Professional Documents
Culture Documents
TITLE ONE
Crimes against the law of nations 1. 2. 3. 4. 5. Inciting to war or giving motives for reprisals (Art. 118); Violation of neutrality (Art. 119); Corresponding with hostile country (Art. 120); Flight to enemy's country (Art. 121); and Piracy in general and mutiny on the high seas (Art. 122).
The crimes under this title can be prosecuted even if the criminal act or acts were committed outside the Philippine territorial jurisdiction. However, prosecution can proceed only if the offender is within Philippine territory or brought to the Philippines pursuant to an extradition treaty. This is one of the instances where the Revised Penal Code may be given extra-territorial application under Article 2 (5) thereof. In the case of crimes against the law of nations, the offender can be prosecuted whenever he may be found because the crimes are regarded as committed against humanity in general.
1) Levies war against the government, 1. breech of allegiance 2. actual assembling of men 3. for the purpose of executing a treasonable design
Page 1 of 224
Success is not important. What matters is the actual assembly of men and the execution of treasonable design by force. Ways of proving treason: a. 2 witnesses testifying to same overt act
The testimonies must refer to the same act, place and moment of time. Treason cannot be proved by circumstantial evidence or by extrajudicial confession. Example: X saw arms landed in La Union and loaded into a motor vehicle. At this stage, not sufficient to convict yet. Y later saw the arms unloaded in a warehouse. Will X + Y be sufficient witnesses to convict? Answer: NO. Because the law requires that 2 witnesses see the SAME OVERT ACT.
b.
Confession of the accused in open court. Arraignment, pre-trial, trial OK. 1. If he has pleaded NOT guilty already during arraignment, he can still confess in open court by stating the particular acts constituting treason. 2. 3. During trial, simply saying Im guilty is not enough. Withdrawing plea of not guilty during arraignment not necessary
4. If during arraignment he pleads guilty, court will ask if the accused understands is plea. Submission of affidavit during trial, even if assisted by counsel is not enough.
Treason: breach of allegiance to the government, committed by a person who owes allegiance to it. Allegiance: obligation of fidelity and obedience. It is permanent or temporary depending on whether the person is a citizen or an alien.
Page 2 of 224
Evident premeditation, superior strength and treachery are circumstances inherent in treason, and are, therefore, not aggravating. Treason cannot be committed in times of peace, only in times of war actual hostilities. But no need for declaration of war
Not Treasonous: a. Acceptance of public office and discharge of official duties under the enemy does not constitute per se the felony of treason (exception: when it is policy determining)
b.
Serving in a puppet government (ministerial functions) and in order to serve the populace is NOT treasonous. But it is treason if: a) there is discretion involved; b) inflicts harm on Filipinos; c) it is disadvantageous to them. Purpose of offender: to deliver the Philippines to enemy country; if merely to change officials not treason
c.
On Citizenship a. Filipino citizens can commit treason outside the Philippines. But that of an alien must be committed in the Philippines. b. Only Filipino citizens or permanent resident aliens can be held liable Alien: with permanent resident status from the BID it is neither the length of stay in the Philippines nor the marriage with a Filipino that matters.
c.
Actual hostilities may determine the date of the commencement of war No such thing as attempted treason; mere attempt consummates the crime Giving aid or comfort material element, enhances forces of the enemy country.
Acts which strengthen or tend to strengthen the enemy in the conduct of war against the traitors country or that which weaken and tend to weaken the power of the same. Example: Financing arms procurement of enemy country. But giving of shelter is not necessarily giving aid and comfort.
Page 3 of 224
Adherence: when a citizen intellectually or emotionally favors the enemy and harbors convictions disloyal to his countrys policy. But membership in the police force during the occupation is NOT treason. Example: Giving information to, or commandeering foodstuffs for the enemy.
Adherence may be proved by: (1) one witness; (2) from the nature of the act itself; (3) from the circumstances surrounding the act. When this adherence or sympathies are converted into aid and comfort, only then they take material forM. This material form is now what is made punishable. It is usually manifested by the offender in giving information, commandeering foodstuffs, serving as spy and supplying the enemy with war materials.
Treason is a CONTINUING CRIME. Even after the war, offender can be prosecuted.
Treason is a continuing offense. It can be committed by a single act or by a series of acts. It can be committed in one single time or at different times and only one criminal intent. In construing the provisions relating to the commission of several acts, the same must be done in pursuance or furtherance of the act of treason. No matter how many acts of treason are committed by the offender, he will be liable for only one crime of treason.
If you convict a person for treason by reason of irresistible force or uncontrollable fear, you may use Art.12. No treason through negligence
In the imposition of the penalty for the crime of treason, the court may disregard the presence of mitigating and aggravating circumstances. It may consider only the number, nature and gravity of the acts established during the trial. The imposition of the penalty rests largely on the exercise of judicial discretion. Defenses that may be availed of by the accused. 1. Duress or uncontrollable fear of immediate death; and 2. Lawful obedience to a de facto government.
When killings and other common crimes are charged as overt act of treason, they cannot be regarded as (1) separate crimes or (2) as complex with treason.
Page 4 of 224
Page 5 of 224
While Treason as a crime should be established by the two-witness rule, the same is not observed when the crime committed conspiracy to commit treason or when it is only a proposal to commit treason.
Take note that the offender is a principal to the crime of misprision of treason, yet he is penalized only as an accessory. In the imposition of the penalty, the court is not bound by the provisions of Article 63 and 64, referring to indivisible penalties. In the presence of mitigating and aggravating circumstances, the offender is punished two degrees lower than the penalty for the crime of treason.
The criminal liability arises if the treasonous activity was still at the conspiratorial stage
This crime does not apply if the crime of treason is already committed Crime of omission
This is a felony by omission although committed with dolo, not with culpa.
Page 6 of 224
To report within a reasonable time depends on time, place and circumstance the RPC did not fix time. RPC states 4 individuals, what if you report to some other high-ranking government official? Ex. PNP Director? Judge Pimentel says any govt official of the DILG is OK.
Whether the conspirators are parents or children, and the ones who learn the conspiracy is a parent or child, they are required to report the same. The reason is that although blood is thicker than water so to speak, when it comes to security of the state, blood relationship is always subservient to national security. Article 20 does not apply here because the persons found liable for this crime are not considered accessories; they are treated as principals.
Article 117 Espionage by entering, without authority therefor, warship, fort, or naval or military establishments or reservation to obtain any information, plans, photographs or other data of a confidential nature relative to the defense of the Philippines.
ELEMENTS: a. 1. That the offender enters any of the places mentioned therein 2 3 2. That he has no authority therefore; b. That his purpose is to obtain information, plans, photographs or other data of a confidential nature relative to the defense of the Philippines
Under the first mode of committing espionage, the offender must have the intention to obtain information relative to the defense of the PHIL. It is sufficient that he entered the prohibited premises. Here, the offender is any private individual, whether an alien or a citizen of the Philippines, or a public officer.
Espionage by disclosing to the representative of a foreign nation the contents of the articles, data, or information referred to in paragraph 1 of Article 117, which he had in his possession by reason of the public office holds
ELEMENTS: a. That the offender is a public officer
Page 7 of 224
Under the second mode, the offender must be a public officer who has in possession the articles, data or information by reason of the office he holds. Taking advantage of his official position, he reveals or discloses the information which are confidential and are relevant to the defense of the Philippines.
Espionage: the offense of gathering, transmitting, or losing information respecting the national defense with the intent or reason to believe that the information is to be used to the injury of the Philippines or the advantage of any foreign nation. It is not conditioned on citizenship. Not necessary that Philippines is at war with the country to which the information was revealed. What is important is that the information related is connected with the defense system of the Philippines. Wiretapping is NOT espionage if the purpose is not something connected with the defense
Commonwealth Act No. 616 An Act to Punish Espionage and Other Offenses against National Security Acts punished 1. 2. 3. 4. 5. 6. 7. Unlawfully obtaining or permitting to be obtained information affecting national defense; Unlawful disclosing of information affecting national defense; Disloyal acts or words in times of peace; Disloyal acts or words in times of war; Conspiracy to violate preceding sections; Harboring or concealing violators of law. and Photographing vital military information
Page 8 of 224
Example. X burns Chinese flag. If China bans the entry of Filipinos into China, that is already reprisal.
b. That there is a regulation issued by competent authority for the purpose of enforcing neutrality c. That the offender violates such regulation
Govt must have declared the neutrality of the Phil in a war between 2 other countries
The regulation must be issued by a competent authority like the President of the Philippines or the Chief of Staff of the Armed Forces of the Philippines, during a war between different countries in which the Philippines is not taking sides. It is neutrality of the Phil that is violated Congress has the right to declare neutrality
Page 9 of 224
b. That the offender makes correspondence with an enemy country or territory occupied by enemy troops c. 1. 2. 3. 1 2 3 That the correspondence is either prohibited by the government, or carried on in ciphers or conventional signs, or containing notice or information which might be useful to the enemy
Circumstances qualifying the offense: a. notice or information might be useful to the enemy b. offender intended to aid the enemy Hostile country exist only during hostilities or after the declaration of war Correspondence to enemy country correspondence to officials of enemy country even if related to you. It is not correspondence with private individual in enemy country If ciphers were used, no need for prohibition If ciphers were not used, there is a need for prohibition In any case, it must be correspondence with the enemy country Doesnt matter if correspondence contains innocent matters if prohibited, punishable
Mere attempt consummates the crime There must be a prohibition. If none, even if went to enemy country no violation Alien resident may be guilty here.
b. That the offenders are not members of its complement or passengers of the vessel c. That the offenders
1.
attack or seize that vessel or (hence, if committed by crew or passengers, the crime is not piracy but robbery in the high seas) 2. seize the whole or part of the cargo of said vessel, its equipment or personal belongings of its complement or passengers
High seas: any waters on the sea coast which are without the boundaries of the low water mark although such waters may be in the jurisdictional limits of a foreign govt
Page 11 of 224
Piracy in high seas jurisdiction is with any court where offenders are found or arrested Piracy in internal waters jurisdiction is only with Philippine courts For purpose of Anti-Fencing Law, piracy is part of robbery and theft Mutiny Unlawful resistance to a superior officer, or the raising of commotion and disturbances on board a ship against the authority of its commander No criminal intent Attack from the inside.
Piracy Robbery or forcible degradation on the high seas, without lawful authority and done with animo lucrandi and in the spirit and intention of universal hostility. Intent to gain is an element. Attack from outside. Offenders are strangers to the vessel.
under the amended article, piracy can only be committed by a person who is not a passenger nor member of the complement of the vessel irrespective of venue. So if a passenger or complement of the vessel commits acts of robbery in the high seas, the crime is robbery, not piracy. If in the Phil. waters still piracy
However, despite the amendment, P.D. No. 532 may still apply where the offender is not stranger to the vessel since it provides: Any attack upon or seize of any vessel, or the taking away of the whole of part thereof or its cargo, equipment or the personal belongings of its complement or passengers, irrespective of the value hereof, by means of violence against or intimidation of persons or force upon things, committed by any person, including a passenger or member of the complement of said vessel, in Philippine waters, shall be considered as piracy. The offenders shall be considered as pirates and punished as hereinafter provided. After all, under the Revised Penal Code, for one to be called a pirate, the offender must be a stranger to the vessel. While the Article 122 limits the offenders to non-passengers or non-members of the crew, P.D. 532 states that the attack upon or seizure of any vessel, or taking away the whole or part thereof or its cargo, equipment or personal belongings of its complement or passengers committed by any person including a passenger or member of the complement of said vessel shall be considered Piracy.
Note, however, that in Section 4 of Presidential Decree No. 532, the act of aiding pirates or abetting piracy is penalized as a crime distinct from piracy. Said section penalizes any person who knowingly and in any manner aids or protects pirates, such as giving them information about the movement of the police or other peace officers of the government, or acquires or receives property taken by such pirates, or in any manner derives any benefit therefrom; or who directly or
Page 12 of 224
Elements of mutiny 1) The vessel is on the high seas or Philippine waters; 2) Offenders are either members of its complement, or passengers of the vessel; 3) Offenders either a. b. attack or seize the vessel; or seize the whole or part of the cargo, its equipment, or personal belongings of the crew or passengers.
Mutiny is the unlawful resistance to a superior officer, or the raising of commotions and disturbances aboard a ship against the authority of its commander.
Page 13 of 224
In piracy, where rape, murder or homicide is committed, the mandatory penalty of death is imposable. This means that even if the accused enters a plea of guilty, the penalty of death will still be imposed because death is a single and indispensable penalty. (People vs. Rodriguez, 135 SCRA 485) The penalty for qualified piracy is reclusion perpetua to death. If any of the circumstances enumerated under the law is proven or established, the mandatory penalty of death should be imposed. The presence of mitigating or aggravating circumstances will be ignored by the court.
Although in Article 123 merely refers to qualified piracy, there is also the crime of qualified mutiny. Mutiny is qualified under the following circumstances: (1) (2) When the offenders abandoned the victims without means of saving themselves; or When the mutiny is accompanied by rape, murder, homicide, or physical injuries.
Note that the first circumstance which qualifies piracy does not apply to mutiny.
Between numbers 1 and 2, the point of distinction is whether the aircraft is of Philippine registry or foreign registry. The common bar question on this law usually involves number 1. The important thing is that before the anti hi-jacking law can apply, the aircraft must be in flight. If not
Page 14 of 224
Questions & Answers 1. The pilots of the Pan Am aircraft were accosted by some armed men and were told to proceed to the aircraft to fly it to a foreign destination. The armed men walked with the pilots and went on board the aircraft. But before they could do anything on the aircraft, alert marshals arrested them. What crime was committed? The criminal intent definitely is to take control of the aircraft, which is hi-jacking. It is a question now of whether the anti-hi-jacking law shall govern. The anti hi-jacking law is applicable in this case. Even if the aircraft is not yet about to fly, the requirement that it be in flight does not hold true when in comes to aircraft of foreign registry. Even if the problem does not say that all exterior doors are closed, the crime is hijacking. Since the aircraft is of foreign registry, under the law, simply usurping or seizing control is enough as long as the aircraft is within Philippine territory, without the requirement that it be in flight. Note, however, that there is no hi-jacking in the attempted stage. This is a special law where the attempted stage is not punishable. 2. A Philippine Air Lines aircraft is bound for Davao. While the pilot and co-pilot are taking their snacks at the airport lounge, some of the armed men were also there. The pilots were followed by these men on their way to the aircraft. As soon as the pilots entered the cockpit, they pulled out their firearms and gave instructions where to fly the aircraft. Does the anti hi-jacking law apply?
Page 15 of 224
Page 16 of 224
TITLE TWO
Under this title, the offenders are public officers, except as to the last crime offending the religious feelings under Article 133, which refers to any person. The public officers who may be held liable are only those acting under supposed exercise of official functions, albeit illegally. But private persons may also be liable under this title as when a private person conspires with a public officer. What is required is that the principal offender must be a public officer. Thus, if a private person conspires with a public officer, or becomes an accessory or accomplice, the private person also becomes liable for the same crime. But a private person acting alone cannot commit the crimes under Article 124 to 132 of this title.
Page 17 of 224
b. c.
That the detention was without legal grounds (cannot be committed if with warrant). Detention: when a person is placed in confinement or there is a restraint on his person.
Only those public officers whose official duties carry with it the authority to make an arrest and detain persons can be guilty of this crime. So, if the offender does not possess such authority, the crime committed by him is illegal detention.
Though the elements specify that the offender be a public officer or employee, private individuals who conspire with public officers can also be liable.
In a case decided by the Supreme Court a Barangay Chairman who unlawfully detains another was held to be guilty of the crime of arbitrary detention. This is because he is a person in authority vested with the jurisdiction to maintain peace and order within his barangay. In the maintenance of such peace and order, he may cause the arrest and detention of troublemakers or those who disturb the peace and order within his barangay. But if the legal basis for the apprehension and detention does not exist, then the detention becomes arbitrary.
Legal grounds for the detention of any person: a. commission of a crime b. c. violent insanity or other ailment requiring compulsory confinement of the patient in a hospital escaped prisoner
When the peace officers acted in good faith even if the three (3) grounds mentioned above are not obtaining, there is no Arbitrary Detention.
Page 18 of 224
Grounds for warrantless arrest: a. Crime is about to be, is being, has been committed in his presence b. Officer must have probable cause to believe based on personal knowledge of facts and circumstances that the person probably committed the crime
For escaped prisoner no need for warrant Example: Y was killed by unknown assailant. Officers got a tip and arrested X. X voluntarily admitted to the officers that he did it although he was not asked. X was detained immediately. According to the SC, there was NO arbitrary detention. Why? Because once X made a confession, the officers had a right to arrest him.
Arbitrary detention can be committed thru simple imprudence or negligence. (People vs. Misa) Periods of Detention penalized: 1. Detention not exceeding three days; 2. Detention for more than three days but not more than 15 days; 3. Detention for more than 15 days but not more than 6 months; and 4. Detention for more than 6 months. Continuing crime is different from a continuous crime Ramos v. Enrile: Rebels later on retire. According to the SC, once you have committed rebellion and have not been punished or amnestied, then the rebels continue to engage in rebellion, unless the rebels renounce his affiliation. Arrest can be made without a warrant because this is a continuing crime.
In arbitrary detention -The principal offender must be a public officer. Civilians cannot commit the crime of arbitrary detention except when they conspire with a public officer committing this
Page 19 of 224
Page 20 of 224
That he fails to deliver such person to the proper judicial authority within: 1. 12 hours, if detained for crimes/offenses punishable by light penalties, or their equivalent 2. 18 hours, for crimes/offenses punishable by correctional penalties, or their equivalent or 3. 36 hours, for crimes/offenses punishable by capital punishment or afflictive penalties, or their equivalent Article 125 covers situations wherein the person detained has been arrested without a warrant but his arrest is nonetheless lawful. It is a felony committed by omission because of the failure of the offender to deliver the detained person to the proper judicial authority within 12 hours, 18 hours and 36 hours as the case may be.
At the beginning, the detention is legal since it is in the pursuance of a lawful arrest. However, the detention becomes arbitrary when the period thereof exceeds 12, 18 or 36 hours, as the case may be, depending on whether the crime is punished by light, correctional or afflictive penalty or their equivalent.
Really means delay in filing necessary information or charging of person detained in court. May be waived if a preliminary investigation is asked for.
Under the Revised Rules of Court, when the person arrested is arrested for a crime which gives him the right to preliminary investigation and he wants to avail his right to a preliminary investigation, he would have to waive in writing his rights under Article 125 so that the arresting officer will not immediately file the case with the court that will exercise jurisdiction over the case. If he does not want to waive this in writing, the arresting officer will have to comply with Article 125 and file the case immediately in court without preliminary investigation. In such case, the arrested person, within five days after learning that the case has been filed in court without preliminary investigation, may ask for preliminary investigation. In this case, the public officer who made the arrest will no longer be liable for violation of Article 125.
Does not contemplate actual physical delivery but at least there must be a complaint filed. Duty complied with upon the filing of the complaint with the judicial authority (courts, prosecutors though technically not a judicial authority, for purposes of this article, hes considered as one.)
Delivery of detained person consists in making charge of filing a compliant against the prisoner with the proper judicial authority. It does not involve the physical delivery of the prisoner before the judge (Sayo vs. Chief of Police). The filing of the information in court does not cure illegality of detention. Neither does it affect the legality of the confinement under process issued by the court.
Page 21 of 224
Q. Within what period should a police officer who has arrested a person under a warrant of arrest turn over the arrested person to the judicial authority? A. There is no time limit specified except that the return must be made within a reasonable time. The period fixed by law under Article 125 does not apply because the arrest was made by virtue of a warrant of arrest.
the
Delay in Delivery of Detained (125) Detention is legal in the beginning, but illegality starts from the expiration of the specified periods without the persons detained having been delivered to the proper judicial authority.
b. That there is a judicial or executive order for the release of a prisoner or detention prisoner, or that there is a proceeding upon a petition for the liberation of such person
Page 22 of 224
2. the performance of such judicial or executive order for the release of the prisoner, or 3. the proceedings upon a petition for the release of such person Three acts are punishable: a. delaying the performance of a judicial or executive order for the release of a prisoner b. c. delaying the service of notice of such order to said prisoner delaying the proceedings upon any petition for the liberation of such person
Wardens and jailers are the persons most likely to violate this provision Provision does not include legislation
b. That he expels any person from the Philippines, or compels a person to change his residence c. That the offender is not authorized to do so by law
2 acts punishable: a. by expelling a person from the Philippines b. by compelling a person to change his residence
The essence of this crime is coercion but the specific crime is expulsion when committed by a public officer. If committed by a private person, the crime is grave coercion.
In the Philippines, only the President of the Republic has the power to deport aliens whose continued stay in the country constitutes a menace to the peace and safety of the community. In the case of Filipino citizens, only the court, by final judgment, can order a person to change his residence.
Page 23 of 224
1. Certain aliens were arrested and they were just put on the first aircraft which brought them to the country so that they may be out without due process of law. Was there a crime committed? Yes. Expulsion. 2. If a Filipino citizen is sent out of the country, what crime is committed?
Grave coercion, not expulsion, because a Filipino cannot be deported. This crime refers only to aliens.
If X (Filipino) after he voluntarily left, is refused re-entry is considered forcing him to change his address here Threat to national security is not a ground to expel or change his address.
b. That he is not authorized by judicial order to enter the dwelling and/or to make a search therein for papers or other effects c. 1. That he commits any of the following acts: entering any dwelling against the will of the owner thereof
2. searching papers or other effects found therein without the previous consent of such owner 3. refusing to leave the premises, after having surreptitiously entered said dwelling and after having been required to leave the same
Page 24 of 224
In order to commit this crime, the entry must be against the will of the owner. If the entry is only without the consent of the owner, the crime of violation of domicile is not committed. The prohibition may be expressed or implied. If the signs Do not enter and Strangers keep out are posted in front of the house or dwelling, then the prohibition is express. If the door is locked, or even if it is open but these are barriers to indicate the manifest intention of the owner to bar strangers from entering, there is implied prohibition. The primary object of the law is to preserve the privacy of abode of the offended party. Hence, if the privacy is already lost, as when the offender has been allowed by the owner to enter the dwelling together with other persons, any subsequent change of attitude will not restore the privacy which was already lost. When privacy is waived, trespass to dwelling or violation of domicile cannot be committed.
If the offender who enters the dwelling against the will of the owner thereof is a private individual, the crime committed is trespass to dwelling (Art 280) When a public officer searched a person outside his dwelling without a search warrant and such person is not legally arrested for an offense, the crime committed by the public officer is grave coercion, if violence or intimidation is used (Art 286), or unjust vexation, if there is no violence or intimidation (Art 287) A public officer without a search warrant cannot lawfully enter the dwelling against the will of the owner, even if he knew that someone in that dwelling is having unlawful possession of opium
Under Rule 113(sec. 11) of the Revised Rules of Court, when a person to be arrested enters a premise and closes it thereafter, the public officer, after giving notice of an arrest, can break into the premise. He shall not be liable for violation of domicile.
3 acts punishable: a. person enters dwelling w/o consent or against the will
In the plain view doctrine, public officer should be legally entitled to be in the place where the effects were found. If he entered the place illegally and he saw the effects, doctrine inapplicable; thus, he is liable for violation of domicile.
b.
Page 25 of 224
c.
Being authorized by law means with search warrant, to save himself or do some things good for humanity
There are only three recognized instances when search without a warrant is considered valid, and, therefore, the seizure of any evidence done is also valid. Outside of these, search would be invalid and the objects seized would not be admissible in evidence. (1) (2) (3) Search made incidental to a valid arrest; Where the search was made on a moving vehicle or vessel such that the exigency of he situation prevents the searching officer from securing a search warrant; When the article seized is within plain view of the officer making the seizure without making a search therefore.
In order that a search warrant may be issued, it must be based on probable cause in connection with one offense, to be determined by a judge after examination under oath of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.
Page 26 of 224
Although void, the search warrant is entitled to respect because of presumption of regularity. One remedy is a motion to quash the search warrant, not refusal to abide by it. The public officer may also be prosecuted for perjury, because for him to succeed in obtaining a search warrant without a probable cause, he must have perjured himself or induced someone to commit perjury to convince the court.
The true test of lack of just cause is whether the sworn statement filed in support of the application for search warrant has been done in such a manner that perjury could be charged and the affiant can be held liable for making such false statement. The oath required refers to the truth of the facts within the personal knowledge of the applicant and his witnesses.
ABUSE IN THE SERVICE OF WARRANT OR EXCEEDING AUTHORITY OR USING UNNECESSARY SEVERITY IN EXECUTING A SEARCH WARRANT LEGALLY PROCURED
ELEMENTS: a. b. That the offender is a public officer or employee That he has legally procured a search warrant
c. That he exceeds his authority or uses unnecessary severity in executing the same Search warrant is valid for 10 days from its date Search warrant is an order in writing issued in the name of the People, signed by the judge and directed to a public officer, commanding him to search for personal property described therein and bring it before the court No just cause warrant is unjustified Search limited to what is described in the warrant, all details must be with particularity
The officer exceeded his authority under the warrant To illustrate, let us say that there was a pusher in a condo unit. The PNP Narcotics Group obtained a search warrant but the name of person in the search warrant did not tally with the address stated. Eventually, the person with the same name was found but in a different address. The occupant resisted but the public officer insisted on the search. Drugs were found and seized and occupant was prosecuted and convicted by the trial court. The Supreme Court acquitted him because the public officers are required to follow the search warrant to the letter. They have no discretion on the matter. Plain view doctrine is inapplicable since it presupposes that the officer was legally entitled to be in the place where the effects where found. Since the entry was illegal, plain view doctrine does not apply.
Page 27 of 224
Malicious warrant. Example. X was a respondent of a search warrant for illegal possession of firearms. A return was made. The gun did not belong to X and the witness had no personal knowledge that there is a gun in that place. Abuse examples: a. X owner was handcuffed while search was going-on. b. Tank was used to ram gate prior to announcement that a search will be made
The search warrant is not a license to commit destruction.
c.
d. That the owner, or any member of his family, or two witnesses residing in the same locality are not present Order of those who must witness the search: a. b. c. Homeowner Members of the family of sufficient age and discretion Responsible members of the community (cant be influenced by the searching party)
Validity of the search warrant can be questioned only in 2 courts: 1) where issued or 2) where the case is pending. Latter is preferred for objective determination.
Article 130 has no application to search and seizure made on moving vehicles because the application of this law is limited to dwelling and personal properties such as papers and effects found therein. There are searches and seizures which are authorized by law and which can be done without the attendance of witnesses. For instance, the Tariff and
Page 28 of 224
1.
2.
prohibiting or interrupting, without legal ground the holding of a peaceful meeting, or dissolving the same (e.g. denial of permit in arbitrary manner). hindering any person from joining any lawful association or from attending any of its meetings.
prohibiting or hindering any person from addressing, either alone or together with others, any petition to the authorities for the correction of abuses or redress of grievances
Two criteria to determine whether Article 131 would be violated: (1) (2) Dangerous tendency rule applicable in times of national unrest such as to prevent coup detat. Clear and present danger rule applied in times of peace. Stricter rule.
If the offender is a private individual, the crime is disturbance of public order (Art 153) Meeting must be peaceful and there is no legal ground for prohibiting, dissolving or interrupting that meeting
If in the course of the assembly the participants commit illegal acts like oral defamation or inciting to sedition, a public officer or law enforcer can stop or dissolve the meeting. The permit given is not a license to commit a crime.
Page 29 of 224
Offender must be a stranger, not a participant, in the peaceful meeting; otherwise, its unjust vexation Interrupting and dissolving a meeting of the municipal council by a public officer is a crime against the legislative body, not punishable under this article The person talking on a prohibited subject at a public meeting contrary to agreement that no speaker should touch on politics may be stopped But stopping the speaker who was attacking certain churches in public meeting is a violation of this article Prohibition must be without lawful cause or without lawful authority Those holding peaceful meetings must comply with local ordinances. Example: Ordinance requires permits for meetings in public places. But if police stops a meeting in a private place because theres no permit, officer is liable for stopping the meeting.
Distinctions between prohibition, interruption, or dissolution of peaceful meetings under Article 131, and tumults and other disturbances, under Article 153 (1) As to the participation of the public officer In Article 131, the public officer is not a participant. concerned, the public officer is a third party. As far as the gathering is
If the public officer is a participant of the assembly and he prohibits, interrupts, or dissolves the same, Article 153 is violated if the same is conducted in a public place. (2) As to the essence of the crime In Article 131, the offender must be a public officer and, without any legal ground, he prohibits, interrupts, or dissolves a peaceful meeting or assembly to prevent the offended party from exercising his freedom of speech and that of the assembly to petition a grievance against the government. In Article 153, the offender need not be a public officer. The essence of the crime is that of creating a serious disturbance of any sort in a public office, public building or even a private place where a public function is being held.
Circumstance qualifying the offense: if committed with violence or threats Reading of Bible and then attacking certain churches in a public plaza is not a ceremony or manifestation of religion, but only a meeting of a religious sect. But if done in a private home, its a religious service Religious Worship: people in the act of performing religious rites for a religious ceremony; a manifestation of religion. Ex. Mass, baptism, marriage X, a private person, boxed a priest while the priest was giving homily and while the latter was maligning a relative of X. Is X liable? X may be liable under Art 133 because X is a private person. When priest is solemnizing marriage, he is a person in authority, although in other cases, hes not.
1.
2.
in a place devoted to religious worship, or (for this element, no need of religious ceremony, only the place is material) during the celebration of any religious ceremony
b.
c. d.
That the acts must be notoriously offensive to the feelings of the faithful (deliberate intent to hurt the feelings) The offender is any person There is a deliberate intent to hurt the feelings of the faithful, directed against religious tenet
Page 31 of 224
In determining whether an act is offensive to the feelings of the faithful, the same must be viewed or judged from the standpoint of the offended religion and not from the point of view of the offender (People vs. Baes, 68 Phil. 203).
CRIME Prohibition, Interruption and Dissolution of Peaceful Meeting (131) Interruption of Religious Worship (132) Offending the Religious Feeling (133)
Nature of Crime Crime against the fundamental law of the state Crime against the fundamental law of the state Crime against public order
If by insider = unjust vexation If not religious = tumult or alarms If not notoriously offensive = unjust vexation If not tumults = alarms and scandal If meeting illegal at onset = inciting to sedition or rebellion
Page 32 of 224
Page 33 of 224
2.
b.
That the purpose of the uprising or movement is either 1. to remove from the allegiance to said government or its laws 4 5 i. the territory of the Philippines or any part thereof, or 6 7 ii. any body of land, naval or other armed forces, or 2 To deprive the chief executive or congress, wholly or partially, of any of their powers or prerogatives
Page 34 of 224
4.
The essence of this crime is a public uprising with the taking up of arms. It requires a multitude of people. It aims to overthrow the duly constituted government. It does not require the participation of any member of the military or national police organization or public officers and generally carried out by civilians. Lastly, the crime can only be committed through force and violence.
The crime of rebellion cannot be committed by a single individual. Invariably, it is committed by several persons for the purpose of overthrowing the duly constituted or organized government. In the Philippines, what is known to the ordinary citizen as a symbol of Government would be the barangay, represented by its officials; the local government represented by the provincial and municipal officials; and the national government represented by the President, the Chief Justice and the Senate President and the Speaker of the House of Representatives.
The crime of rebellion is essentially a political crime. The intention of the rebel is to substitute himself in place of those who are in power. His method of placing himself in authority with the use of violence, duress or intimidation, assassination or the commission of common crimes like murder, kidnapping, arson, robbery and other heinous crimes in what we call rebellion.
Rebellion used where the object of the movement is completely to overthrow and supersede the existing government Insurrection refers to a movement which seeks merely to effect some change of minor importance to prevent the exercise of govt authority w/ respect to particular matters or subjects
Page 35 of 224
The phrase to remove allegiance from the government is used to emphasize that the object of the uprising could be limited to certain areas, like isolating a barangay or municipality or a province in its loyalty to the duly constituted government or the national government.
Allegiance is a generic term which includes loyalty, civil obedience and civil service. The law on rebellion however, does not speak only of allegiance or loss of territory. It also includes the efforts of the rebel to deprive the President of the Philippines of the exercise of his power to enforce the law, to exact obedience of laws and regulations duly enacted and promulgated by the duly constituted authorities. Actual clash of arms w/ the forces of the govt, not necessary to convict the accused who is in conspiracy w/ others actually taking arms against the govt Purpose of the uprising must be shown but it is not necessary that it be accomplished A change of government w/o external participation RISING PUBLICLY and TAKING ARMS AGAINST GOVERNMENT actual participation. If there is no public uprising, the crime is of direct assault.
When any of the objectives of rebellion is pursued but there is no public uprising in the legal sense, the crime is direct assault of the first form. But if there is rebellion, with public uprising, direct assault cannot be committed.
Mere giving of aid or comfort is not criminal in the case of rebellion. Merely sympathizing is not participation, there must be ACTUAL participation
There must be a public apprising and taking up of arms for the specified purpose or purposes mentioned in Article 134. The acts of the accused who is not a member of the Hukbalahap organization of sending cigarettes and food supplies to a Huk leader; the changing of dollars into pesos for a top level communist; and the helping of Huks in opening accounts with the bank of which he was an official, do not constitute Rebellion. (Carino vs. People, et al., 7 SCRA 900). Not necessary that there is killing, mere threat of removing Phil is sufficient
Rebellion may be committed even without a single shot being fired. No encounter needed. Mere public uprising with arms enough.
Page 36 of 224
Page 37 of 224
However, illegal possession of firearms in furtherance of rebellion is distinct from the crime of rebellion.
The offense of illegal possession of firearm is a malum prohibitum, in which case, good faith and absence of criminal intent are not valid defenses.
Furthermore, it is a continuing crime such along with the crime of conspiracy or proposal to commit such A private crime may be committed during rebellion. Examples: killing, possessions of firearms, illegal association are absorbed. Rape, even if not in furtherance of rebellion cannot be complexed If killing, robbing were done for private purposes or for profit, without any political motivation, the crime would be separately be punished and would not be embraced by rebellion (People v. Fernando) Person deemed leader of rebellion in case he is unknown: Any person who in fact: a. directed the others b. spoke for them c. signed receipts and other documents issued in their name d. performed similar acts on behalf of the rebels
Page 38 of 224
d. Singly or simultaneously carried out anywhere in the Philippines d. Committed by any person or persons belonging to the military or police or holding any public office or employment; with or without civilian support or participation
e. f.
With or without civilian support or participation Purpose of seizing or diminishing state power
The essence of the crime is a swift attack upon the facilities of the Philippine government, military camps and installations, communication networks, public utilities and facilities essential to the continued possession of governmental powers. It may be committed singly or collectively and does not require a multitude of people.
The objective may not be to overthrow the government but only to destabilize or paralyze the government through the seizure of facilities and utilities essential to the continued possession and exercise of governmental powers. It requires as principal offender a
Page 39 of 224
How do you distinguish between coup detat and rebellion? Rebellion is committed by any person whether a private individual or a public officer whereas in coup detat, the offender is a member of the military or police force or holding a public office or employment. In rebellion, the object is to alienate the allegiance of a people in a territory, whether wholly or partially, from the duly constituted government; in coup detat, the object or purpose is to seize or diminish state power. In both instances, the offenders intend to substitute themselves in place of those who are in power.
Treason (114) Nature Overt Crime against National Security levying war against the govt; OR adherence and giving aid or comfort to enemies Deliver the govt to enemy during war Rebellion (134) Crime against Public Order Public uprising AND Taking up arms against the govt See article. Coup detat (134-A) Crime against Public Order See article. Sedition (139) Crime against Public Order Rising publicly or tumultuously (caused by more than 3 armed men or provided with means of violence) See enumeration in article.
Purpos e of objecti ve
Page 40 of 224
When conspiracy is present in the commission of the crime, the act of one is the act of all. In committing rebellion and coup detat, even if conspiracy as a means to commit the crime is established, the principal of criminal liability under Article 17 of the Revised Penal Code is not followed. In Government Service Not in Governm Anyone who leads, directs, commands others to Anyone who participates or undertake a coup. finances, abets, aids in a coup Serious violence is that inflicted upon civilians, which may result in homicide. It is not limited to hostilities against the armed force. Diverting public funds is malversation absorbed in rebellion NOTES: a. Public officer must take active part because mere silence or omission not punishable in rebellion b. It is not a defense in rebellion that the accused never took the oath of allegiance to, or that they never recognized the government c. Rebellion cannot be complexed with murder and other common crimes committed in pursuance of the movement to overthrow the government Subversion, just like the crimes of rebellion, conspiracy or proposal to commit the crimes of rebellion or subversion and crimes or offenses committed in furtherance thereof constitute direct assaults against the State and are in the nature of continuing crimes ( Umil vs. Ramos). d. Killing, robbing etc for private persons or for profit, without any political motivation, would be separately punished and would not be absorbed in the rebellion.
COMMIT
COUP
ETAT,
REBELLION
OR
Page 41 of 224
COUP
ETAT,
REBELLION
OR
ELEMENTS: a. b. c. A person who has decided to rise publicly and take arms the government For any of the purposes of rebellion Proposes its execution to some other person/s
Organizing a group of soldiers, soliciting membership in, and soliciting funds for the organization show conspiracy to overthrow the govt The mere fact of giving and rendering speeches favoring Communism would not make the accused guilty of conspiracy if theres no evidence that the hearers then and there agreed to rise up in arms against the govt Conspiracy must be immediately prior to rebellion If it is during the rebellion, then it is already taking part in it.
Presupposes existence of rebellion Must not be in conspiracy with rebels or coup plotters
Page 42 of 224
Disloyalty as a crime is not limited to rebellion alone but should now include the crime of coup detat. Rebellion is essentially a crime committed by private individuals while coup detat is a crime that should be classified as a crime committed by public officers like malversation, bribery, dereliction of duty and violations of the anti-Graft and Corrupt Practices Act. If the public officer or employee, aside from being disloyal, does or commits acts constituting the crime of rebellion or coup detat, he will no longer be charged for the simple crime of disloyalty but he shall be proceeded against for the grave offense of rebellion or coup detat.
c. That the inciting is done by means of speeches, proclamations, writings, emblems, banners or other representations tending to the same end Intentionally calculated to seduce others to rebellion There must be uprising to take up arms and rise publicly for the purposes indicated in Art 134
One who promotes, maintains or heads a rebellion and who act at the same time incites or influences others to join him in his war efforts against the duly constituted government cannot be held criminally liable for the crime of inciting to rebellion because, as the principal to the crime of rebellion, the act of inciting to commit a rebellion is inherent to the graver crime of rebellion.
Proposal to Commit Rebellion (136) The person who proposes has decided to commit rebellion. Inciting to Rebellion (138) Not required that the offender has decided to commit rebellion.
Page 43 of 224
1. 2.
b. c.
Publicly (if no public uprising = tumult and other disturbance of public order) Tumultuously (vis--vis rebellion where there must be a taking of arms)
That they employ force, intimidation, or other means outside of legal methods That the offenders employ any of those means to attain any of the following objects: 1. 2. to prevent the promulgation or execution of any law or the holding of any popular election to prevent the national government, or any provincial or municipal government, or any public thereof from freely exercising its or his functions, or prevent the execution of any administrative order to inflict any act or hate or revenge upon the person or property of any public officer or employee to commit for any political or social end, any act of hate or revenge against private persons or any social class (hence, even private persons may be offended parties) to despoil, for any political or social end, any person, municipality or province, or the national government of all its property or any part thereof
3.
4.
5.
Sedition: raising of commotion or disturbances in the State. Its ultimate object is a violation of the public peace or at least such measures that evidently engenders it. The crime of sedition is committed by rising publicly and tumultuously. The two elements must concur.
Page 44 of 224
The crime of sedition does not contemplate the taking up of arms against the government because the purpose of this crime is not the overthrow of the government. Notice from the purpose of the crime of sedition that the offenders rise publicly and create commotion and disturbance by way of protest to express their dissent and obedience to the government or to the authorities concerned. This is like the so-called civil disobedience except that the means employed, which is violence, is illegal.
For sedition sufficient that uprising is tumultuous. In rebellion there must be taking up of arms against the government. Sedition purpose may be either political or social. In rebellion always political Tumultuous is a situation wherein the disturbance or confusion is caused by at least four persons. There is no requirement that the offenders should be armed. Preventing public officers from freely exercising their functions
In sedition offender may be a private or public person (Ex. Soldier) Public uprising and the object of sedition must concur Q: Are common crimes absorbed in sedition?
In P v. Umali, SC held that NO. Crimes committed in that case were independent of each other. Preventing election through legal means NOT sedition But when sugar farmers demonstrated and destroyed the properties of sugar barons sedition Persons liable for sedition: a. leader of the sedition, and b. other persons participating in the sedition
The objective of the law in criminalizing sedition is to put a limit to the freedom of expression or the right of the people to assemble and petition the government for redress of grievance. The demonstrations conducted or held by the citizenry to protest certain policies of the government is not a crime. But when the protest in manifested in the form of rallies where the participants, in order to attain their objective of overcoming the will of the government, resort
Page 45 of 224
The conspiracy must be to prevent the promulgation or execution of any law or the holding of any popular election. It may also be a conspiracy to prevent national and local public officials from freely exercising their duties and functions, or to prevent the execution of an administrative order.
c.
c.
When punishable: a. when they tend to disturb or obstruct any lawful officer in executing the functions of his office; or
Page 46 of 224
Inciting to sedition is an element of sedition. It cannot be treated as a separate offense against one who is a part of a group that rose up publicly and tumultuously and fought the forces of government.
Considering that the objective of sedition is to express protest against the government and in the process creating hate against public officers, any act that will generate hatred against the government or a public officer concerned or a social class may amount to Inciting to sedition. Article 142 is, therefore, quite broad. The mere meeting for the purpose of discussing hatred against the government is inciting to sedition. Lambasting government officials to discredit the government is Inciting to sedition. But if the objective of such preparatory actions is the overthrow of the government, the crime is inciting to rebellion.
CRIMES AGAINST POPULAR REPRESENTATION Article 143 ACTS TENDING TO PREVENT THE MEETING OF CONGRESS AND SIMILAR BODIES
ELEMENTS: a. That there be a projected or actual meeting of Congress or any of its committees or subcommittees, constitutional commissions or committees or division thereof, or of any provincial board or city or municipal council or board b. That the offender who may be any persons prevents such meeting by force or fraud The crime is against popular representation because it is directed against officers whose primary function is to meet and enact laws. When these legislative bodies are prevented from meeting and performing their duties, the system of government is disturbed. The three branches of government must continue to exist and perform their duties. Chief of Police and mayor who prevented the meeting of the municipal council are liable under Art 143, when the defect of the meeting is not manifest and requires an investigation before its existence can be determined.
Page 47 of 224
2. He behaves while in the presence of any such bodies in such a manner as to interrupt its proceedings or to impair the respect due it The disturbance can be in the form of utterances, speeches or any form of expressing dissent which is not done peacefully but implemented in such a way that it substantially interrupts the meeting of the assembly or adversely affects the respect due to the assembly of its members. Complaint must be filed by member of the Legislative body. Accused may also be punished for contempt.
2. 3. b.
By arresting or searching any member thereof while Congress is in a regular or special session, except in case such member has committed a crime punishable under the code by a penalty higher than prision mayor ( 6 years up ) Elements:
Page 48 of 224
4.
That the member searched has not committed a crime punishable under the code by a penalty higher than prision mayor (1987 constitution: privilege from arrest while congress in session in all offenses punishable by not more than 6 years imprisonment).
Under Section 11, Article VI of the Constitution, a public officer who arrests a member of Congress who has committed a crime punishable by prision mayor (six years and one day, to 12 years) is not liable Article 145. According to Reyes, to be consistent with the Constitution, the phrase "by a penalty higher than prision mayor" in Article 145 should be amended to read: "by the penalty of prision mayor or higher."
The offender is any person and the offended party who is a member of Congress, has not committed any crime to justify the use of force, threat, intimidation or fraud to prevent him from attending the meeting of Congress.
2.
3.
purpose : to commit any of crimes punishable under the code meeting attended by armed persons
b. Meeting of the second form 1. Meeting, gathering or group of persons whether in a fixed place or moving
Page 49 of 224
a. b.
if they are not armed, penalty is arresto mayor if they carry arms, like bolos or knives, or licensed firearms, penalty is prision correccional
Presumptions if person present at the meeting carries an unlicensed firearm: a. b. purpose of the meeting is to commit acts punishable under the RPC considered as leader or organizer of the meeting
Those who incite the audience, by means of speeches, printed matters, and other representation, to commit treason, rebellion or insurrection, sedition or assault a person in authority, shall be deemed leaders or organizers of said meeting.
The gravamen of the offense is mere assembly of or gathering of people for illegal purpose punishable by the Revised Penal Code. Without gathering, there is no illegal assembly. If unlawful purpose is a crime under a special law, there is no illegal assembly. For example, the gathering of drug pushers to facilitate drug trafficking is not illegal assembly because the purpose is not violative of the Revised Penal Code but of The Dangerous Drugs Act of 1972, as amended, which is a special law.
Two forms of illegal assembly (1) No attendance of armed men, but persons in the meeting are incited to commit treason, rebellion or insurrection, sedition or assault upon a person in authority. When the illegal purpose of the gathering is to incite people to commit the crimes mentioned above, the presence of armed men is unnecessary. The mere gathering for the purpose is sufficient to bring about the crime already.
Page 50 of 224
Act of forming or organizing membership in the association Founders, directors, president members
and and
Public morals refers to crimes punished under Title Six of the Revised Penal Code, namely, gambling, grave scandal, prostitution and vagrancy.
ELEMENTS OF THE 1ST FORM OF DIRECT ASSAULT a. That the offender employs force or intimidation.
b.
That the aim of the offender is to attain any of the purposes of the crime of rebellion or any of the objects of the crimes of sedition. (victim need not be person in authority) c. That there is no public uprising.
Example of the first form of direct assault: Three men broke into a National Food Authority warehouse and lamented sufferings of the people. They called on people to help themselves to all the rice. They did not even help themselves to a single grain. The crime committed was direct assault. There was no robbery for there was no intent to gain. The crime is direct assault by committing acts of sedition under Article 139 (5), that is, spoiling of the property, for any political or social end, of any person municipality or province or the national government of all or any its property, but there is no public uprising.
ELEMENTS OF THE 2ND FORM OF DIRECT ASSAULT: a. That the offender (a) makes an attack, (b) employs force, (c) makes a serious intimidation, or (d) makes a serious resistance. b. That the person assaulted is a person in authority or his agent.
c.
That at the time of the assault the person in authority or his agent (a) is engaged in the actual performance of official duties (motive is not essential), or that he is assaulted (b) by reason of the past performance of official duties (motive is essential).
d.
That the offender knows that the one he is assaulting is a person in authority or his agent in the exercise of his duties (with intention to offend, injure or assault). e. That there is no public uprising.
Crime of direct assault can only be committed by means of dolo. It cannot be committed by culpa.
Always complexed with the material consequence of the act (e.g. direct assault with murder) except if resulting in a light felony, in which case, the consequence is absorbed
Page 52 of 224
Hitting the policeman on the chest with fist is not direct assault because if done against an agent of a person in authority, the force employed must be of serious character The force employed need not be serious when the offended party is a person in authority (ex. Laying of hands) The intimidation or resistance must be serious whether the offended party is an agent only or a person in authority (ex. Pointing a gun)
Force Employed Need not be serious Must be of serious character Intimidation/Resistance Serious Serious
Person in authority: any person directly vested with jurisdiction (power or authority to govern and execute the laws) whether as an individual or as a member of some court or governmental corporation, board or commission A barangay captain is a person in authority, so is a Division Superintendent of schools, President of Sanitary Division and a teacher
In applying the provisions of Articles 148 and 151, teachers, professors, and persons charged with the supervision of public or duly recognized private schools, colleges and universities and lawyers in the actual performance of their duties or on the occasion of such performance, shall be deemed a person in authority.
Page 53 of 224
Agent: is one who, by direct provision of law or by election or by appointment by competent authority, is charged with the maintenance of public order and the protection and security of life and property. (Example. Barrio councilman and any person who comes to the aid of the person in authority, policeman, municipal treasurer, postmaster, sheriff, agents of the BIR, Malacaang confidential agent) Even when the person in authority or the agent agrees to fight, still direct assault. When the person in authority or the agent provoked/attacked first, innocent party is entitled to defend himself and cannot be held liable for assault or resistance nor for physical injuries, because he acts in legitimate self-defense
The offended party in assault must not be the aggressor. If there is unlawful aggression employed by the public officer, any form of resistance which may be in the nature of force against him will be considered as an act of legitimate defense. (People vs. Hernandez, 59 Phil. 343) There can be no assault upon or disobedience to one authority by another when they both contend that they were in the exercise of their respective duties.
The offender and the offended party are both public officers. The Supreme Court said that assault may still be committed, as in fact the offender is even subjected to a greater penalty (U.S. vs. Vallejo, 11 Phil. 193). When assault is made by reason of the performance of his duty there is no need for actual performance of his official duty when attacked
In direct assault of the first form, the stature of the offended person is immaterial. The crime is manifested by the spirit of lawlessness. In the second form, you have to distinguish a situation where a person in authority or his agent was attacked while performing official functions, from a situation when he is not performing such functions.
If attack was done during the exercise of official functions, the crime is always direct assault. It is enough that the offender knew that the person in authority was performing an official function whatever may be the reason for the attack, although what may have happened was a purely private affair.
On the other hand, if the person in authority or the agent was killed when no longer performing official functions, the crime may simply be the material consequence of he unlawful act: murder or homicide. For the crime to be direct assault, the attack must be by reason of his official function in the past. Motive becomes important in this respect. Example, if a judge was killed while resisting the taking of his watch, there is no direct assault. In the second form of direct assault, it is also important that the offended knew that the person he is attacking is a person in authority or an agent of a person in authority, performing his official functions. No knowledge, no lawlessness or contempt.
Page 54 of 224
Complex crime of direct assault with homicide or murder, or with serious physical injuries.
If the crime of direct assault is committed with the use of force and it resulted in the infliction of slight physical injuries, the latter shall not be considered as a separate offense. It shall be absorbed by the greater crime of direct assault. (People vs. Acierto, 57 Phil. 614) Direct assault cannot be committed during rebellion.
May direct assault be committed upon a private individual? Yes. When a private person comes to the aid of a person in authority, and he is likewise assaulted. Under Republic Act No. 1978, a private person who comes to the aid of a person in authority is by fiction of law deemed or is considered an agent of a person in authority.
c. That the offender makes use of force or intimidation upon such person coming to the aid of the authority or his agent. Indirect assault can be committed only when a direct assault is also committed
Page 55 of 224
To be indirect assault, the person who should be aided is the agent (not the person in authority because it is already direct assault, the person coming to the aid of the person in authority being considered as an agent and an attack on the latter is already direct assault). Example. Aiding a policeman under attack.
The victim in indirect assault should be a private person who comes in aid of an agent of a person in authority. The assault is upon a person who comes in aid of the agent of a person in authority. The victim cannot be the person in authority or his agent. Take note that under Article 152, as amended, when any person comes in aid of a person in authority, said person at that moment is no longer a civilian he is constituted as an agent of the person in authority. If such person were the one attacked, the crime would be direct assault
The act punished is refusal, without legal excuse, to obey summons issued by the House of Representatives or the Senate. If a Constitutional Commission is created, it shall enjoy the same privilege. The exercise by the legislature of its contempt power is a matter of selfpreservation, independent of the judicial branch. The contempt power of the legislature is inherent and sui generis. The power to punish is not extended to the local executive bodies. The reason given is that local legislative bodies are but a creation of law and therefore, for them to exercise the power of contempt, there must be an express grant of the same.
Article 151 RESISTANCE/DISOBEDIENCE TO A PERSON IN AUTHORITY OR THE AGENT OF SUCH PERSON (par. 1)
ELEMENTS:
Page 56 of 224
c.
US vs. Ramayrat, 22 Phil. 183 The Supreme Court held that: the violation does not refer to resistance or disobedience to the legal provisions of the law, nor to judicial decisions defining or declaring the rights and obligations of the parties for the same give reliefs only in the form of civil actions. Rather, the disobedience or resistance is to the orders directly issued by the authorities in the exercise of their official duties.
Direct Assault (148) PIA or his agent must be engaged in the performance of official duties or that he is assaulted Direct assault is committed in 4 ways by attacking, employing force, and seriously resisting a PIA or his agent. Use of force against an agent of PIA must be serious and deliberate. Resistant and Disobedience to a Person in Authority or Agents of such Person (151) PIA or his agent must be in the actual performance of his duties. Committed by resisting or seriously disobeying a PIA or his agent. Use of force against an agent of a PIA is not so serious; no manifest intention to defy the law and the officers enforcing it.
In both resistance against an agent of a person in authority and direct assault by resisting an agent of a person in authority, there is force employed, but the use of force in resistance is not so serious, as there is no manifest intention to defy the law and the officers enforcing it. The attack or employment of force which gives rise to the crime of direct assault must be serious and deliberate; otherwise, even a case of simple resistance to an arrest, which always requires
Page 57 of 224
Persons in Authority any person directly vested with jurisdiction, whether as an individual or as a member of some court or governmental corporation, board or commission. Examples of Persons in Authority : a. Barangay captain b. Barangay chairman c. Municipal mayor d. Provincial fiscal e. Justice of the peace f. Municipal councilor g. Teachers h. Professors i. Persons charged with the supervision of public or duly recognized private schools, colleges and universities j. Lawyers in the actual performance of their professional duties or on the occasion of such performance Agent of Person in Authority any person who, by direct provision of law or by election or by appointment by competent authority, is charged with the maintenance of public order and the protection and security of life and property. Examples of agents of PIA : a. Barrio councilman b. Barrio policeman c. Barangay leader d. Any person who comes to the aid of persons in authority Section 388 of the Local Govt Code provides that for purposes of the RPC, the punong barangay, sangguniang barangay members and members of the lupong tagapamayapa in each barangay shall be deemed as persons in authority in their jurisdictions, while other barangay officials and members who may be designated by law or ordinance and charged with the maintenance of public order, protection
Page 58 of 224
When the offended party is a person in authority and while being assaulted, a private individual comes to his rescue, such private individual, by operation of law, mutates mutandis becomes an agent of a person in authority. Any assault committed against such person is direct assault, and not indirect assault. But if the person assaulted is an agent of a person in authority, and a private individual comes to his rescue and is himself assaulted while giving the assistance, as earlier discussed, the crime committed is indirect assault.
CRIMES AGAINST PUBLIC DISORDERS Article 153 TUMULTS AND OTHER DISTURBANCES OF PUBLIC ORDER TYPES:
a. Causing any serious disturbance in a public place, office or establishment
b.
Interrupting or disturbing public performances, functions, gatherings or peaceful meetings, if the act is not included in Art 131 and 132 (Public Officers interrupting peaceful meetings or religious worship). c. Making any outcry tending to incite rebellion or sedition in any meeting, association or public place d. Displaying placards or emblems which provoke a disturbance of public order in such place e. Burying with pomp the body of a person who has been legally executed.
If the act of disturbing or interrupting a meeting or religious ceremony is NOT committed by public officers, or if committed by public officers who are not participants therein, this article applies. Art 131 and 132 punishes the same acts if committed by public officers who are NOT participants in the meeting The outcry is merely a public disorder if it is an unconscious outburst which, although rebellious or seditious in nature, is not intentionally calculated to induce others to commit rebellion or sedition, otherwise, its inciting to rebellion or sedition.
Page 59 of 224
This article should be distinguished from inciting to rebellion or sedition as discussed under Article 138 and 142. In the former, the meeting is legal and peaceful. It becomes unlawful only because of the outcry made, which tends to incite rebellion or sedition in the meeting. In the latter case, the meeting is unlawful from the beginning and the utterances made are deliberately articulated to incite others to rise publicly and rebel against the government. What makes it inciting to rebellion or sedition is the act of inciting the audience to commit rebellion or sedition.
Tumultuous if caused by more than 3 persons who are armed or provided with means of violence (circumstance qualifying the disturbance/interruption) tumultuous in character
The essence is creating public disorder. This crime is brought about by creating serious disturbances in public places, public buildings, and even in private places where public functions or performances are being held. For a crime to be under this article, it must not fall under Articles 131 (prohibition, interruption, and dissolution of peaceful meetings) and 132 (interruption of religious worship).
In the act of making outcry during speech tending to incite rebellion or sedition, the situation must be distinguished from inciting to sedition or rebellion. If the speaker, even before he delivered his speech, already had the criminal intent to incite the listeners to rise to sedition, the crime would be inciting to sedition. However, if the offender had no such criminal intent, but in the course of his speech, tempers went high and so the speaker started inciting the audience to rise in sedition against the government, the crime is disturbance of the public order. The disturbance of the pubic order is tumultuous and the penalty is increased if it is brought about by armed men. The term armed does not refer to firearms but includes even big stones capable of causing grave injury.
It is also disturbance of the public order if a convict legally put to death is buried with pomp. He should not be made out as a martyr; it might incite others to hatred.
The crime of disturbance of public order may be committed in a public or private place. If committed in a private place, the law is violated only where the disturbance is made while a public function or performance is going on. Without a public gathering in a private place, the crime cannot be committed.
The article also punishes any person who knowingly publishes official acts or documents which are not officially promulgated.
Page 61 of 224
Charivari mock serenade or discordant noises made with kettles, tin horns etc, designed to deride, insult or annoy
When a person discharges a firearm in public, the act may constitute any of the possible crimes under the Revised Penal Code: (1) (2) (3) Alarms and scandals if the firearm when discharged was not directed to any particular person; Illegal discharge of firearm under Article 254 if the firearm is directed or pointed to a particular person when discharged but intent to kill is absent; Attempted homicide, murder, or parricide if the firearm when discharged is directed against a person and intent to kill is present.
In this connection, understand that it is not necessary that the offended party be wounded or hit. Mere discharge of firearm towards another with intent to kill already amounts to attempted homicide or attempted murder or attempted parricide. It can not be frustrated because the offended party is not mortally wounded. In Araneta v. Court of Appeals, it was held that if a person is shot at and is wounded, the crime is automatically attempted homicide. Intent to kill is inherent in the use of the deadly weapon. (4) Grave Threats If the weapon is not discharged but merely pointed to another (5) Other Light Threats If drawn in a quarrel but not in self defense
CRIME Tumults and other Disturbances (153) Alarms and Scandals (155)
Nature of Crime Crime against Public Order Crime against Public Order
b.
That the offender removes therefor such person, or helps the escape of such person (if the escapee is serving final judgement, he is guilty of evasion of sentence). c. Offender is a private individual
Even if the prisoner is in the hospital or asylum or any place for detention of prisoner, as long as he is classified as a prisoner, that is, a formal complaint or information has been filed in court, and he has been officially categorized as a prisoner, this article applies, as such place is considered extension of the penal institution. A policeman assigned to the city jail as guard who while off-duty released a prisoner is liable here
Even if the prisoner returned to the jail after several hours, the one who removed him from jail is liable. It may be committed through negligence Circumstances qualifying the offense is committed by means of violence, intimidation or bribery. Mitigating circumstance if it takes place outside the penal establishment by taking the guards by surprise
correlate the crime of delivering person from jail with infidelity in the custody of prisoners punished under Articles 223, 224 and 225 of the Revised Penal Code. In both acts, the offender may be a public officer or a private citizen. Do not think that infidelity in the custody of prisoners can only be committed by a public officer and delivering persons from jail can only be committed by private person. Both crimes may be committed by public officers as well as private persons. In both crimes, the person involved may be a convict or a mere detention prisoner. The only point of distinction between the two crimes lies on whether the offender is the custodian of the prisoner or not at the time the prisoner was made to escape.
If the offender is the custodian at that time, the crime is infidelity in the custody of prisoners. But if the offender is not the custodian of the prisoner at that time, even though he is a public officer, the crime he committed is delivering prisoners from jail.
Page 63 of 224
It is possible that several crimes may be committed in one set of facts. For instance, assuming that Pedro, the jail warden, agreed with Juan to allow Maria to escape by not locking the gate of the city jail. Provided that Juan comes across with P5,000.00 pesos as bribe money. The arrangement was not known to Maria but when she noticed the unlocked gate of the city jail she took advantage of the situation and escaped. From the facts given, there is no question that Pedro, as the jail warden, is liable for the crime of infidelity in the custody of the prisoner. He will also be able for the crime of bribery. Juan will be liable for the crime of delivering a prisoner from jail and for corruption of public official under Art. 212. If Maria is a sentenced prisoner, she will be liable for evasion of service of sentence under Article 157. if she is a detention prisoner, she commits no crime.
(3)
Page 64 of 224
b. c.
By the very nature of the crime, it cannot be committed when the prisoner involved is merely a detention prisoner. But it applies to persons convicted by final judgment with a penalty of destierro.
A detention prisoner even if he escapes from confinement has no criminal liability. Thus, escaping from his prison cell when his case is still on appeal does not make said prisoner liable for Evasion of Service of Sentence.
In leaving or escaping from jail or prison, that the prisoner immediately returned is immaterial. It is enough that he left the penal establishment by escaping therefrom. His voluntary return may only be mitigating, being analogous to voluntary surrender. But the same will not absolve his criminal liability.
A continuing offense. Offenders not minor delinquents nor detention prisoners If escaped within the 15 day appeal period no evasion No applicable to deportation as the sentence
The crime of evasion of service of sentence may be committed even if the sentence is destierro, and this is committed if the convict sentenced to destierro will enter the prohibited places or come within the prohibited radius of 25 kilometers to such places as stated in the judgment. If the sentence violated is destierro, the penalty upon the convict is to be served by way of destierro also, not imprisonment. This is so because the penalty for the evasion can not be more severe than the penalty evaded.
Circumstances qualifying the offense (done thru): a. unlawful entry (by scaling) b. c. d. breaking doors, windows, gates, walls, roofs or floors using picklocks, false keys, disguise, deceit, violence or intimidation connivance with other convicts or employees of the penal institution
Page 65 of 224
Article 158 EVASION OF SERVICE OF SENTENCE ON THE OCCASION OF DISORDERS, CONFLAGRATIONS, EARTHQUAKES OR OTHER CALAMITIES
ELEMENTS : a. That the offender is a convict by final judgement who is confined in a penal institution. b. That there is disorder, resulting from- 1. conflagration, 2. earthquake, or 3. explosion, or 4. similar catastrophe, or 5. mutiny , not participated. That the offender evades the service of his sentence by leaving the penal institution where he is confined, on the occasion of such disorder or during the mutiny. That the offender fails to give himself up to the authorities within 48 hours following the issuance of a proclamation by the chief executive announcing the passing away of such calamity.
c.
d.
The leaving from the penal establishment is not the basis of criminal liability. It is the failure to return within 48 hours after the passing of the calamity, conflagration or mutiny had been announced. Under Article 158, those who return within 48 hours are given credit or deduction from the remaining period of their sentence equivalent to 1/5 of the original term of the sentence. But if the prisoner fails to return within said 48 hours, an added penalty, also 1/5, shall be imposed but the 1/5 penalty is based on the remaining period of the sentence, not on the original sentence. In no case shall that penalty exceed six months.
Those who did not leave the penal establishment are not entitled to the 1/5 credit. Only those who left and returned within the 48-hour period.
For such event to be considered as a calamity, the President must declared it to be so. He must issue a proclamation to the effect that the calamity is over. Even if the events herein mentioned may be
Page 66 of 224
The mutiny referred to in the second form of evasion of service of sentence does not include riot. The mutiny referred to here involves subordinate personnel rising against the supervisor within the penal establishment. One who escapes during a riot will be subject to Article 157, that is, simply leaving or escaping the penal establishment.
Violation attributed to the accused is no longer referred to the court for judicial inquiry or resolution. The law has provided sufficient guidelines for the jail warden to follow. This disquisition will not apply if the offender who escapes taking advantage of the calamities enumerated herein is apprehended by the authorities after 48 hours from the declaration that the calamity is over. It is only extended to one who returns but made inside the 48 hours delimited by the proclamation. At this stage, the violation is not substantive but administrative in nature.
Condition extends to special laws violation of illegal voting The condition imposed upon the prisoner not to be guilty of another crime is not limited to those punishable under the Revised Penal Code. It includes those punished under Special Law. (People vs. Corral, 74 Phil. 357).
In violation of conditional pardon, as a rule, the violation will amount to this crime only if the condition is violated during the remaining period of the sentence.
Page 67 of 224
The administrative liability of the convict under the conditional pardon is different and has nothing to do with his criminal liability for the evasion of service of sentence in the event that the condition of the pardon has been violated. Exception: where the violation of the condition of the pardon will constitute evasion of service of sentence, even though committed beyond the remaining period of the sentence. This is when the conditional pardon expressly so provides or the language of the conditional pardon clearly shows the intention to make the condition perpetual even beyond the unserved portion of the sentence. In such case, the convict may be required to serve the unserved portion of the sentence even though the violation has taken place when the sentence has already lapsed.
Offender must have been found guilty of the subsequent offense before he can be prosecuted under this Article. But if under Revised Admin Code, no conviction necessary. President has power to arrest, reincarnate offender without trial
Article 159 is a distinct felony. It is a substantive crime. For one to suffer the consequence of its violation, the prisoner must be formally charged in court. He will be entitled to a full blown hearing, in full enjoyment of his right to due process. Only after a final judgment has been rendered against him may he suffer the penalty prescribed under Article 159 (Torres vs. Gonzales, et al., 152 SCRA 292) VIOLATION OF PARDON Infringement of conditions/terms of President ORDINARY EVASION To evade the penalty given by the courts disturbs the public order
Two penalties provided: a. prision correccional in its minimum period if the penalty remitted does not exceed 6 years
b.
the unexpired portion of his original sentence if the penalty remitted is higher than 6 years
COMMISSION OF ANOTHER CRIME Article 160 COMMISSION OF ANOTHER CRIME DURING SERVICE OF PENALTY IMPOSED FOR ANOTHER PREVIOUS OFFENSE-PENALTY: (quasirecidivism)
ELEMENTS a. That the offender was already convicted by final judgement of one offense.
Page 68 of 224
Quasi-recidivism : a person after having been convicted by final judgement shall commit a new felony before beginning to serve such sentence, or while serving the same. Second crimes must belong to the RPC, not special laws. First crime may be either from the RPC or special laws Reiteracion: offender shall have served out his sentence for the prior offense A quasi-recidivist may be pardoned at age 70. Except: Unworthy or Habitual Delinquent If new felony is evasion of sentence offender is not a quasi-recidivist Penalty: maximum period of the penalty for the new felony should be imposed
Quasi-recidivism is a special aggravating circumstance which directs the court to impose the maximum period of the penalty prescribed by law for the new felony. The court will do away or will ignore mitigating and aggravating circumstances in considering the penalty to be imposed. There will be no occasion for the court to consider imposing the minimum, medium or maximum period of the penalty. The mandate is absolute and is justified by the finding that the accused is suffering from some degree of moral perversity if not total incorrigibility. (People vs. Alicia, et al., 95 SCRA 227) Quasi-recidivism is an aggravating circumstance which cannot be offset by any mitigating circumstance. To be appreciated as a special aggravating circumstance, it must be alleged in the information. (People vs. Bautista, 65 SCRA 460) Quasi-Recidivism may be offset by a special privileged mitigating circumstance (ex. Minority)
Page 69 of 224
7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23.
Page 70 of 224
The crimes in this title are in the nature of fraud or falsity to the public. The essence of the crime under this title is that which defraud the public in general. There is deceit perpetrated upon the public. This is the act that is being punished under this title.
TYPES:
a. b. c. Forging the great seal of the Government Forging the signature of the President Forging the stamp of the President
When the signature of the President is forged, it is not falsification but forging of signature under this article Signature must be forged, others signed it not the President.
Page 71 of 224
Coin is counterfeit if it is forged, or if it is not an article of the government as legal tender, regardless if it is of no value
Kinds of coins the counterfeiting of which is punished 1. 2. 3. Silver coins of the Philippines or coins of the Central Bank of the Philippines; Coins of the minor coinage of the Philippines or of the Central Bank of the Philippines; Coin of the currency of a foreign country.
Counterfeiting imitation of legal or genuine coin (may contain more silver, different design) such as to deceive an ordinary person in believing it to be genuine Utter to pass counterfeited coins, deliver or give away Import to bring to port the same Both Philippine and foreign state coins Applies also to coins withdrawn from circulation Essence of article: making of coins without authority
1. 2.
Acts punished Mutilating coins of the legal currency, with the further requirements that there be intent to damage or to defraud another; Importing or uttering such mutilated coins, with the further requirement that there must be connivances with the mutilator or importer in case of uttering.
Page 72 of 224
(3)
In so far as coins in circulation are concerned, there are two crimes that may be committed: (1) Counterfeiting coins -- This is the crime of remaking or manufacturing without any authority to do so.
In the crime of counterfeiting, the law is not concerned with the fraud upon the public such that even though the coin is no longer legal tender, the act of imitating or manufacturing the coin of the government is penalized. In punishing the crime of counterfeiting, the law wants to prevent people from trying their ingenuity in their imitation of the manufacture of money. (2) Mutilation of coins -- This refers to the deliberate act of diminishing the proper metal contents of the coin either by scraping, scratching or filling the edges of the coin and the offender gathers the metal dust that has been scraped from the coin.
Requisites of mutilation under the Revised Penal Code (1) (2) (3) Coin mutilated is of legal tender; Offender gains from the precious metal dust abstracted from the coin; and It has to be a coin. There is no expertise involved here. In mutilation of coins under the Revised Penal Code, the offender does nothing but to scrape, pile or cut the coin and collect the dust and, thus, diminishing the intrinsic value of the coin.
Mutilation of coins is a crime only if the coin mutilated is legal tender. If it is not legal tender anymore, no one will accept it, so nobody will be defrauded. But if the coin is of legal tender, and the offender minimizes or decreases the precious metal dust content of the coin, the crime of mutilation is committed. The offender must deliberately reduce the precious metal in the coin. Deliberate intent arises only when the offender collects the precious metal dust from the mutilated coin. If the offender does not collect such dust, intent to mutilate is absent, but Presidential Decree No. 247 will apply.
Article 164
MULTILATION OF COINS IMPORTATION AND UTTERANCE:
Page 73 of 224
Mutilation to take off part of the metal either by filling it or substituting it for another metal of inferior quality, to diminish by inferior means (to diminish metal contents). Foreign notes and coins not included. Must be legal tender. Must be intention to mutilate.
Mutilation under the Revised Penal Code is true only to coins. It cannot be a crime under the Revised Penal Code to mutilate paper bills because the idea of mutilation under the code is collecting the precious metal dust. However, under Presidential Decree No. 247, mutilation is not limited to coins. Questions & Answers 1. The people playing cara y cruz, before they throw the coin in the air would rub the money to the sidewalk thereby diminishing the intrinsic value of the coin. Is the crime of mutilation committed? Mutilation, under the Revised Penal Code, is not committed because they do not collect the precious metal content that is being scraped from the coin. However, this will amount to violation of Presidential Decree No. 247. 2. When the image of Jose Rizal on a five-peso bill is transformed into that of Randy Santiago, is there a violation of Presidential Decree No. 247? Yes. Presidential Decree No. 247 is violated by such act. 4. An old woman who was a cigarette vendor in Quiapo refused to accept onecentavo coins for payment of the vendee of cigarettes he purchased. Then came the police who advised her that she has no right to refuse since the coins are of legal tender. On this, the old woman accepted in her hands the one-centavo coins and then threw it to the face of the vendee and the police. Was the old woman guilty of violating Presidential Decree No. 247? She was guilty of violating Presidential Decree No. 247 because if no one ever picks up the coins, her act would result in the diminution of the coin in circulation.
Page 74 of 224
a.
Possession of coin, counterfeited or mutilated by another person, with intent to utter the same, knowing that it is false or mutilated. ELEMENTS: 1. possession 2. 3. with intent to utter, and knowledge
b.
Actually uttering such false or mutilated coin, knowing the same to be false or mutilated. ELEMENTS: 1. actually uttering, and 2. knowledge.
Possession does not require legal tender in foreign coins Includes constructive possession
On counterfeiting coins, it is immaterial whether the coin is legal tender or not because the intention of the law is to put an end to the practice of
Page 75 of 224
Forging by giving a treasury or bank note or document payable to bearer/order an appearance of a true and genuine document Falsification by erasing, substituting, counterfeiting or altering by any means the figures and letters, words, signs contained therein E.g. falsifying lotto or sweepstakes ticket. Attempted estafa through falsification of an obligation or security of the Phil PNB checks not included here its falsification of commercial document under Article 172 Obligation or security includes: bonds, certificate of indebtedness, bills, national bank notes, coupons, treasury notes, certificate of deposits, checks, drafts for money, sweepstakes money
If the falsification is done on a document that is classified as a government security, then the crime is punished under Article 166. On the other hand, if it is not a government security, then the offender may either have violated Article 171 or 172.
Article 167 COUNTERFEITING, IMPORTING, AND UTTERING INSTRUMENTS NOT PAYABLE TO BEARER
ELEMENTS : a. That there be an instrument payable to order or other document of credit not payable to bearer.
Page 76 of 224
Article 168 ILLEGAL POSSESSION AND USE OF FALSE TREASURY OR BANK NOTES AND OTHER INSTRUMENT OF CREDIT
ELEMENTS: a. That any treasury or bank note or certificate or other obligation and security payable to bearer, or any instrument payable to order or other document of credit not payable to bearer is forged or falsified by another person. b. c. That the offender knows that any of those instruments is forged or falsified. That he performs any of these acts 1. using any of such forged or falsified instrument, or 2. possessing with intent to use any of such forged or falsified instrument.
Act sought to be punished: Knowingly possessing with intent to use any of such forged treasury or bank notes
if all acts done but genuine appearance is not given, the crime is frustrated
Forgery under the Revised Penal Code applies to papers, which are in the form of obligations and securities issued by the Philippine government as its own obligations, which is given the same status as legal tender. Generally, the word counterfeiting is not used when it comes to notes; what is used is forgery. Counterfeiting refers to money, whether coins or bills. Notice that mere change on a document does not amount to this crime. The essence of forgery is giving a document the appearance of a true and genuine document. Not any alteration of a letter, number, figure or design would amount to forgery. At most, it would only be frustrated forgery.
Page 77 of 224
Page 78 of 224
The crime of falsification must involve a writing that is a document in the legal sense. The writing must be complete in itself and capable of extinguishing an obligation or creating rights or capable of becoming evidence of the facts stated therein. Until and unless the writing has attained this quality, it will not be considered as document in the legal sense and, therefore, the crime of falsification cannot be committed in respect thereto. Distinction between falsification and forgery: Falsification is the commission of any of the eight acts mentioned in Article 171 on legislative (only the act of making alteration), public or official, commercial, or private documents, or wireless, or telegraph messages. The term forgery as used in Article 169 refers to the falsification and counterfeiting of treasury or bank notes or any instruments payable to bearer or to order. Note that forging and falsification are crimes under Forgeries.
The words "municipal council" should include the city council or municipal board Reyes.
Accused must not be a public official entrusted with the custody or possession of such document otherwise Art 171 applies .
The falsification must be committed on a genuine, true and authentic legislative document. If committed on a simulated, spurious or fabricated legislative document, the crime is not punished under this article but under Article 171 or 172.
Requisites: i. That there be an intent to imitate, or an attempt to imitate ii. That the two signatures or handwritings, the genuine and the forged, bear some resemblance, to each other (lack of similitude/imitation of a genuine signature will not be a ground for conviction under par. 1 but such is not an impediment to conviction under par. 2) 2. Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate. 3. Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them. Requisites: i. That the offender caused it to appear in a document that a person/s participated in an act or a proceeding; and ii. 4. That such person/s did not in fact so participate in the act or proceeding
Requisites: i. That the offender makes in a document statements in a narration of facts ii. iii. That he has a legal obligation to disclose the truth of the facts narrated by him; (required by law to be done) and That the facts narrated by the offender are absolutely false; and
Page 80 of 224
There must be a narration of facts, not a conclusion of law. Must be on a material matter For one to be held criminally liable for falsification under paragraph 4, the untruthful statement must be such as to effect the integrity of the document or to change the effects which it would otherwise produce. Legal obligation means that there is a law requiring the disclosure of the truth of the facts narrated. Ex. Residence certificates The person making the narration of facts must be aware of the falsity of the facts narrated by him. This kind of falsification may be committed by omission 5. Altering true dates. date must be essential For falsification to take place under this paragraph, the date of the document must be material to the right created or to the obligation that is extinguished. 6. Making any alteration or intercalation in a genuine document which changes its meaning. Requisites: i. That there be an alteration (change) or intercalation (insertion) on a document ii. iii. iv. That it was made on a genuine document That the alteration/intercalation has changed the meaning of the document That the change made the document speak something false.
7.
Issuing in an authenticated form a document purporting to be a copy of an original document when no such original exists, or including in such copy a statement contrary to, or different from, that of the genuine original; (if no knowledge, falsification through negligence) or
Page 81 of 224
d.
In case the offender is an ecclesiastical minister, the act of falsification is committed with respect to any record or document of such character that its falsification may affect the civil status of persons. There is no crime of attempted or frustrated falsification of public document
Alteration or changes to make the document speak the truth do not constitute falsification. (US vs. Mateo, 25 Phil. 324)
Either he has duty to intervene in the preparation of the document or it may be a situation wherein the public officer has official custody of the document.
So even if the offender is a public officer, if her causes the falsification of a document which is not in his official custody or if the falsification committed by him is not related whatsoever to the performance of his duties, he will still be liable for falsification but definitely not under this Article but under Article 172. (falsification of documents by a private person)
Not necessary that what is falsified is a genuine or real document, enough that it gives an appearance of a genuine article
Page 82 of 224
Counterfeiting imitating any handwriting, signature or rubric Feigning simulating a signature, handwriting, or rubric out of one of which does not in fact exist
It does not require that the writing be genuine. Even if the writing was through and through false, if it appears to be genuine, the crime of falsification is nevertheless committed. There are four kinds of documents: (1) (2) (3) (4) Public document in the execution of which, a person in authority or notary public has taken part; Official document in the execution of which a public official takes part; Commercial document or any document recognized by the Code of Commerce or any commercial law; and Private document in the execution of which only private individuals take part.
Public document is broader than the term official document. Before a document may be considered official, it must first be a public document. But not all public documents are official documents. To become an official document, there must be a law which requires a public officer to issue or to render such document. Example: A cashier is required to issue an official receipt for the amount he receives. The official receipt is a public document which is an official document.
Liability of a private individual in falsification by a public officer when there is conspiracy. Under Republic Act 7975, when a public officer who holds a position classified as Grade 27 or higher, commits a crime in relation to the performance of his official functions, the case against him will fall under the jurisdiction of the Sandiganbayan. If a private person is included in the accusation because of the existence of conspiracy in the commission of the crime, the Sandiganbayan shall maintain jurisdiction over the person of the co-accused, notwithstanding the fact that said co-accused is a private individual. If the public officer is found guilty, the same liability and penalty shall be imposed on the private individual. (U.S. vs. Ponce, 20 Phil. 379)
Article 172 FALSIFICATION OF PUBLIC, OFFICIAL, OR COMMERCIAL DOCUMENT BY A PRIVATE INDIVIDUAL (par 1) Page 83 of 224
2. Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participated. 3. Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them. 4. 5. Making untruthful statements in a narration of facts; Altering true dates.
6. Making any alteration or intercalation in a genuine document which changes its meaning. c. That the falsification was committed in any public or official or commercial document.
If the falsification of public, official or commercial documents, whether they be public official or by private individuals, it is not necessary that there be present the idea of gain or the intent to injure a third person. What is punished under the law is the violation of public faith and the perversion of the truth as solemnly proclaimed by the nature of the document. (Sarep vs. Sandiganbayan)
Defense: lack of malice or criminal intent The following writings are public: a. the written acts or records of acts of the sovereign authority of official bodies and tribunals, and of the public officers, legislative, judicial and executive, whether of the Philippines or of a foreign country. b. Public records kept in the Philippines.
Examples of commercial documents warehouse receipts, airway bills, bank checks, cash files, deposit slips and bank statements, journals, books, ledgers, drafts, letters of credit and other negotiable instruments
Page 84 of 224
b. c.
That the falsification was committed in any private document (must affect the truth or integrity of the document) That the falsification caused damage (essential element; hence, no crime of estafa thru falsification of private document) to a third party or at least the falsification was committed with intent to cause such damage. Not necessary that the offender profited or hoped to profit from the falsification
Falsification of a private document is consummated when such document is actually falsified with the intent to prejudice a third person whether such falsified document is or is not thereafter put to illegal use for which it is intended. (Lopez vs. Paras, 36 Phil. 146)
Page 85 of 224
There is no falsification through reckless imprudence if the document is a private document. Falsification by omission
Mere falsification of a private document is not enough to commit crime under paragraph 2 of Article 172. Two acts must be done by the offender. 1) He must have performed in the private document the falsification contemplated under Article 171. 2) He must have performed an independent act which operates to cause damage or prejudice to a third person. The third person mentioned herein may include the government. Damage is not limited to money or pecuniary prejudice. Damage to ones honor, reputation or good name is included. A document falsified as a necessary means to commit another crime must be public, official or commercial There is no complex crime of estafa through falsification of a private document because the immediate effect of the latter is the same as that of estafa
If a private document is falsified to cause damage to the offended party, the crime committed is falsification of a private document. Remember that in estafa, damage or intent to cause damage is an indispensable element of the crime. The same element is necessary to commit the crime of falsification of private document. Since they have a common element, such element cannot be divided into the two parts and considered as two separate offenses. There is no complex crime of estafa with falsification because deceit is a common element of both. One and the same deceit or damage cannot give rise to more than one crime. It is either estafa or falsification. Criteria to determine whether the crime is estafa only or falsification only : IF the falsification of the private document was essential in the commission of estafa because the falsification, estafa cannot be committed, the crime is falsification; estafa becomes the consequence of the crime.
Page 86 of 224
A private document which is falsified to obtain money from offended party is a falsification of private document only. A private document may acquire the character of a public document when it becomes part of an official record and is certified by a public officer duly authorized by law The crime is falsification of public documents even if falsification took place before the private document becomes part of the public records
Examples:
An employee of a private company who punches the bundy clock on behalf on a co-employee is guilty of falsification of a private document. One who will take the civil service examination for another and makes it appear that he is the examinee is guilty of falsification of a public document.
3.
b.
That he introduced said document in evidence in any judicial proceeding. (intent to cause damage not necessary) Use in any other transaction: 1. That the offender knew that a document was falsified by another person.
Page 87 of 224
3.
4. That the use of the documents caused damage to another or at least was used with intent to cause such damage. The user of the falsified document is deemed the author of falsification, if: a. the use is so closely connected in time with the falsification b. the user had the capacity of falsifying the document Falsification of Public/Official Documents Prejudice to third persons is immaterial, what is punished is the violation of public faith and perversion of truth which the document proclaims.
Rules to observe in the use of a falsified document. 1. It is a crime when knowingly introduced in a judicial proceeding even if there is not intent to cause damage to another. Knowingly introducing a falsified document in a judicial proceeding, the use alone is not a crime. The mere introduction of the forged document is the crime itself. But when the falsified document is knowingly introduced in an administrative proceeding, the use alone is not a crime. There must be intent to cause damage or damage is actually inflicted. 2. Falsification of document is a separate and distinct offense from that of the use of falsified documents. So if the falsification of document was done or performed because it was necessary to the use of the same and in the commission of the crime, then we may have a complex crime defined and punished under Article 48 of the Revised Penal Code. 3. Good faith is a defense in falsification of public document.
Article 173 FALSIFICATION OF WIRELESS, CABLE, TELEGRAPH, AND TELEPHONE MESSAGES, AND USE OF SAID FALSIFIED MESSAGES
Acts punishable: 1. Uttering fictitious, wireless, telegraph or telephone message Requisites: a. That the offender is an officer or employee of the government or an officer or employee of a private corporation,
Page 88 of 224
2.
Falsifying wireless, telegraph or telephone message Requisites: a. That the offender is an officer or employee of the government or an officer or employee of a private corporation, engaged in the service of sending or receiving wireless, cable or telephone message.
b.
That the accused commits any of the following acts: uttering fictitious wireless, cable, telegraph, or telephone message, or falsifying wireless, cable, telegraph, or telephone message
3.
Using such falsified message Requisites: a. That the accused knew that wireless, cable, telegraph, or telephone message was falsified by any of the person specified in the first paragraph of art. 173. b. That the accused used such falsified dispatch.
c. That the use of the falsified dispatch resulted in the prejudice of a third party, or that the use thereof was with intent to cause such prejudice. The public officer, to be liable must be engaged in the service of sending or receiving wireless, cable and telegraph or telephone message
Article 174 FALSIFICATION OF MEDICAL CERTIFICATES, CERTIFCATES OF MERIT OR SERVICE AND THE LIKE:
Persons liable: a. Physician or surgeon who, in connection with the practice of his profession, issued a false certificate (note: such certificate must refer to the illness or injury of a person) b. Public officer who issued a false certificate of merit of service, good conduct or similar circumstances
Page 89 of 224
OF
INTRUMENTS
OR
Acts punishable: a. Making or introducing into the Philippines any stamps, dies or marks or other instruments or implements for counterfeiting or falsification b. Possessing with intent to use the instruments or implements for counterfeiting or falsification made in or introduced into the Philippines by another person
The implement confiscated need not form a complete set Constructive possession is also punished
Page 90 of 224
In usurpation of authority: The mere act of knowingly and falsely representing oneself is sufficient. Not necessary that he performs an act pertaining to a public officer.
Elements 1. 2. Offender knowingly and falsely represents himself; As an officer, agent or representative of any department or agency of the Philippine government or of any foreign government.
In usurpation of official functions: It is essential that the offender should have performed an act pertaining to a person in authority
Elements 1. 2. 3. 4. Offender performs any act; Pertaining to any person in authority or public officer of the Philippine government or any foreign government, or any agency thereof; Under pretense of official position; Without being lawfully entitled to do so.
A public officer may also be an offender The act performed without being lawfully entitled to do so must pertain: a. to the govt b. to any person in authority c. to any public office
Foreign government adverted to in this article refers to public officers duly authorized to perform governmental duties in the Philippines. The law cannot refer to other foreign governments as its application may bring us to legal problems which may infringe on constitutional boundaries. If the offender commits the acts of usurpation as contemplated herein, and he does it because he is a rebel and pursuant to the crime of rebellion or insurrection or sedition, he will not be liable under this article because what is attributed against him as a crime of usurpation is in fact one of the elements of committing rebellion. The elements of false pretense is necessary to commit the crime of usurpation of official function.
Page 91 of 224
The name of a person is what appears in his birth certificate. The name of a person refers to his first name, surname, and maternal name. Any other name which a person publicly applies to himself without authority of law is a fictitious name. ELEMENTS (concealing true name): a. that the offender conceals 1. 2. b. his true name, and all other personal circumstances. that the purpose is only to conceal his identity.
What the offender does to violate or commit this act is for him to conceal his true name and other personal circumstances. His only motive in doing so is to conceal his identity. In concealment of true name, the deception is done momentarily, just enough to conceal the name of the offender. In the use of fictitious name, the offender presents himself before the public with another name. A person under investigation by the police who gives a false name and false personal circumstances, upon being interrogated, is guilty of this crime. Use of Fictitious Name (178) Concealing True Name (178) Element of publicity must be present Publicity not necessary Purpose is to conceal a crime, to evade Purpose is to conceal identity the execution of a judgement, or to cause damage
Commonwealth Act No. 142 (Regulating the Use of Aliases)
Page 92 of 224
The wearing of a uniform, or insignia of a non-existing office or establishment is not a crime. It is necessary that the uniform or insignia represents an office which carries authority, respect, dignity, or influence which the public looks up to.
So also, an exact imitation of a uniform or dress is unnecessary; a colorable resemblance calculated to deceive the common run of people is sufficient.
The wearing of insignia, badge or emblem of rank of the members of the armed forced of the Philippines or constabulary (now PNP) is punished by Republic Act No. 493. When the uniform or insignia is used to emphasize the pageantry of a play or drama or in moving picture films, the crime is not committed.
False testimony, defined It is the declaration under oath of a witness in a judicial proceeding which is contrary to what is true, or to deny the same, or to alter essentially the truth. Nature of the crime of false testimony. 1. It cannot be committed through reckless imprudence because false testimony requires criminal intent or intent to violate the law is an essential element of the crime.
Page 93 of 224
d.
Requires criminal intent, cant be committed through negligence. Need not impute guilt upon the accused The defendant must at least be sentenced to a correctional penalty or a fine or must have been acquitted The witness who gave false testimony is liable even if the court did not consider his testimony
The probative value of the testimonial evidence is subject to the rules of evidence. It may not be considered at all by the judge. But whether the testimony is credible or not or whether it is appreciated or not in the context that the false witness wanted it to be, the crime of false testimony is still committed, since it is punished not because of the effect it produces, but because of its tendency to favor the accused. (People vs. Reyes) Penalty is dependent upon sentence imposed on the defendant
Page 94 of 224
Not applicable when testimony given in a special proceeding (in this case, the crime is perjury) Basis of penalty: amount involved in the civil case testimony: FALSE TESTIMONY 1. Given in a judicial proceeding. 2. Testimony need not be required by law. 3. Amount involved in civil cases is material. 4. It is always material in criminal
Distinctions between perjury and false PERJURY 1. Non-judicial proceedings. 2. Statement or testimony is required by law. 3. Amount involved is not material. 4. immaterial whether statement or
Page 95 of 224
2 ways of committing perjury: a. by falsely testifying under oath b. by making a false statement Subornation of perjury: procures another to swear falsely. Solemn affirmation: refers to non-judicial proceedings and affidavits A false affidavit to a criminal complaint may give rise to perjury
Two contradictory sworn statements are not sufficient to convict the affiant for the crime of perjury. There must be evidence to show which is false. The same must be established or proved from sources other than the two contradictory statements. (People vs. Capistrano, 40 Phil. 902) A matter is material when it is directed to prove a fact in issue
The test of materiality is whether a false statement can influence the court (People vs. Bnazil).
A competent person authorized to administer an oath means a person who has a right to inquire into the questions presented to him upon matters under his jurisdiction
Page 96 of 224
There is no perjury through negligence or imprudence since the assertion of falsehood must be willful and deliberate
Because of the nature of perjury, which is the willful and corrupt assertion of a falsehood, there is no perjury committed through reckless imprudence or simple negligence under Article 365. Since admittedly perjury can only be committed by means of dolo, then good faith or lack of malice is a good defense when one is indicted for the crime of perjury.
Even if there is no law requiring the statement to be made under oath, as long as it is made for a legal purpose, it is sufficient
If there is no requirement of law to place the statement or testimony under oath, there is no Perjury considering the phrases oath in cases in which the law so requires in Article 183. The affidavit or sworn statement must be required by law like affidavit of adverse claim to protect ones interest on real property; or an affidavit of good moral character to take the bar examination. So if the affidavit was made but the same is not required by law, even if the allegations are false, the crime of perjury is not committed. (Diaz vs. People, 191 SCRA 86) Perjury is an offense which covers false oaths other than those taken in the course of judicial proceedings False testimony before the justice of the peace during the P.I. may give rise to the crime of perjury because false testimony in judicial proceedings contemplates an actual trial where a judgment of conviction or acquittal is rendered A person who knowingly and willfully procures another to swear falsely commits subornation of perjury and the witness suborned does testify under circumstances rendering him guilty of perjury. The false testimony is not in a judicial proceeding
False testimony vs. Perjury When one testifies falsely before the court, the crime committed is false testimony. If one testifies falsely in a non-judicial proceeding, the crime committed is perjury. In false testimony, it is not required that the offender asserts a falsehood on a material matter. It is enough that he testifies falsely with deliberate intent. In perjury, the witness must testify or assert a fact on a material matter with a full knowledge that the information given is
Page 97 of 224
The false witness need not be convicted of false testimony. The mere offer is sufficient.
The offender in this article knows that the witness to be presented is a false witness or that the witness will lie while testifying. The proceedings is either judicial or official. There is a formal offer of testimonial evidence in the proceedings. The witness is able to testify and the offender, knowing the testimony is given by the witness to be false, nevertheless offers the same in evidence. In this case, the person offering the false testimony must have nothing to do in the making of the false testimony. He knows that the witness is false and yet he asks him to testify and thereafter offers the testimony in evidence. So if the offeror, aside from being such, is also the person responsible in inducing or convincing the false witness to lie, Article 184 will not apply. The applicable article will be Article 180, 181, 182, or 183 as the case may be. The offenders in this case will be charged with perjury; the inducer as principal by inducement and the induced party as the principal by direct participation. It is for this reason that subornation of perjury is no longer treated as a specific felony with a separate article of its own. Nevertheless, it is a crime defined and punished under the Revised Penal Code. The crime committed by one who induces another to testify falsely and the person who agrees and in conspiracy with the inducer, testifies falsely, is perjury. (People vs. Padol, 66 Phil. 365)
Page 98 of 224
c That such gifts or promise was the consideration for his refraining from taking part in that public auction. d That the accused had the intent to cause the reduction of the price of the thing auctioned. ELEMENTS OF ATTEMPTING TO CAUSE BIDDERS TO STAY AWAY: a That there be a public auction. b That the accused attempted to cause the bidders to stay away from that public auction c That it was done by threats, gifts, promises, or any other artifice.
d That the accused had the intent to cause the reduction of the price of the thing auctioned.
b.
By entering into a contract or agreement or taking part in any conspiracy or combination in the form of a trust or otherwise, in restraint of trade or commerce or prevent by artificial means free competition in the market (It is enough that initial steps are taken. It is not necessary that there be actual restraint of trade) Monopoly to restrain free competition in the market Elements
c.
Page 99 of 224
2. 3. d.
Manufacturer, producer or processor or importer combining, conspiring or agreeing with any person to make transactions prejudicial to lawful commerce or to increase the market price of the merchandise. Elements 1. 2. 3. Manufacturer, producer, processor or importer of any merchandise or object of commerce; Combines, conspires or agrees with any person; Purpose is to make transactions prejudicial to lawful commerce or to increase the market price of any merchandise or object of commerce manufactured, produced, processed, assembled or imported into the Philippines.
Person/s liable: a. manufacturer b. producer c. processor d. importer Crime is committed by: a. combining b. conspiring c. agreeing with another person The purpose is: a. to make transactions prejudicial to lawful commerce b. to increase the market price of any merchandise or object of commerce manufactured, produced, processed, assembled or imported into the Phil Also liable as principals: a. corporation/association b. agent/representative c. director/manager who willingly permitted or failed to prevent commission of above offense
Article 187 IMPORTATION AND DISPOSITION OF FALSELY MARKED ARTICLES OR MERCHANDISE MADE OF GOLD, SILVER, OR OTHER PRECIOUS METALS OR THEIR ALLOYS
ELEMENTS: a That the offender imports, sells or disposes of any of those articles or merchandise. b That the stamps, brands, or marks or those articles or merchandise fails to indicate the actual fineness or quality of said metals or alloys. c That the offender knows that the said stamp, brand, or mark fails to indicate the actual fineness or quality of the metals or alloys. To be criminally liable, it is important to establish that the offender knows the fact that the imported merchandise fails to indicate the actual fineness or quality of the precious metal. If the importer has no expertise on the matter such that he has no way of knowing how the fraud was committed, the existence of such fact may be seriously considered as a defense. What the law punishes herein is the selling of misbranded goods made of gold, silver and other precious metals. Therefore, it must be shown that the seller knows that the merchandise is misbranded. Hence, dishonesty is an essential element of the crime.
If a particular person is defrauded by the offender; as in the case of locally manufactured goods, which the offender, by altering the label, are made to appear as imported articles and sold to a particular person, the crime committed is undoubtedly estafa as far as the particular person is concerned. But if the falsely mislabeled goods are displayed in a store and offered for sale to the public in general, the crime committed is punished under Article 188. So, if the deception is isolated and is confined to a particular person or group of persons, estafa is committed. If the fraud is employed against the public, Article 188 is violated. Must not be another manufacturer otherwise unfair competition
Take note that after making the substitution the goods are displayed in the store or market for sale, Article 188 is already committed even if no customer comes to buy any of the goods on display. The mere offer for sale to the public consummates the crime. The pendency of the administrative aspect of the case is not a prejudicial question in the resolution of the criminal case.
Article 189 UNFAIR COMPETITION, FRAUDULENT REGISTRATION OF TRADENAME, TRADEMARK SERVICE MARK, FRAUDULENT DESIGNATION OF ORIGIN, AND FALSE DESCRIPTION
Acts punished: a Unfair competition by selling his goods, giving them the general appearance of the goods of another manufacturer or dealer
Fraudulent designation of origin; false description by (a) affixing to his goods or using in connection with his services a false designation of origin; or any false description or representation, and (b) selling such goods or services Fraudulent registration by procuring fraudulently from the patent office the registration of t/m, t/m or service mark.
ELEMENTS:
c d
Under Republic Act No. 166, Section 29, paragraph 2, unfair competition is defined as follows: It consists in employing deception or any other means contrary to good faith by which any person shall pass off the goods manufactured by him or in which he deals, or his business, or services for those of the one having established goodwill, or committing any acts calculated to produce such result. The true test of unfair competition is whether certain goods have been clothed with an appearance which is likely to deceive the ordinary purchaser exercising ordinary care. (U.S. vs. Manuel, 7 Phil. 221) For unfair competition to take place, it must be the manufacturer of the goods who will cloth or label his goods with the trade name or trademark of another manufacturer, who has established a good name or good will in the mind of the public because of the quality of the merchandise manufactured by him. The imitator is also a manufacturer of the same kind of product but of inferior quality. By labeling his product with the trademark or trade name of said manufacturer, he profits from the goodwill of another. If the labeling or clothing of the goods is not done by another manufacturer, the crime committed is not unfair competition but substitution of trademark or trade name under Article 188. When the honorable Supreme Court declared that unfair competition is broader and more inclusive than infringement of trade name or trademark. In infringement of trade name or trademark, the offended party has a peculiar symbol or mark on his goods which is considered a property right which must therefore be protected. In unfair competition, the offended party has identified in the mind of the public the goods he manufactures to distinguish it from the goods of the other manufacturers. In infringement of trade name or trademark, the offender uses the trade name or trademark of another in selling his goods, while in unfair competition, the offender gives his goods the general appearance of the goods of another manufacturer and sells the same to the public. (E. Spinner & Co. vs. New Hesslein Corp., 54 Phil. 224)
DRUG SYNDICATE any organized group of two(2) or more persons forming or joining together with the intention of committing any offense prescribed under the act. PLANTING OF EVIDENCE the willful act by any person of maliciously and surreptitiously inserting, placing, adding or attaching directly or indirectly, through any overt or covert act, whatever quantity of any dangerous drug and/or controlled precursor and essential chemical in the person, house, effects, or in the immediate vicinity of an innocent individual for the purpose of implicating, incriminating or imputing the commission of any violation of this Act. P D E A Philippine Drug Enforcement Unit Importation of prohibited/regulated drugs. PENALTY : Life to death & fine of 500,000 to 10 million regardless of the Quantity and purity involved MAXIMUM PENALTY : 1) Use of diplomatic Passport 2) Financier Sale, administration, delivery, prohibited/regulated drugs. distribution and transaction of
- NOT BAILABLE
Possession of prohibited/regulated drugs. PENALTY : a. Life to death & fine of 500,000 to 10 million
10 gms. Opium, morphine, heroine, cocaine, marijuana resin and Ecstasy. 50 gms. Shabu 500 gms. Marijuana b. Life Imprisonment and a fine of P400,000.00-P500,000.00 10-50 gms. Shabu c. 20 years to Life and a fine of 400,000.00-500,000.00 5-10 gms. Shabu d. 12 20 years and a fine of 300,000.00-400,000.00 Less than 5 gms. Of any dangerous drugs
Possession of paraphernalia
6 mos. 4 yrs. & fine of 10,000 50,000 Use of Dangerous Drugs A person apprehended or arrested, who is found to be positive for use of any dangerous drug, after a confirmatory test, shall be imposed a penalty of a minimum of six (6) months rehabilitation in a government center for the first offense, subject to the provisions of Article VIII of this Act. Page 105 of 224
Note: The land/portions thereof and/or greenhouses in which any of the said plants is cultivated or cultured shall be confiscated and escheated to the State, unless the owner thereof can prove that he did not know of such cultivation or culture despite the exercise of due diligence on his part.
Qualifying Circumstance 1. If the land involved is part of the public domain, the maximum of the penalty herein provided shall be imposed. 2. Maximum penalty imposed on financier Failure to keep records of prescription, sales, purchases, acquisitions and/or deliveries of prohibited/regulated drugs Persons liable: Pharmacist, Physician, Dentist, Veterinarian, Manufacturer, Wholesaler, Importer, Distributor, Dealer, Retailer Unlawful prescription of prohibited/regulated drugs
Confiscation and forfeiture of the proceeds or instruments of the unlawful act, including the properties of the proceeds derived from the illegal trafficking of dangerous drugs. Page 106 of 224
Other persons liable: a If the violation of the Act is committed by a partnership, corporation, association or any judicial person, the partner, president, director, or manager who consents to or knowingly tolerates such violation shall be held criminally liable as co-principal. Partner, president, director, manager, officer or stockholder, who knowingly authorizes, tolerates, or consents to the use of a vehicle, vessel, or aircraft as an instrument in the importation, sale, delivery, distribution or transportation of dangerous drugs, or to the use of their equipment, machines or other instruments in the manufacture of any dangerous drugs, if such vehicle, vessel, aircraft, equipment, or other instrument, is owned or under the control
a.
NOTE: They shall be considered as persons in authority if they are in the school or within its immediate vicinity, or beyond such immediate vicinity if they are in attendance in any school or class function in their official capacity as school heads, supervisors or teachers. Any teacher or school employee who discovers or finds that any person in the school or within its immediate vicinity is violating this Act shall have the duty to report the violation to the school head or supervisor who shall, in turn, report the matter to the proper authorities. Failure to report in either case shall, after hearing, constitute sufficient cause for disciplinary action.
b.
III.
Voluntary submission a. Voluntary submission of a drug dependent to confinement, treatment and rehabilitation by the drug dependent himself or through his parent, guardian or relative within the 4th civil degree of consanguinity or affinity, in a center and compliance with such conditions therefor as the Dangerous Drugs Board may prescribe shall exempt from criminal liability for possession or use of the prohibited/regulated drug. (Applicable only to those liable for use of dangerous drugs and not to possession and sale) b. Should the drug dependent escape from the center, he may submit himself for confinement within 1 week from the date of his escape, of his parent guardian or relative may, within the same period surrender him for confinement. Upon application of the Board, the Court shall issue an order for recommitment if the drug dependent does not resubmit himself for confinement or if he is not surrendered for recommitment. If, subsequent to such recommitment, he should escape again, he shall no longer be exempt from criminal liability for the use or possession of any dangerous drug. If a person charged with an offense is found by the fiscal or by the Court at any stage of the proceedings, to be a drug dependent, the fiscal or court as
c.
d.
e.
Section 90. Jurisdiction The Supreme Court shall designate special courts from among the existing Regional Trial Court in each judicial region to exclusively try and hear cases involving violations of this Act. The number of court designated in each Page 111 of 224
a
b
Buy Bust Operation no law or rule to require policemen to adopt a uniform way of identifying BUY MONEY (P v. Abedes) Absence of ultraviolet powder is not fatal in the prosecution Transportation/importation of MJ immaterial whether there may or may not be a distinction for the MJ Distinguish Entrapment and Instigation:
c
d
1.
If prosecution can prove the crime without presenting the informer or asset not necessary because their testimonies are merely corroborative. Poseur buyer it depends on whether the prosecution can prove the crime without their testimonies (P v. Rosalinda Ramos)
2. 3.
Under the RA, special aggravating circumstance if a crime has been committed while the accused was high on drugs (P v. Anthony Belgar) Delivery or Sale of Prohibited Drugs the accused must be aware that what he is selling or delivering was prohibited drug. But the moment the fact of sale or delivery is proved by prosecution, the burden to prove that the accused is not aware that drugs are prohibited falls on the defense (P v. Aranda)
4. 5.
P v. Angelito Manalo burden of proving the authority to possess shabu is a matter of defense P v. Hilario Moscaling court may take judicial notice of the word shabu
6. e f g h i
Criminal liabilities of a policeman who sold the drugs confiscated from a pusher: violation of RA 9165 and malversation under RPC. Planting evidence to implicate another Buy Bust Operation form of entrapment (P v. Alberto) not necessary to have prior police surveillance (P v. Carlos Franca) Possession constructive or actual not necessary to adduce the marked money as evidence (P v. Romeo Macara) Separate crimes sale/possession of MJ found in his possession after he was frisked but he cant be convicted for possession of MJ that he sold If victim is minor or drug is proximate cause of death max penalty is imposed
1.
First offense of a minor suspension of sentence CONDITIONS: under 18 at time of commission but not more than 21 at time when judgment was promulgated found guilty of possession or use of prohibited or regulated drugs not been previously convicted of violating any provision of this Act or the RPC not been placed on probation defer sentence, place on probation for 6 months to 1 year
violation of probation pronounce sentence convict and serve sentence no violation discharge him and dismiss the proceeding
b.
2. 3.
Knowingly permitting any form of gambling to be carried on in any place owned or controlled by the offender; Being maintainer, conductor, or banker in a game of jueteng or similar game;
What is gambling? It is a game or device or method, the result of which depends wholly or chiefly upon chance or hazard. So, if the game depends wholly upon skill or ability of the players, there is no gambling. The manner of determining whether the game played is prohibited or not is whether the result will depend wholly or chiefly upon chance or hazard. Significantly, if the game has been identified and declared as a form of gambling by express provision of law, there will be no need or requirement to go into the methods upon how the game is played. What is lottery? It is a scheme for the distribution of prizes by chance among persons who have paid, or agreed to pay, a valuable consideration for a chance to obtain a prize. (US vs. Filart, et al., 30 Phil. 80) Pinball machines or slot machines are considered gambling devices because the result depends upon chance or hazard. If the prizes do not come out of the funds or contributions of the participants, there is no lottery. (Uy vs. Palomar, 27 SCRA 287)
Note that possession of any lottery ticket or advertisement is prima facie evidence of an intent to sell, distribute or use the same in the Philippines.
b.
Game-fixing: any arrangement, combination, scheme or agreement by which the result of any game, races, or sports contests shall be predicated and/or known other than on the basis of the honest playing skill or ability of the players or participants.
c.
Point-shaving: any such arrangement combination, scheme or agreement by which the skill or ability of any player or participant in a fame, races, or sports contests to make points of scores shall be limited deliberately in order to influence the result thereof in favor of one or other team, player or participant.
d.
Game Machination: any other fraudulent, deceitful, unfair or dishonest means, method, manner or practice employed for the purpose of influencing the result of any game, races or sports contest.
Article 198. ILLEGAL BETTING ON HORSE RACE Acts punished Betting on horse races during periods not allowed by law; Maintaining or employing a totalizer or other device or scheme for betting on races or realizing profit therefrom during the periods not allowed by law. When horse races not allowed: Page 117 of 224
I.
II.
Scope This law shall govern the establishment, operation, maintenance and ownership of cockpits. Rules: A. B. C. D. Only Filipino citizens not otherwise inhibited by existing laws shall be allowed to own, manage and operated cockpits. Only one cockpit shall be allowed in each city or municipality with a population of 100,000 or less. Cockpits shall be constructed and operated within the appropriate areas as prescribed in the Zoning Law or ordinance. When allowed: 1. Cockfighting shall be allowed only in licensed cockpits during Sundays and legal holidays and during local fiestas for not more than 3 days; or During provincial, city or municipal, agricultural, commercial or industrial fair, carnival or exposition for a similar period of 3 days upon resolution of the province, city or municipality where such fair, carnival or exposition is to be held, subject to the approval of the Chief of Constabulary or his authorized representative.
2.
Limitations: a) No cockfighting on the occasion of such fair, carnival or exposition shall be allowed within the month of the local fiesta or for more than 2 occasions a year in the same city of municipality. b) No cockfighting shall be held on December 30, June 12,November 30, Holy Thursday, Good Friday, Election Day and during registration days for such election/referendum. If the purpose is for the entertainment of foreign dignitaries or for tourists, or for returning balikbayans, or for the support of national fund-raising campaigns for charitable purposes as may be authorized by the Office of the President upon resolution of a provincial board, city or municipal council, in licensed cockpits or in playgrounds or parks. Limitations: This privilege shall be extended for only one time, for a period not exceeding 3 days, within a year to a province, city or municipality. E. F. No gambling of any kind shall be permitted on the premises of the cockpit or place of cockfighting during cockfights. City or municipal mayors are authorized to issue licenses for the operation and maintenance of cockpits.
3.
Presidential Decree No. 1602 (Simplifying and Providing Stiffer Penalties for Violations of Philippine Gambling Laws)
Section 1. Violations and Penalties. -- The penalty of prision mayor in its medium degree or a fine ranging from Five Hundred Pesos to Two Thousand Pesos and in case of recidivism the penalty of prision correccional in its medium degree or a fine of ranging from One Thousand Pesos to Six Thousand Pesos shall be imposed upon: (a) Any person other than those referred to in the succeeding subsection who in any manner, shall directly or indirectly take part in any game of cockfighting, jueteng, bookies (jaialai or horse racing to include game fixing) and other lotteries, cara y cruz or pompiang and the like, black jack, lucky nine, pusoy or Russian Poker, monte, baccarat and other card games, palk que, domino, mahjong, high and low, slot machines, roulette, pinball and other mechanical inventories or devices, dog racing, boat racing, car raising and other races, basketball, volleyball, boxing, seven-eleven dice games and the like and other contests to include game fixing, point shaving and other machinations banking or percentage game, or any other game or scheme, whether upon chance or skill, which do not have a franchise from the national government, wherein wagers consisting of money, articles of value of representative of value are made;
2.
Illustrations: (1) A certain supermarket wanted to increase its sales and sponsored a lottery where valuable prices are offered at stake. To defray the cost of the prices offered in the lottery, the management increased their prices of the merchandise by 10 cents each. Whenever someone buys from that supermarket, he pays 10 cents more for each merchandise and for his purchase, he gets a coupon which is to be dropped at designated drop boxes to be raffled on a certain period. The increase of the price is to answer for the cost of the valuable prices that will be covered at stake. The increase in the price is the consideration for the chance to win in the lottery and that makes the lottery a gambling game. But if the increase in prices of the articles or commodities was not general, but only on certain items and the increase in prices is not the same, the fact that a lottery is sponsored does not appear to be tied up with the increase in prices, therefore not illegal. Also, in case of manufacturers, you have to determine whether the increase in the price was due to the lottery or brought about by the normal price increase. If the increase in price is brought about by the normal price increase [economic factor] that even without the lottery the price would be like that, there is no consideration in favor of the lottery and the lottery would not amount to a gambling game.
OFFENSES AGAINST DECENCY AND GOOD CUSTOMS Article 200 GRAVE SCANDAL
ELEMENTS: a. Offender performs an act b. c. Act is highly scandalous as offending against decency or good customs Highly scandalous conduct does not expressly fall within any other article of the RPC Committed in a public place or within the public knowledge or view. (The public view is not required, it is sufficient if in public place. For public knowledge, it may occur even in a private place; the number of people who sees it is not material).
d.
Grave scandal: consists of acts which are offensive to decency and good customs. They are committed publicly and thus, give rise to public scandal to persons who have accidentally witnessed the acts
Decency: means properly observing the requirements of modesty, good taste etc Customs: refers to established usage, social conventions carried on by tradition and enforced by social disapproval in case of violation If the acts complained of are punishable under another provision of the RPC, Art 200 is not applicable
Any act which is notoriously offensive to decency may bring about criminal liability for the crime of grave scandal provided such act does not constitute some other crime under the Revised Penal Code. Grave scandal is a crime of last resort.
The essence of grave scandal is publicity and that the acts committed are not only contrary to morals and good customs but must likewise be of such character as to cause public scandal to those witnessing it.
Distinction should be made as to the place where the offensive act was committed, whether in the public place or in a private place: (1) (2) In public place, the criminal liability arises irrespective of whether the immoral act is open to the public view. In short public view is not required. When act offensive to decency is done in a private place, public view or public knowledge is required.
Public view does not require numerous persons. Even if there was only one person who witnessed the offensive act for as long as the third person was not an intruder, grave scandal is committed provided the act does not fall under any other crime in the Revised Penal Code. Illustrations: (1) A man and a woman enters a movie house which is a public place and then goes to the darkest part of the balcony and while there the man started performing acts of lasciviousness on the woman. If it is against the will of the woman, the crime would be acts of lasciviousness. But if there is mutuality, this constitutes grave scandal. Public view is not necessary so long as it is performed in a public place.
Morals: implies conformity to generally accepted standards of goodness or rightness in conduct or character
Test of obscenity: whether the matter has a tendency to deprave or corrupt the minds of those who are open to immoral influences. A matter can also be considered obscene if it shocks the ordinary and common sense of men as indecency.
The test is objective. It is more on the effect upon the viewer and not alone on the conduct of the performer. If the material has the tendency to deprave and corrupt the mind of the viewer then the same is obscene and where such obscenity is made publicly, criminal liability arises. The law is not concerned with the moral of one person. As long as the pornographic matter or exhibition is made privately, there is no crime committed under the Revised Penal Code because what is protected is the morality of the public in general.
In committing this crime, there must be publicity. It means the act or acts done must come to the knowledge of third persons.
However, Art 201 enumerates what are considered as obscene literature or immoral or indecent plays, scenes or acts: a. those w/c glorify criminals or condone crimes b. c. d. e. those w/c serve no other purpose but to satisfy the market for violence, lust or pornography those w/c offend against any race or religion those w/c tend to abet the traffic in and the use of prohibited drugs those that are contrary to law, public order, morals, good customs, established policies, lawful orders, decrees and edicts
Mere nudity in paintings and pictures is not obscene Pictures w/ a slight degree of obscenity having no artistic value and intended for commercial purposes fall within this article Publicity is an essential element
Sexual indulgence is not in itself immoral if done within the bounds of privacy and performed normally. The moment the parties carry their private rights and privileges to public view, they expose themselves to public scrutiny.
b. c. d. e. f.
If fenced and with prohibition of entry If fenced and entered to hunt/fish If not fenced and with no prohibition of entry
Who are considered prostitutes - refer to women who habitually indulge in sexual intercourse or lascivious conduct for money or profit (if a man indulges in the same conduct: vagrancy)
In law the mere indulging in lascivious conduct habitually because of money or gain would amount to prostitution, even if there is no sexual intercourse. Virginity is not a defense. Habituality is the controlling factor; it has to be more than one time. There cannot be prostitution by conspiracy. One who conspires with a woman in the prostitution business like pimps, taxi drivers or solicitors of clients are guilty of the crime under Article 341 for white slavery.
The designation of the title is misleading. Crimes under this title can be committed by public officers or a non-public officer, when the latter become a conspirator with a public officer, or an accomplice, or accessory to the crime. The public officer has to be the principal. In some cases, it can even be committed by a private citizen alone such as in Article 275 (infidelity in the custody of a prisoner where the offender is not a public officer) or in Article 222 (malversation).
Takes part in the performance of public functions in the Government, or Performs public duties as an employee, agent or subordinate official in the govt or any of its branches
b.
Notes: a. Public officer must derive his authority from: 1. direct provision of law 2. popular election 3.appointment by competent authority
In defining the term public officers, the law makes the reference to the manner by which he is appointed to public office. He thus becomes a public officer because of his appointment by competent authority or because he is elected to public office.
b.
Public officers: embraces every public servant from the lowest to the highest rank
Under Republic Act No. 3019 (The Anti-Graft and Corrupt Practices Act), the term public officer is broader and more comprehensive because it includes all persons whether an official or an employee, temporary or not, classified or not, contractual or otherwise. Any person who receives compensation for services rendered is a public officer.
c.
A government laborer is not a public officer. However, temporary performance by a laborer of public functions makes him a public officer
Crimes committed by public officers are nothing but corruption in public service. Breach of oath of office partakes of three forms:
d. e. f.
Malfeasance Misfeasance
Misfeasance: means improper performance of an act which might be properly be performed Malfeasance: means performance of an act which ought not to be done Nonfeasance: means omission of an act which ought to be done
Doing of an act which a public officer should not have done Improper doing of an act which a person might lawfully do
a.
Judgment: is a final consideration and determination by a court of competent jurisdiction of the issues submitted to it in an action or proceeding
The law requires that the judgment must be written in the official language, personally and directly prepared by the judge, and signed by him. It must contain a clear and distinct statement of facts proved or admitted by the defendant and upon which the judgment is based.
b.
c. 1. 2. 3. d.
Unjust judgment: one which is contrary to law, or not supported by the evidence, or both An unjust judgment may result from: error (with bad faith) ill-will or revenge bribery There must be evidence that the decision rendered is unjust. It is not presumed
To be liable for the above crime, not only must the judgment be proved to be unjust .it must likewise be established to have been knowingly rendered. There must be a conscious and deliberate intent to do an injustice. This usually occurs when the judge entertains hatred, envy, revenge, or greed against one of the parties.
Manifestly unjust judgment: one that is so contrary to law that even a person having meager knowledge of the law cannot doubt the injustice
The unjust judgment is merely the result of inexcusable negligence or ignorance of the law. The ignorance may refer to substantive or procedural law. There must be an apparent and notorious manifestation of lack of logic and false interpretation of the law. (Cortes vs. Catral, 279 SCRA 1)
Interlocutory order: one issued by the court deciding a collateral or incidental matter. It is not a final determination of the issues of the action or proceeding
The crime of knowingly rendering an unjust judgment, or knowingly issuing an unjust interlocutory order, may be committed only by a judge of a trial court and never of an appellate court. The reason for this is that in appellate court, not only one magistrate renders or issues the interlocutory order. An appellate court functions as a division and the resolutions thereof are handed down only after deliberations among the members of a division so that it cannot be said
Malice must be proven. Malice is present where the delay is sought to favor one party to the prejudice of the other. These have been interpreted by the Supreme Court to refer only to judges of the trial court.
The Constitution provides that cases submitted for decision before the Supreme Court must be resolved within two years. Before the Court of Appeals, such cases must be resolved within 1 year; and before the Regional Trial Court and Metropolitan Trial Court, such cases must be decided within a period of three months or ninety days.
ELEMENTS OF DERELICTION OF DUTY IN THE PROSECUTION OF OFFENSES: a. That the offender is a public officer or officer of the law who has a duty to cause the prosecution of, or to prosecute offenses.
b.
That there is dereliction of the duties of his office, that is, knowing the commission of the crime, he does not cause (a) the prosecution of the criminal
A public officer engaged in the prosecution of offenders shall maliciously tolerate the commission of crimes or refrain from prosecuting offenders or violators of the law. This crime can only be committed by a public officer whose official duty is to prosecute offenders, that is, state prosecutors. Hence, those officers who are not duty bound to perform these obligations cannot commit this crime in the strict sense.
There must be a duty on the part of the public officer to prosecute or move for the prosecution of the offender. Note however, that a fiscal is under no compulsion to file an information based upon a complaint if he is not convinced that the evidence before him does not warrant filing an action in court
When a policeman tolerates the commission of a crime or otherwise refrains from apprehending the offender, such peace officer cannot be prosecuted for this crime but they can be prosecuted as: (1) (2) (3) An accessory to the crime committed by the principal in accordance with Article 19, paragraph 3; or He may become a fence if the crime committed is robbery or theft, in which case he violates the Anti-Fencing Law; or He may be held liable for violating the Anti-Graft and Corrupt Practices Act.
Illustration: The offender was caught for white slavery. The policeman allowed the offender to go free for some consideration. The policeman does not violate Article 208 but he becomes an accessory to the crime of white slavery. But in the crime of theft or robbery, where the policeman shared in the loot and allowed the offender to go free, he becomes a fence. Therefore, he is considered an offender under the AntiFencing Law. However, in distant provinces or municipalities where there are no municipal attorneys, the local chief of police is the prosecuting officer. If he is the one who tolerates the violations of laws or otherwise allows offenders to escape, he can be prosecuted under this article. This is also true in the case of a barangay chairman. They are supposed to prosecute violators of laws within their jurisdiction. If they do not do so, they can be prosecuted for this crime.
Relative to this crime under Article 208, consider the crime of qualified bribery. Among the amendments made by Republic Act No. 7659 on the Revised Penal Code is a new provision which reads as follows: Article. 211-A. Qualified Bribery If any public officer is entrusted with law enforcement and he refrains from arresting or prosecuting an offender who has committed a crime punishable by Reclusion Perpetua and/or death in consideration of any offer, promise, gift, or present, he shall suffer the penalty for the offense which was not prosecuted. If it is the public officer who asks or demands such gift or present, he shall suffer the penalty of death. Actually the crime is a kind of direct bribery where the bribe, offer, promise, gift or present has a consideration on the part of the public officer, that is refraining from arresting or prosecuting the offender in consideration for such offer, promise, gift or present. In a way, this new provision modifies Article 210 of the Revised Penal Code on direct bribery. However, the crime of qualified bribery may be committed only by public officers entrusted with enforcement whose official duties authorize then to arrest or prosecute offenders. Apparently, they are peace officers and public prosecutors since the nonfeasance refers to arresting or prosecuting. But this crime arises only when the offender whom such public officer refrains from arresting or prosecuting, has committed a crime punishable by reclusion perpetua and/or death. If the crime were punishable by a lower penalty, then such nonfeasance by the public officer would amount to direct bribery, not qualified bribery. If the crime was qualified bribery, the dereliction of the duty punished under Article 208 of the Revised Penal Code should be absorbed because said article punishes the public officer who maliciously refrains from instituting prosecution for the punishment of violators of the law or shall tolerate the commission of offenses. The dereliction of duty referred to is necessarily included in the crime of qualified bribery. On the other hand, if the crime was direct bribery under Article 210 of the Revised Penal Code, the public officer involved should be prosecuted also for the dereliction of duty, which is a crime under Article 208 of the Revised Penal Code, because the latter is not absorbed by the crime of direct bribery. This is because in direct bribery, where the public officer agreed to perform an act constituting a crime in connection with the performance of his official duties, Article 210 expressly provides that the liabilty thereunder shall be in addition to the penalty corresponding to the crime agreed upon, if the crime shall have been committed. Illustration:
b. c.
Revealing any of the secrets of his client learned by him in his professional capacity (damage not necessary) Undertaking the defense of the opposing party of the 1 st client and/or having received confidential information from the latter and without the latters consent (damage not necessary)
Note: When the attorney acts with malicious abuse of his employment or inexcusable negligence or ignorance, there must be damage to his client. Under the rules on evidence, communications made with prospective clients to a lawyer with a view to engaging his professional services are already privileged even though the client-lawyer relationship did not eventually materialize because the client cannot afford the fee being asked by the lawyer. The lawyer and his secretary or clerk cannot be examined thereon. That this communication with a prospective client is considered privileged, implies that the same is confidential. Therefore, if the lawyer would reveal the same or otherwise accept a case from the adverse party, he would already be violating Article 209. Mere malicious breach without damage is not violative of Article 209; at most he will be liable administratively as a lawyer, e.g., suspension or disbarment under the Code of Professional Responsibility. Illustration: B, who is involved in the crime of seduction wanted A, an attorney at law, to handle his case. A received confidential information from B. However, B cannot pay the professional fee of A. C, the offended party, came to A also and the same was accepted. A did not commit the crime under Article 209, although the lawyers act may be considered unethical. The client-lawyer relationship between A and B was not yet established. Therefore, there is no trust to violate because B has not yet actually engaged the services of the lawyer A.
Note that only numbers 1, 2 and 3 must approximate malice. A lawyer who had already undertaken the case of a client cannot later on shift to the opposing party. This cannot be done. Under the circumstances, it is necessary that the confidential matters or information was confided to the lawyer in the latters professional capacity. It is not the duty of the lawyer to give advice on the commission of a future crime. It is, therefore, not privileged in character. The lawyer is not bound by the mandate of privilege communication if he reports such commission of a future crime. It is only confidential information relating to crimes already committed that are covered by the crime of betrayal of trust if the lawyer should undertake the case of opposing party or otherwise divulge confidential information of a client. Under the law on evidence on privileged communication, it is not only the lawyer who is protected by the matter of privilege but also the office staff like the secretary. The nominal liability under this article may be constituted either from breach of professional duties in the handling of the case or it may arise out of the confidential relation between the lawyer and the client.
c.
1. 2.
with a view to committing some crime (delivery of consideration is not necessary) or in consideration of an execution of an act which does not constitute a crime, but the act must be unjust (delivery of consideration is necessary), or 3. to refrain from doing something which is his official duty to do
Bribery refers to the act of the receiver and the act of the giver is corruption of public official.
For purposes of this article, temporary performance of public functions is sufficient to constitute a person a public officer. A private person may commit this crime only in the case in which custody of prisoners is entrusted to him Applicable also to assessors, arbitrators, appraisal and claim commissioners, experts or any other person performing public duties Cannot be frustrated, only attempted or consummated.
Direct bribery may be committed only in the attempted and consummated stages because, in frustrated felony, the offender must have performed all the acts of execution which would produce the felony as a consequence. In direct bribery, it is possible only if the corruptor concurs with the offender. Once there is concurrence, the direct bribery is already consummated. In short, the offender could not have performed all the acts of execution to produce the felony without consummating the same. Actually, you cannot have a giver unless there is one who is willing to receive and there cannot be a receiver unless there is one willing to give. So this crime requires two to commit. It cannot be said, therefore, that one has performed all the acts of execution which would produce the felony as a consequence but for reasons independent of the will, the crime was not committed. It is now settled, therefore, that the crime of bribery and corruption of public officials cannot be committed in the frustrated stage because this requires two to commit and that means a meeting of the minds. Illustrations: (1) If the public official accepted the corrupt consideration and turned it over to his superior as evidence of the corruption, the offense is attempted corruption only and not frustrated. The official did not agree to be corrupted. If the public officer did not report the same to his superior and actually accepted it, he allowed himself to be corrupted. The corruptor becomes liable for consummated corruption of public official. The public officer also becomes equally liable for consummated bribery. (2) If a public official demanded something from a taxpayer who pretended to agree and use marked money with the knowledge of the police, the crime of the public official is attempted bribery. The reason is that because the giver has no intention to corrupt her and therefore, he could not perform all the acts of execution.
Bribery exists when the gift is: a. voluntarily offered by a private person b. c. solicited by the public officer and voluntarily delivered by the private person solicited by the public officer but the private person delivers it out of fear of the consequences should the public officer perform his functions (here the crime by giver is not corruption of public officials due to involuntariness)
Actual receipt of the gift is not only if acts constitutes a crime necessary. An accepted offer or promise of a gift is sufficient. However, if the offer is not accepted, only the person offering the gift is liable for attempted corruption of a public officer The gift must have a value or capable of pecuniary estimation. It could be in the form of money, property or services If the act required of the public officer amounts to a crime and he commits it, he shall be liable for the penalty corresponding to the crime in addition to the penalty for bribery
In direct bribery, consider whether the official act, which the public officer agreed to do, is a crime or not. If it will amount to a crime, it is not necessary that the corruptor should deliver the consideration or the doing of the act. The moment there is a meeting of the minds, even without the delivery of the consideration, even without the public officer performing the act amounting to a crime, bribery is already committed on the part of the public officer. Corruption is already committed on the part of the supposed giver. The reason is that the agreement is a conspiracy involving the duty of a public officer. The mere agreement is a felony already. If the public officer commits the act which constitutes the crime, he, as well as the corruptor shall be liable also for that other crime. Illustrations: (1) If the corruptor offers a consideration to a custodian of a public record to remove certain files, the mere agreement, without delivery of the consideration, brings about the crime of direct bribery and corruption of public official. If the records were actually removed, both the public officer and the corruptor will in addition to the two felonies above, will also be liable for the crime committed, which is infidelity in the custody of the public records for which they shall be liable as principals; one as principal by inducement, the other as principal by direct participation.
The third type of bribery and prevaricacion (art 208) are similar offenses, both consisting of omissions to do an act required to be performed. In direct bribery however, a gift or promise is given in consideration of the omission. This is not necessary in prevaricacion
Distinction between direct bribery and indirect bribery Bribery is direct when a public officer is called upon to perform or refrain from performing an official act in exchange for the gift, present or consideration given to him.
Bribery (210) When the victim has committed a crime and gives money/gift to avoid arrest or prosecution.
Robbery (294) When the victim did not commit a c intimidated with arrest and/or prosecutio of his personal property. Victim parts with his money or property Victim is deprived of his money or pro voluntarily. intimidation. Robbery should be distinguished from Bribery where a law enforcer, say a policeman, extorts money from a person, employing intimidation and threatening to arrest the latter if he will not come across with money may be guilty of Robbery (Article 294, par. 5) or Bribery (Article 210). If the victim actually committed a crime, and the policeman demanded money so he will not be arrested, the crime is Bribery. But if no crime has been committed and the policeman is falsely charging him of having committed one, threatening to arrest him if he will not come across with some consideration, the crime is Robbery.
The gift is given in anticipation of future favor from the public officer Indirect bribery, the public officer receives or accepts gifts, money or anything of value by reason of his office. If there is only a promise of a gift or money, no crime is committed because of the language of the law which uses the phrase shall accept gifts.
The Supreme Court has laid down the rule that for indirect bribery to be committed, the public officer must have performed an act of appropriating of the gift for himself, his family or employees. It is the act of appropriating that signifies acceptance. Merely delivering the gift to the public officer does not bring about the crime. Otherwise it would be very easy to remove a public officer: just deliver a gift to him.
There is no attempted or frustrated indirect bribery The principal distinction between direct and indirect bribery is that in the former, the officer agrees to perform or refrain from doing an act in consideration of the gift or promise. In the latter case, it is not necessary that the officer do any act. It is sufficient that he accepts the gift offered by reason of his office Public officers receiving gifts and private persons giving gifts on any occasion, including Christmas are liable under PD 46. The criminal penalty or imprisonment is distinct from the administrative penalty of suspension from the service
c.
Note that the penalty is DEATH if the public officer is the one who asks or demands such present.
He need not receive the gift or present because a mere offer or promise is sufficient.
The offender is the giver of the gift or the offeror of the promise. The act may or may not be accomplished
Before the bribe-giver may be dropped from the information, he has to be charged first with the receiver. Before trial, prosecutor may move for dropping bribe-giver from information and be granted immunity. But first, five conditions have to be met: (1) (2) (3) (4) Information must refer to consummated bribery; Information is necessary for the proper conviction of the public officer involved; That the information or testimony to be given is not yet in the possession of the government or known to the government; That the information can be corroborated in its material points;
These conditions are analogous to the conditions under the State Witness Rule under Criminal Procedure. The immunity granted the bribe-giver is limited only to the illegal transaction where the informant gave voluntarily the testimony. If there were other transactions where the informant also participated, he is not immune from prosecution. The immunity in one transaction does not extend to other transactions. The immunity attaches only if the information given turns out to be true and correct. If the same is false, the public officer may even file criminal and civil actions against the informant for perjury and the immunity under the decree will not protect him.
(3)
(4)
(6)
While the crime appears to be malum prohibitum, Republic Act No. 7080 provides that in the imposition of penalties, the degree of participation and the attendance of mitigating and aggravating circumstances shall be considered by the court.
a.
2.
3.
4.
6.
7.
8.
9.
10. Knowingly approving or granting any license, permit, privilege, or benefit in favor of any person not qualified for or not legally entitled to such license, permit, privilege, or advantage, or of a mere representative or dummy of one who is not so qualified or entitled. 11. Divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date. b. Any person having family or close personal relation with any public official who shall capitalize or exploit or take advantage of such family or close personal relation by directly or indirectly requesting or receiving any present, gift, or material, or pecuniary advantage from any person having some business, transaction, application, request, or contact with the government in which such public official has to intervene (Sec. 4) Any person who shall knowingly induce or cause any public official to commit any of the offenses under (A). (Sec. 4)
c.
d.
Spouse or any relative, by consanguinity or affinity, within the 3rd civil degree, of the president of the Philippines, the vice-president, the president of the Senate, or speaker of the house of Representatives, who shall intervene, directly or indirectly, in any business transaction, contract or application with the govt (Sec. 5). This prohibition shall not apply to: 1. Any person who, prior to the assumption of office of any of the above officials to whom he is related, has been already dealing with the govt along the same line of business; 2. Any transaction, contract or application already existing or pending at the time of such assumption of public office; 3. Any application filed by him, the approval of which is not discretionary on the part of the official(s) concerned but depends upon compliance with requisites provided by law, or rules or regulations issued pursuant to law; 4. Any act lawfully performed an official capacity or in the exercise of a profession. e. Any member of congress, during the term for which he has been elected, who shall acquire or receive any personal pecuniary interest in any specific business enterprise which shall be directly and particularly favored or benefited by any law or resolution authored by him previously approved or adopted by Congress during his term. Any public officer who shall fail to file a true, detailed and sworn statement of assets and liabilities within 30 days after assuming office and thereafter on or before the 15th day of April following the close of every calendar year, as well as upon the expiration of his term of office, or upon his resignation or separation from office (Sec. 7).
f.
III.
Prima Facie Evidence of and Dismissal due to unexplained Wealth (Sec. 8) If a public official has been found to have acquired during his incumbency, whether in his name or in the name of other persons, an amount of property and/or money manifestly out of proportion to his salary and to his other lawful income. Properties in the name of the spouse and dependents of such public official may be taken into consideration, when their acquisition through legitimate means cannot be satisfactorily shown.
III. Competent court: All prosecutions under this Act shall be within the original jurisdiction of the Sandiganbayan (Sec. 10). In case none of the principal accused are occupying positions corresponding to salary grade 27 or higher; PNP officers occupying the rank of superintendent or higher of their equivalent, exclusive jurisdiction over the case shall be vested in the proper Regional Trial Court, Metropolitan Trial Court and Municipal Circuit Trial Court as the case may be. The decision of the court in these cases shall be appealable to the Sandiganbayan which exercises exclusive appellate jurisdiction over them. IV. Prescription of offenses: all offenses punishable under this Act shall prescribe in 15 years (Sec. 11). V. Exceptions: Unsolicited gifts or presents of small or insignificant value offered or given as a mere ordinary token of gratitude of friendship according to local customs or usage, shall be excepted from the provisions of this act (Sec. 14). Once the case is filed with the Sandiganbayan, by express provision of the law, it becomes incumbent upon the court to place under preventive suspension the public officer who stands accused before it. However, before the order of suspension is issued, it is necessary that a pre-suspension hearing be held by the court wherein the accused is afforded the opportunity to challenge the validity of the information filed against him. Such right of the accused to challenge the validity of the information covers (a) the right to challenge the sufficiency of the recitals of the information vis--vis the essential elements of the offense as defined by substantive law; (b) the right to challenge the validity of the criminal proceedings leading to the filing of the information, i.e., that he has not been afforded the right of due preliminary investigation, or that the acts for which he stands charged do not constitute a violation of the provisions of R.A. No. 3019, which would warrant his mandatory suspension from office under Section 13 of this Act; and (c) the right to raise the issue that the information can be quashed under any of the grounds provided in Section 2, Rule 117 of the Rules of Court (People vs. Albano, 163 SCRA 511).
FRAUDS AND ILLEGAL EXACTIONS AND TRANSACTIONS Article 213 FRAUDS AGAINST PUBLIC TREASURY
ELEMENTS: (par. 1) a. That the offender be a public officer. b. c. That he should have taken advantage of his office, that is, he intervened in the transaction in his official capacity. That he entered into an agreement with any interested party or speculator or made use of any other scheme with regard to (a) furnishing supplies (b) the making of contracts, or (c) the adjustment or settlement of account relating to a public property or funds. That the accused had intent to defraud the government.
d.
Notes: a. The public officer must act in his official capacity b. The felony is consummated by merely entering into an agreement with any interested party or speculator or by merely making use of any scheme to defraud the Government
The essence of this crime is making the government pay for something not received or making it pay more than what is due. It is also committed by refunding more than the amount which should properly be refunded. This occurs usually in cases where a public officer whose official duty is to procure supplies for the government or enter into contract for government transactions, connives with the said supplier with the intention to defraud the government. Also when certain supplies for the government are purchased for the high price but its quantity or quality is low. Not all frauds will constitute this crime. There must be no fixed allocation or amount on the matter acted upon by the public officer. The allocation or outlay was made the basis of fraudulent quotations made by the public officer involved. For example, there was a need to put some additional lighting along a street and no one knows how much it will cost. An officer was asked to canvass the cost but he connived with the seller of light bulbs, pricing each light bulb at P550.00 instead of the actual price of P500.00. This is a case of fraud against public treasury.
This can only be committed principally by a public officer whose official duty is to collect taxes, license fees, import duties and other dues payable to the government. Not any public officer can commit this crime. Otherwise, it is estafa. Fixers cannot commit this crime unless he conspires with the public officer authorized to make the collection. The essence of the crime is not misappropriation of any of the amounts but the improper making of the collection which would prejudice the accounting of collected amounts by the government.
a.
Mere demand of a larger or different amount is sufficient to consummate the crime. The essence is the improper collection (damage to govt is not required)
On the first form of illegal exaction In this form, mere demand will consummate the crime, even if the taxpayer shall refuse to come across with the amount being demanded. That will not affect the consummation of the crime.
b.
If sums are received without demanding the same, a felony under this article is not committed. However, if the sum is given as a sort of gift or gratification, the crime is indirect bribery When there is deceit in demanding larger fees, the crime committed is estafa May be complexed with malversation
c. d.
Note that this is often committed with malversation or estafa because when a public officer shall demand an amount different from what the law provides, it can be expected that such public officer will not turn over his collection to the government. Illustrations: (1) A taxpayer goes to the local municipal treasurer to pay real estate taxes on his land. Actually, what is due the government is P400.00 only but the municipal treasurer demanded P500.00. By that demand alone, the crime of illegal exaction is already committed even though the taxpayer does not pay the P500.00. Suppose the taxpayer came across with P500.00. But the municipal treasurer, thinking that he would abstract the P100.00, issued a receipt for only P400.00. The taxpayer would naturally ask the municipal treasurer why the receipt was only for P400.00. The treasurer answered that the P100.00 is supposed to be for documentary stamps. The taxpayer left. He has a receipt for P400.00. The municipal treasurer turned over to the government coffers P400.00 because that is due the government and pocketed the P100.00. The mere fact that there was a demand for an amount different from what is due the government, the public officer already committed the crime of illegal exaction. On the P100.00 which the public officer pocketed, will it be malversation or estafa? In the example given, the public officer did not include in the official receipt the P100.00 and, therefore, it did not become part of the public funds. It remained to be private. It is the taxpayer who has been defrauded of his P100.00 because he can never claim a refund from the government for excess payment since the receipt issued to him was only P400.00 which is due the government. As far as the P100.00 is concerned, the crime committed is estafa. (3) A taxpayer pays his taxes. What is due the government is P400.00 and the public officer issues a receipt for P500.00 upon payment of the taxpayer of said amount demanded by the public officer involved. But he altered the duplicate to reflect only P400.00 and he extracted the difference of P100.00. In this case, the entire P500.00 was covered by an official receipt. That act of covering the whole amount received from the taxpayer in an official receipt will have the
(2)
Illegal exaction for collecting more than he is authorized to collect. The mere act of demanding is enough to constitute this crime. Falsification because there was an alteration of official document which is the duplicate of the official receipt to show an amount less than the actual amount collected. Malversation because of his act of misappropriating the P100.00 excess which was covered by an official receipt already, even though not payable to the government. The entire P500.00 was covered by the receipt, therefore, the whole amount became public funds. So when he appropriated the P100 for his own benefit, he was not extracting private funds anymore but public funds.
(c)
Should the falsification be complexed with the malversation? As far as the crime of illegal exaction is concerned, it will be the subject of separate accusation because there, the mere demand regardless of whether the taxpayer will pay or not, will already consummate the crime of illegal exaction. It is the breach of trust by a public officer entrusted to make the collection which is penalized under such article. The falsification or alteration made on the duplicate can not be said as a means to commit malversation. At most, the duplicate was altered in order to conceal the malversation. So it cannot be complexed with the malversation. It cannot also be said that the falsification is a necessary means to commit the malversation because the public officer can misappropriate the P100.00 without any falsification. All that he has to do is to get the excess of P100.00 and misappropriate it. So the falsification is a separate accusation. However, illegal exaction may be complexed with malversation because illegal exaction is a necessary means to be able to collect the P100.00 excess which was malversed. In this crime, pay attention to whether the offender is the one charged with the collection of the tax, license or impost subject of the misappropriation. If he is not the one authorized by disposition to do the collection, the crime of illegal exaction is not committed. If it did not give rise to the crime of illegal exaction, the funds collected may not have become part of the public funds. If it had not become part of the public funds, or had not become impressed with being part of the public funds, it cannot be the subject of malversation. It will give rise to estafa or theft as the case may be. (3) The Municipal Treasurer demanded P500.00 when only P400.00 was due. He issued the receipt at P400.00 and explained to taxpayer that the P100 was for documentary stamps. The Municipal Treasurer placed the entire P500.00 in the vault of the office. When he needed money, he took the P100.00 and spent it. The following crimes were committed: (a) Illegal exaction for demanding a different amount;
Although the excess P100.00 was not covered by the Official Receipt, it was commingled with the other public funds in the vault; hence, it became part of public funds and subsequent extraction thereof constitutes malversation. Note that numbers 1 and 2 are complexed as illegal exaction with estafa, while in number 3, malversation is a distinct offense. The issuance of the Official Receipt is the operative fact to convert the payment into public funds. The payor may demand a refund by virtue of the Official Receipt. In cases where the payor decides to let the official to keep the change, if the latter should pocket the excess, he shall be liable for malversation. The official has no right but the government, under the principle of accretion, as the owner of the bigger amount becomes the owner of the whole. On the second form of illegal exaction The act of receiving payment due the government without issuing a receipt will give rise to illegal exaction even though a provisional receipt has been issued. What the law requires is a receipt in the form prescribed by law, which means official receipt. Illustration: If a government cashier or officer to whom payment is made issued a receipt in his own private form, which he calls provisional, even though he has no intention of misappropriating the amount received by him, the mere fact that he issued a receipt not in the form prescribed by law, the crime of illegal exaction is committed. There must be voluntary failure to issue the Official Receipt. On the third form of illegal exaction Under the rules and regulations of the government, payment of checks not belonging to the taxpayer, but that of checks of other persons, should not be accepted to settle the obligation of that person. Illustration: A taxpayer pays his obligation with a check not his own but pertaining to another. Because of that, the check bounced later on. The crime committed is illegal exaction because the payment by check is not allowed if the check does not pertain to the taxpayer himself, unless the check is a managers check or a certified check, amended already as of 1990. (See the case of Roman Catholic.) Under Article 213, if any of these acts penalized as illegal exaction is committed by those employed in the Bureau of Customs or Bureau of Internal Revenue, the law that will apply to them will be the Revised Administrative Code or the Tariff and Customs Code or National Revenue Code.
Officers and employees of the BIR or Customs are not covered by the article. The NIRC or Administrative Code is the applicable law
These officers are authorized to make impositions and to enter into compromises. Because of this discretion, their demanding or collecting different from what is necessary is legal
c.
Note: RTC has jurisdiction over the offense because the principal penalty is disqualification
a.
Examples of transactions of exchange or speculation are: buying and selling stocks, commodities, land etc wherein one hopes to take advantage of an expected rise or fall in price Purchasing of stocks or shares in a company is simple investment and not a violation of the article. However, regularly buying securities for resale is speculation
b.
b.
Experts, arbitrators and private accountants in any contract or transaction connected with the estate or property in the approval, distribution or adjudication of which they had acted. Guardians and executors with respect to property belonging to their wards or the estate.
c.
Notes: a. Actual fraud is not necessary. b. Act is punished because of the possibility that fraud may be committed or that the officer may place his own interest above that of the Government or party which he represents
The mere violation of the prohibition is already punished even if no actual fraud occurs because of the possibility that fraud may be committed or that the officer may place his own interest above that of the government or party he represents. (U. S. vs. Udarbe, 28 Phil. 383)
Section 14, Article VI of the Constitution No Senator or Member of the House of Representatives may personally appear as counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative bodies. Neither shall he, directly or indirectly, be interested financially in any contract with, or in any franchise or special privilege granted by the Government or any subdivision, agency or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary, during his term of office. He shall not intervene in any matter before any office of the government for his pecuniary benefit or where he may be called upon to act on account of his office. Section 13, Article VII of the Constitution The President, Vice-President, the Members of the Cabinet and their deputies or assistant shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with,
MALVERSATION OF PUBLIC FUNDS OR PROPERTY Article 217 MALVERSATION OF PUBLIC FUNDS OR PROPERTY
ELEMENTS COMMON TO ALL ACTS MALVERSATION OF PUBLIC FUNDS OR PROPERTY : a. That the offender be a public officer (or private person if entrusted with public funds or connived with public officers)
b. c.
d.
That he had the custody or control of funds or property (if not accountable for the funds, theft or qualified theft) That those funds or property were public funds or property (even if private funds if attached, seized, deposited or commingled with public funds) That he: 1. 2. Appropriated the funds or property Took or misappropriated them
3.
Consented or, through abandonment or negligence, permitted any other person to take such public funds or property. (it is not necessary that the offender profited thereby. His being remiss in the duty of safekeeping public funds violates the trust reposed) Concept of Malversation It consists in the misappropriation or conversion of public funds or property to ones personal use or knowingly, or through abandonment or negligence allowing other to use or appropriate the same. The offender is made liable because of the nature of his duties to take care of the funds or property
This crime is predicated on the relationship of the offender to the property or funds involved. The offender must be accountable for the property misappropriated. If the fund or property, though public in character is the responsibility of another officer, malversation is not committed unless there is conspiracy.
In determining whether the offender is liable for malversation, it is the nature of the duties of the public officer that controls. While the name of the office is important, what is controlling is whether in performing his duties as a public officer, he has to account or is required by the nature of the performance of a duty, to render an account on the money or property that came into his possession.
It is not necessary that the offender profited because somebody else may have misappropriated the funds in question for as long as the accountable officer was remiss in his duty of safekeeping public funds or property. He is liable for malversation if such funds were lost or otherwise misappropriated by another.
There is no crime of malversation through negligence. The crime is malversation, plain and simple, whether committed through dolo or culpa. There is no crime of malversation under Article 365 on criminal negligence because in malversation under Article 217, the same penalty is imposed whether the malversation results from negligence or was the product of deliberate act.
In determining whether the offender is a public officer, what is controlling is the nature of his office and not the designation
The offender, to commit malversation, must be accountable for the funds or property misappropriated by him. If he is not the one accountable but somebody else, the crime committed is theft. It will be qualified theft if there is abuse of confidence. Accountable officer does not refer only to cashier, disbursing officers or property custodian. Any public officer having custody of public funds or property for which he is accountable can commit the crime of malversation if he would misappropriate such fund or property or allow others to do so.
The funds or property must be received in an official capacity. Otherwise, the crime committed is estafa
Estafa It is usually committed by a private individual Funds or property of misappropriation are privately owned. The offender appropriates personally the funds or property.
Malversation Committed by accountable public officers The object is public fund or property. Personal appropriation is not indispensable because allowing others to commit the misappropriation is also malversation.
When a public officer has official custody or the duty to collect or receive funds due the government, or the obligation to account for them, his misappropriation of the same constitutes malversation
Note that the moment any money is commingled with the public fund even if not due the government, it becomes impressed with the characteristic of being part of public funds. Once they are commingled, you do not know anymore which belong to the government and which belong to the private persons. So that a public vault or safe should not be used to hold any fund other that what is due to the government.
In malversation thru negligence, the negligence of the accountable public officer must be positively and clearly shown to be inexcusable, approximating fraud or malice
Under jurisprudence, when the public officer leaves his post without locking his drawer, there is negligence. Thus, he is liable for the loss.
The measure of negligence to be observed is the standard of care commensurate with the occasion
An accountable public officer may be convicted even if there is no direct evidence of misappropriation and the only evidence is the shortage in his account which he has not been able to explain satisfactorily. (Palma Gil vs. People) If a public officer reports the loss of money before a cash examination is conducted and the cause of the loss as reported has a distinct ring of truth to it, the legal presumption of prima facie evidence of guilt will not apply. In order to support conviction, the prosecution must prove the actual misappropriation of the missing funds.(Salvacion vs. The Honorable Sandiganbayan, G. R. No. 68233, July 11, 1986) To rebut the presumption of guilt prima facie under Article 217, the accused must raise the issue of accuracy, correctness and regularity in the conduct of audit. If asked for a second audit before the filing of the information against him and the same was denied, and during the trial, some disbursement vouchers were introduced which were not considered in the first audit, the denial of the request for a second audit is fatal to the cause of the prosecution because in the meantime, the evidence introduced does not establish a fact beyond reasonable doubt. Had the re-audit requested by the accused been accorded due course, the remaining balance could have been satisfactorily accounted for. (Mahinay vs. The Sandiganbayan. G. R. No. 61442, May 9, 1989) Returning the embezzled funds is not exempting, it is only mitigating
Payment of the amount misappropriated or restitution of property misappropriated does not erase criminal liability but only civil liability.
There is also no malversation when the accountable officer is obliged to go out of his office and borrow the amount corresponding to the shortage and later, the missing amount is found in an unaccustomed place A person whose negligence made possible the commission of malversation by another can be held liable as a principal by indispensable cooperation
Note that damage on the part of the government is not considered an essential element. It is enough that the proprietary rights of the government over the funds have been disturbed through breach of trust.
The grant of loans through the vale system is a clear case of an accountable officer consenting to the improper or unauthorized use of public funds by other persons, which is punishable by law. To tolerate such a practice is to give a license to every disbursing officer to conduct a lending operation with the use of public funds. There is no law or regulation allowing accountable officers to extend loans to anyone against the vales or chits given in exchange by the borrowers. (Meneses vs. Sandiganbayan) A private person may also commit malversation under the following situations:
(1) (2) (3) Conspiracy with a public officer in committing malversation; When he has become an accomplice or accessory to a public officer who commits malversation; When the private person is made the custodian in whatever capacity of public funds or property, whether belonging to national or local government, and he misappropriates the same; When he is constituted as the depositary or administrator of funds or property seized or attached by public authority even though said funds or property belong to a private individual.
(4)
Technical malversation is not included in the crime of malversation. In malversation, the offender misappropriates public funds or property for his own personal use, or allows any other person to take such funds or property for the latters own personal use. In technical malversation, the public officer applies the public funds or property under his administration to another public use different from that for which the public fund was appropriated by law or ordinance. Recourse: File the proper information.
That he fails to do so for a period of two months after such accounts should be rendered. The public officers who are bound to render accounts are the following:
1. 2. 3. 4.
cashiers storekeepers warehousemen and those who by the nature of their position become custodian or public funds or property.
Note: Demand and misappropriation are not necessary
It is sufficient that there is a law or regulation requiring him to render an account. It is the failure to follow the requirement of the law that is made punishable. It is not necessary that the offender prevent the situation of the crime being committed because of the failure of the accountable officer to render an account.
Article 219 FAILURE OF A RESPONSIBLE PUBLIC OFFICER ACCOUNTS BEFORE LEAVING THE COUNTRY
ELEMENTS: a. That the offender is a public officer. b. c.
TO
RENDER
That he must be an accountable officer for public funds or property. That he must have unlawfully left (or be on the point of leaving) the Philippines without securing from the Commission on Audit a certificate showing that his accounts have been finally settled.
Who can commit this crime? A responsible public officer, not necessarily an accountable one, who leaves the country without first securing clearance from the Commission on Audit.
Note: The act of leaving the Philippines must be unauthorized or not permitted by law
Mere leaving without securing clearance constitutes violation of the Revised Penal Code. It is not necessary that they really misappropriated public funds.
OF
PUBLIC
FUNDS
OR
PROPERTY
(technical
ELEMENTS: a. That the offender is a public officer. b. That there is public fund or property under his administration. That such public fund or property has been appropriated by law or ordinance (without this, it is simple malversation even if applied to other public purpose). That he applies the same to a public use other than for which such fund or property has been appropriated by law or ordinance.
c.
d.
The term technical malversation is used because in this crime, the fund or property involved is already appropriated or earmarked for a certain public purpose. The offender is entrusted with such fund or property only to administer or apply the same to the public purpose for which it was appropriated by law or ordinance. Instead of applying it to the public purpose to which the fund or property was already appropriated by law, the public officer applied it to another purpose.
To distinguish this article with Art 217, just remember that in illegal use of public funds or property, the offender does not derive any personal gain, the funds are merely devoted to some other public use Absence of damage is only a mitigating circumstance
Since damage is not an element of malversation, even though the application made proved to be more beneficial to public interest than the original purpose for which the amount or property was appropriated by law, the public officer involved is still liable for technical malversation. If public funds were not yet appropriated by law or ordinance, and this was applied to a public purpose by the custodian thereof, the crime is plain and simple malversation, not technical malversation. If the funds had been appropriated for a particular public purpose, but the same was applied to private purpose, the crime committed is simple malversation only. Illustration: The office lacked bond papers. What the government cashier did was to send the janitor, get some money from his collection, told the janitor to buy bond paper so that the office will have something to use. The amount involved maybe immaterial but the cashier commits malversation pure and simple. This crime can also be committed by a private person.
Article 222 PERSONS WHO MAY BE HELD LIABLE UNDER ARTS 217 TO 221
Sheriffs and receivers fall under the term administrator A judicial administrator in charge of settling the estate of the deceased is not covered by the article
Here, the funds or property belong to private individuals, but they are considered public funds or property if they come to the possession of the public officer because of 1) a writ of attachment; or 2) if they are seized by virtue of a search warrant. Or 3) if they are ordered deposited pending determination of ownership in the administrative or judicial proceedings. Private individuals may also be liable for malversation if they act as conspirators in the commission of the crime.
Detention prisoner: refers to a person in legal custody, arrested for and charged with some crime or public offense The release of a detention prisoner who could not be delivered to judicial authorities within the time fixed by law is not infidelity in the custody of a prisoner. Neither is mere leniency or laxity in the performance of duty constitutive of infidelity
A municipal mayor who utilized the prisoners services for domestic chores in his house, including using him as a cook is liable for faithlessness in the custody of prisoner (Art. 223) even though the convict may not have fled, in as much as the prisoners leaving the prison was effected through him. (People vs. Evangelista, C.A. 38 O.G. 158).
The article punishes a definite laxity which amounts to deliberate nonperformance of a duty
Not every error is negligence under this article. To be liable, the negligence must be notorious and apparent. The laxity must be definite and must seriously suggest a deliberate non-performance of a duty. The negligence which is punishable however is not such definite laxity at all but that which amounts to deliberate non-performance of the jailer or the guard. So that if a policemen on guard duty unlocked the door of the jail to let a detention prisoner go out so he can clean the premises, but on the latters third trip to a nearby faucet, he walked behind the police headquarters climbed over the wall and escape, the crime is not committed. (People vs. Solis, C.A. 43 O.G. 580). The fact that the public officer recaptured the prisoner who had escaped from his custody does not afford complete exculpation The liability of an escaping prisoner: a. if he is a prisoner by final judgment, he is liable for evasion of service (art 157) b. if he is a detention prisoner, he does not incur criminal liability (unless cooperating with the offender).
Note: This article is not applicable if a private person made the arrest and he consented to the escape of the person he arrested
The offender under this article is not the one who arrested the escaping prisoner but one who agreed to have the custody or charge of the prisoner or person under arrest. ORTEGA NOTES:
The crime is infidelity in the custody of prisoners if the offender involved is the custodian of the prisoner. If the offender who aided or consented to the prisoners escaping from confinement, whether the prisoner is a convict or a detention prisoner, is not the custodian, the crime is delivering prisoners from jail under Article156. The crime of infidelity in the custody of prisoners can be committed only by the custodian of the prisoner. If the jail guard who allowed the prisoner to escape is already off-duty at that time and he is no longer the custodian of the prisoner, the crime committed by him is delivering prisoners from jail. Note that you do not apply here the principle of conspiracy that the act of one is the act of all. The party who is not the custodian who conspired with the custodian in allowing the prisoner to escape does not commit infidelity in the custody of the prisoner. He commits the crime of delivering prisoners from jail.
Question & Answer If a private person approached the custodian of the prisoner and for a certain consideration, told the custodian to leave the door of the cell unlocked for the prisoner to escape. What crime had been committed?
The act of obstruction, destruction or concealment must cause damage to a third party or to the public interest. Damage to a third party is usually pecuniary; but damage to public interest may consist in mere alarm to the public or the alienation of its confidence on any branch of the government service.
The document must be complete and one by which a right could be established or an obligation could be extinguished Books, periodicals, pamphlets etc are not documents Papers would include checks, promissory notes and paper money
Removal of a document presupposes unlawful appropriation of the official document. Destruction means to render the document useless. Its nature to prove the existence of a fact is lost such that it cannot anymore prove the probability or improbability of a fact in issue. Concealment on the other hand means to make it appear that the document is not available. A post office official who retained the mail without forwarding the letters to their destination is guilty of infidelity in the custody of papers Removal of a document or paper must be for an illicit purpose.
If the removal of the document is for a lawful purpose and that is, to secure the same from imminent danger or loss, there is no crime committed under the law, (Kataniag vs. People, 74 Phil. 45). There is illicit purpose when the intention of the offender is to:
The act of removal, destruction or concealment should be coupled with criminal intent or malice (Manzanaris vs. Sandiganbayan, et al., G.R. No. 64750, Jan. 30, 1984). Removal is consummated upon removal or secreting away of the document from its usual place. It is immaterial whether or not the illicit purpose of the offender has been accomplished
Removal of public records by the custodian does not require that the record be brought out of the premises where it is kept. It is enough that the record be removed from the place where it should be and transferred to another place where it is not supposed to be kept. If damage is caused to the public service, the public officer is criminally liable for infidelity in the custody of official documents.
Infidelity in the custody of documents through destruction or concealment does not require proof of an illicit purpose
Where in case for bribery or corruption, the monetary considerations was marked as exhibits, such considerations acquires the nature of a document such that if the same would be spent by the custodian the crime is not malversation but Infidelity in the custody of public records, because the money adduced as exhibits partake the nature of a document and not as money. Although such monetary consideration acquires the nature of a document, the best evidence rule does not apply here. Example, photocopies may be presented in evidence.
Delivering the document to the wrong party is infidelity in the custody thereof The damage may either be great or small
Damage to public interest is necessary. However, material damage is not necessary. Although there is no material damage caused, mere delay in rendering public service is considered damage.
Distinction between infidelity in the custody of public document, estafa and malicious mischief In infidelity in the custody of public document, the offender is the custodian of the official document removed or concealed. In estafa, the offender is not the custodian of the document removed or concealed. In malicious mischief, the offender purposely destroyed and damaged the property/document.
It is the breaking of the seals and not the opening of a closed envelope which is punished Damage or intent to cause damage is not necessary; damage is presumed
If the official document is sealed or otherwise placed in an official envelope, the element of damage is not required. The mere breaking of the seal or the mere opening of the document would already bring about infidelity even though no damage has been suffered by anyone or by the public at large. The offender does not have to misappropriate the same. Just trying to discover or look what is inside is infidelity already. A crime is already committed regardless of whether the contents of the document are secret or private. It is enough that it is entrusted to him in a sealed form or in a closed envelope and he broke the seal or opened the envelop. Public trust is already violated if he managed to look into the contents of the document. Distinction between infidelity and theft There is infidelity if the offender opened the letter but did not take the same. There is theft if there is intent to gain when the offender took the money. Note that the document must be complete in legal sense. If the writings are mere form, there is no crime. Illustration: As regard the payroll, which has not been signed by the Mayor, no infidelity is committed because the document is not yet a payroll in the legal sense since the document has not been signed yet. In "breaking of seal", the word "breaking" should not be given a literal meaning. Even if actually, the seal was not broken, because the custodian managed to open the parcel without breaking the seal.
In Article 227, the mere breaking of the seal is what is made punishable while in Article 228, the mere opening of closed documents is enough to hold the offender criminally liable. The breaking of the seal or the opening of the closed document must be done without lawful authority or order from competent authority. In both offenses, damage to the public interest is not required.
The secrets referred to in this article are those which have an official or public character. It does not include secret information regarding private individuals. Nor does it include military or State secrets in as much as the revelation of the same is classified as espionage, a crime in violation of the national security of the State.
ELEMENTS OF PAR 2 DELIVERING WRONGFULLY PAPERS OR COPIES OF PAPERS OF WHICH HE MAY HAVE CHARGE AND WHICH SHOULD NOT BE PUBLISHED: a. That the offender is a public officer. b. c. d. e. f. That he has charge of papers. That those papers should not be published. That he delivers those papers or copies thereof to a third person. That the delivery is wrongful. That damage be caused to public interest.
Notes:
a. b.
Charge: means custody or control. If he is merely entrusted with the papers and not with the custody thereof, he is not liable under this article If the papers contain secrets which should not be published, and the public officer having charge thereof removes and delivers them wrongfully to a third person, the crime is revelation of secrets. On the other hand, if the papers do not contain secrets, their removal for an illicit purpose is infidelity in the custody of documents Damage is essential to the act committed
c.
The gravamen of the offense is the open refusal of the offender to execute the order without justifiable reason.
Note: Judgment should have been rendered in a hearing and issued within proper jurisdiction with all legal solemnities required
The term execute as found in the law does not only means performance of an act since the judgment, decision or order may also direct the nonperformance of an act. The article does not apply to the members of Congress.
Article 232 DISOBEDIENCE TO ORDER OF SUPERIOR OFFICER WHEN SAID ORDER WAS SUSPENDED BY INFERIOR OFFICER
ELEMENTS: a. That the offender is a public officer.
Note: A public officer is not liable if the order of the superior is illegal
What is contemplated here is a situation where the subordinate has some doubts regarding the legality of the order. Hence, he is afforded an opportunity to suspend the execution of the order, so as to give him time to further study the same. He commits no crime for doing this act. However, if he continues to suspend the execution of the order notwithstanding the disapproval by his superior of the stay of the execution, such refusal on his part already constitutes a crime punishable under this article.
Involves a request from one public officer to another Damage to the public interest or third party is essential
Damage is essential whether great or small. But the penalty is affected by the seriousness of the damage. Note that the refusal must be done with malice. Demand is necessary
The situation contemplated herein may refer to the administration of justice before the case is filed in court. Competent authority may refer to persons in authority who are charged by the law to help in the administration of justice. The term may refer to police authorities. However, when a case
After proclamation of a candidate to a public office, it becomes his duty to render public service. Since it is his duty, then his refusal to perform such duty is punishable under the law.
Note: Even if the person did not run for the office on his own will as the Constitution provides that every citizen may be required to render service
b.
c.
That he has under charge a prisoner or detention prisoner (otherwise the crime is physical injuries) That he maltreats such prisoner in either of the following manners: 1. By overdoing himself in the correction or handling of a prisoner or detention prisoner under his charge either
2. by maltreating such prisoner to extort a confession or to obtain some information from the prisoner.
The maltreatment does not really require physical injuries. Any kind of punishment not authorized or though authorized if executed in excess of the prescribed degree. But if as a result of the maltreatment, physical injuries were caused to the prisoner, a separate crime for the physical injuries shall be filed. You do not complex the crime of physical injuries with the maltreatment because the way Article 235 is worded, it prohibits the complexing of the crime. If the maltreatment was done in order to extort confession, therefore, the constitutional right of the prisoner is further violated. The penalty is qualified to the next higher degree.
The public officer must have actual charge of the prisoner in order to be held liable
If the public officer is not the custodian of the prisoner, and he manhandles the latter, the crime is physical injuries.
If a Barangay Captain maltreats a person after the latters arrest but before confinement, the offense is not maltreatment but physical injuries. The victim must actually be confined either as a convict or a detention prisoner for Art. 235 to apply. (People vs. Baring, et al., 37 O.G. 1366). To be considered a detention prisoner, the person arrested must be placed in jail even for just a short while
The offended party here must be a prisoner in the legal sense. The mere fact that a private citizen had been apprehended or arrested by a law enforcer does not constitute him a prisoner. To be a prisoner, he must have been booked and incarcerated no matter how short it is. Illustration: A certain snatcher was arrested by a law enforcer, brought to the police precinct, turned over to the custodian of that police precinct. Every time a policeman entered the police precinct, he would ask, What is this fellow doing here? What crime has he committed?. The other policeman would then tell, This fellow is a snatcher. So every time a policeman would come in, he would inflict injury to him. This is not maltreatment of prisoner because the offender is not the custodian. The crime is only physical injuries. But if the custodian is present there and he allowed it, then he will be liable also for the physical injuries inflicted, but not for maltreatment because it was not the custodian who inflicted the injury.
Offender may also be held liable for physical injuries or damage caused
Note: The article contemplates officers who have been suspended, separated or declared over-aged or dismissed
The crime is committed only if the public officer has lost every right to the office because there are offices which require the officer to continue serving as such properly relieved. The law is intended to put an end to the principle of hold over.
Oral resignation is not allowed. The resignation must be in writing and directed to the appointing power who has the authority to accept or disapprove the same. This requirement is indispensable because the letter of resignation goes into a process. The offense is qualified if the purpose behind the abandonment is to evade the discharge of duties consisting of preventing, prosecuting or punishing any of the crimes against national security. The penalty is higher ( one degree ). This involves the following crimes: a. treason b. conspiracy and proposal to commit conspiracy c. misprision of treason d. espionage e. inciting to war or giving motives to reprisals f. violation of neutrality g. correspondence with hostile country h. flight to enemy country i. piracy and mutiny on the high seas j. rebellion k. conspiracy and proposal to commit rebellion l. disloyalty to public officers m. inciting to rebellion n. sedition o. conspiracy to commit sedition p. inciting to sedition Dereliction of Duty (208) Public officer does not abandon his office but merely fails to prosecute a violation of the law.
Abandonment of Office or Position (238) There is actual abandonment through resignation to evade the discharge of duties.
Note: Legislative officers are not liable for usurpation of executive functions
Note: A mayor is guilty under this article when he investigates a case while a justice of the peace is in the municipality
Even if the jurisdiction of the offender is later upheld or sustained, he is still liable because what is in issue is not the legality of his jurisdiction, but whether he obeyed or disobeyed the temporary restraining order issued by the higher authority.
Note: Legislative or judicial officers are not liable under this article
Recommending, knowing that the person recommended is not qualified is not a crime
The word nominate is not the same as recommend. To nominate is to guarantee to the appointing power that the person nominated has all the qualifications to the office. Recommendation on the other hand does not make any guarantee as to the legal fitness of the candidate to public office.
The mother of the person in the custody of the public officer is not included
This crime cannot be committed if the warden is a woman and the prisoner is a man. Men have no chastity. If the warden is also a woman but is a lesbian, it is submitted that this crime could be committed, as the law does not require that the custodian be a man but requires that the offended be a woman.
Solicit: means to propose earnestly and persistently something unchaste and immoral to a woman
It is not necessarily for the offended party to surrender her virtue to consummate the crime. Mere proposal is sufficient to consummate the crime.
Even if the woman may have lied with the hearing officer or to the public officer and acceded to him, that does not change the crime because the crime seeks to penalize the taking advantage of official duties. It is immaterial whether the woman did not agree or agreed to the solicitation. If the woman did not agree and the public officer involved pushed through with the advances, attempted rape may have been committed. Legally, a prisoner is an accountability of the government. So the custodian is not supposed to interfere. Even if the prisoner may like it, he is not supposed to do that. Otherwise, abuse against chastity is committed. If he forced himself against the will of the woman, another crime is committed, that is, rape aside from abuse against chastity. You cannot consider the abuse against chastity as absorbed in the rape because the basis of penalizing the acts is different from each other.
TITLE EIGHT CRIMES AGAINST PERSONS Crimes against persons 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. Parricide (Art. 246); Murder (Art. 248); Homicide (Art. 249); Death caused in a tumultuous affray (Art. 251); Physical injuries inflicted in a tumultuous affray (Art. 252); Giving assistance to suicide (Art. 253); Discharge of firearms (Art. 254); Infanticide (Art. 255); Intentional abortion (Art. 256); Unintentional abortion (Art. 257); Abortion practiced by the woman herself or by her parents (Art. 258); Abortion practiced by a physician or midwife and dispensing of abortives (Art. 259); Duel (Art. 260); Challenging to a duel (Art. 261); Mutilation (Art. 262); Serious physical injuries (Art. 263); Page 186 of 224
Notes:
Except between husband and wife, the offender must be related to the offended party by blood. 2. Parents and children are not included in the term ascendants or descendants 3. The other ascendant or descendant must be legitimate. On the other hand, the father, mother or child may be legitimate or illegitimate
If the offender and the offended party, although related by blood and in the direct line, are separated by an intervening illegitimate relationship, parricide can no longer be committed. The illegitimate relationship between the child and the parent renders all relatives after the child in the direct line to be illegitimate too. The only illegitimate relationship that can bring about parricide is that between parents and illegitimate children as the offender and the offended parties.
A, an illegitimate son of B, who killed the legitimate father of the latter, is not guilty of Parricide because in case of other ascendants (grandparents, great grandparents, etc.), the relationship with the killer must be legitimate. The same is true with other descendants that is, grandchildren, great grandchildren, etc.
4. The child should not be less than 3 days old. Otherwise, the offense is infanticide
That the mother killed her child in order to conceal her dishonor is not mitigating. This is immaterial to the crime of parricide, unlike in the case of infanticide. If the child is less than three days old when killed, the crime is infanticide and intent to conceal her dishonor is considered mitigating.
5.
In killing a spouse, there must be a valid subsisting marriage at the time of the killing. Also, the information should allege the fact of such valid marriage between the accused and the victim. In a ruling by the Supreme Court, it was held that if the information did not allege that the accused was legally married to the victim, he could not be convicted of parricide even if the marriage was established during the trial. In such cases, relationship shall be appreciated as generic aggravating circumstance. The Supreme Court has also ruled that Muslim husbands with several wives can be convicted of parricide only in case the first wife is killed. There is no parricide if the other wives are killed although their marriage is recognized as valid. This is so because a Catholic man can commit the crime only once. If a Muslim husband could commit this crime more than once, in effect, he is being punished for the marriage which the law itself authorized him to contract.
7.
Even if the offender did not know that the person he had killed is his son, he is still liable for parricide because the law does not require knowledge of the relationship Article 365 expressly provides that parricide can be committed through reckless imprudence. The penalty will not be under Article 246 but under Article 365. Similarly, parricide can be committed by mistake. This is demonstrated in a situation where a person wanting to kill a stranger, kills his own father by mistake. Although the crime committed is parricide, the offender will not be punished under Article 246 but under Article 49, which prescribes a penalty much lower than that provided under Article 246.
UNDER
EXCEPTIONAL
Requisites: 1. A legally married person or parent surprises his spouse or daughter (the latter must be under 18 and living with them) in the act of committing sexual intercourse with another person 2. 3. He/she kills any or both of them or inflicts upon any or both of them any serious physical injury in the act or immediately thereafter He has not promoted or facilitated the prostitution of his wife or daughter, or that he has not consented to the infidelity of the other spouse. 1. Article does not define or penalize a felony
Notes:
Article 247, far from defining a felony merely grants a privilege or benefit, more of an exempting circumstance as the penalty is intended more for the protection of the accused than a punishment. Death under exceptional character can not be qualified by either aggravating or mitigating circumstances.
If the accused fails to establish the circumstances called for in Article 247, he/she will be guilty of Parricide and Murder or Homicide if the victims were killed.
4.
5. Art 247 is applicable when the accused did not see his spouse in the act sexual intercourse with another person. However, it is enough that circumstances reasonably show that the carnal act is being committed or has been committed It is not necessary that the spouse actually saw the sexual intercourse being committed. It is enough that he/she surprised them under such circumstances that no other reasonable conclusion can be inferred but that a carnal act was being performed or has just been committed.
The article does not apply where the wife was not surprised in flagrant adultery but was being abused by a man as in this case there will be defense of relation. If the offender surprised a couple in sexual intercourse, and believing the woman to be his wife, killed them, this article may be applied if the mistake of facts is proved. The benefits of this article do not apply to the person who consented to the infidelity of his spouse or who facilitated the prostitution of his wife.
6.
So if the surprising took place before any actual sexual intercourse could be done because the parties are only in their preliminaries, the article cannot be invoked anymore.
7.
Immediately thereafter: means that the discovery, escape, pursuit and the killing must all form parts of one continuous act
The phrase immediately thereafter has been interpreted to mean that between the surprising and the killing of the inflicting of the physical injury, there should be no break of time. In other words, it must be a continuous process. If there was already a break of time between the sexual act and the killing or inflicting of the injury, the law presupposes that the offender regained his reason and therefore, the article will not apply anymore.
8.
The killing must be the direct by-product of the rage of the accused
Article 247 does not provide that the victim is to be killed instantly by the accused after surprising his spouse in the act of intercourse. What is required is that the killing is the proximate result of the outrage overwhelming the accused upon the discovery of the infidelity of his spouse. The killing should have been actually motivated by the same blind impulse.
(4) Physical injuries through reckless imprudence, if a third party is injured. If death results or the physical injuries are serious, there is criminal liability although the penalty is only destierro. The banishment is intended more for the protection of the offender rather than a penalty. If the crime committed is less serious physical injuries or slight physical injuries, there is no criminal liability.
b.
d.
e. f. 4.
Notes: While the circumstance of by a band is not among those enumerated that could qualify killing to murder, it would seem that if the killers constituted a band, the crime is murder because the circumstance of with the aid of armed men is included in the qualifying circumstances. 1. The victim must be killed in order to consummate the offense. Otherwise, it would be attempted or frustrated murder Killing a person with treachery is murder even if there is no intent to kill. (People vs. Cagoco, 58 Phil. 530) 2. Any of the qualifying circumstances must be alleged in the information. Otherwise, they will only be considered as generic aggravating circumstances When the other circumstances are absorbed or included in one qualifying circumstance, they cannot be treated or separated as generic aggravating circumstances. (People vs. Remalante, 92 Phil. 48) 3. poison Treachery and premeditation are inherent in murder with the use of
Ortega Notes:
In murder, any of the following qualifying circumstances is present: (1) Treachery, taking advantage of superior strength, aid or armed men, or employing means to waken the defense, or of means or persons to insure or afford impunity;
(5)
When the actual victim turns out to be different from the intended victim, premeditation is not aggravating. (People vs. Guillen, 85 Phil. 307)
(6) Cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse. Cruelty includes the situation where the victim is already dead and yet, acts were committed which would decry or scoff the corpse of the victim. The crime becomes murder. Hence, this is not actually limited to cruelty. It goes beyond that because even if the victim is already a corpse when the acts deliberately augmenting the wrong done to him were committed, the killing is still qualified to murder although the acts done no longer amount to cruelty. Under Article 14, the generic aggravating circumstance of cruelty requires that the victim be alive, when the cruel wounds were inflicted and, therefore, must be evidence to that effect. Yet, in murder, aside from cruelty, any act that would amount to scoffing or decrying the corpse of the victim will qualify the killing to murder. Illustration: Two people engaged in a quarrel and they hacked each other, one killing the other. Up to that point, the crime is homicide. However, if the killer tried to dismember the different parts of the body of the victim, indicative of an intention to scoff at or decry or humiliate the corpse of the victim, then what would have murder because this circumstance is recognized under Article 248, even though it was inflicted or was committed when the victim was already dead.
(2)
(3 (4) (5)
(6) (7)
The essence of kidnapping or serious illegal detention is the actual confinement or restraint of the victim or deprivation of his liberty. If there is no showing that the accused intended to deprive their victims of their liberty for some time and there being no appreciable interval between their being taken and their being shot, murder and not kidnapping with murder is committed.
1. Intent to kill is conclusively presumed when death resulted. Hence, evidence of intent to kill is required only in attempted or frustrated homicide 2. In all crimes against persons in which the death of the victim is an element, there must be satisfactory evidence of (1) the fact of death and (2) the identity of the victim
Distinction between homicide and physical injuries: In attempted or frustrated homicide, there is intent to kill. In physical injuries, there is none. However, if as a result of the physical injuries inflicted, the victim died, the crime will be homicide because the law punishes the result, and not the intent of the act. The following are holdings of the Supreme Court with respect to the crime of homicide: (1) (2) Physical injuries are included as one of the essential elements of frustrated homicide. If the deceased received two wounds from two persons acting independently of each other and the wound inflicted by either could have caused death, both of them are liable for the death of the victim and each of them is guilty of homicide. If the injuries were mortal but were only due to negligence, the crime committed will be serious physical injuries through reckless imprudence as the element of intent to kill in frustrated homicide is incompatible with negligence or imprudence. Where the intent to kill is not manifest, the crime committed has been generally considered as physical injuries and not attempted or frustrated murder or homicide. When several assailants not acting in conspiracy inflicted wounds on a victim but it cannot be determined who inflicted which would which caused the death of the victim, all are liable for the victims death.
(3)
(4) (5)
Note that while it is possible to have a crime of homicide through reckless imprudence, it is not possible to have a crime of frustrated homicide through reckless imprudence.
If a boxer killed his opponent in a boxing bout duly licensed by the Government without any violation of the governing rules and regulations, there is no Homicide to speak of. If he hit his opponent below the belt without any intention to do so, it is Homicide Through Reckless Imprudence if the latter died as a result. If he intentionally hit his opponent on that part of his body causing the death, the crime is Homicide. The shooting of a peace officer who was fully aware of the risks in pursuing the malefactors when done in a spur of the moment is only Homicide. (People vs. Porras, 255 SCRA 514).
Article 250 PENALTY FOR FRUSTRATED PARRICIDE, MURDER OR HOMICIDE Article 251 DEATH IN A TUMULTOUS AFFRAY
ELEMENTS: 1. That there be several persons. 2. 3. 4. 5. 6. That they did not compose groups organized for the common purpose of assaulting and attacking each other reciprocally. That these several persons quarreled and assaulted one another in a confused and tumultuous manner. That someone was killed in the course of the affray. That it cannot be ascertained who actually killed the deceased. That the person or persons who inflicted serious physical injuries or who used violence can be identified. 1. Tumultuous affray exists when at least 4 persons take part in it
Notes: 2. When there are 2 identified groups of men who assaulted each other, there is no tumultuous affray 3. a. Persons liable are: person/s who inflicted serious physical injuries
b. if it is not known who inflicted serious physical injuries on the deceased, all persons who used violence upon the person of the victim If those who actually killed the victim can be determined, they will be the ones to be held liable, and those who inflicted serious or less serious or slight physical injuries shall be punished for said corresponding offenses provided no conspiracy is established with the killers.
The person killed in the affray need not be one of the participants.
As long as it cannot be determined who killed the victim, all of those persons who inflicted serious physical injuries will be collectively answerable for the death of that fellow. The Revised Penal Code sets priorities as to who may be liable for the death or physical injury in tumultuous affray: (1) (2) (3) The persons who inflicted serious physical injury upon the victim; If they could not be known, then anyone who may have employed violence on that person will answer for his death. If nobody could still be traced to have employed violence upon the victim, nobody will answer. The crimes committed might be disturbance of public order, or if participants are armed, it could be tumultuous disturbance, or if property was destroyed, it could be malicious mischief.
Note that in slight physical injuries is inflicted in the tumultuous affray and the identity of the offender is established, the provisions of this article will not be observed. Instead, the offender shall be prosecuted in the ordinary course of law.
Giving assistance to suicide means giving means (arms, poison, etc.) or whatever manner of positive and direct cooperation (intellectual aid, suggestions regarding the mode of committing suicide, etc.).
1.
In this crime, the intention must be for the person who is asking the assistance of another to commit suicide. If the intention is not to commit suicide, as when he just wanted to have a picture taken of him to impress upon the world that he is committing suicide because he is not satisfied with the government, the crime is held to be inciting to sedition. He becomes a co-conspirator in the crime of inciting to sedition, but not of giving assistance to suicide because the assistance must be given to one who is really determined to commit suicide.
2. A pregnant woman who tried to commit suicide by means of poison but instead of dying, the fetus in her womb was expelled, is not liable for abortion
3.
Assistance to suicide is different from mercy-killing. Euthanasia/mercy-killing is the practice of painlessly putting to death a person suffering from some incurable disease. In this case, the person does not want to die. A doctor who resorts to euthanasia may be held liable for murder
If the person does the killing himself, the penalty is similar to that of homicide, which is reclusion temporal. There can be no qualifying circumstance because the determination to die must come from the victim. This does not contemplate euthanasia or mercy killing where the crime is murder, if without consent; if with consent, covered by Article 253. In mercy killing, the victim is not in a position to commit suicide. Whoever would heed his advice is not really giving assistance to suicide but doing the killing himself. In giving assistance to suicide, the principal actor is the person committing the suicide. Both in euthanasia and suicide, the intention to the end life comes from the victim himself; otherwise the article does not apply. The victim must persistently induce the offender to end his life.
4.
Even if the suicide did not materialize, the person giving assistance to suicide is also liable but the penalty shall be one or two degrees lower depending on whether it is frustrated or attempted suicide.
The following are holdings of the Supreme Court with respect to this crime: (1) (2) The crime is frustrated if the offender gives the assistance by doing the killing himself as firing upon the head of the victim but who did not die due to medical assistance. The person attempting to commit suicide is not liable if he survives. The accused is liable if he kills the victim, his sweetheart, because of a suicide pact.
This crime cannot be committed through imprudence because it requires that the discharge must be directed at another.
1.
The offender must shoot at another with any firearm without intention of killing him. If the firearm is not discharged at a person, the act is not punished under this article
If the firearm is directed at a person and the trigger was pressed but did not fire, the crime is frustrated discharge of firearm. If the discharge is not directed at a person, the crime may constitute alarm and scandal.
2. A discharge towards the house of the victim is not discharge of firearm. On the other hand, firing a gun against the house of the offended party at random, not knowing in what part of the house the people were, it is only alarm under art 155. 3. Usually, the purpose of the offender is only to intimidate or frighten the offended party 4. Intent to kill is negated by the fact that the distance between the victim and the offender is 200 yards 5. A person can be held liable for discharge even if the gun was not pointed at the offended party when it fired for as long as it was initially aimed at or against the offended party
The following are holdings of the Supreme Court with respect to this crime: (1) If serious physical injuries resulted from discharge, the crime committed is the complex crime of serious physical injury with illegal discharge of firearm, or if less serious physical injury, the complex crime of less serious physical injury with illegal discharge of firearm will apply. Firing a gun at a person even if merely to frighten him constitutes illegal discharge of firearm.
(2)
The gun used in the crime must be licensed, or the person using the firearm must be authorized to carry the same, otherwise, in addition to the crime punished under this article, accused may also be held liable for illegal possession of firearm under Republic Act No. 1866 as amended by Republic Act No. 8294.
Notes:
2. When infanticide is committed by the mother or maternal grandmother in order to conceal the dishonor, such fact is only mitigating 3. The delinquent mother who claims that she committed the offense to conceal the dishonor must be of good reputation. Hence, if she is a prostitute, she is not entitled to a lesser penalty because she has no honor to conceal
Concealment of dishonor is not an element of infanticide. It merely lowers the penalty. If the child is abandoned without any intent to kill and death results as a consequence, the crime committed is not infanticide but abandonment under Article 276. If the purpose of the mother is to conceal her dishonor, infanticide through imprudence is not committed because the purpose of concealing the dishonor is incompatible with the absence of malice in culpable felonies.
4. There is no infanticide when the child was born dead, or although born alive it could not sustain an independent life when it was killed
4.
Ortega Notes:
Acts punished 1. 2. 3. Using any violence upon the person of the pregnant woman; Acting, but without using violence, without the consent of the woman. (By administering drugs or beverages upon such pregnant woman without her consent.) Acting (by administering drugs or beverages), with the consent of the pregnant woman.
Abortion is the violent expulsion of a fetus from the maternal womb. If the fetus has been delivered but it could not subsist by itself, it is still a fetus and not a person. Thus, if it is killed, the crime committed is abortion not infanticide. Distinction between infanticide and abortion
Notes:
Unintentional abortion requires physical violence inflicted deliberately and voluntarily by a third person upon the person of the pregnant woman. Mere intimidation is not enough unless the degree of intimidation already approximates violence. If the pregnant woman aborted because of intimidation, the crime committed is not unintentional abortion because there is no violence; the crime committed is light threats. If the pregnant woman was killed by violence by her husband, the crime committed is the complex crime of parricide with unlawful abortion. While there is no intention on the part of the accused to cause an abortion, nonetheless, the violence that he employs on the pregnant woman must be intentional. In other words, only the abortion is unintended.
1.
Unintentional abortion may be committed through negligence as it is enough that the use of violence be voluntary. Illustration: A quarrel ensued between A, husband, and B, wife. A became so angry that he struck B, who was then pregnant, with a soft drink bottle on the hip. Abortion resulted and B died.
Take note that while unintentional abortion appears to be a crime that should be committed with deliberate intent because of the requirement that the violence employed on the victim must be intentional, nevertheless, if the circumstances of the case justifies the application of the other means of
- DEBATABLE
In US v. Jeffry, 15 Phil. 391, the Supreme Court said that knowledge of pregnancy of the offended party is not necessary. In People v. Carnaso, decided on April 7, 1964, however, the Supreme Court held that knowledge of pregnancy is required in unintentional abortion. Criticism: Under Article 4, paragraph 1 of the Revised Penal Code, any person committing a felony is criminally liable for all the direct, natural, and logical consequences of his felonious acts although it may be different from that which is intended. The act of employing violence or physical force upon the woman is already a felony. It is not material if offender knew about the woman being pregnant or not. If the act of violence is not felonious, that is, act of self-defense, and there is no knowledge of the womans pregnancy, there is no liability. If the act of violence is not felonious, but there is knowledge of the womans pregnancy, the offender is liable for unintentional abortion. Illustration: The act of pushing another causing her to fall is a felonious act and could result in physical injuries. Correspondingly, if not only physical injuries were sustained but abortion also resulted, the felonious act of pushing is the proximate cause of the unintentional abortion.
3. If there is no intention to cause abortion and neither was violence exerted, arts 256 and 257 does not apply
Questions & Answers 1. A pregnant woman decided to commit suicide. She jumped out of a window of a building but she landed on a passerby. She did not die but an abortion followed. Is she liable for unintentional abortion? No. What is contemplated in unintentional abortion is that the force or violence must come from another. If it was the woman doing the violence upon herself, it must be to bring about an abortion, and therefore, the crime will be intentional abortion. In this case, where the woman tried to commit suicide, the act of trying to commit suicide is not a felony under the Revised Penal Code. The one penalized in suicide is the one giving assistance and not the person trying to commit suicide. 2. If the abortive drug used in abortion is a prohibited drug or regulated drug under Presidential Decree No. 6425 (The Dangerous Drugs Act of 1972), as amended, what are the crimes committed?
PHYSICIAN
OR
MIDWIFE
AND
ELEMENTS: 1. That there is a pregnant woman who has suffered an abortion. 2. 3. 4. That the abortion is intended. That the offender, who must be a physician or midwife, causes or assists in causing the abortion. That said physician or midwife takes advantage of his or her scientific knowledge or skill.
Notes:
1.
It is not necessary that the pharmacist knew that the abortive would be used to cause abortion. What is punished is the act of dispensing an abortive without the proper prescription. It is not necessary that the abortive be actually used 2. If the pharmacist knew that the abortive would be used to cause abortion and abortion results, he is liable as an accomplice
If the abortion is produced by a physician to save the life of the mother, there is no liability. This is known as a therapeutic abortion. But abortion without medical necessity to warrant it is punishable even with the consent of the woman or her husband. Illustration: A woman who is pregnant got sick. The doctor administered a medicine which resulted in Abortion. The crime committed was unintentional abortion through negligence or imprudence.
Question & Answer What is the liability of a physician who aborts the fetus to save the life of the mother? None. This is a case of therapeutic abortion which is done out of a state of necessity. Therefore, the requisites under Article 11, paragraph 4, of the Revised Penal Code must be present. There must be no other practical or less harmful means of saving the life of the mother to make the killing justified.
Persons liable: 1. Principals person who killed or inflicted physical injuries upon his adversary, or both combatants in any other cases
2.
Accomplices as seconds
The person who killed or injured his adversary. If both survive, both will be liable for the crime of duel as principals by direct participation. The seconds will be held liable as accomplices.
2.
While the agreement is to fight to the death, the law will disregard the intent to kill, if only physical injuries is inflicted. The crime will not be classified as attempted or frustrated homicide. If the accused and the deceased, after a verbal heated argument in a bar, left the place at the same time and pursuant to their agreement, went to the plaza to fight each other to death with knives which they bought on the way, the facts do not constitute the crime of dueling since there were no seconds who fixed the conditions of the fight in a more or less formal manner. If one was killed, the crime committed would be Homicide.
There is no such crime nowadays because people hit each other even without entering into any pre-conceived agreement. This is an obsolete provision.
If the challenge is only to fight, without the challenger having in mind a formal combat to be agreed upon with the assistance of seconds as contemplated under the law, the crime committed will only be grave or light threat as the case may be.
Illustration: If one challenges another to a duel by shouting Come down, Olympia, let us measure your prowess. We will see whose intestines will come out. You are a coward if you do not come
Notes:
Mutilation is the lopping or clipping off of some part of the body. The intent to deliberately cut off the particular part of the body that was removed from the offended party must be established. If there is no intent to deprive victim of particular part of body, the crime is only serious physical injury. The common mistake is to associate this with the reproductive organs only. Mutilation includes any part of the human body that is not susceptible to grow again. If what was cut off was a reproductive organ, the penalty is much higher than that for homicide. This cannot be committed through criminal negligence.
1. In the first kind of mutilation, the castration must be made purposely. Otherwise, it will be considered as mutilation of the second kind
2.
In one case, the accused, while conversing with the offended party, drew the latters bolo from its scabbard. The offended party caught hold of the edge of the blade of his bolo and wounded himself. It was held that since the accused did not wound, beat or assault the offended party, he can not be guilty of serious physical injuries.
What are serious physical injuries: 1. 2. Injured person becomes insane, imbecile, impotent or blind Injured person a. loses the use of speech or the power to hear or to smell, loses an eye, a hand, foot, arm or leg b. loses the use of any such member
c. becomes incapacitated for the work in which he had been habitually engaged 3. Injured person a. b. c. becomes deformed loses any other member of his body loses the use thereof
d. becomes ill or incapacitated for the performance of the work in which he had been habitually engaged in for more than 90 days 4. Injured person becomes ill or incapacitated for labor for more than 30 days (but not more than 90 days) Notes:
The crime of physical injuries is a crime of result because under our laws the crime of physical injuries is based on the gravity of the injury sustained. So this crime is always consummated.
1. Serious physical injuries may be committed through reckless imprudence or simple imprudence
2. 3. 4. 5. 6.
There must be no intent to kill Impotent should include inability to copulate and sterility
Blindness requires lost of vision in both eyes. Mere weakness in vision is not contemplated Loss of power to hear must involve both ears. Otherwise, it will be considered as serious physical injuries under par 3 Loss of use of hand or incapacity of usual work in par 2 must be permanent 7. Par 2 refers to principal members of the body. Par 3 on the other hand, covers any other member which is not a principal part of the body. In this respect, a front tooth is considered as a member of the body, other than a principal member
8.
Deformity: means physical ugliness, permanent and definite abnormality. Not curable by natural means or by nature. It must be conspicuous and visible. Thus, if the scar is usually covered by a dress, it would not be conspicuous and visible 9. The loss of 3 incisors is a visible deformity. Loss of one incisor is not. However, loss of one tooth which impaired appearance is a deformity 10. Deformity by loss of teeth refers to injury which cannot be impaired by the action of the nature 11. Loss of both outer ears constitutes deformity and also loss of the power to hear. Meanwhile, loss of the lobule of the ear is only a deformity 12. Loss of the index and middle fingers is either a deformity or loss of a member, not a principal one of his body or use of the same 13. Loss of the power to hear in the right ear is considered as merely loss of use of some other part of the body 14. If the injury would require medical attendance for more than 30 days, the illness of the offended party may be considered as lasting more
16.
In determining incapacity, the injured party must have an avocation at the time of the injury. Work: includes studies or preparation for a profession 17. When the category of the offense of serious physical injuries depends on the period of the illness or incapacity for labor, there must be evidence of the length of that period. Otherwise, the offense will only be considered as slight physical injuries 18. There is no incapacity if the injured party could still engage in his work although less effectively than before
19.
Serious physical injuries is qualified when the crime is committed against the same persons enumerated in the article on parricide or when it is attended by any of the circumstances defining the crime of murder. However, serious physical injuries resulting from excessive chastisement by parents is not qualified serious physical injuries Ortega Notes:
Classification of physical injuries: (1) Between slight physical injuries and less serious physical injuries, you have a duration of one to nine days if slight physical injuries; or 10 days to 20 days if less serious physical injuries. Consider the duration of healing and treatment. The significant part here is between slight physical injuries and less serious physical injuries. You will consider not only the healing duration of the injury but also the medical attendance required to treat the injury. So the healing duration may be one to nine days, but if the medical treatment continues beyond nine days, the physical injuries would already qualify as less serious physical injuries. The medical treatment may have lasted for nine days, but if the offended party is still incapacitated for labor beyond nine days, the physical injuries are already considered less serious physical injuries. (2) Between less serious physical injuries and serious physical injuries, you do not consider the period of medical treatment. You only consider the period when the offended party is rendered incapacitated for labor. If the offended party is incapacitated to work for less than 30 days, even though the treatment continued beyond 30 days, the physical injuries are only considered less serious because for purposes of classifying the physical injuries as serious, you do not consider the period of medical treatment. You only consider the period of incapacity from work.
Thus, a father who inflicts serious physical injuries upon his son will be liable for qualified serious physical injuries.
Notes: 1. Circumstances qualifying the offense: a. b. when there is manifest intent to insult or offend the injured person when there are circumstances adding ignominy to the offense
c. when the victim is either the offenders parents, ascendants, guardians, curators or teachers d. when the victim is a person of rank or person in authority, provided the crime is not direct assault 2. It falls under this article even if there was no incapacity but the medical treatment was for 13 days In this article, the offended party is incapacitated from work for ten (10) days or more but not more than thirty (30) days. If the injury causes the illness of the victim, the healing duration must be more than nine (9) days but not more than thirty (30) days.
Article 265 is an exception to Article 48 in relation to complex crimes as the latter only takes place in cases where the Revised Penal Code has no specific provision penalizing the same with a definite, specific penalty. Hence, there is no complex crime of slander by deed with less serious physical injuries but only less serious physical injuries if the act which was committed produced the less serious physical injuries with the manifest intent to insult or offend the offended party, or under circumstances adding ignominy to the offense.
Republic Act No. 7610 (Special Protection of Children against Child Abuse, Exploitation and Discrimination Act), in relation to murder, mutilation or injuries to a child
The last paragraph of Article VI of Republic Act No. 7610, provides: For purposes of this Act, the penalty for the commission of acts punishable under Articles 248, 249, 262 (2) and 263 (1) of Act No 3815, as amended of the Revised Penal Code for the crimes of murder, homicide, other intentional mutilation, and serious physical injuries, respectively, shall be reclusion perpetua when the victim is under twelve years of age. The provisions of Republic Act No. 7160 modified the provisions of the Revised Penal Code in so far as the victim of the felonies referred to is under 12 years of age. The clear intention is to punish the said crimes with a higher penalty when the victim is a child of tender age. Incidentally, the reference to Article 249 of the Code which defines and penalizes the crime of homicide were the victim is under 12 years old is an error. Killing a child under 12 is murder, not homicide, because the victim is under no position to defend himself as held in the case of People v. Ganohon, 196 SCRA 431. For murder, the penalty provided by the Code, as amended by Republic Act No. 7659, is reclusion perpetua to death higher than what Republic Act no. 7610 provides. Accordingly, insofar as the crime is murder, Article 248 of the Code, as amended, shall govern even if the victim was under 12 years of age. It is only in respect of the crimes of intentional mutilation in paragraph 2 of Article 262 and of serious physical injuries in paragraph 1 of Article 263 of the Code that the quoted provision of Republic Act No. 7160 may be applied for the higher penalty when the victim is under 12 years old.
d. when the offended party is under 12 years of age or is demented, even though none of the circumstances mentioned above be present
2.
By any person who, under any of the circumstances mentioned in par 1 hereof, shall commit an act of sexual assault by inserting a. his penis into another persons mouth or anal orifice, or
b. any instrument or object, into the genital or anal orifice of another person Rape committed under par 1 is punishable by: 1. reclusion perpetua 2. reclusion perpetua to DEATH when a. victim became insane by reason or on the occasion of rape b. 3. the rape is attempted and a homicide is committed by reason or on the occasion thereof
DEATH when a. homicide is committed b. victim under 18 years and offender is: i. parent ii. ascendant iii. step-parent iv. guardian
c. d. e.
under the custody of the police or military authorities or any law enforcement or penal institution committed in full view of the spouse, parent or any of the children or other relatives within the 3rd degree of consanguinity victim is a religious engaged in legitimate religious vocation or calling and is personally known to be such by the offender before or at the time of the commission of the crime a child below 7 years old offender knows he is afflicted with HIV or AIDS or any other sexually transmissible disease and the virus is transmitted to the victim offender; member of the AFP, or para-military units thereof, or the PNP, or any law enforcement agency or penal institution, when the offender took advantage of his position to facilitate the commission of the crime victim suffered permanent physical mutilation or disability the offender knew of the pregnancy of the offended party at the time of the commission of the crime; and when the offender knew of the mental disability, emotional disorder and/or physical handicap or the offended party at the time of the commission of the crime
f.
g. h.
i.
j. k.
Rape committed under par 2 is punishable by: 1. prision mayor 2. prision mayor to reclusion temporal a. use of deadly weapon or b. by two or more persons
3. 4. 5.
reclusion temporal when the victim has become insane reclusion temporal to reclusion pepetua rape is attempted and homicide is committed reclusion perpetua homicide is committed by reason or on occasion of rape
Notes: 1. Dividing age in rape: a. less than 7 yrs old, mandatory death b. c. less than 12 yrs old, statutory rape less than 18 yrs old and there is relationship (e.g. parent etc); mandatory death
Because of this amendment which reclassified rape as a crime against persons, an impossible crime may now be committed in case of rape; that is, if there is inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means. The case of People vs. Orita (G.R. No. 88724, April 3, 1990), laid a new doctrine in Philippine penal law insofar as the crime of rape is concerned, as it finally did away with frustrated rape and allowed only attempted rape and consummated rape to remain in our statute books. The act of touching should be understood as inherently part of the entry of the penis into the labia of the female organ and not the mere touching alone of the mons pubis or the pudendum. Jurisprudence dictates that the labia majora (or he outer lips of the female organ) must be entered for rape to be consummated, and not merely for the penis to stroke the surface of the female organ. Thus, grazing of the surface of the female organ or touching the mons pubis of the pudendum is not sufficient to constitute rape. ( Pp vs. Campuhan)
Classification of rape (1) (2) Traditional concept under Article 335 carnal knowledge with a woman against her will. The offended party is always a woman and the offender is always a man. Sexual assault - committed with an instrument or an object or use of the penis with penetration of mouth or anal orifice. The offended party or the offender can either be man or woman, that is, if a woman or a man uses an instrument on anal orifice of male, she or he can be liable for rape.
Since rape is not a private crime anymore, it can be prosecuted even if the woman does not file a complaint. If carnal knowledge was made possible because of fraudulent machinations and grave abuse of authority, the crime is rape. This absorbs the crime of qualified and simple seduction when no force or violence was used, but the offender abused his authority to rape the victim. Under Article 266-C, the offended woman may pardon the offender through a subsequent valid marriage, the effect of which would be the extinction of the offenders liability. Similarly, the legal
If the victim however is exactly twelve (12) years old (she was raped on her birthday) or more, and there is consent, there is no rape. However, Republic Act No. 7610, Sec. 5 (b) provides that: Even if the victim is over twelve (12) year old and the carnal act was with her consent as long as she falls under the classification of a child exploited in prostitution and other sexual abuse, the crime is rape.
In other cases, there must be force, intimidation, or violence proven to have been exerted to bring about carnal knowledge or the woman must have been deprived of reason or otherwise unconscious.
It is not necessary that the force or intimidation employed be so great or of such character as could not be resisted it is only necessary that it be sufficient to consummate the purpose which the accused had in mind. (People vs. Canada, 253 SCRA 277). Carnal knowledge with a woman who is asleep constitutes Rape since she was either deprived of reason or otherwise unconscious at that time. (People vs. Caballero, 61 Phil. 900). Sexual intercourse with an insane, deranged or mentally deficient, feeble-minded or idiotic woman is Rape pure and simple. The deprivation of reason contemplated by law need not be complete; mental abnormality or deficiency is sufficient.
Where the victim is over 12 years old, it must be shown that the carnal knowledge with her was obtained against her will. It is necessary that there be evidence of some resistance put up by the offended woman. It is not, however, necessary that the offended party should exert all her efforts to prevent the carnal intercourse. It is enough that from her resistance, it would appear that the carnal intercourse is against her will. Mere initial resistance, which does not indicate refusal on the part of the offended party to the sexual intercourse, will not be enough to bring about the crime of rape.
The new law, R.A. 8353, added new circumstance that is, when carnal knowledge was had by means of fraudulent machinations or grave abuse of authority. It would seem that if a woman of majority age had sexual intercourse with a man through the latters scheme of pretending to marry her which is the condition upon which the woman agreed to have sex with him, manipulating a sham marriage, the man would be guilty of Rape under this Section. So also, a prostitute who willingly had sexual congress with a man upon the latters assurance that she would be paid handsomely, may be guilty of Rape if later on he refuses to pay the said amount. A person in authority who maneuvered a scheme where a woman landed in jail, and who upon promise of being released after having sex with the officer, willingly consented to the sexual act, may also be found guilty of Rape under this new section.