions, promotions or when the
abuse against chastity. refusal to do so results in a detrimental
consequence for the victim).
You cannot consider the abuse
against chastity as absorbed in the Also holds liable any person who directs or
rape because the basis of penalizing induces another to commit any act of sexual
the acts is different from each other. harassment, or who cooperates in the
commission, the head of the office,
(3) The crime is committed upon a educational or training institution solidarily.
female relative of a prisoner under
the custody of the offender, where Complaints to be handled by a committee
the woman is the daughter, sister or on decorum, which shall be determined by
relative by affinity in the same line rules and regulations on such.
as of the prisoner under the custody
of the offender who made the Administrative sanctions shall not be a bar
indecent or immoral solicitation. to prosecution in the proper courts for
unlawful acts of sexual harassment.
The mother is not included so that
any immoral or indecent solicitation
upon the mother of the prisoner TITLE VIII. CRIMES AGAINST PERSONS
does not give rise to this crime, but
the offender may be prosecuted Crimes against persons
under the Section 28 of Republic Act
No. 3019 (Anti-graft and Corrupt 1. Parricide (Art. 246);
Practices Act).
2. Murder (Art. 248);
Why is the mother left out?
Because it is the mother who easily 3. Homicide (Art. 249);
succumbs to protect her child.
4. Death caused in a tumultuous affray
If the offender were not the (Art. 251);
custodian, then crime would fall
under Republic Act No. 3019 (The 5. Physical injuries inflicted in a
Anti-Graft and Corrupt Practices tumultuous affray (Art. 252);
Act).
6. Giving assistance to suicide (Art.
Republic Act No. 7877 (Anti-Sexual 253);
Harassment Act)
7. Discharge of firearms (Art. 254);
Committed by any person having authority,
influence or moral ascendancy over another 8. Infanticide (Art. 255);
in a work, training or education environment
when he or she demands, requests, or 9. Intentional abortion (Art. 256);
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
10. Unintentional abortion (Art. 257); In infanticide, the victim is younger than
three days or 72 hours old; can be
11. Abortion practiced by the woman committed by a stranger. If a stranger who
herself or by her parents (Art. 258); conspires with parent, both commit the
crime of infanticide.
12. Abortion practiced by a physician or
midwife and dispensing of abortives
(Art. 259); Article 246. Parricide
The essence of crime here involves the The relationship must be in the direct line
taking of human life, destruction of the fetus and not in the collateral line.
or inflicting injuries.
The relationship between the offender and
As to the taking of human life, you have: the offended party must be legitimate,
except when the offender and the offended
(1) Parricide; party are related as parent and child.
consented to the infidelity of the problem. If the killing was done when
other spouse. sexual intercourse is finished, a problem
arises. First, were they surprised in actual
sexual intercourse? Second, were they
Two stages contemplated before the article killed immediately thereafter?
will apply:
The phrase immediately thereafter has
(1) When the offender surprised the been interpreted to mean that
other spouse with a paramour or between the surprising and the
mistress. The attack must take killing of the inflicting of the
place while the sexual intercourse is physical injury, there should be
going on. If the surprise was before no break of time. In other words,
or after the intercourse, no matter it must be a continuous process.
how immediate it may be, Article
247 does not apply. The offender in The article presumes that a legally married
this situation only gets the benefit of person who surprises his or her better half
a mitigating circumstance, that is, in actual sexual intercourse would be
sufficient provocation immediately overcome by the obfuscation he felt when
preceding the act. he saw them in the act that he lost his head.
The law, thus, affords protection to a
(2) When the offender kills or inflicts spouse who is considered to have acted in
serious physical injury upon the a justified outburst of passion or a state of
other spouse and/or paramour while mental disequilibrium. The offended
in the act of intercourse, or spouse has no time to regain his self-
immediately thereafter, that is, after control.
surprising.
If there was already a break of time
You have to divide the stages because as between the sexual act and the killing or
far as the first stage is concerned, it does inflicting of the injury, the law presupposes
not admit of any situation less than sexual that the offender regained his reason and
intercourse. therefore, the article will not apply anymore.
So if the surprising took place before any As long as the act is continuous, the article
actual sexual intercourse could be done still applies.
because the parties are only in their
preliminaries, the article cannot be invoked
anymore.
Where the accused surprised his wife and is intended more for the protection of the
his paramour in the act of illicit accused than a punishment. Death under
intercourse, as a result of which he exceptional character can not be qualified
went out to kill the paramour in a fit by either aggravating or mitigating
of passionate outburst. Although circumstances.
about one hour had passed between
the time the accused discovered his In the case of People v. Abarca, 153
wife having sexual intercourse with SCRA 735, two persons suffered physical
the victim and the time the latter was injuries as they were caught in the crossfire
actually killed, it was held in People when the accused shot the victim. A
v. Abarca, 153 SCRA 735, that complex crime of double frustrated murder
Article 247 was applicable, as the was not committed as the accused did not
shooting was a continuation of the have the intent to kill the two victims. Here,
pursuit of the victim by the accused. the accused did not commit murder when
Here, the accused, after the he fired at the paramour of his wife.
discovery of the act of infidelity of Inflicting death under exceptional
his wife, looked for a firearm in circumstances is not murder. The accused
Tacloban City. was held liable for negligence under the first
part, second paragraph of Article 365, that
Article 247 does not provide that the victim is, less serious physical injuries through
is to be killed instantly by the accused after simple negligence. No aberratio ictus
surprising his spouse in the act of because he was acting lawfully.
intercourse. What is required is that the
killing is the proximate result of the outrage A person who acts under Article 247 is not
overwhelming the accused upon the committing a crime. Since this is merely an
discovery of the infidelity of his spouse. exempting circumstance, the accused must
The killing should have been actually first be charged with:
motivated by the same blind impulse.
(1) Parricide if the spouse is killed;
Illustration:
(2) Murder or homicide depending on
A upon coming home, surprised his wife, B, how the killing was done insofar as
together with C. The paramour was fast the paramour or the mistress is
enough to jump out of the window. A got concerned;
the bolo and chased C but he disappeared
among the neighborhood. So A started (3) Homicide through simple
looking around for about an hour but he negligence, if a third party is killed;
could not find the paramour. A gave up and
was on his way home. Unfortunately, the (4) Physical injuries through reckless
paramour, thinking that A was no longer imprudence, if a third party is
around, came out of hiding and at that injured.
moment, A saw him and hacked him to
death. There was a break of time and If death results or the physical injuries are
Article 247 does not apply anymore serious, there is criminal liability although
because when he gave up the search, it is a the penalty is only destierro. The
circumstance showing that his anger had banishment? is intended more for the
already died down. protection of the offender rather than a
penalty.
Article 247, far from defining a felony
merely grants a privilege or benefit, more of
an exempting circumstance as the penalty
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Illustration:
Elements
Homicide is qualified to murder if any of the
1. A person was killed; qualifying circumstances under Article 248
is present. It is the unlawful killing of a
2. Accused killed him; person not constituting murder, parricide or
infanticide.
3. The killing was attended by any of
the following qualifying In murder, any of the following qualifying
circumstances circumstances is present:
they seized and tied him to a tree, The only problem insofar as the
with both arms and legs around the killing by fire is concerned is
tree. They thought they would give whether it would be arson with
him a lesson by whipping him with homicide, or murder.
branches of gumamela until the
victim fell unconscious. The When a person is killed by fire, the
accused left not knowing that the primordial criminal intent of the
victim died. offender is considered. If the
primordial criminal intent of the
The crime committed was murder. offender is to kill and fire was only
The accused deprived the victim of used as a means to do so, the crime
the chance to defend himself when is only murder. If the primordial
the latter was tied to a tree. criminal intent of the offender is to
Treachery is a circumstance destroy property with the use of
referring to the manner of pyrotechnics and incidentally,
committing the crime. There was no somebody within the premises is
risk to the accused arising from the killed, the crime is arson with
defense by the victim. homicide. But this is not a complex
crime under Article 48. This is single
Although what was initially intended indivisible crime penalized under
was physical injury, the manner Article 326, which is death as a
adopted by the accused was consequence of arson. That
treacherous and since the victim somebody died during such fire
died as a consequence thereof, the would not bring about murder
crime is murder -- although because there is no intent to kill in
originally, there was no intent to kill. the mind of the offender. He
intended only to destroy property.
When the victim is already dead, However, a higher penalty will be
intent to kill becomes irrelevant. It is applied.
important only if the victim did not
die to determine if the felony is In People v. Pugay and Samson,
physical injury or attempted or 167 SCRA 439, there was a town
frustrated homicide. fiesta and the two accused were at
the town plaza with their
So long as the means, methods and companions. All were uproariously
form in the execution is deliberately happy, apparently drenched with
adopted, even if there was no intent drink. Then, the group saw the
to kill, there is treachery. victim, a 25 year old retard walking
nearby and they made him dance by
(2) In consideration of price, reward or tickling his sides with a piece of
promises; wood. The victim and the accused
Pugay were friends and, at times,
(3) Inundation, fire, poison, explosion, slept in the same place together.
shipwreck, stranding of a vessel, Having gotten bored with their form
derailment or assault upon a street of entertainment, accused Pugay
car or locomotive, fall of an airship, went and got a can of gasoline and
by means of a motor vehicle, or with poured it all over the retard. Then,
the use of other means involving the accused Samson lit him up,
great waste and ruin; making him a frenzied, shrieking
human torch. The retard died.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
It was held that Pugay was guilty of decrying the corpse of the victim will
homicide through reckless qualify the killing to murder.
imprudence. Samson only guilty of
homicide, with the mitigating Illustration:
circumstance of no intention to
commit so grave a wrong. There Two people engaged in a quarrel
was no animosity between the two and they hacked each other, one
accused and the victim such that it killing the other. Up to that point, the
cannot be said that they resort to fire crime is homicide. However, if the
to kill him. It was merely a part of killer tried to dismember the different
their fun making but because their parts of the body of the victim,
acts were felonious, they are indicative of an intention to scoff at
criminally liable. or decry or humiliate the corpse of
the victim, then what would have
(4) On occasion of any of the calamities murder because this circumstance is
enumerated in the preceding recognized under Article 248, even
paragraph c, or an earthquake, though it was inflicted or was
eruption of volcano, destructive committed when the victim was
cyclone, epidemic or any other already dead.
public calamity;
The following are holdings of the Supreme
(5) Evident premeditation; and Court with respect to the crime of murder:
The essence of kidnapping or serious illegal In physical injuries, there is none. However,
detention is the actual confinement or if as a result of the physical injuries inflicted,
restraint of the victim or deprivation of his the victim died, the crime will be homicide
liberty. If there is no showing that the because the law punishes the result, and
accused intended to deprive their victims of not the intent of the act.
their liberty for some time and there being
no appreciable interval between their being The following are holdings of the Supreme
taken and their being shot, murder and not Court with respect to the crime of homicide:
kidnapping with murder is committed.
(1) Physical injuries are included as one
of the essential elements of
frustrated homicide.
The following are holdings of the Supreme 2. Offender had no intention to kill that
Court with respect to this crime: person.
In other penal codes, if the person who The following are holdings of the Supreme
wanted to die did not die, there is liability on Court with respect to this crime:
his part because there is public disturbance
committed by him. Our Revised Penal (1) If serious physical injuries resulted
Code is silent but there is no bar against from discharge, the crime committed
accusing the person of disturbance of public is the complex crime of serious
order if indeed serious disturbance of public physical injury with illegal discharge
peace occurred due to his attempt to of firearm, or if less serious physical
commit suicide. If he is not prosecuted, this injury, the complex crime of less
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
serious physical injury with illegal If the child is less than three days old when
discharge of firearm will apply. killed, both the mother and the stranger
commits infanticide because infanticide is
(2) Firing a gun at a person even if not predicated on the relation of the
merely to frighten him constitutes offender to the offended party but on the
illegal discharge of firearm. age of the child. In such a case,
concealment of dishonor as a motive for the
mother to have the child killed is mitigating.
Article 255. Infanticide
Concealment of dishonor is not an element
Elements of infanticide. It merely lowers the penalty.
If the child is abandoned without any intent
1. A child was killed by the accused; to kill and death results as a consequence,
the crime committed is not infanticide but
2. The deceased child was less than abandonment under Article 276.
72 hours old.
If the purpose of the mother is to conceal
her dishonor, infanticide through
This is a crime based on the age of the imprudence is not committed because the
victim. The victim should be less than three purpose of concealing the dishonor is
days old. incompatible with the absence of malice in
culpable felonies.
The offender may actually be the parent of
the child. But you call the crime infanticide, If the child is born dead, or if the child is
not parricide, if the age of the victim is less already dead, infanticide is not committed.
than three days old. If the victim is three
days old or above, the crime is parricide.
Article 256. Intentional Abortion
Illustration:
Acts punished
An unmarried woman, A, gave birth to a
child, B. To conceal her dishonor, A 1. Using any violence upon the person
conspired with C to dispose of the child. C of the pregnant woman;
agreed and killed the child B by burying the
child somewhere. 2. Acting, but without using violence,
without the consent of the woman.
If the child was killed when the age of the (By administering drugs or
child was three days old and above already, beverages upon such pregnant
the crime of A is parricide. The fact that the woman without her consent.)
killing was done to conceal her dishonor will
not mitigate the criminal liability anymore 3. Acting (by administering drugs or
because concealment of dishonor in killing beverages), with the consent of the
the child is not mitigating in parricide. pregnant woman.
accused otherwise acts upon such Under the Article 40 of the Civil Code, birth
pregnant woman; determines personality. A person is
considered born at the time when the
3. As a result of the use of violence or umbilical cord is cut. He then acquires a
drugs or beverages upon her, or any personality separate from the mother.
other act of the accused, the fetus
dies, either in the womb or after But even though the umbilical cord has
having been expelled therefrom; been cut, Article 41 of the Civil Code
provides that if the fetus had an intra-
4. The abortion is intended. uterine life of less than seven months, it
must survive at least 24 hours after the
umbilical cord is cut for it to be considered
Abortion is the violent expulsion of a fetus born.
from the maternal womb. If the fetus has
been delivered but it could not subsist by Illustration:
itself, it is still a fetus and not a person.
Thus, if it is killed, the crime committed is A mother delivered an offspring which had
abortion not infanticide. an intra-uterine life of seven months. Before
the umbilical cord is cut, the child was
Distinction between infanticide and abortion killed.
It is infanticide if the victim is already a If it could be shown that had the umbilical
person less that three days old or 72 hours cord been cut, that child, if not killed, would
and is viable or capable of living separately have survived beyond 24 hours, the crime
from the mothers womb. is infanticide because that conceived child
is already considered born.
It is abortion if the victim is not viable but
remains to be a fetus. If it could be shown that the child, if not
killed, would not have survived beyond 24
hours, the crime is abortion because what
Abortion is not a crime against the woman was killed was a fetus only.
but against the fetus. If mother as a
consequence of abortion suffers death or In abortion, the concealment of dishonor as
physical injuries, you have a complex crime a motive of the mother to commit the
of murder or physical injuries and abortion. abortion upon herself is mitigating. It will
also mitigate the liability of the maternal
In intentional abortion, the offender must grandparent of the victim the mother of
know of the pregnancy because the the pregnant woman if the abortion was
particular criminal intention is to cause an done with the consent of the pregnant
abortion. Therefore, the offender must woman.
have known of the pregnancy for otherwise,
he would not try an abortion. If the abortion was done by the mother of
the pregnant woman without the consent of
If the woman turns out not to be pregnant the woman herself, even if it was done to
and someone performs an abortion upon conceal dishonor, that circumstance will not
her, he is liable for an impossible crime if mitigate her criminal liability.
the woman suffers no physical injury. If she
does, the crime will be homicide, serious But if those who performed the abortion are
physical injuries, etc. the parents of the pregnant woman, or
either of them, and the pregnant woman
consented for the purpose of concealing her
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
dishonor, the penalty is the same as that If the pregnant woman was killed by
imposed upon the woman who practiced violence by her husband, the crime
the abortion upon herself . committed is the complex crime of parricide
with unlawful abortion.
Frustrated abortion is committed if the fetus
that is expelled is viable and, therefore, not Unintentional abortion may be committed
dead as abortion did not result despite the through negligence as it is enough that the
employment of adequate and sufficient use of violence be voluntary.
means to make the pregnant woman abort.
If the means are not sufficient or adequate, Illustration:
the crime would be an impossible crime of
abortion. In consummated abortion, the A quarrel ensued between A, husband, and
fetus must be dead. B, wife. A became so angry that he struck
B, who was then pregnant, with a soft drink
One who persuades her sister to abort is a bottle on the hip. Abortion resulted and B
co-principal, and one who looks for a died.
physician to make his sweetheart abort is
an accomplice. The physician will be In US v. Jeffry, 15 Phil. 391, the Supreme
punished under Article 259 of the Revised Court said that knowledge of pregnancy of
Penal Code. the offended party is not necessary. In
People v. Carnaso, decided on April 7,
1964, however, the Supreme Court held
Article 257. Unintentional Abortion that knowledge of pregnancy is required in
unintentional abortion.
1. There is a pregnant woman;
Criticism:
2. Violence is used upon such
pregnant woman without intending Under Article 4, paragraph 1 of the Revised
an abortion; Penal Code, any person committing a
felony is criminally liable for all the direct,
3. The violence is intentionally exerted; natural, and logical consequences of his
felonious acts although it may be different
4. As a result of the violence, the fetus from that which is intended. The act of
dies, either in the womb or after employing violence or physical force upon
having been expelled therefrom. the woman is already a felony. It is not
material if offender knew about the woman
being pregnant or not.
Unintentional abortion requires physical
violence inflicted deliberately and voluntarily If the act of violence is not felonious, that is,
by a third person upon the person of the act of self-defense, and there is no
pregnant woman. Mere intimidation is not knowledge of the womans pregnancy, there
enough unless the degree of intimidation is no liability. If the act of violence is not
already approximates violence. felonious, but there is knowledge of the
womans pregnancy, the offender is liable
If the pregnant woman aborted because of for unintentional abortion.
intimidation, the crime committed is not
unintentional abortion because there is no Illustration:
violence; the crime committed is light
threats. The act of pushing another causing her to
fall is a felonious act and could result in
physical injuries. Correspondingly, if not
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Illustration:
Article 258. Abortion Practiced by the
Woman Herself or by Her Parents A woman who is pregnant got sick. The
doctor administered a medicine which
Elements resulted in Abortion. The crime committed
was unintentional abortion through
1. There is a pregnant woman who has negligence or imprudence.
suffered an abortion;
What is the liability of a physician If these are not the conditions of the fight, it
who aborts the fetus to save the life of the is not a duel in the sense contemplated in
mother? the Revised Penal Code. It will be a quarrel
and anyone who killed the other will be
None. This is a case of therapeutic liable for homicide or murder, as the case
abortion which is done out of a state of may be.
necessity. Therefore, the requisites under
Article 11, paragraph 4, of the Revised The concept of duel under the Revised
Penal Code must be present. There must Penal Code is a classical one.
be no other practical or less harmful means
of saving the life of the mother to make the
killing justified. Article 261. Challenging to a Duel
Acts punished
Article 260. Responsibility of
Participants in a Duel 1. Challenging another to a duel;
The intent to deliberately cut off the 2. When the injured person
particular part of the body that was removed
from the offended party must be a. Loses the use of speech or
established. If there is no intent to deprive the power to hear or to smell,
victim of particular part of body, the crime is or loses an eye, a hand,
only serious physical injury. afoot, an arm, or a leg;
The common mistake is to associate this b. Loses the use of any such
with the reproductive organs only. member; or
Mutilation includes any part of the human
body that is not susceptible to grow again. c. Becomes incapacitated for
the work in which he was
If what was cut off was a reproductive theretofore habitually
organ, the penalty is much higher than that engaged, in consequence of
for homicide. the physical injuries inflicted;
If the act does not give rise to injuries, you If the offended party is incapacitated
will not be able to say whether it is to work for less than 30 days, even
attempted slight physical injuries, attempted though the treatment continued
less serious physical injuries, or attempted beyond 30 days, the physical
serious physical injuries unless the result is injuries are only considered less
there. serious because for purposes of
classifying the physical injuries as
The reason why there is no attempted or serious, you do not consider the
frustrated physical injuries is because the period of medical treatment. You
crime of physical injuries is determined on only consider the period of
the gravity of the injury. As long as the incapacity from work.
injury is not there, there can be no
attempted or frustrated stage thereof. (3) When the injury created a deformity
upon the offended party, you
Classification of physical injuries: disregard the healing duration or the
period of medical treatment
(1) Between slight physical injuries and involved. At once, it is considered
less serious physical injuries, you serious physical injuries.
have a duration of one to nine days
if slight physical injuries; or 10 days So even though the deformity may
to 20 days if less serious physical not have incapacitated the offended
injuries. Consider the duration of party from work, or even though the
healing and treatment. medical treatment did not go beyond
nine days, that deformity will bring
The significant part here is between about the crime of serious physical
slight physical injuries and less injuries.
serious physical injuries. You will
consider not only the healing Deformity requires the concurrence
duration of the injury but also the of the following conditions:
medical attendance required to treat
the injury. So the healing duration
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
(1) The injury must produce serious physical injuries. He is liable only
ugliness; for slight physical injuries because the
victim was not incapacitated, and there was
(2) It must be visible; no evidence that the medical treatment
lasted for more than nine days.
(3) The ugliness will not
disappear through natural Serious physical injuries is punished with
healing process. higher penalties in the following
cases:
Illustration:
(1) If it is committed against any of the
Loss of molar tooth This is not persons referred to in the crime of
deformity as it is not visible. parricide under Article 246;
Loss of milk front tooth This is not Thus, a father who inflicts serious physical
deformity as it is visible but will be injuries upon his son will be liable for
naturally replaced. qualified serious physical injuries.
The offender threw acid on the face Hazing -- This is any initiation rite or
of the offended party. Were it not for timely practice which is a prerequisite for
medical attention, a deformity would have admission into membership in a fraternity or
been produced on the face of the victim. sorority or any organization which places
After the plastic surgery, the offended party the neophyte or applicant in some
was more handsome than before the injury. embarrassing or humiliating situations or
What crime was committed? In what stage otherwise subjecting him to physical or
was it committed? psychological suffering of injury. These do
not include any physical, mental,
The crime is serious physical psychological testing and training procedure
injuries because the problem itself states and practice to determine and enhance the
that the injury would have produced a physical and psychological fitness of the
deformity. The fact that the plastic surgery prospective regular members of the below.
removed the deformity is immaterial
because in law what is considered is not the Organizations include any club or AFP, PNP,
artificial treatment but the natural healing PMA or officer or cadet corps of the CMT or
process. CAT.
In a case decided by the Supreme Court, Section 2 requires a written notice to school
accused was charged with serious physical authorities from the head of the organization
injuries because the injuries produced a seven days prior to the rites and should not
scar. He was convicted under Article 263 exceed three days in duration.
(4). He appealed because, in the course of
the trial, the scar disappeared. It was held Section 3 requires supervision by head of
that accused can not be convicted of the school or the organization of the rites.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
committed produced the less serious form of challenging to a duel. The criminal
physical injuries with the manifest intent to intent is to challenge a person to a duel.
insult or offend the offended party, or under
circumstances adding ignominy to the The crime is slight physical injury if there is
offense. no proof as to the period of the offended
partys incapacity for labor or of the required
medical attendance.
Article 266. Slight Physical Injuries and
Maltreatment
Republic Act No. 7610 (Special
Acts punished Protection of Children against Child
Abuse, Exploitation and Discrimination
1. Physical injuries incapacitated the Act), in relation to murder, mutilation or
offended party for labor from one to injuries to a child
nine days, or required medical
attendance during the same period; The last paragraph of Article VI of Republic
Act No. 7610, provides:
2. Physical injuries which did not
prevent the offended party from For purposes of this Act, the penalty for the
engaging in his habitual work or commission of acts punishable under
which did not require medical Articles 248, 249, 262 (2) and 263 (1) of Act
attendance; No 3815, as amended of the Revised Penal
Code for the crimes of murder, homicide,
3. Ill-treatment of another by deed other intentional mutilation, and serious
without causing any injury. physical injuries, respectively, shall be
reclusion perpetua when the victim is under
This involves even ill-treatment where there twelve years of age.
is no sign of injury requiring medical
treatment. The provisions of Republic Act No. 7160
modified the provisions of the Revised
Slapping the offended party is a form of ill- Penal Code in so far as the victim of the
treatment which is a form of slight physical felonies referred to is under 12 years of age.
injuries. The clear intention is to punish the said
crimes with a higher penalty when the victim
But if the slapping is done to cast dishonor is a child of tender age. Incidentally, the
upon the person slapped, the crime is reference to Article 249 of the Code which
slander by deed. If the slapping was done defines and penalizes the crime of homicide
without the intention of casting dishonor, or were the victim is under 12 years old is an
to humiliate or embarrass the offended error. Killing a child under 12 is murder, not
party out of a quarrel or anger, the crime is homicide, because the victim is under no
still ill-treatment or slight physical injuries. position to defend himself as held in the
case of People v. Ganohon, 196 SCRA
Illustration: 431.
If Hillary slaps Monica and told her You For murder, the penalty provided by the
choose your seconds . Let us meet behind Code, as amended by Republic Act No.
the Quirino Grandstand and see who is the 7659, is reclusion perpetua to death
better and more beautiful between the two higher than what Republic Act no. 7610
of us, the crime is not ill-treatment, slight provides. Accordingly, insofar as the crime
physical injuries or slander by deed; it is a is murder, Article 248 of the Code, as
amended, shall govern even if the victim
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
a. By using force or
Article 266-A. Rape, When and How intimidation; or
Committed
b. When the woman is deprived
Elements under paragraph 1 of reason or otherwise
unconscious; or
1. Offender is a man;
c. By means of fraudulent
2. Offender had carnal knowledge of a machination or grave abuse
woman; of authority; or
a. By using force or
intimidation; Republic Act No. 8353 (An Act
Expanding the Definition of the Crime of
b. When the woman is deprived Rape, Reclassifying the Same as A Crime
of reason or otherwise against Persons, Amending for the
unconscious; Purpose the Revised Penal Code)
repealed Article335 on rape and added a
c. By means of fraudulent chapter on Rape under Title 8.
machination or grave abuse
of authority; or Classification of rape
d. When the woman is under 12 (1) Traditional concept under Article 335
years of age or demented. carnal knowledge with a woman
against her will. The offended party
is always a woman and the offender
Elements under paragraph 2 is always a man.
Rape is committed when a man has carnal (b) Where the rape is attempted
knowledge of a woman under the but a killing was committed
following circumstances: by the offender on the
occasion or by reason of the
(1) Where intimidation or violence is rape.
employed with a view to have carnal
knowledge of a woman; (3) Death / reclusion perpetua --
(1) Where the penis is inserted into the (b) Where the victim was under
anal or oral orifice; or the custody of the police or
military authorities, or other
(2) Where an instrument or object is law enforcement agency;
inserted into the genital or oral
orifice. (c) Where the rape is committed
in full view of the victims
If the crime of rape / sexual assault is husband, the parents, any of
committed with the following circumstances, the children or relatives by
the following penalties are imposed: consanguinity within the 3rd
civil degree;
(1) Reclusion perpetua to death/ prision
mayor to reclusion temporal -- (d) Where the victim is a
religious, that is, a member
(a) Where rape is perpetrated by of a legitimate religious
the accused with a deadly vocation and the offender
weapon; or knows the victim as such
before or at the time of the
(b) Where it is committed by two commission of the offense;
or more persons.
(e) Where the victim is a child
(2) Reclusion perpetua to death/ under 7 yrs of age;
reclusion temporal --
(f) Where the offender is a
(a) Where the victim of the rape member of the AFP, its
has become insane; or paramilitary arm, the PNP, or
any law enforcement agency
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
It has also been held that although the In a case where the accused jumped upon
offended woman who is the victim of the a woman and threw her to the ground,
rape failed to adduce evidence regarding although the accused raised her skirts, the
the damages to her by reason of the rape, accused did not make any effort to remove
the court may take judicial notice that there her underwear. Instead, he removed his
is such damage in crimes against chastity. own underwear and placed himself on top
The standard amount given now is P of the woman and started performing sexual
30,000.00, with or without evidence of any movements. Thereafter, when he was
moral damage. But there are some cases finished, he stood up and left. The crime
where the court awarded only P 20,000.00. committed is only acts of lasciviousness
and not attempted rape. The fact that he
An accused may be convicted of rape on did not remove the underwear of the victim
the sole testimony of the offended woman. indicates that he does not have a real
It does not require that testimony be intention to effect a penetration. It was only
corroborated before a conviction may stand. to satisfy a lewd design.
This is particularly true if the commission of
the rape is such that the narration of the Is there a complex crime under Article 48 of
offended woman would lead to no other kidnapping with rape? Read kidnapping.
conclusion except that the rape was
committed.
TITLE IX. CRIMES AGAINST PERSONAL
Illustration: LIBERTY AND SECURITY
7. Exploitation of child labor (Art. 273); Article 267. Kidnapping and Serious
Illegal Detention (rec221)
8. Services rendered under compulsion
in payment of debts (Art. 274). Elements
When a public officer conspires with a In a decided case, a suitor, who cannot get
private person in the commission of any of a favorable reply from a woman, invited the
the crimes under Title IX, the crime is also woman to ride with him, purportedly to take
one committed under this title and not under home the woman from class. But while the
Title II. woman is in his car, he drove the woman to
a far place and told the woman to marry
Illustration: him. On the way, the offender had
repeatedly touched the private parts of the
If a private person commits the crime of woman. It was held that the act of the
kidnapping or serious illegal detention, even offender of touching the private parts of the
though a public officer conspires therein, woman could not be considered as lewd
the crime cannot be arbitrary detention. As designs because he was willing to marry
far as that public officer is concerned, the the offended party. The Supreme Court
crime is also illegal detention. ruled that when it is a suitor who could
possibly marry the woman, merely kissing
In the actual essence of the crime, when the woman or touching her private parts to
one says kidnapping, this connotes the idea compel her to agree to the marriage, such
of transporting the offended party from one cannot be characterized as lewd design. It
place to another. When you think illegal is considered merely as the passion of a
detention, it connotes the idea that one is lover. But if the man is already married,
restrained of his liberty without necessarily you cannot consider that as legitimate
transporting him from one place to another. but immoral and definitely amounts to
lewd design.
The crime of kidnapping is committed if the
purpose of the offender is to extort ransom If a woman is carried against her will but
either from the victim or from any other without lewd design on the part of the
person. But if a person is transported not offender, the crime is grave coercion.
for ransom, the crime can be illegal
detention. Usually, the offended party is
brought to a place other than his own, to Illustration:
detain him there.
Tom Cruz invited Nicole Chizmacks for a
When one thinks of kidnapping, it is not only snack. They drove along Roxas Boulevard,
that of transporting one person from one along the Coastal Road and to Cavite. The
place to another. One also has to think of woman was already crying and wanted to
the criminal intent. be brought home. Tom imposed the
condition that Nicole should first marry him.
Forcible abduction -- If a woman is Nicole found this as, simply, a mission
transported from one place to another by impossible. The crime committed in this
virtue of restraining her of her liberty, and case is grave coercion. But if after they
that act is coupled with lewd designs. drove to Cavite, the suitor placed the
woman in a house and would not let her out
Serious illegal detention If a woman is until she agrees to marry him, the crime
transported just to restrain her of her liberty. would be serious illegal detention.
There is no lewd design or lewd intent.
If the victim is a woman or a public officer,
Grave coercion If a woman is carried the detention is always serious no matter
away just to break her will, to compel her to how short the period of detention is.
agree to the demand or request by the
offender.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Circumstances which make illegal detention than three days, instead of five days
serious as originally provided;
(1) When the illegal detention lasted for (2) In paragraph 4, if the person
three days, regardless of who the kidnapped or detained was a minor
offended party is; and the offender was anyone of the
parents, the latter has been
(2) When the offended party is a female, expressly excluded from the
even if the detention lasted only for provision. The liability of the parent
minutes; is provided for in the last paragraph
of Article 271;
(3) If the offended party is a minor or a
public officer, no matter how long or (3) A paragraph was added to Article
how short the detention is; 267, which states:
Article 267 has been modified by Republic In the composite crime of kidnapping with
Act No. 7659 in the following respects: homicide, the term homicide is used in the
generic sense and, thus, covers all forms of
(1) Illegal detention becomes serious killing whether in the nature of murder or
when it shall have lasted for more otherwise. It does not matter whether the
purpose of the kidnapping was to kill the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
victim or not, as long as the victim was crimes of serious illegal detention and of
killed, or died as a consequence of the multiple rapes. With the amendment by
kidnapping or detention. There is no more Republic Act No. 7659 making rape a
separate crime of kidnapping and murder if qualifying circumstance in the crime of
the victim was kidnapped not for the kidnapping and serious illegal detention, the
purpose of killing her. jurisprudence is superseded to the effect
that the rape should be a distinct crime.
If the victim was raped, this brings about the Article 48 on complex crimes may not apply
composite crime of kidnapping with rape. when serious illegal detention and rape are
Being a composite crime, not a complex committed by the same offender. The
crime, the same is regarded as a single offender will be charged for the composite
indivisible offense as in fact the law crime of serious illegal detention with rape
punishes such acts with only a single as a single indivisible offense, regardless of
penalty. In a way, the amendment the number of times that the victim was
depreciated the seriousness of the rape raped.
because no matter how many times the
victim was raped, there will only be one Also, when the victim of the kidnapping and
kidnapping with rape. This would not be the serious illegal detention was subjected to
consequence if rape were a separate crime torture and sustained physical injuries, a
from kidnapping because each act of rape composite crime of kidnapping with physical
would be a distinct count. injuries is committed.
Under the first act, the offender is liable only 2. If the life of the minor was in danger
when he can render such assistance because of the abandonment.
without detriment to himself, unless such
omission shall constitute a more serious
offense. Where the person is already Article 277. Abandonment of Minor by
wounded and already in danger of dying, Person Entrusted with His Custody;
there is an obligation to render assistance Indifference of Parents
only if he is found in an uninhabited place.
If the mortally wounded, dying person is Acts punished
found in a place not uninhabited in legal
contemplation, abandonment will not bring 1. Delivering a minor to a public
about this crime. An uninhabited place is institution or other persons without
determined by possibility of person the consent of the one who
receiving assistance from another. Even if entrusted such minor to the care of
there are many houses around, the place the offender or, in the absence of
may still be uninhabited if possibility of that one, without the consent of the
receiving assistance is remote. proper authorities;
Article 278 has no application if minor is 16 fenced estate of another; such close
years old and above. But the exploitation premises or fenced estate is
will be dealt with by Republic Act No. 7610. uninhabited; there is a manifest
prohibition against entering such
If the minor so employed would suffer some closed premises or fenced estate;
injuries as a result of a violation of Article and offender has not secured the
278, Article 279 provides that there would permission of the owner or caretaker
be additional criminal liability for the thereof (Article 281).
resulting felony.
(See also Presidential Decree No. 1227
Illustration: regarding unlawful entry into any military
base in the Philippines.)
The owner of a circus employed a child
under 16 years of age to do a balancing act
on the tightrope. The crime committed is Dwelling This is the place that a person
exploitation of minors (unless the employer inhabits. It includes the dependencies
is the ascendant of the minor who is not which have interior communication with the
below 12 years of age). If the child fell and house. It is not necessary that it be the
suffered physical injuries while working, the permanent dwelling of the person. So, a
employer shall be liable for said physical persons room in a hotel may be considered
injuries in addition to his liability for a dwelling. It also includes a room where
exploitation of minors. one resides as a boarder.
To prove that an entry is against the will of (1) When the purpose of the entrance is
the occupant, it is not necessary that the to prevent serious harm to himself,
entry should be preceded by an express the occupant or third persons;
prohibition, provided that the opposition of
the occupant is clearly established by the (2) When the purpose of the offender in
circumstances under which the entry is entering is to render some service to
made, such as the existence of enmity or humanity or justice;
strained relations between the accused and
the occupant. (3) Anyone who shall enter cafes,
taverns, inns and other public
On violence, Cuello Calon opines that houses while they are open .
violence may be committed not
only against persons but also Pursuant to Section 6, Rule 113 of the
against things. So, breaking the Rules of Court, a person who believes that
door or glass of a window or door a crime has been committed against him
constitutes acts of violence. Our has every right to go after the culprit and
Supreme Court followed this view arrest him without any warrant even if in the
in People v. Tayag. Violence or process he enters the house of another
intimidation must, however, be against the latters will.
anterior or coetaneous with the
entrance and must not be Article 281. Other forms of trespass
posterior. But if the violence is
employed immediately after the Elements
entrance without the consent of
the owner of the house, trespass 1. Offender enters the closed premises
is committed. If there is also or the fenced estate of another;
violence or intimidation, proof of
prohibition to enter is no longer 2. The entrance is made while either of
necessary. them is uninhabited;
(1) Grave threats when the wrong (1) As to intimidation In robbery, the
threatened to be inflicted amounts to intimidation is actual and immediate;
a crime. The case falls under Article in threat, the intimidation is future
282. and conditional.
It is distinguished from grave coercion 2. Paying the wages due his laborer or
under the first paragraph by the absence of employee by means of tokens or
violence. object other than the legal tender
currency of the Philippines, unless
Illustration: expressly requested by such laborer
or employee.
Persons stoning someone elses house. So
long as stoning is not serious and it is Elements:
intended to annoy, it is unjust vexation. It
disturbs the peace of mind. 1. Offender pays the wages due
a laborer or employee
The main purpose of the statute penalizing employed by him by means
coercion and unjust vexation is precisely to of tokens or object;
enforce the principle that no person may
take the law into his hands and that our 1. Those tokens or objects are
government is one of laws, not of men. The other than the legal tender
essence of the crimes is the attack on currency of the Philippines;
individual liberty.
3. Such employee or laborer
does not expressly request
Article 288. Other Similar Coercions that he be paid by means of
tokens or objects.
Acts punished:
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Article 289. Formation, Maintenance, The last paragraph of Article 290 expressly
and Prohibition of Combination of makes the provision of the first and second
Capital or Labor through Violence or paragraph thereof inapplicable to parents,
Threats guardians, or persons entrusted with the
custody of minors placed under their care or
Elements custody, and to the spouses with respect to
the papers or letters of either of them. The
1. Offender employs violence or teachers or other persons entrusted with
threats, in such a degree as to the care and education of minors are
compel or force the laborers or included in the exceptions.
employers in the free and legal
exercise of their industry or work; In a case decided by the Supreme Court, a
spouse who rummaged and found love
2. The purpose is to organize, maintain letters of husband to mistress does not
or prevent coalitions of capital or commit this crime, but the letters are
labor, strike of laborers or lockout of inadmissible in evidence because of
employers. unreasonable search and seizure. The
ruling held that the wife should have applied
for a search warrant.
Article 290. Discovering Secrets through
Seizure of Correspondence Distinction from estafa, damage to property,
and unjust vexation:
Elements
If the act had been executed with intent of
1. Offender is a private individual or gain, it would be estafa;
even a public officer not in the
exercise of his official function; If, on the other hand, the purpose was not
to defraud, but only to cause damage to
2. He seizes the papers or letters of anothers, it would merit the qualification of
another; damage to property;
This is a crime against the security of ones Revelation of secrets discovered not an
papers and effects. The purpose must be element of the crime but only increases the
to discover its effects. The act violates the penalty.
privacy of communication.
16. Other forms of swindling (Art. 316); 2. There is unlawful taking of that
property;
17. Swindling a minor (Art. 317);
3. The taking must be with intent to
18. Other deceits (Art. 318); gain; and
21. Other forms of arson (Art. 321); Article 294. Robbery with Violence
against or Intimidation of Persons
22. Arson of property of small value (Art.
323); Acts punished
unnecessary for the commission of on the occasion of the robbery, dont think
the crime; that those who sustained physical injuries
may separately prosecute the offender for
6. When in the course of its execution, physical injuries. Those physical injuries
the offender shall have inflicted upon are only considered aggravating
any person not responsible for the circumstances in the crime of robbery with
commission of the robbery any of homicide.
the physical injuries in consequence
of which the person injured becomes This is not a complex crime as understood
deformed or loses any other under Article 48, but a single indivisible
member of his body or loses the sue crime. This is a special complex crime
thereof or becomes ill or because the specific penalty is provided in
incapacitated for the performance of the law.
the work in which he is habitually
engaged for more than 90 days or In Napolis v. CA, it was held that when
the person injured becomes ill or violence or intimidation and force upon
incapacitated for labor for more than things are both present in the robbery, the
30 days; crime is complex under Article 48.
The robbers enter the house. In entering In People v. Quiones, 183 SCRA 747, it
through the window, one of the robbers was held that there is no crime of
stepped on a child less than three days old. robbery with multiple homicides.
The crime is not robbery with infanticide The charge should be for robbery
because there is no such crime. The word with homicide only because the
homicide as used in defining robbery with number of persons killed is
homicide is used in the generic sense. It immaterial and does not increase
refers to any kind of death. the penalty prescribed in Article 294.
All the killings are merged in the
Although it is a crime against property and composite integrated whole that is
treachery is an aggravating circumstance robbery with homicide so long as the
that applies only to crimes against persons, killings were by reason or on
if the killing in a robbery is committed with occasion of the robbery.
treachery, the treachery will be considered
a generic aggravating circumstance In another case, a band of robbers entered
because of the homicide. a compound, which is actually a sugar mill.
Within the compound, there were quarters
When two or more persons are killed during of the laborers. They robbed each of the
the robbery, such should be appreciated as quarters. The Supreme Court held that
an aggravating circumstance. there was only one count of robbery
because when they decided and
As long as there is only one robbery, determined to rob the compound, they were
regardless of the persons killed, you only only impelled by one criminal intent to rob.
have one crime of robbery with homicide.
Note, however, that one robbery does not With more reason, therefore, if in a robbery,
mean there is only one taking. the offender took away property belonging
to different owners, as long as the taking
Illustration: was done at one time, and in one place,
impelled by the same criminal intent to gain,
Robbers decided to commit robbery in a there would only be one count of robbery.
house, which turned out to be a boarding
house. Thus, there were different boarders In robbery with homicide as a single
who were offended parties in the robbery. indivisible offense, it is immaterial who gets
There is only one count of robbery. If there killed. Even though the killing may have
were killings done to different boarders resulted from negligence, you will still
during the robbery being committed in a designate the crime as robbery with
boarders quarter, do not consider that as homicide.
separate counts of robbery with homicide
because when robbers decide to commit Illustration:
robbery in a certain house, they are only
impelled by one criminal intent to rob and On the occasion of a robbery, one of the
there will only be one case of robbery. If offenders placed his firearm on the table.
there were homicide or death committed, While they were ransacking the place, one
that would only be part of a single robbery. of the robbers bumped the table. As a
That there were several killings done would result, the firearm fell on the floor and
only aggravate the commission of the crime discharged. One of the robbers was the
of robbery with homicide. one killed. Even though the placing of the
firearm on the table where there is no safety
precaution taken may be considered as one
of negligence or imprudence, you do not
separate the homicide as one of the product
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
of criminal negligence. It will still be robbery In People v. Domingo, 184 SCRA 409, on
with homicide, whether the person killed is the occasion of the robbery, the
connected with the robbery or not. He need storeowner, a septuagenarian,
not also be in the place of the robbery. suffered a stroke due to the extreme
fear which directly caused his death
In one case, in the course of the struggle in when the robbers pointed their guns
a house where the robbery was being at him. It was held that the crime
committed, the owner of the place tried to committed was robbery with
wrest the arm of the robber. A person homicide. It is immaterial that death
several meters away was the one who got supervened as a mere accident as
killed. The crime was held to be robbery long as the homicide was produced
with homicide. by reason or on the occasion of the
robbery, because it is only the result
Note that the person killed need not be one which matters, without reference to
who is identified with the owner of the place the circumstances or causes or
where the robbery is committed or one who persons intervening in the
is a stranger to the robbers. It is enough commission of the crime which must
that the homicide was committed by reason be considered.
of the robbery or on the occasion thereof.
Remember also that intent to rob must be
Illustration: proved. But there must be an allegation as
to the robbery not only as to the intention to
There are two robbers who broke into a rob.
house and carried away some valuables.
After they left such house these two robbers If the motive is to kill and the taking is
decided to cut or divide the loot already so committed thereafter, the crimes committed
that they can go of them. So while they are are homicide and theft. If the primordial
dividing the loot the other robber noticed intent of the offender is to kill and not to rob
that the one doing the division is trying to but after the killing of the victims a robbery
cheat him and so he immediately boxed was committed, then there are will be two
him. Now this robber who was boxed then separate crimes.
pulled out his gun and fired at the other one
killing the latter. Would that bring about the Illustration:
crime of robbery with homicide? Yes. Even
if the robbery was already consummated, If a person had an enemy and killed him
the killing was still by reason of the robbery and after killing him, saw that he had a
because they quarreled in dividing the loot beautiful ring and took this, the crime would
that is the subject of the robbery. be not robbery with homicide because the
primary criminal intent is to kill. So, there
will be two crimes: one for the killing and
one for the taking of the property after the
victim was killed. Now this would bring
about the crime of theft and it could not be
robbery anymore because the person is
already dead.
homicide are separate offenses when the consummated. If during the robbery,
homicide is not committed on the occasion attempted rape were committed, the crimes
or by reason of the robbery. would be separate, that is, one for robbery
and one for the attempted rape.
Where the victims were killed, not for the
purpose of committing robbery, and The rape committed on the occasion of the
the idea of taking the money and robbery is not considered a private crime
other personal property of the because the crime is robbery, which is a
victims was conceived by the crime against property. So, even though
culprits only after the killing, it was the robber may have married the woman
held in People v. Domingo, 184 raped, the crime remains robbery with rape.
SCRA 409, that the culprits The rape is not erased. This is because the
committed two separate crimes of crime is against property which is a single
homicide or murder (qualified by indivisible offense.
abuse of superior strength) and
theft. If the woman, who was raped on the
occasion of the robbery, pardoned the rapist
The victims were killed first then their who is one of the robbers, that would not
money was taken the money from erase the crime of rape. The offender
their dead bodies. This is robbery would still be prosecuted for the crime of
with homicide. It is important here robbery with rape, as long as the rape is
that the intent to commit robbery consummated.
must precede the taking of human
life in robbery with homicide. The If the rape is attempted, since it will be a
offender must have the intent to take separate charge and the offended woman
personal property before the killing. pardoned the offender, that would bring
about a bar to the prosecution of the
It must be conclusively shown that the attempted rape. If the offender married the
homicide was committed for the offended woman, that would extinguish the
purpose of robbing the victim. In criminal liability because the rape is the
People v. Hernandez, appellants subject of a separate prosecution.
had not thought of robbery prior to
the killing. The thought of taking the The intention must be to commit robbery
victims wristwatch was conceived and even if the rape is committed before the
only after the killing and throwing of robbery, robbery with rape is committed.
the victim in the canal. Appellants But if the accused tried to rape the offended
were convicted of two separate party and because of resistance, he failed
crimes of homicide and theft as to consummate the act, and then he
there is absent direct relation and snatched the vanity case from her hands
intimate connection between the when she ran away, two crimes are
robbery and the killing. committed: attempted rape and theft.
rape. Robbery must not be a mere accident the owner of the house chased them and
or afterthought. the robbers fought back. If only less
serious physical injuries were inflicted, there
In People v. Flores, 195 SCRA 295, will be separate crimes: one for robbery
although the offenders plan was to get the and one for less serious physical injuries.
victims money, rape her and kill her, but in
the actual execution of the crime, the But if after the robbery was committed and
thoughts of depriving the victim of her the robbers were already fleeing from the
valuables was relegated to the background house where the robbery was committed,
and the offenders prurient desires the owner or members of the family of the
surfaced. They persisted in satisfying their owner chased them, and they fought back
lust. They would have forgotten about their and somebody was killed, the crime would
intent to rob if not for the accidental still be robbery with homicide. But if serious
touching of the victims ring and wristwatch. physical injuries were inflicted and the
The taking of the victims valuables turned serious physical injuries rendered the victim
out to be an afterthought. It was held that impotent or insane or the victim lost the use
two distinct crimes were committed: rape of any of his senses or lost a part of his
with homicide and theft. body, the crime would still be robbery with
serious physical injuries. The physical
In People v. Dinola, 183 SCRA 493, it was injuries (serious) should not be separated
held that if the original criminal design of the regardless of whether they retorted in the
accused was to commit rape and after course of the commission of the robbery or
committing the rape, the accused even after the robbery was consummated.
committed robbery because the opportunity
presented itself, two distinct crimes rape In Article 299, it is only when the physical
and robbery were committed not robbery injuries resulted in the deformity or
with rape. In the latter, the criminal intent to incapacitated the offended party from labor
gain must precede the intent to rape. for more than 30 days that the law requires
such physical injuries to have been inflicted
in the course of the execution of the
On robbery with physical injuries robbery, and only upon persons who are not
responsible in the commission of the
To be considered as such, the physical robbery.
injuries must always be serious. If the
physical injuries are only less serious or But if the physical injuries inflicted are those
slight, they are absorbed in the robbery. falling under subdivision 1 and 2 of Article
The crime becomes merely robbery. But if 263, even though the physical injuries were
the less serious physical injuries were inflicted upon one of the robbers
committed after the robbery was already themselves, and even though it had been
consummated, there would be a separate inflicted after the robbery was already
charge for the less serious physical injuries. consummated, the crime will still be robbery
It will only be absorbed in the robbery if it with serious physical injuries. There will
was inflicted in the course of the execution only be one count of accusation.
of the robbery. The same is true in the case
of slight physical injuries. Illustration:
If the robbers quarreled over the loot and Robbery with homicide, robbery with
one of the robbers hacked the other robber intentional mutilation and robbery with rape
causing a deformity in his face, the crime are not qualified by band or uninhabited
will only be robbery and a separate charge place. These aggravating circumstances
for the serious physical injuries because only qualify robbery with physical injuries
when it is a deformity that is caused, the under subdivision 2, 3, and 4 of Article 299.
law requires that the deformity must have
been inflicted upon one who is not a When it is robbery with homicide, the band
participant in the robbery. Moreover, the or uninhabited place is only a generic
physical injuries which gave rise to the aggravating circumstance. It will not qualify
deformity or which incapacitated the the crime to a higher degree of penalty.
offended party from labor for more than 30
days, must have been inflicted in the course In People v. Salvilla, it was held that if in a
of the execution of the robbery or while the robbery with serious physical injuries, the
robbery was taking place. offenders herded the women and children
into an office and detained them to compel
If it was inflicted when the thieves/robbers the offended party to come out with the
are already dividing the spoils, it cannot be money, the crime of serious illegal detention
considered as inflicted in the course of was a necessary means to facilitate the
execution of the robbery and hence, it will robbery; thus, the complex crimes of
not give rise to the crime of robbery with robbery with serious physical injuries and
serious physical injuries. You only have serious illegal detention.
one count of robbery and another count for
the serious physical injuries inflicted. But if the victims were detained because of
the timely arrival of the police, such
If, during or on the occasion or by reason of that the offenders had no choice but
the robbery, a killing, rape or serious to detain the victims as hostages in
physical injuries took place, there will only exchange for their safe passage, the
be one crime of robbery with homicide detention is absorbed by the crime
because all of these killing, rape, serious of robbery and is not a separate
physical injuries -- are contemplated by law crime. This was the ruling in People
as the violence or intimidation which v. Astor.
characterizes the taking as on of robbery.
You charge the offenders of robbery with
homicide. The rape or physical injuries will On robbery with arson
only be appreciated as aggravating
circumstance and is not the subject of a Another innovation of Republic Act No.
separate prosecution. They will only call for 7659 is the composite crime of robbery with
the imposition of the penalty in the arson if arson is committed by reason of or
maximum period. on occasion of the robbery. The composite
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
c. By using false keys, Two predicates that will give rise to the
picklocks or similar tools; or crime as robbery:
3. Once inside the building, offender 2. The entering will not give rise to
took personal property belonging to robbery even if something is taken
another with intent to gain. inside. It is the breaking of the
receptacle or closet or cabinet
where the personal property is kept
Elements under subdivision (b): that will give rise to robbery, or the
taking of a sealed, locked receptacle
1. Offender is inside a dwelling house, to be broken outside the premises.
public building, or edifice devoted to
religious worship, regardless of the If by the mere entering, that would already
circumstances under which he qualify the taking of any personal property
entered it; inside as robbery, it is immaterial whether
the offender stays inside the premises. The
2. Offender takes personal property breaking of things inside the premises will
belonging to another, with intent to only be important to consider if the entering
gain, under any of the following by itself will not characterize the crime as
circumstances: robbery with force upon things.
If the entering does not characterize the (3) a place devoted to religious worship.
taking inside as one of robbery with force
upon things, it is the conduct inside that The law also considers robbery committed
would give rise to the robbery if there would not in an inhabited house or in a private
be a breaking of sealed, locked or closed building.
receptacles or cabinet in order to get the
personal belongings from within such Note that the manner of committing the
receptacles, cabinet or place where it is robbery with force upon things is not the
kept. same.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
When the robbery is committed in a house A found B inside his (As) house. He asked
which is inhabited, or in a public building or B what the latter was doping there. B
in a place devoted to religious worship, the claimed he is an inspector from the local
use of fictitious name or pretension to city government to look after the electrical
possess authority in order to gain entrance installations. At the time B was chanced
will characterize the taking inside as upon by A, he has already entered. So
robbery with force upon things. anything he took inside without breaking of
any sealed or closed receptacle will not give
rise to robbery because the simulation of
public authority was made not in order to
Question & Answer
enter but when he has already entered.
dwelling house, not a public building, 2. Such picklock or similar tools are
or not an edifice devoted to religious especially adopted to the
worship; commission of robbery;
2. Any of the following circumstances 3. Offender does not have lawful cause
was present: for such possession.
c. The entrance was effected 3. Any key other than those intended
through the use of false keys, by the owner for use in the lock
picklocks or other similar forcibly opened by the offender.
tools;
Under Article 303, if the robbery under 2. They formed a band of robbers;
Article 299 and 302 consists in the taking of
cereals, fruits, or firewood, the penalty 2. The purpose is any of the following:
imposable is lower.
a. To commit robbery in the
highway;
Article 304. Possession of Picklock or
Similar Tools b. To kidnap persons for the
purpose of extortion or to
Elements obtain ransom; or
committed on a highway. The purpose of hunt or fish upon the same or gather
brigandage is indiscriminate robbery in fruits, cereals or other forest or farm
highways. If the purpose is only a particular products.
robbery, the crime is only robbery or
robbery in band, if there are at least four
armed participants. Elements
5. The property stolen is fish taken Use the degree of intimidation to determine
from a fishpond or fishery; or the degree of the penalty to be applied for
the usurpation.
6. If property is taken on the occasion
of fire, earthquake, typhoon, volcanic Usurpation under Article 312 is committed
eruption, or any other calamity, in the same way as robbery with
vehicular accident, or civil violence or intimidation of persons.
disturbance. The main difference is that in
robbery, personal property is
involved; while in usurpation of real
Article 311. Theft of the Property of the rights, it is real property. (People v.
National Library or National Museum Judge Alfeche, July 23, 1992)
If the property stolen is any property of the Usurpation of real rights and property
National Library or of the National Museum should not be complexed using Article 48
when violence or intimidation is committed.
Article 312. Occupation of Real Property There is only a single crime, but a two-
or Usurpation of Real Rights in Property tiered penalty is prescribed to be
determined on whether the acts of violence
Acts punished: used is akin to that in robbery in Article 294,
grave threats or grave coercion and an
1. Taking possession of any real incremental penalty of fine based on the
property belonging to another by value of the gain obtained by the offender.
means of violence against or
intimidation of persons; Therefore, it is not correct to state that the
threat employed in usurping real property is
2. Usurping any real rights in property absorbed in the crime; otherwise, the
belonging to another by means of additional penalty would be meaningless.
violence against or intimidation of
persons. The complainant must be the person upon
whom violence was employed. If a tenant
was occupying the property and he was
Elements threatened by the offender, but it was the
owner who was not in possession of the
property who was named as the offended
party, the same may be quashed as it does
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Pretending to have bribed any government issued and delivered. Exception: when the
employee, without prejudice to the action for check is issued not in payment of an
calumny which the offended party may obligation.
deem proper to bring against the offender.
It must not be promissory notes, or
guaranties.
Under paragraph (d)
Good faith is a defense.
1. Offender postdated a check, or
issued a check in payment of an If the checks were issued by the defendant
obligation; and he received money for them, then
stopped payment and did not return the
2. Such postdating or issuing a check money, and he had an intention to stop
was done when the offender had no payment when he issued the check, there is
funds in the bank, or his funds estafa.
deposited therein were not sufficient
to cover the amount of the check. Deceit is presumed if the drawer fails to
deposit the amount necessary to cover the
check within three days from receipt of
Note that this only applies if notice of dishonor or insufficiency of funds
in the bank.
(1) The obligation is not pre-existing;
(3) It does not cover checks where the 3. The person who makes or
purpose of drawing the check is to draws and issued the check
guarantee a loan as this is not an knows at the time of issue
obligation contemplated in this that he does not have
paragraph sufficient funds in or credit
with the drawee bank for the
The check must be genuine. If the check is payment of such check in full
falsified and is cashed with the bank or upon its presentment;
exchanged for cash, the crime is estafa thru
falsification of a commercial document. 3. The check is subsequently
dishonored by the drawee
The general rule is that the accused must bank for insufficiency of
be able to obtain something from the funds or credit, or would
offended party by means of the check he have been dishonored for the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
same reason had not the (4) In estafa under Article 315 (2) (d),
drawer, without any valid knowledge by the drawer of
reason, ordered the bank to insufficient funds is not required,
stop payment. while in Batas Pambansa Blg. 22,
knowledge by the drawer of
insufficient funds is reqired.
B. 1. A person has sufficient funds
in or credit with the drawee
bank when he makes or When is there prima facie evidence of
draws and issues a check; knowledge of insufficient funds?
Distinction between estafa under Article 315 2. When the maker or drawer --
(2) (d) of the Revised Penal Code and
violation of Batas Pambansa Blg. 22: a. Pays the holder of the check
the amount due within five
(1) Under both Article 315 (2) (d) and banking days after receiving
Batas Pambansa Blg. 22, there is notice that such check has
criminal liability if the check is drawn not been paid by the drawee;
for non-pre-existing obligation.
b. Makes arrangements for
If the check is drawn for a pre- payment in full by the drawee
existing obligation, there is criminal of such check within five
liability only under Batas Pambansa banking days after notice of
Blg. 22. non-payment
(2) Estafa under Article 315 (2) (d) is a The drawee must cause to be written or
crime against property while Batas stamped in plain language the reason for
Pambansa Blg. 22 is a crime against the dishonor.
public interest. The gravamen for
the former is the deceit employed, If the drawee bank received an order of
while in the latter, it is the issuance stop-payment from the drawer with no
of the check. Hence, there is no reason, it must be stated that the funds are
double jeopardy. insufficient to be prosecuted here.
(3) In the estafa under Article 315 (2) The unpaid or dishonored check with the
(d), deceit and damage are material, stamped information re: refusal to pay is
while in Batas Pambansa Blg. 22, prima facie evidence of (1) the making or
they are immaterial. issuance of the check; (2) the due
presentment to the drawee for payment &
the dishonor thereof; and (3) the fact that
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
In Allied Bank Corporation v. Secretary drawer had been notified of the dishonor
Ordonez, 192 SCRA 246, it was and inspite of such notice fails to pay the
held that under Section 13 of holder of the check the full amount due
Presidential Decree No. 115, the thereon within five days from notice.
failure of an entrustee to turn over
the proceeds of sale of the goods Under Batas Pambansa Blg. 22, a drawer
covered by the Trust Receipt, or to must be given notice of dishonor and given
return said goods if they are not five banking days from notice within which
sold, is punishable as estafa Article to deposit or pay the amount stated in the
315 (1) (b). check to negate the presumtion that drawer
knew of the insufficiency. After this period,
it is conclusive that drawer knew of the
On issuance of a bouncing check insufficiency, thus there is no more defense
to the prosecution under Batas Pambansa
The issuance of check with insufficient Blg. 22.
funds may be held liable for estafa and
Batas Pambansa Blg. 22. Batas Pambansa The mere issuance of any kind of check
Blg. 22 expressly provides that prosecution regardless of the intent of the parties,
under said law is without prejudice to any whether the check is intended to serve
liability for violation of any provision in the merely as a guarantee or as a deposit,
Revised Penal Code. Double Jeopardy makes the drawer liable under Batas
may not be invoked because a violation of Pambansa Blg. 22 if the check bounces. As
Batas Pambansa Blg. 22 is a malum a matter of public policy, the issuance of a
prohibitum and is being punished as a worthless check is a public nuisance and
crime against the public interest for must be abated.
undermining the banking system of the
country, while under the RevisedPenal In De Villa v. CA, decided April 18, 1991,
Code, the crime is malum in se which it was held that under Batas Pambansa Blg.
requires criminal intent and damage to the 22, there is no distinction as to the kind of
payee and is a crime against property. check issued. As long as it is delivered
within Philippine territory, the Philippine
In estafa, the check must have been issued courts have jurisdiction. Even if the check
as a reciprocal consideration for parting of is only presented to and dishonored in a
goods (kaliwaan). There must be Philippine bank, Batas Pambansa Blg. 22
concomitance. The deceit must be prior to applies. This is true in the case of dollar or
or simultaneous with damage done, that is, foreign currency checks. Where the law
seller relied on check to part with goods. If makes no distinction, none should be made.
it is issued after parting with goods as in
credit accommodation only, there is no In People v. Nitafan, it was held that as
estafa. If the check is issued for a pre- long as instrument is a check under the
existing obligation, there is no estafa as negotiable instrument law, it is covered by
damage had already been done. The Batas Pambansa Blg. 22. A memorandum
drawer is liable under Batas Pambansa Blg. check is not a promissory note, it is a check
22. which have the word memo, mem,
memorandum written across the face of
For criminal liability to attach under Batas the check which signifies that if the holder
Pambansa Blg. 22, it is enough that the upon maturity of the check presents the
check was issued to "apply on account or same to the drawer, it will be paid
for value" and upon its presentment it was absolutely. But there is no prohibition
dishonored by the drawee bank for against drawer from depositing
insufficiency of funds, provided that the memorandum check in a bank. Whatever
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
be the agreement of the parties in respect 2. Offender who is not the owner
of the issuance of a check is represents himself as the owner
inconsequential to a violation to Batas thereof;
Pambansa Blg. 22 where the check
bounces. 3. Offender executes an act of
ownership such as selling, leasing,
But overdraft or credit arrangement may be encumbering or mortgaging the real
allowed by banks as to their preferred property;
clients and Batas Pambansa Blg. 22 does
not apply. If check bounces, it is because 4. The act is made to the prejudice to
bank has been remiss in honoring the owner or a third person.
agreement.
The check must be presented for payment Under paragraph 2 by disposing of real
within a 90-day period. If presented for property as free from encumbrance,
payment beyond the 90 day period and the although such encumbrance be not
drawers funds are insufficient to cover it, recorded
there is no Batas Pambansa Blg. 22
violation. Elements
Where check was issued prior to August 8, 1. The thing disposed is a real
1984, when Circular No. 12 of the property:
Department of the Justice took
effect, and the drawer relied on the 2. Offender knew that the real property
then prevailing Circular No. 4 of the was encumbered, whether the
Ministry of Justice to the effect that encumbrance is recorded or not;
checks issued as part of an
arrangement/agreement of the 3. There must be express
parties to guarantee or secure representation by offender that the
fulfillment of an obligation are not real property is free from
covered by Batas Pambansa Blg. encumbrance;
22, no criminal liability should be
incurred by the drawer. Circular 4. The act of disposing of the real
should not be given retroactive property is made to the damage of
effect. (Lazaro v. CA, November another.
11, 1993, citing People v. Alberto,
October 28, 1993)
Under paragraph 3 by wrongfully taking by
the owner of his personal property from its
Article 316. Other Forms of Swindling lawful possessor
Acts punished
Elements:
Arson
1. Personal property is
mortgaged under the Chattel Kinds of arson
Mortgage Law;
1. Arson, under Section 1 of
2. Offender knows that such Presidential Decree No. 1613;
property is so mortgaged;
2. Destructive arson, under Article 320
3. Offender removes such of the Revised Penal Code, as
mortgaged personal property amended by Republic Act No. 7659;
to any province or city other
than the one in which it was 3. Other cases of arson, under Section
located at the time of the 3 of Presidential Decree No. 1613.
execution of the mortgage;
4. The removal is permanent; Article 327. Who Are Liable for Malicious
Mischief
5. There is no written consent
of the mortgagee or his Elements
executors, administrators or
assigns to such removal. 1. Offender deliberately caused
damage to the property of another;
2. Selling or pledging personal property
already pledged, or any part thereof, 2. Such act does not constitute arson
under the terms of the Chattel or other crimes involving destruction;
Mortgage Law, without the consent
of the mortgagee written on the back 3. The act of damaging anothers
of the mortgage and noted on the property was committed merely for
record thereof in the office of the the sake of damaging it;
register of deeds of the province
where such property is located.
There is destruction of the property of
Elements: another but there is no misappropriation.
Otherwise, it would be theft if he gathers the
1. Personal property is already effects of destruction.
pledged under the terms of
the Chattel Mortgage Law;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Article 328. Special Case of Malicious Persons exempted from criminal liability
Mischief
1. Spouse, ascendants and
Acts punished descendants, or relatives by affinity
in the same line;
1. Causing damage to obstruct the
performance of public functions; 2. Widowed spouse with respect to the
property which belonged to the
2. Using any poisonous or corrosive deceased spouse before the same
substance; passed into the possession of
another
3. Spreading any infection or contagion
among cattle; 3. Brothers and sisters and brothers-in-
law and sisters-in-law, if living
4. Causing damage to the property of together.
the National Museum or National
Library, or to any archive or registry,
waterworks, road, promenade, or Only the relatives enumerated incur no
any other thing used is common by liability if the crime relates to theft (not
the pubic. robbery), swindling, and malicious mischief.
Third parties who participate are not
exempt. The relationship between the
Article 329. Other Mischiefs spouses is not limited to legally married
couples; the provision applies to live-in
All other mischiefs not included in the next partners.
preceding article
Estafa should not be complexed with any
other crime in order for exemption to
Article 330. Damage and Obstruction to operate.
Means of Communication
This is committed by damaging any railway, TITLE XI. CRIMES AGAINST CHASTITY
telegraph or telephone lines.
Crimes against chastity
Note that there are two kinds of acts of Always remember that there can be no
lasciviousness under the Revised Penal frustration of acts of lasciviousness, rape or
Code: (1) under Article 336, and (2) under adultery because no matter how far the
Article 339. offender may have gone towards the
realization of his purpose, if his participation
1. Article 336. Acts of Lasciviousness amounts to performing all the acts of
execution, the felony is necessarily
Under this article, the offended party produced as a consequence thereof.
may be a man or a woman. The
crime committed, when the act Intent to rape is not a necessary element of
performed with lewd design was the crime of acts of lasciviousness.
perpetrated under circumstances Otherwise, there would be no crime of
which would have brought about the attempted rape.
crime of rape if sexual intercourse
was effected, is acts of
lasciviousness under this article. Article 337. Qualified Seduction
This means that the offended party
is either Acts punished
This crime also involves sexual intercourse. Article 338. Simple Seduction
The offended woman must be over 12 but
below 18 years. Elements
The distinction between qualified seduction 1. Offender party is over 12 and under
and simple seduction lies in the fact, among 18 years of age;
others, that the woman is a virgin in
qualified seduction, while in simple 2. She is of good reputation, single or
seduction, it is not necessary that the widow;
woman be a virgin. It is enough that she is
of good repute.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
This crime is committed if the offended It is not required that the offender be the
woman is single or a widow of good guardian or custodian of the minor.
reputation, over 12 and under 18 years of
age, the offender has carnal knowledge of It is not necessary that the minor be
her, and the offender resorted to deceit to prostituted or corrupted as the law merely
be able to consummate the sexual punishes the act of promoting or facilitating
intercourse with her. the prostitution or corruption of said minor
and that he acted in order to satisfy the lust
The offended woman must be under 18 but of another.
not less than 12 years old; otherwise, the
crime is statutory rape.
Article 341. White Slave Trade
Unlike in qualified seduction, virginity is not
essential in this crime. What is required is Acts punished
that the woman be unmarried and of good
reputation. Simple seduction is not 1. Engaging in the business of
synonymous with loss of virginity. If the prostitution;
woman is married, the crime will be
adultery. 2. Profiting by prostitution;
The failure to comply with the promise of 3. Enlisting the services of women for
marriage constitutes the deceit mentioned the purpose of prostitution.
in the law.
to a certain place in order to break her will In order to demonstrate the presence of the
and make her agree to marry the offender, lewd design, illicit criminal relations with the
the crime is only grave coercion because person abducted need not be shown. The
the criminal intent of the offender is to force intent to seduce a girl is sufficient.
his will upon the woman and not really to
restrain the woman of her liberty. If there is a separation in fact, the taking by
the husband of his wife against her will
If the offended woman is under 12 years constitutes grave coercion.
old, even if she consented to the abduction,
the crime is forcible abduction and not Distinction between forcible abduction and
consented abduction. illegal detention:
Where the offended woman is below the When a woman is kidnapped with lewd or
age of consent, even though she had gone unchaste designs, the crime committed is
with the offender through some deceitful forcible abduction.
promises revealed upon her to go with him
and they live together as husband and wife When the kidnapping is without lewd
without the benefit of marriage, the ruling is designs, the crime committed is illegal
that forcible abduction is committed by the detention.
mere carrying of the woman as long as that
intent is already shown. In other words, But where the offended party was forcibly
where the man cannot possibly give the taken to the house of the defendant to
woman the benefit of an honorable life, all coerce her to marry him, it was held that
that man promised are just machinations of only grave coercion was committed and not
a lewd design and, therefore, the carrying illegal detention.
of the woman is characterized with lewd
design and would bring about the crime of
abduction and not kidnapping. This is also Article 343. Consented Abduction
true if the woman is deprived of reason and
if the woman is mentally retardate. Forcible Elements
abduction is committed and not consented
abduction. 1. Offended party is a virgin;
Lewd designs may be demonstrated by the 2. She is over 12 and under 18 years
lascivious acts performed by the offender of age;
on her. Since this crime does not involve
sexual intercourse, if the victim is subjected 3. Offender takes her away with her
to this, then a crime of rape is further consent, after solicitation or cajolery;
committed and a complex crime of forcible
abduction with rape is committed. 4. The taking away is with lewd
designs.
The taking away of the woman may be
accomplished by means of deceit at the
beginning and then by means of violence Where several persons participated in the
and intimidation later. forcible abduction and these persons also
raped the offended woman, the original
The virginity of the complaining witness is ruling in the case of People v. Jose is that
not a determining factor in forcible there would be one count of forcible
abduction. abduction with rape and then each of them
will answer for his own rape and the rape of
the others minus the first rape which was
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
complexed with the forcible abduction. This whether he or she wanted the crime
ruling is no longer the prevailing rule. The committed on him or her to be made public
view adopted in cases of similar nature is to is his or hers alone, because the indignity or
the effect that where more than one person dishonor brought about by these crimes
has effected the forcible abduction with affects more the offended party than social
rape, all the rapes are just the order. The offended party may prefer to
consummation of the lewd design which suffer the outrage in silence rather than to
characterizes the forcible abduction and, vindicate his honor in public.
therefore, there should only be one forcible
abduction with rape. In the crimes of rape, abduction and
seduction, if the offended woman had given
In the crimes involving rape, abduction, birth to the child, among the liabilities of the
seduction, and acts of lasciviousness, the offender is to support the child. This
marriage by the offender with the offended obligation to support the child may be true
woman generally extinguishes criminal even if there are several offenders. As to
liability, not only of the principal but also of whether all of them will acknowledge the
the accomplice and accessory. However, child, that is a different question because
the mere fact of marriage is not enough the obligation to support here is not founded
because it is already decided that if the on civil law but is the result of a criminal act
offender marries the offended woman or a form of punishment.
without any intention to perform the duties
of a husband as shown by the fact that after It has been held that where the woman was
the marriage, he already left her, the the victim of the said crime could not
marriage would appear as having been possibly conceive anymore, the trial court
contracted only to avoid the punishment. should not provide in its sentence that the
Even with that marriage, the offended accused, in case a child is born, should
woman could still prosecute the offender support the child. This should only be
and that marriage will not have the effect of proper when there is a probability that the
extinguishing the criminal liability. offended woman could give birth to an
offspring.
Pardon by the offended woman of the
offender is not a manner of extinguishing
criminal liability but only a bar to the TITLE XII. CRIMES AGAINST THE CIVIL
prosecution of the offender. Therefore, that STATUS OF PERSONS
pardon must come before the prosecution is
commenced. While the prosecution is Crimes against the civil status of persons
already commenced or initiated, pardon by
the offended woman will no longer be 1. Simulation of births, substitution of
effective because pardon may preclude one child for another and
prosecution but not prevent the same. concealment or abandonment of a
legitimate child (art. 347);
All these private crimes except rape
cannot be prosecuted de officio. If any 2. Usurpation of civil status (Art. 348);
slander or written defamation is made out of
any of these crimes, the complaint of the 3. Bigamy (Art. 349);
offended party is till necessary before such
case for libel or oral defamation may 4. Marriage contracted against
proceed. It will not prosper because the provisions of law (Art. 350);
court cannot acquire jurisdiction over these
crimes unless there is a complaint from the 5. Premature marriages (Art. 351);
offended party. The paramount decision of
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Article 347. Simulation of Births, The crime would fall under the
Substitution of One Child for Another, second paragraph of Article 347. The
and Concealment of Abandonment of A purpose of the woman is to cause the child
Legitimate Child to lose its civil status so that it may not be
able to share in the inheritance.
Acts punished
3. Suppose a child, one day
1. Simulation of births; after his birth, was taken to and left in the
midst of a lonely forest, and he was found
2. Substitution of one child for another; by a hunter who took him home. What
crime was committed by the person who left
3. Concealing or abandoning any it in the forest?
legitimate child with intent to cause
such child to lose its civil status. It is attempted infanticide, as the act
of the offender is an attempt against the life
of the child. See US v. Capillo, et al., 30
Illustration: Phil. 349.
2. Suppose that the purpose of 2. The marriage has not been legally
the woman is abandoning the child is to dissolved or, in case his or her
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
spouse is absent, the absent spouse Distinction between bigamy and illegal
could not yet be presumed dead marriage:
according to the Civil Code;
Bigamy is a form of illegal marriage. The
3. He contracts a second or offender must have a valid and subsisting
subsequent marriage; marriage. Despite the fact that the
marriage is still subsisting, he contracts a
4. The second or subsequent marriage subsequent marriage.
has all the essential requisites for
validity. Illegal marriage includes also such other
marriages which are performed without
complying with the requirements of law, or
The crime of bigamy does not fall within the such premature marriages, or such
category of private crimes that can be marriage which was solemnized by one
prosecuted only at the instance of the who is not authorized to solemnize the
offended party. The offense is committed same.
not only against the first and second wife
but also against the state. For bigamy to be committed, the second
marriage must have all the attributes of a
Good faith is a defense in bigamy. valid marriage.
1. A widow who is married within 301 7. Intriguing against honor (Art. 364).
days from the date of the death of
her husband, or before having
delivered if she is pregnant at the Article 353. Definition of Libel
time of his death;
A libel is a public and malicious imputation
2. A woman who, her marriage having of a crime, or of a vice or defect, real or
been annulled or dissolved, married imaginary, or any act, omission, condition,
before her delivery or before the status, or circumstances tending to cause
expiration of the period of 301 days the dishonor, discredit, or contempt of a
after the date of the legal separation. natural or juridical person, or to blacken the
memory of one who is dead.