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The basis of criminal responsibility is human free This combines both positivist and classical
will. Man has the intellect to know what is legal thinking. Crimes that are economic and social in
from illegal. He has the freedom to choose nature should be dealt with in a positivist
whether to obey the law or violate it. If he opts manner; thus, the law is more compassionate.
to violate the law, then he must bear the Heinous crimes should be dealt with in a
consequences. Best remembered by the maxim classical manner; thus, capital punishment.
An eye for an eye, a tooth for a tooth. [Note:
If you want to impress the examiner, use the Utilitarian Theory
Latin version Oculo pro oculo, dente pro
dente.] A man is punished only if he is proved to be an
actual or potential danger to society.
The purpose of penalty is retribution. Since he
injured the society, then society has the right to The primary purpose of the punishment under
demand that he must pay and suffer for what he criminal law is the protection of society from
did. actual and potential wrongdoers. The courts,
therefore, in exacting retribution for the
There is direct and mechanical proportion wronged society, should direct the punishment
between crime and penalty which penalty has to potential or actual wrongdoers, since criminal
been determined before hand. law is directed against acts and omissions which
the society does not approve. Consistent with
The emphasis is the act itself, with little regard this theory, the mala prohibita principle which
for the criminal. There is scant regard for the punishes an offense regardless of malice or
human element of the crime. The law does not criminal intent, should not be utilized to apply
look into why the offender committed the crime. the full harshness of the special law.
Capital punishment is a product of this kind of
this school of thought. Man is regarded as a Theory to Which the Philippines Adhere
moral creature who understands right from
wrong. So that when he commits a wrong, he 1. Since the Revised Penal Code was adopted
must be prepared to accept the punishment from the Spanish Codigo Penal, which in turn
therefore. was copied from the French Code of 1810
which is classical in character, it is said that
RPC is generally governed by this theory. our Code is also classical. This is no longer
true because with the American occupation
Positivist (Realistic) Theory of the Philippines, many provisions of
common law have been engrafted into our
The basis of criminal responsibility is the sum of penal laws. The Revised Penal Code today
the social, natural and economic phenomena to follows the mixed or eclectic philosophy. For
which the actor is exposed. Man is essentially example, intoxication of the offender is
good but by reason of outside factors or considered to mitigate his criminal liability,
unless it is intentional or habitual; the age of
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the offender is considered; and the woman proportion capital
who killed her child to conceal her dishonor between crime punishment.
has in her favor a mitigating circumstance. and penalty.
Besides, there are provisions which are There is a
based on positivist school like provisions on scant regard to
minority, modifying circumstances, and the human
provisions on impossible crimes. element.
2. For special laws, there are following the
positivist theory such as the Law on POWER TO ENACT PENAL LAWS
Probation, Special protection to children.
Others follow the classical school such as Essentially legislative. The power is plenary.
Heinous Crimes Law and the Dangerous Congress may determine what acts or omissions
Drugs Law. are deemed reprehensible and provide a penalty
3. Jurisprudence usually applies utilitarian therefore. The power includes the prerogative to
theory (e.g. accused of BP 22 no danger to set forth a presumption of the commission of
society, thus just pay fine). violation of penal law and placed the burden on
the accused to overcome this presumption. As in
the presumption of authorship of theft from the
CLASSICAL POSITIVIST MIXED/ possessor of stolen goods or falsification.
ECLECTIC
The basis of That man is This combines BASIS OF THE POWER TO ENACT PENAL
criminal subdued both positivist LAWS
liability is occasionally by and classical 1. Police Power of the State
human free will a strange and thinking. 2. Right of the State to Self Preservation and
and the morbid Defense
purpose of the phenomenon
penalty is which LIMITATIONS IN THE ENACTMENT OF PENAL
retribution. constrains him LAWS
to do wrong in
spite of or 1. Penal laws must be GENERAL IN
contrary to his APPLICATION/equal application to all.
volition. Otherwise, it would violate the equal
That man is That crime is Crimes that are protection clause of the constitution.
essentially a essentially a economic and 2. Penal laws must not partake of the
moral creature social and social in nature nature of an EX POST FACTO LAW.
with an natural should be dealt Makes criminal an act done before the
absolute free phenomenon, with in a passage of the law and which was
will to choose and as such, it positivist innocent when done, and punishes such
between good cannot be manner, thus an act.
and evil, treated and the law is more Aggravates a crime, or makes it greater
thereby placing checked by the compassionate. than it was, when committed.
more stress application of Changes the punishment and inflicts a
upon the effect abstract greater punishment than the law
or result of the principles of annexed to the crime when committed.
felonious act law and
Alters the legal rules on evidence, and
done upon the jurisprudence
authorizes conviction upon less or
man, the nor by the
different testimony than the law required
criminal imposition of a
at the time of the commission of the
himself. punishment,
offense.
fixed and
Assuming to regulate civil rights and
determined a
priori; rather remedies only in effect imposes penalty
through the or deprivation of a right for something
enforcement of which when done was lawful.
individual Deprives a person accused of a crime
measures in some lawful protection to which he has
each particular become entitled, such as the protection
case. of a proclamation of amnesty.
It has Heinous crimes
endeavored to should be dealt 3. Penal laws must not partake of the
establish a with in a nature of a bill of attainder.
mechanical classical
and direct manner, thus BILL OF ATTAINDER - is a legislative act
which inflicts punishment without trial. Its
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essence is the substitution of a legislative is controlling. This does not apply to penal
act for a judicial determination of guilt. laws enacted after 1932.
5. Penal laws must not impose cruel and 1. ABSOLUTE OR TOTAL REPEAL - when
unusual punishment nor excessive fines. the crime punished under the repealed law
has been decriminalized by the same. (e.g.
CONSTRUCTION OF PENAL LAWS Republic Act No. 7363, which decriminalized
1. Application of the Principle of Pro Reo. Penal subversion.)
laws are to be construed liberally in favor of
the accused and strictly against the CONSEQUENCES:
government. All doubts are to be resolved in 1. Cases pending in court involving the
favor of the accused. violation of the repealed law, the same
e.g. shall be dismissed, even though the
a. whether the offender clearly fall within accused may be a habitual delinquent.
the terms of the law. This is so because all persons accused of
b. whether the act or omission is within the a crime are presumed innocent until they
coverage of the law are convicted by final judgment.
c. whether the conviction is for a lesser Therefore, the accused shall be
offense acquitted.
d. whether to impose a lesser penalty 2. If the case is on appeal, the judgment
of conviction shall be reversed, thus
This is in consonance with the fundamental accused be acquitted.
rule that all doubts shall be construed in 3. In cases already decided and as to
favor of the accused and consistent with those already serving sentence by final
presumption of innocence of the accused. judgment, if the convict is NOT a
This is peculiar only to criminal law. habitual delinquent, then he will be
entitled to a release UNLESS there is a
Q: One boy was accused of parricide and reservation clause in the penal law that
was found guilty. This is punished by it will not apply to those serving
reclusion perpetua to death. Assuming you sentence at the time of the repeal. But if
were the judge, would you give the accused there is no reservation, those who are
the benefit of the Indeterminate Sentence not habitual delinquents even if they are
Law (ISLAW)? The ISLAW does not apply already serving their sentence will
when the penalty imposed is life receive the benefit of the repealing law.
imprisonment or death. Would you consider They are entitled to release. Thus, the
the penalty imposable or the penalty remedy is to file a petition for habeas
imposed, taking into consideration the corpus.
mitigating circumstance of minority?
This does not mean that if they are not
If you will answer "no", then you go against released, they are free to escape. If they
the Doctrine of Pro Reo because you can escape, they commit the crime of
interpret the ISLAW in a more lenient evasion of sentence, even if there is no
manner. Taking into account the doctrine, more legal basis to hold them in the
we interpret the ISLAW to mean that the penitentiary. This is so because
penalty imposable and not the penalty prisoners are accountabilities of the
prescribed by law, since it is more favorable government; they are not supposed to
for the accused to interpret the law. step out simply because their sentence
has already been, or that the law under
2. Application of the Principle of Prospective which they are sentenced has been
Interpretation. Laws are to be interpreted as declared null and void.
applying only to those acts or omissions
committed after the effectivity of the law If they are not discharged from
UNLESS the law is favorable to the accused confinement, a petition for habeas
who is not a habitual delinquent and the corpus should be filed to test the legality
law does not provide for its non- of their continued confinement in jail.
retroactivity. If the convict, on the other hand, is a
habitual delinquent, he will continue
3. As to the RPC, in cases of conflict with serving the sentence in spite of the fact
official translation, the original Spanish text that the law under which he was
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convicted has already been absolutely 3. EXPRESS - takes place when a subsequent
repealed. This is so because penal laws law contains a provision that such law
should be given retroactive application repeals an earlier enactment.
to favor only those who are not habitual e.g. Republic Act No. 6425 (The Dangerous
delinquents. Drugs Act of 1972), there is an express
provision of repeal of Title V of the Revised
Q: A, a prisoner, learns that he is already Penal Code.
overstaying in jail because his jail guard,
B, who happens to be a law student Significance: If a law expressly repeals a
advised him that there is no more legal prior law is itself repealed, the repeal of the
ground for his continued imprisonment, repealing law will not survive the first law
and B told him that he can go. A got out UNLESS otherwise provided, so the act or
of jail and went home. Was there any omission will no longer be penalized.
crime committed?
4. IMPLIED - takes place when there is a law
A: As far as A, the prisoner who is on a particular subject matter but is
serving sentence, is concerned, the inconsistent with the first law, such that the
crime committed is evasion of sentence. two laws cannot stand together one of the
two laws must give way. IT IS NOT FAVORED.
As far as B, the jail guard who allowed A It requires a competent court to declare an
to go, is concerned, the crime committed implied repeal.
is infidelity in the custody of prisoners.
It is the earlier that will give way to the later
4. If convicted under old law, convict law because the later law expresses the
cannot demand compensation from the recent legislative sentiment. So you can
government, however, the law shall be have an implied repeal when there are two
applied retroactively because the law is inconsistent laws. If the two laws can be
favorable to him. reconciled, the court shall always try to
avoid an implied repeal. For example, under
Article 9, light felonies are those infractions
2. PARTIAL OR RELATIVE REPEAL - when of the law for the commission of which a
the crime punished under the repealed law penalty of arresto mayor or a fine not
continues to be a crime inspite of the repeal, exceeding P200.00 or both is provided. On
so this means the repeal merely modified the other hand, under Article 26, a fine
the conditions affecting the crime under the whether imposed as a single or an
repealed law. Thus, there might be increase alternative penalty, if it exceeds P6,000.00
or decrease of penalty, conditions for but is not less than P 200.00, is considered
criminal liability either deleted or added, or a correctional penalty. These two articles
the coverage of law is expanded or limited. appear to be inconsistent. So to harmonize
them, the Supreme Court ruled that if the
CONSEQUENCES: issue involves the prescription of the crime,
1. Pending prosecution - if the repealing that felony will be considered a light felony
law is more favorable to the offender, it and, therefore, prescribes within two
shall be the one applied to him. So months. But if the issue involves
whether he is a habitual delinquent or prescription of the penalty, the fine of
not, if the case is still pending in court, P200.00 will be considered correctional and
the repealing law will be the one to apply it will prescribe within 10 years. Clearly, the
UNLESS there is a saving clause in the court avoided the collision between the two
repealing law that it shall not apply to articles.
pending causes of action.
Significance: If a law which impliedly
2. As to those already serving repeals a prior law is itself repealed, the
sentence in jail - even if the repealing repeal of the repealing law will revive the
law is partial, then the crime still remains original law UNLESS otherwise provided. So
to be a crime. Those who are not the act or omission which was punished as a
habitual delinquents will benefit on the crime under the original law will be revived
effect of that repeal, so if the repeal is and the same shall again be crime although
more lenient to them, it will be the during the implied repeal they may not be
repealing law that will henceforth apply punishable.
to them.
NOTE: These effects of repeal do not apply
to self-repealing laws or those which have
automatic termination. An example is the
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Rent Control Law which is revived by 2. Publication of Penal Laws in the Official
Congress every two years. Gazette or newspaper of general circulation
(Maam Lulu 15 day publication shall not
When there is a repeal, the repealing law be reduced). This is in compliance with due
expresses the legislative intention to do process or fairness. Once there is
away with such law, and, therefore, implies a publication, there is constructive notice.
condonation of the punishment. Such Ignorance of the law, excuses no one from
legislative intention does not exist in a self- compliance therewith. The liability does not
terminating law because there was no repeal depend on the actual knowledge of the law.
at all.
DEVELOPMENT OF CRIMINAL LAW IN THE
REQUIREMENTS OF CRIMINAL LAW (Sir PHILIPPINES
Sagsago)
1. Principle of Legality For an act or Code of Kalantiao
omission to be punished, there must be a If you will be asked about the
statutory enactment declaring the development of criminal law in the Philippines,
act/omission to be a crime and imposing a do not start with the Revised Penal Code. Under
penalty therefor. All crimes are of statutory the Code of Kalantiao, there were penal
origin. provisions. Under this code, if a man would
have a relation with a married woman, she is
The principle declares that for any human penalized. Adultery is a crime during those
conduct to be considered as a criminal act, days. Even offending religious things, such as
there must be a specific statute or law gods, are penalized. The Code of Kalantiao has
declaring such conduct as a crime and certain penal provisions. The Filipinos have their
providing for a penalty. own set of penology also.
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Among those who participated in drafting the 2. Special Laws refers to those penal laws
Code of Crimes was Judge Guellermo Guevarra. other than the RPC.
a. Those of National Application
Since that Code of Crimes was never i. Those Passed by Congress
enacted as law, he enacted his own code of 1. Acts those passed during the
crimes. But it was the Code of Crimes that was American Regime
presented in the Batasan as Cabinet Bill no. 2. 2. Commonwealth Acts those
Because the code of crimes prepared by passed during the
Guevarra was more of a moral code than a penal commonwealth period (1936-
code, there were several oppositions against the 1946)
code. 3. Republic Acts during the time
the Philippines became a republic
Proposed Penal Code of the Philippines (since 1946)
Through Assemblyman Estelito Mendoza, 4. Batas Pambansa passed by the
the UP Law Center formed a committee which Batasang Pambansa during
drafted the Penal Code of the Philippines. This Martial Law.
Penal Code of the Philippines was substituted as
Cabinet Bill no. 2 and this has been discussed in ii. Those passed during Martial Law by
the floor of the Batasang Pambansa. So the the President known as Presidential
Code of Crimes now in Congress was not the Decrees
Code of Crimes during the time of President iii. Those passed by administrative
Roxas. This is a different one. Cabinet Bill No. 2 bodies and are referred to as
is the Penal Code of the Philippines drafted by a Administrative Penal Circulars or
code committee chosen by the UP Law Center, rules and regulations.
one of them was Professor Ortega. There were
seven members of the code committee. It b. Those of Local Application city or
would have been enacted into law it not for the municipal ordinances
dissolution of the Batasang Pambansa. The
Congress was planning to revive it so that it can CHARACTERISTICS OF CRIMINAL LAW
be enacted into law.
1. GENERALITY
Special Laws
During Martial Law, there are many Penal laws and those of public security and
Presidential Decrees issued aside from the safety shall be obligatory upon all who live
special laws passed by the Philippine Legislature or sojourn in Philippine territory. (Art 14,
Commission. All these special laws, which are NCC) In other words, it applies to all persons
penal in character, are part of our Penal Code. within the country regardless of their race,
belief, sex, or creed. This answers the
SOURCES OF PENAL LAWS IN THE question: who are bound by the law? To
PHILIPPINES (Sir Sagsago) whom is the penal law applicable? They may
1. The Revised Penal Code (Act No 3815) be permanent or temporary residents or are
effective on Jan 1, 1932. transients like tourists.
a. Principally based on the Spanish Penal
Code of 1887, however some crimes are EXCEPTIONS:
based on American concepts such as 1. Those exempt by reason Treaty
perjury, libel, malversation. Stipulations
b. Original text was Spanish and translated e.g. RP-US Accord, signed on Feb 10,
into English. 1998, Phils agreed that:
c. Inadequate to meet crimes arising from a. US shall have a right to exercise
or related to modern technology such as within the Phils all criminal and
computer-related offenses as hacking. disciplinary jurisdiction conferred on
d. Many provisions have repealed and/or them by the military of the US over
amended such as provisions on US personnel in RP
dangerous drugs, gambling, provisions b. US exercises exclusive jurisdiction
involving minor offenders. over US personnel with regard to
e. Consists of 2 major parts known as Book offenses relating to the security of
I and Book II. The first deals with criminal the US punishable under the law of
liability in general and the principles US, but not under the laws of RP
concerning penalties. Book II enumerates c. US shall have primary right to
and defines the specific crimes and exercise jurisdiction over US
provides for their specific penalties. personnel subject to military of the
US in rel to:
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c.1. Offenses solely against the domestic servants of ambassadors
property or security of the US or provided registered with the DFA.
offenses solely against the property
or person of US personnel; It is not applicable when the foreign
c.2. Offenses arising out of any act country adversely affected does not
or mission done in performance of provide similar protection to our
official duty. diplomatic representatives.
2. Those exempt by reason of Principles PRINCIPLE OF RECIPROCITY.
Of Public International Law
e.g. 2. TERRITORIALITY
sovereigns and heads (chiefs) of
foreign states whether on official or GENERAL RULE: Penal laws are applicable or
personal visit, including members of enforceable only within the limits of the
their personal (spouse, children) or territorial jurisdiction of the authority which
official family (those who accompany enacted the law. Thus, ordinances are
the heads of state) enforceable only within the territorial limits
of the city/municipality which enacted them,
Functional Immunity because they while laws of national application are
are performing state functions enforceable only within Philippine territory.
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regarded as one integrated unit instead subjacent state, the criminal law of
of being fragmented into so many that state will not govern anymore.
thousand islands. As for our territorial But if the crime is committed in an
seas, these are more defined according aircraft within the atmosphere over a
to the Jamaica Convention on the Law of subjacent state which exercises
the Seas, concluded in 1982, in which control, then its criminal law will
the Philippines is a signatory. govern.
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registered in accordance with
Philippine laws has been deleted
from Section 25, paragraph c of Rule
Principle of 110 of the Rules of Court. The
PIL intention is to do away with that
-warship requirement so that as long as the
vessel is not registered under the
laws of any country, our courts can
take cognizance of the crime
committed in such vessel.
More than this, the revised provision
added the phrase in accordance
with generally accepted principles of
International Law. So the intention
is clear to adopt generally accepted
principles of international law in the
matter of exercising jurisdiction over
crimes committed in a vessel while in
the course of its voyage. Under
international law rule, a vessel which
is not registered in accordance with
the laws of any country is considered
a pirate vessel and piracy is a crime
against humanity in general, such
that wherever the pirates may go,
Looking at the second column, it can
they can be prosecuted.
be seen that there are two situations
Prior to the revision, the crime would
where the foreign country may not
not have been prosecutable in our
apply its criminal law even if a crime
court. With the revision, registration
was committed on board a vessel
is not anymore a requirement and
within its territorial waters and these
replaced with generally accepted
are:
principles of international law. Piracy
is considered a crime against the law
(1) When the foreign country in
of nations.
whose territorial waters the crime
In your answer, reference should be
was committed adopts the French
made to the provision of paragraph c
Rule, which applies only to merchant
of Section15 of the Revised Rules of
vessels, except when the crime
Criminal Procedure. The crime may
committed affects the national
be regarded as an act of piracy as
security or public order of such
long as it is done with intent to
foreign country.
gain.
(2) When the crime is committed in a
Foreign Merchant Vessel in
war vessel of a foreign country,
Transit: possession of dangerous
because war vessels are part of the
drugs is NOT punishable, but use
sovereignty of the country to whose
of the same is punishable.
naval force they belong.
Foreign Merchant Vessel NOT in
Q: A vessel is not registered in the Transit: Mere possession of
Philippines. A crime is committed dangerous drugs is punishable.
outside Philippine territorial waters.
Then the vessel entered our territory. Q: A crew member of a foreign
Will the Revised Penal Code apply? vessel which docked in Manila Bay
was found in possession of ten kilos
A: Yes. Under the old Rules of of shabu. Is he liable under our laws?
Criminal Procedure, for our courts to
take cognizance of any crime A: NO if the vessel is merely in
committed on board a vessel during transit, unless he sniffs the shabu
its voyage, the vessel must be YES if the Phil is the port of
registered in the Philippines in destination
accordance with Philippine laws.
Under the Revised Rules of Criminal 2. Forging or counterfeiting any coin or
Procedure, however, the requirement currency note of the Philippines or
that the vessel must be licensed and
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obligations and securities issued by Illustration:
the Government of the Philippines
A Philippine consulate official who is
Reason: to protect the monetarial validly married here in the
system of the country Philippines and who marries again in
a foreign country cannot be
Note that the act of prosecuted here for bigamy because
forging/counterfeiting maybe done in this is a crime not connected with his
a foreign country and the actors official duties. However, if the
maybe foreigners. second marriage was celebrated
within the Philippine embassy, he
If forgery was committed abroad, it may be prosecuted here, since it is
must refer only to Phil coin, currency as if he contracted the marriage here
note, or obligations and securities. in the Philippines.
GENERAL RULE: RPC governs only 5. Crimes against national security and
when the crime committed pertains the law of nations, defined in Title
to the exercise of the public officials One of Book two of the Revised Penal
functions, those having to do with Code.
the discharge of their duties in a
foreign country. The functions Paragraph 5 of Article 2, use the
contemplated are those, which are, phrase as defined in Title One of
under the law, to be performed by Book Two of this Code.
the public officer in the Foreign
Service of the Philippine government This is a very important part of the
in a foreign country. exception, because Title I of Book 2
(crimes against national security)
EXCEPTION: RPC governs if the does not include rebellion. So if acts
crime was committed within the of rebellion were perpetrated by
Philippine Embassy or within the Filipinos who were in a foreign
embassy grounds in a foreign country, you cannot give territorial
country. This is because embassy application to the Revised Penal
grounds are considered an extension Code, because Title I of Book 2 does
of sovereignty. not include rebellion.
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Crimes against law of nations are: (1) existing or not, the drawer is not criminally
piracy in the high seas and (2) liable for either estafa or violation of BP22.
mutiny in the high seas Subsequently, the administrative
interpretation of was reversed in Circular No.
Q: how about terrorism? 12, issued on August 8, 1984, such that the
A: (Sir Sagsago) Following present claim that the check was issued as a
trends, it is possible that a new crime guarantee or part of an arrangement to
known as Global Terrorism may be secure an obligation or to facilitate
considered as a crime against the collection, is no longer a valid defense for
law of nations. the prosecution of BP22. Hence, it was ruled
in Que v. People that a check issued merely
Pirates are those humanis generis or to guarantee the performance of an
universal criminals and may be tried obligation is, nevertheless, covered by BP
under the laws of the country which 22. But consistent with the principle of
first acquired jurisdiction over them. prospectivity, the new doctrine should not
apply to parties who had relied on the old
EXCEPTION TO THE EXCEPTION doctrine and acted on the faith thereof. No
Penal laws not applicable within or retrospective effect.
without Phil territory if so provided in
treaties and laws of preferential
application. (Art 2, RPC) Title 1
FELONIES AND CIRCUMSTANCES WHICH
3. PROSPECTIVITY AFFECT CRIMINAL LIABITY
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2. The act or omission must be punishable
by the RPC. In determining the penalty, the following are
considered:
Basis: Nullum Crimen, nulla poena sine lege. (a) presence of modifying circumstances
(b) degree of accomplishment of crime
The term felony is limited only to violations (attempted, frustrated, consummated)
of the Revised Penal Code. When the crime (c) degree of participation of the offender
is punishable under a special law you do not (principal, accomplice, accessory)
refer to this as a felony. So whenever you
encounter the term felony, it is to be Violations of the RPC are mala in se.
understood as referring to crimes under the
Revised Penal Code e.g. killing of human being, disenfranchising a
. voter, sex crimes, destroying property of other
This is important because there are certain people
provisions in the Revised Penal Code where
the term felony is used, which means that Mala Prohibita - the act penalized is not
the provision is not extended to crimes inherently wrong, it is wrong only because a law
under special laws. A specific instance is punishes the same. They are violations of
found in Article 160 Quasi-Recidivism, regulatory statutes or rules of convenience
which reads: designed to secure a more orderly regulation of
the affairs of society
A person who shall commit a felony
after having been convicted by final Laws defining crimes mala prohibita condemn
judgment, before beginning to serve behavior directed not against any particular
sentence or while serving the same, individual but against public order. Violation is
shall be punished under the maximum deemed wrong against society as a whole and
period of the penalty. generally unattended with any particular harm
to definite persons (PP v. Doria; Jan 22, 1999)
Q: If a prisoner who is serving sentence is
found in possession of dangerous drugs, can Moral trait is not considered
he be considered a quasi-recidivist?
Good faith or lack of criminal intent are not
A: No. The violation of Presidential Decree defenses. However, it must be proven that there
No. 6425 (The Dangerous Drugs Act of 1972) was an intent to perpetrate the act, i.e. the
is not a felony. The provision of Article 160 act was performed voluntarily, willfully and
specifically refers to a felony and felonies persistently despite knowledge that the act is
are those acts and omissions punished under prohibited. The act was not casual or accidental
the Revised Penal Code. performance.
1. According to their Inherent Nature Modifying circumstances are not taken into
account, as well as the degree of participation of
Mala In Se - the act is inherently evil or bad per the offenders. They are punished generally only
se, or wrongful. Even without a law, they are in when consummated unless the law provides a
themselves bad and ought not to be done. penalty for the attempted or frustrated stage.
They are committed by dolo or culpa. Violations of special laws are mala prohibita.
Note, however, that not all violations of special
Criminal liability is based on the moral trait of laws are mala prohibita. While intentional
the offender hence the existence of intent or felonies are always mala in se, it does not follow
dolo is essential in determining criminal liability. that prohibited acts done in violation of special
laws are always mala prohibita.
Good faith and lack of intent are defenses.
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Crimes, which although punished by special Thus, there stages, unless
laws, are nevertheless mala in se (thus good are attempted, the special
faith and the lack of criminal intent is a valid frustrated, and law expressly
defense): consummated penalize the
stages in the mere attempt
(1) if the act punished is one which is commission of or frustration
inherently wrong, a crime. of the crime.
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means of deceit or dolo, that is, with
deliberate intent or malice to do an injury. When the offender acted out of a
mistake of fact, criminal intent is
Dolo - is equivalent to malice which is the negated, so do not presume that the act
intent to do injury to another. was done with criminal intent. This is
absolutory if crime involved dolo.
They may be by any positive acts or in the
form of omissions. Mistake of fact would be relevant only
when the felony would have been
Crimes by omission result when there is a intentional or through dolo, but not when
failure to act when required by law; a refusal the felony is a result of culpa. When the
to do what the law commands. E.g. felony is a product of culpa, do not
Misprision of Treason, Arbitrary Detention discuss mistake of fact. Also, it has no
(Art.125), Failure to Issue Receipts, Refusal application to felonies which are in the
to Render Assistance Towards the nature of strict liability crimes such as
Administration of Justice, Abandonment of statutory rape.
Persons in Danger of Dying, Abandonment of
Minors Requisites of Mistake of Fact as a
Defense:
Elements: 1. that the act done would have been
1. criminal intent on the part of the lawful had the facts been as the
offender. accused believed them to be.
- The purpose to use a particular 2. that the intention of the accused in
means to effect such result performing the act be lawful.
- Intent to commit an act with malice, 3. that the mistake must be without
being purely mental, is presumed. fault or carelessness on the part of
Such presumption arises from the the accused.
proof of commission of an unlawful
act. a. US v Achong (15 P 488) the
- Its existence is shown by overt acts. accused had no alternative but to
take the facts as they appeared
2. freedom of action on the part of the to him, and such facts justified
offender in doing the act. his act of killing his roommate.
- Voluntariness on the part of the b. Pp v Oanis (74 P 257) the
person to commit the act or omission accused police officers were at
- If without freedom, no longer a fault when the shot the escaped
human being but merely a tool. convict, who was sleeping,
without first ascertaining his
3. intelligence on the part of the offender identity.
in doing the act.
- Capacity to know and understand the Mistake of Fact vs. Mistake of
consequences of ones act Identity
(discernment: aware of the nature of In mistake of fact, there is no criminal
his action) intent: while in mistake of identity, there
- Without this power, necessary to is criminal intent, only it is directed at
determine the morality of human the wrong person in the belief that he
acts, no crime can exist. was the proper object of the crime. In
the first, the mistake refers the situation,
How To Disprove The Elements while in the second the mistake is with
1. Freedom : by proof of irresistible force or respect to the identity of the persons
uncontrollable fear involved. Where an unlawful act is
2. Intelligence : by proof of insanity or willfully done, a mistake in the identity of
infancy the intended victim cannot be
3. Intent : by proof of good faith OR by considered exempting, nor can it be
proof that the accused acted under a considered reckless imprudence.
State Of Mistake Of Fact
(Misapprehension of Facts) E.g. A husband shoots a woman engaged
in sexual intercourse believing her to be
MISTAKE OF FACT - Misapprehension of his wife, but she is not. There is no
fact on the part of the person who mistake of fact as what is involve is a
caused injury to another. He is not, mistake in identity.
however, criminally liable because he did
not act with criminal intent. Mistake of Fact vs Mistake of Law
15
Mistake of fact is different from mistake Negligence as a Felony
of law because the latter refers to a
situation where a person relies upon a Under Article 3, it is beyond question
law or decision which is subsequently that culpa or criminal negligence is just a
found to be invalid or erroneous. mode by which a felony may arise; a
felony may be committed or incurred
4 Kinds of Intent According to the through dolo or culpa.
American Model Penal Code
1. Purposeful where the accused had However, Justice J.B.L. Reyes pointed out
the desire to cause the result. This is that criminal negligence is a quasi
synonymous to the concept of offense. His reason is that if criminal
specific intent. negligence is not a quasi-offense, and
2. Knowing where the accused knew only a modality, then it would have been
what he was doing and understood absorbed in the commission of the
the probable results thereof though felony and there would be no need for
he did intend the result. This is Article 365 as a separate article for
similar to general criminal intent. criminal negligence. Therefore, criminal
3. Reckless where the accused is negligence, according to him, is not just
indifferent to the results of his acts. a modality; it is a crime by itself, but
4. Negligent the failure of the accused only a quasi-offense.
to do something that a reasonable
man would do, it is inattentiveness. Under Art 365, negligence is not just a
mode of committing a felony but is in
b. Culpable Felonies act is performed itself the felony. The resulting injuries or
without malice but by means of fault or damage are considered for purposes of
culpa (culpa - imprudence or determining the proper penalty to be
negligence). imposed.
Imprudence deficiency of action, lack Thus, if the result of the lack of due care
of skill, or if the person fails to take the of the accused, there resulted death,
necessary precaution to avoid injury to injuries and damage to property, the
person / damage to property. nomenclature of the offense is
E.g. A, after being taught how to drive Reckless/Simple Imprudence Resulting to
for 1 hr, drove his car in session and hit Homicide, Serious Physical Injuries and
B. Damage to Property.
16
This is to compel a person to be careful if b. Impossible Crime an act, which
not for his own protection, then for the would have been an offense against
protection of the public. persons or property, were it not for the
inherent impossibility of its
Penalty for Felony From Negligent accomplishment or on account of
Act is Lower inadequate or ineffective means.
General Rule: The penalty for a felony Legal Impossiblity based on the legal
resulting from negligence is lower than nature /concept of the offense, the
that provided for if the felony was intended crime can never be produced.
intentional. E.g Shooting a dead person or stealing
ones own property
Exception: Crime of Malversation where
the penalty is the same whether it is Physical Impossibility the intended
intentional or committed through crime cannot be produced due to factors
negligence. or circumstances beyond the control of
or unknown to the accused. E.g. Pick-
Principle of Inclusion of Offenses pocketing an empty pocket.
Intentional felony includes culpable The accused must not be aware of the
felony. impossibility of the accomplishment of
the intended crime.
There are felonies where an accused is
prosecuted under an Information This is a crime of last resort in that the
charging him with committing the felony acts performed should not be punished
intentionally, but he may be convicted by any other provision of the RPC.
for committing the same through
negligence, even without amending the The correct and complete nomenclature
Information. This is because an of the crime is Impossible cerime of
Intentional Felony included a Felony Theft, Estafa, Homicide, Physical
through negligence. This is illustrated in Injuries, as the case may be.
the cases of falsification and
malversation. An impossible crime has no stages of
execution and has a fixed penalty of
Crimes which Cannot be Committed Arresto Mayor.
By Negligence
a. If the elements of the crime include This is an example of positivist theory.
malice. The accused is penalized because while
b. If the nature of the crime requires a objectively he has not committed a
special state of mind. crime, subjectively, he is a potential
c. If the nature of the crime requires criminal. He is punished to protect
intent like political crimes which is society from his criminal tendencies.
always intentional.
4. According to Whether they Have Stages
Intentional Culpable of Execution
Acts is Not malicious a. Formal Crimes those committed in
malicious one instance and have no attempted and
With deliberate Injury caused is frustrated stages. E.g. threats, libel,
intent unintentional being incident defamation, slander, alarms and scandal,
of another act performed coercion
without malice b. Material Crimes those with at least 2
Has intention to Wrongful act results from stages of execution, the attempted and
cause injury imprudence, negligence, consummated.
lack of foresight, lack of
skill 5. According to their Stages of Execution
(See Discussion Below)
3. According to Whether they Produce 1. Attempted Felonies
Material Injuries 2. Frustrated Felonies
a. Real Crimes if they produce actual 3. Consummated Felonies
damage or injury to life, security or
property. 6. According to their Gravity
a. Light Felony the penalty is Arresto
Menor or a fine not exceeding P200
17
b. Less Grave Felony punished by a b. Continued - where the offender
correctional penalty (from 1 month and 1 performs a series of overt acts violating
dat to 6 years) or a fine fro P201 to one and the same penal provision
P6,000 committed at the same place and about
c. Grave Felony the penalty is more the same time for the same criminal
than 6 years imprisonment or a fine of purpose, regardless of series of acts
more than P6,000. done, it is regarded in law as one.
d. Heinous Crime e.g. The taking of several personal
properties belonging to different persons
Notes: constitute but one theft Two birds with
Where a penalty of imprisonment is provided one stone; The robbery of different
whether as a joint or alternative penalty to buildings which is part of an intent to
fine, it is the basis for the classification. commit a general robbery within a
specific area is only one robbery
The classification is important: 1) for
purposes of determining whether the offense Note: Continued offense is always
has prescribed; 2) to determine whether the instantaneous.
offense may be subject to complexing; and
3)to determine whether a subsidiary penalty c. Continuing - this is but one offense
may be imposed. consisting of several acts executed
within a span of time. Thus, several acts
7. According to Number of Acts involved involving illegal recruitment committed
in the Offense within a year time give rise to only one
a. Singular there is one crime meriting offense of Estafa by Deceit.
one penalty for each injury to a person e.g. Political crimes of treason or
arising from separate acts. rebellion
b. Plural 2 or more crimes result but only
one penalty is imposed. Note: Continuing offense may be
b1. Complex crime proper (delito localized or transitory.
compuesto) one act gives rise to 2
or more grave or less grave felonies. 10. According to the Requirement of
Complaint
b2. Compound (delito complejo) one a. Private those which cannot be
offense is a necessary means to prosecuted de officio or those which
commit the other. require the offended party file a
complaint for the criminal case to be
b3. Special Complex / Composite 2 or instituted.
more offenses but the law considers e.g. crimes against chastity
them as one, thus 1 penalty. b. Public those which may be instituted
e.g. robbery with rape, robbery with without a prior complaint by the
homicide offended party.
18
groups, often causing fear and 2. The Mens Rea this refers to the mental
victimization of innocent persons. component of a crime. It is the state of mind
required in order that a person will be
b1. Political Crimes of Domination criminally liable. It is often equated with evil,
and Oppression or State Crimes or criminal mind, or intent. Hence the
if committed by powerful institution maxim, Actus non facit reum, nisi mens
or the state. sit rea - The act cannot be criminal where
e.g. Domestic spying, human rights the mind is not criminal.
violation, restriction of political
rights. This is true to a felony characterized by
b2. Political Crimes of Group dolo, but not a felony resulting from culpa.
Conflicts, Hate Crimes, or Bias This maxim is not an absolute one because
Crimes if committed by rival it is not applied to culpable felonies, or those
groups. that result from negligence. (Ortega)
e.g. killing based on racism
b3. Political Crimes of Rebellion, However, (According to Sir Sagsago) the
sedition, coup detat crimes criminal mind may either be an intentional
committed by groups against the or negligent mind (indifferent mind)
existing social and political order.
This is the type being followed in the For one to be criminally liable for a felony by
Philippines. The first 2 types are dolo, there must be a confluence of both an
punished as ordinary crimes. evil act and an evil intent. Actus non facit
reum, nisi mens sit rea ( PP vs. Manuel 476
Notes: Ordinary crimes committed in SCRA 461)
furtherance of Political Crimes are not
considered as separate crimes, but are As a general rule, mistake of fact, good faith,
integral parts and therefore absorbed in or mistake of law are valid defenses in a
the political crime. prosecution for a felony by dolo. Actus non
facit reum, nisi mens sit rea ( PP. vs.
Political crimes are often continuing and Manuel)
Transitory.
The existence of intent is shown by the overt
13. According to Magnitude acts of the person.
a. Crimes against Nations those which
can be tried by any state. Criminal intent is presumed from the
b. Crimes against a particular state commission of an unlawful act, but not from
those which are defined by domestic law the proof of the commission of an act which
of a state and tried in that particular is not unlawful.
state.
Mens rea of the crime depends upon the
ELEMENTS OF A CRIME elements of the crime. You can only detect
the mens rea of a crime by knowing the
1. The Actus Reus this is the physical aspect particular crime committed. Without
consisting of an overt physical activity reference to a particular crime, this term is
capable of producing an effect upon the meaningless. For example, in theft, the
outside world. They include overt physical mens rea is the taking of the property of
positive acts, omissions or oral declarations. another with intent to gain. In falsification,
They do not, however, include ideas, beliefs, the mens rea is the effecting of the forgery
thoughts, or personal status of a person with intent to pervert the truth.
except that of being a vagrant.
In criminal law, we sometimes have to
Overt acts refers to acts which are consider the crime on the basis of intent.
observable or capable of being felt, seen or For example, attempted or frustrated
heard. homicide is distinguished from physical
injuries only by the intent to kill. Attempted
e.g. Overt positive act: stabbing or picking a rape is distinguished from acts of
property; Omission: failure to render lasciviousness by the intent to have sexual
assistance to a person in danger of dying or intercourse. In robbery, the mens rea is the
failure to file a complaint within the period taking of the property of another coupled
mandated by law; Declarations: libel and with the employment of intimidation or
slander. violence upon persons or things; remove the
employment of force or intimidation and it is
not robbery anymore.
19
MOTIVE INTENT
Criminal Intent, categorized into two (in Reason/moving Purpose to use a
intentional offenses the mens rea is either): power which particular means to
1. General Criminal Intent intent is impels one to bring about a desired
presumed from the mere doing of a commit an act for result (not a state of
wrong act. So this does not require a definite result. mind, not a reason for
proof, the burden is upon the wrongdoer Simply put, motive committing a crime)
to prove that he acted without such is the personal or
criminal intent. private reason
2. Specific Criminal Intent (according to why an offender
Sir Sagsago) it is when the offender commits a crime.
intended the result of the act. It is the E.g. hatred,
use of specific means to achieve a jealousy, profit,
specific result. revenge, reward.
NOT an element of Element of the crime
Intent is not presumed because it is an the crime EXCEPT culpable
ingredient or element of a crime, like felonies
intent to kill in the crimes of attempted Generally not Essential in intentional
or frustrated homicide/parricide/murder. necessary to be felonies.
The prosecution has the burden of proof. proven EXCEPT
when identity of
Specific intent may be proved by proof of the perpetrator is
SCIENTER or knowledge of a particular in doubt.
fact or illegality which will result in When there is If intentional, a crime
criminal liability. This may be actual or motive in the cannot be committed
constructive. commission of a without intent. Intent
e.g. Adultery/concubinage knowledge crime, it always is manifested by the
that the woman/man is married; Indirect comes before instrument used by the
assault - that the victim is a public intent. But a offender. It is an
officer; to be accessory there must be crime maybe element of a felony
knowledge of the commission of a crime committed without except in cases of
by the principal; in Fencing, that the motive. It is not an culpa.
article is the subject of theft or robbery. element of a
felony.
Q: May a crime be committed without A matter of A matter of criminal
criminal intent? procedure. law.
A: Yes. Criminal intent is not necessary in
these cases: When is Motive Relevant/Necessary
(1) When the crime is the product of culpa General Rule: Proof of Motive is not
or negligence, reckless imprudence, lack of necessary for conviction.
foresight or lack of skill;
Exceptions:
(2) When the crime is a prohibited act under 1. When it is an essential element of a
a special law or what is called malum crime as in libel and malicious mischief,
prohibitum (and/or strict liability crimes direct assault, political crimes
under RPC such as Statutory rape). 2. When the evidence against the accused
is purely circumstantial. (JBL)
INTENT vs. DISCERNMENT: 3. When there is doubt as to the identity of
the accused (JBL)
INTENT - the determination to do a certain 4. When the act produces several crimes as
thing; an aim or purpose of the mind. It is in entering the estate of another, motive
the design to resolve or determination by is necessary to determine whether the
which a person acts. offense is trespass, vagrancy or theft.
5. When it is necessary to ascertain the
DISCERNMENT - the mental capacity to tell truth between 2 antagonistic theories or
right from wrong. It relates to the moral versions of the killing. L(JBL)
significance that a person ascribes to his act 6. When the identification of the accused
and relates to the intelligence as an element proceeds from an unreliable source and
of dolo, distinct from intent. the testimony is inconclusive and not
free from doubt. (JBL)
INTENT vs. MOTIVE
20
7. When there are no eyewitnesses to the held that since there was neither dolo nor
crime, and where suspicion is likely to culpa, there is no criminal liability.
fall upon a number of persons. (JBL)
In US v. Bindoy, accused had an
Note: Proof of motive alone is not sufficient altercation with X. X snatched the bolo from
to support a conviction. There must be a the accused. To prevent X from using his
reliable evidence from which it may be bolo on him, accused tried to get it from X.
reasonably deduced that the accused was a Upon pulling it back towards him, he hit
malefactor. (JBL) someone from behind, instantly killing the
latter. The accused was found to be not
Motive, How Proven liable. In criminal law, there is pure
accident, and the principle damnum absque
Testimony of witnesses on the acts or injuria is also honored.
statements of the accused before or
immediately after the commission of the Article 4. Criminal liability
offense. Such deeds or words may indicate
the motive. Criminal liability shall be incurred:
In culpable felonies, there is no voluntariness RATIONALE: He who is the cause of the cause is
if either freedom, intelligence or the cause of the evil caused.
imprudence, negligence, lack of foresight or
lack of skill is lacking. Without Requisites:
voluntariness, there can be no dolo or culpa, 1. The act or omission must be a felony
hence, there is no felony.
NO Intentional Felony
The Following are Not Voluntary a. When the act or omission is not
a. acts resulting from force or threat punishable by RPC; or
b. acts resulting from reflexes, convulsive b. When the act is covered by any of the
bodily movements justifying circumstances.
c. acts done while a person is asleep,
unconscious, or in a state of hypnosis A pregnant woman who committed suicide is
d. any movement which is not the product not liable for intentional abortion because
of the conscious effort or determination committing a suicide is not a felony.
of a person. A person who wanted to kill himself jumped
from the tenth floor of a building and a
Illustrations: person was injured when he fell down is not
liable because he was not committing a
In a case decided by the Supreme Court, two felony.
persons went wild boar hunting. On their
way, they met Pedro standing by the door of The act of getting back a property is not a
his house and they asked him where they felony because the act is lawful.
could find wild boars. Pedro pointed to a
place where wild boars were supposed to be Three Possible Consequences in Committing
found, and the two proceeded thereto. a Felony
Upon getting to the place, they saw a. NO harm is produced (e.g. victimless
something moving, they shot, unfortunately crimes)
the bullet ricocheted killing Pedro. It was
21
b. Intended Injury is produced - there is for the wound inflicted by A. As a result,
liability if the actual result is the A was convicted for manslaughter.
intended result (causation) Death is presumed to be the natural
c. Not intended Injury is Produced there is consequence of physical injuries inflicted
liability if the act is the proximate or in the ff:
legal cause of the injury a. Victim at the time the physical
injuries were inflicted was in normal
2. Injury or damage done to another is the health
direct, natural and logical consequence of b. Death may be expected from the
the felony. physical injuries inflicted
c. Death ensued within a reasonable
Note: The act may produce the immediate time
injury or such injury is not produced
instantly. In a case where a wife had to go out to
the cold to escape a brutal husband and
The relation of cause and effect must be because of that she was exposed to the
shown (Doctrine of Causation): element and caught pneumonia, the
a. Unlawful act is the efficient cause husband was made criminally liable for
b. Accelerating cause the death of the wife.
c. Proximate cause Even though the attending physician
may have been negligent and the
PROXIMATE CAUSE - is that cause which in negligence brought about the death of
the natural and continuous sequence, the offending party is no defense at all,
unbroken by any efficient supervening because without the wound inflicted by
cause, produces a felony, without which the offender, there would have been no
such felony could not have resulted. As a occasion for a medical treatment.
general rule, the offender is criminally liable
Even if the wound was called slight but
for all the consequences of his felonious act,
because of the careless treatment, it was
although not intended, if the felonious act is
aggravated, the offender is liable for the
the proximate cause of the felony or
death of the victim not only of the slight
resulting felony.
physical injuries. Reason without the
injury being inflicted, there would have
The act may be against person; honor,
been no need for any medical treatment.
security or rights; property (destruction, loss,
That the medical treatment proved to be
diminution of value). The act may be
careless or negligent, is not enough to
intentional or an imprudent act. The act may
relieve the offender of the liability for the
create fear causing a person to act which
inflicting injuries.
may cause injury upon him.
When a person inflicted wound upon
Any person who creates in another persons another, and his victim upon coming
mind an immediate sense of danger, which home got some leaves, pounded them
causes the latter to do something resulting and put lime there, and applying this to
in the latters injuries, is liable for the the wound, developed locked jaw and
resulting injuries. (Pp v Page, 77 S 348) eventually he died, it was held that the
one who inflicted the wound is liable for
his death.
In criminal law, as long as the act of the
In another instance, during a quarrel, the
accused contributed to the death of the
victim, even if the victim is about to die, victim was wounded. The wound was
he will still be liable for the felonious act superficial, but just the same the doctor
of putting to death that victim. put inside some packing. When the
victim went home, he could not stand
Supreme Court rationalized that what
the pain, so he pulled out the packing.
made B cut his throat, in the absence of
That resulted into profuse bleeding and
evidence that he wanted to commit
he died because of loss of blood. The
suicide, is the belief that sooner or later,
offender who caused the wound,
he would die out of the wound inflicted
although the wound caused was only
by A. Because of that belief, he decided
slight, was held answerable for the death
to shorten the agony by cutting his
of the victim, even if the victim would
throat. That belief would not be
not have died were it not for the fact that
engendered in his mind were it not
he pulled out that packing. The principle
because of the profuse bleeding from his
is that without the wound, the act of the
wound. Now, that profusely bleeding
physician or the act of the offended
would not have been there, were it not
party would not have anything to do with
the wound, and since the wound was
22
inflicted by the offender, whatever cause is also liable, but merely
happens on that wound, he should be contributory or sometimes totally not
made punishable for that. liable.
In Urbano v. IAC, after so many weeks
of treatment in a clinic, the doctor Felony is NOT the proximate cause
pronounced the wound of B already when:
healed. Thereafter, B went back to his 1. there is an active force that intervened
farm. Two months later, B came home between the felony committed and the
and he was chilling. Before midnight, he resulting injury, and the active force is a
died out of tetanus poisoning. The heirs distinct act or fact absolutely foreign
of B filed a case of homicide against A. from the felonious act of the accused; or
The Supreme Court held that A is not 2. the resulting injury is due to the
liable. It took into account the intentional act of the offended party.
incubation period of tetanus toxic.
Medical evidence were presented that Either actual or proximate, the ff
tetanus toxic is good only for two weeks. situations may be produced
That if, indeed, the victim had incurred a. Felonious act immediately produces an
tetanus poisoning out of the wound injury
inflicted by A, he would not have lasted b. Felonious act does not immediately
two months. What brought about tetanus produce an injury. This may be a cause
to infect the body of B was his working in which is far and remote from the
his farm using his bare hands. Because consequence which sets into motion
of this, the Supreme Court said that the other causes which resulted in the felony.
act of B of working in his farm where the c. In case act is performed in an individual
soil is filthy, using his own hands, is an and death resulted, the person injured
efficient supervening cause which must be the one who suffered the
relieves A of any liability for the death of consequences of death.
B. A, if at all, is only liable for physical d. Injury must be capable of producing
injuries inflicted upon B. If you are death
confronted with this facts of the Urbano e. If a person who has internal ailment
case, where the offended party died suffered injury because of the wound
because of tetanus poisoning, reason out inflicted. There is criminal liability of the
according to that reasoning laid down by person who inflicted the wound causing
the Supreme Court, meaning to say, the injury and such injury is the actual
incubation period of the tetanus cause, or accelerated the death, or the
poisoning was considered. Since tetanus proximate cause. It is not a defense that
toxic would affect the victim for no the victim is suffering from internal
longer than two weeks,, the fact that the ailment.
victim died two months later shows that
it is no longer tetanus brought about by 3 Situations Where Wrongful act done be
the act of the accused. The tetanus was different from what was intended:
gathered by his working in the farm and
that is already an efficient intervening 1. Aberratio Ictus / Mistake in the Blow
cause.
A person directed the blow at an
Doctrine of Supervening Cause intended victim but because of poor aim,
cause that intervenes between the act of that blow landed on somebody else.
the accused and the expected injury The intended victim as well as the actual
breaking the connection of the act and victim are both at the scene of the crime.
injury and becomes the proximate cause It generally gives rise to a COMPLEX
of the injury. CRIME, that being so, the penalty for the
a. Act of the victim himself serious crime is imposed in the
b. Act of 3rd person maximum period.
c. External factor The only time when complex crime may
not result is when one of the resulting
Supervening event may be the felonies is LIGHT FELONY. Light felonies
subject of amendment of original are considered separate crimes.
information or of a new charge Doctrine of Transferred Intent
without double jeopardy. where an act is directed at a particular
victim, the intent behind the act will be
Who are Liable: The one who caused applied if an unintended victim is
the proximate cause is the one liable. likewise injured.
The one who caused the immediate
23
e.g. With intent to kill, X shot Y killing
him. The bullet exited and accidentally In another instance, A thought of killing
wounded Z on the leg. The crime would B. Instead of B, C passed. A thought
be Homicide with Attempted Homicide that he was B, so he hit C on the neck,
(not Homicide with Physical injuries. If Y killing the latter. Just the same, the
was not killed, the crime is Attempted crime intended to be committed is
homicide with attempted homicide. homicide and what was committed is
actually homicide, Article 49 does not
However, According to Ortega, as far as apply. Here, error in personae is of no
the third party is concerned, if he was effect.
killed, crime is homicide. If he was only
wounded, the crime is only physical 3. Praeter Intentionem / Consequence went
injuries. You cannot have attempted or beyond the Intention
frustrated homicide or murder because
there is no intent to kill. As far as that The injurious result is greater than that
other victim is concerned, only physical intended.
injuries serious or less serious or slight. It is mitigating, particularly covered by
par. 3, Art. 13That the offender had no
2. Error in Personae/ Mistake in Identity intention to commit so grave a wrong as
that committed.
The intended victim was not at the scene In order however, that the situation may
of the crime. It was the actual victim qualify as praeter intentionem, there
upon whom the blow was directed, but must be a notable disparity between the
he was not the intended victim, there means employed and the resulting
was really a mistake in identity. felony. If there is no disparity between
the means employed by the offender and
It is mitigating if the crime committed is the resulting felony, this circumstance
different from that which is intended. If cannot be availed of. It cannot be a case
the crime committed is not different from of praeter intentionem because the
that which was intended, error in intention of a person is determined from
personae does not affect the criminal the means resorted to by him in
liability of the offender. committing the crime.
24
A stabbed his friend when they had a
drinking spree eleven times. His defense A man raped a young girl. The young
is that he had no intention of killing his girl was shouting so the man placed his
friend. He did not intend to commit so hand on the mouth and nose of the
grave a wrong as that committed. It was victim. He found out later that the victim
held that the fact that 11 wounds were was dead already; she died of
inflicted on A's friend is hardly suffocation. The offender begged that
compatible with the idea that he did not he had no intention of killing the girl and
intend to commit so grave a wrong that that his only intention was to prevent her
committed. from shouting. The Supreme Court
rejected the plea saying that one can
In another instance, the accused was a always expect that a person who is
homosexual. The victim ridiculed or suffocated may eventually die. So the
humiliated him while he was going to the offender was prosecuted for the serious
restroom. He was so irritated that he crime of rape with homicide and he was
just stabbed the victim at the neck with not given the benefit of paragraph 3,
a ladys comb with a pointed handle, Article 13.
killing the victim. His defense was that
he did not intend to commit so grave a Differentiating this first case with the
wrong as that of killing him. That case of the Chinaman and his wife, it
contention was rejected, because the would seem that the difference lies in
instrument used was pointed. The part the means employed by the offender.
of the body wherein it was directed was
the neck which is a vital part of the body. In praeter intentionem, it is essential
In praeter intentionem, it is mitigating that there is a notable disparity between
only if there is a notable or notorious the means employed or the act of the
disparity between the means employed offender and the felony which resulted.
and the resulting felony. In criminal law, This means that the resulting felony
intent of the offender is determined on cannot be foreseen from the acts of the
the basis employed by him and the offender. If the resulting felony can be
manner in which he committed the foreseen or anticipated from the means
crime. Intention of the offender is not employed, the circumstance of praeter
what is in his mind; it is disclosed in the intentionem does not apply.
manner in which he committed the
crime. For example, if A gave B a karate blow in
the throat, there is no praeter
In still another case, the accused entered intentionem because the blow to the
the store of a Chinese couple, to commit throat can result in death.
robbery. They hogtied the Chinaman and
his wife. Because the wife was so So also, if A tried to intimidate B by
talkative, one of the offenders got a poking a gun at the latters back, and B
pandesal and put it in her mouth. But died of a cardiac arrest, A will be
because the woman was trying to prosecuted for homicide but will be given
wriggle from the bondage, the pandesal the mitigating circumstance praeter
slipped through her throat. She died intentionem.
because of suffocation. The offender
were convicted for robbery with NOTE: All three instances under paragraph 1,
homicide because there was a resulting Article 4 are the product of dolo. In aberratio
death, although their intention was only ictus, error in personae and praeter intentionem,
to rob. They were given the benefit of never think of these as the product of culpa.
paragraph 3 of Article 13, that they did They are always the result of an intended felony,
not intend to commit so grave a wrong and, hence dolo. You cannot have these
as that committed. There was really no situations out of criminal negligence. The crime
intention to bring about the killing, committed is attempted homicide or attempted
because it was the pandesal they put murder, not homicide through reckless
into the mouth. Had it been a piece of imprudence.
rag, it would be different. In that case,
the Supreme Court gave the offenders Par 2. IMPOSSIBLE CRIME
the benefit of praeter intentionem as a
mitigating circumstance. The means It is an act which would be an offense against
employed is not capable of producing persons or property, were it not for the inherent
death if only the woman chewed the pan impossibility of its accomplishment or on
de sal.
25
account of the employment of inadequate or It would apply to those circumstances
ineffectual means. where: the motive, desire, and
expectation is to perform an act in
Requisites: violation of the law.
1. the act performed would be an offense 1. There is an intention to perform the
against persons or property; physical act.
2. the act was done with evil intent; 2. There is a performance of the
3. its accomplishment is inherently intended physical act.
impossible or that the means employed is 3. The consequence resulting from the
either inadequate (e.g. small quantity of intended act does not amount to a
poison which is inadequate to kill a person) crime.
or ineffectual (accused fired a gun, not e.g. stealing a property that turned
knowing that it was empty); out to be owned by the stealer.
4. the act performed should not constitute
a violation of another provision of the RPC or 2. Physical Impossibility - when extraneous
of special law. circumstances unknown to the actor or
beyond his control prevent the
Felonies against Persons consummation of the intended crime.
1. Parricide (Art. 246); e.g. murder a corpse
2. Murder (Art. 248);
3. Homicide (Art. 249); Q: Accused was a houseboy in a house where
4. Infanticide (Art. 255); only a spinster resides. It is customary for the
5. Abortion (Art. 256; Art. 257; Art. 258; Art. spinster to sleep nude because her room was
259); warm. It was also the habit of the houseboy
6. Duel (Art. 260); that whenever she enters her room, the
7. Physical injuries (Art. 263; Art. 264; Art. 265; houseboy would follow and peek into the
Art. 266); and keyhole. Finally, when the houseboy could no
8. Rape (Art. 266-A). longer resist the urge, he climbed into the
ceiling, went inside the room of his master,
Felonies Against Property placed himself on top of her and abused her, not
1. Robbery (Arts. 294; 297; 298; 299; 302); knowing that she was already dead five minutes
2. Brigandage (Arts. 306; 307); earlier. Is an impossible crime committed?
3. Theft (Arts. 308; 310; 311);
4. Usurpation (Arts. 312; 313); A: Yes. With the new rape law amending the
5. Fraudulent insolvency (Art. 314); RPC and classifying rape as a crime against
6. Swindling and other Deceits (Arts. 315; 316; persons, it is now possible that an impossible
317; 318); crime was committed. Note, however, that the
7. Removal, sale or pledge of mortgaged crime might also fall under the Revised
property (Art. 319); Administrative Code desecrating the dead.
8. Arson (Arts. 320; 321; 323; Art. 324; 325;
326); Q: A was driving his car around Roxas Boulevard
9. Malicious mischief (Arts. 327; 328; Art. 330; when a person hitched a ride. Because this
Art. 331). person was exquisitely dressed, A readily
welcomed the fellow inside his car and he
RATIONALE OF PUNISHING IMPOSSIBLE CRIME continued driving. When he reached a motel, A
suddenly swerved his car inside. A started
The law punishes the impossible crime to kissing his passenger, but he found out that his
suppress criminal propensity or tendencies of passenger was not a woman but a man, and so
the perpetrator. he pushed him out of the car, and gave him fist
blows. Is an impossible crime committed? If
Felony against persons or property not, is there any crime committed at all?
should not be actually committed, otherwise
he would be liable for that felony. A: It cannot be an impossible crime, because
There is no attempted or frustrated the act would have been a crime against
impossible crime. chastity. The crime is act of lasciviousness, if
Pointing a gun is not an overt act to this was done against the will of the passenger.
commit a crime of murder, thus no Even if the victim is a man, the crime of acts of
attempted. It would constitute grave threats lasciviousness is committed. This is a crime
and not an impossible crime. that is not limited to a victim who is a woman.
Nature of Impossibility: Acts of lasciviousness require a victim to be a
1. Legal Impossibility intended acts, woman only when it is committed under
even if completed would not amount to a circumstances of seduction. If it is committed
crime.
26
under the circumstances of rape, the victim may Do not confuse an impossible crime with the
be a man or a woman. attempted or frustrated stage.
27
some other crimes under the RPC, he will not be about 10:00 in the evening. It so happened that
liable for an impossible crime. He will be the intended victim did not come home on the
prosecuted for the crime constituted so far by evening and so was not in her bedroom at that
the act done by him. The reason is an offender time. Eventually the culprits were prosecuted
is punished for an impossible crime just to teach and convicted by the trial court for attempted
him a lesson because of his criminal perversity. murder. The Court of Appeals affirmed the
Although objectively, no crime is committed, but judgment but the Supreme Court modified the
subjectively, he is a criminal. That purpose of same and held the petitioner liable only for the
the law will also be served if he is prosecuted for so-called impossible crime. As a result,
some other crime constituted by his acts which petitioner-accused was sentenced to
are also punishable under the RPC. imprisonment of only six months of arresto
mayor for the felonious act he committed with
Q: A and B are neighbors. They are jealous of intent to kill: this despite the destruction done
each others social status. A thought of killing B to the intended victims house. Somehow, the
so A climbed the house of B through the window decision depreciated the seriousness of the act
and stabbed B on the heart, not knowing that B committed, considering the lawlessness by
died a few minutes ago of bangungot. Is A liable which the culprits carried out the intended
for an impossible crime? crime, and so some members of the bench and
bar spoke out against the soundness of the
A: No. A shall be liable for qualified trespass to ruling. Some asked questions: Was it really the
dwelling. Although the act done by A against B impossibility of accomplishing the killing that
constitutes an impossible crime, it is the brought about its non-accomplishment? Was it
principle of criminal law that the offender shall not purely accidental that the intended victim
be punished for an impossible crime only when did not come home that evening and, thus,
his act cannot be punished under some other unknown to the culprits, she was not in her
provisions in the Revised Penal Code. bedroom at the time it was shot and riddled with
bullets? Suppose, instead of using firearms, the
In other words, this idea of an impossible crime culprits set fire on the intended victims house,
is a one of last resort, just to teach the offender believing she was there when in fact she was
a lesson because of his criminal perversity. If he not, would the criminal liability be for an
could be taught of the same lesson by charging impossible crime?
him with some other crime constituted by his
act, then that will be the proper way. If you Until the Intod case, the prevailing attitude was
want to play safe, you state there that although that the provision of the Revised Penal Code on
an impossible crime is constituted, yet it is a impossible crime would only apply when the
principle of criminal law that he will only be wrongful act, which would have constituted a
penalized for an impossible crime if he cannot crime against persons or property, could not and
be punished under some other provision of the did not constitute another felony. Otherwise, if
Revised Penal Code. such act constituted any other felony although
different from what the offender intended, the
If the question is Is an impossible crime is criminal liability should be for such other felony
committed?, the answer is yes, because on the and not for an impossible crime. The attitude
basis of the facts stated, an impossible crime is was so because Article 4 of the Code provides
committed. But to play safe, add another two situations where criminal liability shall be
paragraph: However, the offender will not be incurred.
prosecuted for an impossible crime but for _____
[state the crime]. Because it is a principle in Because criminal liability for impossible crime
criminal law that the offender can only be presupposes that no felony resulted from the
prosecuted for an impossible crime if his acts do wrongful act done, the penalty is fixed at
not constitute some other crimes punishable arresto mayor or a fine from P200.00 to
under the Revised Penal Code. An impossible P500.00, depending on the social danger and
crime is a crime of last resort. degree of criminality shown by the offender
Modified concept of impossible crime (Article 59), regardless of whether the wrongful
act was an impossible crime against persons or
In a way, the concept of impossible crime has against property.
been modified by the decision of the Supreme
Court in the case of Intod v. CA, et al., 215 There is no logic in applying paragraph 2 of
SCRA 52. In this case, four culprits, all armed Article 4 to a situation governed by paragraph 1
with firearms and with intent to kill, went to the of the same Article, that is, where a felony
intended victims house and after having resulted. Otherwise, a redundancy and duplicity
pinpointed the latters bedroom, all four fired at would be perpetrated.
and riddled said room with bullets, thinking that
the intended victim was already there as it was
28
In the Intod case, the wrongful acts of the Taking into consideration the degree of
culprits caused destruction to the house of the malice and the injury caused by the
intended victim; this felonious act negates the offense.
idea of an impossible crime. But whether we
agree or not, the Supreme Court has spoken, we NOTE: Par 2 does not apply to crimes
have to respect its ruling. punishable by special, including profiteering,
and illegal possession of firearms or drugs.
Article 5. Duty of the court in connection There can be no executive clemency for
with acts which should be repressed but these crimes.
which are not covered by the law, and in
cases of excessive penalties. Article 6. Consummated, frustrated, and
attempted felonies.
No Crime Unless There Is A Law Punishing
It STAGES IN THE COMMISSION OF FELONY,
Where Applicable and its Purpose
When a person is charged in court, and the court
finds that there is no law applicable, the court Only to intentional felonies by positive acts but
will acquit the accused and the judge will give not to: (i). Felonies by omission (ii) Culpable
his opinion that the said act should be punished. felonies and (iii) Violations of special laws,
unless the special law provides for an attempted
Article 5 covers two situations: or frustrated stage. Examples of the exception
are The Dangerous Drugs Law which penalizes
(1) The court cannot convict the accused an attempt to violate some of its provisions, and
because the acts do not constitute a crime. The Human Security Act of 2007. But even
The proper judgment is acquittal, but the certain crimes which are punished under the
court is mandated to report to the Chief Revised Penal Code do not admit of these
Executive that said act be made subject of stages.
penal legislation and why.
The purpose of classifying penalties is to bring
Whenever a court has knowledge of any act about a proportionate penalty and equitable
which it may deem proper to repress and punishment. The penalties are graduated
which is not punishable by law: according to their degree of severity. The stages
may not apply to all kinds of felonies. There are
it shall render the proper decision, and felonies which do not admit of division.
shall report the matter to the Chief
Executive, through the Department of STAGES IN THE COMMISSION OF FELONY
Justice, for the passage of an appropriate
law A. The first: The Mental Stage / Internal Acts
which induces the court to believe that
said act (not punished by any law) General Rule: Mental acts such as thoughts,
should be made the subject of litigation. ideas, opinions and beliefs, are not subject of
penal legislations. One may express an idea
(2) Where the court finds the penalty prescribed which is contrary to law, morals or is
for the crime too harsh considering the unconventional, but as long as he does not
conditions surrounding the commission of act on them or induce others to act on them,
the crime, the judge should impose the law. such mental matters are outside the realm of
The most that he could do is to recommend penal law and the person may not be
to the Chief Executive to grant executive subjected to criminal prosecution.
clemency.
B. The Second: The External Stage which is
Thus, the court shall: where the accused performs acts which are
submit to the Chief Executive, through observable
the Department of Justice
1). The Preparatory acts: Acts which may or
such statement or report as may be
may not lead to the commission of a
deemed proper,
concrete crime. Being equivocal they are
without suspending the execution of the
not as rule punishable except when there
sentence, is an express provision of law punishing
when a strict enforcement of the specific preparatory acts.
provisions of this code would result in
the imposition of a clearly excessive Example: (i) the general rule: buying of a
penalty. gun, bolo or poison, even if the purpose
is to use these to kill a person; so also
29
with conspiracies and proposals. (ii) the
exception: possession of picklocks and You will notice that the felony begins when
false keys is punished; as with the offender performs an overt act. Not any
conspiracies to commit treason, act will mark the beginning of a felony, and
rebellion, sedition and coup detat therefore, if the act so far being done does
2) The Acts of execution punishable by not begin a felony, criminal liability
RPC: the attempted, frustrated and correspondingly does not begin. In criminal
consummated stages. law, there is such a thing as preparatory act.
These acts do not give rise to criminal
STAGES OF EXECUTION liability.
The attempt which the Penal Code punishes
1. ATTEMPTED - when the offender is that which has a connection to a
commences the commission of a felony particular, concrete offense, that which is
directly by overt acts, and does not perform the beginning of the execution of the offense
all the acts of execution which should by overt acts of the perpetrator, leading
produce the felony by reason of some cause directly to its realization and commission.
or accident other than his own spontaneous The act must not be equivocal but indicates
desistance. a clear intention to commit a particular and
specific felony.
ELEMENTS:
a. the offender commences the commission Examples:
of the felony directly by overt acts;
b. he does not perform all the acts of 1. The accused pressed a chemically
execution which should produce the -soaked cloth on the mouth of the
felony; woman to induce her to sleep, while he
c. the non-performance of all acts of lay on top of her and pressed his body to
execution was due to cause or accident her. The act is not the overt act that will
other than his spontaneous desistance. logically and necessarily ripen into rape.
They constitute unjust vexation. ( Note:
Overt or external act - is some physical it would be attempted rape if he tried to
deed or activity, indicating the intention to undress the victim or touch her private
commit a particular crime, more than a mere parts) ( Balleros vs. People, Feb, 22,
planning or preparation, which if carried out 2006)
to its complete termination following its 2. One found inside a house but no article
natural course, without being frustrated by was found on him, is liable for trespass
external obstacles nor by the voluntary and not for attempted theft or robbery
desistance of the perpetrator, will logically even if he is a notorious robber
and necessarily ripen into a concrete 3. One found removing the glass window
offense. panes or making a hole in the wall is not
liable for attempted robbery but for
Felony is Deemed Commenced by Overt attempted trespass
Act when the ff are present: 4. Overt act begins when the husband
a. That there be external acts; mixed the poison with the food his wife is
b. Such external acts have direct going to take. Before this, there is no
connection with the crime intended to be attempted stage yet.
committed.
INDETERMINATE OFFENSE one where the
The accused has not yet passed the purpose of the offender in performing an act
SUBJECTIVE PHASE or that phase is not certain. The accused may be convicted
encompassed from the time an act is for a felony defined by the acts performed
executed which begins the commission of by him up to the time of desistance.
the crime until the time of the performance
of the last act necessary to produce the Desistance
crime, but where the accused has still
control over his actions and their results. Desistance on the part of the offender
negates criminal liability in the attempted
The accused was not able to continue stage. Desistance is true only in the
performing the acts to produce the crime. He attempted stage of the felony.
was prevented by external forces and not 1. Reason: This is an absolutory cause by
because he himself chose not to continue. way of reward to those who, having set
Such as when his weap0n was snatched, or one foot on the verge of crimes, heed
his intended victim managed to escape, or the call of their conscience and return to
he was overpowered or arrested. the path of righteousness. The law
30
encourages a person to desist from what the law authorizes him to collect
committing a crime. will already consummate a crime,
2. The reason for the desistance is whether the taxpayer pays the amount
immaterial. being demanded or not. Payment of the
3. Exceptions: when the accused is liable amount being demanded is not essential
despite his desistance to the consummation of the crime.
a) when the act performed prior to the 3. Impossible Crimes
desistance already constituted the 4. Crimes consummated by mere attempt
attempted stage of the intended (e.g. attempt to flee to an enemy
felony. For example: the accused, country, treason, corruption of minors,
with intent to kill, shot at the victim etc.)
but missed after which he desisted, 5. Felonies by omission
his acts already constituted 6. Crimes committed by agreement (e.g.
attempted homicide. betting in sports like ending, corruption
b) When the acts performed already of public officers, indirect bribery)
gave rise to the intended felony. The
decision not to continue is not a legal 2. FRUSTRATED - when the offender performs
but factual desistance. As in the case all the acts of execution which would
of a thief who returned what he stole. produce the felony as a consequence but
c) When the acts performed constitute a which, nevertheless, do not produce it by
separate offense. Pointing a gun at reason of causes independent of the will of
another and threatening to kill, and the perpetrator.
then desisting gives rise to grave
threats. ELEMENTS:
a. offender performs all the acts of
Kinds of Desistance execution
1. Legal Desistance the desistance b. all acts of execution would produce the
referred to in law which would obviate felony as a consequence
criminal liability unless the overt or c. Felony is not produced
preparatory acts already committed in d. By reason of causes independent of the
themselve constitute a felony other than will of the perpetrator.
what the actor intended. It is made
during the attempted stage. The accused has passed the subjective
2. Factual Desistance actual desistance of phase and is now in the OBJECTIVE PHASE,
the actor which is made after the or that portion in the commission of the
attempted stage of the crime; the actor crime where the accused has performed the
is still liable for the attempt. last act necessary to produce the intended
crime and where he has no more control
Crimes which Do not Admit of over the results of his acts.
Frustrated and Attempted Stages
1. Crimes punishable by Special Penal The non-production of the crime should not
Laws, UNLESS the law provides be due to the acts of the accused himself,
otherwise. for if it were he would be liable not for the
2. Formal Crimes - crimes which are frustrated stage of the intended crime, but
consummated in one instance. For possibly for another offense.
example, in oral defamation, there is no
attempted oral defamation or frustrated Thus: where the accused shot the victim
oral defamation; it is always in the mortally wounding him, but he himself saved
consummated stage. Other examples the life of his victim, his liability is that for
are slander, adultery, threats, coercion, serious physical injuries as the intent to kill
alarms and scandal, or acts of is absent.
lasciviousness.
Attempted or Frustrated
So also, in illegal exaction under Article
213 is a crime committed when a public Homicide/murder. Where the accused, with
officer who is authorized to collect taxes, intent to kill, injured the victim but the latter
licenses or impose for the government, did not die, when is the crime attempted or
shall demand an amount bigger than or frustrated?
different from what the law authorizes
him to collect. Under sub-paragraph a of 1. First View: The subjective phase
Article 213 on Illegal exaction, the law doctrine. If at that point where the
uses the word demanding. Mere accused has still control over the results
demanding of an amount different from of his actions but is stopped by reason
31
outside of his own desistance and the The doctrine now is that theft has no
subjective phase has not been passed, frustrated stage. ( Valenzuela vs. PP. June
the offense is attempted 21, 2007)
2. Second View: The Mortal Wound or Life
Threatening Injury Doctrine: If a 3. CONSUMMATED - when all the elements
mortal wound or life threatening injury necessary for its execution and
had been inflicted, the offense is accomplishment are present.
frustrated, else it is attempted
( Palaganas vs. PP., Sept. 12, 2006)
3. Third View: The belief of the accused
should be considered in that if the
accused believed he has done all which
is necessary to produce death, then it is
frustrated.
2. Arson
3. Indirect Bribery, because it is committed
by accepting gifts offered to the public
official by reason of his office. No
acceptance, no crime. If accepted, crime
is consummated.
4. Corruption of Public Officers, because the
offense requires the concurrence of will
of both parties, thus when the offer is
accepted, the offense is consummated. If
offer is rejected, the offense is merely
attempted.
5. Adultery, because the essence of the
crime is sexual congress.
6. Physical Injury since it cannot be
determined whether the injury will be
slight, less serious, or serious unless and
until consummated.
7. Theft
32
ATTEMP FRUSTR CONSUMM IMPOSSI
Factors in Determining Stage of Execution TED ATED ATED BLE
CRIME
1. Manner of committing a crime Evil Evil intent Evil intent Evil
intent is is not is intent is
Some crimes have only the consummated not accomplis accomplish not
stage (Formal crimes) such as threats, accompli hed ed accomplis
coercion, alarms and scandal, slander, acts shed hed
of lasciviousness. In rape the gravamen is Evil Evil intent The result Evil
whether there is penetration or not, no intent is is sought is intent is
matter how slight, hence rape is either possible possible achieved not
attempted or consummated. of of possible
accompli accomplis of
No frustrated bribery. Bribery is the crime of shment hment accomplis
the receiver not the giver. The crime of the hment
giver is corruption of public official. If only Overt All acts of All acts of All acts of
one side of the crime is present, only acts of execution execution execution
corruption, you cannot have a consummated executio are are are
corruption without the corresponding n are present. present. present.
consummated bribery. There cannot be a started.
consummated bribery without the Not all
corresponding consummated corruption. If acts of
you have bribery only, it is only possible in executio
the attempted stage. If you have a n are
corruption only, it is possible only in the present.
attempted stage. The manner of committing
Due to Due to Evil
the crime requires the meeting of the minds
reasons intervenin intent
between the giver and the receiver. When
other g causes cannot be
the giver delivers the money to the
than independ accomplis
supposed receiver, but there is no meeting
spontan ent of the hed
of the minds, the only act done by the giver
eous will of the because
is an attempt. It is not possible for him to
desistan perpetrat its
perform all the acts of execution because in
ce of the or. inherentl
the first place, the receiver has no intention
perpetra y
of being corrupted. Similarly, when a public
tor. impossibl
officer demands a consideration by official
e of
duty, the corruptor turns down the demand,
accomplis
there is no bribery.
hment or
the
If the one to whom the demand was made
means
pretended to give, but he had reported the
employed
matter to higher authorities, the money was
by the
marked and this was delivered to the public
offender
officer. If the public officer was arrested, do
is
not think that because the public officer
inadequa
already had the money in his possession,
te or
the crime is already frustrated bribery, it is
ineffectua
only attempted bribery. This is because the
l.
supposed corruptor has no intention to
a. Theft: it is consummated once the article
corrupt. In short, there is no meeting of the
is in the material physical possession of
minds. On the other hand, if there is a
the accused, whether actual or
meeting of the minds, there is consummated
constructive. His ability to dispose off the
bribery or consummated corruption. This
thing his immaterial and does not
leaves out the frustrated stage because of
constitute an element. N.B. Decisions of
the manner of committing the crime.
the CA as to bulky items where the
accused must have the opportunity
But indirect bribery is always consummated.
dispose off or appropriate the articles
This is because the manner of
have already been reversed. The
consummating the crime does not admit of
doctrine now is that theft has no
attempt or frustration.
frustrated stage ( Valenzuela vs. PP. June
21, 2007)
2. Elements of the crime
33
b. Estafa: It is not the material possession
but the existence of damage which Exception: Those committed against persons or
consumates the crime. property, punishable even if attempted or
c. Robbery with Force Upon Things: The frustrated.
thing must be brought out of the building
to consummate the crime. The exception with regard to crimes against
d. Robbery with violence against or persons is actually unnecessary as the only light
intimidation of persons, the crime is felony against persons is slight physical injuries
consummated the moment the offender which must be consummated.
gets hold of the thing taken and/or is in a The exception can apply, however, to attempted
position to dispose of it freely. or frustrated light felonies against property.
3. Nature of the crime itself
LIGHT FELONIES - are those infractions of law
a. parricide, homicide, and murder . for the commission of which the penalty of
a.1. With intent to kill, but no mortal arresto menor or a fine not exceeding 200 pesos
wound is inflicted attempted or both, is provided.
a.2. With intent to kill, and mortal Examples: slight physical injuries(art. 266),
wound is inflicted frustrated theft(art. 309 pars. 7 and 8), alteration of
boundary marks(art. 313), malicious
a.3. With intent to kill and victim dies mischief(art. 328 par. 3; art. 329 par. 3),
consummated intriguing against honor(art. 364)
b. Crimes which require the participation of NOTE: Only principals and accomplices are
two persons have no frustrated stage. liable; accessories are NOT liable even if
Examples: Adultery and concubinage; committed against persons or property.
corruption of a public official.
c. There are crimes which are punished Article 8. Conspiracy and proposal to
according to their results and not the commit felony.
intention of the accused such as physical
injuries. You will notice that under the Conspiracy and proposal to commit felony are
Revised Penal Code, the crime of punishable only in the cases in which the law
physical injuries is penalized on the basis specially provides a penalty therefor.
of the gravity of the injuries. You have to
categorize because there are specific CONSPIRACY TO COMMIT A FELONY is one
articles that apply whether the physical when two or more persons come into an
injuries are serious, less serious or slight. agreement concerning the commission of a
If you say physical injuries, you do not crime and decide to commit it.
know which article to apply. This being
so, you could not punish the attempted General Rule: Still a preparatory act, and
or frustrated stage because you do not therefore, is not, as a rule, punishable.
know what crime of physical injuries was
committed. Exception: When there is a specific provision or
d. Arson: there can be no frustrated stage. law punishing a specific kind of conspiracy.
It is in the attempted stage if the fire was (Examples: Conspiracy to commit treason,
not yet applied to the building. If no part rebellion, insurrection, sedition, coup detat,
of the building was burned, it is still monopolies and combinations in restraint of
attempted arson no matter how far gone trade [TRICSM], highway robbery, espionage,
were the acts of the accused. The direct bribery and arson said felonies need not
moment a particle or a molecule of the actually be committed).
premises has blackened, in law, arson is
consummated. This is because Requisites of conspiracy:
consummated arson does not require 1. that two or more persons come to an
that the whole of the premises be agreement;
burned. It is enough that any part of the 2. that the agreement concerned the
premises, no matter how small, has commission of a felony; and
begun to burn. 3. that the execution of the felony be
decided upon.
Article 7. When light felonies are
punishable. Overt Acts in Conspiracy Must Consists of:
1. Active participation in the actual commission
General Rule: Light felonies are punishable of the crime itself; or
only when they have been consummated.
34
2. Moral assistance to his co-conspirators by that the act of one is the act of all. There
being present at the time of the commission must be an overt act done before the co-
of the offense. conspirators become criminally liable.
3. Exerting a moral ascendance over the other
co-conspirators by moving them to execute Kinds:
or implement the criminal plan. (Pp. vs Abut, a. Express - conspirators meet and plan
April 24, 2003) prior to the execution; participants are
conspirators prior to the commission of
Note: Conspiracy is a matter of substance the crime.
which must be alleged in the information,
otherwise, the court will not consider the b. Implied - did not meet prior to the
same. commission of the crime; they
participated in such a way that they are
Kinds of Conspiracy: acting in concert. Conspiracy is deduced
1. Conspiracy as a Felony - when the mere from the manner of commission.
agreement is punished. No overt act is
necessary to bring about the criminal General Rule: The act of one is the act of
liability. The mere conspiracy is the crime all. When conspiracy is established, all who
itself. However, if the co-conspirator or any participated therein irrespective of the
of them would execute an overt act, the quantity or quality of his participation is
crime would no longer be the conspiracy but liable equally, whether conspiracy is pre-
the overt act itself. Thus, their liability is for planned or instantaneous.
the crime actually committed and they will
not be punished again for the act of Exception: One or more conspirators
conspiring. The prior agreement (conspiracy) committed some other crime which is not
will be absorbed and becomes conspiracy as part of the intended crime.
a mode of incurring criminal liability.
Illustration:
Illustrations:
A, B and C agreed to kill D. When they saw
A, B, C and D came to an agreement to the opportunity, A, B and C killed D and after
commit rebellion. Their agreement was to that, A and B ran into different directions. C
bring about the rebellion on a certain date. inspected the pocket of the victim and found
Even if none of them has performed the act that the victim was wearing a ring a
of rebellion, there is already criminal liability diamond ring and he took it. The crimes
arising from the conspiracy to commit the committed are homicide and theft. As far as
rebellion. But if anyone of them has the homicide is concerned, A, B and C are
committed the overt act of rebellion, the liable because that was agreed upon and
crime of all is no longer conspiracy to theft was not an integral part of homicide.
commit rebellion but rebellion itself. This This is a distinct crime so the rule will not
subsists even though the other co- apply because it was not the crime agreed
conspirator does not know that one of them upon. Insofar as the crime of theft is
had already done the act of rebellion. concerned, C will be the only one liable. So
C will be liable for homicide and theft.
A thought of having her husband killed
because the latter was maltreating her. She Exception to the exception: When the act
hired some persons to kill him and pointed constitutes an indivisible offense (e.g.
at her husband. The goons got hold of her composite crime).
husband and started mauling him. The wife
took pity and shouted for them to stop but In case the crime committed is a composite
the goons continued. The wife ran away. crime, the conspirator will be liable for all
The wife was prosecuted for parricide. But the acts committed during the commission
the Supreme Court said that there was of the crime agreed upon. This is because,
desistance so she is not criminally liable. in the eyes of the law, all those acts done in
pursuance of the crime agreed upon are acts
2. Conspiracy as a manner or incurring which constitute a single crime.
criminal liability - this presupposes that a
crime was actually committed by two or Illustrations:
more persons who agreed to its commission
and who performed acts to bring about the A, B, and C decided to commit robbery in
crime. This agreement and cooperation is the house of D. Pursuant to their
the conspiracy which serves as the basis to agreement, A would ransack the second
make all equally liable under the principle floor, B was to wait outside, and C would
35
stay on the first floor. Unknown to B and C, 1. Each must have performed an act, no
A raped the girl upstairs. All of them will be matter how small or insignificant so
liable for robbery with rape. The crime long as it was intended to contribute
committed is robbery with rape, which is not to the realization of the crime
a complex crime, but an indivisible felony conspired upon.
under the Article 294 of the Revised Penal
Code. Even if B and C did not know that This requires that the principal by
rape was being committed and they agreed direct participation must be at the
only and conspired to rob, yet rape was part crime scene (As a general rule, if
of robbery. Rape can not be separated from there has been a conspiracy to
robbery. commit a crime in a particular place,
anyone who did not appear shall be
A, B and C agreed to rob the house of D. It presumed to have desisted), EXCEPT
was agreed that A would go the second in the following instances: (still a
floor, B would stay in the first floor, and C principal by direct participation)
stands guard outside. All went to their a). When he is the mastermind
designated areas in pursuit of the plan. b). When he orchestrates or directs
While A was ransacking the second floor, the the actions of the others from
owner was awakened. A killed him. A, B some other place
and C will be liable for robbery with c). His participation or contribution
homicide. This is because, it is well settled was already accomplished prior
that any killing taking place while robbery is to the actual carrying out of the
being committed shall be treated as a single crime conspired such: his role
indivisible offense. was to conduct surveillance or to
Conspirators Liable as Principals obtain data or information about
the place or the victims; to
For conspiracy to exist, there must be an purchase the tools or weapons, or
intentional felony, not a culpable felony, and the get away vehicle, or to find a
it must be proved that all those to be safe house
considered as PDPs performed the following: d). His role/participation is to be
executed simultaneously but
A. Unity of Intention / Unity of Purpose - elsewhere, such as by creating a
They participated, agreed, or concurred diversion or in setting up a
in the criminal design, intent or purposes blocking force (e.g. to cause
or resolution. traffic).
e). His role/participation is after the
1. This participation may be prior to the execution of the main acts such
actual execution of the acts which as guarding the victim; looking
produced the crime ( Anterior for a buyer of the loot;
Conspiracy ) or it may be at the laundering the proceeds of the
very moment the acts are actually crime.
being executed and carried out (
Instant Conspiracy). Participation In Both (Intention And
2. Hence it is not necessary to prove Action), Why Necessary:
that before the commission of the
crime, the several accused actually 1. Mere knowledge, acquiescence or
came and met together to plan or agreement to cooperate, is not enough
discuss the commission of the crime. to constitute one as a party to a
3. Spontaneous agreement or active conspiracy, absent any active
cooperation by all perpetrators at the participation in the commission of the
moment of the commission of the crime, with a view to the furtherance of
crime is sufficient to create a joint the criminal design and purpose.
criminal responsibility (Sim Jr. vs. Conspiracy transcends companionship.
CA, 428 SCRA 459) 2. He who commits the same or similar acts
on the victim but is a stranger to the
B. Unity of Action / Unity in the conspiracy is separately liable.
execution - All participated in the Simultaneous acts by several persons do
execution or carrying out of the common not automatically give rise to conspiracy.
intent, design, purpose or objective by
acts intended to bring about the Examples:
common objective. 1. X joined in the planning of the crime
but was unable to join his
companions on the day of the crime
36
because he was hospitalized. He is cooperation, the crime could be carried out
not liable. as well, such co-conspirator should be
2. X is the common enemy of A and B punished as an accomplice only. The reason
who are strangers to one another. given is that penal laws always favor a
Both A and B chanced upon X. A milder form of responsibility upon an
stabbed X while B shot him. A and B offender. So it is no longer accurate to think
will have individual liabilities. that when there is a conspiracy, all are
principals.
EXCEPTION: When a person joins a
conspiracy after its formation, he thereby For example, there was a planned robbery,
adopts the previous acts of the conspirators and the taxi driver was present during the
which are admissible against him. This is planning. There, the conspirators told the
under the Principle of Conspiracy by taxi driver that they are going to use his
Adoption. taxicab in going to the place of robbery. The
taxi driver agreed but said, I will bring you
Proof of Conspiracy there, and after committing the robbery I will
return later. The taxi driver brought the
Best proof of conspiracy: express conspiracy conspirators where the robbery would be
committed. After the robbery was finished,
Direct proof of conspiracy is not necessary. he took the conspirators back to his taxi and
The existence thereof maybe inferred under brought them away. It was held that the taxi
the Doctrine Of Implied Conspiracy driver was liable only as an accomplice. His
which directs that if two or more persons: cooperation was not really indispensable.
(i) Aimed by their acts towards the The robbers could have engaged another
accomplishment of the same unlawful taxi. The taxi driver did not really stay
object. during the commission of the robbery. At
(ii) Each doing a part so that their acts, most, what he only extended was his
though apparently independent, were in cooperation. That is why he was given only
fact connected and cooperative. that penalty for an accomplice.
(iii) Indicating a closeness of personal
association and a concurrence of For what crime will the co-conspirators
sentiment. be liable?
(iv) A conspiracy maybe inferred though no
actual meeting among them to concert is 1. For the crime actually committed if it was
proved. the crime agreed upon.
2. For any other crime even if not agreed
Note: When several persons who do not upon, provided it was the direct, natural,
know each other simultaneously attack the logical consequence of, or related to, or
victim, the act of one is the act of all, was necessary to effect, the crime
regardless of the degree of injury inflicted by agreed upon (e.g.killing the guard).
any one of them. All will be liable for the Otherwise only the person who
consequences. A conspiracy is possible committed the different crime will be
even when participants are not known to held liable (e.g. killing a stranger)
each other. Do not think that participants
are always known to each other. When is a co-conspirator freed from
liability?
It is enough that at the time of the
commission of the offense, the offenders a. Only if he has performed an overt act
acted in concert, each doing his part to fulfill either to:
their common design. 1. Disassociate or detach himself from
the plan (desist before an overt act
Effect of Conspiracy in furtherance of the crime was
committed)
There will be a joint or common or collective 2. Prevent the commission of the second
criminal liability, otherwise each will be or different or related crime
liable only to the extent of the act done by
him.
b. Likewise, if for any reason not
attributable to the law enforcement
In the case of People v. Nierra, SC ruled
agents, he was not able to proceed to
that even though there was conspiracy, if a
the crime scene and/or execute an act to
co-conspirator merely cooperated in the
help realize the common objective, then
commission of the crime with insignificant or
he cannot be held liable as a co-
minimal acts, such that even without his
conspirator. Thus he is not liable if he got
37
sick, overslept, or forgot about it, but not conspiracy rebellion, rebellion, coup
when law agents took him into custody and proposal sedition, coup detat.
to prevent him from doing his part of the are detat,
agreement. punishable highway *no proposal
are against robbery, to commit
Thus in Robbery with Homicide, all who the security of espionage, sedition
conspired in the robbery will be liable for the state or direct bribery
the homicide unless one of the economic and arson.
conspirators proved he tried to prevent security)
the homicide.
When exist Once the Is true only up
Conspiracy As a Conspiracy as a proposal was to the point
crime Means to commit accepted, a where the
a crime conspiracy party to whom
Mere agreement is Overt acts are arises. the proposal
sufficient to incur necessary to incur was made has
criminal liability. criminal liability. not yet
Punishable only Offenders are accepted the
when the law punished for the proposal.
expressly so crime itself. It is bilateral It is unilateral,
provides. for it requires one party
two parties. makes a
PROPOSAL TO COMMIT A FELONY - when proposition to
one has decided to commit a felony but the other.
proposes its execution to some other person or
persons. Q: Union A proposed acts of sedition to Union B.
Is there a crime committed? Assuming Union B
General Rule: Still a preparatory act, and accepts the proposal, will your answer be
therefore, is not, as a rule, punishable. different?
A: There is no crime committed. Proposal to
Exception: When there is a specific provision or
commit sedition is not a crime. But if Union B
law punishing a specific kind of proposal.
accepts the proposal, there will be conspiracy to
(Example: proposal to commit treason,
commit sedition which is a crime under the
rebellion, insurrection, coup detat [TRIC]).
Revised Penal Code.
Requisites of proposal:
1. that a person has decided to commit a Article 9. Grave felonies, less grave
felony; and felonies, and light felonies
2. that he proposes its execution to some
other person or persons. CLASSIFICATION OF FELONY (According to
their gravity)
NOTE: It is not necessary that the person to
whom the proposal is made agrees to a. GRAVE FELONIES - those to which attaches
commit treason or rebellion. the capital punishment or penalties which in
There is no criminal proposal when: any of their periods are afflictive (6 years
1. the person who proposes is not and 1 day to reclusion perpetua) in
determined to commit the felony. accordance with article 25 of the code; or
2. there is no decided, concrete and formal fine of more than P6,000.00. They are either
proposal. 1. Heinous- the penalty is reclusion temporal
3. it is not the execution of the felony that to reclusion perpetua or 2. Non heinous.
is proposed.
The afflictive penalties in accordance
Conspiracy Proposal with article 25 of the code are:
Elements Agreement to Person Reclusion perpetua
commit a decides to Reclusion temporal
felony and commit a Perpetual or temporary absolute
decide to crime and disqualification
commit it. proposes the Perpetual or temporary special
same to disqualification
another. Prision mayor
Crimes (The Conspiracy to Proposal to
crimes in commit commit b. Less Grave Felonies - those to which the
which treason, treason, law punishes with penalties which in their
38
maximum period was correccional (1 month classification of penalties under Article 26
and 1 day to 6 years) in accordance with that was not applied.
article 25 of the code; or fine of P200.00 but
not more than P6,000.00. If the penalty is fine and exactly P200.00, it
The following are correctional is only considered a light felony under
penalties; Article 9.
Prision correctional
Aresto mayor If the fine is imposed as an alternative
Destierro penalty or as a single penalty, the fine of
P200.00 is considered a correctional penalty
c. Light Felonies - those infractions of law for under Article 26 and it prescribes in 10
the commission of which the penalty is years. If the offender is apprehended at any
arresto menor (1 day to 30 days) or a fine time within ten years, he can be made to
not exceeding P200 or both. suffer the fine.
The basis is the penalty prescribed by the RPC The first sentence states the rule that when an
and not the actual penalty imposed by the court. act/omission is punished by a special law, then it
If both imprisonment and fine are prescribed as is the special law which shall be applied and the
penalties, it is the penalty of imprisonment RPC is not to supplant or replace or supply
which is used as basis. lapses in the special law.
Importance of the classification
(a) To determine the prescription of crime and The second sentence directs that the RPC shall
prescription of penalty only be suppletory unless the special law
provides the contrary.
In the case of light felonies, crimes prescribe
in two months. After two months, the state GENERAL RULE: RPC provisions are
loses the right to prosecute unless the supplementary to special laws.
running period is suspended. If the offender
escapes while in detention after he has been EXCEPTIONS:
loose, if there was already judgment that 1. When special laws provide otherwise;
was passed, it can be promulgated even if 2. When provisions of RPC are impossible of
absent under the New Rules on Criminal application, either by express provision or by
Procedure. If the crime is correctional, it necessary implication.
prescribes in ten years, except arresto
mayor, which prescribes in five years. Provisions of the RPC which do not, as a rule,
apply to violations of special laws:
(b) to determine whether complexing of crimes
is proper 1. Article 3 on criminal intent
(c) imposition of subsidiary penalty 2. Article 6 on the stages of execution unless
(d) determination of who are liable for the the special law punishes an attempted or
offense frustrated violation of its provisions
(e) determination what stage of execution is 3. Article 11 on the justifying circumstances
punishable 4. Article 13, 14, 15, on the mitigating,
(f) determination of the period of detention of aggravating and alternative circumstances
persons lawfully arrested without warrant. 5. Articles 17, 18 and 19 on the degree of
participation
NOTE: When the RPC speaks of grave and 6. Accessory penalties
less grave felonies, the definition makes a 7. Article 48 on complexing of crimes
reference specifically to Article 25 of the 8. Graduation of penalties
RPC. Do not omit the phrase In accordance
with Article 25 because there is also a Provisions of the RPC Applicable to Special Laws
39
A. To prevent an injustice to a party used in the killing, said use is an aggravating
1) Article 100 ( Every person criminally circumstance.
liable is also civilly liable) may be applied C. The act may give rise to two separate
if there is a private person whose rights charges under the RPC and the special law.
or property may have been injured, as in Examples: (i) the issuance of bad check may
Violation of B.P. 22 be punished as estafa and as Violation of B.P.
2) The principle of conspiracy as a mode of 22 (ii) one maybe convicted both for estafa
incurring liability may be applied and for illegal recruitment (iii) a public
whenever it is necessary to charge two officer may be charged both under the
or more persons who may have Revised Penal Code and under the Anti Graft
participated in the violation of the Law.
special law
RPC Special Penal
B. Whenever the special law adopts the scheme Laws
of penalties under the RPC both as to the Terms Prision Imprisonment
nomenclature and range of the penalty correccional,
1. In such cases the following may now be prision mayor,
applied: (a) the effects of modifying etc
circumstances (b) the graduation of Attempted Punsihable Gen. Rule: NOT
penalties and (c) the imposition of the or punishable.
accessory penalties. (as well as stages in Frustrated Exception:
the execution, degree of participation, Stages Unless otherwise
presence of mitigating and aggravating stated.
circumstances) Plea of Applicable NA
2. In Gallardo vs. Tamayo ( June 2, 1994) it Guilty as
was held that the penalty of 6 years and Mitigating
one day to 12 years is not the same as Circumstan
prision mayor. ce
Minimum, Applicable NA
C. When the act is in truth an act mala in se in Medium,
which case the presence or absence of and
criminal intent is material so that the Maximum
defenses of good faith and mistake of fact are Periods.
allowed Penalty for Applicable. Gen. Rule: NA
Accesory or Exception:
D. When the offense punished by the special Accomplice Unless stated
law is in truth a derivative of an act punished otherwise.
under the Revised Penal Code. As for
instance: carnapping and cattle rustling are Chapter 2
derivatives of robbery and theft. JUSTIFYING CIRCUMSTANCES AND
CIRCUMSTANCES, WHICH EXEMPT FROM
E. The exempting circumstances under Article CRIMINAL LIABILITY
12 apply to Violations of Special Law.
IMPUTABILITY the quality by which an act may
F. Participation of Accomplices (Art. 16) be ascribed to a person as its author or owner. It
implies that the act committed has been freely
G. Retroactivity of Penal Laws if Favorable to and consciously done and may therefore be put
the Accused (Art. 22) down to the doer as his very own.
40
crime charged or lead to non-criminal intelligence must necessarily
liability. They are the reasons advanced by guess at its meaning and differ
the accused why he may not be held as to its application It is
criminally liable. repugnant to the constitution in
They are classified into the following: two aspects: (a) it violates due
process for failure to accord
A. As to form: persons, especially the parties
targeted by it, fair notice of the
1. Positive or Affirmative - They are conduct to avoid and (b) it leaves
often called defenses in the nature of law enforcers unbridled discretion
Admission and Avoidance. The in carrying out its provisions and
accused admits authorship of the act become an arbitrary flexing of
or omission charged and imputed to the government muscle.
him but he puts up matters to avoid
criminally liability or which will result 3. However an act will be
to his acquittal. declared void and inoperative on
the ground of vagueness and
a. All the Justifying, Exempting and uncertainty, only upon a showing
Absolutory Causes are Affirmative that the defect is such that the
defenses. courts are unable to determine,
b. Since the accused has admitted within any reasonable degree of
authorship of the act or omission, certainty, what the legislature
its not anymore necessary for intended
the prosecution to prove his
participation in the commission Example: An ordinance of the
of the crime or his identity, hence City of Cincinnati that made it
there may be a reverse order of illegal for three or more persons
trial in that it will be the accused to assemble on any sidewalk and
who will be the first to present his there conduct themselves in a
evidence . manner annoying to persons
c. It is incumbent upon the accused passing by.
to prove his defense by clear,
positive and convincing B. VOID FOR OVERBREADTH
evidence and his conviction is (Overbroad) PRINCIPLE
not that the prosecution failed to
prove his guilt but that he was 1. A penal statue is
unable to prove his defense. unconstitutional if its language is
so broad that it unnecessary
d. CONSTITUTIONAL DEFENSES interferes with the exercise of
constitutional rights, even though
Defenses based on a the purpose is to prohibit
Violation of the Due Process activities that the government
Clause may constitutionally prohibit.
41
Example: In Adiong s. COMELEC, Examples are denial, alibi, mistaken
207 SCRA 712, SC declared as identity.
void that portion of the Election
Code prohibiting the posting of B. As to Effect:
election propaganda in any
place-including private vehicles- 1. Total or Perfect - those the effect of
other than in the designated which will totally exonerate the
common poster area. accused. Example: a complete
justifying circumstance, amnesty.
C. VOID FOR LACK OF 2. Partial - those which are intended to
PUBLICITY lessen the liability of the accused.
They include proof the offense is a
1. The Penal Statue was not lesser offenses, or that it is of a lower
publicized in the manner stage of execution, that the accused
provided for by the Constitution, has a lower participation and is not
such as publication in a the principal.
newspaper of general circulation
or in the Official Gazette. Hence C. As to source:
there is no constructive note to 1. Legal - those provided for by statutes
the public and the principle that or by the constitution. For example:
Ignorantia legis nemenem prescription of crimes, marriage of
excusat will not apply. the offender and offended, pardon,
double jeopardy, amnesty.
Defenses Based on the Equal 2. Factual - those based on the
Protection Clause circumstances of the commission of
the crime relating to the time, place,
A. DISCRIMINATORY AND manner of commission; identification
SELECTIVE APPLICATION of the accused; reasons for the
commission. For example: alibi, sel-
1. A Penal Law must apply to all defense; insanity, mistaken identity.
persons who are in the same or
similar situation. COMPLETE DEFENSES IN CRIMINAL CASES
1. Any of the essential elements of the crime
2. A statute nondiscriminatory on charged is not proved by the prosecution
its face maybe grossly and the elements proved do not constitute
discriminatory in its operation. any crime.
Though the law itself be fair on 2. The act of the accused falls under any of the
its face and impartial in justifying circumstances.
appearance, yet, if it is applied 3. The act of the accused falls under any of the
and administered by public exempting circumstances.
authority with an evil eye and 4. The case is covered by any of the absolutory
unequal; hand, so as to make causes.
unjust and illegal discriminations 5. Guilt of the accused not established beyond
between persons in similar reasonable doubt.
circumstances, material to their 6. Prescription of Crimes.
rights, there is denial of equal
justice and is prohibited. Circumstances Affecting Criminal Liability
as Specifically Provided under the RPC:
3. However, the prosecution of
one guilty person while others Art. 11. Justifying circumstances
equally guilty are not prosecuted,
is not, by itself, a denial of the JUSTIFYING CIRCUMSTANCES - are those where
equal protection of the laws. the act of a person is said to be in accordance
There must be present an with law, so that such person is deemed not to
element of clear and have transgressed the law and is free from both
intentional or purposeful criminal and civil liability. There is no civil
discrimination: on the part of liability, except in par. 4 of Art. 11, where the
the prosecuting officials. civil liability is borne by the persons benefited
by the act.
2. Negative - the accused denies
authorship or having performed the a. There is no mens rea or criminal intent.
act or omission imputed to him. b. The circumstances pertain to the act and not
to the actor. Hence all who participated in
42
the act will be benefited. Thus if the principal - is equivalent to an actual physical
is acquitted there will be no accomplices and assault or, at least
accessories. - threatened assault of an immediate and
c. These apply only to intentional felonies, not imminent kind which is offensive and positively
to acts by omissions or to culpable felonies strong, showing the wrongful intent to cause
or to violations of special laws. injury.
d. They are limited to the 6 enumerated in
Article 11. Aggression, Kinds of:
Lawful
The Use of Force Defenses - These are the a) in the exercise of a right
justifying circumstances where the accused is b) in the fulfillment of a duty
allowed to use force i.e to inflict injury upon the
victim or to destroy property. The force may Unlawful
either be (i) Deadly Force or that which can a) ACTUAL (REAL/MATERIAL) danger
result to serious physical injuries or even to the must be present, that is, actually in
death of the victim and (ii) Non-Deadly but existence.
reasonable force. b) IMMINENT danger is impending or at
the point of happening. It must not
The Use- of-Force-Defenses include (i) self- consist in a mere threatening attitude
Defense (ii) Defense of Relative and (iii) Defense nor must it be merely imaginary. The
of Stranger. intimidating attitude must be offensive
and positively strong.
Paragraph 1. Self defense
Unlawful Aggression, Some Principles:
Anyone who acts in defense of his person or
rights, provided that the following circumstances Unlawful aggression is an indispensable
concur: requisite.
Aggression must be unlawful i.e the
First. Unlawful aggression; victim was not acting in accordance with
laws, or under color of right. Thus the
Second. Reasonable necessity of the means following do not constitute unlawful
employed to prevent or repel it; aggression: (i) the act of a property
owner in pushing out an intruder for
Third. Lack of sufficient provocation on the part refusing to leave peacefully (ii) the act of
of the person defending himself. a policeman in handcuffing a law violator
(iii) the scolding by a teacher of an
Concept of Self Defense unruly student.
The aggression must come from the
Self-defense includes not only the defense of the victim.
person or body of the one assaulted but also
At the time of the defense, the
that of his rights, the enjoyment of which is
aggression must still be continuing and
protected by law. Thus, it includes:
in existence. In the following instances
1. The right to honor. Hence, a slap on the face
there is no more aggression and if the
is considered as unlawful aggression
accused still uses forces, he becomes the
directed against the honor of the actor
aggressor:
(People vs. Sabio, 19 SCRA 901).
2. The defense of property rights, only if there
a). When the attacker desists, or is
is also an actual and imminent danger on
prevented or restrained by third persons;
the person of the one defending (People vs
or is divested of his weapon, or is
Narvaez, 121 SCRA 389).
overpowered
b). When the attacker retreats unless it is to
Elements:
secure a more advantage position.
1. Unlawful aggression;
2. reasonable necessity of the means
Q: When the person attacked was able to
employed to repel it; and
3. lack of sufficient provocation on the part wrest the weapon or has disarmed his
of the person defending himself. attacker, may he use the weapon against
the attacker? A: No because the aggression
Note: The first two are common to the three has ceased unless the attacker persist to
Use-of-Force-Defenses. grab back the weapon for in such case, there
is still imminent danger tot his life or limb.
UNLAWFUL AGGRESSION There must be no appreciable lapse of
time between the unlawful aggression and
the act done to repel or prevent it
43
Presumption as to the Aggressor: Where the accused believed it was a real gun. (P/P
there is no direct evidence who was the vs. Boral 11 CA Rep. 914)
aggressor, it may be presumed that the one Mere threatening attitude is not unlawful
who was deeply offended by the insult was aggression. (US vs. Guy-sayco 13 Phil 292)
the one who had a right to demand an The person defending is not expected to
explanation from the perpetrator of the control his blow.
insult and he must have been the one who
struck first if the proffered explanation was Q: A and B are long standing enemies. Because
unsatisfactory ( PP. vs. Ramos, 77 Phil. 4) of their continuous quarrel over the boundaries
Unlawful aggression is equivalent to of their adjoining properties, when A saw B one
assault or at least threatened assault of an afternoon, he approached the latter in a
immediate and imminent kind. (Pp vs. menacing manner with a bolo in his hand.
Alconga 78 Phil 366) When he was about five feet away from B, B
The danger or peril to ones life or limb pulled out a revolver and shot A on the chest,
must be present, that is, must actually killing him. Is B criminally liable? What crime
exists. was committed, if any?
There must be actual physical force or
actual use of weapon. A: The act of A is nothing but a provocation. It
No unlawful aggression when there is no cannot be characterized as an unlawful
imminent and real danger to the life and aggression because in criminal law, an unlawful
limb of the accused. aggression is an attack or a threatened attack
which produces an imminent danger to the life
Paramour surprised in the act of adultery
and limb of the one resorting to self-defense. In
cannot invoke self-defense if he killed the
the facts of the problem given above, what was
offended husband who was assaulting him.
said was that A was holding a bolo. That bolo
(US vs. Merced 39 Phil 198)
does not produce any real or imminent danger
Foot-kick greeting is not an unlawful
unless a raises his arm with the bolo. As long as
aggression. (P/P vs. Sabio 19 SCRA 901) that arm of A was down holding the bolo, there
A strong retaliation for an injury or threat is no imminent danger to the life or limb of B.
may amount to an unlawful aggression. (US Therefore, the act of B in shooting A is not
vs. Carerro 9 Phil 544) justified.
The attack made by the deceased and
the killing of the deceased by the defendant At what point may a person attacked put
should succeed each other without up a defense?
appreciable interval of time. (P/P vs. Arellano
C.A 54 O.G. 7252) 1. Retreat-to-the-Wall Principle. The
A public officer exceeding his authority doctrine which states that before a
may become unlawful aggressor. (P/P vs. person is entitled to use force in self
Hernandez 59 Phil 343) defense he must first attempt to
Nature, character, location and extent of withdraw from the encounter by giving
wound of the accused allegedly inflicted by as much ground as possible and it is only
the injured party may belie claim of self there is no more place to retreat that he
defense. (P/P vs. Tolentino 54 Phil 77) may now use force to defend himself.
Improbability of the accused being the This doctrine is impractical and has been
aggressor belies the claim of self defense. abandoned.
(P/P vs. Diaz 55 SCRA 178)
The fact that the accused declined to 2. Stand-Your-Ground-When-In-The-
give any statement when he surrendered to Right Principle. The doctrine which
a policeman is inconsistent with the plea of holds that when a person is attacked in
self defense. (P/P vs. Manansala 31 SCRA the place where he has a right to be, he
401) need not retreat but he may immediately
When the aggressor flees, unlawful use force to defend himself. The law
does not require a person to retreat
aggression no longer exists. (P/P vs. Alconga
when his assailant is rapidly advancing
78 Phil 366)
upon him with a deadly weapon.
No unlawful aggression when there is
REASON: he runs the risk of being
agreement to fight EXCEPT when there is a attacked in the back of the aggressor.
violation of the agreement.
One who voluntarily joined a fight cannot a). This is the prevailing doctrine followed. It
claim self defense. applies to all especially to law
There is unlawful aggression even if the enforcement agents who are expected to
aggressor used a toy pistol, provided that stand their ground and to subdue,
overcome and arrest criminals.
44
b) A related doctrine is the Castle by the one defending himself and that of the
Doctrine. When a person is attacked in aggressor is not required.
his dwelling (a mans house is his castle)
he is not expected to retreat but he may Reason: The person assaulted does not
immediately use force to defend himself have sufficient opportunity or time to think
and his dwelling. This is availed of where and calculate.
armed persons intrude into a dwelling as
it is natural to expect that the armed The Reasonableness Of The Means Include
persons would use their weapons at any Two Aspects
time and upon any occupant of the
dwelling. (1) Reasonableness of the Mode of Defense
(2) Reasonableness of the Choice of Weapon.
May the attacker claim self defense?
A person under attack has the right to defend,
1. As a rule one who initiates an attack can but as it proper for him to sue a weapon and if
not claim self defense being himself the so, whether the weapon chosen is
aggressor. commensurate to the attack.
2. However he is entitled to an incomplete
self defense: (a) if he is met with excessive The law requires Rational Necessity and
force in return and is forced to defend Rational Equivalence of Weapons and not
himself or (b) When he withdraws or Factual Equality
retreats from the attack but is pursued by
the intended victim and he had to defend This is to be determined by considering both the
himself. subjective and objective aspects of the situation.
They include the following:
Rule when there is an agreement to a 1. The imminence of the danger as it appeared
fight or when one accepts a challenge to to the accused coupled by the instinct for
a fight self-preservation.
2. When the attacker is armed, consider the
Neither one can put up self defense because instrument of aggression and the means of
each is an aggressor to the other and both defense most readily and immediately
anticipate the aggression coming from the available to the person attacked.
other. The law leaves them where they are. 3. Consider the physique, size, age, sex,
Except when one is attacked by the other in knowledge of martial arts (the hands and
violation of the terms and conditions of the feet of boxers, martial artists, wrestlers, are
fight, such as to the time, place and choice of considered deadly weapons) of the attacker
weapons agreed upon, then the person and the person attacked, including the
attacked may claim self defense. reputation of the attacker as a person of
violence.
4. Consider whether under the time and place of
REASONABLE NECESSITY OF THE MEANS the attack, the person attacked can call for
EMPLOYED TO PREVENT OR REPEL THE immediate assistance.
ATTACK 5. Consider the number of the attackers.
The question is whether the defense is When can Deadly Force be used?
appropriate and commensurate to the type,
degree, and intensity of the aggression taking 1. When there is an attack on a persons life or
into consideration the place, occasion and limbs i.e he may either be killed or seriously
surrounding circumstances of the aggression. injured
2. In case of an attack upon ones property, it
Test of Reasonableness must be coupled with an attack on the
persons life or limb which promises death or
1. Weapon used by the aggressor serious bodily harm, otherwise only
2. Physical condition, character, size and reasonable force must be used.
other circumstances of the aggressor
3. Physical condition, character, size and If there is no attack on the persons life or
other circumstances of the person limb, reasonable force may still be used as is
defending himself necessary to protect the property from being
4. Place and Occasion seized, destroyed or interfered with under
the Doctrine of Self Help provided for In
Note: Perfect equality between the weapons Article 429 of the New Civil Code.
used, nor material commensurability 3. In case of an attack on chastity, deadly force
between the means of attack and defense is allowed if there is a clear intent to rape,
45
which intent maybe negated by the Rights Included in Self-Defense/Kinds of
circumstances of time and place; if there is Self-Defense
no clear intent to rape only reasonable force
must be used. 1. Defense of Person (Life and Limb)
4. In case of attack on ones honor or 2. Defense of Property (only if there is also an
reputation, the use of physical force is never actual and imminent danger on the person
justified. When one is libeled or defamed, he of the one defending)
may fight back with a similar libel or 3. Defense of Rights Protected by Law (Civil,
defamation provided it is only to the extent political and natural)
which is necessary to free himself from the 4. Defense of Chastity
effects of the libel/defamation. This is called 5. Defense of Honor/Reputation (Defense in
the Doctrine of Justified Libel or The case of libel)
Privilege of a Reply Doctrine.
5. The Principle of Self defense and Use of NOTE: Under RA 9262 (Anti-Violence against
Deadly Force does not apply to situations Women and their Children Act of 2004), victim-
where a person is injured or killed as a result survivors who are found by the court to be
of the installation of Protective suffering from Battered Woman Syndrome (BWS)
Devises/Methods such as by the installation do not incur criminal and civil liability despite
of live electric wires on a fence, or by attack the absence of the necessary elements for the
dogs let loose in ones yard. justifying circumstance of self-defense in the
RPC. The law provides for an additional justifying
LACK OF SUFFICIENT PROVOCATION ON circumstance.
THE PART OF THE PERSON CLAIMING SELF
DEFENSE, Concept Battered Woman Syndrome refers to a
scientifically defined pattern of psychological
The person attacked must not have given and behavioral symptoms found in women living
sufficient reason for the victim to attack him. in battering relationships as a result of
cumulative abuse.
Provocation - includes any conduct which
excites, incites or induces a person to react, it is Battery refers to any act of inflicting physical
conduct which vexes or annoys, irritates or harm upon the woman or her child resulting to
angers another. physical and psychological or emotional distress.
When a property owner angrily demands Section 26: Battered Woman Syndrome as a
why the victim built a fence on his land, Defense: Victim-survivors who are found by the
which in turn angered the victim to attack courts to be suffering from battered woman
the accused, such conduct on the part of the syndrome do not incur any criminal and civil
accuse is not provocation. liability notwithstanding the absence of any of
the elements for justifying circumstances of self-
2. When there was provocation but it was not defense under the Revised Penal code.
sufficient i.e. it may have vexed or annoyed
but was not sufficient for the victim to make In the determination of the state of mind of the
the kind of attack he employed upon the woman who was suffering from battered woman
accused. The sufficiency must be measured syndrome at the time of the commission of the
in relation to the reaction of the victim. crime, the courts shall be assisted by expert
psychologists.
3. When sufficiency provocation was given but
it was not immediate to the attack. Concept of BWS
46
justified in using force at a time when there the man can put an end tog the
is not strictly immediate danger. The violence She realizes that she can
theory is that women in such circumstances not reason with him and that
have two choices: either wait for their resistance would only exacerbate
husband to kill them or strike first in a form her condition. She has a sense of
of offensive self-defense. detachment although she may later
clearly remember the details. Her
c). Development in the Philippines apparent passivity is because the
man is stronger physically and it is
1. The Case in which it was first recognized useless to fight back.
was People vs. Marivic Genosa, Jan 15,
2004 419 SCRA 537) involving a wife who (iii). The Tranquil, Loving or Non-Violent
was convicted of Parricide for killing her Phase. The couple experience
husband who was sleeping. profound relief. On one hand the
man shows a tender and nurturing
a). Battered woman: a woman who is behavior and he knows he has
repeatedly subjected to any forceful been viciously cruel and tries to
physical or psychological behavior by a make up for it begging her
man in order to coerce her to do forgiveness and promising never to
something he wants her to do without beat her again. The woman also
concern for her rights.. (they) include tries to convince herself that the
wives or women in any form of battery will never happen again;
intimate relationship with men. that her partner will change for the
Furthermore, in order to be classified better; that this good, gentle and
as a battered woman, the couple must caring man is the real person she
go through the cycle at least twice loves.
b) Battered women exhibit common d). The foregoing cycle happens because /
personality traits, such as low self Characteristics of the Syndrome: (i) the
esteem, traditional beliefs about home, woman believes that the violence was
the family and the female sex role; her fault (ii) the woman fears for her
emotional dependence upon the life and her childrens lives (iii) the
dominant male; the tendency to accept woman has an irrational belief that the
responsibility for the batterers action; abuser is all powerful and that she is
and false hopes that the relationship beer off with him than without him for
will improve. financial reasons and (iv) Love: in spite
of constant assault, after a little
c) The syndrome is characterized by the cajoling, the woman is convinced that
so-called Cycle of Violence which has the man still loves her.
three phases:
Q: Must there be unlawful aggression at
(i) The Tension Building Phase: minor the time of the killing?
battering occurs: it could be verbal A: In The Genosa case, it was ruled that
or slight physical abuse or other the accused was not entitled to complete
form of hostile behavior. The exoneration because there was no
woman tries to pacify the man unlawful aggression, no immediate and
through a show of kind, nurturing unexpected attack on her at the time she
behavior; or by simply staying out shot him. But the severe beatings
of his way. What actually happens repeatedly inflicted constituted a form of
is that she allows herself to be cumulative psychological paralysis:
abused in way that to her fare diminished her will power, thereby
minor. Alls he wants is to prevent entitling her to the mitigating factor under
the escalation of the violence. But paragraphs 9 and 10 of Article 13.
her placatory and passive behavior
legitimizes his belief that he has HOWEVER, RA 9262 has liberalized it in
the right to abuse her. view of the provisions which reads:
notwithstanding the absence for the
(ii). The Acute Battering Phase: this is elements of self defense
characterized by brutality, Paragraph 2. Defense of Relative
destructiveness and sometimes
death. The woman deems this Anyone who acts in defense of the person or
incident as unpredictable yet also rights of his spouse, ascendants, descendants,
inevitable. She has no control: only or legitimate, natural, or adopted brothers or
47
sisters or of his relatives by affinity in the 2. Reasonable necessity of the means
same degrees, and those by consanguinity employed to repel it; and
within the fourth civil degree, provided that the 3. Person defending be not induced by
first and second requisites prescribed in the next revenge, resentment or other evil motive.
preceding circumstance are present, and the
further requisite, in case the provocation was Note: Distinction between relative and
given by the person attacked, that the one stranger is important because of the
making defense had no part therein. element of evil motive.
48
Any person who, in order to avoid an evil rushed to the land of A to be saved, but the land
or injury, does an act which causes injury to of A was destroyed. The author of the act is C,
another, provided that the following requisites but C is not civilly liable because he did not
are present: receive benefits. It was B who was benefited,
although he was not the actor. He cannot claim
First. That the evil sought to be avoided actually that it was fortuitous event. B will answer only
exists; to the extent of the benefit derived by him. If C
who drove all the goats is accused of malicious
Second. That the injury feared be greater than mischief, his defense would be that he acted out
that done to avoid it; of a state of necessity. He will not be civilly
liable.
Third. That there be no other practical or less
harmful means of preventing it. Paragraph 5. Fulfillment of Duty/Lawful
Exercise of Right or Office
Elements:
1. evil sought to be avoided actually exists; Any person who acts in the fulfillment of duty or
2. injury feared be greater than that done to in the lawful exercise of a right or office.
avoid it; and
3. no other practical or less harmful means of Elements:
preventing it.
1. accused acted in the performance of a
NOTE: The greater evil/necessity should not be duty or in the lawful exercise of a right or
brought about by the negligence or imprudence office;
of the actor. 2. injury caused or the offense committed
be the necessary consequence of the
The evil which brought about the greater evil due performance of duty or the lawful
must not result from a violation of law by the exercise of such right or office; and
actor. 3. accused was not negligent or that there
was no abuse, or excess or oppression
When the accused was not avoiding any evil, he on the part of the accused
cannot invoke the justifying circumstance of
avoidance of a greater evil or injury. (P/P vs OFFICE OR DUTY - does not necessarily refer to
Ricohermoso 56 SCRA 431) a public office or public duty as it is to be
understood in its generic sense. It includes
Generally, there is No civil liability EXCEPT par 4 private office or employment or duty as well as
when there is another person benefited in which the exercise of a calling or a profession or
case the latter is the one liable. occupation.
For example, A drove his car beyond the speed Killing of rebels by soldiers is not homicide or
limit so much so that when he reached the murder; or destruction of private property in a
curve, his vehicle skidded towards a ravine. He firefight between rebels/criminals and
swerved his car towards a house, destroying it soldiers/law enforcers.
and killing the occupant therein. A cannot be
justified because the state of necessity was Amputation of patients by physicians in order to
brought about by his own felonious act. save their lives.
A and B are owners of adjoining lands. A owns Lawyers calling witnesses as liars are not liable
the land for planting certain crops. B owns the for defamation or unjust vexation.
land for raising certain goats. C used another
land for a vegetable garden. There was heavy Scolding lazy students by teachers is not
rain and floods. Dam was opened. C drove all defamation.
the goats of B to the land of A. The goats
49
Executioners are not criminally liable. a notorious bandit. There was an order to kill
Balagtas if he would resist. The accused arrived
A lawyer who writes a reply-letter describing the at the house of a dancer who was supposedly
adverse party as untruthful and hypocrite. the girlfriend of Balagtas. When they were
there, they saw a certain person who resembled
Application in Relation to Law Enforcers Balagtas in all his bodily appearance sleeping on
Who Used Force and kill or Injure a bamboo bed but facing the other direction.
Suspects/accused The accused, without going around the house,
started firing at the man. They found out later
1. Cabanlig vs. Sandiganbayan ( July 28, 2005) on that the man was not really Balagtas. They
tried to invoke the justifying circumstance of
FACTS: A suspect who was onboard a police having acted in fulfillment of a duty.
vehicle, suddenly grabbed the armalite rifle
of one of the policemen and jumped from the The second requisite is absent because they
vehicle. One of the policemen shouted hoy acted with negligence. There was nothing that
and the accused policeman simultaneously prevented them from looking around the house
shot the suspect three times resulting to the and looking at the face of the fellow who was
death of the suspect. Is he policeman liable sleeping. There could not be any danger on
for the death of the victim? their life and limb. Hence, they were held guilty
. of the crime of murder because the fellow was
HELD: No. He acted in lawful performance of killed when he was sleeping and totally
duty. defenseless. However, the Supreme Court
granted them the benefit of incomplete
A policeman in the performance of duty is justification of fulfillment of duty and the
justified in using force as is reasonably penalty was reduced by one or two degrees.
necessary to secure and detain the offender,
over come his resistance, prevent escape, Do not confuse fulfillment of a duty with
recapture him if necessary and protect self-defense.
himself form bodily injury. In case injury or
death results from the policemans exercise Illustration:
of such force, the policeman could be
justified if the policeman had used A, a policeman, while waiting for his wife to go
necessary force. Since the policemans duty home, was suddenly stabbed at the back by B, a
requires him to overcome the offender, the hoodlum, who mistook him for someone else.
force exerted may therefore differ from When A saw B, he drew his revolver and went
that which ordinarily may be offered in self- after B. After firing a shot in the air, B did not
defense. However, a policeman is never stop so A shot B who was hit at a vital part of
justified in using unnecessary force or in the body. B died. Is the act of A justified?
treating the offender with wanton violence, or
in resorting to dangerous means when the Yes. The justifying circumstance of self-defense
arrest could be effected otherwise. ( Cabanlig cannot be invoked because the unlawful
vs. Sandiganbayan ( July 28, 2005). aggression had already ceased by the time A
shot B. When the unlawful aggressor started
2. Re: Duty to Issue Warning. fleeing, the unlawful aggression ceased. If the
person attacked runs after him, in the eyes of
The duty to issue a warning is not absolutely the law, he becomes the unlawful aggressor.
mandated at all times and at all cost, to the Self-defense cannot be invoked. You apply
detriment of the life of law enforcers. The paragraph 5 on fulfillment of duty. The offender
directive to issue a warning contemplates a was not only defending himself but was acting
situation where several options are still in fulfillment of a duty, to bring the criminal to
available to the law enforcers. In exceptional the authorities. As long as he was not acting
circumstances where the threat to the life out of malice when he fired at the fleeing
of a law enforcer is already imminent, and criminal, he cannot be made criminally liable.
there is no other option but to use force to However, this is true only if it was the person
subdue the offender, the law enforcers who stabbed was the one killed. But if, let us
failure to issue a warning is excusable. say, the policeman was stabbed and despite the
( Cabanlig vs. Sandiganbayan) fact that the aggressor ran into a crowd of
people, the policeman still fired indiscriminately.
Illustration: The policeman would be held criminally liable
because he acted with imprudence in firing
In People v. Oanis and Callanta, the accused toward several people where the offender had
Chief of Police and the constabulary soldier were run. But although he will be criminally liable, he
sent out to arrest a certain Balagtas, supposedly
50
will be given the benefit of an incomplete c. They apply to both intentional and culpable
fulfillment of duty. felonies and they may be available in
violations of special laws.
Paragraph 6. Obedience to a Lawful Order d. They are limited to the 7 enumerated in
of a Superior Article 12.
e. Burden of Proof: Any of the circumstances
Any person who acts in obedience to an is a matter of defense and must be proved
order issued by a superior for some lawful by the defendant to the satisfaction of the
purpose. court.
a. BASIS: The exemption from punishment is When the imbecile or an insane person
based on the complete absence of has committed an act which the law defines as a
intelligence, freedom of action, or intent, or felony(delito), the court shall order his
on the absence of negligence on the part of confinement in one of the hospitals or asylums
the accused. established for persons thus afflicted, which he
b. These defenses pertain to the actor and not shall not be permitted to leave without first
the act. They are personal to the accused in obtaining the permission of the same court.
whom they are present and the effects do
not extend to the other participants. Thus if IMBECILE one while advanced in age has a
a principal is acquitted, the other principals, mental development comparable to that of
accessories and accomplices are still liable. children between 2 and 7 years old. He is
exempt in ALL CASES from criminal liability.
51
-(Sir Sagsago) defect of reason to such Two (2) tests for exemption on the ground
degree that his mental capacity is diminished; of Insanity:
deprivation of intelligence; it is permanent; it
includes moron. 1. the test of COGNITION - whether the
accused acted with complete deprivation
INSANE one who acts with complete of intelligence in committing said crime;
deprivation of intelligence/reason or without the knowledge of right and wrong.
least discernment or with total deprivation of
freedom of will. Mere abnormality of the mental Mnaghten test (also considered as test of
faculties will not exclude imputability. Defect in cognition; it is a test of right and wrong)
the brain.
Propositions:
A person medically insane is legally insane but a.at the time the act was committed;
not vice-versa. b. the defendant suffers from defect of
reason or from disease of mind
The following are considered medically sane but c.causes defendant to not to know what is
legally insane: the nature and quality of act taken or that
1. mental aberration due to illness, e.g. malaria his act was wrong
2. dementia praecox (unable to distinguish
between fantasy and reality) 2. the test of VOLITION - whether the
3. schizophrenia accused acted in the total deprivation of
4. manic depressive psychosis ( they feel that freedom or will.
everyone is against them)
5. lack of control-consciousness (while dreaming Note: These tests are applied in the Philippines.
6. somnambulism The word crazy is not synonymous with the word
7. epilepsy insane
8. violent maniac
The following are not medically nor legally Effects of Insanity of the Accused
insane: 1. At the time of commission of the crime
1. feebleminded exempt
2. amnesia caused by too much alcohol intake 2. During trial liable but there will be
3. acts resulting from passion (temporary suspension of arraignment, trial or
insanity) promulgation of judgment, accused is
4. eccentric committed to a hospital.
5. mental weakness 3. After judgment or while serving sentence
6. depressed due to physical illness execution of judgment is suspended, the
7. involuntary sublimal t.v. intoxication (too accused is committed to hospital. The period
much t.v. watching) of confinement in the hospital is counted for
8. pre-menstrual syndrome the purpose of prescription of the penalty.
9. twinky defense (due to large consumption of
white sugar) Paragraph 2. Under 9 years of Age
10. hypnosis ( no medical proof of insanity; no
judicial acknowledgement) NOTE: On April 28, 2006, Gloria Arroyo
signed into law Republic Act 9344
General Rule: Exempt from criminal liability. otherwise known as JUVENILE JUSTICE and
WELFARE ACT OF 2006. The law became
Exception: The act was done during lucid effective on May 21, 2006.
interval.
Under R.A. 9344, minors aged fifteen (15) and
Note: Defense must prove that the accused was below are now absolutely exempt from criminal
insane at the immediately prior to or at the time liability.
of the commission of the crime because the
presumption is always in favor of sanity. The child shall be released to the custody of his
of his parents, or guardian, or in the absence
Who may prove insanity? Experts (psychologist, thereof, the childs nearest relative. If they
psychiatrist), opinion of intimate acquiantance cannot be located or if they refused, the child
shall be released to a duly registered
To appreciate insanity: there must be complete nongovernmental or religious organization, a
deprivation of intelligence (no discernment, brgy official, or a member of the Brgy Council
deprived of reason), (Sir Sagsago: thus the For The Protection Of Children (BCPC), or when
following two tests are adopted in the appropriate, the DSWD.
Philippines)
If the child is abandoned, neglected or abused
52
by his parents, or if the parents will not comply Elements:
with the prevention program, DSWD will file the
petition for involuntary commitment pursuant to 1. A person is performing a lawful act.
The Child and Youth Welfare Code. 2. With due care (else, it is culpable felony)
3. He causes an injury to another by mere
Note: Senility although said to be the second accident.
childhood, is only mitigating. 4. Without fault or intention of causing it.
(P/P vs Vitug 8 CAR {2s} 905, 909)
Paragraph 3. Over 9 BUT Under 15 Acting
Without Discernment Note: Under Article 12, paragraph 4, the
offender is exempt not only from criminal but
DISCERNMENT - mental capacity of a minor to also from civil liability. This paragraph
fully appreciate the consequences of his embodies the Latin maxim damnum absque
unlawful act. (Pp vs Navarro CA 51 OG 4062); it injuria.
is the ability to know what is right and wrong;
knowledge of the consequences of ones acts. Since the act must be lawful, accident cannot be
This is shown by: claimed as defense in the ff. cases: possessing
gun without license when accused killed his
1. the manner the crime was committed companion accidentally, dynamite fishing
2. conduct of the offender after its causing death of scuba diver
commission
Note that mechanical defect can be foreseen.
Note: Under R.A. 9344 (Pangilinan law), a minor
above fifteen (15) but below eighteen (18) Illustration:
commits a crime, he is exempt from criminal
liability unless it is shown that he acted with A person who is driving his car within the speed
discernment. However, should the minor above limit, while considering the condition of the
fifteen but below eighteen be found guilty, R.A. traffic and the pedestrians at that time, tripped
9344 also mandates the Courts to on a stone with one of his car tires. The stone
AUTOMATICALLY suspend the sentence. In all flew hitting a pedestrian on the head. The
cases, the minor offender must be referred to pedestrian suffered profuse bleeding. What is
the appropriate government agency for the liability of the driver?
rehabilitation.
Also, under Section 5 of RA 8539 (Family There is no civil liability under paragraph 4 of
Court Law), there is no need to apply or file a Article 12. Although, this is just an exempting
Petition for suspension of sentence. The law circumstance, where generally there is civil
mandates an automatic suspension of service of liability, yet, in paragraph 4 of Article 12, there
sentence of the youthful offender. is no civil liability as well as criminal liability.
The driver is not under obligation to defray the
Minor above 15 but below 18 years old medical expenses.
may also be exempted even with discernment in
the following crimes: However, correlate paragraph 4 of Article 12
a. status offense (e.g. curfew) with the second paragraph of Article 275.
b. vagrancy Article 275 gives you the crime of abandoning
c. mendicancy the victim of ones own accident. It is a crime.
d. PD 1602 (sniffing or possession of rugby) Here, the accident referred to in paragraph 2 of
e. Prostitution Article 275 is in the concept of paragraph 4 of
Article 12. This means that the offender must
In information, it must specifically state that the be performing a lawful act, that he was doing it
minor accused acted with discernment. with due care but somehow, injury resulted by
mere accident without fault or intention of
causing it.
Paragraph 4. Accident Without Fault or
Intention of Causing it If at the very beginning, the offender was
negligent, you do not apply Article 275,
Any person who, while performing a lawful act paragraph 2. Instead, it will be Article 365 on
with due care, causes an injury by mere criminal negligence. Notice that in the last
accident without fault or intention of causing it. paragraph of Article 365, in the case of the so-
called hit and run drivers who have injured
Accident - any happening beyond the control of somebody and would abandon the victim of the
a person the consequence of which are not accident, the penalty is qualified to a higher
foreseeable.(in civil: fortuitous event) degree. Here, under paragraph 4 of Article 12,
the infliction of the injury by mere accident does
53
not give rise to a criminal or civil liability, but speculative or remote fear. A threat of future
the person who caused the injury is duty bound injury is not enough.
to attend to the person who was injured. If he
would abandon him, it is in that abandonment ACTUS ME INVITO FACTUS NON EST MEUS
that the crime arises which is punished under ACTUS any act done by me against my will is
the second paragraph of Article 275. not my act.
Any person who acts under the Any person who fails to perform an act required
compulsion of an irresistible force. by law, when prevented by some lawful or
insuperable cause.
IRRESISTIBLE FORCE offender uses violence or
physical force to compel (to coerce) another LAWFUL CAUSE the law itself provides for an
person to commit a crime. excuse. E.g. omission to give help to person in
danger when it would also cause danger to
Elements: himself; a priest cannot be compelled to reveal
what has been confessed to him (privileged
1. That the compulsion is by means of communication)
physical force.
2. That the physical force must be INSUPERABLE CAUSE some motive, which has
irresistible. morally, legally or physically prevented a person
3. That the physical force must come from to do what the law commands; circumstances of
a third person. time place, occasion that cannot be overcome.
E.g. no available transportation officer not
Note: The irresistible force must produce such liable for arbitrary detention; mother who was
an effect upon the individual that, in spite of all overcome by severe dizziness and extreme
resistance, it reduces him to a mere instrument, debility, leaving child to die not liable for
and as such, incapable of committing a crime. infanticide. (Pp. vs. Bandian, 63 P 530)
He must act not only without a will but against
his will.
Elements:
1. An act is required by law to be done.
Paragraph 6. Uncontrollable Fear 2. Person fails to perform such act.
3. His failure to perform such act was due to
Any person who acts under the impulse some lawful or insuperable cause.
of an uncontrollable fear of an equal or greater
injury.
Examples:
UNCONTROLLABLE FEAR offender employs a. The municipal president detained the
intimidation or threat (that might cause injury to offended party for three days because to
the accused or to other person or injury against take him to the nearest justice of the peace
property)in compelling another to commit a required a journey for three days by boat as
crime. there was no other means of transportation.
(US vs. Vicentillo, 19 Phil. 118)
DURESS use of violence or physical force. The distance which required a journey
for three days was considered an
Elements: insuperable cause.
Note: Under the law, the person arrested
1. That the threat which caused the fear is must be delivered to the nearest judicial
of an evil greater than or at least equal authority at most within 18 hours (now 36
to, that which he is required to commit. hours, Art. 125 RPC); otherwise, the public
2. That it promises an evil of such gravity officer will be liable for arbitrary detention.
and imminence that the ordinary man
would have succumbed to it.(US vs b. A mother who at the time of childbirth was
Elicanal 35 Phil 209) overcome by severe dizziness and extreme
debility, and left the child in a thicket were
Note: A grave fear is not uncontrollable if there said child died, is not liable for infanticide
was an opportunity to verify ones fear. because it was physically impossible for her
to take home the child. (People vs. Bandian,
63 Phil. 530).
Duress to be a valid defense should be based on
real, imminent, or reasonable fear for ones life
or limb. It should not be inspired by fanciful,
54
The severe dizziness and extreme rape, the marriage of the offended party
debility of the woman constitute an shall extinguish the criminal action.
insuperable cause.
c. Examples which are recognized and
ABSOLUTORY CAUSES - that which has the developed by jurisprudence include:
effect of absolving the offender from criminal
liability, although not from civil liability. They are In case of SOMNAMBULISM or one who
those where the act committed is a crime but for acts while sleeping, the person involved
reasons of public policy and sentiment there is is definitely acting without freedom and
no penalty imposed. It has the same effect as without sufficient intelligence, because
exempting circumstances. he is asleep. He is moving like a robot,
unaware of what he is doing. So the
a. They are based on public policy. element of voluntariness which is
b. Examples of those in the RPC include: necessary in dolo and culpa is not
present.
Spontaneous Desistance During
Attempted Stage (Art 6, RPC) Mistake Of Fact
Under Article 332, in the case of theft, If the one who instigated is a private
swindling and malicious mischief, there person, not performing a public function,
is no criminal liability but only civil both he and the one induced are
liability, when the offender and the criminally liable.
offended party are related as spouse,
ascendant, descendant, brother, sister, Elements of Instigation
brother-in-law and sister-in-law if living 1. Act of persuasion, trickery or fraud
together or where in case the widowed carried out by law enforcers to
spouse and the property involved is that instigate the accused to commit the
of the deceased spouse, before such crime.
property had passed on to the 2. The origin of criminal design is in the
possession of third parties. mind of the law enforcer not the
innocent accused. Crime is a product
Under Article 344, in cases of seduction, of creative activity of the law
abduction, acts of lasciviousness, and enforcer.
55
Test to Determine Instigation prominent members of the society. The
1. Subjective Test the focus is on the law enforcers cannot themselves
accused whether there was penetrate the house because they do
predisposition to commit the crime. not belong to that circle so what they did
What is considered is his mental was to convince a prominent member of
state at the time of inducement. society to visit such house to find out
2. Objective Test the focus is on the what is really happening inside and that
conduct of the accused so many cars were congregating there.
The law enforcers told the undercover
Entrapment is not an absolutory cause. man that if he is offered a cigarette,
Entrapment does not exempt the then he should try it to find out whether
offender or mitigate his criminal liability. it is loaded with dangerous drugs or not.
But instigation absolves the offender This fellow went to the place and
from criminal liability because in mingled there. The time came when he
instigation, the offender simply acts as a was offered a stick of cigarette and he
tool of the law enforcers and, therefore, tried it to see if the cigarette would
he is acting without criminal intent affect him. Unfortunately, the raid was
because without the instigation, he conducted and he was among those
would not have done the criminal act prosecuted for violation of the
which he did upon instigation of the law Dangerous Drugs Act. Is he criminally
enforcers. liable? No. He was only there upon
instigation of the law enforcers. On his
Difference between instigation and own, he would not be there. The reason
entrapment he is there is because he cooperated
with the law enforcers. There is absence
1. In instigation, the criminal plan or of criminal intent.
design exists in the mind of the law
enforcer with whom the person If the law enforcer were able to enter the
instigated cooperated so it is said house and mingle there, nobody would
that the person instigated is acting offer him a cigarette because he is
only as a mere instrument or tool of unknown. When he saw somebody, he
the law enforcer in the performance pleaded to spare him a smoke so this
of his duties. On the other hand, in fellow handed to him the cigarette he
entrapment, a criminal design is was smoking and found out that it was
already in the mind of the person loaded with a dangerous drug. He
entrapped. It did not emanate from arrested the fellow. Defense was that he
the mind of the law enforcer would not give a cigarette if he was not
entrapping him. Entrapment involves asked. Is he criminally liable? Yes. This
only ways and means which are laid is a case of entrapment and not
down or resorted to facilitate the instigation. Even if the law enforcer did
apprehension of the culprit. not ask for a cigarette, the offender was
2. Instigation absolves the person already committing a crime. The law
instigated from criminal liability. This enforcer ascertained if it is a violation of
is based on the rule that a person the Dangerous Drugs Act. The means
cannot be a criminal if his mind is employed by the law enforcer did not
not criminal. A sound public policy make the accused commit a crime.
requires that the courts shall Entrapment is not an absolutory cause
condemn the practice of instigation because in entrapment, the offender is
by directing the acquittal of the already committing a crime.
accused. On the other hand,
entrapment is not an absolutory In another instance, a law enforcer
cause. It is not even mitigating. pretended to be a buyer of marijuana.
He approached a person suspected to be
Forms of Entrapment a pusher and prevailed upon this person
Sting Operation or buy-bust operation to sell him two kilos of dried marijuana
where for instance in drug cases, the law leaves and this fellow gave him and
enforcer pretends to be the buyer and delivered them. He apprehended the
later apprehend the seller of drugs. fellow. Defense is instigation, because
Illustrations: he would not have come out for the
marijuana leaves if the law enforcer had
An agent of the narcotics command had not instigated him. It is a case of
been tipped off that a certain house is entrapment because the fellow is
being used as an opium den by already committing the crime from the
56
mere fact that he is possessing If the one who made the instigation is a
marijuana. Even without selling, there is private person, he and the one induced
a crime committed by him: illegal are criminally liable for the crime
possession of dangerous drugs. How committed: the former as principal by
can one sell marijuana if he is not in induction and the latter as principal by
possession thereof. The law enforcer is direct participation.
only ascertaining if this fellow is selling
marijuana leaves, so this is entrapment,
not instigation. Selling is not necessary
to commit the crime, mere possession is
already a crime.
A fellow wants to make money. He was II. Modifying Circumstances - those which
approached by a law enforcer and was will either increase or decrease the penalty.
asked if he wanted to deliver a package They are called mitigating or aggravating
to a certain person. When that fellow circumstances.
was delivering the package, he was
apprehended. Is he criminally liable? Chapter 3
This is a case of instigation; he is not CIRCUMSTANCES WHICH MITIGATE
committing a crime. CRIMINAL LIABILITY
57
A kleptomaniac is one who cannot resist the
Ordinary Privileged temptation of stealing things which appeal
As to Can be offset Can never be to his desire. This is not exempting. One
nature by generic offset by who is a kleptomaniac and who would steal
aggravating aggravating objects of his desire is criminally liable. But
circumstances circumstances. he would be given the benefit of a mitigating
As to If not offset, Operates to circumstance analogous to paragraph 9 of
effect will operate to reduce the Article 13, that of suffering from an illness
reduce the penalty by 1 or which diminishes the exercise of his will
penalty to the 2 degrees than power without, however, depriving him of
minimum that provided the consciousness of his act. So this is an
period, by law for the extenuating circumstance. The effect is to
provided the crime. mitigate the criminal liability.
penalty is
divisible.
As to those those Paragraph 1. Incomplete Justifying or
Kinds enumerated mentioned in Exempting Circumstances
(sources) in subsections articles 68, 69, Those mentioned in the preceding chapter,
1-10 of Article 64. when all the requisites necessary to justify the
13. act or to exempt from criminal liability in the
respective cases are not attendant.
3. Special Extenuating those which can Note: This applies when some elements
be found in some other provisions which also necessary to justify the act or to exempt the
have the same effect of reducing the actor are not attendant.
penalty. It can be ordinary mitigating. They But in the case of incomplete self-defense,
are called Special Mitigating Circumstances. defense of relatives, and defense of a stranger,
unlawful aggression must be present, it being an
Examples: Abandonment in case of adultery; indispensable requisite.
Release of the victim within 3 days with the
purpose not attained in the felony of Slight Q: How, if at all, may incomplete self-defense
Illegal Detention. affect the criminal liability of the offender?
58
criminal liability are present, the offender shall d. Without fault or intention of causing it.
only be entitled to an ordinary mitigating (P/P vs Vitug 8 CAR {2s} 905, 909)
circumstance.
If the 2nd requisite and the first part of the 4 th
If a majority of the requisites needed to justify requisite are absent, the case will fall under
the act or exempt from criminal liability are article 365 which punishes a felony by
present, the offender shall be given the benefit negligence or imprudence. In effect, there is
of a privileged mitigating circumstance. The mitigating circumstance because the penalty
penalty shall be lowered by one or two degrees. is lower than that provided for intentional
When there are only two conditions to justify the felony.
act or to exempt from criminal liability, the
presence of one shall be regarded as the If the first requisite and the 2 nd part of the 4th
majority. requisite are absent, because the person
committed an unlawful act and had the
intention of causing the injury, it will be an
Circumstances of justification which may intentional felony. In this case, there is no
give place to mitigation mitigating.
1. Incomplete self-defense, defense of
relatives, and defense of stranger 3. Incomplete exempting circumstance of
irresistible force
If two requisites are present, it is considered
privileged mitigating circumstance. If there 4. Incomplete exempting circumstance of
is only one present, it is only ordinary uncontrollable fear if only one of the 2
mitigating. requisites is present, there is only a
Unlawful aggression must be present, it mitigating circumstance.
being an indispensable requisite. What is
absent is either one or both of the last two Note: Paragraphs 1 and 2 of Art 12 cannot
requisites. give place to mitigating because the mental
condition of a person is indivisible. BUT if the
2. Incomplete justifying circumstance of offender is suffering from some illness which
avoidance of greater evil or injury if any of would diminish the exercise of his will-power,
the last 2 requisites is absent. without however depriving him of
consciousness of his acts, such circumstance
3. Incomplete justifying circumstance of is considered mitigation under par 9 of Art
performance of a duty. 13.
59
Offender Over 15 BUT Below 18 is a That the offender had no intention to
privilege mitigating circumstance, Effects commit so grave a wrong as that committed.
1. The penalty will be reduced 1 degree lower
2. The imposition of penalty imprisonment is BASIS : intent is diminished
suspended
3. Subject the offender to diversion program of Note: It can be taken into account only when
the government the facts proven show that there is a notable
and evident disproportion between the means
Q: A 17 year old boy committed parricide. Will employed to execute the criminal act and its
he be given the benefit of Indeterminate consequences. (US vs Reyes 36 Phil 904) If the
Sentence Law? Then, the facts state, penalty for resulting felony could be expected from the
parricide is reclusion perpetua to death. means employed, this circumstance does not
avail.
A: Yes. He shall be given the benefit of the
Indeterminate Sentence Law. Although the This circumstance does not apply when the
penalty prescribed for the crime committed is crime results from criminal negligence or culpa.
reclusion perpetua, that is not the imposable When the crime is the product of reckless
penalty, since being 17 years old is a privilege imprudence or simple negligence, mitigating
mitigating circumstance. That privilege lowers circumstances does not apply. This is one of the
the penalty by one degree. The imposable three instances where the offender has
penalty, therefore, is reclusion temporal. The performed a felony different from that which he
Indeterminate Sentence Law applies to this and intended. Therefore, this is the product of
so the offender will be given its benefit. intentional felony, not a culpable one.
Offender Over 70, Only Ordinary
This usually applies to crimes against persons. It
Mitigating, Exceptions
is not applicable to crimes against property,
GENERAL RULE: If the offender is over 70, he is
chastity, and culpable felonies which does not
entitled only to mitigating circumstance.
produced material harm or injury upon person.
EXCEPTIONS:
In crimes against persons, if the victim does not
1. When he committed an offense punishable
die, the absence of the intent to kill reduces the
by death, that penalty shall not be imposed;
felony to mere physical injuries. It is not
AND
considered as mitigating. It is mitigating only
2. When death penalty is already imposed, it
when the victim dies.
shall be suspended and commuted.
Factors that may be considered are:
Criminal Responsibility as to Age/Periods
1. Weapon/Means used
of Human Life under RPC
2. Location, nature and number of wounds
inflicted
Age Criminal 3. Distance between the accused and the
Responsibility/Effect victim
15 years and Absolute irresponsibility, 4. Utterances of the accused
below exempting circumstance 5. Persistence of the attack
*as amended by RA 9344 6. Mindset of the offender at the time of the
Above 15 but Conditional Responsibility commission of crime not his intention at the
Below 18 Without Discernment not planning stage.
criminally liable
With Discernment criminally Paragraph 4. Provocation or Threat
liable
* as amended by RA 9344 That sufficient provocation or threat on
Minor Sentence is suspended the part of the offended party immediately
Deliquent preceded the act.
18 to 70 Full Responsibility
years Basis: Diminution of will power.
Above 70 Mitigated Responsibility, no
imposition of death penalty, Elements:
execution of death penalty may 1. That the provocation must be sufficient.
be suspended or commuted. 2. That it must originate from the offended
party.
3. That the provocation must be immediate
Paragraph 3. No Intention to Commit so to the act, i.e., to the commission of the
Grave a Wrong crime by the person who is provoked.
60
PROVOCATION any unjust or improper conduct slapped him several times in front of so
or act of the offended party, capable of exciting, many people, some of whom were ladies
inciting or irritating anyone. who were being courted by the accused, so
he was humiliated and embarrassed.
Provocation Vindication However, he cannot fight the bully at that
Made directly only to Grave offense (maybe time because the latter was much bigger
the person committing a crime or not but the and heavier. Accused had no choice but to
the felony. act is unjustifiable) go home. When he saw the bully again, this
may be also be against time, he was armed with a knife and he
the offenders relatives stabbed the bully to death. The evidence for
mentioned by law. the accused showed that when he went
(Broader) There must home, he was not able to sleep throughout
be immediate the night, thinking of the humiliation and
vindication of grave outrage done to him, despite the lapse of
offense. about 22 hours. The Supreme Court gave
Cause that brought Offended party must him the benefit of this mitigating
about the provocation have done a grave circumstance. The reason stated by the
need not be a grave offense to the offender Supreme Court for allowing the accused to
offense. or his relatives or be benefited by this mitigating circumstance
property. is that the effect of the humiliation and
Necessary that May be proximate. outrage emitted by the offended party as a
provocation or threat Time interval allowed. provocation upon the accused was still
immediately preceded present when he committed the crime and,
the act. No time therefore, the reason for paragraph 4 still
interval. applies. The accused was still acting under
a diminished self control because he was
Note: Threat should not be offensive and thinking of the humiliation he suffered in the
positively strong. Otherwise, it would be an hands of the offended party. The outrage
unlawful aggression, which may give rise to self- was so serious unless vindicated.
defense and no longer a mitigating
circumstance. In People v. Diokno, a Chinaman eloped with
a woman. Actually, it was almost three days
Provocation Immediate to the Act before accused was able to locate the house
where the Chinaman brought the woman.
If there is a break of time before the provocation Here, sufficient provocation was one of the
or threat and the consequent commission of the mitigating circumstances considered by the
crime, the law presupposes that during that Supreme Court in favor of the accused.
interval, whatever anger or diminished self-
control may have emerged from the offended NOTE: The common set-up given in a bar
party had already vanished or disappeared. The problem is that of provocation was given by
CRITERIA are: somebody. The person provoked cannot
1. TIME. If from the element of time, there is retaliate against him; thus, the person provoked
a material lapse of time stated in the retaliated on a younger brother or on an elder
problem that the effect of the threat or father. Although in fact, there is sufficient
provocation had prolonged and affected the provocation, it is not mitigating because the one
offender at the time he committed the who gives the provocation is not the one against
crime, then use the criterion based on the whom the crime was committed.
time element.
Q: A was walking in front of the house of B. B at
2. However, if there is that time element and that time was with his brother C. C told B that
at the same time, facts are given indicating sometime in the past, A boxed him, and because
that at the time the offender committed the he was small, he did not fight back. B
crime, he is still suffering from outrage of approached A and boxed him, but A cannot hit
the threat or provocation done to him, then back at B because B is bigger, so A boxed C. Can
he will still get the benefit of a mitigating A invoke sufficient provocation to mitigate
circumstance. criminal liability?
61
However, in one case, one of the mitigating
circumstances under paragraphs 4, 5 and 6
Paragraph 5. Vindication of Grave Offense
stands or arises from a set of facts, and another
mitigating circumstance arises from another set
That the act was committed in the immediate
of facts. Since they are predicated on different
vindication of a grave offense to the one
set of facts, they may be appreciated together,
committing the felony(delito), his spouse,
although they arose from one and the same
ascendants, descendants, legitimate, natural or
case. Hence, the prohibition against considering
adopted brothers or sisters, or relatives by
all these mitigating circumstances together and
affinity within the same degrees.
not as one applies only if they would be taken
on the basis of the same set of facts.
Elements:
1. That there be a grave offense done to
If the case involves a series of facts, then you
the one committing the felony, his spouse,
can predicate any one of these circumstances
ascendants, descendants, legitimate, natural
on one fact and the other on another fact and so
or adopted brothers or sisters, or relatives by
on.
affinity within the same degrees;
2. That the felony is committed in
Passion Must Be Legitimate
immediate vindication of such grave offense.
Passion or obfuscation may constitute a
Note: A lapse of time is allowed between
mitigating circumstance only when the same
the vindication and the doing of the grave
arose from lawful sentiments.
offense as long as the offender is still
suffering from mental agony brought about
As a rule, it cannot be based on common law
by the offense to him.
relationship because common law relationships
are illicit. However, consider whether passion or
The word immediate here is an erroneous
obfuscation is generated by common law
Spanish translation because the Spanish
relationship or by some other human
word is proxima and not
consideration.
immediatementa. Therefore, it is enough
that the offender committed the crime with
In a case where the relationship between the
the grave offense done to him, his spouse,
accused and the woman he was living with was
his ascendant or descendant or to his
one of common law, he came home and
brother or sister, whether natural, adopted
surprised his common law wife having sexual
or legitimate and that is the proximate
intercourse with a friend. This infuriated him. He
cause of the commission of the crime.
killed the friend and he claimed passion or
obfuscation. The trial court denied his claim
Paragraph 6. Passion or Obfuscation
because the relationship was a common law
one.
That of having acted upon an impulse so
powerful as naturally to have produced passion
On review, the accused was given the benefit of
or obfuscation.
the circumstances and the basis of considering
passion or obfuscation in favor of the accused
BASIS: Loss of reasoning and self-control,
was the act of the common law wife in
thereby diminishing the exercise of his will
committing adultery right from the conjugal
power.
bed. Whether or not they are married, any man
who discovers that infidelity was committed on
Elements;
the very bed provided by him to the woman
1. The accused acted upon an impulse;
would naturally be subjected to obfuscation.
2. The impulse must be so powerful that it
naturally produced passion or obfuscation.
When a married person surprised his better half
in the act of sexual intercourse with another, he
This stands on the premise or proposition that
gets the benefit of Article 247. However, that
the offender is suffering from a diminished self
requisite which in the first place, the offender
control because of the passion or obfuscation.
must have surprised his/her spouse actually
The same is true with the circumstances under
committing sexual intercourse should be
paragraphs 4 and 5. So, there is a ruling to the
present. If the surprising was done not in the
effect that if the offender is given the benefit of
actual act of sexual intercourse but before or
paragraph 4, he cannot be given the benefit of
after it, then Article 247 does not apply.
paragraph 5 or 6, or vice-versa. Only one of the
three mitigating circumstances should be given
Although this is the ruling, still, the accused will
in favor of the offender.
be given the benefit of sufficient provocation if
the intercourse was done in his dwelling. If this
62
act was done somewhere else and the accused 3. caused by lawful duty/right (arrested during
kills the paramour or the spouse, this may be marriage ceremony)
considered as mitigation of a grave offense to 4. caused by lawlessness
him or otherwise as a situation sufficient to 5. deep feelings out of religious bigot
create passion or obfuscation. Therefore, when 6. feelings that has been formented
a married man upon coming home, surprises his 7. motivated by fight.
wife who was nude and lying with another man
who was also nude, Article 247 does not apply. NOTE: Exercise of a right or fulfillment of duty is
If he kills them, vindication of a grave offense not proper source of passion of obfuscation. (P/P
will be mitigating in favor of the offender. vs Noynay 58 Phil 393)
Where the offender went to the municipal NOTES: Plea after arraignment and after trial
building not to own responsibility for the killing, has begun does not entitle accused to the
such fact is not tantamount to voluntary mitigating circumstance. The plea should be
surrender as a mitigating circumstance. made at the earliest possible opportunity.
Although he admitted his participation in the
killing, he tried to avoid responsibility by If accused pleaded not guilty during
claiming self-defense which however he was not arraignment, he is still entitled to the mitigating
able to prove. People v. Mindac, decided circumstance if he withdraws his plea of not
December 14, 1992. guilty before the prosecutor could present
evidence. (if the prior plea wants to be
When the accused said please accompany me withdrawn as when the accused wanted to
to post bail, it is held that there is no voluntary change his plea from guilty to not guilty, file
surrender in this case. motion to withdraw the previous plea.)
64
deaf and dumb is mitigating because the only
Even if accused pleaded guilty, he may be way is to use his force because he cannot strike
allowed to prove other mitigating circumstances. back.
The accused may ask that the aggravating If the offender is blind in one eye, as long as his
circumstance be removed before he shall plead means of action, defense or communication with
guilty. Once the info is changed wherein the others are not restricted, such circumstance is
aggravating circ. is removed, he can now plea to not mitigating. This circumstance must also
the charge in the new info have a bearing on the crime committed and
must depend on how the crime was committed.
Plea to lesser charge, when considered
mitigating. (plea bargaining) Paragraph 9. Illness of the Offender
Plea to a lesser charge is not a mitigating
circumstance because to be such, the plea Such illness of the offender as would diminish
of guilt must be to the offense charge. the exercise of the will power of the offender
Plea to the offense charged in the amended without however depriving him of the
info, lesser than that charged in the original consciousness of his acts.
info, is mitigating circumstance.
In a case where the accused pleaded guilty BASIS: diminution of intelligence and intent.
to lesser offense but was rejected by the
prosecution, but the prosecution was not Requisites:
able to prove the more serious offense, the
accused can only be convicted for the lesser 1. That the illness of the offender must
offense. His rejected offer to plead guilty for diminish the exercise of his will power.
lesser offense is mitigating circumstance. 2. That such illness should not deprive the
offender of the consciousness of his acts.
Paragraph 8. Physical Defect of Offender
NOTES: When the offender completely lost the
That the offender is deaf and dumb, exercise of will-power, it may be an exempting
blind, or otherwise suffering some physical circumstance.
defect which thus restricts his means of action,
defense or communication with his fellow It is said that this paragraph refers only to
beings. diseases of pathological state that trouble the
conscience or will.
BASIS: diminution of element of voluntariness.
Example: kleptomaniac, pyromaniac,
NOTES: Physical defect must restrict means of nymphomaniac, obsession for money, witchcraft
action, defense or communication with fellow
beings. Not mitigating: psychological paralysis,
psychopath- serial killers, abnormal sexual urges
This provision does not distinguish between
educated and uneducated deaf-mute or blind
persons. It considers them on equal footing. Paragraph 10. Similar and Analogous
Circumstances
The physical defect must relate to the offense And, finally, any other circumstances of a
committed. Thus, blindness does not mitigate similar nature and analogous to those above
estafa. mentioned.
67
Except when there is proof of conspiracy Paragraph 1. Taking Advantage of Public
in which case the act of one is deemed Position
to be the act of all, regardless of lack of
knowledge of the facts constituting the That advantage be taken by the offender
circumstance. (Art 62, par 4) of his public position.
Illustration:
Elements:
A person induced another to kill 1. Offender is a public officer;
somebody. That fellow killed the other 2. Public officer must use the influence,
guy and employed treachery. As far as prestige, or ascendancy of his office as a
the killing is concerned, the treachery means to realize his purposes or to commit
will qualify only the criminal liability of the crime.
the actual executioner. The fellow who
induced him becomes a co-principal and
therefore, he is liable for the same crime NOTES:
committed. However, let us say, the 1. This is now a special aggravating under R.A.
fellow was hired to kill the parent of the 7659 (Heinous Crime Law) amending Article
one who hired him. He killed a stranger 62. If the crime is Violation of the Child
and not the parent. What was committed Abuse Law, the penalty shall be in the
is different from what was agreed upon. maximum.
The fellow who hired him will not be 2. Applies only to an offender who is a public
liable for the crime he had done because officer who used the influence, prestige, or
that was not the crime he was hired to ascendancy of his office as a means to
commit. realize his purposes or to commit eh crime.
Did he abuse his office to commit the crime?
5. All aggravating must be alleged in the 3. Does not apply where being a public officer is
Information in such a manner as to inherent in the crime like those under the
including a statement of the facts which Title Crimes By Public Officers like
support their existence. A general malversation or falsification committed by
allegation is not sufficient. (S9, R110, public officers.
2000 Rules of Criminal Procedure) 4. Examples: (a) A Jail Warden who orders the
guard to beat up an inmate (b) A Police
6. If there are several aggravating officer who orders his subordinates to steal
circumstances present: or rob or maul (c) a Judge who detained his
debtor for contempt of Court for refusing to
a. If they are based on separate and obey the Judge Order for the debtor to
distinct facts, all will be appreciated. appear in the sala of the Judge
b. If they are based on the same
circumstance or set of facts, then the Paragraph 2. In Contempt of, or with Insult
Principle of Absorption applies to Public Authorities
such that only one will be
appreciated. In crimes against That the crime be committed in
persons for example, treachery is contempt of or with insult to the public
preferred and it will absorb the other authorities.
circumstances relating to the mode
of the commission, but it will not Elements:
absorb the circumstance that the
crime was committed in 1. the public authority is engaged in the
consideration of a price, promise or discharge of his duties;
reward. 2. he is not the person against whom the
c. In case of qualifying circumstances, crime is committed;
those which are not absorbed will be 3. the offender knows of the identity of the
considered as ordinary aggravating. public authority; and
Besides, one will be considered as 4. his presence has not prevented the
qualifying circumstance and the offender from committing the criminal
other will be considered as generic act.
aggravating circumstance.
PUBLIC AUTHORITIES - refer to persons in
authorities and not to their agents.
Article 14. AGGRAVATING CIRCUMSTANCES
68
PERSON IN AUTHORITY person who is directly 7610 but in cases where the victim of
vested with jurisdiction and has the power to death is a child below 12 years, the
govern and execute the laws. penalty shall be in the maximum, or
one degree higher in cases of
Examples: Governor, Mayor, Punong Brgy., qualified seduction, acts of
Councilors, Government Agents, Chief of Police lasciviousness with the consent of
(in places where they are allowed to prosecute the minor, corruption of minors and
in the absence of a public prosecutor) white slave trade.
AGENT subordinate public officer charged with c). Rank the designation or title of
the maintenance of public order and protection distinction used to fixed the relative
and security of life and property. position of the offended party reference to
others. There must be difference in the
Example: barrio vice lieutenant, barrio social condition of the offender and the
councilman offended party.
69
manner of commission of the crime, while v). When the victim was taken from inside
the former pertains to the relationship of the the dwelling and then brought outside
victim. where the crime was committed on his
person.
Rules regarding par 2
1. Dwelling - refers to any structure habitually 5. This is not present when :
used by a person as his place of rest, i). The victim gave sufficient provocation
comfort, privacy and peace of mind. It may (there must exist a close relation
be man-made or a natural habitat, as a cave between the provocation made by the
used as residence. What is emphasized is victim and the commission of the crime
not the appearance but the purpose or use by the accused.
thereof. ii). The accused is also an occupant of the
same dwelling
a) This includes the basic structure and the Except: In case of adultery in the
dependencies which are either (i) those conjugal dwelling. HOWEVER, if the
so continued with it as to be considered paramour also dwells in the conjugal
integral parts thereof such as the roof, dwelling, the applicable aggravating
stairways, balcony or (ii) any structure circumstance is abuse of confidence.
attached to the main structure with a
connecting door. Example: store, garage, iii). Victim is not a dweller of the house.
restaurant, internet caf
2. Dwelling does not mean the permanent iv). Dwelling is inherent in the crime as in
residence or domicile of the offended party a. robbery with force upon things
or that he must be the owner thereof. He
must, however, be actually living or dwelling However, it is aggravating in robbery
therein even for a temporary duration or with violence against or intimidation
purpose. of persons because this class of
robbery can be committed without
3. The victim may be the owner, the lessee, a the necessity of trespassing the
boarder, a stay-in employee, or a temporary sanctity of the offended partys
visitor. house.
70
Paragraph 4 With Abuse of Confidence or 2. the offender abused that trust by
Obvious Ungratefulness committing a crime against the offended
party; and
That the act be committed with abuse of 3. the act be committed with obvious
confidence or obvious ungratefulness. ungratefulness..
Requisites of Obvious Ungratefulness Except for the third, the other places mentioned
1. the offended party has trusted the offender; are aggravating per se even if no official duties
or religious worship are being conducted.
71
When should these Circumstances
Cemeteries are not considered as place Aggravating
dedicated to worship of God. 1. When it facilitated the commission of the
crime; or
Requisites Regarding Public Authorities 2. When especially sought for by the offender
1. crime occurred in the public office to insure the commission of the crime or for
2. public duties are actually performing their the purpose of impunity; or
public duties. 3. When the offender took advantage thereof
for the purpose of impunity.
Par 5. Where Par 2.
public Contempt or NOCTURNITY OR NIGHTTIME - refers to the
authorities insult to period of darkness between sunset and sunrise
are engaged public or from dawn to dusk.
in the authorities
discharge of NOTES:
their duties a). The crime must be wholly committed at night
Public Same and not when it started at daytime and
authorities in ended at night time or that it began at night
the time and was consummated at daytime. In
performance short it began and ended at night.
of their official b). The emphasis is the absence of day light
duties hence night time is not appreciated if the
Place where In their office. Outside of place is well lighted or illuminated, or it
pubic duty is their office. takes place inside a public establishment,
performed even if dimly lighted as in night clubs.
c). That the crime was at night time should not
The offended May or may Public
party not be the authority be an accidental fact.
public should not be
authority. the offended d). The two test to determine its presence :
(i) The Subjective Test: that the accused
party.
purposely sought the night. He could
have committed the crime during day
time but he waited for night time.
Requisites (Place Dedicated to Religious
(ii) The Objective Test: the accused took
Worship)
advantage of it in order to (a) facilitate
1. the crime occurred in the place dedicated to
the commission of the crime (b) hide his
worship of God regardless of religion;
identity (c) prevent aid from coming to
2. The offender must have decided to commit
the victim (d) minimize the defenses of
the crime when he entered the place of
the victim or (e) facilitate his escape.
worship.
e). GENERAL RULE: Nighttime is absorbed in
treachery.
Paragraph 6 (a) Nocturnity (b) Uninhabited
place and (c) band EXCEPTION: Where both the treacherous
mode of attack and nocturnity were
That the crime be committed in the nighttime or deliberately decided upon in the same case,
in an uninhabited place, or by a band, whenever they can be considered separately if such
such circumstances may facilitate the circumstances have different factual bases.
commission of the offense. Thus:
In People vs. Berdida, et. al. (June 30,
Whenever more than three armed malefactors 1966), nighttime was considered since it
shall have acted together in the commission of was purposely sought, and treachery
an offense, it shall be deemed to have been was further appreciated because the
committed by a band. victims hands and arms were tied
together before he was beaten up by the
NOTES: If all these aggravating circumstances accused.
concur in the commission of the crime, all will In People vs. Ong, et. al. (Jan. 30, 1975),
constitute one aggravating circumstance. there was treachery as the victim was
stabbed while lying face up and
HOWEVER, if their element are distinctly defenseless, and nighttime was
palpable and can subsist independently, they considered upon proof that it facilitated
shall be considered independently. the commission of the offense and was
taken advantage of by the accused.
72
That the crime be committed on the occasion of
UNINHABITED PLACE OR SOLITUDE a conflagration, shipwreck, earthquake,
(DESPOBLADOR) - One where there are no epidemic, or other calamity or misfortune.
houses at all; a place at a considerable distance
from town, or where the houses are scattered at Elements:
a great distance from each other. Thus help to 1. The crime was committed when there was
the victims difficult to come by. Examples: calamity or misfortune;
athletic bowl; the road from the gate of Club 2. The offender took advantage of the state of
John Hay to EPZA; Kennon Road; long stretches confusion or chaotic condition from such
of highway; the farms in the provinces. misfortune.
73
1) where the offender and the offended said crimes a third time or oftener. This is an
party are equally armed. extraordinary aggravating circumstance and
2) if the person committing the crime and is covered under Article 62 par 5. An
the armed men are in conspiracy. additional penalty is added o the penalty for
3) When the others were only casually the crime committed.
present and the offender did not avail 4. QUASI-RECIDIVISM where a person commits
himself of any of their aid or when he did not a felony before beginning to serve or while
knowingly count upon their assistance in the serving sentence on a previous conviction
commission of the crime. for a felony. This is a special aggravating in
that it cannot be offset by mitigating
Par 6. By a Par 8. With circumstances and is covered under Article
band the Aid of 160.
Armed men
As to their Requires more At least two RECIDIVIST - Is one who, at the time of his trial
number than 3 armed for one crime, shall have been previously
malefactors convicted by final judgment of another crime
i.e. at least embraced in the same Title of the RPC.
four
As to their More than 3 This is present Requisites:
action malefactors even if one of 1. Offender is on trial for an offense;
shall have the offenders 2. He was previously convicted by final
acted together merely relied judgment of another crime;
in the on their aid, 3. Both the first and second offenses are
commission of for actual aid embraced in the same title of the Code;
the offense. is not 4. Offender is convicted of the new offense.
Thus, band necessary.
members are Armed men Meaning of at the time of his trial for one
all principals. are mere crime
accomplices.
It is employed in its general sense, including the
Paragraph 9. That the accused is a rendering of the judgment. It is meant to include
recidivist. everything that is done in the course of the trial,
A recidivist is one who, at the time of his trial for from arraignment until sentence is announce in
one crime, shall have been previously convicted open court.
by final judgment of another crime embraced in
the same title of this Code. What is controlling is at the time of trial not at
the time of the commission of the crime.
74
d. Amnesty extinguishes the penalty and its
effects. HOWEVER, pardon does not
obliterate the fact that the accused was Habitual Recidivis Reiteraci Quasi-
recidivist. Thus, even if the accused was delinque m on/ recidivi
granted pardon in the first offense but he ncy Habituali sm
commits another felony embraced in the ty
same title of the RPC, the first conviction is Found It is Offender One
still counted to make him a recidivist. This is guilty a enough served prior
true even pardon is absolute, because third that a sentence convicti
pardon only excuses the service of the time or final for the 1st on
penalty, but not the conviction. oftener. judgment offense.
e. The purpose/reason is to prevent has been
specialization of crimes. The implication is rendered
that the offender is specializing on such kind in the 1st
of crime and the law wants to prevent any offense.
specialization. Serious/l An Not Any
f. Being an ordinary aggravating, recidivism ess offense embraced offense
affects only the periods of a penalty, EXCEPT serious embraced in the
in prostitution and vagrancy (Art 202) and physical in the same
gambling (PD 1602) wherein recidivism injuries, same Title title. One
increases the penalties by degrees. No other Robbery, of the offense
generic aggravating produces this effect. theft, RPC. which the
g. In recidivism, it is sufficient that the estafa, or law
succeeding offense be committed after the falsificati attaches
commission of the preceding offense on an equal
PROVIDED that at the time of his trial for the or greater
second offense, the accused had already penalty or
been convicted of the first offense. two
h. If both offenses were committed on the offenses
same date, they shall be considered as only to which
one, hence, they cannot be separately the law
counted in order to constitute recidivism. attaches a
Also, judgments of convictions handed down lighter
on the same day shall be considered as only penalty.
one conviction. This is because the RPC Extraordi Generic Generic Special
requires that to be considered separate nary aggravati aggravati aggrava
convictions, at the time of trial for one crime aggravati ng ng ting.
the accused shall have been previously ng.
convicted by final judgment of the other. Impositio
n of
additiona
l penalty.
Paragraph 10. Habituality or reiteracion 10 years Imprescrip Imprescrip 2nd
prescripti tible tible felony
That the offender has been previously punished ve period must be
for an offense to which the law attaches an committ
equal or greater penalty or for two or more ed after
crimes to which it attaches a lighter penalty. convicti
on by
Requisites: final
1. The accused is on trial for an offense; judgmen
2. He previously served sentence for another t of the
offense to which the law attaches an equal 1st but
or greater penalty or for 2 or more crimes to before
which attaches a lighter penalty than that sentenc
for the new offense; e begins
3. He is convicted of the new offense. or while
serving
NOTES: sentenc
a. The prior offenses may be violations of e.
special laws
b. Its appreciation is discretionary with the (NOTE: THE CIRCUMSTANCES COVERED
court UNDER PARAGRAPHS 11 TO 18 ARE
75
LIKEWISE THE QUALIFYING offender as a means to accomplish a
CIRCUMSTANCES OF MURDER UNDER criminal purpose.
ARTICLE 148) 2. These artifices used involve great waste,
destruction and ruin.
Parragraph 11. In consideration of a Price, 3. These may be (a) inherent in the crime as in
Promise or Reward Crimes Involving Destruction under Article
332 or (b) they constitute the crimes in
That the crime be committed in consideration of themselves, as in Arson.
a price, reward, or promise. 4. In cases where both burning and death
occurs, in order to determine what
Requisites: crime/crimes was/were perpetrated- whether
1. There are at least 2 principals arson, murder, or arson and
a. Principal by Inducement (one who offers) homicide/murder, it is de rigueur to
b. Principal by Direct Participation (accepts) ascertain the main objective of the
2. The PPR should be previous to and in malefactor, thus:
consideration of the criminal act. a). If the main objective is the burning of
the building or edifice, ( or enclosure for
Whose Liability is Aggravated that matter) but death results by reason
1. If alleged as a general circumstance only or on the occasion of arson, the crime is
the liability of the receiver is affected. simply arson, and the resulting homicide
2. If alleged as a qualifying circumstance both is absorbed.
the liability of the giver and receiver are b). if the main objective is to kill a particular
affected. person who may be in a building or
edifice ( or enclosure) when fire is
NOTES: resorted to as a means to accomplish
a. This circumstance affects both principals. such goal, the use of fire becomes a
b. This deals with the motive. It involves the qualifying aggravating circumstance and
giver of the price, promise or reward known the crime is murder only even if a
as the Principal by Inducement and the actor property is burned.
as Principal by Direct Participation. c). if the objective is to kill particular person,
c. In consideration means the PPR was the and in fact the offender has already done
sole reason for the commission of the crime. so, but fire is resorted as a means to
Had it not been for the PPR the accused cover up the killing, then there are two
would not have committed the crime. The separate and distinct crimes committed-
actor should not have his own reasons for homicide/murder and arson. ( PP. vs.
committing the crime. Thus motive is Malngan 503 SCRA 294, Sept. 26, 2006)
essential. d) If a person is killed, then the corpse is
d. The PPR may be in any form: money, burned, the burning constitutes the
chattels, material services. It need not be qualifying circumstance of scoffing or
actually delivered, it being sufficient that the ignominy and the crime would be murder
inducement is accepted. The recipient may d) If the body of the dead is placed in an
be the actor himself or a person closely enclosure as a car or a house
associated with him such as: promise of a 5. When another aggravating already qualifies
promotion or employment of a family the crime, any of these circumstances shall
member. be considered as generic aggravating.
e. If the reward is given after the commission 6. Examples: opening the irrigation canal to
of the crime without previous promise as an flood the crops or to drown animals; placing
appreciation for the aid shown by the other a bomb under a bus; parricide/infanticide by
accused, it cannot be considered for the poison
purpose of increasing the penalty.
Par 12. by means of Par 7. on the
Paragraph 12. By Means of Inundation, inundation, fire, etc. occasion of
Fire, Poison, Explosion etc conflagration,
shipwreck, etc.
That the crime be committed by means of The crime is committed The crime is committed
inundation, fire, poison, explosion, stranding of a by means of any such on the occasion of
vessel or intentional damage thereto, derailment acts involving great calamity or misfortune.
of a locomotive, or by the use of any other waste or ruin.
artifice involving great waste and ruin.
Paragraph 13. Evident Premeditation
NOTES:
1. The circumstances under this paragraph will That the act be committed with the evident
only be considered aggravating if used by premeditation.
76
where there is entry into the premises of the
Note: (pre is prior, meditate is to think or to offended party; estafa through false
reflect) this means the commission of the crime pretenses where the offender employs
was the result of cool thought and reflection. insidious means which cannot happen
The accused carefully planned and deliberated accidentally.
on the crime. The commission is not the result of
a reflex action or an-on-the-spur of the moment h. Examples: Assassinations, ambuscades,
decision. assaults due to a desire for vengeance
77
where they are adopted for a different purpose of illness, physical defect ort diminished
in the commission of the crime. reasoning (e) skill of the accused in unarmed
combat or martial arts
Illustration:
Test for Abuse of Superior Strength
In Pp vs San Pedro, Jan 22, 1980, where the The relative strength of the offender and his
accused pretended to hire the driver in order to victim and whether or not he took advantage of
get his car, it was held there was craft directed his greater strength.
to the theft of the vehicle, separate from the
means subsequently used to treacherously to kill NO Advantage of Superior Strength in the
the defenseless driver. Following
1. One who attacks with passion and
In Pp. vs Masilang, July 11, 1986, there was also obfuscation does not take advantage of his
craft where after hitching a ride, the accused superior strength.
requested the driver to take them to a place to 2. When a quarrel arose unexpectedly and the
visit somebody, when in fact they had already fatal blow was struck at a time when the
planned to kill the driver. aggressor and his victim were engaged
against each other as man to man.
CRAFT FRAUD
The Act of the accused When there is a direct By a Band Abuse of Superior
done in order not to inducement by Strength
arouse the suspicion of insidious words or The element of band is The gravamen of this
the victim constitutes machinations, fraud is appreciated when the circumstance is the
craft. present. offense is committed taking advantage by
by more than 3 the culprits of their
malefactors regardless collective strength to
DISGUISE (DISFRAZ) resorting to any device of the comparative overpower their
to enable the offender to conceal his identity strength of the relatively weaker
and to escape liability. victim/s. victim/s.
Hence, what is taken
Notes: The test is whether the device or into account here is not
contrivance resorted to by the offender was the number of the
intended to or make identification more difficult. aggressors and the fact
that they are armed,
If he is recognized or identified, the disguise will but their relative
not be considered aggravating. physical strength vis-a-
vis the offended party.
Disguise includes all attempt to hide ones
identity in the commission of a crime. It is not Note: Abuse of Superior Strength absorbs
limited to wearing mask, moustaches, false cuadrilla/band.
glasses but also hiding ones identity in crimes
of libel as hiding under the name concerned Abuse of superior strength is inherent in the
citizen or the use of assumed name; or crime of parricide where the husband kills the
muffling ones voice. wife. It is generally accepted that the husband is
physically stronger than the wife.
78
2. One who, while fighting with another, absorbed they are appreciated as ordinary
suddenly cast sand or dirt upon the latters aggravating
eyes and then wounds or kills him. b. Applicable only to crimes against persons.
3. When the offender who had the intention to c. Means, methods or forms need not insure
kill the victim, made the deceased the accomplishment of the commission of
intoxicated, thereby materially weakening the crime.
the latters resisting power. d. Applies even if the crime against persons is
4. Covering the face of the victim with a sack; complexed with other crimes, such as direct
pulling down his pants; putting a sleeping assault.
pill to get him drowsy. e. Killing a child is always treacherous.
f. Rule as to Frontal Attacks:
This circumstance is applicable only to crimes GENERALLY: there is no treachery as the
against persons, and sometimes against person victim cannot be said to be unaware as he is
and property, such as robbery with physical face-to-face with his attacker.
injuries or homicide. EXCEPTIONS:
i. if the attack was so sudden, deliberate
and unexpected and consciously
Paragraph 16. Treachery adopted or
ii. if the victim was forced into a position
That the act be committed with treachery where he is defenseless, as in the
(alevosia). Teehankee case
g. In case the attack was preceded by a
TREACHERY (alevosia) is present when the quarrel: there is no treachery
offender commits any of the crimes against the h. In case of Attack from Behind: Generally
person, employing means, methods or forms in considered as treacherous if this mode was
the execution thereof which tend directly and consciously adopted.
specially to insure its execution, without risk to i. Other situations where victim is said to be
himself arising from the defense which the defenseless: a) where he was preoccupied:
offended party might make. as when he was busy studying or eating or
watching an ongoing activity or was
Elements: answering the call of nature, or was working;
b) victim was asleep or resting; c) body was
1. the malefactors employ such means, found with hands tied.
methods or manner of execution that j. In case of several accused, treachery affects
ensures his or her safety from the only those who had prior knowledge of or
defensive or retaliatory act of the victim were aware of it, that is, in case of
for the latter is not in a position to conspiracy.
defend himself at the time of the attack;
2. such means, method or form of When Must Treachery be Present
execution is consciously or deliberately 1. When the Aggression is Continuous it must
adopted by the accused (not an on-the be present in the beginning of the assault.
spur-of-the-moment decision).
2. When the Aggression is NOT Continuous it
The attack comes without warning and in a is sufficient that it was present at the
swift, deliberate and unexpected manner, moment the fatal blow was given.
affording the hapless, unarmed, and
unsuspecting victim no chance to resist or Note: Rule in case of a continuous attack or
escape. if there was a break in the attack. Applies to
situations where, at the time of the infliction
Test: It is not only the relative position of the of the wound, the victim was defenseless a).
parties but, more specifically, whether or not the There is no treachery if there was no
victim was forewarned or afforded the treachery at the inception of the attack b)
opportunity to make a defense or to ward off the Even if there be no treachery at the
attack. inception of the attack but there was a break
in the attack, then treachery is to be
NOTES: appreciated
a. This is the qualifying circumstance of murder
which is preferred over the others and it Treachery Shall be Considered Even if:
usually absorbs the other circumstances 1. The victim was not predetermined BUT there
which have relation to the means or method was a generic intent to treacherously kill any
of attack such as nighttime, uninhabited 1st 2 persons belonging to a class. (same rule
place, use of poison or explosion, fire or for evident premeditation)
evident premeditation. If they are not
79
2. There was aberratio ictus (rule is different for a. This is appreciated in crimes against
evident premeditation) persons, chastity, honor, coercion, unjust
3. There was error in personae (rule is different vexation.
for evident premeditation) b. Examples: kissing a girl in public; hanging
the victim in a tree; throwing the body in a
REASON FOR THE RULE: When there is urinal or garbage pit; removing the pants;
treachery, it is impossible for either the boxing the priest who is saying mass;
intended or the actual victim to defend committing rape dog style.
himself against the aggression. c. This is the only aggravating which may arise
after the commission of the crime; as
What Circumstances Absorbed by chopping off the arms and legs or sex organ
Treachery of the victim after killing him.
1. Craft
2. Abuse of Superior Strength Ignominy Cruelty
3. Employing means to weaken the defense Shocks moral Physical
4. Band conscience
5. Aimed of armed men Moral effect of a crime Pertains to the physical
6. Nighttime and it pertains to the suffering of the victim
Treachery cannot co-exist with passion and moral order, whether or so the victim has to be
obfuscation. not the victim is dead alive.
or alive
Treachery Abuse of Means Paragraph 18. Unlawful Entry
Superior Employed to
Strength Weaken the That the crime be committed after an unlawful
Defense entry.
Means, No means Means
methods, or employed. employed to There is an unlawful entry when an entrance is
forms Offender materially effected by a way not intended for the purpose.
employed to merely takes weaken the
make it advantage of resisting UNLAWFUL ENTRY when entrance is effected
difficult on the his superior power of the by a way not intended for a purpose. The
part of the strength. offended passage is other than the door.
offended party party.
to defend Reason for the Aggravation
himself.
One who acts, not respecting the walls erected
by men to guard their property and provide for
Paragraph 17. Ignominy their safety, shows a greater perversity, a
greater audacity, hence the law punishes him
That means be employed or circumstances with more severity.
brought about which add ignominy to the
natural effects of the act. NOTES:
a. Unlawful entry must be a means to effect
IGNOMINY is a circumstance pertaining to the entrance and not for escape.
moral order, which adds disgrace or obloquy to b. The entry must be to commit a crime and
the material injury caused by the crime. not just to violate the dwelling else the
unlawful entry becomes trespass .
Meaning Of Which Add Ignominy To The c. This is inherent in crimes of trespass to
Natural Effects Of The Act dwelling, robbery with force upon things.
It means adding mental torture or insult to the
injury. The means employed or the Paragraph 19. Breaking of a Wall, Roof,
circumstances brought about must tend to make Floor, Window
the effects of the crime more humiliating to
victim or to put the offended party to shame, or That as a means to the commission of a crime a
add to his moral suffering. Thus it is incorrect to wall, roof, floor, door, or window be broken.
appreciate ignominy where the victim was
already dead when his body was dismembered, NOTES:
for such act may not be considered to have a. These pertains to the wall, roof, floor of a
added to the victims moral suffering or dwelling and the breaking is for the purpose
humiliation. (People vs. Carmina, G.R. No. of gaining ENTRY in order to commit a crime
81404, January 28, 1991) inside. Else it is attempted trespass or
malicious mischief. If the wall, etc. is broken
NOTES:
80
in order to get out of the place, it is not Should be understood as referring to motorized
aggravating. vehicles or other efficient means of
b. It is not necessary that the offender should transportation similar to automobile or airplane.
have entered the building. Thus, if the NOTES:
offender broke the window to enable himself a) Must be used to commit, or to facilitate the
to reach a purse which he took while his commission of the crime
body was outside the building, the crime of b) If used to kill a person as by hitting running
theft was attended by this aggravating. over him, this may qualify the killing to
c. It is inherent in Robbery With Force Upon murder
Things c). Examples: (i) transporting the victim on
board a car as in abduction or kidnapping (ii)
Par 19 Par 18 widespread robbery using a vehicle to go
It involves the Presupposes that there around the neighborhood.
breaking is no breaking.
(rompimiento) of the
enumerated parts of Paragraph 21 By Inflicting Another Wrong
the house. Not Necessary to the Commission (Cruelty)
Breaking In is Lawful in the following That the wrong done in the commission of the
1. An officer, in order to make an arrest, may crime be deliberately augmented by causing
break open a door or window of any building other wrong not necessary for its commission.
in which the person to be arrested is or is
reasonably believed to be. CRUELTY - making the victim suffer slowly and
2. An officer, if refused admittance, may break deliberately. It is synonymous to torture or slow
open a door or window to execute the search death or acts of sadism. It is usually done by
warrant or liberate himself. inflicting wounds on the victim while the victim
3. Replevin, S4, Rule 60 of the Rules of Court. is still alive and at intervals of time to cause
maximum pain. Or that the method of killing
involves lingering pain or suffering. Example:
Paragraph 20. (a) With the Aid of a Minor death by skinning him alive, or by slow fire.
and (b) Use of a Motor Vehicle (Memory Aid: Pinikpikan)
81
party and they are living together. (Art. 332)
Chapter 5 This is an absolutory cause.
ALTERNATIVE CIRCUMSTNACES
Relationship is Qualifying when:
Article 15. Alternative Circumstances a) Qualified seduction: brother (Art. 337)
ALTERNATIVE CIRCUMSTANCES - are those which b) Rape (Art. 335): when the victim is under
must be taken into consideration as aggravating 18 years of age and the offender is a
or mitigating according to the nature and effects parent, ascendant, step-parent,
of the crime, and the other conditions attending guardian, relative by consanguinity or
its commission. affinity within the third civil degree, or
the common-law-spouse of the parent of
They are: the victim.
1) relationship
2) intoxication Relationship is Mitigating
3) degree of instruction and education of 1. As a rule in crimes against property (as in
the offender. case by a mother- in- law who stole from his
son-in law; robbery, usurpation, fraudulent
RELATIONSHIP - it shall be taken when the insolvency, and arson)
offended party is the: 2. In less grave or light offenses where the
a) spouse victim is a relative of a lower degree
b) ascendant
c) descendant Relationship is Aggravating
d) legitimate, natural or adopted brother or a. In crimes against person
sister, or i. It is aggravating where the offended
e) relative by affinity in the same degree of party is a relative of higher degree than
the offender. the offender or when the offender and
the offended party are relatives of the
Note: Under Article 15, relatives by same level.
consanguinity within the 4th civil degree are
not included. Also not included is the ii. BUT when it comes to physical injuries
relationship of uncle and neice. 1. It is aggravating when serious
physical injuries even if the offended
Other Relatives Included (By Analogy) party is descendant of the offender. It
1. The relationship of step parents and step is also aggravating if the offended
children. party is a relative of higher degree of
REASON: It is the duty of stepparents to the offender.
bestow upon there stepchildren a 2. It is mitigating when less serious or
mothers/fathers affection, care and slight physical injuries, if the
protection. offended party is a relative of a lower
2. The relationship of adopted parent and degree.
adopted child.
iii. In the crime of Homicide or Murder,
relationship is aggravating even if the
Effect of Relationship In general: victim is a relative of lower degree.
i). As basis for a justifying circumstance
ii). As an absolutory cause under Articles 20, iv. In Rape, relationship is aggravating when
247 and 332 a stepfather raped his stepdaughter or a
iii). As an alternative circumstance under Article father raped her daughter.
15
b. In crimes against chastity, relationship is
Relationship is Exempting when: always aggravating regardless of whether
a) accessory is related to the principal (Art. 20) the offender is a relative of higher or lower
b) a spouse does not incur criminal liability for degree of the offended party.
a crime of less serious physical injuries or c. In crimes against honor
serious physical injuries if it was inflicted d. Where the offense is a grave felony
after having surprised the offended spouse e. If the offense is a less grave or light felony, it
and the paramour actually in the act of is aggravating if the victim is a relative of an
having sex. (Art. 247) equal or higher degree
c) in the crimes of theft, malicious mischief and
estafa, if the offender is the spouse,
ascendant , or descendant or if the offender
is a sister or brother-in-law of the offended
82
INTOXICATION - is ipso facto mitigating, thus if a. Some are naturally intelligent and mentally
the prosecution wants to deny the offender the alert though illiterate while some literates
benefit of this mitigating, they should prove that are densely ignorant
it is HABITUAL and INTENTIONAL. b. Note that the rule does not apply to persons
15 years of age or below even if naturally
Presupposes that when the accused committed intelligent or gifted in secondary school
the crime, he had taken in alcohol in such because they are presumed to be incapable
quantity as to have affected his mental faculties, of forming criminal intent.
blurred his reasoning and diminished his self
control. When it is Mitigating
83
provides for the same graduated penalties AS A RULE only natural persons who are
as those of RPC. alive can be held criminally liable.
f. Accessories are not liable for light felonies. For what acts may a juridical person be
REASON: In the commission of light felonies, held liable?
the social wrong as well as the individual
prejudice is so small that penal sanction is 1. For acts committed by its responsible
unnecessary. officers, policy makers or those having
charge of the management and
operation of the entity.
PRINCIPLES OF CRIMINAL LIABILITY 2. A corporation also incurs criminal liability
for the acts of its employees or agents if
a. To be guilty of a crime, one must commit the (i) the employee or agent committed the
crime himself (principal) or if committed by offense while acting within the scope of
another, he must, in some manner, his employment and (ii) the offense was
participate either in its commission committed with at least an intent to
( accomplice) or in the fruits thereof benefit the employer ( PP. vs. Chowderry,
( accessory). 235 SCRA 572)
b. A person cannot escape punishment when Who are liable if the violation was
he participates in the commission of a crime made by a juridical entity?
on the ground that he simply acted as an
agent or representative of a party. Per Ching vs. Secretary of Justice ( Feb. 06,
2006) the principles maybe summarized as
c. Criminally liability is purely personal and is follows
limited to the acts/omissions of an accused
and not for the acts or omissions of third 1. The juridical entity itself where the
persons ( res inter alios acta rule) .Except penalty is one which can properly be
when there exists a conspiracy between two imposed on it, such as fine or revocation
or more persons where the act of one of license
becomes the act of all resulting to a joint
criminal responsibility or collective liability. 2. The officers, employees or agents who
actually executed the prohibited act or
d. There are 2 Parties in all crimes incurred the omission
ACTIVE SUBJECT (THE CRIMINAL) those Example: LLamado vs. CA ( 270 SCRA
enumerated under Article 16. 423) it was held that even if the officer of
the corporation had no involvement in
the negotiation of the transaction for
84
which he, as treasurer of the corporation,
issued a postdated check which PASSIVE SUBJECT (THE INJURED PARTY)
bounced, he is liable for Violation of B.P. is the holder of the injured right: the man,
22. the juristic person, the group, and the State.
3. The person specifically mentioned by law GENERAL RULE: Corpses and animals cannot
violated to be held liable. be passive subjects because they have no
rights that may be injured.
Examples:
a). Section 8 of R.A. 8042 (Migrant and EXCEPTION: Under A253, RPC, the crime of
Overseas Filipino Act of l995) defamation may be committed if the
provides: In cases of juridical imputation tends to blacken the memory of
persons the offices having control, one who is dead.
management, and direction of their
business shall be held liable
b). P.D. 1612 (Anti Gambling Law) Article 17. PRINCIPALS
provides that the President shall be
liable if gambling is carried on by a THREE TYPES OF PRINCIPALS
juridical entity 1) those who take a direct part in the
c). In case of libel under Art. 360 the execution of the act;
persons liable shall be the editor of a 2) those who directly force or induce others
book or pamphlet, business manager to commit it;
of a daily newspaper, magazine or 3) those who cooperate in the commission
serial publication of the offense by another act without which
d). when the President of the corporation it would not have been accomplished.
fails to remit contributions to PAG-
IBIG NOTE: There are three kinds of principals
depending on the nature of their
4. a). An employee or officer even if not participation in the commission of the crime.
among those enumerated by the law However, irrespective of what type of
violated, if, with knowledge of the illegal principal they belong, their penalty will be
act/business, he consciously contributes the same.
his efforts to its conduct or promotion
( PP. vs. Chowderry)
Par 1. PRINCIPAL BY DIRECT
b). The culpability of the employee hinge PARTICIPATION (PDP)
on his knowledge of the offense and his
active participation on its commission. PRINCIPAL BY DIRECT PARTICIPATION (PDP)
Where it is shown that the employee was -refers to those who actually and directly take
merely acting under the direction of his part in the execution of the act. In all crimes
superiors and was unaware that his acts there must always be those who actually
constituted a crime, he may not be held perform the act which brings about the crime.
criminally liable for an act done for and They may be only one person or more.
in behalf of his employer ( PP. vs. Corpuz, Whenever there are two or more involved in a
October 1, 2003) crime, it becomes necessary to find out those
who actually executed the act so that all may be
5. Those who, by virtue of their managerial held equally liable.
position or similar relations to the
corporation could be deemed Requisites:
responsible for its commission, if by 1. That they participated in the criminal
virtue of their relations to the resolution; and
corporation, they had the power to 2. That they carried out their plan and
prevent the act (crime by omission) personally took part in its execution by acts
which directly tended to the same end.
Where the act is a violation by a
juridical entity, the officers or employee NOTE: If The 2nd element is absent, those who
cannot put up the following defenses: did not participate in the commission of the of
1. It is no defense that he did not benefit the acts of execution cannot be held criminally
from the act liable, UNLESS the crime agreed to be
2. The accused cannot hide behind the committed is treason, sedition, coup detat, or
principle of separate corporate rebellion.
personality of the juridical entity in order
to escape liability
85
Meaning of personally took part in its b). When he orchestrates or directs the
execution actions of the others from some
1. That PDP must be at the scene of the crime, other place
personally taking part in its execution. c). His participation or contribution was
2. Under conspiracy, although he was not already accomplished prior to the
present in the scene of the crime, he is actual carrying out of the crime
equally liable as PDP. conspired such: his role was to
conduct surveillance or to obtain
To hold two or more persons as principals by data or information about the place
direct participation, it must be shown that there or the victims; to purchase the tools
exists a conspiracy between and among them. or weapons, or the get away vehicle,
This is not the conspiracy punished as a crime or to find a safe house
but the conspiracy as a mode or manner of d). His role/participation is to be
incurring criminally or that legal relationship executed simultaneously but
whereby, in the eyes of the law, it may be said elsewhere, such as by creating a
that the act of any one is the act of all. diversion or in setting up a blocking
force (e.g. to cause traffic).
For conspiracy to exist, there must be an e). His role/participation is after the
intentional felony, not a culpable felony, and it execution of the main acts such as
must be proved that all those to be considered guarding the victim; looking for a
as PDPs performed the following: buyer of the loot; laundering the
proceeds of the crime.
A. Unity of Intention - They participated,
agreed, or concurred in the criminal design, Participation In Both (Intention And
intent or purposes or resolution. Action), Why Necessary:
86
Direct proof of conspiracy is not necessary. The
existence thereof maybe inferred under the PRINCIPALS BY INDUCEMENT (PI) - those
Doctrine of Implied Conspiracy which directs who induce PDP to commit a crime. One strong
that if two or more persons: enough that the person induced could hardly
(v) Aimed by their acts towards the resist. This is tantamount to an irresistible force
accomplishment of the same unlawful compelling the person induced to carry out the
object. execution of the crime. Advised language is not
(vi) Each doing a part so that their acts, enough, unless he who made such remark or
though apparently independent, were in advise is a co-conspirator in the crime
fact connected and cooperative. committed.
(vii) Indicating a closeness of personal
association and a concurrence of Requisites:
sentiment.
(viii) A conspiracy maybe inferred though no 1. that the inducement be made directly
actual meeting among them to concert is with the intention of procuring the
proved. commission of the crime.
2. that such inducement be the
Effect of Conspiracy determining cause of the commission of
the crime.
There will be a joint or common or collective
criminal liability, otherwise each will be liable NOTES:
only to the extent of the act done by him. The one who induced is merely an
accomplice if he merely goaded or provided
For what crime will the co-conspirators be encouragement to the offender.
liable?
1. For the crime actually committed if it was the If the inducement was made while the
crime agreed upon. crime is already taking place, inducement
2. For any other crime even if not agreed upon, cannot be said to be the reason for the
provided it was the direct, natural, logical felonious act.
consequence of, or related to, or was
necessary to effect, the crime agreed upon One cannot be held guilty of having
(e.g.killing the guard). Otherwise only the instigated the commission of the crime
person who committed the different crime without first being shown that the crime was
will be held liable (e.g. killing a stranger) actually committed or attempted by another.
When is a co-conspirator freed from
NO PI or PIC unless there is PDP. But
liability?
there can be PDP without PI or PIC.
a. Only if he has performed an overt act either
Ways of becoming a principal by
to:
inducement:
1. Disassociate or detach himself from the
plan
1. by directly forcing another to commit a crime
2. Prevent the commission of the second or
by using irresistible force;
different or related crime
by causing uncontrollable fear.
b. Likewise, if for any reason not attributable to
Note: The PDP may set up the use of
the law enforcement agents, he was not able
force as an exempting circumstance.
to proceed to the crime scene and/or
execute an act to help realize the common
2. by directly inducing another to commit a
objective, then he cannot be held liable as a
crime. The inducement assumes several
co-conspirator. Thus he is not liable if he got
forms such as the following:
sick, overslept, or forgot about it, but not
when law agents took him into custody to
By the giving of a price, promise or
prevent him from doing his part of the
agreement. reward. This must be made with the
intention of procuring the commission of
Thus in Robbery with Homicide, all who the crime and not as an expression of
conspired in the robbery will be liable for the appreciation. The same must be the sole
homicide unless one of the conspirators reason for the commission of the crime.
proved he tried to prevent the homicide.
This also serves as an aggravating
circumstance which will affect both the
Par 2. PRINCIPALS BY INDUCEMENT (PI) giver and the recipient.
87
By giving Words of Command. or rebellion. However,
1. The utterer must have an ascendancy the person whom the
or influence over the PDP, or is one proposal is made
entitled to obedience from the PDP should not commit the
2. The words must be so direct, so crime. Otherwise, the
efficacious, so powerful and proponent becomes PI.
persistently made, as to amount to Involves any crime. The proposal to be
physical or moral force punishable must
3. Must be made directly with the involve only treason or
intention of procuring the rebellion.
commission of the crime and is
therefore the determining cause and Effects of Acquittal of PDP Upon Liability of
it thus precedes the crime PI
4. They do not include thoughtless or 1. Conspiracy is negatived by the acquittal of
imprudent utterances. Mere advises, co-defendant.
counsel or suggestions or 2. One cannot be held guilty of having
exhortations. instigated the commission of the crime
5. Command prior to the commission. without first being shown that the crime was
6. Executor had no personal reason. actually committed or attempted by another.
By the use of Inciting Words. These are BUT if the one charged is PDP is acquitted
words uttered while a crime is going on because he acted without intent or malice,
by one who is present and are directed his acquittal is not a ground for the acquittal
to a participant in the crime, such as the of the PI.
words sige pa, kick him, kill him,
bugbugin mo. The following must REASON: In exempting circumstance, such
however be considered as when the act is not voluntary because of
1. Whether the words were uttered by lack of intent on the part of the accused,
one with moral ascendancy over the there is a crime committed only that there is
accused and to whom obedience is no criminal.
due from the accused
2. Whether the utterances were the Par 3. PRINCIPALS BY INDISPENSABLE
result of the excitement generated COOPERATION ( PIC)
by the situation (not inciting word) or
that the utterer was caught up in his PRINCIPALS BY INDISPENSABLE
own excitement or emotion, or COOPERATION ( PIC) - those who cooperate in
whether the utterer was coolly and the commission of the offense by another act
deliberately uttering such words with without which it would not have been
the intention that they be acted upon accomplished. There must be a community of
(inciting word) design or common purpose between the PIC and
3. Whether the crime would be the PDP, but not a conspiracy. The PIC knows or
committed anyway even without the is aware of the intention or purpose of the PDP
utterances (not inciting word), or if and he cooperates or concurs in its realization
such utterances were the moving by performing an act without which the offense
cause of the crime (inciting word) would not have been accomplished.
88
devices (iii) revealing the whereabouts of attributed to the person charged as an
a victim. accomplice.
90
otherwise he is liable as the principal in e. If the property was the proceeds of
theft or robbery. Highway Robbery or Piracy, the dealer is
not liable as an accessory but for
Example: X pick-pocketed the money Violation of P.D. 532 for the crime of
stolen by Z from another. X is not an Aiding/Abetting Brigands or Pirates
accessory even if he profited himself but
is liable for theft. Or if X poked a gun at Z 2. The Second Act: By concealing or
and took the money, he would be liable destroying the body of the crime or the
for robbery. If Z dropped some of the effects or instruments in order to
money he stole which X picked up, X is prevent its discovery.
liable for theft not as an accessory.
a. To conceal or destroy the body of the
c. Assisting the offender profit crime includes all manner of interfering
includes acts of looking for a buyer, with, or altering the original conditions of
though no commission is received, or of the crime scene, or of anything therein
secreting it away or joining in its which may be considered as evidence,
disposal. prior to a completion of the evidence
gathering by the law enforcers.
d. Relation to Pres. Decree No. 1612 or Examples:
The Anti Fencing Law 1. Changing the position of the body of
the victim
1. If the crimes involve theft or robbery, 2. Placing a weapon or removing one or
the acts may be punished as replacing a weapon
FENCING i.e. the act of any person 3. Throwing pieces of evidence as
who, with intent to gain for himself cigarettes butts
or for another, shall buy, receive, 4. Washing off the blood stains or
possess, etc. or in any manner deal cleaning the crime scene
in any article, item, object, or 5. Placing a suicide note
anything of value which he knows or 6. Making unnecessary foot prints
should be known to him, to have
been derived from the proceeds of b. The object or purpose must be to
robbery or theft prevent the authorities from discovering
2. The knowledge (scienter) may be what truly transpired such as the number
actual or constructive and identity of the assailants; how the
3. The venue is where the property is crime was committed, and all matters
found related to the solution of the crime and
4. The prior conviction of the prosecution of the offenders.
thief/robber is not required to convict
the fence. But it be proved the 1. Thus one who help moved the body
property came from robbery/theft, not knowing the reason why is not an
not any other offense such as estafa, accessory
malversation, kidnapping. 2. One who acted out of curiosity or who
5. An accessory cannot again be moved the body for fear of reprisal or
prosecuted for fencing and vise-versa of being blamed as the killer is not
6. FENCE person who commits the act an accessory
of fencing. He is not accessory but a
principal in the crime defined and 3. The Third Act: By harboring, concealing
punished by Anti-Fencing Law. or assisting in the escape of the
7. Mere possession of anything of value principal.
which has been the object of robbery
or theft shall be prima facie evidence
a. There are two kinds of accessories under
of fencing.
this mode:
8. if committed by juridical person, the
1. A Public Officer- he must abuse his
President, General Manager or any
public function and the crime by the
officer who knows the commission of
principal maybe any crime. If there
the crime shall be liable
was no abuse then he will be
9. Fencing includes the situation where
considered as a private person.
there is failure of any establishment
to obtain the necessary permit
Example: The Mayor hides a suspect
regarding things obtained from
in his office to prevent identification
unlicensed dealer.
or provides a false alibi for him
91
2. A Private Person- the principal must be
guilty of treason, parricide, murder, 1. if the act committed by the accessory is
attempt on the life of the chief under subsection 1 and 2;
executive, or is habitually guilty of 2. if the principal is acquitted by reason of
some other crime. an exempting circumstance;
3. if the principal is not in the custody of
b. Meaning of the term guilty. For proper authorities;
purposes of charging a person as an 4. if the accessory helped the principal to
accessory, the term does not mean a escape.
judicial pronouncement of guilt but
means probably guilty of. But where NOTE: Neither the letter nor spirit of the law
the court later finds that the crime requires that the principal be convicted first
committed by the principal is not any of before one may be punished as an accessory.
the enumerated offenses, then the As long as the corpus delicti is proved and
private person who assisted him escape the accessorys participation is shown, he can
is not an accessory. be held criminally liable.
c. The acts include (i) giving of material
help such as food, money or clothing (ii) If the principal is acquitted, should the
providing shelter, a safe house or accessory be also acquitted?
hideaway (iii) providing a mode of
transportation (iv) providing disguises, If the principal was acquitted by reason of a
false identification papers, as well as by justifying circumstance, then the accessory must
(v) refusing to cooperate with the also be acquitted.
authorities or to identify the principal or
(vi) giving disinformation or false data If the principal was acquitted due to an
d. Under Pres. Decree No. 1829, the same exempting circumstance, the accessory may still
act maybe punished as Obstruction of be convicted.
Justice - the crime committed by any
person who assist in the escape of a If the ground is that the guilt was not proven
person who committed any crime. This beyond reasonable doubt, the accessory may
includes any act that would prevent the still be convicted if his acts fall under either
accused from being prosecuted such as paragraph (a) or (b)
using force, threat, intimidation, undue
influence to prevent a person from being If the principal dies, may the accessory still
a witness. be prosecuted?
May the Accessory be tried and declared Yes, if the act is under either paragraph (a) or
guilty ahead of the principal? (b)
As a rule the answer is no because of the But if his act falls under paragraph (c) there are
principle that the liability of the Accessory is two views on the matter. The first view holds
Subordinate to that of the Principal. There must that he cannot be prosecuted for in legal
first be a person convicted as a principal before contemplation there was no principal whom he
there can be an accessory. assisted. The second view holds that the
accessory may still be prosecuted because the
However, the accessory maybe prosecuted death merely extinguished the liability of the
ahead of the principal even if the principal has principal but the crime remains and the
not yet been identified or arrested or has participation of the accessory in it may still be
surrendered if: First; the act of the accessory is proved.
under either paragraph (a) or (b) or Second;
even under paragraph C if the principal has not
yet been placed under the jurisdiction of the Principal Accessories
authorities. Takes direct part or Does not Take direct
Once the principal is later tried but the case cooperates in, or part or cooperates in,
against the accessory has not yet been induces the or induces the
terminated, the trial against the accessory must commission of the commission of the
be suspended to await the out come of the trial crime crime
against the principal. However the two cases Cooperates in the Does not cooperate in
maybe consolidated and tried jointly, if proper. commission of the the commission of the
offense by acts either offense.
Instances when an accessory may be prior thereto or
convicted without conviction on the part of simultaneous therewith
the principal: Participates during Participation is
92
commission of the subsequent to the PENALTY - is the suffering that is inflicted by
crime commission of the the state for the transgression of a law.
crime.
Juridical Conditions of Penalty:
1 must be productive of suffering, without
ART. 20. ACCESSORIES EXEMPT FROM however affecting the integrity of the human
CRIMINAL LIABILITY personality
2 must be proportional/commensurate with
Who are Exempt the offense different crimes must be
punished with different penalties.
The penalties prescribed for accessories shall 3 must be personal no one should be
not be imposed if the principal is his: punished for the crime of another.
a. Spouse, 4 must be legal it is a consequence of the
b. Ascendant, judgment according to law.
c. Descendant, 5 must be certain no one may escape its
d. Legitimate, natural and adopted brothers effects.
and sisters, or 6 must be equal for all.
e. Relatives by affinity within the same 7 must be correctional.
degree
Purpose of the State in Punishing Crimes
In other words, those who are accessories under
paragraph (b) and (c) if the principal is a The State has an existence of its own to
relative. With the SINGLE EXCEPTION of maintain, a conscience to asset, and moral
accessories falling within the provisions of principles to be vindicated. Penal justice must
paragraph 1 of the next preceding article. therefore be exercised by the State in the
service and satisfaction of a duty, and rest
The relatives are the same as those under primarily on the moral rightfulness of the
Article 15 (Relatives by consanguinity within the punishment inflicted (to secure justice). The
4th civil degree are NOT exempted) basis of the right to punish violations of penal
law is the police power of the state.
93
PENALTIES THAT MAY BE IMPOSED (Article of penalties.
21, RPC) Offended party cannot The offended party
pardon the offender so may waive the
RULE: No felony shall be punishable by any as to relieve him of the indemnity and the
penalty not prescribed by law prior to its penalty. State has no reason to
commission. In other words, a felony shall be insist in its payment.
punishable only by the penalty prescribed by
law at the time of its commission.
When Criminal Liability Under the
This announces the policy of the State as Repealed Law Subsists
regards punishment of crimes.
1. When the provisions of the former law are
REASON: The law cannot be rationally obeyed reenacted; or
UNLESS it is first shown. NO act will be 2. When the repeal is by implication When a
considered criminal until the Government has penal law which impliedly repealed an old
made it so by law. law, is itself repealed, the repeal of the
repealing law revives the prior penal law,
RETROACTIVE EFFECT OF PENAL LAWS unless the language of the statute provides
(Article 22, RPC). otherwise. When the repeal is absolute,
criminal liability is obliterated.
GENERAL RULE: Penal laws are applied 3. When there is a saving clause.
prospectively.
EXCEPTION: Penal laws shall have a retroactive EFFECT OF PARDON BY THE OFFENDED
effect insofar as they favor the person guilty of a PARTY (Article 23, Rpc)
felony.
Provided that: GENERAL RULE: A pardon by the offended party
1. The offender is not a habitual criminal, does not extinguish criminal liability of the
as this term is defined in rule 5 of article offender.
62 of this Code, although at the time of
the publication of such laws a final REASON: A crime is committed against the
sentence has been pronounced and the state. Only the Chief Executive can pardon
convict is serving the same. the offenders.
2. The new law does not provide against BUT civil liability with regard to the interest
the retroactive application of the law. of the injured party is extinguished by his
express waiver.
The Favorable Retroactive Application of
the Law (if justified) May Find the EXCEPTIONS: Pardon by the offended party will
Defendant in 1 of the 3 Situations: bar criminal prosecution in the ff crimes:
1. The crime has been committed and the
prosecution begins. 1. Adultery and Concubinage (A344, RPC)
2. The sentence has been passed but
service has not begun. EXPRESS OR IMPLIED pardon must be given
3. The sentence is being carried out. by the offended party to BOTH offenders.
94
NOTE: Pardon under A344 is only a bar to be presumed innocent until the contrary is
criminal prosecution, it does not proved.
extinguished criminal liability. It is not one 2. Because they are not imposed as a result of
among the causes under A89. judicial proceedings.
3. The offender is not subjected to or made to
3. Rape (as amended by RA 8353) suffer these measures as a punishment for a
crime.
The subsequent valid marriage between the
victim and the offender extinguishes criminal
liability or the penalty imposed. CHAPTER 2
Classification of Penalties
In case the legal husband is the offender,
subsequent forgiveness by the wife as CLASSIFICATION OF PENALTY (A25, RPC):
offended party shall also produce the same PRINCIPAL PENALTIES those expressly
effect. imposed by the court in the judgment of
conviction. Principal penalties may either be:
1 divisible those that have fixed duration
MEASURES OF PREVENTION OR SAFETY and are divisible into three (3) periods:
WHICH ARE NOT CONSIDERED PENALTIES 2 indivisible those which have no fixed
(A24, RPC): duration (death; reclusion perpetua;
perpetual absolute or special
1. The arrest and temporary detention of disqualification; public censure)
accused persons, as well as their detention
by reason of insanity or imbecility, or illness Capital punishment: Death.
requiring their confinement in a hospital.
Afflictive penalties:
2. The commitment of a minor to any of the
institutions mentioned in article 80 and for Reclusion perpetua,
the purposes specified therein. Reclusion temporal,
Perpetual or temporary absolute
Where a minor offender was committed to a disqualification,
reformatory pursuant to A80 (now PD 603), Perpetual or temporary special
and thus while detained he commits a crime disqualification,
therein, he cannot be considered a quasi- Prision mayor.
recidivist since his detention was only
preventive measure. Quasi-recidivism Correctional penalties:
presupposes the commission of a crime
during the service of the penalty for a Prision correccional,
previous crime. Arresto mayor,
Suspension,
Commitment of a minor is not a penalty Destierro.
because the imposition of sentence in such
case is suspended. Light penalties:
95
Indemnification, 3. light penalty - if it be less than 200
Forfeiture or confiscation of instruments and pesos.
proceeds of the offense,
Payment of costs. NOTES:
a. The classification applies if the fine is
AS TO SUBJECT MATTER AS TO GRAVITY imposed as a single (e.g. 200 to 6000) or
Corporal (death) Capital alternative penalty (e.g. arresto mayor or
Deprivation of freedom Afflictive fine from 200 to 1000). Hence, it does not
(reclusion, prision, arresto) apply if the fine is imposed together with
Restriction of freedom Correctional another penalty.
(destierro) b. HOWEVER, penalty cannot be imposed in the
Deprivation of rights Light alternative since it is the duty of the court to
(disqualification and indicate the penalty imposed definitely and
suspension) positively. Thus, the court cannot sentence
Pecuniary fine the guilty person in a manner such as to
pay fine of P1000, or to suffer an
OUTLINE OF ACCESSORY PENALTIES imprisonment of 2 years, and to pay the
INHERENT IN PRINCIPAL PENALTIES: cost.
c. If the fine imposed by the law for the felony
DEATH RECLUSI PRISION PRISION is exactly P200, it is a light felony.
ON MAYOR CORRECTI
PERPET ONAL Pp vs Yu Hai, 99 P 725
UA/ Under A9, RPC, where the fine in question is
TEMPOR exactly P200, it is a light penalty, thus the
AL offense is a light felony. Whereas, under A26,
Perpetua Civil Tempora Suspension RPC, it is a correctional penalty, hence the
l interdicti ry from public offense involved is a less grave felony. This
absolute on for life absolute office, discrepancy shall be resolved liberally in
disqualifi or during disqualifi profession favor of the accused, hence A9 prevails over
cation the cation or calling A26.
sentence
Civil Perpetual That of Perpetual Article 9 Article 26
interdicti absolute perpetua special Applicable in Applicable in
on disqualifi l special disqualifica determining the determining the
during cation, disqualifi tion from prescriptive period of prescriptive period of
30 unless cation suffrage, if felonies. penalties.
years, if expressly from the
not remitted suffrage, duration of
expressl in the unless imprisonm Chapter 3
y pardon of expressl ent Duration and Effect of Penalties
remitted the y exceeds/ 8
in the principal remitted months, SECTION 1
pardon penalty in the unless Duration of penalties
pardon expressly
of the remitted in DURATION OF EACH DIFFERENT PENALTIES
principal the pardon (A27, RPC):
penalty of the
principal 1 RECLUSION PERPETUA - 20 years and 1
penalty day to 40 years.
7 BOND TO KEEP THE PEACE the period Situations in which the execution of death
during which the bond shall be effective is penalty be suspended:
discretionary to the court. (As amended by
Section 21, Republic Act No. 7659.) 1. if convict is pregnant, or within 1 year
after her delivery
DESTIERRO is a punishment whereby a 2. convicts become insane or an imbecile
convict is banished to a certain place and is after conviction
prohibited from entering or coming near that 3. court orders suspension by reason of:
place designed in the sentence, within a radius
not less than 25 kilometers, nor more than 250 a. doubt as to the identity of the convict
kilometers. It is a principal, divisible and b. there is a request for executive clemency
correctional penalty
4. President grants reprieve.
If the convict should enter the prohibited places,
he commits the crime of Evasion of Service of
sentence under ART. 157, RPC. RULES FOR THE COMPUTATION OF
PENALTIES (A28, RPC):
DESTIERRO IS IMPOSED IN THE FOLLOWING 1. WHEN THE OFFENDER IS IN PRISON the
SITUATIONS: duration of temporary penalties
(permanent/temporary absolute
1. When a legally person who had surprised disqualification, detention. Suspension)
his or her spouse in the act of sexual is from the day on which the judgment of
intercourse with another and while in conviction becomes final.
that act, or immediately thereafter,
should kill or inflict serious physical REASON: Under A24, the arrest and
injuries upon the other spouse and/or the temporary detention of the accused is not
paramour or mistress. (Serious physical penalty.
injuries or death under exceptional
cases) 2. WHEN THE OFFENDER IS NOT IN PRISON
2. In the crime of grave threat or light the duration of the penalty consisting
threat, when the offender is required to in deprivation of liberty, is from the day
put a bond for good behavior but failed that the offender is placed at the
or refused to do so under ART. 284, such disposal of judicial authorities for the
convict shall be sentenced to Destierro enforcement of the penalty.
so that he would not be able to carry out
his threat. (Failure to give a bond for 3. THE DURATION OF OTHER PENALTIES
good behavior) the duration is from the day on which the
3. In the crime of concubinage, the penalty offender commences to serve his
prescribed for the concubinage is sentence.
Destierro under ART. 334.
4. Where the penalty prescribed by law is NOTE: If on appeal, the service of sentence
Arresto Mayor but then, the offender is should commence from the date of the
entitled to a privileged mitigating promulgation of the decision of the appellate
circumstance and lowering the court, not from the date the judgment of the
prescribed penalty by one degree, the trial court was promulgated.
penalty one degree lower is Destierro.
(After reducing the penalty by 1 or more PERIOD OF PREVENTIVE IMPRISONMENT
degrees, destierro is the proper penalty. DEDUCTED FROM TERM OF IMPRISONMENT
(A29, RPC)
Death Penalty shall not be imposed in the
following instances:
97
Instances When Accused Undergoes had undergone preventive imprisonment but
Preventive Suspension the offense is punishable by a fine only
would not be given credit.
1 when the offense charged is
nonbailable; or g. Whenever an accused has undergone
2 even if bailable he cannot furnish preventive imprisonment for a period equal
the required bail. to or more than the possible maximum
imprisonment of the offense charged to
NOTES: which he may be sentenced and his case is
a. Offenders or accused who have undergone not yet terminated, he shall be released
preventive imprisonment shall be credited in immediately without prejudice to the
the service of their sentence consisting of continuation of the trial thereof or the
deprivation of liberty, with the full time proceeding on appeal, if the same is under
during which they have undergone review.
preventive imprisonment IF the detention
prisoner agrees voluntarily in writing to h. In case the maximum penalty to which the
abide by the same disciplinary rules imposed accused may be sentenced is destierro
upon convicted prisoners. (deprivation of liberty), he shall be released
after thirty (30) days of preventive
b. If the detention prisoner does not agree to imprisonment. (As amended by Republic Act
abide by the same disciplinary rules imposed No. 6127, and further amended by E.O. No.
upon convicted prisoners, he shall be 214, prom. July 10, 1987.) This is true
credited in the service of his sentence with although destierro has the duration of 6
four-fifths (4/5) of the time during which months and 1 day to 6 years because the
he has undergone preventive imprisonment. accused sentenced to such penalty does not
(As amended by Republic Act No. 6127, June serve it in prison.
17, 1970).
98
A plebiscite is not mentioned or
contemplated in number 2, hence, the Note: He can dispose of such property by will
offender may vote in that exercise, or donation mortis causa.
subject to the provisions of pertinent
election laws at the time. Civil Interdiction is Accessory to the
Following Principal Penalties
EFFECTS OF THE PENALTIES OF PERPETUAL
OR TEMPORARY SPECIAL 1. If death penalty is commuted
DISQUALIFICATION (Arts 31 and 32): to life imprisonment;
1. For public office, profession or calling 2. Reclusion perpetua;
a. the deprivation of the office, 3. Reclusion temporal.
employment, profession, or calling
affected; EFFECTS OF BOND TO KEEP THE PEACE
b. the disqualification for holding similar (Article 35, RPC). - It shall be the duty of any
offices or employments either person sentenced to give bond to keep the
perpetually or during the term of the peace, to present two sufficient sureties who
sentence according to the extent of such shall undertake that such person will not commit
disqualification. the offense sought to be prevented, and that in
case such offense be committed they will pay
2. For the exercise of the right of the amount determined by the court in its
suffrage judgment, or otherwise to deposit such amount
a. Deprivation of the right to vote in any in the office of the clerk of the court to
popular election for any public office or guarantee said undertaking.
to be elected to such office perpetually
or during the term of the sentence; The court shall determine, according to its
b. Cannot hold any public office during the discretion, the period of duration of the bond.
period of disqualification. (Read also Art. 284)
EFFECTS OF THE PENALTIES OF Should the person sentenced fail to give the
SUSPENSION FROM ANY PUBLIC OFFICE, bond as required he shall be detained for a
PROFESSION OR CALLING, OR THE RIGHT period which shall in no case exceed 6 months,
OF SUFFRAGE (Article 33, RPC) if he shall have prosecuted for a grave or less
1. Disqualification from holding such grave felony, and shall not exceed 30 days, if for
office or exercising such a light felony.
profession or calling or right of
suffrage during the term of the Bond to keep peace Bond for good
sentence. behavior
2. The person suspended from A principal penalty, not This penalty is not
holding public office shall not an accessory penalty. found in article 25.
hold another having similar No particular felony This is a penalty
functions during the period of his where this is particular to article
suspension. prescribed. 284- grave or light
threats.
The consequence of Failure to put up a
CIVIL INTERDICTION (A34, RPC) failure to put up this bond results in
bond is imprisonment destierro.
CIVIL INTERDICTION deprivation from the for 6 months or 30 days
offender during the time of his sentence of the depending on whether
rights of parental authority, or guardianship, the felony committed is
either as to the person or property of any ward, grave or less grave
of marital authority, of the right to manage his felony or light.
property and of the right to dispose of such
property by any act or any conveyance inter NOTE: Bond to keep the peace is different from
vivos. bail bond which is posted for the provisional
release of a person arrested for or accused of a
Effects of Civil Interdiction crime. Bond to keep the peace or for good
Deprivation of the following rights: behavior is imposed as a penalty in threats.
1. parental authority
2. guardianship over the person or property PARDON; ITS EFFECT (Article 36, RPC)
of the ward
3. marital authority 1 Shall not work the restoration of the right to
4. right to manage property and to dispose hold public office, or the right of suffrage,
of the same by acts inter vivos.
99
UNLESS such rights be expressly restored by delicto of the liability
the terms of the pardon. offender
2 Shall in no case exempt the culprit from the When granted Only after Only before
payment of the civil indemnity imposed conviction by the institution
upon him by the sentence. final judgment of criminal
action
Who Grants Pardon To whom Any or all of In adultery
granted the accused and
The President of the Republic of the Philippines. concubinage,
must include
Limitations to Presidents Power to Pardon both offenders
1 Can be exercised only after final judgment. Whether it can May be Cannot validly
2 Does not extend to cases of impeachment. be conditional absolute or be made
3 Does not extinguish civil liability only conditional subject to
criminal liability condition
Effects of Pardon to Accessory Penalties COST; WHAT ARE INCLUDED (Article 37,
RPC)
GENERAL RULE: Pardon in general terms does
not include accessory penalties. Costs shall include:
1. Fees; and
EXCEPTIONS: 2. indemnities in the course of the judicial
a. If the absolute pardon is granted after the proceedings.
term of imprisonment has expired, it
removes all that is left of the consequences Whether they be fixed or unalterable amounts
of conviction. However, if the penalty is life previously determined by law or regulations in
imprisonment and after the service if 30 force, or amounts not subject to schedule.
years, a pardon is granted, the pardon does
not remove the accessory penalty of NOTES:
absolute perpetual disqualification. a. Costs (expenses of the litigation) are
b. If the facts and circumstances of the case chargeable to the accused in case f
show that the purpose of the President is conviction. In case of acquittal, the costs are
precisely to restore the rights i.e. granting de officio, each party bearing his own
absolute pardon after election to a post but expense.
before the date fixed by law for assuming b. No costs are allowed against the Republic of
office to enable him to assume the position the Philippines, until law provides to the
in deference to the popular will. contrary.
c. The payment of costs is fully discretionary
Pardon by Pardon by on the court.
the Chief the Offended
Executive Party (Art
(Art 36) 23) PECUNIARY LIABILITIES, ORDER OF
Crime covered Any crime, Crimes against PAYMENT (A38, RPC)
unless chastity under
otherwise RPC only (also In case the property of the offender should not
provided by or in rape) be sufficient for the payment of all his pecuniary
subject to liabilities, the same shall be met in the following
conditions in order:
the
Constitution or 1. The reparation of the damage caused.
the laws.
Extinguishmen Extinguishes Does not 2. Indemnification of consequential damages.
t of Criminal criminal extinguish
Liability liability criminal 3. The fine.
liability
although it 4. The costs of the proceedings.
may constitute
a bar to the NOTES:
prosecution of 1 and 2 are payable to the offended
the offender party.
Effect on civil Cannot affect Offended 3 and 4 are payable to the state.
liability the civil party can Order of payment is mandatory.
liability ex waive the civil
100
When is it applicable? 4. If the principal penalty imposed is not to be
executed by confinement in a penal institution,
It is applicable in case the property of the but such penalty is of fixed duration, the convict,
offender should not be sufficient for the during the period of time established in the
payment of all his pecuniary liabilities. Hence, if preceding rules, shall continue to suffer the
the offender has sufficient or no property, it is same deprivation as those of which the principal
not applicable. penalty consists.
5. The subsidiary personal liability which the
SUBSIDIARY PENALTY (A39, RPC) - is a convict may have suffered by reason of his
subsidiary personal liability to be suffered by the insolvency shall not relieve him from the fine
convict who has no property with which to meet in case his financial circumstances should
the fine at the rate of one day for each 8 pesos, improve. (As amended by Republic Act No.
subject to the rules provided in Article 39. 5465, April 21, 1969.)
101
to undergo subsidiary penalty if he could not The offender shall suffer the disqualification
pay the fine. provided in this article although pardoned as
to the principal penalty, UNLESS the same
Where No Subsidiary Imprisonment is shall have been expressly remitted in the
Imposed pardon.
1. Penalty imposed is higher than prision ARTICLE 44. ARRESTO, ITS ACCESSORY
correccional. PENALTIES
2. Non-payment of reparation,
indemnification, and costs. It is only for a. suspension of the right to hold office and the
fines. right of suffrage during the term of the
3. Non-payment of costs. sentence.
4. Penalty imposed is a fine and another
penalty without fixed duration like NOTES:
censure. No accessory penalty for destierro.
Absolute pardon for any crime for which
1 year imprisonment or more was meted out
SECTION 3 restores the prisoner to his political rights.
Penalties in which other accessory Where the penalty is less than 1 year,
penalties are inherent disqualification does not attach, EXCEPT
when the crime committed is one against
ARTICLE 40. DEATH, ITS ACCESSORY property. The nature of the crime is material.
PENALTIES Thus, in the latter case, the person
convicted of theft for less than 10 months
The death penalty, when it is not executed by cannot vote unless he is pardoned.
reason of commutation or pardon shall carry
If the penalty imposed is 1 year
with it that of:
imprisonment or more, the nature of the
a. perpetual absolute disqualification; and
crime is immaterial.
b. civil interdiction during thirty years following
The accessory penalties are understood
the date of sentence, UNLESS such
accessory penalties have been expressly to be always imposed upon the offender by
remitted in the pardon. the mere fact that the law fixes a certain
penalty for the crime.
ARTICLE 41. RECLUSION PERPETUA AND The accessory penalties do not affect the
RECLUSION TEMPORAL, THEIR ACCESSORY jurisdiction of the court in which the
PENALTIES information is filed because they do not
modify or alter the nature of the penalty
a. civil interdiction for life or during the period provided by law. What determines
of the sentence as the case may be; and jurisdiction in criminal cases is the principal
b. perpetual absolute disqualification which the penalty.
offender shall suffer even though pardoned
as to the principal penalty, UNLESS the same Reclusion Perpetua Life Imprisonment
shall have been expressly remitted in the Specific duration of 20 No definite term or
pardon. years and 1 day to 40 accessory penalties
years and accessory
ARTICLE 42. PRISION MAYOR, ITS penalties
ACCESSORY PENALTIES Imposable on felonies Imposable on crimes
punished by RPC punished by special
a. temporary absolute disqualification; and laws
b. perpetual special disqualification from the
right of suffrage which the offender shall
suffer although pardoned as to the principal ARTICLE 45. CONFISCATION AND
penalty, UNLESS the same shall have been FORFEITURE OF THE PROCEEDS OR
expressly remitted in the pardon. INSTRUMENTS OF THE CRIME
ARTICLE 43. PRISION CORRECCIONAL, ITS 1. Every penalty imposed for the commission of
ACCESSORY PENALTIES a felony shall carry with it the forfeiture of
the proceeds of the crime and the
a. suspension from public office, from the right instruments or tools with which it was
to follow a profession or calling; and committed.
b. perpetual special disqualification from the 2. Such proceeds and instruments or tools shall
right of suffrage, if the duration of said be confiscated and forfeited in favor of the
imprisonment shall exceed eighteen months. Government, UNLESS they be the property
of a third person not liable for the offense,
102
but those articles which are not subject of General Rule: The penalty prescribed by law
lawful commerce (whether it belongs to the for the commission of a felony shall be imposed
accused or 3rd person) shall be destroyed. upon the principals in the commission of such
3. felony. (Read also Arts. 50 -51)
NOTES:
There cannot be forfeiture or confiscation Whenever the law prescribes a penalty for a
UNLESS theres a criminal case filed, tried felony in general terms, it shall be understood as
and accused is convicted. applicable to the consummated felony.
The court cannot order the forfeiture of
the goods the owner of which is not indicted Exception: When the law fixes a penalty for the
although there is sufficient ground to hold frustrated or attempted felony. Whenever it is
him guilty of the acts for which the accused believed that the penalty lower by 1 or 2
has been convicted. degrees corresponding to said acts of execution
Instruments of the crime belonging to is not proportionate to the wrong done, the law
innocent 3rd persons may be recovered fixes a distinct penalty for the principal in the
through intervention. frustrated or attempted felony.
Confiscation can be ordered only if the
The Graduation of Penalties Refer to:
property is submitted in evidence or placed
a. By Degree
at the disposal of the court.
1. Stages of Execution (attempted,
When the order of forfeiture has already
frustrated, consummated)
become final, the articles which were 2. Degree of the criminal participation of
forfeited can not be returned, even in case the offender (principal, accomplice,
of acquittal. accessory)
Confiscation and forfeiture are additional
penalties. When the penalty imposed did not b. By Period
include confiscation, the subsequent order of 1. Minimum, medium, maximum refers to
confiscation would be an additional penalty, the proper period of the penalty which
amounting to an increase of the penalty should be imposed when aggravating or
already imposed, thereby placing the mitigating circumstances attend to the
accused in double jeopardy. In case the commission of the crime.
accused appeals, confiscation not ordered by
the trial court may be ordered by the ARTICLE 47. IN WHAT CASES THE DEATH
appellate court. (Question: Forfeiture and PENALTY SHALL NOT BE IMPOSED
confiscation of instruments and proceeds of
the offense are accessory penalties. Are they a. Under Age - guilty person is below eighteen
not deemed imposed?) (18) years of age at the time of the
The government cannot appeal the commission of the crime.
modification of the sentence if the defendant
did not appeal. But if the defendant appeals, REASON: Minority is always a mitigating
it removes all bars to the review and circumstance.
correction of the penalty even is an increase
thereof be the result. b. Over Age - guilty person is more than
seventy (70) years of age (at the time RTC
When Art 45 Cannot Apply sentenced him)
1. The instruments belong to innocent 3rd
parties c. No court Majority - when upon appeal or
2. Such properties have not been placed under automatic review of the case by the
the jurisdiction of the court Supreme Court, the required majority vote is
3. When it is legally or physically impossible. not obtained for the imposition of the death
penalty, in which cases the penalty shall be
reclusion perpetua.
CHAPTER FOUR
Application of Penalties Automatic Review Of Death Penalty Cases
103
reconsideration. The transcript shall also be
forwarded within ten (10) days after the filing COMPLEX CRIME - When a single act
thereof by the stenographic reporter. (As constitutes 2 or more grave or less grave
amended by Section 22, Republic Act No. 7659.) felonies, or when an offense is a necessary
means for committing the other, the penalty for
The purpose of the automatic review is to the most serious crime shall be imposed, the
protect the accused to the end that justice and same to be applied in its maximum period. (As
legality of death penalty is clearly and amended by Act No. 4000.)
conclusively determined.
Although there are 2 or more crimes actually
Justification for the Death Penalty: Social committed, they constitute only 1 crime in the
defense and Exemplarity. Not considered cruel eyes of the law as well as in the conscience of
and unusual because it does not involve torture the offender who has only 1 criminal intent.
or lingering death. Hence, there is only 1 penalty imposed for the
commission of complex crime.
Crimes Punishable by Death Under Death
Penalty Law (RA 7659, December 31, 1993) Philosophy behind:
1. Treason The treatment of plural crimes as one is
2. Qualified Piracy to be lenient to the offender, who, instead of
3. Qualified Bribery being made to suffer distinct penalty only,
4. Parricide although it is the penalty for the most serious
5. Murder one and in the maximum period. It is in
6. Infanticide consonance with the doctrine of pro reo.
7. Kidnapping and Serious Illegal Detention
8. Robbery with Homicide, Rape, Intentional Kinds of Complex Crimes
Mutilation, or Arson 1 Compound Crime - a single act
9. Rape with the use of a deadly weapon, or constituting 2 or more grave or less grave
by 2 or more persons; with Homicide; where felonies. No regard for the gravity of crimes,
the victim became insane as long as there is only 1 act.
10. Qualified Rape
11. Destructive Arson Requisites:
12. Plunder a. that only a single act is performed by the
13. Violation of Certain Provisions of Dangerous offender;
Drugs Act b. that the single act produces:
14. Carnapping i. 2 or more grave felonies
ii. 1 or more grave or 1 or more less
NOTES: grave felonies
Death penalty shall be imposed in all iii. 2 or more less grave felonies.
cases in which it must be imposed under
existing law. It is the duty of the judicial No Single Act in the Following Cases
officers to respect and apply the law a. Several shots from Thomson sub-
regardless of their private opinion. machine gun causing several deaths,
The trial court must require the although caused by a single act of
prosecution to present evidence, despite pressing the trigger, are considered
plea of guilty when the crime charged is several acts. It is not the act of pressing
punished with death. the trigger which should be considered
REPUBLIC ACT NO. 9346 An Act as producing the several felonies, but
Prohibiting the Imposition of Death the number of bullets which actually
Penalty in the Philippines produced them.
b. When 2 persons are killed one after the
In lieu of the death penalty, the following other, by different acts, although these 2
shall be imposed: killings were the result of a single
Reclusion perpetua Revised Penal Code criminal impulse. The different acts must
Life imprisonment Special Laws be considered as distinct crimes.
c. When the acts are wholly different, not
Not eligible for parole under the only in themselves, but also because
Indeterminate Sentence Law: Persons they are directed against 2 different
convicted of offenses punished by reclusion persons, as when one fires his gun twice
perpetua, or whose sentence will be reduced in succession, killing one and injuring
to reclusion perpetua. another.
d. Light felonies (like slight physical
ARTICLE 48. PENALTY FOR COMPLEX injuries) produced by the same act
CRIMES should be treated and punished as
104
separate offenses or may be absorbed kidnapping and murder or homicide can
by a grave felony (as they are necessary no longer be complexed under Art 48,
consequence thereof). nor be treated as separate crimes but
shall be punished as a special complex
NOTES: crime under the last paragraph of Art
Rape with homicide is a special complex 267, as amended by RA 7659. But where
crime not covered by Art 48. the victim was taken from his home but
When in obedience to an order several it was solely for the purpose of killing
accused simultaneously shot many him and not for detaining him illegally or
persons, without evidence how many for the purpose of ransom, the crime is
each killed, there is only a single offense, simple murder.
there being a single criminal impulse. Necessary means does not mean
This is a ruling in Pp vs Lawas, June 30, indispensable means. Indispensable
1955. This is applicable only if there is no would mean it is an element of the
evidence at all to show the number of crime. The crime can be committed by
persons killed by each several another means. The means actually
defendants. employed (another crime) was merely to
The single criminal impulse, same facilitate and insure the consummation
motive or the single purpose theory of the crime.
has no legal basis, for Art 48 speaks of When the definition of a felony one
a single act. However, the theory is offense is a means to commit the other,
acceptable when it is not certain who there is no complex crime.
among the accused killed or injured each Subsequent acts of intercourse, after
of the several victims. forcible abduction with rape, are
When a complex crime is charged and separate acts of rape.
one offense is not proven, the accused Not complex crime when trespass to
can be convicted of the other. dwelling is a direct means to commit a
There is no complex crime of arson with grave offense. Trespass will be
homicide under Art 48, Art 320 of the considered as aggravating ( unlawful
RPC, as amended by RA 7659, having entry or breaking part of the dwelling)
provided one penalty therefor. No complex crime, when one offense is
Art 48 is applicable to crimes through committed to conceal the other.
negligence. Where the offender had in his possession
When 2 crimes produced by a single act the funds which he misappropriated,
are respectively within the exclusive falsification of a public or official
jurisdiction of 2 courts of different document involving said funds is a
jurisdiction, the court of higher separate offense. The falsification was
jurisdiction shall try the complex crime. made to conceal the malversation. But
Since both crimes were the result of a when the offender had to falsify a public
single act, the information cannot be document to obtain possession of the
split into 2. funds which he misappropriated, the
falsification is a necessary means to
2 Complex Crime Proper - an offense is a commit the malversation.
necessary means for committing another. There is no complex crime of rebellion
with murder, arson, robbery, or other
Requisites: common crimes. They are mere
a. at least 2 offenses are committed ingredients of the crime of rebellion
b. 1 or some of the offenses must be absorbed already. But one who, for some
necessary to commit the other independent or personal motives,
c. both or all the offenses must be commits murder or other common
punishable under the same statute offenses in addition to rebellion, may be
(RPC). prosecuted for and convicted of such
common offenses.
NOTES: Art 48 is intended to favor the accused.
Kidnapping the victim to murder him in a Complex crime proper may be
secluded place ransom was not paid so committed by two persons, as in
victim was killed. Kidnapping was a seduction through usurpation of official
necessary means to commit murder. functions.
Where the person kidnapped is killed in But when 1 of the offenses, as a means
the course of the detention, regardless of to commit the other, was committed by
whether the killing was purposely sought one of the accused through reckless
or was merely an afterthought, the imprudence, that accused who
105
committed the offense through reckless different criminal acts upon any of which no
imprudence is liable for his act only. conviction has yet been declared.
When the homicide, physical injuries,
and the burning of a house are the result Kinds of Plurality of Crimes
of one single act of negligence, there is
only one penalty, but there are three civil 1. Formal or Ideal Plurality only one
liabilities. criminal liability.
When 2 felonies constituting a complex
crime are punishable by imprisonment It is further divided into 3 groups where a
and fine, respectively, only the penalty person committing multiple crimes is
of imprisonment should be imposed. punished with one penalty in the following
REASON: Fine is not included in the in cases.
the list of penalties in the order of a. When the offender commits any of the
severity and it is the last in the complex crimes defined in Art 48 of the
graduated scales in Art 71. RPC.
When a single act constitutes 2 grave or b. When the law specifically fixes single
less grave or one grave and one less penalty for 2 or more offenses
grave, and the penalty for one is committed.
imprisonment while for the other is fine, c. When the offender commits continued
the severity of the penalty for the more crimes.
serious crime should not be judged by
the classification of each of the penalties 2. Real or Material Plurality there are
involved, but by the nature of the different crimes in law as well as in the
penalties. conscience of the offender. In such
cases, the offender shall be punished for
In the order of severity of penalties,
each and every offense that he
arresto mayor and arresto menor are
committed
considered more severe than destierro
and arresto menor is higher in degree
CONTINUED CRIME - a single crime consisting
Art 48 applies only to cases where the
of a series of overt acts arising from a single
Code does not provide for a definite criminal resolution or intent not susceptible of
specific penalty for a complex crime. division. Although there is a series of acts, there
One information should be filed when a is one crime committed. Hence, only one
complex crime is commited. penalty shall be imposed.
A continued crime is not a complex crime 2. If the penalty prescribed for the felony
because the offender in continued crime does committed be lower than that corresponding
not perform a single act but a series of acts, and to the one which the accused intended to
one offense is not a necessary means for commit, the penalty for the former shall be
committing the other. imposed in its maximum period.
Not being complex crime, the penalty for 3. The rule established by the next preceding
continued crime is not to be imposed in the paragraph shall not be applicable if the acts
maximum period committed by the guilty person shall also
constitute an attempt or frustration of
No actual provision in the RPC or any penal law another crime, if the law prescribes a higher
punishing continued crime it is applied in penalty for either of the latter offenses, in
connection with 2 or more crimes committed which case the penalty provided for the
with a single intention. attempted or the frustrated crime shall be
imposed in its maximum period. (Read also
Continued Crime is Different From a Arts. 61, 62, and 65)
Transitory Crime
NOTES:
A continued crime must be understood in the 1. Art 49 has reference to Art 4 par 1.
light of substantive law, while transitory/moving 2. Art 49 has no application to cases where a
crime, in the light of procedural law and is only more serious consequence not intended by
intended as a factor in determining the proper the offender befalls the same person. Thus,
venue or jurisdiction for that matter of the it is not applicable to cases involving
criminal action pursuant to Section 14, Rule 110 aberratio ictus and praeter intentionem.
of the Rules of Court. This is so because a 3. It is applicable only in cases of error in
person charged with a transitory offense may be personae or mistake in identity AND the
tried in any jurisdiction where the offense is in penalty for the crime committed is different
part committed or where any of the essential from that which is intended to be committed.
ingredients thereof took place. The singleness of Since only one crime is produced by the act
the crime, committed by executing 2 or more of the offender, there could be no complex
acts, is not considered. crime.
4. In pars 1 and 2, the lower penalty in its
Real/Material Continued Crime maximum period is always imposed.
Plurality 5. In par 3, the penalty for the attempted or
There is a series of acts Same frustrated crime shall be imposed in its
performed by the maximum period. This rule no 3 is not
offender. necessary and may well be covered by Art
Each act performed by Different acts 48, in view of the fact that the same act also
the offender constitute only one constitutes an attempt or a frustration of
constitutes a separate crime because all of another crime.
crime because each act the acts performed
is generated by a arise from one criminal Art 49 Art 48
criminal impulse. resolution. Lesser penalty is to be Penalty for the more or
imposed to be applied most serious crime
Plurality of Crime Recidivism in the maximum shall be imposed, the
No conviction of any of There must be period. same to be applied in
the crimes committed. conviction by final its maximum period.
judgment of the first or
prior offense. Article 50. Penalty to be imposed upon
principals of a frustrated crime. - The
ARTICLE 49. PENALTY TO BE IMPOSED penalty next lower in degree than that
UPON THE PRINCIPALS WHEN THE CRIME prescribed by law for the consummated felony
COMMITTED IS DIFFERENT FROM THAT shall be imposed upon the principal in a
INTENDED, RULES- frustrated felony.
1. If the penalty prescribed for the felony Article 51. Penalty to be imposed upon
committed be higher than that principals of attempted crimes. - The
corresponding to the offense which the penalty lower by two degrees than that
accused intended to commit, the penalty prescribed by law for the consummated felony
107
shall be imposed upon the principals in an
attempt to commit a felony. When the law expressly prescribes the penalty
provided for a frustrated or attempted felony, or
Article 52. Penalty to be imposed upon to be imposed upon accomplices or accessories.
accomplices in a consummated crime. - The (Art 60, RPC) e.g. Special penalty for attempted
penalty next lower in degree than that or frustrated robbery with homicide. (Art 297,
prescribed by law for the consummated felony RPC)
shall be imposed upon the accomplices in the
commission of a consummated felony. 2 Cases Where the Accomplice is
Punished with the Same Penalty
Article 53. Penalty to be imposed upon Imposed upon Principal
accessories to the commission of a a. The ascendants, guardians, curators,
consummated felony. - The penalty lower by teachers and any person who by abuse
two degrees than that prescribed by law for the of authority or confidential relationship,
consummated felony shall be imposed upon the shall cooperate as accomplices in the
accessories to the commission of a crimes of rape, acts of lasciviousness,
consummated felony. seduction, corruption of minors, white
slave trade or abduction. (Art 346)
Article 54. Penalty to be imposed upon b. One who furnished the place for the
accomplices in a frustrated crime. - The perpetration of slight illegal detention.
penalty next lower in degree than that (Art 268)
prescribed by law for the frustrated felony shall
be imposed upon the accessories in the Accessory Punished as Principal
commission of a frustrated felony.
Knowingly concealing certain evil practices.
Article 55. Penalty to be imposed upon (art 142)
accessories of a frustrated crime. - The
penalty lower by two degrees than that Cases Where Penalty Imposed on
prescribed by law for the frustrated felony shall Accessories are One Degree Lower
be imposed upon the accessories to the Instead of Two Degrees Lower
commission of a frustrated felony. a. Knowingly using counterfeited seal or
forged signature or stamp of the
Article 56. Penalty to be imposed upon President. (Art 162)
accomplices in an attempted crime. - The b. Illegal Possession and use of a false
penalty next lower in degree than that treasury or bank note. (Art 168)
prescribed by law for an attempt to commit a c. Using a falsified document. (Art 173, Par
felony shall be imposed upon the accomplices in 3)
an attempt to commit the felony. d. Using a falsified dispatch. (Art 173, par
2)
Article 57. Penalty to be imposed upon
accessories of an attempted crime. - The NOTES:
penalty lower by two degrees than that
prescribed by law for the attempt shall be 1. Bases for the determination of the extent
imposed upon the accessories to the attempt to of the penalty to be imposed:
commit a felony. a. Stages of Execution
b. Participation of the Person Liable
DIAGRAM for the Application of Arts 50 - c. Presence of Aggravating or Mitigating
57 Circumstances
108
4. The rules in Arts 53, 55 and 57 do not NOTE: The rules provided in this Art should also
apply if the felony is light because apply in determining the minimum of the
accessories are not liable for the same indeterminate penalty under the Indeterminate
Sentence Law (ISLAW). They are also applicable
Degree Period in lowering the penalty by one or two degrees
Refers to the penalty Refers to the duration by reason of the presence of privileged
imposable for a felony of the penalty mitigating circumstance, or when the penalty is
committed considering consisting of the divisible and there are 2 or more mitigating
the stages of execution maximum, medium circumstances (generic) and no aggravating
and the degree of and minimum, after circumstance.
participation of the considering the
offender. presence or absence of Graduated Scale in Art 71
aggravating 1. Indivisible Penalties
circumstances a. Death
May refer to both Refers only to divisible b. Reclusion Perpetua
divisible and indivisible penalties. 2. Divisible Penalties (maximum, medium,
penalties. minimum)
a. Reclusion Temporal
ARTICLE 58. ADDITIONAL PENALTY TO BE b. Prision Mayor
IMPOSED UPON CERTAIN ACCESSORIES c. Prision Correccional
d. Arresto Mayor
NOTES: e. Destierro
1. This Art applies only if the accessories falling f. Arresto Menor
within the terms of paragraph 3 of article 19 g. Public Censure
(public officers) who should act with abuse of h. Fine
their public functions. Thus, it is further
limited to those whose participation in the Rules to be Observed in Lowering the
crime is characterized by misuse of public Penalty By 1 or 2 Degrees
office or authority.
2. The Art is limited only to grave or less grave Rule 1. When the penalty is single and
felonies since it is not possible to have indivisible - the penalty next lower in degree
accessories liable for light felonies. shall be that immediately following that
indivisible penalty in the respective graduated
Additional Penalties for Public Officers who scale prescribed in article 71 of this Code.
are Accessories: e.g. Reclusion Perpetua, the penalty next lower
a. Absolute Perpetual Disqualification - if the shall be Reclusion Temporal
principal offender shall be guilty of a grave Rule 2.
felony. When the penalty is composed of two
b. Absolute Temporary Disqualification - if the indivisible penalties - the penalty next lower
principal shall be guilty of a less grave in degree shall be that immediately following the
felony. lesser of the penalties prescribed in the
respective graduated scale.
ARTICLE 59. PENALTY FOR IMPOSSIBLE e.g Reclusion Perpetua to Death, the penalty
CRIME immediately following the lesser of the
penalties, which is reclusion perpetua, is
The penalty is arresto mayor or a fine from 200 reclusion temporal.
to 500 pesos.
When the penalty is composed of one or
Basis for the Imposition of Proper Penalty more divisible penalties to be imposed to
1. Social danger; and their full extent - the penalty next lower in
2. Degree of criminality shown by the offender degree shall be that immediately following the
lesser of the penalties prescribed in the
NOTES: respective graduated scale.
1. Art 59 is limited to grave or less grave e.g. One divisible penalty to be imposed to its
felonies. full extent is Reclusion Temporal, the penalty
2. However, considering Art 4, Art 59 is actually immediately following such divisible penalty is
limited to offenses against persons or prision mayor. 2 divisible penalties to be
property. imposed to their full extent are prision
correccional to prision mayor, the penalty
ARTICLE 61. RULES FOR GRADUATING immediately following the lesser of the penalties
PENALTIES is arresto mayor.
109
Rule 3. When the penalty is composed of When the Penalty has Two Periods the
one or two indivisible penalties and the penalty next lower is that consisting of 2 periods
maximum period of another divisible down the scale.
penalty - the penalty next lower in degree shall e.g. The penalty next lower than PC in its
be composed of the medium and minimum minimum and medium period is Arresto mayor
periods of the proper divisible penalty and the in its medium and maximum periods.
maximum period of that immediately following
in said respective graduated scale. When the Penalty has One Period the
penalty next lower is the next period down the
Two Indivisible Penalties and the Maximum scale.
Period of a Divisible Penalty e.g. The penalty immediately inferior to PM in its
e.g. Penalty for murder is Reclusion Temporal in maximum period is PM in its medium period.
its maximum period to Death, Reclusion
Perpetua being in between is included in the NOTE: Mitigating and Aggravating
penalty. Thus, the penalty consists in 2 Circumstances are Disregarded in the
indivisible penalties of death and reclusion Application of the Rules for Graduating Penalties.
perpetua and 1 divisible penalty of reclusion It is ONLY after the penalty next lower in degree
temporal in its maximum. The point of reference is already determined that the mitigating and/or
is the proper divisible penalty which is reclusion aggravating circumstances should be
temporal. Under the 3rd rule, the penalty next considered.
lower is composed of the medium and minimum
periods of RT and the maximum of prision
mayor. SECTION 2
One Indivisible Penalty and the Maximum Period Rules For The Application Of Penalties With
of a Divisible Penalty Regard To The Mitigating And Aggravating
e.g. RT in its maximum period RP. Circumstances, And Habitual Delinquency
110
Par 3. Aggravating or mitigating circumstances Notwithstanding the provisions of this article,
which arise from any of the following shall only the total of the two penalties to be imposed
serve to aggravate or mitigate the liability of the upon the offender, in conformity herewith, shall
principals, accomplices and accessories as to in no case exceed 30 years. The 2 penalties
whom such circumstances are attendant. refer to the penalty for the last crime of which
he is found guilty and the additional penalty for
1. From the moral attributes of the offender a habitual delinquent.
2. From his private relations with the
offended party HABITUAL DELINQUENT - a person who within a
3. From any other personal cause period of 10 years from the date of his release
or last conviction of the crimes of serious or
Par 4. The following circumstances shall serve less serious physical injuries, robbery, theft,
to aggravate or mitigate the liability of those estafa or falsification, he is found guilty of any of
persons only who had knowledge of them at the said crimes a third time or oftener. (As amended
time of the execution of the act or their by Section 23, Republic Act No. 7659.)
cooperation therein:
1. material execution of the act (e.g. with Requisites of Habitual Delinquency
treachery) 1. That the offender had been convicted of any
2. means employed to accomplish it (e.g. of the crimes of serious or less serious
used of poison) physical injuries, robbery, theft, estafa or
falsification.
Par 5. Habitual delinquency shall have the 2. That after that conviction or after serving his
following effects (Additional Penalty for sentence, he again committed, and, within
Habitual Delinquency): 10 years from his release or first conviction,
(a) Upon a third conviction the culprit shall be he was again convicted of any of the said
sentenced to the penalty provided by law for crimes for the 2nd time.
the last crime of which he be found guilty 3. That after his conviction of, or after serving
and to the additional penalty of prision sentence for the 2nd offense, he again
correccional in its medium and maximum committed, and, within 10 years from his
periods; last release or last conviction, he was again
convicted of any of said offenses, the 3 rd
(b) Upon a fourth conviction, the culprit shall be time or oftener.
sentenced to the penalty provided for the
last crime of which he be found guilty and to Habitual Recidivism
the additional penalty of prision mayor in its Delinquency
minimum and medium periods; and Crimes to be Same title
committed are
(c) Upon a fifth or additional conviction, the specified
culprit shall be sentenced to the penalty Within 10 years No time fixed by law
provided for the last crime of which he be Must be found guilty 2nd conviction
found guilty and to the additional penalty of the 3rd time or oftener
prision mayor in its maximum period to Additional penalty is If not offset by MC,
reclusion temporal in its minimum period. imposed. increases penalty to
maximum.
REASON: If graver punishment for
committing the 2nd offense has proved What to be Alleged in the Information
insufficient to restrain his proclivities and to 1. The dates of the commission of the previous
amend his life, he is deemed to have shown crimes.
a dangerous propensity to crimes. Hence, he 2. The date of the last conviction or release.
is punished with a severer penalty for 3. The dates of the other previous convictions
committing any of those crimes the 3rd time or releases.
or oftener. Moreover, it is to render more
effective social defense and the reformation Effect of Plea of Guilty When Allegations are
of multirecidivists. Insufficient NOT an admission that the
offender is a habitual delinquent, but only a
Total Penalties NOT to Exceed 30 Years recidivist.
NOTES:
111
Habitual delinquency has the effect, not only committed are embraced in the same title of
of increasing the penalty because of the RPC.
recidivism which is implied in habitual The imposition of additional penalties on
delinquency, but also of imposing an habitual delinquents is constitutional for it is
additional penalty. simply a punishment on future crimes on
10 year period to be computed from the account of the criminal propensities of the
time of last release or conviction to the date accused.
of conviction of subsequent offense (not to
the date of commission).
Subsequent crime must be committed after ARTICLE 63. RULES FOR THE APPLICATION
conviction of the former crime. Cases still OF INDIVISIBLE PENALTIES
pending are not to be taken into
consideration. 1. Penalty is single indivisible, it shall be
When the offender has committed several applied by the courts regardless of any
crimes mentioned in the definition of mitigating or aggravating circumstances that
habitual delinquent, without first convicted may have attended the commission of the
of any of them before committing the others, deed.
he is not a habitual delinquent.
2. When the penalty is composed of two
Convictions on the same day or about the
indivisible penalties, the following rules
same time are considered as one only.
shall be observed:
Crimes committed on the same date,
although convictions on different dates, are a. When there is only one aggravating
considered only one. circumstance, the greater penalty shall
Previous convictions are considered every be applied.
time a new offense is committed. b. When there is neither mitigating nor
Commissions of any of those crimes need aggravating circumstances in the
not be consummated. It applies at any stage commission of the deed, the lesser
of the execution because subjectively, the penalty shall be applied.
offender reveals the same degree of c. When there is mitigating circumstance
depravity or perversity as the one who and no aggravating circumstance, the
commits a consummated crime. lesser penalty shall be applied.
Habitual delinquency applies to accomplices
and accessories. It applies to all participants Thus, the penalty cannot be lowered by
because it reveals persistence in them of the 1 degree no matter how many mitigating
inclination to wrongdoing and of the circumstances are present.
perversity of character that led them to
commit the previous crime. Exception: When a privileged mitigating
A crime committed by the offender during circumstance under Art 68 or 69 is
minority is not counted because the present.
proceedings as regards that crime are
suspended. d. When both mitigating and aggravating
The imposition of the additional penalty for circumstances attended the commission
habitual delinquents is mandatory NOT of the act, the courts shall reasonably
discretionary. allow them to offset one another in
Modifying circumstances applicable to consideration of their number and
additional penalty. importance, for the purpose of applying
Habitual delinquency is NOT a crime but the penalty in accordance with the
preceding rules, according to the result
simply a fact or circumstance which if
of such compensation.
present gives rise to the imposition of the
additional penalties.
In this Par 4, moral value and not
Penalty for habitual delinquency is a real
numerical weight shall be taken into
penalty that determines jurisdiction. account.
A habitual delinquent is necessarily a
recidivist. NOTES:
But in imposing the additional penalty, Art 63 is applicable only when the penalty is
recidivism is not aggravating inasmuch as either one indivisible penalty or two
recidivism is a qualifying or inherent in indivisible penalties. Thus, it is NOT
habitual delinquency. The additional penalty applicable if the penalty is reclusion
must be imposed in its minimum. temporal in its maximum to death, because
An offender can be a habitual delinquent although this penalty includes 2 indivisible
without being s recidivist when no 2 crimes penalties, it has 3 periods.
112
minimum period when there is an
ARTICLE 64. RULES FOR THE APPLICATION aggravating circumstance.
OF PENALTIES WHICH CONTAIN THREE
PERIODS 6. Whatever may be the number and nature of
the aggravating circumstances, the courts
In cases in which the penalties prescribed by law shall not impose a greater penalty than that
contain three periods, whether it be a single prescribed by law, in its maximum period.
divisible penalty or composed of three different
penalties, each one of which forms a period in 7. Within the limits of each period, the courts
accordance with the provisions of articles 76 and shall determine the extent of the penalty
77, the courts shall observe for the application according to the number and nature of the
of the penalty the following rules, according to aggravating and mitigating circumstances
whether there are or are no mitigating or and the greater or lesser extent of the evil
aggravating circumstances: produced by the crime.
113
b. More particularly to the wealth or means 2. Art 68 applies to such minor if his application
of the culprit. for suspension of sentence is disapproved or
3. The following may also be considered by while in the reformatory institution he
the court: becomes incorrigible, in which case he shall
a. Gravity or seriousness of the crime be returned to court for the imposition of the
committed; proper penalty. The penalties to be imposed
b. Heinousness of its perpetration; are:
c. Magnitude of its effects on the offenders a. Under 15 but over 9 years of age when
victims. acted with discernment - at least 2
degrees lower than that prescribed by
NOTE: When the minimum of the fine is not fixed law for the crime committed.
by law, the court has the discretion to determine b. Over 15 (should be 15 or over) and
the fine provided it shall not exceed the under 18 years of age - the penalty next
maximum authorized by law. lower than that prescribed by law shall
be imposed, but always in the proper
ARTICLE 67. PENALTY TO BE IMPOSED period. (1 degree lower)
WHEN NOT ALL THE REQUISITES OF
EXEMPTION OF THE FOURTH If the act is attended by 2 or more
CIRCUMSTANCE OF ARTICLE 12 ARE mitigating and no aggravating, the
PRESENT penalty being divisible, a minor over 15
and under 18 may still get a penalty 2
Requisites of Art 12 par 4: degrees lower.
114
Note: The above penalties, except sentences are promulgated by different
distierro, can be served simultaneously courts, at different times, for different
with imprisonment. crimes, and under separate informations.
The 3-fold rule must be used only when
2. Otherwise, the order of their severity shall the product of the greatest penalty
be followed. multiplied by 3 is less than the sum of all the
penalties to be imposed.
In such case, they may be executed For purposes of the rule, indivisible
successively or as nearly as may be penalties shall be given an equivalent
possible, should a pardon have been granted duration of 30 years, so that if he will have
as to the penalty or penalties first imposed, to suffer several perpetual disqualification,
or should they have been served out. under the rule, you take the most severe
and multiply it by 3. The rule does not apply
Note: The time of the 2nd sentence will not to the penalty prescribed but to the penalty
commence to run until the expiration of the imposed as determined by the court.
first.
Different Systems of Penalty
The respective severity of the penalties 1. Material Accumulation System no limitation
is as follows: whatsoever, and accordingly all the
1. Death, penalties for all the violations were imposed
2. Reclusion perpetua, even if they reached beyond the natural
3. Reclusion temporal, span of human life. (e.g. Pars 1 to 3 of Art
4. Prision mayor, 70)
5. Prision correccional, 2. Juridical Accumulation System Limited to
6. Arresto mayor, not more than the 3-fold length of time
7. Arresto menor, corresponding the most severe penalty and
8. Destierro, in no case to exceed 40 years.
9. Perpetual absolute disqualification, 3. Absorption System the lesser penalties are
10 Temporary absolute disqualification. absorbed by graver penalties.
11. Suspension from public office, the right
to vote and be voted for, the right to follow a
profession or calling, and ARTICLE 71. GRADUATED SCALES
12. Public censure.
In the cases in which the law prescribes a
In applying the provisions of this rule the penalty lower or higher by one or more degrees
duration of perpetual penalties (penal perpetua) than another given penalty, the rules prescribed
shall be computed at thirty years.(As amended in article 61 shall be observed in graduating
by Com. Act No. 217.) such penalty.
Three-Fold Rule - the maximum duration of The lower or higher penalty shall be taken from
the convicts sentence shall not be more than 3 the graduated scale in which is comprised the
times the length of time corresponding to the given penalty.
most severe of the penalties imposed upon him.
The courts, in applying such lower or higher
No other penalty to which he may be liable shall penalty, shall observe the following graduated
be inflicted after the sum total of those imposed scales:
equals the same maximum period. (Thus,
Subsidiary imprisonment shall be excluded in SCALE NO. 1
computing for the maximum duration) 1. Death,
2. Reclusion perpetua,
Such maximum period shall in no case exceed 3. Reclusion temporal,
forty years. 4. Prision mayor,
Notes: 5. Prision correccional,
The phrase the most severe of the 6. Arresto mayor,
penalties includes equal penalties. 7. Destierro,
If only 2 or 3 penalties corresponding to 8. Arresto menor,
different crimes committed by the convict 9. Public censure,
are imposed, it is hardly possible to apply 10. Fine.
the 3-fold rule.
The 3-fold rule applies only when the SCALE NO. 2
convict has to serve at least four sentences. 1. Perpetual absolute disqualification,
Sentences must be served successively, not 2. Temporary absolute disqualification
simultaneously. It applies although
115
3. Suspension from public office, the right to ARTICLE 73. PRESUMPTION IN REGARD TO
vote and be voted for, the right to follow a THE IMPOSITION OF ACCESSORY PENALTIES
profession or calling,
4. Public censure, Whenever the courts shall impose a penalty
5. Fine. which, by provision of law, carries with it other
Art 25 Art 70 Art 71 penalties, according to the provisions of Articles
Penalties are Penalties are Provides for 40, 41, 42, 43, 44, and 45 of this Code, it must
classified into classified the scale to be be understood that the accessory penalties are
principal and according to observed in also imposed upon the convict.
accessory severity. graduating of Note: Subsidiary imprisonment must be stated
penalties. penalties by in the decision because it is not considered a
Principal is degrees. accessory penalty.
further Penalties are
classified into classified into ARTICLE 74. PENALTY HIGHER THAN
capital, 2 graduated RECLUSION PERPETUA IN CERTAIN CASES
afflictive, scales. Scale 1
correctional, refers to In cases in which the law prescribes a penalty
and light. personal higher than another given penalty, without
penalties, specifically designating the name of the former,
while scale 2 if such higher penalty should be that of death,
refer to the same penalty and the accessory penalties of
penalties article 40, shall be considered as the next higher
consisting in penalty.
deprivation of
political rights. NOTE: If the law or decision says higher than RP
Destierro is Destierro is Destierro is or 2 degrees higher than RT, then the penalty
placed above placed under above arresto imposed is RP or RT as the case may be and not
arresto menor arresto menor menor death. Death must be designated by name.
because it is according to because it is However, the accessory penalties of death when
classifies as severity. classified as not executed by reason of commutation or
correctional Destierro is correctional pardon shall be imposed..
penalty. lighter than penalty which
arresto menor. is higher than ARTICLE 75. INCREASING OR REDUCING
arresto menor, THE PENALTY OF FINE BY ONE OR MORE
a light penalty DEGREES
116
The legal period of duration of divisible penalties ARTICLE 77. WHEN THE PENALTY IS A
shall be considered as divided into three parts, COMPLEX ONE COMPOSED OF THREE
forming three periods, the minimum, the DISTINCT PENALTIES
medium, and the maximum in the manner
shown in the following table: In cases in which the law prescribes a penalty
composed of three distinct penalties, each one
TABLE SHOWING THE DURATION OF shall form a period; the lightest of them shall be
DIVISIBLE PENALTIES AND THE TIME the minimum, the next the medium, and the
INCLUDED IN EACH OF THEIR PERIODS most severe the maximum period (Known as the
Penalt Time Time Time Time COMPLEX PENALTY).
ies include include includ include
d in the d in its ed in d in its Whenever the penalty prescribed does not have
penalty minimu its maximu one of the forms specially provided for in this
in its m mediu m Code, the periods shall be distributed, applying
entirety period m period for analogy the prescribed rules.
period
Reclu From 12 From 12 From 14 From 17 EXCUTION AND SERVICE OF PENALTY
sion years years years, 8 years, 4
Tempo and 1 and 1 months months No penalty shall be executed except by
ral day to day to and 1 and 1 virtue of a final judgment
20 years 14 years day to day to The judgment must be final before it can
and 8 17 20 years be executed because the accused may
months years still appeal within 15 days from its
Prisio From 6 From 6 From 8 From 10 promulgation. But if the dependant has
n years years years years expressly waived in writing his right to
Mayor and 1 and 1 and 1 and 1 appeal, the judgment becomes final
, day to day to 8 day to day to immediately.
absol 12 years years 10 12 years
ute years RULES IN SUSPENSION OF THE EXECUTION
disqu AND SERVICE OF PENALTIES IN CASE OF
alifica INSANITY:
tion
and 1 When a convict becomes insane or
specia imbecile after final sentence has been
l pronounced, the execution of said
tempo sentence is suspended only as regards
rary the personal penalty.
disqu 2 If he RECOVERS his reason, his sentence
alifica shall be executed, unless the penalty has
tion prescribed.
Prisio From 6 From 6 From 2 From 4 3 Even if while serving his sentence, the
n months months years, 4 years 2 convict becomes insane or imbecile,
Correc and 1 and 1 months months Article 79 shall be observed.
cional day to 6 day to 2 and 1 and 1 4 But the payment of his civil or pecuniary
, years years day to day to 6 liabilities shall not be suspended.
suspe and 4 4 years years
nsion months and 2
and months Title 4
destie EXTINCTION OF CRIMINAL LIABILITY
rro
Arrest From 1 From 1 From 2 From 4 There are two (2) classifications
o month month months months when Criminal Liability are
Mayor and 1 and 1 and 1 1 day to extinguished:
(does day to 6 day to 2 day to 6 a TOTAL
not months months 4 months b PARTIAL
follow months
the CRIMINAL LIABILITY IS TOTALLY
rule) EXTINGUISHED AS FOLLOWS:
Arrest From 1 From 1 From 11 From 21
o to 30 to 10 to 20 to 30 1. By the death of the convict as to
Menor days days days days personal penalties, and as to the pecuniary
penalties, liability therefore is
117
extinguished only when the death of the by the president communities who may
offender occurs before final judgment. be guilty of political
offenses
The death of the convict, whether before
or after final judgment, extinguishes - exercised when the - may be exercised even
criminal liability, because one of the person is already before trial or
juridical conditions of penalty is that it is convicted investigation is had
PERSONAL. At this instance, his civil - pardon looks forward - amnesty looks
liability is also extinguished. and relieves the offender backward and abolishes
While the case is on appeal, the offender from the consequences and puts into oblivion
dies, the case on appeal will be of an offense or which he the offense itself.
dismissed. The offended party may file a has been convicted, that
separate civil action under the Civil Code is its abolishes or
if any other basis for recovery of civil forgives the punishment
liability exists as provided under Art. - pardon being a private
- amnesty being by
1157 of the Civil Code. act of the President must
proclamation of the chief
be pleaded and proved executive with the
2. By service of sentence by the person pardoned concurrence of
Congress, is a public act
of which the courts
Crime is debt incurred by the
should take judicial
offender as a consequence of his
notice
wrongful act and the penalty is but
* BOTH DO NOT EXTINGUISH THE CIVIL LIABILITY
the amount of his debt.
OF THE OFFENDER
Service of sentence does not
extinguish the civil liability. 5. By prescription of the crime.
3. By amnesty which completely
extinguishes the penalty and all its effects It is the forfeiture or loss of the right
of the state to Prosecute the offender
after the lapse of a certain time.
AMNESTY, Defined.
It is an act of the sovereign power granting Prescription of the crime begins, as a
oblivion or a general pardon for a past offense general rule on the day of the crime
and is rarely, if ever, exercised in the favor of a was committed, unless the crime was
single individual, and is usually exerted in behalf concealed, not public, in which case,
of certain classes of persons, who are subject to the prescription thereof would only
trial but have not yet been convicted. commence from the time the
offended party or the government
Amnesty erases not only the conviction learns of the commission of the
crime.
but also the crime itself.
Prescription of the crime is not
While amnesty wipes out all traces and
waivable.
vestiges of the crime, it does not
extinguish the civil liability of the
The prescription of the felony is suspended
offender.
when:
1 When a complaint is filed in a proper
4. By absolute pardon.
barangay for conciliation or
mediation but the suspension of the
PARDON. Defined. prescriptive period is good only for
It is an act of grace proceeding from the 60 days, after which the prescription
power entrusted with the execution of the laws will resume to run, whether the
which exempts the individual on whom it is conciliation or mediation is
bestowed from the punishment of the law inflicts terminated or not.
for the crime he has committed. 2 When criminal case is filed in the
Fiscals Office, the prescription of the
Pardon, whether absolute or crime is suspended until the accused
conditional, is in the nature of a is convicted or the proceeding is
deed, for the validity of which terminated for a cause not
delivery is an indispensable requisite. attributable to the accused.
3 But where the crime is subject to
AMNESTY AND PARDON DISTINGUISHED. summary Procedure, the Prescription
PARDON AMNESTY of the crime will be suspended only
- includes any crime and - is a blanket of pardon when the information is already filed
is exercised individually to classes of persons on with the trial court. It is not the filing
118
of the complaint, but the filing of the Correccional Penalties 10 years
information in the trial court which Arresto Mayor 5 years
will suspend the prescription. Light Penalties 1 year
BOOK II
121
properties because the offender performed
TITLE I an unauthorized act, like those who recruit
CRIMES AGAINST NATIONAL SECURITY Filipinos to participate in the gulf war. If
AND THE LAWS OF NATIONS they involve themselves to the war, this
crime is committed. Relevant in the cases of
Crimes against national security Flor Contemplacion or Abner Afuang, the
1. Treason (Art. 114); police officer who stepped on a Singaporean
2. Conspiracy and proposal to commit flag.
treason (Art. 115);
3. Misprision of treason (Art. 116); and (3) Violation of Neutrality, under Article 119
4. Espionage (Art. 117). The Philippines is not a party to a war but
there is a war going on. This may be
Crimes against the law of nations committed in the light of the Middle East
1. Inciting to war or giving motives for war.
reprisals (Art. 118);
2. Violation of neutrality (Art. 119); Section 1 Treason and Espionage
3. Corresponding with hostile country (Art.
120); Article 114. Treason
4. Flight to enemy's country (Art. 121); and
5. Piracy in general and mutiny on the high Elements
seas (Art. 122). 1. Offender is a Filipino or resident alien (owes
allegiance to the government);
The crimes under this title can be prosecuted 2. There is a war in which the Philippines is
even if the criminal act or acts were committed involved;
outside the Philippine territorial jurisdiction. 3. Offender either
However, prosecution can proceed only if the a. levies war against the government; or
offender is within Philippine territory or brought b. adheres to the enemies, giving them aid
to the Philippines pursuant to an extradition or comfort within the Philippines or
treaty. This is one of the instances where the elsewhere
Revised Penal Code may be given extra-
territorial application under Article 2 (5) thereof. Treason breach of allegiance to the
In the case of crimes against the law of nations, government by a person who owes allegiance to
the offender can be prosecuted whenever he it.
may be found because the crimes are regarded
as committed against humanity in general. Allegiance obligation of fidelity and
obedience which individuals owe to the
In crimes against the law of nations, the government under which they live or to their
offenders can be prosecuted anywhere in the sovereign, in return for protection they receive.
world because these crimes are considered as
against humanity in general, like piracy and Treason is a war crime punished by
mutiny. Crimes against national security can be
state as a measure of self-protection.
tried only in the Philippines, as there is a need
to bring the offender here before he can be
Committed in times of war (not peace) when
made to suffer the consequences of the law.
The acts against national security may be o There is actual hostiltites
committed abroad and still be punishable under o No need for a declaration of war
our law, but it can not be tried under foreign
law. Mere acceptance of public office and
discharge of official duties under the enemy
Almost all of these are crimes committed in do not constitute per se the felony of
times of war, except the following, which can be treason. But when the position is policy-
committed in times of peace: determining, the acceptance of public office
and discharge of official duties constitute
(1) Espionage, under Article 114 This is also treason
covered by Commonwealth Act No. 616
which punishes conspiracy to commit Ways to Commit Treason:
espionage. This may be committed both in
times of war and in times of peace. 1. Levying war against government which
requires:
(2) Inciting to War or Giving Motives for a. actual assembling of men
Reprisals, under Article 118 This can be b. for the purpose of executing a treasonable
committed even if the Philippines is not a design, by force
participant. Exposing the Filipinos or their
122
Levying war must be with intent to
overthrow the government as such, not Confession must be in open court
merely to repeal a particular statute or to
resist a particular officer. Reason for 2-witness rule special nature
of the crime requires that the accused be
Not necessary that those attempting to afforded a special protection not required in
overthrow the government by force of arms other cases so as to avoid a miscarriage of
should have the apparent power to succeed justice. Extreme seriousness of the crime, for
in their design, in whole or in part. which death is one of the penalties provided
by law, and the fact that the crime is
It is not necessary that there be a formal committed in abnormal times, when small
declaration of the existence of the state of differences may in mortal enmity wipe out
war. all scruples in sacrificing the truth
1. Filipino permanent allegiance; can commit Article 115. Conspiracy and Proposal to
treason anywhere Commit Treason
2. Alien Residing temporary allegiance;
commit treason only while residing in Elements of conspiracy to commit treason
Philippines.
1. There is a war in which the Philippines is
Ways to Prove involved;
2. At least two persons come to an agreement
1. Treason to
a. testimony of at least 2 witnesses to the a. levy war against the government; or
same overt act b. adhere to the enemies, giving them aid
b. judicial confession of accused or comfort;
3. They decide to commit it.
To convict: testimonies must relate to the
same overt act not two similar acts Elements of proposal to commit treason
If act is separable each witness can 1. There is a war in which the Philippines is
testify to parts of it, but the act, as a whole, involved;
must be identifiable as an overt act 2. At least one person decides to
a. levy war against the government; or
123
b. adhere to the enemies, giving them aid injury of the Republic of the Philippines or the
or comfort; advantage of a foreign nation.
3. He proposes its execution to some other Modes of Committing Espionage
persons.
1. By entering, without authority, a
GENERAL RULE, conspiracy and proposal to warship, fort or naval or military
commit a felony is not punishable (Art 8). establishment or reservation to obtain any
Art 115 is an exception as it specifically information, plans, photograph or other data
penalizes conspiracy and proposal to commit of a confidential nature relative to the
treason. defense of the Philippines;
Two-witness rule not applicable since this is Elements
a crime separate and distinct from treason.
If actual acts of treason are committed after 1. Offender enters any of the places
the conspiracy or proposal, the crime mentioned;
committed will be treason, and the 2. He has no authority therefore;
conspiracy or proposal is considered 3. His purpose is to obtain information,
absorbed. plans, photographs or other data of a
confidential nature relative to the
defense of the Philippines.
Article 116. Misprision of Treason
Note: There must be an intention to obtain
Elements information relative to the defense of the
Phils., although it is not necessary that the
1. Offender must be owing allegiance to the information is obtained.
government, and NOT a foreigner;
2. He has knowledge of conspiracy to commit 2. By disclosing to the representative of a
treason against the government; foreign nation the contents of the articles,
3. He conceals or does not disclose and make data or information referred to in paragraph
known the same as soon as possible to the 1 of Article 117, which he had in his
proper authority. possession by reason of the public office he
holds.
Elements
It is a crime of omission. It is an exception to
the rule that mere silence does not make a
1. Offender is a public officer;
person criminally liable.
2. He has in his possession the articles,
Crime doesnt apply if crime of treason is
data or information referred to in
already committed and it is not reported. paragraph 1 of Article 117, by reason of
Whether the conspirators are parents or the public office he holds;
children, and the ones who learn the 3. He discloses their contents to a
conspiracy is a parent or child, they are representative of a foreign nation.
required to report the same. The reason is
that although blood is thicker than water so Persons Liable
to speak, when it comes to security of the
state, blood relationship is always 1. first mode:
subservient to national security. Article 20 a. Filipino (being a public officer is
does not apply here because the persons aggravating)
found liable for this crime are not considered b. alien residing
accessories; they are treated as principals. 2. second mode:
The phrase shall be punished as an a. offender is a public officer
accessory to the crime of treason
mentioned in the provision does not mean Espionage is not conditioned on citizenship.
that the offender is an accessory to the Wiretapping is not espionage if the purpose
crime of treason because he is actually a is not connected with the defense.
principal in a crime of misprision of treason.
It simply means that the penalty imposed is
TREASON ESPIONAGE
that of an accessory to the crime of treason.
Both not conditioned by citizenship of
offender
Article 117. Espionage
Committed in war war and peace
time time
Espionage is the offense of gathering,
transmitting, or losing information respecting Limited in two Committed in many
ways of committing ways
the national defense with intent or reason to
believe that the information is to be used to the the crime: levying
war, and adhering
124
to the enemy giving 1. There is a war in which the Philippines is not
him aid or comfort involved;
2. There is a regulation issued by a competent
Commonwealth Act No. 616 An Act to authority to enforce neutrality;
Punish Espionage and Other Offenses 3. Offender violates the regulation.
against National Security
NEUTRALITY the condition of a nation that in
Some Acts punished times of war it takes no part in the contest of
arms between others.
1. Unlawfully obtaining or permitting to be
obtained information affecting national Being a public officer or employee has
defense; higher penalty
2. Unlawful disclosing of information affecting
national defense; Article 120. Correspondence with Hostile
3. Disloyal acts or words in times of peace(i.e Country
causing in any manner insubordination,
disloyalty, mutiny or refusal of duty of any Elements
member of the military, naval, or air forces
of the Philippines) ; 1. It is in time of war in which the Philippines is
4. Disloyal acts or words in times of war; involved;
5. Conspiracy to violate the foregoing acts; 2. Offender makes correspondence with an
6. Harboring or concealing violators of law (i.e. enemy country or territory occupied by
the offender harbors a person whom he enemy troops;
knows as someone who committed or is 3. The correspondence is either
about to commit a violation of this Act; and a. prohibited by the government;
the person harbors or conceals such person); b. carried on in ciphers or conventional
and signs; or
7. Photographing from aircraft of vital c. containing notice or information which
information. might be useful to the enemy.
Elements Elements
125
1. There is a war in which the Philippines is belongings of its complement or
involved; passengers;
2. Offender must be owing allegiance to the 4. There is intent to gain.
government;
3. Offender attempts to flee or go to enemy Elements of mutiny
country;
4. Going to the enemy country is prohibited by 1. The vessel is on the high seas or Philippine
competent authority. waters;
2. Offenders are either members of its
Persons liable complement, or passengers of the vessel;
1. Filipino citizen 3. Offenders either raise commotions and
2. Alien residing in the Philippines disturbances on board a ship against the
authority of its commander or make unlawful
mere attempt consummates the crime resistance to a superior officer.
there must be a prohibition. If there is none, High seas any waters on the sea coast
even if one went to enemy country, there is which are without the boundaries of the low
no crime water mark although such waters may be in the
an alien resident may be held guilty for this jurisdictional limits of a foreign govt; parts of
crime because an alien owes allegiance to the sea that are not included in the exclusive
Phil. govt although temporary. economic zone, in territorial seas, or in the
internal waters of a state, or in archipelagic
waters of an archipelagic state (US convention
Section 3 Piracy and Mutiny on the High on the Law of the Sea)
Seas
Philippine waters all bodies of water, such
Article 122. Piracy in general and Mutiny as but not limited to seas, gulfs, bays, around,
on the High Seas or in Philippine Waters between and connecting each of the islands of
the Philippine Archipelago, irrespective of its
Piracy it is robbery or forcible depredation on depth, breadth, length or dimension, and all
the high seas, without lawful authority and done waters belonging to the Phils. by historic or legal
with animo furandi and in the spirit and title, inc. territorial sea, the seabed, the insular
intention of universal hostility. shelves, and other submarine areas over which
the Phils has sovereignty and jurisdiction. (Sec
Mutiny the unlawful resistance to a superior, 2, PD No. 532)
or the raising of commotions and disturbances
on board a ship against the authority of its Piracy in high seas jurisdiction of any court
commander where offenders are found or arrested because
piracy is a crime not against any particular state
Modes of Committing Piracy in the High but against all mankind (Hostis Humanis
Seas or in Philippine waters Generis).
126
violence or intimidation on persons of force Note: Under PD 532, piracy may be committed
upon things, the crime of piracy cannot be even by passenger or member of the
committed, but only theft. complement of the vessel.
127
The important thing is that before the anti is a question now of whether the anti-hi-
hi-jacking law can apply, the aircraft must be jacking law shall govern.
in flight. If not in flight, whatever crimes
committed shall be governed by the Revised The anti hi-jacking law is applicable in this
Penal Code. The correlative crime may be case. Even if the aircraft is not yet about to
one of grave coercion or grave threat. If fly, the requirement that it be in flight does
somebody is killed, the crime is homicide or not hold true when in comes to aircraft of
murder, as the case may be. If there are foreign registry. Even if the problem does
some explosives carried there, the crime is not say that all exterior doors are closed, the
destructive arson. Explosives are by nature crime is hi-jacking. Since the aircraft is of
pyro-techniques. Destruction of property foreign registry, under the law, simply
with the use of pyro-technique is destructive usurping or seizing control is enough as long
arson. If there is illegally possessed or as the aircraft is within Philippine territory,
carried firearm, other special laws will apply. without the requirement that it be in flight.
Plane is in flight after all exterior doors Note, however, that there is no hi-jacking in
are closed following embarkation until the attempted stage. This is a special law
opened for disembarkation. This means that where the attempted stage is not
there are passengers that boarded. So if the punishable.
doors are closed to bring the aircraft to the
hangar, the aircraft is not considered as in Q: A Philippine Air Lines aircraft is bound for
flight. The aircraft shall be deemed to be Davao. While the pilot and co-pilot are
already in flight even if its engine has not taking their snacks at the airport lounge,
yet been started. some of the armed men were also there.
The pilots were followed by these men on
(2) usurping or seizing control of an aircraft of their way to the aircraft. As soon as the
foreign registry while within Philippine pilots entered the cockpit, they pulled out
territory, or compelling the pilots thereof to their firearms and gave instructions where to
land in any part of Philippine territory (hi- fly the aircraft. Does the anti hi-jacking law
jacking of Foreign Aircraft); apply?
Hi-jacking of Foreing Aircraft, How
Committed A: No. The passengers have yet to board
a. Compelling the plane to land in the Phils the aircraft. If at that time, the offenders
(not be the point of destination) are apprehended, the law will not apply
b. Usurping or seizing control of the plane because the aircraft is not yet in flight. Note
even if not in flight. that the aircraft is of Philippine registry.
If the aircraft is of foreign registry, the Q: While the stewardess of a Philippine Air
law does not require that it be in flight Lines plane bound for Cebu was waiting for
before the anti hi-jacking law can apply. the passenger manifest, two of its
This is because aircrafts of foreign registry passengers seated near the pilot
are considered in transit while they are in surreptitiously entered the pilot cockpit. At
foreign countries. Although they may have gunpoint, they directed the pilot to fly the
been in a foreign country, technically they aircraft to the Middle East. However, before
are still in flight, because they have to move the pilot could fly the aircraft towards the
out of that foreign country. So even if any of Middle East, the offenders were subdued and
the acts mentioned were committed while the aircraft landed. What crime was
the exterior doors of the foreign aircraft committed?
were still open, the anti hi-jacking law will
already govern. A: The aircraft was not yet in flight.
Considering that the stewardess was still
Q: The pilots of the Pan Am aircraft were waiting for the passenger manifest, the
accosted by some armed men and were told doors were still open. Hence, the anti hi-
to proceed to the aircraft to fly it to a foreign jacking law is not applicable. Instead, the
destination. The armed men walked with the Revised Penal Code shall govern. The crime
pilots and went on board the aircraft. But committed was grave coercion or grave
before they could do anything on the threat, depending upon whether or not any
aircraft, alert marshals arrested them. What serious offense violence was inflicted upon
crime was committed? the pilot.
128
1. Firing upon the pilot, member of the crew only a cargo aircraft, the law is violated only
or passenger of the aircraft (For firing when the transporting of the prohibited
upon to qualify the offense, the offender substance was not done in accordance with
must have actually fired his weapon. the rules and regulations prescribed by the
Mere attempt is not enough. For firing Air Transportation Office in the matter of
upon to qualify the offense, the offender shipment of such things. The Board of
need not succeed in hitting the pilot, Transportation provides the manner of
crew member or passenger) packing of such kind of articles, the quantity
2. exploding or attempting to explode any in which they may be loaded at any time,
bomb or explosive to destroy the aircraft; etc. Otherwise, the anti hi-jacking law does
or not apply.
3. the crime is accompanied by murder,
homicide, serious physical injuries, or However, under Section 7, any physical
rape injury or damage to property which would
result from the carrying or loading of the
Q: In the course of the hi-jack, a passenger flammable, corrosive, explosive, or
or complement was shot and killed. What poisonous substance in an aircraft, the
crime or crimes were committed? offender shall be prosecuted not only for
violation of Republic Act No. 6235, but also
A: The crime remains to be a violation of the for the crime of physical injuries or damage
anti hi-jacking law, but the penalty thereof to property, as the case may be, under the
shall be higher because a passenger or Revised Penal Code. There will be two
complement of the aircraft had been killed. prosecutions here. Other than this situation,
The crime of homicide or murder is not the crime of physical injuries will be
committed. absorbed. If the explosives were planted in
the aircraft to blow up the aircraft, the
Q The hi-jackers threatened to detonate a circumstance will qualify the penalty and
bomb in the course of the hi-jack. What that is not punishable as a separate crime
crime or crimes were committed? for murder. The penalty is increased under
the anti hi-jacking law.
A: Again, the crime is violation of the anti hi-
jacking law. The separate crime of grave All other acts outside of the four are merely
threat is not committed. This is considered qualifying circumstances and would bring
as a qualifying circumstance that shall serve about higher penalty. Such acts would not
to increase the penalty. constitute another crime. So the killing or
explosion will only qualify the penalty to a
(3) carrying or loading on board an aircraft higher one.
operating as a public utility passenger
aircraft in the Philippines, any flammable, Note: There is no attempted or frustrated hi-
corrosive, explosive, or poisonous jacking even if the hi-jackers are overpowered.
substance; and
(4) loading, shipping, or transporting on board a
cargo aircraft operating as a public utility in R.A. 9372. AN ACT TO SECURE TO
the Philippines, any flammable, corrosive, SECURE THE STATE AND PROTECT
explosive, or poisonous substance if this was OUR PEOPLE FROM TERRORISM
done not in accordance with the rules and (THE HUMAN SECURITY ACT OF 2007)
regulations set and promulgated by the Air
Transportation Office on this matter. I. It created the crime known as terrorism and
declared it to be a crime against the Filipino
As to numbers 3 and 4 of Republic Act No. people, against humanity, and against the
6235, the distinction is whether the aircraft law of nations.
is a passenger aircraft or a cargo aircraft. In
both cases, however, the law applies only to II. Defines the crime of terrorism to be the
public utility aircraft in the Philippines. commission of any of the crimes of :
Private aircrafts are not subject to the anti
hi-jacking law, in so far as transporting A. Under the Revised Penal Code.
prohibited substances are concerned. i. Piracy in general and Mutiny in the High
Seas or in the Philippine Waters
If the aircraft is a passenger aircraft, the ii. rebellion
prohibition is absolute. Carrying of any iii. Coup detat
prohibited, flammable, corrosive, or iv. Murder
explosive substance is a crime under v. Kidnapping and Serious Illegal Detention
Republic Act No. 6235. But if the aircraft is
129
B. Under Special Laws The penalty is 10 yrs. And one day to 12
i. Arson under P.D. 1613 years
ii. Violation of R.A. 6969 ( Toxic Substance
ad Nuclear Waste Control) 1. The law however adopts the
iii. R.A. 5207 ( Atomic Energy Regulatory absolutory cause of exemption of
and Liability Act of 1968) accessories from liability with respect
iv. Hijacking to their relatives
v. Piracy in Phil. Waters and Highway
Robbery V. Surveillance of Suspects and Interception and
vi. P.D. 1866 ( Possession and Manufacture Recording of Communications
of Firearms/explosives) thereby
showing and creating a condition of A. Authorizes the grant of Judicial
widespread and extraordinary fear and Authorization to listen, intercept, and
panic among the populace, in order to record, any communication, message,
coerce the government to give in to an conversation, discussion, or of spoken or
unlawful demand. written words between members of (i) a
judicially declared and outlawed terrorist
III. Requirements for Terrorism organization or association or group, or
(ii) of any person charged with or
A. The accused (maybe a single individual or suspected of the crime of terrorism or
a group) must commit any of the conspiracy to commit terrorism
enumerated crimes
1. The Judicial Authorization can only be
B. There results a condition of widespread
issued by the Court of Appeals (a)
and extraordinary fear and panic among
upon a written application filed by a
the populace
police or law enforcement official or
i. The extent and degree of fear and
members of his team and (b). after
panic, including the number of
an ex parte hearing establishing (c).
people affected in order to meet the
probable cause that
term populace, are questions of
terrorism/conspiracy to commit
facts to be determined by the courts
terrorism has been committed, or is
and on a case to case basis.
being committed, or is about to be
ii. Is the term populace to be
committed ( note that the wording is
interpreted as referring to the local
not attempted)
inhabitants where the acts were
committed, or does it refer to the
2. The applicant must have been
national population?
authorized in writing to file the
application by the Anti Terrorism
C. The purpose of the accused must be to
Council (The Body created to
coerce the government to give into an
implement the law and assume
unlawful demand
responsibility for the effective
i. The word demand is too broad as to
implementation of the anti-
cover not only political, criminal or
terrorism[policy of the country)
monetarial demands but also those
which maybe categorized as social or
3. The Judicial Authority is effective for a
economic. This however is qualified
maximum period not to exceed 30
by the word unlawful.
days from date of receipt of the
written order and may be extended
IV. Other Acts/Persons Liable
for another similar period
A. Conspiracy to commit terrorism. The
penalty is the same as terrorism itself
(i.e. 40 years of imprisonment) B. Punishes the act of failure to notify the
person subject of the surveillance,
B. Accomplices - he cooperates in the monitoring or interception, if no case
execution of either terrorism or was filed within the 30 day period/life
conspiracy to commit terrorism by time of the Order of Court authorizing
previous or simultaneous acts (Penalty is the surveillance
17 yrs. 4 months and one day to 20 C. Punishes any person who conducts any
years) unauthorized or malicious interceptions
and or recording of any form of
C. Accessory - The acts punished are the communications, messages,
same as that under Article 19 of the RPC. conversations, discussions or spoken or
written words
130
C. If arrest was on a nonworking day or hour,
VI. Provides for a Judicial Declaration of Terrorists the person arrested shall be brought to
and Outlawed organization, association, or the residence of any of the above named
group of persons, by any RTC upon officials nearest the place of arrest.
application by the DOJ and upon prior notice
to the group affected. D. Failure to deliver the person charged or
suspected as terrorists to the proper
VII. Procedure when a suspected terrorist is judicial; authority within three days is
arrested punished by 10 years and one day to 12
years.
A. A suspected terrorist maybe arrested by
any law enforcement personnel IX. Other Acts Punished As Offenses (punished
provided: by imprisonment of 10 years and one day to
1. The law enforcement agent was duly 12 years) which acts are related to the
authorized in writing by the Anti arrest/detention of suspected terrorists
Terrorism Council
2. The arrest was the result of a A. Violation of the rights of a person
surveillance or examination of bank detained
deposits 1. Right to be informed of the nature and
cause of the arrest; to remain silent;
B. Upon arrest and prior to actual detention, to counsel
the law enforcement agent must present 2. To communicate and confer with
the suspected terrorist before any judge counsel at any time without
at the latters residence or office nearest restriction
the place of arrest, at any time of the 3. To communicate at any time and
day or night. The judge shall, within without restrictions with members of
three days, submit a written report of the family or relatives and be visited by
presentation to the court where the them
suspect shall have been charged. 4. To avail of the services of a physician
of choice
C. Immediately after taking custody of a
person charged or suspected as a B. Offenses relating to an official log book:
terrorist, the police or law enforcement
personnel shall notify in writing the judge 1. Failure to keep official logbook
of the nearest place of apprehension or detailing the name of the person
arrest, but if the arrest is made during arrested the date and time of initial
non-office days or after office hours, the admission for custody and arrest;
written notice shall be served at the state of his health; date and time of
nearest residence of the judge nearest removal from his cell, and his return
the place of arrest thereto; date and time of visits and
by whom; all other important data
D. Failure to notify in writing is punished by bearing on his treatment while under
10 years and one day to12 years of arrest and custody
imprisonment
2. Failure to promptly issue a certified
true copy of the entries of the log
VIII. Period of Detention has been extended to
book
three days
C. Using threat, intimidation, coercion,
A. The three day period is counted from the
inflicting physical pain, or torment or
moment the person charged or
mental emotional, moral or psychological
suspected as terrorist has been
pressure which shall vitiate the free will
apprehended or arrested, detained and
taken into custody
D. Punishes Infidelity in the Custody of
Detained Persons
B. In the event of an actual or imminent 1. The penalty is 12 years and one day to
terrorist attack, suspects may not be 20 years if the person detained is a
detained for more than three days prisoner by final judgment
without the written approval of the 2. The penalty is 6 years and one day to
Human Rights Commission, or judge of 12 years if the prisoner is a detention
the MTC RTC, Sandiganbayan or Court of prisoner
Appeals nearest the place of arrest
131
E. Punishes the act of knowingly furnishing F. Directly against the Philippine
False Testimony, forged document or government.
spurious evidence in any investigation or
hearing under the law (12 yrs and one XIV. The provisions of the law shall be
day to 20 years) automatically suspended one month before
and two months after the holding of any
X. Prosecution under the Law is a bar to another election.
prosecution under the Revised Penal code or
any other special law for any offense or
felony which is necessarily included in the TITLE II
offense charged under the law CRIMES AGAINST THE FUNDAMENTAL LAWS
OF THE STATE
XI. If the suspect is acquitted he is entitled to
P500,000.00 for every day of detention Crimes against the fundamental laws of the
without a warrant of arrest. State
1. Arbitrary detention (Art. 124);
A. Any person who delays the release or 2. Delay in the delivery of detained persons
refuses to release the amount shall be to the proper judicial authorities (Art.
punished by imprisonment of 6 months 125);
3. Delaying release (Art. 126);
XII. Provisions on the Identity of the Informant 4. Expulsion (Art. 127);
5. Violation of domicile (Art. 128);
A. The officer to whom the name of the 6. Search warrants maliciously obtained
suspect was first reveled shall record the and abuse in the service of those legally
real name and specific address of the obtained (Art. 129);
informant and shall report the same to 7. Searching domicile without witnesses
his superior officer who shall in turn (Art. 130);
transmit the information to the 8. Prohibition, interruption, and dissolution
Congressional Oversight Committee of peaceful meetings (Art. 131);
within 5 days after the suspect was 9. Interruption of religious worship (Art.
placed under arrest, or his properties 132); and
sequestered seized or frozen. 10. Offending the religious feelings (Art.
133);
B. The data shall be considered confidential
and shall not be unnecessarily revealed Crimes under this title are those which violate
until after the proceedings against the the Bill of Rights accorded to the citizens under
suspect shall have been terminated. the Constitution. Under this title, the offenders
NOTE: It would seem that the are public officers, except as to the last crime
confidentiality of the informants identity offending the religious feelings under Article
is not permanent but may be revealed, 133, which refers to any person; conspires with
not like the provisions of the Rules of a public officer; becomes an accessory or
Evidence which considers the accomplice. The public officers who may be held
confidentiality as permanent) liable are only those acting under supposed
exercise of official functions, albeit illegally.
XIII. Territorial Application of the law:
In its counterpart in Title IX (Crimes Against
The law applies to any person who commits Personal Liberty and Security), the offenders are
an act covered by the law if committed: private persons.
132
a. Arbitrary Detention (Art 124, RPC) Legal Grounds for the Arrest and Detention
b. Unlawful Arrest (Art 269, RCP) of A Person
c. Arbitrary Detention (Art 125) a. Commission of crime
d. Coercion (Art 286) b. Violent insanity
e. Abduction (Art 342) c. Ailment which requires compulsory
f. Kidnapping or Illegal Detention (Art 267-268) confinement in a hospital
Note: Detention may either be intentional or In his presence when the officer sees
through negligence. the offense being committed although at a
distance, or hear the disturbance created
Article 124. Arbitrary Detention thereby and proceeds at once to the scene
thereof, or when the offense is continuing, or
Elements has not been consummated at the time the
arrest is made, the offense is said to be
1. Offender is a public officer or employee committed in his presence.
(whose official duties include the authority to
make an arrest and detain persons); 2. Arrest Based on Probable Cause When
2. He detains a person; an offense has just in fact been committed
3. The detention is without legal grounds. and he has probable cause to believe, based
on personal knowledge of facts and
Meaning of absence of legal grounds circumstances that the person to be arrested
has committed it.
1. No crime was committed by the detained;
2. There is no violent insanity of the detained Personal Knowledge of facts and
person; and circumstances based on interviews of
3. The person detained has no ailment which witnesses or complainant or based on facts
requires compulsory confinement in a gathered after conducting on-the-spot crime
hospital. scene investigation.
133
accused. The liability of the officer is distinct The offender, even if he is a public officer,
from the liability of the person arrested. does not include as his function the power to
Arbitrary Detention under Art 124 may arrest and detain a person, unless he
be complexed with less serious or serious conspires with a public officer committing
physical injuries, or with attempted or arbitrary detention.
frustrated homicide/murder.
The penalty depends upon the length of Distinction between arbitrary detention
the detention. A greater penalty is imposed and unlawful arrest
if the period is longer
In ADDITION, the arresting officer may be (1) As to offender
held liable for violation of RA 7438 or the
Law Providing for the Rights of Person In arbitrary detention, the offender is a
Arrested, under Investigation or Detained, if public officer possessed with authority to
the officer: make arrests.
a. Fails to immediately Mirandize the
person (inform the right to remain silent In unlawful arrest, the offender may be any
and to counsel) person.
b. Takes his confession without Mirandizing
him or without the right having been (2) As to criminal intent
validly waived
c. Refuses visitation to the person arrested. In arbitrary detention, the main reason for
detaining the offended party is to deny him
Arrest can be made without warrant because of his liberty.
rebellion is a continuing crime.
In unlawful arrest, the purpose is to accuse
Periods of Detention Penalized the offended party of a crime he did not
1. Detention has not exceeded 3 days commit, to deliver the person to the proper
2. Detention has continued for more than 3 authority, and to file the necessary charges
days but not more than 15 days in a way trying to incriminate him.
3. Detention has continued for more than
15 days but not more than 6 months Note: When a person is unlawfully arrested, his
4. Detention exceeded 6 months subsequent detention is without legal grounds.
134
Article 125. Delay in the Delivery of a. In Chartered Cities Office of the City
Detained Persons to the Proper Judicial Prosecutor. Direct filing in court is not
Authorities allowed.
b. In Provinces
Elements 1. Offense requires preliminary
investigation (penalty is more than 4
1. Offender is a public officer or employee; years and 2 months) file with the
2. He detains a person for some legal ground; proper officer authorized to conduct
3. He fails to deliver such person to the proper preliminary investigation (Provincial
judicial authorities within Prosecutor)
a. 12 hour for light penalties; 2. Offense does not require preliminary
b. 18 hours for correctional penalties; and investigation file with the MTC/MTTC.
c. 36 hours for afflictive or capital
penalties. How to Count the Hours
At the beginning, the detention is legal since According to Sir Sagsago, the hours should be
it is in the pursuance of a lawful arrest. counted from the time of arrest continuously
and without interruption, including the hours of
This article does not apply if the arrest is the night or non-office days. However, if the last
with a warrant. The situation contemplated hour ends on a non-office hour, the charges
here is an arrest by virtue of some legal shall be files upon the start of the next office
ground or valid warrantless arrest. This is hour.
known as citizens arrest.
According to Ortega, the period stated herein
If there is valid warrant of arrest, there is no does not include the nighttime. It is to be
time limit specified except that the return counted only when the prosecutors office is
must be made within a reasonable time. ready to receive the complaint or information.
The period fixed by law under Article 125
does not apply because the arrest was made Under the Rule 114 of the Revised Rules of
by virtue of a warrant of arrest, he can be Court, the arrested person can demand from the
detained indefinitely until case is decided or arresting officer to bring him to any judge in the
he post a bail for his temporary release. place where he was arrested and post the bail
here. Thereupon, the arresting officer may
However, the detention becomes arbitrary release him. The judge who granted the bail will
when the period thereof exceeds 12, 18 or just forward the litimus of the case to the court
36 hours, as the case may be, depending on trying his case. The purpose is in order to
whether the crime is punished by light, deprive the arrested person of his right to post
correctional or afflictive penalty or their the bail.
equivalent.
Under the Revised Rules of Court, when the
person arrested is arrested for a crime which
The public officer must cause a formal
gives him the right to preliminary investigation
charge or application to be filed with the
and he wants to avail his right to a
proper court before 12, 18 or 36 hours
preliminary investigation, he would have
lapse. Otherwise he has to release the
to waive in writing his rights under Article
person arrested.
125 so that the arresting officer will not
immediately file the case with the court that will
RATIONALE: To prevent any abuse resulting
exercise jurisdiction over the case. If he does
from confining a person without informing him of
not want to waive this in writing, the arresting
his offense and without permitting him to go on
officer will have to comply with Article 125 and
bail.
file the case immediately in court without
preliminary investigation. In such case, the
DELIVERY TO PROPER AUTHORITIES - filing
arrested person, within five days after learning
the appropriate charges with the proper judicial
that the case has been filed in court without
authorities.
preliminary investigation, may ask for
preliminary investigation. In this case, the
PROPER JUDICIAL AUTHORITIES refers to
public officer who made the arrest will no longer
the court of justice or judges of said courts
be liable for violation of Article 125.
vested with judicial power to order the
temporary detention or confinement of a person
Circumstances Considered in Determining
charged with having committed a public offense.
Liability of Officer Detaining a Person
It also includes prosecutors office
Beyond the Legal Period
1. The means of communication
Where to File Charges
135
2. The hour of arrest 2. There is a judicial or executive order for the
3. Other circumstances such as the time of release of a prisoner or detention prisoner,
surrender and the material possibility of the or that there is a proceeding upon a petition
prosecutor to make the investigation and file for the liberation of such person;
in time the necessary information. 3. Offender without good reason delays
a. the service of the notice of such order
The officer may set up insuperable cause as to the prisoner;
a defense such as failure to file on time due b. the performance of such judicial or
to distance and lack of transportation to the executive order for the release of the
nearest court/prosecutors office; fortuitous prisoner; or
event; or that the officer was wounded and c. the proceedings upon a petition for the
have himself be medically attended to. release of such person.
The filing of the information in court beyond
the specified periods does not cure the Wardens and jailers are the persons most
illegality of detention because the violation likely to violate this provision.
had already been committed. The penalty depends on the length of the
Violation of Art 125 does not affect the delay i.e. 12, 18, or 36 hours.
legality of confinement under a warrant
subsequently issued by a competent court. Persons Authorized to Order the Release of
To prevent committing this felony, officers A Person in Custody of the Law
usually ask accused to execute a waiver of 1. The courts when
Art. 125 which should be under oath and a. Detained person posts bail
with assistance of counsel. Such waiver is b. Case is dismissed
not violative of the constitutional right of the c. Accused is acquitted
accused d. Petition for habeas corpus is filed and the
court finds no valid reason to detain him.
LENGTH OF WAIVER 2. Board of Pardon and Parole Upon the grant of
o light offense 5 days Parole
o serious and less serious offenses 7 to 3. Office of the President upon the grant of
10 days (Judge Pimentel) Presidential Pardon or Amnesty
4. Commissioner of the Board of Immigration
and Deportation
If the offender is a private person the crime
5. Office of the prosecutor with respect to
is ILLEGAL DETENTION under Art 267.
cases they are acting on if
a. No probable cause
ARBITRARY DELAY IN DELIVERY
b. Arrest is not proper
DETENTION (124) OF DETAINED (125)
c. There is meritorious ground
Detention is illegal Detention is legal in (humanitarian reasons)
from the beginning the beginning, but
illegality starts from
the expiration of the Article 127. Expulsion
specified periods
without the persons Acts punished
detained having been
delivered to the 1. Expelling a person from the Philippines;or
proper judicial 2. Compelling a person to change his
authority residence.
Elements
Article 126. Delaying Release
1. Offender is a public officer or employee;
Acts punished 2. He either
a. expels any person from the Philippines;
1. Delaying the performance of a judicial or or
executive order for the release of a prisoner; b. compels a person to change residence;
2. Unduly delaying the service of the notice of 3. Offender is not authorized to do so by law.
such order to said prisoner;
3. Unduly delaying the proceedings upon any
The right violated is the liberty of abode and
petition for the liberation of such person.
of changing the same.
Elements The essence of this crime is coercion but the
specific crime is expulsion when
1. Offender is a public officer or employee; committed by a public officer. If committed
136
by a private person, the crime is grave 1. Entering any dwelling against the will of the
coercion. owner thereof;
In Villavicencio v. Lukban, 39 Phil 778, the
mayor of the City of Manila wanted to make Lack of consent not sufficient as the law
the city free from prostitution. He ordered requires that the offenders entry must be
certain prostitutes to be transferred to over the owners objection.
Davao, without observing due processes
since they have not been charged with any Against the will of owner presupposes
crime at all. It was held that the crime opposition or prohibition by the owner,
committed was expulsion. whether express or implied and not merely
Only the court by final judgment can order a absent of consent (e.g. door is closed though
person to change his residence. it is not locked, oral objection of the owner,
Only the Chief Executive has the power to owner physically blocks entry).
deport undesirable aliens
If the door is open and the accused entered,
Crime does not include expulsion of
this mode is not committed.
undesirable aliens (PERSONA NON GRATA),
destierro or when sent to prison
Owner need not be present when entry was
If a Filipino who, after voluntarily leaving the
made.
country, is illegally refused re-entry is
considered a victim of being forced to It includes surreptitious entry through an
change address opening not intended for the purpose.
Threat to national security is not a valid
ground to expel or to compel one to change Justified Trespass Even without Court
address Order
a. to prevent serious injury to himself, to an
Q: Certain aliens were arrested and they were occupant of a dwelling or a third person
just put on the first aircraft which brought them b. to stop an ongoing crime
to the country so that they may be out without c. to arrest a criminal in a hot pursuit
due process of law. Was there a crime d. to render service to humanity or justice
committed? e. to seize or search the effects of a crime
A: Grave coercion, not expulsion, because a 2. Searching papers or other effects found
Filipino cannot be deported. This crime refers therein without the previous consent of such
only to aliens. owner;
CASTLE DOCTRINE there is a penal sanction Even if he is welcome in the dwelling, it does
for the violation of a persons right to privacy of not mean he has permission to search.
his home or of the sanctity of his dwelling. A
mans house is his castle which the law protects. Search is not just by looking through a room
by the physical acts of opening rooms,
Domicile is to be given a broader meaning as opening of drawers, or handling or lifting of
that of a dwelling. things and articles.
137
(3) When the article seized is within plain
view of the officer making the seizure Article 129. Search Warrants Maliciously
without making a search therefore. Obtained, and Abuse in the Service of
Those Legally Obtained
If the offender is a private person, the crime
would be unjust vexation or theft if he takes Acts punished
things away.
1. Procuring a search warrant without just
When a public officer searched a person cause;
outside his dwelling without a search
warrant and such person is not legally Elements
arrested for an offense, the crime committed
by the public officer is either: 1. Offender is a public officer or employee;
o grave coercion if violence or 2. He procures a search warrant;
intimidation is used (Art 286), or 3. There is no just cause.
o unjust vexation if there is no
violence or intimidation (Art 287) 2. Exceeding his authority or by using
unnecessary severity in executing a search
Public officer without a search warrant warrant legally procured.
cannot lawfully enter the dwelling against
the will of the owner, even if he knew that Elements
someone in that dwelling is in lawful
possession of opium. 1. Offender is a public officer or employee;
2. He has legally procured a search
3. Refusing to leave the premises, after having warrant;
surreptitiously entered said dwelling and 3. He exceeds his authority or uses
after having been required to leave the unnecessary severity in executing the
same same.
If the surreptitious entry had been made Requisites for the Issuance of Search
through an opening not intended for that Warrant
purpose, offender is liable under the first
mode since it is an entry over the implied A search warrant shall not issue except upon
objection of the inhabitant. probable cause in connection with one specific
offense to be determined personally be the
Inhabitant may be the lawful judge after examining under oath or affirmation
possessor/occupant using the premises as of the complainant and the witnesses he may
his dwelling. produce and particularly describing the place to
be searched and the things to be seized which
Common elements may be anywhere in the Philippines.
1. Offender is a public officer or employee; Search warrant is valid for 10 days from its
2. He is not authorized by judicial order to date of issue.
enter the dwelling or to make a search The search is limited to what is described in
therein for papers or other effects. (like the warrant, all details must be set forth with
search warrant, warrant of arrest, writ of particularity.
execution, writ of attachment). Example of a warrant maliciously obtained:
the applicant has no personal knowledge of
Circumstances qualifying the offense the facts but makes it appear that he does;
(Special Aggravating Circumstances) applicant concocts a story in that he has
ulterior motives in securing a search
1. If committed at nighttime; or warrant.
2. If any papers or effects not constituting
evidence of a crime are not returned The act of executing an affidavit in support
immediately after the search made by of the application or of testifying falsely
offender.
138
before the judge are separate offenses of 1. Offender is a public officer or employee;
perjury. 2. He performs any of the following acts:
a. prohibiting or interrupting, without legal
Examples of abuse in service of warrant: ground, the holding of a peaceful
o X, owner, was handcuffed while search meeting, or dissolving the same (e.g.
was going on denial of permit in arbitrary manner);
o Tank was used to ram gate prior to b. hindering any person from joining any
announcement that a search will be lawful association, or from attending any
made of its meetings;
o Persons who were not respondents were c. prohibiting or hindering any person from
searched addressing, either alone or together with
o Searching places not specified in the others, any petition to the authorities for
warrant the correction of abuses or redress of
o Seizing articles not mentioned in the grievances.
warrant.
Acts punished
The destruction of property or injuries arising
from the violence or threat are separate
1. Prohibiting or interrupting, without legal
offenses.
grounds, the holding of a peaceful meeting,
or by dissolving the same.
An exception to the necessity of a search
warrant is the right of search and seizure as
Grounds for prohibiting, interrupting or
an incident to a lawful arrest.
dissolving a meeting:
Plain view doctrine is inapplicable if the
officer was not legally entitled to be in the 1. Lack of a required permit where the
place where the effects where found. Since meeting is to be held in a public place
the entry was illegal, plain view doctrine where peace and order will be affected,
does not apply. or when others are prevented from using
the place. Example: meeting in a street,
Article 130. Searching Domicile without or bridge or sidewalk
Witnesses
The requirement of a permit is only for
Elements purposes of regulation but not as an
exercise of prohibitory powers. Thus, the
1. Offender is a public officer or employee; refusal to issue a permit without any
2. He is armed with search warrant legally valid ground constitutes prohibition of a
procured; peaceful meeting.
3. He searches the domicile, papers or other
belongings of any person; 2. When the meeting constitutes a trespass
4. The owner, or any members of his family, or to private property
two witnesses residing in the same locality
are not present. 3, When the meeting is not peaceful as
when it becomes chaotic or the
Order of those who must witness the search participants are enjoined to do acts of
a. Homeowner destruction of property or acts of
b. Members of the family of sufficient age violence , or when the meeting becomes
and discretion seditious
c. Responsible members of the community
The accused officer must be a stranger,
Validity of the search warrant can be not a participant in the meeting;
questioned only in two courts: where issued otherwise his act may either be unjust
or where the case is pending. The latter is vexation or tumultuous disturbance.
preferred for objective determination. Dissolution is usually in the form of
Art 130 does not apply to searches of dispersal or by the arrest of the leaders
vehicles or other means of transportation. or the speakers
Search warrant under the Tariff and Customs The government has a right to require a
Code does not include dwelling house. permit before any gathering could be
made. Any meeting without a permit is
Article 131. Prohibition, Interruption, and a proceeding in violation of the law.
Dissolution of Peaceful Meetings That being true, a meeting may be
prohibited, interrupted, or dissolved
Elements without violating Article 131 of the
Revised Penal Code.
139
If the permit is denied arbitrarily, Article In Article 131, the public officer is not a
131 is violated. If the officer would not participant. As far as the gathering is
give the permit unless the meeting is concerned, the public officer is a third party.
held in a particular place which he
dictates defeats the exercise of the right If the public officer is a participant of the
to peaceably assemble, Article 131 is assembly and he prohibits, interrupts, or
violated. dissolves the same, Article 153 is violated if
At the beginning, it may happen that the the same is conducted in a public place.
assembly is lawful and peaceful. If in
the course of the assembly the (2) As to the essence of the crime
participants commit illegal acts like oral
defamation or inciting to sedition, a In Article 131, the offender must be a public
public officer or law enforcer can stop or officer and, without any legal ground, he
dissolve the meeting. The person talking prohibits, interrupts, or dissolves a peaceful
on a prohibited subject at a public meeting or assembly to prevent the
meeting contrary to agreement that no offended party from exercising his freedom
speaker should touch on politics may be of speech and that of the assembly to
stopped. The permit given is not a petition a grievance against the
license to commit a crime. government.
But stopping the speaker who was
attacking certain churches in public In Article 153, the offender need not be a
meeting is a violation of this article public officer. The essence of the crime is
that of creating a serious disturbance of any
Those holding peaceful meetings must
sort in a public office, public building or even
comply with local ordinances. Example:
a private place where a public function is
Ordinance requires permits for meetings
being held.
in public places. But if a police stops a
meeting in a private place because
NOTE: The Provisions of Article 131 should be
theres no permit, officer is liable for
read in conjunction with B.P. 880 otherwise
stopping the meeting.
known as the Public Assembly Act of 1985.
2. Hindering any person from joining any
B.P. 880: AN ACT ENSURING THE FREE
peaceful meeting, such as by threatening to
EXERCISE BY THE PEOPLE OF THEIR RIGHT
arrest them, unless the meeting is that of
PEACEABLY TO ASSEMBLE AND PETITION
criminal associations. Example: joining the
THE GOVERNMENT AND FOR OTHER
meeting of the CPP is not prohibited, but
PURPOSES
that of the NPA is prohibited..
1. This is known as The Public Assembly Act of
3. Prohibiting or hindering another from
l985
addressing a Petition to the authorities for
redress of grievances. Provided the address
II. Declares the policy of the state to the ensure
is done in an orderly manner and there is no
the free exercise of the right of the people to
damage to public peace or order.
peaceably assemble and petition the
government for redress of grievances,
If the offender is a private individual, the
without prejudice to the rights of others to
crime is disturbance of public order life, liberty and equal protection of the law.
Interrupting and dissolving a meeting of
the municipal council by a public officer is a III. Defines public assembly to mean: any rally,
crime against the legislative body and not demonstration, march, parade, procession or
punishable under this article. any other form of mass or concerted action
held in a public place for the purpose of
Criteria to determine whether Article 131 would presenting a lawful cause; or expressing an
be violated: opinion to the general public on any
(1) Dangerous tendency rule particular issue; or protesting or influencing
(2) Clear and present danger rule any state of affairs whether political,
economic or social; or petitioning the
Distinctions between prohibition, government for redress of grievances
interruption, or dissolution of peaceful
meetings under Article 131, and tumults A. Public place includes any highway,
and other disturbances, under Article 153 boulevard, avenue, road, street, bridge
or other thoroughfare, park, plaza
(1) As to the participation of the public officer square, an/or any open space of public
140
ownership where the people are allowed
access a) He may grant
b). He may deny or modify but only
B. It does not cover assemblies for religious on the ground that there is
purposes which shall be governed by imminent and grave danger of a
local ordinances and those by workers substantive evil
and laborers resulting from labor (i) The applicant must be
disputes to be governed by the Labor informed in writing within 24
Code and BP. 227 hours who may be heard or
may contest it in a court of
IV. Establishes the policy of Maximum Tolerance law
to be observed in dealing with public
assemblies or in the dispersal thereof. It VI. Dispersal
means the highest degree of restraint from
the military, police: and other peace keeping 1. No public assembly with a permit shall be
authorities. dispersed unless it becomes violent ( or
when it becomes seditious, or if held in a
V. As to the requirement of a permit: private property against the will of the
owner who requests for its dispersal
A. A written permit shall be required for any because there is now a trespass to
person/persons to organize and hold a property)
public assembly in a public place during
any election campaign period 2. When the public assembly is held without
a permit where a permit is required it
B. No permit shall be required: may be peacefully dispersed
i) if the public assembly shall be done or Note: It is provided that tear gas ,smoke
made in a freedom park duly grenades, water cannons, or any similar anti-
established by law or ordinance riot device shall not be used unless the public
ii) If done or made in private property in assembly is attended by actual violence or
which case only the consent of the serious threats of violence, or deliberate
owner or the one entitled to its legal destruction of property
possession is required
iii). If done or made in the campus of a VII. Acts Punished include the following:
government owned and operated
educational institution which shall be 1. Holding of any public assembly without
subject to the rules and regulations having first secured the written permit ,
of said educational institution or use of such permit for such purposes
iv). Political meetings or rallies held in any place other than those set out in
during any election campaign period the permit. However, the persons liable
are the leader or organizer, but not the
C. Procedure for issuance of a permit participants
i). A Written applications shall be filed
with the office of the mayor at least 2. Arbitrary and unjustified denial or
five (5) working days before the modification of a permit by the Mayor or
scheduled public assembly official acting in his behalf
ii). The Mayors Office shall acknowledge
in writing the receipt of the 3. Unjustified and arbitrary refusal to accept
application and Posting of the or acknowledge receipt of the application
application by the Mayors office in a for a permit
conspicuous place of the
city/municipal building 4. Obstructing, impeding, disrupting or
otherwise denying the exercise of the
a). If the application is acceptance right to peaceful assembly
the application shall post it on
the premises of the mayor and 5. The unnecessary firing of firearms to
shall be deemed to have been disperse the public assembly
filed
6. Law enforcers who (i) refuse to provide
iii) Action by the Mayor within 2 working assistance when requested by leaders or
days from date of application . If they organizers of public assemblies (ii) do
fail to act within two days, the permit not wear proper and complete uniforms
shall be deemed granted (iii) do not observe maximum tolerance
141
(iv) carry firearms and (v) who use anti
riot devises to disperse a peaceful public B. Rallyists who can show the police an
assembly application duly filed on a given date
can, after two days from said date, rally
7. The following acts are prohibited, if in accordance with their application
committed within100 meters from the without the need to show a permit, the
area of activity of the public assembly or grant of the permit being then presumed
on the occasion thereof: under the law, and it will be the burden
a).carrying or a deadly or offensive of the authorities to show that there has
weapon or devise been a denial of the application
b) carrying of bladed weapon and the
like C. The so called calibrated preemptive
c). malicious burning of any object in the response policy is null and void
streets or thoroughfares
d). carrying of fire arms by members of a D. Until a freedom park shall have been
law enforcement unit established, all public parks and plazas
e). interfering with or intentionally of the municipality/city concerned shall
disturbing the holding of a public in effect be deemed freedom parks; no
assembly by the use of a motor prior permit of whatever kind shall be
vehicle, its horns and loud sound required to hold an assembly therein.
systems The only requirement will be written
notices to the police and the mayors
VIII. As interpreted in BAYAN vs. EDUARDO office to allow proper coordination and
ERMITA ( April 25, 2006) orderly activities.
143
Qualifying Circumstances RELIGIOUS CEREMONIES are those religious
1. violence acts performed outside of a church, such as
2. threats procession and special prayers for burying dead
person but NOT prayer rallies.
Notes
Manifestation or ceremonies refer to the Acts notoriously offensive to the feelings of the
rituals or rites or practices such as the faithful - is one which ridicules or makes fun of a
holding of a mass or religious service, practice, tenet, dogma, ritual or belief as
baptisms and other sacraments or prayer mocking or scoffing or attempting to damage an
meetings. object of religious veneration; otherwise the
o They may be unorthodox such as crying, offense is unjust vexation. These may be oral or
dancing, gyrating or with the use of written statements or actions.
props
o They extend to all kinds of worships so May be committed by a public officer or a
long as these are not indecent or private individual.
violative of laws or public morals Whether the act is offensive is to be viewed
The term any religion is broad enough to from the members of the religious group
include not only the institutional religions, involved.
whether Christian or not There must be deliberate intent to hurt the
Reading of Bible and then attacking certain feelings of the faithful, mere arrogance or
churches in a public plaza is not a ceremony rudeness is not enough.
or manifestation of religion, but only a Example of religious ceremony (acts
meeting of a religious sect. But if done In performed outside the church): processions
private home, its a religious service. and special prayers for burying dead persons
Religious Worship includes people in the act but NOT prayer rallies
of performing religious rites for a religious
ceremony or a manifestation of religion.
Examples: mass, baptism, marriage CRIME NATURE WHO IF
X, a private person, boxed a priest while the OF ARE ELEMENT
priest was giving homily and maligning a CRIME LIABLE MISSING
relative of X. is X liable? X may be liable Prohibitio Crime Public If not by
under Art. 133 (Offending religious feelings) n, against officers public
because X is a private person. Interrupti the , officer
If the prohibition or disturbance is committed on and fundam =tumult
only in a meeting or rally of a sect, it would Dissolutio ental outside s
be punishable under Art 131. n of law of rs
Peaceful the state
Article 133. Offending the Religious Meeting
Feelings (131)
Interrup- Crime Public If by
Concept or essence tion of against officers insider
Religiou the , =unjust
The crime committed by any person i.e. a public s fundam vexation
Worship ental outside
officer or a private person, who performs acts (132) law of rs if not
notoriously offensive to the feelings of the the state religious
faithful which are committed either: (i) in a place =tumult
dedicated to religious worship or (ii) during the or
celebration of any religious ceremony. alarms
if not
Elements notoriousl
y
1. Acts complained of were performed offensive
a. in a place devoted to religious worship =unjust
(not necessarily that there is a religious vexation
ceremony) or Offending Crime Public if not
b. during the celebration of any religious the against officers tumults
ceremony. Religiou public , =alarms
2. The acts must be notoriously offensive to the s Feeling order and
feelings of the faithful. (133) Private scandal
person
s If meeting
144
illegal at
outside onset Political Crimes Proper - refer to the crimes of
rs =inciting rebellion, coup d etat, sedition and their
to derivative lesser offenses of conspiracy,
sedition
proposal, and inciting. There used to be a crime
or
rebellion known as subversion penalized by martial law
decrees but these have been repealed so that
subversion is a non-existent crime.
146
c) a private crime may be committed purpose mentioned in Art 134. While
during rebellion. Rape, even if not in Treason is the levying of war against the
furtherance of rebellion cannot be government if performed to aid the enemy.
complexed with rebellion. 2. Rebellion always involves taking up arms
against the government. While treason may
2. Separate crimes: those committed for be committed by mere adherence to the
private purposes (without political enemy giving them aid orcomfort.
motivation) PP vs. Geronimo
Rebellion vs Subversion
a.)if killing or robbing were done for private 1. Rebellion is a crime against public order.
purposes of for profit, without any political While subversion is a crime against national
motivation, the crime would be separately security.
punished and would not be embraced by 2. In rebellion, there must be public uprising to
rebellion (PP vs. Fernando) overthrow the government. While in the
latter, being officers and ranking members
3. Is the principle of Complexing of subversive groups constitute subversive.
applicable? Not under the PP. vs.
Hernandez and Enrile vs. Salazar decisions
which have not yet been overturned. Article 134-A. Coup d' etat
148
Organizing a group of soldiers, soliciting have been premeditated and not just
membership in, and soliciting funds for the spontaneous outbursts else it constitutes
organization show conspiracy to overthrow merely tumultuous disturbance.
the govt There is no inciting to coup d etat.
The mere fact of giving and rendering If rebellion is actually committed, the inciter
speeches favoring Communism would not becomes a principal by inducement. The
make the accused guilty of conspiracy if inciter should not have taken up arms
there is no evidence that the hearers then otherwise he is a participant in rebellion and
and there agreed to rise up in arms against the inciting is just part of the rebellion.
the govt There is no misprision of rebellion or
The advocacy of Communism or coup d etat
Communistic theory is not a criminal act of Inciting must have been intentionally
conspiracy unless converted into advocacy calculated to seduce others to rebellion
of action
Only when the Communist advocates action Proposal to Inciting to
and actual uprising, war or otherwise, does Commit Rebellion
he become guilty of conspiracy to commit Rebellion (138)
rebellion (PP vs. Hernandez) (136)
In both, the offender induces another to
commit rebellion
Article 137. Disloyalty of Public Officers or In both, the crime of rebellion should not
Employees be committed by the persons to whom it is
proposed or who are incited
Acts punished If they commit rebellion because of the
proposal or inciting, the proponent or the
1. By failing to resist a rebellion by all the one inciting may become a principal by
means in their power (Suppose they are inducement in the crime of rebellion
outnumbered and out armed such that The person who It is not required that
resistance is futile?); proposes has the offender has
2. By continuing to discharge the duties of their decided to commit decided to commit
offices under the control of the rebels (This rebellion rebellion
gives a semblance of support to the rebels); The person who The act of inciting is
or proposes the done publicly
3. By accepting appointment to office under execution of the
rebels. crime uses secret
means
Offender must be a public officer or
employee. Article 139. Sedition
There must be actual rebellion for this crime
to be committed. Concept
It must not be committed in conspiracy with
rebels or coup plotters for this crime to be This consist of making disturbances,
committed. commotions, or resorting to acts of violence or
If position is accepted in order to protect the destruction, or violation of public peace and
people, not covered by this article. order, for the purpose of expressing discontent,
disagreement, disapproval, opposition, criticism
Article 138. Inciting to Rebellion or to: (i) a government policy, program or course of
Insurrection action, (ii) or to a law, rule or regulation or (iii) to
a government official or his official action or (iv)
Elements to members of a social class.
1. Offender does not take arms or is not in Sedition is the raising of commotions or
open hostility against the government; disturbances in the State. Its ultimate objects is
2. He incites others to the execution of any of a violation of the public peace or at least such a
the acts of rebellion; course of measures as evidently engenders it
3. The inciting is done by means of speeches, (PP vs. Perez)
proclamations, writings, emblems, banners
or other representations tending to the same Basically this is in the nature of a civil
end.(public means) disobedience. The accused desire to make
known their discontent, disapproval or
To incite is to stir up, to agitate, to protest or dissatisfaction, but instead of
encourage. The words of incitement should availing of the legal means - such as through
the media, the courts, or administrative
149
remedies, the accused resort to violence or Examples:
illegal methods. 1. Staging a violent demonstration in front of
the SM building to protest the failure to
Examples protect small and medium scale
1). The act of supporters of an official who businessmen.
block and take over a government 2. Destroying the trucks of illegal loggers.
building to prevent the replacement of 3. Vendors stoning the car of the chief of
said official police for preventing them form selling in
2). Market vendors who fight with personnel side walks
of the engineers office demolishing their
illegal structures in the city market If other crimes are committed, such as
3). Barricading session road to protest killings, physical injuries, or destruction of
increase in passenger fares properties, these are separate crimes as the
principle of absorption does not apply to the
The purpose may either be political or crime of sedition. Common crimes are not
social but not the downfall or overthrow of absorbed in sedition (PP vs. Umali)
the government. The accused are not Preventing election through legal means
rebelling against the government. is NOT sedition
If the purpose of the offenders is to
Examples:
attain the objects of rebellion or sedition by
to protest the increase in oil prices or the
force or violence, but there is no public
policy on land reform; or against the
uprising, the crime committed is direct
increase of new taxes; or appointment of an
assault
official; or cheating in the election
Sedition vs Treason
Elements
Sedition, in its more general sense, is the raising
1. Offenders rise
of commotions or disturbances in the State.
a. publicly; and
While treason, in its more general sense, is the
b. tumultuously;
violation by a subject of his allegiance to his
2. Offenders employ force, intimidation, or
sovereign.
other means outside of legal methods;
3. Purpose is to attain any of the following
Article 140. Penalty for Sedition
objects:
a. To prevent the promulgation or execution
Persons liable
of any law or the holding of any popular
election;
1. The leader of the sedition; and
b. To prevent the national government or
2. Other person participating in the sedition.
any provincial or municipal government,
or any public officer from freely
Article 141. Conspiracy to Commit Sedition
exercising its or his functions or prevent
the execution of an administrative order;
In this crime, there must be an agreement and
c. To inflict any act of hate or revenge upon
a decision to rise publicly and tumultuously to
the person or property of any public
attain any of the objects of sedition.
officer or employee;
d. To commit, for any political or social end,
There is conspiracy to commit sedition
any act of hate or revenge against
but no proposal to commit sedition
private persons or any social classes;
e. To despoil for any political or social end,
any person, municipality or province, or Article 142. Inciting to Sedition
the national government of all its
property or any part thereof. Acts punished (3 ways of inciting to
sedition)
TUMULTUOUS if caused by more than 3
persons who are armed or provided with the 1. Inciting others to the accomplishment of any
means of violence. of the acts which constitute sedition by
means of speeches, proclamations, writings,
emblems, etc.
The acts maybe directed to private
persons or their property, or to public (The enumeration is broad enough to cover
officials or to property of any political any means methods or form by which people
subdivision. are stirred to commit acts constituting
sedition. These include text messages and
150
graffiti on walls as well as dramas,
radio/television plays or programs) 4 Aspects of Freedom of Speech
(Chavez v Gonzales, 545 S 441)
Elements 1. Freedom from Prior Restraint prior to
actual dissemination free from censorship by
1. Offender does not take direct part in the the government.
crime of sedition;
2. He incites others to the accomplishment Prior Restraint may be:
of any of the acts which constitute a. Content Neutral regulation with
sedition; and regard to the time, manner, place of the
3. Inciting is done by means of speeches, meeting. This is allowed.
proclamations, writings, emblems, b. Content Base based on the subject
cartoons, banners, or other matter of the utterance. This is
representations tending towards the presumed unconstitutional. The
same end. government must show clear and
present danger.
2. Uttering seditious words or speeches which
tend to disturb the public peace Speeches which May be Suppressed
1. caters pornography
(A guest speaker for instance in a town fiesta 2. false and misleading advertisement
starts lambasting the administration with 3. advocacy of lawless action
words calculated to make the people get 4. Pose Danger to National Security
angry);
Unprotected Speeches
3. Writing, publishing, or circulating scurrilous 1. libelous
libels against the government or any of the 2. lewd and obscene speeches
duly constituted authorities thereof, which 3. fighting words
tend to disturb the public peace.
2. Freedom from punishment subsequent
scurrilous means low, vulgar, foul, publication.
baseless, mean, libelous 3. Freedom of Access to Information.
4. Freedom of Circulation.
Doctrine of Seditious Libel-
publications or speeches which tend to Tests to determine whether the writing,
overthrow or undermine the security of the publication, or speech, is seditious or
government or weaken the confidence of the protected exercise of the freedom of
people in the government. They tend to stir speech and press
up general discontent or induce the people
to resort to illegal means. 1. The Dangerous Tendency Rule: The
publication, writing or speech is seditious if
Note that the Doctrine of Seditious Libel is the words have a tendency to create a
one of the four crimes serving as limitations danger of public uprising; if they could easily
to the freedom of the speech and of the produce disaffection among the people and
press. The other three are Prosecutions a state of feeling incompatible with a
under Article 154 for Unlawful Means of disposition to remain loyal and obedient to
Publication; Obscenity Raps under Article the laws.
201 and a Prosecution for Libel against a
private person under Article 353. This is the rule which is often applied in
times of emergency.
Uttering and Writing (acts Nos 2 and 3),
When Punishable 2. The Clear and Present Danger Rule: To be
seditious the writing or speech must pose a
1. when they tend to disturb or obstruct any danger of public uprising state which is not
public officer in executing the functions of only clear but is also imminent or at the
his office; or point of happening, a certainty. There is
2. when they tend to instigate others to cabal probability of a serious injury to the state.
and meet together for unlawful purposes; or
3. when they suggest or incite rebellious This is the rule applied during normal
conspiracies or riots; or situations. It is more liberal as it allows
4. when they lead or tend to stir up the people critics, and political opponents of the
against the lawful authorities or to disturb government, especially during election
the peace of the community, the safety and times, to bring to the public what they
order of the govt.
151
perceive to be short comings of the If it is a meeting of congress, the
government. accused may further be subjected to
Congressional Contempt. Local legislative
Thus the written article or the speech may bodies do not have the inherent right to
be very critical and may use strong punish for contempt. This right must be
language, yet, as long as the possibility of an expressly given by law.
uprising is remote, such article or speech is The offenders are any persons.
not seditious. Examples: barricading the
entrance to Congress; or sending letters to
3. The Balancing of Interest Test: The the committee members that the meeting is
courts should weigh between the freedom of postponed by falsifying the signature of the
speech and the danger to the state. committee chairman.
If by the use of force, these must
Article 142 punishes also a person who be no public uprising else the crime is
shall knowingly conceal such evil practices sedition.
as inciting to sedition although this act is Chief of Police and Mayor who
that of an accessory. This is similar to prevented the meeting of the municipal
misprision of treason. council are liable under Art 143, when the
Only non-participant in sedition may be defect of the meeting is not manifest and
liable. requires an investigation before its existence
Considering that the objective of sedition can be determined.
is to express protest against the government
and in the process creating hate against
public officers, any act that will generate Article 144. Disturbance of Proceedings
hatred against the government or a public
officer concerned or a social class may Elements
amount to Inciting to sedition. Article 142 is,
therefore, quite broad. 1. There is a meeting of Congress or any of its
The mere meeting for the purpose of committees or subcommittees,
discussing hatred against the government is constitutional commissions or committees or
inciting to sedition. Lambasting government divisions thereof, or of any provincial board
officials to discredit the government is or city or municipal council or board;
Inciting to sedition. But if the objective of
such preparatory actions is the overthrow of 2. Offender does any of the following acts:
the government, the crime is inciting to a. He disturbs any of such meetings
rebellion. (Example: cutting off the electric power;
noise barrage);
Chapter 2 - Crimes Against Popular
Representations b. He behaves while in the presence of any
such bodies in such a manner as to
Section 1 - Crimes Against Legislative interrupt its proceedings or to impair the
Bodies and similar bodies respect due it.(Examples: singing,
farting; loud laughter; (what about
Article 143. Acts Tending to Prevent the sending of a shut-up note?)
Meeting of the Congress of the Philippines
and Similar Bodies NOTE: Complaint must be filed by member of
the Legislative body. Accused may also be
Elements punished for contempt by the legislative body.
153
1. The organizers or leaders of the meeting; Concept
2. Persons merely present at the meeting, who
must have a common intent to commit the Those associations organized for the purpose of
felony of illegal assembly. (when presence is committing any felony or for some purpose
out of curiosity not liable) contrary to public morals. These include the
criminal gangs as the Kidnap for Ransom Gangs,
When a Person Carries Unlicensed Firearm Bahala Na Gang; Siguesigue Commandos.
in the 1st Assembly
Illegal associations
If any person present at the meeting carries an
unlicensed firearm, it will be presumed as to 1. Associations totally or partially organized for
him that the 1) purpose of the meeting is to
the purpose of committing any of the crimes
commit a felony and 2) he will be deemed the
leader or organizer of the meeting. punishable under the Code;
2. Associations totally or partially organized for
The gravamen of the offense is mere some purpose contrary to public morals.
assembly of or gathering of people for
illegal purpose punishable by the Revised PUBLIC MORALS refers to matters which
Penal Code. Without gathering, there is no
illegal assembly. affect the interest of society and public
Assembly means a meeting or convenience and is not limited to good customs.
gathering or group of persons, whether in a These are inimical to public welfare; it has
fixed place or moving, as a meting inside a nothing to do with decency, not acts of
bus. obscenity.
If the meeting is to commit an act
punished by special law, such as drug
pushing or to engage in gun running, there is Persons liable
no illegal assembly even if all participants
are armed because the purpose is not 1. Founders, directors and president of the
violative of the Revised Penal Code. association;
If the assembly is in the public places 2. Mere members of the association.
defined by BP. 885, what will apply may be
The Public Assembly Act.
Be it noted that R.A 1700 which outlawed
the Communist Party of the Philippines and
Article 147. Illegal Associations declared it an illegal association has been
repealed. Hence membership therein is not
Illegal Assembly Illegal Association punished.
(146) (147) The association is still illegal even if it is
There must be an No need for such duly registered with the SEC as what matters
actual meeting of
is not the stated purposes in its registration
armed persons to
commit any of the papers but the actual and hidden purposes.
crimes punishable
under the RPC, or of
individuals who, Crimes Against Persons in Authority and
although not armed, their Agents
are incited to the
commission of Chapter 4 Assault, Resistance, and
treason, rebellion, Disobedience
sedition or assault
upon a person in A. They include: (1) Direct Assault (2) Indirect
authority or his Assault (3) Resistance and Disobedience
agent and (4) Disobedience to Summons of
Constitutes crime Includes a violation Congress and Constitutional Commissions
under RPC of a special law or
those against public B. Distinctions between:
morals.
Public Officer (PO) - any person who takes
It is the meeting Act of forming or part in the performance of public functions in
and the organizing and the government (Art. 203)
attendance at membership in the
such that are association is
punished punished
Persons liable: Persons liable: 154
leaders and those founders, directors,
present president and
members
Person in Authority (PIA) - one who is 3. At the time of the assault, the person in
directly vested with jurisdiction to execute or authority or his agent is engaged in the
enforce the laws, whether as individual or as actual performance of official duties, or
a member of some court or governmental
corporation, board or commission. that he is assaulted by reason of the past
performance of official duties;
Agent of Person in Authority (APIA) - 4. Offender knows that the one he is
one who, by direct provision of law, by assaulting is a person in authority or his
election or by appointment by competent agent in the exercise of his duties.
authority, is generally charged with the
maintenance of peace and order and the 5. There is no public uprising.
protection and security of life and property.
Attack Or Employment Of Force Or
Serious Intimidation
Hence a public officer is not necessarily a
PIA or APIA but the latter are always public
This includes any offensive or antagonistic
officers.
movement of any kind, with or without a
weapon. This may be an actual physical
Article 148. Direct Assault
contact or the instilling of fear or threat of an
evil on the person of the victim, but not on
Acts punished his property.
156
need for actual performance of his (a). A fight between the Incumbent
official duty when attacked Mayor and the Acting Mayor as to
c. If not on the occasion then the who shall occupy the office
motive is important as the assault (b). NBI vs. Police concerning who shall
must be because of the past take custody of a suspect
performance of official duties by the
victim. The length of time between the 2. Where the PIA/APIA act with abuse of their
performance of the duty and the time of official functions, or when they exceed
the assault is immaterial. If the motive their powers they are deemed to be
cannot be established, there is no direct acting in a private capacity. They
assault but some lesser offense. become aggressors and the accused has
d. Instances Not considered in the a right to defend himself
performance of Duties: 3. Where they voluntarily descend to
i. exceeds his power or acts without matters which are purely personal. But
authority not when the PIA/APIA is dragged down
ii. descend to matters which are private to purely personal matters by the
in nature accused.
iii. agreement to fight
Kinds of Direct Assault of the 2nd Form
Rule When Material Injury Results
1. Simple Assault
The crime of Direct Assault aims to punish 2. Qualified Assault
lawlessness and defiance of authority and
not the material injury which results from Qualifying Circumstances
such defiance. When material injury however a. When the accused lays hand upon
results, the following are the rules: the victim who is a PIA
b. When the accused is himself a
1. Where death, serious or less serious Public Officer or employee
physical injuries result, they are to be c. When the assault is with a weapon
complexed with direct assault. Example:
A policeman was shot to death while Even when the PIA or APIA
directing traffic: the crime is Homicide agrees to fight, direct assault is still
with Direct Assault committed, except when the attack is made
in lawful defense; the character of PIA or
2. If only slight physical injuries are APIA is not laid off at will but attaches to him
committed, the slight physical injury is until he ceases to be in office.
a qualifying circumstance if the victim is
a PIA but it will be absorbed if the victim When the PIA or APIA
is an APIA ( PP. vs. Acierto, 57 Phil. 614) provoked/attacked first, innocent party is
entitled to defend himself and cannot be
When the Attack does not Constitute held liable for assault or resistance nor for
Direct Assault physical injuries, because he acts in
legitimate self-defense.
1. If both accused and victim are PIAs/APIAs
and they contend or there is conflict Direct assault cannot be
arising from the exercise of their committed during rebellion
respective functions or jurisdictions.
Article 149. Indirect Assault
(no assault upon or disobedience)
Concept: The crime committed by any person
Examples: who uses force or intimidation upon any person
coming to the aid of an APIA who is under
direct assault. The person who is assaulted
157
should not be a PIA because the third person kicked and boxed. What is the crime against
automatically becomes an APIA and the attack Y?
on him would constitute direct assault also.
But if the third person directs the vendor to The crime committed by any person who shall
stop but the vendor tells him not to interfere, resist or seriously disobey any PIA or APIA while
the crime against the third person would be engaged in the performance of official duties.
resistance under Article 151.
The essence is the failure to comply with, or
3. X came to help The Chief of Police who was refusal to obey, orders directly issued by the
being pushed and shoved by vendors who authorities. Such orders are peremptory and not
merely a declaration of facts or rights. They are
were not allowed to sell on the sidewalk. X
directed to the accused for compliance or
was also kicked and boxed and thrown to the implementation without allowing any exercise of
ground. Y came to help X but was himself discretion by him.
158
(151)
This crime is brought about by creating serious PIA or APIA must be PIA or APIA must be
disturbances in public places, public buildings, engaged in the in actual
and even in private places where public
performance of performance of his
functions or performances are being held.
official duties or duties
Whether it be resistance or disobedience that he is assaulted
depends upon the degree of defiance by the by reason thereof
offender Direct assault (2nd Committed by
form) is committed resisting or seriously
Elements of RESISTANCE AND SERIOUS
in 4 ways- by disobeying a PIA or
DISOBEDIENCE under the first paragraph
attacking, APIA
employing force,
1. A person in authority or his agent is engaged
in the performance of official duty or gives a seriously
lawful order to the offender; intimidating, and
2. Offender resists or seriously disobeys such seriously resisting a
person in authority or his agent; PIA or APIA
3. The act of the offender is not included in the Use of force against Resistance force
provision of Articles 148, 149 and 150. APIA must be not serious. Simple
Elements of SIMPLE DISOBEDIENCE under serious and disobedience force
the second paragraph
deliberate against an APIA is
1. An APIA is engaged in the performance of not so serious.
official duty or gives a lawful order to the
offender;
Chapter 5 - Public Disorders
2. Offender disobeys such agent of a person in
Article 153. Tumults and Other
authority; Disturbances of Public Order
3. Such disobedience is not of a serious nature.
Acts punished
Examples:
1. Refusal to submit to the authority of the 1. Causing any serious disturbance in a public
police and proceed to the police station by place, office or establishment
pushing and shoving the police
2. Refusal to hand over ones drivers license This includes those in private places
when required to do so where public functions or performances
3. Refusal to vacate premises despite writ issued are being held.
by court to place a party in possession, or Serious disturbance must be planned or
disobeying a writ of injunction intended.
4.. Refusal to give up article subjects of lawful
seizure Examples:
5. But merely questioning the manner of arrest Challenging people to a fight inside city
is not resistance hall or at the market; unruly behavior at
the corridors of Justice Hall
While being arrested and theres serious Firing a gun within the premises of a
resistance, person resisting must know that public building, and if somebody was
the one arresting him is an officer hurt there is a separate crime of reckless
imprudence resulting to physical injuries
Picketing (economic coercion) must be
lawful; otherwise police can disperse them 2. Interrupting or disturbing performances,
Disobedience in 2nd par must not be functions or gatherings or peaceful
serious; otherwise it will be under the 1 st meetings, if the act is not included in Articles
par 131 and 132
Resistance must not be serious; The act must not be the crime of
otherwise its direct assault Prohibition, interruption or dissolution of
peaceful meetings (Art. 131) or
Direct Assault Resistance & Interruption of Religious worship ( Art.
132)
(148) Disobedience to
If the act of disturbing or interrupting a
PIA or APIA
meeting or religious ceremony is NOT
159
committed by public officers, or if This is the second limitation to the Freedom of
committed by public officers who the Speech and of the Press. Mass media is
are participants therein, this article supposed to provide information on matters of
applies. Art 131 and 132 punish the public interest, to entertain, to serve as medium
same acts committed by public officers for the expression and free exchange of opinions
who are not participants in a meeting and ideas. But when, under the guise of
dissemination of news and information, it
Examples: instead causes disturbance to public peace and
throwing bottles at the stage during a order, then a criminal prosecution is justified.
Miss Barangay Coronation; intentional
loud singing and derisive laughter by the Acts punished
losing candidates during the oath taking
of the winning candidates of the school 1. Publishing or causing to be published, by
student organization means of printing, lithography or any other
If while addressing the employees, the means of publication, as news any false
mayor was stoned by the accused the news which may endanger the public order,
crime is the complex crime of direct or cause damage to the interest or credit of
assault with disturbance of public order the state.
3. Making an outcry tending to incite rebellion Not any false news gives rise to
or sedition in any meeting association or prosecution. Only those which affect
public place; public order give rise to a prosecution.
Yellow journalism or sensationalism do
OUTCRY to shout spontaneously not ipso facto constitute e a violation of
subversive or provocative words tending to this article
stir up the people so as to obtain by means Thus publishing that a woman gave birth
of force or violence any of the objects of to a fish-baby is not the news
rebellion or sedition. contemplated. But publishing falsely that
the Congress has decided to impeach
The outcry must not be intentional the President is punishable
premeditated but is an emotional To publish need not be by print
outburst or an on-the-spot utterances, media but may be oral, as in radio or
otherwise the crime is inciting to sedition TV announcements.
or rebellion if the utterances were pre- The offender must know that the news is
planned with the expectation that the
false, to be liable.
crowd would react positively.
Actual public disorder or actual damage
4. Displaying placards or emblems which to the credit of the state is not
provoke a disturbance of public order in such necessary. The mere possibility of
place; causing such damage is enough.
5. Burying with pomp the body of a person 2. Encouraging disobedience to the law or to
legally executed. the constituted authorities or praising,
justifying, extolling any act punished by law
by the same means or by words, utterances
These persons have been proven guilty
or speeches;.
beyond reasonable doubt of a heinous
crime. They should not be made martyrs
Example: praising the act of the
or heroes else it would create hatred on
the part of the public. Magdalo soldiers as a supreme sacrifice
worthy of emulation by all soldiers.
Qualifying Circumstance tumultuous
3. Maliciously publishing or causing to be
The first two acts ( 1 ) and ( 2) are punished with published any official resolution or document
a higher penalty if it is tumultuous in character without proper authority, or before they
i.e. committed by more than 3 persons who are have been published officially (Malicious and
armed or provided with means of violence The unauthorized publication or premature
term armed does not refer to firearms but publication of official resolutions or
includes even big stones capable of causing documents.)
grave injury.
These resolutions may still be
Article 154. Unlawful Use of Means of withdrawn or amended. Example:
Publication and Unlawful Utterances publishing a Resolution of the City
Prosecutors Office before it is officially
160
docketed and mailed to the parties. The (bi) Illegal discharge if fired but there is
intention must be to cause damage. no intent to kill
RA 248 prohibits reprinting,
reproduction or republication of (c) If with intent to kill and the gun is fired
government publications and official resulting to a harm, it is homicide,
documents without previous authority. frustrated or attempted homicide
depending on the actual material injury
4. Printing publishing or distributing (or causing
the same) books, pamphlets periodicals, (d) If fired but with intent merely to injure;
leaflets or any published material, which do it is slight, less serious, or serious
not bear the real printers name or those physical injuries
classified as anonymous.
(e) If the pointing or firing is to compel the
These are those publications the victim to do something or to prevent
subject or contents of which are him from doing something lawful, it is
prohibited by law, such as obscene grave coercion
materials.
2. Instigating or taking part in any charivari or
ARTICLE 155. ALARMS AND SCANDALS other disorderly meeting offensive to
another or prejudicial to public tranquility.
Concept: These offenses must be caused in
public places or must affect public peace and CHARIVARI - means mock serenade or
tranquility but the disturbances are only of simply making noise from materials, not
minor degree, or not as serious or tumultuous as music, and the purpose is to disturb public
those under Article 153. peace. It should not be directed to any
particular individual else it is unjust
The crime alarms and scandal is only one crime. vexation.
Do not think that alarms and scandals are two
crimes. 3. Disturbing the public peace while wandering
about at night or while engaged in other
ALARMS - acts which frighten or scare people, nocturnal amusements;
causes them to panic or to become nervous and
tense. Even if the persons involved are engaged
in nocturnal activity like those playing
SCANDAL - has no reference to acts of patintero at night, or selling balut, if they
indecency or affecting public morals which are conduct their activity in such a way that
properly the subject of Grave Scandal. disturbs public peace, they may commit
the crime of alarms and scandals.
Acts punished Examples are:
a). shouting at night even if by a vendor
1. Discharging any firearm, rocket or firecracker b). holding a party in ones house but
or other explosive in any town or public with loud music
place, calculated to cause (which produces) c). partying or quarreling in the street
alarm or danger; d). jamming or acting as street
musicians
The gun should not be pointed
at any person or in the general direction of 4. Causing any disturbance or scandal in public
a person places while intoxicated or otherwise (which
It does not matter that the gun are only slight and not tumultuous) provided
was fired within the premises of ones Article 153 is not applicable.
house so long as there were people who .
were disturbed. This is a catch all phrase.
It is the result, not the intent that Public nuisance is covered by this act.
counts. Act must produce alarm or danger As in the case of a drunk walking and
as a consequence. bumping passers-by. Or the act of two
If a gun is pointed at any person people fighting each other in the market.
the following are the possible crimes:
Article 156. Delivering Prisoners from Jail
(a) Grave threats if the gun is not
discharged (not fired) Concept
161
This is the crime committed by a person who custody of prisoners. But if the offender
removes/springs a prisoner from jail or helps him is not the custodian of the prisoner at
escape. that time, even though he is a public
officer, the crime he committed is
Elements delivering prisoners from jail.
If three persons are involved a
1. There is a person confined in a jail or penal stranger, the custodian and the prisoner
establishment; three crimes are committed:
2. Offender removes therefrom such person, (1) Infidelity in the custody of prisoners;
(2) Delivery of the prisoner from jail; and
or helps the escape of such person. (3) Evasion of service of sentence
162
as bringing a loved one to the hospital or
attending a burial? NO, because of
Chapter 6 avoidance of greater evil.
Evasion of Service of Sentence
In case the prisoner voluntarily returns,
EVASION - means to escape or to avoid serving his liability remains but the penalty maybe
a penalty. Only prisoners who have been mitigated as this is analogous to voluntary
sentenced by final judgment are liable for surrender.
evasion. The penalty of the accused must be This is a continuing offense.
one of imprisonment or destierro. This article does not apply to minor
delinquents, detention prisoners or
3 Kinds Of Evasion: deportees.
1. Evasion by Escaping under ordinary
If the offender escaped within the 15-day
circumstances (Article 157)
appeal period, crime is not evasion because
2. Evasion by Escaping on the occasion of a
judgment is not yet final.
disorder or mutiny ( Art. 158)
3. Evasion by Violation of a Conditional Pardon
Article 158. Evasion of Service of Sentence
(Art. 159)
on the Occasion of Disorders,
Conflagrations, Earthquakes, or Other
ARTICLE 157. EVASION OF SERVICE OF SENTENCE
Calamities
Concept
Concept: There is a disorder resulting from a
conflagration, earthquake, explosion or similar
The crime committed by a prisoner by final
catastrophe, or a mutiny in which he has not
judgment who escapes during the term of his
participated; a prisoner by final judgment
imprisonment, or, having been sentenced to
escapes or leaves the penal establishment; he
destierro, shall enter the designated prohibited
fails to give himself up to the authorities within
area. (Note: the escapee is referred to in
48 hours following the issuance of a
police/prison parlance as a Jailbird)
proclamation by the Chief Executive announcing
the passing away of the calamity.
Elements
Elements
1. Offender is a convict by final judgment;
2. He is serving sentence which consists in the 1. Offender is a convict by final judgment,
deprivation of liberty; who is confined in a penal institution;
3. He evades service of his sentence by 2. There is disorder, resulting from
escaping during the term of his sentence. a. conflagration;
b. earthquake;
Qualifying Circumstances c. explosion; or
d. similar catastrophe; or
If such evasion or escape takes place e. mutiny in which he has not participated;
3. He leaves the penal institution where he is
1. By means of unlawful entry (this should be confined, on the occasion of such disorder or
by scaling - Reyes); during the mutiny;
2. By breaking doors, windows, gates, walls, 4. He fails to give himself up to the authorities
roofs or floors; within 48 hours following the issuance of a
3. By using picklock, false keys, disguise, proclamation by the Chief Executive
deceit, violence or intimidation; or announcing the passing away of such
4. Through connivance with other convicts or calamity.
employees of the penal institution.
It is not the act of escaping which
In case of destierro (committed if the constitutes the evasion because it is normal
convict sentenced to destierro will enter the for people to try to save their lives during a
prohibited places or come within the catastrophe or calamity. What gives rise to
prohibited radius of 25 kilometers to such the crime is the failure to return or to
places as stated in the judgment), the give himself up return within 48 hours.
penalty for the evasion is also destierro. This If the prisoner returns within 48 hours,
is so because the penalty for the evasion can he is given a deduction from the
not be more severe than the penalty remaining period of his sentence
evaded. equivalent to 1/5 of his original
sentence for loyalty.
Is there evasion if the prisoner enters the
prohibited area due to an emergency? Such
163
If he did not return, an added penalty, 3. In violation of conditional pardon, as a rule,
also 1/5, shall be imposed but the 1/5 the violation will amount to this crime only if
penalty is based on the remaining the condition is violated during the
period of the sentence, not on the remaining period of the sentence. As a rule,
original sentence. In no case shall that if the condition of the pardon is violated
penalty exceed six months. when the remaining unserved portion of the
sentence has already lapsed, there will be no
Those who did not escape are not given more criminal liability for the violation.
any deduction. However, the convict maybe required to
serve the unserved portion of the sentence,
Mutiny is an organized unlawful that is, continue serving original penalty
resistance to a superior officer, a sedition, or
a revolt. The liability therefore of the
accused consists of: (1) Prosecution for the
It does not include prison riots but it includes new offense and (2) Prosecution for Violation
subordinate prison officials rising against of Conditional pardon and (3) Administrative,
their superiors. Disarming the guards is not or to serve his sentence upon order of the
mutiny. Neither does it include mass jail President (recommitment). The
breaks. administrative liability is different and has
nothing to do with his criminal liability.
Mutiny is one of the causes which may Exception: where the violation of the
authorize a convict serving sentence in the condition of the pardon will constitute
penitentiary to leave the jail provided he has evasion of service of sentence, even though
not taken part in the mutiny. If the escapee committed beyond the remaining period of
participated and escaped, he is liable for the sentence. This is when the conditional
evasion under Article 157. pardon expressly so provides or the
language of the conditional pardon clearly
Will the foregoing provision apply to shows the intention to make the condition
prisoners in the provincial or city jails? Yes, perpetual even beyond the unserved portion
by analogy. Suppose it was a death convict of the sentence. In such case, the convict
who, while awaiting his execution, escaped? may be required to serve the unserved
portion of the sentence even though the
Article 159. Other Cases of Evasion of violation has taken place when the sentence
Service of Sentence (Conditional Pardon) has already lapsed.
Concept: This is in truth Violation of Conditional But under the Revised Administrative
Pardon. A convict accepted the grant of a Code, no conviction is necessary.
conditional pardon, which thus becomes a President has the power to arrest, and
contract between him and the Chief Executive. reincarnate offender without trial.
This has the effect of suspending the
enforcement of a sentence, or which exempt the Illustration
convict from serving the unexpired portion of his
prison penalty. 1. Convict served 5 years of his 12 years
sentence for robbery. and then he
Elements Of Violation Of Conditional accepted a conditional pardon. He must
Pardon comply with the conditions or he should
not commit any offense during the 7
1. Offender was a convict; year period. If within the 7 year period
2. He was granted pardon by the Chief he committed physical injuries, then the
Executive; consequences are as follows:
3. He violated any of the conditions of such a) He will be prosecuted for Physical
pardon. Injuries
b) If found guilty then he will be
prosecuted for Violation of
Additional Requirements
Conditional Pardon
1. The violation usually consists of the
c) The President may order him to serve
commission of another offense (even if
his original sentence. This is upon
punishable by special law). (Thus liable
the discretion of the President.
under Art 159 and for the crime committed)
2. If the physical injury was committed
2. The prisoner must first be convicted by final
after the lapse of 7 years, the convict is
judgment of the subsequent offense (before
not liable for Violation of Conditional
he can be prosecuted under Art 159).
Pardon. He will just be liable for the new
164
offense he committed. However, the Quasi-Recidivism is a special
President may, at his discretion, order aggravating circumstance where a
that the convict go back to jail to serve person, after having been convicted by final
the remaining 7 years of his original judgment shall commit a new felony before
sentence, if so provided in the pardon. beginning to serve his sentence for a
previous offense or while serving the same.
When the penalty remitted is destierro, It cannot be offset by ordinary mitigating
under no circumstance may the penalty for circumstance.
violation of conditional pardon be destierro The first offense may be any crime but
the second must always be a felony; i.e. the
Penalties for Violation first crime may be either from the RPC or
special laws but he second crime must
1. Prision correctional minimum if the belong to the RPC, not special laws
remitted portion (i.e the portion which was The legal consequence is that the
not served) is up to 6 years. This is why it penalty for the new offense will be in its
is said that Violation of Conditional Pardon is maximum period irrespective of ordinary
a substantive offense. mitigating circumstances
The new offense may be committed: (i)
2. No new penalty (only the unexpired while the convict is being transported to
portion of his original sentence) if the prison (ii) while in prison or (iii) during the
unserved portion is more than 6 years. period of time that he escaped from prison
This is the reason for the view that Violation
If the new offense and previous are both
is not a substantive offense.
under the same title of the RPC, it is
recidivism. Quasi-recidivism will be favored
Is the violation of conditional pardon a
over recidivism in view of the intention of
substantive offense?
the Code to punish those who commit an
offense even after having been already
If the remitted portion of the sentence is less
convicted.
than six years or up to six years, there is an
The aggravating circumstance of
added penalty of prision correccional minimum
for the violation of the conditional pardon; reiteracion, on the other hand, requires
hence, the violation is a substantive offense if that the offender shall have served out his
the remitted portion of the sentence does not sentence for the prior offense
exceed six years because in this case a new Who Can be Pardoned: General rule:
penalty is imposed for the violation of the A quasi-recidivist may be pardoned at age
conditional pardon. 70 IF he shall have already served out his
original sentence.
But if the remitted portion of the sentence Exception: unworthy or habitual delinquent.
exceeds six years, the violation of the If new felony is evasion of sentence,
conditional pardon is not a substantive offense offender is not a quasi-recidivist.
because no new penalty is imposed for the The penalty maximum period of the
violation. penalty for the new felony should be
imposed. Mitigating circumstances can only
Note: The Supreme Court, however, has ruled in be appreciated if the maximum penalty is
the case of Angeles v. Jose that this is not a divisible.
substantive offense. This has been highly Quasi-recidivism may be offset by
criticized. special privileged mitigating
circumstance (e.g. minority)
Chapter 7
Article 160. Commission of Another Crime
During Service of Penalty Imposed for TITLE IV
Another Previous Offense (Quasi- CRIMES AGAINST PUBLIC INTEREST
Recidivism)
Concept
Elements of Quasi-Residivism
These are crimes which involve deceit,
1. Offender was already convicted by final misrepresentation, or falsity against the public
judgment of one offense; at large. If the misrepresentation or deceit or
2. He committed a new felony before falsity was purposely availed of against a
beginning to serve such sentence or while particular person the same will constitute estafa.
serving the same.
Crimes against public interest
165
1. Counterfeiting the great seal of the The above crimes are grouped into three
Government of the Philippines (Art. 161); categories:
2. Using forged signature or counterfeiting seal
or stamp (Art. 162); A. Forgeries: these refer to deceits involving:
3. Making and importing and uttering false 1. The seal of the government, the
coins (Art. 163); signature and stamp of the chief
4. Mutilation of coins, importation and uttering executive
of mutilated coins (Art. 164); 2. Coins
5. Selling of false or mutilated coins, without 3. Treasury or bank notes, obligations and
connivance (Art. 165); securities of the government
6. Forging treasury or bank notes or other 4. Documents
documents payable to bearer, importing and
uttering of such false or forged notes and B. Other Falsities: these are deceits pertaining
documents (Art. 166); to : (1). Authority, rank or title (2) Names (3)
7. Counterfeiting, importing and uttering Uniforms and insignias and (4) False
instruments not payable to bearer (Art. 167); Testimonies
8. Illegal possession and use of forged treasury
or bank notes and other instruments of C. Frauds or acts involving machinations in
credit (Art. 168); public biddings and Combinations and
9. Falsification of legislative documents (Art. Monopolies in Restraint of Trade and
170); Commerce
10. Falsification by public officer, employee or
notary (Art. 171); A. FORGERIES
11. Falsification by private individuals and use of
falsified documents (Art. 172); I. Those involving the seal of the
12. Falsification of wireless, cable, telegraph and government, the signature, or stamp of
telephone messages and use of said falsified the Chief Executive.
messages (Art. 173);
13. False medical certificates, false certificates The acts punished are: (1). The act of
of merit or service (Art. 174); counterfeiting the seal of the
14. Using false certificates (Art. 175); government (2). Forging the signature of
15. Manufacturing and possession of the Chief Executive or his stamp and (3).
instruments or implements for falsification Using the forged signature or counterfeit
(Art. 176); seal or stamp
16. Usurpation of authority or official functions
(Art. 177);
17. Using fictitious name and concealing true Article 161. Counterfeiting the Great
name (Art. 178); Seal of the Government of the Philippine
18. Illegal use of uniforms or insignia (Art. 179); Islands, Forging the Signature or Stamp
19. False testimony against a defendant (Art. of the Chief Executive
180);
20. False testimony favorable to the defendant Acts punished
(Art. 181);
21. False testimony in civil cases (Art. 182); 1. Forging the great seal of the Government
22. False testimony in other cases and perjury of the Philippines;
(Art. 183); 2. Forging the signature of the President;
23. Offering false testimony in evidence (Art. 3. Forging the stamp of the President.
184);
24. Machinations in public auction (Art. 185); The act of forging the signature is
25. Monopolies and combinations in restraint of ordinarily punished as falsification but it is
trade (Art. 186); set apart as a distinct crime with a much
26. Importation and disposition of falsely marked higher penalty (reclusion temporal) to
articles or merchandise made of gold, silver, emphasize its gravity.
or other precious metals or their alloys (Art. The act of counterfeiting or forging the
187); signature must be on what purports to be
27. Substituting and altering trade marks and an official document purporting to have
trade names or service marks (Art. 188); been signed by the Chief Executive in his
28. Unfair competition and fraudulent official capacity, otherwise the offense is
registration of trade mark or trade name, or ordinary falsification.
service mark; fraudulent designation of
Example: (i). In what purports to be an
origin, and false description (Art. 189).
appointment paper or grant of a pardon
bearing the heading of the Office of the
166
President (ii). Forging the signature in a
private thank- you- letter is falsification. A: Yes. It is not necessary that the coin
be of legal tender. The provision
Article 162. Using Forged Signature or punishing counterfeiting does not
Counterfeit Seal or Stamp require that the money be of legal
tender and the law punishes this even if
Elements the coin concerned is not of legal tender
in order to discourage people from
1. The great seal of the Republic was practicing their ingenuity of imitating
counterfeited or the signature or stamp of money. If it were otherwise, people may
the Chief Executive was forged by at the beginning try their ingenuity in
another person; imitating money not of legal tender and
2. Offender knew of the counterfeiting or once they acquire expertise, they may
forgery; then counterfeit money of legal tender.
3. He used the counterfeit seal or forged
signature or stamp. b. The act of importing
c. The act of uttering - passing of
Offender under this article should not be counterfeited coins as legal tender
the forger or the cause of the d. Possession with intent to utter. Thus
counterfeiting. possession of coins as a collection is not
Under this, the participation of the punished
offender is in effect that of an accessory.
Although the general rule is that he should FEIGNING - to represent by false
be punished by a penalty of 2 degrees appearance when no original exists.
lower, under Art 162 he is punished by a
penalty only 1 degree lower. Kinds of coins the counterfeiting of
which is punished
II. Those involving coins: (a)
Counterfeit/false or (ii) mutilated coins 1. Silver coins of the Philippines or coins of
the Central Bank of the Philippines;
A. Counterfeit/false coins- those that are 2. Coins of the minor coinage of the
forged or not authorized by the Central Philippines or of the Central Bank of the
bank to be minted for circulation as legal Philippines;
tender, regardless if they are of intrinsic 3. Coin of the currency of a foreign country.
value. They include coins which have been
demonetized (no longer circulated) so as B. Mutilated Coins- these are genuine coins
to prevent the accused from using his skill or coins of legal tender whose intrinsic value
upon genuine coins. has been diminished due to the diminution
of their metallic contents.
Article 163. Making and Importing and
Uttering False Coins Acts punished
167
1. Mutilating coins of the legal currency, A: Mutilation, under the Revised Penal
with the further requirements that there be Code, is not committed because they do
intent to damage or to defraud another; not collect the precious metal content that
is being scraped from the coin. However,
Mutilation to take off part of the metal this will amount to violation of Presidential
either by filling it or substituting it for Decree No. 247.
another metal of inferior quality. To
accumulate the metallic contents, such Q: When the image of Jose Rizal on a five-
as by chipping off a portion, scraping peso bill is transformed into that of Randy
its surface or boring a hole. This refers Santiago, is there a violation of Presidential
to the deliberate act of diminishing the Decree No. 247?
proper metal contents of the coin
either by scraping, scratching or filling A: Yes. Presidential Decree No. 247 is
the edges of the coin and the offender violated by such act.
gathers the metal dust that has been
scraped from the coin. Q: Sometime before martial law was
imposed, the people lost confidence in
The coin must be of legal tender or banks that they preferred hoarding their
current coins of the Phils. money than depositing it in banks. Former
President Ferdinand Marcos declared upon
2. Importing or uttering such mutilated coins, declaration of martial law that all bills
with the further requirement that there without the Bagong Lipunan sign on them
must be connivances with the mutilator or will no longer be recognized. Because of
importer in case of uttering. this, the people had no choice but to
surrender their money to banks and
There must be intention to mutilate. The exchange them with those with the
offender must deliberately reduce the Bagong Lipunan sign on them. However,
precious metal in the coin. Deliberate people who came up with a lot of money
intent arises only when the offender were also being charged with hoarding for
collects the precious metal dust from the which reason certain printing presses did
mutilated coin. If the offender does not the stamping of the Bagong Lipunan sign
collect such dust, intent to mutilate is themselves to avoid prosecution. Was
absent, but Presidential Decree No. 247 there a violation of Presidential Decree No.
will apply. 247?
Presidential Decree No. 247 A: Yes. This act of the printing presses is
(Defacement, Mutilation, Tearing, a violation of Presidential Decree No. 247.
Burning or Destroying Central Bank
Notes and Coins) Q: An old woman who was a cigarette
vendor in Quiapo refused to accept one-
It shall be unlawful for any person to centavo coins for payment of the vendee
willfully deface, mutilate, tear, burn, or of cigarettes he purchased. Then came
destroy in any manner whatsoever, the police who advised her that she has no
currency notes and coins issued by the right to refuse since the coins are of legal
Central Bank. It also punishes the act of tender. On this, the old woman accepted
amassing coins in excess of P50.00 in her hands the one-centavo coins and
then threw it to the face of the vendee and
Mutilation under the Revised Penal Code is the police. Was the old woman guilty of
true only to coins. It cannot be a crime violating Presidential Decree No. 247?
under the Revised Penal Code to mutilate
paper bills because the idea of mutilation A: She was guilty of violating Presidential
under the code is collecting the precious Decree No. 247 because if no one ever
metal dust. However, under Presidential picks up the coins, her act would result in
Decree No. 247, mutilation is not limited to the diminution of the coin in circulation.
coins.
Q: A certain customer in a restaurant
Q: The people playing cara y cruz, before wanted to show off and used a P 20.00 bill
they throw the coin in the air would rub to light his cigarette. Was he guilty of
the money to the sidewalk thereby violating Presidential Decree No. 247?
diminishing the intrinsic value of the coin.
Is the crime of mutilation committed? A: He was guilty of arrested for violating
of Presidential Decree No. 247. Anyone
who is in possession of defaced money is
168
the one who is the violator of Presidential Not included are paper bills as the crime
Decree No. 247. The intention of relative to them is counterfeiting
Presidential Decree No. 247 is not to They do not include commercial checks
punish the act of defrauding the public but The reason is to maintain the integrity of
what is being punished is the act of the currency and to ensure the credit and
destruction of money issued by the Central standing of the government
Bank of the Philippines.
Examples:
Note that persons making bracelets out of
1. Bonds issued by the Land Bank in
some coins violate Presidential Decree No.
connection with the Land Reform
247.
Program
2. Postal Money Orders
The primary purpose of Presidential
3. Treasury Warrants
Decree No. 247 at the time it was ordained
4.Treasury Certificates
was to stop the practice of people writing
5. Sweepstake Tickets ( Lotto tickets?)
at the back or on the edges of the paper
bills, such as "wanted: pen pal".
The Acts punished
Article 165. Selling of False or Mutilated
1. The act of forging or Forgery
Coin, without Connivance
2. The act of importing or uttering
3. The act of possession or use
Acts punished
(a). Possession must be with intent to utter
1. Possession of coin, counterfeited or
(b). Possessor must know the notes are
mutilated by another person, with intent to
forged
utter the same, knowing that it is false or
mutilated;
Article 166. Forging Treasury or Bank
Elements
Notes or Other Documents Payable to
Bearer; Importing and Uttering Such
1. Possession;
False or Forged Notes and Documents
2. With intent to utter; and
3. Knowledge.
Acts punished
2. Actually uttering such false or mutilated
1. Forging or falsification of treasury or bank
coin, knowing the same to be false or
notes or other documents payable to
mutilated.
bearer;
Elements
FORGING is committed by giving to a
treasury or banknote or any document
1. Actually uttering; and
payable to bearer or to order, the
2. Knowledge.
appearance of a true and genuine
document. Such as the act of
Possession or uttering does not require manufacturing or producing fake treasury
that coins be legal tender warrants.
Crime under this Article includes
constructive possession or the FALSIFICATION is committed by
subjection of thing to ones control erasing, substituting, counterfeiting, or
R.A. 427 punishes possession of silver or altering, by any means, the letters, figures,
nickel coins in excess of P50.00. It is a words or signs contained therein. (Art 169,
measure of national policy to protect the RPC)
people from the conspiracy of those
hoarding silver or nickel coins and to if the note does not resemble a true and
preserve and maintain the economy. genuine document in that it can not
possibly fool any person the act is
III. Forgeries committed upon Treasury or considered as frustrated forgery
Bank Notes, Obligations and Securities Where the accused encashed a treasury
warrant by posing and signing as
This is related to Banking and Finance. payee, the crime is falsification.
The subject matter are papers in the form
of obligations and securities issued by the 2. Importation of such false or forged
government as its own obligations which obligations or notes;
are also sued as legal tender.
169
Bringing the coins into the Phils. It b. possesses with intent to use any of
presupposes that obligations or notes are such forged or falsified instruments.
forged or falsified in a foreign country.
The accused has the burden to give a
3. Uttering of such false or forged obligations satisfactory explanation of his
or notes in connivance with the forgers or possession of forged bills. Mere
importers. possession of false money bill, without
intent to use it to the damage of
This means offering obligations or notes another, is not a crime
knowing them to be false or forged,
whether such offer is accepted or not, with
a representation, by words or actions, that ART 169 - HOW FORGERY IS COMMMITTED
they are genuine and with an intent to
defraud. How Committed:
What May be Counterfeited Under Art 1) By giving to treasury or bank note or any
166: instrument payable to bearer or to order the
1. Treasury or bank notes; appearance of a true and genuine document
2. Certificates;
3. Other obligations and securities, payable 2) By erasing, substituting, or altering by any
to bearer. means the figures, letters, words or
signatures contained therein
Forging PNB checks is not included
under Article 166. that is falsification Includes falsification and counterfeiting
of commercial document under Article Falsifying lotto or sweepstakes ticket
172. constitutes the complex crime of attempted
Obligation or security includes bonds, estafa through falsification of a govt
certificate of indebtedness, bills, national security
bank notes, coupons, treasury notes, Forgery under the Revised Penal Code
certificates of deposit, checks, drafts for applies to papers, which are in the form of
money, and sweepstakes money obligations and securities issued by the
Philippine government as its own
Article 167. Counterfeiting, Importing, obligations, which is given the same status
and Uttering Instruments Not Payable as legal tender. Generally, the word
to Bearer counterfeiting is not used when it comes
to notes; what is used is forgery.
Elements Counterfeiting refers to money, whether
coins or bills.
1. There is an instrument payable to order or
other documents of credit not payable to The Revised Penal Code defines forgery
bearer; under Article 169. Notice that mere change
2. Offender either forged, imported or uttered on a document does not amount to this
such instrument; crime. The essence of forgery is giving a
3. In case of uttering, he connived with the document the appearance of a true and
forger or importer. genuine document. Not any alteration of a
letter, number, figure or design would
Article 168. Illegal Possession and Use of amount to forgery. At most, it would only be
False Treasury or Bank Notes and frustrated forgery.
Other Instruments of Credit
When what is being counterfeited is
Elements
obligation or securities, which under the
Revised Penal Code is given a status of
1. Any treasury or bank note or certificate or
money or legal tender, the crime committed
other obligation and security payable to
is forgery.
bearer, or any instrument payable to order
or other document of credit not payable to
Q: Instead of the peso sign (P), somebody
bearer is forged or falsified by another
replaced it with a dollar sign ($). Was the crime
person;
of forgery committed?
2. Offender knows that any of those
instruments is forged or falsified;
A: No. Forgery was not committed. The forged
3. He either
instrument and currency note must be given the
a. uses any of such forged or falsified
appearance of a true and genuine document.
instruments; or
The crime committed is a violation of
170
Presidential Decree No. 247. Where the of a true and genuine document. Otherwise, it
currency note, obligation or security has been is at most frustrated.
changed to make it appear as one which it
purports to be as genuine, the crime is forgery.
In checks or commercial documents, this crime IV. Forgeries Upon Documents
is committed when the figures or words are
changed which materially alters the document. The proper term is Falsification
Falsification is the commission of any of
Q: An old man, in his desire to earn something, the eight acts mentioned in Article 171 on
scraped a digit in a losing sweepstakes ticket, legislative (only the act of making
cut out a digit from another ticket and pasted it alteration), public or official, commercial, or
there to match the series of digits corresponding private documents, or wireless, or telegraph
to the winning sweepstakes ticket. He messages.
presented this ticket to the Philippine Charity The term forgery as used in Article 169
Sweepstakes Office. But the alteration is so refers to the falsification and counterfeiting
crude that even a child can notice that the of treasury or bank notes or any instruments
supposed digit is merely superimposed on the payable to bearer or to order.
digit that was scraped. Was the old man guilty
of forgery? Note that forging and falsification are crimes
under Forgeries.
A: Because of the impossibility of deceiving
whoever would be the person to whom that Document (in the legal sense) is :
ticket is presented, the Supreme Court ruled
that what was committed was an impossible (1) any writing, whether paper based or in
crime. Note, however, that the decision has any solid surface, which is complete in
been criticized. In a case like this, the Supreme itself and capable of creating rights or
Court of Spain ruled that the crime is frustrated. extinguishing obligations, or defining the
Where the alteration is such that nobody would relations between persons. Examples:
be deceived, one could easily see that it is a deeds and contracts, receipts,
forgery, the crime is frustrated because he has promissory notes, checks.
done all the acts of execution which would bring
about the felonious consequence but (2) a writing used as evidence of the facts
nevertheless did not result in a consummation contained in the document such as
for reasons independent of his will. death/birth certificates; clearances,
medical records, x-rays; drivers license.
Q: A person has a twenty-peso bill. He applied
toothache drops on one side of the bill. He has
a customer in a hotel did not write his
a mimeograph paper similar in texture to that of
name on the registry book, which was
the currency note and placed it on top of the
intended to be a memorial of those who
twenty-peso bill and put some weight on top of
got in and out of that hotel. There is no
the paper. After sometime, he removed it and
complete document to speak of.
the printing on the twenty-peso bill was
Note that a check is not yet a document when it
reproduced on the mimeo paper. He took the
is not completed yet. If somebody writes on it,
reverse side of the P20 bill, applied toothache
he makes a document out of it
drops and reversed the mimeo paper and
pressed it to the paper. After sometime, he
A mere blank form of an official
removed it and it was reproduced. He cut it out, document is not in itself a document
scraped it a little and went to a sari-sari store General Classification: (In falsification, it is
trying to buy a cigarette with that bill. What he essential to specify the document falsified)
overlooked was that, when he placed the bill,
the printing was inverted. He was apprehended 1. Falsification of Legislative Document
and was prosecuted and convicted of forgery. punished under Art. 170- bills,
Was the crime of forgery committed? resolutions, ordinances whether
approved or pending approval, by any
A: The Supreme Court ruled that it was only legislative body
frustrated forgery because although the a). the act of falsification is limited to
offender has performed all the acts of alterations of a genuine legislative
execution, it is not possible because by simply document
looking at the forged document, it could be seen b). if by any other means, such as
that it is not genuine. It can only be a simulating a legislative document,
consummated forgery if the document which the offense is ordinary falsification.
purports to be genuine is given the appearance
2. Falsification of a Non-Legislative
Document
171
a). Document proper under Article 171 letters to the Assessors Office;
and 172 libelous letters offered as exhibits
b). Wireless, Telegram, cablegram, in a trial; letters formally seeking
telephone Messages under Article opinions
173
c). Certificates under Article 174 (ii). those which are intended to form
part of the public record (Public
Kinds of Documents Proper by Intention)
1. Public Documents: they consists of the Per Monteverde vs. PP ( Aug. 12,
following 2000) involving falsification of
sales invoices required by the
a). Those which embody the official acts BIR, it was held: : If the
or records of acts of the sovereign document is intended by law to
authority, official bodies and be part of the public or official
tribunals, and of the public officers, record, the preparation of which
legislative, judicial and executive, being in accordance with rules
whether of the Philippines or of a and regulations issued by the
foreign country such as Decisions / government, the falsification of
Resolutions; Administrative Orders; that document, although it was a
Marriage Contract; Oaths of Office private document at the time of
(Public Document Proper) the falsification ton, is regarded
as falsification of public or official
b). Those created, executed, or issued documents
by a public officer or in which he
participates, virtute officii (by Examples: Falsification of Civil
virtue of his office) such as Service or Bar Exam Booklets;
clearances; certificates of Application letters and personal
appearance, designation of data sheets sent to personnel
personnel; receipts. These are the so officers.
called Official Documents.
Query: What about attendance
Public document is broader than the sheets during seminars or
term official document. Before a conferences? If the purpose is to
document may be considered use as evidence of those who
official, it must first be a public attend and reference for
document. Thus all official sanction, the crime would be
documents are public documents but falsification of public document. If
not all public documents are official only for personal purpose,
documents. To become an official falsification of private document.
document, there must be a law
which requires a public officer to Note: In case of falsification of
issue or to render such document. Travel Documents (Visa, Passport,
Example: A cashier is required to and any document submitted in
issue an official receipt for the connection therewith) the law
amount he receives. The official applicable is R.A. 8239 or the
receipt is a public document which is Philippine Passport Act.
an official document.
3. As to complexing with Estafa: Estafa a). The Arias Principle (Arias vs.
cannot be complexed with Falsification of Sandiganbayan, 180 SCRA 315) as
Private document. The reason is because reiterated in Magsuce vs.
both have a common element which is Sandiganbayan (Jan. 3, 1995) holds:
damage All heads of offices have a right to
rely to a reasonable extent on their
a). The crime is falsification if the subordinate and on the good faith of
deception cannot be committed those who prepared the documents,
without falsification, i.e. the and are not liable for the
falsification is committed as a means falsification
to commit estafa.
b). Exceptions: (i). Where there is a clear
b). It is estafa if the estafa can be evidence of conspiracy with the
committed without the necessity of authors (ii) if through their
falsifying a document negligence, they brought about the
commission of the crime. Thus in PP.
4. As to requirement of damage: In vs. Rodis the Head of Office was held
falsification of a private document the liable where the document signed by
act of falsification must be coupled with him contained anomalies which were
either (a) actual damage even if there glaring in the document.
was no intent to cause damage or (b) an
intent to cause damage even if no actual 4. The following are accepted as defenses
damage resulted. In falsification of public
document, the gravamen of the offense a). Good faith and lack of intent to
is the perversion of truth; the loss of pervert the truth. As in the case of a
faith and confidence by the public in the co-employee who signed for another
173
in the payroll because the latter was forgery cannot be presumed and must
sick be proved by clear, positive and
convincing evidence and the burden of
b). Alterations which are in the nature of proof lies on the party alleging forgery.
corrections such as changing the civil
status from single to married in a Criteria to determine forgery or
Community Tax Certificate falsification: per Ladignon vs. CA (390
Phil. 1161 as reiterated in Rivera vs.
c). Alterations which do not affect the Turiano ( March 7, 2007)
integrity or veracity of the document.
Example: The Certification by the The process of identification must
treasurer that he paid the salary on include not only the material differences
July 10 when in truth it was on July 12 between or among the
signatures/handwritings but a showing of
d) Minor inaccuracies as in a deed of sale the following:
which declared the consideration was
paid in cash when it was paid in two (i) the determination of the extent, kind
installments and significance of the resemblance
and variation (of the handwriting or
5. Presumption of Authorship of the signature)
Falsification: In the absence of
satisfactory explanation, one found in (ii) that the variation is due to the
possession of and who used a forged operation of a different personality
document is the forger of said document. and not merely an expected and
If a person had in his possession a inevitable variation found in the
falsified document and he made sue of genuine writing of the same writer
it, taking advantage of it and profiting
thereby, the clear presumption is that he (iii) that the resemblance is a result more
is the material author of the falsification. or less of a skillful imitation and not
( Nierva vs. PP. 503 SCRA 114). merely a habitual and characteristic
resemblance which normally appears
6. There is a ruling that generally, in genuine handwriting
falsification of public/commercial
documents have no attempted or Article 170. Falsification of Legislative
frustrated stages unless the falsification Documents
is so imperfect that it may be considered
as frustrated. (Personal Opinion: the Elements
crime should be consummated since
what was frustrated was not the act but 1. There is a bill, resolution or ordinance
the purpose of the offender) enacted or approved or pending approval by
either House of the Legislature or any
7. There are as many falsifications as there provincial board or municipal council;
are documents falsified; or as there are 2. Offender alters the same;
separate acts of falsification committed 3. He has no proper authority therefor;
by one person within the same period of 4. The alteration has changed the meaning of
time. the documents.
a). The falsification of several signatures Accused must not be a public official
in one payroll is only one falsification entrusted with the custody or possession of
such document, otherwise Art 171 applies.
b). Several checks falsified at the same Offender may be a public official or a private
time gives rise to several separate individual.
crimes
The bill, resolution or ordinance must be
genuine.
8. Falsification is not a continuing crime The words "municipal council" should include
(NOT an instantaneous crime) the city council or municipal board Reyes.
Proof of Falsification Article 171. Falsification by Public Officer,
Employee or Notary or Ecclesiastical
An allegation of forgery and a Minister
perfunctory comparison of the
signature/handwritings by themselves Coverage
cannot support a claim of forgery, as
174
This article provides: (1) the penalty of 2. that the two signatures or
falsification if committed by a public officer or handwritings, the genuine and the
employee or a notary or an ecclesiastical forged, bear some semblance, to
minister. The penalty is higher if committed by each other.
public officer than if committed by a private
person. The document may be any document. To counterfeit a handwriting or
(2) the eight acts of falsification. signature is to create one that is so
similar to the genuine as to make it
Elements difficult to distinguish and thus easily
fool the public. This act includes
1. Offender is a public officer, employee, or creating or simulating a fictitious
notary public; handwriting or signature
Lack of similitude/imitation of
As for an ecclesiastic, the document he a genuine signature will not be a
falsified must affect the civil status of a ground for conviction under par. 1
person, else he will be considered as a but such is not an impediment to
private person. The usual document conviction under par.2.
involved is a marriage contract
b. CAUSING IT TO APPEAR THAT PERSONS
2. He takes advantage of his official position; HAVE PARTICIPATED IN ANY ACT OR
PROCEEDING WHEN THEY DID NOT IN
When: FACT SO PARTICIPATE
He has the duty to make or prepare or
otherwise to intervene in the preparation Requisites:
of the document a) that the offender caused it to appear
in a document that a person or
The public officer must take advantage persons participated in an act or
of his official position or that there was proceeding (refers to document)
abuse of office. By this is meant that his b) that such persons did not in fact so
functions include participating in the participate in the action proceeding
preparation, recording, keeping,
publishing or sending out to the public of There is no need to imitate the
the falsified document otherwise he will signature or handwriting
be punished as a private person. As for This includes simulating a public
instance: secretaries, the Clerk of Court; document like a Warrant of Arrest as
the record officers; those who issue having been issued by a judge
receipts or licenses; the Register of Examples: impersonating a person in
Deeds; Local Civil Registrar. a document; voting in place of a
registered voter, posing as payee if a
If he did not take advantage of his official negotiable instrument in order to
position, he would be guilty of encash the same
falsification of public document by a
private individual.
c. ATTRIBUTING TO PERSONS WHO HAVE
He has the official custody of the
PARTICIPATED IN AN ACT OR
document which he falsifies
PROCEEDING STATEMENTS OTHER THAN
THOSE IN FACT MADE BY THEM
3. He falsifies a document by committing any
of the modes of falsification.
Requisites:
a) that persons participated in an act or
DOCUMENT- any written statement by
proceeding
which a right is established or an obligation
b) that such person or persons made
extinguished or by which a fact may be
statements in that act or proceeding
proven or affirmed.
c) that the offender in making a
document, attributed to such person,
Modes of Falsifying a Document:
statements other than those in fact
a. BY COUNTERFEITING, IMITATING ANY
made by such person.
HANDWRITING, SIGNATURE OR RUBRIC.
This is twisting the statements or
Elements:
putting words into the mouth of
1. that there be an intent to imitate, or another
an attempt to imitate; and Substituting a forged will where the
accused is now named as an heir in
175
lieu of the original where he was not But when a third person, not the
so named Affiant, alters a prepared Affidavit,
Where the accused was instructed to the crime committed by him is
prepare a Special Power of Attorney falsification under mode number 6
over a parcel of land, with himself as This kind of falsification may be
the agent but he instead prepared a committed by omission.
deed of sale with himself as the Enemecio v. Office of the
vendee Ombudsman,1/13/04
As the ombudsman correctly pointed
d. MAKING UNTRUTHFUL STATEMENTS IN A out, Enemecio was not able to point
NARRATION OF FACTS to any law imposing upon Bernante
the legal obligation to disclose where
Requisites: he was going to spend his leave of
a) That the offender makes in a absence. Legal obligation means
document statements in a narration that there is a requiring the
of facts disclosure of the truth of the facts
b) That he has the legal obligation to narrated. Bernante may not be
disclose the truth of the facts convicted of the crime of falsification
narrated by him of public document by making false
c) That the facts narrated by the statements in narration of facts
offender are absolutely false absent any legal obligation to
d) That the perversion of truth in the disclose where he would spend his
narration of facts was made with the vacation leave and forced leave.
wrongful intent of injuring a third
person (accused knows what he e. ALTERING TRUE DATES
imputes is false)
This requires that the date must be
The falsity involves a material material as in the date of birth or
fact marriage; date of arrest; date when a
Untruthful statements are not search warrant was issued; date of
contained in an affidavit or a taking the oath of office
statement required by law to be The alteration of the date or dates in
sworn to. a document must affect either the
by legal obligation is meant that veracity of the document or the
the law requires a full disclosure of effects thereof.
facts such as in a public officials Alteration of dates in official receipts
Statements of Assets and Liabilities; to prevent discovery of malversation
the Personal Data Sheet submitted to is falsification
the NBI; the contents of an
Application for Marriage; the f. MAKING ALTERATIONS (CHANGE) OR
Community Tax Certificate INTERCALATIONS (INSERTIONS) IN A
Narration of facts means an GENUINE DOCUMENT WHICH CHANGES
assertion of a fact and does not ITS MEANING
include statements of opinion or
conclusions of law. Thus when the Requisites:
accused placed himself as eligible a) That there be an alteration or
in his statement of candidacy when intercalation (insertion) on a
in truth he is disqualified, this is not a document
narration of fact but a conclusion of b) That it was made on a genuine
law. Similarly, the accused as document
claimant to a land stated in his c) That the alteration and intercalation
application that he entitled to the has changed the meaning of the
ownership when under the law he is document
disqualified, is not liable d) That the change made the document
There is no falsification if there is speak something false
some colorable truth in the
statement of facts by the accused The change must affect the integrity
False statements in an application of the document. It must make the
form of the Civil Service, which was document speak something false so
under oath, for police examination is that alterations to make it speak the
perjury not falsification truth cannot be falsification.
Examples
176
1.Changing the grades in ones NOTE: In the 1st, 2nd, 6th, 7th (second part), 8th
Transcript of Records mode of falsification, there must be a genuine
2.Changing ones time of arrival in document. The rest, it is enough that there must
the DTR
3.Changing the stated consideration an appearance of a true and genuine document.
a deed of sale
4.Deleting a condition in a contract Q: In a case where a lawyer tried to extract
of lease money from a spinster by typing on a bond
paper a subpoena for estafa. The spinster
g. ISSUING IN AN AUTHENTICATED FORM A agreed to pay. The spinster went to the
DOCUMENT PURPORTING TO BE A COPY prosecutors office to verify the exact amount
OF AN ORIGINAL WHEN NO SUCH and found out that there was no charge against
ORIGINAL EXIST, OR INCLUDING IN SUCH her. The lawyer was prosecuted for falsification.
COPY A STATEMENT CONTRARY TO, OR He contended that only a genuine document
DIFFERENT FROM, THAT OF THE could be falsified. Rule.
GENUINE ORIGINAL
A: As long as any of the acts of falsification is
This can only be committed by the committed, whether the document is genuine or
Official Custodian of documents who takes not, the crime of falsification may be
advantage of their position. committed. Even totally false documents may
Example: Issuing a Certified True be falsified.
Copy of a birth certificate of a person
when no such certificate exists or Article 172. Falsification by Private
Issuing a true copy of a title and Individual and Use of Falsified Documents
indicating therein the land is
mortgaged when no such Acts punished
encumbrance exist on the original on
file with the office 1. Falsification of public, official or commercial
Intent to gain or prejudice is not
document by a private individual;
necessary because it is the interest
of the community that is guaranteed.
Elements
h. INTERCALATING ANY INSTRUMENT OR
NOTE RELATIVE TO THE ISSUANCE a. Offender is a private individual or public
THEREOF IN A PROTOCOL, REGISTRY OR officer or employee who did not take
OFFICIAL BOOK advantage of his official position;
b. He committed any act of falsification
Example: Inserting a Birth Certificate enumerated in Art 171;
in the recorded of the Civil Registrar c. The falsification was committed in a
to make it appear the birth was public, official, or commercial document
recorded
or letter of exchange.
This involves a genuine document
Persons who may be held liable Take note of the definition of public,
official, and commercial documents.
1. Public officer, employee, or notary Under this paragraph, damage is not
public who takes advantage of his official essential, it is presumed
position Lack of malice or criminal intent may
be put up as a defense under this article
If offender does not take advantage of his
The possessor of falsified document is
public position, he may still be liable for
falsification of documents by a private presumed to be the author of the
person under Art 172. falsification
2. Ecclesiastical minister if the act of
falsification may affect the civil status of 2. Falsification of private document by any
persons person;
3. Private individual, if in conspiracy with
public officer Elements
177
a. Offender committed any of the acts of required. Example: The act of the
falsification except Article 171(7), that is, defendant in introducing a falsified
issuing in an authenticated form a receipt to show that the debt was paid.
document purporting to be a copy of an
original document when no such original In use in any other transaction
exists, or including in such a copy a
statement contrary to, or different from,
that of the genuine original, a. Offender knew that a document was
b. Falsification was committed in any private falsified by another person;
document; b. The false document is embraced in
c. Falsification causes damage to a third Articles 171 or 172 (1 or 2);
party or at least the falsification was c. He used such document (not in judicial
committed with intent to cause such
damage. proceeding);
d. The use caused damage to another or at
There are only seven acts of falsification least used with intent to cause damage.
of a private person. In the falsification of
a private document the damage includes In the crime use of a falsified document,
damage to honor. the user is not the falsifier but a third
It is not necessary that the offender person, who must know the falsity of the
profited or hoped to profit document.
A document falsified as a necessary The user of the falsified document is
means to commit another crime deemed the author of the
(comlex crime) must be public, falsification, if:
official or commercial. Hence, there is 1. the use was so closely connected in
no complex crime of estafa through time with the falsification, and
falsification of private document 2. the user has the capacity of falsifying
because the immediate effect of the the document
latter is the same as that of estafa
If the estafa was already Falsification of Falsification of
consummated at the time the PRIVATE PUBLIC/ OFFICIAL
falsification of a private document Documents Documents
was committed for the purpose of Damage to third Damage to third
concealing estafa, the falsification is party is an party is immaterial;
not punishable. As regards the element of the What is punished is
falsification of the private document, offense the violation of
there was no damage or intent to public faith and
cause damage perversion of truth
The crime is falsification of public which the
documents even if the falsification document
took pace before the private proclaims
document became part of the public No complex crime There is complex
records. of estafa thru crime when
falsification of committed as a
3. Use of falsified document (including private document. means to commit
Introduction thereof in any judicial estafa.
proceeding)
Falsification by Falsification by
Elements
Private Public Officer (Art
Individual (Art 171)
In introducing in a judicial proceeding 172)
Prejudice to 3rd Prejudice to 3rd
a. Offender knew that the document was person is taken person is
falsified by another person; into account. If immaterial.
b. The false document is in Articles 171 or damage is not
apparent or if no
172 (1 or 2);
intent to cause it,
c. He introduced said document in no falsification.
evidence in any judicial proceeding.
Q: A is one of those selling residence certificates
In introducing a falsified document in a in Quiapo. He was brought to the police
judicial proceeding, damage is not precincts on suspicion that the certificates he
was selling to the public proceed from spurious
178
sources and not from the Bureau of Treasury. 2. He utters fictitious wireless, cable,
Upon verification, it was found out that the telegraph or telephone message.
certificates were indeed printed with a booklet
of supposed residence certificates. What crime
was committed? 2. Falsifying wireless, telegraph or telephone
message;
A: Crime committed is violation of Article 176
(manufacturing and possession of instruments Elements
or implements for falsification). A cannot be
charged of falsification because the booklet of
residence certificates found in his possession is 1, Offender is an officer or employee of the
not in the nature of document in the legal government or an officer or employee of
sense. They are mere forms which are not to be a private corporation, engaged in the
completed to be a document in the legal sense. service of sending or receiving wireless,
This is illegal possession with intent to use cable or telephone message;
materials or apparatus which may be used in
counterfeiting/forgery or falsification. 2. He falsifies wireless, cable, telegraph or
telephone message.
Q: Public officers found a traffic violation Examples: making up a false break-up
receipts from a certain person. The receipts telegram or decreasing the number of the
were not issued by the Motor Vehicle Office. For words in a message even if the contents are
what crime should he be prosecuted for? not changed
179
1. Physician or surgeon who, in connection When any of false certificates mentioned
with the practice of his profession, issues a in Art 174 is used in judicial proceedings, Art
false certificate (it must refer to the illness or 172 does not apply because it is limited only
injury of a person); to those false documents embraced in Art
171 and 172.
[The crime here is false medical
certificate by a physician.] Article 176. Manufacturing and Possession
of Instruments or Implements for
The contents are not true in that the person
Falsification
was never examined; or that he actually had
no illness; or that the illness is not as serious
as stated in the certificate; or that the period Acts punished:
of confinement or rest is not as stated
therein. 1. Making any stamps, dies, marks, or other
instrument or implements for counterfeiting
2. Public officer who issues a false certificate of or falsification.
merit of service, good conduct or similar
circumstances; Examples: false seals, false branding
instruments
[The crime here is false certificate of merit The implements need not be a complete
or service by a public officer.] set. It is enough that they may be
employed by themselves or together
As in the case of a barangay captain who with other implements to commit the
issues a Certificate of Good Moral Character crime of counterfeiting or falsification.
to a bully , or a head of office who issues a
Certificate of Exemplary Conduct to an 2. Introducing into the Philippines of said
employee with several disciplinary penalties instruments or implements
3. Possession with intent to use (animus
utendi) the instruments or implements for
3. Private person who falsifies a certificate counterfeiting or falsification made in or
falling within the classes mentioned in the introduced into the Philippines by another
two preceding subdivisions. person.
Article 175. Using False Certificates Note: the subject of these falsities are not
papers, instruments or documents but : (1)
Elements official authority or functions; (2) rank, title,
names, (3) uniforms and insignias and (4)
1. The following issues a false certificate: testimonies under oath. These are also capable
of being falsified or subjected to acts of
a. Physician or surgeon, in connection with deception.
the practice of his profession, issues a Section 1
false certificate;
b. Public officer issues a false certificate of Art. 177. Usurpation of Authority or official
merit of service, good conduct or similar functions
circumstances;
c. Private person falsifies a certificate Acts punished
falling within the classes mentioned in
the two preceding subdivisions. 1. Usurpation of Authority- the crime
committed by a person who knowingly and
2. Offender knows that the certificate was falsely represents himself to be an officer
agent, representative or any department or
false;
agency of the Philippine government or
foreign country. :
3. He uses the same.
Elements
180
1. Offender knowingly and falsely BIR agent and begins going over the books
represents himself; of a businessman, or one who claims to be
2. As an officer, agent or representative of with the Department of Labor and starts
any department or agency of the inquiries as to the employment status of
Philippine government or of any foreign employees.
government. There is such a crime as Seduction
through Usurpation of Official Functions.
The representation must be active, i.e The offender may himself be a public
by words or acts and the accused need not official who assumes a position without
actually perform any function pertaining to color of law. As in the case of a number
the office misrepresented. What is one councilor who took over the position of
punished is the act of false the mayor who was on leave despite
misrepresentation. There must be a opinions that it be the vice mayor who
positive, express and explicit must be the acting mayor.
representation and not merely a failure to The usurpation must pertain to a
deny. Representation may be shown by department or agency of the Philippine
acts. He who does not object when Government or any foreign government.
introduced as a ranking official is not guilty However, if the authority or function
of usurpation. usurped pertains to a diplomatic, consular
or other accredited officers of a foreign
This is different from the crime of government (usurpation must be with
Usurpation of Powers under articles 239 to intent to defraud such foreign government
241 which deals with interference in the or the Govt of the Phils), the offender is
functions of one department by another also liable under R.A. 75. (fined not more
department than P5,000 or imprisoned for not more
This includes any government owned or than 5 years or both)
controlled corporations If it can be proven that the usurpation of
Example: a private person greets tourists, authority of official functions by accused
gives them the key to the city, welcomes was done in good faith or under cloth of
them, by declaring that he is the city authority, then the charge of usurpation
mayor will not apply. E.g. Estrada v. Desierto
Article 179. Illegal Use of Uniforms or Article 180. False Testimony Against A
Insignia Defendant
Elements
Elements
1. There is a criminal proceeding;
1. Offender makes use of insignia, uniforms 2. Offender testifies falsely under oath
or dress; against the defendant therein;
2. The insignia, uniforms or dress pertains to an 3. Offender who gives false testimony knows
that it is false.
office not held by such person or a class
4. Defendant against whom the false testimony
of persons of which he is not a member; is given is either acquitted or convicted in
3. Said insignia, uniform or dress is used a final judgment.
publicly and improperly.
Violation of this article requires criminal
Examples: unlawful use of ecclesiastical habit of intent. Hence, it cannot be committed
a religious order; school uniforms; uniform of the through negligence.
boys scout; the regalia of the Knights of The offender need not impute guilt upon
Columbus the accused to be liable.
The defendant/accused must at least be
If the uniform, insignia, badge, emblem or sentenced to a correctional penalty or a fine,
rank, medal, patch or identification card or must have been acquitted. The offense
pertains to members of the military what committed must be a felony
applies is R.A. 493 (except if used in The witness who gave false testimony is
playhouse or theater or in moving picture liable even if the court did not consider
films). If it pertains to the uniform, regalia or his testimony.
decoration of a foreign state, (use with If the accused violated a special law, the
intent to deceive or mislead) it is punished false testimony is punished under Art 183.
under R.A. 75. Penalty depends upon sentence
The use must be malicious i.e. to give the imposed on the defendant except in the
impression that the accused is a member of case of a judgment of acquittal. Since Article
the office or class and thereby enjoy the 180 does not prescribe the penalty where
prestige and honor of that office or class. the defendant in a criminal case is
Wearing the uniform of an imaginary office is sentenced to a light penalty, false
not punishable. testimony in this instance cannot be
So also, an exact imitation of a uniform or punished considering that a penal must be
dress is unnecessary; a colorable strictly construed.
resemblance calculated to deceive the Prescriptive period of the offense shall run
common run of people is sufficient. from the time of finality of the decision in
The term improperly means that the the criminal case.
offender has no right to use the uniform or Perjury requires malice and cannot be willful
insignia. where the oath is according to belief or
conviction as to its truth ( Villanueva vs.
Section 2 Secretary of Justice 495 SCRA 475)
False Testimony
Article 181. False Testimony Favorable to
False Testimony committed by a person who, the Defendant
being under oath and required to testify as to
the truth of a certain matter at a hearing before Elements
a competent authority, shall deny the truth or
say something contrary to it. 1. A person gives false testimony;
2. In favor of the defendant;
Three forms of false testimony 3. In a criminal case.
False testimony by negative statement is
1. False testimony in criminal cases under still in favor of the defendant.
Article 180 and 181;
183
False testimony in favor of defendant 1. Offender makes a statement under oath
need not directly influence the decision or executes an affidavit upon a material
of acquittal nor benefit the defendant matter (element of materiality);
(intent to favor defendant sufficient)
A statement of mere opinion is not Material Matter is the main fact
punishable. which is the subject of the inquiry.
Conviction or acquittal is not necessary
(final judgment is not necessary), but A matter is material when it is
gravity of crime in principal case should
be shown. directed to prove a fact in issue.
A defendant who voluntarily goes up on
the witness stand and falsely imputes to a matter is relevant when it tends in
another person the commission of the any reasonable degree to establish
offense is liable under this article. If he the probability or improbability of a
merely denies the commission of the
fact in issue.
offense, he is not liable.
Rectification made spontaneously after a matter is pertinent when it
realizing mistake is not false testimony concerns collateral matters which
(not liable if there is no evidence that make more or less probable the
the accused acted with malice or proposition at issue.
criminal intent to testify falsely)
The penalty in this article is less than 1. The statement or affidavit is made before a
that which is provided in the preceding competent officer, authorized to receive
article because there is no danger to life and administer oaths;
or liberty of the defendant.
The prescriptive perios commences from
A competent person authorized to
the time of giving false testimony.
administer an oath means a person
The persons liable are usually the
witnesses for the accused. NOT the who has a right to inquire into the
accused himself since it is his right to questions presented to him upon
put a defense in his favor. BUT if he matters under his jurisdiction
imputes a crime to a 3rd person, then
there is liability for false testimony. 2. Offender makes a willful and deliberate
assertion of a falsehood in the statement
Article 182. False Testimony in Civil Cases or affidavit;
Elements 3. The sworn statement or affidavit containing
the falsity is required by law, that is, it is
1. Testimony given in a civil case; made for a legal purpose.
1. Testimony relates to the issues presented in
said case;
Subornation of perjury is committed
2. Testimony is false;
3. Offender knows that testimony is false; If a person procures another to swear
4. Testimony is malicious and given with an falsely and the witness suborned does
intent to affect the issues presented in testify under circumstances rendering
said case. him guilty of perjury. It is not expressly
penalized under RPC. This is now treated
This article is not applicable when
testimony is given in a special proceeding. as plain perjury under 183 in rel to Art
In this case, the crime is perjury. 17, the one inducing another as principal
Basis of penalty: amount involved in the by inducement and the one induced as
civil case, whether it exceeds 5K or not. principal by direct participation.
Solemn affirmation refers to non-
Article 183. False Testimony in Other Cases
and Perjury in Solemn Affirmation judicial proceedings and affidavits.
Acts punished
OATH any form of attestation by which
1. By falsely testifying under oath; a person signifies that he is bound in
2. By making a false affidavit. conscience to perform an act faithfully
Elements of perjury and truthfully.
184
AFFIDAVIT a sworn statement in witness is not punished by law as that is not
writing, a declaration in writing, made offering a false witness
upon oath before an authorized The false witness need not be convicted of
magistrate or officer. false testimony. A mere offer to present him
is sufficient.
A false affidavit to a criminal complaint Sir Sagsago: If one pays a witness of the
may give rise to perjury. other party to testify falsely, he committed
Good faith or lack of malice is a valid what the American Law considers as
defense. Subornation Of Perjury. There is no
There is no perjury through corresponding offense under the RPC. The
negligence or imprudence since the nearest crime would be obstruction of
assertion of falsehood must be willful justice.
and deliberate.
Even if there is no law requiring the Chapter 3
statement to be made under oath, as FRAUDS
long as it is made for a legal purpose, it
Article 185. Machinations in Public
is sufficient Auctions
Perjury is an offense which covers false
oaths other than those taken in the Concept
course of judicial proceedings
The crime committed by any person who intends
False testimony before the justice of the to cause the reduction of the price of a thing
peace during a preliminary investigation auctioned and shall either (1) solicit any gift or a
may give rise to the crime of perjury, not promise as a consideration for refraining from
false testimony in judicial proceedings. taking part in any public auction, and (2)
attempt to cause bidders to stay away from an
The latter crime contemplates an actual auction by threats, gifts, promises or any other
trial where a judgment of conviction or artifice.
acquittal is rendered
The venue for perjury based on false Acts punished
affidavits is where the affidavits were
1. Soliciting any gift or promise as a
used. consideration for refraining from taking part
in any public auction;
Article 184. Offering False Testimony in
Evidence Elements
185
3. It is done by threats, gifts, promises
or any other artifice; However, Article 186 is ineffective in the face of
4. Offender has the intent to cause the conglomerates, mergers and combinations of
reduction of the price of the thing big companies; and the diversification of the
auctioned. products of big companies; mass production of
goods by companies so that they can afford to
Consummated by mere attempt. sell at prices lower that those offered by
retailers.
When a thing is sold it is either through a
direct sale to a particular individual or Acts punished
through public bidding. Public bidding is
preferred in order to obtain the best and 1. Combination or conspiracy to prevent free
most advantageous price. This is especially competition in the market;
true with respect to judgment debtors in
case of judgment sales. The best and Elements
highest price is achieved by leaving it to any
interested buyer to offer a better price over 1. Entering into any contract or agreement
those offered by others. Any a scheme so or taking part in any conspiracy or
that the article will be sold at a low price, is combination in the form of a trust or
called machination. otherwise;
In the second mode, the threat, coercion
or force is absorbed but the bribery is a 2. In restraint of trade or commerce or to
separate offense. prevent by artificial means free
Examples: competition in the market.
187
committing any acts calculated to produce such
TRADE-NAME or TRADE-MARK is a result.
word/s, name, title, symbol, emblem, sign or
device, or any combination thereof uses as Unfair Infringement of
an advertisement, sign, label, poster, or Competition trademark or
otherwise, for the purpose of enabling the tradename
public to distinguish the business of the Broader, more Limited range
person who owns and uses said trade-name inclusive
or trade-mark Identified in the Identified a peculiar
mind of the public symbol or mark with
SERVICE MARK is a mark used in the whether or not a his goods and thereby
sale or advertising of services to identify the mark or tradename has acquired a
services of one person and distinguish them is employed property right in such
from the services of others and includes w/o symbol or mark
limitation the marks, names, symbols, titles, Gives his goods Sells goods on which
designations, slogans, character names, and the general trademark is affixed
distinctive features or radio or other appearance of the
advertising goods of another
The tradename, trademark or service
mark need not be identical; a colorable Republic Act No. 8293 (An Act Prescribing
imitation is sufficient. There must not be the Intellectual Property Code and
differences which are glaring and striking to Establishing the Intellectual Property
the eye Office, Providing for Its Power and
Mark means any visible sign capable of Functions, and for Other Purposes)
distinguishing the goods or services of an
enterprise and shall include a stamped or Section 155. Remedies;
marked container Infringement. Any person who shall, without
Tradename: identify or distinguish an the consent of the owner of the registered mark:
enterprise; not necessarily attached or
affixed to the goods of the owner 155.1. Use in commerce any
reproduction, counterfeit, copy, or colorable
Trademarks: to indicate origin of
imitation of a registered mark or the same
ownership of goods to which it is affixed
container or a dominant feature thereof in
In trademarks, it is not necessary that connection with the sale, offering for sale,
the goods of the prior user and the later user distribution, advertising of any goods or services
of the trademark are of the same categories. including other preparatory steps necessary to
The meat of the matter is the likelihood of carry out the sale of any goods or services on or
confusion, mistake or deception upon in connection with which such use is likely to
purchasers of the goods of the junior user of course confusion, or to cause mistake, or to
the mark and goods manufactured by the deceive; or
previous user
The tradename or trademark must be 155.2. Reproduce, counterfeit, copy or
registered. Trademark must not be merely colorably imitate a registered mark or a
descriptive or generic dominant feature thereof and apply such
The exclusive right to an originally valid reproduction, counterfeit, copy or colorable
trademark or tradename is lost, if for any imitation to labels, signs, prints, packages,
reason it loses its distinctiveness or has wrappers, receptacles or advertisement
become publici juris intended to be used in commerce upon or in
connection with the sale, offering for sale,
distribution, or advertising of goods or services
Article 189. Unfair Competition, on or in connection with which such use is likely
Fraudulent Registration of Trade Name, to cause confusion, or to cause mistake, or to
Trademark, or Service Mark, Fraudulent deceive shall be liable in a civil action for
Designation of Origin, and False infringement by the registrant for the remedies
Description (repealed) hereinafter set forth: Provided, that the
infringement takes place at the moment any of
UNFAIR COMPETITION: consists in employing the acts stated in Subsection 155.1 or this
deception or any other means contrary to good subsection are committed regardless of whether
faith by which any person shall pass off the there is actual sale of goods or services using
goods manufactured by him or in which he the infringing material.
deals, or his business. Or services for those of
the one having established goodwill, or Section 168. Unfair Competition,
Rights, Regulation and Remedies.
188
169.1. Any person who, on or in
168.1. Any person who has identified in connection with any goods or services, or any
the mind of the public the goods he container for goods, uses in commerce any
manufactures or deals in, his business or word, term, name, symbol, or device, or any
services from those of others, whether or not a combination thereof, or any false designation of
registered mark is employed, has a property origin, false or misleading description of fact, or
right in the goodwill of the said goods, business false or misleading representation of fact, which:
or service so identified, which will be protected
in the same manner as other property rights. (a) Is likely to cause confusion, or to
cause mistake, or to deceive as to the affiliation,
168.2. Any person who shall employ connection, or association of such person with
deception or any other means contrary to good another person, or as to the origin, sponsorship,
faith by which he shall pass off the goods or approval of his or her goods, services, or
manufactured by him or in which he deals, or his commercial activities by another person; or
business, or services for those of the one having
established such goodwill, or who shall commit (b) In commercial advertising or
any acts calculated to produce said result, shall promotion, misrepresents the nature,
be guilty of unfair competition, and shall be characteristics, qualities, or geographic origin of
subject to an action therefor. his or her or another person's goods, services or
commercial activities, shall be liable to a civil
168.3. In particular, and without in any action for damages and injunction provided in
way limiting the scope of protection against Section 156 and 157 of this Act by any person
unfair competition, the following shall be who believes that he or she is or likely to be
deemed guilty of unfair competition: damaged by such act.
(a) Any person, who is selling his Section 170. Penalties. Independent
goods and gives them the general appearance of the civil and administrative sanctions imposed
of goods of another manufacturer or dealer, by law, a criminal penalty of imprisonment from
either as to the goods themselves or in the two (2) years to five (5) years and a fine ranging
wrapping of the packages in which they are from Fifty thousand pesos (P 50,000.00) to Two
contained, or the devices or words thereon, on hundred thousand pesos (P 200,000.00), shall
in any other feature or their appearance, which be imposed on any person who is found guilty of
would be likely to influence purchasers to committing any of the acts mentioned in Section
believe that the goods offered are those of a 155, Section 168 and Subsection 169.1.
manufacturer or dealer, other than the actual RA 455- LAW ON SMUGGLING
manufacturer or dealer, or who otherwise
clothes the goods with such appearance as shall Acts Punishable:
deceive the public and defraud another of his 1. That the merchandise must have been
legitimate trade, or any subsequent vendor of fraudulently or knowingly imported contrary
such goods or any agent of any vendor engaged to law
in selling such goods with a like purpose; or 2. That the defendant if he is not the importer
himself, must have received, concealed,
(b) Any person who by any artifice, bought, sold or in any manner facilitated the
or device, or who employs any other means transportation, concealment, or sale of the
calculated to induce the false belief that such merchandise and that he must be shown to
person is offering the services of another who have knowledge that the merchandise had
ahs identified such services in the mind of the been illegally imported.
public; or
Title V
(c) Any person who shall make any Crimes Relative to Opium and Other
false statement in the course of trade or who Prohibited Drugs
shall commit any other act contrary to good
faith of a nature calculated to discredit the (The provisions of Article 190 to 194 have
goods, business or services of another. been repealed. First there was R.A. 6425
known as the Dangerous Drugs Law of l972
168.4. The remedies provided by as amended by R.A. 7659. This law has in turn
Section 156, 157 and 161 shall apply mutatis been replaced by R.A. 9165 otherwise known
mutandis. as the Comprehensive Dangerous Drugs Act
of 2002. Some salient provisions are
Section 169. False Designation or summarized hereunder).
Origin; False Description or Representation.
1. Campaign against Drugs and Protection of
State
189
2. Balance - Medicinal purpose (i) if the importation was through the use
3. Rehabilitation of a diplomatic passport, diplomatic
facilities or any other means
Declaration of Policy (Sec. 2) involving the offenders official
1. It is the policy of the State to safeguard the status
integrity of its territory and the well-being of (ii) organizes, manages or acts as a
its citizenry particularly the youth, from the financier
harmful effects of dangerous drugs on their
physical and mental well-being and to The protector or coddler is
defend the same against acts or omissions also liable
detrimental to their development and Financier - a person who pays
preservation. (Campaign against Drugs and for, raises, or supplies money for, or
Protection of State Sir Sagsago) underwrites any of the illegal
2. To provide effective mechanisms or activities involving dangerous
measures to re-integrate into society substances.
individuals who have fallen victims to drug Protector or Coddler - a person
abuse or dangerous drug dependence who knowingly and willfully consents
through sustainable programs of treatment to the unlawful acts provided for in
and rehabilitation. (Balance - Medicinal the law and who uses his influence,
purpose; Rehabilitation Sir Sagsago) power or position in shielding,
harboring, screening or facilitating
Change in the classification of dangerous the escape of any person whom he
substances. knows or has grounds to believe has
violated the provisions of this Act in
The old classification between Prohibited and order to prevent the arrest,
Regulated Drugs have been replaced by prosecution and conviction of the
classifying dangerous substances into (i) violator.
Dangerous Drugs (DD) and (ii) Controlled
Precursors and Essential Chemicals (CP/EC) b. Sale, administration, trading,
dispensation, delivery, distribution
DD and CP/EC are not defined but refer to and transportation of dangerous
those substances which are enumerated in the drugs.
list of schedules prepared and adopted by
International Conventions. Note: The quantity of the substance
involved is immaterial.
Controlled Precursors and Essential
Chemicals include those listed in Tables I and Qualifying circumstances
II of the 1988 UN Convention Against Illicit Traffic (i) within 100 meters from a school
in Narcotic Drugs and Psychotropic Substances. (ii) if minors/ mentally incapacitated
individuals are used as runners,
Dangerous Drugs include those listed in the couriers and messengers of drug
Schedules annexed to the 1961 Single pushers;
Convention on Narcotic Drugs, as amended by (iii) if the victim of the offense is a
the 1972 Protocol, and in the Schedules annexed minor, or should a prohibited/
to the 1971 Single Convention on Psychotropic regulated drug involved in any
Substances. offense under this section be the
proximate cause of the death of a
Factors Affecting Criminal Liability : victim thereof
(iv) organizes, manages or acts as a
1. The kind of dangerous substance involved: financier
the penalty is higher if what are involved are
DD. The protector or coddler is
also liable
2. The Act performed by the accused such as: The consummation of the crime
Dangerous Drugs of illegal sale of drugs may be
sufficiently established even in the
a. Importation of dangerous drugs (even absence of money. The payment
for floral, decorative and culinary could precede or follow delivery of
purposes) and/or controlled precursors the drug sold. IN abuy-bust
and essential chemicals operation, what is important is the
fact that the poseur-buyer received
Qualifying circumstances the shabu from the offender and the
same was presented as evidence in
190
court. (Pp vs Yang, Feb 16, 2004) (i) any phase conducted in presence or
Without evidence that the accused with help of minors
handed over the shabu to the buyer, (ii) established/ undertaken w/in 100m of
he may not be convicted. However, residential, business, church or
where the accused intended to sell school premises
shabu and commenced by overt acts (iii) lab secured/ protected by booby
the commission of the intended traps
crime by showing the substance to (iv) concealed with legitimate business
the buyer, he will be guilty of the operations
crime attempted sale of shabu. (Pp (v) employment of practitioner, chemical
vs Adam, Oct 13, 2003) engr, public official or foreigner
192
Persons liable: practitioner, c) If the victim of the offense is a
manufacturer, wholesaler, minor or a mentally incapacitated
importer, distributor, dealer, or individual, or should a dangerous
retailer drug involved in any offense
The additional penalty of herein provided be the proximate
revocation of his license to cause of death of a victim
practice his profession in case of thereof.
a practitioner, or of his or its d) organizes, manages or acts as a
business license in case of financier
manufacturer, seller, importer,
distributor or dealer, shall be The protector or coddler is
imposed also liable
Every penalty imposed shall carry with it Attempt or Conspiracy to commit the
the confiscation and forfeiture, in favor following unlawful acts shall be penalized
of the government, of all the proceeds by the same penalty prescribed for the
and properties derived from the unlawful commission of the same under this Act:
act, including, but not limited to
a) money and other assets obtained (i) importation of DD and/or CP/EC
thereby, and (ii) sale, trading, administration,
b) the instruments or tools with which dispensation, delivery, distribution and
the particular unlawful act was transportation of DD and/or CP/EC
committed, unless they are the (iii) maintenance of a den, dive or resort for
property of a third person not liable DD
for the unlawful act, but those which (iv) manufacture of DD and/or CP/EC
are not of lawful commerce shall be (v) cultivation or culture of plants which are
ordered destroyed. (Sec. 20) sources of DD.
Any person charged under any provision Note that the law does not include
of this Act regardless of the imposable possession as being the subject of an
penalty shall not be allowed to avail of attempt or conspiracy (Is this omission
the provisions of plea-bargaining. (Sec. intentional or by oversight?)
23) The penalty for such attempt and conspiracy
is the same penalty prescribed for the
Any person convicted for drug trafficking commission. Thus, where the offense of
or pushing under this Act, regardless of sale was not consummated, the accused
the penalty imposed by the Court, should not be prosecuted under mere
cannot avail of the privilege granted by possession, but under Sec. 26 (Justice
the Probation Law (PD No. 968, as Peralta)
amended). (Sec. 24) The maximum penalties of the unlawful acts
shall be imposed, in addition to absolute
Notwithstanding the provisions of the law perpetual disqualification from any public
to the contrary, a positive finding for the office, if those found guilty of such unlawful
use of dangerous drugs shall be a acts are government officials and
qualifying aggravating circumstance in employees. (Sec. 28)
the commission of a crime by an Any person who is found guilty of planting
offender, and the applicable penalty any dangerous drug and/or controlled
provided for in the RPC shall be precursor and essential chemical, regardless
applicable. (Sec. 25) of quantity and purity, shall suffer the
penalty of death. (Sec. 29)
3. The Quantity of the dangerous substance if In case any violation of this Act is committed
the act of that of possession by a partnership, corporation, association or
any juridical entity, the partner, president,
4. The presence of special aggravating director, manager, trustee, estate or
circumstances. administrator, or officer who consents to or
knowingly tolerates such violation shall be
These vary according to the act of the held criminally liable as a co-principal. (Sec.
accused. Thus in the act of importing: 30)
that the accused is a diplomat or a In addition to the penalties prescribed in the
financier. In cases of sale, delivery, unlawful act committed, any alien who
administration or transporting: that it violates such provisions of this Act shall,
took place within a radius of 100 meters after service of sentence, be deported
form a school; the use of a minor or a immediately without further proceedings,
mentally incapacitated person; or that unless death is the penalty. (Sec. 31)
the victim is a minor or a mentally
incapacitate person; or that the DD is the New Acts Punished
proximate cause of the death; or that the
suspect is a financier The law seeks to address certain abuses by law
The application of these circumstances is enforcers as well as causes of unsuccessful
doubtful considering that the penalties prosecution or dismissal of drug cases filed in
provided for by the Act do not follow the court.
nomenclature and scheme of the
194
1. Creation of a new qualifying aggravating jurisdiction must only be for compelling
circumstance applicable to offenses under reason and provided the court was
the Revised Penal Code consisting of a notified 24 hours in advance.
POSITIVE FINDING FOR THE USE OF
DANGEROUS DRUGS. This must be 5. Defines and Penalizes the act of Delay and
corroborated by a confirmatory drug test Bungling in the Prosecution of Drug Cases
i.e. the prosecution causes the unsuccessful
Under the old law what prosecution or the dismissal through patent
constituted an aggravating circumstance laxity, inexcusable neglect or unreasonable
was that the accused committed a delay. There must first be an Order of
crime while under the influence of dismissal or Judgment of acquittal, based on
drug. Under the new law, the accused the fault of the prosecution.
need not be high on drugs during the
time of committing of a crime so long as 6. In case of conviction:
the test showed he is a user of drugs a). the convict suffers the accessory penalty
The application of the new of disqualification to exercise civil rights
qualifying aggravating circumstance and political rights and that rights are
poses a problem to felonies which do not suspended during the pendency of an
have qualified forms such as parricide, appeal from such a conviction.
threats, physical injuries, robbery. ( In
such a case it is suggested the b). After conviction by the RTC: there shall be
circumstance must be appreciated as a hearing for the confiscation and
special aggravating to give meaning to forfeiture of unexplained wealth of the
the intent of the congress to punish more accused. In case the article declared
severely the users who commits crimes) forfeited is a vehicle, the same shall be
auctioned not later than five days from
2. Defining and Penalizing the offense of the order of confiscation or forfeiture
Planting of Evidence i..e planting of any
dangerous substances in the person, house, 7. Prohibition against plea bargaining and
effects, or in the immediate vicinity of an disqualification from probation for those
innocent individual for the purpose of convicted of drug trafficking
implicating, incriminating or imputing the
commission of any violation of this Act 8. Provides as a ground for removal from office
of an elective official; that of having
If what is planted is not a dangerous benefited from the proceeds of drug
substances the crime is that of trafficking or receipt of any financial or
Incriminating an Innocent material contribution or donation from
Person/Incriminatory Machination under persons found guilty of drug trafficking.
the Revised Penal Code.
The penalty is death Other Persons Liable
1. public officer or employee who
3. Penalizing any public officer who misappropriates, misapplies or fails to
misappropriates, misapplies or fails to account for confiscated, seized, or
account for the DD/CP/EC, paraphernalia, surrendered DD, plant sources of DD, etc.
proceeds or properties obtained form
unlawful acts. ( Note: Consider this as 2. any elective local or national official who
Malversation or Infidelity of Dangerous have benefited from the proceeds of
Drugs, Drug paraphernalia and Drug trafficking of DD or have received any
Proceeds) financial/material contributions or donations
from natural or juridical persons guilty of
4. Penalizes the following acts of law enforcers: drug trafficking
a). Failure or refusal after due notice, to
appear as witnesses for the prosecution 3. if the violation of the Act is committed by a
b). Failure of the immediate superior to exert partnership, corporation, association or any
reasonable efforts to present the witness judicial person, the partner, president,
in court director, or manager who consents to or
c). Failure of the immediate superior to notify knowingly tolerates such violation shall be
the court of the transfer or re- held criminally liable as co-principal
assignment of a witness during the
pendency of the case to another 4.partner, president, director, manager, officer
territorial jurisdiction. Note that the or stockholder, who knowingly authorizes,
transfer of re-assignment to the tolerates, or consents to the use of a vehicle,
witnesses to another territorial vessel, or aircraft as an instrument in the
195
importation, sale, delivery, distribution or representative form the DOJ (iii)
transportation of DD, or to the use of their representative from the Media and (iv)
equipment, machines or other instruments an elected official. These persons must
in the manufacture of any DD, if such also sign the written inventory
vehicle, vessel, aircraft, equipment, or other
instrument, is owned or under the control 2. Submission of the article within 24 hours to
and supervision of partnership, corporation, the Crime Laboratory for Quantitative ( how
association or judicial entity to which they many kilos or grams) and qualitative ( what
are affiliated kind of substance was involved) examination
5.any person who is found guilty of planting 3. Requirement that the results of the crime
any DD and/or CP/EP, regardless of quantity laboratory examination must be under oath
or purity (penalty of death)
4. Upon the filing of the Information in Court:
6. any person violating a regulation issued by
the Dangerous Drugs Board a. Conduct of an ocular inspection or
examination of the evidence by the court
7. any person authorized to conduct drug test within 72 hours. This may be in the place
who issues false or fraudulent drug test were the evidence are kept if the same
results knowingly, willfully or through gross cannot be presented in court, or the
negligence evidence are actually brought and
presented in court.
8. any govt officer tasked with the prosecution
of drug-related cases under this Act who b. Destruction of the articles within 24 hours
delays or bungles the prosecution following the inspection but
representative samples are taken and
For the purpose of enforcing the preserved
provisions of this Act, all school heads,
supervisors and teachers shall be 5. Destruction of the representative samples
deemed to be persons in authority and, after conviction, forfeiture and confiscation
as such, are vested with the power to of other proceeds of the crime and
apprehend, arrest, or cause the
apprehension or arrest of any person Provisions Intended To Benefit The Drug
who shall violate any of the said Dependent- The Following Are Applicable
provision. They shall be considered as Only If The Charge Is For The Use Of
persons in authority if they are in the Dd/Cp/Ec
school or within its immediate vicinity,
or beyond such immediate vicinity if 1. Community service in lieu of imprisonment
they are in attendance in any school or
class function in their official capacity as 2. Exemption from Criminal Liability for
school heads, supervisors or teachers first time offenders who underwent
Any teacher or school employee who treatment and rehabilitation in a Drug
discovers or finds that any person in the Rehabilitation Center under the supervision
school or within its immediate vicinity is of the Dangerous Drugs Board and were
violating this Act shall have the duty to discharged thereafter
report the violation to the school head or
supervisor who shall, in turn, report the Rules for Exemption from Criminal
matter to the proper authorities. Failure Liability of Drug Dependents through
to report in either case shall, after Voluntary Submission
hearing, constitute sufficient cause for
disciplinary action by the school A. Drug dependent who is finally
authorities (sec 44) discharged from confinement shall be
exempt subject to the ff. conditions:
Provisions Against Act affecting the
Integrity of the evidence or their possible 1. complied with the Rules of the Center
appropriation by agents 2. never been charged or convicted of
1. Conduct of a Physical Inventory and any offence under this Act, the
Photographing of the Evidence Dangerous Drugs Act of 1972, the
a. Immediately upon the arrest, seizure or RPC, or any special penal laws.
confiscation 3. no record of escape from the Center;
b. In the presence of (i) the accused or provided if he escaped, he
person form whom the articles were surrendered by himself or through his
taken or his representative (ii) a
196
parent, spouse, guardian or relative that the respondent/accused is under
w/in the 4th w/in 1 week. detention or confinement in a center
4. poses no serious danger to himself,
family or community H. A drug dependent who is discharged as
rehabilitated, but does not qualify for
B. Voluntary submission of a drug exemption, may be charged under this
dependent to confinement, treatment Act, but shall be placed on probation
and rehabilitation by the drug dependent and undergo community service in
himself or through his parent, guardian lieu of imprisonment and/or fine in
or relative w/in the 4th in a center and the courts discretion
with the compliance with such conditions
therefor as the Dangerous Drugs Board I. A drug dependent who is not rehabilitated
may prescribe shall exempt him from after the second commitment to the
criminal liability for possession or use of Center under the voluntary submission
the DD program shall, upon recommendation of
the Board, be charged for violation of
C. Should the drug dependent escape from Sec 15 (use of DD) and be prosecuted
the center, he may submit himself for like any other offender. If convicted, he
confinement w/in 1 week from the date shall be credited for the period of
of his escape, or his parent, guardian or confinement in the Center
relative may, w/in the same period
surrender him for confinement. 3. Suspension of sentence of a Minor First
Offender, Rules
D. upon application of the Board, the Court
shall issue an order for recommitment if A. Supervision and rehabilitative
the drug dependent does not resubmit surveillance of the Dangerous Drugs
himself for confinement or if he is not Board and under such conditions that
surrendered for recommitment the court may impose for a period of 6-
18 mos.
E. If, subsequent to such
recommitment, he should escape Requisites for suspension:
again, he shall no longer be exempt
from criminal liability for the use or
1. Accused is a minor over 15 years at
possession of any DD.
the time of the commission of the
offense but not more than 18 years
F. If a person charged with an offense with
of age when the judgment should
an imposable penalty of less than 6
have been promulgated. (in the
years and 1 day, and the Court or
words of Pros. Ssgsago: A minor is
prosecutor, at any stage of the
one who is over 15 at the time of the
proceedings, finds that the person
commission of the offense but below
charged with an offense is a drug
18 at the time of sentencing)
dependent, the fiscal or court as the
case may be, shall suspend all further
2. He has not been previously
proceedings and transmit records of the
convicted of violating this Act,
case to the Board. If the Board
Dangerous Drugs Act of 1972, RPC or
determines that public interest requires
any special penal laws
that such person be committed, it shall
file a petition for commitment. After
3. He has not been previously
commitment and discharge, the
committed to a Center or to the
prosecution shall continue. In case of
care of a DOH-accredited physician
conviction, the judgment shall, if
certified by the center for good
4. The Dangerous Drugs Board
behavior, indicate that he shall be given
favorably recommends that
full credit for the period of
his/her sentence be suspended
confinement; provided when the offense
is use of DD, and the accused is not a
Where the minor is under 15 years
recidivist, the penalty shall have
deemed to have been served in the at the time of the commission, Art
center upon release. 192 of Child And Youth Welfare
Code shall apply (suspension of
G. the period of prescription of the offense sentence and commitment)
charged shall not run during the time
B. the privilege of suspended sentence may
be availed of only once
197
b). For officer and employees of public and
C. if the minor violates any of the private offices subject to the companys
conditions of his suspended sentence, work rules and regulations
rules of the Board, or rules of the center,
the court shall pronounce judgment of Those found to be positive for dangerous
conviction and he shall serve drugs shall be subject to the provisions of
sentence as any other convicted Sec. 15 (Use of Dangerous Drugs), which
person. involves rehabilitation for a minimum period
of 6 months for the first offense, or
D. Upon promulgation of sentence, the imprisonment of 6 to 12 years for the second
court may, in its discretion, place the offense.
accused under probation, or impose
community service in lieu of The privilege of suspended sentence shall be
imprisonment availed of only once by an accused drug
dependent who is a first-time offender over
The suspension is discretionary upon the fifteen (15) years of age at the time of the
court. Contra the Family Court Law ( RA commission of the violation of Section 15
8369) which provides that the (Use of Dangerous Drugs) but not more than
suspension is mandatory) eighteen (18) years of age at the time when
Upon favorable recommendation by the judgment should be promulgated. (Sec. 68)
Board the court shall discharge the
accused and dismiss all the proceedings
All records shall be expunged and the Strengthening and Professionalization of
minor shall not be criminal liable for the Fight against Drug Menace
perjury for concealment or
misrepresentation of refusal to a). Creating of the Philippine Drug Enforcement
acknowledge or recite any fact Agency ( PDEA) as the implementing arm of
concerning his case. the Dangerous Drugs Board
Provisions To Expedite Drug Cases b). the NARCOTICS group for the other law
enforcement agencies are abolished
1. The Preliminary Investigation shall be c). Establishment of a PDEA ACADEMY which
terminated within 30 days from filing and shall be responsible for rte recruitment and
the Information hall be filed within 24 hours training of PDEA agents and personnel and
from the termination of the investigation whose graduates shall comprise the
operating units of the PDEA
2. Trial shall be terminated not later than 60
days from ate of filing of the Information Dangerous Drugs Board shall be the policy-
making and strategy-formulating body in the
3. The decisions shall be rendered within 15 planning and formulation of policies and
days from submission for decision programs on drug prevention and control.
198
f. does not appear to be the most guilty
Rules for Lab Examination of g. no other direct evidence available
Apprehended/Arrested Offenders
9. Limited applicability of the RPC
1. If reasonable ground to believe that the RPC shall not apply to this Act,
offender is under the influence of DD, except in the case of minor offenders.
conduct examination w/in 24 hrs Where the offender is a minor, the
penalty for acts punishable by life
2. Positive results shall be challenged w/in 15 imprisonment to death shall be
days after receipt of the result through a reclusion perpetua to death.
confirmatory test.
Hence, since RPC nomenclature of
3. Confirmed test shall be prima facie penalties is used, the minor is then
evidence that offender has used DD entitled to mitigating circumstances
under the RPC (Martin Simon case).
4. Positive test must be confirmed for it to be Thus, the minor does not receive the
valid in a court of law death penalty (Justice Peralta)
1. In buy-bust operations, there is no law or 1. Drug cases are where the principles of
rule requiring policemen to adopt a Instigation and Entrapment are most often
uniform way of identifying buy money applied
2. Absence of ultraviolet powder on the buy 2. Buy-bust operations are recognized as one of
money is not fatal for the prosecution the most effective means of arresting
criminals in flagranti. Where the arrest is due
3. if offender is an alien, an additional to a buy-bust the presentation of the buy-
penalty of deportation w/o further money is not essential, and as a general
proceedings shall be imposed rule, the identification and presentation of
immediately after service of sentence the civilian informer is considered privileged
3. If the accused is a CICL and the penalty is Life
4. A person charged under the Dangerous Imprisonment, said penalty shall be
Drugs Act shall not be allowed to understood to be Reclusion Perpetua thereby
avail of plea-bargaining the minor is still entitled to all the beneficial
effects arising from his minority, such as the
5. A positive finding for the use of reduction of the penalty by degrees
dangerous drugs shall be a qualifying
aggravating circumstance in the Cases
commission of a crime by the offender
PP vs. Adam 10/13/03
6. if public official/ employee is the Appellant is guilty of the crime of
offender, the maximum penalty shall attempted sale of shabu. As gleaned from the
be imposed testimony of the poseur-buyer, the appellant
merely showed the bag containing the shabu
7. Any person convicted of drug trafficking or and held on to it before it was confiscated.
pushing cannot avail of the Probation There is no evidence that the poseur-buyer
Law talked about and agreed with the appellant on
the purchase price of the shabu. There is no
8. Immunity from prosecution and evidence that the appellant handed over the
punishment shall be granted to an shabu to the poseur-buyer
informant, provided the ff. conditions
concur: PP vs. Yang 2/16/04
The consummation of the crime charged
a. necessary for conviction herein may be sufficiently established even in
b. not yet in the possession of the State the absence of an exchange of money. The offer
c. can be corroborated on material points to sell and then the sale itself arose when the
d. has not been previously convicted of a poseur-buyer showed the money to appellant,
crime of moral turpitude, except which prompted the latter to show the contents
when there is no other direct of the carton, and hand it over to the poseur-
evidence buyer. Mere showing of the said regulated drug
e. comply with conditions imposed by does not negate the existence of an offer to sell
the State or an actual sale. The absence of actual or
199
completed payment is irrelevant, for the law Article 195. What Acts Are Punishable in
itself penalizes the very act of delivery of DD, Gambling (repealed)
regardless of any consideration. Payment of
consideration is likewise immaterial in the The applicable laws are:
distribution of illicit drugs
(1) Presidential Decree No.1602 : (Simplifying
PP vs. Chua 7/1/03 and Providing Stiffer Penalties for Violations
In a prosecution for illegal possession of of Gambling Laws) and
a DD, mere possession of a regulated drug w/o
legal authority is punishable under the (2) R.A. No. 9287 (An Act Increasing the
Dangerous Drugs Act. Lack of criminal intent or Penalties for Illegal Numbers Games,
good faith does not exempt appellants from Amending Certain provisions of P.D. 1602
criminal liability and for Other Purposes).
PP vs. Cadley 3/15/04 GAMBLING GAMES - refer to any game or
A prior surveillance is not a prerequisite scheme whether upon chance or skill, wherein
for the validity of an entrapment or buy-bust wagers consisting of money, articles or value or
operation, the conduct of which has no rigid or representatives of value, are made.
textbook method
It is the fact that bets are made which makes
PP. vs. Del Norte 3/31/04 the game a gambling game. The game may be
In a prosecution for illegal possession of decided purely on chance, purely on skill, or
DD, the ff facts must be proven with moral both.
certainty: (1) that the accused is in possession
of the object identified as a prohibited or It becomes illegal and therefore prohibited if it is
regulated drug; (2) that such possession is not not authorized by a franchise.
authorized by law; and (3) that the accused
freely and consciously possessed the said drug. However parlor games are exempted such as
In this case, proof of the accuseds ownership of those during wakes, unless it clearly appears
the house where the prohibited drugs were that the wake is unnecessarily prolonged as to
discovered is necessary be a cover excuse to conduct illegal gambling
200
consideration (ii) chance or hazard and (iii)
ELEMENTS: prize/advantage/inequality in amount or value
1. That a gambling game was carried on in an which is in the nature of prize. Examples are
inhabited or uninhabited place or in any raffle games.
building , vessel or other means of
transportation. ELEMENTS:
2. That the place, building, vessel or other 1. consideration
means of transportation is owned or 2. chance
controlled by the offender. 3. prize or some advantage or inequality in
3. That the offender permitted the carrying on amount or value which is in the nature of a
of such games , knowing that it is a prize.
gambling game.
No lottery where there is full value of
Penalties: If the foregoing pertains to any money (criminal case-Olsen), but if
numbers game the penalties are specifically inducement to win prize is reason for
those provided for in R.A. 8287 purchase/subscription/others then even if full
value for money is received still lottery
Gambling in all its forms, unless allowed by (Administrative Code, postal law-El Debate)
law, is generally prohibited. The prohibition Proof that game took place or is about to
does not mean that the Govt cannot take place is not necessary; burden of
regulate it in the exercise of police power evidence is shifted to accused to show that
Sports Contests: Betting, Game-fixing, Point- his possession is lawful or is not connected
shaving, Game Machinations prohibited with jueteng game; but proof to the contrary
Before, the Revised Penal Code considered is necessary when jueteng lists pertain to
the skill of the player in classifying whether games played on other dates
a game is gambling or not. But under the Mere possession of lottery tickets or
new gambling law, the skill of the players is lottery lists is a crime punished also as part
immaterial. of gambling. However, it is necessary to
Under this law, even sports contents like make a distinction whether a ticket or list
boxing, would be gambling insofar as those refers to a past date or to a future date.
who are betting therein are concerned.
Under the old penal code, if the skill of the Illustration: X was accused one night and
player outweighs the chance or hazard found in his possession was a list of jueteng.
involved in winning the game, the game is If the date therein refers to the past, X
not considered gambling but a sport. It was cannot be convicted of gambling or illegal
because of this that betting in boxing and possession of lottery list without proving
basketball games proliferated. that such game was indeed played on the
As a general rule, betting or wagering date stated. Mere possession is not enough.
determines whether a game is gambling or If the date refers to the future, X can be
not. Exceptions: These are games which convicted by the mere possession with
are expressly prohibited even without bets. intent to use. This will already bring about
Monte, jueteng or any form of lottery; dog criminal liability and there is no need to
races; slot machines; these are habit- prove that the game was played on the date
forming and addictive to players, bringing stated. If the possessor was caught,
about the pernicious effects to the family chances are he will not go on with it
and economic life of the players. anymore.
Under this decree, a barangay captain who
is responsible for the existence of gambling There are two criteria as to when the
dens in their own locality will be held liable lottery is in fact becomes a gambling
and disqualified from office if he fails to game:
prosecute these gamblers. But this is not
being implemented. 1. If the public is made to pay not only for the
Fund-raising campaigns are not gambling. merchandise that he is buying, but also for
They are for charitable purposes but they the chance to win a prize out of the lottery,
have to obtain a permit from Department of lottery becomes a gambling game. Public is
Social Welfare and Development. This made to pay a higher price.
includes concerts for causes, Christmas
caroling, and the like. 2. If the merchandise is not saleable because
of its inferior quality, so that the public
LOTTERY - A form of gambling whereby prizes actually does not buy them, but with the
are distributed among persons who have paid, lottery the public starts patronizing such
or agreed to pay, a valuable consideration for merchandise. In effect, the public is paying
the chance to obtain a prize. It requires (i) a for the lottery and not for the merchandise,
201
and therefore the lottery is a gambling coupons, the public started buying the
game. Public is not made to pay a higher cigarette. Although there was no price
price. increase in the cigarettes, the lottery
can be considered a gambling game
Illustrations: because the buyers were really after the
coupons not the low quality cigarettes.
(1) A certain supermarket wanted to
increase its sales and sponsored a If without the lottery or raffle, the public
lottery where valuable prices are offered does not patronize the product and
at stake. To defray the cost of the prices starts to patronize them only after the
offered in the lottery, the management lottery or raffle, in effect the public is
increased their prices of the paying for the price not the product.
merchandise by 10 cents each.
Whenever someone buys from that Q: When are promo sales or advertising
supermarket, he pays 10 cents more for schemes considered lottery/gambling? ( This
each merchandise and for his purchase, refers to the practice of advertising goods for
he gets a coupon which is to be dropped sale offering the purchasers a chance to win a
at designated drop boxes to be raffled prize by giving them coupons to be drawn later )
on a certain period.
A: The scheme is considered a lottery or
The increase of the price is to answer for gambling if : (1) the public pays more than the
the cost of the valuable prices that will price of the article because the excess is used to
be covered at stake. The increase in the defray or cover the cost of the prize or (2) the
price is the consideration for the chance article is not saleable without the prize and it
to win in the lottery and that makes the becomes saleable only because of the prize.
lottery a gambling game.
(8) basketball,
prision any person who,
boxing, volleyball,
correccional, knowingly and
bowling, pingpong
medium or fine without lawful
and other forms of
ranging from purpose, possess
individual or team
P400 to P2,000 any lottery list, paper
contests to include
or other matter
game fixing, point
containing letters,
shaving and other
figures, signs or
machinations;
symbols pertaining
to or in any manner
(9) banking or used in the games of
percentage game, or jueteng, jai-alai or
any other game horse racing bookies,
scheme, whether and similar games of
upon chance or skill, lotteries and
wherein wagers numbers which have
consisting of money, taken place or about
articles of value or to take place.
representative of
value are at stake or
made; Temporary barangay official
absolute who, with knowledge
disqualification of the existence of a
2. Any person who gambling house or
shall knowingly place in his
permit any form of jurisdiction fails to
gambling in abate the same or
inhabited or take action
uninhabited place or
in any building,
vessel or other prision security officer,
means of correccional security guard,
transportation owned maximum or fine watchman, private or
or controlled by him. ranging from house detective of
P500 to P2,000 hotels, villages,
buildings, enclosures
prision 1.gambling in place and the like which
correccional, with reputation of a have the reputation
maximum, fine of gambling place, of a gambling place
P6,000 frequent gambling or where gambling
place, govt bldg or activities are being
brgy hall held.
203
Informer's reward. Any person who shall Game-fixing, point-shaving, game machination,
disclose information that will lead to the as defined in the preceding section, in
arrest and final conviction of the malefactor connection with the games of basketball,
shall be rewarded twenty percent of the cash
volleyball, softball, baseball; chess, boxing
money or articles of value confiscated or
forfeited in favor of the government. bouts, jai-alia, sipa, pelota and all other sports
contests, games or races; as well as betting
Playing for money is not a necessary therein except as may be authorized by law, is
element. The laws purpose is to prohibit hereby declared unlawful. (S2)
absolutely those games
Betting betting money or any object or
Any other games if with wager of money, article of value or representative of value
articles, or value are at stake or made upon the result of any game, races and
Individual/team contests: game-fixing, point
other sports contests
shaving, other machinations
Spectators are not liable: must directly or
indirectly take part; the law does not make it Game-fixing any arrangement,
an offense to be present in a gambling combination, scheme or agreement by which
house. the result of any game, races or sports
A game or scheme is punishable even if contests shall be predicted and/or knows
winning depends upon skill as long as
other than on the basis of the honest playing
wagers (consisting of money, articles of
value or representative of value) are at stake skill or ability of the players or participants
or made
Maintainer person who sets up and Point-shaving any such arrangement,
furnishes means to carry on gambling or combination, scheme or agreement by which
scheme
the skill or ability of any player or participant
Conductor- person who manages or carries
on gambling game or scheme in a game, races or sports contests to make
points or scores shall be limited deliberately
Article 196. Importation, Sale and in order to influence the result thereof in
Possession of Lottery Tickets or favor of one or the other team, player or
Advertisements participant therein
ACTS PUNISHED RELATIVE TO LOTTERY
TICKETS OR ADVERTISEMENTS Game Machination any other fraudulent,
1. By importing into the Philippines from any deceitful, unfair or dishonest means,
foreign place or port any lottery ticket or method, manner or practice employed for
advertisement.
the purpose of influencing the result of any
2. By selling or distributing the same in
connivance with the importer. game, races or sports contests
3. By possessing , knowingly and with intent to
use , lottery tickets or advertisements. Clearance for arrest, detention or
4. By selling or distributing the same without
prosecution no person who voluntarily
connivance with the importer.
discloses or denounces to the President of
The possession of any lottery ticket or the Philippine Amateur Athletic Federation or
advertisement is prima facie evidence of an to the National Sports Association concerned
intent to sell, distribute or use the same. and/or to any law enforcement/ police
authority any of the acts penalized by this
Article 197. Betting in Sport Contests
(repealed) Decree shall be arrested, detained and/or
prosecuted except upon prior written
This article has been repealed by Presidential clearance from the President of the
Decree No. 483 (Betting, Game-fixing or Philippines and/or the Secretary of National
Point-shaving and Machinations in Sport Defense
Contests):
204
1. By betting on horse races during the upon resolution of a provincial board, city or
periods not allowed by law. municipal council
2. By maintaining or employing a totalizer
or other device or scheme for betting on In licensed cockpits or in playgrounds or
races or realizing profit therefrom, during the parks and may be extended for only one
periods not allowed by law. time, for a period not exceeding 3 days, w/in
a year to a province, city or municipality
When horse races not allowed
1. July 4 (Republic Act No. 137); Permitting gambling of any kind in cockpit is
2. December 30 (Republic Act No. 229); punished under the same Decree (owner,
3. Any registration or voting days (Republic Act manager or lessee of cockpit that permits
No. 180, Revised Election Code); and gambling shall be criminally liable)
4. Holy Thursday and Good Friday (Republic Act
Spectators in cockfight are not liable unless
No. 946).
he participates as bettor
Only allows one cockpit per municipality,
Article 199. Illegal Cockfighting
unless the population exceeds 100,000 in
This article has been modified or repealed by which case two cockpits may be established;
Presidential Decree No. 449 (The Only municipal and city mayors are allowed
Cockfighting Law of 1974): to issue licenses for such.
Act Punished
Any person who directly or indirectly Offenses Against Decency and Good
participates in cockfights, by betting money or Custom
other valuable things, or who organizes
cockfights at which bets are made, on a day Article 200. Grave Scandal
other than those permitted by law, or at a place
other than a licensed cockpit. Concept:
205
made are so loud or the acts can be seen
by third persons. The third person must It is no defense that she is doing it in her
not however be a Peeping Tom. Note private home. It is still open to the public
that the number of people who sees it is view.
not material; Even if there was only one
person who witnessed the offensive act (4) In a particular building in Makati which
for as long as the third person was not stands right next to the house of a young
an intruder, grave scandal is committed lady who goes sunbathing in her poolside.
Every morning several men in the upper
The act must not be punished under any floors would stick their heads out to get a
other provision of the Code as this is a crime full view of said lady while in her two-piece
of last resort or a catch-all crime. swimsuit. The lady was then charged with
The scandalous acts affect public morals or grave scandal. Her defense was that it is
sensitivity and have nothing to do with her own private pool and it is those men
violations of public peace and tranquility. looking down at her who are malicious.
Thus two persons fighting or shouting at
each other in a public place would constitute This is an act which even though done in a
Alarm and Scandal. But when these same private place is nonetheless open to public
two persons engage in a strip tease contest view.
in full view of people, the act would be Grave
Scandal. Article 201. Immoral Doctrines, Obscene
DECENCY means properly observing the Publications and Exhibitions and Indecent
requirements of modesty, good taste Shows
CUSTOMS refer to established usage, social
Persons Liable and Acts Punished
conventions carried on by tradition and
enforced by social disapproval in case of
1. Those who shall publicly expound or
violation
proclaim doctrines openly contrary to
The essence of GRAVE SCANDAL is publicity
public morals;
and that the acts committed are not only
contrary to morals and good customs but
As for instance advocating polygamy or
must likewise be of such character as to
wife-swapping or killing off the
cause public scandal to those witnessing it.
mental/physical retardates to improve
the Filipino race
Illustrations:
(1) A man and a woman enters a movie What about advocating same-sex
house which is a public place and then goes marriage? Or opening an exclusive
to the darkest part of the balcony and while nudist camp?
there the man started performing acts of
lasciviousness on the woman. 2. In reference to obscene literature:
If it is against the will of the woman, the (i) The authors of obscene literature if they
crime would be acts of lasciviousness. But if had knowledge of the publishing of their
there is mutuality, this constitutes grave works in any form. Thus writing an
scandal. Public view is not necessary so obscene literature is not per se punished
long as it is performed in a public place. but if the authors allow said works to be
circulated to any third person, then they
(2) A man and a woman went to Luneta and become liable. If the wok is stolen and
slept there. They covered themselves their circulated without their knowledge, they
blanket and made the grass their conjugal are not liable.
bed.
(ii) The editors publishing such literature
This is grave scandal. (iii) The owners/operators of the
establishment selling the same
(3) In a certain apartment, a lady tenant
had the habit of undressing in her room 3. In reference to obscene, indecent, or immoral
without shutting the blinds. She does this plays, scenes, acts or shows:
every night at about eight in the evening. So
that at this hour of the night, you can expect (i). The persons who exhibit them (in
people outside gathered in front of her theaters, fairs, cinematographs, or any
window looking at her silhouette. She was other place) including the producers,
charged of grave scandal. Her defense was actors, movie house/theater owners
that she was doing it in her own house.
206
(This test is too subjective and does not
These include plays, scenes, acts, offer an objective criterion. A matter may
shows whether live or in film which corrupt one person but may have no
effect on another). (Ortega, however,
1) glorify criminals or condone asserts that the test is objective. It is
crimes more on the effect upon the viewer and
2) serve no other purpose but to not alone on the conduct of the
satisfy the market for violence, performer.)
lust or pornography
3) offend any race or religion e.g. A sexy dancing performed for a 90
4) tend to abet traffic in and use of year old is not obscene anymore even if
prohibited drugs the dancer strips naked. But if
5) are contrary to law, public order, performed for a 15 year old kid, then it
morals, good customs, will corrupt the kids mind. (Apply
established policies, lawful Kottinger Rule here.)
orders, decrees and edicts
b). That which shocks the ordinary and
4. Persons who sell, give away, or exhibit common sense of man as indecency.
films, prints, engravings, sculptures, or (This is vague. Moral values vary
literature, which are offensive to according to circumstances of time,
morals. place and occasion)
207
vs. California which set the following of the law to prevent and punish
guidelines: pornography.
a). Whether the average person, applying If a work, such as a movie, has
contemporary standards, would find that been approved by a government agency for
the work taken as a whole, appeals to public viewing or reading, a charge under
prurient interest ( those which are dirty, Article 201 will not prosper. Because there is
intended to arouse sexual cravings, a government body which deliberates
things which have something to do with whether a certain exhibition, movies and
unsafe or healthy sex). plays is pornographic or not, if such body
approves the work the same should not be
b). Whether the work depicts or describes, in charged under this title. Because of this,
a patently offensive way, sexual conduct the test of obscenity may be obsolete
specifically defined by the applicable law already. If allowed by the Movies and
Television Review and Classification Board
c). Whether the work lacks serious literary, (MTRCB), the question is moot and
artistic, political or scientific value academic.
If a woman who is scantily
QUERRY: Can there be such a dressed poses and walks about in a public
thing as Art for Arts sake? (Personal place, she may be charged for grave
opinion: Any human endeavor, especially in scandal. But when she starts gyrating
the field of arts must be to uplift or improve erotically, the charge would be Violation of
man either materially, spiritually or Article 201 for obscene acts.
aesthetically. They must contribute to what A sidewalk vendor was arrested
is universal, good, and beautiful) and prosecuted for violation of Article 201.
It appears that the fellow was selling a
Mere nudity in paintings and pictures is not ballpen where one who buys the ballpen can
obscene. peep into the top of the pen and see a girl
dancing in it. He put up the defense that he
May smut or pornographic is not the manufacturer and that he was
materials be seized from vendors in the merely selling it to earn a living. The fact of
street? The case of Pita vs. Ct. of Appeals selling the ballpen was being done at the
( 178 SCRA 362) laid down the following expense of public morals. One does not
guidelines: have to be the manufacturer to be criminally
liable. This holds true for those printing or
a). The authorities must apply for the selling Playboy Magazines.
issuance of a search warrant from a
judge, if in their opinion, an obscenity DISPOSITION OF PROHIBITED ARTICLES
rap is in order The disposition of the literature, films, prints,
b). The authorities must convince the Judge engravings, sculptures, paintings or other
that the materials are obscene and pose materials involved in violation shall be governed
a clear and present danger of an evil by the following rules:
substantial enough to warrant state 1. Upon conviction of the offender to be
interference and action forfeited in favor of the government to be
c). The Judge must determine on a case-to- destroyed.
case basis if the materials are obscene 2. Where the criminal case against the violator
d). If in his opinion the Judge finds probable of the decree results in an acquittal to be
cause he may issue the search warrant forfeited in favor of the government to be
e). The proper criminal case must then be destroyed, after forfeiture proceedings
filed in court conducted by the chief constabulary.
3. The person aggrieved by the forfeiture
Personal Opinion: If the magazines, comics action of the Chief of Police may, within 15
or periodicals, pictures or VCD tapes being days after his receipt of the copy of the
sold are however clearly pornographic, the decision, appeal the matter to the Secretary
seller is actually violating Article 201 and of the National Defense for review. The
hence he may be arrested in flagranti delicto decision of the Secretary of the National
and the article seized right on the spot. The Defense shall be final and unappealable.
Pita case should not be made to apply to (sec. 2, P.D. 969)
situations such as this, or where the vendor
or the articles might disappear before the
search warrant is issued. Otherwise the Pita Article 202. Vagrants and Prostitutes;
decision would stifle and defeat the intend Penalty
208
(Is this a crime against status?) prevent further criminality. Use this when
someone loiters in front of your house every
Not applicable to CICLs. night.
Any person found wandering in an estate
Four kinds of Vagrants/Persons Liable belonging to another whether public or
private without any lawful purpose also
1. (The Lazy one). A person with commits vagrancy, unless his acts
no apparent means of subsistence, but constitutes some other crime in the Revised
physically able to work, neglect to apply Penal Code.
himself to some lawful calling If a person is found wandering in an estate
belonging to another, whether public or
It is not being unemployed per se which private, without any lawful purpose, what
is punished but the refusal to look for other crimes may be committed?
work
When a person is apprehended loitering
2. (The Tourist) Any person found loitering inside an estate belonging to another, the
about public or semi public buildings or following crimes may be committed:
places, or tramping or wandering about the
country or streets without visible means of (1) Trespass to property under Article 281 if
support the estate is fenced and there is a clear
prohibition against entering, but the
3. (The bugao and maton) An idle or offender entered without the consent of
dissolute (immoral, lax, unrestrained; the owner or overseer thereof. What is
includes maintainer of house of prostitution) referred to here is estate, not dwelling.
person who lodges in houses of ill fame;
ruffians (brutal, violent, lawless, barairongs (2) Attempted theft under Article 308,
in Ilokano) and one who habitually paragraph 3, if the estate is fenced and
associates with prostitutes the offender entered the same to hunt
therein or fish from any waters therein
Absence of visible means of or to gather any farm products therein
support is not required hence wealthy without the consent of the owner or
people may be vagrants under this mode overseer thereof;
4. (The suspicious stranger) One (3) Vagrancy under Article 202 if the estate
found loitering in any inhabited or is not fenced or there is no clear
uninhabited place belonging to another prohibition against entering.
without any lawful or justifiable reason If fenced and with Trespass to
The vagrant may have wealth prohibition of entry Dwelling
This is a preventive measure to prevent If fenced and Attempted
the commission of some other more entered to hunt/fish Theft
serious offense If not fenced and Vagrancy
The estate is not fenced with no prohibition
of entry
The common concept of a vagrant is a Prostitution and vagrancy are both punished by
person who loiters n public places without the same article, but prostitution can only
any visible means of livelihood and without be committed by a woman.
any lawful purpose. While this may be the
most common form of vagrancy, yet even Prostitutes - women who habitually
millionaires or one who has more that engages in (I) sexual intercourse or (2) or
enough for his livelihood can commit lascivious conduct, for money or profit.
vagrancy by habitually associating with
prostitutes, pimps, ruffians, or by habitually Habitually means not just an occasional
lodging in houses of ill-repute. intercourse or lascivious but it signifies
Vagrancy is not only a crime of the that the woman resorts to sexual
privileged or the poor. The law punishes the intercourse or lascivious conduct as a
act involved here as a stepping stone to the means of livelihood; not just one man.
commission of other crimes. Without this Profit may include being financed in a
article, law enforcers would have no way of ladys schooling, payment of rentals or
checking a person loitering in the wrong by way of articles of value
place in the wrong time. The purpose of the If the lady agrees that she will not any
law is not simply to punish a person because more sleep with other men but will
he has no means of livelihood; it is to become the exclusive bed partner of one
209
man, in exchange for an apartment or with the United Nations Convention of the
house, she is still a prostitute. But when Rights of the Child
they become lovers, she is no longer a
prostitute.
Example of Lascivious conduct: strip Title VII. Crimes Committed by Public
tease dancing before men, or kissing or Officers
fondling or being fondled
A man who engages in nude dancing for Introduction
a fee, as well as call boys, cannot be
charged for prostitution but for vagrancy Although the offenders are principally public
Question: Must the partner of the officers, there are crimes under this title which
prostitute be a man in case of may also be committed by private persons by
lasciviousness conduct? themselves as such, like if the crime of Infidelity
in the Custody of a Prisoner and Malversation by
In law the mere indulging in lascivious
a Private person under Article 222. They may
conduct habitually because of money or
also be liable when they conspire with the public
gain would amount to prostitution, even
officer or when they participate as accomplices
if there is no sexual intercourse.
or accessories.
Virginity is not a defense. Habituality is
the controlling factor; is has to be more
ART. 203 - WHO ARE PUBLIC OFFICERS
than one time.
There cannot be prostitution by
REQUISITES:
conspiracy. One who conspires with a To be a public officer one must be
woman in the prostitution business like 1. Taking part in the performance of public
pimps, taxi drivers or solicitors of clients functions in the government , or performing
are guilty of the crime under Article 341 in said Government or in any of its branches
for white slavery. public duties as an employee, agent or
subordinate official, of any rank or class; and
2. That his authority to take part in the
Related Offense - P.D. 1653 MENDICANCY performance of public functions or to
perform public duties must be-
Mendicancy under P.D. 1563 which punishes a) by direct provision of the law, or
those who uses begging as a means of living as b) by popular election, or
well as those giving money. c) by appointment by competent authority
Non applicability to CICLs.
There is no distinction between a public
office and a public employee so long as the
Persons Liable:
person: (i) takes part in performance of
public functions or (ii) performs public duties
1. Mendicant those with no visible and legal
means of support, or lawful employment and It is not the nature of the appointment which
physically able to work but neglects to apply counts but the duties performed. They may
himself to lawful calling and instead uses be permanent, temporary or casual officers.
begging as means of living (higher penalty if Hence one appointed as mere laborer but
convicted 2 or more times) whose function is to sort and file money
orders, or emergency helper but whose
2. Any person who abets mendicancy by functions include custody of documents, is a
giving alms on public roads, sidewalks, parks public officer
and bridges except if given through They include members of a special body
organized agencies operating under rules created by law, to perform a function for the
and regulations of Ministry of Public government, as in the Centennial
Information Commission
Under R.A 9344, persons below 18 years Breach of Office are classified into three
of age shall be exempt from prosecution for forms
the crime of vagrancy and prostitution
under Sec 202 of RPC, mendicancy under MALFEASANCE - doing an act prohibited by law
PD 1563, and sniffing of rugby under PD or that which ought not to be done or not
1619, such prosecution being inconsistent supposed to be done. As in arresting a person
210
who has not committed a crime or spending It also covers those which are rendered
money under ones custody through negligence which is manifest or
inexcusable, or through ignorance. Example:
MISFEASANCE - the improper or irregular applying a law which has been repealed or a
performance of an act which is allowed to be decision which has been reversed. Judges
done are required to keep abreast of latest
developments in the law and in
NONFEASANCE - the non performance, failure jurisprudence.
or refusal to an act which one is required to do There is no liability at all for a mere error in
good faith
Dereliction of Duty by Officers Related to There must be evidence that judgment is
the Administration of Justice unjust for it canot be presumed.
Introduction
ART. 205 - JUDGMENT RENDERED THROUGH
The offenses covered by Articles 204 to 209 NEGLIGENCE
pertain to acts by Judges, Prosecutors and ELEMENTS:
Lawyers (who are officers of the Court). They are 1. That the offender is a judge
generally considered as prevaricacion or crimes 2. That he renders a judgment in a case
involving betrayal of trust submitted to him for decision
3. That the judgment is manifestly unjust
DERELICTION BY JUDGES (Articles 204 t0 207) 4. That it is due to his inexcusable negligence
or ignorance
The Judges referred to are Trial Court Judges and
not to Judges of Collegial or Appellate Courts MANIFESTLY UNJUST JUDGMENT - It so
manifestly contrary to law, that even a person
(It) has no application to members of collegial having a meager knowledge of the law cannot
courts such as the Sandiganbayan or its doubt the injustice.
divisions, who reach their decision in
consultation and accordingly render their Abuse of discretion or mere error of judgment is
collective judgment after due deliberation not punishable.
(Cortes vs. Chico-Nazario 422 SCRA 541)
ART.206 UNJUST INTERLOCUTORY ORDER
ART. 204 KNOWINGLY RENDERING UNJUST
JUDGMENT ELEMENTS:
1. That the offender is a judge
ELEMENTS: 2. That he performs any of the following acts:
1. That the offender is a judge a) knowingly renders unjust interlocutory
2. That he renders a judgment in a case order or decree, or
submitted to him for decision b) renders a manifestly unjust interlocutory
3. That the judgment is unjust order or decree through inexcusable
4. That the judge knows that his judgment is negligence or ignorance
unjust
q - is one which decides on an issue related to
JUDGMENT - the final consideration and the case but does not decide the case on the
determination of a court of competent merit or on the evidence.
jurisdiction upon the matters submitted to it, in
an action or proceeding. Example: granting bail to a non-bailable offense.
UNJUST JUDGMENT - one which is not in Note: Before a Judge can be charged for
accordance with the law and the evidence. Rendering an Unjust Judgment or Unjust
Interlocutory Order, there must be a final and
SOURCES OF UNJUST JUDGMENT authoritative judicial declaration that the
a) Error, or decision or order in question is indeed unjust.
b) ill-will or revenge, or The pronouncement may result from either:
c) Bribery 1. An action for Certiorari or prohibition in the
higher court impugning the validity of the
According to Sir Sagsago, the intention is to judgment or
favor a party or to cause damage to another; 2. An administrative proceeding in the Supreme
or rendered due to ill will, spite, revenge, or Court against the judge precisely for
other personal ill motive, but not through promulgating an unjust judgment or order
bribery. It is not the fact that the decision (Joaquin vs. Borromeo, 241 SCRA 248)
was reversed on appeal which brings about
the crime but proof of the ill motive.
211
ART. 207 MALICIOUS DELAY IN THE The crime committed by the law violator
ADMINISTRATION OF JUSTICE must first be proved as basis fro conviction
ELEMENTS: for dereliction.
1. That the offender is a judge Query: May policemen or law enforcement
2. That there is a proceeding in court agents be held liable if they see a crime but
3. That he delays the administration of justice do not arrest the criminal or do not
4. That the delay is malicious, that is, the delay investigate, gather evidence and charge the
is caused by the judge with deliberate intent criminal? The view is that they are not liable
to inflict damage on either party in the case under Article 208 but they are to be held as
accessories under Article 19 i.e assisting in
Example: delay in the calendaring or cases; the escape of the principal, or that they may
frequent grant of postponements, delaying the be liable under the Anti-Graft and Corrupt
decision or failure to render the decision within Practices Act; or under PD. 1829 for
the time allowed by law obstruction of justice .
Introduction
ART. 209 - BETRAYAL OF TRUST BY AN
Article 208 embraces all public officers whose ATTORNEY OR SOLICITOR- REVELATION OF
official duties involve the initiation of SECRETS
prosecution for the punishment of law violators.
They include:
1. Prosecutors and their assistants PUNISHABLE ACTS:
2. BIR agents who fail to report violations of the 1. Causing damage to his client, either:
NIRC a) by any malicious breach of professional
3. Forestry Agents who fail to apprehend and file duty; or
charges against illegal loggers b) inexcusable negligence or ignorance
4. Chiefs of Police in municipalities who are by
law allowed to appear as prosecutors in the Examples: failure to pay the appeal fee or to
MTC/MCTC in the absence of regular file an Answer or to submit a Formal Offer of
Prosecutors Evidence
5. Barangay Captains
2. Revealing any of the secrets of his client
PUNISHABLE ACTS: learned by him in his professional capacity
1. By maliciously refraining from instituting damage not necessary
prosecution against violators of the law
2. By maliciously tolerating the commission of This is the second offense involving
a crime disclosure of secrets. Secrets are to be
construed as including the lawyers advise;
REQUISITES: papers, documents and objects delivered by
1. That the offender is a public officer who has the client; the lawyers impressions of the
a duty to cause the prosecution of, or to client
prosecute offenses
2. That knowing the commission of the crime, 3. Undertaking the defense of the opposing
he does not cause the prosecution of the party in the same case without the consent
criminal (i.e to gather evidence and then file of his first client
the appropriate charges) OR knowing that a if the client consents to the attorneys
crime is about to be committed he tolerates taking the defense of the other party,
its commission there is no crime
3. That the offender acts with malice and
deliberate intent to favor the violator of the PROCURADOR JUDICIAL - a person who had
law some practical knowledge of law and procedure,
but not a lawyer, and was permitted to
If in case of an illegal numbers game, the represent a party in a case before an inferior
offense would be under RA. 9286 court.
212
Note: The crime is without prejudice to the Three instances when it is
administrative liability of the attorney consummated:
a). The act agreed upon was not yet
BRIBERY performed but a consideration has
already been received (even if
Introduction: consideration not actually received
because acceptance of offer or gift
Bribery connotes the idea of a public officer would be sufficient)
utilizing the power, influence or prestige of his b). The act was executed even if the
office for the benefit of an individual in consideration has not yet been
exchange for a consideration. The accused must received
always be a public officer. There must always be c). The act was executed and the
consideration. The offense can not be consideration has been received
considered bribery if there is no consideration
but the act may be considered as a violation of Conspiracy to Commit Bribery: If the
the Anti-Graft and Corrupt Practices Act. officer merely agreed but did not actually
do the act and he did not yet receive nor
Forms of Bribery was given the consideration, there is also
1. Simple Bribery which is either: the crime of bribery. This is in the nature
(a). Direct of a conspiracy which is punished.
(b) Indirect
2. Qualified Bribery This has no frustrated or attempted
stage since the mere agreement
Article 210. Direct Bribery consummates the crime.
If the act constituting a crime was
Elements committed, the officer is liable for
bribery and for the additional crime so
1. Offender is a public officer within the scope committed. The bribe giver will also be
of Article 203; liable for the crime. Bribery is never
2. Offender accepts directly an offer or a absorbed or complexed but is always
promise or receives a gift or present by punished separately. But in the crime of
himself or through another; Delivering Prisoners, bribery constitutes
3. Such offer or promise be accepted, or gift or a qualifying aggravating circumstance.
present received by the public officer
Example: The Jail Guard agreed with Mr.
a. With a view to committing some
BB to kill X, an inmate, in exchange for
crime; or
money. The crime is committed if (i) he
b. In consideration of the execution
has already received the money but was
of an act which does not constitute a
arrested before he can kill X (ii) he killed
crime, but the act must be unjust; or
X but Mr. BB failed to give the money
c. To refrain from doing something
and (iii) He killed X and was paid either
which it is his official duty to do.
before or after the killing. In the second
4. The act which offender agrees to perform or
and third instance, the officer and Mr. BB
which he executes be connected with the
are liable also for murder/homicide for
performance of his official duties.
the killing.
Acts punished / Modes of Commission of
2. Accepting a gift in consideration of the
Direct Bribery (which is the basis for the
execution of an act which does not
penalty to be imposed):
constitute a crime, in connection with the
performance of his official duty (but is unjust
1. Agreeing to perform, or performing, in
or the doing is improper or unfair);
consideration of any offer, promise, gift or
present an act constituting a crime, in
The gift was accepted by the public
connection with the performance of his
official duties. (e.i. the act amounted to a officer.
crime) The act done is within the proper
functions or duties of the public officer.
Example: Falsification and destruction of Hence to constitute bribery, the
papers, records and properties, killing of consideration must be actually received.
inmates, robbery and taking of money or Future promises or offers or
valuables, invalid arrests, releasing of consideration to be given after the doing,
persons detained such as reward, do not give rise to
bribery.
If the officer performed the act regularly,
properly, or in accordance with law, he is
213
not liable even if he already received the (There is non-performance of an official duty
consideration. due to a consideration provided the non-
If the act was done improperly without performance does not amount to a crime. If
any consideration, the officer is not liable so it is bribery of the first mode.)
for bribery but he may be:
(a). Administratively liable Examples:
(b). Liable under the Anti Graft and
Corrupt Practices Act a). A stenographer received money such
that she did not record the testimony.
If the officer received the consideration
but he did not do the act as agreed b). For money received, the clerk did not
upon, he may be sued for the recovery of include the case in the court
the consideration and for estafa by calendar or that he did not send the
means of deceit. required notices to witnesses.
There are only two stages: (i) attempted
when the officer agreed to do the act for c). Omission to accept and/or record a
a consideration and received the pleading filed
consideration but was not able to
perform the act and (ii) consummated This third mode of bribery and
when the act was executed and the prevaricacion (art 208) are similar
officer received the consideration. offenses, both consisting of omissions to
Examples: do an act required to be performed.
HOWEVER, in direct bribery, a gift or
(a). For money received, the Court sheriff promise is given in consideration of the
delayed the service of summons to omission. This element is not necessary
the defendant or that he did not in prevaricacion.
immediately serve the writ of
execution until the defendant has Common Principles:
sold his properties.
The accused in the direct bribery case
(b) The complainant paid the policeman is the public officer only. The bribe giver will
to serve the warrant of arrest of the be punished for Corruption of a Public
accused on Saturday so that the Officer.
accused will not be able to post bail.
The police however served the Private persons are liable if they are
warrant on Friday allowing the performing public functions such as
accused the accused to post bail. The assessors, arbitrators, appraisers and claim
police is not liable for bribery but the commissioners. These private persons are
bribe giver is liable for attempted usually designated and/or directed by the
corruption. But he may file a case to court to perform these functions as part of
recover the money. pending proceedings, and to submit their
findings to the court. (Art 210 last par)
(c). The police received the money but
when he went to arrest on a Friday For purposes of this article, temporary
night, the accused had already performance of public functions is sufficient
posted bail that morning. He is liable to constitute a person a public officer.
for consummated bribery even if the
purpose was not achieved. The act or omission must be in
relation to the officers duties or functions
(d). NBI agents learned the money will otherwise the crime would be estafa.
be given on Friday morning. When The consideration need not be in
the money was given the NBI agents terms of money or articles of value so long
who were waiting, arrested both the as it has a pecuniary value. This is because
giver and the police. Did the the penalty of fine is based on the value of
policeman commit direct bribery? the consideration given. Those in the form of
favors or service or non-material
(e). Receiving money to give preference considerations may induce a public official to
to a late application over others do any of the acts contemplated by law.
earlier submitted However there is the question of
determining the value as basis for the fine.
3. Agreeing to refrain, or by refraining, from
doing something which it is his official duty
to do, in consideration of gift or promise.
214
The consideration may be given to the avoid arrest and prosecution, the receipt
officer directly or to members of his family or thereof would be bribery.
persons closely associated with the officer.
4. If the giver is a family member of a
Examples of Consideration in the form person arrested and was prevailed upon
of services: the employment or promotion to give so that the case against the
of a family member in a certain company; or relative will not push through, or will be
the giving of a contract to the company of down-graded, the demand and receipt of
the wife; or that the private person will consideration is robbery.
shoulder the expenses of the birthday party
of the officers son. 5. If the giver committed a crime and it was
the officer who suggested the giving of
The borrowing of a vehicle by the LTO money to avoid arrest, it is bribery so
Director from a transportation company can long as the person did so voluntarily but
be considered as a gift in contemplation of if he was forced to give, then it is
law (Garcia vs. Sandiganbayan 507 SCRA robbery. Thus if the person was unwilling
258) to give but he pretended to give but
reported instead to the authorities who
Ateneo: Bribery exists when the gift is: 1. set up an entrapment, the crime of the
voluntarily offered by a private person, 2. officer is attempted robbery
solicited by the public officer and voluntarily
delivered by the private person, 3. solicited 6. If the person did not commit a crime but
by the public officer but the private person the officer insist and pretend there was a
delivers it out of fear of the consequences crime and threatens to arrests unless
should the public officer perform his money is given, then the receipt thereof
functions (here, the crime by the giver is not is robbery.
corruption of public officials due to his
involuntariness) Bribery (210) Robbery (294)
When the victim When the victim did
The giving of the consideration must be has committed a not commit a crime
mutual, either at the suggestion of the bribe crime and gives and he is not
giver or upon the solicitation of the officer. money/gift to intimidated with
avoid arrest or arrest and/or
1. If it was the officer who solicited but the prosecution prosecution to
private person reported it leading to an deprive him of his
entrapment and the subsequent arrest of personal property
the officer, the crime is merely Victim parts with Victim is deprived
attempted bribery. his money or of his money or
2. If it was the private person who property property by force or
voluntarily gave but the officer used the voluntarily intimidation
consideration as evidence, it is
Attempted Corruption of a Public Officer Article 211. Indirect Bribery
If the private person was compelled to Concept: The crime committed by a public
officer who accepts a gift given by reason of his
agree to give a consideration due to force,
office or position. A gift is actually received and
threat or intimidation on the part of the
not future promises or offers. The officer must
officer, the act is called extortion or mulcting
have done an act appropriating the gift for
but the proper name of the offense is
himself, his family or employees. The essential
robbery
ingredient is that the public officer concerned
If a person gives money to a public
must have accepted the gift or material
officer as consideration for the officer to do
consideration (Garcia vs. Sandiganbayan 507
or not to do his duty for the benefit of the
SCRA 258)
person, when will the receipt constitute
robbery and when will it be bribery?
Elements
1. If the money was given willingly at the
1. Offender is a public officer;
instance of the giver, it is bribery
2. He accepts gifts;
3. The gifts are offered to him by reason of his
2. If he was forced to give, it is robbery
office.
3. If the giver committed a crime and at his
Illustrations:
own instance he gives money so as to
215
1. An envelope was left on top of the desk of punishable by reclusion perpetua and/or
officer. The officer called his staff and death;
told them to use all the amount to buy 3. Offender refrains from arresting or
food and snacks. This is indirect bribery. prosecuting in consideration of any offer,
2. If the officer however gave it to the Jail or promise, gift, or present.
to some children, he is not liable
3. If he simply let the envelope drop on the The offenders are limited to officers
floor and left it there, he is not liable. entrusted with law enforcement such as
4. If somebody pays the bill for his meal or members of the regular law enforcement
drinks, he is not liable for indirect bribery agencies, as well as those tasked to enforce
as he did not accept any gift. special laws, and prosecutors. This is
5. Receipt of cash given as share in similar to prevarication under Article 208 but
winnings or balato are included. the offense involved here which the officer
refused to prosecute are graver being
The phrase by reason of his office punished by reclusion perpetua or death
means the gift would not have been given Actual receipt of consideration is not
were it not for the fact that the receiver is a necessary.
public officer. The officer need not do any act The penalty for the officer is that for the
as the gift is either for past favors or to offense he did not prosecute. But if it was
anticipate future favors, or simply to the officer who solicited the gift, the penalty
impress or earn the good will of the officer is death. HOWEVER, the guilt of the person
There is no attempted or frustrated who was not prosecuted must first be
indirect bribery. If he does not accept the proven. Thus, there must be first conviction.
gifts, he does not commit the crime. If he
accepts the gifts, it is consummated. Q: What crime was committed by a law
Public officers receiving gifts and private enforcement agent who refused to arrest a
persons giving gifts on any occasion, rapist or murderer?
including Christmas, are liable under PD 46 A: If it was because of a consideration the crime
The criminal penalty or imprisonment is is qualified bribery. If there was no consideration
distinct from the administrative penalty of he is an accessory to the crime.
suspension from the service
Q: Suppose it was a drug pusher who was
Direct bribery Indirect bribery refused to be arrested?
A: Qualified bribery if there was a consideration.
Officer agrees to Not necessary that
If there was none it should be Violation of Article
perform or refrain the officer do an act.
208 because there are no accessories in the
from doing an act. It is enough that
offense of drug pushing
there is acceptance
by reason of office.
Article 212. Corruption of Public Officials
Public officer Same.
receives gift.
Concept: This is the crime committed by the
There is No such agreement
bribe giver, promissory or offeror.
agreement exist.
between the public
Elements
officer and the
giver.
1. Offender makes offers or promises or gives
gifts or presents to a public officer;
Article 211-A. Qualified Bribery 2. The offers or promises are made or the gifts
or presents given to a public officer, under
Concept: The crime committed by any public circumstances that will make the public
officer who is entrusted with the law officer liable for direct bribery or indirect
enforcement and he refrains from arresting or bribery.
prosecuting an offender who has committed a
crime punishable by reclusion perpetua and/or
It has only two stages: attempted if the
death in consideration of any offer, promise, gift
gift, offer or promise was rejected and
or present.
consummated if the same was accepted.
This is in addition to his liability if the act
Elements done by the officer is a crime in which case
he is a principal by inducement.
1. Offender is a public officer entrusted with
law enforcement; Laws Related To Crimes By Public
2. He refrains from arresting or prosecuting an Officers
offender who has committed a crime
216
I. R.A. 7080: Defining and Penalizing the
Crime Known as Plunder 3. The penalty is reclusion perpetua to
death.
1. Plunder - a crime committed by any
public officer, by himself , or in 4. For non-public officers their liability will
connivance with his family, relatives by depend on their degree of participation
affinity or consanguinity, business and the attendance of mitigating and
associates , subordinates or other aggravating circumstances
persons, by amassing, accumulating or
acquiring ill-gotten wealth in the 5. MITIGATING AND EXTENUATING
aggregate amount or total value of at CIRCUMSTANCES shall be considered
least 50 million pesos. (Sec 2) by the courts in the imposition of penalty
217
C. There are eleven acts enumerated as or obtained, or will secure or obtain,
constituting corrupt practices, some of any government permit or license, in
which repeat provisions of the Revised consideration for the help given or to
Penal Code, which acts or omissions be given, without prejudice to Sec.
therefore remain still to be mala inse. 13 of this act.
Those which are not defined in the
Revised Penal Code are acts mala D. Accepting or having any member of
prohibita . his family accept employment in a
private enterprise which has pending
These eleven acts include the following: official business with him during the
a. Those which involve the receipt of pendency thereof or within 1 year
material consideration after his termination.
b. Those where, even if there was no
consideration, the public officer uses E. Causing any undue injury to any
the ascendancy, influence or prestige party, including the government, or
of his office to influence any course giving any private party any
of action pertaining to the unwarranted benefits, advantage or
government either for himself, a preference in the discharge of his
relative or influence ( Influence administrative or judicial functions
Peddling), or where the government through manifest partiality, evident
stands to be prejudiced bad faith or gross inexcusable
c. Acts constituting an improper negligence. This provision shall apply
exercise of duties especially in the to officers and employees of offices
granting of permits and licenses or Government corporations charged
d. Acts by private individuals, especially with the grant of licenses or permits
relatives of the officer or close or other concessions.
associates who take advantage of
such relationship or connection with F. Neglecting or refusing, after due
any business in which the public demand or request, without sufficient
officer has to intervene justification, to act within reasonable
e. Acts which are improper for an officer time on any matter pending before
to do such as non-payment of a debt him for the purpose of obtaining,
directly or indirectly, from any person
Section 3. Corrupt Practices of Public interested in the matter some
Officials pecuniary or material benefit or
advantage, or for the purpose of
A. Persuading, inducing or influencing favoring his own interest or giving
another public official officer to undue advantage in favor of or
perform an act constituting a discriminating against any other
violation of rules and regulations duly interested party.
promulgated by competent authority
or an offense in connection with the G. Entering on behalf of the
official duties of the latter, or Government, into any contract or
allowing himself to be persuaded, transaction manifestly and grossly
induced, or influenced to commit disadvantageous to the same,
such violation or offense. whether or not the public officer
profited or will profit thereby.
B. Directly or indirectly requesting or
receiving any gift , present, share, H. Directly or indirectly having financial
percentage, or benefit, for himself or or pecuniary interest in any business,
for any other person, in connection contract or transaction in connection
with any other contract or with which he intervenes or takes
transaction between the government part in his official capacity, or in
and any other party, wherein the which he is prohibited by the
public officer in his official capacity Constitution or by law from having
has to intervene under the law. any interest.
218
exercises discretion in such approval, The spouse or any relative, by
even if he votes against the same or consanguinity, within the 3rd civil degree,
does not participate in the action of of the President, the Vice-President,
the board, committee, panel or Senate President, or the Speaker of the
group. House of Representatives is prohibited to
intervene directly or indirectly, in any
Interest for personal gain shall be business, transaction, contract or
presumed against those public application with the government.
officers responsible for the approval
of manifestly unlawful, inequitable , EXCEPTIONS TO THE PROVISIONS:
or irregular transactions or acts by 1. Any person who prior to the
the board, panel or group to which assumption of office of any of those
they belong. officials to whom he is related, has been
already dealing with the government
J. Knowingly approving or granting any along the same line of business, nor to
license, permit, privilege or benefit in any transaction, contract or application
favor of any person not qualified for already existing or pending at the time
or not legally entitled to such license, of such assumption of public office
permit, privilege or advantage, or of
a mere representative or dummy of 2. Any application filed by him, the
one who is not qualified or entitled. approval of which is not discretionary on
the part of the official or officials
K. Divulging valuable information of a concerned but depends upon compliance
confidential character, acquired by with the requisites provided by law, or
his office or by him on account of his rules or regulations issued pursuant to
official position to unauthorized law.
persons , or releasing such
information in advance of its 3. Any act lawfully performed in an
authorized date. official capacity or in the exercise of a
profession
219
other persons, an amount of property
and/or money manifestly out of Example: In Nicart vs.
proportion to his salary and to his lawful Sandiganbayan ( 495 SCRA 73) a
income (RA 1319) GROUND FOR Mayor was charged for Malversation
FORFEITURE OF UNEXPALINED WEALTH before the Sandiganbayan and was
imposed a 90 day preventive
I. Section 11.Prescription of offenses suspension. He argued that
15 YEARS prescriptive period of all malversation is not covered by the
offenses under the Act Anti Graft law and he should not be
suspended and even then the period
J. Section 12. Termination of office should be only 60 days pursuant to
section 63 of the Local Government
NO PUBLIC OFFICER IS ALLOWED TO Code. HELD: Malversation is an
RESIGN OR RETIRE: offense involving fraud against the
1. Pending investigation, criminal or government funds and is clearly
administrative or included among the crimes covered
2. Pending a prosecution against him by RA 3019. Section 13 of said law
3. For any offense under the Act or provides a suspension for which the
under the provisions of the RPC on period is 90 days pursuant to existing
Bribery jurisprudence, notably Segovia vs.
Sandiganbayan (288 SCRA 328,
K. Section. 14. Exception March 27, 1998)
Unsolicited gifts or presents of small or Note that under the PNP Law ( RA
insignificant value offered or given as a 6975) when a PNP member is
mere ordinary token of gratitude of charged with a grave offense where
friendship according to local custom or the penalty prescribed is 6 years and
usage 1 day or more, he shall be suspended
from office to last until the
L. Section 13 of the law Provides for termination of the case (Himagan vs.
Suspension Pendente Lite of the accused PP, 237 SCRA 538)
public officer
5. The Suspension is Mandatory But Not
1. After an Information is filed in Court Automatic
for: (a) Violation of R.A. 3019 or (b)
under Title 7 of the RPC i.e. Crimes (a). Mandatory in that the officer
Committed by Public Officers or (c) must be suspended whatever be
for any offense involving fraud upon his position.
government or public funds, the (b). However the suspension is not
officer shall suspended from office. automatic because before the
Court ( note: only the Court may
2. The suspension applies to any office order the suspension) there must
which the officer charged might be first be a Motion to Suspend and
holding and not necessarily the if the officer does not voluntarily
particular office under which he was place himself under suspension
charged or under which the act was but contests the Motion, then
committed. (Sandiganbayan vs there must be Pre Suspension
Defensor) Hearing to determine the
following: (i) The validity of the
3. The crimes maybe simple or complex Information (ii) If the accused
with another, whether attempted or was afforded the right to a
frustrated and even if the officers Preliminary Investigation (iii) If
participation is as an accomplice or there is a ground to Quash the
accessory only. Information (iv) If the offense
charged is a Violation of Title 7
4. The period was formerly for the whole of the Revised penal Code or is
duration of the trial but the period covered by the AGCPA. It is only
has been fixed to be the same period then that the Court issues an
as that provided for under the Civil Order placing the accused under
Service Law which is 90 days and suspension
which likewise is the period provided (c). However, if the accused had
for under Section 52 of the ample opportunity to be heard on
Administrative Code fo1987. the Prosecutions Motion fro
220
Suspension Pendenti Lite and constituting direct or indirect bribery, or
were allowed to file their any other corrupt transaction;
comment or opposition thereto,
and agreed to submit the Motion (2) He must willingly testify against the
for Resolution upon submission of public officer involved in the case to be
their comment/opposition, there filed against the latter.
was no more need to set the
motion to Suspend for hearing on Before the bribe-giver may be dropped from
a specific time and date. (Bedrey the information, he has to be charged first
vs. Sandiganbayan, 477 SCRA with the receiver. Before trial, prosecutor
286) may move for dropping bribe-giver from
information and be granted immunity. But
M. Effect of Conviction - Loss of retirement first, five conditions have to be met:
or gratuity benefits. In case of acquittal-
reinstatement plus payment of back (1) Information must refer to consummated
salaries unless in the meantime the bribery;
officer has been administratively
(2) Information is necessary for the proper
N. A public officer maybe charged under R.A. conviction of the public officer involved;
3019 and under the Revised Penal Code
for the same offense (Ramiscal vs. (3) That the information or testimony to be
Sandiganbayan 499 SCRA 75) given is not yet in the possession of the
government or known to the
O. Jurisdiction over the offense is with the government;
Sandiganbayan for those public officers
occupying a salary grade of 26 or higher (4) That the information can be corroborated
in its material points;
III. Presidential Decree No. 46
(5) That the information has not been
Presidential Decree No. 46 prohibits giving convicted previously for any crime
and acceptance of gifts by a public officer or involving moral turpitude.
to a public officer, even during anniversary,
or when there is an occasion like Christmas, These conditions are analogous to the
New Year, or any gift-giving anniversary. The conditions under the State Witness Rule
Presidential Decree punishes both receiver under Criminal Procedure.
and giver.
The immunity granted the bribe-giver is
The prohibition giving and receiving gifts limited only to the illegal transaction where
given by reason of official position, the informant gave voluntarily the testimony.
regardless of whether or not the same is for If there were other transactions where the
past or future favors. informant also participated, he is not
immune from prosecution. The immunity in
The giving of parties by reason of the one transaction does not extend to other
promotion of a public official is considered a transactions.
crime even though it may call for a
celebration. The giving of a party is not The immunity attaches only if the
limited to the public officer only but also to information given turns out to be true and
any member of his family. correct. If the same is false, the public
officer may even file criminal and civil
IV. Presidential Decree No. 749 actions against the informant for perjury and
the immunity under the decree will not
The decree grants immunity from protect him.
prosecution to a private person or public
officer who shall voluntarily give information V. Republic Act No. 1379 (Forfeiture of Ill-
and testify in a case of bribery or in a case gotten Wealth)
involving a violation of the Anti-graft and
Corrupt Practices Act. Correlate with RA 1379 -- properly under
Remedial Law. This provides the procedure
It provides immunity to the bribe-giver for forfeiture of the ill-gotten wealth in
provided he does two things: violation of the Anti-Graft and Corrupt
Practices Act. The proceedings are civil and
(1) He voluntarily discloses the transaction not criminal in nature.
he had with the public officer
221
Any taxpayer having knowledge that a government was not damaged as mere intent to
public officer has amassed wealth out of defraud consummates the crime.
proportion to this legitimate income may file
a complaint with the prosecutors office of Elements of frauds against public treasury under
the place where the public officer resides or paragraph 1
holds office. The prosecutor conducts a
preliminary investigation just like in a 1. Offender is a public officer;
criminal case and he will forward his findings 2. He has taken advantage of his office, that is,
to the office of the Solicitor General. The he intervened in the transaction in his
Solicitor General will determine whether official capacity;
there is reasonable ground to believe that 3. He entered into an agreement with any
the respondent has accumulated an interested party or speculator or made use
unexplained wealth. of any other scheme with regard to
furnishing supplies, the making of contracts,
If the Solicitor General finds probable cause, or the adjustment or settlement of accounts
he would file a petition requesting the court relating to public property or funds;
to issue a writ commanding the respondent 4. He had intent to defraud the government.
to show cause why the ill-gotten wealth
described in the petition should not be Usually, when in connivance with suppliers,
forfeited in favor of the government. This is the government is made to pay for more
covered by the Rules on Civil Procedure. The than what it has received; or there is
respondent is given 15 days to answer the overpricing; or paying for poor quality of
petition. Thereafter trial would proceed. articles or supplies; or for double payment;
Judgment is rendered and appeal is just like or paying for ghost deliveries
in a civil case. Remember that this is not a Also making the government refund more
criminal proceeding. The basic difference is than what it has to refund
that the preliminary investigation is There must however be no fixed amount
conducted by the prosecutor. which was set aside or appropriated before
hand to be spend or to cover the purchase.
Article 213. Frauds against the Public Thus if the sum of P100,000.00 was set
Treasury and Similar Offenses aside to purchase five computers, even if
said computers are of poor quality and are
Concept: The violations punished are worth only P75,000.00, there is no Fraud
equivalent to cheating the public treasury. There against the treasury. But if the officer
are two kinds of frauds punished. presents a bill of P100,000.00 to pay for five
computers and which amount was given,
Acts Punished when in truth the computers are worth only
1. Entering into an agreement with any P75,000.00, then this crime is committed.
interested party or speculator or making use
of any other scheme, to defraud the Illegal Exaction Under paragraph 2
government, in dealing with any person with
regard to furnishing supplies, the making of Elements:
contracts, or the adjustment or settlement of 1. The offender is a public officer entrusted
accounts relating to public property or funds; with the collection of taxes, licenses, fees
2. Demanding, directly or indirectly, the and other imposts.
payment of sums different from or larger
than those authorized by law, in collection of He is thus an accountable public officer If
taxes, licenses, fees, and other imposts; otherwise, the crime would be estafa.
3. Failing voluntarily to issue a receipt, as However officers under the BIR and BoC are
provided by law, for any sum of money covered by the NIRC and Customs Code or
collected by him officially, in the collection of the Administrative Code.
taxes, licenses, fees, and other imposts;
4. Collecting or receiving, directly or indirectly, 2. He is guilty of any of the following acts or
by way of payment or otherwise, things or omissions:
objects of a nature different from that a) Demanding , directly or indirectly, the
provided by law, in the collection of taxes, payment of sums different from or larger
licenses, fees, and other imposts. than those authorized by law; or
Fraud under Paragraph 1: punishes any (i). Here mere demand is sufficient even
public officer who in his official capacity enters if the payer refused to come across.
into an agreement or scheme to defraud the If he pockets the excess he commits
government. It does not matter that the estafa through illegal exaction
222
(ii). Suppose the payor allows him to
keep the change and the officer did Concept: This prohibits any appointive official
not turn it over to the government, who during his incumbency from becoming
he commits malversation. It is to the interested in any transaction of exchange or
government that the change must go speculation within his territorial jurisdiction. This
as an accretion of the amount due is to prevent him form using his influence in his
( Principle of Accretion) . favor
(iii). Suppose the officer demands
P1,000.00 when the amount due is Elements
only P700.00. He spent the entire
P1,000.00. He is guilty of illegal 1. Offender is an appointive public officer;
exaction (for demanding a different 2. He becomes interested, directly or indirectly,
amount) Estafa for spending the in any transaction of exchange or
excess of P300.00 and malversation speculation;
as to the amount of P7000.00 which 3. The transaction takes place within the
is government funds territory subject to his jurisdiction;
4. He becomes interested in the transaction
b) Failing voluntarily to issue a receipt , as during his incumbency.
provided by law , for any sum of money
collected by him officially; or Example: A judge is not to participate in an
execution sale.
The crime is committed if what are
issued are only provisional receipt Article 216. Possession of Prohibited
Interest By A Public Officer
c) Collecting or receiving, directly or
indirectly, by way of payment or Concept: This punishes the act of becoming
otherwise, things or objects of a nature interested or participating by a public officer
different from that provided by law virtute officii in any contract in which it is his
official duty to intervene. Actual fraud is not
Payments are to be in the form of cash or necessary but the act is punished to prevent the
the payors personal check. It does not possibility that the officer may commit fraud or
matter that the object has a higher value places his interest over that of the government.
than what is due.
Hence if he participated in his private capacity
There is no need for misappropriation of he is not liable. Example: The Director of the
funds or intent to defraud because the DSWD assumed the mortgage executed in favor
essence of the crime is the improper or of a creditor. He did so as a private
irregular manner of the collection. businessman. He is not liable.
Persons liable
Article 214. Other Frauds
1. Public officer who, directly or indirectly,
Concept: This article does not punish any became interested in any contracts or
offense. What is provided is the additional business in which it was his official duty to
penalty of special disqualification upon a public intervene;
officer who commits estafa by taking advantage 2. Experts, arbitrators, and private accountants
of his official position. who, in like manner, took part in any
contract or transaction connected with the
Elements estate or property in the appraisal,
distribution or adjudication of which they
1. Offender is a public officer; had acted;
2. He takes advantage of his official position; 3. Guardians and executors with respect to the
3. He commits any of the frauds or deceits property belonging to their wards or the
enumerated in Article 315 to 318. estate.
Examples:The Judge entices an accused to hand Example: The City is need of a building to rent.
to him money which the Judge will post as cash The mayor approved the contract of lease with
bond but he spends it. The head of Office, who the ABC corporation, owner of the building, but
collects contributions from his employees to he is a director of said company.
purchase for supplies, but spends the money for
himself, if found guilty, would be imposed this Section 14, Article VI of the Constitution
additional penalty.
No Senator or Member of the House of
Article 215. Prohibited Transactions Representatives may personally appear as
223
counsel before any court of justice or before the 3. Those funds or property were public funds or
Electoral Tribunals, or quasi-judicial and other property for which he was accountable;
administrative bodies. Neither shall he, directly 4. He appropriated, took, misappropriated or
or indirectly, be interested financially in any consented or, through abandonment or
contract with, or in any franchise or special negligence, permitted another person to
privilege granted by the Government or any take them.
subdivision, agency or instrumentality thereof,
including any government-owned or controlled By whom committed/ Persons Liable:
corporation or its subsidiary, during his term of
office. He shall not intervene in any matter 1. Primarily only by an accountable public
before any office of the government for his officer: one who has charge of public funds
pecuniary benefit or where he may be called or properties and is answerable therefore. If
upon to act on account of his office. he takes property over which another officer
is accountable, he is guilty of theft
Section 13, Article VII of the Constitution
a). By reason of the functions of his office in
The President, Vice-President, the Members of that his primary functions pertain to the
the Cabinet and their deputies or assistant shall receipt, care and custody of funds or
not, unless otherwise provided in this property. Examples: treasurers, cashiers,
Constitution, hold any other office or disbursing officers; Property Custodians,
employment during their tenure. They shall not, Clerks of Court, BIR/Customs Collectors;
during said tenure, directly or indirectly, practice Evidence Custodians. Also a policeman
any other profession, participate in any who confiscates contrabands or
business, or be financially interested in any prohibited articles from persons arrested.
contract with, or in any franchise, or special Policemen in custody of articles seized
privilege granted by the Government or any by virtue of a search warrant
subdivision, agency or instrumentality thereof,
including government-owned or controlled b). By reason of special designation or by
corporations or their subsidiaries. They shall reason of the fact that public funds or
strictly avoid conflict of interest in the conduct properties are entrusted to him by his
of their office. superior. Example: an employee is
tasked to get the salaries of the
employees; or supplies are entrusted to
Section 2, Article IX-A of the Constitution a teacher for delivery to the school; or
medical supplies are sent to a
No member of a Constitutional Commission municipality through the councilor.
shall, during his tenure, hold any office or
employment. Neither shall he engage in the 2. By a private person :
practice of any profession or in the active
management or control of any business which in a). Through conspiracy with the public officer
any way may be affected by the functions of his
office, nor shall he be financially interested, b). As an accomplice or accessory
directly or indirectly, in any contract with, or in
any franchise or privilege granted by the c). Under Article 222 when he has charge
government, or any of its subdivisions, agencies, of public funds or property or is the
or instrumentalities, including government- depository or administrator of funds
owned or controlled corporations or their seized, attached or deposited by public
subsidiaries. authority
Malversation of Public Funds
(Embezzlement) (i). Forest Rangers seized several logs.
The DENR Director deposited them
Classification: with Mr. X whom he also appointed to
(1) Ordinary and Technical be the custodian until the DENR can
(2) Intentional or culpable get trucks to transport the logs. If Mr.
X uses the logs as firewood he is
Article 217. Malversation of Public Funds liable f or malversation
or Property Presumption of Malversation (ii). The Sheriff deposited several
household items which he attached
Elements from the defendant. These were
asked to be safe kept in the garage
1. Offender is a public officer; of Y who consented to be the
2. He had the custody or control of funds or custodian. The articles were stolen
property by reason of the duties of his office; because Y went on a vacation
224
without taking measures against
theft. He is liable. c). Private property considered as public by
reason of the (i). Principle of Co-
Property Subject of the crime mingling in that all funds commingled
1. Public properties with public funds or found in public
vaults, are presumed to be public
a). Strictly public properties those owned funds/property and (ii) The Principle of
by the government or by the local Accretion
government units such as office
equipments and supplies; guns and d). Private properties which were confiscated
bullets issued to the AFP or PNP or seized even if deposited with a private
members; vehicles and modes of person
transportations issued to a public office;
money paid or received as taxes, fines, Acts Punished: How Committed
payments, donations, or income or cash
in the public coffers. 1. Intentional Acts:
(i). thus a policeman who goes on AWOL (a). By appropriating: when the officer
without returning his firearm is liable himself takes the property for his own
for malversation use or that of his family or that of a third
(ii). a driver who sells off the gasoline of person
the vehicle assigned to him as public
transport is guilty of malversation (i). Thus loose changes taken by the
(iii). the pharmacists of the government officer constitute malversation as the
hospital who secretly sells the loose changes properly belong to the
medicines commits this crime government.
225
(b). If the funds were lost or destroyed the Effect of Restitution or Replacement of the
officer must make a prompt report and Missing Fund/Property
prove the loss or destruction was not due
to his fault or negligence Note that the accused incurs a criminal liability
(c). Thus the officer is liable even if it was a and is also civilly liable to the government for
third person who took and appropriated the missing fund or property, thus:
the property
1. If made before the shortage is recorded:
3. Being otherwise guilty of the there is no criminal liability because officially
misappropriation or malversation of such there is as yet no shortage
funds or property.
2. If made Upon discovery and recording: the
Penalty criminal liability remains but this may be
considered as mitigating but the civil liability
The penalty depends on the amount of the fund may be extinguished
or property involved
3. If after the lapse if time: the replacement or
1. The Penalty is the same whether the restitution has not effect on the criminal
malversation is intentional or through liability what so ever
negligence. This is the exception to the rule
that the penalty for a crime is lower if The return of the funds malversed is only
committed through negligence mitigating, not exempting.
When there is a formal demand upon the 1.As to the nature of the property involved: in
accountable officer to produce funds or estafa only private properties are involved.
properties in his custody and he fails to produce
them, his failure to do so shall be prima facie 2.As to the character of the accused: in
evidence that he put the missing funds to his malversation he must be the custodian or is
personal use. accountable over the property involved.
1. For purposes of conviction, it is not necessary 3. As to the need for a prior demand:
that there be direct proof that the officer malversation does not require a prior
used the funds to his personal use. demand
2. The presumption applies only if (i) there is 4.As to the requirement of damage: there need
proof of shortage and the amount which is not be damage to the government in
claimed to be missing is certain, and definite malversation
and after an audit which is thorough,
complete to the last detail and reliable Article 220. Illegal use of public funds or
( Dumagat vs. Sandiganbayan, 160 SCRA property (Technical Malversation)
483) and (ii) the failure to produce is
unexplained. Concept: This is often referred to as Juggling of
Funds or Realignment of Funds. This is the
3. The presumption is rebuttable hence if the crime committed by a public officer who used or
accused was able to prove the missing funds applied funds earmarked or appropriated for a
were not used by him personally, as when specific public purpose, for another public
the missing funds were given to employees purpose.
as vales, the burden is upon the
prosecution to prove the misappropriation Elements
226
2. There are public funds or property under his The accused is an accountable officer
administration; and this includes those who may have
3. Such fund or property were appropriated by already been separated from the service
law or ordinance; This is a crime by omission.
4. He applies such public fund or property to
any public use other than for which it was Article 219. Failure of A Responsible Public
appropriated for. Officer to Render Accounts before Leaving
the Country
The funds involved should have been
reserved by an appropriation ordinance for a Elements
specific public purpose.
If the fund were not yet earmarked for a 1. Offender is a public officer;
specific public purpose, such as the general 2. He is an accountable officer for public funds
fund, the crime is ordinary malversation or property;
If the funds earmarked for a public 3. He unlawfully leaves or attempts to leave
purpose were used for a private purpose, the the Philippine Islands without securing a
crime is ordinary malversation certificate from the Commission on Audit
It is immaterial that the other pubic use showing that his accounts have been finally
is more beneficial to the public. settled (certificate of clearance).
The reason is that no public fund or
property shall be spend except pursuant to
an appropriation or purpose specified by law Article 221. Failure to Make Delivery of
Public Funds of Property
Illegal use of public funds or property vs.
malversation under Art. 217 Acts punished
Concept: These offenses involve unfaithfulness Article 225. Escape of Prisoner under the
in the performance of duties amounting to a Custody of a Person not a Public Officer
violation of the public trust and confidence
reposed in the officer. Elements
228
1 Offender is a public officer; 1. If the fugitive is serving sentence by
2 He had in his custody or charge a reason of final judgment, he is liable for
prisoner, either detention prisoner or evasion of the service of sentence under
prisoner by final judgment; Art. 157.
3 Such prisoner escaped from his custody; 2. If the fugitive is only a detention
4 He was in connivance with the prisoner prisoner, he does not incur criminal
in the latters escape. liability.
They refer to written instruments which maybe (i). When the Postmaster opens a letter
subject to the crime of falsification and takes the money inside or the
letter for transmission contains
1. Those which are purely public or official Postal Money Orders which he
documents such as records of birth, titles to removes an encashed. But if they are
land; records of court cases; official the mail/letter carriers who take the
communications; payrolls, time records money, the crime is qualified theft
2. Commercial Papers such as notes, checks, (ii). But when he received the money
money bills order itself - not the letter, which he
then signed as payee, collected and
3. Private documents entrusted to public officials spent the amount, he is guilty of
by reason of their office as for example: (a). malversation through falsification.
Letters sent through the mail (b). But not
packages, pamphlets, books, periodicals or (iii). When the records officer transfers
parcel sent though the mail the folder of a case from the records
section to the library and it can not
When is the crime malversation and when be located when a party comes to
it is infidelity: xerox copies
a). When money, objects, or articles are in the (iii) A secretary who brings home the
possession of an accountable officer, any act folder or record in order to study it is
of appropriation/misappropriation or loss or not liable as the purpose is not illicit
destruction will constitute malversation.
(iv) Misdelivery of mail matters to third
b). But when these money, articles or objects persons is removal
had already been marked in court as
Exhibits, they ceased to be properties and Actual damage to the public is not
become documents ( note that they are necessary as delay in the production of
referred to as documentary exhibits) so that the document is sufficient which may
their appropriation, misappropriation or consists alarm to the public or loss of
loss, constitutes infidelity in the custody of confidence in government service
documents.
2. By Destroying as in the act of a letter carrier
c). But when the trial is over and these articles who burned the mail
are ordered to be returned to their
owners/possessors, such as in crimes 3. By concealing: This includes acts of hiding or
against property, they revert to being making unavailable the documents to
properties. Hence any act of authorized persons for their inspection,
appropriation/misappropriation will be reading, copying or for their own knowledge.
malversation. This will not apply if the documents or
papers are confidential in nature, such as
Acts Punished: the records of a Youthful Offender who has
been acquitted.
1. By abstracting or removal:
Article 227. Officer Breaking Seal
the crime is consummated the moment
the document or paper is removed or Concept: It is the crime committed by a public
taken out from its usual place in the officer, charged with the custody of papers or
office. It need not be brought out from documents, who breaks the seal placed thereon
the building such as when it is by proper authorities on the documents or
transferred to another room or place permits the seal to be broken. The gist is the
where it is not supposed to be kept fact of breaking the seal even if the contents are
The removal must be for an illicit not tampered with.
purpose such as to tamper with it, to
230
Elements
1. Revealing any secrets known to the
1. Offender is a public officer; offending public officer by reason of his
2. He is charged with the custody of papers or official capacity;
property;
3. These papers or property are sealed by Elements
proper authority;
4. He breaks the seal or permits them to be a. Offender is a public officer;
broken. b. He knows of a secret by reason of his
official capacity;
Example: Destroying the seal placed on c. He reveals such secret without authority
ballot Boxes or justifiable reasons;
Damage or intent to damage is not d. Damage, great or small, is caused to the
necessary. public interest.
First Kind: Article 229. Revelation of The papers contain The papers do
Secrets by An Officer secrets and not contain
therefore should secrets but their
The Secrets refer to those affecting public not be published, removal is for an
interest of minor consequence which are not and the public illicit purpose
punished by any other provision of law officer having
charge thereof
These secrets must be known to him virtute removes and
officii delivers them
If the accused is a private person, the crime wrongfully to a
would be under the article on Unlawful third person
Means of Publication
Damage to public interest is not required Second Kind: Article 230. Public Officer
Revealing Secrets of Private individual
This article is violated in two ways: (a) by the
actual revelation of secrets or (b) wrongful Elements
delivery of papers or copies of papers the
contents of which should not be known 1. Offender is a public officer;
Acts punished
231
2. He knows of the secrets of a private Examples: (i) Refusal of a trial court
individual by reason of his office; Judge to comply with the order of the
3. He reveals such secrets without authority or Supreme Court to remand for the
justifiable reason. reception of additional evidence (ii)
Refusal to reinstate dismissed employee
The secret revealed pertains to private despite Order of the Civil Service
secrets which the public official came to Commission (iii) Refusal to Proclaim the
know in his official capacity winning candidate as found by the Court
Examples: (a) Revelation of matters
known by Probation Officers or Personnel of 2. Disobedience to the Countermanding
the DSWD who conduct background checks Order of Superior
on accused or parties to a case (b)
revelation of what a PAO Lawyer or Article 232. Disobedience to Order of
Prosecution learned about a person he has Superior Officer When Said Order Was
interviewed as a witness Suspended by Inferior Officer
232
The refusal must be unjustified
Examples: (i) The Chief of Police who 2 Forms of Maltreatment (Sir Sagsago)
refuses to cause the service of subpoena
issued by the Prosecutor (ii) a (i). By overdoing himself in the correction or
government doctor who refuses to testify handling a prisoner such as by physical
as a witness on request of the Prosecutor beatings or deprivation of food, or
or the Court (iii) A government doctor hanging a sign around his neck
who refuses to conduct anti-dengue
vaccinations despite request of the City (ii). By the imposition of unauthorized
Mayor punishments or if so authorized, by
inflicting such punishments in a cruel or
humiliating manner . Examples:
punishments such as prevention of visits
4. Disobedience in the form of Refusal to
as punishments or solitary confinements
Discharge Elective Office
or tying him up or deprivation of sleep,
or deprivation of conjugal rights. Or
Article 234. Refusal to Discharge
where cleaning the premises is allowed
Elective Office
as punishment, by ordering the cleaning
at night without sleep, or by ordering the
Concept: The crime by an elected public
prisoner to clean naked;
official who shall refuse without legal
motives i.e valid justification to be sworn in
or to discharge the duties of his office If injuries or damages were suffered,
they are separate offenses
Elements If the purpose of the maltreatment is
to compel the prisoner to confess to a
1. Offender is elected by popular election to crime or to obtain some information, the
a public office; crime is qualified maltreatment
2. He refuses to be sworn in or to discharge The term prisoner is the same as in
the duties of said office; the prisoner subject of Infidelity i.e one
3. There is no legal motive for such refusal by final judgment or detention prisoner;
to be sworn in or to discharge the duties one who has already been finger printed
of said office. and booked and placed inside the jail
Other Related Crimes Upon A Person
He is not liable if his ground is due to In Police Custody
a legal consideration, such as when he
was arrested for committing an offense i). Physical Injuries: if the person is
and is imprisoned, or supervening factual merely in arrest or is a suspect and is
reasons, as when he has to go abroad for not yet a prisoner and is beaten up
medical reasons
ii). Slander by Deed if the person under
arrest is paraded with a note on his
B. Maltreatment of Prisoners Under Article body saying I am a drug pusher
235.
iii). Coercion if the purpose is to compel
Elements the person under arrest or suspect to
confess or to make incriminatory
1. Offender is a public officer or employee; admissions
2. He has under his charge a prisoner or
detention prisoner; C. Anticipation, Prolonging and
3. He maltreats such prisoner in either of the Abandonment
following manners:
a. By overdoing himself in the correction or 1. Article 236. Anticipation of Duties of
handling of a prisoner (by final A Public Office
judgment) or detention prisoner under
his charge either Concept: The crime by a person who shall
(1) By the imposition of punishment not assume the performance of the duties and
authorized by the regulations; or powers of the public office without first being
(2) By inflicting such punishments (those sworn in or given bond.
authorized) in a cruel and humiliating
manner; or Elements
b. By maltreating such prisoners to extort a a. Offender is entitled to hold a public office
confession or to obtain some information or employment, either by election or
from the prisoner. appointment;
233
b. The law requires that he should first be must continue discharging the functions
sworn in and/or should first give a bond; of his office
c. He assumes the performance of the If the officer simply goes AWOL without
duties and powers of such office; filing any formal resignation, he maybe
d. He has not taken his oath of office and/or held liable under the Anti Graft and
given the bond required by law. Corrupt Practices Act. This is
abandonment as a ground for dismissal
2. Article 237. Prolonging Performance but is not the crime of abandonment
of Duties and Powers The penalty is higher if the purpose is to
avoid prosecuting or acting on a crime
Concept:
ABANDONM NEGLIGENCE AND
The crime committed by a public officer who ENT OF TOLERANCE
continues to exercise the duties and powers OFFICE
of his office beyond the period provided by IN PROSECUTION OF
(ART. 238)
law, regulations or special provisions OFFENSES (ART. 208)
applicable to the case
Committed by Committed only by
any public public officers who
Elements officer have the duty to
institute prosecution
a. Offender is holding a public office; for the punishment of
b. The period provided by law, regulations violations of the law
or special provision for holding such
office, has already expired;
c. He continues to exercise the duties and The public The public officer does
powers of such office. officer not abandon his office
abandons his but he fails to prosecute
Exercise of powers ceases upon office to an offense by dereliction
termination of the fixed term or when the evade the of duty or by malicious
purposes is achieved (functus officio) or discharge of tolerance of the
the office is abolished his duty commission of offenses.
Except when the officer is allowed to
continue in a hold over capacity
234
2. Article 240. Usurpation of Executive case?) has been raised and is still under
Functions consideration but he continues with the
proceeding. This does not apply when
Elements the officer is asked to inhibit due to
personal bias or loss of trust and
a. Offender is a judge; confidence in him.
b. He (i) assumes a power pertaining to the
executive authorities, or (ii) obstructs the F. Orders or request by executive officer to
executive authorities in the lawful any judicial authority ( Art. 243)
exercise of their powers.
Concept: Crime consists of an executive
Such as accepting official visitors and officer giving an order or suggestion to any
presenting them the key to the city. judicial authority in respect to any case or
Maybe committed by the issuance of business within the exclusive jurisdiction of
baseless injunctions against purely the judicial authority
administrative matters,
Elements
3. Usurpation of Judicial Functions
Powers (Art. 241) 1. Offender is an executive officer;
2. He addresses any order or suggestion to
Elements any judicial authority;
3. The order or suggestion relates to any
a. Offender is an officer of the executive case or business coming within the
branch of the government; exclusive jurisdiction of the courts of
b. He (i) assumes judicial powers, or (ii) justice.
obstructs the execution of any order or
decision rendered by any judge within Also punished under RA 3019
his jurisdiction. Example: Suggesting who to be
appointed as Clerk of Court or how much
Example: (i). A Mayor who arbitrates and bail bond to require or who to appoint as
decides conflicts between his de oficio counsel
constituents (ii) The Mayor sends his
bodyguards and policemen to stop the G. Unlawful Appointments ( Art. 244)
execution of a writ of execution or
prevent the service of warrants Elements
The offender is an officer before whom ART. 245 ABUSES AGAINST CHASTITY-
there is pending a judicial quasi-judicial PENALTIES
or administrative proceeding and the
issue of jurisdiction (can he hear the
235
ELEMENTS: If the woman succumbs or consented the
1. That the offender is a public officer. jailer is liable
2. That he solicits or makes immoral or
indecent advances to a woman. 3. Soliciting or making immoral or indecent
3. That such woman must be- advances to the wife, daughter, sister or
a) interested in matters pending before the relative within the same degree by affinity of
offender for decision, or with respect to any person in the custody of the offending
which he is required to submit a report to warden or officer Note the mother is not
or consult with a superior officer; or included.
b) under the custody of the offender who is
a warden or other public officer directly Q: what are the crimes or offenses involving jail
charged with the care and custody of guards?
prisoners or persons under arrest; or
c) the wife, daughter, sister or relative A: They are the following:
within the same degree by affinity of the 1. Delay in the Release of Detained Persons
person in the custody of the offender Under Article 125
The mother of the person in the custody of 2. Infidelity in the Custody of Prisoners under
the offender is not included. Articles 223 and 224
237
o In case of Muslim marriages Article 27 of
Article 246. Parricide P.D. 1083 The Muslim Code of Personal
Laws allows a Muslim to validly contract
Elements marriage with four wives, but the killing
of the 2nd, 3rd or 4th wife will not
1. A person is killed; constitute parricide because a Muslim
2. The deceased is killed by the accused would be punished and penalized more
3. The deceased than a non-muslim by reason of a
a). Father or mother marriage which the law allows him to
b). Child whether legitimate or illegitimate contract. It is parricide only if the one
c). Legitimate ascendant killed is the first wife.
d). Legitimate descendant
e). Lawful spouse The child may be legitimate or
illegitimate but should not be less than 3
Cases of parricide when the penalty shall days old. The father or mother maybe
not be reclusion perpetua to death: legitimate or not, but in case of other
1. parricide through negligence (art .365) ascendant or descendant, they must be
2. parricide by mistake ( art. 249) legitimate
3. parricide under exceptional circumstances
( art. 247)
Q: GF has a bastard son named BS who has
a legitimate son named L. Is parricide
Relationship of the offender with the victim committed if: (a) GF kills L (b) L kills GF
is the essential element of the crime.
Q: Suppose BS is legitimate but L is
Q: If a person wanted to kill a stranger but illegitimate, would the answer be the
by mistake killed his own father, will it be same?
parricide? Yes, but Art. 49 applies as regards
the proper penalty to be imposed. The basis of the classification is the
blood relationship in the direct ascending
A stranger who cooperates and takes part in
and descending lines hence:
the commission of the crime of parricide, is
not guilty of parricide but only homicide or
o Killing of siblings (brother/sister) and
murder, as the case may be. The key
other collateral relatives is not parricide
element in parricide is the relationship of the
offender with the victim. (PEOPLE vs.
o Non-relatives or strangers who
DALAG, GR No. 129895, April 30, 2003)
participate in the killing will be liable for
homicide or murder as the case may be
The law does not require knowlwdge of
relationship. If a person killed another not
The killing maybe through
knowing that the latter was his son, will he
negligence as when a father plays with his
be guilty of parricide? Yes, because the law
gun which went off and killed the wife
does not require knowledge of relationship
between them If the accused is not aware that
The spouse must be the lawful spouse the victim is his relative, he will be charged
for the actual crime committed but Article 49
will be applied to determine his penalty
o The spouses maybe separated by judicial
The crime may be aggravated by
decree or separated in fact
the circumstances which qualify murder but
o The fact of marriage must be alleged in they will be considered as ordinary
aggravating circumstances. For example:
the Information otherwise the killing is
The husband may poison the wife or kill her
homicide or murder as the case maybe,
by means of fire, or resort to treachery. Said
even if the fact of marriage was proved
circumstances will be appreciated as generic
in the course of the trial.
aggravating circumstances.
o The best evidence would be the
Article 247. Death or Physical Injuries
marriage contract but even in the
Inflicted under Exceptional Circumstances
absence thereof, testimony witnesses
may show the lawful relationship as the
Introduction: It is the killing or wounding by
presumption of marriage also applies, or
one who surprised the spouse in the act of
if the accused does not object to the
sexual intercourse with another, (called
claim of marriage.
euphemistically CRIMINAL CONVERSATION or
any illicit sex for that matter) or the minor
238
daughter of the accused spouse and living with criminal conversation, not during the
the accused spouse, in the act of sexual preparatory acts or after the sexual act
intercourse with her seducer
Q: Must the guilty spouse and partner be
Article 247 does not define a crime but grants a aware that they were discovered as to
privilege or benefit amounting to an exemption be literally surprised, or does Article 247
from punishment. Thus the commission of the include situations where the offending
crime under the situation contemplated would spouses and partners were killed without
constitute an Absolutory Cause. them being aware they were discovered
and caught in flagranti?
The killing or wounding is regarded as a
justifiable outburst of passion. At what point must the killing of
wounding take place? It must be either:
The accused will be charged for parricide,
Murder or Homicide or Physical Injuries, and it is a). During the discovery: i.e simultaneously
up to the accused to prove the killing or physical with the discovery
injuries were under the circumstances conceived
by Article 247. This is a matter of defense. b). Or immediately thereafter:
The sexual intercourse must be voluntary on the o The strict traditional view held
part of the offending spouse or daughter, that there be no lapse of time from
otherwise the intercourse would constitute rape the discovery to the klilling.
and the killing would become the justifying
circumstance of defense of a relative. o However, the better view is that
Article 247 applies so long as there
Elements was no unnecessary interruption or
break from the time of discovery to
1. A legally married person, or a parent, the pursuit and then to the moment
surprises his spouse or his daughter, the of the killing or wounding. The
latter under 18 years of age and living with discovery, pursuit, and killing must
him, in the act of committing sexual be one continuous process.
intercourse with another person;
2. He or she kills any or both of them, or inflicts o In the case of PP. vs. Abarca
upon any or both of them any serious ( 153 SCRA 735) (one hour passed
physical injury in the act or immediately from the time of discovery to the
thereafter; time the accused went to look for a
3. He has not promoted or facilitated the weapon, returned to look for the
prostitution of his wife or daughter, or that accused until he saw him inside a
he or she has not consented to the infidelity house playing mahjong) Article 247
of the other spouse. was applied because although an
interval of time elapsed, the law
The spouses must be legally married. If however does not require the killing
not the situation may only give rise to the to be instantly or simultaneous with
mitigating circumstance of Passion or the discovery, so long as the killing
Obfuscation was the proximate result of the
Meaning of the phrase having outrage which overwhelmed the
surprised (or element of surprise): accused or that the killing was when
the accused was still acting under
o They were the offending spouses with the influence of the infidelity.
the partner or the daughter and her
seducer who were caught by surprise. With respect to the
The phrase does not refer to the accused killing of the daughter and her seducer, the
spouse. daughter must be a minor and the sexual
intercourse must be in the dwelling of the
o This includes the situation where the accused parent and not elsewhere.
offended spouse had prior suspicion or
knowledge of the infidelity but simply Effect if third persons are killed or
resorted to a strategy to catch the guilty wounded:
parties spouse in flagranti.
Per PP. vs. Abarca, a complex crime does not
o The surprise must take place in the very arise if a third person is killed or wounded from
act of sexual intercourse, during the the act of the accused in shooting at the guilty
239
spouse or the latters partner, but the accused
may be held liable for reckless imprudence a. With treachery, taking advantage of
superior strength, with the aid or armed
Example: The accused shot at the offending men, or employing means to waken the
spouse and partner but the bullet exited and defense, or of means or persons to
killed a Peeping Tom. If it was proven the killing insure or afford impunity;
falls under Article 247, the accused will be liable
for the death of the Peeping Tom only if it was b. In consideration of a price, reward or
proven his presence was known to the accused promise;
and who did not take precautions to see that
other people will not be hit by the bullet. c. By means of inundation, fire, poison,
explosion, shipwreck, stranding of a
Penalty: vessel, derailment or assault upon a
railroad, fall of an airship, by means of
1. If death or serious physical injuries resulted, motor vehicles, or with the use of any
the accused will be imposed the penalty of other means involving great waste and
destierro, which is intended more to protect ruin;
him from the retaliation of relatives of the
victim, than as a punishment. d. On occasion of any of the calamities
enumerated in the preceding paragraph,
2. If what were inflicted were less serious or or of an earthquake, eruption of a
slight physical injuries, there is no criminal volcano, destructive cyclone, epidemic,
liability or any other public calamity;
240
means, methods or forms, (e.g. price, Elements
reward or promise) it is treachery which
will be used to qualify and the rest will 1. A person was killed;
be considered as merely generic 2. Offender killed him without any justifying
aggravating, provided they were duly circumstances;
alleged in the Information 3. Offender had the intention to kill, which is
presumed;
o Where fire is used, the death of 4. The killing was not attended by any of the
the victim must be the purpose or qualifying circumstances of murder, or by
objective of the accused, such as burning that of parricide or infanticide.
his person, throwing him into a fire or
pouring gasoline on his body and lighting Intent to kill is conclusively presumed when
it. If the intent or purpose was to destroy death results; evidence of intent to kill is
property by means of fire and it was important only in attempted or frustrated
incidental that a person was killed, the homicide.
result is the special complex
crime/composite crime of Arson Intent to kill usually shown by the kind of
Resulting in Homicide. weapon used and part of the body.
This may be committed by negligence.
o If homicide or murder is However where the victim does not die, the
commited with the use of an unlicensed crime is either Reckless Imprudence
firearm, such is considered as an Resulting in Physical Injuries (Serious, Less
aggravating circumstance. (RA 8294) Serious or Slight). There is no crime of
Reckless Imprudence Resulting to Frustrated
o Rules for the application of or Attempted Homicide because intent is
the circumstances which qualify the incompatible with negligence
killing to murder
1. That murder will exist with only one Where there are two or more persons
of the circumstances described in who inflicted injuries on the person, all are
Art. 248 liable for the death if:
2. That when the other circumstances a). There is conspiracy
are absorbed or included in one b). There is no conspiracy but the wounds
qualifying circumstance, they cannot inflicted by each of the assailants are
be considered as generic mortal wounds
aggravating. c). There is no conspiracy but it cannot be
3. That any of the qualifying determined who inflicted the mortal
circumstances enumerated in Art. wounds
248 must be alleged in the
information As in all other killings, the accused may
be convicted of homicide even if the body of
Murder cannot be committed by negligence the victim has not been found, so long as the
corpus delicti has been proven.
Article 249. Homicide
In all crimes against persons in which the
Concept: The unjustified killing of a human death of the victim is an element of an
being which does not constitute murder, offense, there must be satisfactory evidence
parricide, or infanticide of (1) the fact of death and (2) the identity
of the victim.
The accused will be convicted of Homicide in the
following instances: ACCIDENTAL HOMICIDE - is the death of a
(1). When in the commission thereof, there is person brought about by a lawful act
absent any of the qualifying circumstances performed with proper care and skill and
of murder or without homicidal intent.
(2). None of the qualifying circumstance has
Use of unlicensed firearm is an aggravating
been alleged in the Information or
circumstance.
(3). Even if a qualifying circumstance is alleged
but it was not proved.
Article 250. Penalty for Frustrated
Parricide, Murder or Homicide
When the quarrel is between a distinct group The penalty is that of homicide
of individuals, one of whom was sufficiently
identified as the principal author of the The person wanting to commit suicide is
killing, as against a common, particular not liable
victim, it is not a "tumultuous affray" within
the meaning of Art. 251 of The Revised Penal If the act is the second mode i.e the
Code. (PEOPLE vs. UNLAGADA, GR No. accused does the killing himself, and the
141080, September 17, 2002) person does not die, the crime is frustrated
243
The crime of illegal possession is committed within the premises where he was
only if NO OTHER CRIME WAS COMMITTED BY arrested (PP. vs. Almeda, 418 SCRA 254)
THE PERSON ARRESTED.
C. QUESTIONS ON THE APPLICABILITY OF THE
A. Meaning and Coverage of the rule RULE:
The accused will not be convicted for Q: Must the initial arrest be for the other
Possession of the unlicensed firearm but crime or does the rule include an arrest for
for the other crime committed such that the illegal possession but the accused
there can be no separate convictions for committed intentionally committed another
illegal possession of firearm. offense? Suppose the police saw a gun
The rule does not extend to the tucked in the waistline of X and moved to
possession of explosives. arrest him (Or police are serving a search
The other crimes includes those warrant for unlicensed firearms ). X however
penalized with lower penalties such as picked a stone and threw it a passing car/ or
alarm and scandal, slight physical boxed another/or defamed a policeman, or
injuries, threats and even unjust otherwise intentionally committed another
vexation. They include violation of crime.
special laws such as the Election Code or
the Dangerous Drugs Law. A: (Personal view): The rule should not apply
to a situation where the arrest is purposely
Possession as a special aggravating.
for the possession of the gun but gun-
possessor intentionally commits another
o The law however provides that if
offense intentionally to avoid prosecution
the Other Crime is murder or
under P.D. 1866 as amended. He should be
homicide, illegal possession becomes
charged for Violation of P.D 1866 and for
a special aggravating circumstance,
such other offense he intentionally
which must be alleged in the
committed.
information. The term homicide is
used in its generic sense to include
In order the No Other Crime Rule to apply
parricide, robbery with homicide, or
the commission of the other crime and the
where the crime involved a killing.
illegal possession be at least simultaneous
(See for example: Evangelista vs.
with each other.
Siztoza: Aug. 9, 2001)
Q: Can the accused be charged
o As such special aggravating, it
simultaneously for Violation of P.D. 1866 as
cannot be offset by mitigating Amended, and for another offense?
circumstances.
A: Yes. This is to prevent prescription of
When possession absorbed - But if violation of R.A. 8294 in the event the case
the manufacture or possession is in for the other crime is dismissed or
furtherance of, or incident to, or in resolved in favor of the accused after the
connection with, the crimes of rebellion, passage of years.
insurrection, sedition or coup detat,
such violation shall be absorbed. What is proscribed is double or multiple
convictions and not the simultaneous filing
B. Should the Gun be actually used in the of charges for violation of R.A. 8294 and
commission of the other crime? violation of some other penal law.
The firearm need not be used actually It is only the court which has the power to
in the commission of the other crime. It determine and declare whether the gun-
suffices that it was in the possession, possessor committed an act amounting to a
whether actual or constructive, of the crime and is liable therefore. It is improper
accused at the time he was committing for the Prosecutor to assume that the gun-
another crime. This is because the possessor committed acts amounting to a
wording of the law is provided no other crime. The only way by which the court can
crime was committed by the persons exercise this exclusive power is when an
arrested (Agote vs. Lorenzo, 464 SCRA Information is actually filed with it.
60; Cupcupin vs. PP, 392 SCRA 202)
Thus the Prosecution may prefer to prove
Example: where the accused was the other crime and the connection of the
convicted for illegal possession of drugs gun-possessor to it, specially if it carries a
only although the gun was just found higher penalty, or The gun-possessor may
244
plead guilty to the other crime and can be no violation of P.D. 1866 during the
thereby escape liability for Violation of P.D. period of amnesty and (ii) to be liable it must
1866 as amended. be alleged and proved that the possession
was not to surrender the firearm, but that
It is for the accused to move to suspend the the accused intends to use it to commit
trial of the charge for Violation of P.D. 1866 another crime ( Zuno vs. Dizon (1993) and
as amended to await the final out come of PP. vs. Asuncion, 161 SCRA 490)
the charge for the other crime. If it is found
he is guilty of said other crime then this is
legal basis for the dismissal of the charge for Article 255. Infanticide
Illegal Possession, but if he is acquitted, or
the case against him is dismissed for any Elements
reason, then and only then may it be legally
said that there was no other crime which 1. A child was killed by the accused;
was committed and the prosecution may 2. The deceased child was less than 3 DAYS (72
move for the revival and trial of the charge hours) old. (Question: why 3 days, not 5 or
for Illegal Possession. Prescription would not 10?)
have set in, as opposed to a situation where
a charge for Violation of P.D. 1866 is filed The child must be born alive and is viable or
many years afterwards. (See Celino vs CA, capable of independent existence. But if it
526 S 194) was born dead which fact is not known, the
act may be considered as the Impossible
Q: Is it a valid defense for the accused to Crime of Infanticide
seek a dismissal because he committed Pursuant to the Heinous Crime Law, the
another crime but the victim therein refused penalty is Reclusion Perpetua to Death
to file a complaint? Even if the accused are the parents, the
name of the killing is still Infanticide not
A: Personal View: It is believed that since no Parricide (but the penalty is the same)
formal charge was filed then there is no Creates the special mitigating circumstance
other crime to speak about. The rule
of Concealment of mothers dishonor to
therefore should be construed to mean there
benefit the mother or the maternal
was no formal charge or accusation filed in
grandparents if they are the accused,
court either by way of an Information or by
PROVIDED the mother is of good reputation.
a Complaint.
Abortion
Unlicensed Firearm includes:
(1) Firearms with expired license and
Concept: The expulsion of the fetus from the
(2). Licensed Firearms which were used without
mothers womb in order to kill it. The crime is
authority in the commission of a crime.
against the fetus and not against the mother.
Example: Even if the gun is licensed to an
Question: Does the Philippines recognize The
agency but it was used to kill, it constitutes
reproductive freedom of a woman? ( Pro-Life vs
the aggravating circumstance of Use of An
Pro Choice)
unlicensed firearm (Catalina Security
Agency vs. Gonzales-Decano, 429 SCRA
Under Philippine Law, there is no legal abortion
628).
except only if it is necessary to save the
mothers life (Therapeutic abortion) under
Possession to be punishable must not Article 4 of Article 11 (State of Necessity)
just be a temporary, incidental, or casual or
harmless possession or control. There must Kinds:
be an Intent to Perpetrate the Act or
animus possidendi- the prohibited act is A. As to the manner of commission:
done freely, consciously with knowledge that
it is prohibited. 1). Article 256. Intentional Abortion
There should be as many separate
Informations to be filed corresponding to as Acts punished
many unlicensed firearms were possessed
by the accused. Thus if two unlicensed a. Using any violence upon the person
armalites were possessed, then there be two of the pregnant woman (connotes
separate charges. forcing an actual physical contact by
When an amnesty period is granted to the woman with an outside object,
holders of unlicensed firearms to surrender such as by boxing, kicking or
their firearms or apply for a license: (i) there pressing , throwing, pushing);
245
b. Acting, but without using violence, circumstances and the penalty is one
without the consent of the woman. degree lower
(By administering drugs or
beverages or mixing of abortives 2. Abortion by a stranger but with the
with the food or drinks) mothers consent
c. Acting (by administering drugs or
beverages), with the consent of the 3. Abortion by the womans parents but with
pregnant woman. the consent of the woman
The knowledge by the accused that 1. There is a pregnant woman who has
the woman is pregnant is immaterial suffered an abortion;
The violence may have been inflicted 2. The abortion is intended;
intentionally or by reckless action 3. Offender, who must be a physician or
If both the mother and fetus are midwife, caused or assisted in
killed, the crime would be causing the abortion;
homicide/murder with unintentional 4. Said physician or midwife took
abortion advantage of his or her scientific
knowledge or skill.
Examples: (i) pushing a pregnant
woman causing her to fall down so
As to Pharmacists, the elements
that her stomach hits an object
are:
causing her to abort (ii) a reckless
1. That the offender is a pharmacist.
driver caused his jeepney to hit a
2. That there is no proper prescription
post whereby a woman passenger
from a physician.
aborted
3. That the offender dispenses any
abortive.
B. As to who caused the abortion:
As to pharmacists, the crime is
1. Abortion by the mother herself
consummated by dispensing abortive
without proper prescription from a
a). If the mother attempts to commit
physician. It is not necessary that the
suicide but does not die but the fetus
abortive was actually used.
is killed, she is not liable for
unintentional abortion
It is immaterial that the pharmacist
b). If the purpose is to conceal her
knows that the abortive would be used
dishonor, this is a special mitigating
for abortion. Otherwise, he shall be liable
246
as an accomplice should abortion result
from the use thereof. As a rule, self-defense cannot be invoked
EXCEPT when there is violation of the agreement
When the mother is killed, her death is to fight.
complexed with the killing of the fetus either
as (i) Homicide with Intentional Abortion if Acts Punished:
the killing of the fetus is intentional or (ii)
Homicide with Unintentional Abortion if the a. Under Art 260:
killing of the fetus is unintentional. 1. Killing the adversary: this is punished
But if there was no violence employed but with the penalty of homicide
the woman was intentionally frightened
which resulted to abortion: 2. Inflicting serious or less serious physical
a). If grave threats were employed precisely injuries
to cause the woman to abort the crime is
Grave Threats with Intentional Abortion 3. Merely engaging in combat even if no
injuries or only slight injuries are inflicted
b). If only light threats were employed, the
two are separate offenses 4. Acting as seconds (punished as
accomplices)
c). If there was no intention to cause her
abort the crime is simply threats Persons liable:
1. The person who killed or inflicted
If abortives are given to a woman to cause physical injuries upon his adversary or
her to abort in the belief she is pregnant both combatants in any other case, as
when in truth she is not, the crime is the principals.
Impossible Crime of Abortion. The same is 2. The seconds, as accomplices.
true if the abortives were inherently
inadequate or ineffectual. But if the b. Under Art 261
abortives are capable of inducing an 1. Challenging another to a duel;
abortion but was prevented by medical 2. Inciting another to give or accept a
intervention, the crime is Frustrated challenge to a duel;
Abortion. 3. Scoffing at or decrying another publicly
Suppose the woman was purposely placed in for having refused to accept a challenge
such an emotional, mental and psychological to fight a duel.
depression so that she will abort? Personal
opinion: The crime is Intentional Abortion Persons responsible under Art. 261 are:
under the second mode 1. Challenger
2. Instigators
Duels
This kind of fights is already pass
Article 260. Responsibility of Participants Neither one of the combatants can claim
in A Duel self-defense
Article 261. Challenging to A Duel If there are no formal conditions, the fight is
an ordinary fight and the laws on crimes
Concept: This is a Gentlemens Fight. against persons will apply
One who challenges another to a fight
DUEL - It is a formal man-to-man combat with maybe liable for threats
weapons between two persons who fight
according to certain terms and conditions Physical Injuries
previously agreed upon which govern the
conduct of the combat. Kinds:
(a) Mutilation
It is a formal or regular combat previously (b) Serious Physical
concerted between two parties in the presence (c) Less Serious and
of two or more seconds of lawful age on each (d) Slight
side, who make the selection of arms and fix all
other conditions of the fight. How inflicted:
The combatants are assisted by so called a). By wounding, beating, mutilating, assaulting.
SECONDS who arrange the terms of the This may be with or without a weapon
combat, such as the place, time, the weapons to
be used, whether it is a fight to the death or a
fight for honor.
247
b). By administering injurious substances or Example: (a) The case of Mr.
beverages, such as drugs, spoiled food Bobbit (b). Cutting off the arm of a
champion bowler so he can not bowl
c) By taking advantage of the weakness of the anymore. (c). Cutting off the legs of a
mind or credulity of the victim, such as swimmer so he cannot make use of
convincing a person of low intelligence that them.
he can fly, resulting to his own injuries, or Cruelty is inherent in mutilation.
inducing him to contort his body This is the only crime where cruelty is an
integral part and is absorbed therein. If the
o If the victim dies, the injuries are victim dies, the crime is murder qualified by
absorbed if they were inflicted by the cruelty, but the offender may still prove that
same accused but if by third persons there is no intention to commit so grave.
who are not in conspiracy with the one
who inflicted the mortal wound, the said Physical Injuries Proper
injuries are separately punished
Introduction: When will the infliction of injuries
Always in the consummated constitute attempted/frustrated Homicide or
stage and there are no attempted or physical injuries?
frustrated stages.
The absence or presence of an Intent to Kill
o Physical Injuries is a crime based on the determines what crime was committed. Such
result, specifically on the gravity of the intent must be proven clearly and maybe
injury. If there is no injury, not even the inferred from:
infliction of pain, then there is no crime 1. The motive of the accused
of physical injuries. 2. The nature, kind, and type of weapon used
3. The location, number and nature of the
Article 262. Mutilation wounds of the victim
4. The manner of the attack as when it was
Concept: To mutilate is to chop off, to clip, to treacherous
lop off, a portion of the body which protrudes 5. The persistence of the attack
(not internal organs). 6. Utterances of the accused accompanying the
attack
Kinds/ Acts Punished
Physical Injuries vs. Attempted or Frustrated
1. Intentionally mutilating an essential organ for homicide
reproduction (castration )
PHYSICAL ATTEMPTED OR
Elements INJURIES FRUSTRATED
HOMICIDE
1. There be a castration, either totally or
partially, that is, mutilation of organs The offender inflicts Attempted
necessary for generation, such as the physical injuries. homicide may be
penis or ovarium; committed, even if
2. The mutilation is caused purposely and no physical injuries
deliberately, that is, to deprive the are inflicted.
offended party of some essential organ Offender has no The offender has
for reproduction intent to kill the an intent to kill the
offended party offended party.
Vasectomy is not mutilation. It does not
entail the taking away of male reproductive
organ. Article 263. Serious Physical Injuries
2. Intentionally mutilating any other part of the How committed
body such as the arms ears, legs, nose
(mayhem) 1. By wounding;
2. By beating;
The purpose must be precisely to 3. By assaulting; or
deprive the victim of the use of the 4. By administering injurious substance.
organ or part of the body which was
mutilated. If not the offense would be Serious Physical Injuries (Serious Physical
ordinary physical injuries. Hence this Injuries are subdivided into four kinds for
cannot be committed by negligence. It is purposes of determining the penalty to be
always intentional. imposed)
248
Illness includes the healing period and not
1. When the injured person becomes insane, just the actual number of days of
imbecile, impotent or blind (total blindness) confinement in the hospital.
in consequence of the physical injuries
inflicted The penalty is
higher if (Qualifying Circumstances):
The blindness (1) it is committed against the relatives who
must be total in both eyes maybe victims of parricide (conformably
The impotence with the principle that the alternative
(inability to have engage in sex) be total circumstance of relationship is
and not just a sexual dysfunction aggravating in grave or less grave
offenses) and
2. Loss of a Principal Member /Organ of the (2) attended by the qualifying circumstances
Body. When the injured person - of murder.
a. Loses the use of speech or the power to
hear or to smell, or loses an eye, a hand, But these provisions will not apply if the
afoot, an arm, or a leg (total loss); injury of a child was caused by excessive
b. Loses the use of any such member; or chastisement by a parent.
c. Becomes incapacitated for the work in
which he was theretofore habitually If the victim is a
engaged, in consequence of the physical child and the accused is the parent, even if
injuries inflicted; the child did not suffer any injury but the
cruel and unusual punishments were
3. When the person injured inflicted or he was subjected to humiliation,
the crime is Child Abuse under R.A. 7610.
a. Becomes deformed; or
Article 264. Administering Injurious
Deformity or disfigurement - a Substances or Beverages
permanent, visible ugliness which can
not be cured by the action of nature. Elements
These must be inflicted on parts of the
body which are normally exposed and 1. Offender inflicted upon another any serious
not usually covered by clothes. physical injury;
2. It was done by knowingly administering to
REQUISITES OF DEFORMITY him any injurious substance or beverages or
1. Physical ugliness by taking advantage of his weakness of mind
2. Permanent and definite abnormality or credulity;
3. Must be conspicuous and visible 3. He had no intent to kill.
The crime remains even if the victim Article 265. Less Serious Physical Injuries
undergoes surgery later or face lift or
artificial means to cover up the ugliness. Concept: The crime which result when injuries
are inflicted upon a person which (1) shall
Examples: A scar on the face; loss of a incapacitate him for labor ten days to 30 days
front tooth not the molars or the front or (2) shall require medical attendance for the
baby tooth as this can be replaced; same period
slicing off the earlobe.
ELEMENTS:
b. Loses any other member of his body 1. The offended party is incapacitated for labor
(Loss of a non-principal member of the for 10 days or more but not more than 30
body); or days, or needs attendance for the same
c. Loses the use thereof; or period.
d. Becomes ill or incapacitated for the 2. The physical injuries must not be those
performance of the work in which he was described in the preceding articles
habitually engaged for more than 90
days in consequence of the physical Qualified as to penalty
injuries inflicted;
1. A fine not exceeding P 500.00, in addition to
4. When the injured person becomes ill or arresto mayor, shall be imposed for less
incapacitated for labor for more than 30 serious physical injuries when
days (but must not be more than 90 days),
as a result of the physical injuries inflicted. a. There is a manifest intent to insult or
offend the injured person; or
249
b. There are circumstances adding 4. School authorities who have knowledge but
ignominy to the offense. failed to take action are liable as
accomplices
2. A higher penalty is imposed when the victim 5. Officers, former officers, alumni who planned
is either the initiation
6. Officers or members who induced the victim
a. The offenders parents, ascendants, to be present at the hazing
guardians, curators or teachers; or 7. Advisers who failed to prevent the hazing
b. Persons of rank or person in authority,
provided the crime is not direct assault. The presence of any person during the
hazing is prima facie evidence of
Article 266. Slight Physical Injuries and participation therein as a principal unless he
Maltreatment prevented the commission of the prohibited
acts.
Kinds: The mitigating circumstance that there was
no intention to commit so grave a wrong
1. Where it incapacitated the victim from labor shall not apply.
or required medical attendance from one to
nine days Penalties
2. Where the victim is not incapacitated from his If there was death, rape, sodomy or mutilation
habitual work or do not require medical the penalty is reclusion perpetua. For other
attendance. Example: boxing him on the injuries, the penalty is higher than those
stomach provided under the Revised Penal Code. Lack of
Intent to commit so grave a wrong is not allowed
3. Ill treatment of another by deed without as a mitigating circumstance.
causing injury but the intention is to cause
physical pain (such as pulling the hair). RA. 7610 The Child Abuse law
250
1. The Traditional or Conventional Concept
which is the Penile Penetration into the There is no degree of force
female sex organ and which can be required to overcome the resistance
committed by a male only and where the as any degree of force, intimidation
victim is a female only to compel the victims submission to
the desire of the accused is sufficient
Elements (under paragraph 1) Where the accused is the father
or in case of incestuous rape,
1. Offender is a man; resistance is not required due to the
2. Offender had carnal knowledge of a moral ascendancy exercised by the
woman; father over the daughter
3. Such act is accomplished under any of If at any moment the victims
the following circumstances: manifest, through overt acts that she
a. By using force or intimidation; does not want sex, any sex with her
b. When the woman is deprived of against her will is rape
reason or otherwise unconscious;
c. By means of fraudulent machination
or grave abuse of authority; or b). When the victim is deprived of reason or
d. When the woman is under 12 years otherwise unconscious
of age or demented.
Partial deprivation of reason is
2. Rape Through Sexual Assault either a sufficient which may be due to
penile insertion into the mouth or anus or a reasons which are organic, or due to
non-penile insertion into the sex organ or lack of sleep, or fatigue, or was
anus induced by drugs. As when the victim
is in a coma or was in that stage of
Elements (under paragraph 2) being half-asleep-half awake
(i). The victim is under 12 years of age. b). Where the penalty is death
This refers to the biological age. (i). when by reason or on the occasion of
consummated rape, homicide is
(ii) The victim is demented. This includes committed (Special Complex Crime
the insane, imbecile, feeble minded of Rape)
or mental retardate provided their (ii). when any of the 10 qualifying
mental age must be that of a woman aggravating circumstances are
below 12 years of age. alleged specifically in the Information
and duly proven
Rape Through Sexual Assault, (an
elaboration of the elements under par. 2) (1) Where the victim is under 18
years of age and the offender is
The circumstances are the same as in the case her ascendant, stepfather,
of Conventional Rape but the accused: guardian, or relative by affinity or
consanguinity within the 3rd civil
a). Inserts his penis into another persons degree, or the common law
mouth or anal orifice. husband of the victims mother;
or
The accused is any person with a penis
and the victim may be a male or female (2) Where the victim was under the
The person with a penis actively initiates custody of the police or military
the insertion and not when the person is authorities, or other law
the passive participant, as when he was enforcement agency;
asleep in which case, if the act was
without his consent, he may file a case of (3) Where the rape is committed in
acts of lasciviousness full view of the victims husband,
the parents, any of the children
b) Or any object or instrument into the genitalia or relatives by consanguinity
or anal orifice of another (Object within the 3rd civil degree;
Penetration)
(4) Where the victim is a religious,
The accused maybe a female or male that is, a member of a legitimate
and the victim may also be a male or religious vocation and the
female offender knows the victim as
such before or at the time of the
The insertion must be with lewed
commission of the offense;
design i.e to obtain sexual gratification,
otherwise it may either be physical
(5) Where the victim is a child under
injuries or slander by deed.
7 yrs of age;
This absorbs the crime of Acts of
Lasciviousness (6) Where the offender is a member
The term object includes parts of the of the AFP, its paramilitary arm,
human body like a finger, tongue or toe. the PNP, or any law enforcement
The insertion of ones finger into the agency and the offender took
genetalia or anal orifice of another advantage of his position;
constitutes rape by sexual assault and
not merely an act of lasciviousness ( PP
vs. Fetalino, 525 SCRA 170)
252
(7) Where the offender is afflicted Q: Is there Marital Rape or, can the husband
with AIDS or other sexually be guilty of raping the wife?
transmissible diseases, and he is
aware thereof when he A: (Personal opinion) No, as to rape in the
committed the rape, and the traditional concept.
disease was transmitted;
1. The marital union maintains the
(8) Where the victim has suffered husbands right to the physical access to
permanent physical mutilation; the wife ie. Right of Consortium based on
connubial relations
(9) Where the pregnancy of the 2. There was prior marital consent as
offended party is known to the contained in that absolute answer to the
rapist at the time of the rape; or question: Do you give yourself to him as
your lawful husband? (Note also the
(10) Where the rapist is aware Biblical admonition that Woman should
of the victims mental disability, submit to their husbands)
emotional disturbance or physical 3. There is absolutely no attempt to define
handicap. and categorically create marital rape as a
crime
Special Complex Crimes/Composite Crimes 4. There can be no crime by implication
(Principle of Legality)
1. Rape Resulting to Insanity 5. The women sponsors did not insist on it
2. Rape with Permanent Physical Mutilation or although originally they conceived of it.
Disability They left it for the courts to determine.
3. Attempted Rape with Homicide
4. Rape with Homicide At most the husband will be guilty of
coercion, unless he acted in conspiracy, or
Note: In Nos. (1) and (2) the person who became was a principal by inducement, or acted as
insane or suffered mutilation is the victim of the an accomplice or accessory.
rape whereas in Nos. (3) and (4) the victim of
the homicide may be any person and not However, the husband maybe guilty of rape
necessarily the victim of the rape. if there is legal separation between the
spouses, and rape by sexual assault, this
Defenses Which May Extinguish Criminal being unnatural.
Liability Or Criminal Action / Effect of
Pardon (Art 266-C) Rape has only two stages, the attempted
and consummated.
1. The subsequent valid marriage between the
As long as there is an intent to effect sexual
offender and the offended party extinguishes
cohesion, although unsuccessful, the crime
(a) the criminal action i.e the case will be
becomes attempted rape. However, if that
dismiss which presupposes the marriage
intention is not proven, the offender can
took place before or during the filing of the
only be convicted of acts of lasciviousness.
case or
The main distinction between the crime of
(b) the penalty i.e. the accused, if convicted,
attempted rape and acts of lasciviousness is
will not longer serve the penalty which
the intent to lie with the offended woman.
presupposes the marriage took place after
The principle that rape is consummated by
conviction
the slightest penetration applies to both
Since rape is now a crime against persons, types of rape.
marriage exticuishes the penal action only The character of the victim is immaterial as
as to the principal but not as to his co- rape maybe committed even against a
principals, accomplices and accessories. prostitute.
Rape is not a continuing offense
2. Subsequent Forgiveness by the Wife Upon
the Husband which maybe given before, o Several sexual acts on one occasion is
during the case, or after conviction of the one rape only as when the girl is kept in
husband EXCEPT when the marriage is void a room for two hours and the accused
ab initio. This is an exception to the rule that had sex for three times.
forgiveness by the offended party shall not
extinguish the penal action in crimes against o But Sex on different occasions
person. constitutes different and separate
crimes.
253
o Where there are two or more rapists who participates, the crime must come from a
acted in conspiracy, all are liable for private person as the principal accused,
each of rape committed by each one of otherwise the crime would be a crime against
them and for those committed by their the fundamental laws of the state.
co-accused. Thus if 3 raped the same
girl, all will be liable for 3 separate rapes. Crimes against liberty
o If there be several victims, there are as 1. Kidnapping and serious illegal detention (Art.
many rapes corresponding to the 267);
number of victims 2. Slight illegal detention (Art. 268);
3. Unlawful arrest (Art. 269);
For purposes of conviction the following 4. Kidnapping and failure to return a minor (Art.
principle is observed: 270);
5. Inducing a minor to abandon his home (Art.
o A rape charge is easy to make, difficult 271);
to prove but more difficult for the 6. Slavery (Art. 272);
accused, though innocent, to disprove. 7. Exploitation of child labor (Art. 273);
8. Services rendered under compulsion in
o In view of the intrinsic nature of rape payment of debts (Art. 274).
where generally only two persons are
involved, the testimony of the Crimes against security
complainant must be scrutinized with
extreme caution (HELL HATH NO FURY 1. Abandonment of persons in danger and
LIKE A WOMAN SCORNED). abandonment of one's own victim (Art. 275);
2. Abandoning a minor (Art. 276);
o The evidence for the prosecution must 3. Abandonment of minor by person entrusted
with his custody; indifference of parents (Art.
stand or fall on its own merits and
277);
cannot draw strength from the weakness
4. Exploitation of minors (Art. 278);
of the defense evidence
5. Trespass to dwelling (Art. 280);
6. Other forms of trespass (Art. 281);
7. Grave threats (Art. 282);
EVIDENCE WHICH MAY BE ACCEPTED IN
8. Light threats (Art. 283);
THE PROSECUTION OF RAPE:
9. Other light threats (Art. 285);
1. Any physical overt act manifesting
10. Grave coercions (Art. 286);
resistance against the act of rape in any
11. Light coercions (Art. 287);
degree from the offended party; or
12. Other similar coercions (Art. 288);
2. Where the offended party is so situated as to
13. Formation, maintenance and prohibition of
render him/her incapable of giving his
combination of capital or labor through
consent
violence or threats (Art. 289);
14. Discovering secrets through seizure of
Indemnity: for the fact of rape alone
correspondence (Art. 290);
15. Revealing secrets with abuse of office (Art.
Simple rape is P50,000.00 for each and
291);
every conviction for rape, for each and every
16. Revealing of industrial secrets (Art. 292).
accused
Qualified: P75,000.00 Article 267. Kidnapping and Serious Illegal
This is in addition to moral damages which Detention
has been set at P50,000.00 and P75,000.00
respectively for simple and qualified rape, Introduction: Art. 267 lays down the penalty
without need of evidence since, when a for kidnapping and enumerates when the
woman is raped, it is presumed she detention becomes serious. The concept is of
underwent moral suffering American origin
In incestuous rape, the court pegged
P25,000.00 to set an example for the public Elements
good
1. Offender is a private individual;
2. He kidnaps or detains another, or in any
TITLE IX. other manner deprives the latter of his
CRIMES AGAINST PERSONAL LIBERTY liberty;
AND SECURITY 3. The act of detention or kidnapping must be
illegal;
Introduction: These crimes are committed
principally by private persons. If a public officer
254
4. In the commission of the offense, any of the Detention, unless the latter has no duty to
following circumstances is present: arrest or order the detention of another.
a. The kidnapping lasts for more than 3
days; 2. One who furnished the place of detention
b. It is committed simulating public is liable as an accomplice unless he was in
authority; conspiracy with the other accused.
c. Any serious physical injuries are inflicted
upon the person kidnapped or detained or The circumstances which make the
threats to kill him are made; or detention serious are:
d. The person kidnapped or detained is a
minor, female, or a public officer. 1. The kidnapping or detention shall have lasted
more than 3 days, regardless of who the
To kidnap is to forcibly take a person from he offended party is;
has a right to be (such as his place of work,
residence, rest and recreation, school, street, 2. It is committed by simulating public
park or public place) and bring him to authority;
another. The taking is always without the Example: a person represents himself to be a
consent of the victim. Kidnapping need not police investigator who tells victim he will
be followed by detention as where the bring him to the police station, but brings
talking was only to briefly restrain the him elsewhere
victim. It is usually for ransom.
3. If serious physical injuries were inflicted or
To detain is to deprive a person of his threats to kill were made;
liberty or restrict his freedom of locomotion
or movement, and may not involve a 4. If victim is a minor, female or public officer,
kidnapping. This includes the following no matter how long or how short the
situations: detention is. In case of minors, the
a). Lock up or actual physical deprivation of kidnapper should not be the parent.
the personal liberty by confinement in an
enclosure QUALIFYING CIRCUMSTANCES: DEATH
b) Immobilizing the victim though he has PENALTY IS IMPOSED
not been placed in an enclosure 1. Purpose is to extort ransom
c). by placing physical, moral or 2. If victim is killed, raped or tortured as a
psychological restraint on his freedom of consequence
locomotion or movement
Kidnapping for Ransom
Example: The Mayor confronted a DENR
Inspection team, calls for The victim is held hostage until demands of the
reinforcements, refuses their request to kidnapper are met. The penalty is death.
leave, orders them to go with him and
allows them to leave only the following Ransom is any consideration, whether in the
day. form of money, articles of value, or services or
Held: The curtailment of the victims favors, for the release of a person.
liberty need not involve any physical
restraint upon the victims persons. If the It need not be given or received it being
acts and actuations of the accused sufficient that a demand was made
produced such fear in the mind of the
victim sufficient to paralyze the latter, to Examples: (i).The son of the Judge will be
the extent that he victim is compelled to released if the Judge dismisses a case or allows
limit his own actions and movements in the bail to be reduced (2) The grandson of a
accordance with the wishes of the physician will be released if the physician will
accused, then the victim is detained perform an operation on the mother of a friend
against his will ( Aslega vs. People, Oct. of the kidnappers (3) The wife of a politician will
01, 2003) be released if the husband makes a public
apology (4) The pupils of a school will be
released if the school lowers its tuition fees.
d). The detention may either be Serious Art.
267 or Slight ( Art. 268)
New Special Complex/Composite Crimes
1. Kidnapping/Serious Illegal Detention
Persons Liable.
with Homicide
a). The person killed is the victim of the
1. The offender is a private person and not a
kidnapping or illegal detention. If the
Public Officer else the crime is Arbitrary
person killed is a third person, such as
255
the bodyguard, the driver or an innocent
person, it is article 48 which applies and Examples:
the crime is an ordinary complex crime. a). dragging a woman to a waiting car but
b). Hence previous decisions which say the was let go due to her remonstrations or
crime is either murder or kidnapping because she was able to wrest herself
depending on the intention of the free.
accused do not anymore hold water. It is b). a debtor was forcible taken from his store
enough the victim was killed whether the and brought to a house to compel him to
original intention was to kill or to detain. pay
Regardless of the original intention. c). A woman was taken to a house and kept
c). There is no kidnapping with murder but there in order to break her will and agree
only murder where a 3-year old child was to marry the accused
gagged, hidden in a box where it died d). Where a woman was seen dragging along
and ransom asked. The ransom is only a a missing boy who was crying and
diabotic scheme of the accused to refusing to go with her
murder the child, to conceal his body
and demand money before the discovery 2. Abduction- where the taking away of the
of the cadaver. (San Beda) woman against her will (Forcible Abduction)
or by artifice upon a minor girl (Consented
2. Kidnapping/Serious Illegal Detention Abduction)) was with lewd designs, which
with Rape. was present at the very moment of the
taking away, as it was the purpose thereof.
The victim of rape is the victim of kidnapping
and not a third person else the rape is a 3. Vs Illegal Detention
separate offense
ILLEGAL ARBITRARY
Includes a situation where several rapes are DETENTION DETENTION
committed Committed by a Committed by a
private individual public officer or
The taking way must not be with lewd who unlawfully employee who
designs kidnaps, detains detains a person
or otherwise without legal
The original idea was not to rape. deprives a person ground
of liberty.
3. Kidnapping /Serious Illegal Detention Crime is against Crime against the
with Physical Injuries as a result of personal liberty fundamental law
torture or dehumanizing acts and security of the State
256
(3) before institution of criminal proceedings.
Note that this special mitigating does not Concept: The crime committed by a person
apply if the detention is serious. who as entrusted with the custody of a minor
person who shall deliberately fail to restore the
The 3 must concur. latter to his parents or guardians
Concept: It is the crime committed by any The term: Kidnapping is not accurate since
person, whether a private person or public the gist of the offense is the failure to return
officer, who arrest or detains a person without the minor to his parents or guardians
reasonable ground therefore, for the purpose of The accused maybe a parent.
delivering him to the proper authorities. Example, a wife is separated from the
husband. The husband was awarded custody
Elements of their child. The wife was allowed to bring
the child to her house on a Friday but to
1. Offender arrests or detains another person; return him on Monday. She failed to do so.
2. The purpose of the offender is to deliver him
to the proper authorities; Article 271. Inducing A Minor to Abandon
3. The arrest or detention is not authorized by His Home
law or there is no reasonable ground
therefor. Concept: The crime committed by any person
who shall induce a minor to abandon the home
The public officer is one who has no power to of his parents or guardians or persons entrusted
arrest or order the detention of another, else with his custody. This includes a parent.
it is arbitrary detention.
The situation is that the arrest is not a valid Elements
warrantless arrest but the victim is brought
before the police or prosecutors office or 1. A minor (whether over or under seven years
court, for the purpose of filing charges of age) is living in the home of his parents or
against the victim. guardians or the person entrusted with his
If the purpose is otherwise, the crime may custody;
be detention or coercion or abduction.
The term is not Illegal Arrest. 2. Offender induces said minor to abandon
This maybe complexed with Incriminatory such home.
Machination. E.g. A person placed a knife in
the bag of another and then arrests him and The Home includes the temporary boarding
brings him to the police station house or dorm .
No period of detention is fixed by law under There must be no force employed threat or
Art. 269. intimidation but through the use of false
representations. Such as making him believe
DELAY IN THE UNLAWFUL to become a star in Manila.
DELIVERY OF ARREST (Art.
DETAINED PERSONS 269) Crimes Involving Involuntary Servitude
(Art. 125)
Detention is for some Detention is not 1. Slavery Proper under Art. 272.
legal ground authorized by law
Concept: The crime committed by a person
Crime is committed Committed by who shall purchase, sell (kidnap) or detain a
by failing to deliver making an arrest human being for the purpose of enslaving
such person to the not authorized by him.
proper judicial law
authority within a Elements
certain period
1. Offender purchases, sells, kidnaps or
Article 270. Kidnapping and Failure to detains a human being;
Return A Minor
257
2. The purpose of the offender is to enslave 1. Offender compels a debtor to work for
such human being. him, either as household servant or farm
laborer;
If the purpose is to assign the person to 2. It is against the debtors will;
some immoral traffic, the penalty is 3. The purpose is to require or enforce the
higher. This is referred to as White payment of a debt.
Slavery (Why the term white? To
distinguish it from the slavery of Black Q: What are the crimes committed by a
Africans the purpose of which is to make Creditor in relation to the debt owed
them work as field hands, laborers, him?
house-helps, against their will and
without compensation) A: They are:
1. Exploitation of Child labor (Art. 273)
Note: There are two kinds of White 2. Services Rendered Under Compulsion
Slavery or pimping (supplying women As Payment Of Debt (Art. 274)
as partners for sex) 3. Light Coercion ( Art. 287) seizing, by
1. That under Article 272 where the violence, a property of a debtor to
accused is not engaged in apply as payment of a debt
prostitution
2. That under Article 341 where the R.A. 9208
accused is engaged in the business THE ANTI TRAFFICKING IN PERSONS
of prostitution ACT OF 2003.
7. To recruit, hire, adopt or abduct, by any The term accident is that which
unlawful means, for the purposes of removal constitute the exempting circumstance
or sale of organs of a person of accident under Par. 4 of Article 12 and
not to those arising from negligence or
8. To recruit, transport or adopt a child to imprudence.
engage in armed activities
Thus if one runs over a person because
Crimes Against Security of loose break and he abandons his
victim, the abandonment is absorbed in
Crimes Involving Abandonment of Persons the crime of reckless imprudence
resulting in homicide. But if a hunter
1. Abandonment of Persons (Art. 275) tripped in a forest causing his gun to fire
2. Abandonment of Minors and his companion is hit and he
a). By one with temporary custody (Art. abandons the wounded man, the hunter
276). is liable for abandonment.
b). By one entrusted with the education or
care (Art. 277) Failure to deliver an abandoned child
c). Indifference of Parents (Art. 277)
Act punished: By failing to deliver a child,
Abandonment of Persons (Art. 275) under seven years of age, whom the
offender has found abandoned, to the
1. Of Persons Found in Danger: authorities or to his family, or by failing to
take him to a safe place.
Act punished: Failing to render assistance to
any person whom the offender finds in an The child under 7 must be found in an
uninhabited place wounded or in danger of unsafe place.
dying when he can render such assistance
without detriment to himself, unless such It is immaterial that the offender did not
omission shall constitute a more serious know that the child is under 7.
offense.
Abandonment of Minors
Elements
259
1. By one with custody of a child below 7
years of age but without intent to kill 3. Indifference of parents
(Art. 276)
Act punished: Neglecting his (offenders)
Elements children by not giving them the education
which their station in life requires and
1. Offender has the custody of a child; financial condition permits.
2. The child is under seven years of age;
3. He abandons such child; ELEMENTS OF INDIFFERENCE OF
4. He has no intent to kill the child when PARENTS:
the latter is abandoned. 1. That the offender is a parent
2. That he neglects his children by not
Example: The housemaid brought the child to giving them education
a park but left him there to go window 3. That his station in life requires such
shopping. education and his financial condition
permits it
If there is intent to kill and the child dies, the 4. Failure to give education must be due to
crime is murder, parricide or infanticide. If deliberate desire to evade such
the child does not die, it is in attempted or obligation
frustrated stage.
The liability of a parent does not depend
In this case intent to kill is not presumed. on whether the other parent is also guilty
Such presumption is applicable only in crimes of neglect. The irresponsible parent
against persons. cannot exculpate himself from the
consequences of his neglect by invoking
Circumstances qualifying the offense the other parents faithful compliance
with his/her parental duties
1. When the death of the minor resulted
The charge cannot however be made in
from such abandonment; or
relation to section 10 (a) of R.A. 7610
2. If the life of the minor was in danger
(i.e. Child Abuse) (De Guzman vs. Perez
because of the abandonment, like
496 SCRA 474)
abandoning him on a busy street
260
The Crime of Trespass o This includes surreptitious entry
(Unauthorized Entry)
o When the accused entered by pushing
Kinds: open a door with his finger, the crime is
simple trespass. But if upon entering an
1. Trespass to dwelling which, depending occupant pushes him out and the
upon the mode of entry, may be either: (a). accused boxed, kicked or fought against
Simple which is entry without violence or (b) the occupant, the crime is qualified
Qualified which is entry with violence trespass
262
ELEMENTS OF GRAVE THREATS NOT 2. Other Light Threats (Article 285)
SUBJECT TO A CONDITION:
1. That the offender threatens another Acts punished
person with the infliction upon the
latters person, honor, or property, or 1. Threatening another with a weapon,
upon that of the latters family, of or by drawing such weapon in a
any wrong. quarrel, unless it be in lawful self-
2. That such wrong amounts to a crime. defense;
3. That the threat is not subject to a 2. Orally threatening another, in the
condition. heat of anger, with some harm
constituting a crime, without
Kinds of grave threats: persisting in the idea involved in his
threat;
1. Conditional: the accused makes a 3. Orally threatening to do another any
demand so that he will not do what he harm not constituting a felony.
threatened, such as a demand for money
or another condition which may not be Threats vs Robbery
unlawful. E.g. I will stone your car if you
will fail me. If there is an intimidation and threat to inflict an
injury is coupled with a demand for money,
2 Unconditional- there is simply a when is it threats and when is it robbery?
declaration to do wrong or harm 1. In threats, the harm/injury is still to be
amounting to a crime. E.g.: I am tired of inflicted in the future (future harm) whereas
looking at your face. I might as well kill in robbery the harm is to be inflicted right
you then and there, or that it is actual and
immediate ( immediate harm)
Note: But if the threat was made in the 2. In threats, the harm maybe
heat of anger and the accused did not committed upon the person or honor of the
persist, it is Light Threats. E.g: In a victim or that to his family, or to his property
heated quarrel the accused uttered: whereas in robbery the harm is to be
Uubusin ko kayong magpapamilya but inflicted does not include the honor of the
did not do anything more. If he however victim
gets a weapon and moves towards his 3. In threats the doing of the harm may
opponent, the crime is grave threats. be communicated through an intermediary
whereas in robbery the doing of the harm is
B. Light Threats which may either be: always communicated directly and
personally to the victim
1. Where the act to be done does not 4. In threats gain is not immediate
amount to a crime, but it disturbs whereas in robbery the gain is immediate.
another. This may be subject to a
condition or not. (Article 283)
Threats as constituting blackmailing - when
the doing of a wrong which does not constitute a
Elements
crime (Light threat) is subject to a demand for
money or other valuable considerations.
1. Offender makes a threat to commit a
wrong;
Examples:
2. The WRONG DOES NOT CONSTITUTE
1. I will report your cheating to the Dean
A CRIME;
unless you take charge of my back rentals
3. There is a demand for money or that
2. I will inform your best friend that you are
other condition is imposed, even
dating her boy friend. However, If you let me
though not unlawful;
have your bracelet, then I will not say
4. Offender has attained his purpose or,
anything.
that he has not attained his purpose.
NOTE; there are two forms of blackmailing.
Examples:
First is light threats. The second is under the
(a). I will fail you if you will not
law on libel.
introduce me to your sister
(bi). I will report your absences to your
Threats maybe made in any form: orally or in
father if you do not let me copy your
answers writing or by deeds and actions; personally
(c). I will tell your boyfriend about your or through an intermediary, or via modern
dating other men facilities of communications, such as by
texting or E-mail. The crime is consummated
263
once the threat is made known to the person 8. Take back or recover ones own property
threatened, from another even if said property has
Threats are absorbed when they are made in been previously unlawfully taken away
connection with another crime, or are used (Note that this is not an impossible crime
as the means to commit another crime. Thus of robbery)
the threat to kill is absorbed in armed
robbery, as the threat to injure is absorbed The penalty is higher if the coercion relates
in rape. to:
Bond for Good Behavior: this is the 1. the exercise of suffrage, as preventing a
amount of money to be deposited by the voter form voting
accused charged with threats to ensure that 2. exercise of religion, such as pointing a
he shall not molest the person threatened. If gun at another to prevent him from
he refuses to put up the Bond for Good making the sign of the Cross
behavior, he shall be sentenced to destierro.
This is separate and different from the bond Distinguished from other crimes:
which the accused is require to put up in
order not to be detained pending trial. A. From robbery: where property is taken. It is
coercion if the taking is not with intent to
WHEN A PERSON IS REQUIRED TO GIVE gain but to prevent the doing of an act
BAIL BOND (Art 284) Example: The accused took away the bolo of
1. When he threatens another under the another to prevent the latter from continuing
circumstances mentioned in Art. 282. to cut down the pine trees.
2. When he threatens another under the
circumstances mentioned in Art. 283. B. From threats: if the harm to be done is
direct and immediate, it is coercion but if the
Coercion harm is to be inflicted later, it is threats.
1. I will kick you if you will not leave this
Concept: When a person takes the law into his room. This is coercion as the kicking is
own hands i.e in that he is without authority of to be done right then and there. It is
law or has no right to act, and by means of actual and imminent.
violence, threat or intimidation, he either: 2. If you will not leave this room, I will kick
you. This is threat as the kicking will be
1. Compels another to do something against his later.
will, whether it be right or wrong, or
C. From Illegal Detention: In coercion the
2. Prevents another from doing something not intention is not to deprive a person of his
prohibited by law. If the act prevented is liberty or to restrain his liberty. Example: A
prohibited by law, the accused is not guest who refuses to vacate his room for
violating but complementing the law. violations of hotel rules even after he was
ordered to leave, was forcibly taken out from
The violence must be actual and immediate, the room and guarded in the Office of the
else (if the violence is a future harm), it is Hotel Security Force. He was released only
threat after all his things were taken out and the
room was locked. The crime is coercion not
The purpose of the accused need not be detention.
attained
Coercion is either:
Examples: Applying force, violence, or
intimidation in order to:
A. Grave Coercion if there is use of force,
1. Compel a suspect to make a confession
violence, or intimidation (Article 286)
2. Compel the driver to change course
3. Stop a person from making a construction
Acts punished
4. Prohibit a student from leaving the
1. Preventing another, by means of
classroom
violence, threats or intimidation, from
5. Force a tenant into leaving the leased
doing something not prohibited by law;
premises coupled with padlocking the
2. Compelling another, by means of
door
violence, threats or intimidation, to do
6. Compel a person to board a vehicle even
something against his will, whether it be
if after some distance she was able to
right or wrong.
break free and ran away
7. Break a girls spirit so that she will agree
Elements
to marry the accused, even if she was
taken from her house and brought
elsewhere.
264
1. A person prevented another from doing lasciviousness, slander by deed, or
something not prohibited by law, or that unjust vexation, depending upon the
he compelled him to do something intention of the accused. Example:
against his will; be it right or wrong; holding the testicles of a man or
2. The prevention or compulsion be embracing a woman may give rise to
effected by violence, threats or several crimes.
intimidation; and For the crime of unjust vexation to
3. The person that restrained the will and exist, it is not necessary that the
liberty of another had not the authority offended party be present when the
of law or the right to do so, or in other crime was committed by the accused
words, that the restraint shall not be - it is enough that the offended party
made under authority of law or in the was embarrassed, annoyed, irritated,
exercise of any lawful right. or disturbed when he/she learned of
the overt acts of the accused.
B. Light Coercion which may also be either: ( Maderazo vs. PP 503 SCRA 234)
266
19. Removal, sale or pledge of mortgaged
Q: Why is there no corresponding penal property (Art. 319);
provision if they were the masters who reveal 20. Destructive arson (Art. 320);
the secrets of their employees or servants? 21. Other forms of arson (Art. 321);
22. Arson of property of small value (Art.
Article 292. Revelation of Industrial 323);
Secrets (repealed) 23. Crimes involving destruction (Art. 324);
24. Burning ones own property as means to
Note: Art. 292 is already superseded by commit arson (Art. 325);
the Intellectual Property Code 25. Setting fire to property exclusively
owned by the offender (Art. 326);
Title X. 26. Malicious mischief (Art. 327);
Crimes Against Property 27. Special case of malicious mischief (Art.
328);
Major Classification: 28. Damage and obstruction to means of
communication (Art. 330);
1. Robbery: 29. Destroying or damaging statues, public
a) With Violence or Intimidation Against monuments or paintings (Art. 331).
Persons ( Hold-up)
b) With Force Upon Things ( Break-In) Article 293. Who Are Guilty of Robbery
2. Theft (Robbery In General)
a). Simple
b). Qualified Concept:
3.Estafa
4. Malicious Mischief The taking, with intent to gain, of personal
a). Ordinary property belonging to another, by means of
b). Special Cases violence against or intimidation of persons, or by
5. Arson using force upon things.
6. Violation of the Chattel Mortgage Law
Elements of robbery in general
Crimes against property
1. There is personal property belonging to
1. Robbery with violence against or another;
intimidation of persons (Art. 294); 2. There is unlawful taking of that property;
2. Attempted and frustrated robbery 3. The taking must be with intent to gain;
committed under certain circumstances and
(Art. 297); 4. There is violence against or intimidation
3. Execution of deeds by means of violence of any person, or force upon anything
or intimidation (Art. 298);
4. Robbery in an inhabited house or public The two major classifications are based
building or edifice devoted to worship on the manner by which the robbery was
(Art. 299); committed. The first is commonly called
5. Robbery in an inhabited place or in a hold-up while the second is robbery by
private building (Art. 302); breaking in
6. Possession of picklocks or similar tools If none of these two methods are used,
(Art. 304); the taking will constitute theft.
7. Brigandage (Art. 306); If both methods were used, the result is
8. Aiding and abetting a band of brigands complex a crime i.e. Robbery with Force
(Art. 307); Upon things complexed with Robbery
9. Theft (Art. 308); with Violence.
10. Qualified theft (Art. 310);
In robbery with violence, the violence
11. Theft of the property of the National
need not be present at the start of the
Library and National Museum (Art. 311);
taking so long as it was resorted to
12. Occupation of real property or usurpation
before the taking was complete.
of real rights in property (Art. 312);
13. Altering boundaries or landmarks (Art.
Elements Common to Robbery and Theft
313);
14. Fraudulent insolvency (Art. 314);
1. The subject matter must be a personal
15. Swindling (Art. 315);
property
16. Other forms of swindling (Art. 316);
17. Swindling a minor (Art. 317);
These include licit as well as illicit
18. Other deceits (Art. 318);
articles such as drugs and unlicensed
firearms as well as stolen articles
267
The term Personal Property does not 4. There must Animus Lucrandi or intent of
follow the meaning provided for by the gain
Civil Code. It means such property,
whether tangibles or those with physical The gain need not be in terms of financial or
appearance and form or intangibles, as material gain as this includes: intent to obtain
long as they maybe subject of some utility, enjoyment, satisfaction, or
appropriation and may be carried away pleasure. Example: X boxed Y so that Y will
without altering its nature. hand over the magazine for X to see the nude
pictures. X returned the magazine thereafter.
o Thus this includes those If there is no animus lucrandi but force was
considered as Real Property by used to get an object, the crime is coercion.
Immobilization or destination or Robbery and theft maybe a continuous
those attached to the soil or offense as in the case of robbery of several
building for so long as they were persons. The accused entered a classroom
detached there from and carried and robbed the 20 students of their money at
away. Such as trees, machineries, the point of a gun. Or, when the several
statutes, soil, stones and rocks robberies are component parts of a general
plan to rob within a specific place or area.
o Accessories of real properties Example: Robbery of several houses in
such as fruits of trees, fishes, subdivision or robbery of the various stalls in
paintings side the shopping mall.
269
have been to rob and not to kill, which
need not be the sole motive either. Robbery with Intentional Mutilation: when
the robbery shall have been accompanied by
Example: X pointed a knife at Y and intentional mutilation
divested him of his cell phone. X turned
and ran whereupon Y chased him so that X The injury resulted to insanity, imbecility,
stabbed and killed Y. impotency or complete blindness
If the original intention was to kill and the The victim may be any person including
idea of taking came only thereafter, there one of the robbers also
results two separate crimes of theft and
murder or homicide. Example: The Robbery with Arson: when the robbery shall
accused shot to death his enemy. Then he have been accompanied by arson
decided to take the victims necklace.
All those who conspired in the robbery will The victim should not be killed, raped or
be liable for the death unless he proved he mutilated
endeavored to prevent the killing. Physical The arson is a separate act from the taking
absence in the place where the killing took as when the accused held up the occupants
place is not a defense, or that the accused of a car after which they burned the car
was not aware his co-accused would resort
to a killing. Robbery with Unnecessary Violence and
other serious physical injuries: (1) if the
Example: A, B, C and D conspired to rob a violence or intimidation shall have been
housel with D acting as look-out at the employed in the commission of the robbery shall
road. Jose, an occupant refused to give have been carried to a degree clearly
money so A leveled his gun at him. B unnecessary or (2) when in the course of its
shielded Jose with his body as he did not execution the offender shall have inflicted any of
like any killing A pushed B aside and shot the physical injuries under subdivision 3 and 4 of
Jose. C was then at the rooms ransacking Article 263.
it. A, C and D will be liable for Robbery
with Homicide, but not B, who tried to The injuries referred to are deformity loss
prevent it. of a non-member part of the body or
clearly unnecessary violence) should be
Robbery with Rape: When the robbery shall inflicted prior to the consummation of the
have been accompanied by rape crime or before the taking is complete
other wise the injuries are separate
The rape maybe committed before, during, offenses
or after the robbery so long as it was
contemporaneous with the robbery and so Simple robbery- where there is only an
long as the original intention was to rob. intimidation or where the injuries sustained are
less serious or slight
If the original intention is to rape and not
to rob so that if the taking came only after The act known as extortion or mulcting
the rape because the opportunity is simple robbery such as:
presented itself, the taking is theft. o by law enforcement agencies known as
The victim of the rape may be any person kotong cops
including one of the robbers o by public officers without the consent
Both the robbery and rape must be of the victim. If it the giving is
consummated other wise the there are two consensual it is bribery
separate offenses. o by persons pretending to be authorities
If there are two or more rapes, the others and threatening to arrest unless money
will be considered as aggravating is given
circumstances of ignominy. o by one falsely accusing another of a
Illustrations: crime and making a demand for money
o If the girl is robbed, raped and then Special Aggravating Circumstances with
killed, the crime is Robbery with respect to Robbery with Violence or Simple
Homicide aggravated by rape Robbery Only
o If the girl is raped, then robbed and
then killed the crimes are (i) Rape with Art. 295 creates the following
Homicide and (ii) Robbery circumstances which cannot be offset by
o If the girl is raped and then a any mitigating
personal property is taken the crimes
are (i) Homicide and (ii) Theft 1. In uninhabited place (despoblado)
270
2. By a band ( cuadrilla) Concept:
3. By attacking a moving vehicle (including
train) or airship or entering the This is the crime committed by a any person
passengers compartment in a train who, with intent to defraud another, shall
4. By entering the passengers compel him to sign, execute or deliver any
compartments in a train, or in any public instrument or document
manner taking the passengers thereof
by surprise in the respective Elements
conveyances; or
5. On a street, road, highway or alley, and 1. Offender has intent to defraud another;
the intimidation is made with the use 2. Offender compels him to sign, execute,
of firearms, or deliver any public instrument or
document.
If the crimes are Robbery with Homicide, 3. The compulsion is by means of violence
with Rape, with Serious Physical Injuries, or intimidation.
with Arson, and the foregoing are present,
they will be treated only as ordinary Principles:
aggravating circumstances
This is a special kind of committing
Robbery by a Band: when more than 3 (at robbery
least 4) armed malefactors take part in the The document must be capable of
crime of robbery (under Article 296) producing legal effect and the victim is
The arms may refer to any object under a lawful obligation to execute and
capable of inflicting a bodily injury deliver the document
If the weapon happens to be an unlicensed The document may be public or private
firearm, this becomes a special If the document is void the crime is
aggravating circumstance to the penalty coercion
committed by the band The purpose of the accused is to defraud
Requisites for liability for the acts of the the accused, to divest him of his
other members of the band property, else it is coercion
Examples: Using violence to compel one
1. He was a member of the band; to execute a deed of sale of his vehicle
2. He was present at the commission of a or to execute a last will and testament
robbery by that band;
3. The other members of the band
committed an assault; Robbery By the Use of
4. He did not attempt to prevent the Force Upon Things.
assault. (Break-In)
271
and not just the arms or upper part. In contiguous to the building or edifice,
case there was no total entry, the crime having an interior entrance connected
is theft if a property was taken or therewith and which form part of the
attempted trespass if none was taken. whole. The yards, orchards and lands for
To constitute consummated robbery, the cultivation are not included, even if closed,
article or thing must be brought out of contiguous to the building, and having
the house or building direct connection therewith.
2. A Public Building. One owned by the 2. By breaking any wall, roof, floor or
government or by a private person but was breaking any door or window
leased, rented or actually being used, by
the government, although temporarily The term door refers to the outside
unoccupied by the same. door of the dwellings and not to doors
of rooms inside the house
3. An Edifice devoted to religious To break the door is not just
worship. This does not include private forcing the door open or prying it
houses or commercial buildings, rented by, loose from its grooves.
leased to, or actually used, for religious When the padlock was destroyed, the
services. Supreme Court says the crime is
robbery because the padlock is an
Dependencies of an inhabited house, integral part of the door. The Ct. of
public building, or building dedicated to Appeals says it is theft
religious worship all interior courts, If what was destroyed is the key, it is
corrals, warehouses, granaries, barns, theft
coachhouses, stables, or other The term wall is not the dividing
departments, or enclosed places wall between rooms, unless the rooms
272
are separate units constituting 6. By taking such furniture or objects away to
separate dwellings be broken or forced open outside the place of
robbery
3. By using false keys, pick locks or similar
tools The taking of small receptacles, such
as jewelry boxes, or piggy banks, even
The crime of Possession of Picklocks if broken outside is merely theft
under article 304 is absorbed
The key is that used to enter the The penalty of the accused is determined by
house and to open a wardrobe or room the following factors;
inside.
See: Art 305 for definition of false 1. Value of the property taken
keys 2. Whether the accused was armed. But if
the firearms were used against or, to
4. By using any fictitious name or pretending intimidate the occupants or victims, the
the exercise of public authority. This is not crime is Robbery with Violence.
limited to the use of aliases but extends to 3. In case of a house, whether it was in the
any misrepresentation about the identity of main house or in a dependency
the accused in order to misled an occupant 4. Whether it was a mail matter in which
into allowing the accused to enter. case the penalty is one degree higher and
5. If committed by a band and in an
This presupposes that at the time of uninhabited place. Example four armed
entry there were persons in the house malefactors robbed a house built in an
or building. This is the reason why this isolated place.
mode of entry does not apply to
Robbery in an Uninhabited House
Article 302. Robbery in An Uninhabited
Examples: pretending to be sheriffs
Place or in A Private Building
of the court; inspectors of the NPC or
as detectives, or as messengers,
Elements
classmates and the like.
1. Offender entered an uninhabited place or
Elements under subdivision (b) of Art 299:
a building which was not a dwelling
house, not a public building, or not an
1. Offender is inside a dwelling house,
edifice devoted to religious worship;
public building, or edifice devoted to
2. Any of the following circumstances was
religious worship, regardless of the
present:
circumstances under which he entered it;
a. The entrance was effected
2. Offender takes personal property
through an opening not intended
belonging to another, with intent to gain,
for entrance or egress;
under any of the following
b. A wall, roof, floor, or outside door
circumstances:
or window was broken;
a. By the breaking of doors, wardrobes,
c. The entrance was effected
chests, or any other kind of locked or
through the use of false keys,
sealed furniture or receptacle; or
picklocks or other similar tools;
b. By taking such furniture or objects
d. A door, wardrobe, chest, or any
away to be broken or forced open
sealed or closed furniture or
outside the place of the robbery.
receptacle was broken; or
e. A closed or sealed receptacle was
Note: In the two following situations the
removed, even if the same be
accused entered the house properly but the
broken open elsewhere.
taking of property is still robbery.
3. Offender took therefrom personal
.
property belonging to another with intent
5. By breaking of doors, wardrobes, chests or
to gain.
any other kind of locked or sealed furniture or
receptacles
Principles:
The term door does not refer to the
Although the law uses the word
inside or interior doors, or door of
uninhabited place what this actually
rooms or compartments, but to the
means is uninhabited house- those not
doors of furniture, aparadors, closets,
used as residences or dwellings.
cabinets
273
o These would include warehouses, A master key or skeleton key is a
stores, offices, commercial buildings picklock
and establishments, department If a key was entrusted to a confidential
stores, banks, market stalls. employee, as a secretary or body guard,
for safekeeping but the latter used them
The mode of entry is the same as in an to open and take property, the crime is
Inhabited house except for the use of qualified theft
fictitious names or pretending the exercise If the accused used said keys to commit
of public authority theft or robbery, for example: in the so-
called bukas-kotse, the possession is
absorbed
Article 303. Robbery of Cereals, Fruits or
Firewood
Brigandage And
The term cereals refer to seedlings or Highway Robbery
unhulled grains in their original states (Arts. 306, 307and P.D. 532)
These are taken from inside a house, or
building whether inhabited or Introduction:
uninhabited
The penalty is one degree lower because Article 306 defining and penalizing brigandage
it is presumed the acts were impelled by has been modified by Pres. Decree 532 defining
economic necessity or hunger. and punishing highway robbery and
brigandage As thus modified, the term
brigandage and highway robbery are used
Article 304. Possession of Picklock or synonymously and they mean:
Similar Tools
The seizure of any person for ransom,
Elements extortion or other unlawful purposes (Is not
the seizure of persons the crime of
1. Offender has in his possession picklocks kidnapping ?)
or similar tools; Or the taking away of property of another
2. Such picklock or similar tools are by means of violence against or
especially adopted to the commission of intimidation of person or force upon things
robbery; or other unlawful means
3. Offender does not have lawful cause for Committed by any person on any
such possession. Philippine Highway
Article 305 defines false keys to include the o Highway refers to the roads
following: connecting distant barrios or towns to
one another and not to those located
1. Tools mentioned in Article 304 (i.e. within a city or town.
those specifically adopted for the
commission of robbery i.e to open
Notes:
locks);
Highway robbery requires that
2. Genuine keys stolen from the owner (or
commission of robbery is not an on the
forgotten or lost by him Sir Sagsago);
spur of the moment decision by the
accused; it requires habituality or
3. Any key other than those intended by
regularity and the commission thereof is
the owner for use in the lock forcibly
indiscriminate and not against a
opened by the offender such as a
predetermined victim i.e. against any
duplicate made by the accused based
traveling person. In case the accused are
on the wax impression of the genuine
more than one, they must be organized
key borrowed form the owner
for the purpose of committing such
crimes in said manner in order to give
Acts punished under Art 304 (Sir Sagsago):
rise to brigandage. If not, the crime is
plain robbery committed in the highway.
1. Possession of these picklocks or similar
tools specially adopted for robbery is a
mere preparatory act which is punished Those who help or assist the highway
2. The manufacture of said picklocks or robbers are guilty of the crime of Aiding
similar tools. or Abetting Brigands
274
Article 307. Aiding and Abetting A 4. Those who enter an enclosed estate or a
Band of Brigands field where trespass is forbidden or
which belongs to another and, without
Elements the consent of its owner, hunt or fish
upon the same or gather fruits, cereals
1. There is a band of brigands; or other forest or farm products.
2. Offender knows the band to be of
brigands; Elements
3. Offender does any of the following
acts: 1. There is taking of personal property;
a. He in any manner aids, abets or 2. The property taken belongs to another;
protects such band of brigands; 3. The taking was done with intent to gain;
b. He gives them information of the 4. The taking was done without the consent
movements of the police or other of the owner;
peace officers of the government; 5. The taking is accomplished without the
or use of violence against or intimidation of
c. He acquires or receives the persons of force upon things.
property taken by such brigands.
Discussion of the Elements
the brigands were formerly called the
highwaymen or tulisans who waylay 1. That there be a taking (apoderamiento) or
travelers or attack and pillage villages as there be a physical act of divesting a
a way of living. They have their own person of his possession of a property and
hideouts in the mountains. They are the bringing it under ones control; an act
equivalent of pirates in the seas. separating the property from the owner or
possessor and without animus revertendi.
Notes:
Article 308. (Simple)Theft
Taking means the act of depriving
Concept: another of the possession and dominion
of movable property without his privity
Theft is committed in four ways. and consent and without animus
revertendi
1. The first way defines the ordinary, simple,
or common crime of theft as the crime a) The owner or juridical possessor does
committed by any person who, with intent not give his consent
to gain but without violence against or b) or the consent was vitiated
intimidation of persons nor force upon c) may occur at or soon after the transfer
things, shall take personal property of of physical possession when an act
another without the latters consent. done by the receiver soon after the
actual transfer of possession results in
2. Theft of lost property unlawful taking ( PP vs. Tan 323 SCRA
30)
3. Theft after a malicious mischief
It is not necessary that the property be
4. Theft after a trespass actually carried away out of the physical
possession of the lawful possessor or
Persons liable that the thief should have made his
escape with it. Neither as transportation
1. Those who with intent to gain, but or actual manual possession of property
without violence against or intimidation is required. Constructive possession of
of persons nor force upon things, take the property is enough ( Laurel vs.
personal property of another without the Abrogar, 483 SCRA 243)
latters consent; The taking maybe by the offenders own
2. Those who having found lost property, hands, by his use of innocent persons
fails to deliver the same to the local without any felonious intent, as well as
authorities or to its owner; by any mechanical devise such as access
3. Those who, after having maliciously device or card, or any agency, animate
damaged the property of another, or inanimate, with intent to gain ( Laurel
remove or make use of the fruits or vs. Abrogar) or the property is received
objects of the damage caused by them; or physically delivered to him
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The taking is complete once the thing is a). A and three others co-owned
placed under ones possession or control P20,000.00 kept in a box. A took away
even if only for a short time and even if P5,000.00. He is not liable because the
there was no opportunity to dispose off amount corresponds to his share.
the article. The thing need not be carried
away. Hence there is no frustrated theft b). A took the whole P20,000.00. He is
even of bulky items. liable for theft of P15,000.00
o The decisions in PP. vs Dino and c). A finder of lost treasure who
PP. vs Espiritu concerning frustrated appropriates everything is liable for
theft of bulky items have been theft of one-half thereof as the same
reversed in Valenzuela vs. PP. June belongs to the government
21, 2007 This case expressly
declared that theft has no frustrated Personal property is that which can be
stage. appropriated and can be carried away
without changing its nature.
2. However, if the property was not taken but
was received or that it was voluntarily o They include tangible movable
delivered to the accused, and thereafter not properties which have physical or
returned, the crimes committed are: material existence and susceptible of
occupation by another; or to
Theft if what was transferred to the movables which can be taken and
accused is mere physical possession. carried from the place where they
are found and brought under the
o The rule is that if a person, to possession of a person. The following
whom a thing was delivered, was are examples:
under obligation to return the same (i). jewelries, money, food, clothing,
thing, but does an act amounting to (ii). papers, documents, certificates
appropriation or conversion, he of title
commits theft (iii). commercial papers such as
o Examples: one who ran away checks, promissory notes
with a ball pen after borrowing it; or (iv). rocks, soil, flowing water, water,
one who sells a borrowed cell phone trees
or refused to return the article he
borrowed o Those Intangible properties which are
capable of being appropriated such
Estafa if what was as electricity and other forms of
transferred is both physical and juridical energy are proper subject of theft
possession i.e the right to possess the
thing such as a thing given as collateral Electricity, like gas, is a valuable
for a debt article of merchandise, bought
and sold like other personal
3. The property is a personal property property, susceptible of being
which belongs to another: ie. it does not severed from a mass or larger
belong to the accused otherwise the crime quantity and of being transported
committed would be the Impossible Crime of from place to place. Electrical
Theft. energy may likewise be taken
and carried away (Laurel vs
They include illicit articles such as drugs, Abrogar)
unlicensed firearms, or property stolen
from another and in the possession of Intangibles such as rights and
the victim ideas are not subject of theft
because they are without form or
substance and cannot be taken
Question & Answer from the place they are found. A
naked right existing merely in
Q: Is a co-owner liable for theft of the contemplation of law, although it
property owned in common? may be valuable to the person
who is entitled to exercise it, is
A: Yes if he takes more than his lawful not the subject of theft. They
share. His liability is for the excess. include these: right to produce
oil, good will or interest in
business, right to engage in
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business, credit or franchise, a
Questions & Answers
credit line represented by a credit
card.
(a). Plagiarism: Q: Juan used a stolen credit card of
(b). Trafficking in Persons- theft Pedro to pay for his hotel
of body organs accommodations. What crimes
. If what was stolen are may be filed against Juan?
feelings and emotions or
people, while they maybe A: The crimes are: (i) Theft on
stolen in songs, are not complaint of Pedro as to the
subject of theft) taking of the credit card (ii)
Violation of R.A. 8484 for using
Example: Laurel vs. Abrogar 483 the card to obtains services and
SCRA 243, Feb. 27, 2006) (iii) Estafa on complaint of the
hotel for pretending and
Facts: BAYNET Co. sold phone misrepresenting himself to be the
cards which enabled buyers to owner of the credit card.
make calls in the Philippines
through the telephone lines, Q: JUAN used a splitter and was
equipments and facilities of the able to watch cable programs
PLDT without the knowledge of provided by ABC Co. Did he
the PLDT such that it evaded the commit theft?
charges which would have been
paid to the PLDT.
Identity theft
Issue: Whether PLDTs business
of providing telecommunication 4. The property is capable of pecuniary
services is a proper subject of valuation or estimation. This is necessary for
theft purposes of determining the penalty of the
accused and consequently what court has
Held No. The international jurisdiction over the theft. They include the
telephone calls placed by the following:
BAYNET card holders, the
telephone services provided by Basis of the valuation is either: (i) the
PLDT and its business of value of the thing itself (ii) its intrinsic
providing said services are not value, as in theft of gold (iii) that which is
personal properties. Personal represented as in checks or commercial
property subject of theft cannot papers.
be interpreted to include
telecommunication or telephone It does not matter that the article is of no
services or computer services value to the accused as when he stole a
for that matter. A service is not persons Community Tax Certificate, or
generally considered property sales invoices or I.D. cards.
and theft of service would not
constitute theft since there can If the article is valueless, as for example
be no possibility of asportation. checks which have already been
(Laurel vs. Abrogar Feb. 27, encashed, they will be valued at the
2006) lowest valuation set by law i.e it does
not exceed P5.00
NOTE: The acts complained of in 5. There is intent to gain or Animus
Laurel vs. Abrogar maybe Lucrandi. The taking is for the purpose of
penalized under RA 8484, The obtaining financial or material gain; utility,
Access Devices Regulations Act satisfaction enjoyment and pleasure.
of 1998.
If there was an act of taking but
NOTE: Theft of electricity by the without intent of gain, some other
use of jumpers is penalized by offense may be committed. Thus: (a) A
R.A. 9832, The Anti Electricity took the notebook of B and hid it so that
and Electric Transmission B has nothing to review. The crime would
Pilferage Act of 1994) be unjust vexation. (b) If A threw the
notebook in a pool of water the crime is
malicious mischief (c) But if A took the
277
notebook so that he can study and
review and then returned the notebook Theft of Lost Property
the crimes is still theft as there was gain.
The crime committed by any person who,
6. There is no violence against or intimidation having found lost property, shall fail to
of persons (not a hold-up) nor force upon deliver the same to local authorities or to its
things (break-in) owner.
278
1. The Finder- in- Fact: this is the actual 4. The property stolen consists of coconuts
finder of the property such as the taxi taken from the premises of a plantation;
driver who finds a wallet left by a 5. The property stolen is fish taken from a
passenger fishpond or fishery; or
6. If property is taken on the occasion of
2. The Finder-in-Law or the transferee, or fire, earthquake, typhoon, volcanic
the person to whom the Finder-in-Fact eruption, or any other calamity,
turned over or transferred the lost vehicular accident, or civil disturbance.
property.
These circumstances are categorized
according to their nature thus:
Questions & Answers
a). Circumstances pertaining to the
accused himself, such as the accused
Q: The taxi driver turned over the is a domestic servant
wallet left by a passenger to the Police
Desk Sergeant. The latter spent the b). Those arising from the offended party,
money. What crime did the policeman such as when he reposed trust and
commit? confidence in the accused
A: Theft. He is the Finder-in-Law (PP. vs. c). Those based on the nature of the
Avila 47 Phil. 720) object stolen such as mail matters
(i). What crime was committed by a o This has been modified by P.D. 533 or
driver on the boundary system who the Anti Cattle Rustling Law
brings the vehicle elsewhere and does
not return it? o Cattle Rustling is defined as the
taking, by any means, method or
(ii). What crime was committed by one scheme, with or without intent to gain,
who was entrusted with the possession with or without violence or force upon
or custody of a motor vehicle, who things, if without the consent of the
thereafter sells it? owner, of any large cattle
Large
(iii). What crime was committed by one cattle refers to a horse, bull, ass,
who is given the motor vehicle to test carabao, other domesticated
drive it but drives it away and does not members of the bovine family. A goat
return it? is a small cattle.
The acts
o Motor vehicle refers to any vehicle punished by P.D. 533 include:
propelled by any power (such as solar (i). mere killing, hence there is no
energy) other than muscular power using malicious mischief of large cattle
the public highway. (ii). the taking of the meat or hide
(iii). the spreading of poison among
The following are not motor vehicles: the herd
road rollers, trolley cars, bulldozers, (iv). the act of co-mingling of
street sweepers, graders, forklifts, cattle
traction engines of all kinds used in
agriculture. Taking of these kinds of If homicide results, the killing is
vehicles will be qualified theft absorbed and becomes an
If a motor is attached to a bicycle, it aggravating circumstance. The crime
becomes a motor vehicle becomes the special complex crime
of Cattle Rustling Resulting
o R.A. 6539 creates the in/Accompanied by, Homicide
special complex crimes of (a).
Carnapping Resulting to/Accompanied by But if it was the physical possession
Homicide and (b) Carnapping Resulting of the cattle which was received by
to/Accompanied by Rape if the owner, the accused who appropriated it for
driver, or occupant is killed or raped in himself, the crime is Qualified Theft
the course of the commission of the of Large Cattle. For example: the
carnapping or on the occasion thereof. neighbor took his cow to the accused
to be mated with the bull of the
280
accused. That night the accused B. Violation of the Forestry Code which
butchered the cow. punishes, as qualified theft, the act of cutting,
gathering or removing or smuggling timber or
If the cow was entrusted to the other forest products from any public or private
accused for him to bring to another forest in violation of existing rules, regulations or
but the accused ate the cow, the laws
crime is estafa
C. Violation of P.D. 581 which punishes High
When the property taken is a coconut. The Grading or the taking of gold-bearing ores or
coconut must be taken from a plantation rocks from a mining claim or camp.
whether they are still in the tree or on the
ground The reason for the law is to protect
the coconut industry of the Philippines.
Usurpation (of real property)
When the property taken is a fish. The taking
must be from large fishponds or those ponds Kinds:
for commercial purposes.
1. Occupation of Real Property or
When the taking is on the Usurpation of Real Rights in Property
occasion of a calamity, vehicular accident, or (Article 312).
civil disturbance. Example: The accused took
the valuable items of the passengers of a Concept:
bus which fell down the ravine.
The act of taking possession, by means of
When the property taken is violence against or intimidation of persons,
timber from a logging concession. of any real property or shall usurp any real
right in property belonging to another.
Article 311. Theft of the Property of the
National Library or National Museum Acts punished:
If the property stolen is any property of 1. Taking possession of any real property
the National Library or of the National belonging to another by means of
Museum violence against or intimidation of
persons;
This is a special kind of theft and is set 2. Usurping any real rights in property
apart from the others in order to protect belonging to another by means of
the historical and cultural treasures. violence against or intimidation of
persons.
o The accused should not be the
museum curator or the librarian Elements
because what they commit is
malversation 1. Offender takes possession of any real
property or usurps any real rights in
property;
Questions & Answers 2. The real property or real rights belong to
another;
Q: Suppose the artifacts were taken from 3. Violence against or intimidation of
their natural habitat, such as theft of the persons is used by the offender in
Kabayan mummies? occupying real property or usurping real
rights in property;
A: Yes If they were constituted as part or 4. There is intent to gain.
extension of the Museum
Notes:
281
(ii) the penalty for the injury inflicted ownership remains with the debtor),
The land should not be public are punished under estafa
agricultural lands as it is R.A. 947 which
applies o Creditors must be prejudiced in that
they are unable to collect
2. Altering Boundaries or Landmarks
(Article 313) o It is not necessary that insolvency
proceeding should have been filed
Elements first.
284
the bank, or his funds deposited therein With Unfaithfulness or by Abuse of
were not sufficient to cover the amount Confidence
of the check.
I. By altering the substance, quantity or quality
Acts punished under paragraph (e) of any thing of value which the offender shall
deliver by virtue of an obligation to do so,
1. a. Obtaining food, refreshment, or though based on an immoral or illegal
accommodation at a hotel, inn, consideration
restaurant, boarding house,
lodging house, or apartment There was an agreement as to the kind,
house; quantity or quality of the thing to be
b. Without paying therefor; delivered
c.With intent to defraud the The accused misrepresented that the
proprietor or manager. thing he now delivers is of the same
kind, quality or quantity agreed upon
2. a. Obtaining credit at when in truth it is not
any of the establishments;
b. Using false pretense; Examples
285
(a). For safekeeping or for deposit such as o If the accused retained or deducted his
goods delivered to the hotel commission from the proceeds of the
management sale of the goods:
(b). In trust for delivery to another
(c). On commission as in articles given to There is estafa if retention was not
sales agents to be sold and the agent authorized or agreed upon
receives a commission, or to be Even if not authorized there is no
returned if unsold.(referred to as estafa if the purpose is as a
goods received on consignment) protection against possible civil
(d). For administration or for the accused controversy as where there is a
to look after pending mutual accounting; or the
(e). Receipt by an agent from the principal principal failed to pay the
(f). Received as pledge or property leased accumulated commissions in an
to the accused amount larger than that retained
If the accused was given the option
In all the foregoing the same property to either return or pay the value of
received given is the same property to be the article, the liability is only civil
returned. ( Identity of the Article)Thus the
bills coins or checks deposited in the bank, o If the thing was delivered to a third
or is given by a lessee as advanced person
deposit: or paid to a school subject of
reimbursement; even if spent, does not If to a sub-agent there is no estafa
constitute conversion. The same bills, even if the reason for the non-return
coins or checks originally given are not the is due to acts of the sub-agent,
same bills, coins or checks to be returned, unless delivery to a third person was
but their equivalents. expressly prohibited
Delivery to a sub agent should not
Element No. 2.
however be a mere subterfuge to
There was a conversion or diversion i.e
explain the non-production of the
after receipt of the property, it was used or
article
disposed of by the accused as though it were his
own, or that he deviated or used to the property
o If the thing was leased and was sold
to a purpose different from that agreed upon.
during the period of lease there is estafa
or if the lessee asserts ownership and
o Conversation includes personal
refuses to return.
appropriation although it is not
necessary that the accused personally
benefited. It includes as well denying the Questions & Answers
receipt of the property
Q: X rented the taxi of Y and used it as a
o Examples of diversion:
public transport. X thereafter sold the
(a). The article was to be sold in cash but taxi. What crime was committed?
the accused sold it on credit
(b). Article is to be sold but the agent Third element:
pledged it and failed to account for That the act resulted to damage or
the money received prejudice
(c). Note however that if the article is to
be sold for a fixed amount but it was
The person damaged need not be the
sold for less, there is no estafa. But if
legal owner of the goods as the damage
the agent misappropriates the
may befall a person other than the
proceeds there is estafa
owner.
(d). If the article is only to be pledged
but it was instead sold, the crime is
Is demand an element in estafa by conversion?
theft.
The case of Lee vs. People (455 SCRA 256)
o In case of delay in the fulfillment of a
settled the question:
trust: as when the money entrusted to
Juan for delivery to Pedro was given to
Facts: The accused failed to remit to the
Pedro belatedly. There is no estafa but
corporation the amount he received and
only civil liability
collected. He was charged for estafa with
abuse of confidence under Article 315
Paragraph 1 (b). He moved to have his
conviction be reversed arguing that there as
286
no prior demand made on him to account and
remit the money.
SECOND MODE OR KIND:
Held: Demand is not necessary. Estafa By Means of False Pretenses or
Deceit Executed to or Simultaneously with
1. Demand is not an element or a condition the Commission of the Fraud
precedent to the filing of a complaint for
estafa. Indeed the accused maybe convicted Introduction:
of the felony under Article 315 (1-b) if the Deceit assumes so many hues or forms.
prosecution proved misappropriation or It so broad as to include any falsehood,
conversion by the accused of the money or or lie, false assertion, or presenting
property subject of the Information. In a something which the accused knows is
prosecution for estafa, demand is not untrue. Making assurances of doing an
necessary where there is evidence of act, giving or delivering, which accused
misappropriation or conversion. knew he has no capability or intention of
fulfilling. (Glib tongue or sweet words)
2. However, failure to account upon demand
for funds or property held in trust, is The victim must not know or be aware of
circumstantial evidence of misappropriation. the true state of things and he must
This demand may be formal or verbal. Even a have relied on the misrepresentation of
query as to the whereabouts of money is the accused. Had it not been for what
tantamount to a demand. the accused told him, the victim would
not have transacted with the accused.
NOTE: It be understood therefore that
demand is not required if there is evidence if o The deceit, must be prior or
misappropriation or conversion. Suppose simultaneously committed with the
there is no direct evidence of the act of defraudation
misappropriation or conversion, and there
was no prior demand made on the accused, o The deceit must be the efficient
will a charge for estafa still prosper? Yes. The cause or primary consideration which
effect of this absence of prior demand is that induced the offended party to part
proof of misappropriation is more difficult to with his money or property
obtain. To make the proof easier, a demand
may be made so that if the accused failed to o It need not be of things possible
account, then this will be circumstantial
evidence of actual misappropriation.
I. By using fictitious name, falsely representing
to possess power, influence, qualifications,
III. By taking advantage of a signature in blank
property, credit business, or imaginary
and by writing any document above a signature
transactions.
in blank without the knowledge or consent of the
victim
Fictitious name is not necessarily an alias
but it covers every situation where the
This presupposes that: a paper which
accused misrepresents himself in order
bore the signature of the victim was
to be able to catch the victim unaware
voluntarily delivered to the accused; that
and therefore willing to deal with the
there was a specific instruction on what
accused. Thus one who projected himself
the accused was supposed to write; but
as a Volunteer Teacher and thereby
the accused wrote something different.
gained the trust of the students, after
If the document was not voluntarily which he was able to convince them to
delivered, the crime is falsification, so give their money to him, used a fictitious
also if there was a writing which was name.
altered.
If however the signature was procured Illustrations:
through fraud, the crime is estafa by 1. Illegal Recruitment where accused
deceit. represents their capacity to work for a
Example: (1) X handed a signed check to persons visa and to secure a job
Y with the agreement that Y place the abroad; or that they have contacts who
amount of P10,0000.00 but Y wrote can facilitate the issuance of visas or
P20,000.00. (2) X gave a bond paper the procurement of jobs abroad. This
already signed by him with the includes the scheme of advertising
instruction for Y to fill up the paper by ones business as Visa Consultancy
placing thereon the conditions agreed as front for illegal recruitment.
upon. Y added other conditions.
287
2. Offering Get-rich-quick schemes or accused obtained money from
pyramiding or promising big return of complainant supposedly to be given to
investments under the Ponzi the officer.
scheme; or to invest in U.S. Treasury
Warrants. IV. By Issuing or Postdating a check without or
3. Hiring a vehicle with assurance to pay against insufficient acts.
when actually he has no money
4. Pretending the assured is dead in order The deceit is in the act of issuance of a
to collect the insurance check since there is implicit an
5. Encashing a forged check by assurance that the check will be backed
misrepresenting ones self to be the up by funds when presented to the
payee giving rise to estafa through drawee bank.
falsification
6. Selling a non existing property Elements (Sir Sagsago):
7. Placing orders on a COD basis but
thereafter making excuses for not 1. The accused postdated or issued a
paying on cash basis check in payment of an obligation
8. Pretending the ability to locate buried contracted at the time of issuance
treasures (kaliwa-an)
9. Putting up a bank then running away 2. At the time of issuance, the accused
with the deposits has no funds in the bank or the funds
10. Enticing people to invest in a business were insufficient
which does not exist 3. The payee has been defrauded or
12. Advertising as real estate developers damaged
when in truth the accused does not
have the capability to fulfill his Important considerations:
promises of a house and lot.
13. Those who represented themselves as o The check was issued for the purpose
members of a religious group and of contracting or creating an
convinced people to make donations to
obligation. It was not issued for a
them. pre-existing obligation or one already
existing prior to the issuance of the
Questions & Answers check.
Q: Y gave his check to X as payment Refers to transients and not where there
and Y negotiated the check to Z. is a contract of lease unless false
The check bounced. Question: Can pretenses applies.
Z file estafa charges against either
X or Y? Estafa Through any of the following
fraudulent means:
o If the maker or drawer stops the
payment of the check for a valid I. By inducing another, by means of deceit, to
reason, he is not liable. Examples: sign any document
that the check was stolen or the Not by violence else it is either coercion
goods sold to him were defective, are or Execution of Deeds by Means of
valid reasons for stopping payment. Violence
If the victim is willing to sign but a
o Presumption of deceit constituting different document is prepared the crime
false pretense or fraudulent acts is falsification
Deceit is presumed from the II. By resorting to some fraudulent practice to
failure to deposit the amount ensure success in a gambling game
necessary to cover the check
within three days from receipt of There be honor among gamblers
notice from the bank or
Examples: pikit, using cards with signs
payee/holder that the check has
(readers), secret connivance among
been dishonored. Proof of receipt
several to win over another
of notice, not just the sending, is
essential for the presumption to
III. By removing, concealing or destroying, in
arise.
whole or in part, any court record, office files,
documents or other papers
If within the 3 day period the
victim accepted another check as
The purpose must be to defraud else it is
replacement for the original
check which was dishonored, but malicious mischief
the replacement check in turn Not by the custodian else it is infidelity
bounced, the accused is not Example: concealing the receipt of a
liable for estafa upon the first deposit or cash bond
check as he was not any more
obligated to fund the first check VIOLATION OF B.P. 22
within the 3 day period. The
presumption of deceit does not Purpose:
apply any more. (PP vs. Juliano
448 SCRA 370). To prevent the proliferation of worthless
checks in the mainstream of daily business
and to avert not only undermining of the
Acts punished: under Paragraph (e) banking system, but also the infliction of
damage and injury upon the trade and
1. Obtaining food, refreshment and commerce occasioned by the indiscriminate
accommodation in a hotel, inn, restaurant, issuance of such checks. (They are referred
boarding house, lodging, house or apartment to either as watered checks, bouncing
checks, or worthless checks)
289
penalty. The rule of preference does not
B.P. 22 is constitutional and does not violate foreclose the possibility of
the prohibition against non-imprisonment for imprisonment neither doe sit defeat
non payment of a debt. In truth it is not the the legislative intent behind the law
non-payment of the debt which is punished the determination of whether the
but the act of issuing a worthless check. circumstances warrants the imposition of
a fine alone rests solely upon the
Acts Punished discretion of the judge
1. The making, drawing or issuance of any check The court may impose subsidiary penalty
to apply on account or for value, knowing at for failure to pay the fine
the time of issue that the drawer does not
have sufficient funds in ,or credit, with the
drawee bank. In this case the check is a Necessity of Written Notice of Dishonor
worthless check at the time it is issued.
The notice of dishonor must be in
If issued by a juridical person those liable writing. Verbal notice is not enough.
are those who signed the check. But a (Marigomen vs. People, May 26, 2005),
mere employee tasked to sign corporate (Ongson vs. PP, Aug. 12, 2005)
checks in blank may not be deem to The presumption of knowledge can not
have knowledge of the insufficiency of arise if such notice of non payment by
funds. the drawee bank is not sent to the maker
One who co-signs without knowledge of or drawer, or there is no proof as to
lack or insufficiency of the funds is not when such notice was received by the
liable. drawer, since there would simply be no
way of reckoning the crucial 5 day period
2. Failure to keep sufficient funds or to maintain ( Dico vs. C.A. ( Feb. 28, 2005) Ongson
a credit to cover the full amount of the check vs. PP ( Aug. 12, 2005)
if presented within a period of 90 days from The notice may be sent by the offended
the date appearing thereon. The check may party or the drawee bank ( Dico vs. CA,
be good at time of issue but not at the time Feb. 28, 2005).
of presentation.
The fact that the check was presented Re: presentation of drawee bank
beyond the 90 day period is of no representative as witness
moment. The 90 day period is not an
element but merely a condition for the It is not required, much less
prima facie presumption of knowledge of indispensable, for the prosecution to
insufficiency of funds present the drawee banks
Under Banking practices the check may representative as a witness to testify on
be presented within 6 months from its the dishonor of the check. The
due date, thereafter it becomes stale. prosecution may present. Only the
private complainant as witness to prove
Penalty. all the elements of the offense. Said
witness is competent to testify and
Imprisonment of 30 days and a fine of not qualified to testify that upon
less than but not more than double the amount presentment for payment, the subject
of the check but not to exceed P200,000.00 check was dishonored by the bank
(Recuerdo vs. PP, 443 Phil. 770 ; Ongson
vs. PP ( Aug. 12, 2005)
Supreme Court Adm. Circular No. 12-
2000 authorized judges to impose fine
only as a penalty in lieu of imprisonment,
Requirements for Liability and Defenses
depending on the circumstances, thus:
Allowed
The circular does not
decriminalize B.P. 22 but merely lay
Vergara vs. People (February 04, 2005)
down a rule of preference in the
application of penalties. Where the
Facts: The accused issued a check which
circumstances of the case, for instance,
was dishonored. She was verbally informed of
clearly indicate good faith or a clear
the dishonor. She then replaced the check
mistake of fact without taint of bad faith,
with six (6) other checks. Payments were
the imposition of fine alone maybe
made after the dishonor but the payments
considered as the more appropriate
were applied first to the interests. Three
290
years later the accused was charged for filing of the case, she made
Violation of B.P. 22. payments which covered the
value of the checks.
Held:
1. The requirements for conviction of B.P. 22 (Note: In Griffith vs. CA (379 SCRA
are: 94) the accused was acquitted of a
a). The fact of the issuance of a check charge filed 2 years after the
b). The fact of dishonor the check complainant collected more than the
c). Knowledge at the time of the issue of value of the check. Ratione Cessat
the insufficiency of funds Lex, et Cessat lex)
(i) It maybe actual knowledge or
(ii) Presumed Knowledge if (a) (e). In Macalalag vs. People ( 511 SCRA
the check was presented 400; Dec. 20, 2006) the court held: the
within 90 days from the date principle in Medel vs. CA ( 299 SCRA
of the check; (b) the maker 481) as reiterated in Ruiz vs. CA (401
/drawer received written SCRA 410) applies to a prosecution for
notice of the dishonor and (c) Violation of B.P. 22. ( In Medel the
he failed to make court ruled that if the stipulated
arrangements within five (5) interest is excessive, iniquitous,
banking days from receipt of unconscionable and exorbitant, said
the written dishonor, for the interest may be declared illegal and
payment of the check the interest is set at 12% per annum).
The trial court may thus determine
2. The defenses include: whether the interest of the loan
covered by the check is
a). There was no written notice of dishonor unconscionable or not. It may then
b).There is no proof of the receipt of the declare that a check has been fully
notice and the date thereof paid if the interest is
c) Arrangements were made for the unconscionable and hold the
payment of the checks including accused not liable for violation of
replacement with new checks, within B.P. 22 if said amount was paid
five days from receipt of notice prior to the presentation of the
d) The Utilitarian Theory if there was a full check with the bank or within the
payment despite which a criminal case 5 days after notice of dishonor.
is filed as a collection suit
f). There is no violation of B.P. 22 if the
The accused cannot be penalized for complainant was actually told by the
the issuance of a check which has drawer that he has no sufficient funds
already been satisfied. in a bank ( Macalag vs. PP, 511 SCRA
400)
B.P. 22 was devised to
safeguard the interest of the g). If there is a variance or discrepancy in
banking system and the the identity of the check described in
legitimate public checking the Information with the check
account user. It was not intended presented in court as this violates the
to shelter or favor or encourage right of the accused to be informed of
users of the system to enrich the offense charged and can not
themselves through the thereby be convicted ( Dico vs. CA,
manipulation and circumvention Feb. 25, 2005)
of the noble purpose and
objective of the law. Under the h). That the check was issued merely to
Utilitarian Theory or accommodate the complainant is not a
protective theory in criminal defense ( Steve Tan vs. Mendez, June
law, the primary function of 06, 2002)
punishment is the protection
of the society against actual 3. Other defenses include:
or potential wrong doers.
a). Prescription of the crime
The accused can hardly be b). Forgery, or that the accused did not
classified as a menace against voluntarily part with the check
whom the society should be c) The check became stale when
protected. From the time the presented
accused was informed up to the
291
Venue of the criminal action for Violation
Questions & Answers
of B.P. 22
Q: Is wife liable if only the husband signed the 1. In the place of issue i.e where the check
check given as security for a loan? was actually made or drawn
Ladonga vs. PP ( Feb. 17, 2005) 2. In the place of effective delivery in the
event the check is personally given to one
This involves the application of the to deliver to the payee but the recipient is
Revised Penal Code in a suppletory character not acting as the agent of the payee ( Lim
pursuant to Article 10. Thus the following vs. Rodrigo ). If the recipient is the agent,
principles apply: a). Provisions on subsidiary delivery to him is delivery to the payee as
imprisonment. b). Principle of Conspiracy as the principal.
analogous to the provisions on principals.
There was however no proof the wife 3. In the place of dishonor i.e. where the
performed an overt act in pursuance of the drawee bank is located
complicity which overt act may either be
active participation in the actual commission Note: Violation of B.P. 22 may be a transitory
of the crime, or it may consist of moral crime
assistance to the co-conspirator by moving
them to execute or to implement the criminal Other Important Considerations:
design.
There is no independent civil action
Q: May a person be held liable if he issues a allowed and no reservation is allowed as
check which is drawn against the account of the civil liability arising from the crime is
another person? mandatorily determined in the criminal
case.
A: Yes. The law includes within its coverage, the How many charges ought to be filed if
making and issuing of a check by one who there were several checks issued and
has no account with a bank, or where such dishonored?
account was already closed when the check (Personal Opinion- Sir Sagsago): If the
was presented for payment even if the checks were issued simultaneously for one
owner of the said account consented to the and the same transaction, against the
making of the check. same account, and all are dishonored,
there should only be one offense of
Distinction From Estafa violation of B.P. 22.
2. Violation of B.P. 22 does not require intent NOTE: As a rule estafa involves only personal
and damage as elements which matters properties. However Article 316 provides the
are the elements of estafa situations when estafa may involve real
properties.
3. Violation of B.P. 22 applies to all kinds of
checks whereas estafa applies only to I. Any person who, pretending to be the owner of
checks issued as payment for a any real property, shall convey, sell, encumber
simultaneous obligation or mortgage the same.
292
The property must actually exist but it Elements
does not belong to the accused. The latter
simply pretends he is the owner. 1. Offender is the owner of personal
If the property does not exists but the property;
accused pretends it exists, or the property 2. Said personal property is in the lawful
is a personal property, the crime is estafa possession of another;
under article 315 (par. 2-a) i.e. pretending 3. Offender wrongfully takes it from its
to possess property lawful possessor;
Examples: selling a public land; mortgage 4. Prejudice is thereby caused to the
of a land/building which the accused has possessor or third person.
already sold to another; second sale of the
same property to the victim The taking should be by deceit and not by
force else it is coercion.
II. Disposing off encumbered property as if it
were unencumbered (in other words, by Example: the debtor enticed the creditor to
disposing of real property as free from handover the watch used as a pledge on
encumbrance, although such encumbrance be the pretext that the debt is to be paid.
not recorded). Upon being handed the watch the debtor
does not pay and does not return the
Elements watch.
1. The thing disposed is a real property: If the possessor is not the lawful
2. Offender knew that the real property was possessor, there is no estafa.
encumbered, whether the encumbrance
is recorded or not; Questions & Answers
3. There must be express representation by
offender that the real property is free
from encumbrance; Q: X saw his stolen cellphone in the possession
4. The act of disposing of the real property of Y and pretends he wants to buy the cell
is made to the damage of another. phone. After it is given to him by Y, he
declares he is the owner and refuses to
pay or to return it. Did X commit estafa?
The real property has been mortgaged or IV. By executing a fictitious contract to the
is under any other valid encumbrance, as prejudice of another.
when it has been used as property bond,
or was attached. If the prior encumbrance The accused must be a debtor and the
is but a verbal agreement, the same is not purpose is to prevent a creditor from
enforceable hence no estafa is committed. running after the property to collect the
The accused must expressly misrepresent debt.
that the property is free from any lien or Fictitious contract refers to a simulated
encumbrance. Mere failure to disclose contract i..e there is no real consideration
even if intentional, will not constitute a such that the ownership remains with the
violation. This requires that there be an accused. If the ownership has been validly
express warranty that the property is transferred, the crime would be Culpable
clean. Insolvency.
o But the failure or omission to disclose V. By accepting compensation for services not
constitutes civil fraud which may be actually rendered or for labor not performed.
the basis for damages, but not for
estafa under this article. The acceptance must be in bad faith in
that the accused knows he has not
o This express warranty is often performed any service or labor. If he was in
contained in the body of the Deed of good faith the money may be recovered as
Sale itself this is a case of solution indebiti.
Ex: Impersonating a laborer and receiving
The rule on constructive notice concerning the wages of the latter
titled lands does not apply .
VI. Selling or mortgaging of real property used
III. The owner of a personal property who shall as bond without judicial authority (in other
wrongfully take it from its lawful possessor to words, selling, mortgaging or encumbering real
the prejudice of the latter or to a third person property or properties with which the offender
293
guaranteed the fulfillment of his obligation as Article 318. Other deceits
surety)
Acts punished
Elements
1. Defrauding or damaging another by any
1. Offender is a surety in a bond given in a other deceit not mentioned in the preceding
criminal or civil action; articles;
2. He guaranteed the fulfillment of such
obligation with his real property or Any other deceit covers any form of
properties; deception which is not punished under
3. He sells, mortgages, or in any manner either article 315, 316 or 317. It is
encumbers said real property; intended as the catchall provision for
4. Such sale, mortgage or encumbrance is that purpose with its broad scope and
without express authority from the court, intendment.
or made before the cancellation of his
bond, or before being relieved from the Examples:
obligation contracted by him. (i). Obtaining a loan on the promise that
the accused shall mortgage a property
Note: There must be actual damage and not which the accused latter refused to do
just temporary prejudice. (ii). A person presents herself as house
help, requests for an advance, and
Article 317. Swindling A Minor then surreptitiously leave
(iii) Bus conductor who issues a ticket for a
Elements lesser amount than what is actually
collected which ticket he then presents
1. Offender takes advantage of the to the operator, and thereby pocketing
inexperience or emotions or feelings of a the difference
minor; (iv). The false or fraudulent representation
2. He induces such minor to assume an by a seller that what he offers for sale
obligation or to give release or to is brand new ( when in fact it is not)
execute a transfer of any property right; ( Guinhawa vs. People, Aug. 25, 2005)
3. The consideration is some loan of
money, credit or other personal property; 2. Interpreting dreams, by making forecasts, by
4. The transaction is to the detriment of telling fortunes, or by taking advantage of
such minor. the credulity of the public in any other
similar manner for profit or gain
Notes:
This covers any form of deception where This is called the Fortune Tellers
the accused took advantage of the Crime
inexperience or emotion or feelings of a Q: Suppose the prediction came true?
minor to his detriment and shall induce the
minor to:
1. assume any obligation, such as borrowing
money with high interest Chattel Mortgage
2. give any release as by condoning any Article 319. Removal, Sale or Pledge of
indebtedness due to the minor Mortgaged Property
3. execute any transfer of any property,
such as exchanging his property with a Acts punished
less valuable property
1. knowingly removing to any province or
The property involved should not a real city any property mortgaged under the
property as minors cannot convey or chattel mortgage law other than the one
encumber real property without the in which it was located at the time of the
consent of his parents or guardians, execution of the mortgage, without the
otherwise it would be estafa under Article written consent of the mortgagee or his
318. representative (i.e. his executors,
administrators or assigns)
294
Elements: Concept:
a. Personal property is mortgaged This is the crime committed by any person who
under the Chattel Mortgage Law; destroys property by means of fire.
b. Offender knows that such
property is so mortgaged; There are two categories of the crime of
c. Offender removes such arson (per PP. vs. Malngan 503 SCRA
mortgaged personal property to 294) based on their significance on the
any province or city other than social, economic, political and national
the one in which it was located at security implications
the time of the execution of the
mortgage; 1. Destructive Arson under Article 320,
d. The removal is permanent; as amended by R.A. 7659.
e. There is no written consent of the
mortgagee or his executors, o This contemplates the malicious
administrators or assigns to such burning of structures, both public and
removal. private, hotels, edifices, trains,
vessels, aircrafts, factories and other
Notes: military, government, or commercial
the removal must be to defraud the establishments
mortgagee and not due to any valid
reason, such as a change of address, 2. Simple Arson under P.D. 1613 which
or if the properties are vehicles which contemplates the malicious burning of
travel from one place to another . public and private structures,
The purpose is so that the mortgagor regardless of size, not included in
cannot foreclose on the mortgage Article 320 as Amended
But if the creditor chooses to collect
by filing a suit, the debtor is relieved o These includes houses, dwellings,
from liability under Article 318 government buildings, farms, mills,
plantations, railways, bus stations,
2. Double sale, pledge or mortgage of the airports, wharves, and other
property without the written consent of industrial establishments.
the mortgagor written on the back of the
mortgage and recorded in the Office of Property Subject of Arson
the Register of Deeds.
Elements:
As to who owns the property burned:
1). Property of another, who may be a
a. Personal property is already private person or the government
pledged under the terms of the 2). Property of the accused if the arson was
Chattel Mortgage Law; under circumstances which exposes
b. Offender, who is the mortgagor danger to the life or property of another
of such property, sells or pledges Example: burning ones old house locate
the same or any part thereof; in a heavily populated residential
c. There is no consent of the
mortgagee written on the back of As to the kind of property: these may be
the mortgage and noted on the real or personal, including plantation,
record thereof in the office of the farms, pasture land, crops, forest land,
register of deeds. plants and animals except large cattle (as
the latter is cattle rustling)
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2). Other cases of Arson where the penalty
is reclusion temporal to reclusion
perpetua Article 327. Malicious Mischief
2). The kind or nature of the property such 1. Offender deliberately caused damage to
as: whether it is a building or not, if a the property of another;
building whether it is a public building 2. Such act does not constitute arson or
or a private dwelling ; a religious other crimes involving destruction;
building or one devoted to culture, 3. The act of damaging anothers property
education or social service was committed merely for the sake of
damaging it;
3). The presence of the special
aggravating circumstances of: Principles
a) If with intent of gain, such as to
collect the insurance premium 1. The destruction should not however be by
b). If committed for the benefit of means of fire otherwise the crime is arson
another 2. The property should not include large cattle
c). If the offender is motivated by spite else it is cattle rustling
or hatred towards the owner or
occupant of the property burned 3. If animal is killed to protect ones farm or
d). If committed by a syndicate i.e. if property, the principle of defense of
planned or carried out by a group property may be invoked
of 3 or more persons ( syndicated
arson) 4. This is always intentional and cannot be
committed by negligence. If destruction
4. If death results i.e if by reason or on the was due to lack of foresight or skill, the
occasion of arson death results nomenclature of the crime is imprudence
resulting to damage to property.
o This is the special complex crime of
Arson Resulting in or accompanied 5. If the property or part thereof is thereafter
by, Homicide. The term homicide is taken, the crime is theft and malicious
in generic sense and includes several mischief is absorbed
deaths
6. For purposes of the penalty malicious
o Death is not the purpose of the mischief is sub classified into:
burning otherwise the crime is
murder but this crime is where the a) Ordinary Malicious Mischief: i.e. that
intention is to burn but a person was of private property where the penalty
killed depends on the value of the property,
hence the property must have a
valuation i.e. does not exceed P200.00,
Principles more than P200.00 but not more than
P1,000.00 and over P1,000.00
1. Arson is a continuous crime and a single
offense is committed even if on the same Example: Writing graffiti or acts of
occasion of the burning, several properties vandalism
are burned, even if belonging to several
persons b). Special Malicious Mischief or
Qualified Malicious Mischief
2. The justifying circumstances of State of (Article 328)
Necessity may be invoked
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Acts punished Article 332 provides for an absolutory
cause in the crimes of theft, estafa and
1. Causing damage to obstruct the malicious mischief by directing that No
performance of public functions, criminal but only civil liability, shall
e.g. destroying the stage to result if the crimes are mutually
prevent the mayor from speaking; committed by the persons enumerated
2. Using any poisonous or corrosive therein. This is based on the relationship
substance; between the accused and the victim.
3. Spreading any infection or The exemption applies provided the
contagion among cattle; crimes are not complexed with other
4. Causing damage to the property of crimes
the National Museum or National
Library, or to any archive or
Persons exempted from criminal liability
registry, waterworks, road,
promenade, or any other thing
1. Between Spouses; ascendants and
used in common by the public such
descendants, or relatives by affinity in the same
as promenades, waiting sheds,
line
seats in the park
e.g. throwing human waste or
o This includes between parents and
urinating in a public street
children -in- law; step children and step
parents; adopter and adopted, including
c). Malicious Mischief to means of recognized natural children with their
communication or transportation natural parents
(Article 330) o Spouses include common-laws spouses
but not those simply in a live-in-
this is committed by damaging any relationship. This is because the property
railway, telegraph or telephone lines relations between common-law spouses
is that of the co-ownership
If the damage results to any kind of o Spouses who are legally separated are
accident, such as derailment, collision, included so long as there was no
the penalty is higher. This is in addition dissolution yet of their property
to the liability for the other
consequences of his act 2 The widowed spouse with respect to the
property which belonged to the deceased
Example: The accused destroyed the spouse before the same shall have passed into
retaining wall of a road causing a jeep the possession of another.
to fall down the ravine killing the driver.
He is liable for Malicious Mischief (for o If the property is subject of judicial
the destruction of the wall) and a settlement, and is placed by the court
separate offense of Reckless under an administrator after an
Imprudence resulting in homicide and inventory has been approved, the
damage to property property is said to have passed into the
possession of another
d). Malicious Mischief of public
statues or of useful or ornamental
monuments or of public Questions & Answers
ornamental paintings (Article
331). Q: Suppose the widowed spouse took and
spent the legitime of the heirs, was criminal
Example: Painting the statute of the liability incurred?
heroes in public parks
3. Brothers and sisters, brothers/sisters-in-law, if
living together.
Exemption from Criminal Liability o Not if the accused is just a visitor or
for Crimes Against Property given temporary shelter by the victim
Article 332. Persons Exempt from Criminal
Liability
Introduction: TITLE XI
CRIMES AGAINST CHASTITY
Crimes against chastity
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(iii). Abuse of relationship such as by
1. Adultery (Art. 333); brothers or ascendants
2. Concubinage (Art. 334);
3. Acts of lasciviousness (Art. 336); Under the Anti Rape Law, there is rape by
4. Qualified seduction (Art. 337); grave abuse of authority hence it would
5. Simple seduction (Art. 338); seem that if the accuse falls under any of
6. Acts of lasciviousness with the consent the foregoing classification but if the
of the offended party (Art. 339); abuse is not grave, the offense would
7. Corruption of minors (Art. 340); still be qualified seduction. But when is the
8. White slave trade (Art. 34); abuse considered grave, so as to give rise
9. Forcible abduction (Art. 342); to rape, and when is it mild or not grave?
10. Consented abduction (Art. 343).
B. In simple seduction (Article 338) the
seduction was committed by means of
I. Introduction: deceit.
298
1. The woman is married;
2. She has sexual intercourse with a man 1. Direct evidence is not necessary as
not her husband; adultery may be implied from the
3. As regards the man with whom she has circumstances of time, place and
sexual intercourse, he must know her to occasion
be married.
2. There may be a separate trial for the
Notes: man and the woman
The gist is actual sexual intercourse and 3. The man may be acquitted if he did not
not just mere romantic dating, or petting know the woman is married
or kissing
There is no frustrated stage: it is either 4 If the man is married, he may also be
that the accused were able to engage in liable for concubinage and the married
sex or not. woman man may also be charged as a
It is not a continuing crime because each concubine
separate sex act on a different occasion
is a different and a separate crime. Special Extenuating Circumstance of
Unjustified Abandonment
This may be committed when a married
woman marries a second time without
the first having been judicially annulled The penalty is at least one degree lower
or voided. Her liability is in addition to The essence is that the woman was
bigamy forced to commit adultery by reason of
The Judicial extreme necessity which refers to
validity of the womans marriage is not economic necessity and the need for
material. It is enough that there was a survival, such as providing for the shelter
marriage which has not yet been and sustenance of her abandoned family.
annulled or declared null and void.
3. Cohabit with her in any other place The act of making a physical contact with the
body of another person for the purpose of
To cohabit is to live together as husband obtaining sexual gratification other than, or
and wife. without intention of, sexual intercourse.
Elements
Questions & Answers
1. Offender commits any act of
Q: Is concubinage committed by the man lasciviousness or lewdness;
in providing the woman her own house 2. It is done under any of the following
or apartment but does not live with her circumstances:
though he regularly visits her thereat, a. By using force or intimidation;
at which time they engage in sex? b. When the offended party is
deprived or reason of otherwise
General Notes: unconscious; or
c. When the offended party is
another person of either sex.
Unlike in adultery, the fact of criminal
conversation or sexual intercourse with a The contact may be by the body of the
woman does not per se give rise to accused such as by the lips, hands, foot;
concubinage. Further, each sexual act is or by means of any object or instrument.
not a separate offense because In either case there must be no form of
concubinage is treated as a continuing insertion into the anus, mouth or sex
crime. organ amounting to rape through sexual
abuse.
Note: In adultery the penalty is the
same for both the woman and man (Prision
It is distinguished from Attempted Rape
correctional medium and maximum) but in
in that there is no intent to have sexual
concubinage the penalty for the man is
intercourse with the victim. The intent
lower by one degree ( prision correctional
may be inferred from the circumstances
minimum and medium) while the
of time, place, and occasion, or inferred
concubine is given a separate penalty
from the nature of the act itself.
which is destierro.
It is distinguished from Unjust Vexation in
The woman is liable if she knows him to be that there is no lewd design in unjust
married (even if unhappily at that and vexation
even if her purpose is to provide comfort
and companionship) Example: (i) The acts of an ardent lover
The defenses available in adultery also such as kissing, embracing arising from
apply such as consent and pardon. his passion, are unjust vexation merely.
(ii). The touching of the private parts of a
Questions & Answers woman out of curiosity is unjust
vexation.
Q: Can the man also claim, by analogy, the If the acts of lasciviousness (including
circumstance of unjustified abandonment sexual intercourse) is performed upon a
which led him to commit concubinage i.e. child exploited in prostitution or other
out of necessity and the need for survival? sexual abuse (i.e. abuse other than the
acts of lasciviousness such as when the
child is the subject of an obscene
Article 335. Rape publication or pornography or of
indecent shows) whether male or female,
the acts would constitute sexual abuse
punished under R.A. 7610 ( The Child
300
Abuse Law) ( Olivarez vs. C.A., July 29,
2006) a. Priest;
b. House servant;
Kinds: c. Domestic;
1. Forcible (Article 336) if made under 3. Those who abused their relationship
circumstances of forcible rape, i.e
through force, threat, violation,
intimidation, a. Brother who seduced his sister;
b. Ascendant who seduced his
The accused may be any person and the descendant.
victim may be a male or female
Acts punished
Article 339. Acts of Lasciviousness
1. Seduction of a virgin over 12 years with the Consent of the Offender
and under 18 years of age by certain Party
persons, such as a person in
authority, priest, teacher; and Elements
1. Those who abused their authority It is not required that the offender be the
guardian or custodian of the minor.
a. Person in public authority;
b. Guardian; It is not necessary that the minor be
c. Teacher; prostituted or corrupted as the law
d. Person who, in any capacity, is merely punishes the act of promoting or
entrusted with the education or facilitating the prostitution or corruption
custody of the woman seduced; of said minor and that he acted in order
to satisfy the lust of another.
2. Those who abused confidence
reposed in them
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Article 341. White Slave Trade carried out with her consent and with lewd
designs.
Acts punished
Elements
1. Engaging in the business of
prostitution; 1. Offended party is a virgin;
2. Profiting by prostitution; 2. She is over 12 and under 18 years of
3. Enlisting the services of women for age;
the purpose of prostitution. 3. Offender takes her away with her
consent, after solicitation or cajolery;
4. The taking away is with lewd designs
Abduction
Notes:
Concept:
There may or may not be deceit
The taking away of a woman with lewd designs employed to get the woman to agree, as
i.e. to obtain sexual gratification. for example, convincing the woman to
elope with the man. The consent must
1. Forcible (Article 342): if the taking be given freely and intelligently.
away is against her will. There be lewd design else the crime may
be inducing a minor to abandon the
Elements home
The penalty is higher if the purpose is to If the first marriage is completely void,
defraud the offended party or his heirs there is no bigamy. If the second
such as pretending to be the lost son or marriage is void, there is no bigamy
nephew of a rich man either. But this may give rise to either
Example: (i) The Prince and the Pauper adultery or concubinage.
(ii) The Man in the Iron Mask. (iii).
Pretending to be the Cesar Oracion in Example: H married first wife. Then he
order to be addressed as Dean marries second wife. The first wife died
whereupon H married third wife. H is
Other Related Crimes involving guilty of bigamy for the second marriage.
usurpation/impersonation But he is not guilty of bigamy for the
third marriage because the second
1. May be Using Fictitious Name as when the marriage is void.
accused another to avoid being arrested
for traffic violations. Bigamy may be committed by reckless
2. Estafa as by pretending to be the creditor imprudence as: (i). by failure to ascertain
or collector the whereabouts of the first wife (ii) one
3. Falsification as by pretending to be the who obtains a divorced abroad and
payee in a check thinking it is valid here, remarries.
4. Perjury
The prescriptive period commences after
discovery of the second marriage as the
Illegal Marriages principle of constructive notice does not
apply to records in the Civil Registry.
Kinds of Illegal Marriages (i.e. those not In case the second marriage is based on
recognized or prohibited by law) the absence of the first spouse, there
must first be a judicial declaration of
1. Bigamous Marriages (Art. 349) presumptive death so that the accused
304
can claim good faith and avoid 2. A woman who, her marriage having been
prosecution for bigamy. annulled or dissolved, married before her
delivery or before the expiration of the
Venue. In the courts of the city, province period of 301 days after the date of the
or province where the second marriage legal separation.
was celebrated
The purpose of the prohibition is to
prevent doubtful paternity in the event
she gives birth during the second
Article 350. Marriage Contrary to the marriage. Thus there is no liability in the
Marriage law following instances:
a). If she already gave birth prior to the
Elements second marriage
b). There is proof she was not pregnant
1. Offender contracted marriage; by the first husband as when the first
2. He knew at the time that husband is sterile, or infertile or was
a. The requirements of the law were unable to have physical access to the
not complied with; or wife
b. The marriage was in disregard of a c). The second husband is sterile
legal impediment. d). The woman is sterile or infertile
1. A widow who is married within 301 days These crimes, which are in the nature of
from the date of the death of her character assassination, are classified
husband, or before having delivered if according to the manner of their
she is pregnant at the time of his death; commission into the following:
305
a). Libel which is by making use of the and magazines; comments, opinions,
mass media and literary forms or news aired over the television or radio
literary outlets stations
b). Oral Defamation which is by the use of
oral utterances b). Modern communication facilities such
c). Slander by Deed which is by performing as through the internet or cellphones,
an act intended to cast dishonor, CDs, DVDs
disrespect or contempt upon a person
. b). Literary outlets such as through letters,
d). Incriminatory machinations which may books, poems, songs, stage plays,
either be: movies, paintings, drawings, pictures,
(i) Incriminating an innocent person in sculpture and the like
the commission of a crime by
planting evidence Elements
(ii) Intriguing against honor by
resorting to any scheme, plot, First Element: There must be a defamatory
design, but not by direct spoken imputation
words, to destroy the reputation of
another This means that the matter claimed to be
libelous must impute a crime, vice, defect, or
Elements common to all: any act, or omission, condition, status or
circumstance, tending to cause the dishonor,
a) That there be a matter, oral written or discredit or contempt to a natural or juridical
in whatever form, or of an act, which is person, or to blacken the memory of one who
defamatory to another is dead.
b).That there is publicity of the The purpose is to lower the esteem or honor,
defamatory matter or respect, in which a person is regarded,
such as :
c). That there be malice on the part of the
accused a). The victim is humiliated or publicly
embarrassed
d). That the person defamed is identifiable b). The victim is vilified, hated, becomes
the subject of gossip, nasty stories,
suspected of wrongdoings, is avoided
The foregoing crimes cannot be committed
c). The victim losses face, becomes a
by negligence because all require the
laughing stock, is the object of ridicule
element of malice.
Title 13, especially the article on libel
Rules to determine whether the language is
constitutes another limitation to the defamatory or not:
freedom of speech and of the press as
these two freedoms can not be allowed to a). What should be considered is what the
be used to destroy the good name of an matter conveyed to a fair and
innocent person. reasonable man and not the intention
of the author or the accused.
b). Statements should not be interpreted
Article 353. Definition of Libel by taking the words one by one out of
context; they must be taken in their
A libel is a public and malicious imputation of a entirety.
crime, or of a vice or defect, real or imaginary, c). Words are to be given the ordinary
or any act, omission, condition, status, or meaning as are commonly understood
circumstances tending to cause the dishonor, and accepted in the in daily life. The
discredit, or contempt of a natural or juridical technical meanings do not apply. This
person, or to blacken the memory of one who is is especially true to idiomatic sayings.
dead. Thus Babae ng Bayan does not
mean a heroine. Hayok sa Laman
Introduction: does not mean a meat eater. Adu
client nya nga pagbigasan
Forms: Libel may be through:
How the imputation is made:
a). The facilities of the mass media i.e
print and broadcast media such as a). By the use of direct and express
articles, news items, columns, defamatory words, descriptions or
caricatures, editorials in newspapers
306
accusations. Examples: (i). He is a a). Words commonly used as expletives,
thief, swindler, babaero, ugly, wife denoting anger or disgust rather than
beater, a crook (ii) drawing a caricature as defamation, such as the expressions
of a person depicting him as a Putang inaka, tarandado ka, Ulol,
crocodile Punyeta ka.
b). By the use of Figures of Speech such b). Expressions of an opinion made by one
as: who is entitled to state an opinion on a
subject in which he is interested.
(i) Hyperbole - exaggeration according Examples:
to which a person is depicted as (i) An heir writes that their was
being better or worse, or larger or unfairness in the distribution of the
smaller than is actually the case. properties
Example: (a). Mr. X is the gambling (ii) A lady complains over the radio that
lord (b) She is the mother of all there was discrimination against
cheaters. (c) Praise undeserved is Cordillera girls women in the
slander in disguise selection of candidates to the Miss
Baguio Pageant
(ii) Irony or sarcasm or where words (iii). A law student writes in the school
are used to convey a meaning news organ that he believes the
contrary to their literal sense. faculty in the college of law are
Examples: (a). Maria belongs to generally lazy and are not kept
the ladies called Kalapating abreast with new jurisprudence
mababa ang lipad (b). Dont (iv). A teacher declared in an interview
bother asking him for a treat. He is that the students of one school are
boxer ( i.e stingy or a miser) (c) He less intelligent than those in
has a face only a mother can love another school
(d) She is my wife when she is
beside me, yours when she is near c). Words which are merely insulting are
you. (e). She is very famous not actionable as libel or slander per
because she is a public sweetheart. se, and mere words of general abuse
however opprobious, ill-natured, or
(iii) Metaphor or the use of words or vexatious whether written r spoken, do
phrases denoting one kind of idea not constitute a basis for an action for
in place of another word or phrase defamation in the absence of
for the purpose of suggesting a allegation for special damages. The
likeness between the two. fact that the language is offensive to
Examples: (a) He is Satan the plaintiff does not make it
personified on earth. (b) She has actionable by itself ( MVRS Pub. Inc. vs
an angelic face but covered with a Islamic Dawah Council of the Phil.
skin as thick as the hide of a 444 Phil. 20; Binay vs. Sec. of Justice
carabao Sept. 8, 2006)
307
o Circulation or publicity is not How the identification or referral to the
necessarily through the newspaper. plaintiff is made
o Examples: a). Directly by his name
i). Posting the material in the internet b). By descriptions of his person, his
or posting in a bulletin board address, nature of his office or work,
ii). Showing the caricature, or naked his actions, or any other data
picture, of the victim to another personally connected or related to the
iii) Announcements in the radio, or plaintiff; or identification from similar
paid advertisements such as The other the circumstances
public is warned not to purchase c) From the likeness of his face or features
the skin lotion products of ABC to the libelous drawing, caricature,
Corp. to prevent possible cancer painting or sculpture
iv). Asking someone to write a
defamatory letter about the victim The victims maybe natural persons who are
iv). Sending the letter to the victim alive or juridical persons, or deceased
through a messenger but it is in an persons as to their memory.
unsealed envelope ( the
presumption is that the letter is Rule if several persons were defamed or
intended to be read by anyone libeled
other than the victim). Thus if the
letter is sent in a sealed envelope, a). If several persons were libeled in one
the element of publicity is missing. article, but all are identifiable, then
there are as many charges of liable as
Effect: Each separate publication of a libelous there are persons libeled
matter is a separate crime, whether
published in part, or in the same newspaper. b). If the article is directed to a class or
Example: (i) There as many crimes of libel as group of several persons in general
there are various showing or staging of a terms only without specifying any
libelous drama or stage play in different particular member, there is no victim
venues and at various times. identified or identifiable, hence there is
(ii) If the same libelous news is published in no actionable libel. No person can
two or more newspapers, then there be such claim to have been specifically libeled
number of separate libels corresponding to as to give that person the right to file
the different newspapers which published the charges of libel.
material.
Examples:
Third Element: The Person libeled must be (i). Some lady students in the 4 th year
identified. (Identity of victim) law class section A, are ugly
(ii). Two thirds of the law students are
This means the complainant or plaintiff must cheaters
prove he is the person subject of the libelous (iii). Majority of the policemen are
matter, that it his reputation which was crooks
targeted. (iv). Most lawyers are thieves disguised
in coat and tie
This element is established by the testimony
of witnesses if the complainant was not c). If the defamation is directed against a
directly mentioned by name. They must be group or class and the statement is so
the public or third persons who can identify sweeping or all-embracing as to apply
the complainant as the person subject of the to every member of that group or
libel. If third persons can not say it is the class, then any member can file an
plaintiff or complainant who is the subject, action for libel in his own name, not in
then it cannot be said that plaintiffs name the name of the group/class. (Note:
has been tarnished. Philippine laws do not recognize group
libel). Or if the statement is sufficiently
o Where the publication is ambiguous specific so that each individual can
as to the person to whom it applies, prove that the statement specifically
the testimony of persons who read point to him then he may bring an
the publication is admissible for the action in his own name.
purpose of showing who is intended
to be designated by the words in said Examples:
publication (i). All those belonging to 4th year law
class section A are sex perverts
308
(ii) Each and every employee in the the plaintiff. He must prove the purpose of
accounting office is secretly taking the accused is to malign or harm or injure
home part of the tuition fees paid. his reputation. This arises either because:
(iii) If you are a faculty member of the (i) the article is not defamatory on its
college of law of U.B. then you face or if libelous it is ambiguous
have no integrity but you are a yes- (ii) the accused was able to overcome
man of the school President the presumption of malice.
310
( Binay vs. Sec. of Justice, Sept. prosecutor by a private person for
08, 2006) the purpose of initiating a
prosecution is protected by the
o Legal duty: presupposes a provision same cloak of immunity and
of law imposing upon the accused cannot be used as a basis for an
the duty to communicate. Such as action for defamation.
the complaint by a citizen
concerning the misconduct of a In this Alcantara case, a newsletter
public official to the latters submitted by party in a preliminary
superior even if, upon investigation, which was
investigation, the matters are not defamatory, was considered as a
substantiated. But it may be privilege communication.
shown that the charges were
maliciously made without It was also ruled that under the
reasonable ground for believing Test of Relevancy, a matter alleged
them to be true. in the course of the proceedings
need not be in every case material
Also, a report to the police by a to the issues or be so pertinent to
citizen about the suspected the controversy that it may
criminal activities of another become the subject of inquiry in
person, even if latter it is proved the course of trial, so long as they
the suspicions were groundless, is are relevant.
privileged.
b.-1: A fair and true report of any official
o Moral or social duty presupposes proceeding, or of any statement,
the existence of a relationship report, or speech, made thereat
between the sender and the
recipient of the communication, or The proceeding must not be
the confidential and pressing confidential, such as the hearings
urgency of the communication. before the Senate, as opposed to
the close door executive sessions
o The sender must have an interest of the senate . Thus if the report is
in the subject of the with respect to a public record, it
communication and the recipient refers only to those made
must be a proper person who can accessible to the public which may
act on the subject to the be revealed for public interest or
communication. protection of the public.
311
(ii). An editorial criticizing the owner of a
The public and official acts of a ship which sunk, for his delay in
public official, including his policies, extending financial help to the family
are legitimate subjects of of the victims, is not libelous as the in
comments and criticisms, though action is a matter of public interest.
they may be unfair. Public officials
are not supposed to be onion- (iii). The arrest and prosecution of law
skinned. Public officials, like violator is a matter in which the public
Ceasars wife, must be beyond has a right to know. Thus there is no
reproach and above suspicion. liability for reporting that a lady was
arrested for selling shabu or that a
But the communication may be person was charged in court or
actionable: convicted by a court for Estafa. The
(i) If it contains an imputation persons in question cannot file a case
which is a false allegation of a for libel.
fact or a comment based on a
false supposition (iv). A radio announcer lambasts a family
for their adamant refusal to vacate and
(ii). If the attack, criticism or remove their structure inside a park.
imputation pertains to his
private acts or private life, 2. Comments and Criticisms on the
unless these reflect on his Actuations of Public Figures
public character and image
as a public official. Public figures refer to people who place
themselves in the public limelight or
(iii) As stated in the U.S. case of attention either: by nature of their
New York Times vs. Sullivan, a business or activity, or mode of living, or
public official may recover by adopting a mode of profession or
damages if he proves that : calling which gives the public a
the statement was made legitimate interest in his doings, his
with actual damage, that is, affairs and in his character or which
with knowledge that it was affect public interest (these are the
false or with reckless celebrities), or because they participate
disregard of whether it was in public affairs or regularly and publicly
false or not expound their views on public affairs.
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and related to the defamatory 10. Any similar means.
imputation and not unnecessarily
libelous.
Article 356. Threatening to Publish and
4. Truth And Good Motives or Justifiable Offer to Prevent Such Publication for A
Ends. Compensation (Libel As A Threat
(Blackmailing))
It is not enough that what was publicized
about another is true. The accused must Concept:
also prove good motives or intentions
and justifiable ends, in order to disprove The law punishes a person who demands a
malice. compensation or money consideration by (Acts
This defense is available only if: (a) What punished) :
is imputed to another is a crime
regardless if the victim is a private or 1. Threatening another to publish a libel
public person or (ii) if the victim is a concerning him, or his parents, spouse,
public officer regardless of whether a child, or other members of his family;
crime is imputed, so long as it relates to
the discharge of their official duties 2. Offering to prevent the publication of
Illustrations: one writes about the such libel
criminal activities of another in order to
show that crime does not pay, or to set Principles:
an example of what conduct to avoid.
1. This a form of blackmailing because there
5. The Principle of Neutral Reportage. is an extortion for money under threat of
so called exposing a person. This is
often called demand for Hush Money
This is a defense available to one
charged not as the author but as a
2. If both modes were committed by a
republisher of a libelous material
single person, there is only one offense.
If committed by two different persons
The republisher who accurately and
there be two separate offenses, unless
disinterestedly reports certain both are in conspiracy.
defamatory statements made against
public figures, is shielded from liability, 3. The crime is consummated once the
regardless of his subjective awareness of threats or offers were made.
the truth or falsity of the accusation.
( See Fil Broadcasting Net Work vs. AGO Examples:
Medical and Educational Center, 448 1. The accused threatened to publish in a
SCRA 413) weekly periodical certain letters written by a
married woman unless she paid a certain
Example: A parent of a student goes on sum of money.
radio to denounce a school teacher as 2. The producer of a TV Program demanded
being incompetent, absentee, bias and money from a politician otherwise he would
prejudiced. A news reporter quoted the expose the sexcapades of the politician.
accusations in his news article. He is not
liable even if he personally knows the
accusations are untrue.
Article 357. Prohibited Publication of Acts
Referred to in the Course of Official
Article 355. Libel by Means of Writings or Proceedings
Similar Means
Elements
A libel may be committed by means of
1. Offender is a reporter, editor or manager
1. Writing; of a newspaper, daily or magazine;
2. Printing; 2. He publishes facts connected with the
3. Lithography; private life of another;
4. Engraving; 3. Such facts are offensive to the honor,
5. Radio; virtue and reputation of said person.
6. Photograph;
7. Painting; The provisions of Article 357 constitute the
8. Theatrical exhibition; so-called "Gag Law."
9. Cinematographic exhibition; or
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Article 359. Slander by Deed
Article 358. Slander (Oral Defamation)
Concept:
Concept:
The performance of any act which shall cast
It is understood as the speaking of base and dishonor, discredit or contempt upon another
defamatory words which tend to prejudice person. Depending upon the seriousness of the
another in his reputation, office, trade, business act, the time, place, occasion, the character of
or means of livelihood the victim, it is either Grave or Light.
Kinds: Elements
(1) Grave when it is of a serious and insulting
kind or 1. Offender performs any act not included
(2) Simple in any other crime against honor;
2. Such act is performed in the presence of
Factors to consider: other person or persons;
1. The expression used including their 3. Such act casts dishonor, discredit or
sense, grammatical significance and contempt upon the offended party.
accepted ordinary meaning
2. The personal relations of the accused Two kinds of slander by deed
and the offended party, as when both
are bitter enemies 1. Simple slander by deed; and
3. The special circumstances of the case 2. Grave slander by deed, that is, which is
and its antecedents, such as the time, of a serious nature.
place and occasion of the utterances,
persons present Notes:
4. The social standing and position of the
offended party If it is not proven that the purpose of the
act is to humiliate or embarrass the act
Words uttered in the heat of anger or in may either be maltreatment or unjust
a quarrel, with some provocation on the vexation.
part of the victim, is simple slander. Poking a dirty finger ordinarily connotes
the phrase Fuck you which is similar to
Example: The refusal of the Mayor, the expression Puta or Putang Ina Mo
without valid justification to approve the and, when there is provocation from the
monetization of accrued leaves of the victim, is simple slander by deed
accused led the latter to utter scathing (Viilanueva vs. Pp)
words against the Mayor, which
utterances were considered slight as the
said refusal was deemed sufficient Incriminatory Machinations
provocation (Villanueva vs. People, April
10, 2006) I. Incriminating An Innocent Person Under
Article. 363.
Other Considerations:
Elements
The victim may not have heard the words, it
is enough that a third person heard them. 1. Offender performs an act;
2. By such an act, he incriminates or
Words uttered in one occasion and place and
imputes to an innocent person the
directed at several persons not mentioned
commission of a crime;
individually constitute only one offense.
3. Such act does not constitute perjury.
Words used as expletives (i.e.to express
anger, displeasure, are not defamatory) Notes:
Example: the words Puta, Putang Ina Mo
This refers to acts not constituting
are common enough expressions in the
perjury but directly tending to cause the
dialect that are often employed, not really
false prosecution of another and is
to slander but rather to express anger or
limited to planting evidence
displeasure. It is seldom, if ever, taken in its
literal sense by the hearer, that is, as a The evidence should not however consist
reflection on the virtues of the mother (PP. of drug or drug paraphernalia else the
vs. Reyes quoted in Villanueva vs. PP) act is specifically known as Planting
Evidence punished by the Dangerous
Drugs Law
314
1. The degree of diligence required by law
II. Intriguing Against Honor Under Art. 364. varies with the nature of the situation in
which a person is placed.
This refers to any scheme or plot designed to
blemish the reputation of a person by means 2. Negligence maybe presumed if at the
of which consists of some trickery. The time the accident occurred, the accused
accused does not avail directly of spoken or was violating a regulation the purpose of
written words, pictures or caricatures, but of which was to prevent the accident.
some ingenious, crafty or secret plot.
3. There is no conspiracy in culpable
Example: circulating gossips, stories or felonies.
rumors highly offensive to a lady, that she is
a saint by day but not at night. 4. As to the penalties:
315
a). if he leaves because he is in imminent while it is necessary to allege the
danger of being harmed essential elements of the crime in the
b). he leaves to report to the police information, the failure not do so is not
c). or to summon a physician, nurse or doctor. an irremediable vice. When the
complaint or resolution by the pubic
DIVERSION UNDER R.A. 9344 prosecutor which contains the missing
THE JUVENILE JUSTICE AND WELFARE averments is attached to the information
ACT OF 2006 and form part of the records, the defect
in the latter is effectively cured, and the
1. CONCEPT: Refers To an alternative, child- accused cannot successfully invoke the
appropriate process of determining the defense that his right to be informed is
responsibility and treatment of a child with violated
the law on the basis of his social, cultural, D. In addition to moral damages, a fine is
economic, psychological or educational awarded for each count of lascivious
background without resorting to formal court conduct
proceedings.
E. Distinction between Acts of
A. The CICL is placed under diversion Lasciviousness under the RPC from that
programs which may consist of any of the under Section 5, Art. III of R.A 7610 per
following: the dissenting opinion of Justice Carpio
316
office must be direct and not accidental, GOD BLESS
such that the offense cannot exist
without the office -o0o-
B). PP vs. Montejo ( 108 Phil. 613): GOOD LUCK
although public office is not an element
of the offense charged, as long as the Prepared by:
offense charged is intimately connected
with the office of the offender and ELMER MANUEL SAGSAGO
perpetrated while he was in the CITY PROSECUTOR II
performance, though improper or PROFESSOR: SCHOOL OF LAW
irregular, of his official functions, the SAINT LOUIS UNIVERSITY
accused is held indicted for an offense UNIVERSITY OF BAGUIO
committed in relation to his office X------------------------------------------------X
-o0o-
LAWS RELATED TO CRIMES BY PUBLIC OFFICERS
Elmer Manuel Sagsago
1. R.A. 7080: AN ACT DEFINING AND PENALZING Professor: Criminal Law Review
THE CRIME OF PLUNDER SLU-UB
1. Plunder:
-o0o-
317