Beruflich Dokumente
Kultur Dokumente
TITLE I. CRIMES AGAINST NATIONAL Almost all of these are crimes committed in
SECURITY AND THE LAW OF NATIONS times of war, except the following, which
can be committed in times of peace:
Crimes against national security (1) Espionage, under Article 114 – This
is also covered by Commonwealth
1. Treason (Art. 114); Act No. 616 which punishes
conspiracy to commit espionage.
2. Conspiracy and proposal to commit This may be committed both in times
treason (Art. 115); of war and in times of peace.
3. Misprision of treason (Art. 116); and (2) Inciting to War or Giving Motives for
Reprisals, under Article 118 – This
4. Espionage (Art. 117). can be committed even if the
Philippines is not a participant.
Exposing the Filipinos or their
Crimes against the law of nations properties because the offender
performed an unauthorized act, like
1. Inciting to war or giving motives for those who recruit Filipinos to
reprisals (Art. 118); participate in the gulf war. If they
involve themselves to the war, this
2. Violation of neutrality (Art. 119); crime is committed. Relevant in the
cases of Flor Contemplacion or
3. Corresponding with hostile country Abner Afuang, the police officer who
(Art. 120); stepped on a Singaporean flag.
4. Flight to enemy's country (Art. 121); (3) Violation of Neutrality, under Article
and 119 – The Philippines is not a party
to a war but there is a war going on.
5. Piracy in general and mutiny on the This may be committed in the light of
high seas (Art. 122). the Middle East war.
4. Disloyal acts or words in times of carried out only with bolos and spears;
war; hence, national security was not really
threatened. Now, the threat of rebellion or
5. Conspiracy to violate preceding internal wars is serious as a national threat.
sections; and
Elements
Article 118. Inciting to War or Giving
Motives for Reprisals 1. It is in time of war in which the
Philippines is involved;
Elements
2. Offender makes correspondence
1. Offender performs unlawful or with an enemy country or territory
unauthorized acts; occupied by enemy troops;
expressly provided in the same section that b. seize the whole or part of the
the offender shall be considered as an cargo, its equipment, or
accomplice of the principal offenders and personal belongings of the
punished in accordance with the Revised crew or passengers.
Penal Code. This provision of Presidential
Decree No. 532 with respect to piracy in
Philippine water has not been incorporated Mutiny is the unlawful resistance to a
in the Revised Penal Code. Neither may it superior officer, or the raising of
be considered repealed by Republic Act No. commotions and disturbances aboard a
7659 since there is nothing in the ship against the authority of its commander.
amendatory law is inconsistent with said
section. Apparently, there is still the crime of Distinction between mutiny and piracy
abetting piracy in Philippine waters under
Presidential Decree No. 532. (1) As to offenders
Philippine registry, it should be in flight at the aircraft. But before they could do
the time of the hi-jacking. Otherwise, the anything on the aircraft, alert marshals
anti hi-jacking law will not apply and the arrested them. What crime was committed?
crime is still punished under the Revised
Penal Code. The correlative crime may be The criminal intent definitely is to
one of grave coercion or grave threat. If take control of the aircraft, which is hi-
somebody is killed, the crime is homicide or jacking. It is a question now of whether the
murder, as the case may be. If there are anti-hi-jacking law shall govern.
some explosives carried there, the crime is
destructive arson. Explosives are by nature The anti hi-jacking law is applicable
pyro-techniques. Destruction of property in this case. Even if the aircraft is not yet
with the use of pyro-technique is destructive about to fly, the requirement that it be in
arson. If there is illegally possessed or flight does not hold true when in comes to
carried firearm, other special laws will apply. aircraft of foreign registry. Even if the
problem does not say that all exterior doors
On the other hand, if the aircraft is of are closed, the crime is hi-jacking. Since
foreign registry, the law does not require the aircraft is of foreign registry, under the
that it be in flight before the anti hi-jacking law, simply usurping or seizing control is
law can apply. This is because aircrafts of enough as long as the aircraft is within
foreign registry are considered in transit Philippine territory, without the requirement
while they are in foreign countries. that it be in flight.
Although they may have been in a foreign
country, technically they are still in flight, Note, however, that there is no hi-
because they have to move out of that jacking in the attempted stage. This is a
foreign country. So even if any of the acts special law where the attempted stage is
mentioned were committed while the not punishable.
exterior doors of the foreign aircraft were
still open, the anti hi-jacking law will already 2. A Philippine Air Lines aircraft
govern. is bound for Davao. While the pilot and co-
pilot are taking their snacks at the airport
Note that under this law, an aircraft is lounge, some of the armed men were also
considered in flight from the moment all there. The pilots were followed by these
exterior doors are closed following men on their way to the aircraft. As soon as
embarkation until such time when the same the pilots entered the cockpit, they pulled
doors are again opened for disembarkation. out their firearms and gave instructions
This means that there are passengers that where to fly the aircraft. Does the anti hi-
boarded. So if the doors are closed to bring jacking law apply?
the aircraft to the hangar, the aircraft is not
considered as in flight. The aircraft shall be No. The passengers have yet to
deemed to be already in flight even if its board the aircraft. If at that time, the
engine has not yet been started. offenders are apprehended, the law will not
apply because the aircraft is not yet in flight.
Note that the aircraft is of Philippine
registry.
Questions & Answers
3. While the stewardess of a
1. The pilots of the Pan Am Philippine Air Lines plane bound for Cebu
aircraft were accosted by some armed men was waiting for the passenger manifest, two
and were told to proceed to the aircraft to fly of its passengers seated near the pilot
it to a foreign destination. The armed men surreptitiously entered the pilot cockpit. At
walked with the pilots and went on board gunpoint, they directed the pilot to fly the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
aircraft to the Middle East. However, before etc. Otherwise, the anti hi-jacking law does
the pilot could fly the aircraft towards the not apply.
Middle East, the offenders were subdued
and the aircraft landed. What crime was However, under Section 7, any physical
committed? injury or damage to property which would
result from the carrying or loading of the
The aircraft was not yet in flight. flammable, corrosive, explosive, or
Considering that the stewardess was still poisonous substance in an aircraft, the
waiting for the passenger manifest, the offender shall be prosecuted not only for
doors were still open. Hence, the anti hi- violation of Republic Act No. 6235, but also
jacking law is not applicable. Instead, the for the crime of physical injuries or damage
Revised Penal Code shall govern. The to property, as the case may be, under the
crime committed was grave coercion or Revised Penal Code. There will be two
grave threat, depending upon whether or prosecutions here. Other than this
not any serious offense violence was situation, the crime of physical injuries will
inflicted upon the pilot. be absorbed. If the explosives were planted
in the aircraft to blow up the aircraft, the
However, if the aircraft were of circumstance will qualify the penalty and
foreign registry, the act would already be that is not punishable as a separate crime
subject to the anti hi-jacking law because for murder. The penalty is increased under
there is no requirement for foreign aircraft to the anti hi-jacking law.
be in flight before such law would apply.
The reason for the distinction is that as long All other acts outside of the four are merely
as such aircraft has not returned to its home qualifying circumstances and would bring
base, technically, it is still considered in about higher penalty. Such acts would not
transit or in flight. constitute another crime. So the killing or
explosion will only qualify the penalty to a
higher one.
As to numbers 3 and 4 of Republic Act No.
6235, the distinction is whether the aircraft
is a passenger aircraft or a cargo aircraft. Questions & Answers
In both cases, however, the law applies only
to public utility aircraft in the Philippines.
Private aircrafts are not subject to the anti 1. In the course of the hi-jack, a
hi-jacking law, in so far as transporting passenger or complement was shot and
prohibited substances are concerned. killed. What crime or crimes were
committed?
If the aircraft is a passenger aircraft, the
prohibition is absolute. Carrying of any The crime remains to be a violation
prohibited, flammable, corrosive, or of the anti hi-jacking law, but the penalty
explosive substance is a crime under thereof shall be higher because a
Republic Act No. 6235. But if the aircraft is passenger or complement of the aircraft
only a cargo aircraft, the law is violated only had been killed. The crime of
when the transporting of the prohibited homicide or murder is not committed.
substance was not done in accordance with
the rules and regulations prescribed by the 2. The hi-jackers threatened to
Air Transportation Office in the matter of detonate a bomb in the course of the hi-
shipment of such things. The Board of jack. What crime or crimes were
Transportation provides the manner of committed?
packing of such kind of articles, the quantity
in which they may be loaded at any time,
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Again, the crime is violation of the held liable are only those acting under
anti hi-jacking law. The separate crime of supposed exercise of official functions,
grave threat is not committed. This is albeit illegally.
considered as a qualifying circumstance In its counterpart in Title IX (Crimes Against
that shall serve to increase the penalty. Personal Liberty and Security), the
offenders are private persons. But private
persons may also be liable under this title
TITLE II. CRIMES AGAINST THE as when a private person conspires with a
FUNDAMENTAL LAWS OF THE STATE public officer. What is required is that the
principal offender must be a public officer.
Thus, if a private person conspires with a
Crimes against the fundamental laws of the public officer, or becomes an accessory or
State accomplice, the private person also
becomes liable for the same crime. But a
1. Arbitrary detention (Art. 124); private person acting alone cannot commit
the crimes under Article 124 to 132 of this
2. Delay in the delivery of detained title.
persons to the proper judicial
authorities (Art. 125);
Article 124. Arbitrary Detention
3. Delaying release (Art. 126);
Elements
4. Expulsion (Art. 127);
1. Offender is a public officer or
5. Violation of domicile (Art. 128); employee;
10. Offending the religious feelings (Art. 3. The person detained has no ailment
133); which requires compulsory
confinement in a hospital.
(2) Having arrested the offended party any public officer can commit this crime.
for legal grounds but without warrant Only those public officers whose official
of arrest, and the public officer does duties carry with it the authority to make an
not deliver the arrested person to arrest and detain persons can be guilty of
the proper judicial authority within this crime. So, if the offender does not
the period of 12, 18, or 36 hours, as possess such authority, the crime
the case may be; or committed by him is illegal detention. A
public officer who is acting outside the
(3) Delaying release by competent scope of his official duties is no better than
authority with the same period a private citizen.
mentioned in number 2.
against him, then the crime would be or application to be filed with the proper
unlawful arrest. The detention of the driver court before 12, 18 or 36 hours lapse.
is incidental to the supposed crime he did Otherwise he has to release the person
not commit. But if there is no supposed arrested.
crime at all because the driver was not
charged at all, he was not given place under Note that the period stated herein does not
booking sheet or report arrest, then that include the nighttime. It is to be counted
means that the only purpose of the offender only when the prosecutor’s office is ready to
is to stop him from driving his jeepney receive the complaint or information.
because he refused to contribute to the
tong. This article does not apply if the arrest is
with a warrant. The situation contemplated
here is an arrest without a warrant.
Article 125. Delay in the Delivery of
Detained Persons to the Proper Judicial
Authorities Question & Answer
Elements
Within what period should a police
1. Offender is a public officer or employee; officer who has arrested a person under a
warrant of arrest turn over the arrested
2. He detains a person for some legal person to the judicial authority?
ground;
There is no time limit specified
3. He fails to deliver such person to the except that the return must be made within
proper judicial authorities within – a reasonable time. The period fixed by law
under Article 125 does not apply because
a. 12 hour for light penalties; the arrest was made by virtue of a warrant
of arrest.
b. 18 hours for correctional
penalties; and
When a person is arrested without a
c. 36 hours for afflictive or capital warrant, it means that there is no case filed
penalties. in court yet. If the arresting officer would
hold the arrested person there, he is
actually depriving the arrested of his right to
This is a form of arbitrary detention. At the bail. As long as there is no charge in the
beginning, the detention is legal since it is in court yet, the arrested person cannot obtain
the pursuance of a lawful arrest. However, bail because bail may only be granted by
the detention becomes arbitrary when the the court. The spirit of the law is to have
period thereof exceeds 12, 18 or 36 hours, the arrested person delivered to the
as the case may be, depending on whether jurisdiction of the court.
the crime is punished by light, correctional
or afflictive penalty or their equivalent. If the arrest is by virtue of a warrant, it
means that there is already a case filed in
The period of detention is 12 hours for light court. When an information is filed in court,
offenses, 18 hours for correctional offences the amount of bail recommended is stated.
and 36 hours for afflictive offences, where The accused person is not really denied his
the accused may be detained without formal right to bail. Even if he is interrogated in the
charge. But he must cause a formal charge police precinct, he can already file bail.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Note that delivery of the arrested person to where the crime was committed, there was
the proper authorities does not mean a typhoon so the suspect could not be
physical delivery or turn over of arrested brought to Manila until three days later.
person to the court. It simply means putting Was there a violation of Article 125?
the arrested person under the jurisdiction of
the court. This is done by filing the There was a violation of Article 125.
necessary complaint or information against The crime committed was arbitrary
the person arrested in court within the detention in the form of delay in the delivery
period specified in Article 125. The purpose of arrested person to the proper judicial
of this is for the court to determine whether authority. The typhoon or flood is a matter
the offense is bailable or not and if bailable, of defense to be proved by the accused, the
to allow him the right to bail. arresting officer, as to whether he is liable.
In this situation, he may be exempt under
Under the Rule 114 of the Revised Rules of paragraph 7 of Article 12.
Court, the arrested person can demand
from the arresting officer to bring him to any
judge in the place where he was arrested Before Article 125 may be applied, it is
and post the bail here. Thereupon, the necessary that initially, the detention of the
arresting officer may release him. The arrested person must be lawful because the
judge who granted the bail will just forward arrest is based on legal grounds. If the
the litimus of the case to the court trying his arrest is made without a warrant, this
case. The purpose is in order to deprive the constitutes an unlawful arrest. Article 269,
arrested person of his right to post the bail. not Article 125, will apply. If the arrest is not
based on legal grounds, the arrest is pure
Under the Revised Rules of Court, when the and simple arbitrary detention. Article 125
person arrested is arrested for a crime contemplates a situation where the arrest
which gives him the right to preliminary was made without warrant but based on
investigation and he wants to avail his right legal grounds. This is known as citizen’s
to a preliminary investigation, he would arrest.
have to waive in writing his rights under
Article 125 so that the arresting officer will
not immediately file the case with the court Article 126. Delaying Release
that will exercise jurisdiction over the case.
If he does not want to waive this in writing, Acts punished
the arresting officer will have to comply with
Article 125 and file the case immediately in 1. Delaying the performance of a
court without preliminary investigation. In judicial or executive order for the
such case, the arrested person, within five release of a prisoner;
days after learning that the case has been
filed in court without preliminary 2. Unduly delaying the service of the
investigation, may ask for preliminary notice of such order to said prisoner;
investigation. In this case, the public officer
who made the arrest will no longer be liable 3. Unduly delaying the proceedings
for violation of Article 125. upon any petition for the liberation of
such person.
2. There is a judicial or executive order The essence of this crime is coercion but
for the release of a prisoner or the specific crime is “expulsion” when
detention prisoner, or that there is a committed by a public officer. If committed
proceeding upon a petition for the by a private person, the crime is grave
liberation of such person; coercion.
In Villavicencio v. Lukban, 39 Phil 778,
3. Offender without good reason delays the mayor of the City of Manila wanted to
– make the city free from prostitution. He
ordered certain prostitutes to be transferred
a. the service of the notice of to Davao, without observing due processes
such order to the prisoner; since they have not been charged with any
crime at all. It was held that the crime
b. the performance of such committed was expulsion.
judicial or executive order for
the release of the prisoner; or
Questions & Answers
c. the proceedings upon a
petition for the release of
such person. 1. Certain aliens were arrested
and they were just put on the first aircraft
which brought them to the country so that
Article 127. Expulsion they may be out without due process of law.
Was there a crime committed?
Acts punished
Yes. Expulsion.
1. Expelling a person from the
Philippines; 2. If a Filipino citizen is sent out
of the country, what crime is committed?
2. Compelling a person to change his
residence. Grave coercion, not expulsion,
because a Filipino cannot be deported.
This crime refers only to aliens.
Elements
a. expels any person from the 1. Entering any dwelling against the will
Philippines; or of the owner thereof;
2. He is not authorized by judicial order (3) When the article seized is within
to enter the dwelling or to make a plain view of the officer making the
search therein for papers or other seizure without making a search
effects. therefore.
Under Rule 113 of the Revised Rules of (3) Refusing to leave premises after
Court, when a person to be arrested enters surreptitious entry and being told to
a premise and closes it thereafter, the leave the same. The act punished is
public officer, after giving notice of an not the entry but the refusal to leave.
arrest, can break into the premise. He shall If the offender upon being directed
not be liable for violation of domicile. to eave, followed and left, there is no
crime of violation of domicile. Entry
There are only three recognized instances must be done surreptitiously; without
when search without a warrant is this, crime may be unjust vexation.
considered valid, and, therefore, the seizure But if entering was done against the
of any evidence done is also valid. Outside will of the occupant of the house,
of these, search would be invalid and the meaning there was express or
objects seized would not be admissible in implied prohibition from entering the
evidence. same, even if the occupant does not
direct him to leave, the crime of is
(1) Search made incidental to a valid already committed because it would
arrest; fall in number 1.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
At the beginning, it may happen that the In Article 153, the offender need not
assembly is lawful and peaceful. If in the be a public officer. The essence of
course of the assembly the participants the crime is that of creating a
commit illegal acts like oral defamation or serious disturbance of any sort in a
inciting to sedition, a public officer or law public office, public building or even
enforcer can stop or dissolve the meeting. a private place where a public
The permit given is not a license to commit function is being held.
a crime.
There are two criteria to determine whether Article 132. Interruption of Religious
Article 131 would be violated: Worship
In Article 131, the offender must be There must be deliberate intent to hurt the
a public officer and, without any feelings of the faithful.
legal ground, he prohibits, interrupts,
or dissolves a peaceful meeting or
assembly to prevent the offended
party from exercising his freedom of
speech and that of the assembly to
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
TITLE III. CRIMES AGAINST PUBLIC 17. Tumults and other disturbances of
ORDER public order (Art. 153);
1. Rebellion or insurrection (Art. 134); 19. Alarms and scandals (Art. 155);
2. Conspiracy and proposal to commit 20. Delivering prisoners from jails (Art.
rebellion (Art. 136); 156);
The essence of this crime is a public D’etat), which became effective on October
uprising with the taking up of arms. It 1990. Prior to its amendment by Republic
requires a multitude of people. It aims to Act No. 6968, Article 135 punished those
overthrow the duly constituted government. “who while holding any public office or
It does not require the participation of any employment, take part therein” by any of
member of the military or national police these acts: engaging in war against the
organization or public officers and generally forces of Government; destroying property;
carried out by civilians. Lastly, the crime committing serious violence; exacting
can only be committed through force and contributions, diverting funds for the lawful
violence. purpose for which they have been
appropriated.
Rebellion and insurrection are not Since a higher penalty is prescribed for the
synonymous. Rebellion is more frequently crime of rebellion when any of the specified
used where the object of the movement is acts are committed in furtherance thereof,
completely to overthrow and supersede the said acts are punished as components of
existing government; while insurrection is rebellion and, therefore, are not to be
more commonly employed in reference to a treated as distinct crimes. The same acts
movement which seeks merely to effect constitute distinct crimes when committed
some change of minor importance, or to on a different occasion and not in
prevent the exercise of governmental furtherance of rebellion. In short, it was
authority with respect to particular matters because Article 135 then punished said acts
of subjects (Reyes, citing 30 Am. Jr. 1). as components of the crime of rebellion that
precludes the application of Article 48 of the
Revised Penal Code thereto. In the eyes of
Rebellion can now be complexed with the law then, said acts constitute only one
common crimes. Not long ago, the crime and that is rebellion. The Hernandez
Supreme Court, in Enrile v. Salazar, 186 doctrine was reaffirmed in Enrile v. Salazar
SCRA 217, reiterated and affirmed the rule because the text of Article 135 has
laid down in People v. Hernandez, 99 Phil remained the same as it was when the
515, that rebellion may not be complexed Supreme Court resolved the same issue in
with common crimes which are committed the People v. Hernandez. So the Supreme
in furtherance thereof because they are Court invited attention to this fact and thus
absorbed in rebellion. In view of said stated:
reaffirmation, some believe that it has been
a settled doctrine that rebellion cannot be “There is a an apparent need to restructure
complexed with common crimes, such as the law on rebellion, either to raise the
killing and destruction of property, penalty therefore or to clearly define and
committed on the occasion and in delimit the other offenses to be considered
furtherance thereof. absorbed thereby, so that it cannot be
conveniently utilized as the umbrella for
This thinking is no longer correct; there is every sort of illegal activity undertaken in its
no legal basis for such rule now. name. The court has no power to effect
such change, for it can only interpret the law
The statement in People v. Hernandez that as it stands at any given time, and what is
common crimes committed in furtherance of needed lies beyond interpretation.
rebellion are absorbed by the crime of Hopefully, Congress will perceive the need
rebellion, was dictated by the provision of for promptly seizing the initiative in this
Article 135 of the Revised Penal Code prior matter, which is purely within its province.”
to its amendment by the Republic Act No.
6968 (An Act Punishing the Crime of Coup
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Considering that the objective of sedition is 2. Offender does any of the following
to express protest against the government acts:
and in the process creating hate against
public officers, any act that will generate a. He disturbs any of such
hatred against the government or a public meetings;
officer concerned or a social class may
amount to Inciting to sedition. Article 142 is, b. He behaves while in the
therefore, quite broad. presence of any such bodies
in such a manner as to
The mere meeting for the purpose of interrupt its proceedings or to
discussing hatred against the government is impair the respect due it.
inciting to sedition. Lambasting government
officials to discredit the government is
Inciting to sedition. But if the objective of
such preparatory actions is the overthrow of
the government, the crime is inciting to Article 145. Violation of Parliamentary
rebellion. Immunity
Acts punished
Article 143. Acts Tending to Prevent the
Meeting of the Congress of the 1. Using force, intimidation, threats, or
Philippines and Similar Bodies frauds to prevent any member of
Congress from attending the
Elements meetings of Congress or of any of its
committees or subcommittees,
1. There is a projected or actual constitutional commissions or
meeting of Congress or any of its committees or divisions thereof, or
committees or subcommittees, from expressing his opinion or
constitutional committees or casting his vote;
divisions thereof, or of any provincial
board or city or municipal council or Elements
board;
1. Offender uses force,
2. Offender, who may be any person, intimidation, threats or fraud;
prevents such meetings by force or
fraud. 2. The purpose of the offender
is to prevent any member of
Congress from –
Article 144. Disturbance of Proceedings
a. attending the
Elements meetings of the
Congress or of any of
1. There is a meeting of Congress or its committees or
any of its committees or constitutional
subcommittees, constitutional commissions, etc.;
commissions or committees or
divisions thereof, or of any provincial b. expressing his
board or city or municipal council or opinion; or
board;
c. casting his vote.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
1. Any meeting attended by armed If any person present at the meeting carries
persons for the purpose of an unlicensed firearm, it is presumed that
committing any of the crimes the purpose of the meeting insofar as he is
punishable under the Code; concerned is to commit acts punishable
under the Revised Penal Code, and he is
Elements considered a leader or organizer of the
meeting.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Elements
2. In illegal association, it is the act of
forming or organizing and 1. Offender makes an attack,
membership in the association that employs force, makes a
are punished. serious intimidation, or
makes a serious resistance;
In illegal assembly, it is the meeting
and attendance at such meeting that 2. The person assaulted is a
are punished. person in authority or his
agent;
3. In illegal association, the persons
liable are (1) the founders, directors 3. At the time of the assault, the
and president; and (2) the members. person in authority or his
agent is engaged in the
In illegal assembly, the persons actual performance of official
liable are (1) the organizers or duties, or that he is assaulted
leaders of the meeting and (2) the by reason of the past
persons present at meeting. performance of official duties;
Acts punished
Article 149. Indirect Assault
1. By refusing, without legal excuse, to
Elements obey summons of Congress, its
special or standing committees and
1. A person in authority or his agent is subcommittees, the Constitutional
the victim of any of the forms of Commissions and its committees,
direct assault defined in Article 148; subcommittees or divisions, or by
any commission or committee
2. A person comes to the aid of such chairman or member authorized to
authority or his agent; summon witnesses;
1. Municipal mayor;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
3. Public and private school teachers; For a crime to be under this article, it must
not fall under Articles 131 (prohibition,
4. Teacher-nurse; interruption, and dissolution of peaceful
meetings) and 132 (interruption of religious
5. President of sanitary division; worship).
3. Disturbing the public peace while Scandal here does not refer to moral
wandering about at night or while scandal; that one is grave scandal in Article
engaged in any other nocturnal 200. The essence of the crime is
amusements; disturbance of public tranquility and public
peace. So, any kind of disturbance of
4. Causing any disturbance or scandal public order where the circumstance at the
in public places while intoxicated or time renders the act offensive to the
otherwise, provided Article 153 in tranquility prevailing, the crime is
not applicable. committed.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
If three persons are involved – a stranger, (1) By simply leaving or escaping from
the custodian and the prisoner – three the penal establishment under
crimes are committed: Article 157;
(1) Infidelity in the custody of prisoners; (2) Failure to return within 48 hours
after having left the penal
(2) Delivery of the prisoner from jail; and establishment because of a
calamity, conflagration or mutiny and
(3) Evasion of service of sentence. such calamity, conflagration or
mutiny has been announced as
already passed under Article 158;
Article 157. Evasion of Service of
Sentence (3) Violating the condition of conditional
pardon under Article 159.
Elements
In leaving or escaping from jail or prison,
1. Offender is a convict by final judgment; that the prisoner immediately returned is
immaterial. It is enough that he left the
2. He is serving sentence which consists in penal establishment by escaping therefrom.
the deprivation of liberty; His voluntary return may only be mitigating,
being analogous to voluntary surrender.
3. He evades service of his sentence by But the same will not absolve his criminal
escaping during the term of his liability.
imprisonment.
Article 158. Evasion of Service of
Qualifying circumstances as to penalty Sentence on the Occasion of Disorders,
imposed Conflagrations, Earthquakes, or Other
Calamities
If such evasion or escape takes place –
Elements
1. By means of unlawful entry (this
should be “by scaling” - Reyes); 1. Offender is a convict by final
judgment, who is confined in a penal
2. By breaking doors, windows, gates, institution;
walls, roofs or floors;
2. There is disorder, resulting from –
3. By using picklock, false keys,
disguise, deceit, violence or a. conflagration;
intimidation; or
b. earthquake;
4. Through connivance with other
convicts or employees of the penal c. explosion; or
institution.
d. similar catastrophe; or
Those who did not leave the penal 3. He violated any of the conditions of
establishment are not entitled to the 1/5 such pardon.
credit. Only those who left and returned
within the 48-hour period.
In violation of conditional pardon, as a rule,
The mutiny referred to in the second form of the violation will amount to this crime only if
evasion of service of sentence does not the condition is violated during the
include riot. The mutiny referred to here remaining period of the sentence. As a
involves subordinate personnel rising rule, if the condition of the pardon is violated
against the supervisor within the penal when the remaining unserved portion of the
establishment. One who escapes during a sentence has already lapsed, there will be
riot will be subject to Article 157, that is, no more criminal liability for the violation.
simply leaving or escaping the penal However, the convict maybe required to
establishment. serve the unserved portion of the sentence,
that is, continue serving original penalty.
Mutiny is one of the causes which may
authorize a convict serving sentence in the The administrative liability of the convict
penitentiary to leave the jail provided he under the conditional pardon is different and
has not taken part in the mutiny. has nothing to do with his criminal liability
for the evasion of service of sentence in the
event that the condition of the pardon has
been violated. Exception: where the
violation of the condition of the pardon will
constitute evasion of service of sentence,
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
even though committed beyond the imposed for the violation of the conditional
remaining period of the sentence. This is pardon.
when the conditional pardon expressly so
provides or the language of the conditional But if the remitted portion of the
pardon clearly shows the intention to make sentence exceeds six years, the violation of
the condition perpetual even beyond the the conditional pardon is not a substantive
unserved portion of the sentence. In such offense because no new penalty is imposed
case, the convict may be required to serve for the violation.
the unserved portion of the sentence even
though the violation has taken place when In other words, you have to qualify
the sentence has already lapsed. your answer.
In order that the conditional pardon may be The Supreme Court, however, has
violated, it is conditional that the pardonee ruled in the case of Angeles v. Jose that
received the conditional pardon. If he is this is not a substantive offense. This has
released without conformity to the been highly criticized.
conditional pardon, he will not be liable for
the crime of evasion of service of sentence.
Article 160. Commission of Another
Crime During Service of Penalty Imposed
for Another Previous Offense
Elements
12. Falsification of wireless, cable, 27. Substituting and altering trade marks
telegraph and telephone messages and trade names or service marks
and use of said falsified messages (Art. 188);
(Art. 173);
28. Unfair competition and fraudulent
13. False medical certificates, false registration of trade mark or trade
certificates of merit or service (Art. name, or service mark; fraudulent
174); designation of origin, and false
description (Art. 189).
14. Using false certificates (Art. 175);
15. Manufacturing and possession of The crimes in this title are in the nature of
instruments or implements for fraud or falsity to the public. The essence
falsification (Art. 176); of the crime under this title is that which
defraud the public in general. There is
16. Usurpation of authority or official deceit perpetrated upon the public. This is
functions (Art. 177); the act that is being punished under this
title.
17. Using fictitious name and concealing
true name (Art. 178);
Article 161. Counterfeiting the Great
18. Illegal use of uniforms or insignia Seal of the Government of the Philippine
(Art. 179);
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Islands, Forging the Signature or Stamp Kinds of coins the counterfeiting of which is
of the Chief Executive punished
1. The great seal of the Republic was 1. Mutilating coins of the legal
counterfeited or the signature or currency, with the further
stamp of the Chief Executive was requirements that there be intent to
forged by another person; damage or to defraud another;
(1) Counterfeiting coins -- This is the Yes. It is not necessary that the
crime of remaking or manufacturing coin be of legal tender. The provision
without any authority to do so. punishing counterfeiting does not require
that the money be of legal tender and the
In the crime of counterfeiting, the law is not law punishes this even if the coin concerned
concerned with the fraud upon the public is not of legal tender in order to discourage
such that even though the coin is no longer people from practicing their ingenuity of
legal tender, the act of imitating or imitating money. If it were otherwise,
manufacturing the coin of the government is people may at the beginning try their
penalized. In punishing the crime of ingenuity in imitating money not of legal
counterfeiting, the law wants to prevent tender and once they acquire expertise,
people from trying their ingenuity in their they may then counterfeit money of legal
imitation of the manufacture of money. tender.
dust and, thus, diminishing the intrinsic metal dust. However, under Presidential
value of the coin. Decree No. 247, mutilation is not limited to
coins.
Mutilation of coins is a crime only if the coin
mutilated is legal tender. If the coin whose
metal content has been depreciated Questions & Answers
through scraping, scratching, or filing the
coin and the offender collecting the precious
metal dust, even if he would use the coin 1. The people playing cara y
after its intrinsic value had been reduced, cruz, before they throw the coin in the air
nobody will accept the same. If it is not would rub the money to the sidewalk
legal tender anymore, no one will accept it, thereby diminishing the intrinsic value of the
so nobody will be defrauded. But if the coin coin. Is the crime of mutilation committed?
is of legal tender, and the offender
minimizes or decreases the precious metal Mutilation, under the Revised Penal
dust content of the coin, the crime of Code, is not committed because they do not
mutilation is committed. collect the precious metal content that is
being scraped from the coin. However, this
In the example, if the offender has collected will amount to violation of Presidential
1/10 of the P 2.00 coin, the coin is actually Decree No. 247.
worth only P 1.80. He is paying only P1.80
in effect defrauding the seller of P .20. 2. When the image of Jose
Punishment for mutilation is brought about Rizal on a five-peso bill is transformed into
by the fact that the intrinsic value of the coin that of Randy Santiago, is there a violation
is reduced. of Presidential Decree No. 247?
The offender must deliberately reduce the Yes. Presidential Decree No. 247 is
precious metal in the coin. Deliberate intent violated by such act.
arises only when the offender collects the
precious metal dust from the mutilated coin. 3. Sometime before martial law
If the offender does not collect such dust, was imposed, the people lost confidence in
intent to mutilate is absent, but Presidential banks that they preferred hoarding their
Decree No. 247 will apply. money than depositing it in banks. Former
President Ferdinand Marcos declared upon
declaration of martial law that all bills
Presidential Decree No. 247 without the Bagong Lipunan sign on them
(Defacement, Mutilation, Tearing, will no longer be recognized. Because of
Burning or Destroying Central Bank this, the people had no choice but to
Notes and Coins) surrender their money to banks and
exchange them with those with the Bagong
It shall be unlawful for any person to willfully Lipunan sign on them. However, people
deface, mutilate, tear, burn, or destroy in who came up with a lot of money were also
any manner whatsoever, currency notes being charged with hoarding for which
and coins issued by the Central Bank. reason certain printing presses did the
stamping of the Bagong Lipunan sign
themselves to avoid prosecution. Was
Mutilation under the Revised Penal Code is there a violation of Presidential Decree No.
true only to coins. It cannot be a crime 247?
under the Revised Penal Code to mutilate
paper bills because the idea of mutilation
under the code is collecting the precious
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Yes. This act of the printing presses So, if the act of mutilating coins does not
is a violation of Presidential Decree No. involve gathering dust like playing cara y
247. cruz, that is not mutilation under the
Revised Penal Code because the offender
4. An old woman who was a does not collect the metal dust. But by
cigarette vendor in Quiapo refused to rubbing the coins on the sidewalk, he also
accept one-centavo coins for payment of defaces and destroys the coin and that is
the vendee of cigarettes he purchased. punishable under Presidential Decree No.
Then came the police who advised her that 247.
she has no right to refuse since the coins
are of legal tender. On this, the old woman
accepted in her hands the one-centavo Article 165. Selling of False or Mutilated
coins and then threw it to the face of the Coin, without Connivance
vendee and the police. Was the old woman
guilty of violating Presidential Decree No. Acts punished
247?
1. Possession of coin, counterfeited or
She was guilty of violating mutilated by another person, with
Presidential Decree No. 247 because if no intent to utter the same, knowing
one ever picks up the coins, her act would that it is false or mutilated;
result in the diminution of the coin in
circulation. Elements
No. Forgery was not committed. printing on the twenty-peso bill was
The forged instrument and currency note reproduced on the mimeo paper. He took
must be given the appearance of a true and the reverse side of the P20 bill, applied
genuine document. The crime committed is toothache drops and reversed the mimeo
a violation of Presidential Decree No. 247. paper and pressed it to the paper. After
Where the currency note, obligation or sometime, he removed it and it was
security has been changed to make it reproduced. He cut it out, scraped it a little
appear as one which it purports to be as and went to a sari-sari store trying to buy a
genuine, the crime is forgery. In checks or cigarette with that bill. What he overlooked
commercial documents, this crime is was that, when he placed the bill, the
committed when the figures or words are printing was inverted. He was apprehended
changed which materially alters the and was prosecuted and convicted of
document. forgery. Was the crime of forgery
committed?
2. An old man, in his desire to
earn something, scraped a digit in a losing The Supreme Court ruled that it was
sweepstakes ticket, cut out a digit from only frustrated forgery because although
another ticket and pasted it there to match the offender has performed all the acts of
the series of digits corresponding to the execution, it is not possible because by
winning sweepstakes ticket. He presented simply looking at the forged document, it
this ticket to the Philippine Charity could be seen that it is not genuine. It can
Sweepstakes Office. But the alteration is so only be a consummated forgery if the
crude that even a child can notice that the document which purports to be genuine is
supposed digit is merely superimposed on given the appearance of a true and genuine
the digit that was scraped. Was the old document. Otherwise, it is at most
man guilty of forgery? frustrated.
(4) Private document in the execution of 1. Offender committed any of the acts of
which only private individuals take falsification except Article 171(7),
part. that is, issuing in an authenticated
form a document purporting to be a
Public document is broader than the term copy of an original document when
official document. Before a document may no such original exists, or including
be considered official, it must first be a in such a copy a statement contrary
public document. But not all public to, or different from, that of the
documents are official documents. To genuine original;
become an official document, there must be
a law which requires a public officer to issue 2. Falsification was committed in any
or to render such document. Example: A private document;
cashier is required to issue an official
receipt for the amount he receives. The 3. Falsification causes damage to a third
official receipt is a public document which is party or at least the falsification was
an official document. committed with intent to cause such
damage.
Acts punished
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Article 178. Using Fictitious Name and Article 179. Illegal Use of Uniforms or
Concealing True Name Insignia
Elements
Article 186. Monopolies and
Combinations in Restraint of Trade 1. Manufacturer, producer,
processor or importer of any
Acts punished merchandise or object of
commerce;
1. Combination to prevent free
competition in the market; 2. Combines, conspires or
agrees with any person;
Elements
3. Purpose is to make
1. Entering into any contract or transactions prejudicial to
agreement or taking part in lawful commerce or to
any conspiracy or increase the market price of
combination in the form of a any merchandise or object of
trust or otherwise; commerce manufactured,
produced, processed,
2. In restraint of trade or assembled or imported into
commerce or to prevent by the Philippines.
artificial means free
competition in the market.
Article 187. Importation and Disposition
2. Monopoly to restrain free of Falsely Marked Articles or
competition in the market; Merchandise Made of Gold, Silver, or
Other Precious Metals of Their Alloys
Elements
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Elements
Article 189. Unfair Competition,
1. Offender imports, sells or disposes Fraudulent Registration of Trade Name,
articles made of gold, silver, or other Trademark, or Service Mark, Fraudulent
precious metals or their alloys; Designation of Origin, and False
Description
2. The stamps, brands, or marks of
those articles of merchandise fail to Acts punished
indicate the actual fineness or
quality of said metals or alloys; 1. Unfair competition;
believe that the goods offered are those of a goods, services or commercial activities,
manufacturer or dealer, other than the shall be liable to a civil action for damages
actual manufacturer or dealer, or who and injunction provided in Section 156 and
otherwise clothes the goods with such 157 of this Act by any person who believes
appearance as shall deceive the public and that he or she is or likely to be damaged by
defraud another of his legitimate trade, or such act.
any subsequent vendor of such goods or
any agent of any vendor engaged in selling
such goods with a like purpose; or TITLE V. CRIMES RELATIVE TO OPIUM
AND OTHER PROHIBITED DRUGS
(b) Any person who by any
artifice, or device, or who employs any other
means calculated to induce the false belief Articles 190, 191, 192, 193 and194 of the
that such person is offering the services of Revised Penal Code have been repealed by
another who ahs identified such services in Republic Act No. 6425 (The Dangerous
the mind of the public; or Drugs Act of 1972), as amended by
Presidential Decree No. 1683 and further
(c) Any person who shall make amended by Republic Act No. 7659.
any false statement in the course of trade or
who shall commit any other act contrary to
good faith of a nature calculated to discredit Acts punished by the Republic Act No. 6425
the goods, business or services of another.
1. Importation of prohibited drugs;
168.4. The remedies provided by
Section 156, 157 and 161 shall apply 2. Sale, administration, delivery,
mutatis mutandis. distribution and transportation of
prohibited drugs;
Section 169. False Designation or
Origin; False Description or Representation. 3. Maintenance of a den, dive or resort for
prohibited drug users;
169.1. Any person who, on or in
connection with any goods or services, or 4. Being employees and visitors of
any container for goods, uses in commerce prohibited drug den;
any word, term, name, symbol, or device, or
any combination thereof, or any false 5. Manufacture of prohibited drugs;
designation of origin, false or misleading
description of fact, or false or misleading
representation of fact, which:
6. Possession or use of prohibited drugs;
11. Possession of opium pipe and other 1. Taking part directly or indirectly in –
paraphernalia for prohibited drugs;
a. any game of monte, jueteng,
12. Unauthorized importation, or any other form of lottery,
manufacture, sale administration, policy, banking, or
dispensation, delivery, percentage game, dog races,
transportation, distribution, or any other game or scheme
possession or use of regulated the results of which depend
drugs, failure to comply with the wholly or chiefly upon chance
provisions of the Act relative to the or hazard; or wherein wagers
keeping of records of prescriptions, consisting of money, articles
sales, purchases, acquisitions of value, or representative of
and/or deliveries, unlawful value are made; or
prescription, unnecessary
prescription of regulated drugs, and b. the exploitation or use of any
maintenance of a den, dive or resort other mechanical invention or
for regulated drug users. contrivance to determine by
chance the loser or winner of
money or any object or
TITLE VI. CRIMES AGAINST PUBLIC representative of value;
MORALS
2. Knowingly permitting any form of
gambling to be carried on in any
Crimes against public morals place owned or controlled by the
offender;
1. Gambling (Art. 195);
3. Being maintainer, conductor, or
banker in a game of jueteng or
2. Importation, sale and possession of
similar game;
lottery tickets or advertisements (Art.
196);
4. Knowingly and without lawful
purpose possessing lottery list,
3. Betting in sport contests (Art. 197); paper, or other matter containing
letters, figures, signs or symbol
4. Illegal betting on horse races (Art. 198); which pertain to or are in any
manner used in the game of jueteng
5. Illegal cockfighting (Art. 199); or any similar game.
3. Possessing, knowingly and with intent to When horse races not allowed
use them, lottery tickets or
advertisements; or 1. July 4 (Republic Act No. 137);
4. Selling or distributing the same without 2. December 30 (Republic Act No. 229);
connivance with the importer of the
same. 3. Any registration or voting days (Republic
Act No. 180, Revised Election
Code); and
Note that possession of any lottery ticket or
advertisement is prima facie evidence of an 4. Holy Thursday and Good Friday
intent to sell, distribute or use the same in (Republic Act No. 946).
the Philippines.
Presidential Decree No. 1602 penalty provided for in its maximum period
(Simplifying and Providing Stiffer and a fine of Six Thousand Pesos.
Penalties for Violations of Philippine
Gambling Laws) The penalty of prision correccional
in its maximum degree and a fine of Six
Section 1. Violations and Penalties. Thousand Pesos shall be imposed upon the
-- The penalty of prision mayor in its maintainer, conductor of the above
medium degree or a fine ranging from Five gambling schemes.
Hundred Pesos to Two Thousand Pesos
and in case of recidivism the penalty of The penalty of prision mayor in its
prision correccional in its medium degree or medium degree and temporary absolute
a fine of ranging from One Thousand Pesos disqualification and a fine of Six Thousand
to Six Thousand Pesos shall be imposed Pesos shall be imposed if the maintainer,
upon: conductor or banker is a government
official, or if a player, promoter, referee,
(a) Any person other than those umpire, judge or coach in cases of game-
referred to in the succeeding subsection fixing, point-shaving and other game
who in any manner, shall directly or machination.
indirectly take part in any game of
cockfighting, jueteng, bookies (jai- alai or The penalty of prision correccional
horse racing to include game fixing) and in its medium degree and a fine ranging
other lotteries, cara y cruz or pompiang and from Five Hundred pesos to Two Thousand
the like, black jack, lucky nine, “pusoy” or Pesos shall be imposed upon any person
Russian Poker, monte, baccarat and other who shall knowingly and without lawful
card games, palk que, domino, mahjong, purpose in any hour of any day shall have in
high and low, slot machines, roulette, pinball his possession any lottery list, paper, or
and other mechanical inventories or other matter containing letter, figures, signs
devices, dog racing, boat racing, car raising or symbols which pertain to or in any
and other races, basketball, volleyball, manner used in the game of jueteng, jai-alai
boxing, seven-eleven dice games and the or horse racing bookies and similar game or
like and other contests to include game lottery which has taken place or about to
fixing, point shaving and other machinations take place.
banking or percentage game, or any other
game or scheme, whether upon chance or Section 2. Barangay Official. –
skill, which do not have a franchise from the Any barangay official in whose jurisdiction
national government, wherein wagers such gambling house is found and which
consisting of money, articles of value of house has the reputation of a gambling
representative of value are made; place shall suffer the penalty of prision
correccional in its medium period and a fine
(b) Any person who shall ranging from Five Hundred to Two
knowingly permit any form of gambling Thousand Pesos and temporary absolute
referred to in the preceding subdivision to disqualifications.
be carried on in inhabited or uninhabited
places or any building, vessel or other
means of transportation owned or controlled While the acts under the Revised Penal
by him. If the place where gambling is Code are still punished under the new law,
carried on has a reputation of a gambling yet the concept of gambling under it has
place or that prohibited gambling is been changed by the new gambling law.
frequently carried on therein or the place is
a public or government building or barangay Before, the Revised Penal Code considered
hall, the culprit shall be punished by the the skill of the player in classifying whether
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
a game is gambling or not. But under the X was accused one night and found in his
new gambling law, the skill of the players is possession was a list of jueteng. If the date
immaterial. therein refers to the past, X cannot be
convicted of gambling or illegal possession
Any game is considered gambling where of lottery list without proving that such game
there are bets or wagers placed with the was indeed played on the date stated.
hope to win a prize therefrom. Mere possession is not enough. If the date
refers to the future, X can be convicted by
Under this law, even sports contents like the mere possession with intent to use.
boxing, would be gambling insofar as those This will already bring about criminal liability
who are betting therein are concerned. and there is no need to prove that the game
Under the old penal code, if the skill of the was played on the date stated. If the
player outweighs the chance or hazard possessor was caught, chances are he will
involved in winning the game, the game is not go on with it anymore.
not considered gambling but a sport. It was
because of this that betting in boxing and There are two criteria as to when the lottery
basketball games proliferated. is in fact becomes a gambling game:
“Unless authorized by a franchise, any form 1. If the public is made to pay not only
of gambling is illegal.” So said the court in for the merchandise that he is
the recent resolution of the case against the buying, but also for the chance to
operation of jai-alai. win a prize out of the lottery, lottery
becomes a gambling game. Public
There are so-called parlor games which is made to pay a higher price.
have been exempted from the operation of
the decree like when the games are played 2. If the merchandise is not saleable
during a wake to keep the mourners awake because of its inferior quality, so that
at night. Pursuant to a memorandum the public actually does not buy
circular issued by the Executive Branch, the them, but with the lottery the public
offshoot of the exemption is the intentional starts patronizing such merchandise.
prolonging of the wake of the dead by In effect, the public is paying for the
gambling lords. lottery and not for the merchandise,
and therefore the lottery is a
As a general rule, betting or wagering gambling game. Public is not made
determines whether a game is gambling or to pay a higher price.
not. Exceptions: These are games which
are expressly prohibited even without bets. Illustrations:
Monte, jueteng or any form of lottery; dog
races; slot machines; these are habit- (1) A certain supermarket wanted to
forming and addictive to players, bringing increase its sales and sponsored a
about the pernicious effects to the family lottery where valuable prices are
and economic life of the players. offered at stake. To defray the cost
of the prices offered in the lottery,
Mere possession of lottery tickets or lottery the management increased their
lists is a crime punished also as part of prices of the merchandise by 10
gambling. However, it is necessary to make cents each. Whenever someone
a distinction whether a ticket or list refers to buys from that supermarket, he pays
a past date or to a future date. 10 cents more for each merchandise
and for his purchase, he gets a
Illustration: coupon which is to be dropped at
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
(2) The merchandise is not really 2. Such act or acts be highly scandalous
saleable because of its inferior as offending against decency or
quality. A certain manufacturer, good customs;
Bhey Company, manufacture
cigarettes which is not saleable 3. The highly scandalous conduct is not
because the same is irritating to the expressly falling within any other
throat, sponsored a lottery and a article of this Code; and
coupon is inserted in every pack of
cigarette so that one who buys it
shall have a chance to participate.
Due to the coupons, the public
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
4. The act or acts complained of be balcony and while there the man
committed in a public place or within started performing acts of
the public knowledge or view. lasciviousness on the woman.
This is an act which even though Article 202. Vagrants and Prostitutes;
done in a private place is Penalty
nonetheless open to public view.
Vagrants
Article 201. Immoral Doctrines, Obscene 1. Any person having no apparent means
Publications and Exhibitions and of subsistence, who has the physical
Indecent Shows ability to work and who neglects to
apply himself or herself to some
Acts punished lawful calling;
1. Those who shall publicly expound or 2. Any person found loitering about public
proclaim doctrines openly contrary to or semi-public buildings or places or
public morals; trampling or wandering about the
country or the streets without visible
2. a. The authors of obscene means of support;
literature, published with their
knowledge in any form, the editors 3. Any idle or dissolute person who ledges
publishing such literature; and the in houses of ill fame;
owners/operators of the
establishment selling the same; 4. Ruffians or pimps and those who
habitually associate with prostitutes;
b. Those who, in theaters, fairs,
cinematographs, or any other place, 5. Any person who, not being included in
exhibit indecent or immoral plays, the provisions of other articles of this
scenes, acts, or shows, it being Code, shall be found loitering in any
understood that the obscene inhabited or uninhabited place
literature or indecent or immoral belonging to another without any
plays, scenes, acts or shows, lawful or justifiable purpose;
whether live or in film, which are
proscribed by virtue hereof, shall 6. Prostitutes, who are women who, for
include those which: (1) glorify money or profit, habitually indulge in
criminals or condone crimes; (2) sexual intercourse or lascivious
serve no other purpose but to satisfy conduct.
the market for violence, lust or
pornography; (3) offend any
race, or religion; (4) tend to abet Prostitutes are women who, for money or
traffic in and use of prohibited profit, habitually indulge in sexual
drugs; and (5) are contrary to law, intercourse or lascivious conduct, are
public order, morals, good customs, deemed to be prostitutes.
established policies, lawful orders,
decrees and edicts; and Test of Obscenity: Whether or not the
material charged as obscene has the
3. Those who shall sell, give away, or tendency to deprave and corrupt the minds
exhibit films, prints, engravings, of those open to the influence thereof, or
sculptures, or literature which are into whose hands such material may come
offensive to morals. to (Kottinger Rule).
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
The test is objective. It is more on the effect In People v. Aparici, the accused was a
upon the viewer and not alone on the performer in the defunct Pacific Theatre, a
conduct of the performer. movie house which opens only at midnight.
She was arrested because she was dancing
If the material has the tendency to deprave in a “different kind of way.” She was not
and corrupt the mind of the viewer then the really nude. She was wearing some sort of
same is obscene and where such obscenity an abbreviated bikini with a flimsy cloth over
is made publicly, criminal liability arises. it. However, on her waist hung a string with
a ball reaching down to her private part so
Because there is a government body which that every time she gyrates, it arouses the
deliberates whether a certain exhibition, audience when the ball would actually touch
movies and plays is pornographic or not, if her private part. The defense set up by
such body approves the work the same Aparici was that she should not be
should not be charged under this title. criminally liable for as a matter of fact, she
Because of this, the test of obscenity may is better dressed than the other dancers.
be obsolete already. If allowed by the The Supreme Court ruled that it is not only
Movies and Television Review and the display of the body that gives it a
Classification Board (MTRCB), the question depraved meaning but rather the movement
is moot and academic. of the body coupled with the “tom-tom
drums” as background. Nudity alone is not
The law is not concerned with the moral of the real scale. (Reaction Test)
one person. As long as the pornographic
matter or exhibition is made privately, there Illustration:
is no crime committed under the Revised
Penal Code because what is protected is A sidewalk vendor was arrested and
the morality of the public in general. Third prosecuted for violation of Article 201. It
party is there. Performance of one to appears that the fellow was selling a ballpen
another is not. where one who buys the ballpen can peep
into the top of the pen and see a girl
Illustration: dancing in it. He put up the defense that he
is not the manufacturer and that he was
A sexy dancing performed for a 90 year old merely selling it to earn a living. The fact of
is not obscene anymore even if the dancer selling the ballpen was being done at the
strips naked. But if performed for a 15 year expense of public morals. One does not
old kid, then it will corrupt the kid’s mind. have to be the manufacturer to be criminally
(Apply Kottinger Rule here.) liable. This holds true for those printing or
selling Playboy Magazines.
In some instances though, the Supreme
Court did not stick to this test. It also The common concept of a vagrant is a
considered the intention of the performer. person who loiters n public places without
any visible means of livelihood and without
any lawful purpose.
Vagrancy is not only a crime of the (3) Vagrancy under Article 202 if the
privileged or the poor. The law punishes estate is not fenced or there is no
the act involved here as a stepping stone to clear prohibition against entering.
the commission of other crimes. Without
this article, law enforcers would have no
way of checking a person loitering in the Prostitution and vagrancy are both punished
wrong place in the wrong time. The by the same article, but prostitution can only
purpose of the law is not simply to punish a be committed by a woman.
person because he has no means of
livelihood; it is to prevent further criminality. The term prostitution is applicable to a
Use this when someone loiters in front of woman who for profit or money habitually
your house every night. engages in sexual or lascivious conduct. A
man if he engages in the same conduct –
Any person found wandering in an estate sex for money – is not a prostitute, but a
belonging to another whether public or vagrant.
private without any lawful purpose also
commits vagrancy, unless his acts In law the mere indulging in lascivious
constitutes some other crime in the Revised conduct habitually because of money or
Penal Code. gain would amount to prostitution, even if
there is no sexual intercourse. Virginity is
not a defense. Habituality is the controlling
factor; is has to be more than one time.
Question & Answer
There cannot be prostitution by conspiracy.
If a person is found wandering in an One who conspires with a woman in the
estate belonging to another, whether public prostitution business like pimps, taxi drivers
or private, without any lawful purpose, what or solicitors of clients are guilty of the crime
other crimes may be committed? under Article 341 for white slavery.
18. Illegal use of public funds or property 35. Abandonment of office or position
(Art. 220); (Art. 238);
19. Failure to make delivery of public 36. Usurpation of legislative powers (Art.
funds or property (Art. 221); 239);
21. Evasion through negligence (Art. 38. Usurpation of judicial functions (Art.
224); 241);
1. Offender is a judge;
Malice must be proven. Malice is present
2. He performs any of the following acts: where the delay is sought to favor one party
to the prejudice of the other.
a. Knowingly rendering an
unjust interlocutory order or These have been interpreted by the
decree; or Supreme Court to refer only to judges of the
trial court.
b. Rendering a manifestly
unjust interlocutory order or
decree through inexcusable Article 208. Prosecution of Offenses;
negligence or ignorance. Negligence and Tolerance
Acts Punished
The crime of knowingly rendering an unjust
judgment, or knowingly issuing an unjust 1. Maliciously refraining from instituting
interlocutory order, may be committed only prosecution against violators of the
by a judge of a trial court and never of an law;
appellate court. The reason for this is that
in appellate court, not only one magistrate 2. Maliciously tolerating the
renders or issues the interlocutory order. commission of offenses.
An appellate court functions as a division
and the resolutions thereof are handed
down only after deliberations among the Elements of dereliction of duty in the
members of a division so that it cannot be prosecution of offenses
said that there is malice or inexcusable
negligence or ignorance in the rendering of 1. Offender is a public officer or officer of
a judgment or order that is supposedly the law who has a duty to cause the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
(3) He may be held liable for violating But in the crime of theft or robbery, where
the Anti-Graft and Corrupt Practices the policeman shared in the loot and
Act. allowed the offender to go free, he becomes
a fence. Therefore, he is considered an
However, in distant provinces or offender under the Anti-Fencing Law.
municipalities where there are no municipal
attorneys, the local chief of police is the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Relative to this crime under Article 208, amount to direct bribery, not qualified
consider the crime of qualified bribery. bribery.
Among the amendments made by Republic
Act No. 7659 on the Revised Penal Code is If the crime was qualified bribery, the
a new provision which reads as follows: dereliction of the duty punished under
Article 208 of the Revised Penal Code
Article. 211-A. should be absorbed because said article
Qualified Bribery – If any punishes the public officer who “maliciously
public officer is entrusted refrains from instituting prosecution for the
with law enforcement and he punishment of violators of the law or shall
refrains from arresting or tolerate the commission of offenses”. The
prosecuting an offender who dereliction of duty referred to is necessarily
has committed a crime included in the crime of qualified bribery.
punishable by Reclusion
Perpetua and/or death in On the other hand, if the crime was direct
consideration of any offer, bribery under Article 210 of the Revised
promise, gift, or present, he Penal Code, the public officer involved
shall suffer the penalty for should be prosecuted also for the
the offense which was not dereliction of duty, which is a crime under
prosecuted. Article 208 of the Revised Penal Code,
because the latter is not absorbed by the
If it is the public crime of direct bribery. This is because in
officer who asks or demands direct bribery, where the public officer
such gift or present, he shall agreed to perform an act constituting a
suffer the penalty of death. crime in connection with the performance of
his official duties, Article 210 expressly
provides that the liabilty thereunder shall be
Actually the crime is a kind of direct bribery “in addition to the penalty corresponding to
where the bribe, offer, promise, gift or the crime agreed upon, if the crime shall
present has a consideration on the part of have been committed.
the public officer, that is refraining from
arresting or prosecuting the offender in Illustration:
consideration for such offer, promise, gift or
present. In a way, this new provision A fiscal, for a sum of money, refrains from
modifies Article 210 of the Revised Penal prosecuting a person charged before him.
Code on direct bribery. If the penalty for the crime involved is
reclusion perpetua, the fiscal commits
However, the crime of qualified bribery may qualified bribery. If the crime is punishable
be committed only by public officers by a penalty lower than reclusion perpetua,
“entrusted with enforcement” whose official the crime is direct bribery.
duties authorize then to arrest or prosecute
offenders. Apparently, they are peace In the latter situation, three crimes are
officers and public prosecutors since the committed: direct bribery and dereliction of
nonfeasance refers to “arresting or duty on the part of the fiscal; and corruption
prosecuting.” But this crime arises only of a public officer by the giver.
when the offender whom such public officer
refrains from arresting or prosecuting, has
committed a crime punishable by reclusion Article 209. Betrayal of Trust by An
perpetua and/or death. If the crime were Attorney or Solicitor – Revelation of
punishable by a lower penalty, then such Secrets
nonfeasance by the public officer would
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Acts punished
Illustration:
1. Causing damage to his client, either—
B, who is involved in the crime of seduction
a. By any malicious breach of wanted A, an attorney at law, to handle his
professional duty; case. A received confidential information
from B. However, B cannot pay the
b. By inexcusable negligence or professional fee of A. C, the offended
ignorance. party, came to A also and the same was
accepted.
Note: When the attorney acts with
malicious abuse of his employment A did not commit the crime under Article
or inexcusable negligence or 209, although the lawyer’s act may be
ignorance, there must be damage to considered unethical. The client-lawyer
his client. relationship between A and B was not yet
established. Therefore, there is no trust to
2. Revealing any of the secrets of his violate because B has not yet actually
client learned by him in his engaged the services of the lawyer A. A is
professional capacity; not bound to B. However, if A would reveal
the confidential matter learned by him from
3. Undertaking the defense of the B, then Article 209 is violated because it is
opposing party in the same case, enough that such confidential matters were
without the consent of his first client, communicated to him in his professional
after having undertaken the defense capacity, or it was made to him with a view
of said first client of after having to engaging his professional services.
received confidential information
from said client. Here, matters that are considered
confidential must have been said to the
lawyer with the view of engaging his
Under the rules on evidence, services. Otherwise, the communication
communications made with prospective shall not be considered privileged and no
clients to a lawyer with a view to engaging trust is violated.
his professional services are already
privileged even though the client-lawyer Illustration:
relationship did not eventually materialize
because the client cannot afford the fee A went to B, a lawyer/notary public, to have
being asked by the lawyer. The lawyer and a document notarized. A narrated to B the
his secretary or clerk cannot be examined detail of the criminal case. If B will disclose
thereon. what was narrated to him there is no
betrayal of trust since B is acting as a
That this communication with a prospective notary public and not as a counsel. The
client is considered privileged, implies that lawyer must have learned the confidential
the same is confidential. Therefore, if the matter in his professional capacity.
lawyer would reveal the same or otherwise
accept a case from the adverse party, he Several acts which would make a lawyer
would already be violating Article 209. criminally liable:
Mere malicious breach without damage is
not violative of Article 209; at most he will (1) Maliciously causing damage to his
be liable administratively as a lawyer, e.g., client through a breach of his
suspension or disbarment under the Code professional duty. The breach of
of Professional Responsibility. professional duty must be malicious.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
(5) Undertaking the defense of the Professional duties – Lawyer must appear
opposite party in a case without the on time. But the client must have suffered
consent of the first client whose damage due to the breach of professional
defense has already been duty. Otherwise, the lawyer cannot be held
undertaken. liable.
Note that only numbers 1, 2 and 3 must If the prosecutor was tardy and the case
approximate malice. was dismissed as non-prosecuted, but he
filed a motion for consideration which was
A lawyer who had already undertaken the granted, and the case was continued, the
case of a client cannot later on shift to the lawyer is not liable, because the client did
opposing party. This cannot be done. not suffer damage.
It is not the duty of the lawyer to give advice Breach of confidential relation
on the commission of a future crime. It is,
therefore, not privileged in character. The Revealing information obtained or taking
lawyer is not bound by the mandate of advantage thereof by accepting the
privilege if he reports such commission of a engagement with the adverse party. There
future crime. It is only confidential is no need to prove that the client suffered
information relating to crimes already damages. The mere breach of confidential
committed that are covered by the crime of relation is punishable.
betrayal of trust if the lawyer should
undertake the case of opposing party or In a conjugal case, if the lawyer disclosed
otherwise divulge confidential information of the confidential information to other people,
a client. he would be criminally liable even though
the client did not suffer any damage.
Under the law on evidence on privileged
communication, it is not only the lawyer who The client who was suing his wife disclosed
is protected by the matter of privilege but that he also committed acts of
also the office staff like the secretary. unfaithfulness. The lawyer talked about this
to a friend. He is, thus, liable.
The nominal liability under this article may
be constituted either from breach of
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
what originally would have been indirect stenographic notes. The court
bribery becomes direct bribery. stenographer agreed and he
demanded P 2,000.00.
In direct bribery, consider whether the
official act, which the public officer agreed Unknown to them, there were law
to do, is a crime or not. enforcers who already had a tip that
the court stenographer had been
If it will amount to a crime, it is not doing this before. So they were
necessary that the corruptor should deliver waiting for the chance to entrap him.
the consideration or the doing of the act. They were apprehended and they
The moment there is a meeting of the said they have not done anything
minds, even without the delivery of the yet.
consideration, even without the public
officer performing the act amounting to a Under Article 210, the mere
crime, bribery is already committed on the agreement to commit the act, which
part of the public officer. Corruption is amounts to a crime, is already
already committed on the part of the bribery. That stenographer
supposed giver. The reason is that the becomes liable already for
agreement is a conspiracy involving the consummated crime of bribery and
duty of a public officer. The mere the party who agreed to give that
agreement is a felony already. money is already liable for
consummated corruption, even
If the public officer commits the act which though not a single centavo is
constitutes the crime, he, as well as the delivered yet and even though the
corruptor shall be liable also for that other stenographer had not yet made the
crime. alterations.
The public official does not undertake to Presidential Decree No. 46 prohibits giving
perform an act or abstain from doing an and acceptance of gifts by a public officer or
official duty from what he received. Instead, to a public officer, even during anniversary,
the official simply receives or accepts gifts or when there is an occasion like Christmas,
or presents delivered to him with no other New Year, or any gift-giving anniversary.
reason except his office or public position. The Presidential Decree punishes both
This is always in the consummated stage. receiver and giver.
There is no attempted much less frustrated
stage in indirect bribery. The prohibition giving and receiving gifts
given by reason of official position,
The Supreme Court has laid down the rule regardless of whether or not the same is for
that for indirect bribery to be committed, the past or future favors.
public officer must have performed an act of
appropriating of the gift for himself, his The giving of parties by reason of the
family or employees. It is the act of promotion of a public official is considered a
appropriating that signifies acceptance. crime even though it may call for a
Merely delivering the gift to the public officer celebration. The giving of a party is not
does not bring about the crime. Otherwise limited to the public officer only but also to
it would be very easy to remove a public any member of his family.
officer: just deliver a gift to him.
(5) That the information has not been Short of the amount, plunder does not arise.
convicted previously for any crime Any amount less than P50,000,000.00 is a
involving moral turpitude. violation of the Revised Penal Code or the
Anti-Graft and Corrupt Practices Act.
These conditions are analogous to the
conditions under the State Witness Rule Under the law on plunder, the prescriptive
under Criminal Procedure. period is 20 years commencing from the
time of the last overt act.
The immunity granted the bribe-giver is
limited only to the illegal transaction where Plunder is committed through a combination
the informant gave voluntarily the testimony. or series of overt acts:
If there were other transactions where the
informant also participated, he is not (1) Through misappropriation,
immune from prosecution. The immunity in conversion, misuse, or malversation
one transaction does not extend to other of public funds or raids on the public
transactions. treasury;
the case may be, is not one of those crimes for forfeiture of the ill-gotten wealth in
mentioned under the third paragraph of violation of the Anti-Graft and Corrupt
Article 19 of the Revised Penal Code. Practices Act. The proceedings are civil and
not criminal in nature.
Where the public officer is still incumbent,
the prosecution shall be with the Any taxpayer having knowledge that a
Ombudsman. public officer has amassed wealth out of
proportion to this legitimate income may file
Where the respondent is separated from a complaint with the prosecutor’s office of
service and the period has not yet the place where the public officer resides or
prescribed, the information shall be filed in holds office. The prosecutor conducts a
any prosecution’s office in the city where preliminary investigation just like in a
the respondent resides. The prosecution criminal case and he will forward his
shall file the case in the Regional Trial Court findings to the office of the Solicitor General.
unless the violation carries a penalty higher The Solicitor General will determine whether
than prision correccional, in which case the there is reasonable ground to believe that
Sandiganbayan has jurisdiction. the respondent has accumulated an
unexplained wealth.
The fact that the government benefited out
of the prohibited act is no defense at all, the If the Solicitor General finds probable
violation being mala prohibita. cause, he would file a petition requesting
the court to issue a writ commanding the
Section 3 (f) of the Anti-Graft and Corrupt respondent to show cause why the ill-gotten
Practices Act – where the public officer wealth described in the petition should not
neglects or refuses to act on a matter be forfeited in favor of the government. This
pending before him for the purpose of is covered by the Rules on Civil Procedure.
obtaining any pecuniary or material benefit The respondent is given 15 days to answer
or advantage in favor of or discriminating the petition. Thereafter trial would proceed.
against another interested party. Judgment is rendered and appeal is just like
in a civil case. Remember that this is not a
The law itself additionally requires that the criminal proceeding. The basic difference is
accused’s dereliction, besides being without that the preliminary investigation is
justification, must be for the purpose of conducted by the prosecutor.
obtaining from any person interested in the
matter some pecuniary or material benefit
or for the purpose of favoring any interested Article 212. Corruption of Public
party, or discriminating against another Officials
interested party. This element is
indispensable.
1. Entering into an agreement with any The essence of this crime is making the
interested party or speculator or government pay for something not received
making use of any other scheme, to or making it pay more than what is due. It is
defraud the government, in dealing also committed by refunding more than the
with any person with regard to amount which should properly be refunded.
furnishing supplies, the making of This occurs usually in cases where a public
contracts, or the adjustment or officer whose official duty is to procure
settlement of accounts relating to supplies for the government or enter into
public property or funds; contract for government transactions,
connives with the said supplier with the
2. Demanding, directly or indirectly, the intention to defraud the government. Also
payment of sums different from or when certain supplies for the government
larger than those authorized by law, are purchased for the high price but its
in collection of taxes, licenses, fees, quantity or quality is low.
and other imposts;
Illustrations:
3. Failing voluntarily to issue a receipt,
as provided by law, for any sum of (1) A public official who is in charge of
money collected by him officially, in procuring supplies for the
the collection of taxes, licenses, government obtained funds for the
fees, and other imposts; first class materials and buys inferior
quality products and pockets the
4. Collecting or receiving, directly or excess of the funds. This is usually
indirectly, by way of payment or committed by the officials of the
otherwise, things or objects of a Department of Public Works and
nature different from that provided Highways.
by law, in the collection of taxes,
licenses, fees, and other imposts. (2) Poorest quality of ink paid as if it
were of superior quality.
Elements of frauds against public treasury (3) One thousand pieces of blanket for
under paragraph 1 certain unit of the Armed Forces of
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
the Philippines were paid for but Elements of illegal exactions under
actually, only 100 pieces were paragraph 2
bought.
1. Offender is a public officer entrusted
(4) The Quezon City government with the collection of taxes, licenses,
ordered 10,000 but what was fees and other imposts;
delivered was only 1,000 T-shirts,
the public treasury is defrauded 2. He is guilty of any of the following
because the government is made to acts or omissions:
pay that which is not due or for a
higher price. a. Demanding, directly or
indirectly, the payment of
Not all frauds will constitute this crime. sums different from or larger
There must be no fixed allocation or amount than those authorized by law;
on the matter acted upon by the public or
officer.
b. Failing voluntarily to issue a
The allocation or outlay was made the basis receipt, as provided by law,
of fraudulent quotations made by the public for any sum of money
officer involved. collected by him officially; or
This provision of the Revised Penal Code abstract the P100.00, issued a
was provided before the Bureau of Internal receipt for only P400.00. The
Revenue and the Tariff and Customs Code. taxpayer would naturally ask the
Now, we have specific Code which will municipal treasurer why the receipt
apply to them. In the absence of any was only for P400.00. The treasurer
provision applicable, the Revised answered that the P100.00 is
Administrative Code will apply. supposed to be for documentary
stamps. The taxpayer left.
The essence of the crime is not
misappropriation of any of the amounts but He has a receipt for P400.00. The
the improper making of the collection which municipal treasurer turned over to
would prejudice the accounting of collected the government coffers P400.00
amounts by the government. because that is due the government
and pocketed the P100.00.
On the first form of illegal exaction
The mere fact that there was a
In this form, mere demand will consummate demand for an amount different from
the crime, even if the taxpayer shall refuse what is due the government, the
to come across with the amount being public officer already committed the
demanded. That will not affect the crime of illegal exaction.
consummation of the crime.
On the P100.00 which the public
In the demand, it is not necessary that the officer pocketed, will it be
amount being demanded is bigger than malversation or estafa?
what is payable to the government. The
amount being demanded maybe less than In the example given, the public
the amount due the government. officer did not include in the official
receipt the P100.00 and, therefore, it
Note that this is often committed with did not become part of the public
malversation or estafa because when a funds. It remained to be private. It
public officer shall demand an amount is the taxpayer who has been
different from what the law provides, it can defrauded of his P100.00 because
be expected that such public officer will not he can never claim a refund from the
turn over his collection to the government. government for excess payment
since the receipt issued to him was
Illustrations: only P400.00 which is due the
government. As far as the P100.00
(1) A taxpayer goes to the local is concerned, the crime committed is
municipal treasurer to pay real estafa.
estate taxes on his land. Actually,
what is due the government is (3) A taxpayer pays his taxes. What is
P400.00 only but the municipal due the government is P400.00 and
treasurer demanded P500.00. By the public officer issues a receipt for
that demand alone, the crime of P500.00 upon payment of the
illegal exaction is already committed taxpayer of said amount demanded
even though the taxpayer does not by the public officer involved. But he
pay the P500.00. altered the duplicate to reflect only
P400.00 and he extracted the
(2) Suppose the taxpayer came across difference of P100.00.
with P500.00. But the municipal
treasurer, thinking that he would
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
In this case, the entire P500.00 was trust by a public officer entrusted to
covered by an official receipt. That make the collection which is
act of covering the whole amount penalized under such article. The
received from the taxpayer in an falsification or alteration made on
official receipt will have the the duplicate can not be said as a
characteristics of becoming a part of means to commit malversation. At
the public funds. The crimes most, the duplicate was altered in
committed, therefore, are the order to conceal the malversation.
following: So it cannot be complexed with the
malversation.
(a) Illegal exaction – for
collecting more than he is It cannot also be said that the
authorized to collect. The falsification is a necessary means to
mere act of demanding is commit the malversation because
enough to constitute this the public officer can misappropriate
crime. the P100.00 without any falsification.
All that he has to do is to get the
(b) Falsification – because there excess of P100.00 and
was an alteration of official misappropriate it. So the
document which is the falsification is a separate accusation.
duplicate of the official
receipt to show an amount However, illegal exaction may be
less than the actual amount complexed with malversation
collected. because illegal exaction is a
necessary means to be able to
(c) Malversation – because of collect the P100.00 excess which
his act of misappropriating was malversed.
the P100.00 excess which
was covered by an official In this crime, pay attention to
receipt already, even though whether the offender is the one
not payable to the charged with the collection of the
government. The entire tax, license or impost subject of the
P500.00 was covered by the misappropriation. If he is not the
receipt, therefore, the whole one authorized by disposition to do
amount became public the collection, the crime of illegal
funds. So when he exaction is not committed.
appropriated the P100 for his
own benefit, he was not If it did not give rise to the crime of
extracting private funds illegal exaction, the funds collected
anymore but public funds. may not have become part of the
public funds. If it had not become
Should the falsification be part of the public funds, or had not
complexed with the malversation? become impressed with being part
of the public funds, it cannot be the
As far as the crime of illegal exaction subject of malversation. It will give
is concerned, it will be the subject of rise to estafa or theft as the case
separate accusation because there, may be.
the mere demand regardless of
whether the taxpayer will pay or not, (3) The Municipal Treasurer demanded
will already consummate the crime P500.00 when only P400.00 was
of illegal exaction. It is the breach of due. He issued the receipt at
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
P400.00 and explained to taxpayer give rise to illegal exaction even though a
that the P100 was for documentary provisional receipt has been issued. What
stamps. The Municipal Treasurer the law requires is a receipt in the form
placed the entire P500.00 in the prescribed by law, which means official
vault of the office. When he needed receipt.
money, he took the P100.00 and
spent it. Illustration:
Although the excess P100.00 was Under the rules and regulations of the
not covered by the Official Receipt, it government, payment of checks not
was commingled with the other belonging to the taxpayer, but that of
public funds in the vault; hence, it checks of other persons, should not be
became part of public funds and accepted to settle the obligation of that
subsequent extraction thereof person.
constitutes malversation.
Illustration:
Note that numbers 1 and 2 are complexed A taxpayer pays his obligation with a check
as illegal exaction with estafa, while in not his own but pertaining to another.
number 3, malversation is a distinct offense. Because of that, the check bounced later
on.
The issuance of the Official Receipt is the
operative fact to convert the payment into The crime committed is illegal exaction
public funds. The payor may demand a because the payment by check is not
refund by virtue of the Official Receipt. allowed if the check does not pertain to the
taxpayer himself, unless the check is a
In cases where the payor decides to let the manager’s check or a certified check,
official to “keep the change”, if the latter amended already as of 1990. (See the
should pocket the excess, he shall be liable case of Roman Catholic.)
for malversation. The official has no right
but the government, under the principle of Under Article 213, if any of these acts
accretion, as the owner of the bigger penalized as illegal exaction is committed
amount becomes the owner of the whole. by those employed in the Bureau of
Customs or Bureau of Internal Revenue, the
On the second form of illegal exaction law that will apply to them will be the
Revised Administrative Code or the Tariff
The act of receiving payment due the and Customs Code or National Revenue
government without issuing a receipt will Code.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Section 2, Article IX-A of the Constitution 3. Those funds or property were public
funds or property for which he was
No member of a Constitutional accountable;
Commission shall, during his tenure, hold
any office or employment. Neither shall he 4. He appropriated, took,
engage in the practice of any profession or misappropriated or consented or,
in the active management or control of any through abandonment or negligence,
business which in any way may be affected permitted another person to take
by the functions of his office, nor shall he be them.
financially interested, directly or indirectly, in
any contract with, or in any franchise or
privilege granted by the government, or any This crime is predicated on the relationship
of its subdivisions, agencies, or of the offender to the property or funds
instrumentalities, including government- involved. The offender must be
owned or controlled corporations or their accountable for the property
subsidiaries. misappropriated. If the fund or property,
though public in character is the
responsibility of another officer,
Article 217. Malversation of Public malversation is not committed unless there
Funds or Property – Presumption of is conspiracy.
Malversation
It is not necessary that the offender profited
Acts punished because somebody else may have
misappropriated the funds in question for as
1. Appropriating public funds or long as the accountable officer was remiss
property; in his duty of safekeeping public funds or
property. He is liable for malversation if
2. Taking or misappropriating the such funds were lost or otherwise
same; misappropriated by another.
advantage of A’s absence and took P50.00 funds or property belong to a private
out of the collections. A returned and found individual.
his money short. What crimes have been
committed? Illustration:
(2) An accountable public officer, out of Note that the moment any money is
laziness, declares that the payment commingled with the public fund even if not
was made to him after he had due the government, it becomes impressed
cleaned his table and locked his with the characteristic of being part of public
safe for the collection of the day. A funds. Once they are commingled, you do
taxpayer came and he insisted that not know anymore which belong to the
he pay the amount so that he will not government and which belong to the private
return the next day. So he accepted persons. So that a public vault or safe
the payment but is too lazy to open should not be used to hold any fund other
the combination of the public safe. that what is due to the government.
He just pocketed the money. When
he came home, the money was still When does presumption of
in his pocket. The next day, when misappropriation arise?
he went back to the office, he
changed clothes and he claims that When a demand is made upon an
he forgot to put the money in the accountable officer and he cannot produce
new funds that he would collect the the fund or property involved, there is a
next day. Government auditors prima facie presumption that he had
came and subjected him to converted the same to his own use. There
inspection. He was found short of must be indubitable proof that thing
that amount. He claimed that it is in unaccounted for exists. Audit should be
his house -- with that alone, he was made to determine if there was shortage.
charged with malversation and was Audit must be complete and trustworthy. If
convicted. there is doubt, presumption does not arise.
Any overage or excess in the collection of Presumption arises only if at the time the
an accountable public officer should not be demand to produce the public funds was
extracted by him once it is commingled with made, the accountability of the accused is
the public funds. already determined and liquidated. A
demand upon the accused to produce the
Illustration: funds in his possession and a failure on his
part to produce the same will not bring
When taxpayers pay their accountabilities to about this presumption unless and until the
the government by way of taxes or licenses amount of his accountability is already
like registration of motor vehicles, the known.
taxpayer does not bother to collect loose
change. So the government cashier In Dumagat v. Sandiganbayan, 160 SCRA
accumulates the loose change until this 483, it was held that the prima facie
amounts to a sizable sum. In order to avoid presumption under the Revised Penal Code
malversation, the cashier did not separate arises only if there is no issue as to the
what is due the government which was left accuracy, correctness and regularity of the
to her by way of loose change. Instead, he audit findings and if the fact that public
gets all of these and keeps it in the public funds are missing is indubitably established.
vault/safe. After the payment of the taxes The audit must be thorough and complete
and licenses is through, he gets all the down to the last detail, establishing with
official receipts and takes the sum total of absolute certainty the fact that the funds are
the payment. He then opens the public indeed missing.
vault and counts the cash. Whatever will be
the excess or the overage, he gets. In this
case, malversation is committed.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
4. He fails to do so for a period of two Article 220. Illegal use of public funds or
months after such accounts should property
be rendered.
Elements
private purpose, the crime committed is wounded. One of them, however, was able
simple malversation only. to get away from the scene of the ambush
until he reached a certain house. He told
Illustration: the occupant of the house to safeguard the
amount because it is the payroll money of
The office lacked bond papers. What the the government laborers of a particular
government cashier did was to send the project. The occupant of the house
janitor, get some money from his collection, accepted the money for his own use. The
told the janitor to buy bond paper so that crime is not theft but malversation as long
the office will have something to use. The as he knew that what was entrusted in his
amount involved maybe immaterial but the custody is public fund or property.
cashier commits malversation pure and
simple.
1. Public officer has government funds Article 225. Escape of Prisoner under the
in his possession; Custody of a Person not a Public Officer
3. Such prisoner escaped from his The crime is infidelity in the custody of
custody; prisoners if the offender involved is the
custodian of the prisoner.
4. He was in connivance with the
prisoner in the latter’s escape. If the offender who aided or consented to
the prisoner’s escaping from confinement,
whether the prisoner is a convict or a
Classes of prisoners involved detention prisoner, is not the custodian, the
crime is delivering prisoners from jail under
1. If the fugitive has been sentenced by Article156.
final judgment to any penalty;
The crime of infidelity in the custody of
2. If the fugitive is held only as prisoners can be committed only by the
detention prisoner for any crime or custodian of a prisoner.
violation of law or municipal
ordinance. If the jail guard who allowed the prisoner to
escape is already off-duty at that time and
he is no longer the custodian of the
Article 224. Evasion through Negligence prisoner, the crime committed by him is
delivering prisoners from jail.
Elements
Note that you do not apply here the
1. Offender is a public officer; principle of conspiracy that the act of one is
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Illustration:
Article 226. Removal, Concealment, or
Destruction of Documents If any citizen goes to a public office, desiring
to go over public records and the custodian
Elements of the records had concealed the same so
that this citizen is required to go back for the
1. Offender is a public officer; record to be taken out, the crime of infidelity
is already committed by the custodian who
2. He abstracts, destroys or conceals a removed the records and kept it in a place
document or papers; where it is not supposed to be kept. Here, it
is again the breach of public trust which is
3. Said document or papers should punished.
have been entrusted to such public
officer by reason of his office; Although there is no material damage
caused, mere delay in rendering public
4. Damage, whether serious or not, to service is considered damage.
a third party or to the public interest
has been caused. Removal of public records by the custodian
does not require that the record be brought
Crimes falling under the section on infidelity out of the premises where it is kept. It is
in the custody of public documents can only enough that the record be removed from
be committed by the public officer who is the place where it should be and transferred
made the custodian of the document in his to another place where it is not supposed to
official capacity. If the officer was placed in be kept. If damage is caused to the public
possession of the document but it is not his service, the public officer is criminally liable
duty to be the custodian thereof, this crime for infidelity in the custody of official
is not committed. documents.
Where in case for bribery or corruption, the contents of the document. For that act, he
monetary considerations was marked as violates the confidence or trust reposed on
exhibits, such considerations acquires the him.
nature of a document such that if the same
would be spent by the custodian the crime A crime is already committed regardless of
is not malversation but Infidelity in the whether the contents of the document are
custody of public records, because the secret or private. It is enough that it is
money adduced as exhibits partake the entrusted to him in a sealed form or in a
nature of a document and not as money. closed envelope and he broke the seal or
Although such monetary consideration opened the envelop. Public trust is already
acquires the nature of a document, the best violated if he managed to look into the
evidence rule does not apply here. contents of the document.
Example, photocopies may be presented in
evidence. Distinction between infidelity and theft
4. He breaks the seal or permits them As regard the payroll, which has not been
to be broken. signed by the Mayor, no infidelity is
committed because the document is not yet
a payroll in the legal sense since the
If the official document is sealed or document has not been signed yet.
otherwise placed in an official envelope, the
element of damage is not required. The In "breaking of seal", the word "breaking"
mere breaking of the seal or the mere should not be given a literal meaning. Even
opening of the document would already if actually, the seal was not broken,
bring about infidelity even though no because the custodian managed to open
damage has been suffered by anyone or by the parcel without breaking the seal.
the public at large. The offender does not
have to misappropriate the same. Just
trying to discover or look what is inside is Article 228. Opening of Closed
infidelity already. Documents
4. He does not have proper authority. Article 230. Public Officer Revealing
Secrets of Private individual
3. He has for any reason suspended connection with physical injury cases or
the execution of such order; cases involving human lives, does not want
to appear in court to testify. He may be
4. His superior disapproves the charged for refusal of assistance. As long
suspension of the execution of the as they have been properly notified by
order; subpoena and they disobeyed the
subpoena, they can be charged always if it
5. Offender disobeys his superior can be shown that they are deliberately
despite the disapproval of the refusing to appear in court.
suspension.
It is not always a case or in connection with
the appearance in court that this crime may
Article 233. Refusal of Assistance be committed. Any refusal by the public
officer to render assistance when
1. Offender is a public officer; demanded by competent public authority,
as long as the assistance requested from
2. A competent authority demands from them is within their duty to render and that
the offender that he lend his assistance is needed for public service, the
cooperation towards the public officers who are refusing deliberately
administration of justice or other may be charged with refusal of assistance.
public service;
Note that the request must come from one
3. Offender fails to do so maliciously. public officer to another.
Illustration:
Any public officer who, upon being
requested to render public assistance within A fireman was asked by a private person for
his official duty to render and he refuses to services but was refused by the former for
render the same when it is necessary in the lack of “consideration”.
administration of justice or for public
service, may be prosecuted for refusal of It was held that the crime is not refusal of
assistance. assistance because the request did not
come from a public authority. But if the
This is a crime, which a policeman may fireman was ordered by the authority to put
commit when, being subpoenaed to appear out the fire and he refused, the crime is
in court in connection with a crime refusal of assistance.
investigated by him but because of some
arrangement with the offenders, the If he receives consideration therefore,
policeman does not appear in court bribery is committed. But mere demand will
anymore to testify against the offenders. fall under the prohibition under the provision
He tried to assail the subpoena so that of Republic Act No. 3019 (Anti-Graft and
ultimately the case would be dismissed. It Corrupt Practices Act).
was already held that the policeman could
be prosecuted under this crime of refusal of
assistance and not that of dereliction of Article 234. Refusal to Discharge
duty. Elective Office
Illustration: Elements
3. There is no legal motive for such The maltreatment does not really require
refusal to be sworn in or to physical injuries. Any kind of punishment
discharge the duties of said office. not authorized or though authorized if
executed in excess of the prescribed
degree.
Article 235. Maltreatment of Prisoners
Illustration:
Elements
Make him drink dirty water, sit on ice, eat on
1. Offender is a public officer or a can, make him strip, hang a sign on his
employee; neck saying “snatcher”.
maltreatment of prisoner because the 2. The law requires that he should first
offender is not the custodian. The crime is be sworn in and/or should first give a
only physical injuries. bond;
But if the custodian is present there and he 3. He assumes the performance of the
allowed it, then he will be liable also for the duties and powers of such office;
physical injuries inflicted, but not for
maltreatment because it was not the 4. He has not taken his oath of office
custodian who inflicted the injury. and/or given the bond required by
law.
But if it is the custodian who effected the
maltreatment, the crime will be
maltreatment of prisoners plus a separate Article 237. Prolonging Performance of
charge for physical injuries. Duties and Powers
After having been booked, the prisoner was 3. He continues to exercise the duties
made to show any sign on his arm, hand or and powers of such office.
his neck; “Do not follow my footsteps, I am
a thief.” That is maltreatment of prisoner if
the offended party had already been Article 238. Abandonment of Office or
booked and incarcerated no matter how Position
short, as a prisoner.
Elements
Before this point in time, when he is not yet
a prisoner, the act of hanging a sign on his 1. Offender is a public officer;
neck will only amount to slander because
the idea is to cast dishonor. Any injury 2. He formally resigns from his
inflicted upon him will only give rise to the position;
crime of physical injuries.
3. His resignation has not yet been
accepted;
Article 236. Anticipation of Duties of A
Public Office 4. He abandons his office to the
detriment of the public service.
Elements
Elements
Article 245. Abuses against Chastity
1. Offender is a public officer;
Acts punished
2. A proceeding is pending before such
public officer; 1. Soliciting or making immoral or
indecent advances to a woman
3. There is a question brought before interested in matters pending before
the proper authority regarding his the offending officer for decision, or
jurisdiction, which is not yet decided; with respect to which he is required
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
2. He solicits or makes immoral or Three instances when this crime may arise:
indecent advances to a woman;
(1) The woman, who is the offended
3. Such woman is – party, is the party in interest in a
case where the offended is the
a. interested in matters pending investigator or he is required to
before the offender for render a report or he is required to
decision, or with respect to consult with a superior officer.
which he is required to
submit a report to or consult
with a superior officer; or This does not include any casual or
incidental interest. This refers to
b. under the custody of the interest in the subject of the case
offender who is a warden or under investigation.
other public officer directly
charged with the care and If the public officer charged with the
custody of prisoners or investigation or with the rendering of
persons under arrest; or the report or with the giving of
advice by way of consultation with a
c. the wife, daughter, sister or superior, made some immoral or
relative within the same indecent solicitation upon such
degree by affinity of the woman, he is taking advantage of
person in the custody of the his position over the case. For that
offender. immoral or indecent solicitation, a
crime is already committed even if
the woman did not accede to the
The name of the crime is misleading. It solicitation.
implies that the chastity of the offended
party is abused but this is not really the Even if the woman may have lied
essence of the crime because the essence with the hearing officer or to the
of the crime is mere making of immoral or public officer and acceded to him,
indecent solicitation or advances. that does not change the crime
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Also holds liable any person who directs or 14. Challenging to a duel (Art. 261);
induces another to commit any act of sexual
harassment, or who cooperates in the 15. Mutilation (Art. 262);
commission, the head of the office,
educational or training institution solidarily. 16. Serious physical injuries (Art. 263);
18. Less serious physical injuries (Art. the legitimate spouse, of the
265); accused.
The essence of crime here involves the The relationship must be in the direct line
taking of human life, destruction of the fetus and not in the collateral line.
or inflicting injuries.
The relationship between the offender and
As to the taking of human life, you have: the offended party must be legitimate,
except when the offender and the offended
(1) Parricide; party are related as parent and child.
(2) When the offender kills or inflicts a justified outburst of passion or a state of
serious physical injury upon the mental disequilibrium. The offended
other spouse and/or paramour while spouse has no time to regain his self-
in the act of intercourse, or control.
immediately thereafter, that is, after
surprising. If there was already a break of time
between the sexual act and the killing or
You have to divide the stages because as inflicting of the injury, the law presupposes
far as the first stage is concerned, it does that the offender regained his reason and
not admit of any situation less than sexual therefore, the article will not apply anymore.
intercourse.
As long as the act is continuous, the article
So if the surprising took place before any still applies.
actual sexual intercourse could be done
because the parties are only in their Where the accused surprised his wife and
preliminaries, the article cannot be invoked his paramour in the act of illicit intercourse,
anymore. as a result of which he went out to kill the
paramour in a fit of passionate outburst.
If the surprising took place after the actual Although about one hour had passed
sexual intercourse was finished, even if the between the time the accused discovered
act being performed indicates no other his wife having sexual intercourse with the
conclusion but that sexual intercourse was victim and the time the latter was actually
had, the article does not apply. killed, it was held in People v. Abarca, 153
SCRA 735, that Article 247 was applicable,
As long as the surprising took place while as the shooting was a continuation of the
the sexual intercourse was going on, the pursuit of the victim by the accused. Here,
second stage becomes immaterial. the accused, after the discovery of the act
of infidelity of his wife, looked for a firearm
It is either killing or inflicting physical injuries in Tacloban City.
while in that act or immediately thereafter.
If the killing was done while in that act, no Article 247 does not provide that the victim
problem. If the killing was done when is to be killed instantly by the accused after
sexual intercourse is finished, a problem surprising his spouse in the act of
arises. First, were they surprised in actual intercourse. What is required is that the
sexual intercourse? Second, were they killing is the proximate result of the outrage
killed immediately thereafter? overwhelming the accused upon the
discovery of the infidelity of his spouse.
The phrase “immediately thereafter” has The killing should have been actually
been interpreted to mean that between the motivated by the same blind impulse.
surprising and the killing of the inflicting of
the physical injury, there should be no break Illustration:
of time. In other words, it must be a
continuous process. A upon coming home, surprised his wife, B,
together with C. The paramour was fast
The article presumes that a legally married enough to jump out of the window. A got
person who surprises his or her better half the bolo and chased C but he disappeared
in actual sexual intercourse would be among the neighborhood. So A started
overcome by the obfuscation he felt when looking around for about an hour but he
he saw them in the act that he lost his head. could not find the paramour. A gave up and
The law, thus, affords protection to a was on his way home. Unfortunately, the
spouse who is considered to have acted in paramour, thinking that A was no longer
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
around, came out of hiding and at that (4) Physical injuries – through reckless
moment, A saw him and hacked him to imprudence, if a third party is
death. There was a break of time and injured.
Article 247 does not apply anymore
because when he gave up the search, it is a If death results or the physical injuries are
circumstance showing that his anger had serious, there is criminal liability although
already died down. the penalty is only destierro. The
banishment is intended more for the
Article 247, far from defining a felony merely protection of the offender rather than a
grants a privilege or benefit, more of an penalty.
exempting circumstance as the penalty is
intended more for the protection of the If the crime committed is less serious
accused than a punishment. Death under physical injuries or slight physical injuries,
exceptional character can not be qualified there is no criminal liability.
by either aggravating or mitigating
circumstances. The article does not apply where the wife
was not surprised in flagrant adultery but
In the case of People v. Abarca, 153 was being abused by a man as in this case
SCRA 735, two persons suffered physical there will be defense of relation.
injuries as they were caught in the crossfire
when the accused shot the victim. A If the offender surprised a couple in sexual
complex crime of double frustrated murder intercourse, and believing the woman to be
was not committed as the accused did not his wife, killed them, this article may be
have the intent to kill the two victims. Here, applied if the mistake of facts is proved.
the accused did not commit murder when
he fired at the paramour of his wife. The benefits of this article do not apply to
Inflicting death under exceptional the person who consented to the infidelity of
circumstances is not murder. The accused his spouse or who facilitated the prostitution
was held liable for negligence under the first of his wife.
part, second paragraph of Article 365, that
is, less serious physical injuries through The article is also made available to parents
simple negligence. No aberratio ictus who shall surprise their daughter below 18
because he was acting lawfully. years of age in actual sexual intercourse
while “living with them.” The act should
A person who acts under Article 247 is not have been committed by the daughter with
committing a crime. Since this is merely an a seducer. The two stages also apply. The
exempting circumstance, the accused must parents cannot invoke this provision if, in a
first be charged with: way, they have encouraged the prostitution
of the daughter.
(1) Parricide – if the spouse is killed;
The phrase “living with them” is understood
(2) Murder or homicide – depending on to be in their own dwelling, because of the
how the killing was done insofar as embarrassment and humiliation done not
the paramour or the mistress is only to the parent but also to the parental
concerned; abode.
(3) Homicide – through simple If it was done in a motel, the article does not
negligence, if a third party is killed; apply.
Illustration:
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
b. In consideration of a price,
reward or promise;
was alleged was not proven and with both arms and legs around the
instead another circumstance, not tree. They thought they would give
alleged, was established during the him a lesson by whipping him with
trial, even if the latter constitutes a branches of gumamela until the
qualifying circumstance under Article victim fell unconscious. The
248, the same can not qualify the accused left not knowing that the
killing to murder. The accused can victim died.
only be convicted of homicide.
The crime committed was murder.
Generally, murder cannot be The accused deprived the victim of
committed if at the beginning, the the chance to defend himself when
offended had no intent to kill the latter was tied to a tree.
because the qualifying Treachery is a circumstance
circumstances must be resorted to referring to the manner of
with a view of killing the offended committing the crime. There was no
party. So if the killing were at the risk to the accused arising from the
“spur of the moment”, even though defense by the victim.
the victim was denied the chance to
defend himself because of the Although what was initially intended
suddenness of the attack, the crime was physical injury, the manner
would only be homicide. Treachery adopted by the accused was
contemplates that the means, treacherous and since the victim
methods and form in the execution died as a consequence thereof, the
were consciously adopted and crime is murder -- although
deliberately resorted to by the originally, there was no intent to kill.
offender, and were not merely
incidental to the killing. When the victim is already dead,
intent to kill becomes irrelevant. It is
If the offender may have not important only if the victim did not
intended to kill the victim but he only die to determine if the felony is
wanted to commit a crime against physical injury or attempted or
him in the beginning, he will still be frustrated homicide.
liable for murder if in the manner of
committing the felony there was So long as the means, methods and
treachery and as a consequence form in the execution is deliberately
thereof the victim died. This is adopted, even if there was no intent
based on the rule that a person to kill, there is treachery.
committing a felony shall be liable
for the consequences thereof (2) In consideration of price, reward or
although different from that which he promises;
intended.
(3) Inundation, fire, poison, explosion,
Illustration: shipwreck, stranding of a vessel,
derailment or assault upon a street
The accused, three young men, car or locomotive, fall of an airship,
resented the fact that the victim by means of a motor vehicle, or with
continued to visit a girl in their the use of other means involving
neighborhood despite the warning great waste and ruin;
they gave him. So one evening,
after the victim had visited the girl, The only problem insofar as the
they seized and tied him to a tree, killing by fire is concerned is whether
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
2. Offender killed him without any (4) Where the intent to kill is not
justifying circumstances; manifest, the crime committed has
been generally considered as
3. Offender had the intention to kill, physical injuries and not attempted
which is presumed; or frustrated murder or homicide.
4. The killing was not attended by any (5) When several assailants not acting
of the qualifying circumstances of in conspiracy inflicted wounds on a
murder, or by that of parricide or victim but it cannot be determined
infanticide. who inflicted which would which
caused the death of the victim, all
are liable for the victim’s death.
Homicide is the unlawful killing of a person
not constituting murder, parricide or Note that while it is possible to have a crime
infanticide. of homicide through reckless imprudence, it
is not possible to have a crime of frustrated
Distinction between homicide and physical homicide through reckless imprudence.
injuries:
(1) Physical injuries are included as one 3. These several persons quarreled
of the essential elements of and assaulted one another in a
frustrated homicide. confused and tumultuous manner;
(2) If the deceased received two 4. Someone was killed in the course of
wounds from two persons acting the affray;
independently of each other and the
wound inflicted by either could have 5. It can not be ascertained who
caused death, both of them are actually killed the deceased;
liable for the death of the victim and
each of them is guilty of homicide. 6. The person or persons who inflicted
serious physical injuries or who used
(3) If the injuries were mortal but were violence can be identified.
only due to negligence, the crime
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
It is not a tumultuous affray which brings The fight must be tumultuous. The
about the crime; it is the inability to participants must not be members of an
ascertain actual perpetrator. It is necessary organized group. This is different from a
that the very person who caused the death rumble which involves organized groups
can not be known, not that he can not be composed of persons who are to attack
identified. Because if he is known but only others. If the fight is between such groups,
his identity is not known, then he will be even if you cannot identify who, in
charged for the crime of homicide or murder particular, committed the killing, the adverse
under a fictitious name and not death in a party composing the organized group will be
tumultuous affray. If there is a conspiracy, collectively charged for the death of that
this crime is not committed. person.
Article 254. Discharge of Firearms The offender may actually be the parent of
the child. But you call the crime infanticide,
1. Offender discharges a firearm against or not parricide, if the age of the victim is less
at another person; than three days old. If the victim is three
days old or above, the crime is parricide.
2. Offender had no intention to kill that
person. Illustration:
Acts punished
Abortion is not a crime against the woman
1. Using any violence upon the person but against the fetus. If mother as a
of the pregnant woman; consequence of abortion suffers death or
physical injuries, you have a complex crime
2. Acting, but without using violence, of murder or physical injuries and abortion.
without the consent of the woman.
(By administering drugs or In intentional abortion, the offender must
beverages upon such pregnant know of the pregnancy because the
woman without her consent.) particular criminal intention is to cause an
abortion. Therefore, the offender must
3. Acting (by administering drugs or have known of the pregnancy for otherwise,
beverages), with the consent of the he would not try an abortion.
pregnant woman.
If the woman turns out not to be pregnant
and someone performs an abortion upon
Elements her, he is liable for an impossible crime if
the woman suffers no physical injury. If she
1. There is a pregnant woman; does, the crime will be homicide, serious
physical injuries, etc.
2. Violence is exerted, or drugs or
beverages administered, or that the Under the Article 40 of the Civil Code, birth
accused otherwise acts upon such determines personality. A person is
pregnant woman; considered born at the time when the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
umbilical cord is cut. He then acquires a Frustrated abortion is committed if the fetus
personality separate from the mother. that is expelled is viable and, therefore, not
dead as abortion did not result despite the
But even though the umbilical cord has employment of adequate and sufficient
been cut, Article 41 of the Civil Code means to make the pregnant woman abort.
provides that if the fetus had an intra- If the means are not sufficient or adequate,
uterine life of less than seven months, it the crime would be an impossible crime of
must survive at least 24 hours after the abortion. In consummated abortion, the
umbilical cord is cut for it to be considered fetus must be dead.
born.
One who persuades her sister to abort is a
Illustration: co-principal, and one who looks for a
physician to make his sweetheart abort is
A mother delivered an offspring which had an accomplice. The physician will be
an intra-uterine life of seven months. Before punished under Article 259 of the Revised
the umbilical cord is cut, the child was killed. Penal Code.
liable for homicide or murder, as the case that is, to deprive the
may be. offended party of some
essential organ for
The concept of duel under the Revised reproduction
Penal Code is a classical one.
2. Intentionally making other mutilation,
that is, by lopping or clipping off any
Article 261. Challenging to A Duel part of the body of the offended
party, other than the essential organ
Acts punished for reproduction, to deprive him of
that part of his body.
1. Challenging another to a duel;
Acts punished
Article 263. Serious Physical Injuries
1. Intentionally mutilating another by
depriving him, either totally or How committed
partially, of some essential organ for
reproduction; 1. By wounding;
Elements 2. By beating;
In one case, the accused, while conversing 4. When the injured person becomes ill
with the offended party, drew the latter’s or incapacitated for labor for more
bolo from its scabbard. The offended party than 30 days (but must not be more
caught hold of the edge of the blade of his than 90 days), as a result of the
bolo and wounded himself. It was held that physical injuries inflicted.
since the accused did not wound, beat or
assault the offended party, he can not be
guilty of serious physical injuries. The crime of physical injuries is a crime of
result because under our laws the crime of
physical injuries is based on the gravity of
Serious physical injuries the injury sustained. So this crime is always
consummated, notwithstanding the opinion
1. When the injured person becomes of Spanish commentators like Cuello Calon,
insane, imbecile, impotent or blind in Viada, etc., that it can be committed in the
consequence of the physical injuries attempted or frustrated stage.
inflicted;
If the act does not give rise to injuries, you
2. When the injured person – will not be able to say whether it is
attempted slight physical injuries, attempted
a. Loses the use of speech or less serious physical injuries, or attempted
the power to hear or to smell, serious physical injuries unless the result is
or loses an eye, a hand, there.
afoot, an arm, or a leg;
The reason why there is no attempted or
b. Loses the use of any such frustrated physical injuries is because the
member; or crime of physical injuries is determined on
the gravity of the injury. As long as the
c. Becomes incapacitated for injury is not there, there can be no
the work in which he was attempted or frustrated stage thereof.
theretofore habitually
engaged, in consequence of Classification of physical injuries:
the physical injuries inflicted;
(1) Between slight physical injuries and
3. When the person injured – less serious physical injuries, you
have a duration of one to nine days
a. Becomes deformed; or if slight physical injuries; or 10 days
to 20 days if less serious physical
b. Loses any other member of injuries. Consider the duration of
his body; or healing and treatment.
Serious physical injuries is punished with the use of any such member or any of the
higher penalties in the following cases: serious physical injuries or the less serious
physical injuries. Also if the victim is below
(1) If it is committed against any of the 12, or becomes incapacitated for the work
persons referred to in the crime of he habitually engages in for 30, 10, 1-9
parricide under Article 246; days.
(2) If any of the circumstances It holds the parents, school authorities who
qualifying murder attended its consented or who had actual knowledge if
commission. they did nothing to prevent it, officers and
members who planned, knowingly
Thus, a father who inflicts serious physical cooperated or were present, present alumni
injuries upon his son will be liable for of the organization, owner of the place
qualified serious physical injuries. where such occurred liable.
(d) Where the victim is a Since rape is not a private crime anymore, it
religious, that is, a member can be prosecuted even if the woman does
of a legitimate religious not file a complaint.
vocation and the offender
knows the victim as such If carnal knowledge was made possible
before or at the time of the because of fraudulent machinations and
commission of the offense; grave abuse of authority, the crime is rape.
This absorbs the crime of qualified and
(e) Where the victim is a child simple seduction when no force or violence
under 7 yrs of age; was used, but the offender abused his
authority to rape the victim.
(f) Where the offender is a
member of the AFP, its Under Article 266-C, the offended woman
paramilitary arm, the PNP, or may pardon the offender through a
any law enforcement agency subsequent valid marriage, the effect of
and the offender took which would be the extinction of the
advantage of his position; offender’s liability. Similarly, the legal
husband may be pardoned by forgiveness
(g) Where the offender is of the wife provided that the marriage is not
afflicted with AIDS or other void ab initio. Obviously, under the new
sexually transmissible law, the husband may be liable for rape if
diseases, and he is aware his wife does not want to have sex with him.
thereof when he committed It is enough that there is indication of any
the rape, and the disease amount of resistance as to make it rape.
was transmitted;
Incestuous rape was coined in Supreme
Court decisions. It refers to rape committed
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
by an ascendant of the offended woman. In Note that it has been held that in the crime
such cases, the force and intimidation need of rape, conviction does not require medico-
not be of such nature as would be required legal finding of any penetration on the part
in rape cases had the accused been a of the woman. A medico-legal certificate is
stranger. Conversely, the Supreme Court not necessary or indispensable to convict
expected that if the offender is not known to the accused of the crime of rape.
woman, it is necessary that there be
evidence of affirmative resistance put up by It has also been held that although the
the offended woman. Mere “no, no” is not offended woman who is the victim of the
enough if the offender is a stranger, rape failed to adduce evidence regarding
although if the rape is incestuous, this is the damages to her by reason of the rape,
enough. the court may take judicial notice that there
is such damage in crimes against chastity.
The new rape law also requires that there The standard amount given now is P
be a physical overt act manifesting 30,000.00, with or without evidence of any
resistance, if the offended party was in a moral damage. But there are some cases
situation where he or she is incapable of where the court awarded only P 20,000.00.
giving valid consent, this is admissible in
evidence to show that carnal knowledge An accused may be convicted of rape on
was against his or her will. the sole testimony of the offended woman.
It does not require that testimony be
When the victim is below 12 years old, mere corroborated before a conviction may stand.
sexual intercourse with her is already rape. This is particularly true if the commission of
Even if it was she who wanted the sexual the rape is such that the narration of the
intercourse, the crime will be rape. This is offended woman would lead to no other
referred to as statutory rape. conclusion except that the rape was
committed.
In other cases, there must be force,
intimidation, or violence proven to have Illustration:
been exerted to bring about carnal
knowledge or the woman must have been Daughter accuses her own father of having
deprived of reason or otherwise raped her.
unconscious.
Allegation of several accused that the
Where the victim is over 12 years old, it woman consented to their sexual
must be shown that the carnal knowledge intercourse with her is a proposition which is
with her was obtained against her will. It is revolting to reason that a woman would
necessary that there be evidence of some allow more than one man to have sexual
resistance put up by the offended woman. intercourse with her in the presence of the
It is not, however, necessary that the others.
offended party should exert all her efforts to
prevent the carnal intercourse. It is enough It has also been ruled that rape can be
that from her resistance, it would appear committed in a standing position because
that the carnal intercourse is against her complete penetration is not necessary. The
will. slightest penetration – contact with the labia
– will consummate the rape.
Mere initial resistance, which does not
indicate refusal on the part of the offended On the other hand, as long as there is an
party to the sexual intercourse, will not be intent to effect sexual cohesion, although
enough to bring about the crime of rape. unsuccessful, the crime becomes attempted
rape. However, if that intention is not
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
7. Exploitation of child labor (Art. 273); Article 267. Kidnapping and Serious
Illegal Detention
8. Services rendered under compulsion
in payment of debts (Art. 274). Elements
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
c. Any serious physical injuries When one thinks of kidnapping, it is not only
are inflicted upon the person that of transporting one person from one
kidnapped or detained or place to another. One also has to think of
threats to kill him are made; the criminal intent.
or
Forcible abduction -- If a woman is
d. The person kidnapped or transported from one place to another by
detained is a minor, female, virtue of restraining her of her liberty, and
or a public officer. that act is coupled with lewd designs.
When a public officer conspires with a In a decided case, a suitor, who cannot get
private person in the commission of any of a favorable reply from a woman, invited the
the crimes under Title IX, the crime is also woman to ride with him, purportedly to take
one committed under this title and not under home the woman from class. But while the
Title II. woman is in his car, he drove the woman to
a far place and told the woman to marry
Illustration: him. On the way, the offender had
repeatedly touched the private parts of the
If a private person commits the crime of woman. It was held that the act of the
kidnapping or serious illegal detention, even offender of touching the private parts of the
though a public officer conspires therein, woman could not be considered as lewd
the crime cannot be arbitrary detention. As designs because he was willing to marry the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Tom Cruz invited Nicole Chizmacks for a The penalty for kidnapping is higher than for
snack. They drove along Roxas Boulevard, forcible abduction. This is wrong because if
along the Coastal Road and to Cavite. The the offender knew about this, he would
woman was already crying and wanted to perform lascivious acts upon the woman
be brought home. Tom imposed the and be charged only for forcible abduction
condition that Nicole should first marry him. instead of kidnapping or illegal detention.
Nicole found this as, simply, a mission He thereby benefits from this absurdity,
impossible. The crime committed in this which arose when Congress amended
case is grave coercion. But if after they Article 267, increasing the penalty thereof,
drove to Cavite, the suitor placed the without amending Article 342 on forcible
woman in a house and would not let her out abduction.
until she agrees to marry him, the crime
would be serious illegal detention. Article 267 has been modified by Republic
Act No. 7659 in the following respects:
If the victim is a woman or a public officer,
the detention is always serious – no matter (1) Illegal detention becomes serious
how short the period of detention is. when it shall have lasted for more
than three days, instead of five days
Circumstances which make illegal detention as originally provided;
serious
(2) In paragraph 4, if the person
(1) When the illegal detention lasted for kidnapped or detained was a minor
three days, regardless of who the and the offender was anyone of the
offended party is; parents, the latter has been
expressly excluded from the
(2) When the offended party is a female, provision. The liability of the parent
even if the detention lasted only for is provided for in the last paragraph
minutes; of Article 271;
(3) If the offended party is a minor or a (3) A paragraph was added to Article
public officer, no matter how long or 267, which states:
how short the detention is;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Article 268. Slight Illegal Detention If the illegal detention is serious, however,
even if the offender voluntarily released the
Elements offended party, and such release was within
three days from the time the detention
1. Offender is a private individual; began, even if the offender has not
accomplished his purpose in detaining the
2. He kidnaps or detains another, or in offended party, and even if there is no
any other manner deprives him of criminal prosecution yet, such voluntary
his liberty. release will not mitigate the criminal liability
of the offender.
3. The act of kidnapping or detention is
illegal; One who furnishes the place where the
offended party is being held generally acts
4. The crime is committed without the as an accomplice. But the criminal liability
attendance of any of the in connection with the kidnapping and
circumstances enumerated in Article serious illegal detention, as well as the
267. slight illegal detention, is that of the principal
and not of the accomplice.
This felony is committed if any of the five Before, in People v. Saliente, if the
circumstances in the commission of offended party subjected to serious illegal
kidnapping or detention enumerated in detention was voluntarily released by the
Article 267 is not present. accused in accordance with the provisions
of Article 268 (3), the crime, which would
The penalty is lowered if – have been serious illegal detention, became
slight illegal detention only.
(1) The offended party is voluntarily
released within three days from the The prevailing rule now is Asistio v. Judge,
start of illegal detention; which provides that voluntary release will
only mitigate criminal liability if crime was
(2) Without attaining the purpose; slight illegal detention. If serious, it has no
effect.
(3) Before the institution of the criminal
action. In kidnapping for ransom, voluntary release
will not mitigate the crime. This is because,
One should know the nature of the illegal with the reimposition of the death penalty,
detention to know whether the voluntary this crime is penalized with the extreme
release of the offended party will affect the penalty of death.
criminal liability of the offender.
What is ransom? It is the money, price or This felony consists in making an arrest or
consideration paid or demanded for detention without legal or reasonable
redemption of a captured person or ground for the purpose of delivering the
persons, a payment that releases a person offended party to the proper authorities.
from captivity.
The offended party may also be detained
The definition of ransom under the Lindberg but the crime is not illegal detention
law of the U.S. has been adopted in our because the purpose is to prosecute the
jurisprudence in People v. Akiran, 18 person arrested. The detention is only
SCRA 239, 242, such that when a creditor incidental; the primary criminal intention of
detains a debtor and releases the latter only the offender is to charge the offended party
upon the payment of the debt, such for a crime he did not actually commit.
payment of the debt, which was made a
condition for the release is ransom, under Generally, this crime is committed by
this article. incriminating innocent persons by the
offender’s planting evidence to justify the
In the case of People v. Roluna, decided arrest – a complex crime results, that is,
March 29, 1994, witnesses saw a person unlawful arrest through incriminatory
being taken away with hands tied behind his machinations under Article 363.
back and was not heard from for six years.
Supreme Court reversed the trial court If the arrest is made without a warrant and
ruling that the men accused were guilty of under circumstances not allowing a
kidnapping with murder. The crime is only warrantless arrest, the crime would be
slight illegal detention under Article 268, unlawful arrest.
aggravated by a band, since none of the
circumstances in Article 267 has been If the person arrested is not delivered to the
proved beyond a reasonable doubt. The authorities, the private individual making the
fact that the victim has been missing for six arrest incurs criminal liability for illegal
years raises a presumption of death, but detention under Article 267 or 268.
from this disputable presumption of death, it
should not be further presumed that the If the offender is a public officer, the crime is
persons who were last seen with the arbitrary detention under Article 124.
absentee is responsible for his
disappearance. If the detention or arrest is for a legal
ground, but the public officer delays delivery
of the person arrested to the proper judicial
Article 269. Unlawful Arrest authorities, then Article 125 will apply.
If the accused is any of the parents, Article This is committed if anyone shall purchase,
267 does not apply; Articles 270 and 271 kidnap, or detain a human being for the
apply. purpose of enslaving him. The penalty is
increased if the purpose of the offender is to
If the taking is with the consent of the assign the offended party to some immoral
parents, the crime in Article 270 is traffic.
committed.
This is distinguished from illegal detention
In People v. Generosa, it was held that by the purpose. If the purpose of the
deliberate failure to return a minor under kidnapping or detention is to enslave the
one’s custody constitutes deprivation of offended party, slavery is committed.
liberty. Kidnapping and failure to return a
minor is necessarily included in kidnapping The crime is slavery if the offender is not
and serious illegal detention of a minor engaged in the business of prostitution. If
under Article 267(4). he is, the crime is white slave trade under
Article 341.
In People v. Mendoza, where a minor child
was taken by the accused without the
knowledge and consent of his parents, it Article 273. Exploitation of Child Labor
was held that the crime is kidnapping and
serious illegal detention under Article 267, Elements
not kidnapping and failure to return a minor
under Article 270. 1. Offender retains a minor in his
services;
But remember Republic Act No. 7610 1. Qualified trespass to dwelling – This
(Special Protection of Children against Child may be committed by any private
Abuse, Exploitation and Discrimination Act). person who shall enter the dwelling
It applies to minors below 18 years old, not of another against the latter’s will.
16 years old as in the Revised Penal Code. The house must be inhabited at the
As long as the employment is inimical – time of the trespass although the
even though there is no physical risk – and occupants are out. Or offender
detrimental to the child’s interest – against breaks in with force and violence
moral, intellectual, physical, and mental (Article 280).
development of the minor – the
establishment will be closed. 2. Trespass to property - Offender
enters the closed premises or
Article 278 has no application if minor is 16 fenced estate of another; such close
years old and above. But the exploitation premises or fenced estate is
will be dealt with by Republic Act No. 7610. uninhabited; there is a manifest
prohibition against entering such
If the minor so employed would suffer some closed premises or fenced estate;
injuries as a result of a violation of Article and offender has not secured the
278, Article 279 provides that there would permission of the owner or caretaker
be additional criminal liability for the thereof (Article 281).
resulting felony.
(See also Presidential Decree No. 1227
Illustration: regarding unlawful entry into any military
base in the Philippines.)
The owner of a circus employed a child
under 16 years of age to do a balancing act
on the tightrope. The crime committed is
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Dwelling – This is the place that a person On violence, Cuello Calon opines that
inhabits. It includes the dependencies violence may be committed not only against
which have interior communication with the persons but also against things. So,
house. It is not necessary that it be the breaking the door or glass of a window or
permanent dwelling of the person. So, a door constitutes acts of violence. Our
person’s room in a hotel may be considered Supreme Court followed this view in People
a dwelling. It also includes a room where v. Tayag. Violence or intimidation must,
one resides as a boarder. however, be anterior or coetaneous with the
entrance and must not be posterior. But if
If the purpose in entering the dwelling is not the violence is employed immediately after
shown, trespass is committed. If the the entrance without the consent of the
purpose is shown, it may be absorbed in the owner of the house, trespass is committed.
crime as in robbery with force upon things, If there is also violence or intimidation, proof
the trespass yielding to the more serious of prohibition to enter is no longer
crime. But if the purpose is not shown and necessary.
while inside the dwelling he was found by
the occupants, one of whom was injured by Distinction between qualified trespass to
him, the crime committed will be trespass to dwelling and violation of domicile
dwelling and frustrated homicide, physical
injuries, or if there was no injury, unjust Unlike qualified trespass to dwelling,
vexation. violation of domicile may be committed only
by a public officer or employee and the
If the entry is made by a way not intended violation may consist of any of the three
for entry, that is presumed to be against the acts mentioned in Article 128 – (1) entering
will of the occupant (example, entry through the dwelling against the will of the owner
a window). It is not necessary that there be without judicial order; (2) searching papers
a breaking. or other effects found in such dwelling
without the previous consent of the owner
“Against the will” -- This means that the thereof; and (3) refusing to leave the
entrance is, either expressly or impliedly, dwelling when so requested by the owner
prohibited or the prohibition is presumed. thereof, after having surreptitiously entered
Fraudulent entrance may constitute such dwelling.
trespass. The prohibition to enter may be
made at any time and not necessarily at the Cases when Article 280 does not apply:
time of the entrance.
(1) When the purpose of the entrance is
To prove that an entry is against the will of to prevent serious harm to himself,
the occupant, it is not necessary that the the occupant or third persons;
entry should be preceded by an express
prohibition, provided that the opposition of (2) When the purpose of the offender in
the occupant is clearly established by the entering is to render some service to
circumstances under which the entry is humanity or justice;
made, such as the existence of enmity or
strained relations between the accused and (3) Anyone who shall enter cafes,
the occupant. taverns, inns and other public
houses while they are open .
arrest him without any warrant even if in the (1) Grave threats – when the wrong
process he enters the house of another threatened to be inflicted amounts to
against the latter’s will. a crime. The case falls under Article
282.
Article 281. Other forms of trespass
(2) Light threats – if it does not amount
Elements to a crime. The case falls under
Article 283.
1. Offender enters the closed premises
or the fenced estate of another; But even if the harm intended is in the
nature of a crime, if made orally and in the
2. The entrance is made while either of heat of anger and after the oral threat, the
them is uninhabited; issuer of the threat did not pursue the act,
the crime is only other light threats under
3. The prohibition to enter is manifest; Article 285.
4. The trespasser has not secured the To constitute grave threats, the threats must
permission of the owner or the refer to a future wrong and is committed by
caretaker thereof. acts or through words of such efficiency to
inspire terror or fear upon another. It is,
Article 282. Grave Threats therefore, characterized by moral pressure
that produces disquietude or alarm.
Acts punished:
The greater perversity of the offender is
1. Threatening another with the manifested when the threats are made
infliction upon his person, honor or demanding money or imposing any
property or that of this family of any condition, whether lawful or not, and the
wrong amounting to a crime and offender shall have attained his purpose.
demanding money or imposing any So the law imposes upon him the penalty
other condition, even though not next lower in degree than that prescribed for
unlawful, and the offender attained the crime threatened to be committed. But
his purpose; if the purpose is not attained, the penalty
lower by two degrees is imposed. The
2. Making such threat without the maximum period of the penalty is imposed if
offender attaining his purpose; the threats are made in writing or through a
middleman as they manifest evident
3. Threatening another with the premeditation.
infliction upon his person, honor or
property or that of his family of any Distinction between threat and coercion:
wrong amounting to a crime, the
threat not being subject to a The essence of coercion is violence or
condition. intimidation. There is no condition involved;
hence, there is no futurity in the harm or
wrong done.
Threat is a declaration of an intention or
determination to injure another by the In threat, the wrong or harm done is future
commission upon his person, honor or and conditional. In coercion, it is direct and
property or upon that of his family of some personal.
wrong which may or may not amount to a
crime: Distinction between threat and robbery:
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
In Lee v. CA, 201 SCAR 405, it was held In the other light coercions or unjust
that neither the crime of threats nor vexation embraced in the second
coercion is committed although the paragraph, violence is absent.
accused, a branch manager of a bank
made the complainant sign a withdrawal slip In unjust vexation, any act committed
for the amount needed to pay the spurious without violence, but which unjustifiably
dollar check she had encashed, and also annoys or vexes an innocent person
made her execute an affidavit regarding the amounts to light coercion.
return of the amount against her better
sense and judgment. According to the As a punishable act, unjust vexation should
court, the complainant may have acted include any human conduct which, although
reluctantly and with hesitation, but still, it not productive of some physical or material
was voluntary. It is different when a harm would, however, unjustifiably annoy or
complainant refuses absolutely to act such vex an innocent person.
an extent that she becomes a mere
automaton and acts mechanically only, not It is distinguished from grave coercion
of her own will. In this situation, the under the first paragraph by the absence of
complainant ceases to exits as an violence.
independent personality and the person
who employs force or intimidation is, in the Illustration:
eyes of the law, the one acting; while the
hand of the complainant sign, the will that Persons stoning someone else’s house. So
moves it is the hand of the offender. long as stoning is not serious and it is
intended to annoy, it is unjust vexation. It
disturbs the peace of mind.
Article 287. Light Coercions
The main purpose of the statute penalizing
Elements coercion and unjust vexation is precisely to
enforce the principle that no person may
1. Offender must be a creditor; take the law into his hands and that our
government is one of laws, not of men. The
2. He seizes anything belonging to his essence of the crimes is the attack on
debtor: individual liberty.
Article 289. Formation, Maintenance, The last paragraph of Article 290 expressly
and Prohibition of Combination of makes the provision of the first and second
Capital or Labor through Violence or paragraph thereof inapplicable to parents,
Threats guardians, or persons entrusted with the
custody of minors placed under their care or
Elements custody, and to the spouses with respect to
the papers or letters of either of them. The
1. Offender employs violence or teachers or other persons entrusted with the
threats, in such a degree as to care and education of minors are included
compel or force the laborers or in the exceptions.
employers in the free and legal
exercise of their industry or work;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
In a case decided by the Supreme Court, a whether or not the principal or master
spouse who rummaged and found love suffered damages.
letters of husband to mistress does not
commit this crime, but the letters are The essence of this crime is that the
inadmissible in evidence because of offender learned of the secret in the course
unreasonable search and seizure. The of his employment. He is enjoying a
ruling held that the wife should have applied confidential relation with the employer or
for a search warrant. master so he should respect the privacy of
matters personal to the latter.
Distinction from estafa, damage to property,
and unjust vexation: If the matter pertains to the business of the
employer or master, damage is necessary
If the act had been executed with intent of and the agent, employee or servant shall
gain, it would be estafa; always be liable. Reason: no one has a
right to the personal privacy of another.
If, on the other hand, the purpose was not
to defraud, but only to cause damage to
another’s, it would merit the qualification of Article 292. Revelation of Industrial
damage to property; Secrets
16. Other forms of swindling (Art. 316); 2. There is unlawful taking of that
property;
17. Swindling a minor (Art. 317);
3. The taking must be with intent to
18. Other deceits (Art. 318); gain; and
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
because the specific penalty is provided in that applies only to crimes against persons,
the law. if the killing in a robbery is committed with
treachery, the treachery will be considered
In Napolis v. CA, it was held that when a generic aggravating circumstance
violence or intimidation and force upon because of the homicide.
things are both present in the robbery, the
crime is complex under Article 48. When two or more persons are killed during
the robbery, such should be appreciated as
In robbery with violence of intimidation, the an aggravating circumstance.
taking is complete when the offender has
already the possession of the thing even if As long as there is only one robbery,
he has no opportunity to dispose of it. regardless of the persons killed, you only
have one crime of robbery with homicide.
In robbery with force upon things, the things Note, however, that “one robbery” does not
must be brought outside the building for mean there is only one taking.
consummated robbery to be committed.
Illustration:
Although it is a crime against property and In another case, a band of robbers entered
treachery is an aggravating circumstance a compound, which is actually a sugar mill.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Within the compound, there were quarters is a stranger to the robbers. It is enough
of the laborers. They robbed each of the that the homicide was committed by reason
quarters. The Supreme Court held that of the robbery or on the occasion thereof.
there was only one count of robbery
because when they decided and Illustration:
determined to rob the compound, they were
only impelled by one criminal intent to rob. There are two robbers who broke into a
house and carried away some valuables.
With more reason, therefore, if in a robbery, After they left such house these two robbers
the offender took away property belonging decided to cut or divide the loot already so
to different owners, as long as the taking that they can go of them. So while they are
was done at one time, and in one place, dividing the loot the other robber noticed
impelled by the same criminal intent to gain, that the one doing the division is trying to
there would only be one count of robbery. cheat him and so he immediately boxed
him. Now this robber who was boxed then
In robbery with homicide as a single pulled out his gun and fired at the other one
indivisible offense, it is immaterial who gets killing the latter. Would that bring about the
killed. Even though the killing may have crime of robbery with homicide? Yes. Even
resulted from negligence, you will still if the robbery was already consummated,
designate the crime as robbery with the killing was still by reason of the robbery
homicide. because they quarreled in dividing the loot
that is the subject of the robbery.
Illustration:
In People v. Domingo, 184 SCRA 409, on
On the occasion of a robbery, one of the the occasion of the robbery, the storeowner,
offenders placed his firearm on the table. a septuagenarian, suffered a stroke due to
While they were ransacking the place, one the extreme fear which directly caused his
of the robbers bumped the table. As a death when the robbers pointed their guns
result, the firearm fell on the floor and at him. It was held that the crime committed
discharged. One of the robbers was the was robbery with homicide. It is immaterial
one killed. Even though the placing of the that death supervened as a mere accident
firearm on the table where there is no safety as long as the homicide was produced by
precaution taken may be considered as one reason or on the occasion of the robbery,
of negligence or imprudence, you do not because it is only the result which matters,
separate the homicide as one of the product without reference to the circumstances or
of criminal negligence. It will still be robbery causes or persons intervening in the
with homicide, whether the person killed is commission of the crime which must be
connected with the robbery or not. He need considered.
not also be in the place of the robbery.
Remember also that intent to rob must be
In one case, in the course of the struggle in proved. But there must be an allegation as
a house where the robbery was being to the robbery not only as to the intention to
committed, the owner of the place tried to rob.
wrest the arm of the robber. A person
several meters away was the one who got If the motive is to kill and the taking is
killed. The crime was held to be robbery committed thereafter, the crimes committed
with homicide. are homicide and theft. If the primordial
intent of the offender is to kill and not to rob
Note that the person killed need not be one but after the killing of the victims a robbery
who is identified with the owner of the place was committed, then there are will be two
where the robbery is committed or one who separate crimes.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
If the robbers quarreled over the loot and Robbery with homicide, robbery with
one of the robbers hacked the other robber intentional mutilation and robbery with rape
causing a deformity in his face, the crime are not qualified by band or uninhabited
will only be robbery and a separate charge place. These aggravating circumstances
for the serious physical injuries because only qualify robbery with physical injuries
when it is a deformity that is caused, the law under subdivision 2, 3, and 4 of Article 299.
requires that the deformity must have been
inflicted upon one who is not a participant in When it is robbery with homicide, the band
the robbery. Moreover, the physical injuries or uninhabited place is only a generic
which gave rise to the deformity or which aggravating circumstance. It will not qualify
incapacitated the offended party from labor the crime to a higher degree of penalty.
for more than 30 days, must have been
inflicted in the course of the execution of the In People v. Salvilla, it was held that if in a
robbery or while the robbery was taking robbery with serious physical injuries, the
place. offenders herded the women and children
into an office and detained them to compel
If it was inflicted when the thieves/robbers the offended party to come out with the
are already dividing the spoils, it cannot be money, the crime of serious illegal detention
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
was a necessary means to facilitate the Article 295. Robbery with Physical
robbery; thus, the complex crimes of Injuries, Committed in An Uninhabited
robbery with serious physical injuries and Place and by A Band
serious illegal detention.
Robbery with violence against or
But if the victims were detained because of intimidation of person qualified is qualified if
the timely arrival of the police, such that the it is committed
offenders had no choice but to detain the
victims as hostages in exchange for their 1. In an uninhabited place;
safe passage, the detention is absorbed by
the crime of robbery and is not a separate 2. By a band;
crime. This was the ruling in People v.
Astor. 3. By attacking a moving train, street
car, motor vehicle, or airship;
c. By using false keys, Two predicates that will give rise to the
picklocks or similar tools; or crime as robbery:
3. Once inside the building, offender 2. The entering will not give rise to
took personal property belonging to robbery even if something is taken
another with intent to gain. inside. It is the breaking of the
receptacle or closet or cabinet
where the personal property is kept
Elements under subdivision (b): that will give rise to robbery, or the
taking of a sealed, locked receptacle
to be broken outside the premises.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
The entry was made through a fire escape. If the entering does not characterize the
The fire escape was intended for egress. taking inside as one of robbery with force
The entry will not characterize the taking as upon things, it is the conduct inside that
one of robbery because it is an opening would give rise to the robbery if there would
intended for egress, although it may not be be a breaking of sealed, locked or closed
intended for entrance. If the entering were receptacles or cabinet in order to get the
done through the window, even if the personal belongings from within such
window was not broken, that would receptacles, cabinet or place where it is
characterize the taking of personal property kept.
inside as robbery because the window is
not an opening intended for entrance. If in the course of committing the robbery
within the premises some interior doors are
Illustration: broken, the taking from inside the room
where the door leads to will only give rise to
On a sari-sari store, a vehicle bumped the theft. The breaking of doors contemplated in
wall. The wall collapsed. There was a the law refers to the main door of the house
small opening there. At night, a man and not the interior door.
entered through that opening without
breaking the same. The crime will already But if it is the door of a cabinet that is
be robbery if he takes property from within broken and the valuable inside the cabinet
because that is not an opening intended for was taken, the breaking of the cabinet door
the purpose. would characterize the taking as robbery.
Although that particular door is not included
Even of there is a breaking of wall, roof, as part of the house, the cabinet keeps the
floor or window, but the offender did not contents thereof safe.
enter, it would not give rise to robbery with
force upon things.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Use of picklocks or false keys refers to the inside claiming that it is the product of
entering into the premises – If the picklock hoarding and then drove away. What crime
or false key was used not to enter the was committed?
premises because the offender had already
entered but was used to unlock an interior It is only theft because the premises
door or even a receptacle where the where the simulation of public authority was
valuable or personal belonging was taken, committed is not an inhabited house, not a
the use of false key or picklock will not give public building, and not a place devoted to
rise to the robbery with force upon things religious worship. Where the house is a
because these are considered by law as private building or is uninhabited, even
only a means to gain entrance, and not to though there is simulation of public authority
extract personal belongings from the place in committing the taking or even if he used a
where it is being kept. fictitious name, the crime is only theft.
The law classifies robbery with force upon Note that in the crime of robbery with force
things as those committed in: upon things, what should be considered is
the means of entrance and means of taking
(1) an inhabited place; the personal property from within. If those
means do not come within the definition
(2) public buildings; under the Revised Penal Code, the taking
will only give rise to theft.
(3) a place devoted to religious worship.
Those means must be employed in
The law also considers robbery committed entering. If the offender had already
not in an inhabited house or in a private entered when these means were employed,
building. anything taken inside, without breaking of
any sealed or closed receptacle, will not
Note that the manner of committing the give rise to robbery.
robbery with force upon things is not the
same. Illustration:
When the robbery is committed in a house A found B inside his (A’s) house. He asked
which is inhabited, or in a public building or B what the latter was doping there. B
in a place devoted to religious worship, the claimed he is an inspector from the local
use of fictitious name or pretension to city government to look after the electrical
possess authority in order to gain entrance installations. At the time B was chanced
will characterize the taking inside as upon by A, he has already entered. So
robbery with force upon things. anything he took inside without breaking of
any sealed or closed receptacle will not give
rise to robbery because the simulation of
public authority was made not in order to
Question & Answer
enter but when he has already entered.
a. The entrance was effected Article 305 defines false keys to include the
through an opening not following:
intended for entrance or
egress; 1. Tools mentioned in Article 304;
b. A wall, roof, floor, or outside 2. Genuine keys stolen from the owner;
door or window was broken;
3. Any key other than those intended
c. The entrance was effected by the owner for use in the lock
through the use of false keys, forcibly opened by the offender.
picklocks or other similar
tools;
Brigandage – This is a crime committed by
more than three armed persons who form a
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Burden of proof is upon fence to overcome Where the large cattle was received by the
presumption; if explanation insufficient or offender who thereafter misappropriated it,
unsatisfactory, court will convict. This is a the crime is qualified theft under Article 310
malum prohibitum so intent is not material. if only physical or material possession
But if prosecution is under the Revised thereof was yielded to him. If both material
Penal Code, as an accessory, the criminal and juridical possession thereof was yielded
intent is controlling. to him who misappropriated the large cattle,
the crime would be estafa under Article 315
When there is notice to person buying, (1b).
there may be fencing such as when the
price is way below ordinary prices; this may
serve as notice. He may be liable for
fencing even if he paid the price because of
the presumption.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Presidential Decree No. 533 is not a special If the property stolen is any property of the
law in the context of Article 10 of the National Library or of the National Museum
Revised Penal Code. It merely modified the
penalties provided for theft of large cattle Article 312. Occupation of Real Property
under the Revised Penal Code and or Usurpation of Real Rights in Property
amended Article 309 and 310. This is
explicit from Section 10 of the Presidential Acts punished:
Decree. Consequently, the trial court
should not have convicted the accused of 1. Taking possession of any real
frustrated murder separately from cattle- property belonging to another by
rustling, since the former should have been means of violence against or
absorbed by cattle-rustling as killing was a intimidation of persons;
result of or on the occasion of cattle-
rustling. It should only be an aggravating 2. Usurping any real rights in property
circumstance. But because the information belonging to another by means of
did not allege the injury, the same can no violence against or intimidation of
longer be appreciated; the crime should, persons.
therefore be only, simple cattle-rustling.
(People v. Martinada, February 13, 1991)
Elements
Acts punished under paragraph (a) bracelet and draws a check without
insufficient funds. The jeweler sells
1. Using fictitious name; her the bracelet solely because of
the consideration in the check.)
2. Falsely pretending to possess
power, influence, qualifications, (3) It does not cover checks where the
property, credit, agency, business or purpose of drawing the check is to
imaginary transactions; or guarantee a loan as this is not an
obligation contemplated in this
3. By means of other similar deceits. paragraph
In Saddul Jr. v. CA, 192 SCRA 277, it was existing obligation, there is no estafa as
held that the act of using or disposing of damage had already been done. The
another’s property as if it were one’s own, drawer is liable under Batas Pambansa Blg.
or of devoting it to a purpose or use 22.
different from that agreed upon, is a
misappropriation and conversion to the For criminal liability to attach under Batas
prejudice of the owner. Conversion is Pambansa Blg. 22, it is enough that the
unauthorized assumption an exercise of the check was issued to "apply on account or
right of ownership over goods and chattels for value" and upon its presentment it was
belonging to another, resulting in the dishonored by the drawee bank for
alteration of their condition or exclusion of insufficiency of funds, provided that the
the owner’s rights. drawer had been notified of the dishonor
and inspite of such notice fails to pay the
In Allied Bank Corporation v. Secretary holder of the check the full amount due
Ordonez, 192 SCRA 246, it was held that thereon within five days from notice.
under Section 13 of Presidential Decree No.
115, the failure of an entrustee to turn over Under Batas Pambansa Blg. 22, a drawer
the proceeds of sale of the goods covered must be given notice of dishonor and given
by the Trust Receipt, or to return said goods five banking days from notice within which
if they are not sold, is punishable as estafa to deposit or pay the amount stated in the
Article 315 (1) (b). check to negate the presumtion that drawer
knew of the insufficiency. After this period,
it is conclusive that drawer knew of the
On issuance of a bouncing check insufficiency, thus there is no more defense
to the prosecution under Batas Pambansa
The issuance of check with insufficient Blg. 22.
funds may be held liable for estafa and
Batas Pambansa Blg. 22. Batas Pambansa The mere issuance of any kind of check
Blg. 22 expressly provides that prosecution regardless of the intent of the parties,
under said law is without prejudice to any whether the check is intended to serve
liability for violation of any provision in the merely as a guarantee or as a deposit,
Revised Penal Code. Double Jeopardy makes the drawer liable under Batas
may not be invoked because a violation of Pambansa Blg. 22 if the check bounces. As
Batas Pambansa Blg. 22 is a malum a matter of public policy, the issuance of a
prohibitum and is being punished as a crime worthless check is a public nuisance and
against the public interest for undermining must be abated.
the banking system of the country, while
under the RevisedPenal Code, the crime is In De Villa v. CA, decided April 18, 1991,
malum in se which requires criminal intent it was held that under Batas Pambansa Blg.
and damage to the payee and is a crime 22, there is no distinction as to the kind of
against property. check issued. As long as it is delivered
within Philippine territory, the Philippine
In estafa, the check must have been issued courts have jurisdiction. Even if the check
as a reciprocal consideration for parting of is only presented to and dishonored in a
goods (kaliwaan). There must be Philippine bank, Batas Pambansa Blg. 22
concomitance. The deceit must be prior to applies. This is true in the case of dollar or
or simultaneous with damage done, that is, foreign currency checks. Where the law
seller relied on check to part with goods. If makes no distinction, none should be made.
it is issued after parting with goods as in
credit accommodation only, there is no In People v. Nitafan, it was held that as
estafa. If the check is issued for a pre- long as instrument is a check under the
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
But overdraft or credit arrangement may be 4. The act is made to the prejudice to
allowed by banks as to their preferred the owner or a third person.
clients and Batas Pambansa Blg. 22 does
not apply. If check bounces, it is because
bank has been remiss in honoring Under paragraph 2 – by disposing of real
agreement. property as free from encumbrance,
although such encumbrance be not
The check must be presented for payment recorded
within a 90-day period. If presented for
payment beyond the 90 day period and the Elements
drawer’s funds are insufficient to cover it,
there is no Batas Pambansa Blg. 22 1. The thing disposed is a real
violation. property:
Where check was issued prior to August 8, 2. Offender knew that the real property
1984, when Circular No. 12 of the was encumbered, whether the
Department of the Justice took effect, and encumbrance is recorded or not;
the drawer relied on the then prevailing
Circular No. 4 of the Ministry of Justice to 3. There must be express
the effect that checks issued as part of an representation by offender that the
arrangement/agreement of the parties to real property is free from
guarantee or secure fulfillment of an encumbrance;
obligation are not covered by Batas
Pambansa Blg. 22, no criminal liability 4. The act of disposing of the real
should be incurred by the drawer. Circular property is made to the damage of
should not be given retroactive effect. another.
(Lazaro v. CA, November 11, 1993, citing
People v. Alberto, October 28, 1993)
Under paragraph 3 – by wrongfully taking by
the owner of his personal property from its
Article 316. Other Forms of Swindling lawful possessor
Acts punished
Elements:
Arson
1. Personal property is
mortgaged under the Chattel Kinds of arson
Mortgage Law;
1. Arson, under Section 1 of
2. Offender knows that such Presidential Decree No. 1613;
property is so mortgaged;
2. Destructive arson, under Article 320
3. Offender removes such of the Revised Penal Code, as
mortgaged personal property amended by Republic Act No. 7659;
to any province or city other
than the one in which it was 3. Other cases of arson, under Section
located at the time of the 3 of Presidential Decree No. 1613.
execution of the mortgage;
4. The removal is permanent; Article 327. Who Are Liable for Malicious
Mischief
5. There is no written consent of
the mortgagee or his Elements
executors, administrators or
assigns to such removal. 1. Offender deliberately caused
damage to the property of another;
2. Selling or pledging personal property
already pledged, or any part thereof, 2. Such act does not constitute arson
under the terms of the Chattel or other crimes involving destruction;
Mortgage Law, without the consent
of the mortgagee written on the back 3. The act of damaging another’s
of the mortgage and noted on the property was committed merely for
record thereof in the office of the the sake of damaging it;
register of deeds of the province
where such property is located.
There is destruction of the property of
Elements: another but there is no misappropriation.
Otherwise, it would be theft if he gathers the
1. Personal property is already effects of destruction.
pledged under the terms of
the Chattel Mortgage Law;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Article 328. Special Case of Malicious Persons exempted from criminal liability
Mischief
1. Spouse, ascendants and
Acts punished descendants, or relatives by affinity
in the same line;
1. Causing damage to obstruct the
performance of public functions; 2. Widowed spouse with respect to the
property which belonged to the
2. Using any poisonous or corrosive deceased spouse before the same
substance; passed into the possession of
another
3. Spreading any infection or contagion
among cattle; 3. Brothers and sisters and brothers-in-
law and sisters-in-law, if living
4. Causing damage to the property of together.
the National Museum or National
Library, or to any archive or registry,
waterworks, road, promenade, or Only the relatives enumerated incur no
any other thing used is common by liability if the crime relates to theft (not
the pubic. robbery), swindling, and malicious mischief.
Third parties who participate are not
exempt. The relationship between the
Article 329. Other Mischiefs spouses is not limited to legally married
couples; the provision applies to live-in
All other mischiefs not included in the next partners.
preceding article
Estafa should not be complexed with any
other crime in order for exemption to
Article 330. Damage and Obstruction to operate.
Means of Communication
This is committed by damaging any railway, TITLE XI. CRIMES AGAINST CHASTITY
telegraph or telephone lines.
Crimes against chastity
Note that there are two kinds of acts of Always remember that there can be no
lasciviousness under the Revised Penal frustration of acts of lasciviousness, rape or
Code: (1) under Article 336, and (2) under adultery because no matter how far the
Article 339. offender may have gone towards the
realization of his purpose, if his participation
1. Article 336. Acts of Lasciviousness amounts to performing all the acts of
execution, the felony is necessarily
Under this article, the offended party produced as a consequence thereof.
may be a man or a woman. The
crime committed, when the act Intent to rape is not a necessary element of
performed with lewd design was the crime of acts of lasciviousness.
perpetrated under circumstances Otherwise, there would be no crime of
which would have brought about the attempted rape.
crime of rape if sexual intercourse
was effected, is acts of
lasciviousness under this article. Article 337. Qualified Seduction
This means that the offended party
is either – Acts punished
This crime also involves sexual intercourse. Article 338. Simple Seduction
The offended woman must be over 12 but
below 18 years. Elements
The distinction between qualified seduction 1. Offender party is over 12 and under
and simple seduction lies in the fact, among 18 years of age;
others, that the woman is a virgin in
qualified seduction, while in simple 2. She is of good reputation, single or
seduction, it is not necessary that the widow;
woman be a virgin. It is enough that she is
of good repute. 3. Offender has sexual intercourse with
her;
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Unlike in qualified seduction, virginity is not Article 341. White Slave Trade
essential in this crime. What is required is
that the woman be unmarried and of good Acts punished
reputation. Simple seduction is not
synonymous with loss of virginity. If the 1. Engaging in the business of
woman is married, the crime will be prostitution;
adultery.
2. Profiting by prostitution;
The failure to comply with the promise of
marriage constitutes the deceit mentioned 3. Enlisting the services of women for
in the law. the purpose of prostitution.
2. The acts are committed upon a 2. The abduction is against her will;
woman who is a virgin or single or
widow of good reputation, under 18 3. The abduction is with lewd designs.
years of age but over 12 years, or a
sister or descendant, regardless of
her reputation or age; A woman is carried against her will or
brought from one place to another against
3. Offender accomplishes the acts by her will with lewd design.
abuse of authority, confidence,
relationship, or deceit. If the element of lewd design is present, the
carrying of the woman would qualify as
Article 340. Corruption of Minors abduction; otherwise, it would amount to
kidnapping. If the woman was only brought
to a certain place in order to break her will
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
and make her agree to marry the offender, person abducted need not be shown. The
the crime is only grave coercion because intent to seduce a girl is sufficient.
the criminal intent of the offender is to force
his will upon the woman and not really to If there is a separation in fact, the taking by
restrain the woman of her liberty. the husband of his wife against her will
constitutes grave coercion.
If the offended woman is under 12 years
old, even if she consented to the abduction, Distinction between forcible abduction and
the crime is forcible abduction and not illegal detention:
consented abduction.
When a woman is kidnapped with lewd or
Where the offended woman is below the unchaste designs, the crime committed is
age of consent, even though she had gone forcible abduction.
with the offender through some deceitful
promises revealed upon her to go with him When the kidnapping is without lewd
and they live together as husband and wife designs, the crime committed is illegal
without the benefit of marriage, the ruling is detention.
that forcible abduction is committed by the
mere carrying of the woman as long as that But where the offended party was forcibly
intent is already shown. In other words, taken to the house of the defendant to
where the man cannot possibly give the coerce her to marry him, it was held that
woman the benefit of an honorable life, all only grave coercion was committed and not
that man promised are just machinations of illegal detention.
a lewd design and, therefore, the carrying
of the woman is characterized with lewd
design and would bring about the crime of Article 343. Consented Abduction
abduction and not kidnapping. This is also
true if the woman is deprived of reason and Elements
if the woman is mentally retardate. Forcible
abduction is committed and not consented 1. Offended party is a virgin;
abduction.
2. She is over 12 and under 18 years
Lewd designs may be demonstrated by the of age;
lascivious acts performed by the offender
on her. Since this crime does not involve 3. Offender takes her away with her
sexual intercourse, if the victim is subjected consent, after solicitation or cajolery;
to this, then a crime of rape is further
committed and a complex crime of forcible 4. The taking away is with lewd
abduction with rape is committed. designs.
view adopted in cases of similar nature is to is his or hers alone, because the indignity or
the effect that where more than one person dishonor brought about by these crimes
has effected the forcible abduction with affects more the offended party than social
rape, all the rapes are just the order. The offended party may prefer to
consummation of the lewd design which suffer the outrage in silence rather than to
characterizes the forcible abduction and, vindicate his honor in public.
therefore, there should only be one forcible
abduction with rape. In the crimes of rape, abduction and
seduction, if the offended woman had given
In the crimes involving rape, abduction, birth to the child, among the liabilities of the
seduction, and acts of lasciviousness, the offender is to support the child. This
marriage by the offender with the offended obligation to support the child may be true
woman generally extinguishes criminal even if there are several offenders. As to
liability, not only of the principal but also of whether all of them will acknowledge the
the accomplice and accessory. However, child, that is a different question because
the mere fact of marriage is not enough the obligation to support here is not founded
because it is already decided that if the on civil law but is the result of a criminal act
offender marries the offended woman or a form of punishment.
without any intention to perform the duties
of a husband as shown by the fact that after It has been held that where the woman was
the marriage, he already left her, the the victim of the said crime could not
marriage would appear as having been possibly conceive anymore, the trial court
contracted only to avoid the punishment. should not provide in its sentence that the
Even with that marriage, the offended accused, in case a child is born, should
woman could still prosecute the offender support the child. This should only be
and that marriage will not have the effect of proper when there is a probability that the
extinguishing the criminal liability. offended woman could give birth to an
offspring.
Pardon by the offended woman of the
offender is not a manner of extinguishing
criminal liability but only a bar to the TITLE XII. CRIMES AGAINST THE CIVIL
prosecution of the offender. Therefore, that STATUS OF PERSONS
pardon must come before the prosecution is
commenced. While the prosecution is Crimes against the civil status of persons
already commenced or initiated, pardon by
the offended woman will no longer be 1. Simulation of births, substitution of
effective because pardon may preclude one child for another and
prosecution but not prevent the same. concealment or abandonment of a
legitimate child (art. 347);
All these private crimes – except rape –
cannot be prosecuted de officio. If any 2. Usurpation of civil status (Art. 348);
slander or written defamation is made out of
any of these crimes, the complaint of the 3. Bigamy (Art. 349);
offended party is till necessary before such
case for libel or oral defamation may 4. Marriage contracted against
proceed. It will not prosper because the provisions of law (Art. 350);
court cannot acquire jurisdiction over these
crimes unless there is a complaint from the 5. Premature marriages (Art. 351);
offended party. The paramount decision of
whether he or she wanted the crime 6. Performance of illegal marriage
committed on him or her to be made public ceremony (Art. 352).
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
If the child is being kidnapped and they This crime is committed when a person
knew that the kidnappers are not the real represents himself to be another and
parents of their child, then simulation of assumes the filiation or the parental or
birth is committed. If the parents are parties conjugal rights of such another person.
to the simulation by making it appear in the
birth certificate that the parents who bought
the child are the real parents, the crime is Thus, where a person impersonates
not falsification on the part of the parents another and assumes the latter's right as
and the real parents but simulation of birth. the son of wealthy parents, the former
commits a violation of this article.
could not yet be presumed dead Distinction between bigamy and illegal
according to the Civil Code; marriage:
1. A widow who is married within 301 7. Intriguing against honor (Art. 364).
days from the date of the death of
her husband, or before having
delivered if she is pregnant at the Article 353. Definition of Libel
time of his death;
A libel is a public and malicious imputation
2. A woman who, her marriage having of a crime, or of a vice or defect, real or
been annulled or dissolved, married imaginary, or any act, omission, condition,
before her delivery or before the status, or circumstances tending to cause
expiration of the period of 301 days the dishonor, discredit, or contempt of a
after the date of the legal separation. natural or juridical person, or to blacken the
memory of one who is dead.
TITLE XIII. CRIMES AGAINST HONOR 5. The imputation must tend to cause
the dishonor, discredit or contempt
Crimes against honor of the person defamed.
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
Distinction between malice in fact and will be admitted to take the place of malice
malice in law in law. When the defamatory statement or
utterance is qualifiedly privileged, the malice
Malice in fact is the malice which the law in law is negated. The utterance or
presumes from every statement whose statement would not be actionable because
tenor is defamatory. It does not need proof. malice in law does not exist. Therefore, for
The mere fact that the utterance or the complainant to prosecute the accused
statement is defamatory negates a legal for libel, oral defamation or slander, he has
presumption of malice. to prove that the accused was actuated with
malice (malice in fact) in making the
In the crime of libel, which includes oral statement.
defamation, there is no need for the
prosecution to present evidence of malice. When a libel is addressed to several
It is enough that the alleged defamatory or persons, unless they are identified in the
libelous statement be presented to the court same libel, even if there are several
verbatim. It is the court which will prove persons offended by the libelous utterance
whether it is defamatory or not. If the tenor or statement, there will only be one count of
of the utterance or statement is defamatory, libel.
the legal presumption of malice arises even
without proof. If the offended parties in the libel were
distinctly identified, even though the libel
Malice in fact becomes necessary only if the was committed at one and the same time,
malice in law has been rebutted. there will be as many libels as there are
Otherwise, there is no need to adduce persons dishonored.
evidence of malice in fact. So, while malice
in law does not require evidence, malice in Illustration:
fact requires evidence.
If a person uttered that “All the Marcoses
Malice in law can be negated by evidence are thieves," there will only be one libel
that, in fact, the alleged libelous or because these particular Marcoses
defamatory utterance was made with good regarded as thieves are not specifically
motives and justifiable ends or by the fact identified.
that the utterance was privileged in
character. If the offender said, “All the Marcoses – the
father, mother and daughter are thieves.”
In law, however, the privileged character of There will be three counts of libel because
a defamatory statement may be absolute or each person libeled is distinctly dishonored.
qualified.
If you do not know the particular persons
When the privileged character is said to be libeled, you cannot consider one libel as
absolute, the statement will not be giving rise to several counts of libel. In
actionable whether criminal or civil because order that one defamatory utterance or
that means the law does not allow imputation may be considered as having
prosecution on an action based thereon. dishonored more than one person, those
persons dishonored must be identified.
Illustration: Otherwise, there will only be one count of
libel.
As regards the statements made by
Congressmen while they are deliberating or Note that in libel, the person defamed need
discussing in Congress, when the privileged not be expressly identified. It is enough that
character is qualified, proof of malice in fact he could possibly be identified because
REVISED ORTEGA LECTURE NOTES ON CRIMINAL LAW
The crime is libel is the defamation is in Article 355. Libel by Means of Writings
writing or printed media. or Similar Means
the crime – hush money. (US v. Eguia, et 2. Such act is performed in the
al., 38 Phil. 857) Blackmail is possible in presence of other person or
(1) light threats under Article 283; and (2) persons;
threatening to publish, or offering to prevent
the publication of, a libel for compensation, 3. Such act casts dishonor, discredit or
under Article 356. contempt upon the offended party.