CRIMINAL LAW

Kwin
June 21, 2011 The act of giving away whether for money or any other consideration. ELEMENTS OF SALE What are the elements of sale? 1. the existence of dangerous drugs. 2. consideration money or valuable consideration 3. presentation of object evidence in court 4. exchange of money and shabu 5. identity of the buyer and seller BUY BUST OPERATION Buy bust operation is an entrapment that s allowed by law. In buy bust operation, there is a poseur buyer and seller. There should be exchange of dangerous drugs for money. There is no standard form of buy bust. Sometimes it is preceded by surveillance or test buy to determine WON the accused is really a drug pusher. There must of course be chemical analysis. But without prior surveillance, without prior test buy or even chemical analysis, a person may still be liable for sale SALE VS DELIVERY Although the information almost always mentions both - The accused delivered and sold. But delivering is different from sale. There is a definition of delivery in sec 3. DELIVERY
(k) Deliver. Any act of knowingly passing a dangerous drug to another, personally or otherwise, and by any means, with or without consideration.

DELIVERY WITH OR WITHOUT CONSIDERATION Case: The poseur buyer wanted to purchase shabu from the seller. The seller gave the shabu. The poseur did not pay. Acquitted for selling because there was no consideration. But convicted for delivery because in delivery, the law says, with or without consideration. SALE WITH VALUABLE CONSIDERATION In sale, money may not be used. So other for valuable consideration: Shabu for hand gun Shabu for other personal properties It is still sale. TRADING
(jj) Trading. Transactions involving the illegal trafficking of dangerous drugs and/or controlled precursors and essential chemicals using electronic devices such as, but not limited to, text messages, email, mobile or landlines, two-way radios, internet, instant messengers and chat rooms or acting as a broker in any of such transactions whether for money or any other consideration in violation of this Act.

Trading is also defined by sec 3. In trading, there must be money or any other consideration. The trader does not handle shabu. You will text the supplier in Ozamis, to deliver one kilo to Talisay. ADMINISTRATION
(a) Administer. Any act of introducing any dangerous drug into the body of any person, with or without his/her knowledge, by injection, inhalation, ingestion or other means, or of committing any act of indispensable assistance to a person in administering a dangerous drug to himself/herself unless administered by a duly licensed practitioner for purposes of medication.

If X found a pocket of shabu and gave it to somebody, the crime is delivery. There is no consideration. If X found a pocket of shabu and ask the tricycle driver to deliver it to somebody, meaning he did not personally deliver it, the crime is delivery. NUMBER OF CRIMES PER SHABU POSSESSION OR TRANSACTION Case: Buy bust operation. The poseur buyer purchased dangerous drug from the seller. The seller was arrested as an incident to unlawful arrest he was frisked. The police officer found another pocket of shabu. How many crimes were committed? 2 crimes: One for sale, the other one for possession. WHEN POSSESSION IS ABSORBED IN SALE OF DD BTW possessions absorbed in sale of the same dangerous drugs If X sold to Y a pocket of shabu, Y will be charged for selling. No longer for possession of shabu because you can no longer sell without possessing it first.

Og gakurg na, what is the crime committed by the friend who injected the dangerous drug? Administering. DISPENSATION
(m) Dispense. Any act of giving away, selling or distributing medicine or any dangerous drug with or without the use of prescription.

Usually committed by doctors or pharmacist. A doctor may be allowed to dispense with dangerous drugs. If it is not justified and he dispenses with same drugs, he is liable. There are two kinds: (separate crimes) 1. Dispensation without permit 2. Unnecessary dispensation or prescription -Even with license

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SEC 4 - IMPORTATION OF DANGEROUS DRUGS AND/OR CONTROLLED PRECURSORS AND ESSENTIAL CHEMICALS DISTRIBUTION, TRANSPORTATION TRANSPORTATION a conveyance is used Case: People vs Giansere The shabu did not reach its destination because the person who transported it was apprehended. He said there was no transportation because he was not able to reach the airport. SC said, no. Initial attempt to transport is already a crime. SUBJECT OF SALE A dangerous drug may not be the subject of the sale. Control precursor or essential chemicals may be involved. TRADING WITHIN 100M FROM SCHOOL Heavier penalty if the trading transpires within 100m from school. USING MINORS If minors are used as runner, curriers, etc, maximum period. SPECIAL PENALTY There is a special penalty for financiers. There is also a penalty for coddlers and protectors. FINANCIE
(q) Financier. Any person who pays for, raises or supplies money for, or underwrites any of the illegal activities prescribed under this Act.

SEC 7 - EMPLOYEES AND VISITORS OF A DEN, DIVE OR RESORT Who are considered employees?
(p) Employee of Den, Dive or Resort. The caretaker, helper, watchman, lookout, and other persons working in the den, dive or resort, employed by the maintainer, owner and/or operator where any dangerous drug and/or controlled precursor and essential chemical is administered, delivered, distributed, sold or used, with or without compensation, in connection with the operation thereof.

Sec 7 says:
(a) Any employee of a den, dive or resort, who is aware of the nature of the place as such; and (b) Any person who, not being included in the provisions of the next preceding, paragraph, is aware of the nature of the place as such and shall knowingly visit the same (VISITOR) who is aware of the nature of the place as such

What is the defense? Lack of knowledge. He was only hired as a look out when the police will come by. The visitor must know that it is a drug den, dive or resort. So his defense is lack of knowledge. Sec 8 - Manufacture of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals MANUFACTURE Manufacturing is a very broad term
(u) Manufacture. The production, preparation, compounding or processing of any dangerous drug and/or controlled precursor and essential chemical, either directly or indirectly or by extraction from substances of natural origin, or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis, and shall include any packaging or repackaging of such substances, design or configuration of its form, or labeling or relabeling of its container; except that such terms do not include the preparation, compounding, packaging or labeling of a drug or other substances by a duly authorized practitioner as an incident to his/her administration or dispensation of such drug or substance in the course of his/her professional practice including research, teaching and chemical analysis of dangerous drugs or such substances that are not intended for sale or for any other purpose.

PROTECTOR, CODDLER
(ee) Protector/Coddler. Any person who knowingly and willfully consents to the unlawful acts provided for in this Act and uses his/her influence, power or position in shielding, harboring, screening or facilitating the escape of any person he/she knows, or has reasonable grounds to believe on or suspects, has violated the provisions of this Act in order to prevent the arrest, prosecution and conviction of the violator.

Usually committed by persons in authority or influential persons including politicians. This is what we know as Narcoholics. SEC 6 - MAINTENANCE OF A DEN, DIVE OR RESORT DRUG DEN, DIVE OR RESORT
(l) Den, Dive or Resort. A place where any dangerous drug and/or controlled precursor and essential chemical is administered, delivered, stored for illegal purposes, distributed, sold or used in any form.

REPACKING AND RELABELING Please TN that manufacturing includes packaging, repackaging, labeling, relabeling. If 1 kilo is divided, that is repacking, that is considered manufacturing. If there are many packs and changed the label that designates the place to be sold, that is considered manufacturing. PENALTY There is a penalty for manufacturing precursor. -Maximum for financier -Heavy penalty for protector or coddler of manufacturers

Any person or group of person or group of persons who shall maintain a drug den, drive or resort, if dangerous drug be the proximate cause of death, MAXIMUM. There is a penalty for financier of drug den or coddler of maintainer of drug den.

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SEC 9 - ILLEGAL CHEMICAL DIVERSION OF CONTROLLED PRECURSORS AND ESSENTIAL CHEMICALS TN that only precursors and essential chemicals may be diverted. There are chemicals that are for legal purposes, like acetone and you convert it from legal to illgal meaning manufacture of dangerous drug. Diversion is also defined by law.
(d) Chemical Diversion. The sale, distribution, supply or transport of legitimately imported, in-transit, manufactured or procured controlled precursors and essential chemicals, in diluted, mixtures or in concentrated form, to any person or entity engaged in the manufacture of any dangerous drug, and shall include packaging, repackaging, labeling, relabeling or concealment of such transaction through fraud, destruction of documents, fraudulent use of permits, misdeclaration, use of front companies or mail fraud.

SEC 15 - USE OF DANGEROUS DRUGS In use of dangerous drugs, you will be given a chance. First penalty is rehabilitation. USE What is the meaning of use?
(kk) Use. Any act of injecting, intravenously or intramuscularly, of consuming, either by chewing, smoking, sniffing, eating, swallowing, drinking or otherwise introducing into the physiological system of the body, and of the dangerous drugs.

In use, there must be a CONFIRMATORY TEST. PENALTY. -Minimum of 6 months rehabilitation. -second time, 6 years and 1 day to 12 years CONSOLIDATED PETITIONS ON DANGEROUS DRUGS Before I forget, there are three consolidated petitions involving dangerous drugs: Case: Pimentel vs Dangerous Drugs Court, Social Justice Society CANDIDATES 1. schools 2. employment places or offices 3. person arrested DD TEST ON CADIDATES FORPUBLIC OFFICE Case: Pimentel vs DDB There is a provision in DDL, all candidates for public office must undergo drug testing. There must be a certificate that they are drug free. This was questioned by Pimentel. SC said unconstitutional. Because the constitution says the following are the qualifications for the office og senator, congressman, etc. Constitution does not say that you must be drug free or you must undergo drug testing. Schools and employment DD TEST ON SCHOOLS AND EMPLOYMENT How about schools and employment? SC adopted American jurisprudence. The school stands in locu parentis, substitute parental authority. RANDOM AND SUSPICIONLESS Is drug testing allowed? Yes. But it must be random and suspicionless. There are two requirements: 1. random 2. suspiciousnless If the deal sigles outr one person for looking like an addict, that is not allowed because there is no element of suspicionless. Same with the rules on drivers and employees.

So instead of 1 kilo of shabu, 10 grams of shabu and therest is tawas or other substance. SEC 10 - MANUFACTURE OR DELIVERY OF EQUIPMENT, INSTRUMENT, APPARATUS, AND OTHER PARAPHERNALIA FOR DANGEROUS DRUGS AND/OR CONTROLLED PRECURSORS AND ESSENTIAL CHEMICALS SEC 11 - POSSESSION OF DANGEROUS DRUGS Elements of possession: 1. Possession a. Actual / Personal -in your packet or bag b. Constructive -in baggage compartment, room, house or compound 2. Anumis possidendi 3. Production of the dangerous drug in court -That is the copus delicti. There are different penalties for possession. SEC 12 - POSSESSION OF EQUIPMENT, INSTRUMENT, APPARATUS AND OTHER PARAPHERNALIA FOR DANGEROUS DRUGS Under the old dangerous drugs law, RA 6425, possession of paraphernalia or shabu is not a crime Not it is a crime.
equipment, instrument, apparatus and other paraphernalia fit or intended for smoking, consuming, administering

SEC 14 - POSSESSION OF EQUIPMENT, INSTRUMENT, APPARATUS AND OTHER PARAPHERNALIA FOR DANGEROUS DRUGS DURING PARTIES, SOCIAL GATHERINGS OR MEETINGS Higher penalty if possession of dangerous drugs during parties social, gatherings or meetings.

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DD TEST ON PERSONS ARRESTED Third petition. If you are arrested, the law says automatic drug testing whether it is for violation for dangerous drug, or violation of curfew or vehicular accident. You are a suspect. Unconstitutional. Because that is no longer suspicionless. It is as if you are supplying the government evidence against you SEC 19 - UNLAWFUL PRESCRIPTION OF DANGEROUS DRUGS You are not allowed by the dangerous drugs board to prescribe and yet you prescribe. SEC 20 - CONFISCATION AND FORFEITURE OF THE PROCEEDS OR INSTRUMENTS OF THE UNLAWFUL ACT, INCLUDING THE PROPERTIES OR PROCEEDS DERIVED FROM THE ILLEGAL TRAFFICKING OF DANGEROUS DRUGS AND/OR PRECURSORS AND ESSENTIAL CHEMICALS What happens to the proceeds of the instruments of the unlawful act including properties derived from illegal trafficking of drugs? Confiscated in favor of the government and destroyed SEC 21 - CUSTODY AND DISPOSITION OF CONFISCATED, SEIZED, AND/OR SURRENDERED DANGEROUS DRUGS, PLANT SOURCES OF DANGEROUS DRUGS, CONTROLLED PRECURSORS AND ESSENTIAL CHEMICALS, INSTRUMENTS/PARAPHERNALIA AND/OR LABORATORY EQUIPMENT This is the subject of several SC decisions. PHYSICAL INVENTORY WITH REQUIRED ATTENDANCE Apprehending team must physically inventory and photograph the dangerous drugs in the presence of the accused, or the representatives of the accused and the representatives of the following: 1. DOJ 2. media 3. LGU If you go to Camotes, there is no media, there is no fiscal. SEC 17 - MAINTENANCE AND KEEPING OF ORIGINAL RECORDS OF TRANSACTIONS ON DANGEROUS DRUGS AND/OR CONTROLLED PRECURSORS AND ESSENTIAL CHEMICALS. If you are allowed to import, to dispense dangerous drugs, you must record what you purchase, how much money did you give, how much was used or sold. If you will violate the record procedure, you will be criminally prosecuted. SEC 18 - UNNECESSARY PRESCRIPTION OF DANGEROUS DRUGS You are a physician. You are allowed to prescribe dangerous drugs because you are allowed by the license by DDB. There is a patient that says he has a head ache. You prescribe use of shabu. Thats illegal prescription. What does it say?
who shall prescribe any dangerous drug to any person whose physical or physiological condition does not require the use or in the dosage prescribed

SEC 16 - CULTIVATION OR CULTURE OF PLANTS CLASSIFIED AS DANGEROUS DRUGS OR ARE SOURCES THEREOF CULTIVATION OR CULTURE
(i) Cultivate or Culture. Any act of knowingly planting, growing, raising, or permitting the planting, growing or raising of any plant which is the source of a dangerous drug.

You are mountain climbing and you found a beautiful plant. You placed it in your front gate. Are you liable or not? No, if he is not aware that the plant is a source of dangerous drug. So there must be an element of knowledge. If he plants dangerous drugs of marijuana over a land on which you are an owner, what happens? The land will be escheated and confiscated in favor of the government. What if you plant in government land? Maximum penalty. There are also penalties for financier, protector and coddler.

DELIVERY TO THE LABORATORY IN 24 HRS Then delivery and submission of the dangerous drug to the laboratory within 24 hours. Problem. Issue search warrant on Friday and implement on Saturday. If you go directly to the crime lab, you will be violating the rules of court because it says, the implementing agency must make a return of the search warrant. Contempt if you will not submit a return of the search warrant. Laboratory examination within 24 hours. EFFECT OF FAILURE TO FOLLOW In many cases, SC said, failure to follow sec 21 may result in acquittal. Series of SC decisions, failure to follow sec 21 does not mean that the arrest is illegal. What is the consequence on sec 21 as far as inventory and photographing is concerned? The probative value of the dangerous drugs might not be given credence.

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CHAIN OF CUSTODY In dangerous drugs cases, almost always you have to prove chain of custody. Is the same dangerous drugs presented in court same dangerous drugs seized from the accused in the crime scene? Remember under the law, the object evidence must be marked at the crime scene, not at the police station. Follow chain of custody; Who recovered the dangerous drug? Who was in possession of it? From him, to whom was it given? Who is the property custodian? Where did the property custodian keep the dangerous drugs? From the crime scene to the police station, who was in possession of the dangerous drugs? In the station, where as the DD kept or placed? Was it mixed with other dangerous drugs? From the police station, it must be brought to the laboratory, then the forensic analyst will examine the dangerous drugs. From the crime laboratory, it must be brought to the handling prosecutor, then to the court. IOW all those who touched the dangerous drugs must be presented. If you break the chain, it may result in thee acquittal because it will create a doubt that the DD presented in court may not be the same DD recovered at the crime scene. There is a provision on compensation, reward, award. SEC 26 - ATTEMPT OR CONSPIRACY Attempt and conspiracy for importation, maintenance, manufacture or evasion. ARTICLE III - DANGEROUS DRUGS TEST AND RECORD REQUIREMENTS SEC 36 - AUTHORIZED DRUG TESTING Who are required to undergo drug testing? 1. Applicants for drivers license 2. Applicant for firearms 3. Students (random suspicionless) 4. Officers and employees of public an dprivate offices (random and suspicionless) CANDIDATES FOR PUBLIC OFFICE WHETHER APPOINTED OR ELECTED -g. is already declared unconstitutional

REHABILITATION There are two kinds of rehabilitations under dangerous drugs law: 1. VOLUNTARY sec 54 2. INVOLUNTARY SEC 54 - VOLUNTARY SUBMISSION OF A DRUG DEPENDENT TO CONFINEMENT, TREATMENT AND REHABILITATIO What is the procedure? File a petition for voluntary confinement, treatment and rehabilitation. With what office will you file your application? Representative of the dangerous drugs board. Who is the petitioner? Representative of the dangerous drugs board. SPECIAL PROCEEDING Voluntary rehabilitation petition is a special proceeding to establish the status of a person as drug dependent. INVOLUNTARY REHABILITATION PROCEEDING The accused in a case in court is found to be drug dependent, the court may issue an order for compulsory drug rehabilitation. SEC 59 - ESCAPE AND RECOMMITMENT FOR CONFINEMENT AND REHABILITATION UNDER THE VOLUNTARY SUBMISSION PROGRAM If he escapes, he will be given a chance to return. Third escape, no more. He will be charged with use of dangerous drugs. AFTER EXAM

trading,

SEC 29 - CRIMINAL LIABILITY FOR PLANTING OF EVIDENCE What is the criminal liability of a person who plants evidence? In RPC, there is incriminatory machinations. It carries with it light penalty. In DDL, it carries with it the penalty of reclusion perpetua. Original penalty is death. Additional penalty if the offender is alien. After serving sentence, deportation. SEC 33 - IMMUNITY FROM PROSECUTION AND PUNISHMENT There is a provision on immunity and punishment.

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PD 1602 PD 1602 was amended twice. LOTTERY TN of the definition of lottery. If you buy merchandise in a department store and there is price but you do not have to add some amount like a car, and when you by merchandise worth 1k, you get a ticket, that is not lottery. But if you buy and you are required to pay some amount in order to participate, that is already lottery. BTW this is already amended. CRIMES
1. directly or indirectly take part in any illegal or unauthorized activities or games of : cockfighting, jueteng, jai alai or horse racing INCLUDING: basketball, boxing, volleyball, etc

RA 927 Under RA 927, the penalty is increased. PD 483 There is also PD 483 3 CRIMES 1. Betting game 2. Game fixing 3. Point shaving BETTING GAMES
a. Betting money or any object or article of value or representative of value upon the result of any game, races and other sports contest.

So pusta lang ka. GAME FIXING

b. Game-fixing any arrangement, combination, scheme or agreement by which the result of any game, races or sports contests shall be predicted and/or known other than on the basis of the honest playing skill or ability of the players or participants.

So wa pa mahuman ang game, kabaw na sa resulta. Result is predicted or known other than on the basis Usually the entire team is involved. In point shaving, only one or two players are involved. POINT SHAVING
c. Point-shaving any such arrangement, combination, scheme or agreement by which the skill or ability of any player or participant in a game, races or sports contests to make points or scores shall be limited deliberately in order to influence the result thereof in favor of one or other team, player or participant therein.

WHEN DOES IT BECOME GAMBLING? Old law: game of chance. Forget that definition.
whether upon chance or skill

So immaterial ang chance or skill. It becomes gambling whenever wagers

consisting of money, articles of value or representative of value are at stake or made; 2. knowingly permit any form of gambling to be carried on in inhabited or uninhabited place or in any building, vessel or other means of transportation owned or controlled by him

GAME MACHINATION
d. Game-machinations 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 sport contest.

TN - Knowingly permitting. WHO ARE PUNISHED Who else are punished?

maintainer, conductor or banker

1. Maintainer of the gambling den 2. Conductor CONSEQUENCES If the maintainer, conductor or banker is a government official
3. knowingly and without lawful purpose in any hour of any day, possess any lottery list, paper or other matter containing letters, figures, signs or symbols pertaining to or in any manner used in the games of jueteng, jai-alai or horse racing bookies, and similar games of lotteries and numbers which have taken place or about to take place.

TIPS/lottery lists are not a crime as authors would say. But the law says, which have taken place or about to take place.
4. barangay official knowingly permitting gambling

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COCKFIGHTIG LAW The COCKFIGHTING LAW is already found in the LGC What are the things to remember? When is cockfighting allowed? When is it not allowed? Who are allowed to participate? Where? DEFINITION Christo Bet taker HOLDING COCKFIGHTS Where? Licensed cockpits only. There should always be one in a municipality. When allowed? Sundays Legal holidays Local fiestas Provincial, city, municipal fairs, and competitions When is it not allowed? Rizal day Independence day National heroes day Holy Thursday Good Friday Election day Referendum Registration days Outside Sundays, allowed? Yes, for entertainment of tourists and charitable purposes. Foreign dignitaries Tourists Returning Filipinos or balik bayans. OFFENDER Who are liable? Participants Financier Owner Manager Operator Gaffer Referee Pet taker All of them must be licensed. If there is no license, there is a penalty. PD 1602 Then there is a law of illegal gambling, PD 1602, as amended. Chapter Two - OFFENSES AGAINST DECENCY AND GOOD CUSTOMS There are three offenses against decency and good customs. RELATED SPECIAL LAWS What are the special laws relating to this? 1. RA 7610 on children used in prostitution and lascivious conduct 2. RA 9775 child pornography 3. Anti voyeurism law This was approved after the Hyden Ko incident. In connection with crimes against persons, murder, homicide physical injuries, you also research, torture because it is included in the bar exam. 200 - GRAVE SCANDAL
Art. 200. Grave scandal. The penalties of arresto mayor and public censure shall be imposed upon any person who shall offend against decency or good customs by any highly scandalous conduct not expressly falling within any other article of this Code.

SCANDAL Scandal is a catch all provision; similar to other deceits in swindling. OFFENDER Who is liable? Any person who shall offend against decency or good customs by any scandalous conduct, not expressly falling within any other article of this code. So if another crime is committed, do not prosecute him for grave scandal. But prosecute him by using another article of code. DECENCY OR GOOD CUSTOMS DECENCY means propriety of conduct. CUSTOMS means established usage. ELEMENTS OF GRAVE SCANDAL 1. Offender performs an act or acts (not words) 2. Highly scandalous as offending decency and good customs 3. Not expressly falling within any other article of this code 4. Committed in a public place or within public knowledge or view (!!! Most important element) PUBLIC PLACE NEED NOT BE IN PUBLIC VIEW As long as the highly scandalous conduct is committed in a public place, it is not necessary that it be open to public view. (ex. under the bushes of public park)

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ACCIDENTAL WITNESS Grave scandal consists of acts having been committed publicly have given rise to grave scandals to persons who have accidentally witnessed the same. So if you are hiding in the car in the parking lot of SM, that is not grave scandal. Because that is not accidental discovery. PUBLIC PLACE OR WITHIN PUBLIC KNOWLEDGE OR VIEW Remember, public place or within public knowledge or view. So if you are doing it within a private place but within public knowledge or view, that is grave scandal. So if there is a private pool and people in the adjacent building know that they will be doing it at 9 am regularly, that is grave scandal. But if you are hiding, whether private or public, that is not grave scandal. Case: White Lights Incorporated SHORT TIME is allowed. Freedom sa mga tao. 201 - IMMORAL DOCTRINES, OBSCENE PUBLICATIONS AND EXHIBITIONS AND INDECENT SHOWS
Art. 201. Immoral doctrines, obscene publications and exhibitions and indecent shows. The penalty of prision mayor or a fine ranging from six thousand to twelve thousand pesos, or both such imprisonment and fine, shall be imposed upon: (1) Those who shall publicly expound or proclaim doctrines openly contrary to public morals; (2) (a) the authors of obscene literature, published with their knowledge in any form; the editors publishing such literature; and the owners/operators of the establishment selling the same; (b) Those who, in theaters, fairs, cinematographs or any other place, exhibit, indecent or immoral plays, scenes, acts or shows, whether live or in film, which are prescribed by virtue hereof, shall include those which (1) glorify criminals or condone crimes; (2) serve no other purpose but to satisfy the market for violence, lust or pornography; (3) offend any race or religion; (4) tend to abet traffic in and use of prohibited drugs; and (5) are contrary to law, public order, morals, and good customs, established policies, lawful orders, decrees and edicts; (3) Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are offensive to morals. (As amended by PD Nos. 960 and 969).

NOT FALLING WITHIN ANY OTHER SRTICLE OF THIS CODE There is a word here, not falling within any other article of this code Example. If you go to a movie house. Another person sat beside you and was touching you. The owner filed for acts of lasciviousness. Can you file a case for grave scandal? No more. There is already acts of lasciviousness.

There is a provision in RA 7610 Child Abuse Act, using children in prostitution, sexual intercourse or other lascivious conduct. ACTS
(1) Those who shall publicly expound or proclaim doctrines openly contrary to public morals;

If you make a new religion, Iglesia ni Birrao, and you make a practice that during mass, you can touch other people, that is not allowed. You are liable under 201.
(a) the authors of obscene literature, published with their knowledge in any form; the editors publishing such literature; and the owners/operators of the establishment selling the same;

You make obscene literature. You drew all positions. And you circulated it with your co-workers. Is there a crime committed? None. What is protected in this crime? Public morals, not immorality of one person. If one co-worker went to have it Xeroxed and gave them away. Is the author liable? No. Because the law says, published with their knowledge in any form. Who are liable aside from the author? Editor, owner, operator of establishment.

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(b) Those who, in theaters, fairs, cinematographs or any other place, exhibit, indecent or immoral plays, scenes, acts or shows, whether live or in film, which are prescribed by virtue hereof, shall include those which (1) glorify criminals or condone crimes; (2) serve no other purpose but to satisfy the market for violence, lust or pornography; (3) offend any race or religion; (4) tend to abet traffic in and use of prohibited drugs; and (5) are contrary to law, public order, morals, and good customs, established policies, lawful orders, decrees and edicts;

Parallel provisions of this is in 7610. -night clubs should post off limits to minors There is a law on exhibition of motion pictures that should go through MTRCB. If you review on immoral doctrines, you only talk of morality. But when you talk on the law on MTRCB, even if there is no question on morality, it will pass through them. 3060, creating MTRCB, the scope is public exhibition of any motion picture which has not been previously passed by the MTRCB. Immoral doctrines: 3060: mala in se mala prohibita.

Case: People vs Timpunko The word give away should be distribute. What is punished by art 201, par 4 is the distribution of indecent literature to many people and not to isolated, casual and occasional act of giving such kind of literature for a single recipient. The purpose of this provision is the protection of public morals that is the morals of society as a whole, not merely the morals of a single person. Thats why it is called crimes against public morals. Case: People vs Aparesi The object of the law is to protect the morals of the public. RA 7610 on obscene publications; Hiring, employing, persuading, inducing, coercing a child to perform in obscene publication and indecent shows whether live or in video, post model in obscene publications, pornographic materials. This is overtaken by child pornography law.

(3) Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are offensive to morals

RA 9995 Vagrance and prostitute According to the decision of SC on 2010, the provision on vagrancy is constitutional.

These are offensive to morals No matter how offensive to morals, if there is no selling, giving away or exhibition, no crime. So mere possession of these literatures without selling publication is not a crime. PUBLICITY The offense in any of these forms mentioned in the article is committed only when there is publicity. KOTINGGER TEST This is an obsolete test of obscenity. SC said, this is a century old decision. HARD CORE TEST From Kotinnger, there were several cases, the last of which is Katigbak. The test of obscenity is hard core test. We apply American jurisprudence.

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June 23, 2011 GRAVE SCANDAL VS ALARMS AND SCANDAL GS: under crimes against public morals AS: under crimes against public order GS: AS: refer to moral scandal refer to disturbances of pubic tranquility NO CRIME OF PROSTITUTION BY CONSPIRACY There is no crime of prostitution by conspiracy under the RPC because it is only the woman who is punished, not the man who used the prostitute. VOWC USER OF PROSTITUTE Under the VOWC, who are liable? The male persons who used trafficked prostitute. VAGRANCY VS PROSTITUTION V: can be committed by either a man or a woman P: only a woman V: a man if he engages in sex for money is not a prostitute but he may be charged with vagrancy if he associated with prostitutes woman who for profit or money habitually engages in sexual or lascivious conduct

GRAVE SCANDAL VS ACTS OF LASCIVIOUSNESS GS: under crimes against public morals AL: under crimes against chastity GS: AL: scandalous act is mutually consented acts committed are against the will of the person

202 - VAGRANTS AND PROSTITUTES; PENALTY

Art. 202. Vagrants and prostitutes; penalty. The following are vagrants: 1. Any person having no apparent means of subsistence, who has the physical ability to work and who neglects to apply himself or herself to some lawful calling; 2. Any person found loitering about public or semi-public buildings or places or trampling or wandering about the country or the streets without visible means of support; 3. Any idle or dissolute person who ledges in houses of ill fame; ruffians or pimps and those who habitually associate with prostitutes; 4. Any person who, not being included in the provisions of other articles of this Code, shall be found loitering in any inhabited or uninhabited place belonging to another without any lawful or justifiable purpose; 5. Prostitutes. For the purposes of this article, women who, for money or profit, habitually indulge in sexual intercourse or lascivious conduct, are deemed to be prostitutes. Any person found guilty of any of the offenses covered by this articles shall be punished by arresto menor or a fine not exceeding 200 pesos, and in case of recidivism, by arresto mayor in its medium period to prision correccional in its minimum period or a fine ranging from 200 to 2,000 pesos, or both, in the discretion of the court.

P:

BTW the vagrancy and prostitution has one common element, HABITUALITY. VAGRANCY - CONSTITUTIONAL In a 2010 decision, court said, the law on vagrancy under the RPC is constitutional. Basis, police power. It is not actually punishing a person for wondering around that time but to prevent criminal tendencies. WHO ARE VAGRANTS? Who are vagrants?
1. Any person having no apparent means of subsistence, who has the physical ability to work and who neglects to apply himself or herself to some lawful calling;

WANDERING PERSON Under vagrancy, if a person is found wondering in an estate belonging to another whether public or private without any lawful purpose, what other crimes may be committed? Either: 1. Trespass to property -under crimes against property -if the estate is fenced and there is a manifest prohibition against entering -the offender entered the fenced premises without the consent of the owner or the caretaker 2. Theft -if the estate is fenced and the offender entered the same to hunt therein or fish from any waters therein or to gather any farm products without consent of the owner or overseer -it is QUALIFIED theft if fish is taken from a fish pond 3. Vagrancy -if the estate is not fenced or if there is no clear prohibition against entering

We question the constitutionality. There is the element of habituality.

2. Any person found loitering about public or semi-public buildings or places or trampling or wandering about the country or the streets without visible means of support;

Potential criminals. There is an element of habituality. Case: People vs Morales

3. Any idle or dissolute person who ledges in houses of ill fame; ruffians or pimps and those who habitually associate with prostitutes;

Some authors say that even millionaires may be charged with vagrancy by associating with prostitutes. The law says those who habitually associate with prostitutes. It does not mention the economic status of people. PIMPS There are special penal laws on pimping under 7610 and 9208.

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4. Any person who, not being included in the provisions of other articles of this Code, shall be found loitering in any inhabited or uninhabited place belonging to another without any lawful or justifiable purpose;

So it depends on where you loiter. If you loiter in a fenced estate, and there is a sign that says, no trespassing, private property, that is trespass to dwelling or that is other forms of trespass under RPC
5. Prostitutes.

Title Seven - CRIMES COMMITTED BY PUBLIC OFFICERS DEFINITION OF PUBLIC OFFICERS Warning, one bar exams, who are public officers? Public officers are defined in: -1319, Anti Graft -6713, Code of Conduct -1379, Forfeiture Law -Plunder So several laws with different definitions. The definitions vary. In 1319, receiving compensation even if nominal. In 6713, immaterial ang compensation. In fact, in: Case: Hala Julis Serana vs Sabndiganbayan Compensation or salary is not an element of public office. So if the question is general, you define public officers under RPC. 203 - WHO ARE PUBLIC OFFICERS
Art. 203. Who are public officers. For the purpose of applying the provisions of this and the preceding titles of this book, any person who, by direct provision of the law, popular election or appointment by competent authority, shall take part in the performance of public functions in the Government of the Philippine Islands, of shall perform in said Government or in any of its branches public duties as an employee, agent or subordinate official, of any rank or class, shall be deemed to be a public officer.

Is sexual intercourse necessary for one to be charged with prostitution? No because the law says even those who habitually indulge in lascivious conduct.

RELATED SPL You should also relate this to some special penal laws. Like 7610, Child Abuse Act. RA 944, JUVINILE JUSTICE ACT BTW, under RA 944, Juvenile Justice Act, a minor cannot be charged with prostitution. MENDICANCY LAW MEDICANTS Who are mendicants? One who has no visible or legal means of support or lawful employment and is physically unable to work but neglect to apply himself to some lawful calling and instead use begging as a means of living. How do you distinguish this from vagrancy in RPC? Mendicancy law uses this phrase: uses begging as a means of living. ABETTING MENDICANCY You give money or alms to mendicants, exploited infants, minors in public roads, sidewalks and bridges. If a beggar comes to your house, you open the gate and give money, you are not liable for abetting mendicancy. Abetting may only be considered a crime is alms are given in the places mentioned. MAINTAINER OF HOUSE OF PROSTITUTION Maintainer of house of prostitution may be considered a vagrant.

PUBLIC OFFICERS any person who, by direct provision of the law, popular election or appointment by competent authority 1. shall take part in the performance of public functions in the Government of the Philippine 2. shall perform in said Government or in any of its branches public duties as an employee, agent or subordinate official, of any rank or class

Misfeasance improper performance Malfeasance performance of some act Nonfeasance omission of some act

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Chapter Two - MALFEASANCE AND MISFEASANCE IN OFFICE Section One. Dereliction of duty 204 - KNOWINGLY RENDERING UNJUST JUDGMENT
Art. 204. Knowingly rendering unjust judgment. Any judge who shall knowingly render an unjust judgment in any case submitted to him for decision, shall be punished by prision mayor and perpetual absolute disqualification.

208 - PROSECUTION OF OFFENSES; NEGLIGENCE AND TOLERANCE

Art. 208. Prosecution of offenses; negligence and tolerance. The penalty of prision correccional in its minimum period and suspension shall be imposed upon any public officer, or officer of the law, who, in dereliction of the duties of his office, shall maliciously refrain from instituting prosecution for the punishment of violators of the law, or shall tolerate the commission of offenses.

This can only be committed by a judge. TN: knowingly render an unjust judgment in any case submitted to him for
decision

ACTS 1. Maliciously refraining from instituting prosecution for the punishment of violators of the law 2. Maliciously tolerating PLS TN of the words maliciously and both acts. NEGLIGENCE Negligence means neglect of the duties of his office by maliciously failing to move the prosecution and punishment of the delinquent. DERELICTION OF DUTY TN of the element of dereliction of duty. Element number three should not be missed. Offender acts with malice and deliberate intent to favor violator of the law. OFFENDERS Public officer or officer of the law. OFFICER OF THE LAW includes all those who reason of the position held by them, are duty bound to cause the prosecution and punishment of the offenders, like prosecutors in the office of the prosecutor. PUBLIC OFFICERS extends to officers like the prosecution department. TOLERATING THE COMMISSION OF THE CRIME MALICE Maliciously signifies deliberate evil intent. The offender must act with malice. WITHOUT MALICE - NOT PUNISHABLE Dereliction of duty caused by poor judgment or honest mistake is not punishable.

UNJUST JUDGMENT What is an unjust judgment? It is one which is contrary to law or not supported by evidence or both. KNOWINGLY Knowingly meaning deliberately and maliciously. Because this is RPC, there is mens rea.

205 - JUDGMENT RENDERED THROUGH NEGLIGENCE

Art. 205. Judgment rendered through negligence. Any judge who, by reason of inexcusable negligence or ignorance shall render a manifestly unjust judgment in any case submitted to him for decision shall be punished by arresto mayor and temporary special disqualification.

TN: Inexcusable negligence or ignorance MANIFESTLY UNJUST -meaning contrary to law 206 - UNJUST INTERLOCUTORY ORDER
Art. 206. Unjust interlocutory order. Any judge who shall knowingly render an unjust interlocutory order or decree shall suffer the penalty of arresto mayor in its minimum period and suspension; but if he shall have acted by reason of inexcusable negligence or ignorance and the interlocutory order or decree be manifestly unjust, the penalty shall be suspension.

INTERLOCUTORY ORDER It is an order not included in the final judgment. There is something more to be done by the judge. -example: order of attachment, order of injunction, order of receivership KNOWINGLY 207 - MALICIOUS DELAY IN THE ADMINISTRATION OF JUSTICE
Art. 207. Malicious delay in the administration of justice. The penalty of prision correccional in its minimum period shall be imposed upon any judge guilty of malicious delay in the administration of justice.

The delay must be malicious. Meaning deliberate intent to inflict damage in either party in a case. Mere delay without malice is not a felony.

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209 - BETRAYAL OF TRUST BY AN ATTORNEY OR SOLICITOR. REVELATION OF SECRETS.
Art. 209. Betrayal of trust by an attorney or solicitor. Revelation of secrets. In addition to the proper administrative action, the penalty of prision correccional in its minimum period, or a fine ranging from 200 to 1,000 pesos, or both, shall be imposed upon any attorney-at-law or solicitor ( procurador judicial) who, by any malicious breach of professional duty or of inexcusable negligence or ignorance, shall prejudice his client, or reveal any of the secrets of the latter learned by him in his professional capacity. The same penalty shall be imposed upon an attorney-at-law or solicitor (procurador judicial) who, having undertaken the defense of a client or having received confidential information from said client in a case, shall undertake the defense of the opposing party in the same case, without the consent of his first client.

SECTION TWO. BRIBERY 210 - DIRECT BRIBERY

Art. 210. Direct bribery. Any public officer who shall agree to perform an act constituting a crime, in connection with the performance of this official duties, in consideration of any offer, promise, gift or present received by such officer, personally or through the mediation of another, shall suffer the penalty of prision mayor in its medium and maximum periods and a fine [of not less than the value of the gift and] not less than three times the value of the gift in addition to the penalty corresponding to the crime agreed upon, if the same shall have been committed. If the gift was accepted by the officer in consideration of the execution of an act which does not constitute a crime, and the officer executed said act, he shall suffer the same penalty provided in the preceding paragraph; and if said act shall not have been accomplished, the officer shall suffer the penalties of prision correccional, in its medium period and a fine of not less than twice the value of such gift. If the object for which the gift was received or promised was to make the public officer refrain from doing something which it was his official duty to do, he shall suffer the penalties of prision correccional in its maximum period and a fine [of not less than the value of the gift and] not less than three times the value of such gift. In addition to the penalties provided in the preceding paragraphs, the culprit shall suffer the penalty of special temporary disqualification. The provisions contained in the preceding paragraphs shall be made applicable to assessors, arbitrators, appraisal and claim commissioners, experts or any other persons performing public duties. (As amended by Batas Pambansa Blg. 872, June 10, 1985).

ACTS There are three acts punished under betrayal: 1. Causing damage to his client 2. Revealing secrets of clients -damage is necessary 3. Undertaking the defense of the opposing party in the same case without the consent of the first client If the client consent consents to the attorneys taking the defense of either party, there is no crime. ASSIGNMENT: RA 9184 -An act providing for the modernization, standardization and regulation of the procurement activities of the government and for other purposes, 2003 -This is about public bidding

Things you should remember about bribery: 1. It cannot be complexed with another crime 2. It cannot be absorbed by another crime In delivering prisoners from jail, you bribe the guard on duty so that the prisoner will escape. 2 crimes: a. Bribery b. Delivery of prisoners from jail Because the law says so.
in addition to the penalty corresponding to the crime agreed upon, if the same shall have been committed.

3. In connection with the performance of his official duties One other important phrase is the opening statement about official duty or performing an act constituting a crime. There is bribery only when there is performance of official duties. If you receive something in your private capacity and not being a public officer, that is not bribery because it has no connection of your official duty. 4. differently treat: Act constituting a crime Act not constituting a crime The law says, any public officer (and private person in conspiracy with public officer who shall perform an act in connection with the performance of his official duty.

5. There must be a consideration What makes the act a crime of bribery is the consideration.

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ACT TO BE PERFORMED CONSTITUTES A CRIME - THEORY OF CONSPIRACY The theory of bribery is the theory of conspiracy. Two or more persons come to an agreement to commit a felony and decide to commit it. If the corruptor says I promise to give you a brand new car if you falsify a document. Then the public officer says Deal!. Istorya palang, wala pay overt act of falsification, that is already direct bribery. In consideration of any offer, the act to be performed is a crime. It is already direct bribery. There is already a meeting of minds, there is already bribery. For as long as there is acceptance by the public officer, if the act to be performed constitutes a crime. Because the rule is different if the act to be performed does not constitute a crime. IN ADDITION TO THE PENALTY CORRESPONDING TO THE CRIME AGREED UPON, Example, you ask the stenographer to change the answer in the transcripts. That is falsification, an act constituting a crime. Is there bribery? Yes because the act to be performed constitutes a crime. Mere agreement, that is conspiracy. That is punishable. What is the crime? Two crimes; bribery and falsification. Bribery is only an addition to falsification. ACT TO BE PERFORMED DOES NOT CONSTITUTE A CRIME REQUISITE OF ACCEPTANCE AND PERFORMANCE Second paragraph is performance of an act which does not constitute a crime. This time there must be acceptance and performance.
If the gift was accepted by the officer in consideration of the execution of an act which does not constitute a crime, and the officer executed said act

REFRAINING FROM THE PERFORMANCE OF AN ACT

If the object for which the gift was received or promised was to make the public officer refrain from doing something which it was his official duty to do

So there are two crimes in this article: 1. Performance of an act whether it constitutes a crime or not 2. Refraining the performance of an act which it was his official duty to do ACCESSORY PENALTY Special temporary disqualification PUBLIC OFFICERS Who are the persons included under the term public officers? assessors arbitrators appraisal and claim commissioners experts any other persons performing public duties Guardian ad litem is an officer of the court. Receiver. A receiver is not the representative of the plaintiff or the defendant. He is a representative of the court. So he is performing public duties ACT TO BE PERFORMED DOES NOT CONSTITUTE A CRIME REQUISITE OF ACCEPTANCE AND PERFORMANCE Accepting a gift in consideration of the execution of an act which does not constitute a crime in connection with the performance of the official duty, mere agreement or promise, there is no violation ROBBERY VS BRIBERY How do you distinguish robbery from bribery? This arose from one case. BIR agent went and saw there is a violation importation of vino without license. He will arrest him if he will not pay. So he gave Chivas Regal. What crime is committed? Robbery because there was intimidation.

If the act was not executed, there is no crime of direct bribery. So officer shall suffer the same penalty provided in the preceding paragraph. If the act is not accomplished, the officer shall suffer lesser penalty. NO CRIME OF EXTORTION There is no specific crime known as extortion under RPC. But there are crimes that are extortionate in character. Robbery there is force and intimidation Kidnapping there is force and violence Blackmail

AFTER BREAK

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PUBLIC OFFICERS Temporary performance of public function is sufficient to constitute a person a public officer. The following are also considered public officers: Assessors Arbitrators NO NEED FOR ACTUAL RECEIPT Gift or present need not be actually received by the public officer. The offer of gift or promise must be accepted by the officer. So there must be acceptance of the promise. Because if there is no evidence of acceptance of the promise or offer, there is no crime. PROMISOR OR OFFEROR But insofar as the person who made the promise or who made the offer is concerned, he is liable for attempted corruption of public officer. PROMISE IS ENOUGH A promise to give a gift to and a promise to commit an unlawful act by a private officer will be sufficient in direct bribery. NEED NOT BE STATUTORY DUTY The act need not be a statutory duty. It is sufficient if the action to be affected by the bribe be part of the established procedure of a government agency. DISCHARGE OF MORAL DUTY It is not bribery if the act is in discharge of a mere moral duty. PRIVARICACCION OR DERELICTION VS BRIBERY B: the offender refrained from doing his official duty in consideration of a gift received or promised P: this element is not found 211 - INDIRECT BRIBERY
Art. 211. Indirect bribery. The penalties of prision correccional in its medium and maximum periods, and public censure shall be imposed upon any public officer who shall accept gifts offered to him by reason of his office. (As amended by Batas Pambansa Blg. 872, June 10, 1985).

BY REASON OF OFFICE Public officer who shall accept gifts offered to him by reason of his office. He is not requested to do anything. He is given a gift by reason of his office. ACCEPTANCE - REQUIRED Please TN that in indirect bribery, there must be an acceptance. But in another case, somebody brought vino and said it is their boss. The personnel drank it. The officer did not know. Is there indirect bribery? None because there was no acceptance. In indirect bribery what is important is evidence of acceptance, like when you set it aside, or put in it a drawer or cabinet. INDIRECT BRIBERY TO DIRECT BRIBERY If somebody gave a gift by reason of public office and the public officer acted on the application of the giver with priority, what started as indirect bribery now becomes direct bribery because he performed his official function. REQUISITE OF ACCEPTANCE So I repeat, it is necessary that the public officer accepts the gift offered. Mere promise or offer is insufficient. Public officer should not accept any gift offered to him because such gift is offered in anticipation of a future favor. There must be clear intention on the part of the public officer to take the gift so offered and consider the same as his own property. PURSPOSE OF REQUISITE OF ACCEPTANCE To hold OW will encourage unscrupulous individuals to frame up a public officer by simply putting within their physical custody some gift, money or property. If you place 10k on the table and you run, there is no evidence of acceptance ATTEMPTED CORRUPTION OF PUBLIC OFFICER But there is attempted corruption of public officer. DIRECT BRIBERY VS INDIRECT BRIBERY D: Agreement I: No agreement

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PD 46 There is a special penal law. It is an old law. PD 46 - receiving of gifts by public officials and employees and giving of gift s by a private person on any occasion including Christmas. Gift, present, valuable thing on any occasion. When such gift, present or valuable thing is given by reason of his official position, regardless of won the same is for past favor. Only if there is discharge of public functions. Including throwing of parties or entertainments. 212 - CORRUPTION OF PUBLIC OFFICIALS
Art. 212. Corruption of public officials. The same penalties imposed upon the officer corrupted, except those of disqualification and suspension, shall be imposed upon any person who shall have made the offers or promises or given the gifts or presents as described in the preceding articles.

This is the crime of the giver. Bribery is the crime of receiver. ATTEMPTED CORRUPTION OF PUBLIC OFFICIAL
any person who shall have made the offers or promises or given the gifts or presents

If it was not received by the public officer, it is attempted corruption of public official. PD 749 IMMUNITY TO GIVER Before it was difficult to convict a crime of bribery because the giver will have to testify and will be incriminated of corruption of public official. So they made a law exempting the giver or the person who promised that he will not be prosecuted. PD 749 which grants immunity from prosecution to givers of bribes and other gifts, and to their accomplices in bribery provided he willingly testifies against the public official or employee for such violation. He shall be exempt from prosecution or punishment for the offense with reference to which his information and testimony were given. CONDITIONS But there are conditions which must concur: 1. consummated violation only This cannot be for frustrated or attempted STAGES OF CRIME In direct bribery, you will only have attempted and consummated. In corruption of public official, you will have all attempted, frustrated and consummated. 2. necessary information 3. information not yet in the possession of the state 4. testimony can be corroborated 5. no conviction of the crime involving moral turpitude

QUALIFIED BRIBERY Public officer entrusted with law enforcement. Like: Police NBI Tanod Bantay bayan (jurisprudence) So if Bantay Bayan interrogate without counsel, inadmissible in evidence And he refrains from arresting or prosecuting an officer who has committed a crime punishable by reclusion perpetua and/or death, then there must be a consideration of any offer, promise gift or present. So you may qualify if the crime that refrains from arresting or prosecuting is punishable by reclusion perpetua or death. If it is homicide, and the officer did not arrest, can that be qualified? No because homicide is only reclusion temporal. 12 years and 1 day to 20 years If it is the public officer who asks or demands such present, penalty is death but it is downgraded to reclusion perpetua.

ASSIGNMENT: 1319 Anti graft 6713 Code of conduct 7080 Plunder

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Chapter Three - FRAUDS AND ILLEGAL EXACTIONS AND TRANSACTIONS 213 - FRAUDS AGAINST THE PUBLIC TREASURY AND SIMILAR OFFENSES
Art. 213. Frauds against the public treasury and similar offenses. The penalty of prision correccional in its medium period to prision mayor in its minimum period, or a fine ranging from 200 to 10,000 pesos, or both, shall be imposed upon any public officer who: 1. In his official capacity, in dealing with any person with regard to furnishing supplies, the making of contracts, or the adjustment or settlement of accounts relating to public property or funds, shall enter into an agreement with any interested party or speculator or make use of any other scheme, to defraud the Government; 2. Being entrusted with the collection of taxes, licenses, fees and other imposts, shall be guilty or any of the following acts or omissions: (a) Demanding, directly, or indirectly, the payment of sums different from or larger than those authorized by law. (b) Failing voluntarily to issue a receipt, as provided by law, for any sum of money collected by him officially. (c) Collecting or receiving, directly or indirectly, by way of payment or otherwise things or objects of a nature different from that provided by law. When the culprit is an officer or employee of the Bureau of Internal Revenue or the Bureau of Customs, the provisions of the Administrative Code shall be applied. 2. Being entrusted with the collection of taxes, licenses, fees and other imposts, shall be guilty or any of the following acts or omissions

MERE DEMAND - CONSUMATED TN mere demand consummates the crime.

(a) Demanding, directly, or indirectly, the payment of sums different from or larger than those authorized by law. (b) Failing voluntarily to issue a receipt, as provided by law, for any sum of money collected by him officially.

Once OR is issued, that is money for the government. Cash count by thee auditor is based on OR. VOLUNTARY. If the municipal hall burnt down, you may issue temporary receipt. That is not voluntary.
(c) Collecting or receiving, directly or indirectly, by way of payment or otherwise things or objects of a nature different from that provided by law.

Example. You are asked to work in exchange for the fees. WHEN CONSUMATED Crime against public treasury is consummated by merely entering into an agreement with any interested party or speculator or by merely making use of any other scheme to defraud the government. It is not necessary that the government be actually defrauded. Mere demand for larger or different amount is sufficient to consummate the crime. RECEIPT FOR GREATER AMOUNT DEMANDED - ESTAFA When there is receipt in demanding greater fees than those prescribed by law, the crime committed is estafa, not illegal exaction. Example. The collector of taxes, the amount demanded is 2,500 when the actual liability is only 2k. That is illegal exaction. There was a receipt that is temporary receipt. He pocketed the 500. What is the crime committed? 1. Illegal exaction for failure to issue the OR voluntarily. 2. Estafa insofar as the TP is concerned, there was deceit. BIR AND BOC EMPLOYEES NOT COVERED BY RPC Employees of BIR and BOC are not covered by RPVC but covered by NIRC or Administrative code. Why are they not covered in RPC? Because in NIRC, they may receive a sum lesser that what is ought to be paid because there is compromise agreement.

OFFENDER The accused here is an accountable officer. If this is committed by a private person the crime is estafa.

Success is not required. Damage is not an element. Fraud or intent to defraud is not required. ACTS
1. In his official capacity, in dealing with any person with regard to furnishing supplies, the making of contracts, or the adjustment or settlement of accounts relating to public property or funds, shall enter into an agreement with any interested party or speculator or make use of any other scheme, to defraud the Government;

NATURE The nature of the offense here is committed by mere agreement as long as the purpose is to defraud the government. OFFENDER Who may commit the crime of fraud against public treasury? It is committed by a public officer whose official duty deals with money to be paid out of the public treasury or money which OW would be paid to the government and have to come out to the public treasury. Fraud against public treasury contemplated in this article is where the government is made to pay more than what is to be paid out by government funds. Crime can only be committed by public officer whose duty is to collect fees and impost other dues payable to the government.

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214 - OTHER FRAUDS
Art. 214. Other frauds. In addition to the penalties prescribed in the provisions of Chapter Six, Title Ten, Book Two, of this Code, the penalty of temporary special disqualification in its maximum period to perpetual special disqualification shall be imposed upon any public officer who, taking advantage of his official position, shall commit any of the frauds or deceits enumerated in said provisions.

216 - POSSESSION OF PROHIBITED INTEREST BY A PUBLIC OFFICER

Art. 216. Possession of prohibited interest by a public officer. The penalty of arresto mayor in its medium period to prision correccional in its minimum period, or a fine ranging from 200 to 1,000 pesos, or both, shall be imposed upon a public officer who directly or indirectly, shall become interested in any contract or business in which it is his official duty to intervene. This provisions is applicable to experts, arbitrators and private accountants who, in like manner, shall take part in any contract or transaction connected with the estate or property in appraisal, distribution or adjudication of which they shall have acted, and to the guardians and executors with respect to the property belonging to their wards or estate.

When there is public officer, he takes advantage of his official position, he committed any of the deceits under the crime known as estafa, art 315 and art 316. So you commit estafa or other forms of swindling, taking advantage of public position.

215 - PROHIBITED TRANSACTIONS

Art. 215. Prohibited transactions. The penalty of prision correccional in its maximum period or a fine ranging from 200 to 1,000 pesos, or both, shall be imposed upon any appointive public officer who, during his incumbency, shall directly or indirectly become interested in any transaction of exchange or speculation within the territory subject to his jurisdiction.

ACTS 1. public officer becoming interested in any contract or business in which it is his official duty to intervene 2. experts, arbitrators, private accountants taking part in any contractor transaction with the estate or property in appraisal, distribution or adjudication 3. guardians and executors with respect to the property belonging to their wards or estate Guardian and ward has some kind of relationship. A fiduciary relation, one of trust and confidence. A guardian is not allowed to buy the property of the ward. That is a prohibited transaction under RPC. INTENT PLACING AN INTEREST Actual fraud not necessary. What is prohibited is placing his interest over and above the government which he represents.

Who are liable? Appointed public officer who during his encumbrance shall directly or indirectly interested on any transaction of exchange or speculation. This is limited to exchange or speculation, within the territory subject to his jurisdiction. Beyond that, he will not be liable for prohibited transaction. He hopes to take advantage of an expected rise or fall of price. 216 - POSSESSION OF PROHIBITED INTEREST BY A PUBLIC OFFICER
Art. 216. Possession of prohibited interest by a public officer. The penalty of arresto mayor in its medium period to prision correccional in its minimum period, or a fine ranging from 200 to 1,000 pesos, or both, shall be imposed upon a public officer who directly or indirectly, shall become interested in any contract or business in which it is his official duty to intervene. This provisions is applicable to experts, arbitrators and private accountants who, in like manner, shall take part in any contract or transaction connected with the estate or property in appraisal, distribution or adjudication of which they shall have acted, and to the guardians and executors with respect to the property belonging to their wards or estate.

Public officer who shall become interested in any contract or business in which it is his official business to intervene. NO DOUBLE JEOPARDY BTW, in Public Bidding Law, when you are caught, you may be prosecuted under the RPC, 1319 anti graft, 6713 and Public Bidding Law. Why? Because in 1319, Anti Graft, it says - In addition to commission of crimes under the penal code. So pwede double. In 6713 code of conduct, it says - In addition to RPC and 1319. In public bidding In addition to RPC, 1319 and 6713 There is no double jeopardy because a single act may be punished by two or more laws.

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Chapter Four - MALVERSATION OF PUBLIC FUNDS OR PROPERTY There are six crimes falling under malversation of public funds or property. Malversation, is either deliberate or through negligence. The penalty is the same. 217 - MALVERSATION OF PUBLIC FUNDS OR PROPERTY; PRESUMPTION OF MALVERSATION
Art. 217. Malversation of public funds or property; Presumption of malversation. Any public officer who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same or shall take or misappropriate or shall consent, through abandonment or negligence, shall permit any other person to take such public funds, or property, wholly or partially, or shall otherwise be guilty of the misappropriation or malversation of such funds or property, shall suffer: 1. The penalty of prision correccional in its medium and maximum periods, if the amount involved in the misappropriation or malversation does not exceed two hundred pesos. 2. The penalty of prision mayor in its minimum and medium periods, if the amount involved is more than two hundred pesos but does not exceed six thousand pesos. 3. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum period, if the amount involved is more than six thousand pesos but is less than twelve thousand pesos. 4. The penalty of reclusion temporal, in its medium and maximum periods, if the amount involved is more than twelve thousand pesos but is less than twenty-two thousand pesos. If the amount exceeds the latter, the penalty shall be reclusion temporal in its maximum period to reclusion perpetua. In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special disqualification and a fine equal to the amount of the funds malversed or equal to the total value of the property embezzled. The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal use. (As amended by RA 1060).

ACCESSORY PENALTIES Perpetual special disqualification. EFFECT OF DEMAND OR LACK OF DEMAND Is demand necessary in malversation? No. For as long as there is shortage, there is malversation. But if there is a demand for the production and you were not able to produce, that is prima facie presumption of malversation. GIVING OF VALES Case: Minesis vs Sandigan That is malversation, for it is contrary to government auditing code. PENALTY The penalty for malversation is the same whether committed with malice or through negligence or imprudence who by reason of the duties of his office is accountable for public funds or property. LIABLE PUBLIC OFFICERS Emergency employee entrusted with the collection and/or custody of public funds may be held liable for malversation Is a mayor an accountable public officer? Yes. The funds must be received in his official, not public capacity. There is no malversation of licensed firearm that is deposited with the mayor. But the mayor may be civilly liable. But when the public officer has the official custody of funds or property or the duty to collect funds due the government and the obligation to account for them to the government is misappropriation, is malversation. LIABLE PRIVATE INDIVIDUALS There are private individuals who are liable for malversation. Private individuals who in any capacity was ever charged with national, provincial or municipal funds, revenue or property. Administrator or depository of funs or property attached, seized or deposited by public authority. Example. Sheriff who attached a car for public auction. He has the duty to safely keep the property. He brought it with him to Badian but met an accident. He is liable for malversation because the property attached although it is property s property under custodia legis.

MALVERSATION AND EMBEZZLEMENT ACTS There are three acts punishable in malversation: 1. appropriating public funds or property 2. taking or misappropriating public funds or property 3. consenting or through abandonment or negligence, permitting other persons to take such public funds or property OFFENDER Who is liable? Any public officer who by reason of the duties of his duties is accountable for public funds or properties. Only an accountable officer is liable is liable for malversation. Accountable officer is defined by law. Name and nature of the office is not important. What is important is that you are accountable. It is not only the treasurer who may be filed with malversation. Example. When he was barangay counselor, they were given in trust hand held radio, he was not able to return it. he made excuses but the court says that it was lost through negligence.

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CRIMINAL LAW

Kwin

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