CRIMINAL LAW II MIDTERMS (FISCAL PETRALBA)
LECTURE 1 FEBRUARY 18 2020
Frauds and Illegal Exactions
• Crimes punished under RA 3019.
Article 213- frauds against the public treasury and similar offences
214- Other frauds
215 - prohibited transactions
216 - Possession of prohibited interest by a public officer.
• Crimes committed by public officers
• The passage of RA 3019, most cases are now filed under RA 3019
and not under RA 3019. This results in a lot of suspension even if the
officer is not convicted there is already punishment, because there is
preventive suspension for the administrative case. 3019 can also result
in an administrative case.
• In 3019, there are two preventive suspensions. He is not yet found
guilty but he may be subject to preventive suspension for both criminal
and administrative case
Malversation of Public Funds (Article 217)
• Jurisprudence is rich to malversation because under RPC it has the
definition and interpretation of elements.
• There may be prosecution under 3019, no double jeopardy
Elements
1. Offender is an accountable officer - not committed by just any
officer, he must be charged with the custody of public funds
2. Public funds or property are involved
3. Custody by reason of his office
4. Misappropriation (either by himself or by another)- may be
committed by another person
5. Committed through intent or negligence (dolo/culpa)
Example: A treasurer entrusted with money to be brought to the city
but he left his bag and someone took away the money. The treasurer
can still be liable for the malversation because it says that the
misappropriation be committed by another person. The reason may not
be intentional and may be even by reason of negligence.
Malversation may be committed by negligence but it is a crime of male
in se (good faith can be a defense).
If there is no negligence and no intent but there is good faith then that
good faith can be a defense
• "Accountable Officers"
A string of cases expanded the meaning of certain elements. In
,malversation when the law says that the person who can be held liable
for malversation should be an accountable officer. When the law says
public officer it does not always mean he is a treasurer because if a
person even if he is not in the regular course, if it is not his job
description even if having custody of funds is not part of the position. If
in that particular moment he is authorised to have custody, he is
considered as an accountable officer for that instance.
For example: The people from DSWD are tasked to provide the 4P's,
when they distribute it they will temporarily hold public funds and when
they misappropriate it they can still be held liable for malversation even
if they are not really accountable officers in the job.
SC: It is not necessary that it is their permanent position it is essential
that at the time of the taking he was accountable (check audio)
• "Public Funds"
The term public funds or property has also been stretched. The
traditional notion is that these are properties belonging to the
government.
SC: Even if property does not belong to the government but it is to be
used for a public purpose it will acquire the nature of a public fund or
property. Misappropriation of this fund will still give rise to malversation.
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For example: There is a calamity and goods and money are donated to
the DSWD. These funds do not belong to the government, strictly
speaking they were owned by private individuals but donated for public
purpose. If any person misappropriates, the crime will still be
malversation.
Custody may be a temporary authority provided that the reason he
acquired custody was because of his office.
CASE: People vs Tolentino 69 Phil 715
Malversation from Estafa
In order to distinguish malversation from estafa ( even public officer
can commit estafa) even if he uses or pretends to use his office.
In Estate, even if he uses his public office to defraud somebody, he
can still do that provided that the funds are public in nature. The
offender in malversation acts in his public capacity. In estafa- private
capacity but it will not discount a public officer from committing estafa.
For example: Tax collector asks someone to pay tax but there is no
actual law for the requirement of tax. The reason for him being able to
Collect money is from his public office. When he got the money, that is
not malversation even if he is a public officer because the money he
got is not public at all because there is no law authorising the collection
of the money. Otherwise, this would be (check audio*)
Even if Tolentino is saying that to commit estafa, you (check
recording*) it does not discount the fact that estafa may still be
committed by a public officer using his public authority.
Here there is taking but he is not misappropriating a public fund
because there is no law.
In estafa, there is a stage between the consummation of the crime and
the ripening of the criminal liability. During that window, if damage is
returned, even if consummated it will not ripen into criminal liability
(incipient criminal liability).
For malversation, during the audit and malversation is found out then
the crime is automatically consummated and thus gives rise to criminal
liability. If the official reimburses it (it may be considered mitigating:
People vs Lumauig 2014) The effect of reimbursement is different.
Despite the return it will only give rise to extinction of civil liability but
criminal liability subsists. There is no incipient liability or window, then
demand is not necessary.
In Estafa, there is one kind where demand is necessary. For example
in checks, the demand must be in writing. Without it the criminal liability
will not be ripe. In malversation, once there is unexplained shortage,
there is malversation regardless of reimbursement.
When can a private person commit malversation:
1. He conspires with a public official in the malversation
2. Accomplice or accessory to malversation
3. Entrusted with the custody of public funds and misappropriates the
same
4. Made the depository of funds or property seized or attached by
government order even if the property belongs to a private person.
For example: Employees of MLhullier who distribute the 4P's
(Question: What if the person does not know??)
Technical Malversation (220)
• Public funds is still used for a public purpose but it was earmarked for
another articular public purpose
• If there is misappropriation or appropriation for another purpose. It is
possible that no one is prejudiced or that there is no damage or even
benefit but if a person that has been allocated for a certain purpose are
spent for another purpose that is considered as technical malversation
 CRIMINAL LAW II MIDTERMS (FISCAL PETRALBA)
• Public funds can only be expended in accordance with a law or an
ordinance.
For example:
There is a budget passed by Congress thru DPWH. 100 Million for the
construction of a bridge but there is no river. So instead they decide to
build a health centre for the community.
If you want to divert the money, there must be realignment of funds.
There must be another law or ordinance to amend the previous
ordinance otherwise there will be a crime.
LECTURE 2 MIDTERMS February 20 2020
Malversation from Technical Malversation
No misappropriation, so what constitutes the crime is the act of
spending public funds allocated funds for one purpose without authority
therefore.
CASE: Parungao v Sandiganbayan GR 96025
May the sandiganbayan after finding that a municipal treasurer
charged with malversation of public funds is not guilty thereof
nevertheless convict him in the same criminal case for illegal use of
public funds.
NO. Technical malversation is not necessarily included in malversation
as the elements are not the same.
Technical malversation is not identical or included or not an attempt to
commit malversation. The elements are not the same.
If a person is charged with malversation and not found to have
commuted malversation and the elements of malversation are not
present he cannot be convicted for technical malversation as this
would be against the constitutional right of the accused to be informed
of the nature of the accusation against him
If acquitted, another case for technical malversation may be brought
and there will be no double jeopardy.
221 Failure to Deliver Public Funds or Property
• There must be an obligation to pay from funds in his possession or to
deliver property in his custody or administration.
Example: There are funds not delivered to calamity-stricken areas.
Infidelity of Public Officers
1. Infidelity in the custody of prisoners- committed by the person having
custody. (Article 223-224)
2. Infidelity in the custody of documents- public officials who have the
authority to have custody over certain documents. (Sanguniang
Secretary, Local Registrar's Office)
3. Revelation of secrets
If the escape is without the connivance of a public officer the crime will
be removal.
Evasion, Removal and Infidelity
• Evasion is committed by the convicted prisoner
• Removal committed by any person, prisoner maybe convicted or not
• Infidelity committed by a public officer has custody (223) or by a
private person has custody (225), could refer to convicted prisoner.
Recognisance Law- When a person commits a bailable offense he will
have the option of bail bond, property bond,
If he cannot afford to post bail, the property must be titled but most of
the properties are not titled. If a person is unable to post bail he can
avail of recognisance law.
Someone will vouch for your character that you will not abscond. Under
this law, someone (not relative) which can be a church official, a
person of good standing will vouch for the integrity or character of the
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accused and undertake to have custody of the accused. If the accused
flees, the third person who ensured may be criminally liable.
*Article 225 may apply since the person has custody.
Instances when private person has custody over somebody:
• Hospital arrest. The private facility will have custody. For example:
first offender's penalty is rehabilitation. If a person has pending case,
the rehab will have custody.
Offenses in Relation to Elective Office
Article 234- Refusal to discharge elective office
Article 236 Anticipation of duties of a public office
Article 237 Prolonging performance of duties and powers
Article 238 Abandonment of Office
• Elections happen in the second Monday of may in an election year.
• There is a gap between proclamation and actual assumption of office.
(Osmena and Labella, prior to 2019 the incumbent mayor was Tomas
Osmena. During the time where there is a mayor-elect, the incumbent
mayor is not yet the newly elected mayor. If Labella after his
proclamation, decides to appoint people, there will be a crime of
Anticipation of duties of a public office.)
• If after June 30, Tommy will not leave his position, the crime will be
prolonging performance of duties
• If Labella will not go to office, it will be refusal to discharge.
• Abandonment may happen in the middle of a term.
Usurpation of powers and unlawful appointments
Article 239 Usurpation of legislative powers
- Can DU30 unilaterally abrogate the VFA?
Article 240 Usurpation of executive functions (Judge)
Article 241 Usurpation of Judicial Functions
Article 242 Disobeying Request for Disqualification (Judicial or Quasi-
Judicial Body (Ombudsman))
Article 243 Orders or requests by executive officers to any judicial
authority (2 mayors attacked a sheriff who was implementing a judicial
order)
Article 244 Unlawful appointments
‣ Either the applicant is not qualified,
‣ Appointing authority is not qualified or
‣ No such position for such authority.
◦ Example: Governor (executive) appoints a staff to
Sanguniang (legislative)
LECTURE 3 MIDTERMS February 22, 2020
TITLE 8 -CRIMES AGAINST PERSONS
The crime is directed against the person which may result in his death
or the infliction of injuries.
20 years ago it included rape which is now under the crime against
chastity.
Killing a person
• Infanticide
• Parricide
• Murder
• Homicide
A. Infanticide
• Victim must be less than 3 days old.
◦ If the victim is 3 days old, it will not be infanticide.
• If victim is expelled and is less than 6 months old, crime is abortion if
he was born alive.
• If child is born dead and offender tried to kill him offender is guilty of
impossible crime.
• In order for it to be infanticide and not abortion, the baby must be
born alive and must be able to survive after having been born. If baby
cannot survive because of his age then the crime will not be infanticide.
 CRIMINAL LAW II MIDTERMS (FISCAL PETRALBA)
The crime will be the expulsion of the baby resulting in the death of the
baby.
• When the baby is expelled and dies and not expected to survive the
crime is abortion.
• The baby must be more than 6 months old and the baby must be
born alive. If it is not born alive then there may be abortion if the
expulsion was intentional or by reason of force.
• If the baby Is already 3 days old, the crime is murder (abuse of
superior strength). When means are employed in order to kill with the
victim unable to defend himself, the is treachery.
B. Parricide
• Spouse - must be legitimate
• Ascendants - must be by consanguinity, legitimate. Legitimacy not an
issue if committed by parents/children, must be by blood.
• Descendants -
Relationship must be by blood.
NOT PARRICIDE:
• Siblings
• Aunt and nephew
• Stepsons and stepfathers
• In-laws
With respect to ascendant, descendant, relationship must be legitimate
UNLESS parents-children (relationship NEED NOT BE LEGITIMATE)
C. Murder
• Qualifying circumstance must be specifically sought for by the
accused for the purpose of killing (People vs. Galura)
• PD 1613 applies if killing on the occasion of arson.
Qualifying Circumstances
For the first if many are present it is only counted as one
1. Aid of armed men, treachery, abuse of superior strength, employing
means to weaken the defense or insure or afford impunity.
A. If killing was committed by a band of armed men with
treachery, then it will be taken as one which is treachery.
B. If there is a qualifying circumstance in other numbers, for
example: in consideration of price, or evident premeditation, if Juan
wanted to kill Pedro and hires a and B to kill Pedro. There is evident
premeditation and in consideration of price or reward. If killing was
done with treachery then there will be a third qualifying circumstance.
Only one of the is enough to qualify the killing to murder. The evident
premeditation can already qualify the killing to murder while the rest
can be treated as ordinary aggravating circumstances.
C. People vs Galura: In order to be considered qualifying or
aggravating the circumstance must be specifically sought. If the
circumstance is not specifically adopted in order to commit the crime
then the circumstance may not qualify the killing. The poisoning was
not deliberately used in order to kill thus not qualifying it.
D. There is only treachery is there is a means to weaken the
defense or victim is unable to put up a defence at all. Treachery is the
methods not only leads to not recognising but also being unable to put
up a defence.
2. In consideration of a price, reward or promise
3. By means of inundation, fire, poison, explosion, shipwrecks
stranding of a vessel, derailment or assault upon a street car or
locomotive, fall of an airship, by means of motor vehicles, or with the
use of means involving great waste and ruin.
4. On the occasion of calamities
5. With evident premeditation
6. With cruelty, augmenting the suffering- IT CAN BE DURING OR
AFTER THE KILLING.
Case: Accused was accompanied by armed men but nobody saw how
the killing was committed. There is no crime of murder as treachery
cannot be proven without any witness as to the manner of killing.
However, there is aid of armed men because even if the actual killing
was not seen, other circumstances leading to the killing were
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established. Aid of armed men was only considered ordinary
aggravating circumstance.
Qualifying: Treachery by sudden attack (2 requisites)
1. At the time of the attack, the victim was not in a position to defend
himself.
2. Offender consciously adopted the particular means, method or form
of attack.
People vs Torrefiel: Treachery absorbs abuse of superior strength and
aid of armed men
People vs Barigga: When treachery is not proven but aid of armed men
is proven, treachery will not absorb aid of armed men, the latter may
stand to serve as qualifying on its own. If there was treachery then it
will be absorbed and no more qualifying or aggravating.
When there are more than 1 qualifying proven, the others must be
generic aggravating circumstance (People vs Barriga)
Dissenting: Generic applies across the board and any kind of crime.
The opposite is specific aggravating, where it only applies to certain
crimes. Example: Treachery only applies to crimes against persons
Treachery not enough that its adopted victim must also not put up
defense
Pp vs Umawid 2014 check ppt
How young must he e to be an abuse of superior strength?
No discussion as to how the accused abused strength resulting in
victim unable to defend. Basis of SC for abuse of superior strength was
age
Case to case basis
Qualifying: Evident Premeditation
1. Offender is determined to commit crime
2. Sufficient lapse of time between determination and execution of the
act, to allow reflect upon consequences of his act and conscience to
overcome his will.
3. Act showing that he clung to his determination
Just because there was quarrel in the morning and killed his opponent
in the evening, it does not immediately mean that there was
premeditation or taking advantage of night time.
Found his wife with another but didn't kill them yet but by evening he
saw paramour, while playing mahjong. evident premeditation since he
did not specifically seek for the boytoy.
Killing a Person
A. Victim is killed (check ppt)
• Homicide- regardless intent to kill maybe committed through culpa or
reckless or simple imprudence
• Murder- if qualifying circumstances is
B. Victim is not killed (check recording)
1. Without intent to kill
• Physical injuries: serious, less serious, slight, mutilation
• Slander by deed: no physical injury but there is public humiliation
• Maltreatment - no physical injury or public humiliation
2. WITH INTENT TO KILL
• Fatal injury - frustrated murder, homicide
• Non fatal injury or no injury- attempted homicide, murder, parricide,
infanticide.
Question: cAN THERE BE A CRIME OF FRUSTRATED HOMICIDE
THROUGH RECKLESS IMPRUDENCE
A. No. Frustrated or attempted homicide (CHECK PPT)
Crimes against persons and use of firearm
• For frustrated stage, there must be fatal wound and intent to kill
 CRIMINAL LAW II MIDTERMS (FISCAL PETRALBA)
• Attempted stage, intent to kill and overt act (leads to intention to kill).
injuries or none at all but firearm must be fired. There must be a
connection between act and intent. Without a direct connection
between the overt act and the intention, there is no attempted stage. In
an attempted rape, the SC ruled that not only must there be intent to
rape but the act must also be related to the intent.
For example: I will kill you and waves the firearm. NOT ATTEMPTED.
The injuries are not necessary to be attempted. Mere drawing is only
other light threats.
• For grave threats, threats must be clear
• Mere drawing of firearm in a quarrel is only other light threats.
2534 Discharge of Firearm
• No intent to kill, no injuries. (Please check recording)
• Difference between alarms and scandals. In alarms, the purpose
must be to scare the public. It must be calculated to cause fear, the
fear must not be directed against one particular victim only. If the fear
is directed without intent to kill that is only illegal discharge. If it is
directed not at a particular target but to create fear to the public in
general, that is when you have alarms and scandals. The purpose is to
create chaos in public.
• In illegal discharge it must be aimed without intent to kill.
• SC: Even if at the time of firing it was no longer aimed but it was
initially aimed without intent to kill but at the actual firing, it was pointed
at another, that is still illegal discharge. What is important is that it was
initially aimed.
Difference: In illegal discharge , it is directed against a person or even
a person inside a house.
• The firearm is aimed but there is no intent to kill. Since it must be
directed at another it cannot be
(Please check recording)
LECTURE 4 February 27, 2020
Abortion - is the killing of the foetus in the uterus or the expulsion of the
foetus from the maternal womb which results in the death of the fetus.
Abortion is not a crime against the mother but against the child.
Under the Constitution, the unborn child is protected.
• When a baby is killed inside the womb regardless of the age of the
baby. (Baby dies inside)
• If the baby is forcibly or intentionally expelled, and because of such
the baby dies, that is abortion, regardless of age. (Intentionally
expelled)
• If the baby dies because it is expelled but it was not intentional,
regardless fo age it is still abortion but unintentional provided that the
baby dies when it was expelled. If the baby dies, whether intentional or
unintentional, regardless of age, the crime is abortion.
• Age does not matter if baby dies inside the womb.
• When age is important: If the baby does not die, when it was
expelled. If the baby lives even after it was expelled, you have to take
into consideration the age.
◦ If the baby is alive when it was expelled from the womb, we
have to determine age
‣ Below 6 months- abortion (baby is not expected
to live, if baby dies thereafter, the crime is still abortion even if he was
born alive and later on dies.
‣ NO CONSUMMATED ABORTION IF BABY DOES NOT
DIE. If baby below 6 months survives, then the crime will become
attempted abortion.
‣ Age of the baby is 6 months or more, the crime
will NO LONGER BE ABORTION. In abortion, it requires the death of
the baby (crime against the baby not the mother). If the baby is born
and does not die and he can live because his age is more than 6
months, there is no abortion that is consummated. If eventually the
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baby is killed, the crime will no longer be abortion because the baby
did not die because of abortion. The crime will be infanticide.
◦ There can still be attempted if there was intention to expel
the baby. There must be an act in order to kill the baby.
•
Attempted Abortion (2 instances)
1. If there was an attempt to kill any inside but baby was not killed.
• If baby is born whether intentional or unintentional abortion huh?
Check recording wtf
• If the baby dies later on not because of expulsion because of some
other thing, that's no longer consummated abortion even if it dies
because it did not die from the expulsion.
Pregnant pedestrian gets hit by a car. There can be unintentional crime
of abortion. Mother can claim damages.
Unintentional abortion can only happen if there is force.
Under the constitution, the state must protect the unborn child. We
cannot pass a law regarding abortion.
Medical practitioners can rely on the law since there is no such law
written in black and white
CASE: Pretty Vs UK
In Pretty v. The United Kingdom, the applicant, Ms. Diane Pretty, was
paralysed and suffered from a motor neurone disease, a progressive
degenerative and incurable illness, which had reduced her to a state of
complete dependency upon others. She was facing the prospect of a
distressing death by suffocation when her breathing muscles started to
fail. Although it was not a crime to commit suicide under English law,
the applicant was prevented by her disease from taking such a step
without assistance. She wanted to protect her right to a dignified death
and requested the Director of Public Prosecutions to grant immunity
from prosecution to her husband if he assisted her in committing
suicide. This request was denied at the domestic level. She alleged
that this refusal infringed her rights under the ECHR . She focused her
complaint principally on Article 3 of the Convention. She submitted that
the suffering which she faced qualified as degrading treatment under
Article 3 of the Convention. She also alleged violation of Article 2. She
alleged that permitting her to be assisted in committing suicide would
not be in conflict with Article 2 of the Convention. According to the
applicant, Article 2 protects not only the right to life but also the right to
choose whether or not to go on living. It was submitted that it protected
the right to life and not life itself, while the sentence concerning
deprivation of life was directed towards protecting individuals from third
parties, namely the state and public authorities, not from themselves.
The applicant claimed that Article 2 therefore acknowledged that it was
for the individual to choose whether or not to go on living and protected
her right to die to avoid inevitable suffering and indignity as the
corollary of the right to life.
In another case, the court allowed for the family to remove the
respirator.
Who may file? It can be filed by anybody.
LECTURE 5 FEBRUARY 29, 2020
No frustrated unintentional abortion
• In view of lack of intent to cause abortion, there can be no frustrated
or attempted unintentional abortion
• Crime would be physical injuries
• If the abortion Is intended and the baby does not die, there can be
attempted or frustrated stage.
In unintentional abortion, there may be knowledge or lack of knowledge
of the pregnancy.
If a person pushes a woman but he did not know that she was
pregnant and it results n abortion, the crime would be unintentional
abortion. It also does not mean that the accused must not know. Even
if the woman is very pregnant with a child and a reckless driver hits the
 CRIMINAL LAW II MIDTERMS (FISCAL PETRALBA)
pregnant woman resulting in abortion, that would still be unintentional
abortion (reckless imprudence resulting in unintentional abortion)
The knowledge as to pregnancy is irrelevant. What is important is
1. There is violence or force
2. Abortion is not intentional
Does it mean that unintentional abortion is always culpa?
In the second example, there is culpa. (reckless imprudence resulting
in unintentional abortion) , what caused the abortion was force which is
not intended and was the result of a culpable act.
In the first example, if the accused punches a woman not knowing that
the woman is pregnant resulting in the abortion of the baby, there is
unintentional abortion but the act of punching was intentional .The
crime could be physical injuries with unintentional abortion. This is not
culpa because the delivery of the blow was intentional. What is not
intentional is the abortion.
As compared to the 2nd example where the hitting was not intentional.
When we say unintentional it does not always mean culpa, it means
the abortion was unintentional but the proximate cause may be
intended.
Unintentional abortion must have no intent at all whether the proximate
cause was an intended act such as punching, there can never be
frustrated unintentional abortion. When we say frustrated there must be
intention to abort and meaning the baby did not die
Duel
A mere fight as a result of an agreement is not necessarily a duel
because a duel implies an agreement to fight under determined
conditions and with the participation and intervention of second who fix
such conditions.
• Both combatants and seconds are punished
• Seconds are punished as accomplices
• If there are injuries, even if in a duel there is intent to kill. The law
says the penalty shall be that of physical injuries.
• If the victim or one of them does not die, the crime in so far as the
one who injures will only be for physical injury instead of attempted
murder.
Challenging to a duel
Somebody is challenging a person to a duel which may or may not be
accepted, even if it is not accepted may still be a crime.
Challenging to a duel is not the same as daring someone in a fight in
the heat of agreement. Duel is not just the ordinary agreement to fight.
It is more than an agreement to fight it is an agreement with the
formalities similar to a contract to kill each other.
Mutilation
• Mutilation is the lopping or clipping off of some part of the body which
is not susceptible to growth again.
• It must be intentional
Kinds of mutilation
1. Depriving a person of the use of a reproductive organ - not
necessary that there is a chopping off, total deprivation.
2. Chopping off of a body part (any body part including arms, ear
A person who went to hospital for appendicitis but was circumcised
/vasectomised. Will this be mutilation? YES
If a person's reproductive organ becomes useless, there can be 3
crimes that can be committed.
• If the reproductive organ is injured for the purpose of killing him
(specific criminal intent to kill) - ATTEMPTED MURDER,
HOMICIDE,ETC
• If the purpose is just to cut that body part- MUTILATION
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◦ Intention must be malicious, there must be intention to
mutilate.
◦ If the specific intention is to mutilate (has frustrated and
attempted)
◦ Example: Through medical intervention it was put back
together, crime is frustrated.
• In the absence of intent to kill and intent to mutilate, even if the
infliction was intentional, it cannot give rise to attempted frustrated or
mutilation- SERIOUS PHYSICAL INJURIES
◦ It will always be serious. Now if you compare mutilation to
263 on serious physical injuries. 263b, the second kind of serious
physical injuries is when an arm is cut.
If a body part is cut it may give rise to attempted or frustrated murder
etc or mutilation, if there was intention to cut only. If there was no
specific criminal intent, in the course of a fight Juan cuts the arm. The
fighting was intentional but there was no specific criminal intent, only a
general criminal intent. The crime is intentional, but the crime is serious
physical injuries, even if it heals it will be serious.
• If there was no criminal intent - imprudence resulting in serious
physical injuries.
• What is meant by malicious?
Physical Injuries (263)
• Formal crime, it is always consummated. Because before the injuries
are inflicted, we do not know what injuries are going to be caused.
• No such crime as physical injuries alone, in order to be a crime there
has to be determination of the extent of the injury
• 4/3? KINDS
• When is serious physical injuries qualified?
◦ When it would have been parricide
◦ When it would have been murder
• If a person with the use of treachery without intent to kill threw a
stone on a sleeping victim, but he sneaked from behind but did not
intend to kill. If the injuries caused were serious, the crime would be
qualified serious physical injuries. Had there been intent to kill, it would
be attempted or frustrated murder.
• NOTE: These qualifying circumstances are only true if the injuries are
serious. If they are merely less serious or slight, what would happen to
the circumstances, they will be ordinary aggravating.
• 264 Administering injurious substances or beverages.
4 categories of serious physical injuries
Different penalties according to degree
1. MOST SERIOUS: Victim becomes insane, imbecile, impotent or
blind.
◦ It does not matter that he does not go to the hospital, so
long as the result is present.
2. Cutting off of body parts
3. Deformity
- 3 factors must concur in deformity
1. Ugliness/deformity
2. Deformity/Ugliness is visible
3. Deformity will not heal naturally
Juan was slashed in the face, after he had a surgery he became
handsome, was there physical injuries? Yes because it would not have
healed naturally.
The least- the one that requires medical attention or time to heal would
be 30-90 days
Slight physical injuries - time to heal is one day to 90 days
265
266 Slight physical injuries
Slight physical injuries cannot be complexed with another crime.
• Check images for ppt
 CRIMINAL LAW II MIDTERMS (FISCAL PETRALBA)
Rape as a crime against persons RA 8353 incorporated as 266 A RPC
(not against chastity
Rape as a public crime, prior to this it was a private crime ( only the
victim can file the case or the parents of the victim)
Rape and impossible crime e.g necrophilia - When rape was still a
crime against chastity, raping a dead person could not be impossible
crime. An impossible crime must be a crime against persons or
property. If a dead person is raped, it would be impossible crime
2 kinds of rape:
1. Carnal Knowledge- only be committed by a man and victim is a
woman.
No jurisprudence where the victim is not a woman, in most cases the
woman is only an accomplice or accessory.
If a transgender is raped it is not rape of the first kind. The law is clear
on the definition.
1. Sexual Assault
Means adopted: (Before 8358, there were only 3 methods of
committing rape 1,2 and 4)
1. Through force, threat or intimidation
2. Offended is deprived of reason
3. Fraudent machination or abuse of authority
4. Offended party is under 12 years old or is demented.
Degree of resistance required
What is meant by force? The kind of force needed may not be too
overwhelming. It is not necessary to abuse the victim. In so far as the
victim's reaction is concerned, or the degree of resistance is
concerned, it need not be a tenacious resistance.
Pp. v. Gondaway, 2002
Any physical overt act manifesting resistance in any degree from the
victim is admissible as evidence fo lack of consent. Tenacious
resistance is not required.
SC made it clear that there is such a thing as constructive force, which
may be in the form of moral ascendancy. If the rapist is a relative ,
such person need not employ physical force. The fact that he exercises
control over the victim is enough for the victim to become helpless.
Rape can be committed through intimidation
If the offender uses threats, the threats alone like showing a knife
would be enough to scare the victim.
When the victim is deprived of reason
• Not only includes victims who are inside but also includes those who
are of sound reason, those who are drugged, asleep or drunk. At that
time there cannot be consent.
Offended party is under 12 years old or demented.
• Statutory rape - the statute considers it rape regardless of consent. If
the victim is below 12, even if the victim consented it will still be rape.
• Consent will not matter if victim is below 12.
• If victim is 12 to below 18, if there is consent, there can be what is
known as consented abduction.
• After her 12th birthday, it can be seduction or consented abduction.
Special penal law- child abuse law
If there was consent but the child is below 12 it is still rape but after she
is 12, there can be child abuse only if there is consent. The consent in
this case can be acquired through persuasion, influence, e, coercion,
there is consent but it will no longer be rape but it will be child abuse.
If intention was to rape and death was unintended then crime would be
rape resulting in death.
Penalty: highest is 20 years
6
CAPUYAN
You can only complex crimes that are punished by revised penal code.
You cannot complex crimes arising from one act if the crimes are
punished under different laws. You cannot apply complexing, so what
happens is simmering.
You carry a gun during election period. Since these laws violated are
SPL's , you cannot apply 48. (Illegal possession of firearms, bringing of
firearms during elections omnibus election code.)
You will have two cases. A
NEW AMMENDMENT: Crime will be gun ban but the penalty will not
be for gun ban but the penalty will be for aggravating.
For example: Child pornography
The act of recruiting , the act of filming,
For every act, one crime.
RA 9995 Voyeurism
Distribute: Voyeurism
Chid pornography: victim may need not be a child. Even an adult who
dresses up like a child can give rise to child pornography
The filming is different from the actual abusing.
There will be as many crimes as there are acts violated.
Even if the victim will testify that she was not raped, that testimony will
not have any effect is she was below 12.
If the victim is more than 12, it becomes a problem if the woman will
not consent to the filing of the case.
There are crimes that can be prosecuted only with the consent and
cooperation of the victim
• Rights based - final say is on the victim, if she chooses to avail of that
right. It needs her cooperation.
The slightest penetration already constitutes rape it is not necessary
that there be lacerations.
LECTURE 6 MARCH 3 2020
Is there frustrated rape? (Check ppt and recording missed it)
There is none
Baleros vs Pp
• A woman was walking alone and suddenly the accused sprung out of
nowhere and embraced her and made her smell a piece of cloth
leading her to be unconscious. Even if there was already overt act, we
cannot determine with those overt acts what was the intent. Is the
intent to have carnal knowledge or to kidnap. In order to be attempted
rape, the overt act done must show the intent to rape. Mere hugging
does not yet show that the intent was to have carnal knowledge.
• In order to be attempted rape, the overt act must be in connection
with the rape, without the connection it cannot be the attempted stage
of one crime.
• Once that connection is established, that is the time we can have
attempted stage.
• (Check ppt for further explanation)
• The attempt which the RPC punishes is that which has a logical
connection to a particular, concrete offence that which is the beginning
of the execution of the offence by overt acts leading directly to its
realisation and consummation.
• "Absent the unavoidable connection as where the purple of offender
is not certain, what obtains is an attempt to commit an indeterminate
offense"
• To be attempted, there must be the specific criminal intent coupled
with an overt act.
• When is rape consummated, attempted.
• When is the crime attempted rape, when acts of lasciviousness.
• When is there no acts of lasciviousness, when there is unjust
vacation.
Sombilon
May a woman commit rape?
No, she cannot because the law is clear that only a man can commit
rape by carnal knowledge. It is however possible for a woman to be
 CRIMINAL LAW II MIDTERMS (FISCAL PETRALBA) CAPUYAN
criminally liable for rape even if she is actually not the one committing will just be absorbed. If the woman was also seriously injured, the
the rape. serious physical injuries will also be absorbed.

Rape by sexual intercourse may be committed by a woman provided
that she commits it together with a man.
• Offender should be a man. The one who will actually commit the rape
should be a man but this does not preclude a woman being liable for
rape if she incurs the liability because of conspiracy. She incurs the
same liability as the rapist by virtue of conspiracy.
• If the purpose is to rape and after which the woman was robbed, the
Rape by sexual assault may be committed by a woman against
another woman.
- may be committed by anybody regardless of gender.
- victim may be anyone.
Degree of resistance required
People vs Gondaway July 23, 2002
Any physical overt act manifesting resistance in any degree form the
victim is admissible as evidence of lack of consent. Tenacious
resistance is not required. Neither is determined and persistent
physical struggle necessary ( deviation from people vs Lago, which
required tenacious resistance and not mere initial reluctance
People vs Guittierez May 9 2003
Physical resistance need not be proved in rape when intimidation is
exercised upon the victim and she submits urself against her will to the
rapist advances because of fear for her life and personal safety.
Force may be actual or constructive (check constructive force on
lecture 5)
Special Complex Crime
• Robbery with Rape- primary purpose must be to rob
• Kidnapping with rape- the main purpose is to deprive liberty
• Forcible abduction with rape- the taking must be with lied designs but
not necessarily an element of rape otherwise the crime would simply
be rape.
Rape: simply, ordinary complex and special (check ppt)
There is no complex crime of forcible abduction with rape if the primary
objective of the accused it to commit rape (People vs Domingo)
Robbery with Rape
The primary objective must be to rape.
crime would be rape and robbery or theft as the case may be.
If the main purpose was to rob, it does not matter whether the rape
happened first after the taking.
In the special complex crime of robbery with rape, the primary objective
must be to rob. The rape maybe committed prior to during or after the
taking of the property. Succeeding rapes are absorbed.
Regalado: "In robbery with rape, the victim in the rape maybe a co-
robber herself." The victim in the rape need not be the victim in the
robbery. So long as the main intention is to rob and during, before or
after, a rape was committed, it is not necessary the the victim in the
rape is also the victim in the robbery.
If there was no more intimidation when the things were taken, it would
no longer be robbery, it would be theft.
If the man entered through the window for the purpose of raping,
employing intimidation in order to rape and after that he took valuables
and escaped, the crime would be rape and robbery. Not because there
was violence in the taking but because there was force upon things
when he entered in an entrance not intended for the purpose of
entering.

• If she was brought from one place to another but the purpose was to
rape, the crime would simply be rape. The taking was only incidental to
the commission of the rape.
• If the purpose is with lewd designs not necessarily to have carnal
knowledge, then if a woman is taken from one place to be brought from
another place and when they reach the place, the rape happens even if
it is not the main intention, the crime will be an ordinary complex crime
of forcible abduction with rape (one crime is a means of committing the
other crime). Forcible abduction is the means of committing the rape.
• However, if the victim was taken for the purpose of depriving her of
her liberty, and then afterwards was raped. The crime will be a special
complex crime of kidnapping with rape.

Why is it important to determine the kind of complex crime?

Rape - If A, B, C, D with the intention of raping dragged a woman from

a public place to a secluded area, where it was raped by each one of
them. Four counts, all of them would be liable for each count. The each
refers to the count. As many counts as there are rape

Forcible Abduction with Rape- If the purpose was to have a joyride

(purpose not yet to rape) but there was already lewd designs. They
took a woman because they wanted her to strip dance but later on she
was rape. (Check recording) Only the first crime will be applied with the
forcible abduction because for the following crime of rape, the forcible
abduction was no longer necessary. Note: All of them are still liable for
all the crimes of rape. As many counts as there are rape but only
applies to first.

Kidnapping with Rape - If the purpose of the taking of the woman is to

deprive her of liberty, absent the lewd design or intention to rape. For
example, she failed to pay her debts. They took her in order to deprive
her of liberty, until she will pay but during the kidnapping she was
raped by A,B,C and D. Only one count (check recording). The others