Crim-2-compilation.docx

Title One CRIMES AGAINST NATIONAL SECURITY AND THE LAW OF NATIONS

Section One. Treason and espionage Article 114. Treason

Under this mode, it is not necessary that there be a formal declaration of the existence of a state of war. Actual hostilities may determine the date of the commencement of war.

The war must be directed against the government, not merely to resist a particular statute or to repel a particular officer. However, it is NOT necessary that those attempting to overthrow the gov’t succeed in their designs.

Article 115. Conspiracy and proposal to commit treason Article 116. Misprision of treason Article 117. Espionage

Q: Is it necessary under this mode that the purpose of levying war is to deliver the country in whole or in part to the enemy? A: Yes, if the uprising is committed without enemy collaboration, the crime would be rebellion not treason.

Section Two. Provoking war and disloyalty in case of war Article 118. Inciting to war or giving motives for reprisals Article 119. Violation of neutrality

2nd mode: “Adhering to the enemies, giving them aid or comfort”

Article 120. Correspondence with hostile country Article 121. Flight to enemy’s country

Section Three. Piracy and mutiny on the high seas in Philippine waters Article 122. Piracy in general and mutiny on the high seas or in Philippine waters Article 123. Qualified piracy

“Adherence to the enemy” means intent to betray. There is “adherence to the enemy” when a citizen intellectually or emotionally favors the enemy and harbors sympathies or convictions disloyal to his country’s policy or interest.

“Aid or comfort” means an act which strengthens or tends to strengthen the enemy in the conduct of war against the traitor’s country and an act which weakens or tends to weaken the power of the traitor’s country to resist or to attack the enemy.

Article 114. Treason Elements: 1. 2. 3.



Offender is a Filipino citizen or an alien residing in the Philippines; There is a war in which the Philippines is involved; The offender either – a. Levies war against the Government; or b. Adheres to the enemies, giving them aid or comfort.

Adherence alone, without giving aid or comfort, does NOT constitute treason.

The aid and comfort must be a deed or physical activity. To be treasonous, the extent of aid and comfort must be to render assistance to them as enemies and not merely as individuals, and be directly in furtherance of the enemies’ hostile designs . However, the act need not actually strengthen the enemy.

Treason cannot be committed in time of peace.

1st mode: “Levying war against the Government”

There must be an actual assembling of men. Thus, the actual enlistment of men to serve against the government doesn’t amount to levying war.

The aid or comfort under this mode must be after the declaration of war. The enemies must be subject of a foreign power.

When killings and other common crimes are charged as overt acts of treason, they cannot be regarded as separate crimes or complexed with treason.

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Example: Where the accused served as secret agent for the Japanese, and in the performance of such service, he participated in the Japanese expeditions against guerillas and committed mass murders, arson and robberies, and those deeds were charged an element of treason, they become identified with the crime of treason and cannot be the subject of a separate punishment. But this rule will not preclude the punishment of common crimes as such, IF the prosecution should elect to prosecute the culprit specifically for those crimes, instead of relying on them as an element of treason.

HELD: Citizen owes absolute/permanent allegiance to his government/sovereign, which should not be confused with the qualified/temporary allegiance which a foreigner owes to the government of his current residence. This absolute allegiance is not abrogated by enemy occupation because the sovereignty of the government de jure is not transferred thereby to the occupier, remaining vested in the legitimate government. What may be suspended is the exercise of the rights of sovereignty passing temporarily to the occupant, and not the allegiance which subsists with the subsistence of the sovereignty of the legitimate government.

The change in government from commonwealth does not affect the crime of treason. It holds applicable to the present government being an offense against the same government and sovereign people.

Ways of proving treason A person may be convicted of treason on the following evidence ONLY: 1. 2.

[Two-witness rule] Testimony of two witnesses, at least, to the same overt act; or Confession of the accused in open court.

The two-witness rule The testimony of two witnesses is required to prove the overt act of giving aid or comfort. It is not necessary to prove adherence.

Q: A testified that he saw X on guard duty in the Japanese garrison on Monday. B testified that he also saw X on guard duty in the garrison on Wednesday. Can X be convicted of treason on the basis of A & B’s testimony? A: No. Both overt acts, although of the same nature and character, are two distinct acts. Either one, to serve as a ground for conviction, must be proved by two witnesses. That one witness should testify as to one, and another as to the other, was held not enough.

Laurel v. Misa Petition for habeas corpus by Laurel based on the theory that a Filipino citizen who adhered to the enemy giving the latter aid and comfort during the Japanese occupation cannot be prosecuted for the crime of treason because (1) of the suspension of the sovereignty of the legitimate government in the Philippines resulting in the suspension of the correlative allegiance of Filipinos thereto, and (2) of the changes of sovereignty upon the proclamation of the Philippine Republic.

People vs. Perez Perez was convicted of treason and sentenced to death where 5 of the 7 counts against him alleged his abduction of girls for the purpose of using them to satisfy the sexual desires of Japanese officials.

HELD: For an act to be treasonous, it should be one that renders assistance to the occupants to further their hostile designs. Sexual relations between the women and the Japanese officials cannot be said to aid in the furtherance of the objectives of the enemies.

Dissent by Pablo: Entertainment tones up the nerves of the soldiers. Services or favors that should have been performed by Japanese women were done by Filipino women. This helped improve the phases of their military activities.

People vs. Prieto Prieto, a Makapili who aided the Japanese in apprehending Filipino guerillas (who were tortured and executed after being apprehended) was convicted of 4 counts of treason.

HELD: Murder and physical injuries are identified as an element of treason and they cannot be the subject of a separate punishment, or make a complex crime with treason. They are averred as a constitutive ingredient of treason. But where the State prosecutes them for such acts not as an overt act for treason, then the accused can be punished for such acts if found guilty.

People vs. Manayao Manayao et al were charged and found guilty of treason with multiple murders. They were sentenced to death and to pay the fine with indemnity to heirs of the victims of the town they massacred with

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the Japanese troops. The massacre was witnessed by the two children spared from the killing. HELD: The Makapili is not part of the Japanese Army in the Philippines being an organization of ‘traitors, pure and simple.’ This doesn’t divest the People’s Court of jurisdiction. They have not lost their citizenship when no evidence that he has subscribed to an oath of allegiance to support the laws of Japan and that he showed his acceptance of a commission in the Armed Forces of Japan were presented. They are still subject of the law on treason in the Philippines.

3.

Proposes its execution to some other person or persons.

 The two-witness rule does not apply to conspiracy or proposal to commit treason.

Article 116. Misprision of treason Elements:

People vs. Adriano Adriano was found guilty of treason by virtue of his being a Makapili. The prosecution however did not introduce any other evidence except for his membership. Furthermore, the alleged acts committed by the accused were not established or concurred by testimonies from 2 witnesses.

HELD: The two-witness requirement in the crime of treason should be applied restrictively – the lawmakers having intended for it to be applied with the same rigidity and inflexibility due to the seriousness of the crime and the abnormality of the times from American origin.

Hilado dissenting: Being a Makapili was one single continuous and indivisible overt act of giving aid to the Japanese invaders. There is no need for at least 2 witnesses to have testified on one same act.

1. 2. 3.

Offender must be owing allegiance to the Government, and not a foreigner He has knowledge of any conspiracy (to commit treason) against the Government He conceals or doesn’t disclose and make known the same as soon as possible to the governor or fiscal of the province or the mayor or fiscal of the city in which he resides.

 A116 will not apply when the crime of treason has already been committed by someone and the accused doesn’t report its commission to the proper authority. The law says “knowledge of any conspiracy against” not knowledge of treason actually committed.  The offender in misprision is punished “as an accessory to the crime of treason”. Hence, the penalty for misprision is two degrees lower than that provided for treason.

Article 117. Espionage Article 115. Conspiracy and proposal to commit treason Elements (Conspiracy):

1. 2. 3.

In time of war Two or more persons come to an agreement to levy war against the gov’t or to adhere to the enemies and to give them aid or comfort; and They decide to commit it.

Elements (Proposal):

Two ways of committing espionage (Mode 1) Elements:

1. 2. 3.

Offender enters a warship, fort or naval or military establishment or reservation He has no authority therefore His purpose is to obtain information, plans, photographs or other data of a confidential nature relative to the defense of the Philippines

 It is not necessary that information be actually obtained. 1. 2.

In time of war A person who has decided to levy war against the gov’t or to adhere to the enemies and to give them aid or comfort,

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1. 2.

3.

Offender is a public officer He has in his possession (by reason of the public office he holds) any information, plans, photographs or other data of a confidential nature relative to the defense of the Philippines He discloses their contents to a representative of a foreign nation

Espionage

2. 3.

The offender makes correspondence with an enemy country or territory occupied by enemy troops The correspondence is either – a. Prohibited by the Government, or b. Carried on in ciphers or conventional signs, or c. Containing notice or information which might be useful to the enemy.

 “Correspondence” means communications by means of letters.

Treason

Both not conditioned by the citizenship of the offender May be committed in time of peace or war

Committed only in time of war

Many ways of committing espionage, taking RPC117 and CA616 together

Only two ways committing treason

of

Article 118. Inciting to war or giving motives for reprisals.

Elements:

1. 2.

Offender performs unlawful or unauthorized acts Such acts provoke or give occasion for a war involving or liable to involve the Philippines or expose Filipino citizens to reprisals on their persons or property

Illustration: The public destruction of the flag or seal of a foreign state or the public manifestations of hostility to the head or ambassador of another state.

Article 119. Violation of neutrality

 Even if the correspondence contains innocent matters, if the correspondence has been prohibited by the Government, it is punishable.  Prohibition by the Government is not essential in paragraphs 2 & 3 of Article 120.

 Circumstances qualifying the offense: 1.

Notice or information might be useful to the enemy; AND 2. Offender intended to aid to enemy  These acts amount to treason. Hence, the penalty is the same as that for treason.

Article 121. Flight to Enemy's Country Elements:

1. 2. 3. 4.

There is a war in which the Philippines is involved; Offender must be owing allegiance to the government; Offender attempts to flee or go to enemy country; Going to the enemy country is prohibited by competent authority.

Elements:  Mere attempt to flee or go to enemy country consummates the crime. 1. 2. 3.

There is a war in which the Philippines is no involved There is a regulation issued by competent authority for the purpose of enforcing neutrality The offender violates such regulation

Article 120. Correspondence with hostile country

Article 122. Piracy in general and Mutiny on the High Seas or in Philippine Waters

Elements:

Acts punished as piracy

1.

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1. 2.

Attacking or seizing a vessel on the high seas or in Philippine waters; Seizing in the vessel while on the high seas or in Philippine waters the whole or part of its cargo, its equipment or personal belongings of its complement or passengers.

Elements of piracy

1. 2. 3.

The vessel is on the high seas or Philippine waters; Offenders are neither members of its complement nor passengers of the vessel; Offenders either a. attack or seize a vessel on the high seas or in Philippine waters; or b.

4.

seize in the vessel while on the high seas or in Philippine waters the whole or part of its cargo, its equipment or personal belongings of its complement or passengers; There is intent to gain.

 “Piracy” is robbery or forcible depredation on the high seas, without lawful authority and done with animo furandi and in the spirit and intention of universal hostility.

Piracy

Robbery on the high seas

Offender is an outsider

The offender is a member of the complement or a passenger of the vessel

Manner of committing the crime is the same There is intent to gain

by historic or legal title, including territorial sea, the sea-bed, the insular shelves, and other submarine areas over which the Philippines has sovereignty or jurisdiction. b. Vessel. Any vessel or watercraft used for transport of passengers and cargo from one place to another through Philippine Waters. It shall include all kinds and types of vessels or boats used in fishing. c. Philippine Highway. It shall refer to any road, street, passage, highway and bridges or other parts thereof, or railway or railroad within the Philippines used by persons, or vehicles, or locomotives or trains for the movement or circulation of persons or transportation of goods, articles, or property or both. d. Piracy. Any attack upon or seizure of any vessel, or the taking away of the whole or part thereof or its cargo, equipment, or the personal belongings of its complement or passengers, irrespective of the value thereof, by means of violence against or intimidation of persons or force upon things, committed by any person, including a passenger or member of the complement of said vessel, in Philippine waters, shall be considered as piracy. The offenders shall be considered as pirates and punished as hereinafter provided. e. Highway Robbery/Brigandage. The seizure of any person for ransom, extortion or other unlawful purposes, or the taking away of the property of another by means of violence against or intimidation of person or force upon things of other unlawful means, committed by any person on any Philippine Highway. Punishable Acts under the Crime of Piracy 1. Any attack upon or seizure of any vessel 2. The taking of the whole or part thereof or its cargo, equipment, or the personal belongings of its complement or passengers, irrespective of the value therefore

Piracy

Mutiny

Persons who attack a vessel or seize its cargo are strangers to said vessels

Offenders are members of the crew of passengers

Intent to gain essential

Intent to gain not essential, offenders may only intend to ignore the ship’s officer’s

PRESIDENTIAL DECREE No. 532 ANTI-PIRACY AND ANTI-HIGHWAY ROBBERY LAW OF 1974

3. That the above acts were done by means of violence against or intimidation of persons or force upon things.

Punishable Acts under the Crime of Highway Robbery/Brigandage 1. Any attack upon or seizure on any highway 2. The taking of the whole or part thereof or its cargo, equipment, or the personal belongings of its complement or passengers, irrespective of the value therefore 3. That the above acts were done by means of violence against or intimidation of persons or force upon things.

Definition of Terms a. Philippine Waters. It shall refer to all bodies of water, such as but not limited to, seas, gulfs, bays around, between and connecting each of the Islands of the Philippine Archipelago, irrespective of its depth, breadth, length or dimension, and all other waters belonging to the Philippines

Acts Punishable: AIDING OR ABETTING PIRACY REQUISITES: 1. Knowingly aids or protects pirates;

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2. Acquires or receives property taken by such pirates, or in any manner derives any benefit; 3. Directly or indirectly abets the commission of piracy

the fiscal charged them all, including Sgt. Chan as coprincipals. Sgt. Chan, in his defense, claimed that he should not be charged as a principal but only as an accessory after the fact under P.D. 532, otherwise known as the Anti-Piracy and Anti-Highway Robbery Act of 1972. Is the contention of Sgt. Chan valid and tenable? Explain, (5%)

BAR QUESTIONS

SUGGESTED ANSWER:

Piracy in the High Seas & Qualified Piracy

No, the contention of Sgt. Chan is not valid or tenable

Nagoya Maru was negotiating the sea route from Hongkong towards Manila, and while still 300 miles from Aparri, Cagayan, its engines malfunctioned. The Captain ordered the ship to stop for emergency repairs lasting for almost 15 hours. Due to exhaustion, the officers and crew fell asleep. While the ship was anchored, a motorboat manned by renegade Ybanags from Claveria, Cagayan, passed by and took advantage of the situation. They cut the ship's engines and took away several heavy crates of electrical equipment and loaded them in their motorboat. Then they left hurriedly towards Aparri. At daybreak, the crew found that a robbery took place. They radioed the Aparri Port Authorities resulting in the apprehension of the culprits.

because by express provision of P.D. 532, Section 4, a

What crime was committed? Explain. (2.5%) SUGGESTED ANSWER: Piracy in the high seas was committed by the renegade Ybanags. The culprits, who are neither members of the complement nor passengers of the ship, seized part of the equipment of the vessel while it was three hundred miles away from Aparri, Cagayan (Art. 122, Revised Penal Code). Supposing that while the robbery was taking place, the culprits stabbed a member of the crew while sleeping. What crime was committed? Explain. (2.5%) SUGGESTED ANSWER: The crime committed is qualified piracy, because it was accompanied by physical injuries/homicide. The culprits stabbed a member of the crew while sleeping (Art. 123, Revised Penal Code). Highway Robbery (2001) Police Sgt. Diego Chan, being a member of the Theft and Robbery Division of the Western Police District and assigned to the South Harbor, Manila, was privy to and more or less familiar with the schedules, routes and hours of the movements of container vans, as well as the mobile police patrols, from the pier area to the different export processing zones outside Metro Manila. From time to time, he gave valuable and detailed information on these matters to a group interested in those shipments in said container vans. On several instances, using the said information as their basis, the gang hijacked and pilfered the contents of the vans. Prior to their sale to "fences" in Banawe, Quezon City and Bangkal, Makati City, the gang Informs Sgt, Chan who then inspects the pilfered goods, makes his choice of the valuable items and disposes of them through his own sources or "fences". When the highjackers were traced on one occasion and arrested,

person who knowingly and in any manner, aids or protects highway robbers/brigands, such as giving them information about the movement of police officers or acquires or receives property taken by brigands, or who directly or indirectly abets the commission of highway robbery/brigandage, shall be considered as accomplice of the principal offenders and punished in accordance with the rules in the Revised Penal Code. ALTERNATIVE ANSWER: No, the contention of Sgt. Chan that he should be charged only as accessory after the fact is not tenable because he was a principal participant in the commission of the crime and in pursuing the criminal design. An accessory after the fact involves himself in the commission of a crime only after the crime had already been consummated, not before, For his criminal participation in the execution of the highjacking of the container vans, Sgt. Chan is a co-principal by indispensable cooperation.

People vs. Lol-lo and Saraw

Boat carrying men, women and children on its way between two islands in the Dutch East Indies were waylaid by six vintas manned by 24 armed Moros. At first, they asked for good but one on the Dutch boat, they took all of the cargo, attacked some of the men and brutally violated two of the women. All the people were placed back into the boat except the two men, and holes were made with the idea of submerging the boat. They took the women and repeatedly violated them. Two of the raiders were Lol-lo and Saraw, the former participating in the rape. The women eventually escaped while Saraw and Lol-lo returned to TawiTawi where they were apprehended and tried. They were found guilty and sentenced to life imprisonment.

HELD: Pirates are in the law hostes humani generis. Piracy is a crime not against any particular state but against all mankind. It may be punished in the competent tribunal of any country where the offender may be found or into which he may be carried. The jurisdiction in the crime of piracy unlike other crimes has no territorial limits, nor does it matter that a crime was committed within the jurisdictional 3-mile limit of a foreign state, “for those limits, through neutral to war, are not neutral to crimes.”

People vs. Rodriguez

upon custodial investigation, they implicated Sgt. Chan and

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Rodriguez et al (crew members of M/V Noria 767) were charged with the crime of piracy, found guilty and sentenced to death. They were able to obtain 3M as total amount and escaped through the use of pump-boats. Ten dead bodies were seen at the wharf as victims of the sea-jacking

Who are punishable?

1. HELD: Where rape, murder or homicide is committed in the crime of piracy, the penalty imposable is mandatory death penalty according to PD532 amending RPA 134.

Any person who shall compel a change in the course or destination of an aircraft of Philippine registry, or to seize or usurp the control thereof, while it is in flight. An aircraft is in flight from the moment all its external doors are closed following embarkation until any of such doors is opened for disembarkation. (§1)

People vs. Siyoh 2. Siyoh et al were accused of qualified piracy with triple murder and frustrated murder, found guilty and sentenced to death. With the use of pump-boats, they were able to divest money and goods from de Guzman and his companions on the way to Mataja island. The companions were killed while de Guzman was able to escape wounded.

Any person who shall compel an aircraft of foreign registry to land in Philippine territory or to seize or usurp the control thereof while it is within the said territory. (§1)

The penalty shall be increased whenever the violations above were committed under any of the following circumstances:

HELD: Although the body of de Guzman was still missing, the number of persons killed on the occasion of piracy is not material. PD532 considers qualified piracy (when rape, murder, or homicide is committed as a result or on the occasion of piracy) as a special complex crime punishable by death regardless of the number of victims.

 



Article 123. Qualified Piracy Elements:

1. 2. 3.

4.

The vessel is on the high seas or Philippine waters: Offenders may or may not be members of its complement, or passengers of the vessel; Offenders either a. attack or seize the vessel; or b. seize the whole or part of the cargo, its equipment., or personal belongings of the crew or passengers; The preceding were committed under any of the following circumstances: a. whenever they have seized a vessel by boarding or firing upon the same; b. whenever the pirates have abandoned their victims without means of saving themselves; or c. whenever the crime is accompanied by murder, homicide, physical injuries or rape.

R.A. 6235 An Act Prohibiting Certain Acts Inimical to Civil Aviation

3.

Whenever he has fired upon the pilot, member of the crew or passenger of the aircraft; Whenever he has exploded or attempted to explode any bomb or explosive to destroy the aircraft; or Whenever the crime is accompanied by murder, homicide, serious physical injuries or rape. (§2)

Any person, natural or juridical, who shall ship, load or carry in any passenger aircraft operating as a public utility within the Philippines, any explosive, flammable, corrosive or poisonous substance or material. (§3) “Explosive” - any substance, either solid or liquid, mixture or single compound, which by chemical reaction liberates heat and gas at high speed and causes tremendous pressure resulting in explosion. The term shall include but not limited to dynamites, firecrackers, blasting caps, black powders, bursters, percussions, cartridges and other explosive materials, except bullets for firearm.

"Flammable" – any substance or material that is highly combustible and self-igniting by chemical reaction and shall include but not limited to acrolein, allene, aluminum dyethyl monochloride, and other aluminum compounds, ammonium chlorate and other ammonium mixtures and other similar substances or materials.

"Corrosive" – any substance or material, either liquid, solid or gaseous, which through chemical reaction wears away, impairs or consumes any object. It shall include but not limited to alkaline battery fluid packed with empty storage battery, allyl chloroformate,

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allytrichlorosilane, ammonium dinitro-orthocresolate and other similar materials and substances.

"Poisonous" – any substance or materials, except medicinal drug, either liquid, solid or gaseous, which through chemical reactions kills, injures or impairs a living organism or person, and shall include but not limited to allyl isothiocyanate, ammunition (chemical, non-explosive but containing Class A, B or poison), aniline oil, arsine, bromobenzyle cyanide, bromoacetone and other similar substances or materials.

A. Under the Revised Penal Code. i. Piracy in general and Mutiny in the High Seas or in the Philippine Waters ii. rebellion iii. Coup d’etat iv. Murder v. Kidnapping and Serious Illegal Detention

B. Under Special Laws For any death or injury to persons or damage to property resulting from a violation of §3 above, the person responsible therefor may be held liable in accordance with the applicable provisions of the Revised Penal Code.

i. Arson under P.D. 1613 ii. Violation of R.A. 6969 ( Toxic Substance ad Nuclear Waste Control) iii. R.A. 5207 ( Atomic Energy Regulatory and Liability Act of 1968)

Authority of airline companies to inspect cargo etc.

iv. Hijacking v. Piracy in Phil. Waters and Highway Robbery

Aircraft companies which operate as public utilities or operators of aircraft which are for hire are authorized to open and investigate suspicious packages and cargoes in the presence of the owner or shipper, or his authorized representatives if present; in order to help the authorities in the enforcement of the provisions of this law

If the owner, shipper or his representative refuses to have the same opened and inspected, the airline or air carrier is authorized to refuse the loading thereof. (§8)

vi. P.D. 1866 ( Possession and Manufacture of Firearms/explosives)

thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand”

Requirements for Terrorism

A. The accused ( maybe a single individual or a group) must commit any of the enumerated crimes Disclaimer on airline ticket

Every ticket issued to a passenger by the airline or air carrier concerned shall contain among others the following condition printed thereon: "Holder hereof and his hand-carried luggage(s) are subject to search for, and seizure of, prohibited materials or substances. Holder refusing to be searched shall not be allowed to board the aircraft," which shall constitute a part of the contract between the passenger and the air carrier. (§9)

B. There results a condition of widespread and extraordinary fear and panic among the populace i. The extent and degree of fear and panic, including the number of people affected in order to meet the term “populace”, are questions of facts to be determined by the courts and on a case to case basis. ii. Is the term “populace’ to be interpreted as referring to the local inhabitants where the acts were committed, or does it refer to the national population?

REPUBLIC ACT NO. 9372 AN ACT TO SECURE THE STATE AND PROTECT OUR PEOPLE FROM TERRORISM Defines the crime of terrorism to be the commission of “any of the crimes of :

C. The purpose of the accused must be to coerce the government to give into an unlawful demand i. The word “demand” is too broad as to cover not only political, criminal or monetarial demands but also those which maybe

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categorized as social or economic. This however is qualified by the word “ unlawful”.

Title Two CRIMES AGAINST THE FUNDAMENTAL LAWS OF THE STATE

Arbitrary detention or expulsion, violation of dwelling, prohibition, interruption and dissolution of peaceful meetings and crimes against religious worship

Section One. Arbitrary detention and expulsion

Meaning of absence of legal grounds

1. 2. 3.

No crime was committed by the detained; There is no violent insanity of the detained person; and The person detained has no ailment which requires compulsory confinement in a hospital.

 When is there detention? A person is detained when he is placed in confinement or there is a restraint on his person.

 The crime of arbitrary detention can be committed through imprudence.

Article 124. Arbitrary detention Article 125. Delay in the delivery of detained persons to the proper judicial authorities Article 126. Delaying release Article 127. Expulsion

Section Two. Violation of domicile Article 128. Violation of domicile

Illustration: The chief of police rearrested a woman who had been released by means of a verbal order of the justice of the peace. The accused acted without malice, but he should have verified the order of release before proceeding to make the rearrest.

 The law doesn’t fix a min period of detention. In US vs. Braganza, the detention was for less than half an hour; and in US vs. Agravante, the detention was only for one hour.

Article 129. Search warrants maliciously obtained and abuse in the service of those legally obtained Article 130. Searching domicile without witnesses

Section Three. Prohibition, interruption and dissolution of peaceful meetings Article 131. Prohibition, interruption and dissolution of peaceful meetings Section Four. Crimes against religious worship Article 132. Interruption of religious worship Article 133. Offending the religious feelings

Article 124. Arbitrary Detention Elements:

1. 2. 3.

Offender is a public officer or employee; He detains a person; The detention is without legal grounds.

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Rule 112 Sec. 6 When warrant of arrest may issue -

Rule 113 Sec. 5 Arrest without warrant; when lawful

(a) By the RTC – Within 10 days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on the record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the PI or when the complaint or information is filed pursuant to Sec. 7 of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within 5 days from notice and the issue must be resolved by the court within 30 days from the filing of the complaint or information.

A peace officer or a private person may, without a warrant, arrest a person:

(b) By the MTC – When required pursuant to par.2 Sec. 1 of this Rule, the PI of cases falling under the orig jurisdxn of the MTCs may be conducted by either the judge or the prosecutor. When conducted by the prosecutor, the procedure for the issuance of a warrant of arrest by the judge shall be governed by par. (a) of this section. When the investigation is conducted by the judge himself, he shall follow the procedure provided in sec. 3 of this Rule. If his findings and recommendations are affirmed by the provincial or city prosecutor, or by the Ombudsman or his deputy, and the corresponding information is filed, he shall issue a warrant of arrest. However, without waiting for the conclusion of the investigation, the judge may issue a warrant of arrest if he finds after an examination in writing and under oath of the complainant and his witnesses in the form of searching questions and answers, that a probable cause exists and that there is a necessity of placing the respondent under immediate custody so as not to frustrate the ends of justice.

(c) Where warrant of arrest not necessary – A warrant of arrest shall not issue if the accused is already under detention pursuant to a warrant issued by the MTC in accordance with par. (b) of this section, or if the complaint or information was filed pursuant to Sec. 7 of this rule or is for an offense penalized by fine only. The court shall then proceed in the exercise of its original jurisdiction.

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is service final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

In cases falling under pars. (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with Sec. 7 of Rule 112.

Umil vs. Ramos These are eight (8) petitions praying for the issuance of the writ of habeas corpus, ordering the respective respondents to produce the bodies of the persons named and to explain why they should not be set at liberty without further delay. In their Returns, the respondents uniformly assert that the privilege of the writ of habeas corpus is not available to the petitioners as they have been legally arrested and are detained by virtue of valid informations filed in court against them.

HELD: No compelling reason exists to abandon the pronouncement in Ilagan vs. Enrile, that a writ of habeas corpus is no longer available after an information is filed against the person detained and a warrant of arrest or an order of commitment is issued by the court where said information has been filed. However, the answer and the better practice would be, not to limit the function of habeas corpus to a mere inquiry as to whether or not the court which issued the process, judgment or order of commitment or before whom the detained person is charged, had jurisdiction or not to issue the process, judgment or order or to take cognizance of the case, but rather, in all petitions for habeas corpus the court must inquire into every phase and aspect of petitioner's detention — from the moment petitioner was taken into custody up to the moment the court passes upon the merits of the petition;" and "only after such a scrutiny can the court satisfy itself that the due process clause of our Constitution has in fact been satisfied."

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People v. Burgos Burgos was arrested by PC Officers while he was plowing his field for being a member of the NPA as alleged by Masamlok whom Burgos forcibly recruited. According to the prosecution, he admitted possession of a firearm and subversive documents which were found in his house. Burgos denied the allegations.

HELD: Arrest and search by the PC officers were not lawful where personal knowledge of the fact of the crime is essential. Knowledge came from Masamlok’s information. Burgos was not committing any criminal or subversive act at the time of the arrest. Evidence adduced against him are inadmissible, having been obtained in violation of his constitutional rights.

after a certain period of time because he is not delivered to the proper judicial authority. If the detention is NOT for some legal ground, the crime is Arbitrary Detention under Art. 124.

 Art. 125 does NOT apply when the arrest is by virtue of a warrant of arrest, in which case, the person arrested can be detained indefinitely until his case is decided by the court or he posts bail for his temporary release. Why? Because there is already a case filed against him in court  it is not necessary to deliver the person to that court.

 “Delivery to the proper judicial authorities” doesn’t consist in a physical delivery, but in making an accusation or charge or filing of an information against the person arrested with the corresponding court or judge.

Milo vs. Salonga Barrio Captain Tuvera Sr., with some private persons, maltreated Valdez by hitting him, and immediately thereafter, without legal grounds and with deliberate intent to deprive Valdez of his liberty, accused Tuvera with Cpt. Mendoza and Pat. Mangsat lodged and locked Valdez in side he municipal jail for about 11 hours. Judge Salonga quashed the information.

HELD: Barrio captains are recognized persons in authority long before PD299. Therefore, Tuvera had authority to detain Valdez but such detainment for 11 hours was without legal cause. The crime committed is arbitrary detention.

Article 125. Delay in the Delivery of Detained Persons to the Proper Judicial Authorities Elements (as amended by E.O. 272)

1. 2. 3.

Offender is a public officer or employee; He detains a person for some legal ground; He fails to deliver such person to the proper judicial authorities within – a. 12 hours for light penalties; b. 18 hours for correctional penalties; and c. 36 hours for afflictive or capital penalties.

 If the offender is a private person, the crime is Illegal Detention.

 Under Art. 125, the public officer has detained the offended party for some legal ground. The detention is legal in the beginning because the person detained was arrested under any of the circumstances where arrest without warrant is authorized by law. However, his detention becomes illegal

 “Proper judicial authorities” means the courts of justice or judges of said courts vested with judicial power to order the temporary detention or confinement of a person charged with having committed a public offense.

 Circumstances considered in determining liability of officer detaining a person beyond legal period: means of communication hour of arrest other circumstances such as time of surrender and the material possibility for the fiscal to make the investigation and file in time the necessary information Illustration: When A was arrested for direct assault, punishable by a correctional penalty, on the evening of June 17, the complaint could not normally be filed earlier than 8 a.m. of June 18 because gov’t offices open for business usually at 8:00 and close at 5:00 p.m. -

 The illegality of detention is not cured by the filing of the information in court because a violation of this article had already been committed before the information was filed. Rule 112 Sec. 7

When accused lawfully arrested without a warrant … Before the complaint or information is filed, the person arrested [without a warrant] may ask for a preliminary investigation in accordance with this Rule, but he must sign a waiver of the provisions of Art. 125 of the RPC, in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the investigation must be terminated within 15 days from its inception.

REPUBLIC ACT NO. 7438

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1. An Act Defining Certain Rights Of Person Arrested, Detained Or Under Custodial Investigation As Well As The Duties Of The Arresting, Detaining And Investigating Officers, And Providing Penalties For Violations Thereof.

2. 3.

Delaying the performance of a judicial or executive order for the release of a prisoner; Unduly delaying the service of the notice of such order to said prisoner; Unduly delaying the proceedings upon any petition for the liberation of such person.

Elements Who are punishable?

1. Any arresting public officer of employee, or any investigating officer, who fails to inform any person arrested, detained or under custodial investigation of his right to remain silent and to have competent and independent counsel preferably of his own choice

2. An officer or employee or anyone acting upon orders of such investigating officer or in his place, who fails to provide a competent and independent counsel to a person arrested, detained or under custodial investigation for the commission of an offense if the latter cannot afford the services of his own counsel.

3. Any person who obstruct, persons or prohibits any lawyer, any member of the immediate family of a person arrested, detained or under custodial investigation, or any medical doctor or priest or religious minister chosen by him or by any member of his immediate family or by his counsel, from visiting and conferring privately with him, of from examining and treating him, or from ministering to his spiritual needs, at any hour of the day or, in urgent cases, of the night

Alberto vs. De la Cruz

 



Case where the accused was summoned at the house of the governor to fix the fence. In order to be guilty under 223 (connivance) and 224 (negligence), it is necessary that the public officer had consented to, or connived in, the escape of a prisoner on the part of the person in charge is an essential condition in the commission of the crime of faithfulness in the custody of the prisoner. If the public officer charged with the duty of guarding him does not connive with the fugitive, then he has not violated the law and is not guilty of the crime. Negligence in the custody of a prisoner under 224 of the RPC punishable if it is definitely and deliberately committed.

Article 126. Delaying Release Acts punished

1. 2.

3.

Offender is a public officer or employee; There is a judicial or executive order for the release of a prisoner or detention prisoner, or that there is a proceeding upon a petition for the liberation of such person; Offender without good reason delays a. the service of the notice of such order to the prisoner; b. the performance of such judicial or executive order for the release of the prisoner; or c. the proceedings upon a petition for the release of such person.

 Wardens and jailers are the public officers most likely to violate Art. 126.

Article 127. Expulsion Acts punished

1. 2.

Expelling a person from the Philippines; Compelling a person to change his residence.

Elements

1. 2. 3.

a. b.

Offender is a public officer or employee; S/he either expels any person from the Philippines; or compels a person to change residence; Offender is not authorized to do so by law.

 RE: “Not being authorized by law” – Only the court by a final judgment can order a person to change his residence. This is illustrated in ejectment proceedings, expropriation proceedings and in the penalty of destierro.  In Villavicencio vs. Lukban, the Court held that the Mayor cannot force prostitutes residing in Manila to live in Davao against their will, there being no law that authorizes them to do so.

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Article 128. Violation of Domicile Acts punished

to dwelling are; 1) The offender in violation of domicile is a public officer acting under color of authority; in trespass to dwelling, the offender is a private person or public officer acting in a private capacity. 2) Violation of domicile is committed in 3 different

1. 2. 3.

Entering any dwelling against the will of the owner thereof; Searching papers or other effects found therein without the previous consent of such owner; or Refusing to leave the premises, after having surreptitiously entered said dwelling and after having been required to leave the same

Common elements

1. 2.

Offender is a public officer or employee; He is not authorized by judicial order to enter the dwelling or to make a search therein for papers or other effects.

Circumstances qualifying the offense 1. 2.

If committed at nighttime; or If any papers or effects not constituting evidence of a crime are not returned immediately after the search made by offender.

ways: (1) by entering the dwelling of another against the will of the latter; (2) searching papers and other effects inside the dwelling without the previous consent of the owner; or (3) refusing to leave the premises which he entered surreptitiously, after being required to leave the premises. 3) Trespass to dwelling is committed only in one way; that is, by entering the dwelling of another against the express or implied will of the latter.

Article 129. Search Warrants Maliciously Obtained, and Abuse in the Service of Those Legally Obtained Acts punished

1.

Elements (1) Offender is a public officer or employee; (2) He procures a search warrant; (3) There is no just cause.

 A public officer is “authorized by judicial order” when he is armed with a search warrant duly issued by the court.  To constitute a violation of domicile, the entrance by the public officer must be against the will of the owner, which presupposes opposition or prohibition of the owner, whether express or implied. If the entrance is only without the consent of the owner, the crime is not committed. Besides, silence of the owner of the dwelling before and during the search, may show implied waiver.

 If the public officer searches a person outside his dwelling without a search warrant, the crime committed is grave coercion, if violence or intimidation is used, or unjust vexation, if there is no violence or intimidation.

Bar Question Violation of Domicile vs. Trespass to Dwelling (2002) What is the difference between violation of domicile and trespass to dwelling? (2%) SUGGESTED ANSWER:

Procuring a search warrant without just cause;

2.

Exceeding his authority or by using unnecessary severity in executing a search warrant legally procured. Elements (1) Offender is a public officer or employee; (2) He has legally procured a search warrant; (3) He exceeds his authority or uses unnecessary severity in executing the same.

 Review requisites for issuing a search warrant, manner of executing the warrant, definition of probable cause in the Rules of Court. Q: When is a search warrant said to have been procured without just cause? A1: When it appears on the face of the affidavits filed in support of the application, or through other evidence, that the applicant had every reason to believe that the search warrant sought for was unjustified. A2: The true test of lack of just cause is whether the affidavit filed in support of the application for search warrant has been drawn in such a manner that perjury could be charged thereon and affiant held liable for damages caused.

The differences between violation of domicile and trespass

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Illustration: Pulis wanted to verify a report that some corpse was unlawfully buried in a monastery. Instead of stating to that effect, he alleges in his affidavit that opium was hidden in the premises.  The offender in this article may also be held liable for perjury. In view of the phrase “in addition to the liability attaching to the offender for the commission of any other offense”, even if the crime of perjury was a necessary means of committing Art. 129, they cannot form a complex crime. Rule 126 Searches and Seizures (Tignan na lang sa rules, mahaba saka alam na natin to! )

Stonehill vs. Diokno

HELD: The search warrants in this case were also in the nature of general warrants, hence invalid.

Article 130. Searching Domicile without Witnesses Elements

1. 2. 3. 4.

Upon application of some officers of the government, several judges issued 42 search warrants against the petitioners and the corporations of which they were officers.

HELD: The legality of the seizure can be contested only by the party whose rights have been impaired thereby. The objection to an unlawful search and seizure is purely personal and cannot be availed of by 3rd parties. Consequently, the petitioners may not validly object to the use in evidence against them of the things seized, since the right to object to the admission of said papers in evidence belongs exclusively to the corporations, to whom they belong, and may not be invoked by the corporate officers in proceedings against them in their individual capacity.

The warrants issued in this case state that the persons named therein committed a “violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue Laws and the Revised Penal Code. As such, no specific offense has been alleged in said application. It was impossible for the judges who issued the warrants to have found the existence of probable cause, for the same presupposes the introduction of competent proof that the party against whom it is sought has performed particular acts or omission, violating a given provision of criminal laws.

Finally, the warrants issued here were general warrants that authorized the search and seizure of records pertaining to all business transactions of petitioners, regardless of whether the transactions were legal or illegal.

Burgos Sr., vs. Chief of Staff The validity of two search warrants is assailed by the petitioners in this case. Under these warrants, a house in Project 6, QC and 2 units of the RMC building in Q.Ave., QC were searched. Office and printing machines, equipment, paraphernalia, motor vehicles and other articles used in the printing, publication and distribution of the said newspapers, as well as numerous papers, documents, books and other written literature alleged to be in the possession and control of petitioner Burgos.

Offender is a public officer or employee; He is armed with search warrant legally procured; He searches the domicile, papers or other belongings of any person; The owner, or any members of his family, or two witnesses residing in the same locality are not present.

Violation of Domicile

Searching Domicile without witnesses

Public officer has no authority to make a search

Public officer has a search warrant

 Art. 130 does NOT apply to searches of vehicles or other means of transportation, because the searches are not made in a dwelling.

Article 131. Prohibition, Interruption, and Dissolution of Peaceful Meetings Elements

1. 2.

Offender is a public officer or employee; He performs any of the following acts: a. prohibiting or by interrupting, without legal ground, the holding of a peaceful meeting, or by dissolving the same; b. hindering any person from joining any lawful association, or attending any of its meetings; c. prohibiting or hindering any person from addressing, either alone or together with others, any petition to the authorities for the correction of abuses or redress of grievances.

 Only a public officer or employee can commit this crime. If the offender is a private individual, the crime is Disturbance of Public Order under Art. 153.

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 But the offender must be astranger, not a participant, in the peaceful meeting. Where the offender is a participant, the crime committed is unjust vexation.  The right to peaceably assemble is not absolute and may be regulated (i.e., with respect to the streets or public places to be used etc.)

Article 132. Interruption of Religious Worship Elements

1. 2. 3.

Offender is a public officer or employee; Religious ceremonies or manifestations of any religious are about to take place or are going on; Offender prevents or disturbs the same.

Qualified if committed by violence or threat.

 Reading of Bible and then attacking certain churches in a public plaza is not a ceremony or manifestation of religion, but only a meeting of a religious sect. In which case, the crime committed is violation of Art. 131

 But the reading of some verses our of the Bible in a private house by a group of 10 to 20 persons, is a religious service. There is no provisions of law which requires religious service to be conducted in approved orthodox style in order to merit protection against interference.

Article 133. Offending the Religious Feelings Elements

1. 2.

Acts complained of were performed in a place devoted to religious worship, OR during the celebration of any religious ceremony; The acts must be notoriously offensive to the feelings of the faithful.

There must be deliberate intent to hurt the feelings of the faithful.

People vs. Mandoriao

The Iglesia ni Cristo held a religious rally at a public place in Baguio. About 200 people attended the meeting, about 50 of whom were members of the INC but the rest were outsiders and curious listeners. While Salvio, a minister of INC, was expounding on his topic to the effect that Christ is not God, but only man, the crowd became unruly. Some people urged Mandoriao to go up the stage and have a debate with Salvio. Mandoriao however, was not able to speak before the microphone because the wire connecting it was abruptly disconnected.

HELD: The meeting here was not a religious ceremony. A religious meeting is an “assemblage of people met for the purpose of performing acts of adoration to the Supreme Being, or to perform religious services in recognition of God as an object of worship…” The meeting here was not limited to the members of the INC. The supposed prayers and singing of hymns were merely incidental because the principal object of the rally was to persuade new converts to their religion.

Assuming that the rally was a religious ceremony, the appellant cannot be said to have performed acts or uttered words offensive to the feelings of the faithful. The act complained of must be directed against a dogma or ritual, or upon an object of veneration. There was no object of veneration at the meeting.

People vs. Baes A complaint was filed against certain individuals, who while holding a funeral of a person in accordance with the rites of the Church of Christ, caused the funeral to pass throughout the churchyard of a Roman Catholic Church. The fiscal moved for dismissal of the case, which the court granted.

HELD: In his MTD, the fiscal denies that the unlawful act committed by the accused had offended the religious feelings of the Catholics of the municipality in which the act took place. Such ground of the motion is indefensible. Whether or not the act complained of is offensive to the religious feelings of the Catholics, is a question of fact which must be judged only according to the feelings of the Catholics and not those of other faithful ones, for it is possible that certain acts may offend the feelings of those who profess a certain religion, while not otherwise offensive to the feelings of those profession another faith.

People vs. Tengson HELD: The act of performing burial rites inside a Roman Catholic cemetery, in accordance with the rules of practices of the sect called “Christ is the Answer”, by reading passages from the Bible, chanting the “Alleluia”, singing religious hymns and praying for the repose of the soul of the dead, is not notoriously offensive to the feelings of religious persons, provided there was no intent to mock, scoff, or to desecrate any religious sect or object venerated by people of a particular religion. Such act may have offended the Roman Catholic priest of the municipality and some Catholic adherents, but since there was a permit for the burial in question in the Roman Catholic

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Cemetery of that municipality, the religious rights of that sect, to which the members of the family of the deceased belong, and performed upon request of the bereaved husband, are not offensive to the feelings of everybody who professes the Christian religion.

People vs. Nanoy While the congregation of the Assembly of God was having its afternoon services in its chapel, the accused who was allegedly drunk entered with uplifted hands and attempted to grab the song leader who ran away from him. The other members of the sect also ran out of the church and the religious services were discontinued.

A. The three day period is counted from the moment the person charged or suspected as terrorist has been apprehended or arrested, detained and taken into custody

B. In the event of an actual or imminent terrorist attack, suspects may not be detained for more than three days without the written approval of the Human Rights Commission, or judge of the MTC RTC, Sandiganbayan or Court of Appeals nearest the place of arrest

C. If arrest was on a nonworking day or hour, the person arrested shall be brought to the residence of any of the above named officials nearest the place of arrest.

HELD: The accused is only guilty of unjust vexation.

Republic Act 9372

D. Failure to deliver the person charged or suspected as terrorists to the proper judicial; authority within three days is punished by 10 years and one day to 12 years.

Human Security Act of 2007 Procedure when a suspected terrorist is arrested

Republic Act 9745 Anti-Torture Act of 2009

A. A suspected terrorist maybe arrested by any law enforcement personnel provided: 1. The law enforcement agent was duly authorized in writing by the Anti Terrorism Council 2. The arrest was the result of a surveillance or examination of bank deposits

B. Upon arrest and prior to actual detention, the law enforcement agent must present the suspected terrorist before any judge at the latter’s residence or office nearest the place of arrest, at any time of the day or night. The judge shall, within three days, submit a written report of the presentation to the court where the suspect shall have been charged.

C. Immediately after taking custody of a person charged or suspected as a terrorist, the police or law enforcement personnel shall notify in writing the judge of the nearest place of apprehension or arrest, but if the arrest is made during non-office days or after office hours, the written notice shall be served at the nearest residence of the judge nearest the place of arrest

D. Failure to notify in writing is punished by 10 years and one day to12 years of imprisonment

Period of Detention has been extended to three days

Punishable Acts: 1.] Torture 2.] Other cruel, inhuman and degrading treatment or punishment

Sec 4: Acts of Torture. - For purposes of this Act, torture shall include, but not be limited to, the following: (a) Physical torture is a form of treatment or punishment inflicted by a person in authority or agent of a person in authority upon another in his/her custody that causes severe pain, exhaustion, disability or dysfunction of one or more parts of the body, such as: (1) Systematic beating, headbanging, punching, kicking, striking with truncheon or rifle butt or other similar objects, and jumping on the stomach; (2) Food deprivation or forcible feeding with spoiled food, animal or human excreta and other stuff or substances not normally eaten; (3) Electric shock; (4) Cigarette burning; burning by electrically heated rods, hot oil, acid; by the rubbing of pepper or other chemical substances on mucous membranes, or acids or spices directly on the wound(s); (5) The submersion of the head in water or water polluted with excrement, urine, vomit and/or blood until the brink of suffocation; (6) Being tied or forced to assume fixed and stressful bodily position; (7) Rape and sexual abuse, including the insertion of foreign objects into the sex organ or rectum, or electrical torture of

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the genitals; (8) Mutilation or amputation of the essential parts of the body such as the genitalia, ear, tongue, etc.;

the case, including the duration of the treatment or punishment, its physical and mental effects and, in some cases, the sex, religion, age and state of health of the victim.

(9) Dental torture or the forced extraction of the teeth; (10) Pulling out of fingernails; (11) Harmful exposure to the elements such as sunlight and extreme cold;

Title Three

(12) The use of plastic bag and other materials placed over the head to the point of asphyxiation; (13) The use of psychoactive drugs to change the perception, memory. alertness or will of a person, such as: (i) The administration or drugs to induce confession and/or reduce mental competency; or

CRIMES AGAINST PUBLIC ORDER

Chapter One. REBELLION, COUP D’ ETAT, SEDITION AND DISLOYALTY

(ii) The use of drugs to induce extreme pain or certain symptoms of a disease; and

Article 134. Rebellion or insurrection – how committed Article 134-A. Coup d’ etat – how committed

(14) Other analogous acts of physical torture; and (b) "Mental/Psychological Torture" refers to acts committed by a person in authority or agent of a person in authority which are calculated to affect or confuse the mind and/or undermine a person's dignity and morale, such as:

Article 135. Penalty for rebellion, insurrection or coup d’ etat d’

Article 136. Conspiracy and proposal to commit coup etat, rebellion or insurrection

(1) Blindfolding;

Article 137. Disloyalty of public officers or employees

(2) Threatening a person(s) or his/fher relative(s) with bodily harm, execution or other wrongful acts;

Article 138. Inciting to rebellion or sedition

(3) Confinement in solitary cells or secret detention places; (4) Prolonged interrogation; (5) Preparing a prisoner for a "show trial", public display or public humiliation of a detainee or prisoner;

Article 139. Sedition – how committed Article 140. Penalty for sedition Article 141. Conspiracy to commit sedition Article 142. Inciting to sedition

(6) Causing unscheduled transfer of a person deprived of liberty from one place to another, creating the belief that he/she shall be summarily executed;

Chapter Two. CRIMES AGAINST POPULAR

(7) Maltreating a member/s of a person's family;

REPRESENTATION

(8) Causing the torture sessions to be witnessed by the person's family, relatives or any third party; (9) Denial of sleep/rest; (10) Shame infliction such as stripping the person naked, parading him/her in public places, shaving the victim's head or putting marks on his/her body against his/her will; (11) Deliberately prohibiting the victim to communicate with any member of his/her family; and

Section One – Crimes against legislative bodies and similar bodies Article 143. Acts tending to prevent the meeting of the Assembly and similar bodies Article 144. Disturbance of proceedings

(12) Other analogous acts of mental/psychological torture.

Sec. 5: Other Cruel, Inhuman and Degrading Treatment or Punishment. - Other cruel, inhuman or degrading treatment or punishment refers to a deliberate and aggravated treatment or punishment not enumerated under Section 4 of this Act, inflicted by a person in authority or agent of a person in authority against another person in custody, which attains a level of severity sufficient to cause suffering, gross humiliation or debasement to the latter. The assessment of the level of severity shall depend on all the circumstances of

Section Two – Violation of parliamentary immunity Article 145. Violation of parliamentary immunity

Chapter Three. ILLEGAL ASSEMBLIES AND ASSOCIATIONS

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Article 146. Illegal assemblies

PREVIOUS OFFENSE

Article 147. Illegal associations Article 160. Quasi- recidivism Chapter Four. ASSAULT UPON, AND RESISTANCE AND DISOBEDIENCE TO, PERSONS IN AUTHORITY AND THEIR AGENTS

Article 134. Rebellion or insurrection – how committed Article 148. Direct assaults Article 149. Indirect assaults

Elements:

Article 150. Disobedience to summons issued by the National Assembly, its committees or subcommittees, by the Constitutional Commissions, its committees, subcommittees or divisions

1. 2.

There is a public uprising and taking arms against the government; The purpose of the uprising or movement is a.

Article 151. Resistance and disobedience to a person in authority or he agents of such person Article 152. Persons in authority and agents of persons in authority – who shall be deemed as such

OR

Chapter Five. PUBLIC DISORDERS

b.

Article 153. Tumults and other disturbances of public order – tumultuous disturbance or interruption liable to cause disturbance Article 154. Unlawful use of means of publication and





unlawful utterances Article 155. Alarms and scandals Article 156. Delivering prisoners from jail

Chapter Six. EVASION OF SERVICE OF SENTENCE

 

Article 157. Evasion of service of sentence



Article 158. Evasion of service of sentence on the



occasion of disorders, conflagrations, earthquakes or other calamities Article 159. Other cases of evasion of service of Sentence

Chapter Seven. COMMISSION OF ANOTHER CRIME

to remove from the allegiance to the government or its laws Philippine territory or any part thereof, or any body of land, naval, or other armed forces;

to deprive the Chief Executive or Congress, wholly or partially, of any of their powers or prerogatives.

Rebellion is more frequently used where the object of the movement is completely to overthrow and supersede the existing government. Insurrection is more commonly employed in reference to a movement which seeks merely to effect some change of minor importance, or to prevent the exercise of governmental authority with respect to particular matters or subjects. The crime of rebellion or of inciting is by nature a crime of masses, of a multitude. Actual clash of arms with the government, not necessary to convict the accused who is in conspiracy with others actually taking arms with the government. It is not necessary that the purpose of the rebellion be accomplished. Giving aid and comfort is not criminal in rebellion. Republic Act. No. 6968

An Act Punishing the Crime of Coup d’état by Amending Articles 134, 135, and 136 of Chapter One, Title Three of Act Numbered Thirty-Eight Hundred and Fifteen, Otherwise Known as the Revised Penal Code, and For Other Purposes

DURING SERVICE OF PENALTY IMPOSED FOR ANOTHER

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remains good law, as no new challenges are presented in this case persuasive enough to warrant a complete reversal.

Definition of Terms

Rebellion or insurrection - the crime of rebellion or insurrection is committed by rising and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Republic of the Philippines or any part thereof, of any body of land, naval or other armed forces, or depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives. Coup D′ÉTAT – The crime of coup D′ÉTAT is a swift attack accompanied by violence, intimidation, threat, strategy or stealth, directed against duly constituted authorities of the Republic of the Philippines, or any military camp or installation, communications networks, public utilities or other facilities needed for the exercise and continued possession of power, singly or simultaneously carried out anywhere in the Philippines by any person or persons, belonging to the military or police or holding any public office or employment, with or without civilian support or participation, for the purpose of seizing or diminishing state power."

Rebellion

Treason

Levying of war against the government during peace time for any of the purposes in Article 134

Levying of war against the government, when performed to aid the enemy; adherence to enemy

Always involves taking up arms vs. the government

May be committed by mere adherence to the enemy, giving him aid or comfort

This view is reinforced by the fact that President Aquino, exercising her powers under the 1986 Freedom Constitution, repealed P.D. No. 942 of the former regime which sought to nullify Hernandez by enacting a new provision in the RPC to the effect that “when by reason, or on the occasion, of any of the crimes penalized in this Chapter, acts which constitute offenses upon which graver penalties are imposed by the law are committed, the penalty for the more serious offense in its maximum period shall be imposed upon the offender.” The president has then in effect reinstated Hernandez as binding doctrine with the effect of law by legislative fiat.

The court unanimously voted to reject the second option. The consensus was that the arguments were not sufficient to overcome the thrust of Hernandez to rule out the complexing of rebellion with any other offense committed in its course under either of the aforecited clauses of Article 48.

If Art. 48 were applied, and murder were not complexed with rebellion and the 2 crimes were punished separately, the extreme penalty could be imposed upon him, even in the absence of a single aggravating circumstance. Thus, said provision, if construed this way, would be unfavorable to the accused.

Thus, Hernandez remains binding doctrine operating to prohibit the complexing of rebellion with any other crime. The SC ruled by a vote of 11 to 3 that the information filed against the petitioner does in fact charge an offense. That indictment is to be read as charging simple rebellion.

Enrile vs. Salazar Ponce Enrile vs. Amin A warrant was issued on an information filed by a panel of prosecutors, charging Senator Enrile, the spouses Rebecco and Erlinda Panlilio and Gregorio Honasan with the crime of rebellion with murder and multiple frustrated murder allegedly committed during the failed coup attempt which took place from Nov. 29 to Dec. 10.

HELD: The written and oral pleas for the defendants (Enrile et al.) presented the SC with three options: First, abandon Hernandez and adopt the minority view expressed in the dissent that rebellion cannot absorb more serious crimes, and that under Article 48, rebellion may be complexed with common offenses. Second, hold Hernandez applicable only to offenses committed in furtherance or as a necessary means for the commission of rebellion, but not to acts committed in the course of a rebellion which also constitute common crimes of grave or less grave character. Third, maintain Hernandez as applying to make rebellion absorb all other offenses committed in its course, whether or not necessary to its commission or furtherance thereof.

11 members of the SC voted against abandoning Hernandez, while 2 felt the doctrine should be re-examined. Because of this, the ruling

Together with the information charging Enrile with rebellion complexed with murder in the RTC of QC, prosecutors filed another information charging him for violation of P.D. No. 1829 in the RTC of Makati. It is alleged that on Dec. 1, 1989 at Dasma Village, Enrile, having reasonable grounds to believe or suspect that Ex-Col. Gringo Honasan has committed a crime, obstructed, impeded, frustrated or delayed the apprehension of Honasan by harboring or concealing him in his house. Enrile apparently gave Gringo food and comfort in the Dasma house, despite knowing that Gringo is a fugitive from justice.

Is the alleged harboring or concealing by Enrile of Honasan absorbed in the complexed rebellion charge against Enrile (in Enrile vs. Salazar)?

HELD: YES

The rebellion charges filed against Enrile in Q.C. were based on affidavits executed by 2 employees of a hotel who stated that Gringo and some 100 rebel soldiers attended the mass and birthday party

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held at the Enrile residence in Dec 1, 1989. Based on this testimony, the prosecution concluded that Enrile’s talking with the rebel leader Gringo in his house in the presence of 100 armed soldiers, it can be inferred that they were co-conspirators in the December coup attempt. Thus, the factual allegations supporting the rebellion charge include the very incident which gave rise to the charge of the violation under P.D. 1829.

Necessarily, being in conspiracy with Gringo, Enrile’s alleged act of harboring or concealing was for no other purpose but in furtherance of the crime of rebellion thus constituting a part thereof. It was motivated by the single intent or resolution to commit the crime of rebellion. The decisive factor in political crimes is the intent or motive. If Enrile is not charged with rebellion and he harbored or concealed Gringo simply because the latter is a friend and former associate, the motive for the act is completely different. But if the act is committed with political motives, then it should be deemed to form part of the crime of rebellion instead of being punished separately.

Inthis case, the act or harboring or concealing Gringo is clearly a mere component of rebellion or an act done in furtherance of rebellion. It cannot therefore be made basis of a separate charge. All crimes, whether punishable under special law or general law, which are mere components or ingredients, or committed in furtherance thereof, become absorbed in the crime of rebellion and cannot be isolated and charged as separate crimes themselves.

People vs. Dasig

One afternoon, Pfc. Manatad, Pfc. Tizon and Pfc. Catamora were tasked by their commanding officer to man the traffic at 2 streets of Mandaue City. While on duty, Catamora saw 8 persons, including accused Nunez, acting suspiciously. He noticed one of them giving instructions to two of the men to approach Manatad. Catamora followed the two men, but sensing that they were being followed, the men went to the middle of the road and engage Catamora to a gun battle. Catamora then heard a series of shots from the other group and afterwards, he saw Manatad sprawled on the ground. Catamora sought refuge at a nearby building from where he saw 2 persons take Manatad’s gun and fired at him to make sure he was dead. The group then fled the scene.

Later on, 2 teams of police officers were tasked to conduct surveillance on a suspected safehouse of members of the NPA sparrow unit in Cebu City. When they reached the place, the group saw Rodrigo Dasig and Nunez trying to escape. The two men were apprehended, and their firearms were confiscated. Dasig confessed in the hospital that he and the group of Nunez killed Manatad and that he and Nunez were members of the Sparrow unit. He was found guilty of murder with direct assault.

HELD: Dasig should be prosecuted for rebellion. Appellant not only confessed voluntarily his membership with the Sparrow unit, but also his participation and that of his group in the killing of Manatad. The Sparrow unit is the liquidation squad of the NPA with the objective of overthrowing the duly constituted government. It is therefore not hard to comprehend that the killing of Manatad was committed as a

means to or in furtherance of the subversive ends of the NPA. As such, appellant is liable for rebellion and not murder with direct assault upon a person in authority.

Acts committed in furtherance of rebellion though crimes in themselves are deemed absorbed in one single crime of rebellion. The act of killing a police officer, knowing too well that the victim is a person in authority, is a mere component of rebellion or an act done in furtherance of rebellion. It cannot be made the basis of a separate charge.

People vs. Lovedioro

Off-duty policeman SPO3 Jesus Lucilo was walking along a street when a man suddenly walked beside him, pulled a gun from his waist, aimed the gun at the policeman’s right ear and fired. The man who shot Lucilo had 3 other companions with him, one of whom shot the fallen policeman four times as he lay on the ground. After taking the Lucilo’s gun, the man and his companions boarded a tricycle and fled. The accused-appellant was charged and was convicted of the crime of murder. HELD: In deciding if the crime committed is rebellion, not murder, it becomes imperative for our courts to ascertain whether or not the act was done in furtherance of a political end. The political motive of the act should be conclusively demonstrated. If no political motive is established and proved, the accused should be convicted of the common crime and not of rebellion. In cases of rebellion, motive relates to the act, and mere membership in an organization dedicated to the furtherance of rebellion would not, by and of itself, suffice. Appellant’s contentions regarding the reason for the killing of Lucilo are couched in terms so general and non-specific that they offer no explanation as to what contribution the killing would have made towards the achievement of the NPA’s subversive aims. Thus, in the absence of clear and satisfactory evidence pointing to a political motive for the killing of SPO3 Lucilo, the trial court correctly convicted appellant of the crime of murder.

Article 134-A. Coup d’ etat – how committed

Elements:

1. 2. 3.

4.

Offender is a person or persons belonging to the military or police or holding any public office or employment; It is committed by means of a swift attack accompanied by violence, intimidation, threat, strategy or stealth; The attack is directed against the duly constituted authorities of the Republic of the Philippines, or any military camp or installation, communication networks, public utilities or other facilities needed for the exercise and continued possession of power; The purpose of the attack is to seize or diminish state power.

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

The crime of coup d’ etat may be committed with or without civilian participation.



 Article 135. Penalty for rebellion, insurrection or coup d’ etat

Persons liable for rebellion, insurrection or coup d' etat:

1.

The leaders – a. b.

2.

The participants a. b. c.













Any person who promotes, maintains or heads a rebellion or insurrection; or Any person who leads, directs or commands others to undertake a coup d' etat;

Any person who participates or executes the commands of others in rebellion or insurrection; Any person in the government service who participates, or executes directions or commands of others in undertaking a coup d’ etat; Any person not in the government service who participates, supports, finances, abets or aids in undertaking a coup d' etat.

Public officer must take active part, to be liable; mere silence or omission is not punishable in rebellion. When the rebellion, insurrection or coup d’ etat shall be under the command of unknown leaders, any person who in fact directed the others, spoke for them, signed receipts and other documents issued in their name, or performed similar acts, on behalf of the rebels, shall be deemed a leader of such rebellion, insurrection or couo d’ etat. It is not a defense in rebellion that the accused never took the oath of allegiance to, or that they never recognized the government. Those who killed persons in pursuance of the movement to overthrow the government are liable for rebellion only. Is there a complex crime of rebellion with murder and other common crimes? NO. Engaging in war against the government necessarily imply everything that war connotes: resort to arms, requisition of property, collection of taxes, restraint of liberty, damage to property, physical injuries and loss of life. When any of the acts above are committed as means to or in furtherance of subversive ends, they become absorbed in the crime of rebellion and cannot be regarded or penalized as distinct crimes in themselves. (This is the Hernandez ruling, later reiterated in Enrile vs. Salazar)

Killing, robbing etc. for private purposes or profit, without any political motivation, would be separately punished and would not be absorbed in rebellion Political crimes are those directly aimed against the political order, as well as such common crimes as may be committed to achieve a political purpose. The decisive factor is intent or motive. A crime usually regarded as common (e.g. homicide) may be stripped of its common character if perpetrated for any of the purposes of rebellion.

Article 136. Conspiracy and proposal to commit coup d’ etat





There is conspiracy to commit rebellion when two or more persons come to an agreement to rise publicly and take arms against government for any of the purposes of rebellion and decide to commit it. There is proposal to commit rebellion when the person who has decided to rise publicly and take arms against the government for any of the purposes of rebellion proposes its execution to some other person or persons.

Bar Questions Art 134; Rebellion; Politically Motivated; Committed by NPA Members (1998) On May 5, 1992, at about 6:00 a.m., while Governor Alegre of Laguna was on board his car traveling along the National Highway of Laguna, Joselito and Vicente shot him on the head resulting in his instant death. At that time, Joselito and Vicente were members of the liquidation squad of the New People's Army and they killed the governor upon orders of their senior officer. Commander Tiago. According to Joselito and Vicente, they were ordered to kill Governor Alegre because of his corrupt practices. If you were the prosecutor, what crime will you charge Joselito and Vicente? [5%J SUGGESTED ANSWER: If I were the prosecutor, I would charge Joselito and Vicente with the crime of rebellion, considering that the killers were members of the liquidation squad of the New People's Army and the killing was upon orders of their commander; hence, politically-motivated. This was the ruling in People vs. Avila, 207 SCRA 1568 involving identical facts which is a movement taken judicial notice of as engaged in rebellion against the Government. ALTERNATIVE ANSWER: If I were the prosecutor, I would charge Joselito and Vicente for the crime of murder as the purpose of the killing

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was because of his "corrupt practices ", which does not appear to be politically motivated. There is no indication as to how the killing would promote or further the objective of the New Peoples Army. The killing is murder because it was committed with treachery. ALTERNATIVE ANSWER: The crime should be rebellion with murder considering that Art. 135 of the Revised Penal Code has already been amended by Rep. Act No. 6968, deleting from said Article, common crimes which used to be punished as part and parcel of the crime of rebellion. The ruling in People vs. Hernandez, 99 Phil. 515 (1994), that rebellion may not be completed with common crimes committed in furtherance thereof, was because the common crimes were then penalized in Art. 135 together with the rebellion, with one penalty and Art. 48 of the Rev. Penal Code cannot be applied. Art. 135 of said Code remained exactly the same when the case of Enrile vs, Salazar, 186 SCRA 217 (1990) was resolved. Precisely for the reason that Art. 48 cannot apply because the common crimes were punished as part of rebellion in Art. 135, that this Article was amended, deleting the common crimes therefrom. That the common crimes were deleted from said Article, demonstrates a clear legislative intention to treat the common crimes as distinct from rebellion and remove the legal impediment to the application of Art. 48. It is noteworthy that in Enrile vs. Salazar (supra) the Supreme Court said these: "There is an apparent need to restructure the law on rebellion, either to raise the penalty therefor or to clearly define and delimit the other offenses to be considered as absorbed thereby, so that if it cannot be conveniently utilized as the umbrella for every sort of illegal activity undertaken in its name. The Court has no power to effect such change, for it can only interpret the law as it stands at any given time, and what is needed lies beyond interpretation. Hopefully, Congress will perceive the need for promptly seizing the initiative in this matter, which is purely with in its province," And significantly the said amendment to Art. 135 of the Rev. Penal Code was made at around the time the ruling in Salazar was handled down, obviously to neutralize the Hernandez and the Salazar rulings. The

Republic of the Philippines, or any military camp or installation, communication networks, public utilities or other facilities needed for the exercise and continued possession of power would consummate the crime. The objective may not be to overthrow the government but only to destabilize or paralyze the government through the seizure of facilities and utilities essential to the continued possession and exercise of governmental powers. On the other hand, in the crime of rape there is no frustrated rape it is either attempted or consummated rape. If the accused who placed himself on top of a woman, raising her skirt and unbuttoning his pants, the endeavor to have sex with her very apparent, is guilty of Attempted rape. On the other hand, entry on the labia or lips of the female organ by the penis, even without rupture of the hymen or laceration of the vagina, consummates the crime of rape. More so, it has long abandoned its ―stray‖ decision in People vs. Erina 50 Phil 998 where the accused was found guilty of Frustrated rape. Art 134-A; Coup d’etat (2002) If a group of persons belonging to the armed forces makes a swift attack, accompanied by violence, intimidation and threat against a vital military installation for the purpose of seizing power and taking over such installation, what crime or crimes are they guilty of? (3%) SUGGESTED ANSWER: The perpetrators, being persons belonging to the Armed Forces, would be guilty of the crime of coup d'etat, under Article 134-A of the Revised Penal Code, as amended, because their attack was against vital military installations which are essential to the continued possession and exercise of governmental powers, and their purpose is to seize power by taking over such installations. B. If the attack is quelled but the leader is unknown, who shall be deemed the leader thereof? (2%) SUGGESTED ANSWER: The leader being unknown, any person who in fact directed the others, spoke for them, signed receipts and other documents issued in their name, or performed similar acts, on behalf of the group shall be deemed the leader of said coup d'etat (Art 135, R.P.C.) Art 134-A; Coup d’etat; New Firearms Law (1998) 1. How is the crime of coup d'etat committed? [3%]

Rep. Act No 6968.

2. Supposing a public school teacher participated in a coup d'etat using an unlicensed firearm. What crime or crimes did he commit? [2%]

Art 134-A: Coup d’ etat & Rape; Frustrated (2005)

SUGGESTED ANSWER:

Taking into account the nature and elements of the felonies of coup d’ etat and rape, may one be criminally liable for frustrated coup d’ etat or frustrated rape? Explain. (2%)

1. The crime of coup d'etat is committed by a swift attack, accompanied by violence, intimidation, threat, strategy or stealth against the duly constituted authorities of the Republic of the Philippines, military camps and installations, communication networks, public utilities and facilities needed for the exercise and continued possession of power, carried out singly or simultaneously anywhere in the Philippines by persons belonging to the military or police or holding public office, with or without civilian support or participation, for

amendment was sort of a rider to the coup d'etat law,

SUGGESTED ANSWER: No, one cannot be criminally liable for frustrated coup d’etat or frustrated rape because in coup d’ etat the mere attack directed against the duly constituted authorities of the

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the purpose of seizing or diminishing state power. (Art 134A, RPC). 2. The public school teacher committed only coup d'etat for his participation therein. His use of an unlicensed firearm is absorbed in the coup d'etat under the new firearms law (Rep. Act No. 8294). Art 136; Conspiracy to Commit Rebellion (1994) VC, JG. GG and JG conspired to overthrow the Philippine Government. VG was recognized as the titular head of the conspiracy. Several meetings were held and the plan was finalized. JJ, bothered by his conscience, confessed to Father Abraham that he, VG, JG and GG have conspired to overthrow the government. Father Abraham did not report this information to the proper authorities. Did Father Abraham commit a crime? If so, what crime was committed? What is his criminal liability? SUGGESTED ANSWER: No, Father Abraham did not commit a crime because the conspiracy involved is one to commit rebellion, not a conspiracy to commit treason which makes a person criminally liable under Art 116, RFC. And even assuming that it will fall as misprision of treason, Father Abraham is exempted from criminal liability under Art. 12, par. 7, as his failure to report can be considered as due to "insuperable cause", as this involves the sanctity and inviolability of a confession. Conspiracy to commit rebellion results in criminal liability to the co-conspirators, but not to a person who learned of such and did not report to the proper authorities (US vs. Vergara, 3 Phil. 432; People vs. Atienza. 56 Phil. 353).

existing government.

Article 137. Disloyalty of public officers or employees

Acts punishable:

1. 2. 3.

By failing to resist a rebellion by all the means in their power; By continuing to discharge the duties of their offices under the control of the rebels; or By accepting appointment to office under them. Offender



must

be

a

public

officer

or

employee  

The crime of disloyalty of public officers presupposes the existence of rebellion by other persons. If the public officer who commits any of the acts in this article is in conspiracy with the rebels, he will be guilty of rebellion.

Article 138. Inciting to rebellion or insurrection.

Elements:

Art. 134; Rebellion vs. Coup d'etat Distinguish clearly but briefly: Between rebellion and coupd'etat, based on their constitutive elements as criminal offenses.

1.

SUGGESTED ANSWER:

3.

REBELLION is committed when a multitude of persons rise publicly in arms for the purpose of overthrowing the duly constituted government, to be replaced by a government of the rebels. It is carried out by force and violence, but need not be participated in by any member of the military, national police or any public officer. COUP D'ETAT is committed when members of the military, Philippine National Police, or public officer, acting as principal offenders, launched a swift attack thru strategy, stealth, threat, violence or intimidation against duly constituted authorities of the Republic of the Philippines, military camp or installation, communication networks, public facilities or utilities needed for the exercise and continued possession of governmental powers, for the purpose of seizing or diminishing state powers. Unlike rebellion which requires a public uprising, coup d'etat may be carried out singly or simultaneously and the principal offenders must be members of the military, national police or public officer, with or without civilian support. The criminal objective need not be to overthrow the existing government but only to destabilize or paralyze the

2.



Offender does not take arms or is not in open hostility against the government; He incites others to the execution of any of the acts of rebellion; The inciting is done by means of speeches, proclamations, writings, emblems, banners or other representations tending to the same end. In proposal and inciting to rebellion, the crime of rebellion should not actually be committed by the persons to whom it is proposed or who are incited. If they commit the rebellion, the proponent of the one inciting becomes a principal by inducement in the crime of rebellion. Inciting to rebellion

Proposal to commit rebellion

In both crimes, the offender induces another to commit rebellion It is not required that the offender has decided to commit the rebellion

The person who proposes has decided to commit rebellion

The act of inciting is done publicly

The person who proposes uses secret means

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passengers of a passing streetcar. They attacked the Luneta Police Station and the office of the secret service.

Article 139. Sedition – how committed

Elements:

1. 2. 3.

Offenders rise publicly and tumultuously; Offenders employ force, intimidation, or other means outside of legal methods; Purpose is to attain any of the following objects: a. b.

c. d. e.







To prevent the promulgation or execution of any law or the holding of any popular election; To prevent the national government or any provincial or municipal government, or any public officer from exercising its or his functions or prevent the execution of an administrative order; To inflict any act of hate or revenge upon the person or property of any public officer or employee; To commit, for any political or social end, any act of hate or revenge against private persons or any social classes; To despoil for any political or social end, any person, municipality or province, or the national government of all its property or any part thereof.

Sedition, in its general sense, is the raising of commotions or disturbances in the State. The ultimate object is violation of public peace. Sedition may not be committed by one person only, because the word ‘tumultuous’ means that it is caused by more than three persons who are armed or provided with means of violence. Are common crimes absorbed in sedition? NO, according to jurisprudence. Sedition

Rebellion

The purpose may be political or social

The purpose is always political

It is sufficient that the public uprising must be tumultuous

There must be taking up of arms against the government

HELD: The crime committed was sedition. Sedition, in its more general sense, is the raising of commotions or disturbances in the State. The Philippine law on the subject makes all persons guilty of sedition who rise publicly and tumultuously in order to obtain by force or outside of legal methods any one of five objects, including that of inflicting any act of hate or revenge upon the person or property or any official or agent of the Insular Government or of a Provincial or Municipal Government. It is not necessary that the offender be a private citizen and the offended party a public functionary. The law makes no distinction between the persons to which it applies.

Article 140. Penalty for sedition

Persons liable for sedition:

1. 2.

The leader of the sedition; and Other person participating in the sedition.

Article 141. Conspiracy to commit sedition





There must be an agreement and a decision to rise publicly and tumultuously to attain any of the objects of sedition. There is no crime of proposal to commit sedition.

Article 142. Inciting to sedition

Acts punishable:

1.

Inciting others to the accomplishment of any of the acts which constitute sedition by means of speeches, proclamations, writings, emblems, etc.; Elements:

People vs. Cabrera

a. A constabulary soldier died as a result of an encounter with a policeman. His death engendered a desire for revenge against the police force on the part of the constabulary soldiers. The next day, constabulary soldiers escaped from their barracks with rifles and ammunitions and divided into groups for an attack upon the city police force. They fired indiscriminately along the streets of Calle Real, killing a policeman and wounding civilians, including several

b. c.

Offender does not take direct part in the crime of sedition; He incites others to the accomplishment of any of the acts which constitute sedition; and Inciting is done by means of speeches, proclamations, writings, emblems, cartoons, banners, or other representations tending towards the same end. C2005 Criminal Law 2 Reviewer

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2. 3.

Uttering seditious words or speeches which tend to disturb the public peace; Writing, publishing, or circulating scurrilous libels against the government or any of the duly constituted authorities thereof, which tend to disturb the public peace.

Uttering seditious words, publishing and circulation scurrilous libels are punishable (second and third type of inciting to sedition), when:

1. 2. 3. 4.









They tend to disturb or obstruct any lawful officer in executing the functions of his office; or They tend to instigate others to cabal and meet together for unlawful purposes; or They suggest or incite rebellious conspiracies or riots; or They lead or tend to stir up the people against the lawful authorities or disturb the peace of the community, the safety and order of the government. “knowingly concealing such evil practices’ is another way of violating this article. This is ordinarily an act of an accessory after the fact, but under this article, the act is treated and punished as that of a principal. It is not necessary that the words used should in fact result in a rising of the people against the constituted authorities. Rules relative to seditious words: o Clear and present danger – words must be of such a nature that by uttering them there is a danger of a public uprising and that such danger should be both clear and imminent o Dangerous tendency – if the words used tend to create a danger of public uprising Seditious utterances are prohibited because the State should not be compelled to wait until the apprehended danger became certain, before it can protect itself.

Unlawful rumor mongering: Committed by any person who shall offer, publish, distribute, circulate and spread rumors, false news and information and gossip, or cause the publication, distribution, circulation or spreading of the same, which cause or tend to cause panic, divisive effects among the people, discredit or distrust for the duly constituted authorities, undermine the stability of the Government and the objectives of the New Society, endanger the public order, or cause damage to the interest or credit of the state. (P.D. No. 90)

US vs. Tolentino

A theatrical work entitled ‘Kahapon Ngayon at Bukas’, written by Aurelio Tolentino, was presented by him and others on May 14, 1903 at the Teatro Libertad in Manila.

HELD: The crime committed is inciting to sedition. The publication and presentation of the drama directly and necessarily tended to instigate others to cabal and meet together for unlawful purposes, and to suggest and incite rebellious conspiracies and riots and to stir up the people against the lawful authorities and to disturb the peace of the community and the safety and order of the Government. The manifest, unmistakable tendency of the play, in view of the time, place, and manner of its presentation, was to inculcate a spirit of hatred and enmity against the American people and the Government of the United States in the Philippines.

Espuelas vs. People

Petitioner Oscar Espuelas had his picture taken, making it appear as if he were hanging lifeless at the end of a piece of rope suspended from the limb of a tree, when in truth and in fact, he was merely standing on a barrel. After securing copies of his photograph, Espuelas sent copies of same to several newspapers and weeklies of general circulation for their publication with a suicide not, wherein he made to appear that it was written by a fictitious suicidal, Alberto Reveniera and addressed to the latter’s supposed wife and children. The letter narrated that the reason why he committed suicide was because he was not pleased with the administration of Pres. Roxas. It also contained a request to his wife to write to President Truman and Churchill, and to tell them that the Philippine government is “infested with many Hitlers and Mussolinis.” As if out of desperation, he ended the letter by saying that he sacrificed his life because he has no power “to put under Juez de Cuchillo all the Roxas people who are in power.”

HELD: The essence of seditious libel is its immediate tendency to stir up general discontent to the pitch of illegal courses or to induce people to resort to illegal methods in order to redress the evils which press upon their minds. A published writing which calls our government one of crooks and dishonest persons infested with Nazis and Fascists, and which reveals a tendency to produce dissatisfaction or a feeling incompatible with the disposition to remain loyal to the government, is a scurrilous libel against the Government.

Umil vs. Ramos

FACTS: CAPCOM got a tip that a member of the NPA Sparrow Unit (liquidation squad) was being treated for a gunshot wound at the St. Agnes Hospital, Roosevelt Avenue, Q.C. Upon verification, it was found that the wounded person was Rolando Dural, a member of the NPA liquidation squad, responsible for the killing of 2 CAPCOM soldiers. Dural was positively identified by eyewitnesses as the gunman who went on top of the hood of the CAPCOM mobile patrol car, and fired at the CAPCOM soldiers seated inside. Dural was then transferred to another facility, under CAPCOM supervision (basically, he was arrested). Dural questions the legality of his arrest, having been made without a warrant.

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HELD: Dural was arrested for being a member of the NPA, an outlawed subversive organization. Subversion being a continuing offense, his arrest without warrant is justified as it can be said that he was committing an offense when arrested. The crimes of rebellion, subversion, conspiracy or proposal to commit such crimes, and crimes or offenses committed in furtherance thereof or in connection therewith constitute direct assaults against the State and are in the nature of continuing crimes. As stated by the SC in an earlier case:

Higher penalty shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three. Provided, however, that no other crime was committed by the person arrested.

“The crimes of insurrection or rebellion, subversion, conspiracy or proposal to commit such crimes, and other crimes and offenses committed in the furtherance, on the occasion thereof, or incident thereto, are all in the nature of continuing offenses which set them apart from the common offenses, aside from their essentially involving a massive conspiracy of nationwide magnitude.

If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance.

If the violation of this Section is in furtherance of or incident to, or in connection with the crime of rebellion or insurrection, sedition, or attempted coup d'état, such violation shall be absorbed as an element of the crime of rebellion, or insurrection, sedition, or attempted coup d'état.

The arrest of persons involved in the rebellion whether as its fighting armed elements, or for committing non-violent acts but in furtherance of the rebellion, is more an act of capturing them in the course of an armed conflict, to quell the rebellion, than for the purpose of immediately prosecuting them in court for a statutory offense. The arrest, therefore, need not follow the usual procedure in the prosecution of offenses which requires the determination by a judge of the existence of probable cause before the issuance of a judicial warrant of arrest and the granting of bail if the offense is bailable. Obviously, the absence of a judicial warrant is no legal impediment to arresting or capturing persons committing overt acts of violence against government forces, or any other milder acts but equally in pursuance of the rebellious movement. If killing and other acts of violence against the rebels find justification in the exigencies of armed hostilities which is of the essence of waging a rebellion or insurrection, most assuredly so in case of invasion, merely seizing their persons and detaining them while any of these contingencies continues cannot be less justified”

The same penalty shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any of the firearms owned by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs or willfully or knowingly allow any of them to use unlicensed firearms or firearms without any legal authority to be carried outside of their residence in the course of their employment. (§1)

Republic Act 8294 Decree Codifying the Laws on Illegal / Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunition or Explosives (P.D. 1866, as amended by R.A. 8294) as an element of the crimes of rebellion, insurrection, sedition, or attempted coup d’etat

2.

Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Explosives — any person who shall unlawfully manufacture, assemble, deal in, acquire, dispose or possess hand grenade(s), rifle grenade(s), and other explosives, including but not limited to 'pillbox,' 'molotov cocktail bombs,' 'fire bombs,' or other incendiary devices capable of producing destructive effect on contiguous objects or causing injury or death to any person.

Punishable acts

1.

Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition – any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition. Provided that no other crime was committed.

When a person commits any of the crimes defined in the RPC or special laws with the use of the aforementioned explosives, detonation agents or incendiary devices, which results in the death of any person or persons, the use of such explosives, detonation agents or incendiary devices shall be considered as an aggravating circumstance.

If the violation of this Section is in furtherance of, or incident to, or in connection with the crime of rebellion, insurrection, sedition or attempted coup d'état, such violation shall be absorbed as an element of the crimes

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of rebellion, insurrection, sedition or attempted coup d'état.

The same penalty shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any of the explosives owned by such firm, company, corporation or entity, to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs. (§3)

3.

Carrying licensed firearm outside one’s residence without legal authority therefor (§1)

4.

Tampering of Firearm's Serial Number — any person who shall unlawfully tamper, change, deface or erase the serial number of any firearm. (§5)

5.

Repacking or Altering the Composition of Lawfully Manufactured Explosives —any person who shall unlawfully repack, alter or modify the composition of any lawfully manufactured explosives. (§6)

and a hand grenade. After verification, the authorities discovered that A was not a licensed holder of the .38 caliber paltik revolver. As for the hand grenade, it was established that only military personnel are authorized to carry hand grenades. Subsequently, A was charged with the crime of Illegal Possession of Firearms and Ammunition. During trial, A maintained that the bag containing the unlicensed firearm and hand grenade belonged to A, his friend, and that he was not in actual possession thereof at the time he was arrested. Are the allegations meritorious? Explain. (3%) SUGGESTED ANSWER: A's allegations are not meritorious. Ownership is not an essential element of the crime of illegal possession of firearms and ammunition. What the law requires is merely possession, which includes not only actual physical possession but also constructive possession where the firearm and explosive are subject to one's control and management. (People us. De Grecia, 233 SCRA)

RA 9372 Human Security Act of 2007 Defines the crime of terrorism to be the commission of “any of the crimes of :

Coverage of Unlicensed Firearm A. Under the Revised Penal Code. The term unlicensed firearm shall include:

i. Piracy in general and Mutiny in the High Seas or in the Philippine Waters

1) 2)

ii. rebellion

firearms with expired license; or unauthorized use of licensed firearm in the commission of the crime

Bar Questions Illegal Possession of Firearms – RA 8294 (1998) Supposing a public school teacher participated in a coup d'etat using an unlicensed firearm. What crime or crimes did he commit? [2%] SUGGESTED ANSWER: The public school teacher committed only coup d'etat for his participation therein. His use of an unlicensed firearm is absorbed in the coup d'etat under the new firearms law (Rep. Act No. 8294). A prosecution for illegal possession of firearm under the new law is allowed only if the unlicensed firearm was not used in the commission of another crime.

iii. Coup d’etat iv. Murder v. Kidnapping and Serious Illegal Detention

B. Under Special Laws i. Arson under P.D. 1613 ii. Violation of R.A. 6969 ( Toxic Substance ad Nuclear Waste Control) iii. R.A. 5207 ( Atomic Energy Regulatory and Liability Act of 1968) iv. Hijacking

Illegal Possession of Firearms & Ammunitions (2000)

v. Piracy in Phil. Waters and Highway Robbery

A has long been wanted by the police authorities for various crimes committed by him. Acting on an information by a tipster, the police proceeded to an apartment where A was often seen. The tipster also warned the policemen that A was always armed. At the given address, a lady who introduced herself as the elder sister of A, opened the door and let the policemen in inside, the team found A sleeping on the floor. Immediately beside him was a clutch bag which, when opened, contained a .38 caliber paltik revolver

vi. P.D. 1866 ( Possession and Manufacture of Firearms/explosives)

thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand”

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 Requirements for Terrorism

A. The accused ( maybe a single individual or a group) must commit any of the enumerated crimes





B. There results a condition of widespread and extraordinary fear and panic among the populace i. The extent and degree of fear and panic, including the number of people affected in order to meet the term “populace”, are questions of facts to be determined by the courts and on a case to case basis.



ii. Is the term “populace’ to be interpreted as referring to the local inhabitants where the acts were committed, or does it refer to the national population?



He was convicted of two separate offenses of murder and illegal use of firearm aggravated with illegal use of firearm. The unequivocal intent of the second par of section 1. of PD 1866 is to respect and preserve homicide or murder as a distinct offense penalized under the RPC and to increasae the penalty for illegal possession of firearm where such a firearm is used in killing a person. Its clear language yields no intention of the lawmaker to repeal or modify, pro tanto, Articles 248 and 249 of the RPC in such a way that if an unlicensed fiream is used in the commission of homicide or murder, either of these crimes, as the case may be, would only serve to aggravate the offense of illegal possession of firearm and would not anymore be separately punished. The words of the subject provision are palpably clear to exclude any suggestion that either of the crimes of homicide and murder, as crimes mala in se under the RPC is obliterated as such and reduced as a mere aggravating circumstance in illegal possession of firearm whenever the unlicensed firearm is used in killing a person. The only purpose of the provision is to increase the penalty prescribed in 1st par of sec 1—reclusion temporal in its max to reclusion perpetua to death. People v Feloteo

C. The purpose of the accused must be to coerce the government to give into an unlawful demand i. The word “demand” is too broad as to cover not only political, criminal or monetarial demands but also those which maybe categorized as social or economic. This however is qualified by the word “ unlawful”.

Other Acts/Persons Liable A. Conspiracy to commit terrorism. The penalty is the same as terrorism itself ( i.e. 40 years of imprisonment)

B. Accomplices- he cooperates in the execution of either terrorism or conspiracy to commit terrorism by previous or simultaneous acts (Penalty is 17 yrs. 4 months and one day to 20 years)

C. Accessory-The acts punished are the same as that under Article 19 of the RPC. The penalty is 10 yrs. And one day to 12 years

1. The law however adopts the absolutory cause of exemption of accessories from liability with respect to their relatives

People vs. Quijada

Facts: Wilfredo Feloteo was found guilty by the trial court of murder under Article 248 of the RPC and Illegal Possession of Firearm, a violation of Section 1 of PD 1866 and sentenced to reclusion perpetua and 20 years respectively. In the evening of May 6, 1993, the victim, Sonny Sotto, and his two friends were walking along the highway after a few drinks earlier that day and were on their way home, having a lively mood. At one point, the accused appeared at the opposite side of the road and walked past the victim’s two friends. The two recognized accused under the bright moon as he was a barriomate. The three friends did not pay much attention to accused as they were playing “habulan” and without a uttering a word, the accused aimed the armalite at Sotto and pulled the trigger. Sotto, was hit above the chest and fell to the ground, face down. The two friends scampered away to find help while the accused fled. Sotto was later found dead. The armalite belong to SPO2 Roman Adion said accused stole the gun from him. Accused obviously denied, saying his purpose for carrying the gun was to bring it to SPO2 Adion as the latter went somewhere (to check his borrowed tricycle whose engine broke down) after leaving the gun at the house where accused was. Accused then walked past the victim’s group at around 7PM. The group zigzagged as they walked. In jest, accused said to victim, “Boots, don’t get near me, I’ll shoot you”. He pointed the gun and pulled the trigger, allegedly unaware that it was loaded. It fired and hit Sotto. The accused was apprehended the next day by SPO2 Adion. On appeal, accused denies that the qualifying circumstance of treachery for murder was present. Ratio: Illegal possession of firearms should only be an aggravating circumstance in light of the amendments to PD 1866 by RA 8294: a.



Case where a dance was held in a basketball court and Quijada kept on pestering Iroy’s sister and Quijada killed the brother.

b.

In the old Section 1 of PD 1866, if homicide or murder is committed with an unlicensed firearm, the penalty of death shall be imposed; RA 8294 amended this, deleting the penalty of death and considered the carrying of unlicensed firearm only as an aggravating circumstance;

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c.

It was approved in 1997 but is retroactively applied since it favours the accused; court cites People v Molina; d. Intent of Congress: two cases from Supreme Court were presented in a senate session – People v Barros (1996) and People v Evangelista (1996); i. Former case ruled that illegal possession of firearm (when killing of another person is committed) should only be an aggravating circumstance; while in the latter case, it is possible to file two separate informations – one for murder and one for illegal possession of firearms; ii. So the senate chose between integrating the crimes (taking illegal possession in its aggravated form) and treating the two as separate crimes; Senate chose the former; e. However, the penalty of reclusion perpetua of appellant is not affected since RA 7659 or the Death Penalty Law was enacted only on December 31, 1993, after the crime was committed in May 1993; Advincula vs. CA (2000)

The Court of Appeals ruled that no charges for Illegal Possession of Firearms could be filed against Amando and Isagani Ocampo for two (2) reasons: First, as to Amando Ocampo, he had the requisite license to possess the firearm (from the Chief of the Firearms and Explosives Office, which was established by sufficient evidence on record. Second, as to Isagani Ocampo, there was no convincing evidence that he was in possession of a gun during the incident involving him, his father and petitioner, except for the eyewitness account of petitioner and one Federico San Miguel.

murder. After trial the RTC imposed upon him the penalty of death in both cases.

HELD: P.D. 1866 is applicable. There is nothing in P.D. No. 1866 (which was promulgated on 29 June 1983) which suggests that it was intended to remain in effect only for the duration of the martial law imposed upon the country by former President Marcos. Neither does the statute contain any provision that so prescribes its lapsing into non-enforceability upon the termination of the state or period of martial law. On the contrary, P.D. No. 1866 by its own terms purported to "consolidate, codify and integrate" all prior laws and decrees penalizing illegal possession and manufacture of firearms, ammunition and explosives in order "to harmonize their provisions," as well as to update and revise certain provisions and prior statutes "in order to more effectively deter violators of the law on firearms, ammunitions and explosives."

Misolas vs. Panga (1990)

Philippine Constabulary (PC) raided a suspected NPA "underground house" in Foster Village, Del Carmen, Pili the early morning. The house was searched and in a red bag under a pillow allegedly used by Misolas a .20 gauge Remington shotgun and four live rounds of ammunition were found. Misolas was charged with the crime of illegal possession of firearms and ammunition under PD 1866 with allegation that it was in furtherance of subversion so as to qualify the offense.

HELD: The rule is well settled that in cases of Illegal Possession of Firearms, two (2) things must be shown to exist: (a) the existence of the firearm, and (b) the fact that it is not licensed. However, it should be noted that in People v. Ramos, citing People v. Gy Gesiong, this Court ruled: " . . . Even if he has the license, he cannot carry the firearm outside his residence without legal authority therefor."

HELD: Illegal possession of firearms is not absorbed in rebellion or subversion. Hernandez ruling cannot find application in this case because Misolas is being charged specifically for the qualified offense of illegal possession of firearms and ammunition under PD 1866.

The Secretary of Justice, in his contested Resolution, thus made the following findings: Even if Amando had the requisite license, there was no proof that he had the necessary permit to carry it outside his residence; and Isagani's plain denial could not overcome his positive identification by petitioner that he carried a firearm in assaulting him. These are findings of fact supported by evidence, which cannot be disturbed by this Court.

SC considered the fact that the Legislature had deemed it fit to provide for two distinct offenses:

He is not being charged with the complex crime of subversion with illegal possession of firearms. Neither is he being separately charged for subversion and for illegal possession of firearms.

(1) illegal possession of firearms qualified by subversion (P.D. No. 1866) and (2) subversion qualified by the taking up of arms against the Government (R.A. No. 1700).

Baylosis vs. Chavez (1991) People vs. Tac-an (1990)

Tac-an and the deceased Escaño were high school classmates [and gang mates in Bronx gang]. The relationship between Tac-an and Escaño turned sour as the quarrel between them escalated from September up to December 1984. While the class was still going on, Tac-an slipped out of the classroom and went home to get a gun. Tac-an suddenly burst into the room, and upon sighting Escaño Tacan fired at scampering Escaño, hitting Escaño. Escaño remained sprawled on the floor bleeding profusely. Tac-an was charged with qualified illegal possession of a firearm and ammunition and of

Baylosis, de Vera and Marco Palo, all known high ranking officers of the CPP-NPA, were charged with a illegal possession of firearms in furtherance of, or incident to, or in connection with the crimes of rebellion or subversion.

HELD: Charging the qualified offense of Illegal possession of firearms under PD 1866 does not charge the complex crime of subversion with illegal possession of firearms, and hence does not run counter to Hernandez, et al., is good and correct rule and is applicable in CAB.

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People vs. Tiozon (1991)

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

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

Section 1 of P.D. No. 1866 imposes the penalty of reclusion temporal in its maximum period to reclusion perpetua "upon any person who shall unlawfully manufacture, deal in, acquire, dispose or possess any firearm, part of firearm, ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition." It goes further by providing that "if homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be imposed." It may be loosely said that homicide or murder qualifies the offense penalized in said Section 1 because it is a circumstance which increases the penalty. It does not, however, follow that the homicide or murder is absorbed in the offense; otherwise, an anomalous absurdity results whereby a more serious crime defined and penalized in the Revised Penal Code is absorbed by a statutory offense, which is just a malum prohibitum. The rationale for the qualification, as implied from the exordium of the decree, is to effectively deter violations of the laws on firearms and to stop the "upsurge of crimes vitally affecting public order and safety due to the proliferation of illegally possessed and manufactured firearms, . . . " In fine then, the killing of a person with the use of an unlicensed firearm may give rise to separate prosecutions for (a) violation of Section 1 of P.D. No. 1866 and (b) violation of either Article 248 (Murder) or Article 249 (Homicide) of the Revised Penal Code. The accused cannot plead one as a bar to the other; or, stated otherwise, the rule against double jeopardy cannot be invoked because the first is punished by a special law while the second, homicide or murder, is punished by the Revised Penal Code. However, to justify the imposition of the increased penalty under Section 1 of P.D. No. 1866 because of the resulting crime of homicide or murder, the prosecution must allege in the information and prove by the quantum of evidence required for conviction violation of said section and, more specifically, the use of an unlicensed firearm and the commission of homicide or murder. Undoubtedly, there is unlawful possession under the foregoing section if one does not have the license to possess the firearm. Even if he has the license, he cannot carry the firearm outside his residence without legal authority therefor. It follows then that the lack or absence of a license is an essential ingredient of the offense which the prosecution must allege and prove. Every element of the crime must be alleged and proved. There being no proof that accused-appellant had no license to possess the firearm in question, he could not be convicted for illegal possession of a firearm. Therefore, the trial court then committed an error in holding the accusedappellant guilty thereof.

People vs. De Gracia (1994)



The rule is that ownership is not an essential element of illegal possession of firearms and ammunition. What the law requires is merely possession which includes not only actual physical possession but also constructive possession or the subjection of the thing to one's control and management. This has to be so if the manifest intent of the law is to be effective. The same evils, the same perils to public security, which the law penalizes exist whether the unlicensed holder of a prohibited









weapon be its owner or a borrower. To accomplish the object of this law the proprietary concept of the possession can have no bearing whatsoever. But is the mere fact of physical or constructive possession sufficient to convict a person for unlawful possession of firearms or must there be an intent to possess to constitute a violation of the law? This query assumes significance since the offense of illegal possession of firearms is a malum prohibitum punished by a special law, in which case good faith and absence of criminal intent are not valid defenses. When the crime is punished by a special law, as a rule, intent to commit the crime is not necessary. It is sufficient that the offender has the intent to perpetrate the act prohibited by the special law. Intent to commit the crime and intent to perpetrate the act must be distinguished. A person may not have consciously intended to commit a crime; but he did intend to commit an act, and that act is, by the very nature of things, the crime itself. In the first (intent to commit the crime), there must be criminal intent; in the second (intent to perpetrate the act) it is enough that the prohibited act is done freely and consciously. A distinction should be made between criminal intent and intent to possess. While mere possession, without criminal intent, is sufficient to convict a person for illegal possession of a firearm, it must still be shown that there was animus possidendi or an intent to possess on the part of the accused. Such intent to possess is, however, without regard to any other criminal or felonious intent which the accused may have harbored in possessing the firearm. Criminal intent here refers to the intention of the accused to commit an offense with the use of an unlicensed firearm. This is not important in convicting a person under Presidential Decree No. 1866. Hence, in order that one may be found guilty of a violation of the decree, it is sufficient that the accused had no authority or license to possess a firearm, and that he intended to possess the same, even if such possession was made in good faith and without criminal intent. Concomitantly, a temporary, incidental, casual, or harmless possession or control of a firearm cannot be considered a violation of a statute prohibiting the possession of this kind of weapon, such as Presidential Decree No. 1866. Thus, although there is physical or constructive possession, for as long as the animus possidendi is absent, there is no offense committed.

People vs. Garcia (2002)

Tioleco was kidnapped while he was jogging alone in the morning. His abductors took him to a house in Fairview, where the accused Rogel and Lariba were assigned to watch over him. When the police discovered the hideout, Rogel and Lariba immediately ran to a room in the house where several unlicensed firearms were stored. Both were convicted of Kidnapping for Ransom AND Illegal Possession of Firearms.

HELD: Rogel and Lariba cannot be held liable for illegal possession of firearms and ammunitions there being another crime - kidnapping for ransom - which they were perpetrating at the same time.

Under R.A. 8294, if an unlicensed firearm is used in the commission of any crime, there can be no separate offense of simple illegal possession of firearms. The language of the new law demonstrates the legislative intent to favor the accused. The law is clear: the accused can be convicted of simple illegal possession of firearms, provided that "no other crime was committed by the person

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arrested." If the intention of the law in the second paragraph were to refer only to homicide and murder, it should have expressly said so, as it did in the third paragraph. Where the law does not distinguish, neither should we.

Held: 1)

People vs. Castillo (2000) 2) Wilhelmina was kidnapped by persons pretending to be interested buyers of real estate. She was brought to a safehouse in Quezon City, where the accused Gonzales was assigned to watch over her at all times. Gonzales carried an unlicensed firearm while watching over Wilhelmina. When the police discovered the safehouse, Gonzales immediately threw his firearm away from him. The police found more unlicensed firearms in another room in the house. Gonzales was convicted of Illegal Possession of Firearms, with penalty derived from P.D. 1866.

HELD: The penalty imposed on him by the trial court exceeded that prescribed by law. Under Republic Act No. 8294, amending P. D. No. 1866, the penalty for illegal possession of firearm classified as high powered is prision mayor minimum or six (6) years and one (1) day to eight (8) years and a fine of thirty thousand (P30,000.00) pesos. Here, the offense was committed on November 27, 1992. Since the amendatory law is favorable to the accused, it shall be given retroactive application.

Note: In this case, the amendatory law AR8294 had not yet been passed, therefore it was still allowed to separately charge murder and illegal possession of firearms.

Article 143. Acts tending to prevent the meeting of the Assembly and similar bodies

Elements:

1.

People vs. Nepomuceno (1999)

Accused cannot be found guilty of aggravated illegal possession as the information simply charged simple illegal possession. That an unlicensed firearm was used in the commission of murder or homicide is a qualifying circumstance. Consequently, it must be specifically alleged in the information, otherwise the accused cannot be sentenced to death without violating his right to be informed of the charge against him. He cannot even be convicted of simple illegal possession as there was no proof that the gun was unlicensed. The fact that the gun used was homemade does not mean that it cannot be licensed and therefore it is right for the court to automatically assume that it is unlicensed. Even if a homemade gun is used, it does not dispense with the required proof that the gun was indeed unlicensed.

2.

There is a projected or actual meeting of Congress or any of its committees or subcommittees, constitutional commissions or committees or divisions thereof, or of any provincial board or city or municipal council or board; Offender, who may be any person, prevents such meetings by force or fraud.

Accused here was charged with parricide that was committed with the use of an unlicensed firearm. The 2 charges were separately charged and tried.

Article 144. Disturbance of proceedings RA8294 was passed which said that if a homicide or murder is committed with the use of an unlicensed firearm, the latter cannot be tried separately but will just be treated as an aggravating circumstance.

HELD: Accused can no longer be separately charged with parricide and illegal possession of firearms. The amendment says that the latter is only to be treated as an aggravating circumstance. Being clearly favorable to the accused, the amendatory law RA8294 can be applied retroactively to this case.

Elements:

1.

2.

a. b.

People vs. Evangelista (1996)

Accused here was charged with murder and simple illegal possession of firearms. Accused here killed someone with a homemade gun. However the court found the accused guilty of murder and aggravated illegal possession of firearms (weapon used for murder) and sentenced him to death.

There is a meeting of Congress or any of its committees or subcommittees, constitutional commissions or committees or divisions thereof, or of any provincial board or city or municipal council or board; Offender does any of the following acts:



He disturbs any of such meetings; He behaves while in the presence of any such bodies in such a manner as to interrupt its proceedings or to impair the respect due it.

The complaint for disturbance of proceedings may be filed by a member of a legislative body.

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

One who disturbs the proceedings of Congress may also be punished for contempt by such Congress.

Article 145. Violation of parliamentary immunity





Thus, under the Constitution, a public officer who arrests a member of Congress who has committed a crime punishable by prision mayor (six years and one day, to 12 years) is not liable Article 145. To be consistent with the Constitution, the phrase "by a penalty higher than prision mayor" in Article 145 should be amended to read: "by the penalty of prision mayor or higher."

Acts punishable: Article 146. Illegal assemblies 1.

Using force, intimidation, threats, or frauds to prevent any member of Congress from attending the meetings of Congress or of any of its committees or subcommittees, constitutional commissions or committees or divisions thereof, or from expressing his opinion or casting his vote;

Acts punishable:

1.

Elements:

a. b.

or fraud;

o o 2.

Elements:

Offender uses force, intimidation, threats

The purpose of the offender is to prevent any member of Congress from o

attending the meetings of the Congress or of any of its committees or constitutional commissions, etc.; expressing his opinion; or casting his vote.

Any meeting attended by armed persons for the purpose of committing any of the crimes punishable under the Code;

a. b. c.

2.

Arresting or searching any member thereof while Congress is in regular or special session, except in case such member has committed a crime punishable under the Code by a penalty higher than prision mayor.

Any meeting in which the audience, whether armed or not, is incited to the commission of the crime of treason, rebellion or insurrection, sedition, or assault upon person in authority or his agents. a. b.

Elements:

a. b. c. d.

 



Offender is a public officer of employee; He arrests or searches any member of

There is a meeting, a gathering or group of persons, whether in fixed place or moving; The meeting is attended by armed persons; The purpose of the meeting is to commit any of the crimes punishable under the Code.

There is a meeting, a gathering or group of persons, whether in a fixed place or moving; The audience, whether armed or not, is incited to the commission of the crime of treason, rebellion or insurrection, sedition or direct assault.

Persons liable:

Congress;

Congress, at the time of arrest or search, is in regular or special session; The member arrested or searched has not committed a crime punishable under the Code by a penalty higher than prision mayor.

It is not necessary that the member of Congress is actually prevented from attending. Parliamentary immunity does not protect members of Congress from responsibility before Congress itself. Under the 1987 Constitution, members of Congress are exempted from arrest, while Congress is in session, for all offenses punishable by a penalty LESS THAN PRISION MAYOR.

1. 3.

The organizer or leaders of the meeting; Persons merely present at the meeting, who must have a common intent to commit the felony of illegal assembly.



Meeting – includes a gathering or group, whether in a fixed place or moving. Under the first type of illegal assembly, not all persons present at the meeting must be armed to be liable under this article. The unarmed person merely present at the meeting of the first type is liable, but armed persons are punished more severely under this article. Note however that the person merely present must have an intent to commit the felony



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



of illegal assembly. If he was a curious bystander, he is not liable. If any person present at the meeting carries an unlicensed firearm, o it is presumed that the purpose of the meeting insofar as he is concerned is to commit acts punishable under the Revised Penal Code, o He is considered a leader or organizer of the meeting. Under the first type, the audience must be “actually incited” to the commission of any of the crimes enumerated. If the meeting was dispersed before there was actual inciting, there is no illegal assembly.

Article 148. Direct assaults

Acts punishable:

1.

Elements:

a. b.

Article 147. Illegal associations

c.

What are illegal associations? 1. 2.

Without public uprising, by employing force or intimidation for the attainment of any of the purposes enumerated in defining the crimes of rebellion and sedition;

Associations totally or partially organized for the purpose of committing any of the crimes punishable under the Code; Associations totally or partially organized for some purpose contrary to public morals.

2.

Without public uprising, by attacking, by employing force or by seriously intimidating or by seriously resisting any person in authority or any of his agents, while engaged in the performance of official duties, or on occasion of such performance. Elements:

Persons liable:

1.

Founders, directors and president of the association;

2.

Mere members of the association.

a. b. c.

Illegal associations

Offender employs force or intimidation; The aim of the offender is to attain any of the purposes of the crime of rebellion or any of the objects of the crime of sedition; There is no public uprising.

Illegal assemblies

It is not necessary that there be an actual meeting

It is necessary that there is an actual meeting or assembly for the purposes stated in Article 146

The act of forming or organizing and membership in the association is punished

The meeting and attendance at such meeting is punished

Persons liable are the founders, directors and president, and the members

Persons liable are the organizers or leaders of the meeting and the persons present at such meeting

d.

e. 







Offender makes an attack, employs force, makes a serious intimidation, or makes a serious resistance; The person assaulted is a person in authority or his agent; At the time of the assault, the person in authority or his agent is engaged in the actual performance of official duties, or that he is assaulted by reason of the past performance of official duties; Offender knows that the one he is assaulting is a person in authority or his agent in the exercise of his duties. There is no public uprising.

Any person who assaults, strikes, wounds or in any other manner offers violence to the person of an ambassador or a public minister, shall be subject to an additional penalty under R.A. 75. In the first type of direct assault, it is not necessary that the offended party is a person in authority or his agent. If the offended party is only an agent of a person in authority, the force must be of a serious character as to indicate a determination to defy the law and its representative. The force employed need not be serious when the offended party is a person in authority (reason: penalty is even higher when the offender lays hands upon a person in authority) C2005 Criminal Law 2 Reviewer

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

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

The intimidation or resistance must be serious whether the offended party is an agent only or he is a person in authority. To determine whether a certain public officer is a person in authority, look at his powers and duties vested by law. When persons in authority or their agents descended to matters of private nature, an attack made by one against the other is not direct assault, because they are not considered in “performance of official duties.” If the person in authority or his agent provokes the offender, there is no direct assault if accused is acting in lawful self-defense. Direct assault of the second type may be committed by a public officer, because the law considers it an aggravating circumstance when the offender “is a public officer or employee’. Knowledge of the accused that the victim is a person in authority or his agent is essential. The information must allege such knowledge. It is not necessary that the person in authority or his agent be in the actual performance of official duty when attacked or seriously intimidated. Attack may be done ‘by reason of the performance of duty’ – means by reason of the past performance of official duty, even if at the time of the assault no official duty was being discharged. Evidence of motive is important when the person in authority or his agent is not in the actual performance of duty when attacked. Direct assault of the second form is qualified when: o The assault is committed with a weapon, or o The offender is a public officer of employee, or o The offender lays hands upon a person in authority. The crime of slight physical injuries is absorbed in direct assault, because it is the necessary consequence of the force or violence used. Serious physical injuries, murder or homicide may be complexed with direct assault.

People vs. Beltran

Mayor Quirolgico and patrolman Tolentino went to the Puzon compound to talk to Beltran and his companions to surrender in connection with an incident where Beltran shouted “vulva of your mother” to Alvarado and Urbi. Mayor and patrolman suffered gunshot wounds and the mayor’s son died due to a simultaneous discharge of gunfire by the accused.

HELD: The accused are guilty of murder and double attempted murder with direct assault (under the 2nd form of direct assault). The accused attacked and employed force against the mayor and police

while the latter were engaged in the actual performance of duty and the accused knew that they were assaulting persons in authority.

People vs. Dollantes

Barangay Captain was delivering a speech to start a dance when Dollantes went to the middle of the dancing floor making a dance movement, brandishing a knife and challenging everyone. The Barangay Captain approached him and told him to stop and keep quiet. Dollantes and his companions stabbed and eventually killed the Barangay Captain.

HELD: The accused were guilty of Assault upon a person in authority, resulting in Murder. The Barangay captain was in the act of trying to pacify Dollantes who was making trouble in the dance hall when he was stabbed to death. Hence, he was killed while in the performance of duties. A Barangay Captain is a person in authority.

Bar Questions Art. 148Direct Assault vs. Resistance & Disobedience (2001) A, a teacher at Mapa High School, having gotten mad at X, one of his pupils, because of the latter's throwing paper clips at his classmates, twisted his right ear. X went out of the classroom crying and proceeded home located at the back of the school. He reported to his parents Y and Z what A had done to him. Y and Z immediately proceeded to the school building and because they were running and talking in loud voices, they were seen by the barangay chairman, B, who followed them as he suspected that an untoward incident might happen. Upon seeing A inside the classroom, X pointed him out to his father, Y, who administered a fist blow on A, causing him to fall down. When Y was about to kick A, B rushed towards Y and pinned both of the latter's arms. Seeing his father being held by B, X went near and punched B on the face, which caused him to lose his grip on Y. Throughout this incident, Z shouted words of encouragement at Y, her husband, and also threatened to slap A. Some security guards of the school arrived, intervened and surrounded X, Y and Z so that they could be investigated in the principal's office. Before leaving, Z passed near A and threw a small flower pot at him but it was deflected by B. a) What, if any, are the respective criminal liability of X Y and Z? (6%) b) Would your answer be the same if B were a barangay tanod only? (4%) SUGGESTED ANSWER: a) X is liable for Direct Assault only, assuming the physical injuries inflicted on B, the Barangay Chairman, to be only slight and hence, would be absorbed in the direct assault. A Barangay Chairman is a person in authority (Art. 152, RPC) and in this case, was performing his duty of maintaining

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peace and order when attacked.

Authority (2000)

Y is liable for the complex crimes of Direct Assault With Less Serious Physical Injuries for the fist blow on A, the teacher, which caused the latter to fall down. For purposes of the crimes in Arts. 148 and 151 of the Revised Penal Code, a teacher is considered a person in authority, and having been attacked by Y by reason of his performance of official duty, direct assault is committed with the resulting less serious physical injuries completed. Z, the mother of X and wife of Y may only be liable as an accomplice to the complex crimes of direct assault with less serious physical injuries committed by Y. Her participation should not be considered as that of a coprincipal, since her reactions were only incited by her relationship to X and Y. as the mother of X and the wife of Y.

Who are deemed to be persons in authority and agents of persons in authority? (3%)

b) If B were a Barangay Tanod only, the act of X of laying hand on him, being an agent of a person in authority only, would constitute the crime of Resistance and Disobedience under Article 151, since X, a high school pupil, could not be considered as having acted out of contempt for authority but more of helping his father get free from the grip of B. Laying hand on an agent of a person in authority is not ipso facto direct assault, while it would always be direct assault if done to a person in authority in defiance to the latter is exercise of authority. Art 148; Direct Assault; Teachers & Professors (2002) A, a lady professor, was giving an examination. She noticed B, one of the students, cheating. She called the student's attention and confiscated his examination booklet, causing embarrassment to him. The following day, while the class was going on, the student, B, approached A and, without any warning, slapped her. B would have inflicted further injuries on A had not C, another student, come to A's rescue and prevented B from continuing his attack. B turned his ire on C and punched the latter. What crime or crimes, if any, did B commit? Why? (5%) SUGGESTED ANSWER: B committed two (2) counts of direct assault: one for slapping the professor, A, who was then conducting classes and thus exercising authority; and another one for the violence on the student C, who came to the aid of the said professor. By express provision of Article 152, in relation to Article 148 of the Revised Penal Code, teachers and professors of public or duly recognized private schools, colleges and universities in the actual performance of their professional duties or on the occasion of such performance are deemed persons in authority for purposes of the crimes of direct assault and of resistance and disobedience in Articles 148 and 151 of said Code. And any person who comes to the aid of persons in authority shall be deemed an agent of a person in authority. Accordingly, the attack on C is, in the eyes of the law, an attack on an agent of a person in authority, not just an attack on a student. Art 148; Persons in Authority/Agents of Persons in

SUGGESTED ANSWER: Persons in authority are persons directly vested with jurisdiction, whether as an individual or as a member of some court or government corporation, board, or commission. Barrio captains and barangay chairmen are also deemed persons in authority. (Article 152, RPC) Agents of persons in authority are persons who by direct provision of law or by election or by appointment by competent authority, are charged with maintenance of public order, the protection and security of life and property, such as barrio councilman, barrio policeman, barangay leader and any person who comes to the aid of persons in authority (Art. 152, RPC), In applying the provisions of Articles 148 and 151 of the Rev. Penal Code, teachers, professors and persons charged with the supervision of public or duly recognized private schools, colleges and universities, and lawyers in the actual performance of their professional duties or on the occasion of such performance, shall be deemed persons in authority. (P.D. No. 299, and Batas Pambansa Blg. 873). Complex Crime; Direct Assault with murder (2000) Because of the approaching town fiesta in San Miguel, Bulacan, a dance was held in Barangay Camias. A, the Barangay Captain, was invited to deliver a speech to start the dance. While A was delivering his speech. B, one of the guests, went to the middle of the dance floor making obscene dance movements, brandishing a knife and challenging everyone present to a fight. A approached B and admonished him to keep quiet and not to disturb the dance and peace of the occasion. B, instead of heeding the advice of A, stabbed the latter at his back twice when A turned his back to proceed to the microphone to continue his speech. A fell to the ground and died. At the time of the incident A was not armed. What crime was committed? Explain. (2%) SUGGESTED ANSWER: The complex crime of direct assault with murder was committed. A, as a Barangay Captain, is a person in authority and was acting in an official capacity when he tried to maintain peace and order during the public dance in the Barangay, by admonishing B to keep quiet and not to disturb the dance and peace of the occasion. When B, instead of heeding A's advice, attacked the latter, B acted in contempt and lawless defiance of authority constituting the crime of direct assault, which characterized the stabbing of A. And since A was stabbed at the back when he was not in a position to defend himself nor retaliate, there was treachery in the stabbing. Hence, the death caused by such stabbing was murder and having been committed with direct assault, a complex crime of direct assault with murder was committed by B. Art 148; Direct Assault with murder (1995) Pascual operated a rice thresher in Barangay Napnud where he resided. Renato, a resident of the neighboring Barangay Guihaman, also operated a mobile rice thresher which he often brought to Barangay Napnud to thresh the palay of the farmers there. This was bitterly resented by Pascual, one afternoon Pascual, and his two sons confronted Renato and

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his men who were operating their mobile rice thresher along a feeder road in Napnud. A heated argument ensued. A barangay captain who was fetched by one of Pascual's men tried to appease Pascual and Renato to prevent a violent confrontation. However, Pascual resented the intervention of the barangay captain and hacked him to death. What crime was committed by Pascual? Discuss fully. SUGGESTED ANSWER: Pascual committed the complex crime of homicide with assault upon a person in authority (Arts. 148 and 249 in relation to Art, 48, RPC). A barangay chairman, is in law (Art. 152), a person in authority and if he is attacked while in the performance of his official duties or on the occasion thereof the felony of direct assault is committed. Art. 48, RPC, on the other hand, provides that if a single act produces two or more grave or less grave felonies, a complex crime is committed. Here, the single act of the offender in hacking the victim to death resulted in two felonies, homicide which is grave and direct assault which is less grave.

Article 149. Indirect assaults

4. 5.

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

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possession, when required by them to do so in the exercise of their functions; By restraining another from attending as a witness in such legislative or constitutional body; By inducing disobedience to a summons or refusal to be sworn by any such body or official. Reason for this article: to give strength to the legislature’s power of inquiry, which is essential to legislative functions. This article will not apply if the papers may be used in evidence against the owner, because it would be compelling him to be a witness against himself. Self-incrimination is a valid excuse. The testimony of the person summoned must be upon matters into which Congress has jurisdiction to inquire. Acts punished under this article may also be punished for contempt of the Congress.

Article 151. Resistance and disobedience to a person in authority or the agents of such person

Elements: Elements of resistance and serious disobedience: 1. 2. 3.



A person in authority or his agent is the victim of any of the forms of direct assault defined in Article 148; A person comes to the aid of such authority or his agent; Offender makes use of force or intimidation upon such person coming to the aid of the authority or his agent. Indirect assault can be committed only when direct assault is committed.

1. 2. 3.

A person in authority or his agent is engaged in the performance of official duty or gives a lawful order to the offender; Offender resists or seriously disobeys such person in authority or his agent; The act of the offender is not included in the provision of Articles 148, 149 and 150.

Elements of simple disobedience: Article 150. Disobedience to summons issued by the National Assembly, its committees or subcommittees, by the Constitutional Commission, its committees, subcommittees or divisions

Acts punishable: 1.

2. 3.

By refusing, without legal excuse, to obey summons of Congress, its special or standing committees and subcommittees, the Constitutional Commissions and its committees, subcommittees or divisions, or by any commission or committee chairman or member authorized to summon witnesses; By refusing to be sworn or placed under affirmation while being before such legislative or constitutional body or official; By refusing to answer any legal inquiry or to produce any books, papers, documents, or records in his

1. 2. 3. 





An agent of a person in authority is engaged in the performance of official duty or gives a lawful order to the offender; Offender disobeys such agent of a person in authority; Such disobedience is not of a serious nature. The disobedience contemplated consists in the failure or refusal to obey DIRECT ORDER from the person in authority or his agent. Under simple disobedience, the offended party must be only an agent of a person in authority. If no force is employed by the offender against a person in authority, the crime is resistance or serious disobedience under the first type. Resistance or serious

Direct assault

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disobedience Person in authority or his agent must be in actual performance of his duties

Person in authority or his agent must be engaged in the performance of official duties or that he is assaulted by reason thereof

Committed only by resisting or seriously disobeying

(2nd type) committed by attacking, employing force, seriously intimidating or seriously resisting

Force employed is not so serious, as there is no manifest intention to defy the law and the officers

Attack or employment of force must be serious and deliberate. But if the one resisted is a person in authority, any degree of force is direct assault.

1. 2. 3. 4. 5.





Article 152. Persons in authority and Agents of persons in authority

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



A person in authority is one directly vested with jurisdiction, whether as an individual or as a member of some court or government corporation, board or commission. Vested with jurisdiction – the power and authority to govern and execute the laws. Examples of person in authority: division superintendent of schools, president of sanitary division (in a municipality), teachers, mayor, justice of peace, barangay captain and barangay chairman An agent of a person in authority is one who, by direct provision of law or by appointment by competent authority, is charged with (1) the maintenance of public order and (2) the protection and security of life and property. Examples: barrio councilman, barrio policeman, barangay leader, any person who comes to the aid of persons in authority, sheriff, postmaster, agents of BIR, municipal treasurer, policemen Teachers, professors and persons charged with the supervision of public or duly recognized private schools, colleges and universities, and lawyers in the actual performance of their professional duties or on the occasion of such performance, shall be deemed persons in authority for purposes of Articles 148 (direct assault) and 151 (disobedience). By implication, Article 149 (indirect assault) is also included.

Article 153. Tumults and other disturbances of public order – tumultuous disturbance or interruption liable to cause disturbance



 

Acts punishable: Causing any serious disturbance in a public place, office or establishment; Interrupting or disturbing performances, functions or gatherings, or peaceful meetings, if the act is not included in Articles 131 and 132 Making any outcry tending to incite rebellion or sedition in any meeting, association or public place; Displaying placards or emblems which provoke a disturbance of public order in such place; Burying with pomp the body of a person who has been legally executed. If the act of disturbing or interrupting a meeting or religious ceremony is not committed by public officers, or if committed by public officers they are participants therein, this article should be applied. Outcry – to shout subversive or provocative words tending to stir up the people to obtain by means of force or violence any of the objects of rebellion or sedition. If the outcry is an unconscious outburst which is not intentionally calculated to induce others to commit rebellion or sedition, it should be punished under this article. If the offender made the outcry with the thought of inducing his hearers to commit rebellion or sedition, then it is punished as inciting to rebellion/sedition. Persons causing disturbance of a tumultuous character shall be imposed a penalty next higher in degree Tumultuous – If caused by more than three persons who are armed or provided with means of violence

Article 154. Unlawful use of means of publication and unlawful utterances

Acts punishable: 1.

2.

3. 4.

Publishing or causing to be published, by means of printing, lithography or any other means of publication, as news any false news which may endanger the public order; or cause damage to the interest or credit of the State; Encouraging disobedience to the law or to the constituted authorities or praising, justifying or extolling any act punished by law, by the same means or by words, utterances or speeches; Maliciously publishing or causing to be published any official resolution or document without proper authority, or before they have been published officially Printing, publishing or distributing (or causing the same) books, pamphlets, periodicals, or leaflets which do not bear the real printer’s name, or which are classified as anonymous. C2005 Criminal Law 2 Reviewer

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 

 

‘may endanger’ – means that actual public disorder or actual damage to the credit of the State is not necessary. The offender must know that the news is false, to be liable under this article. R.A. 248 prohibits the reprinting, reproduction or republication of government publications and official documents without official authority.

Article 155. Alarms and scandals

 



Applies to any kind of prisoner, whether detention prisoner or prisoner by final judgment. Violence, intimidation or bribery increases the applicable penalty. If the escape of the prisoner takes place outside of said establishments by taking the guards by surprise, the penalty is the minimum period of that prescribed. What is the liability of the prisoner who escapes? o If he is a detention prisoner, such person is not criminally liable. A prisoner is criminally liable for leaving the penal institution only when there is evasion of service of sentence, which can be committed only by a convict by final judgment.

Acts punishable: 1. 2. 3. 4.



  



Discharging any firearm, rocket, firecracker, or other explosive within any town or public place, calculated to cause (which produces) alarm of danger; Instigating or taking an active part in any charivari or other disorderly meeting offensive to another or prejudicial to public tranquility; Disturbing the public peace while wandering about at night or while engaged in any other nocturnal amusements; Causing any disturbance or scandal in public places while intoxicated or otherwise, provided Article 153 in not applicable. The discharge of firearm should not be aimed at any person, otherwise the offense is discharge of firearm under Article 254. The act in the first paragraph must produce alarm or danger as a consequence. Discharge of firecrackers or rockets during fiestas not covered by this article. Charivari – a medley of discordant voices, a mock serenade of discordant noises made on kettles, tins, horns, etc. designed to annoy and insult. If the disturbance is of serious nature, the case falls under Article 153.

Article 156. Delivering prisoners from jail

Alberto vs. Dela Cruz

Denaque escaped while working on the governor’s fence. Petition to include as defendants Governor Cledera and assistant provincial warden Esmeralda due to the belief that they had a hand in the escape of Pablo Denaque. Allegedly, the governor sent a note to Esmeralda asking for five men to work on his fence.

HELD: The Governor and Esmeralda cannot be prosecuted for the offense. It is necessary that the public officer consented to or connived in the escape of the prisoner under his custody. If the public officer charged with the duty of guarding him does not connive with the fugitive, then he has not violated the law and is not guilty of the crime. Article 156 is usually committed by an outsider. If the offender is a public officer, then Article 223 applies.

Bar Question Art 156; Delivery of Prisoners from Jail (2002) A, a detention prisoner, was taken to a hospital for emergency medical treatment. His followers, all of whom were armed, went to the hospital to take him away or help him escape. The prison guards, seeing that they were outnumbered and that resistance would endanger the lives of other patients, deckled to allow the prisoner to be taken by his followers. What crime, if any, was committed by A's followers? Why? (3%) SUGGESTED ANSWER:

Elements:

A's followers shall be liable as principals in the crime of delivery of prisoner from Jail (Art. 156, Revised Penal

1. 2.

There is a person confined in a jail or penal establishment; Offender removes therefrom such person, or helps the escape of such person.

Code). The felony is committed not only by removing from any jail or penal establishment any person confined therein but also by helping in the escape of such person outside of said establishments by means of violence, intimidation, bribery, or any other means.

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Article 157. Evasion of service of sentence

HELD: Abilong is guilty of evasion of service of sentence for having violated the judgment of destierro against him. Destierro is a deprivation of liberty (though partial) and he may escape from the restrictions of the penalty.

Elements: 1. 2. 3.

Offender is a convict by final judgment; He is serving sentence which consists in the deprivation of liberty; He evades service of his sentence by escaping during the term of his imprisonment.

Qualifying circumstances as to penalty imposed:

If such evasion or escape takes place -

Bar Questions Art 157; Evasion of Service of Sentence (1998) Manny killed his wife under exceptional circumstances and was sentenced by the Regional Trial Court of Dagupan City to suffer the penalty of destierro during which he was not to enter the city. While serving sentence, Manny went to Dagupan City to visit his mother. Later, he was arrested in Manila. 1. Did Manny commit any crime? [3%] 2. If so, where should he be prosecuted? [2%]

1. 2. 3. 4.





By means of unlawful entry (this should be “by scaling” if correct Spanish translation is used); By breaking doors, windows, gates, walls, roofs or floors; By using picklock, false keys, disguise, deceit, violence or intimidation; or Through connivance with other convicts or employees of the penal institution. ‘Escape’ – flee from, to avoid, to get out of the way, as to flee to avoid arrest. Prisoners seen loitering a few meters away from the city jail are not considered to have escaped. This article is applicable to a sentence of destierro.

Tanega vs. Masakayan

Tanega was found guilty of slander. He failed to show up on the day of the execution of the sentence imposed.

HELD: Under Article 157, escape should take place while serving the sentence. For prescription of penalty of imprisonment imposed by final judgment to commence to run, the culprit should escape during the term of such imprisonment. Never placed in confinement, prescription of penalty does not run in Tanega’s favor.

People vs. Abilong

Abilong was sentenced to destierro by virtue of final judgment for attempted robbery. He violated this judgment by going beyond the limits made against him, and committed vagrancy.

SUGGESTED ANSWER: 1. Yes. Manny committed the crime of evasion of service of sentence when he went to Dagupan City, which he was prohibited from entering under his sentence of destierro. A sentence imposing the penalty of destierro is evaded when the convict enters any of the place/places he is prohibited from entering under the sentence or come within the prohibited radius. Although destierro does not involve imprisonment, it is nonetheless a deprivation of liberty. (People vs. Abilong. 82 Phil. 172). 2. Manny may be prosecuted in Dagupan City or in Manila where he was arrested. This is so because evasion of service of sentence is a continuing offense, as the convict is a fugitive from justice in such case. (Parulan vs. Dir. of Prisons, L-28519, 17 Feb. 1968)

Article 158. Evasion of service of sentence on the occasion of disorders, conflagrations, earthquakes, or other calamities

Elements:

1. 2.

3. 4.

Offender is a convict by final judgment, who is confined in a penal institution; There is disorder, resulting from – a. conflagration; b. earthquake; c. explosion; or d. similar catastrophe; or e. mutiny in which he has not participated; He evades the service of his sentence by leaving the penal institution where he is confined, on the occasion of such disorder or during the mutiny; He fails to give himself up to the authorities within 48 hours following the issuance of a proclamation by the Chief Executive announcing the passing away of such calamity. C2005 Criminal Law 2 Reviewer

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The offender must be a convict by final

 judgment. 







What is punished is not the leaving of the penal institution, but the failure of the convict to give himself up to the authorities within 48 hours after the proclamation announcing the passing away of the calamity. If convict fails to give himself up, he shall suffer and increase of 1/5 of the time still remaining to be served under the original sentence, not to exceed six months. If he gives himself up within 48 hours, he shall be entitled to 1/5 deduction of the period of his sentence. Mutiny – organized unlawful resistance to a superior officer, a sedition, a revolt

Torres vs. Gonzales

Torres was convicted of estafa. He was granted a conditional pardon and was released. Subsequent to his release, he was charged with 20 counts of estafa (cases pending), was convicted of sedition (appeal pending) and had a long list of crimes charged against him (grave threats, grave coercion, swindling etc.)

HELD: Article 159 defines a distinct and substantive felony. Under this article, the convict must be charged, prosecuted and convicted by FINAL JUDGMENT before he can be made to suffer the penalty in said article. In proceeding against a convict who violated the conditions of his pardon, the Executive Department may: 1) proceed against him under Section 64 (1) of the Revised Administrative Code or 2) proceed against him under this article of the RPC.

Article 159. Other cases of evasion of service of sentence (Violation of conditional pardon)

Elements:

1.

Offender was a convict;

2.

He was granted pardon by the Chief Executive;

3.

He violated any of the conditions of such pardon.



A conditional pardon is a contract between the Chief Executive and the convict. Since it is a contract, the pardoned convict is bound to fulfill its conditions and accept all its consequences, not as he chooses, but according to its strict terms. If the penalty remitted does not exceed six years, penalty for violation of this article is prision correccional minimum. If the penalty remitted exceeds six years, the penalty under this article is the unexpired portion of the original sentence. Condition that pardoned convict should not commit another crime extends to offenses punishable under special laws. If there is a condition that convict shall not commit another crime, offender must be found guilty of a subsequent offense before he can be prosecuted under this article. The duration of the conditions in a pardon would be limited to the remaining period of the prisoner’s sentence, UNLESS an intention to extend it beyond that time was manifest from the nature of the condition or the language in which it was imposed. Violation of conditional pardon does not cause harm or injury to the right of other person nor does it disturb public order, it is merely an infringement of the terms stipulated in the contact between the Chief Executive and the convict.

Article 160. Commission of another crime during service of the penalty imposed for another previous offense

Elements:

1. 2.











   









Offender was already convicted by final judgment of one offense; He committed a new felony before beginning to serve such sentence or while serving the same. The second crime must be a felony, that is, punishable under the Revised Penal Code. But the first crime for which the offender is serving sentence need not be a felony. The new offense need not be of different character from that of the old offense. Quasi-recidivism does not require that the two offenses are embraced in the same title in the RPC, unlike in recidivism. Reiteracion requires that the offender has served out his sentences for the prior offense. In quasi recidivism, the offender is beginning to serve the sentence or is already serving the sentence. Quasi-recidivism cannot be offset by ordinary mitigating circumstance, because the article provides that the offender shall be punished by the maximum period of the new felony. A quasi-recidivist shall be pardoned when he has reached 70 and has already served out his original sentence, or when he shall complete it after reaching 70, unless by reason of his conduct or other circumstances, he shall not be worthy of such clemency. A quasi-recidivist may NOT be pardoned even if he has reached 70 and has already served out his original sentence, if he is a habitual criminal. C2005 Criminal Law 2 Reviewer

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Title Four Take Note: Human Security Act of 2007 (RA 9372);



Define “Terrorism”;



Attempt/Conspiracy to Commit Terrorism;



How principals, accomplices and accessories are punished;

CRIMES AGAINST PUBLIC INTEREST

Chapter One. Forgeries Section One – Forging the seal of the Government of the Philippine Islands, the signature or stamp of the Chief Executive Article 161. Counterfeiting the great seal of the Government of the Philippines





Surveillance and Interception of suspected terrorist communication/ said communication considered “classified information”;

Amount of damages paid to those detained wrongfully (P500k/day), taken from the budget of the government agency who caused his detention.

Article 162. Using forged signature or counterfeiting seal or stamp

Section Two – Counterfeiting coins Article 163. Making and importing and uttering false coins Article 164. Mutilation of coins, importation and uttering of mutilated coins Article 165. Selling of false or mutilated coins, without connivance

Section Three – Forging treasury or bank notes, obligations and securities; importing and uttering false or forged notes, obligations and securities Article 166. Forging treasury or bank notes or other documents payable to bearer, importing and uttering of such false or forged notes and documents Article 167. Counterfeiting, importing and uttering instruments not payable to bearer Article 168. Illegal possession and use of forged treasury or bank notes and other instruments of credit Article 169. How Forgery is committed.

Section Four – Falsification of legislative, public, commercial and private documents, and wireless, telegraph and telephone messages Article 170. Falsification of legislative documents Article 171. Falsification by public officer, employee or notary Article 172. Falsification by private individuals and use

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of falsified documents

silver, or other precious metals or their alloys

Article 173. Falsification of wireless, cable, telegraph and telephone messages and use of said falsified messages

Article 188. Substituting and altering trade marks and trade names or service marks Article 189. Unfair competition and fraudulent registration of trade mark or trade name, or service mark; fraudulent designation of origin, and false description

Section Five – Falsification of medical certificates, certificates of merit or service, and the like Article 174. False medical certificates, false certificates of merit or service Article 175. Using false certificates

Section Six – Manufacturing, importing and possession of instruments or implements intended for the commission of falsification

The crimes in this title are in the nature of fraud or falsity to the public. The essence of the crime under this title is that which defraud the public in general. There is deceit perpetrated upon the public. This is the act that is being punished under this title.

Article 176. Manufacturing and possession of instruments or implements for falsification

Chapter Two. Other Falsities

Article 161. Counterfeiting the Great Seal of the Government of the Philippine Islands, Forging the Signature or Stamp of the Chief Executive

Section One – Usurpation of authority, rank, title and improper use of names, uniforms and insignia Article 177. Usurpation of authority or official functions Article 178. Using fictitious name and concealing true name Article 179. Illegal use of uniforms or insignia

Section Two – False testimony

Acts punished

1.

Forging the great seal of the Government of the Philippines;

2.

Forging the signature of the President;

3.

Forging the stamp of the President.

Article 180. False testimony against a defendant Article 181. False testimony favorable to the defendant Article 182. False testimony in civil cases Article 183. False testimony in other cases and perjury Article 184. Offering false testimony in evidence

Chapter Three. Frauds

When in a State document, the signature of the President is forged, the crime is not falsification of public document. It is forging the signature of the Chief executive. The Signature of the Chief executive must be forged. If Chief Executive left with his secretary a signature in blank and a document is written above it, the crime is not under Art. 161 but Falsification by public officer or private individual under Art. 171 or 172.

Section One – Machinations, monopolies, and combinations Article 185. Machinations in public auction Article 186. Monopolies and combinations in restraint of trade

Article 162. Using Forged Signature or Counterfeit Seal or Stamp

Section Two – Frauds in commerce and industry Article 187. Importation and disposition of falsely marked articles or merchandise made of gold,

Elements C2005 Criminal Law 2 Reviewer

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1.

2. 3.

The great seal of the Republic was counterfeited or the signature or stamp of the Chief Executive was forged by another person;

Offender knew of the counterfeiting or forgery;

Kong Leon, a goldsmith, was selling illegally fabricated US dollar coins which are already withdrawn from circulation. Several unfinished coins were found by the police in his shop and pockets.

He used the counterfeit seal or forged signature or stamp.

Offender under this article should not be the forger. Otherwise, it would fall under Art 161.

HELD: When RPC was enacted, the Spanish text was the one approved. Thus it controls the interpretation of provisions. Therefore, under Spanish Penal Code, fabrication of coin withdrawn from circulation is punishable because of (1) the harm it caused to the public when it goes into circulation again, (2) the danger of a counterfeiter staying within the country (he may counterfeit coins in actual circulation and (3) collectors will be defrauded.

Article 163. Making and Importing and Uttering False Coins

Article 164. Mutilation of Coins

Elements 1.

There be false or counterfeited coins;

2.

Offender either made, imported or uttered such coins;

Acts punished

3.

In case of uttering such false or counterfeited coins, he connived with the counterfeiters or importers.

1.

Mutilating coins of the legal currency, with the further requirements that there be intent to damage or to defraud another;

2.

Importing or uttering such mutilated coins, with the further requirement that there must be connivances with the mutilator or importer in case of uttering.

Kinds of coins the counterfeiting of which is punished

1.

Silver coins of the Philippines or coins of the Central Bank of the Philippines;

2.

Coins of the minor coinage of the Philippines or of the Central Bank of the Philippines;

Mutilation means to take off part of the metal either by filing it or substituting it for another metal of inferior quality.

3.

Coin of the currency of a foreign country.

The coin must be of legal tender in mutilation. Coins of foreign country not included.

When is a coin false or counterfeited?

Requisites of mutilation under the RPC

if it is forged if it is not authorized by government as legal tender if it is a spurious copy (imitation of the design of a genuine coin)

Importation means bringing into port. Importation is complete before entry at the Customs House.

Uttering is passing counterfeited coins. It includes their delivery or the act of giving them away. Former coins withdrawn from circulation may be counterfeited under this article.

People vs. Kong Leon

(1) Coin mutilated is of legal tender; (2) Offender gains from the precious metal dust abstracted from the coin; and (3) It has to be a coin.

Presidential Decree No. 247 Prohibiting and Penalizing Defacement, Mutilation, Tearing, Burning or Destroying Central Bank Notes and Coins

It shall be unlawful for any person to willfully deface, mutilate, tear, burn, or destroy in any manner whatsoever, currency notes and coins issued by the Central Bank.

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Any person who shall violate this Decree shall, upon conviction, be punished by a fine of not more than twenty thousand pesos and/or by imprisonment of not more than five years.

Article 166. Forging Treasury or Bank Notes or Other Documents Payable to Bearer; Importing and Uttering Such False or Forged Notes and Documents

Acts punished Mutilation under the RPC is true only to coins. It cannot be a crime under the RPC to mutilate paper bills because the idea of mutilation under the code is collecting the precious metal dust. However, under PD 247, mutilation is not limited to coins.

Article 165. Selling of False or Mutilated Coin, without Connivance

Acts punished 1.

Possession of coin, counterfeited or mutilated by another person, with intent to utter the same, knowing that it is false or mutilated;

Elements

1.

Forging or falsification of treasury or bank notes or other documents payable to bearer;

2.

Importation of such false or forged obligations or notes;

3.

Uttering of such false or forged obligations or notes in connivance with the forgers or importers.

Importation means to bring them into the Phils which presupposes that the obligations or notes are forged or falsified in a foreign country.

Uttering meand offering obligations or notes knowing them to be false or forged WON such offer is accepted with a representation by words or action that’s that they are genuine and with an intent to defraud.

Uttering forged bills must be with connivance to constitute a violation of Art. 166.

Possession; With intent to utter; and Knowledge.

Notes and other obligations and securities that may be forged or falsified under Art 166 are: treasury or bank notes

2.

Actually uttering such false or mutilated coin, knowing the same to be false or mutilated.

Elements Actually uttering; and Knowledge.

certificates, and other obligations and securities payable to bearer

Penalties depend on the kind of forged treasury or bank notes or other documents obligation/security issued by RP circulating note issued by any banking institution duly authorized by law to issue the same

Possession of or uttering false coin does not require that the counterfeited coin is legal tender.

document issued by foreign gov’t circulating note or bill issued a foreign bank duly authorized to issue the same.

Possession, ether actual or constructive, of the counterfeiter or importer is not punished as a separate offense. PNB checks are commercial documents not covered by Art 166. C2005 Criminal Law 2 Reviewer

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Article 167. Counterfeiting, Importing, and Uttering Instruments Not Payable to Bearer

Elements There is an instrument payable to order or other documents of credit not payable to bearer; Offender either forged, imported or uttered such instrument; In case of uttering, he connived with the forger or importer.

Application of Art 167 is limited to instruments payable to order. But it covers instruments or other documents of credit issued by a foreign government or bank. Connivance is not required in uttering if the utterer is the forger,

Article 168. Illegal Possession and Use of False Treasury or Bank Notes and Other Instruments of Credit

When an act performed would have been a crime of illegal possession of false treasury note, it cannot be an impossible crime because forging or falsification of treasury notes is neither an offense against persons nor an offense against property under Art 4(2) but one case held otherwise.

Bar Questions False Notes; Illegal Possession (1999) 1 Is mere possession of false money bills punishable under Article 168 of the Revised Penal Code? Explain. (3%) 2 The accused was caught in possession of 100 counterfeit P20 bills. He could not explain how and why he possessed the said bills. Neither could he explain what he intended to do with the fake bills. Can he be held criminally liable for such possession? Decide. (3%} SUGGESTED ANSWER: 1 No. Possession of false treasury or bank note alone without an intent to use it, is not punishable. But the circumstances of such possession may indicate intent to utter, sufficient to consummate the crime of illegal possession of false notes. 2 Yes. Knowledge that the note is counterfeit and intent to use it may be shown by the conduct of the accused. So, possession of 100 false bills reveal: (a) knowledge that the bills are fake; and (b) intent to utter the same.

Article 169. How forgery is committed Elements 1. Any treasury or bank note or certificate or other obligation and security payable to bearer, or any instrument payable to order or other document of credit not payable to bearer is forged or falsified by another person;

By giving to a treasury or bank note or any instrument payable to bearer or to order mentioned therein, the appearance of a true and genuine document;

2.

Offender knows that any of those instruments is forged or falsified;

2.

3.

He either a. b.

uses any of such forged or falsified instruments; or possesses with intent to use any of such forged or falsified instruments.

Intent to possess is not intent to use. Mere possession alone is not a criminal offense. It must be with intent to use. The conduct of the accused is considered to establish knowledge of forgery. A person in possession of falsified document and who makes use of the same is presumed to be the material author of falsification. Accused has the burden to give satisfactory explanation of his possession of forged bills.

By erasing, substituting, counterfeiting, or altering by any means the figures, letters, words, or sign contained therein.

Forgery includes falsification and counterfeiting. Giving checks the appearance of true and genuine document is forgery. Mere change on a document does not amount to this crime. The essence of forgery is giving a document the appearance of a true and genuine document.

Del Rosario vs. People

Del Rosario was shown by the accused a P1 bill and a P2 bill inducing him to believe that the bills were counterfeited when they were in

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fact genuine treasury notes. One of the digits of each bill was altered to make it appear counterfeited.

Held: The possession of genuine treasury notes of the Phils, where any of the figures, letters, words or signs contained therein had been erased and/or altered, with knowledge of such erasure/alteration, and with intent to use such notes in enticing another to advance funds for the purpose of financing the manufacture of counterfeit notes is punishable by Art. 168 in relation to Art 169 (1).

Distinction between falsification and forgery:

Falsification is the commission of any of the eight acts mentioned in Article 171 on legislative (only the act of making alteration), public or official, commercial, or private documents, or wireless, or telegraph messages. The term forgery as used in Article 169 refers to the falsification and counterfeiting of treasury or bank notes or any instruments payable to bearer or to order. Note that forging and falsification are crimes under Forgeries.

People vs. Galano

Galano bought 4 balut eggs with a P1 bill with the word “victory” written on it. The P1 bill had been withdrawn from circulation. It is however redeemable at face its face value if presented to the Central Bank.

Held: The forgery committed falls under Art 169(1) where the treasury note by the addition of the word “victory” was given the appearance of a true and genuine document. This provision also covers the situation where originally true and genuine documents have been withdrawn or demonetized were made to appear a true legal tender.

Article 171. Falsification by Public Officer, Employee or Notary or Ecclesiastical Minister

Elements 1.

Offender is a public officer, employee, or notary public;

2.

He takes advantage of his official position;

3.

He falsifies a document by committing any of the following acts: a.

Counterfeiting or imitating any handwriting, signature or rubric;

b.

Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate;

Article 170. Falsification of Legislative Documents

Elements 1.

There is a bill, resolution or ordinance enacted or approved or pending approval by either House of the Legislature or any provincial board or municipal council;

c.

Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them;

2.

Offender alters the same;

d.

3.

He has no proper authority therefor;

Making untruthful statements in a narration of facts; Altering true dates;

4.

The alteration documents.

has

changed

the

e. meaning

of

the

f.

Making any alteration or intercalation in a genuine document which changes its meaning;

g.

Issuing in an authenticated form a document purporting to be a copy of an original document when no such original exists, or including in such a copy a statement contrary to, or different from, that of the genuine original; or h. Intercalating any instrument or note relative to the issuance thereof in a protocol, registry, or official book.

The words "municipal council" should include the city council or municipal board. The bill, resolution or ordinance must be genuine.

The offender is any person, private individual or public officer, who has no authority to make the alteration. The act of falsification in legislative document is limited to altering it which changes its meaning.

4.

In case the offender is an ecclesiastical minister who shall commit any of the offenses enumerated, with respect to any record or document of such character that its falsification may affect the civil status of persons.

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Even if the offender is a public officer but the falsification committed by him is upon a document which does not pertain to his office, it was committed without abuse of his office. Thus it will not fall under Art 171 but Art 172. A private person who cooperates with a public officer in the falsification of public documents is guilty under Art 171 and incurs the same liability and penalty as the public officer as there is conspiracy.

Making alteration or intercalation Alteration which speaks the truth is not falsification. The alteration must affect the integrity or change the effects of the documents. Altering the grades in examination papers involves several acts of falsification. (see P v Romualdez)

Must there be a genuine document in falsification?  In Par. 6, 7 in its 2nd part and 8 of Art 171, the law requires that there be a genuine document where the intercalation or alteration is made changing its meaning.

Article 172. Falsification by Private Individual and Use of Falsified Documents

 in other paragraphs, of Art 171, falsification may be committed by simulating or fabrication a document.

Acts punished

Counterfeiting and Feigning In Counterfeiting, there must be (1) an intent or attempt to imitate and (2) that the two signatures/handwritings, the genuine and the forged, bear some resemblance to each other. In feigning, there is no original signature, handwriting, or rubric but a forgery of a signature, handwriting or rubric that does not exist.

1.

Falsification of public, official or commercial document by a private individual;

2.

Falsification of private document by any person;

3.

Use of falsified document.

Elements under paragraph 1 1.

Making untruthful statements in a narration of facts There must be a narration of facts not of conclusion of law and there must be a legal obligation on the part of the accused to disclose the truth of the facts narrated. The narration of facts must be absolutely false and the person making such narration must be aware of the falsity of the facts narrated by him. The perversion of truth in the narration of facts must be made with the wrongful intent of injuring a third person. If the document falsified is a public document, wrongful intent is not essential. There is no falsification by one who acted in good faith. The fact that one’s consent to a contract was obtained by means of violence does not make the facts narrated therein false. Legal obligation to disclose the truth is inherent in residence certificate. There can be a falsification by omission (P v Dizon).

Altering True Dates Date must be essential. Altering dates in official receipts to prevent the discovery of malversation is falsification.

Offender is a private individual or public officer or employee who did not take advantage of his official position;

He committed any act of falsification under Art 171; 3.

The falsification was committed in a public, official, or commercial document or letter of exchange.

There are four kinds of documents: (1) Public document in the execution of which, a person in authority or notary public has taken part; (2)

Official document in the execution of which a public official takes part;

(3)

Commercial document or any document recognized by the Code of Commerce or any commercial law; and

(4)

Private document in the execution of which only private individuals take part.

NOTE: Private document may acquire the character of a public document when it becomes part of an official record and is certified by a public officer duly authorized by law.  Public document is broader than the term official document. Before a document may be considered official, it must first be a public document. But not all public documents are C2005 Criminal Law 2 Reviewer

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 







official documents. To become an official document, there must be a law which requires a public officer to issue or to render such document. Example: A cashier is required to issue an official receipt for the amount he receives. The official receipt is a public document which is an official document. Cash disbursement vouchers are not commercial documents. Mere blank forms of an official document is not itself a document. It is necessary that the blank spaces be filled and the signature of the party authorized to issue it be written by another in the counterfeited instrument. The possessor of a falsified document is presumed to be the author of the falsification. But this presumption is not applied where the evidence is extremely doubtful. Damage or intent to cause damage is not necessary as the principal thing punished is the violation of public faith and destruction of truth. Lack of malice or criminal intent is a defense in falsification of public document.

offender later misappropriated, the crime committed is falsification of private document only. If a private document is falsified to conceal the misappropriation of the money or other personal property which has been in the possession of the offender, the crime committed is estafa with abuse of confidence only. If estafa was already consummated at the time of the falsification of a private document or if the falsification was committed to for the purpose of concealing estafa, the falsification is not punishable as because as regards the falsification, there was no damage or intent to cause damage. There is no falsification through reckless imprudence if the document is private and no actual damage is caused. The crime is falsification of a public document, even if the falsification took place before the private document becomes part of the public records, if the document is intended by law ro be part of the public or official record. Generally, falsification has no attempted or frustrated stage. But there may be a frustrated falsification if the falsification is imperfect. (Reyes)





 



Elements under paragraph 2 Offender committed any of the acts of falsification except Article 171(7), that is, issuing in an authenticated form a document purporting to be a copy of an original document when no such original exists, or including in such a copy a statement contrary to, or different from, that of the genuine original; Falsification was committed in any private document; Falsification causes damage to a third party or at least the falsification was committed with intent to cause such damage.

 Mere falsification of public document is not enough as it is necessary that it must cause damage to a third person or must be committed with intent to cause such damage.  It is also not necessary that the offender profited or hoped to profit by the falsification.  When the falsification is a necessary means to commit another crime, the two crimes form a complex crime under Art. 48. Note that the document falsified as a necessary means must be public, official or commercial. a. b. c. d. e.

Malversation through falsification of public documents Estafa through falsification of a public document. Estafa through falsification of a commercial document by reckless imprudence Theft through falsification of official document. Attempted estafa through falsification of public or official documents.

 There is no complex crime of estafa through falsification of a private document because the immediate effect of falsification of a private document is the same as that of estafa.  If a private document is falsified to obtain from the offended party the money or other personal property which the

Falsification of a Public document

Falsification of a Private document

Mere falsification is enough

Prejudice to 3rd person or intent to cause it is enough

Committed by any of the 8 means under Art 171

Cannot be committed by the ways in par 7 & 8 of Art 171

Principal thing punished is violation of public faith and destruction of truth as therein solemnly proclaimed

Elements under the last paragraph

In introducing in a judicial proceeding 1

Offender knew that the document was falsified by another person; 2 The false document is in Articles 171 or 172 (1 or 2); He introduced said document in evidence in any judicial proceeding.

In use in any other transaction 1

Offender knew that a document was falsified by another person; 2 The false document is embraced in Articles 171 or 172 (1 or 2); 3 He used such document; The use caused damage to another or at least used with intent to cause damage.  Damage is not necessary in the crime of introducing in judicial proceeding a false document. C2005 Criminal Law 2 Reviewer

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 Use of falsified document in a proceeding which is not judicial is requires at least intent to cause damage.  If the one who used the falsified document is the same person who falsified it, the crime is only falsification and the use of the same is not a separate crime.  Use of false document is not necessarily included in the crime of falsification.  The user of the falsified document is deemed the author of the falsification if o the use was so closely connected in time with the falsification, and o the user had the capacity of falsifying the document.

commit falsification can be imputed to her when she submits her time record not as a legal obligation but as a matter of practice. The entries she made contain a color of truth and no damage was caused to the gov’t or a third party.

Caubang vs. People 1992

HELD: There was no estafa thru falsification of a commercial document. No damage was incurred against the government as the deceased employee deserved the salary his wife availed of. Even if there was falsification when she signed for her husband, this was done with the knowledge of her deceased husband’s supervisor that the husband was indeed dead. (Reeza’s dad in the RTC ruled otherwise )

Accused was organizing the merger of two stevedoring companies. Among the documents presented and filed with the SEC for the registration of the company was a Statement of Assets and Liabilities (SAL) of the company. This had the signature of the treasurer; but this signature was forged. HELD: Accused guilty of falsification of public documents. In the absence of contrary proof, the accused who filed all the documents with the SEC, is presumed to have also filed the forged SAL. And thus since his possession of the forged instrument is presumed, it is also presumed from this fact that he is the forger of the document. It is immaterial that the entries in the SAL were true, the important thing is that the signature of the treasurer was forged. What is punished in this crime is the violation of the faith in public documents and the destruction of the truth in making it appear that a person did something when in fact he did not; damage is not essential.

People vs. Romualdez Romualdez, the secretary of Justice Romualdez, changed the grade of bar examinee, Mabunay, to enable him to reach the required average to pass the bar. She claimed she had been given the authority to do so.

HELD: The acts of falsification are: (1) making alterations on genuine documents (2) making it appear that the correctors had participated in blotting out the grades and writing out new and increased grades opposite their initials and (3) attributing to the correctors statements other than those in fact made by them.

Beradio vs. CA Beradio is the lawyer and election registrar accused of falsifying her daily time record, a public document. Her daily time record shows she was at the office 8am-5pm when in fact she went to court.

Luague vs. CA Luague, a widow, signed her husband’s name on the salary checks with the knowledge of her deceased husband’s supervisor. She encashed the same and use it to pay debts incurred for the illness and death of her husband.

Cabigas vs. People Cabigas, a securities custodian of Landbank, was convicted of falsification when he changed the entry of the figure of treasury bills from 1539 to 1533 pieces in the Daily Report of Securities/Documents under Custody (DR SDUC) for the purpose of hiding the loss of 6 treasury bills in his custody.

HELD: SC acquitted him since the elements of Art 171(4) were not present. The correction of the figure from 1539 to 1533 pieces to conform to the actual pieces of treasury notes in custody is not falsification since it was made to speak the truth. Also, the DR/SDUC is a form purely devised and adopted by Cabigas and was never required thus he was not legally obligated to disclose or reveal the truth in that document. In the absence of legal obligation, there can be no falsification.

People vs. Sendaydiego Sendaydiego, a provincial treasurer, used 6 forged provincial vouchers to embezzle from the road and bridge fund. TC convicted them of malversation thru falsification of public document.

HELD: SC held that the crimes committed are separate crimes of malversation and falsification because in the 6 vouchers, the falsification was used to conceal the malversation. Each falsification and malversation constituted independent offenses which must be punished separately.

HELD: Beradio belongs to a class of officers who are exempt from keeping and submitting daily time records. No criminal intent to

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Siquian vs. People Siquian, a municipal mayor, appointed a clerk and signed the latter’s appointment papers which stated that there was such a position available and that funds for this position was available. However, no such position and funds were in existence. The mayor knew that the Municipal Council failed to enact a new budget and has adopted the previous year’s budget.

HELD: SC held Mayor liable under Art 171(4), when he made an untruthful statement in a narration of facts contained in the certification which he issued in connection with the appointment of the clerk. The existence of a wrongful intent to injure a third person is not necessary when the falsified document is a public document. It is because the principal thing punished is the violation of public faith and the destruction of truth proclaimed therein.

People vs. Villalon Carrera brothers were co-owners of a parcel of land. A power of attorney was executed authorizing de Guzman to mortgage one brother’s half. De Guzman used the power of attorney to obtain a loan from the mortgagee bank. Loan was unpaid, bank foreclosed the mortgage and sold land to Serafia who filed ejectment suit against the brothers.

HELD: The crime committed was estafa thru falsification of public document. The falsification of public document may be a means to commit estafa because before the falsified document is actually used to defraud another, the crime of falsification is already consummated and damage or intent to cause damage is not an element of falsification. The damage to another is caused by the commission of estafa.

Santos v. Sandiganbayan (2000)

Valentino occupies a public position as bookkeeper at the Clearing Office of the Central Bank. He intercepted and pilfered BPI-Laoag checks with the assistance of petitioner Estacio, a janitor-messenger at the Central Bank. In the comfort room of the bank, Valentino and/or one Villasanta tampered with the clearing statements and clearing manifests. Valentino then brought the altered clearing statements back to the clearing center and prepared a Clearing Bank Manifests where he changed the figure in the original copy to tally with those in the altered clearing statement. The tampered documents, along with the pilfered demand envelopes, were then sent to the Central Bank Regional Clearing Center in Laoag. In utilizing this scheme from October to December of 1981, the syndicate netted P9 Million.

Lumancas and Uriarte were regular employees of the Philippine Postal Corporation in Tandag, Surigao del Sur. They made false entries in their respective Personal Data Sheets (PDS, [CSC Form 212]) regarding their educational attainment, resulting in their promotion to higher positions. Uriarte asserted that he finished his Bachelor of Science in Commerce, Major in Management, at the IHU in 1968. In fllling up her PDS, Lumancas on the other hand indicated that she is a graduate of Bachelor of Science in Commerce Major in Management at the IHU. She also claimed that she is a graduate of Pharmacy from the CEU. Both are not college gradutes.

HELD: All the elements of falsification through the making of untruthful statements in a narration of facts are present: (a) That the offender makes in a document statements in a narration of facts; (b) That he has a legal obligation to disclose the truth of the facts narrated by him; (c) That the facts narrated by the offender are absolutely false; and, (d) That the perversion of truth in the narration of facts was made with the wrongful intent of injuring a third person. In People v. Po Giok To, the Court held that "in the falsification of public or official documents, whether by public officials or by private persons, it is unnecessary that there be present the idea of gain or the intent to injure a third person, for the reason that, in contradistinction to private documents, the principal thing punished is the violation of the public faith and the destruction of the truth as therein solemnly proclaimed." Hence, the last requisite need not be present. Also, petitioners themselves have affirmed in their petition that their Personal Data Sheets were not sworn to before any administering officer thereby taking their case away from the confines of perjury. Nonetheless, they argue that they have no legal obligation to disclose the truth in their PDS since these are not official documents. The Court disagrees and cited the case of Inting v. Tanodbayan, where it was held that "the accomplishment of the Personal Data Sheet being a requirement under the Civil Service Rules and Regulations in connection with employment in the government, the making of an untruthful statement therein was, therefore, intimately connected with such employment….” The filing of a Personal Data Sheet is required in connection with the promotion to a higher position and contenders for promotion have the legal obligation to disclose the truth. Otherwise, enhancing their qualifications by means of false statements will prejudice other qualified aspirants to the same position.

Article 173. Falsification of Wireless, Cable, Telegraph and Telephone Messages, and Use of Said Falsified Messages

Acts punished

1.

Uttering fictitious message;

Elements 1.

Lumancas v. Intas (2000)

wireless,

telegraph

or

telephone

Offender is an officer or employee of the government or an officer or employee of a private corporation, engaged in the service of C2005 Criminal Law 2 Reviewer

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sending or receiving wireless, cable or telephone message; 2.

2.

Persons liable 1

He utters fictitious wireless, cable, telegraph or telephone message.

[The crime here is false medical certificate by a physician.]

Falsifying wireless, telegraph or telephone message; 2

Elements 1.

2.

3.

Offender is an officer or employee of the government or an officer or employee of a private corporation, engaged in the service of sending or receiving wireless, cable or telephone message; He falsifies wireless, telephone message.

cable,

Physician or surgeon who, in connection with the practice of his profession, issues a false certificate (it must refer to the illness or injury of a person);

telegraph

or

Public officer who issues a false certificate of merit of service, good conduct or similar circumstances; [The crime here is false certificate of merit or service by a public officer.]

3

Private person who falsifies a certificate falling within the classes mentioned in the two preceding subdivisions. [The crime is false medical certificate by private person or false certificate of merit or service by a private person]

Using such falsified message. Elements 1.

Offender knew that wireless, cable, telegraph, or telephone message was falsified by an officer or employee of the government or an officer or employee of a private corporation, engaged in the service of sending or receiving wireless, cable or telephone message;

2.

He used such falsified dispatch;

3.

The use resulted in the prejudice of a third party or at least there was intent to cause such prejudice.

 The falsification of the certificate of large cattle is not covered by Art 174 but by Art 171 or 172.  Certificate of residence for voting purposes is certificate of “similar circumstances”.

Article 175. Using False Certificates

Elements 1.

 The public officer, to be liable, must be engaged in the service of sending or receiving wireless, cable or telephone message.  Private individual cannot be a principal by direct participation in falsification of telegraphic dispatches under Art. 173 unless he is an employee of a corporation engaged in the business of sending or receiving wireless, telegraph or telephone message.  Private individual can be criminally liable as principal by inducement in falsification of telegraphic dispatches.  Act. No. 1851, Sec $, punishes private individuals who forge or alter telegram by an fine of not more than P100.

Article 174. False Medical Certificates, Certificates of Merit or Service, Etc.

False

2.

The following issues a false certificate: a. Physician or surgeon, in connection with the practice of his profession, issues a false certificate; b.

Public officer issues a false certificate of merit of service, good conduct or similar circumstances;

c.

Private person falsifies a certificate falling within the classes mentioned in the two preceding subdivisions.

Offender knows that the certificate was false;

He uses the same.

 When any of the false certificates mentioned in Art. 174 is used in the judicial proceedings, Art 172 does not apply C2005 Criminal Law 2 Reviewer

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because the use of false document in judicial proceeding under Art 172 is limited to those false documents embraced in Arts 171 and 172.

Article 176. Manufacturing and Possession Instruments or Implements for Falsification

of

Acts punished

1.

Making or introducing into the Philippines any stamps, dies, marks, or other instruments or implements for counterfeiting or falsification;

2.

Possessing with intent to use the instruments or implements for counterfeiting or falsification made in or introduced into the Philippines by another person.

 It is not necessary that the implements confiscated form a complete set for counterfeiting. It is enough that they may be employed by themselves or together with other implements to commit the crime of counterfeiting or falsification.  Possession punished here may be actual or constructive possession.

Article 177. Functions

Usurpation

of

Authority

or

Official

Usurpation of authority;

1.

Offender himself;

2.

As an officer, agent or representative of any department or agency of the Philippine government or of any foreign government.

knowingly

and

Usurpation of official functions.

Elements

2.

Pertaining to any person in authority or public officer of the Philippine government or any foreign government, or any agency thereof;

3.

Under pretense of official position;

4.

Without being lawfully entitled to do so.

 In usurpation of authority, it is not necessary that he performs an act pertaining to public office. However in usurpation of official functions, it is essential that the offender should have performed an act pertaining to a person authority or public officer.  There must be positive, express and explicit representation. Such false representation may be shown by acts.  This article applies to “any person” and thus covers even a public officer. (ex. Councilor usurping mayor’s office)  This article does not apply to occupant under color of title.  This article also punishes usurpation of authority or official functions of any officer of any foreign government.  RA 75 provides additional penalties for usurping the authority of diplomatic or consular or any other official of foreign government if offender has intent to defraud.  RA 10 applies only to members of seditious organization engaged in subversive activities who performed any act pertaining to the government, to any person in authority or to any public officer.

People vs. Cortez

HELD: Crime committed was usurpation of authority thru falsification of a public document by a private individual. It is not robbery because there was no force or intimidation.

Elements

2.

Offender performs any act;

Accused introduced himself to a proprietress of a meatshop presenting an id card bearing another name. He claimed to be authorized to waive inspection of books for P400. Upon learning that the accused was not a real BIR agent, the owner and authorities set up a string operation. Accused was apprehended after taking the money.

Acts punished

1.

1.

falsely

represents

Gigantoni v People Gigantoni, working on an investigation for another company, represented himself to PAL legal officer as a PC-CIS agent. He requested that he be shown the PAL records which was granted and he xeroxed them. HELD: He cannot be held liable for usurpation of authority because he did not knowingly represented himself to be an agent. AT the time he went to PAL office, he was still an agent though he knew he was

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suspended. The conveyance to him of the notice of dismissal was not proven. He should have been charged with usurpation of official functions where dismissal or suspension would make no difference because both imply the absence of the power to represent himself as vested with authority to perform acts pertaining to an office which he knowingly was deprived of.

execution of a judgment or to cause damage

identity

Legamia v IAC

Article 178. Using Fictitious Name and Concealing True Name

Corazon Legamia lived with Emilio Reyes for 19 years and gave him a son. She was known and introduced to others as Mrs. Reyes. Upon Emilio’s death, Corazon filed for death benefits on behalf of their son. The real Mrs. Reyes, Felicisima, filed a complaint against Corazon for using fictitious name.

Acts punished

1.

Using fictitious name

Elements

HELD: Corazon was acquitted. It is not uncommon for a woman to represent herself as the wife of the person she is living with. Corazon assumed the role of a wife not for any personal material gain but for her son. Ours is a tolerant and understanding society…

Use of unregistered aliases

1.

Offender uses a name other than his real name;

2.

He uses the fictitious name publicly;

3.

Purpose of use is to conceal a crime, to evade the execution of a judgment or to cause damage [to public interest - Reyes].

R.A. 6085 AN ACT AMENDING COMMONWEALTH ACT NUMBERED ONE HUNDRED FORTY-TWO REGULATING THE USE OF ALIASES What is prohibited?

2.

Concealing true name

Elements 1.

Offender conceals his true name and other personal circumstances;

2.

Purpose is only to conceal his identity.

 A fictitious name is any other name which a person publicly applies to himself without authority of law.  Causing damage must be to public interest. If it is damage to private interest, the crime will be estafa under Art 315,subdivision 2 paragraph (a).  Signing fictitious name in an application for passport is publicly using such fictitious name.  Where a person takes the place of another who has been convicted by final judgment, he is guilty of using a fictitious name under Art 178 and not evasion of service of sentence because the real convict alone is guilty thereof. Use of Fictitious name

Concealing true name

Element of publicity must be present

Element of publicity is not necessary

Purpose is to conceal a crime, to evade the

Purpose is merely to conceal

1. No person shall use any name different from the one with which he was registered at birth in the office of the local civil registry, or with which he was registered in the bureau of immigration upon entry; or such substitute name as may have been authorized by a competent court.

Exception: Pseudonym solely for literary, cinema, television, radio, or other entertainment and in athletic events where the use of pseudonym is a normally accepted practice. (Sec. 1) 2. No person having been baptized with a name different from that with which he was registered at birth in the local civil registry, or in case of an alien, registered in the bureau of immigration upon entry, or any person who obtained judicial authority to use an alias, or who uses a pseudonym, shall represent himself in any public or private transaction or shall sign or execute any public or private document without stating or affixing his real or original name and all names or aliases or pseudonym he is or may have been authorized to use. (Sec. 3)

What is the process? Any person desiring to use an alias shall apply for authority therefor in proceedings like those legally provided to obtain judicial authority for a change of name,

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and no person shall be allowed to secure such judicial authority for more than one alias. The petition for an alias shall set forth the person's baptismal and family name and the name recorded in the civil registry, if different, his immigrant's name, if an alien, and his pseudonym, if he has such names other than his original or real name, specifying the reason or reasons for the use of the desired alias. The judicial authority for the use of alias the christian name and the alien immigrant's name shall be recorded in the proper local civil registry, and no person shall use any name or names other, than his original or real name unless the same is or are duly recorded in the proper local civil registry. (Sec. 2)

penalties for like or similar offenses herein contained.

Penalties imposed Any violation of this Act shall be punished with imprisonment of from one year to five years and a fine of P5,000 to P10,000. (Sec. 5)

2. Any person who, in such pretended character shall demand or obtain, or attempt to obtain from any person or from said foreign government or the Government of the Philippines, or from any officer thereof, any money, paper, document, or other thing of value;

Article 179. Illegal Use of Uniforms or Insignia

3. Any person, other than a diplomatic or consular officer or attache, who shall act in the Republic of the Philippines as an agent of a foreign government without prior notification to, and registration with, the Secretary of Foreign Affairs;

Who are punishable?

1. Any person who shall falsely assume and take upon himself to act as a diplomatic, consular, or any other official of a foreign government duly accredited as such to the Government of the Republic of the Philippines with intent to defraud such foreign government or the Government of the Philippines;

Elements 1 2 3.

Offender makes use of insignia, uniforms or dress; The insignia, uniforms or dress pertains to an office not held by such person or a class of persons of which he is not a member; Said insignia, uniform or dress is used publicly and improperly.

 Wearing the uniform of an imaginary office is not punishable.  An exact imitation of a uniform or dress is unnecessary; a colorable resemblance calculated to deceive the common run of people is sufficient.

REPUBLIC ACT NO. 75

4. Any person who, with intent to deceive or mislead, within the jurisdiction of the Republic, shall wear any naval, military, police, or other official uniform, decoration, or regalia of any foreign State, nation or government with which the Republic of the Philippines is at peace, or any uniform, decoration or regalia so nearly resembling the same as to be calculated to deceive, UNLESS such wearing thereof be authorized by such State, nation, or government;

5. Any person by whom any writ or process is obtained, whereby the person of any ambassador or public minister of any foreign State, authorized and received as such by the President, or any domestic or domestic servant of any such ambassador or minister is arrested or imprisoned, or his goods or chattels are distrained, seized, or attached, whether as party or as attorney;

(Immunity of Diplomats and Consuls) An Act to Penalize Acts which would Impair the Proper Observance by the Republic and Inhabitants of the Philippines of the Immunities, Rights, And Privileges Of Duly Accredited Foreign Diplomatic And Consular Agents In The Philippines When applicable

The provisions of the Act are applicable only in cases where the country of the diplomatic or consular representative adversely affected has provided for similar protection to duly accredited diplomatic or consular representatives of the Republic of the Philippines by prescribing like or similar

6. Every officer concerned in executing the writs or process in (5) above.

 (5) and (6) above are NOT APPLICABLE where:





the person against whom the process is issued is a (1) citizen or inhabitant of the Republic of the Philippines, (2) in the service of an ambassador or a public minister, and (3) the process is founded upon a debt contracted before he entered upon such service; or the person against whom the process is

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issued is a domestic servant of an ambassador or a public minister, UNLESS the name of the servant has, before the issuing thereof, been registered in the Department of Foreign Affairs, and transmitted by the Secretary of Foreign Affairs to the Chief of Police of the City of Manila, who shall upon receipt thereof post the same in some public place in his office.

Exception: use or the wearing of any insignia, badge or emblem of rank: a. b.

in any play-house or theater or in moving-picture films while actually engaged in representing therein a military or naval character

not tending to bring discredit or reproach upon the AFP and PNP 7. Any person who assaults, strikes, wounds, imprisons or in any other manner offers violence to the person of an ambassador or a public minister, in violation of the law of nations.

Penalties The penalties provided in the act shall be imposed in addition to the penalties that may be imposed under the Revised Penal Code

Sec. 3. The use, wearing, manufacture and sale of any medal or decoration, badge, insignia, patch, or identification card, authorized by Congress or prescribed or awarded by the President of the Philippines or the Secretary of National Defense for the members of the AFP, or any colorable imitation thereof, is prohibited

Exception: when so authorized by the Secretary of National Defense.

RA 493 An Act to Prohibit the Use or Conferring of Military or Naval Grades or Titles By or Upon Persons Not in the Service of the Armed Forces of the Philippines or the Philippine Constabulary, to Regulate the Wearing, Use, Manufacture and Sale of Insignias, Decorations and Medals, Badges, Patches and Identification Cards Prescribed for the Said Armed Forces or Constabulary, and for Other Purposes

Sec. 1. It shall be unlawful for any person NOT in the service of the AFP or the PNP to use, or confer upon himself or another who is not in the service, any military or naval grade or title.

Exceptions: (a) All veterans of any war when recognized by the Philippine and only for the ranks for which they are recognized; (b) Commissioned officers and personnel, retired or in active duty, of the Bureau of Coast and Geodetic Survey, of the quarantine service, and of the customs service; (c) Commissioned and enlisted reservists including recognized guerrilla officers on inactive status when using their authorized grades for a purely military purposes; (d) Trainees in the Armed Forces while undergoing any period of trainee instruction pursuant to law.

Sec. 2. It shall be unlawful for any person not in the service (EXCEPT those excluded from the prohibition in Section 1), to use or wear the duly prescribed insignia, badge or emblem or rank or any colorable imitation thereof, of the members of the AFP or PNP,

FALSE TESTIMONY  False testimony is committed by a person who, being under oath and required to testify as to the truth of a certain matter at a hearing before a competent authority shall deny the truth or say something contrary to it.

Three forms of false testimony

1.

False testimony in criminal cases (Arts 180, 181)

2.

False testimony in civil case (Art 182)

3.

False testimony in other cases (Art 183)

Article 180. False Testimony against A Defendant

Elements 1.

There is a criminal proceeding;

2.

Offender testifies falsely under oath against the defendant therein;

3.

Offender who gives false testimony knows that it is false. C2005 Criminal Law 2 Reviewer

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4.

Defendant against whom the false testimony is given is either acquitted or convicted in a final judgment.

 Penalty for false testimony depends upon the sentence of the defendant against whom false testimony was given.  The defendant in the principal case must be sentenced at least a correctional penalty, a fine or shall have been acquitted in order that the witness who falsely testified can be held liable.  The witness who gave false testimony is liable even if his testimony was not considered by the court as the law intends to punish the mere giving of false testimony.

Article 181. Defendant

False

Testimony

Favorable

to

the

Elements 1.

A person gives false testimony;

2.

In favor of the defendant;

3.

In a criminal case.

 Conviction or acquittal of defendant in principal case, not necessary as it is sufficient that the defendant is prosecuted for a felony punishable by afflictive penalty or by other penalty.  False testimony favorable to the defendant is equally repugnant to the orderly administration of justice.  False testimony is punished because of its tendency to favor or to prejudice the defendant.  False testimony by negative statement is in favor of defendant.  False testimony in favor of defendant need not directly influence the decision of acquittal nor benefit the defendant as it is sufficient that it was given to favor the accused.  A statement by a witness that he is an expert in handwriting is a statement of mere opinion, the falsity of which is not sufficient to convict him.  The defendant who falsely testified in his own behalf in a criminal case is guilty of false testimony favorable to the defendant. The right to testify in his own behalf is secured to him, not that he may be enabled to introduced false testimony into the record, but to enable him to spread upon the record the truth as to any matter within his knowledge (US v Soliman)  Rectification made spontaneously after realizing the mistake is not false testimony.

Paolo was charged with homicide before the Regional Trial Court of Manila. Andrew, a prosecution witness, testified that he saw Paolo shoot Abby during their heated argument. While the case is still pending, the City Hall of Manila burned down and the entire records of the case were destroyed. Later, the records were reconstituted. Andrew was again called to the witness stand. This time he testified that his first testimony was false and the truth was he was abroad when the crime took place. The judge immediately ordered the prosecution of Andrew for giving a false testimony favorable to the defendant in a criminal case. 1.] Will the case against Andrew prosper? 2.] Paolo was acquitted. The decision became final on January 10, 1987. On June 18, 1994 a case of giving false testimony was filed against Andrew. As his lawyer, what legal step will you take? SUGGESTED ANSWER: 1) Yes. For one to be criminally liable under Art. 181, RFC, it is not necessary that the criminal case where Andrew testified is terminated first. It is not even required of the prosecution to prove which of the two statements of the witness is false and to prove the statement to be false by evidence other than the contradictory statements (People vs. Arazola, 13 Court of Appeals Report, 2nd series, p. 808). 2) As lawyer of Andrew, I will file a motion to quash the Information on the ground of prescription. The crime of false testimony under Art. 180 has prescribed because Paolo, the accused in the principal case, was acquitted on January 10, 1987 and therefore the penalty prescribed for such crime is arresto mayor under Art. 180, par. 4, RPC. Crimes punishable by arresto mayor prescribes in five (5) years (Art. 90, par. 3, RPC). But the case against Andrew was filed only on June 18, 1994, whereas the principal criminal case was decided with finality on January 10, 1987 and, thence the prescriptive period of the crime commenced to run. From January 10, 1987 to June 18, 1994 is more than five (5) years.

Article 182. False Testimony in Civil Cases

Elements 1. 2. 3. 4. 5.

Testimony given in a civil case; Testimony relates to the issues presented in said case; Testimony is false; Offender knows that testimony is false; Testimony is malicious and given with an intent to affect the issues presented in said case.

 The testimony given in the civil case must be false.  Art. 182 is not applicable when the false testimony is given in special proceeding as it applies only to ordinary civil cases.  Penalty depends on the amount of the controversy.

Bar Questions False Testimony (1994)

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Article 183. False Testimony in Other Cases and Perjury in Solemn Affirmation

 The direct induction of a person by another to commit perjury is treated as plain perjury. The one inducing another is principal by induction and the latter as principal by direct participation.

Acts punished False testimony

1.

By falsely testifying under oath;

2.

By making a false affidavit.

Perjury

Perversions of truth Given in the course judicial proceeding

of

Contemplates an actual trial

Elements of perjury 1. 2. 3. 4.

Offender makes a statement under oath or executes an affidavit upon a material matter; The statement or affidavit is made before a competent officer, authorized to receive and administer oaths; Offender makes a willful and deliberate assertion of a falsehood in the statement or affidavit; The sworn statement or affidavit containing the falsity is required by law, that is, it is made for a legal purpose.

 Oath is any form of attestation by which a person signifies that he is bound in conscience to perform an act faithfully and truthfully.  An affidavit is a sworn statement in writing; a declaration in writing made upon oath or before an authorized magistrate or officer.  Perjury is an offense which covers false oaths other than those taken in the course of judicial proceedings.  A false affidavit to a criminal complaint may give rise to perjury.  Material matter is the main fact which is the subject matter of the inquiry or any circumstance which tends to prove that fact, or any fact or circumstance which tends to corroborate or strengthen the testimony relative to the subject of inquiry or which legitimately affects the credit of any witness who testifies.  There must be competent proof of materiality. The matter is material when it is directed to prove a fact in issue.  There is no perjury if sworn statement is not material to the principal matter under investigation.  There is no perjury if defendant subscribed and swore before a clerk in treasurer’s office as a competent person authorized to administer oath is a person who has a right to inquire into the questions presented to him upon matters under his jurisdiction.  The assertion of falsehood must be willful and deliberate. Good faith or lack of malice is a defense in perjury.  The phrase “when the law so requires” does not mean that the sworn statement or affidavit must be required by law. It has been interpreted to mean “in cases in which the law so authorizes”. Hence, even if there is no law requiring the statement to be made under oath, as long as it is made for a legal purpose, it is sufficient (P v Angcangco)  Two contradictory sworn statements are not sufficient to convict for perjury because the prosecution must prove which of the two statements is false by other evidence than the contradictory statement.

Not given proceeding

in

judicial

May be committed during preliminary investigation and in making false affidavits

Diaz vs. People Diaz was charged with falsification of official document. He allegedly executed and filed in CSC a personal data sheet, an official document, where he stated he was a 4 th yr AB student at Cosmopolitan and Harvardian Colleges w/c led to his reappointment. The accused was never enrolled in said schools. He presented a transcript of record with no imprint of college seal nor signature of school president.

HELD: The crime committed was perjury. This offense is the willful and corrupt assertion of a falsehood under oath or affirmation administered by authority of law on a material matter.

Acuna v. Deputy Ombudsman (2005)

FACTS: Petitioner Acuña is a former teacher of the Angeles City National Trade School ("ACNTS") in Pampanga. Pascua was ACNTS' Officer-In-Charge while Turla was a member of the faculty. Yabut, another ACNTS teacher, together with other school personnel, requested a dialogue with Pascua on some unspecified matter. Turla attended the meeting upon Pascua's directive. Acuña, upon Yabut’s invitation also attended the meeting. As an offshoot to an incident during the meeting which was held on July 16, 1998, Acuña charged Pascua with misconduct ("OMB-ADM-1-99-0387") and with violation of Article 131 of the RPC ("OMB 1-99-903") before the Office of the Ombudsman. In his sworn counter-affidavit in OMB-ADM-1-99-0387, Pascua alleged, among others, that: (1) OMB-ADM-1-99-0387 is a "rehash and a duplication with a slight deviation of fact" of an administrative case pending with DECS which Acuña and Yabut earlier filed against him and (2) Yabut had no authority to invite in the meeting a non-employee of ACNTS like Acuña considering that Pascua was the one who called the meeting. Pascua also submitted a sworn statement of Turla confirming that respondent Pascua and not Yabut called the said meeting. The Ombudsman dismissed OMB-ADM-1-990387 and OMB 1-99-0903. Contending that Pacua and Turla perjured themselves in their sworn statements in OMB-ADM-1-99-0387, petitioner charged the former with perjury before the office of the Deputy Ombudsman for Luzon. Acuña alleged that Pascua and Turla were liable for perjury because: (1) the complaint she and Yabut filed against Pascua before the CSC, later endorsed to the DECS, was

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not "the same" as her complaint in OMB-ADM-1-99-0387 and (2) it was Yabut and not respondent Pascua who called the meeting. The Deputy Ombudsman for Luzon dismissed the complaint.

HELD: In prosecutions for perjury, a matter is material if it is the "main fact which was the subject of the inquiry, or any circumstance which tends to prove that fact . . ." 24 To hold private respondents liable, there must be evidence that their assailed statements in OMB-ADM-1-99-0387 were the subject of inquiry in that case. Petitioner has presented no such evidence. The records are hardly helpful, as petitioner did not furnish the Court a copy of her complaint in OMB-ADM-1-99-0387. What is before the Court is a portion of Pascua's counteraffidavit in that case as quoted by public respondent in his 4 April 2000 Resolution. Admittedly, some inference is possible from this quoted material, namely, that the basis of petitioner's complaint in OMB-ADM-1-99-0387 is that Pascua prevented her from taking part in the July 1998 meeting. However, it would be improper for the Court to rely on such inference because the element of materiality must be established by evidence and not left to inference. At any rate, petitioner's complaint for perjury will still not prosper because Pascua's statement — that OMB-ADM-1-99-0387 is significantly the same as petitioner's and Yabut's administrative complaint against respondent Pascua before the DECS — is immaterial to the inferred issue. The third element of perjury requires that the accused willfully and deliberately assert a falsehood. Good faith or lack of malice is a valid defense. Here, the Court finds that respondent Pascua's statement in his counter-affidavit in OMB-ADM-1-99-0387 that he called the 16 July 1998 meeting does not constitute a deliberate assertion of falsehood. While it was Yabut and some unidentified ACNTS personnel who requested a dialogue with respondent Pascua, it was Pascua's consent to their request which led to the holding of the meeting. Thus, Pascua's statement in question is not false much less malicious. It is a good faith interpretation of events leading to the holding of the meeting. Regarding Pascua's allegation in his counter-affidavit in OMB-ADM-199-0387 that petitioner’s complaint was a mere "rehash and duplication with a slight deviation of fact" of the DECS administrative case petitioner and Yabut filed against Pascua, it was not shown by petitioner why this is false. Petitioner again did not furnish the Court a copy of her and Yabut's complaint with the DECS. Turla's statement in OMB-ADM-1-99-0387 that respondent Pascua called the 16 July 1998 meeting was a mere reiteration of what respondent Pascua told him. Consequently, it was correct for the Deputy Ombudsman for Luzon to hold that since respondent Turla merely repeated what he heard from respondent Pascua, he could not be held liable for making a false and malicious statement. The dismissal is affirmed.

People v. Choa (2003)

FACTS: Alfonso Chan Choa, petitioner, a Chinese national, filed with the RTC a verified petition for naturalization. During the initial hearing of the case, Choa testified on direct examination but he was not able to finish the same. He subsequently filed a motion to withdraw his petition for naturalization for which the trial court granted. Meanwhile, State Prosecutor Delfin, acting upon the complaint of petitioner's wife, Leni, filed an Information with the

MTCC, charging petitioner with perjury under Article 183 of the RPC with respect to alleged false statements he made in his Petition for Naturalization. Petitioner alleged that there is no basis to convict him of perjury because almost 2 years prior to the filing of the Information, his motion to withdraw the petition for naturalization containing the alleged false statements was granted, hence, the alleged false statements were no longer existing or had become functus officio. The lower courts found Choa’s allegation devoid of merit and convicted him guilty of perjury. In his petition, Choa and the Solicitor General contend that (a) not all the elements of the crime of perjury are present; and (b) the withdawal of the petition for naturalization which contains the alleged untruthful statements bars the prosecution of petitioner for perjury.

HELD: Fully cognizant of the truth surrounding his moral character and residence, petitioner instead declared falsely in his verified petition for naturalization that "he has all the qualifications and none of the disqualification under C.A. No. 473." Clearly, he willfully asserted falsehood under oath on material matters required by law. It is not necessary that the proceeding in which the perjury is alleged to have been committed be first terminated before a prosecution for the said crime is commenced. At the time he filed his petition for naturalization, he had committed perjury. All the elements of the crime were already present then. He knew all along that he wilfully stated material falsities in his verified petition. Surprisingly, he withdrew his petition without even stating any reason therefor. But such withdrawal only terminated the proceedings for naturalization. It did not extinguish his culpability for perjury he already committed. Indeed, the fact of withdrawal alone cannot bar the State from prosecuting petitioner, an alien, who made a mockery not only of the Philippine naturalization law but the judicial proceedings as well. And the petition for naturalization tainted with material falsities can be used as evidence of his unlawful act. Petitioner then claims that since the petition for naturalization is a pleading, the allegations therein are absolutely privileged and cannot be used for any criminal prosecution against him, citing Sison vs. David, People vs. Aquino and Flordelis vs. Himalaloan. The argument is unavailing. Sison and Aquino both involve libel cases. In Sison, this Court categorically stressed that the term "absolute privilege" (or "qualified privilege") has an "established technical meaning, in connection with civil actions for libel and slander." The purpose of the privilege is to ensure that "members of the legislature, judges of courts, jurors, lawyers, and witnesses may speak their minds freely and exercise their respective functions without incurring the risk of a criminal prosecution or an action for the recovery of damages. It is granted in aid and for the advantage of the administration of justice." Certainly, in the present case, petitioner cannot seek refuge under the absolutely privileged communication rule since the false statements he made in his petition for naturalization has instead made a mockery of the administration of justice. The Flordelis case is likewise not in point. There, Flordelis was charged with perjury for having alleged false statements in his verified answer. This Court held that no perjury could be committed by Flordelis because "an answer to a complaint in an ordinary civil action need not be under oath," thus, "it is at once apparent that one element of the crime of perjury is absent . . ., namely, that the sworn statement complained of must be required by law.”

Perjury (1996) Sisenando purchased the share of the stockholders of

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Estrella Corporation in two installments, making him the majority stockholder thereof and eventually, its president. Because the stockholders who sold their stocks failed to comply with their warranties attendant to the sale, Sisenando withheld payment of the second installment due on the shares and deposited the money in escrow instead, subject to release once said stockholders comply with their warranties. The stockholders concerned, in turn, rescinded the sale in question and removed Sisenando from the Presidency of the Estrella Corporation, Sisenando then filed a verified complaint for damages against said stockholders in his capacity as president and principal stockholder of Estrella Corporation. In retaliation, the stockholders concerned, after petitioning the Securities and Exchange Commission to declare the rescission valid, further filed a criminal case for perjury against Sisenando, claiming that the latter perjured himself when he stated under oath in the verification of his complaint for damages that he is the President of the Estrella Corporation when in fact he had already been removed as such. Under the facts of the case, could Sisenando be held liable for perjury? Explain. SUGGESTED ANSWER: No, Sisenando may not be held liable for perjury because It cannot be reasonably maintained that he willfully and deliberately made an assertion of a falsehood when he alleged in the complaint that he is the President of the Corporation, obviously, he made the allegation on the premise that his removal from the presidency is not valid and that is precisely the issue brought about by his complaint to the SEC. It is a fact that Sisenando has been the President of the corporation and it is from that position that the stockholders concerned purportedly removed him, whereupon he filed the complaint questioning his removal. There is no willful and deliberate assertion of a falsehood which is a requisite of perjury. Perjury (1997) A, a government employee, was administratively charged with immorality for having an affair with B, a coemployee in the same office who believed him to be single. To exculpate himself, A testified that he was single and was willing to marry B, He induced C to testify and C did testify that B was single. The truth, however, was that A had earlier married D, now a neighbor of C. Is A guilty of perjury? Are A and C guilty of subordination of perjury? SUGGESTED ANSWER: No. A is not guilty of perjury because the willful falsehood asserted by him is not material to the charge of immorality. Whether A is single or married, the charge of immorality against him as a government employee could proceed or prosper. In other words, A's civil status is not a defense to the charge of immorality, hence, not a material matter that could influence the charge. There is no crime of subornation of perjury. The crime is now treated as plain perjury with the one inducing another as the principal inducement, and the latter, as principal by direct participation (People vs. Podol 66 Phil. 365). Since in this case A cannot be held liable for perjury, the matter that he testified to being immaterial, he cannot therefore be held responsible as a principal by

inducement when he induced C to testify on his status. Consequently, C is not liable as principal by direct participation in perjury, having testified on matters not material to an administrative case. Perjury (2005) Al Chua, a Chinese national, filed a petition under oath for naturalization, with the Regional Trial Court of Manila. In his petition, he stated that he is married to Leni Chua; that he is living with her in Sampaloc, Manila; that he is of good moral character; and that he has conducted himself in an irreproachable manner during his stay in the Philippines. However, at the time of the filing of the petition, Leni Chua was already living in Cebu, while Al was living with Babes Toh in Manila, with whom he has an amorous relationship. After his direct testimony, Al Chua withdrew his petition for naturalization. What crime or crimes, if any, did Al Chua commit? Explain. (5%) SUGGESTED ANSWER: Al Chua committed perjury. His declaration under oath for naturalization that he is of good moral character and residing at Sampaloc, Manila are false. This information is material to his petition for naturalization. He committed perjury for this willful and deliberate assertion of falsehood which is contained in a verified petition made for a legal purpose. (Choa v. People, G.R. No. 142011, March 14, 2003)

Article 184. Offering False Testimony in Evidence

Elements

1.

Offender offers in evidence a false witness or testimony;

2

He knows that the witness or the testimony was false;

3.

The offer is made in any judicial or official proceeding.

 To consummate the offense, the witness or testimony must be offered in evidence. Offer of evidence begins the moment the witness is called to the witness stand and interrogated by counsel.  Art. 184 applies when the offender without inducing another, but knowing him to be a false witness, presented him as a witness and he testified falsely.  The penalty shall be that for false testimony if committed in a judicial proceeding or that for perjury if committed in another proceeding.

OBSTRUCTION OF JUSTICE (PRESIDENTIAL DECREE NO.1829)

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Prohibited Acts



Preventing witnesses from testifying in any criminal proceeding or from reporting the commission of any offense or the identity of any offender/s by means of bribery, misrepresentation, deceit, intimidation, force or threats;



Faltering, destroying, suppressing or concealing any paper, record, document, or object, with intent to impair its verity, authenticity, legibility, availability, or admissibility as evidence in any investigation of or official proceedings in, criminal cases, or to be used in the investigation of, or official proceedings in, criminal cases;













Publicly using a fictitious name for the purpose of concealing a crime, evading prosecution or the execution of a judgment, or concealing his true name and other personal circumstances for the same purpose or purposes;

offender or from protecting the life or property of the victim; or 

Fabricating information from the data gathered in confidence by investigating authorities for purposes of background information and not for publication and publishing or disseminating the same to mislead the investigator or the court.

Bar Questions Falsification; Presumption of Falsification (1999) A falsified official or public document was found in the possession of the accused. No evidence was introduced to show that the accused was the author of the falsification. As a matter of fact, the trial court convicted the accused of falsification of official or public document mainly on the proposition that "the only person who could have made the erasures and the superimposition mentioned is the one who will be benefited by the alterations thus made" and that "he alone could have the motive for making such alterations". Was the conviction of the accused proper although the conviction was premised merely on the aforesaid ratiocination? Explain your answer. (3%)

Delaying the prosecution of criminal cases by obstructing the service of process or court orders or disturbing proceedings in the fiscal's offices, in Ombudsman, or in the courts;

SUGGESTED ANSWER:

Making, presenting or using any record, document, paper or object with knowledge of its falsity and with intent to affect the course or outcome of the investigation of, or official proceedings in, criminal cases;

Forgery & Falsification (1999)

Soliciting, accepting, or agreeing to accept any benefit in consideration of abstaining from, discounting, or impeding the prosecution of a criminal offender; Threatening directly or indirectly another with the infliction of any wrong upon his person, honor or property or that of any immediate member or members of his family in order to prevent such person from appearing in the investigation of, or official proceedings in, criminal cases, or imposing a condition, whether lawful or unlawful, in order to prevent a person from appearing in the investigation of or in official proceedings in, criminal cases; Giving of false or fabricated information to mislead or prevent the law enforcement agencies from apprehending the

Yes, the conviction is proper because there is a presumption in law that the possessor and user of a falsified document is the one who falsified the same.

How are "forging" and "falsification" committed? (3%) SUGGESTED ANSWER: FORGING or forgery is committed by giving to a treasury or bank note or any instrument payable to bearer or to order the appearance of a true and genuine document; or by erasing, substituting, counterfeiting, or altering by any means the figures, letters, words or signs contained therein. FALSIFICATION, on the other hand, is committed by: 1 Counterfeiting or imitating any handwriting, signature or rubric; 2 Causing it to appear that persons have participated in any act or proceeding when they did not in fact so participate; 3

Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them; 4 4 Making untruthful statements in a narration of facts; 5 Altering true dates; 6 Making any alteration or intercalation in a genuine document which changes its meaning; 7 Issuing in an authenticated form a document purporting to be a copy of an original document when no such original exists, or including in such copy a statement contrary to, or

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different from, that of the genuine original; or 8 Intercalating any instrument or note relative to the issuance thereof in a protocol, registry, or official book.

Echavez and Ouano had an oral agreement that only the former would make a bid for a parcel of land in a public bidding, and if accepted, they would divide the property in proportion to their adjoining properties. To ensure the success of their plans, they induced the only other party interested by paying her P2000 to desist from bidding.

Article 185. Machinations in Public Auctions HELD: The acts constituted a crime under Art 185. They caused another bidder to stay away from the auction in order to cause the reduction of the price of the property auctioned. The parties have no cause of action against each other to and are both liable for the crime.

Acts punished

1.

Soliciting any gift or promise as a consideration for refraining from taking part in any public auction; Article 186. Monopolies and Combinations in Restraint of Trade

Elements

2.

1.

There is a public auction;

2.

Offender solicits any gift or a promise from any of the bidders;

Acts punished

3.

Such gift or promise is the consideration for his refraining from taking part in that public auction;

1.

4.

Offender has the intent to cause the reduction of the price of the thing auctioned.

Combination to prevent free competition in the market;

Elements 1.

Entering into any contract or agreement or taking part in any conspiracy or combination in the form of a trust or otherwise;

2.

In restraint of trade or commerce or to prevent by artificial means free competition in the market.

Attempting to cause bidders to stay away from an auction by threats, gifts, promises or any other artifice.

Elements 1. There is a public auction; 2. Offender attempts to cause the bidders to stay away from that public auction;

2.

3. It is done by threats, gifts, promises or any other artifice;

Elements

4. Offender has the intent to cause the reduction of the price of the thing auctioned.

 This crime is consummated by mere solicitation of gift or promise as a consideration for not bidding. Likewise, mere attempt to cause prospective bidders to stay away from an auction by means of threats, gifts, promises or any other artifice consummates the crime.  Reason: so execution should be opened to free and full competition to secure the maximum benefit for the debtor.

Monopoly to restrain free competition in the market;

3.

1.

By monopolizing any merchandise or object of trade or commerce, or by combining with any other person or persons to monopolize said merchandise or object;

2.

In order to alter the prices thereof by spreading false rumors or making use of any other artifice;

3.

To restrain free competition in the market

Manufacturer, producer, or processor or importer combining, conspiring or agreeing with any person to make transactions prejudicial to lawful commerce or to increase the market price of merchandise.

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1.

Manufacturer, producer, processor or importer of any merchandise or object of commerce;

1.

Substituting the trade name or trademark of some other manufacturer or dealer, or a colorable imitation thereof for the trade name or trademark of the real manufacturer or dealer upon any article of commerce and selling the same;

2.

Combines, conspires or agrees with any person;

3.

Purpose is to make transactions prejudicial to lawful commerce or to increase the market price of any merchandize or object of commerce manufactured, produced, processed, assembled or imported into the Philippines.

2.

Selling or offering for sale such articles of commerce knowing that the trade name or trademark has been fraudulently used;

3.

Using or substituting the service mark of some other person, or a colorable imitation of such mark n the sale or advertising of his services;

 Mere conspiracy or combination is punished.  If the offense affects any food substance or other article of prime necessity, it is sufficient that initial steps are taken toward carrying out the purposes of combination.  When offense is committed by a corporation or association, the president and directors or managers are liable. But they are liable only when they (1) knowingly permitted or (2) failed to prevent the commission of such offense.

4.

Printing, lithographing or reproducing trade name, trademark, or service mark of one person or a colorable imitation thereof to enable another person to fraudulently use the same knowing the fraudulent purpose for which it is to be used.

Article 187. Importation and Disposition of Falsely Marked Articles or Merchandise Made of Gold, Silver, or Other Precious Metals of Their Alloys

Elements 1.

Offender imports, sells or disposes articles made of gold, silver, or other precious metals or their alloys;

2.

The stamps, brands, or marks of those articles of merchandise fail to indicate the actual fineness or quality of said metals or alloys;

3.

Offender knows that the stamps, brands, or marks fail to indicate the actual fineness or quality of the metals or alloys.

 Articles involved are those made of gold, silver, other precious metals or their alloys.  Selling the misbranded articles is not necessary but there must be evidence showing that the articles were imported.  Art 187 does not apply to manufacturer of misbranded articles made of gold, silver, other precious metals or their alloys.

 The tradename, trademark or service mark used by the offender need not be identical with the infringed tradename, trademark or service mark. A colorable imitation is sufficient. But there must not be differences which are glaring and striking to the eye.  They function of a trademark is to indicate the origin or ownership of the goods to which it is fixed.  It is not necessary that the goods of the prior user and the late user of the trademark are of the same categories.  The trademark or tradename must be registered. It must not be merely descriptive or generic.  The exclusive right to an originally valid trademark or tradename is lost, if for any reason it loses its distinctiveness or has become publici juris.

Article 189. Unfair Competition, Fraudulent Registration of Trade Name, Trademark, or Service Mark, Fraudulent Designation of Origin, and False Description

Acts punished

1.

Unfair competition;

Elements Article 188. Substituting and Altering Trademarks, Trade names, or Service Marks

Acts punished

1.

By selling his goods;

2.

Giving them the general appearance of the goods of another manufacturer or dealer;

3.

The general appearance is shown in the goods themselves, or in the wrapping of their packages, or in the device or words therein, or in any feature of their appearance; C2005 Criminal Law 2 Reviewer

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4.

2.

There is actual intent to deceive the public or defraud a competitor.

Fraudulent designation of origin; false description: Elements 1.

By affixing to his goods or using in connection with his services a false designation of origin, or any false description or representation; and

2.

trademark used in international commerce and not belonging to him is to render nugatory the very essence of the law on trademarks and tradenames.

The purpose of the law is to point out distinctly the origin or ownership of the article to which it is affixed, to secure to him, who has been instrumental in bringing into a market a superior article of merchandise, the fruit of his industry and skill, and to prevent fraud and imposition. It is based on the principle of business integrity and common justice.

Selling such goods or services. REPUBLIC ACT NO. 8293

3.

The Intellectual Property Code of the Philippines

Fraudulent registration

TRADEMARKS, TRADENAMES, SERVICEMARKS

Elements 1.

By procuring fraudulently from the patent office;

2.

The registration of trade name, trademark or service mark

 Unfair competition consists in employing deception or any other means contrary to good faith by which any person shall pass off the goods manufactured by him or in which he deals, or his business, or his services for those of the one having established goodwill, or committing any acts calculated to produce such result.  Mere offer for sale completes the commission of the crime. Evidence of actual fraudulent intent is not necessary.  The true test of unfair competition is WON certain goods have been clothed with an appearance which is likely to deceive the ordinary purchaser exercising ordinary.  The master is criminally responsible for acts of his servants and employees in violation of the penal provisions touching trademarks, tradenames; and unfair competition if he causes the illegal act to be done, or requests, command or permits it or in any manner authorizes it, or aids or abets the servant in its commission of , whether he is present at the time the unlawful act is committed or not.

What acts are punishable? 1. Infringement

Elements: 2. 3. 4.

1. Registration of TN, TM or SM Use in commerce by another (inc. reproduction and application of reproduction) Use is without owner’s consent Use is likely to cause confusion, cause mistake or deceive  regardless of whether or not there is actual sale

2. Unfair Competition

Elements: 1.

2.

La Chemise Lacoste v Fernandez In 1975, Hemandas & Co., a domestic firm was issued registration for the trademark "CHEMISE LACOSTE & CROCODILE DEVICE" by the Philippine Patent Office for use on T-shirts, sportswear and other garment products of the company. La Chemise Lacoste, S.A.,the actual owner of the TM’s "LACOSTE", "CHEMISE LACOSTE", "CROCODILE DEVICE" used on clothings and sporting apparels sold worldwide filed a Petition for Cancellation of Hamandas registration as it is claiming prior registration of the TM’s. HELD: The records show that the goodwill and reputation of La Chemise products bearing the TM LACOSTE date back even before 1964 when LACOSTE clothing apparels were first marketed in the Philippines. To allow Hemandas to continue using the trademark Lacoste for the simple reason that he was the first registrant of a

3.

Person has established goodwill (has identified in the mind of the public his goods, business or services), whether or not a registered mark is employed Another person passes of the goods he deals in for those of the person who has established goodwill By means contrary to good faith (malice and intent to deceive essential)l

The ff. are DEEMED to have committed unfair competition:

(a) gives goods the general appearance of goods of another or such appearance as is likely to deceive the public or defraud another of his legitimate trade + to influence purchasers to believe that the goods offered are those of another + sells the goods (includes subsequent vendor and agent of any vendor)

(b) induces the false belief that he is offering the services of

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another who has established goodwill + by any artifice or device

of the law on copyright (like copy or economic rights, moral rights etc.) or of aiding or abetting such infringement;

(c) makes any false statement in the course of trade or any other act contrary to good faith + act or statement calculated to discredit the business of another

2. Any person who at the time when copyright subsists in a work has in his possession an article which he knows, or ought to know, to be an infringing copy of the work for the purpose of:

3. False Designation of Origin / False Description of Fact Elements: 1. Uses in commerce any false designation of origin, false description or representation of fact which:

(a) Selling, letting for hire, or by way trade, offering or exposing for sale, hire, the article; (b) Distributing the article for purposes trade, or for any other purpose to extent that will prejudice the rights the copyright owner in the work; or (c) Trade (?) exhibit of the articles public.

of or of an of in

is likely to deceive as to sponsorship or approval of goods by another person misrepresents nature, characteristics, qualities and geographic origin of goods in commercial advertising or promotion

AN ACT TO AMEND SECTION TWO THOUSAND SEVEN HUNDRED AND TWO, AND TWO THOUSAND SEVEN HUNDRED AND THREE OF THE REVISED ADMINISTRATIVE CODE

PATENTS What act are punishable? Repetition of Infringement

Elements: 1. 2.

REPUBLIC ACT NO. 455

Existence of a final judgment against the offender in a civil action for infringement of patent Infringer or anyone in connivance with him repeats the infringement after the finality of the judgment

By the way, what is infringement with respect to patents?

Sec. 2703. Various fraudulent practices against customs revenues. — Any person who makes or attempts to make any entry of imported or dutiably exported merchandise by means of any false or fraudulent invoice, declaration, affidavit, letter, paper, or by means of any false statement, written or verbal, or by means of any false or fraudulent practice whatsoever, or shall be guilty of any willful act or omission by means whereof the Government of the Republic of the Philippines might be deprived of the lawful duties, or any portion thereof, accruing from the merchandise or any portion thereof, embraced or referred to in such invoice, declaration, affidavit, letter, paper, or statement, or affected by such act or omission, shall, for each offense, be punished by a fine of not less than six hundred pesos but not more than five thousand pesos and by imprisonment for not less than six months nor more than two years and, if the offender is an alien, he may be subject to deportation.

It is the making, using, offering for sale, selling, or importing of a (1) patented product or a product obtained directly or indirectly from a patented process, or the use of a patented process (2) without authorization of the patentee.

Prescription: The criminal action for repetition of infringement of patent prescribes in three (3) years from date of the commission of the crime.

COPYRIGHT Who are punishable?

RA 8792 E-Commerce Act SECTION 25. Actions Related to Contracts of Carriage of Goods. — Without derogating from the provisions of Part Two of this Act, this Chapter applies to any action in connection with, or in pursuance of, a contract of carriage of goods, including but not limited to: (a) (i) furnishing the marks, number, quantity or weight of goods; (ii) stating or declaring the nature or value of goods;

1. Any person infringing any right secured by the provisions

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(b)

(c)

(iii)

issuing a receipt for goods;

(iv)

confirming that goods have been loaded;

(i) notifying a person conditions of the contract;

of

terms

and

(ii)

giving instructions to a carrier;

(i)

claiming delivery of goods;

(ii)

authorizing release of goods;

(iii) goods;

giving notice of loss of, or damage to

(d) giving any other notice or statement in connection with the performance of the contract; (e) undertaking to deliver goods to a named person or a person authorized to claim delivery; (f) granting, acquiring, renouncing, surrendering, transferring or negotiating rights in goods; (g) acquiring or transferring rights and obligations under the contract.

SECTION 26. Transport Documents. — (1) Subject to paragraph (3), where the law requires that any action referred to in Section 25 be carried out in writing or by using a paper document, that requirement is met if the action is carried out by using one or more electronic data messages or electronic documents. (2) Paragraph (1) applies whether the requirement therein is in the form of an obligation or whether the law simply provides consequences for failing either to carry out the action in writing or to use a paper document. (3) If a right is to be granted to, or an obligation is to be acquired by, one person and no other person, and if the law requires that, in order to effect this, the right or obligation must be conveyed to that person by the transfer, or use of, a paper document, that requirement is met if the right or obligation is conveyed by using one or more electronic data messages or electronic documents: Provided, That a reliable method is used to render such electronic data messages or electronic documents unique. (4) For the purposes of paragraph (3), the standard of reliability required shall be assessed in the light of the purpose for which the right or obligation was conveyed and in the light of all the circumstances, including any relevant agreement. (5) Where one or more electronic data messages or electronic documents are used to effect any action in subparagraphs (f) and (g) of Section 25, no paper document used to effect any such action is valid unless the use of electronic data message or electronic document has been terminated and replaced by the use of paper documents. A paper document issued in these circumstances shall contain

a statement of such termination. The replacement of electronic data messages or electronic documents by paper documents shall not affect the rights or obligations of the parties involved. (6) If a rule of law is compulsorily applicable to a contract of carriage of goods which is in, or is evidenced by, a paper document, that rule shall not be inapplicable to such a contract of carriage of goods which is evidenced by one or more electronic data messages or electronic documents by reason of the fact that the contract is evidenced by such electronic data message or electronic documents instead of by a paper document.

SECTION 30. Extent of Liability of a Service Provider. — Except as otherwise provided in this Section, no person or party shall be subject to any civil or criminal liability in respect of the electronic data message or electronic document for which the person or party acting as a service provider as defined in Section 5, merely provides access if such liability is founded on —

a.) The obligations and liabilities of the parties under the electronic data message or electronic document; b.) The making, publication, dissemination or distribution of such material or any statement made in such material, including possible infringement of any right subsisting in or in relation to such material: Provided, That i.The service provider does not have actual knowledge, or is not aware of the facts or circumstances from which it is apparent, that the making, publication, dissemination or distribution of such material is unlawful or infringes any rights subsisting in or in relation to such material; ii.The service provider does not knowingly receive a financial benefit directly attributable to the unlawful or infringing activity; and iii.The service provider does not directly commit any infringement or other unlawful act and does not induce or cause another person or party to commit any infringement or other unlawful act and/or does not benefit financially from the infringing activity or unlawful act of another person or party: Provided, further, That nothing in this Section shall affect — a)Any obligation founded on contract; b)The obligation of a service provider as such under a licensing or other regulatory regime established under written law; or c)Any obligation imposed under any written law; d)The civil liability of any party to the extent that such liability forms the basis for injunctive relief issued by a court under any law requiring that the service provider take or refrain from actions necessary to remove, block or deny access to any material, or to preserve evidence of a violation of law.

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imprisonment. SECTION 31. Lawful Access. — Access to an electronic file, or an electronic signature of an electronic data message or electronic document shall only be authorized and enforced in favor of the individual or entity having a legal right to the possession or the use of the plaintext, electronic signature or file and solely for the authorized purposes. The electronic key for identity or integrity shall not be made available to any person or party without the consent of the individual or entity in lawful possession of that electronic key.

RA 9160 ANTI-MONEY LAUNDERING ACT OF 2001, AS AMENDED BY RA 9194

SECTION 3. Definitions. — For purposes of this Act, the following terms are hereby defined as follows: (a) “Covered Institution” refers to:

SECTION 32. Obligation of Confidentiality. — Except for the purposes authorized under this Act, any person who obtained access to any electronic key, electronic data message or electronic document, book, register, correspondence, information, or other material pursuant to any powers conferred under this Act, shall not convey to or share the same with any other person.

(1) banks, non-banks, quasi-banks, trust entities, and all other institutions and their subsidiaries and affiliates supervised or regulated by the Bangko Sentral ng Pilipinas (BSP); (2) insurance companies and all other institutions supervised or regulated by the Insurance Commission; and (3)

SECTION 33. Penalties. — The following Acts shall be penalized by fine and/or imprisonment, as follows: a)

b)

c)

d)

Hacking or cracking which refers to unauthorized access into or interference in a computer system/server or information and communication system; or any access in order to corrupt, alter, steal, or destroy using a computer or other similar information and communication devices, without the knowledge and consent of the owner of the computer or information and communication system, including the introduction of computer viruses and the like, resulting in the corruption, destruction, alteration, theft or loss of electronic data messages or electronic documents shall be punished by a minimum fine of One hundred thousand pesos (P100,000.00) and a maximum commensurate to the damage incurred and a mandatory imprisonment of six (6) months to three (3) years; Piracy or the unauthorized copying, reproduction, dissemination, distribution, importation, use, removal, alteration, substitution, modification, storage, uploading, downloading, communication, making available to the public, or broadcasting of protected material, electronic signature or copyrighted works including legally protected sound recordings or phonograms or information material on protected works, through the use of telecommunication networks, such as, but not limited to, the internet, in a manner that infringes intellectual property rights shall be punished by a minimum fine of One hundred thousand pesos (P100,000.00) and a maximum commensurate to the damage incurred and a mandatory imprisonment of six (6) months to three (3) years; Violations of the Consumer Act or Republic Act No. 7394 and other relevant or pertinent laws through transactions covered by or using electronic data messages or electronic documents, shall be penalized with the same penalties as provided in those laws; Other violations of the provisions of this Act, shall be penalized with a maximum penalty of One million pesos (P1,000,000.00) or six (6) years

(i) securities dealers, brokers, salesmen, investment houses and other similar entities managing securities or rendering services as investment agent, advisor, or consultant, (ii) mutual funds, close-end investment companies, common trust funds, preneed companies and other similar entities, (iii) foreign exchange corporations, money changers, money payment, remittance, and transfer companies and other similar entities, and (iv) other entities administering or otherwise dealing in currency, commodities or financial derivatives based thereon, valuable objects, cash substitutes and other similar monetary instruments or property supervised or regulated by Securities and Exchange Commission.

(b) ‘Covered transaction’ is a transaction in cash or other equivalent monetary instrument involving a total amount in excess of Five hundred thousand pesos (P500,000.00) within one (1) banking day. (as amended by RA 9194)

(b-1) ‘Suspicious transactions’ are transactions with covered institutions, regardless of the amounts involved, where any of the following circumstances exist: (1) there is no underlying legal or trade obligation, purpose or economic justification; (2) the client is not properly identified; (3) the amount involved is not commensurate with the business or financial capacity of the

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client; (4) taking into account all known circumstances, it may be perceived that the client's transaction is structured in order to avoid being the subject of reporting requirements under the Act; (5) any circumstance relating to the transaction which is observed to deviate from the profile of the client and/or the client's past transactions with the covered institution; (6) the transaction is in any way related to an unlawful activity or offense under this Act that is about to be, is being or has been committed; or (7) any transaction that is similar or analogous to any of the foregoing.

(c)

“Monetary instrument” refers to:

(1) coins or currency of legal tender of the Philippines, or of any other country; (2)

drafts. checks and notes;

(3) securities or negotiable instruments, bonds, commercial papers, deposit certificates, trust certificates, custodial receipts or deposit substitute instruments, trading orders, transaction tickets and confirmations of sale or investments and money marked instruments; and

(1) Kidnapping for ransom under Art. 267 of Act 3815, otherwise known as the RPC, as amended; (2) Sections 4, 5, 6, 8, 9, 10, 12, 13, 14, 15, and 16 of RA 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002; (3) Sect. 3 pars. B, C, E, G, H and I of RA 3019, as amended, otherwise known as the AntiGraft and Corrupt Practices Act; (4)

Plunder under RA 7080, as amended;

(5) Robbery and extortion under Arts. 294, 295, 296, 299, 300, 301 and 302 of the RPC, as amended; (6) Jueteng and Masiao punished as illegal gambling under PD 1602; (7) Piracy on the high seas under the RPC, as amended, and PD 532; (8) Qualified theft under Art 310 of the RPC, as amended; (9) Swindling under Art 315 of the RPC, as amended; (10)

Smuggling under RAs 455 and 1937;

(11) Violations under RA 8792, otherwise known as the Electronic Commerce Act of 2000;

(4) other similar instruments where title thereto passes to another by endorsement, assignment or delivery.

(12) Hijacking and other violations under RA 6235; destructive arson and murder, as defined under the RPC, as amended, including those perpetrated by terrorists against non-combatant persons and similar targets;

(d) "Offender" refers to any person who commits a money laundering offense.

(13) Fraudulent practices and other violations under RA 8799, otherwise known as the Securities Regulation Code of 2000;

(e)

"Person" refers to any natural or juridical person.

(f) "Proceeds" refers to an amount derived or realized from an unlawful activity. (g) “Supervising Authority” refers to the appropriate supervisory or regulatory agency, department or office supervising or regulating the covered institutions enumerated in Section 3(a).

(h) “Transaction” refers to any act establishing any right or obligation or giving rise to any contractual or legal relationship between the parties thereto. It also includes any movement of funds by any means with a covered institution.

(i) “Unlawful activity” refers to any act or omission or series or combination thereof involving or having direct relation to the following:

(14) Felonies or offenses of a similar nature that are punishable under the penal laws of other countries.

SECTION 4. Money Laundering Offense. — Money laundering is a crime whereby the proceeds of an unlawful activity as herein defined are transacted, thereby making them appear to have originated from legitimate sources. It is committed by the following: (a) Any person knowing that any monetary instrument or property represents, involves, or relates to, the proceeds of any unlawful activity, transacts or attempts to transact said monetary instrument or property. (b) Any person knowing that any monetary instrument or property involves the proceeds of any unlawful activity, performs or fails to perform any act as a result of which he facilitates the offense of money laundering referred to in paragraph (a) above. (c) Any person knowing that any monetary instrument or property is required under this Act to be

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disclosed and filed with the Anti-Money Laundering Council (AMLC), fails to do so.

shall be imposed upon a person convicted under Section 4(b) of this Act.

SECTION 9. (c) Reporting of Covered and Suspicious Transactions. — Covered institutions shall report to the AMLC all covered transactions and suspicious transactions within 5 working days from occurrence thereof, unless the Supervising Authority prescribes a longer period not exceeding 10 working days.

The penalty of imprisonment from 6 months to 4 years or a fine of not less than P100,000 but not more than P500,000, or both, shall be imposed on a person convicted under Section 4(c) of this Act.

Should a transaction be determined to be both a covered transaction and a suspicious transaction, the covered institution shall be required to report the same as a suspicious transaction.

When reporting covered or suspicious transactions to the AMLC, covered institutions and their officers and employees shall not be deemed to have violated RA 1405, as amended; RA 6426, as amended, RA 8791 and other similar laws, but are prohibited from communicating, directly or indirectly, in any manner or by any means, to any person, the fact that a covered or suspicious transaction report was made, the contents thereof, or any other information in relation thereto. In case of violation thereof, the concerned officer and employee of the covered institution shall be criminally liable. However, no administrative, criminal or civil proceedings, shall lie against any person for having made a covered or suspicious transaction report in the regular performance of his duties in good faith, whether or not such reporting results in any criminal prosecution under this Act or any other law.

When reporting covered or suspicious transactions to the AMLC, covered institutions and their officers and employees are prohibited from communicating directly or indirectly, in any manner or by any means, to any person or entity, the media, the fact that a covered or suspicious transaction report was made, the contents thereof, or any other information in relation thereto. Neither may such reporting be published or aired in any manner or form by the mass media, electronic mail, or other similar devices. In case of violation thereof, the concerned officer and employee of the covered institution and media shall be held criminally liable.

SECTION 14.

Penal Provisions. —

(a) Penalties for the Crime of Money Laundering. The penalty of imprisonment ranging from 7 to 14 years and a fine of not less than P3,000,000 but not more than twice the value of the monetary instrument or property involved in the offense, shall be imposed upon a person convicted under Section 4(a) of this Act.

(b) Penalties for Failure to Keep Records. The penalty of imprisonment from 6 months to one 1 year or a fine of not less than P100,000 but not more than P500,000, or both, shall be imposed on a person convicted under Section 9(b) of this Act.

(c) Malicious Reporting. Any person who, with malice, or in bad faith, reports or files a completely unwarranted or false information relative to money laundering transaction against any person shall be subject to a penalty of 6 months to 4 years imprisonment and a fine of not less than P100,000 but not more than P500,000, at the discretion of the court: Provided, That the offender is not entitled to avail the benefits of the Probation Law.

If the offender is a corporation, association, partnership or any juridical person, the penalty shall be imposed upon the responsible officers, as the case may be, who participated in, or allowed by their gross negligence, the commission of the crime. If the offender is a juridical person, the court may suspend or revoke its license. If the offender is an alien, he shall, in addition to the penalties herein prescribed, be deported without further proceedings after serving the penalties herein prescribed. If the offender is a public official or employee, he shall, in addition to the penalties prescribed herein, suffer perpetual or temporary absolute disqualification from office, as the case may be.

Any public official or employee who is called upon to testify and refuses to do the same or purposely fails to testify shall suffer the same penalties prescribed herein.

(d) Breach of Confidentiality. The punishment of imprisonment ranging from 3 to 8 years and a fine of not less than P500,000 but not more than P1,000,000 shall be imposed on a person convicted for a violation under Section 9(c).

In the case of a breach of confidentiality that is published or reported by media, the responsible reporter, writer, president, publisher, manager and editor-in-chief shall be liable under this Act.

The penalty of imprisonment from 4 to 7 years and a fine of not less than P1,500,000 but not more than P3,000,000,

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Bar Questions

name of another natural or juridical person;

R.A. No. 9160 Anti-Money Laundering Act (2005) Don Gabito, a philanthropist, offered to fund several projects of the Mayor. He opened an account in the Mayor’s name and regularly deposited various amounts ranging from P500,000.00 to P1 Million. From this account, the Mayor withdrew and used the money for constructing feeder roads, barangay clinics, repairing schools and for all other municipal projects. It was subsequently discovered that Don Gabito was actually a jueteng operator and the amounts he deposited were proceeds from his jueteng operations. What crime/s were committed? Who are criminally liable? Explain. (6%) SUGGESTED ANSWER: Don Gabito violated the Anti-Money Laundering Act (Sec. 4, R.A. No. 9160) for knowingly transacting money as property which involves or relates to the proceeds of an unlawful activity such as jueteng. In addition, he may be prosecuted for liability as ajueteng operator. (R.A. No. 9287) The mayor who allowed the opening of an account in his name is likewise guilty for violation of the AMLA. He, knowing that the money instrument or property involves the proceeds of an unlawful activity, performs or fails to perform any act which results in the facilitation of money laundering.

a drug product refilled in containers by unauthorized persons if the legitimate labels or marks are used; an unregistered imported drug product, except drugs brought in the country for personal use as confirmed and justified by accompanying medical records; and a drug which contains no amount of, or a different active ingredient, or less than eighty percent (80%) of the active ingredient it purports to possess, as distinguished from an adulterated drug including reduction or loss of efficacy due to expiration.

What are the prohibited acts under the law?

1.

The manufacture, sale, offering for sale, donation, distribution, trafficking, brokering, exportation, or importation or possession of counterfeit drugs. The presence or availability of such counterfeit drugs within the premises of any entity engaged in the sale, manufacture or distribution of drugs and/or pharmaceutical products or in a private residence, or in public or private vehicle, or in the premises not covered by a valid license to operate from the Bureau, shall constitute a prima facie evidence of violation of this Act.

R.A. 8203 Special Law on Counterfeit Drugs

This presumption shall not apply to the legitimate owners of trademarks, trade names or other identifying marks, or the legitimate or authorized representatives or agents of such owners, who have in their possession counterfeit drugs which bear the trademarks, trade names or marks if they can show the sales invoices or official receipts evidencing their purchase from a drugstore, manufacturer or distributor suspected by them of dealing in counterfeit drugs involving the trademarks, trade names and other similar identifying marks registered in their names. Such counterfeit products shall be reported and immediately turned over to the Bureau.

What are counterfeit drugs?

Counterfeit drug/medicine refers to medicinal products:    

with the correct ingredients but not in the amounts as provided hereunder, wrong ingredients, without active ingredients, with insufficient quantity of active ingredient,

Compliance with the preceding proviso shall be made within a reasonable period from the date of purchase of such counterfeit drugs as indicated in the sales invoice, official receipt, or other similar documents abovementioned to the time the counterfeit drugs are reported and turned over to the Bureau.

which results in the reduction of the drug's safety, efficacy, quality, strength or purity. It is a drug which is deliberately and fraudulently mislabeled with respect to identity and/or source or with fake packaging, and can apply to both branded and generic products. It shall also refer to:

the drug itself, or the container or labeling thereof or any part of such drug, container or labeling bearing without authorization the trademark, trade name or other identification mark or imprint or any likeness to that which is owned or registered in the Bureau of Patent, Trademark and Technology Transfer (BPTTT) in the

2.

Possession of any such counterfeit drugs. However, any person found in possession of counterfeit drugs in violation of this subsection, shall be excepted from liability under the provisions of this Act after: presentation of sales invoices, official receipts, or other

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legally acceptable documents evidencing his purchase thereof from a drugstore, distributor, manufacture, hospital pharmacy or dispensary, or any other person or place duly licensed to sell and/or dispense drugs or medicines, and indicating therein the batch and lot numbers, as well as the expiry dates such drugs; or presentation of certificates and other documents evidencing the importation or exportation of the counterfeit drugs found in his possession as required by existing laws including those documents required in the preceding paragraph covering the commercial transactions involving counterfeit drugs.

Who are liable?

a)

b)

c) d)

In both cases, the subject counterfeit must not on their face, appear to be as such, or do not bear any marking or any patently unusual characteristic sufficient to arouse the suspicion of a reasonable and prudent person that such drugs are counterfeit. Furthermore, the amount or volume of counterfeit drugs held is such that it does not negate or is inconsistent with the averment that the same are for personal use, notwithstanding the presentation by the possession of medical records and other similar documents accompanying and justifying the use of such drugs.

3.

4.

e)

f)

g)

Forging, counterfeiting, simulating or falsely representing, or without proper authority, using any mark, stamp, tag, label or other identification mark or device authorized or required by Republic Act No. 3720, as amended, and/or the regulations promulgated under this Act.

the manufacturer, exporter or importer of the counterfeit drugs and their agents. The agents shall be liable only upon proof of actual or constructive knowledge that the drugs are counterfeit; the seller, distributor, trafficker, broker or donor and their agents, upon proof of actual or constructive knowledge that the drugs sold, distributed, offered or donated are counterfeit drugs; the possessor of counterfeit drugs as provided in Section 4 (b) hereof; the manager, operator or lessee of the laboratory facilities used in the manufacture of counterfeit drugs; the owner, proprietor, administrator or manager of the drugstore, hospital pharmacy or dispensary, laboratory or other outlets or premises where the counterfeit drug is found who induces, causes or allows the commission of any act herein prohibited; the registered pharmacist of the outlet where the counterfeit drug is sold or found who, sells or dispenses such drug to a third party and who has actual or constructive knowledge that said drug is counterfeit; and should the offense be committed by a juridical person, the president, general manager, the managing partner, chief operating officer or the person who directly induces, causes or knowingly allows the commission of the offense shall be penalized.

Title Five CRIMES RELATIVE TO OPIUM & OTHER PROHIBITED DRUGS

Photocopying, duplicating, altering, printing, transferring, obliterating or removing the approved label or any part thereof, lawfully belonging to another person, for the purpose of using such label or a part thereof on any counterfeit drug.

RA 9165 That if the person who committed any of the acts enumerated in this paragraph and the person who used the labels produced thereby are not one and the same person and the former had knowledge of the purpose for which the labels are intended, the former shall also be liable under this Act notwithstanding the failure of the latter to achieve the intended purpose; and

The Comprehensive Dangerous Drugs Act of 2002

Acts Punished: 5.

Making, selling, or concealing any punch, dye, plate or any other equipment or instrument designed to print, imprint or reproduce the trademark, trade name or other identifying mark of another registered producer or any likeness thereof, upon any drug product or device or its container or label without authority from the legitimate owners of the trademark or trade name.

1. 

Importation of dangerous drugs and / or controlled precursors and essential chemicals Maximum penalty for any person who commits this act through the use of a. diplomatic passport / facilities b. official status intended to facilitate unlawful entry

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2.   

3.

4.

Sale, trading, administration, dispensation, delivery, distribution and transportation of dangerous drugs and / or controlled precursors and essential chemicals Even brokers held criminally liable 12 years and 1 day to 20 years to protector or "coddlers" Maximum penalty if : a. done within 100 meters from the school b. use of minors or mentally incapacitated persons as runners, couriers, and messengers c. victim of the offense is a minor or mentally incapacitated individual d. drug was proximate cause of the death e. person who organizes, manages, or finances such activities

8.

Possession of dangerous drug

9.

Possession of equipment, instrument, apparatus and other paraphernalia for dangerous drugs



Possession of such equipment shall be prima facie evidence that the possessor has used the dangerous drug (violation of Section 15 of the Act.

Maintenance of den, dive or resort where dangerous drugs and / or controlled precursors and essential chemicals are used or sold.



Being employees of the den, dive or resort: a. Any employee of a den, dive, or resort who is aware of the nature of the place as such b. Any person who, not being included in the provisions of the next preceding paragraph, is aware of the nature of the place as such and shall knowingly visit the same

10. Possession of dangerous drugs during parties, social gatherings or meetings will merit maximum penalty regardless of quantity and purity Test: In the proximate company of at least two persons

11. Possession of equipment, instrument, apparatus for dangerous drugs during parties, social gatherings, or meetings merit maximum penalty 12. Use of dangerous drugs Penalties: 1st offense: minimum of 6 months rehabilitation in a government center

5.

Manufacture of dangerous drugs and / or controlled precursors and essential chemicals

2nd offense: 6 yrs and 1 day to 12 years imprisonment



Prima facie proof of manufacturing: presence of any controlled precursor and essential chemical or laboratory equipment in the clandestine laboratory Aggravating circumstance: a. any phase of the manufacturing process was conducted in the presence or with the help of minors b. any phase of the manufacturing process was established or undertaken within 100 meters of a residential, business, church or school premises c. any clandestine laboratory was secured or protected with booby traps d. any clandestine laboratory was concealed with legitimate business operations e. any employment of a practitioner, chemical engineer, public official or foreigner





6.

Illegal diversion of any controlled precursor and essential chemical

This section will not apply where the person tested positive is also found to have in his possession dangerous drugs (section on "possession of dangerous drugs" will apply)

13. Cultivation or culture of plants classified as dangerous drugs 14. Maintenance and keeping of original records of transactions on dangerous drugs and / or controlled precursors and essential chemicals 15. Unnecessary prescription of dangerous drugs 16. Unlawful prescription of dangerous drugs

7.

Manufacture or delivery of equipment, instrument, apparatus, and other paraphernalia for dangerous drugs and / or controlled precursors and essential chemicals Other pertinent provisions:



Includes instruments that will be used to inject, ingest, inhale, or otherwise introduce into the human body a dangerous drug



A person charged under this act shall not be allowed to avail of the provision on plea-bargaining

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

A person convicted of drug trafficking or pushing cannot avail of the privilege granted by the Probation Law



Planting of evidence: Planting of any dangerous drugs and / or controlled precursors and essential chemicals shall suffer the penalty of death



A positive finding for the use of dangerous drugs shall be a qualifying aggravating circumstance in the commission of a crime by an offender



Attempt or Conspiracy: any attempt or conspiracy to commit the following shall be punishable: 1. 2. 3. 4. 5.

Importation of dangerous drugs and / or controlled precursors and essential chemicals Sale, trading, administration, dispensation, delivery, distribution and transportation of dangerous drugs and / or controlled precursors and essential chemicals Maintenance of den, dive or resort where dangerous drugs and / or controlled precursors and essential chemicals are used or sold Manufacture of dangerous drugs and / or controlled precursors and essential chemicals Cultivation or culture of plants classified as dangerous drugs

Flexibility is a trait of good police work. In the case at bar, the buybust operation was conducted without need of any prior surveillance for the reason that the informant accompanied the policemen to the person who is peddling the dangerous drugs. Bar Questions Dangerous Drug Act: Plea-Bargaining (2005) Obie Juan is suspected to have in his possession an unspecified amount of methamphetamine hydrochloride or―shabu‖. An entrapment operation was conducted by police officers, resulting in his arrest following the discovery of 100 grams of the said dangerous drug in his possession. He was subjected to a drug test and was found positive for the use of marijuana, another dangerous drug. He was subsequently charged with two crimes: Violation of Section 11, Article II of RA 9165 for the possession of ―shabu‖ and violation of Section 15, Article II of RA 9165 for the use of marijuana. (5%) a) Are the charges proper? Explain. SUGGESTED ANSWER: No. The use of dangerous drugs is not committed when Obie Juan was also found to have in his possession such quantity of any dangerous drug. (See s. 11 and 16, RA. No. 9165) b) So as not to be sentenced to death, Obie Juan offers to plead guilty to a lesser offense. Can he do so? Why? SUGGESTED ANSWER:

Suson v. People (2006)

No. Obie Juan cannot plead guilty to a lower offense as it is prohibited under the law. (Section 23, RA. No. 9165) Any person charged under any provision of this Act regardless of the imposable penalty shall not be allowed to avail of the provision on plea-bargaining. Dangerous Drugs Act (1998)

The recording or non-recording thereof in an official record will not necessarily lead to an acquittal as long as the sale of the prohibited

Superintendent Al Santiago, Chief of the Narcotics

drug is adequately proven. In the case at bar, SPO2 Patiño, the poseur-buyer, testified on the circumstances regarding the sale of

Division, Western Police District, received information that a certain Lee Lay of-No. 8 Tindalo Street, Tondo,

the shabu for which petitioners were charged and convicted. Settled is the rule that in the prosecution for the sale of dangerous drugs, the absence of marked money does not create a hiatus in the evidence for the prosecution as long as the sale of dangerous drugs is adequately proven and the drug subject of the transaction is presented before the court.

People v. Nicolas (2007)

Settled is the rule that the absence of a prior surveillance or test-buy does not affect the legality of the buy-bust operation. There is no textbook method of conducting buy-bust operations. The Court has left to the discretion of police authorities the selection of effective means to apprehend drug dealers. A prior surveillance, much less a lengthy one, is not necessary especially where the police operatives are accompanied by their informant during the entrapment.

Manila is a member of the 14K Gang selling shabu and marijuana. SPOl Lorenzo and SPO3 Peralta were instructed to conduct surveillance and buy-bust operations against Lay. Their informant contacted Lay and a meeting was arranged at T. Pinpin Restaurant at 2:00 in the afternoon on February 14, 1993. SPO1 Lorenzo and SPO3 Peralta, acting as poseur-buyers, purchased from Lay 10 sticks of marijuana and paid P500. Later, Lay agreed to sell to them one kilo of dried marijuana fruiting tops which he gave them at his residence. The policemen arrested Lay and a search was conducted. Found were 356 grams of marijuana seeds, 932 grams of marijuana fruiting tops and 50 sticks of marijuana cigarettes. What offense or offenses did Lay commit? [5%] SUGGESTED ANSWER: Lay committed the offenses of illegal selling of dangerous drugs and illegal possession of dangerous drugs which should be made subject of separate informations. The crime

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of illegal selling of dangerous drugs is committed as regards the 10 sticks of marijuana and as regards the one (1) kilo of dried marijuana fruiting tops, which should be subject of two (2) separate informations because the acts were committed at different times and in different places. The crime of Illegal possession of dangerous drugs is committed as regards the marijuana seeds, marijuana fruiting tops and marijuana cigarettes which are not the subject of the sale. Another information shall be filed for this. Dangerous Drugs Act (2006) After receiving reliable information that Dante Ong, a notorious drug smuggler, was arriving on PAL Flight NO. PR 181, PNP Chief Inspector Samuel Gamboa formed a group of anti-drug agents. When Ong arrived at the airport, the group arrested him and seized his attache case. Upon inspection inside the Immigration holding area, the attaché case yielded 5 plastic bags of heroin weighing 500 grams. Chief Inspector Gamboa took the attache case and boarded him in an unmarked car driven by PO3 Pepito Lorbes. On the way to Camp Crame and upon nearing White Plains corner EDSA, Chief Inspector Gamboa ordered PO3 Lorbes to stop the car. They brought out the drugs from the case in the trunk and got 3 plastic sacks of heroin. They then told Ong to alight from the car. Ong left with the 2 remaining plastic sacks of heroin. Chief Inspector Gamboa advised him to keep silent and go home which the latter did. Unknown to them, an NBI team of agents had been following them and witnessed the transaction. They arrested Chief Inspector Gamboa and PO3 Lorbes. Meanwhile, another NBI team followed Ong and likewise arrested him. All of them were later charged. What are their respective criminal liabilities? (5%) SUGGESTED ANSWER: Chief Inspector Gamboa and PO3 Pepito Lorbes who conspired in taking the attache case are liable for the following crimes defined under RA. 9165: a) Sec. 27 for misappropriation or failure to account for the confiscated or seized dangerous drugs. b) Sec. 4 in relation to Sec. 3(ee) for their acts as protector/coddler of Dante Ong who imported drugs In addition, by allowing Ong to escape prosecution for illegal importation or illegal transportation of dangerous drugs, where the penalty is life imprisonment to death, they are also liable for qualified bribery under Art. 211-A of the Revised Penal Code. With respect to Dante Ong, he is guilty of illegal importation of dangerous drugs under Sec. 4, R.A. 9165, if PR 181 is an international flight. If PR 181 is a domestic flight, he is liable for violation of Sec. 5, RA. 9165 for illegal transportation of dangerous drugs. Dangerous Drugs Act (6425); Marked Money (2000) At about 9 o'clock in the morning, a Narcom Group laid a plan to entrap and apprehend A, a long suspected drug dealer, through a "buy-bust" operation. At the appointed time, the poseur-buyer approached A who was then with B. A marked P100 bill was handed over to A who in turn, gave the poseur-buyer one (1) tea bag of marijuana leaves. The members of the team, who were then positioned behind thick leaves, closed in but evidently were not swift enough since A and B were able to run away. Two days later, A was

arrested in connection with another incident. It appears that during the operations, the police officers were not able to seize the marked money but were able to get possession of the marijuana tea bag. A was subsequently prosecuted for violation of Section 4, Article II of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act, During the trial, the marked money was not presented. Can A be held liable? Explain. (2%) SUGGESTED ANSWER: Yes. A can be held liable. The absence of the marked money will not create a hiatus in the prosecution's evidence as long as the sale of the dangerous drugs is adequately proven and the drug subject of the transaction is presented before the court. There was a perfected contract of sale of the drug (People vs. Ong Co, 245 SCRA 733; People vs. Zervoulakos, 241 SCRA 625). Dangerous Drugs Act (6425); Plea Bargaining (1998) Edgardo was charged with importation of prohibited drugs in an information filed with the Regional Trial Court of Kalookan City on June 4, 1994. The offense is punishable by reclusion perpetua to death. Can Edgardo avail of pleabargaining? [2%] SUGGESTED ANSWER: No, Edgardo cannot avail of plea-bargaining because the imposable penalty for his violation of the Dangerous Drugs Act (R.A. No. 6425. as amended) is reclusion perpetua to death. Section 20-A expressly provides that plea-bargaining shall not be allowed where the imposable penalty for the violation of said law is reclusion perpetua to death. (Sec. 20A, R.A. No. 6425, as amended). Dangerous Drugs Act; Consummation of Sale (1996) Pat. Buensuceso, posing as a buyer, approached Ronnie, a suspected drug pusher, and offered to buy P300 worth of shabu. Ronnie then left, came back five minutes later and handed Pat, Buensuceso an aluminum foil containing the shabu. However, before Pat, Buensuceso was able to deliver the marked money to Ronnie, the latter spotted a policeman at a distance, whom Ronnie knew to be connected with the Narcotics Command of the Police. Upon seeing the latter, Ronnie ran away but was arrested thirty minutes later by other policemen who pursued him. Under the circumstances, would you consider the crime of sale of a prohibited drug already consummated? Explain. SUGGESTED ANSWER: Yes, the sale of prohibited drug is already consummated although the marked money was not yet delivered. When Ronnie handed the aluminum foil containing the shabu to Pat. Buensuceso pursuant to their agreed sale, the crime was consummated. Payment of the consideration is not an element of requisite of the crime. If ever, the marked money is only evidentiary to strengthen the case of the prosecution. Dangerous Drugs Act; Criminal Intent to Posses (2002) A and his fiancee B were walking in the plaza when they met a group of policemen who had earlier been tipped off that A was in possession of prohibited drugs. Upon seeing the policemen and sensing that they were after him, A handed a

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sachet containing shabu to his fiancee B, telling her to hide it in her handbag. The policemen saw B placing the sachet inside her handbag. If B was unaware that A was a drug user or pusher or that what was inside the sachet given to her was shabu, is she nonetheless liable under the Dangerous Drugs Act? (5%)

Article 201. Immoral doctrines, obscene publications and exhibitions Article 202. Vagrancy and prostitution

SUGGESTED ANSWER: No, B will not be criminally liable because she is unaware that A was a drug user or pusher or of the content of the sachet handed to her by A, and therefore the criminal intent to possess the drug in violation of the Dangerous Drugs Act is absent. There would be no basis to impute criminal liability to her in the absence of animus possidendi. Dangerous Drugs Act; Plea-Bargaining (2004) MNO, who is 30 years old, was charged as a drug pusher under the Comprehensive Dangerous Drugs Act of 2002. During pre-trial, he offered to plead guilty to the lesser offense concerning use of dangerous drugs. Should the Judge allow MNO's plea to the lesser offense? Explain briefly. (5%)

Article 195. Gambling

Acts punishable:

1. Taking part directly or indirectly in – a.

any game of monte, jueteng, or any other form of lottery, policy, banking, or percentage game, dog races, or any other game or scheme the results of which depend wholly or chiefly upon chance or hazard; or wherein wagers consisting of money, articles of value, or representative of value are made; or

b.

the exploitation or use of any other mechanical invention or contrivance to determine by chance the loser or winner of money or any object or representative of value;

SUGGESTED ANSWER: No, the Judge should not allow MNO's plea to a lesser offense, because plea-bargaining in prosecutions of drugrelated cases is no longer allowed by Rep. Act No. 9165, the Comprehensive Dangerous Drugs Act of 2002, regardless of the imposable penalty.

Title Six CRIMES AGAINST PUBLIC MORALS

Chapter One. Gambling and Betting

2. Knowingly permitting any form of gambling to be carried on in any place owned or controlled by the offender; 3. Being maintainer, conductor, or banker in a game of jueteng or similar game; 4. Knowingly and without lawful purpose possessing lottery list, paper, or other matter containing letters, figures, signs or symbol which pertain to or are in any manner used in the game of jueteng or any similar game.

Article 195. Gambling PRESIDENTIAL DECREE NO. 1602

Article 196. Importation, sale and possession of lottery tickets or advertisements

Prescribing Stiffer Penalties On Illegal Gambling

Article 197. Betting in sport contests (REPEALED) Article 198. Illegal betting on horse races Article 199. Illegal cockfighting

Who are punishable? 1. Any person other than those referred to in the succeeding sub-sections who in any manner, shall directly or indirectly take part in any illegal or unauthorized activities or games

Chapter Two. Offenses against Decency and Good Custom What are illegal or unauthorized activities or games? Article 200. Grave scandal

-

cockfighting, jueteng, lotteries, games using dice, card games, games using plastic tiles (mahjong), mechanical contraptions and devices (slot

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-

machines), races, individual or team contests where game fixing, point shaving and other machinations are present, banking or percentage game IN GENERAL: or any other game scheme, whether upon chance or skill, wherein wagers consisting of money, articles of value or representative of value are at stake or made

2. Any person who shall knowingly permit any form of gambling referred to in the preceding subparagraph to be carried on in inhabited or uninhabited place or in any building, vessel or other means of transportation owned or controlled by him.





 

 3. The maintainer or conductor of the above gambling schemes. 4. Any person who shall, knowingly and without lawful purpose in any hour of any day, possess any lottery list, paper or other matter containing letters, figures, signs or symbols pertaining to or in any manner used in the games of jueteng, jai-alai or horse racing bookies, and similar games of lotteries and numbers which have taken place or about to take place. 5. Any barangay official who, with knowledge of the existence of a gambling house or place in his jurisdiction fails to abate the same or take action in connection therewith.

6. Any security officer, security guard, watchman, private or house detective of hotels, villages, buildings, enclosures and the like which have the reputation of a gambling place or where gambling activities are being held.

Penalty is higher: 1. 2. 3.

If the place where gambling is carried on has a reputation of a gambling place or that prohibited gambling is frequently carried on therein; If the place is a public or government building or barangay hall; If the maintainer, conductor or banker of said gambling schemes is a government official, or where such government official is the player, promoter, referee, umpire, judge or coach in case of game fixing, point shaving and machination.

Very important!!! Informer's reward!!!  Any person who shall disclose information that will lead to the arrest and final conviction of the malefactor shall be rewarded twenty percent (!!!) of the cash money or articles of value confiscated or forfeited in favor of the government.



Gambling is any game or scheme, whether upon chance or skill, wherein wagers consisting of money,





articles or value or representative of value are at stake or made. Reason for prohibiting/punishing gambling: to repress and evil that undermines the social, moral and economic growth of the nation. Under P.D. No. 1602, it seems that when the law names the games, punishing any person who take part therein, its purpose is to prohibit absolutely those games. Spectators are not liable in gambling, because they do not take part directly or indirectly. Lottery – a scheme for the distribution of prizes by chance among persons who have paid, or agreed to pay, a valuable consideration for the chance to obtain a prize. Elements of lottery: consideration, chance and prize or some advantage or inequality in amount or value which is in the nature of a prize. There is no lottery when the person gets full value for his money. Example: a package of cigarette sold at P0.30 each includes a coupon which may allow the buyer to win a gold watch. This is not lottery, because the player got full for his money. The winning of the watch is just a bonus. The operation, possession, use and importation of pinball and slot machines and other similar devices or paraphernalia used for their operation is declared unlawful under P.D. No. 519 which took effect on July 23, 1974.

Knowingly permitting gambling to be carried on in a place owned or controlled by the offender (2nd mode of violating this article)

Elements:

1. 2. 3.







That a gambling game was carried on in an inhabited or uninhabited place or in any building, vessel, or other means of transportation. That the place, building, vessel or other means of transportation is owned or controlled by the offender That the offender permitted the carrying on of such game, knowing that it is a gambling game. The maintainer or conductor in a gambling game are likewise punished. A maintainer is the person who sets up and furnishes the means with which to carry on the gambling game or scheme. A conductor is the person who manages or carries on the gambling game or scheme. To be prosecuted for possessing a jueteng list, proof that the game took place or is about to take place is not necessary. Such a list naturally pertains to the game of jueteng and the accused would not keep it in his possession but for its connection with such game of jueteng. But proof to the contrary is necessary when the jueteng lists pertain to games played on other dates. C2005 Criminal Law 2 Reviewer

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LETTER OF INSTRUCTIONS NO. 816 What is exempted from the coverage of P.D. 1602?

hereunder indicated: a. b.

The games of domino, bingo, poker when not played with five cards stud, cuajo, pangguingue and mahjong, provided that they are played as parlor games or for home entertainment; and Provided Further, That they are not played in places habitually used for gambling and the betting is not disguised to defeat the intent of P.D.No. 1602

c.

d.

Article 196. Importation, sale and possession of lottery tickets or advertisements

Acts punishable:

1. 2. 3. 4.





Importing into the Philippines from any foreign place or port any lottery ticket or advertisement; or Selling or distributing the same in connivance with the importer; Possessing, knowingly and with intent to use them, lottery tickets or advertisements; or Selling or distributing the same without connivance with the importer of the same. The possession of any lottery ticket or advertisement is prima facie evidence of an intent to sell, distribute or use the same in the Philippines. Must lottery tickets be genuine? There are two views: o YES. It is not necessary that the tickets be genuine, as it is enough that they be given the appearance of lottery tickets o NO. If lottery tickets are counterfeit, they cannot give rise to the evil sought to be eradicated.

SECTION 2. Betting, game-fixing, point-shaving or game machination unlawful. — Game-fixing, point-shaving, machination, as defined in the preceding section, in connection with the games of basketball, volleyball, softball, baseball; chess, boxing bouts, "jai-alai", "sipa", "pelota" and all other sports contests, games or races; as well as betting therein except as may be authorized by law, is hereby declared unlawful.

SECTION 3. Penalty. — Any violation of this Decree, or of the rules and regulations promulgated in accordance herewith, shall be punished in the manner following: a.

b.

c.

Article 197. Betting in sports contests – REPEALED BY PD 483

PD 483

Betting — betting money or any object or article of value or representative of value upon the result of any game, races and other sports contest. Game-fixing — any arrangement, combination, scheme or agreement by which the result of any game, races or sports contests shall be predicted and/or known other than on the basis of the honest playing skill or ability of the players or participants. Point-shaving — any such arrangement, combination, scheme or agreement by which the skill or ability of any player or participant in a game, races or sports contests to make points or scores shall be limited deliberately in order to influence the result thereof in favor of one or other team, player or participant therein. Game-machinations — any other fraudulent, deceitful, unfair or dishonest means, method, manner or practice employed for the purpose of influencing the result of any game, races or sport contest.

When the offender is an official, such as promoter, referee, umpire, judge, or coach in the game, race or sports contests, or the manager or sponsor of any participating team, individual or player therein, or participants or players in such games, races or other sports contests, he shall, upon conviction, be punished by prision correccional in its maximum period and a fine of 2,000 pesos with subsidiary imprisonment in case of insolvency, at the discretion of the court. This penalty shall also be imposed when the offenders compose a syndicate of five or more persons. In case of any offender, he shall, upon conviction, be punished by prision correccional in its medium period and a fine of 1,000 pesos with subsidiary imprisonment in case of insolvency at the discretion of the court. When the offender is an official or employee of any government office or agency concerned with the enforcement or administration of laws and regulations on sports the penalty provided for in the preceding Section 3 a small be imposed. In addition, he shall be disqualified from holding any public office or employment for life. If he is an alien, he may be deported.

Penalizing Betting, Game-fixing or Point Shaving in Sports Contests

Article 198. Illegal Betting on horse races SECTION 1. Definitions. — For purposes of this Decree, the following terms shall mean and be understood to be as

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(c)

1. 2.

Betting on horse races during periods not allowed by law; Maintaining or employing a totalizer or other device or scheme for betting on races or realizing profit therefrom during the periods not allowed by law.

When horse races not allowed

1. 2. 3. 4. 

 



July 4 (Republic Act No. 137); December 30 (Republic Act No. 229); Any registration or voting days (Republic Act No. 180, Revised Election Code); and Holy Thursday and Good Friday (Republic Act No. 946). A totalizer is a machine for registering and indicating the number and nature of bets made on horse races. The penalty is higher when this devise is employed. Any race held on the same day and at the same place shall be held punishable as a separate offense. If the violation is committed by any partnership, corporation, or association, the president and the directors or managers shall be deemed to be principals in the offense if they have consented to or knowingly tolerated its commission. Horse races may be carried on at any time or place, and prizes or gifts may be offered, given or paid, to the winner in said races, provided it is not accompanied by any betting, or the use of totalizer or other devices for betting money on horse races.

Article 199. Illegal cockfighting

Acts punishable:

1.

2.

Directly or indirectly participating in cockfights, by betting money or other valuable things, or organizing cockfights at which bets are made, on a day other than those permitted by law; Directly or indirectly participating in cockfights, by betting money or other valuable things, or organizing such cockfights, at a place other than a licensed cockpit.

P.D. 449 Cockfighting Law of 1974

SECTION 4. Definition of Terms. — (b) Cockfighting — shall embrace and mean the commonly known game or term "cockfighting derby, pintakasi or tupada", or its equivalent terms in different Philippine localities.

Zoning Law or Ordinance — Either both national or local city or municipal legislation which logically arranges, prescribes, defines and apportions a given political subdivision into specific land uses as present and future projection of needs warrant. (d) Bet Taker or Promoter — A person who calls and takes care of bets from owners of both gamecocks and those of other bettors before he orders commencement of the cockfight and thereafter distributes won bets to the winners after deducting a certain commission. (e) Gaffer (Taga Tari) — A person knowledgeable in the art of arming fighting cocks with gaff or gaffs on either or both legs. (f) Referee (Sentenciador) — A person who watches and oversees the proper gaffing of fighting cocks, determines the physical condition of fighting cocks while cockfighting is in progress, the injuries sustained by the cocks and their capability to continue fighting and decides and make known his decision by work or gestures and result of the cockfight by announcing the winner or declaring a tie or no contest game. (g) Bettor — A person who participates in cockfights and with the use of money or other things of value, bets with other bettors or through the bet taker or promoter and wins or loses his bet depending upon the result of the cockfight as announced by the Referee or Sentenciador. He may be the owner of fighting cock. SECTION 5. Cockpits and Cockfighting: In General. — (a) Ownership, Operation and Management of Cockpits. — Only Filipino citizens not otherwise inhibited by existing laws shall be allowed to own, manage and operate cockpits. Cooperative capitalization is encouraged. (b) Establishment of Cockpits. — Only one cockpit shall be allowed in each city or municipality, except that in cities or municipalities with a population of over one hundred thousand, two cockpits may be established, maintained and operated. (c) Cockpits Site and Construction. — Cockpits shall be constructed and operated within the appropriate areas as prescribed in Zoning Law or Ordinance. In the absence of such law or ordinance, the local executives shall see to it that no cockpits are constructed within or near existing residential or commercial areas, hospitals, school buildings, churches or other public buildings. Owners, lessees, or operators of cockpits which are now in existence and do not conform to this requirement are given three years from the date of effectivity of this Decree to comply herewith. xxx (d) Holding of Cockfights. — Except as provided in this Decree, cockfighting shall be allowed only in licensed cockpits during Sundays and legal holidays and during local fiestas for not more than three days. It may also be held during provincial, city or municipal, agricultural, commercial or industrial fair, carnival or exposition for a similar period of three days upon resolution of the province, city or municipality where such fair, carnival or exposition is to be held, subject to the approval of the Chief of Constabulary or his authorized representative: Provided, that, no cockfighting on the occasion of such fair, carnival or exposition shall be allowed within the month of a local fiesta or for more than two occasions a year in the same city or municipality: Provided, further, that no cockfighting shall be held on December 30 (Rizal Day), June 12 (Philippine Independence Day), November 30 (National Heroes Day), Holy Thursday, Good Friday, Election or Referendum Day and during Registration Days for such election or referendum.

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(e) Cockfighting for Entertainment of Tourists or for Charitable Purposes. — Subject to the preceding subsection hereof, the Chief Constabulary or his authorized representative may also allow the holding of cockfighting for the entertainment of foreign dignitaries or for tourists, or for returning Filipinos, commonly known as "Balikbayan", or for the support of national fund-raising campaigns for charitable purposes as may be authorized by the Office of the President, upon resolution of a provincial board, city or municipal council, in licensed cockpits or in playgrounds or parks: Provided, that this privilege shall be extended for only one time, for a period not exceeding three days, within a year to a province, city, or municipality. (f) Other games during cockfights prescribed. — No gambling of any kind shall be permitted on the premises of the cockpit or place of cockfighting during cockfights. The owner, manager or lessee of such cockpit and the violators of this injunction shall be criminally liable under Section 8 hereof. SECTION 7. Cockfighting Officials. — Gaffers, referees or bet takers or promoters shall not act as such in any cockfight herein authorized, without first securing a license renewable every year on their birth month from the city or municipality where such cockfighting is held. Cities and municipalities may charge a tax of not more than P20. Only licensed gaffers, referees, bet takers or promoters shall officiate in all kinds of cockfighting authorized in this Decree.

1. 2. 3. 4.







 

 

SECTION 8. Penal Provisions. — Any violation of the provisions of this Decree and of the rules and regulations promulgated by the Chief of Constabulary pursuant thereto shall be punished as follows: a.

b.

By prision correccional in its maximum period and a fine of two thousand pesos, with subsidiary imprisonment in case of insolvency, when the offender is the financier, owner, manger or operator of a cockpit, or the gaffer, referee or bet taker in cockfights; or the offender is guilty of allowing, promoting or participating in any other kind of gambling in the premises of cockpits during cockfights. By prision correccional or a fine of not less than P600 nor more than P2,000 or both, such imprisonment and fine at the discretion of the court, with subsidiary imprisonment in case of insolvency, in case of any other offender.

Offender performs an act or acts; Such act or acts be highly scandalous as offending against decency or good customs; The highly scandalous conduct is not expressly falling within any other article of this Code; and The act or acts complained of be committed in a public place or within the public knowledge or view. Grave scandal consists of acts which are offensive to decency and good customs which, having been committed publicly, have given rise to public scandal to persons who have accidentally witnessed the same. Decency means propriety of conduct; proper observance of the requirements of modesty, good taste etc. Customs means established usage, social conventions carried on by tradition and enforced by social disapproval of any violation thereof. The acts must be those that can cause public scandal among the persons witnessing them. If the act or acts of the offender are punished under article of the RPC, this article is not applicable. The acts must be performed in a public place or within the public knowledge or view. When the acts were performed in a private house and seen by one person, the crime was not committed.

Bar Questions Grave Scandal (1996) Pia, a bold actress living on top floor of a plush condominium in Makati City sunbathed naked at its penthouse every Sunday morning. She was unaware that the business executives holding office at the adjoining tall buildings reported to office every Sunday morning and, with the use of powerful binoculars, kept on gazing at her while she sunbathed. Eventually, her sunbathing became the talk of the town. 1) What crime, if any, did Pia commit? Explain, 2) What crime, if any, did the business executives commit? Explain. SUGGESTED ANSWER:

 

Permitting gambling of any kind in cockpit is punished under PD 449. The decree does not punish a person attending as a spectator in a cockfight. To be liable, he must participate in the cockfight as a bettor.

Article 200. Grave Scandal

1) Pia did not commit a crime, the felony closest to making Pia criminally liable is Grave Scandal, but then such act is not to be considered as highly scandalous and offensive against decency and good customs. In the first place, it was not done in a public place and within public knowledge or view. As a matter of fact it was discovered by the executives accidentally and they have to use binoculars to have public and full view of Pia sunbathing in the nude. 2) The business executives did not commit any crime. Their acts could not be acts of lasciviousness [as there was no overt lustful act), or slander, as the eventual talk of the town, resulting from her sunbathing, is not directly imputed to the business executives, and besides such topic is not intended to defame or put Pia to ridicule.

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Article 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows  Acts punishable:



1.

Those who shall publicly expound or proclaim doctrines openly contrary to public morals;

2.

(a) The authors of obscene literature, published with their knowledge in any form, the editors publishing such literature; and the owners/operators of the establishment selling the same; (b) Those who, in theaters, fairs, cinematographs, or any other place, exhibit indecent or immoral plays, scenes, acts, or shows, it being understood that the obscene literature or indecent or immoral plays, scenes, acts or shows, whether live or in film, which are proscribed by virtue hereof, shall include those which: (1) glorify criminals or condone crimes; (2) serve no other purpose but to satisfy the market for violence, lust or pornography; (3) offend any race, or religion; (4) tend to abet traffic in and use of prohibited drugs; and (5) are contrary to law, public order, morals, good customs, established policies, lawful orders, decrees and edicts; and

3.

Those who shall sell, give away, or exhibit films, prints, engravings, sculptures, or literature which are offensive to morals.





has the intention and purpose of exhibiting or showing the same to the recipient. Pictures with slight degree of obscenity, not used for art’s sake but for commercial purposes, fall under this article. Disposition of prohibited articles: o Upon conviction of the offender – forfeited in favour of the government, to be destroyed o When offender is acquitted – forfeited in favour of the government to be destroyed, after forfeiture proceedings are conducted by Chief of Constabulary (PNP) o Person aggrieved may appeal the forfeiture action to the Secretary of National Defense for review. In case the offender is a government official or employee who allows the violations, the penalty is imposed in the maximum period and the accessory penalties shall likewise be imposed. Obscene publications and indecent shows under RA 7610 (please refer to exploitation of minors, Title Nine)

People vs. Kottinger Postcards of non-Christians inhabitants of the Philippines in their native dress were questioned to be obscene.

HELD: The SC said that the postcards were not obscene because the aggregate judgment of the community, and the moral sense of the people were not shocked by those pictures. They were not offensive to chastity but merely depicted persons as they actually lived.

Purpose of the law: to protect the morals of

 the public..  









This offense in any of the forms mentioned in the article is committed only when there is publicity. ‘openly contrary to public morals’ – the word moral implies conformity with the generally accepted standards of goodness or rightness in conduct or character, sometimes specifically, to sexual conduct. The author of obscene literature is liable only when it is publish with his knowledge. Obscene means offensive to chastity, decency or delicacy. Test of obscenity: whether the tendency of the matter charged as obscene, is to deprave or corrupt those whose minds are open to such immoral influences, and into whose hands such a publication may fall and also whether or not such publication or act shocks the ordinary and common sense of men as an indecency. Mere nudity in pictures or paintings, not an obscenity. As regards nude pictures, the proper test is the motive of the picture, as indicated by it, is pure or impure; or whether it is naturally calculated to excite impure imaginations. The term ‘give away’ necessarily include the act of exhibiting obscene pictures or literature, because when one gives away obscene pictures or literature, he

People vs. Aparici A case about a girl dancing hula-hula in the theater making the audience of males shout “sige muna, sige, nakakalibog!’

HELD: The SC decided that the dance was immoral and indecent using the reaction of the public as the gauge in the determination of indecency.

People vs. Padan This is a case about a “live show” done in Tondo.

HELD: SC said that an actual exhibition of sexual act can have no redeeming feature- no room for art. Therefore, it is a clear and unmitigated obscenity. The exhibition was an offense to public morals.

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Article 202. Vagrants and prostitutes

Who are vagrants:

1. 2. 3. 4. 5.

6.









those enumerated in section 4 of the law) who has no visible and legal means of support, or lawful employment and who is physically able to work but neglects to apply himself to some lawful calling and instead uses begging as a means of living.

Those enumerated in section 4, who considered mendicants, are the following:

Any person having no apparent means of subsistence, who has the physical ability to work and who neglects to apply himself or herself to some lawful calling; Any person found loitering about public or semi-public buildings or places or trampling or wandering about the country or the streets without visible means of support; Any idle or dissolute person who ledges in houses of ill fame; Ruffians or pimps and those who habitually associate with prostitutes; Any person who, not being included in the provisions of other articles of this Code, shall be found loitering in any inhabited or uninhabited place belonging to another without any lawful or justifiable purpose; Prostitutes, who are women who, for money or profit, habitually indulge in sexual intercourse or lascivious conduct. Absence of visible means of support is an essential element of vagrancy only under the first and second types. Loitering around saloons and gambling houses is vagrancy only when there is evidence of absence of visible means of support. Vagrants under the third and fourth type: o Dissolute means lax, unrestrained or immoral. o Maintainer of prostitution house may be punished under this article. o Ruffians are brutal, violent lawless persons. o A pimp is one who provides gratification for the lust of others. Prostitutes are women who HABITUALLY indulge in sexual intercourse or lascivious conduct, for money or profit.

P.D. 1563 Mendicancy Law of 1978

What is a mendicant?

A mendicant refers to any person (except

1. 2.

3.

are

not

Any infant or child 8 years old and below who is found begging or is being utilized by a mendicant for purposes of begging Any minor over 9 years of age under 15 found begging or is being utilized for purposes of begging, and who acted with or without discernment Any person who is found begging and who is physically or mentally incapable of gainful occupation

Who are punishable?

1.

A mendicant shall, upon conviction, be punished by a fine not exceeding P500.00 or by imprisonment for a period not exceeding 2 years or both at the discretion of the court.

2.

A habitual mendicant (one who has been convicted of mendicancy under this law two or more times) shall be punished by a fine not exceeding P1,000.00 or by imprisonment for a period not exceeding 4 years or both at the discretion of the court.

3.

Parents of exploited infants or minors (those enumerated under section 4) are punishable under P.D. 603, unless they are themselves mendicants.

4.

Any person who abets mendicancy by giving alms directly to mendicants, exploited infants and minors on public roads, sidewalks, parks and bridges shall be punished by a fine nor exceeding P20.00.

REPUBLIC ACT NO. 10158 AN ACT DECRIMINALIZING VAGRANCY, AMENDING FOR THIS PURPOSE ARTICLE 202 OF ACT NO. 3815, AS AMENDED, OTHERWISE KNOWN AS THE REVISED PENAL CODE SECTION 1. Article 202 of the Revised Penal Code is hereby, amended to read as follows: “Article 202. Prostitutes; Penalty. – For the purposes of this article, women who, for money or profit, habitually indulge

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in sexual intercourse or lascivious conduct, are deemed to be prostitutes. “Any person found guilty of any of the offenses covered by this article shall be punished by arresto menor or a fine not exceeding 200 pesos, and in case of recidivism, by arresto mayor in its medium period to prision correctional in its minimum period or a fine ranging from 200 to 2,000 pesos, or both, in the discretion of the court.”

C. To offer or contract marriage, real or simulated, for said purposes D. To undertake or organize sex tours and travel plans E. To maintain or hire a person to engage in prostitution or pornography F. To adopt or facilitate the adoption of persons for said purposes G. To recruit, hire, adopt or abduct, by any unlawful means, for the purposes of removal or sale of organs of a person H. To recruit, transport or adopt a child to engage in armed activities

Republic Act No. 92808 AN ACT TO INSTITUTE POLICIES TO ELIMINATE TRAFFICKING IN PERSONS ESPECIALLY WOMEN AND CHILDREN, ESTABLISHING THE NECESSARY INSTITUTIONAL MECHANISMS FOR THE PROTECTION AND SUPPORT OF TRAFFICKED PERSONS, PROVIDING PENALTIES FOR ITS VIOLATIONS, AND FOR OTHER

Trafficking In Persons means: A. the recruitment, transportation, transfer or harboring, or receipt of persons with or without the victim’s consent or knowledge, within or across national borders by means of threat or use of force, or other forms of coercion, abduction, fraud, deception, abuse of power or of position, taking advantage of the vulnerability of the person, or, the giving or receiving of payments or benefits to achieve the consent of a person having control over another person for the purpose of exploitation which includes at a minimum, the exploitation or the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery, servitude or the removal or sale of organs. It is any form of unlawful activity the subject of which is the (a) any form of sexual exploitation of a person (b) forced labor or services or slavery (c) servitude (d) removal or sale of human organs B. The recruitment, transportation, transfer, or harboring or receipt of a child for the purpose of exploitation shall also be considered as “trafficking in persons” even if it does not involve any of the means set forth in the preceding paragraph

Title Seven CRIMES COMMITTED BY PUBLIC OFFICERS

Chapter One. Preliminary Provisions

Article 203. Who are public officers

Chapter Two. Malfeasance and Misfeasance in Office

Section One – Dereliction of duty Article 204. Knowingly rendering unjust judgment Article 205. Judgment rendered through negligence Article 206. Unjust interlocutory order Article 207. Malicious Delay in the administration of justice Article 208. Prosecution of offenses; negligence & tolerance Article 209. Betrayal of trust by attorney – revelation of secrets

Section Two – Bribery Article 210. Bribery

The following are the acts punished: A. To recruit, transport, transfer, harbor, provide, or receive a person by any means for the purpose of prostitution, pornography, sexual exploitation, forced labor, slavery, involuntary servitude or debt bondage *Debt bondage- the act of pledging of personal services or labor by the debtor or of any person under his control as security or payment of a debt when the length and nature of services is not clearly defined or when the value of the services as reasonable assessed is not applied toward the liquidation of the debt B. To introduce or match for money or profit or any other consideration, any person or Filipina woman to a foreign national for the same purposes or exploitation.

Article 211. Indirect bribery Article 211-A. Qualified bribery Article 212. Corruption of public officials

Chapter Three. Frauds and Illegal Exactions and Transactions

Article 213. Frauds against the public treasury and

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similar offenses.

Section One – Disobedience, refusal of assistance and maltreatment of prisoners

Article 214. Other Frauds

Article 231. Open disobedience

Article 215. Prohibited Transactions

Article 232. Disobedience to order of superior officer,

Article 216. Possession of prohibited interest by a public officer

when said order was suspended by inferior officer Article 233. Refusal of assistance

Chapter Four. Malversation of Public Funds or Property

Article 234. Refusal to discharge elective office Article 235. Maltreatment of prisoners

Article 217. Malversation of public funds Section Two – Anticipation, prolongation and

Article 218. Failure of accountable officer to render accounts

abandonment of the duties and powers by public office

Article 219. Failure of accountable officer to render accounts before leaving the country

Article 236. Anticipation of duties of a public office Article 237. Prolonging the performance of duties and

Article 220. Illegal use of public funds or property

Powers

Article 221. Failure to make delivery of public funds or property

Article 238. Abandonment of office or position

Article 222. Officers included in the preceding provisions Section Three – Usurpation of powers and unlawful Chapter Five. Infidelity of Public Officers

appointments Article 239. Usurpation of legislative powers

Section One – Infidelity in the custody of prisoners

Article 240. Usurpation of executive functions

Article 223. Conniving with or consenting to evasion

Article 241. Usurpation of judicial functions

Article 224. Evasion through negligence

Article 242. Disobeying request for disqualification

Article 225. Escape of prisoner under the custody of a person not a public officer

Article 243. Orders or requests by executive officers to any judicial authority Article 244. Unlawful appointments

Section Two – Infidelity in the custody of documents Article 226. Removal, concealment, or destruction of documents

Section Four – Abuses against chastity Article 245. Abuses against chastity - Penalties

Article 227. Officer breaking seal Article 228. Opening of closed documents

Section Three – Revelation of secrets

Article 203. Who are public officers

Article 229. Revelation of secrets by an officer Article 230. Public officer revealing secrets of private individual

Chapter Six. Other Offenses or Irregularities by Public Officers

Requisites to be a public officer:

1.

Taking part in the performance of public functions in the government; or C2005 Criminal Law 2 Reviewer

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Performing in said government or in any of its branches public duties as an employee, agent or subordinate official, or any rank or class;

Article 204. Knowingly render unjust judgment

1. 2. 2.

His authority to take part in the performance of public functions or to perform public duties must be a. b. c.

 

By direct provision of the law; By popular election; or By appointment by competent authority.

Embraces every public servant from highest to lowest. Laborer, unless temporarily performs functions of a public officer, is not a public officer.

3. 4. 





Offender is a judge; He renders a judgment in a case submitted to him for decision; Judgment is unjust; The judge knows that his judgment is unjust. Unjust judgment is the final determination and consideration of a court of competent jurisdiction upon the matters submitted to it which is contrary to law or is not supported by evidence or both. When rendered knowingly – An unjust judgment must be made deliberately and maliciously (from error, ill-will, revenge or bribery); thus no liability incurs for a mere error in good faith. There must be evidence that the judge knew that his judgment is unjust

Bar Questions Public Officers; definition (1999)

Article 205. Judgment rendered through negligence

Who are public officers? (2%) SUGGESTED ANSWER:

Public Officers are persons who, by direct provision of the law, popular election or appointment by competent authority, takes part in the performance of public functions in the Government of the Philippines, or performs in said Government or in any of its branches public duties as an employee, agent or subordinate official, of any rank or class (Art. 203, RPC)

Malfeasance and Misfeasance in office

1. 2. 3. 4.  

Offender is a judge; He renders a judgment in a case submitted to him for decision; The judgment is manifestly unjust; It is due to his inexcusable negligence or ignorance. Manifestly unjust judgment is one so manifestly contrary to law that even a person having a meager knowledge of the law cannot doubt the injustice Abuse of discretion or mere error of judgment without proof of bad faith, or ill motive or improper consideration is not punishable.

Article 206. Unjust interlocutory order



Misfeasance is the improper performance of some act which might be lawfully done  Arts. 204-207 are misfeasances on office that a judge can commit 

Malfesance is the performance of an act which ought not to be done  Arts. 210-211 are malfeasances in office that a public officer can commit



Nonfeasance is the ommission of some act which ought to be performed  Art. 208 is a nonfeasance



Arts. 204-209 are crimes under dereliction of duty

1.

Offender is a judge;

2.

He performs any of the following acts: a. Knowingly rendering an unjust interlocutory order or decree; or b. Rendering a manifestly unjust interlocutory order or decree through inexcusable negligence or ignorance.



Interlocutory order is a court order between the commencement and the end of a suit or action and which decides some point or matter but which however is not a final decision of the matter in issue. C2005 Criminal Law 2 Reviewer

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  Article 207. justice

Malicious Delay in the administration of 

1. 2. 3. 4.

Offender is a judge; There is a proceeding in his court; He delays in the administration of justice; The delay is malicious, that is, with deliberate intent to inflict damage on either party in the case. (malice must be proven)

Crime committed by the law violator must be first proved before conviction for dereliction. Liability of public officer who, having the duty of prosecuting the offender, harbored, concealed or assisted the escape of the latter is that of the principal in the crime defined and penalized under Art 208 Not applicable to revenue officers

Article 209. Betrayal of trust by attorney -revelation of secrets

Acts punishable: Article 208. Prosecution of offenses; negligence & tolerance (PREVARICACION)

1.

Causing damage to his client, eithera.

Acts Punishable:

b. 1. 2.

Maliciously refraining from instituting prosecution against violators of the law; Maliciously tolerating the commission of offenses.

By any malicious breach of professional duty;

By inexcusable negligence or ignorance.

Note: When the attorney acts with malicious abuse of his employment or inexcusable negligence or ignorance, there must be damage to his client.

Elements of dereliction of duty in the prosecution of offenses 2. 1. 2.

3.







Offender is a public officer or officer of the law who has a duty to cause the prosecution of, or to prosecute, offenses; There is a dereliction of the duties of his office, that is, knowing the commission of the crime, he does not cause the prosecution of the criminal, or knowing that a crime is about to be committed, he tolerates its commission; Offender acts with malice and deliberate intent to favor the violator of the law. Negligence here means the neglect of the duties of his office by maliciously failing to move the prosecution and punishment of the delinquent. Malice is an important element. Officer of the law includes all those who by reason of the position held by them are duty bound to cause the prosecution and punishment of the offenders; Public officer extends to those officers of the prosecution department whose duty is to institute criminal proceedings for felonies upon being informed of their perpetration. Fiscal who knows that there is sufficient evidence to secure the conviction of the accused but drops the case is liable and punishable under Art. 206. But the fiscal is under no compulsion to file the corresponding complaint where he is not convinced that the evidence gathered would warrant the filing of an action in court.

Revealing any of the secrets of his client learned by him in his professional capacity; Note: Damage is not necessary

3.

Undertaking the defense of the opposing party in the same case, without the consent of his first client, after having undertaken the defense of said first client of after having received confidential information from said client. Note: If the client consents to the attorney’s taking the defense of the other party, there is no crime.



There is no solicitor or procurador judicial under the Rules of Court. (procurador judicial – a person who had some practical knowledge of law and procedure, but not a lawyer, and was permitted to represent a party in a case before the inferior courts)

Article 210. Direct Bribery

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1.

2. 3.

Agreeing to perform, or performing, in consideration of any offer, promise, gift or present - an act constituting a crime, in connection with the performance of his official duties; Accepting a gift in consideration of the execution of an act which does not constitute a crime, in connection with the performance of his official duty; Agreeing to refrain, or by refraining, from doing something which it is his official duty to do, in consideration of gift or promise.

Elements:

1. 2. 3.

Offender is a public officer within the scope of Article 203; Offender accepts an offer or a promise or receives a gift or present by himself or through another; Such offer or promise be accepted, or gift or present received by the public officer a. b.

c.

With a view to committing some crime; or In consideration of the execution of an act which does not constitute a crime, but the act must be unjust; or To refrain from doing something which it is his official duty to do.

4.

The act which offender agrees to perform or which he executes be connected with the performance of his official duties.



For the purpose of punishing bribery, the temporary performance of public functions is sufficient to constitute a person a public officer. The provisions of this article are made applicable to assessors, arbitrators, appraisal and claim commissioners, experts or any other persons performing public duties. Gift is either voluntarily offered by a private person or solicited by the public officer, it may be received personally or thru intermediary. Gift or present need not actually be received by the public officer, as an accepted offer or promise of gift is sufficient. If there is only an offer of gift or promise to give something, the offer or promise must be accepted by the public officer to be liable under this article. If not accepted, only the person offering is liable under Article 212. It must be of some value or capable of pecuniary estimation. A promise to give gift to, and a promise to commit an unlawful act by, a public officer will be sufficient under Art. 210 [1] Direct bribery under Art.210 [2] has the same elements as Art 210 [1] but act intended by public officer does not amount to a crime. Direct bribery under Art 210 [2] acceptance of the gift and the accomplishment of act is necessary. The commission of Art 210 [3] is by refraining from doing something which pertains to a public officer’s official duty.

   

    

Prevaricacion (Art 208) is committed the same way. But they differ in that in ART. 210 [3] the offender refrained from doing his official duty in consideration of a gift received or promised. This is not necessary in Art. 208.

Manipon vs. Sandiganbayan

Manipon, a deputy sheriff assigned to execute the decision of the labor arbiter ordering Harry Dominguez, a building contractor to pay the balance of their work contract. He sent a notice to the Comtrust Bank in Baguio City garnishing the bank accounts of Dominguez. The bank agreed to hold the accounts. Later on Dominguez sought Manipon's help in the withdrawal of the garnished account. Manipon told Dominguez that he "can remedy the withdrawal so they will have something for the New Year." Dominguez interpreted this to mean that Manipon would withdraw the garnished amount for a consideration. Manipon contends that the Sandiganbayan erred in convicting him of direct bribery, in not giving credence to the defense theory that there was novation of the money judgment.

HELD: It is very strange indeed that for such an important agreement that would be a final judgment, no one took the bother of putting it down or paper. Of course Manipon would have us believe that there was no need for it because he trusted Dominguez and Tabek.

And yet did he not also claim that Dominguez had framed him up because of a grudge? And if there was really an agreement to alter the judgment, why did he not inform the labor arbiter about it considering that it was the labor arbiter who had issued the order of execution? Manipon could not give satisfactory explanations because there was no such agreement in the first place.

Dacumos vs. Sandiganbayan

Dacumos was a BIR revenue examiner when he offered to settle the tax liability of R. Revilla Interiors by pulling out its assessments papers from the office of the BIR Commissioner and procuring a tax clearance. For such service, he would require a fee of P35,000.00. Samia, the manager of the firm, pretended to go along with him but reported the matter to the National Bureau of Investigation, which arranged an entrapment. Dacumos was caught and convicted of direct bribery. He argues that he could not have promised to remove the assessment papers from the Commissioner's office as he had no access to that place.

HELD: The implausibility of his promises does not mean they were not made or that they did not appear to be credible, coming as they did from one with his long experience in the BIR and appeared to know his way around. The Court finds it especially remarkable that he met Samia at a private place instead of his office at the BIR, considering that they were supposed to be discussing official business and it was Samia who he says was requesting his assistance. The Court is not inclined to believe that Samia would be so vindictive as to falsely incriminate the petitioner with the serious charge of bribery simply

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because the petitioner refused to reduce the tax assessment of R. Revilla Interiors. Samia was not even directly involved in the assessment.

SUGGESTED ANSWER:

Article 211. Indirect Bribery

ALTERNATIVE ANSWER;

a) The sheriff committed the crime of Direct Bribery under the second paragraph of Article 210, Revised Penal Code, since the P2,000 was received by him "in consideration" of the prompt enforcement of the writ of execution which is an official duty of the sheriff to do.

a) On the premise that even without the P2,000, Sheriff

Elements:

1. 2. 3.

Offender is a public officer; He accepts gifts; The gifts are offered to him by reason of his office.



Gift is usually given to the public officer in anticipation of future favor from the public officer Essential to Art. 211 is that the public officer must have accepted the gift or material consideration; that is, the public officer took the gift offered and considered it as his personal property. There is no attempted or frustrated indirect bribery Indirect bribery is different from direct bribery under Art 210 [2] in that the former the act executed was not unjust while the former requires that the act be unjust Criminal penalty of imprisonment is distinct from the administrative penalty of separation from judicial service.

Ben Rivas had to carry out the writ of execution and not that he would be implementing the writ only because of the P2,000.00, the receipt of the amount by said sheriff may be regarded as a gift received by reason of his office and not as a "consideration" for the performance of an official duty; hence, only indirect Bribery would be committed by said sheriff. b) On the part of the plaintiff and her lawyer as giver



  

Direct bribery

Indirect bribery

The public officer receives a gift There is an agreement between the officer and the gift-giver

There is no such agreement

The offender agrees to perform an act or refrains from doing something because of the gift or promise

It is unnecessary that the offender should do or promise any act as it is enough that he accepted the gift by reason of his office

of the bribe-money, the crime is Corruption of Public Officials under Article 212, Revised Penal Code. Direct Bribery: Infidelity in the Custody of Documents (2005) During a PNP buy-bust operation, Cao Shih was arrested for selling 20 grams of methamphetamine hydrochloride (shabu) to a poseur-buyer. Cao Shih, through an intermediary, paid Patrick, the Evidence Custodian of the PNP Forensic Chemistry Section, the amount of P500,000.00 in consideration for the destruction by Patrick of the drug. Patrick managed to destroy the drug. State with reasons whether Patrick committed the following crimes: (7%) 1.] Direct Bribery; SUGGESTED ANSWER: Patrick committed the crimes of Direct Bribery and Infidelity in the Custody of Documents. When a public officer is called upon to perform or refrain from

Bar Questions

performing an official act in exchange for a gift, present or consideration given to him (Art. 210, Revised Penal Code), the crime committed is direct bribery. Secondly, he destroyed the shabu which is an evidence in his official custody, thus, constituting infidelity in the custody of documents under Art. 226 of the Revised Penal Code.

Bribery & Corruption of Public Official (2001)

2.] Indirect bribery;

Deputy Sheriff Ben Rivas received from the RTC Clerk of Court a Writ of Execution in the case of Ejectment filed by Mrs. Maria Estrada vs. Luis Ablan. The judgment being in favor of Estrada, Rivas went to her lawyer's office where he was given the necessary amounts constituting the sheriffs fees and expenses for execution in the total amount of P550.00, aside from P2,000.00 in consideration of prompt enforcement of the writ from Estrada and her lawyer. The writ was successfully enforced. a) What crime, if any, did the sheriff commit? (3%) b) Was there any crime

SUGGESTED ANSWER:

committed by Estrada and her lawyer and if so, what crime? (2%)

See. 3(e), R.A. No. 8019 was not committed because there was no actual injury to the government. When there is no

Indirect bribery was not committed because he did not receive the bribe because of his office but in consideration of a crime in connection with his official duty. 3.] Section 3(e) of RA 3019 (Anti-Graft and Corrupt Practices Act); SUGGESTED ANSWER:

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specific quantified injury, violation is not committed. (GarciaRueda vs Amor, et al., G.R. No. 116938, September 20, 2001)

demand; public officer is not liable unless he accepts the gift or consents to the promise

4.] Obstruction of Justice under PD 1829; SUGGESTED ANSWER: Patrick committed the crime of obstruction of justice although the feigner penalty imposable on direct bribery or infidelity in the custody of documents shall be imposed. Sec. 1 of P.D. No. 1829 refers merely to the imposition of the higher penalty and does not preclude prosecution for obstruction of justice, even if the same not constitute another offense. ALTERNATIVE ANSWER: Obstruction of Justice is not committed in this case, because the act of destroying the evidence in his custody is already penalized by another law which imposes a higher penalty. (Sec. 1, P.I). No. 1829)

Article 211-A. Qualified Bribery

PRESIDENTIAL DECREE NO. 749

Granting Immunity From Prosecution To Givers Of Bribes And Other Gifts And To Their Accomplices In Bribery And Other Graft Cases Against Public Officers Who may be granted immunity under the Act? 1. Any person who voluntarily gives information about any violation of: RPC 210 (Direct Bribery), 211 (Indirect Bribery), and 212 (Corruption of public officials); RA 3019 Sec 345 of the NIRC Sec 3604 of the Tariff and Customs Code other provisions of the said Codes penalizing abuse or dishonesty on the part of the public officials concerned; and other laws, rules and regulations punishing acts of graft, corruption and other forms of official abuse;

-

Elements:

1. 2. 3. 4.



Offender is a public officer entrusted with law enforcement; He refrains from arresting or prosecuting an offender who has committed a crime; Offender has committed a crime punishable by reclusion perpetua and/or death; Offender refrains from arresting or prosecuting in consideration of any offer, promise, gift, or present. Penalty is increased if the public officer asks or demands such gift or present.

2. AND who willingly testifies against any public official or employee for such violation

…shall be exempt from prosecution or punishment for the offense with reference to which his information and testimony were given, and may plead or prove the giving of such information and testimony in bar of such prosecution.

EVEN IF – -

Article 212. Corruption by public officials -

Elements:

the case where the information and testimony are given is against a person who is not a public official but who is a principal, or accomplice, or accessory in the commission of any of the abovementioned violations; or it is the informant who offered or gave the bribe or gift to the public official or his accomplice for such gift or bribe-giving. What are the conditions for immunity?

1. 2.



Offender makes offers or promises or gives gifts or presents to a public officer; The offers or promises are made or the gifts or presents given to a public officer, under circumstances that will make the public officer liable for direct bribery or indirect bribery. The offender in Art. 212 is the gift-giver or offeror of promise, even if the gift was demanded by the public officer and the offer was not made voluntarily prior to said

1. The information must refer to consummated violations of any of the above-mentioned provisions of law, rules and regulations;

2. The information and testimony are necessary for the conviction of the accused public officer;

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3. Such information and testimony are not yet in the possession of the State;

Republic Act No. 3019 Anti-Graft and Corrupt Practices Act

4. Such information and testimony can be corroborated on its material points; and

Sec. 2.

5. The informant or witness has not been previously convicted of a crime involving moral turpitude.

When will immunity NOT attach? - If it should turn out subsequently that the information and/or testimony (1) is false and malicious or (2) made only for the purpose of harassing, molesting or in any way prejudicing the public officer denounced

Definition of terms. - As used in this Act, that term

(b) "Public officer" includes elective and appointive officials and employees, permanent or temporary, whether in the classified or unclassified or exempt service receiving compensation, even nominal, from the government as defined in the preceding subparagraph. (c)

"Receiving any gift" includes the act of accepting directly or indirectly a gift from a person other than a member of the public officer's immediate family, in behalf of himself or of any member of his family or relative within the fourth civil degree, either by consanguinity or affinity, even on the occasion of a family celebration or national festivity like Christmas, if the value of the gift is under the circumstances manifestly excessive. Presidential Decree No. 46

MAKING IT PUNISHABLE FOR PUBLIC OFFICIALS (d) "Person" includes natural and juridical persons, unless EMPLOYEES TO RECEIVE, AND FOR PRIVATE the AND context indicates otherwise. PERSONS TO GIVE, GIFTS ON ANY OCCASION, INCLUDING CHRISTMAS Sec. 3. Corrupt practices of public officers. - In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute any public or employee, corrupt practices of official any public officer and are hereby  to whether of the national or local governments, declared be unlawful:  to receive, directly or indirectly,  and for private persons  to give, or offer to give, any gift, present or other valuableinducing thing to any occasion, including (a) Persuading, or influencing anotherChristmas, public  when such gift, or other valuable thing of is given officer to perform anpresent act constituting a violation by reason of his duly official position, by competent rules and regulations promulgated  regardless of whether or not the same is forofficial past favor authority or an offense in connection with the the giver or expects to receive duties oroffavors the orlatter, or hopes allowing himself to be a favor or better treatment in the future from the public persuaded, induced, or influenced to commit such official or employee concerned in the discharge of his violation or offense. official functions. (b) Directly or indirectly requesting or receiving any gift,  Included the prohibition throwing of present, share, within percentage, or benefit, is for the himself or parties entertainments in honor of the official or for any other or person, in connection with any contract employees or his immediate relatives. or transaction between the Government and any other part, wherein the public officer in his official capacity has to intervene under the law. (c)

Directly or indirectly requesting or receiving any gift, present or other pecuniary or material benefit, for himself or for another, from any person for whom the public officer, in any manner or capacity, has secured or obtained, or will secure or obtain, any Government permit or license, in consideration for the help given or to be given, without prejudice to Section thirteen of this Act.

(d) Accepting or having any member of his family accept employment in a private enterprise which has pending official business with him during the pendency thereof or within one year after its termination.

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(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. (f)

Neglecting or refusing, after due demand or request, without sufficient justification, to act within a reasonable time on any matter pending before him for the purpose of obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage, or for the purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party.

confidential information referred to in subparagraph (k) of this section shall, together with the offending public officer, be punished under Section nine of this Act and shall be permanently or temporarily disqualified in the discretion of the Court, from transacting business in any form with the Government. Sec. 4.

a)

(g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby. b) (h) Director or indirectly having financing or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having any interest. (i)

Directly or indirectly becoming interested, for personal gain, or having a material interest in any transaction or act requiring the approval of a board, panel or group of which he is a member, and which exercises discretion in such approval, even if he votes against the same or does not participate in the action of the board, committee, panel or group.

Interest for personal gain shall be presumed against those public officers responsible for the approval of manifestly unlawful, inequitable, or irregular transaction or acts by the board, panel or group to which they belong. (j)

Knowingly approving or granting any license, permit, privilege or benefit in favor of any person not qualified for or not legally entitled to such license, permit, privilege or advantage, or of a mere representative or dummy of one who is not so qualified or entitled.

(k) Divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date.

The person giving the gift, present, share, percentage or benefit referred to in subparagraphs (b) and (c); or offering or giving to the public officer the employment mentioned in subparagraph (d); or urging the divulging or untimely release of the

Prohibition on private individuals. –

It shall be unlawful for any person having family or close personal relation with any public official to capitalize or exploit or take advantage of such family or close personal relation by directly or indirectly requesting or receiving any present, gift or material or pecuniary advantage from any other person having some business, transaction, application, request or contract with the government, in which such public official has to intervene. Family relation shall include the spouse or relatives by consanguinity or affinity in the third civil degree. The word "close personal relation" shall include close personal friendship, social and fraternal connections, and professional employment all giving rise to intimacy which assures free access to such public officer. It shall be unlawful for any person knowingly to induce or cause any public official to commit any of the offenses defined in Section 3 hereof.

Sec. 5. Prohibition on certain relatives. - It shall be unlawful for the spouse or for any relative, by consanguinity or affinity, within the third civil degree, of the President of the Philippines, the Vice-President of the Philippines, the President of the Senate, or the Speaker of the House of Representatives, to intervene, directly or indirectly, in any business, transaction, contract or application with the Government: Provided, That this section shall not apply to any person who, prior to the assumption of office of any of the above officials to whom he is related, has been already dealing with the Government along the same line of business, nor to any transaction, contract or application already existing or pending at the time of such assumption of public office, nor to any application filed by him the approval of which is not discretionary on the part of the official or officials concerned but depends upon compliance with requisites provided by law, or rules or regulations issued pursuant to law, nor to any act lawfully performed in an official capacity or in the exercise of a profession.

Sec. 7. Statement of Assets and liabilities – Every public officer within 30 days after assuming office, and thereafter, on or before the 15 th day of April following the close of every calendar year, as well as upon resignation or separation from office, shall prepare and file with the office of the corresponding department head, or in the case of a Head of Department or a Chief of an independent office, with the Office of the President, a true, detailed and sworn statement of assets and liabilities, including a statement of the amounts and sources of his income taxes paid for the next preceding calendar year. Provided, that public officers assuming office less than two months before the end of the calendar year, may file their first statement on or before the

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15th day of April following the close of the said calendar year.

himself from the price of the said land, the amount of P4,000 for his services. No violation of Section 3(e) of the Anti-Graft and Corrupt Act appears. At most, the accused should be merely charged administratively

Sec. 11. Prescription of offenses. – All offenses punishable under this act shall prescribe in 15 years.

ALTERNATIVE ANSWERS:

Sec. 14. Exception. - Unsolicited gifts or presents of small or insignificant value offered or given as a mere ordinary token of gratitude or friendship according to local customs or usage, shall be excepted from the provisions of this Act.

Nothing in this Act shall be interpreted to prejudice or prohibit the practice of any profession, lawful trade or occupation by any private person or by any public officer who under the law may legitimately practice his profession, trade or occupation, during his incumbency, except where the practice of such profession, trade or occupation involves conspiracy with any other person or public official to commit any of the violations penalized in this Act.

Bar Questions Anti-Graft & Corrupt Practices - RA 3019 (1997) A is charged with the crime defined in Section 3(e) of the Anti-Graft and Corrupt Practices Act in an Information that reads: That from 01 to 30 January 1995, in the City of Pasig and within the jurisdiction of this Honorable Court, the accused, being then employed in the Office of the District Engineer, Department of Public Works and Highways and in the discharge of his official administrative functions, did then and there willfully and unlawfully work for and facilitate the approval of B's claim for the payment of the price of his land which the government had expropriated, and after the claim was approved, the accused gave B only P1,000.00 of the approved claim of P5,000 and willfully and unlawfully appropriated for himself the balance of P4,000, thus causing undue injury to B and the Government." A has filed a motion to quash the information, contending that it does not charge an offense. Is he correct? SUGGESTED ANSWER: Yes, the contention of A is correct. The information failed to allege that the undue injury to B and the government was caused by the accused's manifest partiality, evident bad faith, or gross Inexcusable negligence, which are necessary elements of the offense charged, ie., violation of Section 3(e) of the Anti-Graft and Corrupt Practices Act. The accused is employed in the Office of the District Engineer of the DPWH which has nothing to do with the determination and fixing of the price of the land expropriated, and for which expropriated land the Government is legally obligated to pay. There is no allegation in the information that the land was overpriced or that the payment of the amount was disadvantageous to the Government. It appears that the charge was solely based on the accused having followed up the payment for B's land which the Government has already appropriated, and that the accused eventually withheld for

1. Yes, A is correct in filing a motion to quash the information because Section 3(e) of Republic Act 3019 applies only to officers and employees of government corporations charged with the grant of licenses or permits or other concessions, and not to DPWH, which is not a government corporation. 2. A is not correct. In the case of Meforda vs. Sandiganbayan. 151 SCRA 399, which involves a substantially identical information as the Information quoted in the question, the Supreme Court held that the Information was valid. While it is true that the information quoted In the question, failed to allege evident bad faith, gross inexcusable negligence or manifest partiality, said Information Is nevertheless adequate because it averred the three (3) elements for the violation of Section 3(c) of RA. 3012 when it stated (1) that the accused is a public officer at the time of the commission of the crime, being employed in the Office of the District Engineer, DPWH; (2) that the accused caused undue Injury to B and the Government, with the statement that BT the owner of the land, received only P1,000.00 instead of the full value of P5,000.00; and (3)that in the discharge of A's official administrative functions, he "did then and there willfully and unlawfully work for and facilitate the approval of his claim xxx and "willfully and unlawfully appropriate for himself the balance of P4,000.00 x x x". An information need not employ or use the very words or language of the statute. It may also use words or language of similar import.

REPUBLIC ACT NO. 3047 AN ACT TO AMEND Sec. SEVEN OF REPUBLIC ACT NUMBERED THIRTY HUNDRED AND NINETEEN, OTHERWISE KNOWN AS THE "THE ANTIGRAFT AND CORRUPT PRACTICES ACT" SO AS TO EXEMPT CLASSROOM TEACHERS, LABORERS, CASUAL AND TEMPORARY EMPLOYEES, AND BARRIO OFFICIAL FROM THE REQUIREMENTS THEREOF

Section 1. Section seven of Republic Act Numbered Thirty hundred and nineteen is hereby amended to read as follows: "Sec. 7. Statement of assets and liabilities. — Every public officer, within thirty days after approval of this Act or after assuming office, and within the month of January of every other year thereafter, as well as upon the expiration of his term of office, or upon his resignation separation from office, shall prepare and file with the office of the corresponding Department Head, or in the case of a Head of Department or chief of an independent office, with the Office of the President, or in the case of members of the Congress and the officials and employees thereof, with the

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Office of the Secretary of the corresponding House, a true detailed and sworn statement of assets and liabilities, including a statement of the amounts and sources of his income, the amounts of his personal and family expenses, and the amount of income taxes paid for the next preceding calendar year: Provided, That public officer assuming office less than two months before the end of the calendar year, may file their first statements in the following months of January: Provided, further, That the requirements of this section shall not apply to classroom teachers, laborers, casual and temporary employees, and barrio officials."

PRESIDENTIAL DECREE No. 77 AMENDING SECTION 1 OF REPUBLIC ACT NO. 5180 PRESCRIBING A UNIFORM SYSTEM OF PRELIMINARY INVESTIGATION BY PROVINCIAL AND CITY FISCALS AND THEIR ASSISTANTS, AND BY STATE ATTORNEYS OR THEIR ASSISTANTS Section 1 of Republic Act No. 5180 is hereby amended to read as follows: "Sec. 1. Notwithstanding any provision of law to the contrary and except when an investigation has been conducted by a judge of first instance, city or municipal judge or other officer in accordance with law and the Rules of Court of the Philippines, no information for an offense cognizable by the Court of First Instance shall be filed by the provincial or city fiscal or any of his assistants, or by the Chief State Prosecutor or his assistants, without first conducting a preliminary investigation in the following manner: a) All complaints shall be accompanied by statements of the complainant and his witnesses as well as other supporting documents. The statements of the complainant and his witnesses shall be sworn to before the investigating fiscal or state prosecutor. He shall examine them and satisfy himself that their statements were voluntarily executed and understood by them. b) If on the basis of the complainant's sworn statements and documents submitted there does not appear to be prima facie case, the investigating fiscal or state prosecutor shall dismiss the case; if a prima facie case is established by complainant's evidence, he shall notify the respondent by issuing a subpoena requiring him to submit at an indicated date which shall not be more than ten (10) days from receipt of the subpoena, counter-affidavits and other supporting documents. To the subpoena shall be attached a copy of the complaint, the sworn statements and other documents submitted. Other evidence submitted shall be made available for examination of the respondent or his counsel. The statements of the respondent and his witnesses shall also be sworn to before the investigating fiscal.

c) Whenever necessary, the fiscal or state prosecutor may subpoena either or both parties or their witnesses and propound clarificatory question, during which both complainant and respondent shall be afforded an opportunity to be present but without right to examine or crossexamine. "The investigating fiscal or state prosecutor shall help both the complaint and the respondent and their witnesses in the preparation and execution of their affidavits if so requested to do so. "The fiscal or state prosecutor shall certify under oath in the information to be filed by him that he has examined the complainant and his witnesses, that on the basis of the sworn statements and other evidence submitted before him that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof, that the accused was informed of the complaint and of the evidence submitted against him and that he was given an opportunity to submit controverting evidence: Provided, That no assistant fiscal or state prosecutor may file an information except with the prior authority or approval of the city or provincial fiscal or chief state prosecutor and only in a case in which he himself conducted the preliminary investigation."

BATAS PAMBANSA BILANG 195 AN ACT AMENDING SECTIONS EIGHT, NINE, TEN, ELEVEN, AND THIRTEEN OF REPUBLIC ACT NUMBERED THIRTY HUNDRED AND NINETEEN, OTHERWISE KNOWN AS THE ANTI-GRAFT AND CORRUPT PRACTICES ACT. Section 1. Section 8 of Republic Act No. 3019 is hereby amended to read as follows: “Section 8. Prima facie evidence of and dismissal due to unexplained wealth. — If in accordance with the provisions of Republic Act Numbered One thousand three hundred seventy-nine, a public official has been found to have acquired during his incumbency, whether in his name or in the name of other persons, an amount of property and/or money manifestly out of proportion to his salary and to his other lawful income, that fact shall be a ground for dismissal or removal. Properties in the name of the spouse and dependents of such public official may be taken into consideration, when their acquisition through legitimate means cannot be satisfactorily shown. Bank deposits in the name of or manifestly excessive expenditures incurred by the public official, his spouse or any of their dependents including but not limited to activities in any club or association or any ostentatious display of wealth including frequent travel abroad of a non-official character by any public official when such activities entail expenses evidently our of proportion to legitimate income, shall likewise be taken into consideration in the enforcement of this section, notwithstanding any provision of law to the contrary. The circumstances hereinabove mentioned shall constitute valid ground for the administrative suspension of the public

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official concerned for an indefinite period until the investigation of the unexplained wealth is completed.” Sec. 2. Section 9 of Republic Act No. 3019 is hereby amended to read as follows: “Section 9. Penalties for violations. — (a) any public officer or private person committing any of the unlawful acts or omissions enumerated in Sections 3, 4, 5 and 6 of this Act shall be punished with imprisonment for not less than six years and one month nor more than fifteen years, perpetual disqualification from public office, and confiscation or forfeiture in favor of the Government of any prohibited interest and unexplained wealth manifestly out of proportion to his salary and other lawful income. “Any complaining party at whose complaint the criminal prosecution was initiated shall, in case of conviction of the accused, be entitled to recover in the criminal action with priority over the forfeiture in favor of the Government, the amount of money or the thing he may have given to the accused, or the fair value of such thing. ‘(b) Any public officer violating any of the provisions of Section 7 of this Act shall be punished by a fine of not less than one thousand pesos nor more than five thousand pesos, or by imprisonment not exceeding one year six months, or by both such fine and imprisonment, at the discretion of the Court. “The violation of said section proven in a proper administrative proceeding shall be sufficient cause for removal or dismissal of a public officer, even if no criminal prosecution is instituted against him.” Sec. 3. Section 10 of Republic Act No. 3019 is hereby amended to read as follows: “Section 10. Competent Court. — Until otherwise provided by law, all prosecutions under this Act shall be within the original jurisdiction of the Sandiganbayan.”

shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him. “In the event that such convicted officer, who may have already been separated from the service, has already received such benefits he shall be liable to restitute the same to the Government.”

RA 1379 FORFEITURE IN FAVOR OF THE STATE OF ANY PROPERTY FOUND TO HAVE BEEN UNLAWFULLY ACQUIRED BY ANY PUBLIC OFFICER OR EMPLOYEE (1955) SECTION 1. Definitions. (a) For the purposes of this Act, a "public officer or employee" means any person holding any public office or employment by virtue of an appointment, election or contract, and any person holding any office or employment, by appointment or contract, in any State owned or controlled corporation or enterprise. (b) "Other legitimately acquired property" means any real or personal property, money or securities which the respondent has at any time acquired by inheritance and the income thereof, or by gift inter vivos before his becoming a public officer or employee, or any property (or income thereof) already pertaining to him when he qualified for public office or employment, or the fruits and income of the exclusive property of the respondent's spouse. It shall not include: 1. Property unlawfully acquired by the respondent, but its ownership is concealed by its being recorded in the name of, or held by, the respondent's spouse, ascendants, descendants, relatives, or any other person.

Sec. 4. Section 11 of Republic Act No. 3019 is hereby amended to read as follows:

2. Property unlawfully acquired by the respondent, but transferred by him to another person or persons on or after the effectivity of this Act.

“Section 11. Prescription of offenses. — All offenses punishable under this Act shall prescribe in fifteen years.”

3. Property donated to the respondent during his incumbency, unless he can prove to the satisfaction of the court that the donation is lawful.

Sec. 5. Section 13 of Republic Act No. 3019 is hereby amended to read as follows: “Section 13. Suspension and loss of benefits. — Any incumbent public officer against whom any criminal prosecution under a valid information under this Act or under Title 7, Book II of the Revised Penal Code or for any offense involving fraud upon government or public funds or property whether as a simple or as complex offense and in whether stage of execution and mode of participation, is pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he

SECTION 2. Filing of petition. — Whenever any public officer or employee has acquired during his incumbency an amount of property which is manifestly out of proportion to his salary as such public officer or employee and to his other lawful income and the income from legitimately acquired property, said property shall be presumed prima facie to have been unlawfully acquired.

SECTION 11. Laws on prescription. - The laws concerning acquisitive prescription and limitation of actions cannot be

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invoked by, nor shall they benefit the respondent, in respect of any property unlawfully acquired by him.

anyone; or (2)To prejudice the public interest. (d)

SECTION 12. Penalties. — Any public officer or employee who shall, after the effective date of this Act, transfer or convey any unlawfully acquired property shall be repressed with imprisonment for a term not exceeding 5 years, or a fine not exceeding P10,000, or both such imprisonment and fine. The same repression shall be imposed upon any person who shall knowingly accept such transfer or conveyance.

Public officials and employees shall not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan or anything of monetary value from any person in the course of their official duties or in connection with any operation being regulated by, or any transaction which may be affected by the functions of their office.

As to gifts or grants from foreign governments, the Congress consents to: (i)

R.A. 6713 Code of Conduct and Ethical Standards for Public Officials and Employees

What are Prohibited Acts and Transactions? In addition to acts and omissions of public officials and employees now prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official and employee and are hereby declared to be unlawful:

(a) Financial and material interest in any transaction requiring the approval of their office. (b) Public officials and employees during their incumbency shall not: a. Own, control, manage or accept employment as officer, employee, consultant, counsel, broker, agent, trustee or nominee in any private enterprise regulated, supervised or licensed by their office unless expressly allowed by law; b. Engage in the private practice of their profession unless authorized by the Constitution or law, provided, that such practice will not conflict or tend to conflict with their official functions; or c. Recommend any person to any position in a private enterprise which has a regular or pending official transaction with their office.

The acceptance and retention by a public official or employee of a gift of nominal value tendered and received as a souvenir or mark of courtesy; (ii) The acceptance by a public official or employee of a gift in the nature of a scholarship or fellowship grant or medical treatment; or (iii) The acceptance by a public official or employee of travel grants or expenses for travel taking place entirely outside the Philippine (such as allowances, transportation, food, and lodging) of more than nominal value if such acceptance is appropriate or consistent with the interests of the Philippines, and permitted by the head of office, branch or agency to which he belongs. The Ombudsman shall prescribe such regulations as may be necessary to carry out the purpose of this subsection, including pertinent reporting and disclosure requirements. Nothing in this Act shall be construed to restrict or prohibit any educational, scientific or cultural exchange programs subject to national security requirements.

Penalties imposed

(a)

Any public official or employee, regardless of whether or not he holds office or employment in a casual, temporary, holdover, permanent or regular capacity, committing any violation of this Act shall be punished with a fine not exceeding the equivalent of six (6) months' salary or suspension not exceeding one (1) year, or removal depending on the gravity of the offense after due notice and hearing by the appropriate body or agency. If the violation is punishable by a heavier penalty under another law, he shall be prosecuted under the latter statute. Violations of Sections 7, 8 or 9 of this Act shall be punishable with imprisonment not exceeding five (5) years, or a fine not exceeding five thousand pesos (P5,000), or both, and, in the discretion of the court of competent jurisdiction, disqualification to hold public office.

(b)

Any violation hereof proven in a proper administrative proceeding shall be sufficient cause for removal or dismissal of a public official or employee, even if no criminal prosecution is instituted against him.

These prohibitions shall continue to apply for a period of one (1) year after resignation, retirement, or separation from public office, except in the case of subparagraph (b) (2) above, but the professional concerned cannot practice his profession in connection with any matter before the office he used to be with, in which case the one-year prohibition shall likewise apply.

(c)

Public officials and employees shall not use or divulge, confidential or classified information officially known to them by reason of their office and not made available to the public, either (1)To further their private interests, or give undue advantage to

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(c)

(d)

Private individuals who participate in conspiracy as co-principals, accomplices or accessories, with public officials or employees, in violation of this Act, shall be subject to the same penal liabilities as the public officials or employees and shall be tried jointly with them. The official or employee concerned may bring an action against any person who obtains or uses a report for any purpose prohibited by Section 8 (D) of this Act. The Court in which such action is brought may assess against such person a penalty in any amount not to exceed twenty-five thousand pesos (P25,000). If another sanction hereunder or under any other law is heavier, the latter shall apply.

Plunder

REPUBLIC ACT No. 7080 AN ACT DEFINING AND PENALIZING THE CRIME OF PLUNDER “Ill-gotten wealth” -- means any asset, property, business enterprise or material possession of any person within the purview of Section 2 acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes: 1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; 2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer concerned; 3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities or government-owned or -controlled corporations and their subsidiaries; 4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including promise of future employment in any business enterprise or undertaking; 5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or 6) By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines.

b)

or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts, in the aggregate amount or total value of at least Seventy-five million pesos (P75,000,000.00) any person who participated with said public officer in the commission of plunder shall be punished by life imprisonment with perpetual absolute disqualification from holding any public office.

Who has jurisdiction? -- all prosecutions under this Act shall be within the original jurisdiction of the Sandiganbayan. How proved? -- For purposes of establishing the crime of plunder, it shall not be necessary to prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire illgotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy. Prescription -- The crime punishable under this Act shall prescribe in twenty (20) years. However, the right of the State to recover properties unlawfully acquired by public officers from them or from their nominees or transferees shall not be barred by prescription, laches, or estoppel.

Who are guilty of plunder? a) any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates

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R.A. 9372. AN ACT TO SECURE THE STATE AND PROTECT OUR PEOPLE FROM TERRORISM

1. It created the crime known as terrorism and declared it to be “ a crime against the Filipino people, against humanity, and against the law of nations”.

II. Defines the crime of terrorism to be the commission of “any of the crimes of :

A. Under the Revised Penal Code. i. Piracy in general and Mutiny in the High Seas or in the Philippine Waters ii. rebellion iii. Coup d’etat iv. Murder

facts to be determined by the courts and on a case to case basis. ii. Is the term “populace’ to be interpreted as referring to the local inhabitants where the acts were committed, or does it refer to the national population?

C. The purpose of the accused must be to coerce the government to give into an unlawful demand i. The word “demand” is too broad as to cover not only political, criminal or monetarial demands but also those which maybe categorized as social or economic. This however is qualified by the word “ unlawful”.

IV. Other Acts/Persons Liable A. Conspiracy to commit terrorism. The penalty is the same as terrorism itself ( i.e. 40 years of imprisonment)

v. Kidnapping and Serious Illegal Detention

B. Under Special Laws

B. Accomplices- he cooperates in the execution of either terrorism or conspiracy to commit terrorism by previous or simultaneous acts (Penalty is 17 yrs. 4 months and one day to 20 years)

i. Arson under P.D. 1613 ii. Violation of R.A. 6969 ( Toxic Substance ad Nuclear Waste Control) iii. R.A. 5207 ( Atomic Energy Regulatory and Liability Act of 1968) iv. Hijacking v. Piracy in Phil. Waters and Highway Robbery

C. Accessory-The acts punished are the same as that under Article 19 of the RPC. The penalty is 10 yrs. And one day to 12 years

1. The law however adopts the absolutory cause of exemption of accessories from liability with respect to their relatives

vi. P.D. 1866 ( Possession and Manufacture of Firearms/explosives) V. Surveillance of Suspects and Interception and Recording of Communications thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand”

III. Requirements for Terrorism

A. The accused ( maybe a single individual or a group) must commit any of the enumerated crimes

B. There results a condition of widespread and extraordinary fear and panic among the populace i. The extent and degree of fear and panic, including the number of people affected in order to meet the term “populace”, are questions of

A. Authorizes the grant of Judicial Authorization to listen, intercept, and record, any communication, message, conversation, discussion, or of spoken or written words between members of (i) a judicially declared and outlawed terrorist organization or association or group, or (ii) of any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism

1. The Judicial Authorization can only be issued by the Court of Appeals (a) upon a written application filed by a police or law enforcement official or members of his team and (b). after an ex parte hearing establishing (c). probable cause that terrorism/conspiracy to commit terrorism has been committed, or is being committed, or is about to be committed ( note that the wording is not

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attempted)

2. The applicant must have been authorized in writing to file the application by the Anti Terrorism Council ( The Body created to implement the law and assume responsibility for the effective implementation of the anti-terrorism[policy of the country)

3. The Judicial Authority is effective for a maximum period not to exceed 30 days from date of receipt of the written order and may be extended for another similar period

B. Punishes the act of failure to notify the person subject of the surveillance, monitoring or interception, if no case was filed within the 30 day period/life time of the Order of Court authorizing the surveillance

C. Punishes any person who conducts any unauthorized or malicious interceptions and or recording of any form of communications, messages, conversations, discussions or spoken or written words

VI. Provides for a Judicial Declaration of Terrorists and Outlawed organization, association, or group of persons, by any RTC upon application by the DOJ and upon prior notice to the group affected.

VII. Procedure when a suspected terrorist is arrested

hours, the written notice shall be served at the nearest residence of the judge nearest the place of arrest

D. Failure to notify in writing is punished by 10 years and one day to12 years of imprisonment

VIII. Period of Detention has been extended to three days

A. The three day period is counted from the moment the person charged or suspected as terrorist has been apprehended or arrested, detained and taken into custody

B. In the event of an actual or imminent terrorist attack, suspects may not be detained for more than three days without the written approval of the Human Rights Commission, or judge of the MTC RTC, Sandiganbayan or Court of Appeals nearest the place of arrest

C. If arrest was on a nonworking day or hour, the person arrested shall be brought to the residence of any of the above named officials nearest the place of arrest.

D. Failure to deliver the person charged or suspected as terrorists to the proper judicial; authority within three days is punished by 10 years and one day to 12 years.

IX. Other Acts Punished As Offenses (punished by imprisonment of 10 years and one day to 12 years) which acts are related to the arrest/detention of suspected terrorists

A. A suspected terrorist maybe arrested by any law enforcement personnel provided: 1. The law enforcement agent was duly authorized in writing by the Anti Terrorism Council 2. The arrest was the result of a surveillance or examination of bank deposits

B. Upon arrest and prior to actual detention, the law enforcement agent must present the suspected terrorist before any judge at the latter’s residence or office nearest the place of arrest, at any time of the day or night. The judge shall, within three days, submit a written report of the presentation to the court where the suspect shall have been charged.

A. Violation of the rights of a person detained 1. Right to be informed of the nature and cause of the arrest; to remain silent; to counsel 2. To communicate and confer with counsel at any time without restriction 3. To communicate at any time and without restrictions with members of family or relatives and be visited by them 4. To avail of the services of a physician of choice

B. Offenses relating to an official log book: C. Immediately after taking custody of a person charged or suspected as a terrorist, the police or law enforcement personnel shall notify in writing the judge of the nearest place of apprehension or arrest, but if the arrest is made during non-office days or after office

1. Failure to keep official logbook detailing the name of the person arrested the date and time of initial admission for custody and arrest; state of his health; date and time of removal from his cell, and his

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return thereto; date and time of visits and by whom; all other important data bearing on his treatment while under arrest and custody

revealed, not like the provisions of the Rules of Evidence which considers the confidentiality as permanent)

XIII. Territorial Application of the law: 2. Failure to promptly issue a certified true copy of the entries of the log book The law applies to any person who commits an act covered by the law if committed: C. Using threat, intimidation, coercion, inflicting physical pain, or torment or mental emotional, moral or psychological pressure which shall vitiate the free will

D. Punishes Infidelity in the Custody of Detained Persons 1. The penalty is 12 years and one day to 20 years if the person detained is a prisoner by final judgment 2. The penalty is 6 years and one day to 12 years if the prisoner is a detention prisoner

E. Punishes the act of knowingly furnishing False Testimony, forged document or spurious evidence in any investigation or hearing under the law ( 12 yrs and one day to 20 years)

X. Prosecution under the Law is a bar to another prosecution under the Revised Penal code or any other special law for any offense or felony which is necessarily included in the offense charged under the law

A. Within the terrestrial domain, interior waters, maritime zone and airspace of the Philippines B. Inside the territorial limits of the Philippines C. On board a Philippine ship or airship D. Within any embassy, consulate, diplomatic premises belonging to or occupied by the Philippine government in an official capacity E. Against Philippine citizens or persons of Philippine descent where their citizenship or ethnicity was a factor in the commission of the crime F. Directly against the Philippine government.

XIV. The provisions of the law shall be automatically suspended one month before and two months after the holding of any election.

Morfe vs. Mutuc XI. If the suspect is acquitted he is entitled to P500,000.00 for every day of detention without a warrant of arrest.

A. Any person who delays the release or refuses to release the amount shall be punished by imprisonment of 6 months

XII. Provisions on the Identity of the Informant

A. The officer to whom the name of the suspect was first reveled shall record the real name and specific address of the informant and shall report the same to his superior officer who shall in turn transmit the information to the Congressional Oversight Committee within 5 days after the suspect was placed under arrest, or his properties sequestered seized or frozen.

B. The data shall be considered confidential and shall not be unnecessarily revealed until after the proceedings against the suspect shall have been terminated.

Issue: Whether RA 3019 sec 7 was unconstitutional

HELD: No. The Anti- Graft Act of 1960 was aimed at curtailing and minimizing the opportunities for official corruption and maintaining a standard of honesty in the public service. It is intended to further promote morality in public administration. A public office must indeed be a public trust. Nobody can cavil at its objective; the goal to be pursued commands the assent of all. The conditions then prevailing called for norms of such character. The times demanded such a remedial device. By the provisions of the challenged section, it becomes much more difficult by those disposed to take advantage of their position to commit acts of graft and corruption. While in the attainment of such public good, no infringement of constitutional rights is permissible, there must be a showing, clear, categorical, and undeniable, that what the Constitution condemns, the statute allows. It would be to dwell in the realm of abstractions and to ignore the harsh and compelling realities of public service with its ever-present temptation to heed the call of greed and avarice to condemn as arbitrary and oppressive a requirement as that imposed on public officials and employees to file such sworn statement of assets and liabilities every two years after having done so upon assuming office. The due process clause is not susceptible to such a reproach. There was therefore no unconstitutional exercise of police power.

( NOTE: It would seem that the confidentiality of the informant’s identity is not permanent but may be

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Jaravata vs. Sandiganbayan

Mejorada vs. Sandiganbayan

Jaravata was an asst. principal when he informed the classroom teachers of the approval of the release of their salary differentials and to facilitate its payment accused and the classroom teachers agreed that accused follow-up the papers in Manila with the obligation on the part of the classroom teachers to reimburse the accused of his expenses. He did incur expenses in the amount of P36 for each of the 6 teachers. The teachers actually received their salary differentials and pursuant to said agreement, they, with the exception of 2 teachers, gave the accused varying amounts but as the administrator did not approve it, he ordered the Jaravata to return the money given to him which he complied. Jaravata was charged and convicted under RA 3019 SEC 3(b)

Mejorada was a right-of-way agent with DPWH. Petitioner contacted the persons affected by the widening of the road and informed them that he could work out their claims for payment of the values of their lots and/or improvements affected by the widening of said highway. They were paid more than what was the value of their property. Right after the claimants had received the proceeds of their checks, accused accompanied them to his car where they were divested of the amounts paid to them. All the claimants were helpless to complaint because they were afraid of the accused and his armed companion.

HELD: Jaravata was not in violation of RA 3019 Sec 3(b). Sec. 3(b) of R.A. No. 3019, refers to a public officer whose official intervention is required by law in a contract or transaction. There is no law which invests the petitioner with the power to intervene in the payment of the salary differentials of the complainants or anyone for that matter. Far from exercising any power, the petitioner played the humble role of a supplicant whose mission was to expedite payment of the salary differentials. In his official capacity as assistant principal, he is not required by law to intervene in the payment of the salary differentials. Accordingly, he cannot be said to have violated the law afore-cited although he exerted efforts to facilitate the payment of the salary differentials.

Trieste vs. Sandiganbayan

Mayor Trieste had been charged and convicted for 12 violations of RA 3019 Sec 3 (h) for the purchases of construction materials by his municipality from a company of which he is allegedly the president.

HELD: No violation. Petitioner has divested his interest with the company. Petitioner established that before he assumed office as mayor he had already sold his shares of the company to his sister. The sale was made by corresponding indorsements to her stock certificate which was duly recorded in the stock and transfer book of the corporation.

Petitioner contends that the eight informations filed against him before the Sandiganbayan are fatally defective in that it failed to allege the essential ingredients or elements constituting the offense penalized by Section 3(e) of Rep. Act No. 3019.

HELD: Section 3’s reference to "any public officer" is without distinction or qualification and it specifies the acts declared unlawful. The last sentence of paragraph (e) is intended to make clear the inclusion of officers and employees of officers or government corporations, which, under the ordinary concept of "public officers" may not come within the term. It is a strained construction of the provision to read it as applying exclusively to public officers charged with the duty of granting licenses or permits or other concessions.

The government suffered undue injury as a result of his inflating the true claims of complainants which eventually became the basis of payment. His contention that he had no participation is belied by the fact that as a right-of-way-agent, his duty was precisely to negotiate with property owners who are affected by highway constructions for the purpose of compensating them. On the part of the complainants, the injury caused to them consists in their being divested of a large proportion of their claims and receiving payment in an amount even lower than the actual damage they incurred. They were deprived of the just compensation to which they are entitled.

Article 213. Frauds against the public treasury

In as much as Treasurer Vega signed and paid the vouchers after the materials were delivered, petitioner's signature on the vouchers after payment is not, we submit, the kind of intervention contemplated under Section 3(h) of the anti-graft law is the actual intervention in the transaction in which one has financial or pecuniary interest in order that liability may attach. The official need not dispose his shares in the corporation as long as he does not do anything for the firm in its contract with the office. For the law aims to prevent the dominant use of influence, authority and power. There is absolutely no evidence that petitioner had, in his capacity as Mayor, used his influence, power, and authority in having the transactions given to Trigen.

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Acts punishable:

c.

1.

d.

2.

3.

4.

Entering into an agreement with any interested party or speculator or making use of any other scheme, to defraud the government, in dealing with any person with regard to furnishing supplies, the making of contracts, or the adjustment or settlement of accounts relating to public property or funds; Demanding, directly or indirectly, the payment of sums different from or larger than those authorized by law, in collection of taxes, licenses, fees, and other imposts; Failing voluntarily to issue a receipt, as provided by law, for any sum of money collected by him officially, in the collection of taxes, licenses, fees, and other imposts; Collecting or receiving, directly or indirectly, by way of payment or otherwise, things or objects of a nature different from that provided by law, in the collection of taxes, licenses, fees, and other imposts.

   



Failing voluntarily to issue a receipt, as provided by law, for any sum of money collected by him officially; or Collecting or receiving, directly or indirectly, by way of payment or otherwise, things or objects of a nature different from that provided by law.

Crime of illegal exactions is consummated by mere demand for larger or different amount from that fixed by law. Collecting officer must issue official receipt otherwise held liable under this article. When there is deceit in demanding greater fees than those prescribed by law, the crime is estafa not illegal exaction. Tax collector who collected a sum larger than that authorized by law and spent all of them is guilty of 2 crimes, namely: illegal exaction, for demanding a greater amount; and malversation for misappropriating the amount collected. BIR or Customs officers and employees not covered by Art 213. NIRC or Admin Code applies to them.

Elements of frauds against public treasury under paragraph 1 Article 214. Other Frauds 1.

Offender is a public officer;

2.

He has taken advantage of his office, that is, he intervened in the transaction in his official capacity;

3.

He entered into an agreement with any interested party or speculator or made use of any other scheme with regard to furnishing supplies, the making of contracts, or the adjustment or settlement of accounts relating to public property or funds;

4.

He had intent to defraud the government.

 

Public officer must act in his official capacity Crime of frauds against public treasury is consummated by merely entering into an agreement with any interested party or speculator or by merely making use of any other scheme to defraud Government.

Elements:

1.

Offender is a public officer;

2.

He takes advantage of his official position;

3.

He commits any of the frauds or deceits enumerated in Article 315 to 318 (Estafa, other forms of swindling, swindling a minor and other deceits)



RTC has jurisdiction when Art 214 is involved as MTCs do not have jurisdiction to impose the principal penalty in Art. 214 of disqualification

Elements of illegal exactions under paragraph 2

Article 215. Prohibited Transactions

1.

Offender is a public officer entrusted with the collection of taxes, licenses, fees and other imposts;

Elements

2.

He is guilty of any of the following acts or omissions:

b.

Demanding, directly or indirectly, the payment of sums different from or larger than those authorized by law; or

1.

Offender is an appointive public officer;

2.

He becomes interested, directly or indirectly, in any transaction of exchange or speculation;

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3.

The transaction takes place within the territory subject to his jurisdiction;

4.

He becomes interested in the transaction during his incumbency.



Transaction must be one of exchange or speculation such as buying regularly securities for resale. Purchasing of stocks or shares in a company is simply an investment and not a violation of Art. 215. Examples of appointive public officer who may not engage in the commercial profession either in person or by proxy: justices, judges or fiscals, employees engaged in the collection and administration of public funds.

 

corporation or its subsidiary, during his term of office. He shall not intervene in any matter before any office of the government for his pecuniary benefit or where he may be called upon to act on account of his office.

Section 13, Article VII of the Constitution

The President, Vice-President, the Members of the Cabinet and their deputies or assistant shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.

Article 216. Possession of prohibited interest by a public officer

Persons liable: Section 2, Article IX-A of the Constitution 1.

Public officer who, directly or indirectly, became interested in any contracts or business in which it was his official duty to intervene;

2.

Experts, arbitrators, and private accountants who, in like manner, took part in any contract or transaction connected with the estate or property in the appraisal, distribution or adjudication of which they had acted;

3.

Guardians and executors with respect to the property belonging to their wards or the estate.



This provision is applicable to experts, arbitrators and private accountants who, in like manner, shall take part in any contract or transaction connected with the estate or property in appraisal distribution or adjudication of which they shall have acted, and to the guardians and executors with respect tom the property belonging to their wards or estate. Actual fraud is not necessary



Section 14, Article VI of the Constitution

No Senator or Member of the House of Representatives may personally appear as counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative bodies. Neither shall he, directly or indirectly, be interested financially in any contract with, or in any franchise or special privilege granted by the Government or any subdivision, agency or instrumentality thereof, including any government-owned or controlled

No member of a Constitutional Commission shall, during his tenure, hold any office or employment. Neither shall he engage in the practice of any profession or in the active management or control of any business which in any way may be affected by the functions of his office, nor shall he be financially interested, directly or indirectly, in any contract with, or in any franchise or privilege granted by the government, or any of its subdivisions, agencies, or instrumentalities, including governmentowned or controlled corporations or their subsidiaries.

Article 217. Malversation of public funds

Acts punishable:

1.

Appropriating public funds or property;

2.

Taking or misappropriating the same;

3.

Consenting, or through abandonment or negligence, permitting any other person to take such public funds or property; and

4.

Being otherwise guilty of the misappropriation malversation of such funds or property.

or

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Elements common to all acts of malversation under Article 217

1.

Offender is a public officer;

2.

He had the custody or control of funds or property by reason of the duties of his office;

3.

Those funds or property were public funds or property for which he was accountable;

4.

He appropriated, took, misappropriated or consented or, through abandonment or negligence, permitted another person to take them.

   





 

  

 



Also known as embezzlement Nature of duties, not name of office is controlling Funds or property must be received in official capacity A public officer having only a qualified charge of government property without authority to part with physical possession of it unless upon order from his immediate superior, cannot be held liable for malversation. This rule does not apply when the accused had authority to receive money pertaining to the Government. A private person conspiring with an accountable public officer in committing malversation is also guilty of malversation. Under Art. 222 private individuals may also guilty of malversation. Private property may be involved malversation. This article applies to administrators or depositories of funds or property attached, seized, or deposited by public authority, even if such property belongs to a private individual. In malversation not committed through negligence, lack of criminal intent or good faith is a defense. Presumption from failure to have duly forthcoming public funds or property upon demand is prima facie evidence that the said funds have been put to personal use. This may be rebutted. Return of the funds malversed is only a mitigating circumstance. When at the very moment the shortage is discovered, the shortage is paid by public officer from his pocket, he is not liable for malversation. When the accountable officer is obliged to go out of his office and borrow the sum alleged to be the shortage and later the missing amount is found in some unaccustomed place in his office, he is not liable for malversation. Demand not necessary in malversation in spite of the last paragraph in Art. 217 as the latter provides only for a rule of procedural law, a rule of evidence and no more. A person whose negligence made possible the commission of malversation may be held liable as principal by indispensable cooperation in the complex crime of malversation through falsification of a public document by reckless negligence. Damage to Government not necessary. Penalty is based on the amount involved, not on the amount of damage to the government.

Labatagos vs. Sandiganbayan

Labatagos was the cashier and collecting officer of the Mindanao State University. She filed a leave of absence and did not discharge her duties for the said period. When COA conducted the examination, the petitioner did not have any cash in her possession, so she was asked to produce all her records, books of collection, copies of official receipts and remittance advices and her monthly reports of collections. Petitioner incurred shortages. Petitioner was charged and convicted of malversation of public funds.

HELD: Conviction upheld. Her claim that she signed the audit report and statement of collections and deposits prepared by the audit team of Francisco Rivera on the understanding that her shortage was only P2,000.00 is belied by the figures clearly reflected on the said documents. Mrs. Ester Guanzon, the prosecution’s rebuttal witness, confirmed that the accused filed application for maternity leave in March 1978 but continued reporting for work during that month and that she (Guanzon) was the one assigned to collect the fees in her stead. When the accused was physically absent from office, she also turned over her collections to the accused in the latter’s house with the duplicate copies of the receipts she issued which the accused signed after satisfying herself that the amounts turned over tallied with the receipts.

All the other sums allegedly taken from the accused by Director Osop, Alikhan Marohombsar and Auditor Casan supported as they are by mere pieces of paper, despite the admission by Director Osop of having signed some of them were not valid disbursements. Granting that the amounts reflected in the chits were really secured by the persons who signed them, the responsibility to account for them still rests in the accused accountable officer. Malversation consists not only in misappropriation or converting public funds or property to one’s personal use but also by knowingly allowing others to make use of or misappropriate them.

Estepa vs. Sandiganbayan

Estepa, then a senior paymaster lost P50,000 government money. Petitioner’s contention is that the facts alleged in the information did not constitute an offense since there can be no crime of malversation of public funds through mere failure to count the money.

HELD: In the crime of malversation, all that is necessary for conviction is proof that the accountable officer had received the public funds and that he did not have them in his possession when demand therefore was made and he could not satisfactorily explain his failure so to account. An accountable public officer may be convicted for malversation even if there is no direct evidence of personal misappropriation, where he has not been able to explain satisfactorily the absence of the public funds involved.

Ilogon vs. Sandiganbayan

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Ilogon was the acting Postmaster when the examination showed that the petitioner incurred a shortage in his accounts. He was charged and convicted of malversation of public funds.

was installed that upon demand by any duly authorized officer, the failure of a public officer to have duly forthcoming any public funds or property— with which said officer is accountable—should be prima facie evidence that he had put such missing funds or properties to personal use. When these circumstances are present, a “presumption of law” arises that there was malversation of public funds or properties as decreed by Article 217.

HELD: In the crime of malversation, all that is necessary for conviction is proof that the accountable officer had received public funds and that he did not have them in his possession when demand herefore was made. There is even no need of direct evidence of personal misappropriation as long as there is a shortage in his account and petitioner cannot satisfactorily explain the same.

The fact that petitioner did not personally use the missing funds is not a valid defense and will not exculpate him from his criminal liability. And as aptly found by respondent Sandiganbayan, “the fact that (the) immediate superiors of the accused (petitioner herein) have acquiesced to the practice of giving out cash advances for convenience did not legalize the disbursements”.

The fact also that petitioner fully settled the amount of P118,003.10 later is of no moment. The return of funds malversed is not a defense. It is neither an exempting circumstance nor a ground for extinguishing the accused’s criminal liability. At best, it is a mitigating circumstance.

Azarcon vs. Sandiganbayan

Azarcon owned and operated an earth-moving business, hauling. Occasionally, he engaged the services of sub-contractors like Jaime Ancla whose trucks were left at the former’s premises. A Warrant of Distraint of Personal Property was issued by the BIR to the personal property of Jaime Ancla, a delinquent taxpayer. Later on, Azarcon wrote the BIR stating Ancla surreptitiously withdrew his equipment from hiss custody. Because of this, Azarcon was charged and convicted of malversation of public property. The issue here is whether petitioner’s designation by the BIR as a custodian of distrained property qualifies as appointment by direct provision of law, or by competent authority HELD: Not a public officer. The case of U.S. vs. Rastrollo is not applicable to the case before us simply because the facts therein are not identical, similar or analogous to those obtaining here. While the cited case involved a judicial deposit of the proceeds of the sale of attached property in the hands of the debtor, the case at bench dealt with the BIR’s administrative act of effecting constructive distraint over alleged property of taxpayer Ancla in relation to his back taxes, property which was received by Petitioner Azarcon. In the cited case, it was clearly within the scope of that court’s jurisdiction and judicial power to constitute the judicial deposit and give “the depositary a character equivalent to that of a public official.” However, in the instant case, while the BIR had authority to require Petitioner Azarcon to sign a receipt for the distrained truck, the NIRC did not grant it power to appoint Azarcon a public officer. People v. Wa-Acon (2006) Article 217 no longer requires proof by the State that the accused actually appropriated, took, or misappropriated public funds or property. Instead, a presumption, though disputable and rebuttable,

Bar Questions Malversation (1994) Randy, an NBI agent, was issued by the NBI an armalite rifle (Ml6) and a Smith and Wesson Revolver. Cal. 38. After a year, the NBI Director made an inspection of all the firearms issued. Randy, who reported for work that morning, did not show up during the inspection. He went on absence without leave (AWOL). After two years, he surrendered to the NBI the two firearms issued to him. He was charged with malversation of government property before the Sandiganbayan. Randy put up the defense that he did not appropriate the armalite rifle and the revolver for his own use, that the delay in accounting for them does not constitute conversion and that actually the firearms were stolen by his friend, Chiting. Decide the case. SUGGESTED ANSWER: Randy is guilty as charged under Art. 217, RPC. He is accountable for the firearms they issued to him in his official capacity. The failure of Randy to submit the firearms upon demand created the presumption that he converted them for his own use. Even if there is no direct evidence of misappropriation, his failure to account for the government property is enough factual basis for a finding of malversation. Indeed, even his explanation that the guns were stolen is incredible. For if the firearms were actually stolen, he should have reported the matter immediately to the authorities. (People vs. Baguiran , 20 SCRA 453; Felicilda us. Grospe, GR No. 10294, July 3, 1992) Malversation (1999) What constitutes the crime of malversation of public funds or property? (2%) SUGGESTED ANSWER: Malversation of public funds or property is committed by any public officer who, by reason of the duties of his office, is accountable for public funds or property, shall take or misappropriate or shall consent, or through abandonment or negligence, shall permit any other person to take such public funds or property, wholly or partially, or shall otherwise be guilty of the misappropriation or malversation of such funds or property, (Art, 217, RPC) Malversation (1999) A Municipal Treasurer, accountable for public funds or property, encashed with public funds private checks drawn in favor of his wife. The checks bounced, the drawer not having enough cash in the drawee bank. The Municipal Treasurer, in encashing private checks from public funds, violated regulations of his office. Notwithstanding restitution of the amount of the checks, can the Municipal Treasurer nevertheless be criminally liable? What crime did he commit? Explain. (2%)

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SUGGESTED ANSWER: Yes, notwithstanding the restitution of the amount of the check, the Municipal Treasurer will be criminally liable as restitution does not negate criminal liability although it may be considered as a mitigating circumstance similar or analogous to voluntary surrender. (People vs. Velasquez, 73 Phil 98), He will be criminally liable for malversation. However, if the restitution was made immediately, under vehement protest against an imputation of malversation and without leaving the office, he may not be criminally liable. Malversation (2001) Alex Reyes, together with Jose Santos, were former warehousemen of the Rustan Department Store. In 1986, the PCGG sequestered the assets, fund and properties of the owners-incorporators of the store, alleging that they constitute "Ill-gotten wealth" of the Marcos family. Upon their application, Reyes and Santos were appointed as fiscal agents of the sequestered firm and they were given custody and possession of the sequestered building and its contents, including various vehicles used in the firm's operations. After a few months, an inventory was conducted and it was discovered that two (2) delivery vans were missing. After demand was made upon them, Reyes and Santos failed to give any satisfactory explanation why the vans were missing or to turn them over to the PCGG; hence, they were charged with Malversation of Public Property. During the trial, the two accused claimed that they are not public accountable officers and, if any crime was committed, it should only be Estafa under Art. 315, par. l(b) of the Revised Penal Code. What is the proper offense committed? State the reason(s) for your answer. (5%) SUGGESTED ANSWER: The proper offense committed was Malversation of Public Property, not estafa, considering that Reyes and Santos, upon their application, were constituted as "fiscal agents" of the sequestered firm and were "given custody and possession" of the sequestered properties, including the delivery vans which later they could not account for. They were thus made the depositary and administrator of properties deposited by public authority and hence, by the duties of their office/position, they are accountable for such properties. Such properties, having been sequestered by the Government through the PCGG, are in custodia legis and therefore impressed with the character of public property, even though the properties belong to a private individual (Art. 222, RPC). The failure of Reyes and Santos to give any satisfactory explanation why the vans were missing, is prima facie evidence that they had put the same to their personal use. Malversation (2006) 1. In 1982, the Philippine National Bank (PNB), then a government banking institution, hired Henry dela Renta, a CPA, as Regional Bank Auditor. In 1992, he resigned and was employed by the Philippine Deposit Insurance Corporation (PDIC), another government-owned and controlled corporation. In 1995, after the PNB management unearthed many irregularities and violations of the bank's rules and regulations, dela Renta was found to have

manipulated certain accounts involving trust funds and time deposits of depositors. After investigation, he was charged with malversation of public funds before the Sandiganbayan. He filed a motion to dismiss contending he was no longer an employee of the PNB but of the PDIC. Is dela Renta's contention tenable? (2.5%) SUGGESTED ANSWER: The contention of Henry dela Renta is not tenable. Dela Renta may be prosecuted for malversation even if he had ceased to be an employee of the PNB. At the time of the commission of the offense, PNB was a government owned and controlled corporation and therefore, any crime committed by the Regional Bank Auditor, who is a public officer, is subject to the jurisdiction of the Sandiganbayan (See R.A. 7975 as amended by RA. 8249). 2. After his arraignment, the prosecution filed a motion for his suspension pendente lite, to which he filed an opposition claiming that he can no longer be suspended as he is no longer an employee of the PNB but that of the PDIC. Explain whether he may or may not be suspended. (2.5%) SUGGESTED ANSWER: Dela Renta may still be suspended pendente lite despite holding a different public office, the PDIC, when he was charged. The term "office" in Sec. 13 of R.A. 3019 applies to any office which the officer might currently be holding and not necessarily the office or position in relation to which he is charged (Segovia v. Sandiganbayan, G.R. No. 122740, March 30,1998). Malversation vs. Estafa (1999) How is malversation distinguished from estafa? SUGGESTED ANSWER: Malversation differs from estafa in that malversation is committed by an accountable public officer involving public funds or property under his custody and accountability; while estafa is committed by non-accountable public officer or private individual involving funds or property for which he is not accountable to the government. Malversation: Anti-Fencing: Carnapping (2005) Allan, the Municipal Treasurer of the Municipality of Gerona, was in a hurry to return to his office after a day-long official conference. He alighted from the government car which was officially assigned to him, leaving the ignition key and the car unlocked, and rushed to his office. Jules, a bystander, drove off with the car and later sold the same to his brother, Danny for P20,000.00, although the car was worth P800,000.00. What are the respective crimes, if any, committed by Allan, Danny and Jules? Explain. SUGGESTED ANSWER: Allan, the municipal treasurer is liable for malversation committed through negligence or culpa. The government car which was assigned to him is public property under his accountability by reason of his duties. By his act of negligence, he permitted the taking of the car by another person, resulting in malversation, consistent with the language of Art. 217 of the Revised Penal Code. Danny

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violated the Anti-Fencing Law. He is in possession of an item which is the subject of thievery. P.D. No. 1612 (Anti-Fencing Law) under Section 5 provides that mere possession of any good, article, item, object or any thing of value which has been the subject of robbery or thievery shall be prima facie, evidence of fencing. Jules is guilty of carnapping. He took the motor vehicle belonging to another without the latter's consent. (R.A. No. 6539) What, if any, are their respective civil liabilities? Explain. (5%) SUGGESTED ANSWER: Allan is under obligation to restitute the vehicle or make reparation if not possible. Jules must pay the amount he gained from the sale of the car which is P20,000.00. Danny must make reparation corresponding to the value of the car which is P800,000.00. Malversation; Properties; Custodia Legis (2001) Accused Juan Santos, a deputy sheriff in a Regional Trial Court, levied on the personal properties of a defendant in a civil case before said court, pursuant to a writ of execution duly issued by the court. Among the properties levied upon and deposited inside the "evidence room" of the Clerk of Court for Multiple RTC Salas were a refrigerator, a stock of cassette tapes, a dining table set of chairs and several lampshades. Upon the defendant's paying off the judgment creditor, he tried to claim his properties but found out that several items were missing, such as the cassette tapes, chairs and lampshades. After due and diligent sleuthing by the police detectives assigned to the case, these missing items were found in the house of accused Santos, who reasoned out that he only borrowed them temporarily. If you were the fiscal /prosecutor, what would be the nature of the information to be filed against the accused? Why? (5%) SUGGESTED ANSWER: If I were the fiscal/prosecutor, I would file an information for Malversation against Juan Santos for the cassette tapes, chain and lampshades which he, as deputy sheriff, levied upon and thus under his accountability as a public officer. Said properties being under levy, are in custodia legis and thus impressed with the character of public property, misappropriation of which constitutes the crime of malversation although said properties belonged to a private individual (Art. 222, RPC). Juan Santos misappropriated such properties when, in breach of trust, he applied them to his own private use and benefit. His allegation that he only borrowed such properties is a lame excuse, devoid of merit as there is no one from whom he borrowed the same. The fact that it was only "after due and diligent sleuthing by the police detectives assigned to the case", that the missing items were found in the house of Santos, negates his pretension.

constitute Malversation but Theft, as there was taking with intent to gain, of personal property of another without the consent of the latter. Malversation; Technical Malversation (1996) Elizabeth is the municipal treasurer of Masinloc, Zambales. On January 10, 1994, she received, as municipal treasurer, from the Department of Public Works and Highways, the amount of P100,000.00 known as the fund for construction, rehabilitation, betterment, and Improvement (CRBI) for the concreting of Barangay Phanix Road located in Masinloc, Zambales, a project undertaken on proposal of the Barangay Captain. Informed that the fund was already exhausted while the concreting of Barangay Phanix Road remained unfinished, a representative of the Commission on Audit conducted a spot audit of Elizabeth who failed to account for the Pl00,000 CRBI fund. Elizabeth, who was charged with malversation of public funds, was acquitted by the Sandiganbayan of that charge but was nevertheless convicted, in the same criminal case, for illegal use of public funds. On appeal, Elizabeth argued that her conviction was erroneous as she applied the amount of P50,000.00 for a public purpose without violating any law or ordinance appropriating the said amount for any specific purpose. The absence of such law or ordinance was, in fact, established. Is the contention of Elizabeth legally tenable? Explain. SUGGESTED ANSWER: Elizabeth's contention that her conviction for illegal use of public funds (technical malversation) was erroneous, is legally tenable because she was charged for malversation of public funds under Art. 217 of the Revised Penal Code but was convicted for Illegal use of public funds which is defined and punished under Art. 220 of said Code. A public officer charged with malversation may not be validly convicted of illegal use of public funds (technical malversation) because the latter crime is not necessarily included nor does it necessarily include the crime of malversation. The Sandiganbayan should have followed the procedure provided in Sec. 11, Rule 119 of the Rules of Court and order the filing of the proper Information. (Parungao us. Sandiganbayan. 197 SCRA 173.) From the facts, there is no showing that there is a law or ordinance appropriating the amount to a specific public purpose. As a matter of fact, the problem categorically states that the absence of such law or ordinance was, in fact, established." So, procedurally and substantially , the Sandiganbayan's decision suffers from serious Infirmity.

Article 218. accounts

Failure of accountable officer to render

ALTERNATIVE ANSWER: An information for Theft may be filed, considering that the sheriff had already deposited the properties levied upon in the "evidence room" of the Clerk of Court and may have already been relieved of his accountability therefor. If Juan Santos was no longer the public officer who should be accountable for the properties levied upon and found in his house, his taking of such properties would no longer

Elements:

1. 2. 3.

Offender is public officer, whether in the service or separated therefrom by resignation or any other cause; He is an accountable officer for public funds or property; He is required by law or regulation to render account to C2005 Criminal Law 2 Reviewer

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4.

 



the Commission on Audit, or to a provincial auditor; He fails to do so for a period of two months after such accounts should be rendered. Demand for accounting not necessary, it is sufficient that there is a law or regulation requiring him to render account. The reason for this law is the enforcement by penal provision the performance of the duty incumbent upon every public employee who handles government funds to render an account of all he receives of has in his charge by reason of his employment. Misappropriation not necessary.

Article 219. Failure of accountable officer to render accounts before leaving the country

malversation, the public fund or property is applied to personal use.

Article 221. Failure to make delivery of public funds or property

Acts punishable:

1.

Failing to make payment by a public officer who is under obligation to make such payment from government funds in his possession;

2.

Refusing to make delivery by a public officer who has been ordered by competent authority to deliver any property in his custody or under his administration.

Elements: Elements of failure to make payment: 1. 2. 3.

Offender is a public officer; He is an accountable officer for public funds or property; He unlawfully leaves or attempts to leave the Philippine Islands without securing a certificate from the Commission on Audit showing that his accounts have been finally settled.

Article 220. Illegal use of public funds or property (TECHNICAL MALVERSATION)

1.

Public officer has government funds in his possession;

2.

He is under obligation to make payment from such funds;

3.

He fails to make the payment maliciously.



Refusal to make delivery of property must be malicious

Elements:

Article 222. provisions

1. 2.

1.

3. 4.

 

Offender is a public officer; There are public funds or property under his administration; Such fund or property were appropriated by law or ordinance; He applies such public fund or property to any public use other than for which it was appropriated for. Also known as technical malversation Illegal use of public funds or property distinguished from malversation: 1. Offenders in both crimes are public officers 2. In Illegal use, the public officer does not derive personal gain of profit,; In malversation, the offender in certain cases profits 3. In Illegal use, the public fund or property is applied to another public use; In

2.

 

Officers included in the preceding

private individuals who, in any capacity whatever, have charge of any national, provincial or municipal funds, revenues, or property any administrator or depository of funds or property attached, seized or deposited by public authority, even if such property belongs to a private individual. Judicial administrator (of estate of deceased) not covered, conversion of effects makes him liable for estafa. Private property is included provided it is attached, seized or deposited by public authority.

Campomanes v. People (2006)

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As gleaned from the parties’ stipulation of facts, the PSC and the FIDE entered here into a contract requiring the PSC to provide the FIDE the funds for the latter to organize the Chess Olympiad and Congress in Manila. The PSC delivered the funds to the FIDE, which apparently successfully organized the Chess Olympiad and Congress since the PSC does not claim that the FIDE failed to organize the two events. In short, the FIDE complied with its undertaking under the contract.

There is no claim by the PSC or the COA that the FIDE, a foreign nongovernmental entity, is obligated under the contract to render an accounting.

There is also no showing that the PSC’s charter or any law or regulation requires the FIDE to render an accounting to the PSC or the COA as a condition for the receipt of funds. Clearly, this situation cannot give rise to criminal liability on the part of the FIDE’s officers under Article 222 of the Revised Penal Code which admittedly requires that there must be a “law or regulation” requiring the rendering of accounts by private individuals.

Article 223. Conniving with or consenting to evasion

1. 2. 3. 4.

Offender is a public officer; He had in his custody or charge a prisoner, either detention prisoner or prisoner by final judgment; Such prisoner escaped from his custody; He was in connivance with the prisoner in the latter’s escape.

Classes of prisoners involved:

1. 2.

  

If the fugitive has been sentenced by final judgment to any penalty; If the fugitive is held only as detention prisoner for any crime or violation of law or municipal ordinance. Release of detention prisoner who could not be delivered to the judicial authority within the time fixed by law is not infidelity in the custody of the prisoner Leniency or laxity is not infidelity. Relaxation of imprisonment is considered infidelity.

Article 224. Evasion through negligence

Elements:

1.

Offender is a public officer;

2. 3.    

He is charged with the conveyance or custody of a prisoner or prisoner by final judgment; Such prisoner escapes through negligence. Detention prisoners included Only the positive carelessness that is short of deliberate non-performance of his duties as guard that is the gravamen of the crime under Art 224. The fact that the public officer recaptured the escaped prisoner does not afford complete exculpation. Liability of escaping prisoner: 1. If serving sentence by reason of final judgmentevasion of service under Art 157 2. If detention prisoner, no criminal liability.

Rodillas vs. Sandiganbayan

Rodillas was a Patrolman when he was directed by his superior, to escort prisoners to face trial. While waiting for the arrival of the judge, Pat. Andres, a relative of the husband of detention prisoner Zenaida, approached the accused and requested the latter if he could permit Zenaida to talk to her husband. The accused consented and Zenaida had a short talk with her husband. He consented to the request that they eat at the canteen. While eating, the husband of Zenaida asked accused if he could accompany his wife to the comfort room as she was not feeling well and felt like defecating. The accused accompanied Zenaida and a lady companion to the ladies' comfort room. Zenaida and her lady companion entered the comfort room, while he stood guard near the ladies' comfort room facing the door. Not long after, the lady companion of Zenaida came out of the comfort room and told him that she was going to buy sanitary napkins for Zenaida. After ten minutes elapsed without the lady companion of Zenaida coming back, the accused became suspicious and entered the comfort room. To his surprise, he found Zenaida no longer inside the comfort room. He immediately went out to look for the escapee inside the building but they were not able to see her. Accused was unable to recapture Zenaida. Was the Sandiganbayan correct in holding the petitioner guilty of infidelity in the custody of a prisoner through negligence penalized under Art. 224?

HELD: Yes. The only disputed issue is the petitioner's negligence resulting in the escape of detention prisoner Zenaida Andres. The negligence referred to in the Revised Penal Code is such definite laxity as all but amounts to a deliberate non-performance of duty on the part of the guard. It is evident from the records that the petitioner acted negligently and beyond the scope of his authority when he permitted his charge to create the situation which led to her escape. The petitioner contends that human considerations compelled him to grant Zenaida Andres' requests to take lunch and to go to the comfort room to relieve herself. As a police officer who was charged with the duty to return the prisoner directly to jail, the deviation from his duty was clearly a violation of the regulations. It is the duty of any police officer having custody of a prisoner to take necessary precautions to assure the absence of any means of escape. A failure to undertake these precautions will make his act one of definite laxity or negligence amounting to deliberate non-performance of duty. His tolerance of arrangements whereby the prisoner and her companions could plan and make good her escape should have aroused the suspicion of a person of ordinary prudence.

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Article 225. Escape of prisoner under the custody of a person not a public officer

Elements:

A has custody over B. Even if B returned to the municipal Jail at 8:30 p.m. A, as custodian of the prisoner, has maliciously failed to perform the duties of his office, and when he permits said prisoner to obtain a relaxation of his imprisonment, he consents to the prisoner escaping the punishment of being deprived of his liberty which can be considered real and actual evasion of service under Article 223 of the Revised Penal Code (People vs. Leon Bandino 29 Phil 459). ALTERNATIVE ANSWER:

1. 2. 3. 4.



Offender is a private person; The conveyance or custody of a prisoner or person under arrest is confided to him; The prisoner or person under arrest escapes; Offender consents to the escape, or that the escape takes place through his negligence. Inapplicable if the private person is the one who made the arrest and he consented to the escape of the person he arrested

Bar Questions Public Officers; Infidelity in Custody of Prisoners (1996) A chief of police of a municipality, believing in good faith that a prisoner serving a ten-day sentence in the municipal jail, would not escape, allowed said prisoner to sleep at the latter's house because the municipal Jail was so congested and there was no bed space available. Accordingly, the prisoner went home to sleep every night but returned to jail early each morning, until the ten-day sentence had been fully served. Did the Chief of Police commit any crime? Explain. SUGGESTED ANSWER: The Chief of Police is guilty of violation of Art. 223, RPC, consenting or conniving to evasion, the elements of which are (a) he is a public officer, (b) he is in charge or custody of a prisoner, detention or prisoner by final judgment, (c) that the prisoner escaped, and (d) there must be connivance. Relaxation of a prisoner is considered infidelity, thus making the penalty ineffectual; although the convict may not have fled (US vs. Bandino, 9 Phil. 459) it is still violative of the provision. It also includes a case when the guard allowed the prisoner, who is serving a six-day sentence in the municipal Jail, to sleep in his house and eat there (People vs. Revilla). Public Officers; Infidelity in Custody of Prisoners (1997) During a town fiesta. A, the chief of police, permitted B, a detention prisoner and his compadre, to leave the municipal jail and entertain visitors in his house from 10:00 a.m. to 8:00 p.m. B returned to the municipal jail at 8:30 p.m. Was there any crime committed by A?

No crime was committed by the Chief of Police. It was only an act of leniency or laxity in the performance of his duty and not in excess of his duty (People vs. Evangelista (CA) 38 O.G. 158).

Article 226. Removal, concealment, or destruction of documents

Elements:

1. 2. 3. 4.

    

  

SUGGESTED ANSWER: Yes, A committed the crime of infidelity in the custody of a prisoner. Since B is a detention prisoner. As Chief of Police,



Offender is a public officer; He abstracts, destroys or conceals a document or papers; Said document or papers should have been entrusted to such public officer by reason of his office; Damage, whether serious or not, to a third party or to the public interest has been caused. Public officer must be officially entrusted with the documents or papers Documents must be complete and one by which a right could be established or an obligation could be extinguished Books, periodicals and pamphlets not documents Papers include checks, promissory notes and paper money Infidelity in the custody of the document distinguished from malversation and falsification: When the postmaster received money orders, signed the signatures of the payees, collected and appropriated the respective amounts thereof, the postmaster is guilty of malversation and falsification, the latter crime having been committed the malversation. But when the postmaster receives letters or envelopes containing money orders for transmission and the money orders are not sent to the addressees, the postmaster cashing the same for his own benefit, he is guilty of infidelity in the custody of papers. Money bills received as court exhibits are papers. Acts punishable: removing, destroying, concealing, documents or papers officially entrusted to the offending public officer. It is not necessary that the act of removal must be coupled with proof of intention to conceal. Accordingly, removal, destruction and concealment are distinct modes of committing the offense. The removal is for a illicit purpose when offender intends to (1) tamper with it or (2) profit with it of (3) commit an C2005 Criminal Law 2 Reviewer

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   

act constituting a breach of trust in the official care thereof. The crime of removal of public documents in breach of official trust is consummated upon its removal from its usual place in the office. Infidelity in the custody of document by destroying or concealing it does not require proof of illicit purpose. Delivering document to the wrong party is infidelity in the custody thereof. There must be damage, great or small, which may consist in mere alarm to the public or alienation of its confidence in any branch of government service.

  

Closed documents must be entrusted to the custody of the accused by reason of his office Damage or intent to cause damage not an element If public officer broke a seal in opening closed papers, what is the offense? Breaking the seal, because Article 228 requires that the officer must “not be included in the provisions of the next preceding article”.

Article 229. Revelation of secrets by an officer

Acts punishable: Article 227. Officer breaking seal 1. Elements:

1. 2. 3. 4.

Revealing any secrets known to the offending public officer by reason of his official capacity;

Elements

Offender is a public officer; He is charged with the custody of papers or property; These papers or property are sealed by proper authority; He breaks the seal or permits them to be broken.

1. 2. 3.

  

It is the breaking of the seals, not opening of closed envelope that is punishable under the Article. Damage or intent to cause damage is not necessary. Distinction between infidelity and theft 1. There is infidelity if the offender opened the letter but did not take the same. 2. There is theft if there is intent to gain when the offender took the money.

4.

 

 Note that he document must be complete in legal sense. If the writings are mere form, there is no crime.

2.

Offender is a public officer; He knows of a secret by reason of his official capacity; He reveals such secret without authority or justifiable reasons; Damage, great or small, is caused to the public interest.

Secret must affect public interest Espionage not contemplated here as this article punishes minor official betrayals, infidelities of little consequence, affecting usually the administration of justice, executive or official duties, or the general interest of the public order Secrets of private persons not included Delivering wrongfully papers or copies of papers of which he may have charge and which should not be published.

Elements:

Article 228. Opening of closed documents

1. 2. 3.

Elements:

1. 2. 3. 4. 

4.

Offender is a public officer; Any closed papers, documents, or object are entrusted to his custody; He opens or permits to be opened said closed papers, documents or objects; He does not have proper authority. Custody means a guarding or keeping safe

5. 6.

 

Offender officer; be published;

is

a

public

He has charge of papers; Those papers should not

He delivers those papers or copies thereof to a third person; The delivery is wrongful; Damage is caused to public interest.

Offender must have charge of papers or its copies Distinguish from infidelity in the custody of documents or papers by removing the same: If the papers contain secrets and therefore should not be published, and the C2005 Criminal Law 2 Reviewer

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public officer having charge removes it and delivers them wrongfully to a third person the crime is revelation of secrets by a public officer. If papers do not contain secrets, the removal for an illicit purpose is infidelity in the custody of documents.

5.

Offender disobeys his superior despite the disapproval of the suspension.



This article does not apply if the order of the superior is illegal.

Article 230. Public officer revealing secrets of private individual

Article 233. Refusal of assistance

Elements:

1. 2.

1.

Offender is a public officer;

2.

He knows of the secrets of a private individual by reason of his office;

3.

He reveals such secrets without authority or justifiable reason.

3.

Offender

is

a

public

officer;

A competent authority demands from the offender that he lend his cooperation towards the administration of justice or other public service; Offender fails to do so maliciously.



Damage to public interest or to a third party is essential.

  

Revelation to one person is sufficient, public revelation not required When the offender is an attorney at law or solicitor Art 230 is not applicable but Art 209. Damage to private person not necessary since the reason of the provision is to uphold faith and trust in the public service

Article 234. Refusal to discharge elective office

1. 2. 3.

Article 231. Open disobedience  1. 2. 3. 4.

Officer is a judicial or executive officer; There is a judgment, decision or order of a superior authority; Such judgment, decision or order was made within the scope of the jurisdiction of the superior authority and issued with all the legal formalities; He, without any legal justification, openly refuses to execute the said judgment, decision or order, which he is duty bound to obey.



Offender is elected by popular election to a public office; He refuses to be sworn in or to discharge the duties of said office; There is no legal motive for such refusal to be sworn in or to discharge the duties of said office. The reason is that once an individual is elected to an office by the will of the people, the discharge of the duties of said office becomes a matter of duty. Not applicable to appointive officers

Article 235. Maltreatment of prisoners

Elements: Article 232. Disobedience to order of superior officer, when said order was suspended by inferior officer

1. 2. 3. 4.

Offender is a public officer; An order is issued by his superior for execution; He has for any reason suspended the execution of such order; His superior disapproves the suspension of the execution of the order;

1. 2. 3.

Offender is a public officer or employee; He has under his charge a prisoner or detention prisoner; He maltreats such prisoner in either of the following manners: a.

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Article 238. Abandonment of office or position

b.

   



(1)

By the imposition of punishment authorized by the regulations; or

not

(2)

By inflicting such punishments (those authorized) in a cruel and humiliating manner; or

By maltreating such prisoners to extort a confession or to obtain some information from the prisoner.

Public officer must have actual charge of the prisoner Offended party must be convict or detention prisoner To be a detention prisoner, the arrested person must be in jail even for a short while. The maltreatment must (1) relate to the correction or handling of the prisoner or (2) be for the purpose of extorting a confession or of obtaining some information from the prisoner. Offender may also be liable for physical injuries or damage caused

1. 2. 3. 4.

Offender is a public officer; He formally resigns from his position; His resignation has not yet been accepted; He abandons his office to the detriment of the public service.



There must be a written or formal resignation, verbal statement is not allowed The offense is qualified when the abandonment was for the purpose to evade the discharge of duties of preventing, prosecuting, or punishing any of the crimes of (1) treason, (2) conspiracy and proposal to commit treason, (3) misprision of treason, (4) espionage, (5) inciting to war or giving motives for reprisal, (6) violation of neutrality, (7) correspondence with hostile country, (8) flight to enemy country, (9) piracy and mutiny, (10) rebellion, (11) coup d’ etat, (12) conspiracy and proposal to commit coup d’ etat or rebellion, (13) disloyalty of public officers, (14) inciting to rebellion, (15) sedition, (16) conspiracy to commit sedition and (17) inciting to sedition. Art 238 distinguished from Art. 208: 1. Art. 238 is committed by any public officer while in Art 208 is committed by public officers who have the duty to institute prosecution for the punishment and violation of the law 2. Art. 238 , public officer abandons office to evade the discharge of duty, in Art 208, the public officer does not abandon his office but fails to prosecute an offense by dereliction of duty or malicious tolerance of the commission of the offense.

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Article 236. Anticipation of duties of a public office

1. 2. 3. 4.

Offender is entitled to hold a public office or employment, either by election or appointment; The law requires that he should first be sworn in and/or should first give a bond; He assumes the performance of the duties and powers of such office; He has not taken his oath of office and/or given the bond required by law.

Article 237. powers

1. 2. 3.

1.

Article 239. Usurpation of legislative powers

1. 2.

Prolonging performance of duties and

Offender is holding a public office; The period provided by law, regulations or special provision for holding such office, has already expired; He continues to exercise the duties and powers of such office. A public officer who has been suspended, separated, declared overaged or dismissed cannot continue to perform the duties of his office.

Offender is an executive or judicial officer; He (a) makes general rules or regulations beyond the scope of his authority or (b) attempts to repeal a law or (c) suspends the execution thereof.

Article 240. Usurpation of executive functions

1. 2.

Offender is a judge; He (a) assumes a power pertaining to the executive authorities, or (b) obstructs the executive authorities in the lawful exercise of their powers.

1.

Legislative officers not liable

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Article 241. Usurpation of judicial functions

1. 2.

2.

Offender is an officer of the executive branch of the government; He (a) assumes judicial powers, or (b) obstructs the execution of any order or decision rendered by any judge within his jurisdiction. Arts 239-241 punish interference by the officers of one of the three branches of government with functions of officers in another department. The purpose is to maintain the separation and independence of the three departments.

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Article 245. Abuses against chastity

Acts punishable:

1.

2. Article 242. Disobeying request for disqualification

1. 2. 3. 4. 5.

Offender is a public officer; A proceeding is pending before such public officer; There is a question brought before the proper authority regarding his jurisdiction, which is not yet decided; He has been lawfully required to refrain form continuing the proceeding; He continues the proceeding.

Article 243. Orders or requests by executive officers to any judicial authority

1. 2. 3.

 

3.

1. 2. 3.

   

Article 244. Unlawful appointments (Art. 244)

1. 2. 3. 4.

Offender is a public officer; He nominates or appoints a person to a public office; Such person lacks the legal qualifications therefore; Offender knows that his nominee or appointee lacks the qualification at the time he made the nomination or appointment.

Soliciting or making immoral or indecent advances to a woman interested in matters pending before the offending officer for decision, or with respect to which he is required to submit a report to or consult with a superior officer; Soliciting or making immoral or indecent advances to a woman under the offender’s custody; Soliciting or making immoral or indecent advances to the wife, daughter, sister or relative within the same degree by affinity of any person in the custody of the offending warden or officer.

Elements:

Offender is an executive officer; He addresses any order or suggestion to any judicial authority; The order or suggestion relates to any case or business coming within the exclusive jurisdiction of the courts of justice. Purpose is to maintain independence of the judiciary Legislative or judicial officers not liable

Nominate is different from recommend. Recommending, knowing that the person recommended has no qualification, is not a crime.



Offender is a public officer; He solicits or makes immoral or indecent advances to a woman; Such woman is a. interested in matters pending before the offender for decision, or with respect to which he is required to submit a report to or consult with a superior officer; or b. under the custody of the offender who is a warden or other public officer directly charged with the care and custody of prisoners or persons under arrest; or c. the wife, daughter, sister or relative within the same degree by affinity of the person in the custody of the offender. Solicit is to propose earnestly and persistently something unchaste and immoral to a woman. Advances must be immoral or indecent Consummated by mere proposal Proof of solicitation not necessary when there is sexual intercourse Mother of the person in the custody of the offender not included.

Title Eight CRIMES AGAINST PERSONS

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Chapter Three – RAPE Chapter One. DESTRUCTION OF LIFE Article 266-A. Rape, When and How committed Article 266-B. Penalties

Section One – Parricide, murder, homicide Article 246. Parricide

Article 266-C. Effect of pardon

Article 247. Death or physical injuries under exceptional circumstances

Article 266-D. Presumptions

Article 248. Murder Article 249. Homicide Article 250. Penalty for frustrated parricide, murder or homicide Article 251. Death caused in a tumultuous affray

Article 246. Parricide

Elements:

Article 252. Physical injuries inflicted in a tumultuous affray Article 253. Giving assistance to suicide Article 254. Discharge of firearms

1. 2. 3.

A person is killed; The deceased is killed by the accused; The deceased is the father, mother, or child, whether legitimate or illegitimate; or a legitimate other ascendant or other descendant, or the legitimate spouse, of the accused.



Relationship of the offender with the victim is an essential element of this crime. GENERAL RULE: only relatives by blood and in the direct line are considered in parricide. EXCEPTION: spouse The father, mother or child may be legitimate or illegitimate. However, the other ascendants or descendants must be legitimate. The spouse must be legitimate. The best proof of the relationship is the marriage certificate. Relationship must be alleged in order that the accused may be convicted of parricide. If not alleged, relationship must be considered as an aggravating circumstance. If a person wanted to kill a stranger but killed his own father by mistake, is this parricide? YES, but Art. 49 applies as regards the proper penalty to be imposed. If a person killed another, not knowing that the latter was his son, will he be guilty of parricide? YES, because the law does not require knowledge of relationship between them. A stranger who cooperates and takes part in the commission of the crime of parricide is not guilty of parricide, but only homicide or murder, as the case may be.

Section Two – Infanticide and Abortion Article 255. Infanticide Article 256. Intentional Abortion Article 257. Unintentional Abortion Article 258. Abortion practiced by the woman herself or by her parents Article 259. Abortion practiced by a physician or midwife and dispensing of abortives

 

 

Section Three – Duel Article 260. Responsibility of participants in a duel Article 261. Challenging to a duel



 Chapter Two – PHYSICAL INJURIES

Article 262. Mutilation Article 263. Serious physical injuries



Article 264. Administering injurious substances or beverages Article 265. Less serious physical injuries Article 266. Slight physical injuries and maltreatment

People vs. Jumawan

Presentacion Jumawan, her father and two brothers conspired to kill Presentacion’s husband Rodolfo in a store near the public market.

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The fiscal filed an information for murder against the four accused and they were subsequently convicted for such crime.

HELD: Since Presentacion’s relationship to the victim is not alleged in the information, she can be convicted of murder only. Relationship can be appreciated as generic aggravating circumstance only.

Accused was convicted of parricide. She however appeals saying that the crime she committed is not parricide but only homicide since there was no proof of marriage between her and the victim. HELD: Guilty of parricide. The phrase “whether legitimate or illegitimate” in the law just refers to children and not to spouses who must therefore be legitimate. In CAB, accused declared in open court that they were husband and wife. And even without this, there is a presumption in law that persons deporting themselves as husband and wife have entered into a lawful marriage without proof to the contrary.

People vs. Tomotorgo People vs. Genosa Julian Tomotorgo hit his wife with a piece of wood, after the latter tried to leave their conjugal home. Although Julian stopped the beating when his wife complained of chest pains, the wife succumbed to the serious injuries. Julian was convicted of parricide but he claims that he should be sentenced to the penalty corresponding to serious physical injuires only, the offense which he intended to commit.

HELD: The fact that the accused intended to maltreat the victim or inflict physical injuries DOES NOT exempt him from liability for the resulting and more serious crime committed. He is only entitled to the mitigating circumstance of lack of intent to commit so grave a wrong.

Accused wife here was convicted parricide for the killing her husband and was sentenced to death. Accused asks for a reopening of the case in order to prove her state of mind during the killing in as she says that she is a battered wife (battered wife syndrome). HELD: Case should be remanded for the psychological examination. If accused can prove that she indeed was a battered wife, this may be raised as a valid defense as a species of self-defense. Having been proven to be a victim of domestic violence of the husband. This can be self defense because since the wife already always assumes, and correctly that the husband will beat her up again, she may be justified in taking steps to protect herself. And since there is the fear of an impending beating again in the mind of the wife, she would have no opportunity beforehand to choose means to protect herself other than to injure and/ or kill the husband. The psychological examination can prove how the accused perceived danger and how, in her honest belief, she believed that danger to herself was imminent (as one of the elements of self-defense).

People vs. Malabago (1996) Bar Questions After an argument, Pedro Malabago fatally hacked and struck his wife with a bolo. He was found guilty beyond reasonable doubt of the crime of PARRICIDE.

HELD: Parricide is committed when: (1) a person is killed; (2) the deceased is killed by the accused; (3) the deceased is the father, mother, or child, whether legitimate or illegitimate, or a legitimate other ascendant or other descendant, or the legitimate spouse of the accused.

The key element in parricide is the relationship of the offender with the victim. In the case of parricide of a spouse, the best proof of the relationship between the accused and the deceased is the marriage certificate. In the absence thereof, oral evidence of the fact of marriage may be considered by the trial court if such proof is not objected to.

People vs. Ignacio (1997)

Complex Crime; Parricide w/ unintentional abortion (1994) Aldrich was dismissed from his Job by his employer. Upon reaching home, his pregnant wife, Carmi, nagged him about money for her medicines. Depressed by his dismissal and angered by the nagging of his wife, Aldrich struck Carmi with his fist. She fell to the ground. As a result, she and her unborn baby died. What crime was committed by Aldrich? SUGGESTED ANSWER: Aldrich committed the crime of parricide with unintentional abortion. When Aldrich struck his wife, Carmi, with his fist, he committed the crime of maltreatment under Art, 266, par. 3 of the Revised Penal Code, Since Carmi died because of the felonious act of Aldrich, he is criminally liable of parricide under Art. 246, RPC in relation to Art. 4, par. 1 of the same Code. Since the unborn baby of Carmi died in the process, but Aldrich had no intention to cause the abortion of his wife, Aldrich committed unintentional abortion as defined in Art. 257, RPC. Inasmuch as the single act of Aldrich produced two grave or less grave felonies, he falls under Art, 48,

Parricide (1999) Accused wife here was accused of parricide for the killing of her husband by hitting the latter on the nape with a piece of wood.

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parricide? (3%) SUGGESTED ANSWER:

Any person who kills his father, mother, or child, whether legitimate or illegitimate, or his ascendants or descendants, or spouse, shall be guilty of parricide. (Art. 246, RPC) Parricide (1999) In 1975, Pedro, then a resident of Manila, abandoned his wife and their son, Ricky, who was then only three years old. Twenty years later, an affray took place in a bar in Olongapo City between Pedro and his companions, on one hand, and Ricky and his friends, upon the other, without the father and son knowing each other. Ricky stabbed and killed Pedro in the fight, only to find out, a week later, when his mother arrived from Manila to visit him in jail, that the man whom he killed was his own father. 1) What crime did Ricky commit? Explain. 2) Suppose Ricky knew before the killing that Pedro is his father, but he nevertheless killed him out of bitterness for having abandoned him and his mother, what crime did Ricky commit? Explain. SUGGESTED ANSWER:

1) Ricky committed parricide because the person killed was his own father, and the law punishing the crime (Art. 246, RPC) does not require that the crime be "knowingly" committed. Should Ricky be prosecuted and found guilty of parricide, the penalty to be imposed is Art. 49 of the Revised Penal Code for Homicide (the crime he intended to commit) but in its maximum period.

2) The crime committed should be parricide if Ricky knew before the killing that Pedro is his father, because the moral basis for punishing the crime already exists. His having acted out of bitterness for having been abandoned by his father may be considered mitigating. Parricide; Multiple Parricide; Homicide (1997) A, a young housewife, and B, her paramour, conspired to kill C. her husband, to whom she was lawfully married, A and B bought pancit and mixed it with poison. A gave the food with poison to C, but before C could eat it. D, her illegitimate father, and E, her legitimate son, arrived. C. D and E shared the food in the presence of A who merely watched them eating. C, D and E died because of having partaken of the poisoned food. What crime or crimes did A and B commit? SUGGESTED ANSWER:

A committed the crime of multiple parricide for the killing of C, her lawful husband, D, her illegitimate father, and E, her legitimate son. All these killings constitute parricide under Article 246 of the Revised Penal Code because of her relationship with the victims. B committed the crime of murder as a coconspirator of A in the killing of C because the killing was carried out by means of poison (Art. 248. par. 3, Revised Penal Code). But for feloniously causing the death of D and E, B committed two counts of homicide. The plan was only to kill C.

Article 247. Death or physical injuries inflicted under exceptional circumstances

ALTERNATIVE ANSWER:

Ricky should be held criminally liable only for homicide not parricide because the relationship which qualified the killing to parricide is virtually absent for a period of twenty years already, such that Ricky could not possibly be aware that his adversary was his father. In other words, the moral basis for imposing the higher penalty for parricide is absent. SUGGESTED ANSWER:

Requisites for application:

1.

2.

That a legally married person or a parent surprises his spouse or his daughter, the latter under 18 years of age and living with him, in the act of committing sexual intercourse with another person. That he or she kills any or both of them or inflicts upon any or both of them any serious physical injury, in the act or immediately thereafter.

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3.

That he has not promoted or facilitated the prostitution of his wife or daughter, or that he or she has not consented to the infidelity of the other spouse.



Justification for this article: The law considers the spouse or parent as acting in a justified burst of passion. In the case of an accused killing his spouse or his spouse’s paramour, the accused must be a legally married person. However, in the case of a parent killing his/her daughter and/or the man with whom she is having sexual intercourse, the parents need not be legitimate. Does this article apply even if the daughter is married? Although the article does not use the word ‘unmarried’, this article applies only when the daughter is single because while under 18 and single, she is still under parental authority. If she is married, her husband alone can claim the benefits of this article. “Surprise” – to come upon suddenly and unexpectedly The accused must have seen his spouse or daughter in the acts of sexual intercourse with another. (not before, or after sexual intercourse) The killing or inflicting of serious physical injuries must be in the act of sexual intercourse, or immediately thereafter. The killing must be the direct by-product of the accused’s rage. The article does not apply where the wife was not surprised in flagrant adultery but was being abused (raped) by a man. An attack upon the man by the husband will be considered a defense of relative under Article 11 par. 2. When less serious or slight physical injuries are committed, there is no criminal liability. It is an absolutory cause. The penalty of destierro is really not intended as a penalty but to remove the killer spouse from the vicinity and to protect him/her from acts of reprisal principally by relatives of the deceased spouse. Cases where a person who committed parricide is not punished with reclusion perpetua to death: o When parricide is committed through negligence (Art. 365) o When parricide is committed by mistake (Art. 249) o When parricide is committed under exceptional circumstances (Art. 247)







 



 







HELD: Though quite a length of time, about an hour, had passed between the time Abarca caught his wife in sexual intercourse with Koh and the time the latter was actually shot, the shooting must be understood to be the continuation of the pursuit of the victim by Abarca. The RPC, in requiring that the accused “shall kill any of them or both of them…immediately” after surprising his spouse in the act of intercourse, does not say that he should commit the killing instantly thereafter. It only requires that the death caused be the proximate result of the outrage overwhelming the accused after chancing upon the spouse in the basest act of infidelity.

Bar Question Death under Exceptional Circumstances (2001) A and B are husband and wife. A is employed as a security guard at Landmark, his shift being from 11:00 p.m. to 7:00 a.m. One night, he felt sick and cold, hence, he decided to go home around midnight after getting permission from his duty officer. Upon reaching the front yard of his home, he noticed that the light in the master bedroom was on and that the bedroom window was open. Approaching the front door, he was surprised to hear sighs and giggles inside the bedroom. He opened the door very carefully and peeped inside where he saw his wife B having sexual intercourse with their neighbor C. A rushed inside and grabbed C but the latter managed to wrest himself free and jumped out of the window, A followed suit and managed to catch C again and after a furious struggle, managed also to strangle him to death. A then rushed back to his bedroom where his wife B was cowering under the bed covers. Still enraged, A hit B with fist blows and rendered her unconscious. The police arrived after being summoned by their neighbors and arrested A who was detained, inquested and charged for the death of C and serious physical Injuries of B. a) Is A liable for C's death? Why? (5%) b) Is A liable for B's injuries? Why? (5%) SUGGESTED ANSWER: a) Yes, A is liable for C's death but under the exceptional circumstances in Article 247 of the Revised Penal Code, where only destierro is prescribed. Article 247 governs since A surprised his wife B in the act of having sexual intercourse with C, and the killing of C was "Immediately thereafter" as the discovery, escape, pursuit and killing of C form one continuous act. (U.S. vs. Vargas, 2 Phil. 194) b) Likewise, A is liable for the serious physical injuries he inflicted on his wife B but under the same exceptional circumstances in Article 247 of the Revised Penal Code, for the same reasons. Death under Exceptional Circumstances (2005)

People vs. Abarca

Abarca caught his wife in the act of sexual intercourse with Koh. An hour later, Abarca fired several shots at Koh during a mahjongg session. Koh was killed and two others were seriously wounded. Abarca was convicted of Murder and Double Frustrated Murder.

Pete, a security guard, arrived home late one night after rendering overtime. He was shocked to see Flor, his wife, and Benjie, his best friend, completely naked having sexual intercourse. Pete pulled out his service gun and shot and killed Benjie. Pete was charged with murder for the death of Benjie. Pete contended that he acted in defense of his honor and that, therefore, he should be acquitted of the crime. The court found that Benjie died under exceptional circumstances and exonerated Pete of the crime, but sentenced him to destierro, conformably with Article 247 of the Revised Penal Code. The court also ordered Pete to pay indemnity to the heirs of the victim in the amount of

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P50,000.00. (5%) Is the defense of Pete meritorious? Explain.

1. 2. 3.

SUGGESTED ANSWER: No. A person who commits acts penalized under Article 247 of the Revised Penal Code for death or serious physical injuries inflicted under exceptional circumstances is still criminally liable. However, this is merely an exempting circumstance when the victim suffers any other kind of physical injury. In the case at bar, Pete will suffer the penalty of destierro for the death of Benjie.

A person was killed; The accused killed him; The killing was attended by any of the following qualifying circumstances – a.

b. c.

ALTERNATIVE ANSWER: No. Pete did not act in defense of his honor. For this defense to apply under Art. 11, there must be an unlawful aggression which is defined as an attack or material aggression that poses a danger to his life or personal safely. It must be a real aggression characterized by a physical force or with a weapon to cause injury or damage to one's life. (People v. Nahayra, G.R. Nos. 96368-69, October 17, 1991; People v. Housing, G.R. No. 64965, July 18, 1991)

d.

e. f.

Under Article 247 of the Revised Penal Code, is destierro a penalty? Explain. SUGGESTED ANSWER: In the case of People v. Abarca, G.R. No. 74433, September 14, 1987, the Court ruled that Article 247 does not define a felony. However, it went on to state that the penalty is merely banishment of the accused, intended for his protection. Punishment, therefore, is not inflicted on the accused.

4. 



ALTERNATIVE ANSWER: Yes. Article 247 of the Revised Penal Code does not define and provide for a specific crime but grants a privilege or benefit to the accused for the killing of another or the infliction of Serious Physical Injuries. Destierro is a punishment whereby a convict is banished to a certain place and is prohibited from entering or coming near that place designated in the sentence, not less than 25 kms. (People v. Araquel, G.R. No. L-12629, December 9, 1959) Did the court correctly order Pete to pay indemnity despite his exoneration under Article 247 of the Revised Penal Code? Explain.









SUGGESTED ANSWER: Yes, because the privilege defined under this Article exempts the offender from criminal liability but not from civil liability. (People v. Abarca, G.R, No. L-74483, September 14, 1987; Art. 12, Revised Penal Code)

Article 248. Murder



With treachery, taking advantage of superior strength, with the aid or armed men, or employing means to weaken the defense, or of means or persons to insure or afford impunity; In consideration of a price, reward or promise; By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a railroad, fall of an airship, by means of motor vehicles, or with the use of any other means involving great waste and ruin; On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic, or any other public calamity; With evident premeditation; With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse. The killing is not parricide or infanticide.

Murder is the unlawful killing of any person which is not parricide or infanticide, provided any of the qualifying circumstances are present. Murder will exist with only one of the circumstances described in this article. When more than one of the circumstances is present, the others must be considered as generic aggravating. However, when the other circumstances are absorbed or included in one qualifying circumstance, they cannot be considered as generic aggravating. (example: abuse of superior strength is absorbed by treachery) The qualifying circumstance must be alleged, in order to qualify the killing to murder. If not alleged, it is only a generic aggravating circumstance. The offender must have intent to kill to be liable for murder committed by means of fire, poison, explosion etc. Cruelty – when other injuries or wounds are inflicted deliberately by he offender, which are not necessary for the killing of the victim. The victim must be alive when the other injuries or wounds are inflicted. ‘Outraging or scoffing at his person or corpse’ – the only qualifying circumstance which is not mentioned in Article 14 as an aggravating circumstance.  outraging – to commit an extremely vicious or deeply insulting act  scoffing – to jeer, and implies a showing of irreverence

Elements: People v. Mallari, 404 SCRA 170 FACTS: Joseph admonished Rufino and his brothers Ino and Felix Mallari not to drive fast while passing by Joseph's house. Rufino

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and his brothers, who were then hot-tempered, challenged Joseph to a fight. The latter just ignored the challenge; and, instead he and his own brothers Radi and Manny asked apology from Rufino. Later that afternoon, while Joseph and Liza were watching a basketball game at the barangay basketball court, Rufino and his brothers, who were then carrying bladed weapons, arrived and attempted to stab Joseph; but Joseph was able to run away. When they were not able to catch up with him, Rufino boarded and drove the truck parked near the basketball court and continued chasing Joseph until the truck ran over the latter, which caused his instantaneous death. The trial court found Rufino guilty of murder. It ruled that the crime was committed by means of a motor vehicle as a qualifying circumstance.

only beheaded Elsa. He further cut up her body like pieces of meat. Then, he strewed dismembered parts of her body in a deserted road in the countryside, leaving them to rot on the ground. The sight of Elsa's severed body parts on the ground, vividly depicted in the photographs offered in evidence, is both revolting and horrifying. At the same time, the viewer cannot help but feel utter pity for the sub-human manner of disposing of her remains. Hence, the trial court was correct in convicting accused-appellant of the crime of murder, qualified by outraging and scoffing at the victim's person or corpse.

Sabang v. People (2007) HELD: The Court affirmed the trial court's finding that Rufino deliberately bumped Joseph with the truck he was driving. The evidence shows that Rufino deliberately used his truck in pursuing Joseph. Upon catching up with him, Rufino hit him with the truck, as a result of which Joseph died instantly. It is therefore clear that the truck was the means used by Rufino to perpetrate the killing of Joseph. The case of People v. Muñoz cited by Rufino finds no application to the present case. In the said case, the police patrol jeep was merely used by the accused therein in looking for the victim and in carrying the body of the victim to the place where it was dumped. The accused therein shot the victim, which caused the latter's death. In the present case, the truck itself was used to kill the victim by running over him. Under Article 248 of the Revised Penal Code, a person who kills another "by means of a motor vehicle" is guilty of murder. Thus, the use of motor vehicle qualifies the killing to murder.

People v. Pascual (2006)

At any rate, the doctrinal rule is that where the wound inflicted on the victim is not life threatening, the accused not having performed all the acts of execution that would have brought about death, the crime committed is only attempted murder.

People v. Whisenhunt, 386 SCRA 586

The distance from which a shot is fired affects the nature and extent of the injury caused on the victim. In close range fire, the injury is not only due to the missile but also due to the pressure of the expanded gases, flame and other solid products of combustion. In contrast, distant fire usually produces the characteristic effect of the bullet alone. A shot fired from a distance of more than 60 cm or about two (2) feet does not produce the burning, smudging or tattooing typically present in loose contact or near fire, short range fire and medium range fire. Powder burns is a term commonly used by physicians whenever there is blackening of the margin at the entrance of the gunshot wound. The blackening is due to smoke smudging, gunpowder tattooing and, to a certain extent, burning of the wound margin. The fact that there were no powder burns on Butad’s body indicates that the shots were fired at a distance of more than two (2) feet and not at close range as the defense suggests. Moreover, Butad sustained four (4) gunshot wounds, three (3) of which were in the chest area, circumstances which are inconsistent with the defense’s theory of accidental firing Murder & Sec. 25, R.A. No. 9165 (2005) Candido stabbed an innocent bystander who accidentally bumped him. The innocent bystander died as a result of the stabbing. Candido was arrested and was tested to be positive for the use of ―shabu‖ at the time he committed the stabbing. What should be the proper charge against Candido? Explain. (3%) SUGGESTED ANSWER:

FACTS: Whisenhunt and the deceased, Elsa SantosCastillo, were lovers. They met at the Apex Motor Corporation where accused was the Manager while Elsa was the Assistant Personnel Manager. Both accused and Elsa were married, but they were estranged from their respective spouses. Inside his condominium unit, accused Whisenhunt killed Elsa by stabbing her with a knife. He then beheaded her and mutilated her body parts. Thereafter, with the help of Ravelo, the dismembered parts of Elsa’s body were wrapped in three separate black garbage bags. Whisenhunt and Ravelo packed all the garbage bags in another bag with zipper and rollers. The two then drove in Whisenhunt’s car and the garbage bags were eventually thrown on the roadside; and into a river. The trial court found Whisenhun guilty of murder qualified by outraging and scoffing at the victim's person or corpse.

HELD: The mere decapitation of the victim's head constitute outraging or scoffing at the corpse of the victim, thus qualifying the killing to murder. In this case, accused-appellant not

The killing was not attended by any of the qualifying circumstances enumerated under Article 248 of the Revised Penal Code. The killing, however, constitutes murder because the commission of a crime under the influence of prohibited drugs is a qualifying, aggravating circumstance. (Sec. 25, R.A. No. 9165) Murder (1999) The accused, not intending to kill the victim, treacherously shot the victim while the victim was turning his back to him. He aimed at and hit the victim only on the leg. The victim, however, died because of loss of blood. Can the accused be liable for homicide or murder, considering that treachery was clearly involved but there was no attempt to kill? Explain your answer. (3%) SUGGESTED ANSWER:

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The accused is liable for the death of the victim even though he merely aimed and fired at the latter's leg, "not intending to kill the victim", considering that the gunshot was felonious and was the proximate cause of death. An offender is liable for all the direct, natural, and logical consequences of his felonious act although different from what he intended. However, since specific intent to kill is absent, the crime for said death is only homicide and not murder (People vs. Pugay and Samson, 167 SCRA 439)

was walking home late at night. Fidel and Fred forcibly brought Jorge to Zambales where they kept him hog-tied in a small nipa house located in the middle of a rice field. Two days later, they killed Jorge and dumped his body into the river. What crime or crimes did Fidel and Fred commit? Explain. SUGGESTED ANSWER:

The accused is liable for the death of the victim in as much as his act of shooting the victim at the leg is felonious and is the proximate cause of death. A person performing a felonious act is criminally liable for all the direct, natural, and logical consequences of such act although different from what he intended. And since such death was attended by treachery, the same will constitute murder but the accused should be given the benefit of the mitigating circumstance that he did not intend to commit so grave a wrong as that which was committed (Art. 13(3), RPC)

Fidel and Fred committed the crime of Murder under Art 248, RPC, the killing being qualified by evident premeditation. This is due to the long standing grudge entertained by the two accused occasioned by the victim's refusal to marry their sister after impregnating her. In People vs. Alfeche. 219 SCRA 85, the intention of the accused is determinative of the crime committed. Where the intention is to kill the victim and the latter is forcibly taken to another place and later killed, it is murder. There is no indication that the offenders intended to deprive the victim of his liberty. Whereas, if the victim is kidnapped, and taken to another situs and killed as an afterthought, it is kidnapping with homicide under Art. 267, RPC.

Murder; Definition & Elements (1999)

Murder; Homicide; Infanticide; Parricide (1999)

Define murder. What are the elements of the crime? [3%]

A killed: (1) a woman with whom he lived without benefit of clergy, (2) their child who was only two days old, (3) their daughter, and (4) their adopted son. What crime or crimes did A commit? (3%)

ALTERNATIVE ANSWER:

SUGGESTED ANSWER: (a) Murder is the unlawful killing of a person which otherwise would constitute only homicide, had it not been attended by any of the following circumstances: 1. With treachery or taking advantage of superior strength, or with the aid of armed men, or employing means to weaken the defense or of means or persons to insure or afford impunity; 2. In consideration of a price, reward or promise; 3. By means or on the occasion of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a railroad, fall of an airship, or by means of motor vehicles, or with the use of any other means involving great waste and ruin; 4. On occasion of an earthquake, eruption of a volcano, destructive cyclone, epidemic or other public calamity; 5. With evident premeditation; 6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse. SUGGESTED ANSWER: (b) The elements of murder are: (1) that a person was unlawfully killed; (2) that such a killing was attended by any of the above-mentioned circumstances; (3) that the killing is not parricide nor infanticide; and (4) that the accused killed the victim. Murder; Evident Premeditation (1996) Fidel and Fred harbored a long standing grudge against Jorge who refused to marry their sister Lorna, after the latter got pregnant by Jorge. After weeks of surveillance, they finally cornered Jorge in Ermita, Manila, when the latter

SUGGESTED ANSWER: A committed the following crimes: 1.] HOMICIDE or murder as the case may be, for the killing of his common-law wife who is not legally considered a "spouse" 2.] INFANTICIDE for the killing of the child as said child is less than three (3) days old. (Art. 255, RPC) However, the penalty corresponding to parricide shall be imposed since A is related to the child within the degree defined in the crime of parricide. 3.] PARRICIDE for the killing of their daughter, whether legitimate or illegitimate, as long as she is not less than three (3) days old at the time of the killing. 4.] MURDER for the killing of their adopted son as the relationship between A and the said son must be by blood in order for parricide to arise. Murder; Reckles Imprudence (2001) Mang Jose, a septuagenarian, was walking with his ten year old grandson along Paseo de Roxas and decided to cross at the intersection of Makati Avenue but both were hit by a speeding CRV Honda van and were sent sprawling on the pavement a meter apart. The driver, a Chinese mestizo, stopped his car after hitting the two victims but then reversed his gears and ran over Mang Jose's prostrate body anew and third time by advancing his car forward. The grandson suffered broken legs only and survived but Mang Jose suffered multiple fractures and broken ribs, causing his instant death. The driver was arrested and charged with Murder for the death of Mang Jose and Serious Physical Injuries through Reckless Imprudence with respect to the grandson. Are the charges correct? Explain. (5%)

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SUGGESTED ANSWER: Yes, the charges are correct. For deliberately running over Mang Jose's prostrate body after having bumped him and his grandson, the driver indeed committed Murder, qualified by treachery. Said driver's deliberate intent to kill Mang Jose was demonstrated by his running over the latter's body twice, by backing up the van and driving it forward, whereas the victim was helpless and not in a position to defend himself or to retaliate. As to the serious physical injuries sustained by Mang Jose's 10-year old grandson, as a result of having been hit by the speeding vehicle of said driver, the same were the result of reckless imprudence which is punishable as a quasi-offense in Article 365 of the Revised Penal Code. The charge of Reckless Imprudence Resulting to Serious Physical Injuries is correct. The penalty next higher in degree to what ordinarily should be imposed is called for, since the driver did not lend help on the spot, which help he could have given to the victims.

Article 249. Homicide

Murder; Treachery (1995)

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On his way to buy a lotto ticket, a policeman suddenly found himself surrounded by four men. One of them wrestled the police officer to the ground and disarmed him while the other three companions who were armed with a hunting knife, an ice pick, and a balisong, repeatedly stabbed him. The policeman died as a result of the multiple stab wounds inflicted by his assailants. What crime or crimes were committed? Discuss fully. SUGGESTED ANSWER: All the assailants are liable for the crime of murder, qualified by treachery, (which absorbed abuse of superior strength) as the attack was sudden and unexpected and the victim was totally defenseless. Conspiracy is obvious from the concerted acts of the assailants. Direct assault would not complex the crime, as there is no showing that the assailants knew that the victim was a policeman; even if there was knowledge, the fact is that he was not in the performance of his official duties, and therefore there is no direct assault. Murder; Use of Illegal Firearms (2004) PH killed OJ, his political rival in the election campaign for Mayor of their town. The Information against PH alleged that he used an unlicensed firearm in the killing of the victim, and this was proved beyond reasonable doubt by the prosecution. The trial court convicted PH of two crimes: murder and illegal possession of firearms. Is the conviction correct? Reason briefly. (5%) SUGGESTED ANSWER: No, the conviction of PH for two crimes, murder and illegal possession of firearm is not correct. Under the new law on illegal possession of firearms and explosives, Rep. Act No. 8294, a person may only be criminally liable for illegal possession of firearm if no other crime is committed therewith; if a homicide or murder is committed with the use of an unlicensed firearm, such use shall be considered as an aggravating circumstance. PH therefore may only be convicted of murder and the use of an unlicensed firearm in its commission may only be appreciated as a special aggravating circumstance, provided that such use is alleged specifically in the information for Murder.

Elements:

1. 2. 3. 4.

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A person was killed; The accused killed him without any justifying circumstance; The accused had the intention to kill, which is presumed; The killing was not attended by any of the qualifying circumstances of murder, or by that of parricide or infanticide. Intent to kill is conclusively presumed when death resulted. (crime is consummated) Evidence of intent to kill is important only in attempted or frustrated homicide (to differentiate it from physical injuries). In such cases, intent to kill must be proved beyond reasonable doubt. There is no offense of frustrated homicide through imprudence because the element of intent to kill in frustrated homicide is incompatible with negligence or imprudence. Accidental homicide – the death of a person brought about by a lawful act performed with proper care and skill, and without homicidal intent. (example: the death of a boxer following a serious blow in a boxing bout, provided that the rules of boxing had been followed) Corpus delicti – the actual commission of the crime charged, means that the crime was actually committed. In crimes against persons in which death of the victim is an element of the offense, there must be satisfactory proof of the fact of death, and the identity of the victim. When the victim is under 12 years of age, penalty for homicide shall be one degree higher than that imposed by law.

People vs. Buensuceso

Several police officers fired shots at a knife-wielding guy, who later died from the gunshot wounds. The investigation showed that all the four officers actually fired their service pistols but it was not established as to which wound was inflicted by each policeman.

HELD: Where several personas acting independently of each other inflicted wounds on a victim but it cannot be determined which wound was inflicted by each person, all the assailants are liable for the victim’s death.

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People vs. Pugay

Pugay poured gasoline on a 25-year old mental retardate while Samson set the poor guy on fire, killing him in the process. They were both convicted of murder.

HELD: Pugay can only be convicted of Homicide thru reckless imprudence because of his failure to exercise all the diligence necessary to avoid every undesirable consequence arising from any act committed by his companions. Samson is guilty of Homicide although it was not his intention to kill the guy, but he shall be credited with the mitigating circumstance of no intention to commit so grave a wrong.

People vs. Basay (1993)

The two accused here were charged with Multiple Murder and Frustrated Murder with Arson in one information. They were charged with having stabbed people, and to conceal the crime, they burned down the house. The burning of the house then led to the death of another and 3rd degree burns on the lone survivor.

HELD: It was not proper to have consolidated all the charges against the accused in one single complaint. It was proven that 3 victims were hacked and stabbed before the house was burned down. And then when the house was burned down, this led to the death of another person and serious burns on another.

Several separate informations must be filed where the victims were killed by separate acts. 4 crimes were committed here, 3 separate murders under the RPC and arson as punished under sec5 PD1613 (if by reason/ on occasion of the arson, death results, penalty of reclusion perpetua to death imposed). Therefore the information was vulnerable to a motion to quash for being duplicitous.

People vs. Rivera (2006)

An essential element of murder and homicide, whether in their consummated, frustrated or attempted stage, is intent of the offenders to kill the victim immediately before or simultaneously with the infliction of injuries. Intent to kill is a specific intent which the prosecution must prove by direct or circumstantial evidence, while general criminal intent is presumed from the commission of a felony by dolo.

Bar questions Complex Crime; Homicide w/ Assault Authority (1995) Pascual operated a rice thresher in Barangay Napnud where

he resided. Renato, a resident of the neighboring Barangay Guihaman, also operated a mobile rice thresher which he often brought to Barangay Napnud to thresh the palay of the farmers there. This was bitterly resented by Pascual, One afternoon Pascual, and his two sons confronted Renato and his men who were operating their mobile rice thresher along a feeder road in Napnud. A heated argument ensued. A barangay captain who was fetched by one of Pascual's men tried to appease Pascual and Renato to prevent a violent confrontation. However, Pascual resented the intervention of the barangay captain and hacked him to death. What crime was committed by Pascual? Discuss fully. SUGGESTED ANSWER: Pascual committed the complex crime of homicide with assault upon a person in authority (Arts. 148 and 249 in relation to Art, 48, RPC). A barangay chairman, is in law (Art. 152), a person in authority and if he is attacked while in the performance of his official duties or on the occasion thereof the felony of direct assault is committed. Art. 48, RPC, on the other hand, provides that if a single act produces two or more grave or less grave felonies, a complex crime is committed. Here, the single act of the offender in hacking the victim to death resulted in two felonies, homicide which is grave and direct assault which is less grave. Homicide; Fraustrated; Physical Injuries (1994) At about 11:00 in the evening, Dante forced his way inside the house of Mamerto. Jay, Mamerto's son, saw Dante and accosted him, Dante pulled a knife and stabbed Jay on his abdomen. Mamerto heard the commotion and went out of his room. Dante, who was about to escape, assaulted Mamerto. Jay suffered injuries which, were it not for the timely medical attendance, would have caused his death. Mamerto sustained Injuries that incapacitated him for 25 days. What crime or crimes did Dante commit? SUGGESTED ANSWER: Dante committed qualified trespass to dwelling, frustrated homicide for the stabbing of Jay, and less serious physical injuries for the assault on Mamerto. The crime of qualified trespass to dwelling should not be complexed with frustrated homicide ... Dante committed frustrated homicide for the stabbing of Jay because he had already performed all the acts of execution which would have produced the intended felony of homicide were it not for causes independent of the act of Dante. Dante had the intent to kill judging from the weapon used, the manner of committing the crime and the part of the body stabbed. Dante is guilty of less serious physical injuries for the wounds sustained by Mamerto. There appears to be no intent to kill because Dante merely assaulted Mamerto without using the knife.

Article 250. Penalty for frustrated parricide, murder or homicide

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penalty lower by one degree than that imposed under Article 50. Article 50 provides that the penalty next lower in degree than that prescribed by law for the consummated felony shall be imposed upon the principal in a frustrated felony. Thus, under Article 250, the court can impose a penalty of TWO DEGREES LOWER for frustrated parricide, murder or homicide. For attempted parricide, homicide or murder, the courts, in view of the facts of the case, may impose a penalty lower by one degree than that imposed under Article 51. Article 51 provides that the penalty lower by two degrees than that prescribed by law for the consummated felony shall be imposed upon the principal in a attempted felony. Thus, under Article 250, the court can impose a penalty of THREE DEGREES LOWER for attempted parricide, murder or homicide. Note however that any attempt on, or conspire against, the life of the Chief Executive of the Philippines or that of any member of his family, or against the life of any member of his cabinet or that of any member of the latter’s family, shall suffer the penalty of DEATH.

Article 251. Death caused in a tumultuous affray

Elements:

1. 2. 3. 4. 5. 6.

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There are several persons; They do not compose groups organized for the common purpose of assaulting and attacking each other reciprocally; These several persons quarreled and assaulted one another in a confused and tumultuous manner; Someone was killed in the course of the affray; It can not be ascertained who actually killed the deceased; The person or persons who inflicted serious physical injuries or who used violence can be identified. Tumultuous affray exists when at least four persons take part. The word ‘tumultuous’ as used in Article 153 means that the disturbance is caused by more than three persons who are armed or are provided with means of violence. When there are two identified groups of men who assaulted each other, then there is no tumultuous affray. The person killed in the course of the affray need not be one of the participants in the affray. Who are liable? a. the person or persons who inflicted the serious physical injuries

b.

if it is not known who inflicted the serious physical injuries on the deceased, all the persons who used violence upon the person of the victim are liable, but with lesser liability.

People v. Unlagada, 389 SCRA 224 FACTS: At around 9:00 o'clock in the evening Laurel left his house together with his visitor, Selda, to attend a public dance. Two hours later, Danilo asked Edwin to take a short break from dancing to attend to their personal necessities outside the dance hall. Once outside, they decided to have a drink and bought 2 bottles of beer at a nearby store. Not long after, Daniloleft to look for a place to relieve himself. While Danilo was relieving himself, Unlagada approached Danilo and stabbed him at the side. Danilo retaliated by striking his assailant with a half-filled bottle of beer. Almost simultaneously, a group of men numbering about seven 7, ganged up on Danilo and hit him with assorted weapons, i.e., bamboo poles, stones and pieces of wood. Danilo died before he could be given any medical assistance. Unlagada was convicted by the RTC. He claims the trial court erred in convicting him of murder and not "death in a tumultuous affray." under Art. 251 of The Revised Penal Code.

HELD: A tumultuous affray takes place when a quarrel occurs between several persons who engage in a confused and tumultuous manner, in the course of which a person is killed or wounded and the author thereof cannot be ascertained. The quarrel in the instant case is between a distinct group of individuals, one of whom was sufficiently identified as the principal author of the killing, as against a common, particular victim. It is not, as the defense suggests, a "tumultuous affray" within the meaning of Art. 251 of The RPC, that is, a melee or free-for-all, where several persons not comprising definite or identifiable groups attack one another in a confused and disorganized manner, resulting in the death or injury of one or some of them.

Article 252. Physical injuries inflicted in a tumultuous affray

Elements:

1. 2. 3. 4.

There is a tumultuous affray; A participant or some participants thereof suffered serious physical injuries or physical injuries of a less serious nature ONLY; The person responsible thereof cannot be identified; All those who appear to have used violence upon the person of the offended party are known.

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Unlike in Article 251, the injured party in this article must be one or some of the participants in the affray. All those who appear to have used violence shall suffer the penalty next lower in degree than that provided for the serious physical injuries inflicted. For less serious physical injuries, the penalty is arresto mayor from five to fifteen days. This article does not include slight physical injuries inflicted in a tumultuous affray.

Bar Questions Criminal Liability; Tumultous Affray (1997) During a town fiesta, a free-for-all fight erupted in the public plaza. As a result of the tumultuous affray, A sustained one fatal and three superficial stab wounds. He died a day after. B, C, D and E were proven to be participants in the "rumble", each using a knife against A, but it could not be ascertained who among them inflicted the mortal injury. Who shall be held criminally liable for the death of A and for what?

to A because conspiracy cannot exist when there is a freefor-all brawl or tumultuous affray. A and B are liable only for their respective act

Article 253. Giving assistance to suicide

Acts punishable:

1. 2.

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SUGGESTED ANSWER: B, C, D, and E being participants in the tumultuous affray and having been proven to have inflicted serious physical injuries, or at least, employed violence upon A, are criminally liable for the latter's death. And because it cannot be ascertained who among them inflicted the mortal injury on A, there being a free-for-all fight or tumultuous affray. B, C, D, and E are all liable for the crime of death caused in a tumultuous affray under Article 251 of the Revised Penal Code.

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Criminal Liability; Tumultuous Affray (2003) In a free-for-all brawl that ensued after some customers inside a night club became unruly, guns were fired by a group, among them A and B, that finally put the customers back to their senses. Unfortunately, one customer died. Subsequent investigation revealed that A's gunshot had inflicted on the victim a slight wound that did not cause the deceased's death nor materially contribute to it. It was B's gunshot that inflicted a fatal wound on the deceased. A contended that his liability should, if at all, be limited to slight physical injury. Would you agree? Why? 6%

The relation of the offender to the person committing suicide is not material, the law does not distinguish. Hence, penalty would be the same if the offender is the father, mother or child. A person who attempts to commit suicide is not criminally liable because society considers such person to be an unfortunate being, a wretched person more deserving of pity rather than of penalty. If a pregnant woman tries to commit suicide but instead kills the baby in her womb, is she liable for abortion? NO. In order to incur criminal liability for a result not intended, one must be committing a felony. An attempt to commit suicide is not an act punishable by law. Euthanasia (mercy killing) – practice of painlessly putting to death a person suffering from some incurable disease. This is not lending assistance to suicide because in euthanasia, the person killed does not want to die. A doctor who resorts to mercy killing may be liable for murder.

Article 254. Discharge of firearms

Elements:

SUGGESTED ANSWER:

1.

No, I beg to disagree with A's contention that his liability should be limited to slight physical injury only. He should be held liable for attempted homicide because he inflicted said injury with the use of a firearm which is a lethal weapon. Intent to kill is inherent in the use of a firearm. (Araneta, Jr. v. Court of Appeals, 187 SCRA 123 [1990])

2. 

ALTERNATIVE ANSWER: Yes, I would agree to A's contention that his criminal liability should be for slight physical injury only, because he fired his gun only to pacify the unruly customers of the night club and therefore, without intent to kill. B's gunshot that inflicted a fatal wound on the deceased may not be imputed

Assisting another to commit suicide, whether the suicide is consummated or not; Lending his assistance to another to commit suicide to the extent of doing the killing himself.

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The offender discharges a firearm against or at another person; The offender had no intention to kill that person. If the firearm is not discharged AT A PERSON, there is no crime of discharge of firearms. For example, firing a gun at a house at random, not knowing where the people inside were, is not discharge of firearms. The crime may be alarms and scandals under Article 155. There must be no intention to kill, otherwise the crime is attempted or frustrated murder/homicide/parricide, as the case may be. The purpose of the offender is only to intimidate or frighten the offended party. C2005 Criminal Law 2 Reviewer

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If physical injuries resulted from discharge, the crime committed is the complex crime of discharge of firearm with physical injuries, when the physical injuries are serious or less serious. The crime is discharge of firearm, even if the gun was not pointed at the offended party when it fired, as long as it was initially aimed by the accused at or against the offended party. Dado v. People, 392 SCRA 46

FACTS: The Esperanza, Sultan Kudarat Police Station formed 3 teams to intercept cattle rustlers. The team, composed of petitioner SPO4 Dado and CAFGU members Eraso, Balinas, and Alga, waited behind a large dike. Balinas and Alga, who were both armed with M14 armalite rifles, positioned themselves between Dado, who was armed with a caliber .45 pistol, and accused Eraso, who was carrying an M16 armalite rifle. They were all facing southwards in a half-kneeling position and were about 2 arms length away from each other. Thereafter, the team saw somebody approaching at a distance of 50 meters. Though it was a moonless night, they noticed that he was half-naked. When he was about 5 meters away from the team, Balinas noticed that Eraso, who was on his right side, was making some movements. Balinas told Eraso to wait, but before Balinas could beam his flash light, Eraso fired his M16 armalite rifle at the approaching man. Immediately thereafter, Dado, fired a single shot from his .45 caliber pistol. The victim shouted, "Tay Dolfo, ako ini," ("Tay Dolfo, [this is] me") as he fell on the ground. The victim turned out to be Silvestre "Butsoy" Balinas, the nephew of Balinas and not the cattle rustler the team were ordered to intercept. Silvestre Balinas died as a result of the gunshot wounds he sustained. The RTC convicted Dado of the crime of Homicide.

HELD: Dado is guilty of the crime of illegal discharge of firearm. Absent an intent to kill in firing the gun towards the victim, petitioner should be held liable for the crime of illegal discharge of firearm under Article 254 of the RPC. The elements of this crime are: (1) that the offender discharges a firearm against or at another person; and (2) that the offender has no intention to kill that person. Though the information charged the petitioner with murder, he could be validly convicted of illegal discharge of firearm, an offense which is necessarily included in the crime of unlawful killing of a person. Under Rule 120, Section 4, of the Revised Rules on Criminal Procedure, when there is a variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or the offense charged which is included in the offense proved.

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Article 256. Intentional Abortion

Ways of committing intentional abortion:

1. 2.

3.

1. 2. 3.

4.

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Elements:  1. 2. 3.

A child was killed The accused killed the said child; The deceased child was less than three days (72 hours) of age.

Using any violence upon the person of the pregnant woman; Acting, but without using violence, without the consent of the woman. (By administering drugs or beverages upon such pregnant woman without her consent.) Acting (by administering drugs or beverages), with the consent of the pregnant woman.

Elements:

 Article 255. Infanticide

The penalty prescribed is the same for parricide or murder, as the case may be. Concealment of dishonor is not an element of infanticide. If the crime is committed by the mother of the child to conceal her dishonor, or by the maternal grandparents for the same purpose, the penalty for infanticide is mitigated. Delinquent mother must be of good reputation and good morals, in order that concealing dishonor may mitigate her liability. No crime of infanticide is committed when the child was born dead, or although born alive, it could not sustain an independent life when it was killed.

There is a pregnant woman; Violence is exerted, or drugs or beverages administered, or that the accused otherwise acts upon such pregnant woman; As a result of the use of violence or drugs or beverages upon her, or any other act of the accused, the fetus dies, either in the womb or after having been expelled therefrom; The abortion is intended. Abortion is the willful killing of the fetus in the uterus, or the violent expulsion of the fetus from the maternal womb which results in the death of the fetus. The person who intentionally caused the abortion is liable under this article. The pregnant woman, if she consented to the abortion, shall be liable under Article 258. If she did not consent, she is not criminally liable. Abortion distinguished from infanticide: if the fetus could sustain an independent life after its separation from the maternal womb; and it is killed, the crime is infanticide.

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Article 257. Unintentional abortion

c.

Elements:

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1. 2.

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3. 4.

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There is a pregnant woman; Violence is used upon such pregnant woman without intending an abortion; The violence is intentionally exerted; As a result of the violence, the fetus dies, either in the womb or after having been expelled therefrom. Unintentional abortion is committed only by violence, which must be intentionally exerted. Unintentional abortion may be committed through imprudence (example: negligent driver gets into a car crash, causing pregnant passenger to get thrown off the car, killing fetus inside her) Is the accused liable for abortion even if he did not know that the woman was pregnant? NO. For the crime of abortion, even if unintentional, to be held committed, the accused must have known of the pregnancy.

People vs. Salufrania

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Held: There is no evidence to show that the accused had the intention to commit an abortion. Mere boxing on the stomach, taken together with the immediate strangling of the victim is not sufficient to show an intent to cause an abortion. Thus, Salufrania should be convicted of the crime of parricide with UNINTENTIONAL ABORTION.

Article 258. Abortion practiced by the woman herself or by her parents

Elements:

1. 2. 3.

There is a pregnant woman who has suffered an abortion; The abortion is intended; Abortion is caused by a. b.

The pregnant woman is liable under this article, if she does the abortion herself or she consents to another person doing the abortion. Liability of the pregnant woman is mitigated if purpose is to conceal dishonor. No mitigation for parents of pregnant woman even if the purpose is to conceal dishonor. The penalty for the parents in this case is the same as the penalty for a pregnant woman committing abortion, without the purpose of concealing dishonor.

Article 259. Abortion practiced by a physician or midwife and dispensing of abortives

Elements (for physicians and midwives):

1. 2. 3. 4.

After quarrelling with his pregnant wife, Salufrania boxed her on the stomach and strangled her to death. He was convicted of the complex crime of parricide with INTENTIONAL ABORTION.

Any of her parents, with her consent for the purpose of concealing her dishonor.





There is a pregnant woman who has suffered an abortion; The abortion is intended; Offender, who must be a physician or midwife, caused or assisted in causing the abortion; Said physician or midwife took advantage of his or her scientific knowledge or skill. The penalties provided for intentional abortion shall be imposed in the maximum period for physicians and midwives violating this article. Reason: heavier guilt in making use of their knowledge for the destruction of human life, when it should be used only for its preservation.

Elements (for pharmacists):

1. 2. 3.

The offender is a pharmacist; There is no proper prescription from a physician; The offender dispenses any abortive.



It is not necessary that the pharmacist knows that the abortive would be used to cause an abortion. What is punished is the dispensing of the abortive without the proper prescription. Not necessary that the abortive be actually used either. If the pharmacist knew that the drug would be used to cause an abortion, he may be liable as an accomplice in the crime of abortion.

 

The pregnant woman herself; Any other person, with her consent; or C2005 Criminal Law 2 Reviewer

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Article 260. Responsibility of the participants in a duel

1.

Intentionally mutilating another by depriving him, either totally or partially, of some essential organ for reproduction; (castration)

Acts punishable: Elements: 1. 2. 3.

Killing one’s adversary in a duel; Inflicting upon such adversary physical injuries; Making a combat although no physical injuries have been inflicted.

a. b.

Persons liable:

1. 2. 



The person who killed or inflicted physical injuries upon his adversary, or both combatants in any other case, as principals. The seconds, as accomplices. Duel is a formal or regular combat previously concerted between two parties in the presence of two or more seconds of lawful age on each side, who make the selection of arms and fix all the other conditions of the fight. If death results, the penalty is the same as that for homicide.

2.

Intentionally making other mutilation, that is, by lopping or clipping off any part of the body of the offended party, other than the essential organ for reproduction, to deprive him of that part of his body. (other intentional mutilation)



Mutilation is the lopping or clipping off of some part of the body. The second type of mutilation is also called ‘mayhem’. For other intentional mutilation, if the victim is under 12 years of age, the penalty shall be one degree higher than that imposed by law. The offender must have the intention to deprive the offended party of a part of his body. If there is no such intention, the crime will be serious physical injuries.

 



Article 261. Challenging to a duel

Acts punishable:

1. 2. 3.



Challenging another to a duel; Inciting another to give or accept a challenge to a duel; Scoffing at or decrying another publicly for having refused to accept a challenge to fight a duel. A challenge to a fight, without contemplating a duel, is not challenging to a duel. The person making the challenge must have in mind a formal combat to be concerted between him and the one challenged in the presence of two or more seconds.

Article 263. Serious physical injuries

How committed:

1. 2. 3. 4.

By By By By

wounding; beating; assaulting; or administering injurious substance.

Types of serious physical injuries:

1. Article 262. Mutilation 2. Acts punishable:

There be a castration, that is, mutilation of organs necessary for generation, such as the penis or ovarium; The mutilation is caused purposely and deliberately, that is, to deprive the offended party of some essential organ for reproduction.

When the injured person becomes insane, imbecile, impotent or blind in consequence of the physical injuries inflicted; When the injured person – a. Loses the use of speech or the power to hear or to smell, or loses an eye, a hand, a foot, an arm, or a leg; b. Loses the use of any such member; or C2005 Criminal Law 2 Reviewer

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c. 3.

4.

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

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   

  



Becomes incapacitated for the work in which he was theretofore habitually engaged, in consequence of the physical injuries inflicted; When the person injured – a. Becomes deformed; or b. Loses any other member of his body; or c. Loses the use thereof; or d. Becomes ill or incapacitated for the performance of the work in which he was habitually engaged for more than 90 days in consequence of the physical injuries inflicted; When the injured person becomes ill or incapacitated for labor for more than 30 days (but must not be more than 90 days), as a result of the physical injuries inflicted. In physical injuries, there must not be intent to kill, otherwise the crime is frustrated/attempted murder or homicide as the case may be. Impotence under first type means an inability to copulate. It is used synonymously with ‘sterility’. Penalty under the first type is one degree higher when the victim is under 12 years of age. Blindness under the second type must be of two eyes. If there is loss of one eye only, the serious physical injuries is of the second type. Loss of power to hear under the second type must be of both ears. If hearing in only one ear is lost, it falls under the third type. Loss of the use of hand, or incapacity for work under the second type, must be permanent. All the body parts mentioned in the second type are principal members of the body (eye, hand, foot etc.) The third type covers any other part of the body which is not a principal member of the body. Deformity – physical ugliness, permanent and definite abnormality. It must be conspicuous and visible. Elements of deformity: (a) physical ugliness, (b) permanent and definite abnormality, and (c) it must be conspicuous and visible. All these elements must concur. Deformity by loss of teeth refers to injury which cannot be repaired by the action of nature. Loss of both outer ears is a deformity. Loss of the lobule of the ear is a deformity. Loss of index and middle fingers only is either deformity or loss of a member, not a principal one, of his body or use of the same. Loss of power to hear of right ear only is loss of use of other part of body. Illness – when the wound inflicted did not heal with a certain period of time. Note that under serious physical injuries of the fourth type, illness or incapacity is required, NOT medical attendance. Paragraphs 2 and 3 refers to the “work in which he was theretofore habitually engaged”…must the injured party have an avocation at the time at the time of the injury? YES, insofar as these two paragraphs are concerned. Incapacity therefore must related to a certain kind of work only. However, in paragraph 4, incapacity

 

 



for any kind of work is acceptable, because the phrase “incapacity for labor” is used. Injury requiring hospitalization for more than thirty days is serious physical injuries under paragraph 4. When the category of the offense of serious physical injuries depends on the period of illness or incapacity for labor, there must be evidence of the length of that period; otherwise, the offense is only slight physical injuries. Lessening of efficiency due to injury is NOT incapacity. Distinguished from mutilation: In mutilation, the body parts should have been purposely and deliberately lopped or clipped off. This intention is not present in serious physical injuries. Qualified serious physical injuries – if the offense is committed against any of the persons enumerated in the crime of parricide, or with the attendance of any of the circumstance in murder, the law provides for higher penalties.

Article 264. beverages

Administering injurious substances or

Elements:

1. 2. 3.  



 

Offender inflicted upon another any serious physical injury; It was done by knowingly administering to him any injurious substance or beverages or by taking advantage of his weakness of mind or credulity; He had no intent to kill. It is frustrated murder when there is intent to kill, the injurious substance to be considered as poison. If the accused did not know of the injurious nature of the substances administered, he is not liable under this article. Administering injurious substance means introducing into the body the substance. Thus, throwing mordant chemicals or poisons on the face is not contemplated in this article. This article does not apply if the physical injuries that result are less serious or slight. Taking advantage of weakness of mind or credulity: for example, using witchcraft, magnetism, philters etc.

Article 265. Less serious physical injuries

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1. 2.

Offended party is incapacitated for labor for 10 days or more (but not more than 30 days), or needs medical attendance for the same period of time; The physical injuries must not be those described in the preceding articles.

Qualified as to penalty:

1.

A fine not exceeding P 500.00, in addition to arresto mayor, shall be imposed for less serious physical injuries when – a. b.

2.

There is a manifest intent to insult or offend the injured person; or There are circumstances adding ignominy to the offense. A higher penalty is imposed when the victim is either

a. b.

for slight physical injuries can still be the subject of a new charge. Information may be amended. Li v. People, 427 SCRA 217

Facts: Because of an altercation between Arugay and Li, the latter armed himself with a baseball bat and used the same to hit Arugay on the arm. Arugay armed with a bolo, retaliated by hacking Li on the head causing the bat to fall from his hand and leaving him unconscious or semi-unconsious. At this point in time, Sangalang, who was also present stabbed Arugay several times which resulted to the latter’s death. The RTC found Li guilty on the tenuous determination that a conspiracy between Li and Sangalang existed.

Held: The only injury attributable to Li is the contusion on the victim’s right arm that resulted from Li striking Arugay with a baseball bat. In view of the victim’s supervening death from injuries which cannot be attributed to Li beyond reasonable doubt, the effects of the contusion caused by Li are not mortal or at least lie entirely in the realm of speculation. When there is no evidence of actual incapacity of the offended party for labor or of the required medical attendance, the offense is only slight

The offender’s parents, ascendants, guardians, curators or teachers; or Persons of rank or person in authority, provided the crime is not direct assault.

R.A. 8049 An Act Regulating Hazing

 



Medical attendance OR incapacity for labor is required in less serious physical injuries. It is only slight physical injury when there is no medical attendance or incapacity for labor. The phrase “shall require medical attendance” refers to ACTUAL medical attendance, not to the nature of the wound or injury inflicted.

Article 266. Slight physical injuries and maltreatment

and Other Forms of Initiation Rites in Fraternities, Sororities and other Organizations

What is Hazing?

Hazing is an initiation rite or practice as a prerequisite for admission into membership in a fraternity, sorority or organization by placing the recruit neophyte or applicant in some embarrassing or humiliating situations such as forcing him to do menial, silly, foolish and similar tasks or activities or otherwise subjecting him to physical or psychological suffering or injury. (§1)

Acts punished:

1. 2. 3.

 

Physical injuries incapacitated the offended party for labor from one to nine days, or required medical attendance during the same period; Physical injuries which did not prevent the offended party from engaging in his habitual work or which did not require medical attendance; Ill-treatment of another by deed without causing any injury. When there is no evidence of actual injury, it is only slight physical injuries. Supervening event converting the crime into serious physical injuries after the filing of the information

The term “organization” shall include any club or the Armed Forces of the Philippines, Philippine National Police, Philippine Military Academy, or officer and cadet corp of the Citizen's Military Training, or Citizen's Army Training. But the physical, mental and psychological testing and training procedure and practices to determine and enhance the physical, mental and psychological fitness of prospective regular members of the Armed Forces of the Philippines and the Philippine National Police as approved by the Secretary of National Defense and the National Police Commission duly recommended by the Chief of Staff, Armed Forces of the Philippines and the Director General of the Philippine National Police shall not be considered as hazing for the purpose of this Act. (§1)

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carrying out the hazing by inducing the victim to be present thereat Requirements before hazing may be conducted

1.

No hazing or initiation rites in any form or manner by a fraternity, sorority or organization shall be allowed without prior written notice to the school authorities or head of organization seven (7) days before the conduct of such initiation. The written notice shall indicate the ff:   

2.

period of the initiation activities which shall not exceed three (3) days, the names of those to be subjected to such activities an undertaking that no physical violence be employed by anybody during such initiation rites. (§2)

The head of the school or organization or their representatives must assign at least two (2) representatives of the school or organization as the case may be, to be present during the initiation. It is the duty of such representative to see to it that no physical harm of any kind shall be inflicted upon a recruit, neophyte or applicant. (§3)

Who are punishable?

If the person subjected to hazing or other forms of initiation rites suffers any physical injury or dies as a result thereof, the following are punished under the law:

5.

A fraternity or sorority's adviser who is present when the acts constituting the hazing were committed and failed to take any action to prevent the same from occurring

AS ACCOMPLICES:

6.

The owner of the place where hazing is conducted shall be liable as an accomplice, when he has actual knowledge of the hazing conducted therein but failed to take any action to prevent the same from occurring.

7.

The school authorities including faculty members who consent to the hazing or who have actual knowledge thereof but failed to take any action to prevent the same from occurring shall be punished as accomplices for the acts of hazing committed by the perpetrators.

The presence of any person during the hazing is prime facie evidence of participation therein as a principal unless he prevented the commission of the acts punishable herein.

Any person charged under this provision shall not be entitled to the mitigating circumstance that there was no intention to commit so grave a wrong.

This section shall apply to the president, manager, director or other responsible officer of a corporation engaged in hazing as a requirement for employment in the manner provided herein. (§4)

AS PRINCIPALS:

1.

The officer and members of the fraternity, sorority or organization who actually participated in the infliction of physical harm

2.

If the hazing is held in the home of one of the officers or members of the fraternity, group, or organization, the parents shall be held liable as principals when they have actual knowledge of the hazing conducted therein but failed to take any action to prevent the same from occurring.

3.

The officers, former officers, or alumni of the organization, group, fraternity, or sorority who actually planned the hazing although not present when the acts constituting the hazing were committed

4.

Officers or members of an organization, group, fraternity, or sorority who knowingly cooperated in

Penalties imposed

The penalties imposed shall vary depending on the injury suffered by the victim. If the victim dies, is raped, sodomized or mutilated, the penalty is reclusion perpetua to death.

The maximum penalty shall be imposed in any of the following instances: a) b)

c)

when the recruitment is accompanied by force, violence, threat, intimidation or deceit on the person of the recruit who refuses to join; when the recruit, neophyte or applicant initially consents to join but upon learning that hazing will be committed on his person, is prevented from quitting. when the recruit neophyte or applicant having

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d) e)

b.

undergone hazing is prevented from reporting the unlawful act to his parents or guardians, to the proper school authorities, or to the police authorities through force, violence , threat or intimidation; when the hazing is committed outside of the school or institution: or when the victim is below twelve (12) years of age at the time of the hazing.

c. d.

When the woman is deprived of reason or otherwise unconscious; By means of fraudulent machination or grave abuse of authority; or When the woman is under 12 years of age or demented.

Elements under paragraph 2: The responsible officials of the school or of the police, military or citizen's army training organization, may impose the appropriate administrative sanctions on the person or persons charged under this law even before their conviction.

1. 2.

Offender commits an act of sexual assault; The act of sexual assault is committed by any of the following means: a. b.

Bar Questions

By inserting his penis into another person's mouth or anal orifice; or By inserting any instrument or object into the genital or anal orifice of another person;

Anti-Hazing law – RA 8049 (2002) What is hazing as defined by law? (2%)

3.

SUGGESTED ANSWER: Hazing, as defined by law, is an initiation rite or practice as a prerequisite for admission into membership in a fraternity, sorority or organization by placing the recruit, neophyte or applicant in some embarrassing or humiliating situations such as forcing him to do menial, silly, foolish and similar tasks or activities or otherwise subjecting him to physical or psychological suffering or injury.

a. b. c. d.

What does the law require before initiation rites may be performed? (3%)

By using force or intimidation; or When the woman is deprived of reason or otherwise unconscious; or By means of fraudulent machination or grave abuse of authority; or When the woman is under 12 years of age or demented. Rape can now be committed by a



SUGGESTED ANSWER:

male or a female.

Section 2 of Rep. Act No. 8049 (Anti-Hazing Law) requires that before hazing or initiation rites may be performed, notice to the school authorities or head of organizations shall be given seven (7) days before the conduct of such rites. The written notice shall indicate (a) the period of the initiation activities, not exceeding three (3) days; (b) the names of those to be subjected to such activities, and (c) an undertaking that no physical violence shall be employed by anybody during such initiation rites.

 



 Article 266-A. Rape, When and How Committed

 

Elements under paragraph 1:

1. 2. 3.

The act of sexual assault is accomplished under any of the following circumstances:

Offender is a man; Offender had carnal knowledge of a woman; Such act is accomplished under any of the following circumstances:



Only one of the four circumstances mentioned is sufficient. Force employed against the victim of the rape need not be of such character as could be resisted. It is enough that the force used is sufficient to consummate the purpose of copulating with the offended woman. When the offender in rape has an ascendancy or influence over the girl, it is not necessary that she put up a determined resistance. Rape may be proved by the uncorroborated testimony of the offended woman. There is no crime of frustrated rape (see Orita case). Character of the offended woman is immaterial in rape. When several persons conspired to rape a single victim, each shall be liable for the rape committed personally by him, as well as those committed by the others

Article 266-B. Penalties a.

By using force or intimidation; C2005 Criminal Law 2 Reviewer

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When rape is punished by death:

1.

Where the victim is under 18 years of age and the offender is her ascendant, stepfather, guardian, or relative by affinity or consanguinity within the 3rd civil degree, or the common law husband of the victim’s mother; or 2. Where the victim was under the custody of the police or military authorities, or other law enforcement agency; 3. Where the rape is committed in full view of the victim’s husband, the parents, any of the children or relatives by consanguinity within the 3rd civil degree; 4. Where the victim is a religious, that is, a member of a legitimate religious vocation and the offender knows the victim as such before or at the time of the commission of the offense; 5. Where the victim is a child under 7 yrs of age; 6. Where the offender is a member of the AFP, its paramilitary arm, the PNP, or any law enforcement agency and the offender took advantage of his position; 7. Where the offender is afflicted with AIDS or other sexually transmissible diseases, and he is aware thereof when he committed the rape, and the disease was transmitted; 8. Where the victim has suffered permanent physical mutilation; 9. Where the pregnancy of the offended party is known to the rapist at the time of the rape; or 10. Where the rapist is aware of the victim’s mental disability, emotional disturbance or physical handicap.





Rape under the first type is punished by reclusion perpetua. Rape under the second type is punished by reclusion temporal. Penalties are increased in these instances: o When it is committed with the use of a deadly weapon or by two or more persons o When the victim becomes insane o When there is attempted rape and homicide is committed by reason or on the occasion thereof o When homicide is committed by reason or on the occasion of rape o When rape is committed with any of the enumerated qualifying or aggravating circumstances (death penalty is imposed) Rape with homicide is now a special complex crime, punishable by death (first type) or reclusion perpetua (second type).

266-C. Effect of pardon





Subsequent valid marriage between the offender and the offended party shall extinguish the criminal action or the penalty imposed. In case it is the legal husband who is the offender, the subsequent forgiveness by the wife as the offended party shall extinguish the criminal action or the penalty, provided that their marriage is not void ab initio.

266-D. Presumptions

Evidence which may be accepted in the prosecution of rape:

1. 2.

any physical overt act manifesting resistance against the act of rape in any degree from the offended party. where the offended party is so situated as to render him/her incapable of giving consent. Old rape law

New rape law

Crime against chastity

Crime against persons

May be committed by a man against a woman ONLY

Under the second type, sexual assault may be committed by ANY PERSON

PRIVATE CRIME – Complaint must be filed by the woman or her parents, grandparents or guardian if the woman was a minor or incapacitated

May be prosecuted even if the woman does not file a complaint

Marriage of the victim with one of the offenders benefits not only the principal but also the accomplices and accessories

Marriage extinguishes the penal action only as to the principal (the person who married the victim)

Marital rape NOT recognized

Marital rape recognized

People vs. Orita

A PC soldier raped a 19-year old student while poking a knife on her neck. However, only a portion of his penis entered her vagina because the victim kept on struggling until she was finally able to escape. The soldier was convicted of FRUSTRATED RAPE.

HELD: There is NO crime of frustrated rape because – In rape, from the moment the offender has carnal knowledge of the victim, he actually attains his purpose, from that moment also all the essential elements of the offense have been accomplished. Nothing more is left to be done by the offender because he has performed the last act necessary to produce the crime.

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People vs. Mangalino

HELD: Even though force and intimidation has not been established, rape was still committed because the victim is deprived of reason. Under paragraph 2 of Article 335, it is not necessary that the culprit actually deprives the victim of reason prior to the rape, as by administration of drugs or some other method. This provision also applies to cases where the woman has been earlier deprived of reason by other causes, as when she is congenitally retarded.

A 55-year old man lured a 6-year old to his bedroom by giving her two pesos. He then tried to force his penis in to her vagina but he was not able to completely do so, because of the little girl’s undeveloped genitalia (only 1 cm. in diameter). People vs. Dela Cuesta HELD: Rape was committed even though the penetration could only go as deep as the labia. The court has consistently held that for rape to be committed, full penetration is not required. Even the slightest penetration is sufficient to consummate the crime of rape.

People vs. Balbuena

A tomboy went on a drinking spree with her male friends. Two of her companions raped her on top of a billiard table. While one guy was raping her, the other pinned her arms down.

HELD: In the crime of rape, when a woman testifies that she had been raped, she says all that need to be said to signify that this crime has been committed. Note that each accused was sentenced to two counts of rape - one for actually raping the girl and another for helping the other rape the girl.

The RTC of Makati found De La Cuesta guilty of 6 counts of rape against 9-year-old Merma Binasbas. At the time of the alleged incidents of rape, De La Cuesta, then 64 years old, was boarding with Merma and her mom. De La Cuesta threatened the girl and gave her P20 after each encounter. De La Cuesta claims it was error for the lower court to find that he was Merma’s guardian, and that he could have committed the rape in view of his age (he claims his last erection was 3 years ago).

HELD: The trial court erred in imposing the supreme penalty of death. R.A. 7659 provides that the death penalty shall be imposed when the victim is under 18 years old and the offender is a guardian. In People v. Garcia (281 SCRA 463), we held that the restrictive definition of a guardian, that of a legal or judicial guardian, should be used in construing the term “guardian” for the purpose of imposing the death penalty under R.A. 7659.

The mere fact that the mother asked De La Cuesta to look after her child while she was away did not constitute the relationship of guardian-ward as contemplated by the law. He watched over the girl as a favor to mother for letting him stay while his place was being renovated.

People vs. Castro

Castro brought a 6-year old girl inside the bathroom. He made the girl stand on the toilet bowl and tried to insert his penis into her vagina. Medical findings showed that the victim’s hymen was not lacerated.

HELD: Perfect penetration, rupture of the hymen or laceration of the vagina are not essential for the offense of consummated rape. Entry to the extent of the labia or lips of the female organ is sufficient. The victim’s remaining a virgin does not negate rape.

De La Cuesta’s contention that he was incapable of committing rape due to his age, physical condition and lack of earthly desires is selfserving. There is no evidence presented to substantiate his alleged dysfunction. In one case, we rejected the defense even after a doctor had examined the accused by stimulating his organ with a wisp of cotton for three minutes and there was no erection. (People v. Palma, 144 SCRA 236). At any rate, advanced age does not mean that sexual intercourse is no longer possible, as age is not a criterion taken alone in determining sexual interest and capability of middleaged and older people. (People v. Bahuyan, 238 SCRA 330).

People vs. Sabredo (2000) People vs. Atento

A 16-year old mental retardate was repeatedly raped by her neighbor, and she later on gave birth to their child. She described the sexual experience as pleasurable (Masarap!)

Jimmy Sabredo, uncle of victim Judeliza, lived with their family in Cebu for more than a year. He forcibly dragged her at knife's point, and brought her to Masbate. Armed with a blade, he sexually assaulted Judeliza. After satisfying his lust, Jimmy inserted three fingers into her vaginal orifice and cruelly pinched it. Later, Jimmy struck Judeliza with a piece of wood, rendering her unconscious. TC sentenced him to death for the complex crime of abduction with rape.

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HELD: When a complex crime under Article 48 of the RPC is charged, such as forcible abduction with rape, it is axiomatic that the prosecution must allege and prove the presence of all the elements of forcible abduction, as well as all the elements of the crime of rape. Prosecution failed to allege the 3 rd element of forcible abduction which is that the abduction is with lewd designs. Thus, when Jimmy, using a blade, forcibly took away complainant for the purpose of sexually assaulting her, as in fact he did rape her, the rape may then absorb forcible abduction. Hence, the crime committed by appellant is simple rape only.

Where the rape is committed with the use of deadly weapon or by two or more persons, the imposable penalty ranges from RP to death. The use of the bladed weapon already qualified the rape. Since there is no aggravating circumstance, the lesser penalty shall be applied.

Section 11 (1) of R.A. No. 7659 imposes the death penalty when the rape victim is under 18 years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim. However, R.A. No. 7659 cannot apply IN CAB because (1) at the time the rape was committed, victim was already more than 18 years old and (2) the information did not allege that offender and offended party were relatives within the third degree of consanguinity. Sentence should only be reclusion perpetua.

HELD: Since the victim here was 12 years old already, must prove sexual congress by force and violence and lack of consent. Since in this case the victim was unconscious, the conclusion is that there was lack of consent. The crime here is Rape with Homicide, which is a special complex crime with an indivisible penalty of death. This is treated in the same way as qualified rape, rape with any of the 10 attendant circumstances properly alleged in the information and proven at trial. However if any of the circumstances are not alleged but proven, the penalty cannot be death except if the circumstance can be made to fall under Art.14/15 RPC. In CAB, the court has no choice but to impose death as this is what is given in the law as the penalty for the special complex crime.

People vs. Quiñanola (1999)

There were 2 accused here who took turns in raping a 15-year-old girl. They were convicted of frustrated rape based on People vs. Erina despite the fact that the subsequent case of People vs. Orita saying that there can never be a crime of frustrated rape. The ruling was based on the testimony of the victim that she only felt the penis touching her. HELD: The 2 accused should be convicted each of two counts of consummated rape. Frustrated rape can never be committed because no matter how slight the penetration, as long the penis touches the external genitalia of the woman, the rape is consummated as the person has done all the necessary acts to complete the crime. Even if Art335 RPC as amended still uses frustrated rape, the Court will ignore it and just treat it as a mere lapse in language.

People vs. Arillas (2000)

Amor O. Arillas accused her father, Romeo Arillas of raping her on two occasions when she was barely 16 years old. The trial court found her father guilty beyond reasonable doubt and imposed the death penalty for the reason that the victim was under 18 years old at the time of the commission of the offense and the offender was her father.

HELD: The informations in these cases alleged that the victim is the daughter of the appellant but it did not allege that the victim is under 18 years old. It is a denial of the right of an accused not to be informed of the nature of the accusation against him, and consequently, a denial of due process if he is convicted of a crime in its qualified form notwithstanding the fact that the information, on which he was arraigned, charges him only of the crime in its simple form by not specifying the circumstance that qualifies the crime. Hence, the appellant was only charged with simple rape and its penalty is reclusion perpetua.

People vs. Campuhan

Campuhan had his pants down and was on top of the 4-year old child when the child’s mother arrived. A medical examination showed that there were no signs of genital injury and that the victim’s hymen was intact. HELD: For rape to be consummated, a slight brush or scrape of the penis on the external layer of the vagina (mons pubis) will not suffice. There must be sufficient and convincing proof that the penis indeed touched the labias or slid into the female organ, and NOT merely stroked the external surface thereof. AT LEAST THE LABIA MAJORA MUST BE ENTERED FOR RAPE TO BE CONSUMMATED.

People v. Oga, 431 SCRA 354 (2004)

People vs. Mahinay

Accused here was a houseboy who raped and killed the 12-year-old daughter of their neighbor. Accused was convicted of Rape with Homicide and sentenced to death.

FACTS: At around 10:00 p.m., Oga summoned 14-year-old Irene to his barracks. Inside his barracks, Oga, however, suddenly pulled her and laid her on the wooden bed. The appellant then took off her pants and panty, as well as his clothes. Irene allegedly resisted the sexual assault, but her efforts proved in vain because the Oga was strong and drunk. He pinned her down with his body, while his right hand pinned her hands above her shoulders and his left hand separated her legs. Then he inserted his penis into her vagina. It was

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only at around 2:00 a.m. when her parents caught Oga naked atop Irene’s naked body. Irene denied that the appellant was her boyfriend. For his part, Oga interposed as a defense the “sweetheart theory.”

HELD: In reviewing rape cases, the Court has established the following principles as guides: (1) an accusation of rape can be made with facility, difficult to prove but more difficult for the person accused, though innocent, to disprove; (2) by reason of the intrinsic nature of rape, the testimony of the complainant must be scrutinized with extreme caution; and (3) the evidence for the prosecution must stand or fall on its merits and cannot draw strength from the weakness of the evidence for the defense. In the present case, the Cout ruled that no physical force was used to quell Irene’s alleged resistance. Irene claimed that she resisted the sexual molestation, but a careful reading of her testimony failed to reveal the kind of resistance she did under the circumstances. While it is true that a rape victim is not expected to resist until death, it is contrary to human experience that Irene did not even make an outcry or use her hands which must have been free most of the time to ward off the lustful advances of appellant. Further, the findings of Dr. Villena, who examined Irene only several hours after the alleged rape, showed no sign of extragenital injuries on her body. Not a piece of Irene’s apparel was torn or damaged as would evince a struggle on her part. These circumstances additionally belie Irene’s claim that the appellant had sexual intercourse with her without her consent.

of situation and there is no standard form of behavioral response when one undergoes a shocking or startling experience. The demeanor of the private complainant was understandable in the light of the circumstances in both incidents of rape. She did not immediately disclose her misfortune to anybody because of the death threats from the appellant. Being in her early teens, she was obviously cowed into silence as the appellant warned her not to divulge the incident to anybody, otherwise she and her family would be killed. Such threat from the appellant, for sure, generated much fear in her mind. Further the victim’s lowly station in life simply offered no other option for the private complainant but to continue doing those things. i.e. taking a bath alone; fetching water… The Court also held that it was extremely ludicrous for the appellant to claim the continued respect and affection of the private complainant solely from the latter's customary act of obtaining his blessing (pagmamano). The private complainant herself clarified that the practice was an involuntary gesture to keep the public from getting wind of her sorry episode of defloration and to maintain her honor.

Anonimity of Victim

People v. Cabalquinto (2006) People v. Buates, 408 SCRA 278 (2003)

FACTS: On July 28, 1990, at around 5:00 p.m., Jennifer Buates was on her way home when the appellant, who is his uncle, called her, allegedly to give her something. As Jennifer approached the appellant, the latter pointed a knife at her and told her to undress. Fearful for her life, Jennifer undressed, followed by the appellant. Thereafter, he ordered her to lie down on the grassy portion of the area. He spread her legs and inserted his penis into her vagina while she cried and felt severe pain. The appellant appeared to have shivered before finally pulling out his penis. He instructed Jennifer to dress up and warned her not to tell her family about the incident, otherwise they would all be killed. After the incident appellant succeeded in molesting her several times more on different dates. In December 1994, Jennifer went to live with her grandmother one month after her own father allegedly molested her. Subsequently, she stayed with an aunt a before transferring to another aunt, a certain Enrica Provido, to whom she finally revealed her harrowing experience in the hands of the appellant and her own father. Consequently, Enrica called Jennifer’s mother, Gliceria in Bicol and related her daughter’s ordeal. The RTC convicted Oga of two counts of rape. Appellant principally assails the credibility of Jennifer, claiming that her actuations after the alleged commission of each act of rape were not typical of a rape victim. Specifically, appellant points out that Jennifer continued to take a bath alone and fetch water from the river near where the appellant allegedly raped. She also took the same path on her way to school where the second sexual assault allegedly took place. Moreover, Jennifer remained respectful of the appellant. In addition, she did not inform any member of her family about the alleged sexual assaults in 1990 and 1993 but only after several years, in 1998.

HELD: The appellant cannot successfully impugn the credibility of the private complainant on account of her alleged "normal" behavior after both sexual assaults. It must be borne in mind that different people respond differently to a given stimulus or type

Pursuant to Republic Act No. 9262, otherwise known as the “AntiViolence Against Women and Their Children Act of 2004” and its implementing rules, the real name of the victim, together with the real names of her immediate family members, is withheld and fictitious initials instead are used to represent her, both to protect her privacy.

Statutory Rape

People v. Jalosjos, 369 SCRA 179 (2001)

FACTS: The victim 11 year-old, Maria Rosilyn Delantar, grew up under the care of Simplicio Delantar, whom she treated as her own father. Simplicio was a 56 year-old homosexual whose ostensible source of income was selling longganiza and tocino and accepting boarders at his house. On the side, he was also engaged in the skin trade as a pimp. At a very young age of 5, Rosilyn was exposed by Simplicio to his illicit activities. She and her brother would tag along with Simplicio whenever he delivered prostitutes to his clients. When she turned 9, Rosilyn was offered by Simplicio as a prostitute to an Arabian national known as Mr. Hammond. Thus begun her ordeal as one of the girls sold by Simplicio for sexual favors. Simplicio brought Rosilyn to Congressman Jalosjos condominium unit at Ritz Towers on several occassions. There, Cong. Jalosjos would kiss, caress and fondle said Rosilyn's face, lips, neck, breasts, vagina; suck her nipples and insert his finger and then his tongue into her vagina, and other similar lascivious conduct. On two occasions, Jalosjos placed himself on top of Rosilyn and inserted his sexual organ into her vagina. On said occassions, Cong. Jalosjos would

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thereafter give her money which she in turn gives to Simplicio. After trial, the RTC convicted Cong. Jalosjos of two (2) counts of statutory rape, and six (6) counts of acts of lasciviousness defined and penalized under Article 336 of the RPC, in relation to Section 5(b) of Republic Act No. 7610, also known as the Child Abuse Law.

HELD: In statutory rape, mere sexual congress with a woman below twelve years of age consummates the crime of statutory rape regardless of her consent to the act or lack of it. The law presumes that a woman of tender age does not possess discernment and is incapable of giving intelligent consent to the sexual act. Thus, it was held that carnal knowledge of a child below twelve years old even if she is engaged in prostitution is still considered statutory rape. The application of force and intimidation or the deprivation of reason of the victim becomes irrelevant. The absence of struggle or outcry of the victim or even her passive submission to the sexual act will not mitigate nor absolve the accused from liability. In the case at bar, the prosecution established beyond reasonable doubt that accused-appellant had carnal knowledge of Rosilyn. Moreover, the prosecution successfully proved that Rosilyn was only eleven years of age at the time she was sexually abused. As such, the absence of proof of any struggle, or for that matter of consent or passive submission to the sexual advances of accusedappellant, was of no moment. The fact that accused-appellant had sexual congress with eleven year-old Rosilyn is sufficient to hold him liable for statutory rape, and sentenced to suffer the penalty of reclusion perpetua. Note: Republic Act No. 8353, the Anti-Rape law of 1997 was enacted after 1996-the year the above acts were committed, hence, it does not apply in this case.

People v. Basquez, 366 SCRA 154 (2001)

FACTS: Around 4:00 pm, Jiggle Jilt dela Cerna, six (6) years old, was on her way home from school, where she was a Grade 1 student. While casually walking, Basquez, who was drinking outside a store along her way blocked her way and pulled her by the belt of her dress. She was then dragged towards the direction of the houses at the back of the school and was brought inside an unoccupied dilapidated house. Upon reaching the said house, her hands, feet and body were tied with a tieback. Jiggle struggled and cry. At this point, her attacker undressed himself, untied Jiggle, had her lie down and put himself on top of her. Basquez’ hands then started groping all over her young and fragile body and forced himself inside her. Jiggle, despite the excruciating pain, kicked appellant repeatedly in an effort to free herself from him. Basquez, however, continued forcing his penis inside her vagina. An hour after when the Basquez left Jiggle with her body still tied. With her school bag just beside her, Jiggle mustered enough courage and strength to take a pair of scissors from it and cut the remaining tiebacks tied at her body. The following day, Jiggle, traumatized by the assault and rape committed by the appellant, refused to go to school for fear of seeing the Basquez again. She later narrated her horrifying experience to her grandmother Segundina dela Cerna with whom she was living. HELD: Although there had been no complete penetration of the victim's vagina by appellant's penis, contact between them was not ruled out by the doctor who testified in this case. In fact, he found the victim's vagina positive for spermatozoa. Existing rulings on rape do not require complete or full penetration of the victim's

private organ. Neither is the rupture of the hymen necessary. The mere introduction of the penis into the labia majora of the victim's genitalia engenders the crime of rape. 40 Hence, it is the "touching" or "entry" of the penis into the labia majora or the labia minora of the pudendum of the victim's genitalia that consummates rape. 41 Penile invasion necessarily entails contact with the labia. Even the briefest of contacts, without laceration of the hymen, is deemed to be rape.

People v. Dalisay, 408 SCRA 375 (2003)

FACTS: Lanie was lying in bed when her father, the appellant arrived from work. Suddenly appellant removed Lanie’s pants and underwear. Lanie resisted but appellant boxed her on her thigh. Appellant touched her daughters vagina and licked it. Thereafter, while in a kneeling position, he placed his penis at the entrance of Lanie's vagina and inserted his private organ into hers. He then proceeded to make push and pull movements. Lanie felt pain but she did not complain because she was afraid. The following day, Lanie went to school and pretended as if nothing happened. However, her Grade V teacher noticed that Lanie looked depressed that day. When she inquired, Lanie answered that she was raped by her father. Appellant had sexually abused Lanie since she was in grade III. She estimated that her father had raped her seventeen (17) times, although she could no longer remember the exact dates when they took place. Incidentally, Lanie's sister, Luz, also filed a complaint for acts of lasciviousness against appellant. Appellant contends that since Lanie's hymen is intact and that there was no spermatozoa in her genitalia, he could not have committed the crime.

HELD: The appellant is guilty of statury rape. The presence of either hymenal laceration or spermatozoa on Lanie's private part is not an essential element of rape. The court cited the cases of; People vs. Parcia, where it was held that the absence of sperm does not disprove the charge of rape; People vs. Regala, where was ruled that an intact hymen does not necessarily prove absence of sexual intercourse; and People vs. Rafales, where it was declared that, ". . .. For rape to be committed, entrance of the male organ within the labia or pudendum of the female organ is sufficient. Rupture of the hymen or laceration of the vagina are not essential. Entry to the least extent of the labia or the lips of the female organ is sufficient, the victim remaining virgin does not negate rape." As testified to by Lanie, "the tip" of appellant's penis was inserted into her vagina, as a result of which she felt pain. In other words, there was no full penetration, and this explains why her hymen remained intact. Nonetheless, carnal knowledge was consummated by the entry of "the tip" of appellant's private organ into the labia or pudendum of Lanie's genitalia. It is well-settled that full penetration is not required to consummate carnal knowledge, as proof of entrance showing the slightest penetration of the male organ within the labia or pudendum of the female organ is sufficient.

Liability of Several Accused in Multiple Rape

People v. Plurad, 393 SCRA 306 (2002)

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FACTS: An hour and a half past midnight, after Norielene consumed half a glass of gin handed to her by accused Bernadas, she began to feel dizzy. Norielene fell asleep on the lap of her friend, Ibañez. At around 3:00 in the morning, Norielene woke up and found that she was being carried by the three (3) accused towards the bedroom of accused Bernadas. Since she still felt dizzy, Norielene fell fast asleep in the room. She later woke up when accused Bernadas was removing her shorts and panties. Norielene tried to shout for help but her mouth was covered by Bernadas. When she was already naked, accused Bernadas placed himself on top of her, inserted his sex organ into her private parts and performed pumping motions. Both hands of the victim were held by the accused Plurad and Cañedo. After Bernadas finished raping her, Plurad took his turn and had sexual intercourse with Norielene while fondling her breasts. Norielene struggled to free herself but Bernadas held her hands while Plurad covered her mouth with a handkerchief When Plurad was through, Cañedo also had sexual intercourse with her while Bernadas and Plurad held her hands.

HELD: In cases of multiple rape, each of the defendants is responsible not only for the rape committed by him but also for those committed by the others. Plurad, therefore, is responsible not only for the rape committed personally by him but also for the two other counts of rape committed by his co-accused.

out in the same manner as the first. She felt pain during the first and second rapes, but did not feel pain anymore in the succeeding rape incidents.

HELD: An accused may be considered a principal by direct participation, by inducement, or by indispensable cooperation. This is true in a charge of rape against a woman, provided of course a man is charged together with her. In two cases the Court convicted the woman as a principal by direct participation since it was proven that she held down the complainant in order to help her co-accused spouse consummate the offense. In People v. Villamala, the Court found the husband and wife guilty for raping their neighbor and "kumare" in this factual setting, viz: the wife visited the victim at her home on the pretext of inquiring as to the whereabouts of her husband. Once inside, she whistled for her husband and he immediately appeared at the doorstep. The wife then suddenly pinned her "kumare" to the floor. The husband forcefully removed the victim's skirt and panties, removed his shorts, placed himself on top of the victim and consummated the rape. In the more recent People v. Saba, the accused married couple victimized a fourteen (14) year-old epileptic who stayed at their home for treatment by the wife who was a reputed healer. On the pretext of conducting a healing session, the wife ordered the victim to lie down on the floor then pinned the victim's hands to the floor and covered her mouth while her husband removed his pants and briefs and the victim's panties and raped the young girl. These two cases show not only the possibility but the reality of rape committed by a woman together with a man. The Court affirmed the decision of the RTC.

Rape may be commited by a woman Rape through sexual assault People v. dela Torre, 419 SCRA 18 (2004) Ordinario v. People, 428 SCRA 773 (2004) FACTS: Appellant-spouses Butchoy and Fe de la Torre were convicted by the RTC of 9 counts of rape committed against their maid Baby Jane Dagot, who was then only 16 years old. Baby Jane and the appellant-spouses were asleep on the floor of the same bedroom when appellant Fe de la Torre woke Baby Jane and her husband Butchoy. Baby Jane was surprised to see that Fe was holding a lighted kerosene lamp and a scythe. Fe ordered her husband to transfer and lie beside Baby Jane. As appellant Butchoy did not comply, Fe herself transferred so that Baby Jane was between her and Butchoy. Fe put down the scythe and the lamp and proceeded to take Butchoy's clothes off and then Baby Jane's. Butchoy offered no resistance but Baby Jane objected and cried to no avail. Fe then ordered Butchoy to have sex with Baby Jane. Baby Jane, fearful of the spouses and the dawning realization of what would happen to her, could not ward off his advances. Butchoy placed himself on top of Baby Jane, inserted his penis into her vagina and did a push and pull motion. Baby Jane felt pain. All the while, Fe was standing beside them, holding the lamp and the scythe. After the sexual intercourse, Butchoy kissed her on the neck and fondled her breasts. Baby Jane found it revolting but could not do much to refuse him, as she was afraid of Fe. When Butchoy was finished, he threw her clothes to her and got dressed. Baby Jane immediately put on her clothes. She wanted to leave the room but Fe prevented her from doing so. The following morning, Baby Jane saw that there was blood on her panty. The rape was repeated once a week from the second week of September 1992 on to the fourth week of October 1992. Baby Jane had her menarche in the month of November 1992 and was spared from the appellants' abuse that month. However she was again raped in the second week of December. This was to be the last. Baby Jane testified that the subsequent rape incidents were carried

FACTS: Jayson Ramos and accused Geronimo Ordinario were student and teacher, respectively, at Nicanor Garcia Elementary School during the time the crime was perpetrated. Jayson was then in Grade 4 and accused was his teacher in Boy Scout. After being summoned by accused at the Boy Scout headquarters, Jayson was ordered to strip off which the latter complied unwary of the perverse intentions of accused. Accused then approached Jayson and started kissing him all over his body including his male organ. Thereafter, accused inserted his private part into the mouth of Jayson but the latter could not hold on for long as he felt vomiting prompting accused to remove his penis and ordered Jayson to dress up. Before they parted ways, accused told Jayson 'pag nagsumbong ka sa mga magulang mo, may masamang mangyayari sa iyo.' Interpreting the same to mean an immediate bodily harm, Jayson kept mum on the incident for fear of accused reprisal. The same sexual molestation recurred, and several more thereafter until Jayson had mustered enough courtage to inform his parents about the incident.

HELD: The definition of the crime of rape has been expanded with the enactment of Republic Act No. 8353, otherwise also known as the Anti-Rape Law of 1997, to include not only "rape by sexual intercourse" but now likewise "rape by sexual assault. "An act of sexual assault under the second paragraph of Article 266-A of the RPC can be committed by any person who, under the circumstances mentioned in the first paragraph of the law, inserts his penis into the mouth or anal orifice, or any instrument or object into the genital or

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anal orifice, of another person. The law, unlike rape under the first paragraph of said Article 266-A of the Code, has not made any distinction on the sex of either the offender or the victim. The court found Ordinario guilty of rape by sexual assault on twelve (12) counts.

People v. Soriano, 388 SCRA 140 (2002)

FACTS: On four occasions, the Camilo Soriano forced his penis into her daughter Maricel’s vagina, On twelve other occasions, the accused inserted his finger into her daughters private organ. The victim was then 11 years old.

HELD: The Court found Camilo guilty of 4 counts of rape by sexual intercourse and 12 counts of rape through sexual assault. Inserting a finger inside the genital of a woman is rape through sexual assault within the context of paragraph 2 of Article 266-A of the RPC. (Emphasis supplied)

People v. Fetalino (2007)

The insertion of one’s finger into the genital or anal orifice of another person constitutes rape by sexual assault and not merely an act of lasciviousness

Delay in Reporting Rape

People v. Arnaiz (2006)

Neither does AAA’s failure to tell her mother about the incident nor her long delay in reporting the matter to the authorities negate rape. As correctly observed by the OSG, the delay in reporting the rape incident does not weaken the case for the prosecution. It is not uncommon for a young girl to conceal assaults on her virtue, especially when the rapist is living with her. In fact, we have previously ruled in People v. Coloma, that even a delay of 8 years is not a sign of fabrication.

Absence of Medical Findings

People v. Teodoro (2006)

Thus, the contention of appellant that there were no lacerations in the vagina does not merit any consideration. In that regard, it has been held that the medical examination of the victim is merely corroborative in character and is not an element of rape. Likewise, a

freshly broken hymen is not an essential element of rape and healed lacerations do not negate rape.

Sweetheart defense

People v. Bautista, 430 SCRA 469 (2004)

FACTS: On the pretext that he had been sent by his wife to fetch the victim, a 15-year-old girl for an field trip, Baustista, brought the latter to a motel, where he had sexual intercourse with her against her will. Contending that he and the victim were lovers, appellant claims that what transpired was consensual, though illicit, sexual intercourse.

HELD: Bautista’s sweetheart defense was rejected by the court for lack of corroboration. As an affirmative defense, it must be established with convincing evidence — by some documentary and/or other evidence like mementos, love letters, notes, pictures and the like. In this case, the only thing he proffered to prove that he and the victim were lovers was his self-serving statement, which she and her mother categorically denied. Even if he and the victim were really sweethearts, such a fact would not necessarily establish consent. It has been consistently ruled that "a love affair does not justify rape, for the beloved cannot be sexually violated against her will." The fact that a woman voluntarily goes out on a date with her lover does not give him unbridled license to have sex with her against her will. The court cited the case of People v. Dreu, where it was held that "A sweetheart cannot be forced to have sex against her will. Definitely, a man cannot demand sexual gratification from a fiancee and, worse, employ violence upon her on the pretext of love. Love is not a license for lust."

Moral Character of Victim

People v. Agsaoay, 430 SCRA 450 (2004)

FACTS: Josephine and her sister were sleeping on the second floor of their house, while the other members of the family were at the ground floor. Their mother left their house early and went to the field to uproot palay seedlings. Josephine was awakened when her father suddenly kissed her lips. Instinctively, she pushed him away but to no avail. He threatened to kill her and her entire family should she report the matter to her mother. Josephine was so terrified and was not able to shout and resist. Her father then undressed her, spread her legs, held her hands, and inserted his penis into her vagina and made a push and pull movement. Josephine felt pain. Josephine did not tell her mother, about the incident because of her father's threat. It was only the following day that she revealed to her mother what had happened. Her mother was shocked but scared to report the matter immediately to the authorities because in the past, accused killed her brother. Accused ravished Josephine for the second time. At first, her mother again refused to report the incident to the police. Later, however, her mother finally went to

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the PNP to report the incident. Now, the defense endeavors to prove that Josephine is an unchaste young woman who habitually goes out with different men.

Bar Questions Criminal Liabilities; Rape; Homicide & Theft (1998)

HELD: The debasement of Josephine’s character does not necessarily cast doubt on her credibility, nor does it negate the existence of rape. It is a well-established rule that in the prosecution and conviction of an accused for rape, the victim's moral character is immaterial, there being absolutely no nexus between it and the odious deed committed. Even a prostitute or a woman of loose morals can be the victim of rape, for she can still refuse a man's lustful advances.

Forcible abduction absorbed in rape

People v. Lining, 384 SCRA 427 (2002)

FACTS: Emelina, then fifteen (15) years old, requested permission from her parents to visit her aunt where she was supposed to spend the night. While in her aunt josephine’s house, Emelina was invited to a dance party. Emelina accepted the invitation and she went to the party, accompanied by her aunt. Josephine then left Emelina at the party, telling her that she had to go home but she would return later to fetch her. When the party ended Josephine still had not returned. Emelina decided to go home alone. On her way to her aunt’s house, Emelina was accosted by Gerry Lining and Lian Salvacion, both of whom were known to her since they were her former neighbors. Lining poked a kitchen knife at Emelina’s breast and the two held her hands. Emelina was dragged towards the ricefield and was forcibly carried to an unoccupied house. Inside the house, Lining removed Emelina’s t-shirt, pants and undergarments. She was pushed to the floor and while Salvacion was holding her hands and kissing her, Lining inserted his penis inside her vagina. Emelina shouted and tried to ward off her attackers, but to no avail. After Lining had satisfied his lust, he held Emelina’s hands and kissed her while Salvacion in turn inserted his penis inside her vagina. Thereafter, the two directed Emelina to put on her clothes. Emelina saw an opportunity to escape, and she returned to her aunt’s house. i However, because of fear, as the accused threatened her that she would be killed if she would reveal what they did to her, she did not tell her aunt what transpired. She next went to the house of her friend Evelyn Saguid where he told Gerry Selda, a friend of her father, who saw her crying about the rape incident. Accused Salvacion remained at large while Lining was convicted by the trial as principal of the complex crime of forcible abduction with rape.

HELD: Lining could only be convicted for the crime of rape, instead of the complex crime of forcible abduction with rape. Indeed, it would appear from the records that the main objective of the accused when the victim was taken to the house of Mila Salvacion was to rape her. Hence, forcible abduction is absorbed in the crime of rape.

King went to the house of Laura who was alone. Laura offered him a drink and after consuming three bottles of beer. King made advances to her and with force and violence, ravished her. Then King killed Laura and took her jewelry. Doming, King's adopted brother, learned about the incident. He went to Laura's house, hid her body, cleaned everything and washed the bloodstains inside the room. Later, King gave Jose, his legitimate brother, one piece of jewelry belonging to Laura. Jose knew that the jewelry was taken from Laura but nonetheless he sold it for P2,000. What crime or crimes did King, Doming and Jose commit? Discuss their criminal liabilities. [10%] SUGGESTED ANSWER: King committed the composite crime of Rape with homicide as a single indivisible offense, not a complex crime, and Theft. The taking of Laura's jewelry when she is already dead is only theft. Rape (1995) Gavino boxed his wife Alma for refusing to sleep with him. He then violently threw her on the floor and forced her to have sexual intercourse with him. As a result Alma suffered serious physical injuries. (a) Can Gavino be charged with rape? Explain. (b) Can Gavino be charged with serious physical injuries? Explain (c) Will your answers to (a) and (b) be the same if before the incident Gavino and Alma were legally separated? Explain. SUGGESTED ANSWER: (a) No. A husband cannot be charged with the rape of his wife because of the matrimonial consent which she gave when she assumed the marriage relation, and the law will not permit her to retract in order to charge her husband with the offense (Sate vs. Haines, 11 La. Ann. 731 So. 372; 441 RA 837). (b) Yes, he may be guilty of serious physical injuries. This offense is specially mentioned in Art. 263 [4], paragraph 2 which imposes a higher penalty for the crime of physical injuries in cases where the offense shall have been committed against any of the persons enumerated in Art 246 (the crime of parricide). (c) No, my answer will not be the same. If Gavino, and Alma were legally separated at the time of the incident, then Gavino could be held liable for rape. A legal separation is a separation of the spouses from bed and board (U.S. vs. Johnson, 27 Phil. 477, cited in II Reyes, RFC, p. 853. 1981 edition), In the crime of rape, any crime resulting from the infliction of physical injuries suffered by the victim on the occasion of the rape, is absorbed by the crime of rape. The injuries suffered by the victim may, however, be considered in

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determining the proper penalty which shall be imposed on the offender. Serious physical injuries cannot be absorbed in rape; it can be so if the injury is slight.

of a crime against persons.

Rape; Absence of Force & Intimidation (1995)

A with lewd designs, took a 13-year old girl to a nipa hut in his farm and there had sexual intercourse with her. The girl did not offer any resistance because she was infatuated with the man, who was good-looking and belonged to a rich and prominent family in the town. What crime, if any, was committed by A? Why? (2%)

Three policemen conducting routine surveillance of a cogonal area in Antipole chanced upon Ruben, a 15-year old tricycle driver, on top of Rowena who was known to be a child prostitute. Both were naked from the waist down and appeared to be enjoying the sexual activity. Ruben was arrested by the policemen despite his protestations that Rowena enticed him to have sex with her in advance celebration of her twelfth birthday. The town physician found no semen nor any bleeding on Rowena's hymen but for a healed scar. Her hymenal opening easily admitted two fingers showing that no external force had been employed on her. Is Ruben liable for any offense? Discuss fully. Answer; SUGGESTED ANSWER: Ruben is liable for rape, even if force or intimidation is not present. The gravamen of the offense is the carnal knowledge of a woman below twelve years of age (People vs. Dela Cruz, 56 SCRA 84) since the law doesn't consider the consent voluntary and presumes that a girl below twelve years old does not and cannot have a will of her own. In People us. Perez, CA 37 OG 1762, it was held that sexual intercourse with a prostitute below twelve years old is rape. Similarly, the absence of spermatozoa does not disprove the consummation as the important consideration is not the emission but the penetration of the female body by the male organ (People vs. Jose 37 SCRA 450; People vs. Carandang. 52 SCRA 259). Rape; Anti-Rape Law of 1997 (2002) What other acts are considered rape under the Anti-Rape Law of 1997, amending the Revised Penal Code? (3%) SUGGESTED ANSWER: The other acts considered rape under the Anti-Rape Law of 1997 are: 1.] having carnal knowledge of a woman by a man by means of fraudulent machination or grave abuse of authority, 2.] having carnal knowledge of a demented woman by a man even if none of the circumstances required in rape be present; and 3.] committing an act of sexual assault by inserting a person's penis into the victim's mouth or anal orifice, or by inserting any instrument or object, into the genital or anal orifice of another person. Rape; Anti-Rape Law of 1997 (2002) The Anti-Rape Law of 1997 reclassified rape from a crime against honor, a private offense, to that of a crime against persons. Will the subsequent marriage of the offender and the offended party extinguish the criminal action or the penalty imposed? Explain. (2%) SUGGESTED ANSWER: Yes. By express provision of Article 266-C of the Revised Penal Code, as amended, the subsequent valid marriage between the offender and offended party shall extinguish the criminal action or the penalty imposed, although rape has been reclassified from a crime against chastity, to that

Rape; Consented Abduction (2002)

SUGGESTED ANSWER: A committed the crime of consented abduction under Article 343 of the Revised Penal Code, as amended. The said Article punishes the abduction of a virgin over 12 and under 18 years of age, carried out with her consent and with lewd designs. Although the problem did not indicate the victim to be virgin, virginity should not be understood in its material sense, as to exclude a virtuous woman of good reputation, since the essence of the crime is not the injury to the woman but the outrage and alarm to her family (Valdepenas vs. People,16 SCRA 871 [1966]). ALTERNATIVE ANSWER: A committed "Child Abuse" under Rep. Act No. 7610. As defined in said law, "child abuse" includes sexual abuse or any act which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being, whose age is below eighteen (18) years. Rape; Effect; Affidavit of Desistance (1993) 1 Ariel intimidated Rachel, a mental retardate, with a bolo into having sexual Intercourse with him. Rachel's mother immediately filed a complaint, supported by her sworn statement, before the City Prosecutor's Office. After the necessary preliminary investigation, an information was signed by the prosecutor but did not contain the signature of Rachel nor of her mother. Citing Art. 344 of the RPC (prosecution of the crimes of rape, etc.), Ariel moves for the dismissal of the case. Resolve with reasons. 2 After the prosecution had rested its case, Ariel presented a sworn affidavit of desistance executed by Rachel and her mother stating that they are no longer interested in prosecuting the case and that they have pardoned Ariel. What effect would this affidavit of desistance have on the criminal and civil aspects of the case? Explain fully. SUGGESTED ANSWER: 1) The case should not be dismissed. ... 2) The affidavit of desistance will only amount to the condonation of civil liability but not criminal liability hence the case should still proceed. Rape; Male Victim (2002) A, a male, takes B, another male, to a motel and there, through threat and intimidation, succeeds in inserting his penis into the anus of B. What, if any, is A’s criminal liability? Why? SUGGESTED ANSWER: A shall be criminally liable for rape by committing an act of sexual assault against B, by inserting his penis into the anus

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of the latter. Even a man may be a victim of rape by sexual assault under par. 2 of Article 266-A of the Revised Penal Code, as amended, "when the offender's penis is inserted into his mouth or anal orifice."

you convict the accused of rape if you were the judge trying the case?

Rape; Multiple Rapes; Forcible Abduction (2000)

SUGGESTED ANSWER:

Flordeluna boarded a taxi on her way home to Quezon City which was driven by Roger, Flordeluna noticed that Roger was always placing his car freshener in front of the car aircon ventilation but did not bother asking Roger why. Suddenly, Flordeluna felt dizzy and became unconscious. Instead of bringing her to Quezon City, Roger brought Flordeluna to his house in Cavite where she was detained for two (2) weeks. She was raped for the entire duration of her detention. May Roger be charged and convicted of the crime of rape with serious illegal detention? Explain. (5%)

Yes, I would convict the accused of rape. Since the victim is a mental retardate with an intellectual capacity of a child less than 12 years old, she is legally incapable of giving a valid consent to the sexual Intercourse. The sexual intercourse is tantamount to a statutory rape because the level of intelligence is that of a child less than twelve years of age. Where the victim of rape is a mental retardate, violence or Intimidation is not essential to constitute rape. (People us. Trimor, G,R. 106541-42, 31 Mar 95) As a matter of fact, RA No. 7659, the Heinous Crimes Law, amended Art. 335, RPC, by adding the phrase "or is demented."

Explain.

SUGGESTED ANSWER: No, Roger may not be charged and convicted of the crime of rape with serious illegal detention. Roger may be charged and convicted of multiple rapes. Each rape is a distinct offense and should be punished separately. Evidently, his principal intention was to abuse Flordeluna; the detention was only incidental to the rape.

Title Nine CRIMES AGAINST PERSONAL LIBERTY AND SECURITY

ALTERNATIVE ANSWER: No, Roger may not be charged and convicted of the crime of rape with serious illegal detention, since the detention was incurred in raping the victim during the days she was held. At most, Roger may be prosecuted for forcible abduction for taking Flordeluna to Cavite against the latter's will and with lewd designs. The forcible abduction should be complexed with one of the multiple rapes committed, and the other rapes should be prosecuted and punished separately, in as many rapes were charged and proved.

Chapter One. CRIMES AGAINST LIBERTY

Section One – Illegal Detention Article 267. Kidnapping and serious illegal detention Article 268. Slight illegal Detention Article 269. Unlawful arrest

Rape; Proper Party (1993) Ariel intimidated Rachel, a mental retardate, with a bolo into having sexual Intercourse with him. Rachel's mother immediately filed a complaint, supported by her sworn statement, before the City Prosecutor's Office. After the necessary preliminary investigation, an information was signed by the prosecutor but did not contain the signature of Rachel nor of her mother. Citing Art. 344 of the RPC (prosecution of the crimes of rape, etc.), Ariel moves for the dismissal of the case. Resolve with reasons.

Section Two – Kidnapping of Minors Article 270. Kidnapping and failure to return a minor Article 271. Inducing a minor to abandon his home

Section Three – Slavery and servitude

SUGGESTED ANSWER:

Article 272. Slavery

The case should not be dismissed. This is allowed by law (People us. Ilarde, 125 SCRA 11). It is enough that a Criminal Law Bar Examination Q & A (1994-2006) complaint was filed by the offended party or the parents in the Fiscal's Office.

Article 273. Exploitation of Child Labor

Rape; Statutory Rape; Mental Retardate Victim (1996) The complainant, an eighteen-year old mental retardate with an intellectual capacity between the ages of nine and twelve years, when asked during the trial how she felt when she was raped by the accused, replied "Masarap, it gave me much pleasure." With the claim of the accused that the complainant consented for a fee to the sexual intercourse, and with the foregoing answer of the complainant, would

Article 274. Service rendered under compulsion in payment of debt

Chapter Two – CRIMES AGAINST SECURITY

Section One – Abandonment of helpless persons and exploitation of minors Article 275. Abandonment of persons in danger and

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abandonment of one’s own victim Article 276. Abandoning a minor Article 277. Abandonment of minor by person entrusted with his custody; indifference of parents Article 278. Exploitation of minors Article 279. Additional penalties for other offenses

Elements:

1. 2. 3. 4.

Offender is a private individual; He kidnaps or detains another, or in any other manner deprives the latter of his liberty; The act of detention or kidnapping must be illegal; In the commission of the offense, any of the following circumstances is present:

Section Two – Trespass to dwelling Article 280. Qualified trespass to dwelling

a. b. c.

Article 281. Other forms of trespass

d.

Section Three – Threats and Coercion Article 282. Grave threats Article 283. Light threats

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Article 284. Bond for good behavior Article 285. Other light threats Article 286. Grave coercions

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Article 287. Light coercions Article 288. Other similar coercions (compulsory purchase of merchandise and payment of wages by means of tokens) Article 289. Formation, maintenance and prohibition of combination of capital or labor through violence or threats

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Chapter Three – DISCOVERY AND REVELATION OF SECRETS

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Article 290. Discovering secrets through seizure of

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correspondence Article 291. Revealing secrets with abuse of office

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Article 292. Revelation of industrial secrets

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Article 267. Kidnapping and serious illegal detention

The kidnapping lasts for more than 3 days; It is committed simulating public authority; Any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or The person kidnapped or detained is a minor, female, or a public officer.

If the offender is a public officer, the crime is arbitrary detention. The public officer must have a duty under the law to detain a person to be liable for arbitrary detention. If he has no such duty, and he detains a person, he is liable under this article. When the victim is a minor and the accused is one of the parents, the penalty shall be arresto mayor or a fine not exceeding 300 pesos or both (Article 271, par. 2) The essential element of kidnapping is the deprivation of the offended party’s liberty under any of the four instances enumerated. But when the kidnapping was committed for the purpose of extorting ransom, it is not necessary that one or any of circumstances enumerated be present. When the kidnapping is done for the purpose of extorting ransom from the victim or any other person, actual demand for ransom is not necessary, as long as it can be proven that the kidnapping was done for the purpose of extorting ransom. It is essential in the crime of illegal detention that there be actual confinement or restriction of the person of the offended party. Not necessary that the victim be placed in an enclosure, as long as he is deprived, in any manner, of his liberty. Detention is illegal when not ordered by competent authority or not permitted by law. Special Complex Crime of Kidnapping with murder – when the victim is killed or dies as a consequence of the detention, the maximum penalty (death) shall be imposed. Where the victim is taken from one place to another solely for the purpose of killing him, the crime committed is murder. Maximum penalty is imposed in the ff. cases: o If the purpose of detention is to extort ransom o When the victim is killed or dies as a consequence of the detention o When the victim is raped C2005 Criminal Law 2 Reviewer

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When the victim is subjected to torture or dehumanizing acts. Conspiracy to extort ransom makes all the conspirators liable under this article, including those who did not take part in the money. o

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Illegal detention

Arbitrary detention

Committed by a private individual, who unlawfully deprives a person of his liberty

Committed by a public officer or employee, who detains a person without legal ground

Crime against personal liberty

Crime against the fundamental laws of the state

People vs. Lim

Lim took in two young girls who were loitering in front of her sari-sari store. Lim sent the younger girl to Cebu while the older girl stayed in the store. Days later, the girls’ father arrived to bring the two girls back with him.

HELD: There is no kidnapping in this case because the two minors voluntarily entered Lim’s residence and there was no showing that there was actual confinement or restriction of the person of the offended party. Both girls were free to go in and out of the store.

People vs. Tomio

People vs. Padica

A Japanese national named Tomio was arrested after being implicated for possessing marijuana. Two other Japanese claimed that they paid money for Tomio’s release and so they held Tomio under their custody, asking for the amount they allegedly advance to the police.

A 14-year old boy was brought to a sugarcane plantation, where he was shot and killed immediately. The accused demanded ransom soon after.

HELD: Even if the two accused only wanted to recover the money they allegedly advanced to the police, the crime is still kidnapping because of the essential element of deprivation of liberty.

HELD: Where the evident purpose of taking the victim was to kill him, and from the acts of the accused it cannot be inferred that the latter’s purpose was to actually detain or deprive the victim of his liberty, the subsequent killing of the victim did not constitute the crime of murder. The demand for ransom did not convert the crime into kidnapping since no deprivation of liberty was involved.

People vs. Mercado People vs. Luartes The accused held a knife against his girlfriend’s sister for nearly five hours. The victim’s ordeal ended only after the barangay captain was able to subdue the accused.

HELD: The crime is kidnapping because the victim was actually restrained or deprived of her liberty, notwithstanding the fact that the accused only wanted the victim to produce her.

Luartes kidnapped a 3-yr old girl outside Isettan Recto. The girl was in the mall with her mother, who lost her. Luartes’ defense was that he was merely helping the lost girl find her mother. He says he had no intention of kidnapping Junichi and that the prosecution witnesses (police officers) merely misconstrued his actuations.

HELD: If indeed accused-appellant was trying to help the lost child, why then did he misrepresent himself as her uncle? And, if his intention was only to help the child look for her mother, why did he have to board a passenger jeepney taking the child with him? People vs. Del Socorro

Del Socorro grabbed a little girl and brought the child to a doctor, asking for 700 pesos in return. The doctor gave the child to her spinster aunt.

The essence of kidnapping under Art. 267 is the actual deprivation of the victim's liberty coupled with the intent of the accused to effect it. The crime in this case clearly comes under par. 4 of Art. 267 of the Penal Code. The detention was committed by Luartes who was a private individual and the person kidnapped was a three (3)-year old minor.

HELD: The defense that the child voluntarily went with the accused is belied by the fact that the child openly resisted the abduction and even had to be carried to the jeep.

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People vs. Pavillare

Pavillare was convicted of kidnapping an Indian national and sentenced to death. He argues that he should have been convicted of simple robbery only and not kidnapping with ransom because the evidence proves that their prime motive was to obtain money and that the complainant was detained only for two hours.

HELD: The pretense that the money was supposedly in exchange for the dropping of the charges for rape is not supported by the evidence. The accused released the complainant when the money was handed over to him and after counting the money, he and his companions immediately left the scene. This clearly indicated that the payment of the ransom money is in exchange for the liberty of the private complainant. The duration of the detention even if only for a few hours does not alter the nature of the crime committed. The crime of kidnapping is committed by depriving the victim of liberty whether he is placed in an enclosure or simply restrained from going home. As squarely expressed in Article 267, above-quoted the penalty of death is imposable where the detention is committed for the purpose of extorting ransom, and the duration of the detention is not material.

People vs. Ballenas

Accused Ballenas pointed a short firearm to Wilma and Consorcia inside their home. Accused told Wilma to accompany him to Maria his girlfriend. Wilma refused, as they were about to eat supper. Consorcia also told her daughter, Wilma not to go out because it was already dark. Accused Ballenas forced Wilma to go out with him. Because of the abduction, Consorcia sought the help of a neighbor, Andres but to no avail, as Andres shut the door on her for fear of Ballenas as the latter is known as a member of the dreaded Sparrow Unit of the NPA.

The following morning, Consorcia reported the abduction of Wilma to her son-in-law who is a member of the Integrated National Police. She learned from Aurelio that Wilma was already dead. The police then proceeded to the scene of the incident. Ballenas was found guilty of forcible abduction with rape and sentenced to Reclusion perpetua.

HELD: BALLENAS committed the crime of forcible abduction with rape on March 20, 1987, before the passage of Republic Act 7659 or the Heinous Crimes Law that took effect on December 31, 1993. At the time that BALLENAS committed the crime of forcible abduction with rape, the penalty then applicable was reclusion perpetua to death. The use by BALLENAS of a firearm in committing the crime, a fact duly alleged in the information and proven in court, should have warranted the imposition of the death penalty. However, since the crime took place prior to the implementation of RA 7659, the trial court correctly ruled that the penalty that can be imposed on BALLENAS is reclusion perpetua. Hence, despite the presence of the aggravating circumstance of dwelling, the penalty herein of reclusion perpetua would not be affected. Under Article 63 of the Revised Penal Code, the penalty of reclusion perpetua should be applied

regardless of any mitigating or aggravating circumstance that may have attended the commission of a crime.

People v. Silongan, 401 SCRA 459 (2003)

FACTS: Businessman Alexander Saldaña went to Isulan, Sultan Kudarat with Rejuso, Tormis, and Cinco to meet with Macapagal Silongan alias Commander Lambada concerning the gold nuggets that were purportedly being sold by the latter. During the meeting Macapagal told them that someone in his family has just died and that he has to pick up an elder brother in hence, they had better transact business in the afternoon. In the afternoon, Alexander’s group and Macapagal, with Teddy and Oteng both surnamed Silongan, traveled to fetch Macapagal’s brother. Afterwards, the group returned to Isulan on Macapagal’s orders. At Isulan, Macapagal gave additional instructions to wait until dark allegedly because the funeral arrangements for his relative were not yet finished. When the group finally got on their way, Macapagal who was earlier busy talking over his hand-held radio with someone in the Maguindanaoan dialect ordered the driver to drive slowly towards the highway. Oteng and his bodyguards alighted somewhere long the way. As they neared the highway, Macapagal ordered the driver to stop. Suddenly, 15 armed men appeared. Alexander and his 3 companions were ordered to go out of the vehicle, tied up, and blindfolded. Macapagal and Teddy were also tied up and blindfolded, but nothing more was done to them. The 4 were taken to a mountain hideout. After much haggling twelve million pesos was demanded from Alexander for his release, They made Alexander write a letter to his wife to pay the ransom which was hand-carried by a certain Jafar, alias Dante, and two of the victims, Tormis and Cinco, who both later managed to escape. No ransom was obtained so other persons were sent and one of the victims, Rejuso to renegotiate with Alexander’s wife. No agreement was likewise reached. Seven days later, Alexander and Rejuso were transferred to the town proper and was guarded them by several men. When the kidnappers learned that the military was looking for Alexander, they returned to the mountain hideout and stayed there for two weeks. At one time, Alexander Saldaña was made to stay at a river hideout where a certain Commander Kugta held him and sheltered his abductors for at least a week. There, Alexander saw Macapagal with Manap and other armed men. These men brought Alexander to different places and was made to write more letters to his family. All in all appellant was detained for a total of 6 months. Saldaña was later released to the military in exchange for a relative of one of the abductors who was caught delivering a ransom note to Alexander’s family.

HELD: The essence of the crime of kidnapping and serious illegal detention as defined and penalized in Article 267 of the Revised Penal Code is the actual deprivation of the victim’s liberty coupled with proof beyond reasonable doubt of an intent of the accused to effect the same. It is thus essential that the following be established by the prosecution: (1) the offender is a private individual; (2) he kidnaps or detains another, or in any other manner deprives the latter of his liberty; (3) the act of detention or kidnapping must be illegal; and (4) in the commission of the offense, any of the four circumstances enumerated in Article 267 be present. But if the kidnapping was done for the purpose of extorting ransom, the fourth element is no longer necessary. There is no mistaking the clear, overwhelming evidence that the appellants abducted Alexander Saldaña and his companions at gunpoint and deprived them of their freedom. That the appellants took shifts guarding the victims until only Alexander was left to be guarded and in transferring Alexander from one hideout to another to

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prevent him from being rescued by the military establish that they acted in concert in executing their common criminal design.

People v. Cortez, 324 SCRA 335 (2000)

FACTS: Mendoza was in her house when accused Cortez, Callos and Betonio, all armed with bolos, arrived. They were looking for Lolita's cousin, Esminda, and were threatening to kill him on sight. Unable to find Santos, they decided to abduct Lolita to prevent her from reporting the incident to the police. Accompanied by the other two, accused Callos pointed his bolo at Lolita's back and dragged her to the mountain. They brought her to the house of Torral, an uncle of accused Cortez, where Cortez bound her hand with a belts and thereafter continued their search for Santos. Hours later, PO2 Santos and barangay captain Colarina rescued found Lolita outside the nipa hut of the Torrals, conversing with Pablo Torral. Lolita told them that the Torrals did not prevent her from leaving their house. However, she did not attempt to escape for fear that the accused would make good their threat to kill her. Appellants allege failure to establish one of the essential elements of the crime, i.e., deprivation of the victim's liberty. They point out that at the time of the rescue, Lolita was not physically confined inside the house as they found her standing outside, conversing with Pablo Torral. They stress that Lolita herself declared that she was not prevented by the Torrals from leaving the house.

HELD: For the crime of kidnapping to prosper, the intent of the accused to deprive the victim of his liberty, in any manner, has to be established by indubitable proof. However, it is not necessary that the offended party be kept within an enclosure to restrict her freedom of locomotion. In the case at bar, the deprivation of Lolita's liberty was amply established by evidence. When the appellants failed to find Lolita's cousin, they forcibly dragged her to the mountains and kept her in the house of the Torrals. Cortez even bound her hands with a belt. Although at the time of the rescue, she was found outside the house talking to Pablo Torral, she explained that she did not attempt to leave the premises for fear that the appellants would make good their threats to kill her should she do so. Her fear is not baseless as the appellants knew where she resided and they had earlier announced that their intention in looking for Lolita's cousin was to kill him on sight. Certainly, fear has been known to render people immobile. Indeed, appeals to the fears of an individual, such as by threats to kill or similar threats, are equivalent to the use of actual force or violence which is one of the elements of the crime of kidnapping under Article 267 (3) of the Revised Penal Code.

People v. Suriaga, 381 SCRA 159 (2002) FACTS: Edwin Ramos was cleaning the car of his older brother, Johnny who was taking care of his 2-year old daughter, Nicole, playing inside the car. Suriaga, a cousin of the Ramos brothers, arrived. He was accompanied by his live-in-partner Rosita. Suriaga requested Edwin if he could drive the car, but the latter declined, saying he did not have the keys. Meanwhile, Johnny returned to his house because a visitor arrived. At this instance, Rosita held Nicole and cajoled her. Rosita asked Edwin if she could take Nicole with her to buy barbeque. Having been acquainted with Rosita for a long time and because he trusted her, Edwin acceded. When Rosita and the child left, Suriaga joined them. More than an one hour has passed but the two failed to return with Nicole. Edwin, Johnny and his wife, Mercedita, then began searching but they could

not find their daughter and Rosita. Nicole’s grandfather then receive a call from Suriaga asking for ransom in the amount of P100,000.00. Johnny immediately reported the call to the PACC Task Force. The next day, Suriaga called Mercedita, introduced himself and asked her if she and her husband would give the amount to which the latter responded in the positive. Suriaga instructed Mercidita as to the how the money should be delivered to him with a warning that if she will not deliver the money, her daughter would be placed in a plastic bag or thrown in a garbage can. Thereafter, with the cash money, and while being tailed by PACC agents, Mercida proceeded to deliver the money to Suriaga. The PACC agents arrested Suriaga and his companion Isidera after Mercida gave the money to them. Prior thereto, Nicole was rescued in a shanty where Rosita’s sister lived. HELD: The essence of the crime of kidnapping is the actual deprivation of the victim’s liberty, coupled with indubitable proof of the accused’s intent to effect the same. And if the person detained is a child, the question that needs to be addressed is whether there is evidence to show that in taking the child, there was deprivation of the child’s liberty and that it was the intention of the accused to deprive the mother of the child’s custody. Undoubtedly, the elements of kidnapping for ransom have been sufficiently established by the prosecution considering the following circumstances: 1) appellant, a private individual, took the young Nicole without personally seeking permission from her father; 2) appellant took the girl and brought her to a shanty where Rosita’s sister lived, without informing her parents of their whereabouts; 3) he detained the child and deprived her of her liberty by failing to return her to her parents overnight and the following day; and 4) he demanded a ransom of P100,000.00 through telephone calls and gave instructions where and how it should be delivered.

People v. Acbangin, 337 SCRA 454 (2000)

FACTS: Jocelyn brought four-year old Sweet to Niu’s house without the consent of the child’s father Danilo Acbangin. When Danilo asked Jocelyn about her daughter who he last saw playing in the latters house, Jocelyn denied knowing of the child's whereabouts. After 2 days, Jocelyn acompanied Danilo, Sweet's grandfather and police officers to Niu's house. The latter voluntarily turned Sweet over to her father and the policemen. Sweet was well-dressed and smiling. She ran to her father and embraced him.

HELD: In cases of kidnapping, if the person detained is a child, the question is whether there was actual deprivation of the child's liberty, and whether it was the intention of the accused to deprive the parents of the custody of the child. Sweet was deprived of her liberty. True, she was treated well. However, there is still kidnapping. For there to be kidnapping, it is not necessary that the victim be placed in an enclosure. It is enough that the victim is restrained from going home. Given Sweet's tender age, when Jocelyn left her in Niu's house, at a distant place in Tondo, Manila, unknown to her, she deprived Sweet of the freedom to leave the house at will. It is not necessary that the detention be prolonged. The intention to deprive Sweet's parents of her custody is indicated by Jocelyn's hesitation for two days to disclose Sweet's whereabouts and more so by her actual taking of the child. Jocelyn's motive at this point is not relevant. It is not an element of the crime.

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People v. Pavillare, 329 SCRA 684 (2000) FACTS: Sukhjinder Singh, an Indian national was on his way back to his parked motorcycle when three men blocked his way. Pavillare, who was one of them, accused Singh of having raped the woman inside a Kia taxi cab parked nearby. Singh denied the accusation, the three men nevertheless forced him inside the cab and brought him in Quezon City. One of the abductors took the key to his motorcycle and drove it alongside the cab. Singh was beaten up and P100,000.00 was demanded for his release. Singh told them that he only had P5,000.00 with him. Pavillare then forced him to give the phone numbers of his relatives so they can make their demand from them. Singh gave the phone number of his cousin Lakhvir Singh and then Pavillare made the call. The amount of 25,000.00 was agreed upon. An uncle and his cousin Lakhvir arrived in a motorcycle and together with the kidnappers they entered a mini-grocery. Later the kidnappers brought the complainant to the mini-grocery where he met his relatives. The ransom money was handed to the appellant. He counted the money and then, together with his cohorts, immediately left the scene. Pavillare argues that he should have been convicted of simple robbery and not kidnapping with ransom because the evidence proves that the prime motive of the Pavillare and his companions is to obtain money and that the complainant was detained only for two hours: HELD: The duration of the detention even if only for a few hours does not alter the nature of the crime committed. The crime of kidnapping is committed by depriving the victim of liberty whether he is placed in an enclosure or simply restrained from going home. As squarely expressed in Article 267 of the RPC the penalty of death is imposable where the detention is committed for the purpose of extorting ransom, and the duration of the detention is not material.

Ransom People v. Castro, 385 SCRA 24 FACTS: Saez was informed by his siblings that Castro called up to say that the latter wanted to speak with Saez. After taking a quick shower, Saez repaired to Castro’s residence. Just as Castro opened the gate for Saez, Castro pointed and fired his 9 mm. handgun at Saez, its bullet whizzing by his right ear. Saez was thrown against the concrete wall of the house. He was then taken inside the house. Reyes and Jde los Angeles, joined Castro in mauling Saez. Castro hit Saez with an iron club. At around nine o’clock in the evening, Castro handed over to him a phone and ordered him to tell his family to raise twenty thousand (P20,000.00) pesos. Fifteen minutes later, Castro gave back the phone to Saez and told him to instruct the person on the other line to bring the money to a place near a hospital. About half an hour later, another call was placed to follow-up the demand. Turning to de los Angeles and Reyes, Castro instructed the two to go to the “drop-off point.” Nobody showed up. After an hour, Saez was ordered to call again, this time to designate another place where the money was to be delivered. Castro told Saez to have his relatives bring the money to the vicinity of the Aglipay Church in Caridad. Again, no meeting materialized. Around midnight, Castro, de los Angeles and Reyes left the house and stayed by the gate conversing with one another. The victim took the opportunity to flee. He was able to untie his legs and tackle the stairs towards the second storey. He jumped out through the window but the noise he created caught the attention of Castro. The latter fired his gun, hitting the fleeing victim and planting a bullet in his buttocks. His plea for help alarmed some barangay officials who immediately came to his rescue and brought him to the nearest hospital HELD: The corpus delicti in the crime of kidnapping for ransom is the fact that an individual has been in any manner deprived of his liberty for the purpose of extorting ransom from the

victim or any other person. Whether or not the ransom is actually paid to or received by the perpetrators is of no moment. In People vs. Salimbago, the Court stressed: “x x x No specific form of ransom is required to consummate the felony of kidnapping for ransom so long as it was intended as a bargaining chip in exchange for the victim’s freedom. In municipal criminal law, ransom refers to the money, price or consideration paid or demanded for redemption of a captured person or persons, a payment that releases from captivity. Neither actual demand for nor actual payment of ransom is necessary for the crime to be committed.”

People v. Ejandra, 429 SCRA 364

FACTS: While Ed Henderson, the 9-year old son of spouses Eddie and Marileen Tan was on his way back to the house of his tutor in Chinese language to wait for his father, accused Tampos, armed with a revolver, chased and overtook the boy. Tampos then ordered the boy to proceed to a motorcycle parked nearby where appellants Ejandra and Revilla were waiting. Ejandra covered Ed Henderson's mouth with his hand, pointed his gun at the boy and warned the latter not to shout. Thereafter, Tampos ordered Ed Henderson to board the motorcycle, or else, he would be shot. Ed was brought to a house where one Huera, and Calunod was. Ed Henderson was ordered to write down his father's telephone number, as well as that of their house and their store. Eddie then received a call through his home phone, informing him that his son had been kidnapped. Several calls were made and a reduced ransom of P548,000 for the safe release of Ed Henderson was eventually agreed upon. Eddie was then instructed to place the money in a newspaper and to bring the money to the parking lot in front of a Church. Eddie did as he was told. He proceeded to the designated place. When Calunod approached and called Eddie, the latter handed over the plastic bag which contained the money. Eddie asked Calunod how his son was. Calunod told Eddie not to worry because the latter would bring the boy home. Calunod then walked to the gate of the church and went home to wait for his son's return. Ed Henderson returned on board a taxi and was soon reunited with his waiting family. Ejandra, Calunod, Tampos and Revilla were convicted of kidnapping for ransom and were sentenced to suffer the death penalty.

HELD: Since all the foregoing facts indubitably show that the appellants conspired to kidnap the victim for ransom, the Court affirmed the conviction of Ejandra, Calunod, Tampos and Revilla of kidnapping for ransom. To warrant an imposition of the death penalty for the crime of kidnapping and serious illegal detention for ransom, the prosecution must prove the following beyond reasonable doubt: (a) intent on the part of the accused to deprive the victim of his liberty; (b) actual deprivation of the victim of his liberty; and, (c) motive of the accused, which is ransom for the victim or other person for the release of the victim. The purpose of the offender in extorting ransom is a qualifying circumstance which may be proven by his words and overt acts before, during and after the kidnapping and detention of the victim. Neither actual demand for nor actual payment of ransom is necessary for the crime to be committed. Ransom, as employed in the law, is so used in its common or ordinary sense; meaning, a sum of money or other thing of value, price, or consideration paid or demanded for redemption of a kidnapped or detained person, a payment that releases from captivity. It may include benefits not necessarily pecuniary which may accrue to the kidnapper as a condition for the victim's release. n this case, the appellants not only demanded but also received ransom for the

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release of the victim. The trial court correctly sentenced the appellants to death.

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Mandatory Imposition of Death Penalty

People v. Morales, 427 SCRA 765

 FACTS: Jefferson Tan was with his siblings, Jessie Anthony and Joanna Tan, his cousin, Malou and their driver, Cesar on board the family L-300 van. Along the highway, the vehicle slowed down to steer clear of a damaged portion of the road when Malit suddenly poked a gun at Cesar. Simultaneously, Morales, Esguerra, and Saldaña entered the van. Esguerra took the driver's seat and the other two blindfolded the five victims. Jefferson was eventually sent home to get the 2M ransom which was later reduced to 1.5M, from his father, Feliciano. Jefferson was instructed to bring the ransom to a snack center. Feliciano did not allow his son to bring the ransom and explained to the kidnappers that Jefferson was in shock and could not go. When asked about the ransom money, he told the caller that he could only give P92,000. The caller agreed. Later, at the place where the kidnappers instructed Feliciano to go, the latter gave the money and he was handed the keys to the L-300 van where his children are.

Article 269. Unlawful arrest

Elements:

1. 2. 3.

HELD: The elements of the crime of kidnapping and serious illegal detention are the following: (a) the accused is a private individual; (b) the accused kidnaps or detains another, or in any manner deprives the latter of his liberty; (c) the act of detention or kidnapping is illegal; and (d) in the commission of the offense, any of the four circumstances mentioned in Article 267 of the Revised Penal Code are present. The imposition of the death penalty is mandatory if the kidnapping was committed for the purpose of extorting ransom. In the instant case, appellants cannot escape the penalty of death, inasmuch as it was sufficiently alleged and indubitably proven that the kidnapping had been committed for the purpose of extorting ransom.

Article 268. Slight illegal detention

Elements:

Privileged mitigating circumstance (penalty lower by one degree) – if the offender: o Voluntarily releases the person so kidnapped or detained within three days from the commencement of the detention; o Without having attained the purpose intended; and o Before the institution of criminal proceedings against him. Voluntary release is not a privileged mitigating circumstance if the victim is woman, because the detention would then be punished under Article 267. Voluntary release is not mitigating under that article.

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

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Offender arrests or detains another person; The purpose of the offender is to deliver him to the proper authorities; The arrest or detention is not authorized by law or there is no reasonable ground therefor. Unlawful arrests by public officers should be punished under Article 124, if the public officer has the legal authority to arrest and detain a person, but the arrest is without legal ground. If the public officer has no authority to arrest and detain a person, or if he did not act in his official capacity, he should be punished for unlawful arrest under this article. Compare with art. 267 The motive of the person arresting is controlling. If his purpose is to deliver to proper authorities, this article applies. Absence of this motive may be shown by the length of time the victim is detained. If the purpose of delivering to proper authorities is not shown, the person may be liable for other illegal detention (under 267 or 268, depending on the circumstances of the case) Unlawful arrest

1. 2. 3. 4.



Offender is a private individual; He kidnaps or detains another, or in any other manner deprives him of his liberty. The act of kidnapping or detention is illegal; The crime is committed without the attendance of any of the circumstances enumerated in Article 267. The same penalty for slight illegal detention shall be incurred by anyone who shall furnish the place for the perpetration of the crime. (normally, this is an accomplice but under this article he is treated as coprincipal)

Delay of delivery of detained persons

The detention is not authorized by law

The detention is for some legal ground

Crime is committed by making an arrest not authorized by law

Crime is committed by failing to deliver such persons to the proper judicial authority within a certain period of time

Bar Questions

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Arbitrary Detention; Elements; Grounds (2006)

Article 270. Kidnapping and failure to return a minor

1. What are the 3 ways of committing arbitrary detention? Explain each. (2.5.%) SUGGESTED ANSWER:

Elements:

The 3 ways of arbitrary detention are: a) Arbitrary detention by detaining a person without legal ground committed by any public officer or employee who, without legal grounds, detains a person (Art. 124, Revised Penal Code). b) Delay in the delivery of detained persons to the proper judicial authorities which is committed by a public officer or employee who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of: twelve (12) hours, for crimes or offense punishable by light penalties, or their equivalent; eighteen hours (18), for crimes or offenses punishable by correctional facilities, or their equivalent; and thirty-six (36) hours for crimes or offenses punishable by afflictive or capital penalties, or their equivalent (Art. 125, Revised Penal Code). c) Delaying release is committed by any public officer or employee who delays the release for the period of time specified therein the performance of any judicial or executive order for the release of the prisoner, or unduly delays the service of the notice of such order to said prisoner or the proceedings upon any petition for the liberation of such person (Art. 126, Revised Penal Code).

1. 2.





Offender is entrusted with the custody of a minor person (whether over or under seven years but less than 21 years of age); He deliberately fails to restore the said minor to his parents or guardians. What is punished is the deliberate failure of the custodian of the minor to restore the latter to his parents or guardians. When the crime is committed by the father or mother of the minor, the penalty is arresto mayor or a fine not exceeding 300 pesos or both. Article 270

Article 267

Offender is entrusted with the custody of the minor

The offender is not entrusted with the custody of the minor

People vs. Ty

2. What are the legal grounds for detention? (2.5%) SUGGESTED ANSWER: The commission of a crime, or violent insanity or any other ailment requiring the compulsory confinement of the patient in a hospital shall be considered legal grounds for the detention of any person (Art. 124[2], Revised Penal Code). 3. When is an arrest by a peace officer or by a private person considered lawful? Explain. (5%) 1. When the arrest by a peace officer is made pursuant to a valid warrant. 2. A peace officer or a private person may, without a warrant, arrest a person: i. When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense, ii. When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it, and iii. When the person to be arrested is a prisoner who has escaped from penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another (Sec. 5, Rule 113,1985 Rules on Criminal Procedure).

A mother left her sick child in a clinic and only came back to claim the child five years later. Unfortunately, the doctors had already entrusted the child to a guardian.

HELD: Two elements must concur in the crime of kidnapping of a minor: (a) the offender had been entrusted with the custody of the minor; and (b) the offender DELIBERATELY fails to restore said minor to his parents or legal guardian. In the case at bar, it is evident that there was no deliberate refusal or failure to return the minor as it was proven that the doctors tried their best to locate the child, even seeking NBI’s assistance along the way.

People vs. Gutierrez (1991)

Lilia Gutierrez was convicted by the RTC of Manila of the crime of kidnapping and failure to return a minor and sentenced to reclusion perpetua. The minor was Hazel Elpedes, her 2 and a half-year-old nephew (yup, Hazel’s a guy in this story), whom Gutierrez allegedly sold to the spouses Felipe for P250 (Lilia claims she did it to spite her husband, brother of Hazel’s mom, who had abandoned her).

HELD: The offense of kidnapping and failure to return a minor under Art. 270 of the RPC consists of 2 elements:

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 

the offender has been entrusted with the custody of a minor person, and the offender deliberately fails to restore said minor to his parents or guardians.

deprived him of his liberty; and, (c) the deprivation of the victim's liberty was illegal. As provided for in Art. 267 of the RPC as amended, the imposition of the death penalty is mandatory if the victim is a minor and also, if the kidnapping was committed for the purpose of extorting ransom from the victim or any other person.

It is clear that Gutierrez admitted the existence of the first element (she asked her in-laws for permission to take the boy out).

The second element has likewise been established. In the first place, Gutierrez's own conduct in leading the boy’s father and police to the Felipe residence in Intramuros indicated her awareness of the probable whereabouts of the child. The logical conclusion is that she must have been the person responsible for originally leaving the child with the Felipe spouses. In the second place, the precise motive that Gutierrez might have had for bringing Hazel Elpedes to the Felipe spouses and leaving him with them, apparently for an indefinite period, is not an indispensable element of the offense charged. All that was necessary for the prosecution to prove was that she had deliberately failed to return the minor to his parents.

People vs. Reyes (1996)

Delia Reyes, maid of the Mohamad spouses, was convicted of kidnapping one of their daughters, Asnia. After spending 300-grand on a manhunt, Asnia was recovered a couple of months later. Reyes claims that, while out with Asnia, she ran into her sister who informed her of their mom’s death; Reyes then allegedly had a friend take Asnia home while she (Reyes) and her sister went to La Union for their mom’s wake (basically, she’s blaming somebody else).

HELD: Reyes's negligence is wanton and gross as to amount to a deliberate and willful scheme to take the child away from her parents. This willfulness is sufficiently established by the following circumstances: (1) appellant lured Asnia and her sister into leaving their house; (2) she instructed the two elder sisters to go home but kept the youngest with her; (3) she and Asnia could not be located despite extensive search by the authorities and the widespread publicity generated through the television, radio and print media; (4) the child was found two months later and only after the arrest of appellant; and (5) appellant harbored ill-feelings against the Mohamads family (she admitted that, at one point, the Mohamads did not pay her salary for 5 months when she worked for them in 1989).

IN CAB, the minority of Kenneth was never disputed. The minority and the demand for the payment of ransom, both specifically described in the Information, were clearly established by the State, free of any scintilla of doubt.

People v. Borromeo (2000)

FACTS: Borromeo alias "Sonny", a bakery helper of Rowena who had been discharged by her due to negative attitude problems, kidnapped her 1-year and 7-months old son. The next day, Sonny demanded a P300,000 ransom. He was convicted of kidnapping a minor for ransom and was sentenced to death.

HELD: There is no question that the elements of kidnapping for ransom were sufficiently established: (a) the accused is a private individual; (b) the accused kidnapped or detained the victim and deprived him of his liberty; and, (c) the deprivation of the victim's liberty was illegal. As provided for in Art. 267 of the RPC as amended, the imposition of the death penalty is mandatory if the victim is a minor and also, if the kidnapping was committed for the purpose of extorting ransom from the victim or any other person. IN CAB, the minority of Kenneth was never disputed. The minority and the demand for the payment of ransom, both specifically described in the Information, were clearly established by the State, free of any scintilla of doubt.

People v. Pastrana, 387 SCRA 342

Borromeo alias "Sonny", a bakery helper of Rowena who had been discharged by her due to negative attitude problems, kidnapped her 1-year and 7-months old son. The next day, Sonny demanded a P300,000 ransom. He was convicted of kidnapping a minor for ransom and was sentenced to death.

FACTS: Postejo, working as a domestic helper in Canada, has four children namely, Jenny, Doroteo, Aresola, and 9-year old Willy. Erma was introduced by her sister to spouses Frias who informed her that their daughter, Pastrana can help process Willy's travel documents to Canada. Erma agreed to hand the processing of her son's papers. In one of the telephone conversations of Erma and Pastrana, the latter informed Erma that Willy was suffering from acute bronchitis. Erna sent money for the medical treatment of his son. Pastrana then fetched Willy and Aresola from their residence in Caloocan and brought them to her apartment. Thought she never brought Willy to a hospital for treatment, Pastrana kept on demanding money from Erma which include the amount of P60,000.00 for the installation of a water purifier in her apartment allegedly for Willy's safety, and for additional money for her job application in Singapore. Erna, however, refused to transmit the amounts demanded by Pastrana and ordered the return of Willy to their residence in Caloocan. Pastrana deliberately failed to return Willy for 7 days until the latter disappeared while allegedly playing in front of Pastrana’s apartment.

HELD: There is no question that the elements of kidnapping for ransom were sufficiently established: (a) the accused is a private individual; (b) the accused kidnapped or detained the victim and

HELD: Kidnapping and failure to return a minor under Article 270 of the Revised Penal Code has two essential elements, namely: (1) the offender is entrusted with the custody of a minor

People vs. Borromeo (2000)

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person; and (2) the offender deliberately fails to restore the said minor to his parents or guardians. What is actually being punished is not the kidnapping of the minor but rather the deliberate failure of the custodian of the minor to restore the latter to his parents or guardians. The word deliberate as used in Article 270 must imply something more than mere negligence — it must be premeditated, headstrong, foolishly daring or intentionally and maliciously wrong. In the case at bar, there is no question that accused-appellant was entrusted with the custody of 9-year old Willy. Erma and her children trusted accused-appellant that they sent her money for the processing of Willy's travel documents, and more importantly, they allowed Willy to stay in her apartment. As to the second element, It was this deliberate failure of accused-appellant to return custody of Willy to his relatives that gave rise to her culpability under Article 270 of the Revised Penal Code. The disappearance of Willy and accused-appellant's inability to return him to Caloocan by reason thereof has no bearing on the crime charged as it was her willful disobedience to Erma's order that consummated the crime.

approximating violence, without authority of law, to prevent a person from doing something not prohibited by law or to compel him to do something against his will, whether it be right or wrong; while in Illegal detention, the basis of liability is the actual restraint or locking up of a person, thereby depriving him of his liberty without authority of law. If there was no intent to lock up or detain the offended party unlawfully, the crime of illegal detention is not committed. Kidnapping (2002) A and B were legally separated. Their child C, a minor, was placed in the custody of A the mother, subject to monthly visitations by B, his father. On one occasion, when B had C in his company, B decided not to return C to his mother. Instead, B took C with him to the United States where he intended for them to reside permanently. What crime, if any, did B commit? Why? (5%) SUGGESTED ANSWER:

People v. Bernardo, 378 SCRA 708

FACTS: While Rosita was undergoing medical check up inside a hospital, her two daughters waited at the lobby. Roselle was seating on a bench with her 15-day old sister on her lap. Bernardo befriended Roselle and later gave her P3.00 and asked her to buy ice water. Thereafter, Bernardo took the baby from Roselle. Roselle was not able to find ice water for sale and on her way back to the hospital, she saw Bernardo running away with her baby sister. Roselle pulled and pulled Bernardo's skirt to prevent the latter from getting away. Torres saw Bernardo carrying a child and struggling with Roselle. Roselle begged Torres to help her because her mother was at the hospital and the accused was getting her baby sister. Torres took the baby from the Bernardo and entrusted the baby to his wife. Then he led Bernardo and Roselle to the hospital to look for Rosita who confirmed that she was the mother of the baby. The RTC convicted Bernardo of the crime of kidnapping and failure to return a minor under Article 270 of the RPC.

HELD: The essential element of the crime of kidnapping and failure to return a minor is that the offender is entrusted with the custody of the minor, but what is actually being punished is not the kidnapping of the minor but rather the deliberate failure of the custodian of the minor to restore the latter to his parents or guardians. Indeed, the word deliberate as used in Article 270 of the Revised Penal Code must imply something more than mere negligence — it must be premeditated, headstrong, foolishly daring or intentionally and maliciously wrong. When Roselle entrusted Roselyn to appellant before setting out on an errand for appellant to look for ice water, the first element was accomplished and when appellant refused to return the baby to Roselle despite her continuous pleas, the crime was effectively accomplished. In fine, we agree with the trial court's finding that appellant is guilty of the crime of kidnapping and failure to return a minor.

B committed the crime of kidnapping and failure to return a minor under Article 271, in relation to Article 270, of the Revised Penal Code, as amended. Article 271 expressly penalizes any parent who shall take from and deliberately fail to restore his or her minor child to the parent or guardian to whom custody of the minor has been placed. Since the custody of C, the minor, has been given to the mother and B has only the right of monthly visitation, the latter's act of taking C to the United Slates, to reside there permanently, constitutes a violation of said provisions of law. Kidnapping (2006) Jaime, Andy and Jimmy, laborers in the noodles factory of Luke Tan, agreed to kill him due to his arrogance and miserliness. One afternoon, they seized him and loaded him in a taxi driven by Mario. They told Mario they will only teach Luke a lesson in Christian humility. Mario drove them to a fishpond in Navotas where Luke was entrusted to Emil and Louie, the fishpond caretakers, asking them to hide Luke in their shack because he was running from the NBI. The trio then left in Mario's car for Manila where they called up Luke's family and threatened them to kill Luke unless they give a ransom within 24 hours. Unknown to them, because of a leak, the kidnapping was announced over the radio and TV. Emil and Louie heard the broadcast and panicked, especially when the announcer stated that there is a shoot-to-kill order for the kidnappers. Emil and Louie took Luke to the seashore of Dagat-dagatan where they smashed his head with a shovel and buried him in the sand. However, they were seen by a barangay kagawad who arrested them and brought them to the police station. Upon interrogation, they confessed and pointed to Jaime, Andy, Jimmy and Mario as those responsible for the kidnapping. Later, the 4 were arrested and charged. What crime or crimes did the 6 suspects commit? (5%) ALTERNATIVE ANSWER:

Illegal Detention vs. Grave Coercion (1999) Distinguish coercion from illegal detention. (3%) SUGGESTED ANSWER: Coercion may be distinguished from illegal detention as follows: in coercion, the basis of criminal liability is the employment of violence or serious intimidation

a) Jaime, Andy and Jimmy committed kidnapping with homicide. The original intention was to demand ransom from the family with the threat of killing. As a consequence of the kidnapping, however, Luke was killed. Thus, the victim was deprived of his freedom and the subsequent killing, though committed by another person, was a consequence of the detention. Hence, this properly qualified the crime as the special complex crime of kidnapping for

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ransom with homicide (People v. Mamarion, G.R. No. 137554, October 1, 2003; Art. 267, Revised Penal Code). b) Emil and Louie who smashed the head of the victim and buried the latter in the sand committed murder qualified by treachery or abuse of superior strength. They are not liable for kidnapping because they did not conspire, nor are they aware of the intention to detain Luke whom they were informed was hiding from the NBI (Art. 248, Revised Penal Code). c) Mario has no liability since he was not aware of the criminal intent and design of Jaime, Andy and Jimmy. His act of bringing Luke to Navotas for "a lesson in Christian humility" does not constitute a crime. Alternative Answer: a) Jaime, Andy and Jimmy committed kidnapping with ransom. After kidnapping Luke, they demanded ransom with the threat of killing him. However, the killing of Luke is separate from the kidnapping having been committed by other persons, who had nothing to do with the kidnapping, and who will be liable for a different crime (Penultimate par. of Art. 267, Revised Penal Code). b) Emil and Louie who smashed the head of the victim and buried the latter in the sand committed murder qualified by treachery or abuse of superior strength. They are not liable for kidnapping because they did not conspire, nor are they aware of the intention to detain Luke whom they were informed was hiding from the NBI (Art. 248, Revised Penal Code). c) Mario has no liability since he was not aware of the criminal intent and design of Jaime, Andy and Jimmy. His act of bringing Luke to Navotas for "a lesson in Christian humility" does not constitute a crime. Kidnapping w/ Homicide (2005) Paz Masipag worked as a housemaid and yaya of the oneweek old son of the spouses Martin and Pops Kuripot. When Paz learned that her 70 year-old mother was seriously ill, she asked Martin for a cash advance of P1,000.00 but Martin refused. One morning, Paz gagged the mouth of Martin’s son with stockings; placed the child in a box; sealed it with masking tape and placed the box in the attic. Later in the afternoon, she demanded P5,000.00 as ransom for the release of his son. Martin did not pay the ransom. Subsequently, Paz disappeared. After a couple of days, Martin discovered the box in the attic with his child already dead. According to the autopsy report, the child died of asphyxiation barely three minutes after the box was sealed. What crime or crimes did Paz commit? Explain. (5%) SUGGESTED ANSWER: Paz committed the composite crime of kidnapping with homicide under Art. 267, RFC as amended by R.A. No. 7659. Under the law, any person who shall detain another or in any manner deprive him of liberty and the victim dies as a consequence is liable for kidnapping with homicide and shall be penalized with the maximum penalty. In this case, notwithstanding the fact that the one-week old child was merely kept in the attic of his house, gagged with stockings and placed in a box sealed with tape, the deprivation of liberty and the intention to kill becomes apparent. Though it may appear that the means employed by Paz was attended

by treachery (killing of an infant), nevertheless, a separate charge of murder will not be proper in view of the amendment. Here, the term "homicide" is used in its generic sense and covers all forms of killing whether in the nature of murder or otherwise. It is of no moment that the evidence shows the death of the child took place three minutes after the box was sealed and the demand for the ransom took place in the afternoon. The intention is controlling here, that is, ransom was demanded. ALTERNATIVE ANSWER: Murder qualified by treachery because the victim was only one week old. The offense was attended with the aggravating circumstance of lack of respect due to the age of the victim, cruelty and abuse of confidence. In People v. Lora (G.R. No, L-49430, March 30, 1982), the Court found that a child subjected to similar treatment as the infant in this case would have died instantly, negating any intent to kidnap or detain when ransom was sought. Demand for ransom did not convert the offense into kidnapping with murder because the demand was merely a scheme by the offender (Paz) to conceal the body of her victim. Kidnapping; Effects; Voluntary Release (2004) DAN, a private individual, kidnapped CHU, a minor. On the second day, DAN released CHU even before any criminal information was filed against him. At the trial of his case, DAN raised the defense that he did not incur any criminal liability since he released the child before the lapse of the 3day period and before criminal proceedings for kidnapping were instituted. Will DAN's defense prosper? Reason briefly. (5%) SUGGESTED ANSWER: No. DAN's defense will not prosper. Voluntary release by the offender of the offended party in kidnapping is not absolutory. Besides, such release is irrelevant and immaterial in this case because the victim being a minor, the crime committed is kidnapping and serious illegal detention under Art. 267, Revised Penal Code, to which such circumstance does not apply. The circumstance may be appreciated only in the crime of Slight Illegal Detention in Art. 268 (Asistio v. San Diego, 10 SCRA 673 [1964]) Kidnapping; Illegal Detention; Minority (2006) Dang was a beauty queen in a university. Job, a rich classmate, was so enamored with her that he persistently wooed and pursued her. Dang, being in love with another man, rejected him. This angered Job, Sometime in September 2003, while Dang and her sister Lyn were on their way home, Job and his minor friend Nonoy grabbed them and pushed them inside a white van. They brought them to an abandoned warehouse where they forced them to dance naked. Thereafter, they brought them to a hill in a nearby barangay where they took turns raping them. After satisfying their lust, Job ordered Nonoy to push Dang down a ravine, resulting in her death. Lyn ran away but Job and Nonoy chased her and pushed her inside the van. Then the duo drove away. Lyn was never seen again. 1. What crime or crimes were committed by Job and Nonoy? (2.5%) SUGGESTED ANSWER:

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Job and Nonoy committed 1) kidnapping and serious illegal detention with homicide and rape for the subsequent death of Dang, and 2) kidnapping with rape against her sister, Lyn. The victims, who were kidnapped and detained, were subsequently raped and killed (as regards Dang) in the course of their detention. The composite crime is committed regardless of whether the subsequent crimes were purposely sought or merely an afterthought (People v. Larranaga, G.R. Nos. 138874-5, Februarys, 2004). ALTERNATIVE ANSWER: Job and Nonoy committed 2 counts of the complex crime of forcible abduction with rape (Art. 342, Revised Penal Code) and the separate offense of murder against Dang. The crime committed is abduction because there was lewd design when they took the victims away and subsequently raped them. The killing thereafter, constitutes the separate offense of murder qualified by treachery. 2. What penalties should be imposed on them? (2.5%) SUGGESTED ANSWER: Since the death penalty has already been prohibited, reclusion perpetua is the appropriate penalty (RA. 9346). In the case of the minor Nonoy, his penalty shall be one degree lower (Art. 68, Revised Penal Code). 3. Will Nonoy's minority exculpate him? (2.5%) SUGGESTED ANSWER: Under RA. 9344, the Juvenile Justice and Reform Act, which retroacts to the date that the crime was committed, Nonoy will be exculpated if he was 15 years old or below. However, if he was above 15 years old but below 18 years of age, he will be liable if he acted with discernment. As the problem shows that Nonoy acted with discernment, he will be entitled to a suspension of sentence.(NOTABENE: R.A. 9344 is outside the coverage of the examination) 4. Is the non-recovery of Lyn's body material to the criminal liability of Job and Nonoy? (2.5%) SUGGESTED ANSWER: The non-recovery of Lyn's body is not material to the criminal liability of Job and Nonoy, because the corpus delicti of the crime which is kidnapping with rape of Lyn has been duly proven.

Explain. SUGGESTED ANSWER: No, Edgardo may not be charged with attempted kidnapping inasmuch as no overt act to kidnap or restrain the liberty of the girl had been commenced. At most, what Edgardo has done in the premises was a proposal to Vicente to kidnap the girl, which is only a preparatory act and not an overt act. The attempt to commit a felony commences with the commission of overt act, not preparatory act. Proposal to commit kidnapping is not a crime. Kidnapping; Serious Illegal Detention (1997) A and B conspiring with each other, kidnapped C and detained him. The duo then called up C's wife informing her that they had her husband and would release him only if she paid a ransom in the amount of P10,000,000 and that, if she were to fail, they would kill him. The next day, C, who had just recovered from an illness had a relapse. Fearing he might die if not treated at once by a doctor, A and B released C during the early morning of the third day of detention. Charged with kidnapping and serious illegal detention provided in Article 267, RPC, A and B filed a petition for bail. They contended that since they had voluntarily released C within three days from commencement of the detention, without having been paid any amount of the ransom demanded and before the institution of criminal proceedings against them, the crime committed was only slight illegal detention prescribed in Article 268, RPC. After hearing, the trial court found the evidence of guilt to be strong and therefore denied the petition for bail. On appeal, the only issue was: Was the crime committed kidnapping and serious detention or slight Illegal detention? Decide. SUGGESTED ANSWER: The crime committed by A and B is kidnapping and serious illegal detention because they made a demand for ransom and threatened to kill C if the latter's wife did not pay the same. Without the demand for ransom, the crime could have been slight illegal detention only. The contention of A and B that they had voluntary released C within three days from the commencement of the detention is immaterial as they are charged with a crime where the penalty prescribed is death (Asistio vs. San Diego. 10SCRA673). They were properly denied bail because the trial court found that the evidence of guilt in the information for kidnapping and serious Illegal detention is strong.

ALTERNATIVE ANSWER: The non-recovery of Lyn's body is not material to the criminal liability of Job and Nonoy, because the corpus delicti of the crime which is forcible abduction with rape of Lyn has been duly proven. Kidnapping; Proposal to Kidnap (1996) Edgardo induced his friend Vicente, in consideration of money, to kidnap a girl he is courting so that he may succeed to raping her and eventually making her accede to marry him. Vicente asked for more money which Edgardo failed to put up. Angered because Edgardo did not put up the money he required, he reported Edgardo to the police. May Edgardo be charged with attempted kidnapping?

Article 271. Inducing a minor to abandon his home

Elements:

1. 2.

A minor (whether over or under seven years of age) is living in the home of his parents or guardians or the person entrusted with his custody; Offender induces said minor to abandon such home.

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The inducement must be actual, committed with criminal intent, and determined by a will to cause damage. It is not necessary that the minor actually abandons his home, as long as there is inducement. The minor should not leave his home of his own free will. Father or mother may commit this crime (as well as Article 270), if the parents are living separately and custody has been given to one of them.

Article 272. Slavery

Elements:

1. 2.

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Offender purchases, sells, kidnaps or detains a human being; The purpose of the offender is to enslave such human being. If the purpose of the offender is to assign the offended party to some immoral traffic (prostitution), the penalty is higher. Differentiated from kidnapping: If the purpose is to enslave the victim, the crime is slavery; otherwise the crime is kidnapping or illegal detention.

1. 2. 3.

Service under compulsion

Victim must be a minor

The debtor himself is the one compelled to work for the offender

The minor is compelled to render services for the supposed debt of his parent or guardian

Limited to household work or farm labor

Service is not limited

Article 275. Abandonment of persons in danger and abandonment of one’s own victim

Acts punishable:

1.

a. b.

Offender retains a minor in his services; It is against the will of the minor; It is under the pretext of reimbursing himself of a debt incurred by an ascendant, guardian or person entrusted with the custody of such minor. The existence of an indebtedness constitutes no legal justification for holding a person and depriving him of his freedom to live where he wills.

c. d. 2. 3.

Article 274. Services rendered under compulsion in payment of debt  Elements:

Failing to render assistance to any person whom the offender finds in an uninhabited place wounded or in danger of dying when he can render such assistance without detriment to himself, unless such omission shall constitute a more serious offense. Elements:

Elements:

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Exploitation of child labor

Does not distinguish whether the victim is a minor or not

Article 273. Exploitation of child labor

1. 2. 3.

Offender compels a debtor to work for him, either as household servant or farm laborer; It is against the debtor’s will; The purpose is to require or enforce the payment of a debt.

The place is not inhabited; Accused found there a person wounded or in danger of dying; Accused can render assistance without detriment to himself; Accused fails to render assistance.

Failing to help or render assistance to another whom the offender has accidentally wounded or injured; By failing to deliver a child, under seven years of age, whom the offender has found abandoned, to the authorities or to his family, or by failing to take him to a safe place. If a person intentionally wounds another and leaves him in an uninhabited place, he shall not be liable under this article because be did not FIND him wounded or in danger of dying. C2005 Criminal Law 2 Reviewer

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It is immaterial that the offender did not know that the child is under seven years. The child under seven must be found by the accused in an unsafe place.

Article 277. Abandonment of minor by the person entrusted with his custody; indifference of parents

Acts punishable: Lamera vs. CA

An owner-type jeep driven by Lamera hit and bumped a tricycle, damaging the said tricycle and injuring the driver and passenger in the process. Two separate informations were filed, one for reckless imprudence resulting in damage to property and multiple physical injuries and another one for abandonment of one’s victim.

1.

Delivering a minor to a public institution or other persons without the consent of the one who entrusted such minor to the care of the offender or, in the absence of that one, without the consent of the proper authorities; Elements:

HELD: The rule on double jeopardy cannot be applied in this case because the two informations were for separate offenses— the first falls under quasi-offenses while the second is a crime against security.

a. b. c.

Article 276. Abandoning a minor

Offender has charge of the rearing or education of a minor; He delivers said minor to a public institution or other persons; The one who entrusted such child to the offender has not consented to such act; or if the one who entrusted such child to the offender is absent, the proper authorities have not consented to it.

Elements: 2. 1. 2. 3. 4.

Offender has the custody of a child; The child is under seven years of age; He abandons such child; He has no intent to kill the child when the latter is abandoned.

Circumstances qualifying the offense:

Neglecting his (offender’s) children by not giving them the education which their station in life requires and financial condition permits. Elements:

a. b. c.

1. 2.

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When the death of the minor resulted from such abandonment; or If the life of the minor was in danger because of the abandonment. When there is intent to kill, this article does not apply. The purpose in abandoning the minor must be to avoid the obligation of taking care of said minor. The ruling that intent to kill is presumed from the death of the victim is applicable only to crimes against persons, and not to crimes against security, particularly the crime in this article. A permanent, conscious and deliberate abandonment is required in this article. There must be an interruption of the care and protection the minor needs by reason of his age. Parents guilty of abandonment shall be deprived of their parental authority.

Offender is a parent; He neglects his children by not giving them education; His station in life requires such education and his financial condition permits it. Article 276

Article 277

The custody of the offender is stated in general

The custody of the offender is specific, that is, the custody for the rearing or education of the minor

The minor is under 7 years of age

The minor is under 21 years of age

Minor is abandoned in such as way as to deprive him of the care and protection that his tender years need

The minor is delivered to a public institution or other person

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Obligation to educate children terminates, if the mother and children refuse without good reason to live with the accused. Failure to give education must be due to deliberate desire to evade such obligation. If the parents cannot give education because they had no means to do so, then they will not be liable under this article.

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R.A. 7610 Special Protection of Children against Child Abuse, Exploitation and Discrimination Act

A. CHILD PROSTITUTION

Article 278. Exploitation of minors

Who are “children exploited in prostitution and other sexual abuse”?

Acts punishable:

1. 2.

3.

4.

5.

Causing any boy or girl under 16 years of age to perform any dangerous feat of balancing, physical strength or contortion, the offender being any person; Employing children under 16 years of age who are not the children or descendants of the offender in exhibitions of acrobat, gymnast, rope-walker, diver, or wild-animal tamer, the offender being an acrobat, etc., or circus manager or engaged in a similar calling; Employing any descendant under 12 years of age in dangerous exhibitions enumerated in the next preceding paragraph, the offender being engaged in any of the said callings; Delivering a child under 16 years of age gratuitously to any person following any of the callings enumerated in paragraph 2, or to any habitual vagrant or beggar, the offender being an ascendant, guardian, teacher or person entrusted in any capacity with the care of such child; and Inducing any child under 16 years of age to abandon the home of its ascendants, guardians, curators or teachers to follow any person engaged in any of the callings mentioned in paragraph 2 or to accompany any habitual vagrant or beggar, the offender being any person.

Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse. Who are punishable? 1. Those who engage in or promote, facilitate or induce child prostitution, which include, but are not limited to, the following: a. b. c. d. e.

2. Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subject to other sexual abuse; -

Exploitation of minors (par. 5)

Inducing a minor to abandon his home

Purpose of inducing minor is to abandon home is to follow any person engaged in any of the callings of being an acrobat, gymnast, etc.

No such purpose

Minor under 16 years of age

Minor under 21 years of age

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If the delivery of the child to any person following any of the callings enumerated, is made in consideration of any price, compensation or promise, the penalty is higher. The offender shall be deprived of parental authority or guardianship. Exploitation of minors refers to acts endangering the life or safety of the minor.

Acting as a procurer of a child prostitute; Inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means; Taking advantage of influence or relationship to procure a child as prostitute; Threatening or using violence towards a child to engage him as a prostitute; or Giving monetary consideration, goods or other pecuniary benefit to a child with intent to engage such child in prostitution.

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If the victim is under 12, the perpetrators shall be prosecuted for rape and or lascivious conduct under the RPC as the case may be However, the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be higher (reclusion temporal in its medium period)

3. Those who derive profit or advantage therefrom, whether as manager or owner of the establishment where the prostitution takes place, or of the sauna, disco, bar, resort, place of entertainment or establishment serving as a cover or which engages in prostitution in addition to the activity for which the license has been issued to said establishment.

When is there attempt to commit child prostitution? A penalty lower by two degrees than that prescribed for the consummated felony shall be imposed upon the principals of

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an attempt to commit the crime of child prostitution, committed as follows:

1. Attempt of (1) above  When any person who, not being a relative of a child, is found alone with the said child inside the room or cubicle of a house, an inn, hotel, motel, pension house, apartelle or other similar establishments, vessel, vehicle or any other hidden or secluded area under circumstances which would lead a reasonable person to believe that the child is about to be exploited in prostitution and other sexual abuse; or

2. Attempt of (2) above  When any person is receiving services from a child in a sauna parlor or bath, massage clinic, health club and other similar establishments.

B. CHILD TRAFFICKING What is child trafficking? Child trafficking is committed by a person trading and dealing with children including, but not limited to, the act of buying and selling of a child for money, or for any other consideration, or barter.

When is there attempt to commit child trafficking? (An attempt is punishable by a penalty two degrees lower than the penalty for the consummated offense)

be offered for the purpose of child trafficking.

C. OBSCENE PUBLICATIONS AND INDECENT SHOWS Who are punishable? Any person who shall hire, employ, use, persuade, induce or coerce a child to perform in obscene exhibitions and indecent shows, whether live or in video, or model in obscene publications or pornographic materials or to sell or distribute the said materials.

D. OTHER PERSONS PUNISHABLE UNDER THE ACT 1. Any person who shall commit any other acts of child abuse, cruelty or exploitation or to be responsible for other conditions prejudicial to the child's development including those covered by Article 59 of PD 603 (criminal liability of parents due to abandonment, neglect etc.), but not covered by the RPC;

2. Any person who shall keep or have in his company a minor, twelve (12) years or under or who is ten (10) years or more his junior in any public or private place, hotel, motel, beer joint, discotheque, cabaret, pension house, sauna or massage parlor, beach and/or other tourist resort or similar places UNLESS s/he is related to the minor within the fourth degree of consanguinity or affinity or any bond recognized by law, local custom and tradition or acts in the performance of a social, moral or legal duty.

There is an attempt to commit child trafficking:

1. When a child travels alone to a foreign country without valid reason therefor and without clearance issued by the Department of Social Welfare and Development or written permit or justification from the child's parents or legal guardian;

2. When a person, agency, establishment or child-caring institution recruits women or couples to bear a children for the purpose of child trafficking;

3. When doctor, hospital or clinic official or employee, nurse, midwife, local civil registrar or any other person simulates birth for the purpose of child trafficking;

3. Any person who shall induce, deliver or offer a minor to any one prohibited by this Act to keep or have in his company a minor as provided in the preceding paragraph;

4. Any person, owner, manager or one entrusted with the operation of any public or private place of accommodation, whether for occupancy, food, drink or otherwise, including residential places, who allows any person to take along with him to such place or places any minor herein described;

5. Any person who shall use, coerce, force or intimidate a street child or any other child to; -

4. When a person engages in the act of finding children among low-income families, hospitals, clinics, nurseries, day-care centers, or other child-during institutions who can

Beg or use begging as a means of living; Act as conduit or middlemen in drug trafficking or pushing; Conduct any illegal activities

E. WORKING CHILDREN

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Who are punishable? Any person who shall violate any of the provision of the Act with respect to working children (conditions for the employment of children under 15, prohibitions on the employment of children for certain advertisements etc.)

F. CHILDREN OF INDIGENOUS CULTURAL COMMUNITIES Who are punishable? Any person who discriminates against children of indigenous cultural communities

COMMON PENAL PROVISIONS 1. The penalty provided under this Act shall be imposed in its maximum period if the offender has been previously convicted under this Act;

2. When the offender is a corporation, partnership or association, the officer or employee thereof who is responsible for the violation of this Act shall suffer the penalty imposed in its maximum period;

People v. Delantar (2007)

Appellant’s violation of Sec. 5, Art. III of R.A. No. 7610 is as clear as day. The provision penalizes anyone who engages in or promotes, facilitates or induces child prostitution either by: (1) acting as a procurer of a child prostitute; or (2) inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means; or (3) by taking advantage of influence or relationship to procure a child as a prostitute; or (4) threatening or using violence towards a child to engage him as a prostitute; or (5) giving monetary consideration, goods or other pecuniary benefits to the child with the intent to engage such child in prostitution.

The purpose of the law is to provide special protection to children from all forms of abuse, neglect, cruelty, exploitation and discrimination, and other conditions prejudicial to their development. A child exploited in prostitution may seem to “consent” to what is being done to her or him and may appear not to complain. However, we have held that a child who is “a person below eighteen years of age or those unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of their age or mental disability or condition” is incapable of giving rational consent to any lascivious act or sexual intercourse. In fact, the absence of free consent is conclusively presumed when the woman is below the age of twelve

Navarrete v. People (2007) 3. The penalty provided herein shall be imposed in its maximum period when the perpetrator is an ascendant, parent guardian, stepparent or collateral relative within the second degree of consanguinity or affinity, or a manager or owner of an establishment which has no license to operate or its license has expired or has been revoked;

4. When the offender is a foreigner, he shall be deported immediately after service of sentence and forever barred from entry to the country;

The elements of sexual abuse under Section 5 (b) of RA 7610 that must be proven in addition to the elements of acts of lasciviousness are as follows:

1. The accused commits the act of sexual intercourse or lascivious conduct. 2. The said act is performed with a child exploited in prostitution or subjected to other sexual abuse. 3. The child, whether male or female, is below 18 years of age.

5. The penalty provided for in this Act shall be imposed in its maximum period if the offender is a public officer or employee, together with the penalty of disqualification or suspension depending on the penalty imposed;

6. A fine to be determined by the court shall be imposed and administered as a cash fund by the Department of Social Welfare and Development and disbursed for the rehabilitation of each child victim, or any immediate member of his family if the latter is the perpetrator of the offense.

“Lascivious conduct” is defined under Section 2 (h) of the rules and regulations of RA 7610 as:

[T]he intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person.

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Bar Questions RA 7610 – Child Exploitation (2006) Aling Maria received an urgent telephone call from Junior, her eldest son, asking for P2,000.00 to complete his semestral tuition fees preparatory to his final exams in Commerce. Distressed and disturbed, she borrowed money from her compadre Mang Juan with the assurance to pay him within 2 months. Two months lapsed but Aling Maria failed to settle her obligation. Mang Juan told Aling Maria that she does not have to pay the loan if she will allow her youngest 10-year old daughter Annie to work as a housemaid in his house for 2 months at Pl,000.00 a month. Despite Aling Maria's objection, Mang Juan insisted and brought Annie to his house to work as a maid. 1. Was a crime committed by Mang Juan when he brought Annie to his house as maid for the purpose of repaying her mother's loan? (2.5%) SUGGESTED ANSWER: Yes. Mang Juan committed the crime of exploitation of child labor which is committed by any persons who under the pretext of reimbursing himself of a debt incurred by an ascendant, guardian or person entrusted with the custody of a minor, shall, against the latter's will, retain him in his service (Art. 273, Revised Penal Code). He can also be liable as an employer for the employment of a minor below 15 yrs. old, under Sec. 12, Art. 8 of RA. 7610. 2. If Aling Maria herself was made to work as a housemaid in Mang Juan's household to pay her loan, did he commit a crime? (2.5%) SUGGESTED ANSWER: Yes. Mang Juan committed the crime of involuntary servitude for rendering services under compulsion and payment of debts. This is committed by any person who, in order to require or enforce the payment of a debt, shall compel the debtor to work for him, against his will, as household servant or farm laborer (Art. 274, Revised Penal Code)

Article 279. Additional penalties for other offenses



1. 2. 3.

Offender is a private person; He enters the dwelling of another; Such entrance is against the latter’s will.

Cases to which the provisions of this article is not applicable:

1. 2. 3.

When the purpose of the entrance is to prevent serious harm to himself, the occupant or third persons; When the purpose of the offender in entering is to render some service to humanity or justice; Anyone who shall enter cafes, taverns, inns and other public houses while they are open. Marzalado v. People, 441 SCRA 595 (2004)

FACTS: The petitioner, Marzalado, argues that the Court of Appeals committed a reversible error in sustaining the lower court, since in the proceedings below, there was a grave misapprehension of facts by both the MeTC and RTC in finding that he committed trespass to dwelling despite the glaring proof that his entry was justifiable under paragraph 4, Article 11 of the Revised Penal Code— to prevent an imminent danger to property. He stresses that while he did enter the unit, he did so with the aid of barangay officers and for the sole purpose of turning off the faucet that was causing the flooding of the unit.

HELD: In the prosecution for trespass, the material fact or circumstance to be considered is the occurrence of the trespass. The gravamen of the crime is violation of possession or the fact of having caused injury to the right of the possession. As certified by Barangay Lupon Secretary Ragaya, the unit rented by Albano was "forcibly opened by the owner (Marzalado) because of the strong water pressure coming out of the faucet. . . ." As Albano herself admitted, she and her children already left the unit when the electricity supply was cut off in the month of September. Hence, nobody was left to attend to the unit, except during some nights when Albano's maid slept in the unit. Clearly, Marzalado, acted for the justified purpose of avoiding further flooding and damage to his mother's property caused by the open faucet. No criminal intent could be clearly imputed to petitioner for the remedial action he had taken. There was an exigency that had to be addressed to avoid damage to the leased unit. There is nothing culpable concerning Marzalado’s, judgment call to enter the unit and turn off the faucet instead of closing the inlet valve as suggested by the OSG.

The imposition of the penalties prescribed in the preceding articles shall not prevent the imposition upon the same person of the penalty provided for any other felonies defined and punished by the RPC.

Article 280. Qualified trespass to dwelling

Elements:

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Purpose of the law: to protect and preserve the privacy of one’s dwelling If the offender is a public officer or employee, the entrance into the dwelling against the will of the occupant is violation of domicile. Dwelling – place devoted for rest and comfort, as distinguished from places devoted to business, office etc. Dwelling includes a room when occupied by another person (example: room at a boarding house) Against the will – should be against the presumed or express prohibition of the occupant, not mere lack of consent. There must be opposition on the part of the owner of the house to the entry of the accused. However, presumed or implied prohibition is sufficient (e.g. entrance during the late hour of the night) Prohibition must be existent prior to or at the time of entrance. QUALIFIED TRESPASS: If the offense is committed by means of violence or intimidation, the penalty is higher. Violence may be against persons or property, but there are conflicting views as to this statement. The violence or intimidation may take place immediately after the entrance. Proof of express prohibition to enter is not necessary when violence or intimidation is employed by the offender. If there is no overt act of the crime intended to be committed, the crime is only trespass to dwelling.

Article 281. Other forms of trespass

2. 3. 4.



crime is entering without securing the permission of the owner or caretaker

Prohibition to enter is express or implied

Prohibition to enter must be manifest

Bar Questions Trespass to Dwelling; Private Persons (2006) Under what situations may a private person enter any dwelling, residence, or other establishments without being liable for trespass to dwelling? (2.5%) SUGGESTED ANSWER: Trespass to dwelling is not applicable to any person who shall enter another's dwelling for the purpose of: a) Preventing some serious harm to himself, its occupants, or a third person; and b) Rendering service to humanity or justice; Any person who shall enter cafes, taverns, inns, and other public houses, while the same are open will likewise not be liable (Art. 280, Revised Penal Code). Tresspass to Dwelling; Rule of Absorption (1994) At about 11:00 in the evening, Dante forced his way inside the house of Mamerto. Jay. Mamerto's son, saw Dante and accosted him, Dante pulled a knife and stabbed Jay on his abdomen. Mamerto heard the commotion and went out of his room. Dante, who was about to escape, assaulted Mamerto. Jay suffered Injuries which, were it not for the timely medical attendance, would have caused his death. Mamerto sustained Injuries that incapacitated him for 25 days. What crime or crimes did Dante commit? SUGGESTED ANSWER:

Elements:

1.

crime is entering against the will of the owner

Offender enters the closed premises or the fenced estate of another; The entrance is made while either of them is uninhabited; The prohibition to enter is manifest; The trespasser has not secured the permission of the owner or the caretaker thereof. Premises signifies a distinct and definite locality. This may include a room, shop, building or definite area.

Dante committed qualified trespass to dwelling, frustrated homicide for the stabbing of Jay, and less serious physical injuries for the assault on Mamerto. The crime of qualified trespass to dwelling should not be complexed with frustrated homicide because when the trespass is committed as a means to commit a more serious offense, trespass to dwelling is absorbed by the greater crime, and the former constitutes an aggravating circumstance of dwelling (People vs. Abedoza, 53 Phil.788). Dante committed frustrated homicide for the stabbing of Jay.... Dante is guilty of less serious physical injuries for the wounds sustained by Mamerto...

Article 282. Grave threats Trespass to dwelling

Other forms of trespass

The offender is a private person

The offender is any person

The offender enters a dwelling house

The offender enters a closed premises or a fenced estate

The place entered is inhabited

The place entered is uninhabited

The act constituting the

The act constituting the

Acts punishable:

1.

Threatening another with the infliction upon his person, honor or property or that of this family of any wrong amounting to a crime and demanding money or imposing any other condition, even though not unlawful, and the offender attained his purpose; C2005 Criminal Law 2 Reviewer

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 Elements:

a.

b. c. d. 2. 3.

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The offender threatens another person with the infliction upon the latter’s person, honor or property, or upon that of the latter’s family, of any wrong; Such wrong amounts to a crime; There is a demand for money or that any other condition is imposed, even though not unlawful; The offender attains his purpose.

Making such threat without the offender attaining his purpose; Threatening another with the infliction upon his person, honor or property or that of his family of any wrong amounting to a crime, the threat not being subject to a condition. The essence of the crime of threats is intimidation; i.e. the promise of some future harm or injury. Not necessary that the wrong threatened to be inflicted must amount to any of the crimes against persons, honor or property. Law requires that the wrong must be UPON the person, honor or property. As the crime consists in threatening another with some future harm, it is not necessary that the offended party was present at the time the threats were made. It is sufficient that the threats, came to the knowledge of the offended party. The crime of grave threats is consummated as soon as the threats come to the knowledge of the person threatened. Threats made in connection with the commission of other crimes are absorbed by the latter. The offender in grave threats does not demand the delivery on the spot of the money or other personal property demanded by him. When threats are made and money is taken on the spot, the crime may be robbery with intimidation. The penalties for the first two types of grave threats depend upon the penalties for the crimes threatened to be committed. One degree lower if the purpose is attained, and two degrees lower if the purpose is not attained. If the threat is not subject to a condition, the penalty is fixed at arresto mayor and a fine not exceeding 500 pesos. In the first two types, if the threat is made in writing or thorough a middleman, the penalty is to be imposed in its maximum period. The third type of grave threats must be serious and deliberate; the offender must persist in the idea involved in his threats. The threat should not be made in the heat of anger, because such is punished under Article 285.

If the condition is not proved, it is grave threats of the third type.

People vs. Timbol

The accused made several advances towards the offended party. He threatened to kill the woman’s husband if she did not accede to his advances. He was convicted of acts of lasciviousness and grave threats. HELD: The accused should not be convicted of grave threats because such threats formed part of the intimidation that he employed to succeed in his lewd designs.

Reyes vs. People

A disgruntled employee staged a demonstration in front of the house of the guy who dismissed him from work. Phrases of this nature were spoken out loud: “Agustin, putang ina mo. Agustin, mawawala ka. Agustin, lumabas ka, papatayin kita!”

HELD: All the elements of the crime of grave threats as defined in Article 282 paragraph 2 are present: (1) the offender threatened another person with the infliction upon his person of a wrong; (2) the wrong amounted to a crime and (3) the threat was not subject to a condition.

Article 283. Light threats

Elements:

1. 2. 3. 4.

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Offender makes a threat to commit a wrong; The wrong does not constitute a crime; There is a demand for money or that other condition is imposed, even though not unlawful; Offender has attained his purpose or, that he has not attained his purpose. Light threats are committed in the same manner as grave threats, except that the act threatened to be committed should not be a crime. Blackmailing may be punished under this article.

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Article 284. Bond for good behavior Other light threats

In what cases may a person be required to give bail not to molest another?

1. 2.

When he threatens another under Article 282. When he threatens another under Article 283.

Bond for good behavior

(third type) Harm threatened to be committed is not a crime There is NO demand for money, or other condition imposed

There is demand for money, or other condition imposed

Bond to keep the peace

Applicable only to grave threats and light threats

Not made applicable to any particular case

If offender fails to give bail, he shall be sentenced to destierro

If the offender fails to give bond, he shall be detained for a period not exceeding 6 months (if prosecuted for grave/less grave felony) or not exceeding 30 days (light felony)

NOT a distinct penalty

Light threats

A distinct penalty

Article 286. Grave coercions

Acts punishable:

1. 2.

Preventing another, by means of violence, threats or intimidation, from doing something not prohibited by law; Compelling another, by means of violence, threats or intimidation, to do something against his will, whether it be right or wrong.

Elements Article 285. Other light threats 1. Acts punishable: 2. 1. 2. 3.

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Threatening another with a weapon, or by drawing such weapon in a quarrel, unless it be in lawful selfdefense; Orally threatening another, in the heat of anger, with some harm constituting a crime, without persisting in the idea involved in his threat; Orally threatening to do another any harm not constituting a felony. Under the first type, the subsequent acts of the offender must show that he did not persist in the idea involved in his threat. Threats which are ordinarily grave threats, if made in the heat of anger, may be other light threats. If the threats are directed to a person who is absent and uttered in a temporary fit of anger, the offense is only other light threats. Other light threats

Grave threats

(second type)

(third type)

Harm threatened to be committed is a crime Threat is not deliberate (made in the heat of anger)

Threat is deliberate

3.

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A person prevented another from doing something not prohibited by law, or that he compelled him to do something against his will; be it right or wrong; The prevention or compulsion be effected by violence, threats or intimidation; and The person that restrained the will and liberty of another had not the authority of law or the right to do so, or in other words, that the restraint shall not be made under authority of law or in the exercise of any lawful right. The purpose of the law in penalizing coercion and unjust vexation is to enforce the principle that no person may take the law into his hands, and that our government is one of law, not of men. In grave coercion, the act of preventing by force must be made at the time the offended party was doing or about to do the act to be prevented. If the act was already done when violence is exerted, the crime is unjust vexation. Instances when the act of preventing another is classified as another crime: o A public officer preventing by means of violence or threats the ceremonies or manifestations of any religion is guilty of interruption of religious worship (Art. 132) o Any person who, by force, prevents the meeting of a legislative body (Art. 143) o Any person who shall use force or intimidation to prevent any member of Congress from C2005 Criminal Law 2 Reviewer

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attending the meetings thereof, expressing his opinions, or casting his vote (Art. 145) Compelling another to do something includes the offender’s act of doing it himself while subjecting another to his will. A person who is in actual possession of a thing, even if he has no right to that possession, cannot be compelled by means of violence to give up the possession, even by the owner himself. This will amount to grave coercion. Note however that an owner and actual possessor a property has a right to use such force was may be reasonably necessary to prevent another from dispossessing him of his property. Instances when the act of compelling is another offense: o A public officer not authorized by law who compels a person to change his residence (Art. 127) o Kidnapping a debtor to compel him to pay his debt (kidnapping for ransom under Art. 267) The crime is not grave coercion when the violence is employed to seize anything not belonging to the debtor of the offender. This is light coercion under Article 287. Surrounding the victim in a notoriously threatening attitude is sufficient to constitute intimidation. The force or violence must be immediate, actual or imminent. The owner of a thing has no right to prevent interference with it when interference is necessary to avert greater damage. There is no grave coercion when the accused acts in good faith in the performance of duty. Coercion is consummated even if the offended party did not accede to the purpose of the coercion. (MEL – this is doubtful, please check) A higher penalty (prision mayor) is imposed if the coercion is committed: o In violation of the exercise of the right of suffrage; o To compel another to perform any religious act.

Timoner vs. People (1983)

Jose Timoner, the mayor of Daet, ordered the fencing off of stalls which protruded into the sidewalks of Maharlika highway. The stalls were recommended for closure by the Municipal Health Officer.

HELD: There is no grave coercion when the restraint was made under authority of law or in the lawful exercise of a right. Mayor Timoner had the authority under the Civil Code to abate public nuisances. Also, he was merely implementing the orders of the municipal health officer and was acting under the authority of a previous decision which declared one of the stalls as a public nuisance.

Lee vs. CA (1991)

Francis Lee, the branch manager of Pacific Banking Corporation, threatened to file charges against complainant de Chin, unless she returned all the money equivalent to a forged Midland National Bank cheque which de Chin deposited in an account in the Pacific Bank.

HELD: To determine the degree of the intimidation, the age, sex and condition of the person shall be borne in mind. De Chin was pregnant, but she was also educated and familiar with banking procedures. She could not have been easily intimidated by Lee. Besides, a threat to enforce one’s claim through competent authority, if the claim is just or legal, does not vitiate consent. Lee’s threat is not improper because there is nothing unlawful about the threat to sue. Finally, there is a difference between performing an act reluctantly, even against one’s good sense and judgment versus performing an act with no consent at all, such as when a person acts against her will or under a pressure cannot resist. In this case, de Chin consented to signing the withdrawal slips. She did so voluntarily, although reluctantly. Hence, there is no coercion.

People vs. Alfeche, Jr. (1992)

Grave coercion There is no clear deprivation of liberty

Grave coercion (compelling a person to confess/give info) The offended party is NOT a prisoner

Illegal Detention There must be actual confinement or restraint on the person of the victim

Maltreatment of prisoner

The offended party is a prisoner

Complaint for Usurpation of Real Rights in Property (Art312) in relation to Grave Coercion (Art286) was filed against accused where it was alleged that he usurped the possession of the tenants from the land by threatening to kill them if the latter resisted. This was filed in the RTC. RTC dismissed saying that the penalty under Art312 was below the jurisdictional amount of the RTC therefore it had no jurisdiction on the assumption that the grave coercion was absorbed with the usurpation. HELD: RTC had jurisdiction. Art312 defines a single, special and indivisible crime with a 2-tiered penalty. The principal one for the usurpation with violence/ intimidation and an incremental penalty based on the value obtained in addition to the penalty incurred for the acts of violence and intimidation.

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When the usurpation is done with violence or intimidation (in the CAB, grave coercion), the accused must be prosecuted under Art312 for usurpation and not for the acts of violence or intimidation under Art286 for grave coercion. But whenever appropriate, accused may be held liable for the separate acts of violence or intimidation (e.g. grave coercion). This separate penalty is in addition to the fine based on the gain obtained by him.

People v. Santos, 378 SCRA 157 (2002)

FACTS: Josephine gave a 1-year loan to Leonida but the latter was unable to timely pay the debt. For the next 4 years, Josephine was unsuccessful in securing payment from Leonida as the latter stubbornly maintained her having already settled the account. Josephine, Manny et. al., with the assistance of CIS agents, then brought Leonida to Baguio City from her house in Pangasinan, in order to surrender her to the custody of Baguio City authorities where Josephine thought she could rightly seek redress. She was advised, however, that it was in the province of Pangasinan, not Baguio City, where a case could be lodged. The trial court convicted Josephine on the ground that the deprivation of Leonida of her liberty, regardless of its purpose and although lasting for less than twenty-four hours, was sufficient to support the charge of kidnapping.







Unjust vexation paragraph)



  

HELD: The circumstances that have surfaced warrant a conviction for grave coercion. Grave coercion is committed when a person prevents another from doing something not prohibited by law or compelling him to do something against his will, whether it be right or wrong, and without any authority of law, by means of violence, threats or intimidation. Its elements are — First, that the offender has prevented another from doing something not prohibited by law, or that he has compelled him to do something against his will, be it right or wrong; second, that the prevention or compulsion is effected by violence, either by material force or such display of force as would produce intimidation and control over the will of the offended party; and, third, that the offender who has restrained the will and liberty of another did so without any right or authority of law. Where there is a variance between the offense charged in the complaint or information and that proved and the offense charged necessarily includes the lesser offense established in evidence, the accused can be convicted of the offense proved.

Article 287. Light coercions

The seized property must be applied to the PAYMENT of the debt, not merely as SECURITY for the debt. Taking possession of the thing belonging to the debtor, through deceit and misrepresentation, for the purpose of applying the same to the payment of the debt, is unjust vexation under the second paragraph of this article. Actual physical violence not necessary, grave intimidation is sufficient. (other

light

coercion,

second

Includes any human conduct which, although not productive of some physical or material harm, would, however, unjustly annoy or vex an innocent person. The act must cause annoyance, irritation, vexation, torment, distress or disturbance. There is no violence or intimidation in unjust vexation. Examples: kissing a girl (despite her objections, of course!) When the first and third elements of grave coercion are present, but the second element (violence, threats or intimidation) is absent, the crime is unjust vexation.

People vs. Reyes (1934)

During a pabasa, the appellants started to construct a barbed wire fence in front of the chapel. The noise disrupted the ceremonies and some of the participants even fled, fearing trouble. The appellants were convicted of Offending Religious Feelings under Art. 133.

HELD: The construction of a fence even though irritating and vexatious under the circumstances to those present is not such an act as can be designated as “notoriously offensive to the feelings of the faithful.” The appellants’ act was innocent and was simply to protect private property rights. The circumstances under which the fence was constructed – late at night, vexing and annoying those who had gathered – indicate that the crime committed was only unjust vexation.

Elements:

1. 2. 3. 4.

Offender must be a creditor; He seizes anything belonging to his debtor: The seizure of the thing be accomplished by means of violence or a display of material force producing intimidation; The purpose of the offender is to apply the same to the payment of the debt.

People vs. Anonuevo (1937)

Teodulo Anonuevo embraced and kissed Rosita Tabia and held her breasts while in church. He was convicted of abuse against chastity.

HELD: It is error to ascribe the conduct of appellant to lustful designs or purposes in the absence of clear proof as to his motive.

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The religious atmosphere and the presence of many people belie the fact that he acted with lewd designs. He either performed a bravado (in defiance of alleged threats of Rosita’s boyfriend) or wished merely to force Rosita to accept him as a lover. He is only guilty of unjust vexation.

merchandise or commodities of any kind from him or from said firm or corporation. 2.

Ong Chiu Kwan v. CA, 345 SCRA 586 (2000)

Paying the wages due his laborer or employee by means of tokens or object other than the legal tender currency of the Philippines, unless expressly requested by such laborer or employee. Elements:

Ong Chiu Kwan admitted having ordered the cutting of the electric, water and telephone lines of complainant's business establishment because these lines crossed his property line. He failed, however, to show evidence that he had the necessary permits or authorization to relocate the lines. Also, he timed the interruption of electric, water and telephone services during peak hours of the operation of business of the complainant. Thus, petitioner's act unjustly annoyed or vexed the complainant. Consequently, petitioner Ong Chiu Kwan is liable for unjust vexation.

a. b. c.

Baleros v. People (2007)



The court wishes to stress that malice, compulsion or restraint need not be alleged in an Information for unjust vexation. Unjust vexation exists even without the element of restraint or compulsion for the reason that the term is broad enough to include any human conduct which, although not productive of some physical or material harm, would unjustly annoy or irritate an innocent person.



Offender pays the wages due a laborer or employee employed by him by means of tokens or object; Those tokens or objects are other than the legal tender currency of the Philippines; Such employee or laborer does not expressly request that he be paid by means of tokens or objects.

As a general rule, laborers and employees have the right to receive just wages in legal tender. Inducing an employee to give up part of his wages by force, stealth, intimidation, threat or by any other means is not punished under the RPC, but under Article 116 of the Labor Code.

Bar Questions Grave Coercion (1998)

Article 288. Other similar coercions (compulsory purchase of merchandise and payment of wages by means of tokens)

Acts punishable:

1.

Forcing or compelling, directly or indirectly, or knowingly permitting the forcing or compelling of the laborer or employee of the offender to purchase merchandise of commodities of any kind from him;

Isagani lost his gold necklace bearing his initials. He saw Roy wearing the said necklace. Isagani asked Roy to return to him the necklace as it belongs to him, but Roy refused. Isagani then drew his gun and told Roy, "If you will not give back the necklace to me, I will kill you!" Out of fear for his life and against his will, Roy gave the necklace to Isagani, What offense did Isagani commit? (5%) SUGGESTED ANSWER: Isagani committed the crime of grave coercion (Art. 286, RPC) for compelling Roy, by means of serious threats or intimidation, to do something against the latter's will, whether it be right or wrong. Serious threats or intimidation approximating violence constitute grave coercion, not grave threats. Such is the nature of the threat in this case because it was committed with a gun, is a deadly weapon.

Elements:

The crime is not robbery because intent to gain, which is an essential element of robbery, is absent since the necklace belongs to Isagani.

a.

Grave Coercion vs. Maltreatment of Prisoner (1999)

b. c.

Offender is any person, agent or officer of any association or corporation; He or such firm or corporation has employed laborers or employees; He forces or compels, directly or indirectly, or knowingly permits to be forced or compelled, any of his or its laborers or employees to purchase

Forcibly brought to the police headquarters, a person was tortured and maltreated by agents of the law in order to compel him to confess a crime imputed to him. The agents failed, however, to draw from him a confession which was their intention to obtain through the employment of such means. What crime was committed by the agents of the

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law? Explain your answer. (3%)



SUGGESTED ANSWER:



Evidently, the person tortured and maltreated by the agents of the law is a suspect and may have been detained by them. If so and he had already been booked and put in jail, the crime is maltreatment of prisoner and the fact that the suspect was subjected to torture to extort a confession would bring about a higher penalty. In addition to the offender's liability for the physical injuries inflicted. But if the suspect was forcibly brought to the police headquarters to make him admit the crime and tortured/ maltreated to make him confess to such crime, but later released because the agents failed to draw such confession, the crime is grave coercion because of the violence employed to compel such confession without the offended party being confined in jail. (US vs. Cusi, 10 Phil 143) It is noted that the offended party was merely "brought" to the police headquarters and is thus not a detention prisoner. Had he been validly arrested, the crime committed would be maltreatment of prisoners. Illegal Detention vs. Grave Coercion (1999)

Article 290. Discovering secrets through seizure of correspondence

Elements:

1. 2. 3. 4.

Distinguish coercion from illegal detention. (3%) SUGGESTED ANSWER: Coercion may be distinguished from illegal detention as follows: in coercion, the basis of criminal liability is the employment of violence or serious intimidation approximating violence, without authority of law, to prevent a person from doing something not prohibited by law or to compel him to do something against his will, whether it be right or wrong; while in Illegal detention, the basis of liability is the actual restraint or locking up of a person, thereby depriving him of his liberty without authority of law. If there was no intent to lock up or detain the offended party unlawfully, the crime of illegal detention is not committed.

Article 289. Formation, maintenance, and prohibition of combination of capital or labor through violence or threats

Elements:

1. 2.





Offender employs violence or threats, in such a degree as to compel or force the laborers or employers in the free and legal exercise of their industry or work; The purpose is to organize, maintain or prevent coalitions of capital or labor, strike of laborers or lockout of employers. The act should not be a more serious offense under the RPC. For example, if death or other serious physical injuries are caused, the act should be punished as such and not under this Article. Peaceful picketing is not prohibited, it is a valid exercise of freedom of speech.

Employing violence or making threat by picketers may make them liable for coercion. Preventing employees from joining any registered labor organization is punished under the Labor Code, not under the RPC.



 





Offender is a private individual or even a public officer not in the exercise of his official function; He seizes the papers or letters of another; The purpose is to discover the secrets of such another person; Offender is informed of the contents of the papers or letters seized. To seize means to place in the control of someone a thing or to give him the possession thereof. It is not necessary that there be force or violence. Prejudice is not an element of the offense. When the offender reveals the contents of such paper or letters of another to a third person, the penalty is higher. Thus, revealing the secret is not an element of the offense, it only qualifies the offense. This article is not applicable to: o parents, guardians or persons entrusted with the custody of minors with respect to papers or letters of the children or minors placed under their care or custody; o spouses with respect to the papers or letters of either of them. Unlawful opening of mail matter by an officer or employee of the Bureau of Posts is punished under the Administrative Code. Discovering secrets

Revealing secrets

(Art. 290)

(Art. 230)

Offender is a private individual, or public officer not in exercise of official function

Offender is a public officer

The offender SEIZES the papers or letters

The offender COMES TO KNOW of the secrets of the private individual by reason of his office. Not necessary that the secrets are contained in papers/letters

The purpose of the offender is to discover the secrets of another, revelation to another is not an element of

The offender reveals such secrets without justifiable reason.

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the crime

Section One – Robbery with violence against or intimidation of persons

Article 294. Robbery with violence against or intimidation of persons

Article 291. Revealing secrets with abuse of office

Article 295. Robbery with physical injuries, committed in an uninhabited place and by a band, or with the use of firearm on a street, road or alley Article 296. Definition of a band and penalty incurred by the members thereof

Elements:

Article 297. Attempted and frustrated robbery committed under certain circumstances

1. 2. 3.

Offender is a manager, employee or servant; He learns the secrets of his principal or master in such capacity; He reveals such secrets.

Article 298. Execution of deeds by means of violence or intimidation

Section Two – Robbery by the use of force upon things

Secrets must be learned by reason of their

 employment. 

The secrets must be revealed by the

offender. Prejudice/damage is not necessary under

 this Article.

Article 299. Robbery in an inhabited house or public building or edifice devoted to worship Article 300. Robbery in an uninhabited place and by a band Article 301. What is an inhabited house, public building, or building dedicated to religious worship and their dependencies

Article 292. Revealing of industrial secrets

Article 302. Robbery in an uninhabited place or in a private building

Elements:

Article 303. Robbery of cereals, fruits, or firewood in an uninhabited place or private building

1. 2. 3. 4.

Offender is a person in charge, employee or workman of a manufacturing or industrial establishment; The manufacturing or industrial establishment has a secret of the industry which the offender has learned; Offender reveals such secrets; Prejudice is caused to the owner. Secrets



must

relate

to





The act constituting the crime is revealing the secret of the industry of employer. The revelation of the secret might be made after the employee or workman had ceased to be connected with the establishment. Prejudice is an element of the offense.

Title Ten CRIMES AGAINST PROPERTY

Article 305. False keys

Chapter Two – BRIGANDAGE

manufacturing

processes. 

Article 304. Possession of picklocks or similar tools

Article 306. Who are brigands Article 307. Aiding and abetting a band of brigands

Chapter Three – THEFT

Article 308. Who are liable for theft Article 309. Penalties Article 310. Qualified theft

Chapter One. ROBBERY IN GENERAL

Article 311. Theft of the property of the National Library and National Museum

Article 293. Who are guilty of robbery Chapter Four – USURPATION

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Article 312. Occupation of real property or usurpation

Chapter Nine – MALICIOUS MISCHIEF

of real rights in property Article 313. Altering boundaries or landmarks

Article 327. Who are liable for malicious mischief Article 328. Special cases of malicious mischief Article 329. Other mischiefs

Chapter Five – CULPABLE INSOLVENCY

Article 330. Damage and obstruction to means of communication

Article 314. Fraudulent insolvency

Article 331. Destroying or damaging statues, public monuments or paintings

Chapter Six – SWINDLING AND OTHER DECEITS

Article 315. Swindling (Estafa)

Chapter Ten – EXEMPTION FROM CRIMINAL LIABLITY IN CRIMES AGAINST PROPERTY

Article 316. Other forms of swindling Article 317. Swindling a minor

Article 333. Persons exempt from criminal liability

Article 318. Other deceits

Chapter Seven – CHATTEL MORTGAGE

Article 293. Who are guilty of robbery Article 319. Removal, sale or pledge of mortgaged Property

Chapter Eight – ARSON AND OTHER CRIMES INVOLVING DESTRUCTION (REPEALED BY PD 1613 and RA 7659)

Article 320. Destructive arson Article 321. Other forms of arson Article 322. Cases of arson not included in the preceding articles Article 323. Arson of property of small value Article 324. Crimes involving destruction Article 325. Burning one’s own property as means to commit arson Article 326. Setting fire to property exclusively owned by the offender Article 326-A. In cases where death resulted as a consequence of arson Article 326-B. Prima facie evidence of arson

Elements of robbery in general:

4. 5. 6. 7.

There is personal property belonging to another; There is unlawful taking of that property; The taking must be with intent to gain; and There is violence against or intimidation of any person, or force upon anything.

The property taken must be personal property, for if real property is occupied or real right is usurped by means of violence against or intimidation of person, the crime is USURPATION. The phrase “belonging to another” means that the property taken does not belong to the offender. The person from whom the property is taken need not be the owner. Possession of the property is sufficient. The unlawful taking of personal property is an essential part of the crime of robbery. Where the taking was lawful and the unlawful misappropriation was subsequent to such taking, the crime is ESTAFA or MALVERSATION.

UNLAWFUL TAKING – when complete? a.

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from the moment the offender gains possession of the thing, even if the culprit has had no opportunity to dispose of the same b. as to robbery with force upon things i. the thing must be taken out of the building, or the place broken into, to consummate the crime (note: this is purely based on reyes’s opinion) “Taking” as an element of robbery, means depriving the offended party of ownership of the thing taken with the character of permanency. i.

Intent to gain is presumed from the unlawful taking of personal property. Absence of intent to gain will make the taking of personal property GRAVE COERCION if there is violence used. The element of “personal property belonging to another” and that of “intent to gain” must concur. The violence, as an element of robbery, must be against the person of the offended party, not upon the thing taken. As for intimidation, it need not be threat of bodily harm. It could be a threat of paying a fine or closing the offended party’s shop. GENERAL RULE: The violence or intimidation must be present before the taking of personal property is complete. It is not necessary that violence of intimidation should be present from the very beginning. EXCEPTION: When the violence results in – (1) homicide, (2) rape, (3) intentional mutilation, or (4) any of the serious physical injuries under par 1 & 2 of Art 263 – the taking of personal property is robbery complexed with any of those crimes under Art 294, even if the taking was already complete when the violence was used by the offender.

Distinctions between effects of employment of violence against or intimidation of person and those of use of force upon things: Whenever violence against or intimidation of any person is used, the taking of personal property belonging to another is always robbery. If only force upon things, the taking is robbery only if the force is used either to enter the building or to break doors, wardrobes, chests or any other kind of locked or sealed furniture or receptacle inside the building or to force them open outside after taking the same from the building. In robbery with violence against or intimidation of any person, the value of the personal property taken is immaterial. The penalty depends (a) on the result of the violence used ie homicide, rape, intentional mutilation etc, and (b) on the existence of intimidation only. In robbery with force upon things, committed in an inhabited house, public building, or edifice devoted to religious worship, the penalty is based (a) on the value of the property taken, and (b) on whether or not the offenders carry arms. If

committed in an uninhabited building, the penalty is based only on the value of the property taken.

Napolis vs. CA Facts: Nicanor Napolis, with several co-accused, entered the house of the Penaflor spouses by breaking a wall of a store, and forcing the door of the house adjacent to the store open. Once inside, the accused used violence against the husband and initimidation against the wife, enabling them to get away with P2557 in cash and goods. They were convicted of robbery by armed men in an inhabited place.

Held: The crime is considered a complex one under Art 48, where the penalty for the most serious offence in its max period should be imposed. Otherwise, there will exist an absurd situation where the concurrence of a graver offence results in the reduction of the penalty.

People vs. Biruar There is no law or jurisprudence which requires the presentation of the thing stolen in order to prove that it had been taken away.

People vs. Salas Salas was last seen with the victim at 3:00am. At 6:00, the victim’s body was found in a canal. Her purse, alleged to contain P2,000 and jewelry were missing. No one witnessed the robbery, much less the killing. Is the crime committed homicide or robbery with homicide?

HELD: Robbery with Homicide. In this special complex crime against property, Homicide is incidental to the robbery, which is the main purpose of the criminal. The onus probandi is to establish: "(a) the taking of personal property with the use of violence or intimidation against a person; (b) the property belongs to another; (c) the taking is characterized with animus lucrandi; and (d) on the occasion of the robbery or by reason thereof, the crime of homicide, which is used in the generic sense, was committed." While there is indeed no direct proof that Virginia Talens was robbed at the time she was killed, we may conclude from four circumstances that the robbery occasioned her killing: (1) Both appellant and victim gambled at the wake. (2) The appellant knew that victim was winning. (3) The victim was last seen alive with appellant. (4) The victim's purse containing her money and earrings were missing from her body when found. These circumstances logically lead to the inescapable conclusion that appellant should be liable not just of simple homicide, but robbery with homicide People v. Del Rosario, 359 SCRA 166 (2001)

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FACTS: Del Rosario stole six pieces of jewelry belonging to Paragua. He then pawned and sold the same. Also, on the occasion of the said robbery, Del Rosario hit Paraguas niece, Racquel, with a hard object, strangled her and and tied the the latter’s neck of with a Cat-V wire which resulted to her death shortly thereafter. Del Rsoario admitted in court that he needed money to marry his common-law wife. The RTC convicted del Rosario of the crime of robbery with homicide. Del Rosario contends that it is essential to prove the intent to rob and that the intent to rob must come first before the killing transpired.

HELD: Animus lucrandi or intent to gain, is an internal act which can be established through the overt acts of the offender. Although proof as to motive for the crime is essential when the evidence of the theft is circumstantial, the intent to gain or animus lucrandi is the usual motive to be presumed from all furtive taking of useful property appertaining to another, unless special circumstances reveal a different intent on the part of the perpetrator. ". . . (T)he intent to gain may be presumed from the proven unlawful taking." Intent to gain (animus lucrandi) is presumed to be alleged in an information where it is charged that there was unlawful taking (apoderamiento) and appropriation by the offender of the things subject of the robbery. In this case, it was apparent that the reason why Del Rosario stole the jewelry of Paragua was because he intended to gain by them. He had already admitted that he needed money to marry his common-law wife. The court also stated that “if gaining through unlawful means was farthest from the mind of the accused, why then did he pawn and sell the jewelry he had taken from Paragua… It is immaterial whether the killing transpired before or after the robbery. In the crime of robbery with homicide, the homicide may precede robbery or may occur after robbery. What is essential is that there is a nexus, an intimate connection between robbery and the killing whether the latter be prior or subsequent to the former, or whether both crimes be committed at the same time.

appellant Reyes poked a knife behind him sufficiently gave rise to the presumption. The detailed narration of how the victim was forcibly divested of the wristwatch by accused Cergontes and stabbed at the back by accused-appellant cannot be taken lightly on the argument that the attackers owned the wristwatch and they attacked the victim solely on their desire to retrieve it. In any event, in robbery by the taking of property through intimidation or violence, it is not necessary that the person unlawfully divested of the personal property be the owner thereof. Article 293 of the Revised Penal Code employs the phrase "belonging to another" and this has been interpreted to merely require that the property taken does not belong to the offender. Actual possession of the property by the person dispossessed thereof suffices. In fact, it has been held that robbery may be committed against a bailee or a person who himself has stolen it. So long as there is apoderamiento of personal property from another against the latter's will through violence or intimidation, with animo de lucro, robbery is the offense imputable to the offender. If the victim is killed on the occasion or by reason of the robbery, the offense is converted into the composite crime of robbery with homicide.

People v. Suela, 373 SCRA 163 (2002)

FACTS: Brothers Edgar and Nerio Suela, and Edgardo Batocan sporting ski masks, bonnests and gloves, brandishing handguns and knife barged into the room of Director Rosas who was watching television together with his adopted son, Norman and his friend Gabilo. They threatened Rosas, Norman and Gabilo to give the location of their money and valuables, which they eventually took. They dragged Gabilo downstairs with them. Upon Nerio’s instructions, Batocan stabbed Gabilo 5 times which caused the latter’s death. After the incident, Edgar Suela demanded P20,000.00 from Rosas for an information regarding the robbery. The RTC found Edgar Suela guilty of robbery for demanding P200,000 as payment for information on the robbery-slay case.

People v. Reyes, 399 SCRA 528 (2003)

FACTS: Cergontes forcibly took the wristwatch of Solis while Reyes stabbed the latter at the back resulting to his death. The victim’s gold necklace, one gold ring, all of an undetermined value, and a wallet containing unspecified amount of cash were also taken from him. Reyes was found guilty of Robbery with Homicide. Appellant now contends that the animus lucrandi was not sufficiently established as the taking of the watch could have been a mere afterthought and the real intent of the malefactors was to inflict injuries upon the victim. Moreover, there was no evidence of ownership of the wristwatch, as it may have belonged to the two persons who attacked the victim

HELD: The court held that appellants contention is devoid of merit. Animus lucrandi or intent to gain is an internal act which can be established through the overt acts of the offender. Although proof of motive for the crime is essential when the evidence of the robbery is circumstantial, intent to gain or animus lucrandi may be presumed from the furtive taking of useful property pertaining to another, unless special circumstances reveal a different intent on the part of the perpetrator. The intent to gain may be presumed from the proven unlawful taking. In the case at bar, the act of taking the victim's wristwatch by one of the accused Cergontes while accused-

HELD: With respect to the charge of robbery for demanding P200,000 as payment for information on the robbery-slay case, the Court held that Edgar Suela should be acquitted. The OSG explained: "Simple robbery is committed by means of violence against or intimidation of persons as distinguished from the use of force upon things, but the extent of the violence or intimidation does not fall under pars. 1 to 4 of Article 294 (Revised Penal Code) "Unfortunately, in the case at bar, the prosecution failed to prove that appellant, Edgar Suela employed force or intimidation on private complainant Rosas by instilling fear in his mind so as to compel the latter to cough out the amount of P200,000.00. Instead, what was established was that he had agreed to give the P200,000.00 in exchange for information regarding the identity and whereabouts of those who robbed him and killed his friend. There was no showing that appellant Edgar Suela had exerted intimidation on him so as to leave him no choice but to give the money. Instead, what is clear was that the giving of the money was done not out of fear but because it was a choice private complainant opted because he wanted to get the information being offered to him for the consideration of P200,000.00. In fact, the money was delivered not due to fear but for the purpose of possibly having a lead in solving the case and to possibly bring the culprit to justice (ibid.). As such, the elements of simple robbery have not been established in the instant case, hence, appellant Edgar Suela should be acquitted of that charge." However, Edgar is still guilty as principal of the complex crime of robber with homicide for robbing the house of Rosas and for Gabil’o death.

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Bar Questions Robbery (1996) Five robbers robbed, one after the other five houses occupied by different families located inside a compound enclosed by a six-feet high hollow block fence. How many robberies did the five commit? Explain. SUGGESTED ANSWER: The offenders committed only one robbery in the eyes of the law because when they entered the compound, they were impelled only by a single indivisible criminal resolution to commit a robbery as they were not aware that there were five families inside said compound, considering that the same was enclosed by a six-feet high hollow-block fence. The series of robbery committed in the same compound at about the same time constitutes one continued crime, motivated by one criminal impulse. Robbery under RPC (2000) A, B, C, D and B were in a beerhouse along MacArthur Highway having a drinking spree. At about 1 o'clock in the morning, they decided to leave and so asked for the bill. They pooled their money together but they were still short of P2,000.00. E then orchestrated a plan whereby A, B, C and D would go out, flag a taxicab and rob the taxi driver of all his money while E would wait for them in the beerhouse. A. B, C and D agreed. All armed with balisongs, A, B, C and D hailed the first taxicab they encountered. After robbing X, the driver, of his earnings, which amounted to P1,000.00 only, they needed P1,000.00 more to meet their bill. So, they decided to hail another taxicab and they again robbed driver T of his hard-earned money amounting to P1,000. On their way back to the beerhouse, they were apprehended by a police team upon the complaint of X, the driver of the first cab. They pointed to E as the mastermind. What crime or crimes, if any, did A, B, C, D and B commit? Explain fully. (3%)

lot to him for P1.00 and other valuable considerations. All the while, A carried a paltik caliber .45 in full view of B, who signed the deed out of fear. When A later on tried to register the deed, B summoned enough courage and had A arrested and charged in court after preliminary investigation. What charge or charges should be filed against A? Explain. (5%) SUGGESTED ANSWER: The charge for Robbery under Article 298 of the Revised Penal Code should be filed against A. Said Article provides that any person who, with intent to defraud another, by means of violence or intimidation, shall compel him to sign, execute and deliver any public instrument or document shall be held guilty of robbery. The paltik caliber .45 firearm carried by A was obviously intended to intimidate B and thus, used in the commission of the robbery. If it could be established that A had no license or permit to possess and carry such firearm, it should be taken only as special aggravating circumstance to the crime of robbery, not subject of a separate prosecution. ALTERNATIVE ANSWER: On the premise that the Deed of Sale which A compelled B to sign, had not attained the character of a "public" instrument or document, A should be charged for the crime of Qualified Trespass to Dwelling under Article 280 of the Revised Penal Code for having intruded into B’s house, and for the crime of Grave Coercion under Article 286 of same Code, for compelling B to sign such deed of sale against his will.

Article 294. Robbery with violence against or intimidation of persons

Acts punished:

SUGGESTED ANSWER: A. B, C, D and E are liable for two (2) counts of robbery under Article 294 of the Rev. Penal Code; not for highway Robbery under PD 532. The offenders are not brigands but only committed the robbery to raise money to pay their bill because it happened that they were short of money to pay the same. Robbery under RPC (2001) A and B are neighbors in Barangay Nuevo I, Silang, Cavite. A is a barangay Kagawad and known to be a bully, while B is reputed to be gay but noted for his industry and economic savvy which allowed him to amass wealth in leaps and bounds, including registered and unregistered lands in several barangays. Resenting B's riches and relying on his political influence, A decided to harass and intimidate B into sharing with him some of his lands, considering that the latter was single and living alone. One night, A broke into B's house, forced him to bring out some titles and after picking out a title covering 200 square meters in their barangay, compelled B to type out a Deed of Sale conveying the said

1.

When by reason or on occasion of the robbery (taking of personal property belonging to another with intent to gain), the crime of homicide is committed;

2.

When the robbery is accompanied by rape or intentional mutilation or arson;

3.

When by reason of on occasion of such robbery, any of the physical injuries resulting in insanity, imbecility, impotency or blindness is inflicted;

4.

When by reason or on occasion of robbery, any of the physical injuries resulting in the loss of the use of speech or the power to hear or to smell, or the loss of an eye, a hand, a foot, an arm, or a leg or the loss of the use of any such member or incapacity for the work in which the injured person is theretofore habitually engaged is inflicted;

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5.

6.

7.

If the violence or intimidation employed in the commission of the robbery is carried to a degree unnecessary for the commission of the crime; When in the course of its execution, the offender shall have inflicted upon any person not responsible for the commission of the robbery any of the physical injuries in consequence of which the person injured becomes deformed or loses any other member of his body or loses the sue thereof or becomes ill or incapacitated for the performance of the work in which he is habitually engaged for more than 90 days or the person injured becomes ill or incapacitated for labor for more than 30 days;

There is still robbery with homicide even if the person killed is another robber or an innocent bystander. Thus, the person killed need not be the person robbed.

If the violence employed by the offender does not cause any of the serious physical injuries defined in Article 263, or if the offender employs intimidation only.

People vs. Mangulabnan

The crime defined in this article is a special complex crime. Thus, Art 48 no longer applies. “on the occasion” = “in the course of”

An accessory to robbery with homicide must have knowledge and complicity as to the homicide as well in order to be charged with the same offence. Otherwise, if the accessory had no knowledge of the homicide, he may only be charged with robbery.

Facts: During the robbery, one of the accused climbed on a table and fired at the ceiling, where the victim was hiding. The shots caused the victim’s death. Held: It is immaterial that death supervened by mere accident. “By reason or on occasion of” means it is only the result obtained, without reference to or distinction as to circumstances, causes, modes or persons intervening in the commission of the crime, that has to be taken into consideration.

“by reason” = “because of” People vs. Calixtro

Robbery with homicide Robbery and homicide are separate offences, when the homicide was not committed “on the occasion” or “by reason” of the robbery. Where the original design comprehends robbery, and homicide is perpetrated by reason or on the occasion of the consummation of the former, the crime committed is robbery with homicide. There is no such crime as robbery with murder. The treachery which attended the commission of the crime must be considered not qualifying but merely as a generic aggravating circumstance. An intent to take personal property belonging to another with intent to gain must precede the killing. The crime is robbery with homicide, even if the motive of the offenders was that of robbery as well as vengeance.

When death results, the crime is still robbery with homicide, regardless of the circumstances, modes or persons intervening in the commission of the crime. People vs. Pecato Whenever a homicide has been committed as a consequence of or on the occasion of a robbery, all those who took part as principals in the commission of the crime are also guilty as principals in the special complex crime of robbery with homicide although they did not actually take part in the homicide unless it clearly appeared that they endeavored to prevent the homicide.

People vs. Tapales When rape and homicide co-exist in the commission of robbery, should rape be considered an aggravating circumstance? YES. Rapes, wanton robbery for personal gain and other forms of cruelties are condemned and their perpetration will be regarded as aggravating circumstances of ignominy and deliberately augmenting unnecessary wrongs.

Homicide may precede robbery or may occur after robbery. It is immaterial that the death of a person supervened by mere accident, provided that the homicide be produced by reason or on the occasion of the robbery. Killing a person to escape after the commission of robbery is robbery with homicide.

Poeple vs. Quinones There is no such crime as robbery with multiple homicide. There is only the special complex crime of robbery with homicide, regardless of the fact that 3 persons were killed in the commission of the crime. In robbery, all homicides and murders are merged in the composite. As such, the single indivisible penalty of reclusion

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perpetua should be imposed only once even if multiple killings accompanied the robbery.

People vs. Faigano Nely was suddenly roused from her sleep by Carmelo Faigano, a worker at a nearby construction project. He was in black T-shirt but was no longer wearing pants or underwear. He poked a 29-inch balisong at her neck and threatened to kill her and the children beside her. Then forcibly tore her nightie, raised her pair of brassieres above her breasts and pulled her to the edge of the kingsize wooden bed. He spread her thighs apart against her will and inserted his organ into hers. He had sexual intercourse with her. After satisfying his lust, Faigano then put on his short pants and ordered Nely to bring out her money. He took Nely's money, her husband's wristwatch and two rings. TC found him guilty of the special complex crime of robbery with rape

HELD: SC found him guilty of the separate crimes of robbery and rape. If the intention of the accused was to rob but rape was also committed even before the asportation the crime is robbery with rape. But if the original plan was to rape but the accused after committing the rape also committed robbery when the opportunity presented itself, the offenses should be viewed as separate and distinct. To be liable for the special complex crime of robbery with rape the intent to take personal property of another must precede the rape. Under the circumstances, SC is convinced that when Faigano entered the victim's house he only had in mind sexual gratification. The taking of the cash and pieces of jewelry against Nely's will appears to be an afterthought.

People v. Reyes, 427 SCRA 28 (2004)

FACTS: Dr. Aurora Lagrada, a spinster of about 70 years old, lived alone in her 2-storey house. Reyes’ house was about 4-5 meters away from the doctor's house. Reyes was able to gain entry into the house of Lagrada without the latter knowing. Armed with a bolo, Reyes stole one Rolex wristwatch, 1 gold bracelet, 1 gold ring with birthstone of Jade, 1 Pass Book from Lagrada. On the occasion of the said robbery, Reyes stabbed Lagrada several times in the different parts of her body directly causing her death. The trial court convicted Reyes of robbery with homicide.

HELD: To sustain a conviction of the accused for robbery with homicide, the prosecution is burdened to prove the essential elements of the crime. The accused must be shown to have the principal purpose of committing robbery, the homicide being committed either by reason of or on occasion of the robbery. The homicide may precede robbery or may occur thereafter. What is essential is that there is a nexus, an intrinsic connection between the robbery and the killing. The latter may be done prior to or subsequent to the former. However, the intent to commit robbery must precede the taking of the victim's life. Furthermore, the constituted crimes of robbery and homicide must be consummated. A homicide is considered as having been committed on the occasion or by reason of the robbery when the motive of the offender in killing the victim is to deprive the latter of his property, to eliminate an obstacle to the crime, to protect his possession of the

loot, to eliminate witnesses, to prevent his being apprehended or to insure his escape from the scene of the crime. Appellant stated that he barged into the house of the victim to rob her, and that he stabbed the victim when she was about to shout and because he was drunk. The appellant then took the victim's money and personal belongings and fled from the scene of the crime. The trial court correctly convicted the appellant of robbery with homicide.

People v. Hernandez, 432 SCRA 104 (2004)

FACTS: Catapang and Hernandez dragged 72 year-old Natividad Mendoza, in the direction of a forested area where there were also mango and coconut trees. The two took the money and jewelry of Natividad while she was lying on the ground. Thereafter, Catapang and Hernandez strangled Natividad to death with the use of a white rope made of buri/vine string.

HELD: The Court held that appellant is guilty of robbery with homicide under Article 294, paragraph 1 of the Revised Penal Code, as amended by Republic Act No. 7659. The court further held that, in robbery with homicide, the original criminal design of the malefactor is to commit robbery, with homicide perpetrated on the occasion or by reason of the robbery. The intent to commit robbery must precede the taking of human life. The homicide may take place before, during or after the robbery. It is only the result obtained, without reference or distinction as to the circumstances, causes, modes or persons intervening in the commission of the crime that has to be taken into consideration. There is no such felony of robbery with homicide through reckless imprudence or simple negligence. The constitutive elements of the crime, namely, robbery and homicide, must be consummated.

People v. Milliam, 324 SCRA 155 (2000)

FACTS: Demarayo, a member of the 15th Infantry Battalion, Philippine Army, was leisurely pacing along Quezon Street, Iloilo City, when Roberto and Ricky both surnamed Martin blocked his path. Without any provocation coming from the soldier, Ricky drew his firearm and fired at Demarayo, hitting the latter’s left hand. A brief struggle among the three (3) men ensued which caused the victim to fall down. As Roberto pulled away he warded off Demarayo by kicking him on the waist. While the victim was sprawled on the ground Roberto aimed his rifle at Demarayo's chest and pulled the trigger. Roberto fired another shot hitting Demarayo on the same spot. After the brutal slaying, the assailants nonchalantly walked away with Demarayo's M-16. The lower court ruled that the crime committed was Robbery with Homicide.

HELD: In People v. Salazar, accused-appellants stabbed a security guard and thereafter took away his gun. It was ruled that since the prosecution failed to establish that the homicide was committed by reason or on the occasion of stealing the security guard's firearm, both of them could only be convicted of the separate crimes of Homicide and Theft. The records are bereft of any evidence to prove that the asportation of Demarayo's service firearm was the prime motive of

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accused-appellants. Although it may be true that they were seen grabbing the gun from the victim as the latter was lying prone on the ground, it could be possible that it was done to prevent him from retaliating as he was still conscious after sustaining the first gunshot wound. The taking of the gun might have been an afterthought and not the real purpose of the crime. It can therefore be seen that the prosecution failed to establish convincingly that the homicide was committed for the purpose or on the occasion of robbing the victim. As such, accused-appellants should properly be convicted of the separate offenses of Homicide and Theft, which were both duly proved.

People v. Ranis, 389 SCRA 45 (2002)

FACTS: While Marivic and Ben with their baby were watching television in their bedroom, Murphy and Sabiyon, both armed with bladed weapons, suddenly entered their unlocked bedroom. Murphy poked a knife at her neck while Ernesto straddled on top of Ben who was then lying in bed. Murphy asked for the proceeds of the land Ben sold and some jewelry but Marivic told him that they only had P2,000 in their possession. Murphy then took the P2,000 and several pieces of luxury watches and jewelry. After taking the money and jewelry, both accused tied her hands and those of Ben with electric cord and then they went out of the house, taking Ben with them. The body of Ben was later found lying about five to ten meters from the house with a cloth in the mouth, blood stains on the body, and hack wounds on his right nape and mouth. Ben was brought to the hospital but he was proclaimed dead on arrival.

HELD: In charging robbery with homicide, the onus probandi is to establish: (a) the taking of personal property with the use of violence or intimidation against a person; (b) the property belongs to another; (c) the taking is characterized by animus lucrandi; (d) on the occasion of the robbery or by reason thereof, the crime of homicide, which is used in the generic sense, has been committed. In this case, Marivic Rodelas positively identified appellants Ernesto Sabiyon and Cesario Murphy as the two persons who entered her bedroom. Using sharp, bladed weapons, appellants demanded and took money, watches, and jewelry belonging to the victim, Ben Hernandez. Thereafter, Hernandez was found stabbed to death. The Court ruled that appellants are guilty of robbery with homicide.

People v. Gonzales, 382 SCRA 694 (2002) FACTS: Nicanor Suralta was having drinks with his visitors in their house when two armed men, one carrying a gun and the other a knife, suddenly entered the house through the kitchen door. The one carrying a gun had a bonnet over his face, with only his eyes exposed, while the other one carrying a knife had the lower half of his face covered with a handkerchief. The knife-wielder held Chona, the third child of the Suralta spouses, and announced a holdup. All persons in the house were ordered to go inside the bedroom, about 2 meters away from the sala. There, the man with a gun demanded a gun and money from Nicanor. Nicanor answered that he had no gun, but asked his wife, Carolita, to give money to the holduppers. Carolita gave P2,100.00, which was intended to be deposited in the bank, to the knife-wielder, who placed it in his pocket. Then the knife-wielder ransacked the cabinet and took the remaining amount of P325.00, which was intended for the school expenses of the

Suralta children. In addition, he took the family's Sanyo cassette recorder and some clothes. The holduppers also divested one of the guests of his Seiko diver's wristwatch and then left. As the holduppers were leaving, two gunshots rang out. Nicanor was heard moaning. Nicanor eventually died.

HELD: After reviewing the records of this case, the court ruled that the prosecution evidence establishes the guilt of accusedappellants beyond reasonable doubt. A conviction for robbery with homicide requires proof of the following elements: (a) the taking of personal property with violence or intimidation against persons or with force upon things; (b) the property taken belongs to another; (c) the taking be done with animus lucrandi (intent to gain); and (d) on the occasion of the robbery or by reason thereof, homicide in its generic sense is committed. The offense becomes the special complex crime of robbery with homicide under Art. 294 (1) of Revised Penal Code if the victim is killed on the occasion or by reason of the robbery. All elements are present in the case at bar.

People v. Torres, 359 SCRA 761 (2001)

FACTS: Vicente Galanao, his sons Julian and Macky and Jose all surnamed Bulanao went with their employer, Boloy , to buy copra and abaca. They were on board a truck driven by Boloy. On the way, they were stopped by Torres who stood at the left side of the road. Torres approached the left side of the truck, went up the truck, and shot Boloy once. After shooting, two persons armed with guns appeared from nowhere and approached the back of the truck and told them to lie face downward. The two persons came from the portion where bamboos grew by the side of the road. Afterwards the men ran towards the mountainside with the victims bag containing P500,000.00, the victims necklace, ring and his wristwatch.

HELD: Robbery with homicide is a special complex crime against property. Homicide is incidental to the robbery which is the main purpose of the criminal. In charging robbery with homicide, the onus probandi is to establish: xxx… xxx… (d) on the occasion of the robbery or by reason thereof, the crime of homicide, which is used in the generic sense, was committed. The phrase "by reason" covers homicide committed before or after the taking of personal property of another, as long as the motive of the offender in killing a person before the robbery is to deprive the victim of his personal property which is sought to be accomplished by eliminating an obstacle or opposition or in killing a person after the robbery to do away with a witness or to defend the possession of the stolen property. Thus, it matters not that the victim was killed prior to the taking of the personal properties of the victim. What is essential in robbery with homicide is that there be a direct relation and intimate connection between robbery and killing, whether both crimes be committed at the same time. The Court ruled that all elements of robbery with homicide are present in this case.

People v. Maxion, 361 SCRA 414 (2001)

FACTS: Himor, a teller at the United Coconut Planters Bank (UCPB), walked across the street towards the Hi-Top Supermarket, to pick up the cash deposit of the supermarket amounting to P1,464,644.75. After issuing the deposit slip, he placed the money inside a duffle bag and padlocked the bag. Thereafter, he called the bank to send his security escort. UCPB sent security escort

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Gargaceran. While Himor and Gargaceran were about to cross the street going back to the bank. Maxion and another man suddenly emerged and walked towards them. Maxion was in front of Gargaceran while the second stayed behind him. Both of them aimed their guns at Gargaceran. The man behind Gargaceran immediately took Gargaceran's handgun, and shortly thereafter, Maxion shot Gargaceran at close range hitting him on the chest eventually causing his death. Himor attempted to run with the bag towards the bank but he was stopped by the armed men who ordered him to release the bag. With their guns pointed at him, Himor tossed the bag containing the money to them and ran back to the supermarket.

HELD: There is no question that the original and principal intention of the two armed men was to get the money of Hi-Top Supermarket. This is evident from the testimony of teller Himor that as soon as the two men stopped him from running towards the bank, they shouted to release the bag containing the money. As the robbery resulted in the killing of the security guard Gargaceran, the offense committed by the malefactors is indubitably the special complex crime of robbery with homicide. In robbery with homicide, what is essential is that there be "a direct relation, an intimate connection between robbery and the killing, whether the latter be prior or subsequent to the former or whether both crime be committed at the same time.

People v. Consejero, 352 SCRA 276 (2001)

FACTS: While they were fishing, Accused Consajero, a CAFGU member and Malapit, armed with an M-14, asked Castillo and Usigan if they were the ones exacting quota from the Barangay captain. The two replied in the negative. Consajero then asked Castillo and Usigan to accompany them to a nearby store. They then killed Castillo and Usigan. Thereafter, they took the Briggs and Straton engine of the motorized banca ridden by Castillo and Usigan which is owned by Israel. Castillo was found lying on the ground, face down, drenched in his own blood with hands tied at the back. Twenty meters away lay the dead body of Usigan, who sustained thirty-one stab and hack wounds on the different parts of his body.

HELD: The criminal acts of accused-appellant constitute not a complex crime of robbery with homicide, but three separate offenses: 1. Murder, for the killing of Modesto Castillo, 2. Homicide, for the death of Dionisio Usigan; and 3. Theft, for the unlawful taking of the Briggs and Straton engine of the motorized banca. In People v. Amania, the Court had occasion to rule that in robbery with homicide, the killing must have been directly connected with the robbery. It is necessary that there must have been an intent on the part of the offenders to commit robbery from the outset and, on occasion or by reason thereof a killing takes place. The original design must have been robbery, and the homicide, even if it precedes or is subsequent to the robbery, must have a direct relation to, or must be perpetrated with a view to consummate the robbery. The taking of the property should not be merely an afterthought which arose subsequent to the killing. In the present case, it does not appear that the primary purpose of accused-appellant in accosting the two deceased was to rob the engine of the motorized banca. From all indications, accusedappellant, a CAFGU member, was primarily interested in taking the life of the two deceased whom he suspected of exacting quota from the Barangay captain, and the taking of the subject engine was

merely an afterthought that arouse subsequent to the killing of the victims.

People v. Legaspi, 331 SCRA 95

FACTS: Carlos Deveza, erstwhile member of the PNP arrived at the Cartimar Plaza Market to fetch his wife, Estella, who was then closing the family chain of stalls for the day. Upon arrival, Carlos parked his Toyota Tamaraw vehicle in front of the stall. Immediately thereafter, Estella approached Carlos, who was still at the driver's seat, and handed him a black leather bag which contained P300,000.00 cash, pieces of jewelry and checks. As Estella left to make a phone call, Carlos alighted from the Tamaraw and stood on the left side of the vehicle with both arms resting on the vehicle's window. Legaspi, coming from the front of the vehicle position himself 2½ meters away from Deveza, level and poke a gun wrapped in a piece of cloth or towel at the latter’s nape and eventually pull the trigger. Deveza fell on the pavement. The gunman then picked up Deveza's black shoulder bag and casually walked away from the scene of the crime. While conversing with other tricycle drivers, Wilfredo Dazo heard the gunshot prompting him to dart his eyes toward the direction of the gunfire where he saw Deveza stooping and about to fall. Pitying the victim, Dazo hid behind a post and waited in ambush for Legaspi and the latter’s companion, Franco. In so doing, Dazo intended to seize and stop Legaspi who was then holding a gun, but in the process mistakenly grabbed the unarmed Franco by the waist. Thereafter, Dazo and Franco wrestled causing Dazo to fall on his knees and allowing Legaspi to take an aim and shoot at Dazo twice. At the height of the struggle between Dazo and Franco, shots were fired by Legaspi, one bullet hitting Dazo on the right jaw.

HELD: Obviously, the killing of Carlos Deveza and the shooting of Wilfredo Dazo were perpetrated by reason of or on the occasion of the robbery. Thus, the physical injuries sustained by Dazo are deemed absorbed in the crime of robbery with homicide. Taken in its entirety, the overt acts of accused-appellant Legaspi prove that the lone motive for the killing of Deveza and the shooting of Dazo was for the purpose of consummating and ensuring the success of the robbery. In the final analysis, the shooting of Dazo was done in order to defend the possession of the stolen property. It was therefore an act which tended to insure the successful termination of the robbery and secure to the robber the possession and enjoyment of the goods taken. Accused-appellant's argument that the element of "taking" was not proved is thus unavailing in the face of Tulod's testimony.

People v. Temanel, 341 SCRA 319 (2000)

FACTS: Renato Sucilan, his wife Adelina, daughter Liezl, and brother Romeo were eating dinner in Renato's house. After dinner, Adelina prepared for bed while Renato played with Liezl. Romeo went home to his own hut situated five meters away. Suddenly, a stone was hurled into Renato's house hitting the petromax lamp. Immediately, brothers Jose and Eddie Temanel entered the house. Jose poked Renato with a bladed weapon while Eddie ordered Adelina to take out their money and valuables. Later, cohorts of the Temanels entered the hut. Osis grabbed Liezl, and held a knife against her. Terrified, Adelina put the valuables in an empty milk can and placed the same outside the door. Efren

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Temanel, who was outside the hut, took the can. The intruders tied the couple. When Renato and Adelina were able to free themselves, the former stepped out of the house and was shocked to find his brother, Romeo, dead with several stab wounds in the neck and his intestines exposed. The pieces of jewelry he usually wore, were no longer on his body.

HELD: All the elements of robbery with homicide concur in this case. The properties taken consisted of pieces of jewelry, a radio, rice, money and other valuables, all of which clearly belonged to the Sucilans. The properties were violently taken and intent to gain can be presumed from the unlawful taking. In addition, Romeo Sucilan was killed by reason or on the occasion of the robbery. Where homicide is perpetrated with a view to rob, the offense is robbery with homicide. But if robbery was an afterthought and a minor incident in the homicide, there are two distinct offenses. Here, the killing was committed in the course of the robbery. The fact that it was Efren Temanel and not accusedappellants, Eddie and Jose Temanel, who stabbed Romeo is of no moment. In People v. Mendoza, if all accused take part in a robbery resulting in death, all of them shall be held liable for robbery with homicide in the absence of proof that they prevented the killing.

People v. Cruz, 380 SCRA 13 (2002)

FACTS: Donato Cruz, who was high on drugs, entered the house of the Robleses, and sat on a sofa near the kitchen. While seated on the sofa, Laura saw respondent and she became hysterical and started shouting. Thinking that he will be assaulted by Laura, Cruz went inside the house, got hold of a pointed object and stabbed to death Laura Robles and her 5-year old daughter, Lara. Thereafter, he ransacked the cabinet of the Robleses taking away a Minolta camera, a wedding ring and P8,000.00 in cash, as well as an undetermined amount of US dollars. The RTC convicted Cruz of two (2) counts of murder and one (1) count of theft. Appellant argues that he should have been charged with the crime of robbery with homicide.

HELD: The Court held that the argument of the Appellant is without merit. The special complex crime of robbery with homicide is primarily a crime against property, and not against persons, homicide being a mere incident of the robbery with the latter being the main purpose and object of the criminal (People vs. Navales, 266 SCRA 569 [1997]). In the case at bar, the evidence on record shows that appellant stole the camera and cash only as an afterthought. His primary purpose was to kill Laura and her 5-year old daughter, Lara, after he panicked. Hence, the prosecution was correct when it did not charge appellant with the special complex crime of robbery with homicide.

People v. Zuela, 323 SCRA 589 (2000)

FACTS: Maria Abendaño was engaged in business. She had a store, operated a passenger jeepney and engaged in the buy and sale of palay. Her sister Romualda also had a store. Accused Nelson was Maria's store helper. Accused Tito Zuela alias "Anting" helped Romualda in her store during palay season. The other accused

Maximo Velarde was known to Romualda because she met him at a birthday party held at Maria's house. The three accused were friends. Maximo, Tito and Nelson conceived the plan to hold-up Maria while drinking in front of Romualda's store because Maximo needed money for his fare to Manila. Maximo, Tito and Nelson boarded the palayladen jeepney of Maria and upon reaching an uninhabited place. Maximo poked a gun at the driver and shot him. He also shot Maria at the neck when the latter shouted. Nelson and Tito alighted from the jeepney. Nelson went to the left front side of the jeepney, while Tito approached the right front side of the jeepney, in the process stepping on the sleeping John-John who was then awakened. The boy stood up and said, "You will see I will tell my father that you killed my mother." To avoid being identified by the boy, Tito told Maximo to kill the boy. Maximo then took hold of the boy's hair and slashed his neck. Tito took Maria's money and divided it, each accused receiving about seven thousand (P7,000.00) pesos from the loot.

HELD: The crime committed is the special complex crime of robbery with homicide defined and penalized in Article 294 of the Revised Penal Code. The trial court correctly considered the crime as robbery with homicide and not "robbery with triple homicide" as charged in the information. The term "homicide" in Article 294(1) is used in its generic sense, embracing not only the act which results in death but also all other acts producing anything short of death. Neither is the nature of the offense altered by the number of killings in connection with the robbery. The multiplicity of victims slain on the occasion of the robbery is only appreciated as an aggravating circumstance. This would preclude an anomalous situation where, from the standpoint of the gravity of the offense, robbery with one killing would be treated in the same way that robbery with multiple killings would be.

People v. Dinamling, 379 SCRA 107 (2002)

FACTS: Marilyn Pajarillo was in their house lying down in bed with her 2-year old daughter. Seated beside her was 11-year old Rosemarie Malalay, who was waiting for her father Rogelio. Rogelio was then in the patio, outside the house, drinking gin with Marilyn's husband Charlie Pajarillo and Deogracias Acosta. Suddenly, Orlando Dinamling entered their house and poked a long gun at Marilyn's forehead, ordered her to lie prone on the ground. Marilyn merely sat down. Dinamman, with a short firearm, entered their sari-sari store, searched their belongings and took more or less P1,500.00 in cash representing her sales, two (rims of Champion cigarettes, one dozen cans of sardines and one pack of Juicy Fruit chewing gum. Outside, Fernando Dinamling and Linnam poked guns at the heads of Rogelio and Deogracias, who were then lying prostrate on the ground.. After a while, Rogelio and Deogaracias were shot to death. The trial court's ruled that Orlando and Fenando Dinamling, Diinamman and Linnam are guilty of "robbery with double homicide"

HELD: Accused-appellants' crime is robbery with homicide. The trial court's denomination of the offense as "robbery with double homicide" is erroneous. It is settled that regardless of the number of homicides committed, the crime should still be denominated as robbery with homicide. The number of persons killed is immaterial and does not increase the penalty prescribed by Article 294 of the Revised Penal Code. Stated differently, the homicides or murders and physical injuries, irrespective of their numbers, committed on the occasion or by reason of the robbery are merged in the composite crime of robbery with homicide.

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People v. Daniela, 401 SCRA 519 (2002)

FACTS: Manuel Daniela and Jose Baylosis came to the house of Ronito and his common-law wife, Maria Fe to borrow money. Manuel, Jose, and Ronito then had a drinking spree. Later, Manuel armed with a .38 caliber gun, entered the bedroom of Ronito and Maria Fe and poked the said gun on Maria Fe. Jose, armed with a knife followed Manuel to the bedroom. Upon Manuel’s order Jose tied the hands of Maria Fe behind her back and put a tape on her mouth. Jose also tied the hands of Marife’s cousin, Leo. Jose and Manuel then divested Maria Fe of her necklace, rings and earrings. Manuel demanded that she give them her money but Maria Fe told them that she had used her money to pay her partners in the fish vending business. Manuel and Jose did not believe Maria Fe and ransacked the room but failed to find money. Manuel then threatened to explode the grenade tucked under his shirt and kill Maria Fe, her family and their househelps if she refused to surrender her money. Petrified, Maria Fe took the money from her waist pouch and gave the same to Manuel and Jose. Manuel took a blanket and ordered Jose to kill Ronito with it. Jose went to the kitchen, got a knife, covered Ronito with the blanket and sat on top of him then stabbed the latter several times. Manuel also stabbed Ronito on different parts of his body. Manuel hit Ronito with the butt of his gun. Jose slit the throat of Ronito and took the latter's wristwatch and ring. Manuel then raped Julifer, a househelp of Marife.

HELD: The law does not require that the sole motive of the malefactor is robbery and commits homicide by reason or on the occasion thereof. In People vs. Tidula, et al., this Court ruled that even if the malefactor intends to kill and rob another, it does not preclude his conviction for the special complex crime of robbery with homicide. In People v. Damaso, the Court held that the fact that the intent of the felons was tempered with a desire also to avenge grievances against the victim killed, does not negate the conviction of the accused and punishment for robbery with homicide. A conviction for robbery with homicide is proper even if the homicide is committed before, during or after the commission of the robbery. The homicide may be committed by the actor at the spur of the moment or by mere accident. Even if two or more persons are killed and a woman is raped and physical injuries are inflicted on another, on the occasion or by reason of robbery, there is only one special complex crime of robbery with homicide. What is primordial is the result obtained without reference or distinction as to the circumstances, cause, modes or persons intervening in the commission of the crime. Robbery with homicide is committed even if the victim of the robbery is different from the victim of homicide, as long as the homicide is committed by reason or on the occasion of the robbery. It is not even necessary that the victim of the robbery is the very person the malefactor intended to rob. For the conviction of the special complex crime, the robbery itself must be proved as conclusively as any other element of the crime. It may be true that the original intent of appellant Manuel was to borrow again money from Ronito and Maria Fe but later on conspired with Jose and robbed the couple of their money and pieces of jewelry, and on the occasion thereof, killed Ronito. Nonetheless, the appellants are guilty of robbery with homicide.

FACTS:A group of more than six armed men including Napalit barged into the Tondo General Hospital. One of the armed men pointed a gun at the security guard and announced a hold-up. Simultaneously, Napalit pointed a gun at, and grabbed the firearm of, another security guard. Four members of the group then entered the cashier's office of the hospital and ordered the employees to lie down on the floor. One of them pointed a gun at the cashier, Alonzo, and ordered him to open the vault. Before Alonzo could do as instructed, he was searched for weapons in the course of which his wallet containing P450.00 in cash was taken. Alonzo then opened the vault which the four emptied of P1,010,274.90 in cash. While the four malefactors were at the cashier's office, another security guard, Gomez, who was manning the hospital gate was disarmed of his service pistol, pushed outside the hospital premises, and shot twice by one of the armed men. The four armed men who emptied the vault then rushed out of the hospital and one of them also shot Gomez who had by then collapsed on the ground. Two of them headed toward a Toyota Tamaraw vehicle driven by Castor which was on a stop position, due to heavy traffic, in front of the hospital. One of the duo ordered the passenger at the front seat to get off the vehicle. The other, after forcing Castor to alight from the vehicle, drove it and fled with his companion. The RTC found Napalit guilty of robbery with homicide and violation of R. A. 6539 (the AntiCarnapping Act), respectively. Napalit argues that assuming that he had indeed participated in the incident, he should only be held liable for robbery and not for the special complex crime of robbery with homicide.

HELD: In a long line of cases, the Court has ruled that whenever homicide is committed as a consequence or on the occasion of the robbery, all those who took part as principals in the robbery will also be held guilty as principals in the special complex crime of robbery with homicide although they did not take part in the homicide, unless it is clearly shown that they endeavored to prevent the homicide. (People v. Lago, 358 SCRA 550 (2001), People v. Liad, 355 SCRA 11 (2001), People v. Pedroso, 336 SCRA 163)

People v. Lara (2006)

The Court disagrees with the Court of Appeals that appellant committed the crime of robbery with homicide in Criminal Case No. 97-13706. There is nothing in the records that would show that the principal purpose of appellant was to rob the victim of his shotgun (Serial No. 9600942). It must be emphasized that when the victim and appellant met and had a heated argument, the absence of the intent to rob on the part of the appellant was apparent. Appellant was not trying to rob the victim. Appellant’s act of taking the shotgun was not for the purpose of robbing the victim, but to protect himself from the victim. No one would in one’s right mind just leave a firearm lying around after being in a heated argument with another person. Having failed to establish that appellant’s original criminal design was robbery, appellant could only be convicted of the separate crimes of either murder or homicide, as the case may be, and theft.

Bar Questions Robbery w/ force upon things (2000) People v. Napalit, 396 SCRA 687 (2003)

A, brother of B, with the intention of having a night out with his friends, took the coconut shell which is being used by B

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as a bank for coins from inside their locked cabinet using their common key. Forthwith, A broke the coconut shell outside of their home in the presence of his friends. What is the criminal liability of A, if any? Explain. (3%) Is A exempted from criminal liability under Article 332 of the Revised Penal Code for being a brother of B? Explain. (2%) SUGGESTED ANSWER: a) A is criminally liable for Robbery with force upon things, because the coconut shell with the coins inside, was taken with intent to gain and broken outside of their home, (Art. 299 (b) (2). RPC). b) No, A is not exempt from criminal liability under Art. 332 because said Article applies only to theft, swindling or malicious mischief. Here, the crime committed is robbery. Robbery w/ Homicide - R.A. No. 7659 (2005) Jose employed Mario as gardener and Henry as cook. They learned that Jose won P500,000.00 in the lotto, and decided to rob him. Mario positioned himself about 30 meters away from Jose’s house and acted as lookout. For his part, Henry surreptitiously gained entry into the house and killed Jose who was then having his dinner. Henry found the P500,000.00 and took it. Henry then took a can of gasoline from the garage and burned the house to conceal the acts. Mario and Henry fled, but were arrested around 200 meters away from the house by alert barangay tanods. The tanods recovered the P500,000.00. Mario and Henry were charged with and convicted of robbery with homicide, with the aggravating circumstances of arson, dwelling, and nighttime. Mario moved to reconsider the decision maintaining that he was not at the scene of the crime and was not aware that Henry killed the victim; hence, he was guilty only of robbery, as an accomplice. Mario also claimed that he conspired with Henry to commit robbery but not to kill Jose. Henry, likewise, moved to reconsider the decision, asserting that he is liable only for attempted robbery with homicide with no aggravating circumstance, considering that he and Mario did not benefit from the P500,000.00. He further alleged that arson is a felony and not an aggravating circumstance; dwelling is not aggravating in attempted robbery with homicide; and nighttime is not aggravating because the house of Jose was lighted at the time he was killed. Resolve with reasons the respective motions of Mario and Henry. (7%) SUGGESTED ANSWER: Mario is not correct. Mario conspired and acted in concert with Henry to commit robbery. Hence, the act of one is the act of all and the extent of the specific participation of each individual conspirator becomes secondary, each being held liable for the criminal deed(s) executed by another or others. As a conspirator, Mario casts his lot with his fellow conspirators and becomes liable to any third person who may get killed in the course of implementing the criminal design. (People v. Punzalan, et al.. G.R. No. 78853, November 8, 1991) Henry is incorrect, since he acquired possession of the money. The crime of robbery with force and intimidation is consummated when the robber acquires possession of the property, even if for a short time. It is no defense that they had no opportunity to dispose of or benefit from the money taken. (People v. Salvilia, et al., G.R. No. 88163, April 26, 1990) Since the crime in robbery with force and intimidation against persons (robbery with

homicide), dwelling is aggravating. Arson, which accompanied the crime of robbery with homicide is absorbed (Art. 294, RFC as amended by R.A. No. 7659) and is not aggravating because the RPC does not provide that such crime is an aggravating circumstance. (People v. Regala, G.R. No. 130508, April 5, 2000) Nighttime, likewise, is not aggravating. There is no showing that the same was purposely sought by the offenders to facilitate the commission of the crime or impunity. Robbery w/ Homicide (1996) Jose, Domingo, Manolo, and Fernando, armed with bolos, at about one o'clock in the morning, robbed a house at a desolate place where Danilo, his wife, and three daughters were living. While the four were in the process of ransacking Danilo's house, Fernando, noticing that one of Danilo's daughters was trying to get away, ran after her and finally caught up with her in a thicket somewhat distant from the house. Fernando, before bringing back the daughter to the house, raped her first. Thereafter, the four carted away the belongings of Danilo and his family. a) What crime did Jose, Domingo, Manolo and Fernando commit? Explain. b) Suppose, after the robbery, the four took turns in raping the three daughters of Danilo inside the latter's house, but before they left, they killed the whole family to prevent identification, what crime did the four commit? Explain. SUGGESTED ANSWER: (a) Jose, Domingo, and Manolo committed Robbery, while Fernando committed complex crime of Robbery with Rape. Conspiracy can be inferred from the manner the offenders committed the robbery but the rape was committed by Fernando at a place "distant from the house" where the robbery was committed, not in the presence of the other conspirators. Hence, Fernando alone should answer for the rape, rendering him liable for the special complex crime. (People vs. Canturia et. al, G.R. 108490, 22 June 1995} b) The crime would be Robbery with Homicide because the killings were by reason (to prevent identification) and on the occasion of the robbery. The multiple rapes committed and the fact that several persons were killed [homicide), would be considered as aggravating circumstances. The rapes are synonymous with Ignominy and the additional killing synonymous with cruelty, (People vs. Solis, 182 SCRA; People vs.

Plaga, 202 SCRA 531) Robbery w/ Homicide (1998) A, B, C and D all armed, robbed a bank, and when they were about to get out of the bank, policemen came and ordered them to surrender but they fired on the police officers who fired back and shot it out with them. 1. Suppose a bank employee was killed and the bullet which killed him came from the firearm of the police officers, with what crime shall you charge A, B. C and D? [3%] 2. Suppose it was robber D who was killed by the policemen and the prosecutor charged A, B and C with Robbery and Homicide. They demurred arguing that they (A, B and C) were not the ones who killed robber D, hence, the

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charge should only be Robbery. How would you resolve their argument? (2%) SUGGESTED ANSWER: 1. A, B, C and D should be charged with the crime of robbery with homicide because the death of the bank employee was brought about by the acts of said offenders on the occasion of the robbery. They shot it out with the policeman, thereby causing such death by reason or on the occasion of a robbery; hence, the composite crime of robbery with homicide. 2. The argument is valid, considering that a separate charge for Homicide was filed. It would be different if the charge filed was for the composite crime of robbery with homicide which is a single, indivisible offense. ALTERNATIVE ANSWER: 2. The argument raised by A, B and C is not correct because their liability is not only for Robbery but for the special complex crime of Robbery with homicide. But the facts stated impresses that separate crimes of Robbery "and" Homicide were charged, which is not correct. What was committed was a single indivisible offense of Robbery with homicide, not two crimes. Robbery w/ Homicide (2003) A learned two days ago that B had received dollar bills amounting to $10,000 from his daughter working in the United States. With the intention of robbing B of those dollars, A entered B's house at midnight, armed with a knife which he used to gain entry, and began quietly searching the drawers, shelves, and other likely receptacles of the cash. While doing that, B awoke, rushed out from the bedroom, and grappled with A for the possession of the knife which A was then holding. After stabbing B to death, A turned over B's pillow and found the latter's wallet underneath the pillow, which was bulging with the dollar bills he was looking for. A took the bills and left the house. What crime or crimes were committed? 8% SUGGESTED ANSWER: The crime committed is robbery with homicide, a composite crime. This is so because A's primordial criminal intent is to commit a robbery and in the course of the robbery, the killing of B took place. Both the robbery and the killing were consummated, thus giving rise to the special complex crime of robbery with homicide. The primary criminal intent being to commit a robbery, any killing on the "occasion" of the robbery, though not by reason thereof, is considered a component of the crime of robbery with homicide as a single indivisible offense. Robbery w/ Homicide; Special Complex Crime (1995) Victor, Ricky, Rod and Ronnie went to the store of Mang Pandoy. Victor and Ricky entered the store while Rod and Ronnie posted themselves at the door. After ordering beer Ricky complained that he was shortchanged although Mang Pandoy vehemently denied it. Suddenly Ricky whipped out a knife as he announced "Hold-up ito!" and stabbed Mang Pandoy to death. Rod boxed the store's salesgirl Lucy to prevent her from helping Mang Pandoy. When Lucy ran out of the store to seek help from people next door she was chased by Ronnie. As soon as Ricky had stabbed Mang

Pandoy, Victor scooped up the money from the cash box. Then Victor and Ricky dashed to the street and shouted, "Tumakbo na kayo!" Rod was 14 and Ronnie was 17. The money and other articles looted from the store of Mang Pandoy were later found in the houses of Victor and Ricky. Discuss fully the criminal liability of Victor, Ricky, Rod and Ronnie. SUGGESTED ANSWER: All are liable for the special complex crime of robbery with homicide. The acts of Ricky in stabbing Mang Pandoy to death, of Rod in boxing the salesgirl to prevent her from helping Mang Pandoy, of Ronnie in chasing the salesgirl to prevent her in seeking help, of Victor in scooping up money from the cash box, and of Ricky and Victor in dashing to the street and announcing the escape, are all indicative of conspiracy. The rule is settled that when homicide takes place as a consequence or on the occasion of a robbery, all those who took part in the robbery are guilty as principals of the crime of robbery with homicide, unless the accused tried to prevent the killing (People vs. Baello, 224 SCRA 218). Further, the aggravating circumstance of craft could be assessed against the accused for pretending to be customers of Mang Pandoy. Robbery; Homicide; Arson (1995) Harry, an overseas contract worker, arrived from Saudi Arabia with considerable savings. Knowing him to be "loaded", his friends Jason, Manuel and Dave invited him to poker session at a rented beach cottage. When he was losing almost all his money which to him was his savings of a lifetime, he discovered that he was being cheated by his friends. Angered by the betrayal he decided to take revenge on the three cheats. Harry ordered several bottles of Tanduay Rhum and gave them to his companions to drink, as they did, until they all fell asleep. When Harry saw his companions already sound asleep he hacked all of them to death. Then he remembered his losses. He rifled through the pockets of his victims and got back all the money he lost. He then ran away but not before burning the cottage to hide his misdeed. The following day police investigators found among the debris the charred bodies of Jason, Manuel, Dave and the caretaker of the resort. After preliminary investigation, the Provincial Prosecutor charged Harry with the complex crime of arson with quadruple homicide and robbery. Was Harry properly charged? Discuss fully. SUGGESTED ANSWER: No, Harry was net properly charged. Harry should have been charged with three (3) separate crimes, namely: murder, theft and arson. Harry killed Jason, Manuel and Dave with evident premeditation, as there was considerable lapse of time before he decided to commit the crime and the actual commission of the crime. In addition, Harry employed means which weakened the defense of Jason, Manuel and Dave. Harry gave them the liquor to drink until they were drunk and fell asleep. This gave Harry the opportunity to carry out his plan of murder with impunity. The taking of the money from the victims was a mere afterthought of the killings. Hence, Harry committed the

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separate crime of theft and not the complex crime of robbery with homicide. Although theft was committed against dead persons, it is still legally possible as the offended party are the estates of the victims. In burning the cottage to hide his misdeed. Harry became liable for another separate crime, arson. This act of burning was not necessary for the consummation of the two (2) previous offenses he committed. The fact that the caretaker died from the blaze did not qualify Harry's crime into a complex crime of arson with homicide for there is no such crime. Hence, Harry was improperly charged with the complex crime of arson with quadruple homicide and robbery. Harry should have been charged with three (3) separate crimes, murder, theft and arson.

People vs. Dinola Facts: Dinola saw victim Marilyn’s watch after he had raped her. She refused to give him the watch so he took if forcibly from her and left. Dinola was convicted of robbery with rape.

Held: The crime of robbery and rape should be punished as 2 separate offences. If the original design was to commit rape but the accused after committing rape also committed robbery (more of an afterthought, even accidental) because the opportunity presented itself, the criminal act should be viewed as 2 distinct offences. If the intention of the accused was to commit robbery but rape was also committed even before the robbery, the crime of robbery with rape was committed.

Robbery with rape Like in robbery with homicide, the offender must have the intent to take the personal property belonging to another with intent to gain, and such intent must precede the rape. There is no such crime as robbery with attempted rape. It must be consummated. Otherwise, they are separate offences. When the taking of personal property of a woman is an independent act following defendant’s failure to consummate the rape, there are two distinct crimes committed: attempted rape and theft. Additional rapes committed on the same occasion of robbery will not increase the penalty. All acts of rape on that occasion being integrated in one composite crime. When the taking of property after the rape is not with intent to gain, there is neither theft nor robbery committed. The civil liability for rape in robbery with rape has been set at P50,000. When rape and homicide co-exist in the commission of robbery, the crime is robbery with homicide and rape under par 1 of Art 294, the rape to be considered as an aggravating circumstance only. (note: this is in the cases of Pp vs Ganal, Pp vs Basca, and Pp vs Villa. but i disagree with this ruling based on moral grounds and lack of legal basis. how could rape be merely an aggravating circumstance?)

People vs. Patola

People vs Moreno Facts: Accused Moreno, Deloria and Maniquez robbed the Mohnani spouses. Deloria raped househelp Narcisa while Maniquez raped househelp Mary Ann. Moreno was convicted of robbery while Deloria and Maniquez, robbery with rape.

Held: Moreno who took no part in the rape is guilty of robbery only. Ruling was correct.

People v. Fabon, 328 SCRA 302 (2000)

FACTS: Locsin Fabon, alias "Loklok," entered the home of 64 year-old, Bonifacia Lasquite and forcibly took the victim’s money amounting to P25,000.00. On the occasion of the robbery, Fabon raped Lasquite. Thereafter, Fabon strangled and stabbed Lasquite with a knife resulting to her death. The RTC convicted Fabon of Robbery with Homicide and Rape, penalized under Article 294, number 1 of the RPC, as amended by R.A. 7659.

HELD: The trial court inaccurately designated the crime committed as "robbery with homicide and rape." When the special complex crime of robbery with homicide is accompanied by another offense like rape or intentional mutilation, such additional offense is treated as an aggravating circumstance which would result in the imposition of the maximum penalty of death. The Court cited the case of People vs. Lascuna, where it was held that “We agree with the Solicitor General's observation that the crime committed was erroneously designated as robbery with homicide, rape and physical injuries. The proper designation is robbery with homicide aggravated by rape. When rape and homicide co-exist in the commission of robbery, it is the first paragraph of Article 294 of the Revised Penal Code which applies, the rape to be considered as an aggravating circumstance. . . .

Robbery committed with rape is punished under RPC Art 294 par 2, not under RPC 335 on qualified rape. People v. Domingo, 383 SCRA 43 (2002)

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FACTS: Appellant Domingo Temporal, Pedro, Valdez, and Rivera went to the house of Spouses Valentin and Clara Gabertan, armed with a piece of bamboo, 2x2 piece of wood, ipil-ipil posts and bolo, They assaulted and clubbed Valentin with their weapons, weakening and injuring him. Eventually they stole from the Gabertan spouses cash in the amount of P5,350.00, 1 ladies gold Seiko watch, 9 turkeys, and 2 chickens. Thereafter, while Rivera guarded Valentin, the four accused took turns in raping Carla outside the house where she was forcibly laid on the cogon grass. RTC found appellant guilty of robbery with multiple rape.

The special complex crime of robbery with rape defined in Article 293 in relation to paragraph 2 of Article 294 of the Revised Penal Code, as amended, employs the clause "when the robbery shall have been accompanied with rape." In other words, to be liable for such crime, the offender must have the intent to take the personal property of another under circumstances that makes the taking one of robbery, and such intent must precede the rape. If the original plan was to commit rape, but the accused after committing the rape also committed robbery when the opportunity presented itself, the robbery should be viewed as a separate and distinct crime.

HELD: The RTC should have convicted appellant of robbery with rape instead of robbery with multiple rape. In the special complex crime of robbery with rape, the true intent of the accused must first be determined, because their intent determines the offense they committed. To sustain a conviction for robbery with rape, it is imperative that the robbery itself must be conclusively established. To support a conviction therefor, proof of the rape alone is not sufficient. Robbery with rape occurs when the following elements are present: (1) personal property is taken with violence or intimidation against persons, (2) the property taken belongs to another, (3) the taking is done with animo lucrandi, and (4) the robbery is accompanied by rape.

A painstaking assessment of the evidence in this case convinces us that ROGELIO committed two separate offenses of rape and theft, and not the special complex crime of robbery with rape. Immediately after ROGELIO put his arms around MARITES and directed the knife at her neck, he dragged Marites to the vacant space in ABC Commercial Complex and removed her clothes. These acts clearly showed that ROGELIO had in mind sexual gratification. This intent was further established by the fact that when MARITES offered to give her ring to ROGELIO, the latter did not take it and instead replied, "Mamaya na iyan"; "That will come later on because I will give it back to you but you have to follow me first." Again, when ROGELIO removed his pants, MARITES told him to get her bag if he needed money; but ROGELIO replied "I do not need money." After giving vent to his lustful desire, he snatched the victim's shoulder bag, which was then on her right foot, and then he ran away. Clearly then, the taking of personal property was not the original evil plan of ROGELIO. It was an afterthought following the rape.

In the case at bar, all the foregoing elements are present. The contemporaneous acts of appellant and his co-accused stress the fact that they were initially motivated by animus lucrandi. They first demanded guns, moneys and animals from Valentin Gabertan. Apparently, it was only when they entered the house and saw his wife when they thought of raping her.The prosecution likewise established that appellant and his co-accused took chickens, a watch and money from complainants through violence.

People v. Verceles, 388 SCRA 515 (2002)

FACTS: Accused Verceles alias "Baldog", Corpuz, Soriano alias "Merto", Ramos and Soriano entered the house of Mrs. Rosita Quilates by forcibly destroying the grills of the window. Once inside, they took away 1 colored T.V., 1 VHS, assorted jewelries, 1 alarm clock and 1 radio cassettes. In the course of the robbery, Soriano, succumbed to lustful desires and raped Maribeth Bolito while the others just stood outside the door and did nothing to prevent Soriano.

HELD: Once conspiracy is established between two accused in the commission of the crime of robbery, they would be both equally culpable for the rape committed by one of them on the occasion of the robbery, unless any of them proves that he endeavored to prevent the other from committing the rape. The rule in this jurisdiction is that whenever a rape is committed as a consequence, or on the occasion of a robbery, all those who took part therein are liable as principals of the crime of robbery with rape, although not all of them took part in the rape. Appellants are guilty beyond reasonable doubt of the crime of Robbery with Rape punished under Article 294 (1) of the Revised Penal Code.

People v. Moreno, 374 SCRA 667 (2002)

Significantly, the constitutive element of violence or intimidation against persons in robbery was not present at the time of the snatching of the shoulder bag of MARITES. The force or intimidation exerted by ROGELIO against the victim was for a reason foreign to the fact of the taking of the bag. It was for the purpose of accomplishing his lustful desire. Hence, it cannot be considered for the purpose of classifying the crime as robbery. Accused-appellant may thus be held liable for simple theft only, in addition to the crime of rape.

People v. Seguis, 349 SCRA 547 (2001)

FACTS: Seguis a.k.a. Junior, Estebe a.k.a. Dodong, Doquila a.k.a. Lolong, r Canico, Gibertas, dela Cruz, and a certain John Doe took turns in raping Juliet Magamayo at the house of his friend where she stayed for the night. One of the said accused took her gold ring, bracelet and cash though Juliet can not pinpoint who specifically did it among the many accused. The RTC finds each of the accused, Adriano guilty beyond reasonable doubt as principal of the crime of simple rape under Article 335 of the Revised Penal Code

HELD: It is to be noted that the accused in this case were originally indicted for the felony of robbery with multiple rape, a special complex crime punishable under Art. 294, par. 1 of the Revised Penal Code and which is committed "when the robbery shall have been accompanied by rape." The said provision, needless to say, covers cases of multiple rapes. This is primarily due to the fact that the juridical concept of this crime does not limit the consummation of rape against one single victim or to one single act, making other rapes in excess of that number as separate, independent offense or offenses. All the rapes are merged in the composite, integrated whole that is robbery with rape, so long as the rapes accompanied the robbery. It does not matter too whether the rape occurred before, during, or after the robbery.

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Still and all, this does not change the nature of the felony. It is essentially a crime against property. To sustain a conviction, it is imperative that the robbery itself must be conclusively established; just as the fact that it was the accused who committed it be proved beyond reasonable doubt. The prosecution must be able to demonstrate the level of their participation with legal and moral certainty, including the existence of a conspiracy, if any. Otherwise, those who were charged should be acquitted, at least for the robbery. Proof of the rape alone is not sufficient to support a conviction for the crime of robbery with rape. The lower court's finding of the accused’non-participation in the robbery does not mean that they are totally guiltless. They will still be held accountable for whatever unlawful acts they may have committed, and for which acts they were charged. In a criminal action for robbery with rape, where the prosecution failed to prove the robo or the participation of the accused in it, the latter may still be convicted for the rape. The trial court’s ruling that the appellants had carnal knowledge of the private complainant by using force and intimidation, convicting them of one count of rape each because there was no showing that they conspired or assisted each other in committing those rapes is affirmed.

People v. Gano, 353 SCRA 126 (2001)

Accused Castanito Gano killed three (3) persons by reason or on the occasion of the robbery. The question that needs to be resolved is whether the “multiplicity of homicides” could be appreciated as an aggravating circumstance. For sometime, this ticklish issue has been the subject of conflicting views by this Court when it held in some cases that the additional rapes/homicides committed on the occasion of robbery would not increase the penalty, while in other cases it ruled that the “multiplicity of rapes/homicides” committed could be appreciated as an aggravating circumstance. But in People v. Regala this Court spoke with finality on the matter — It should be noted that there is no law providing that the additional rape/s or homicide/s should be considered as aggravating circumstance. The enumeration of aggravating circumstances under Article 14 of the Revised Penal Code is exclusive as opposed to the enumeration in Article 13 of the same Code regarding mitigating circumstances where there is specific paragraph (paragraph 10) providing for analogous circumstances. It is true that the additional rapes (or killings in the case of multiple homicide on the occasion of the robbery) would result in an "anomalous situation" where from the standpoint of the gravity of the offense, robbery with one rape would be on the same level as robbery with multiple rapes. However, the remedy lies with the legislature. A penal law is liberally construed in favor of the offender and no person should be brought within its terms if he is not clearly made so by the statute. This case is singular in its barbarity and nauseating in the manner with which the accused, bolo in hand, butchered his preys. Notwithstanding the viciousness with which he perpetrated the offense, we are constrained to apply the principle laid down in People v. Regala, and accordingly, the two (2) other killings contrary to the ruling of the trial court, should not be appreciated as aggravating circumstances. Gano is guilty of Robbery with Homicide.

People v. Regala, 329 SCRA 707 (2000)

FACTS: Sixteen-year old, Nerissa Tagala, and her grandmother Consuelo Arevalo were sleeping, when appellant Armando Regala and his two other companions entered the former's house. Regala and his companions entered the house through the kitchen by removing the pieces of wood under the stove. Regala went to the room of Nerissa and her grandmother and poked an 8-inch gun on them, one after the other. Nerissa and her grandmother were hogtied by appellant and his companions. Thereafter, Nerissa was raped by twice by Regala in bed and in the kitchen. After the rape, appellant and his two companions counted the money which they took from the "aparador. Appellant and his companions then ran away with P3,000 in cash, 2 pieces of ring and two wrist watches.

HELD: It should be noted that there is no law providing that the additional rape/s or homicide/s should be considered as aggravating circumstance. The enumeration of aggravating circumstances under Article 14 of the Revised Penal Code is exclusive as opposed to the enumeration in Article 13 of the same code regarding mitigating circumstances where there is a specific paragraph (paragraph 10) providing for analogous circumstances. It is true that the additional rapes (or killings in. the case of multiple homicide on the occasion of the robbery) would result in an "anomalous situation" where from the standpoint of the gravity of the offense, robbery with one rape would be on the same level as robbery with multiple rapes. However, the remedy lies with the legislature. A penal law is liberally construed in favor of the offender and no person should be brought within its terms if he is not clearly made so by the statute.

Requisites of robbery under 2nd case of par 4 Art 294:

1. 2.

that any of the physical injuries defined in par 3 & 4 Art 263 was inflicted in the course of the robbery, and that any of them was inflicted upon any person not responsible for the commission of the robbery.

Bar Questions Robbery w/ Rape (1999) Two young men, A and B, conspired to rob a residential house of things of value. They succeeded in the commission of their original plan to simply rob. A, however, was sexually aroused when he saw the lady owner of the house and so, raped her. The lady victim testified that B did not in any way participate in the rape but B watched the happening from a window and did nothing to stop the rape. Is B as criminally liable as A for robbery with rape? Explain. (4%) SUGGESTED ANSWER: Yes, B is as criminally liable as A for the composite crime of robbery with rape under Art. 294 (1). Although the conspiracy of A and B was only to rob, B was present when the rape was being committed which gave rise to a

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composite crime, a single indivisible offense of robbery with rape. B would not have been liable had he endeavored to prevent the commission of the rape. But since he did not when he could have done so, he in effect acquiesced with the rape as a component of the robbery and so he is also liable for robbery with rape.

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Robbery w/ Rape; Conspiracy (2004) Together XA, YB and ZC planned to rob Miss OD. They entered her house by breaking one of the windows in her house. After taking her personal properties and as they were about to leave, XA decided on impulse to rape OD. As XA was molesting her, YB and ZC stood outside the door of her bedroom and did nothing to prevent XA from raping OD. What crime or crimes did XA, YB and ZC commit, and what is the criminal liability of each? Explain briefly. (5%)

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SUGGESTED ANSWER: The crime committed by XA, YB and ZC is the composite crime of Robbery with Rape, a single, indivisible offense under Art. 294(1) of the Revised Penal Code. Although the conspiracy among the offenders was only to commit robbery and only XA raped CD, the other robbers, YB and ZC, were present and aware of the rape being committed by their coconspirator. Having done nothing to stop XA from committing the rape, YB and ZC thereby concurred in the commission of the rape by their co-conspirator XA. The criminal liability of all, XA, YZ and ZC, shall be the same, as principals in the special complex crime of robbery with rape which is a single, indivisible offense where the rape accompanying the robbery is just a component. Robbery; Rape (1997) After raping the complainant in her house, the accused struck a match to smoke a cigarette before departing from the scene. The brief light from the match allowed him to notice a watch in her wrist. He demanded that she hand over the watch. When she refused, he forcibly grabbed it from her. The accused was charged with and convicted of the special complex crime of robbery with rape. Was the court correct? SUGGESTED ANSWER: No. the court erred in convicting the accused of the special complex crime of robbery with rape. The accused should instead be held liable for two (2) separate crimes of robbery and rape, since the primary intent or objective of the accused was only to rape the complainant, and his commission of the robbery was merely an afterthought. The robbery must precede the rape. In order to give rise to the special complex crime for which the court convicted the accused.

Robbery with violence or intimidation 

Violence or intimidation need not be present before or at the exact moment when the object is taken. It may enter at any time before the owner is finally deprived of his property.

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Intimidation exists when the acts executed or words uttered by the ofender are capable of producing fear in the person threatened. In robbery with intimidation, there must be acts done by the accused which, either by their own nature or by reason of the circumstances under which they are executed, inspire fear in the person against whom they are directed. Difference between threats to extort money and robbery thru intimidation: o In robbery, the intimidation is actual and immediate; in threats, the intimidation is conditional or future. o In robbery, the intimidation is personal; in threats, it may be thru an intermediary. o In threats, the intimidation may refer to the person, honor or property of the offended party or that of his family; in robbery, the intimidation is directed only to the person of the victim. o In robbery, the gain of the culprit is immediate; in threats, the gain is not immediate. Difference between robbery with violence and grave coercion: o In both crimes, there is violence used by the offender. o In robbery, there is intent to gain; no such requirement in grave coercion. In grave coercion, the intent is to compel another to do something against his will. Difference between robbery and bribery: o It is robbery when the victim did not commit a crime; it is bribery when the victim has committed a crime and gives money or gift to avoid arrest or prosecution. o In robbery, the victim is deprived of his money or property by force or intimidation; in bribery, he parts with his money or property voluntarily.

Robbery w/ Intimidation vs. Theft (2002) A entered the house of another without employing force or violence upon things. He was seen by a maid who wanted to scream but was prevented from doing so because A threatened her with a gun. A then took money and other valuables and left. Is A guilty of theft or of robbery? Explain. (3%) SUGGESTED ANSWER: A is liable for robbery because of the intimidation he employed on the maid before the taking of the money and other valuables. It is the intimidation of person relative to the taking that qualifies the crime as robbery, instead of simply theft. The non-employment of force upon things is of no moment because robbery is committed not only by employing force upon things but also by employing violence against or intimidation of persons.

Article 295. Robbery with physical injuries, committed in an uninhabited place and by a band, or with the use of firearm on a street, road or alley

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Robbery with violence against or intimidation of person is qualified if it is committed:

1.

He was a member of the band;

2.

He was present at the commission of a robbery by that band;

1.

In an uninhabited place;

3.

The other members of the band committed an assault;

2.

By a band;

3.

By attacking a moving train, street car, motor vehicle, or airship;

4.

4.

5.

By entering the passengers’ compartments in a train, or in any manner taking the passengers thereof by surprise in the respective conveyances; or On a street, road, highway or alley, and the intimidation is made with the use of firearms, the offender shall be punished by the maximum periods of the proper penalties prescribed in Article 294.

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Any of these qualifying circumstances must be alleged in the information and proved during the trial.

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The intimidation with the use of firearm qualifies only robbery on a street, road, highway or alley. Art 295 does not apply to robbery with homicide, or robbery with rape, or robbery with serious physical injuries under par 1 of Art 263. (note: the circumstances and applicability of Art 295 are very specific so please note them.)

 People vs. Sevilla Facts: The accused detained several persons as hostages in a store they robbed. The police launched an offensive. In the ensuing gunfight, the hostages suffered physical injuries. One of the hostages eventually had to have her leg amputated. The accused were convicted of the complex crime of robbery with serious physical injuries and serious illegal detention. Should the crime of serious illegal detention be prosecuted as a separate offence? Held: NO. The detention of the victims was a necessary means to facilitate and carry out the crime of robbery. The victims were not held as a security to facilitate their escape or to insure their security against the police, but deliberately, as a means of extortion of the amount asked.

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 Article 296. Definition of a band and penalty incurred by the members thereof Requisites for liability for the acts of the other members of the band:

He did not attempt to prevent the assault.

When the robbery was not committed by a band, the robber who did not take part in the assault by another is not liable for that assault. When the robbery was not by a band and homicide was not determined by the accused when they plotted the crime, the one who did not participate in the killing is liable for robbery only. It is only when the robbery is in band that all those present in the commission of the robbery may be punished for any of the assaults which any of its members might commit. But when there is conspiracy to commit homicide and robbery, all the conspirators, even if less than 4 armed men, are liable for the special complex crime of robbery with homicide. Art 296 is not applicable to principal by inducement, who was not present at the commission of the robbery, if the agreement was only to commit robbery. The article speaks of more than 3 armed malefactors who “takes part in the commission of the robbery” and member of a band “who is present at the commission of a robbery by a band.” Thus, a principal by inducement, who did not go with the band at the place of the commission of the robbery, is not liable for robbery with homicide, but only for robbery in band, there being no evidence that he gave instructions to kill the victim or intended that this should be done. When there was conspiracy for robbery only but homicide was also committed on the occasion thereof, all members of the band are liable for robbery with homicide. Whenever homicide is committed as a consequence of or on the occasion of a robbery, all those who took part in the commission of the robbery are also guilty as principals in the crime of homicide unless it appears that they endeavored to prevent the homicide. Proof of conspiracy is not essential to hold a member of the band liable for robbery with homicide actually committed by the other members of the band. There is no crime as “robbery with homicide in band.” The circumstance of band becomes an ordinary aggravating circumstance to robbery with homicide. In robbery by a band, all are liable for any assault committed by the band, unless the others attempted to prevent the assault. The members of the band liable for the assault must be present at the commission of the robbery, not necessarily at the commission of the assault.

People vs. Apduhan

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Apduhan was convicted of robbery with homicide and was sentenced to death because the court considered the use of unlicensed firearm as a special aggravating circumstance under Art 296. SC rejected this. SC believes that: (1) Art 296 is exclusively linked and singularly applicable to Art 295 on robbery in band, (2) RPC 295 is explicitly limited to scope to pars. 3, 4, 5 of Art 294, and (3) par 3, 4, 5 of Art 294 does not include cases where homicide, rape, intentional mutilation, impotence, imbecility, blindness and insanity occurred by reason or on the occasion of accompanying robbery. Thus, since Apduhan was convicted of robbery with homicide under par 1 Art 294, Art 296 in relation to par 3, 4, 5 of Art 295 is inapplicable. Hence, the use of an unlicensed firearm should not have been considered as a special aggravating circumstance.

When the offended party is under obligation to sign, execute or deliver the document under the law, there is no robbery. But there will be COERCION if violence is used in compelling the offended party to sign or deliver the document. Article 299. Robbery in an inhabited house or public building or edifice devoted to worship 

Elements under subdivision (a):

1. Article 297. Attempted and frustrated committed under certain circumstances

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robbery

“Homicide” here is used in a generic sense. It includes multiple homicides, murder, parricide, infanticide, etc. The penalty is the same, whether the robbery is attempted or frustrated. “Unless the homicide committed shall deserve a higher penalty under the Code” may be illustrated as follows: In an attempted or frustrated robbery, the killing of the victim is qualified by treachery or relationship. The proper penalty for murder or parricide shall be imposed because it is more severe. This is also a special complex crime, thus, not governed by Art 48.

2. The entrance was effected by any of the following means: a. b. c. d. 3.

1.

Offender has intent to defraud another;

2.

Offender compels him to sign, execute, or deliver any public instrument or document.

3.

The compulsion is by means of violence or intimidation.

Through an opening not intended for entrance or egress; By breaking any wall, roof or floor, or breaking any door or window; By using false keys, picklocks or similar tools; or By using any fictitious name or pretending the exercise of public authority.

Once inside the building, offender took personal property belonging to another with intent to gain.

Elements under subdivision (b):

1.

Offender is inside a dwelling house, public building, or edifice devoted to religious worship, regardless of the circumstances under which he entered it;

2.

Offender takes personal property belonging to another, with intent to gain, under any of the following circumstances:

Article 298. Execution of deeds by means of violence or intimidation

Elements:

Offender entered an inhabited house, public building or edifice devoted to religious worship;

a.

By the breaking of doors, wardrobes, chests, or any other kind of locked or sealed furniture or receptacle; or

b.

By taking such furniture or objects away to be broken or forced open outside the place of the robbery.

Subdivision (a)  

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If the violence used resulted in the death of the person to be defrauded, the crime is robbery with homicide. If the execution of deeds by means of violence is only in the attempted or frustrated stage and the violence used resulted in the death of the person to be defrauded, the penalty imposed shall be those under Art 297. This article applies even if the document signed, executed or delivered is a private or commercial document. Art 298 is not applicable if the document is void. C2005 Criminal Law 2 Reviewer

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There must be evidence or the facts must show that the accused entered the dwelling house or building by any of the means enumerated in subdiv (a). In entering the building, the offender must have an intention to take personal property. The place entered must be a house or building; thus, entering an automobile does not fall under this article. “Inhabited house” = any shelter, ship or vessel constituting the dwelling of one or more persons even though the inhabitants thereof are temporarily absent therefrom when the robbery is committed. “Public building” = every building owned by the govt or belonging to a private person but used or rented by the govt, although temporarily unoccupied by the same. Any of the 4 means described in subdiv (a) must be resorted to by the offender to enter a house or building, not to get out. The whole body of the culprit must be inside the building to constitute entering. The genuine key must be stolen, not taken by force or with intimidation from the owner. In the latter case, it becomes robbery with intimidation of person. It is only THEFT when the false key is used to open wardrobe or locked receptacle or drawer or inside door.

The weapon carried by the offender must not have been used to intimidate a person, for the reason that once the circumstance of intimidation enters in the commission of the crime, it is sufficient to remove the offence from Art 299 and place it within the purview of Art 294. The liability for carrying arms while robbing an inhabited house is extended to each of the offenders who take part in the robbery, even if some of them do not carry arms.

People vs. Jaranilla Facts: Accused took 6 fighting cocks from a coop located in Babylon’s backyard. The door of the coop was broken. They were intercepted by a police officer who was shot by one of the accused. They were convicted by robbery with homicide.

Held: The killing of the police officer was not by reason or on the occasion of the robbery, hence only the person who shot such officer should be liable for the killing.

Article 300. Robbery in an uninhabited place and by a band

The use of fictitious name or the act of pretending to exercise authority must be to enter the building.

Robbery in an inhabited house, public building or edifice devoted to religious worship is qualified when committed by a band AND in an uninhabited place. The 2 qualifications must concur.

Subdivision (b)

The inhabited house, public building, or edifice devoted to religious worship must be located in an uninhabited place.

Entrance into the building by any of the means in subdiv (a) is not required in robbery under subdiv (b). The term “door” in par 1 subdiv (b) refers only to “doors, lids or opening sheets” of furniture or other portable receptacles; not to inside doors of house or building. A person who carries away a sealed box or receptacle for the purpose of breaking the same and taking out its contents outside the place of robbery is guilty of consummated robbery even though he does not succeed in opening the box. A person who opens by force a certain locked or sealed receptacle which has been confided in his custody and takes the money contained therein is guilty of ESTAFA, not robbery.

Robbery with force upon things, in order to be qualified, must be committed in an uninhabited place AND by a band; while robbery with violence against or intimidation of persons must be committed in an uninhabited place OR by a band.

Article 301. What is an inhabited house, public building, or building dedicated to religious worship and their dependencies

3 requisites for “dependencies”: (1) must be contiguous to the building, (2) must have an interior entrance connected therewith, and (3) must form part of the whole. Orchards or other lands used for cultivation or production are not included in the term “dependencies”.

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interior entrance connected therewith, it is a dependency of an inhabited house and the robbery committed therein is punished under the last par of Art 299.

Article 302. Robbery in an uninhabited place or in a private building

Elements:

1.

2.

3.

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Article 303. Robbery of cereals, fruits, or firewood in an uninhabited place or private building

Offender entered an uninhabited place or a building which was not a dwelling house, not a public building, or not an edifice devoted to religious worship;

Penalty is one degree lower if cereals, fruits or firewood are taken in robbery with force upon things.

Any of the following circumstances was present:

“cereal” = palay or other seedlings

a.

The entrance was effected through an opening not intended for entrance or egress;

The palay must be kept by the owner as “seedling” or taken for that purpose by the robbers.

b.

A wall, roof, floor, or outside door or window was broken;

c.

The entrance was effected through the use of false keys, picklocks or other similar tools;

d.

A door, wardrobe, chest, or any sealed or closed furniture or receptacle was broken; or

e.

A closed or sealed receptacle was removed, even if the same be broken open elsewhere.

Offender took therefrom personal property belonging to another with intent to gain.

“uninhabited place” = uninhabited building The information must allege that the store was used and occupied as a dwelling; otherwise, the robbery should be considered as having been perpetrated in an uninhabited place under Art 302. “building” = includes any kind of structure used for storage or safekeeping of personal property, such as freight car and warehouse. The use of fictitious name or pretending the exercise of public authority is not a means of entering the building under this article, because the place is uninhabited. The receptacle must be “closed” or “sealed”. Thus, if a person opened without breaking a closed but not locked chest and took personal property therefrom, it is only THEFT. Penalty is based only on value of property taken. If the store is used as a dwelling of 1 or more persons, the robbery committed therein would be considered as committed in an inhabited house under Art 299. If the store was not actually occupied at the time the robbery took place and was not used as a dwelling, since the owner lived in a separate house, the robbery committed therein is punished under Art 302. If the store is located on the ground floor of the house belonging to the owner of the store, having an

Article 304. Possession of picklocks or similar tools

Elements:

1.

Offender has in his possession picklocks or similar tools;

2.

Such picklock or similar tools are especially adopted to the commission of robbery;

3.

Offender does not have lawful cause for such possession.

Article 305. False keys

False keys include the following:

1.

Tools mentioned in Article 304;

2.

Genuine keys stolen from the owner;

3.

Any key other than those intended by the owner for use in the lock forcibly opened by the offender.

Carnapping

R.A. 6539 Anti-Carnapping Act of 1972

SECTION 2. Definition of Terms. —

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"Carnapping" is the taking, with intent to gain, of a motor vehicle belonging to another without the latter's consent, or by means of violence against or intimidation of persons, or by using force upon things.

"Motor vehicle" is any vehicle propelled by any power other than muscular power using the public highways, but excepting road rollers, trolley cars, street-sweepers, sprinklers, lawn mowers, bulldozers, graders, fork-lifts, amphibian trucks, and cranes if not used on public highways, vehicles, which run only on rails or tracks, and tractors, trailers and traction engines of all kinds used exclusively for agricultural purposes. Trailers having any number of wheels, when propelled or intended to be propelled by attachment to a motor vehicle, shall be classified as separate motor vehicle with no power rating.

"Defacing or tampering with" a serial number is the erasing, scratching, altering or changing of the original factoryinscribed serial number on the motor vehicle engine, engine block or chassis of any motor vehicle. Whenever any motor vehicle is found to have a serial number on its motor engine, engine block or chassis which is different from that which is listed in the records of the Bureau of Customs for motor vehicles imported into the Philippines, that motor vehicle shall be considered to have a defaced or tampered with serial number.

"Repainting" is changing the color of a motor vehicle by means of painting. There is repainting whenever the new color of a motor vehicle is different from its color as registered in the Land Transportation Commission.

"Body-building" is a job undertaken on a motor vehicle in order to replace its entire body with a new body.

"Remodelling" is the introduction of some changes in the shape or form of the body of the motor vehicle.

"Dismantling" is the tearing apart, piece by piece or part by part, of a motor vehicle.

"Overhauling" is the cleaning or repairing of the whole engine of a motor vehicle by separating the motor engine and its parts from the body of the motor vehicle.

SECTION 3. Registration of Motor Vehicle Engine, Engine Block and Chassis. — Within one year after the approval of this Act, every owner or possessor of unregistered motor vehicle or parts thereof in knock down condition shall register with the Land Transportation Commission the motor vehicle engine, engine block and chassis in his name or in

the name of the real owner who shall be readily available to answer any claim over the registered motor vehicle engine, engine block or chassis. Thereafter, all motor vehicle engines, engine blocks and chassis not registered with the Land Transportation Commission shall be considered as untaxed importation or coming from an illegal source or carnapped, and shall be confiscated in favor of the Government.

All owners of motor vehicles in all cities and municipalities are required to register their cars with the local police without paying any charges.

SECTION 4. Permanent Registry of Motor Vehicle Engines, Engine Blocks and Chassis. — The Land Transportation Commission shall keep a permanent registry of motor vehicle engines, engine blocks and chassis of all motor vehicles, specifying therein their type, make and serial numbers and stating therein the names and addresses of their present and previous owners. Copies of the registry and of all entries made thereon shall be furnished the Philippine Constabulary and all Land Transportation Commission regional, provincial and city branch offices: Provided, That all Land Transportation Commission regional, provincial and city branch offices are likewise obliged to furnish copies of all registration of motor vehicles to the main office and to the Philippine Constabulary.

SECTION 5. Registration of Sale, Transfer, Conveyance, Substitution or Replacement of a Motor Vehicle Engine, Engine Block or Chassis. — Every sale, transfer, conveyance, substitution or replacement of a motor vehicle engine, engine block or chassis of a motor vehicle shall be registered with the Land Transportation Commission. Motor vehicles assembled and rebuilt or repaired by replacement with motor vehicle engines, engine blocks and chassis not registered with the Land Transportation Commission shall not be issued certificates of registration and shall be considered as untaxed imported motor vehicles or motor vehicles carnapped or proceeding from illegal sources.

SECTION 6. Original Registration of Motor Vehicles. — Any person seeking the original registration of a motor vehicle, whether that motor vehicle is newly assembled or rebuilt or acquired from a registered owner, shall within one week after the completion of the assembly or rebuilding job or the acquisition thereof from the registered owner, apply to the Philippine Constabulary for clearance of the motor vehicle for registration with the Land Transportation Commission. The Philippine Constabulary shall, upon receipt of the application, verify if the motor vehicle or its numbered parts are in the list of carnapped motor vehicles or stolen motor vehicle parts. If the motor vehicle or any of its numbered parts is not in that list, the Philippine Constabulary shall forthwith issue a certificate of clearance. Upon presentation of the certificate of clearance from the Philippine Constabulary and after verification of the registration of the motor vehicle engine, engine block and chassis in the permanent registry of motor vehicle engines, engine blocks and chassis, the Land Transportation Commission shall

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register the motor vehicle in accordance with existing laws, rules and regulations.

SECTION 14. Penalty for Carnapping. — Any person who is found guilty of carnapping, as this term is defined in Section two of this Act, shall, irrespective of the value of motor vehicle taken, be punished by imprisonment for not less than fourteen years and eight months and not more than seventeen years and four months, when the carnapping is committed without violence or intimidation of persons, or force upon things; and by imprisonment for not less than seventeen years and four months and not more than thirty years, when the carnapping is committed by means of violence against or intimidation of any person, or force upon things; and the penalty of life imprisonment to death shall be imposed when the owner, driver or occupant of the carnapped motor vehicle is killed in the commission of the carnapping.

of a carnapping (People vs. De la Cruz, et al. 183 SCRA 763). A motorcycle is included in the definition of a "motor vehicle" in said Rep. Act, also known as the 'Anti-Carnapping Act of 1972'. There is no apparent motive for the killing of the tricycle driver but for Raul to be able to take the motorcycle. The fact that the tricycle driver was killed brings about the penalty of reclusion perpetua to death. ALTERNATIVE ANSWER: The crime committed by Raul is carnapping, punished by Section 14 of Rep. Act No. 6539. The killing of Samuel is not a separate crime but only an aggravating circumstance.

Highway Robbery

P.D. 532 SECTION 15. Aliens. — Aliens convicted under the provisions of this Act shall be deported immediately after service of sentence without further proceedings by the Deportation Board.

Anti-Piracy and Anti-Highway Robbery Law of 1974

SECTION 2. Definition of Terms. — The following terms shall mean and be understood, as follows:

People vs. Dela Cruz

1.

The crime of carnapping with homicide is committed when there is taking, with intent to gain of a motor vehicle which belonged to another, without the latter’s consent or by means of violence against or intimidation of persons, or by using force upon things.

Izon vs. People A motorised tricycle is a motor vehicle, which is defined as any vehicle propelled by any power other than muscular power using public highways. Public highways are those free for the use of every person, thus not limited to a national road connecting various towns.

Anti-Carnapping Act; Carnapping w/ Homicide (1998)

2.

3.

4.

Samuel, a tricycle driver, plied his usual route using a Honda motorcycle with a sidecar. One evening, Raul rode on the sidecar, poked a knife at Samuel and instructed himto go near the bridge. Upon reaching the bridge, Raul alighted from the motorcycle and suddenly stabbed Samuel several times until he was dead. Raul fled from the scene taking the motorcycle with him. What crime or crimes did Raul commit? |5%] SUGGESTED ANSWER: Raul committed the composite crime of Carnapping with homicide under Sec. 14 of Rep. Act No. 6539, as amended, considering that the killing "in the course or "on the occasion

5.

Philippine Waters. — It shall refer to all bodies of water, such as but not limited to, seas, gulfs, bays around, between and connecting each of the Islands of the Philippine Archipelago, irrespective of its depth, breadth, length or dimension, and all other waters belonging to the Philippines by historic or legal title, including territorial sea, the sea-bed, the insular shelves, and other submarine areas over which the Philippines has sovereignty or jurisdiction. Vessel. — Any vessel or watercraft used for transport of passengers and cargo from one place to another through Philippine Waters. It shall include all kinds and types of vessels or boats used in fishing. Philippine Highway. — It shall refer to any road, street, passage, highway and bridges or other parts thereof, or railway or railroad within the Philippines used by persons, or vehicles, or locomotives or trains for the movement or circulation of persons or transportation of goods, articles, or property or both. Piracy. — Any attack upon or seizure of any vessel, or the taking away of the whole or part thereof or its cargo, equipment, or the personal belongings of its complement or passengers, irrespective of the value thereof, by means of violence against or intimidation of persons or force upon things, committed by any person, including a passenger or member of the complement of said vessel, in Philippine waters, shall be considered as piracy. The offenders shall be considered as pirates and punished as hereinafter provided. Highway Robbery/Brigandage. — The seizure of any person for ransom, extortion or other unlawful purposes, or the taking away of the property of another by means of violence against or intimidation of person or force upon things of other unlawful means, committed by any person on any Philippine Highway.

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SECTION 3. Penalties. — Any person who commits piracy or highway robbery/brigandage as herein defined, shall, upon conviction by competent court be punished by:

Piracy. — The penalty of reclusion temporal in its medium and maximum periods shall be imposed. If physical injuries or other crimes are committed as a result or on the occasion thereof, the penalty of reclusion perpetua shall be imposed. If rape, murder or homicide is committed as a result or on the occasion of piracy, or when the offenders abandoned the victims without means of saving themselves, or when the seizure is accomplished by firing upon or boarding a vessel, the mandatory penalty of death shall be imposed.

successively raped by the accused at a talahiban and 4 male passengers were clubbed and stabbed on after the other. They were convicted of robbery with homicide although they were charged with highway robbery. What was the crime committed? Held: Robbery with homicide, not highway robbery. Conviction under PD 532 requires proof that the accused were organised for the purpose of committing robbery indiscriminately. In this case, there was no proof that the 4 accused previously attempted to commit armed robberies.

Bar Questions Robbery vs. Highway Robbery (2000) Distinguish Highway Robbery under Presidential Decree No. 532 from Robbery committed on a highway. (3%)

Highway Robbery/Brigandage. — The penalty of reclusion temporal in its minimum period shall be imposed. If physical injuries or other crimes are committed during or on the occasion of the commission of robbery or brigandage, the penalty of reclusion temporal in its medium and maximum periods shall be imposed. If kidnapping for ransom or extortion, or murder or homicide, or rape is committed as a result or on the occasion thereof, the penalty of death shall be imposed.

SUGGESTED ANSWER:

SECTION 4. Aiding pirates or highway robbers/brigands or abetting piracy or highway robbery/brigandage. — Any person who knowingly and in any manner aids or protects pirates or highway robbers/brigands, such as giving them information about the movement of police or other peace officers of the government, or acquires or receives property taken by such pirates or brigands or in any manner derives any benefit therefrom; or any person who directly or indirectly abets the commission of piracy or highway robbery or brigandage, shall be considered as an accomplice of the principal offenders and be punished in accordance with the Rules prescribed by the Revised Penal Code.

2 It is Highway Robbery under PD 532, when the offender is a brigand or one who roams in public highways and carries out his robbery in public highways as venue, whenever the opportunity to do so arises. It is ordinary Robbery under the Revised Penal Code when the commission thereof in a public highway is only incidental and the offender is not a brigand: and

It shall be presumed that any person who does any of the acts provided in this Section has performed them knowingly, unless the contrary is proven.

People vs. Puno Accused held up Mrs Sarmiento in her car at gunpoint. They were able to extort P7000 in cash and P100,000 in check. Was highway robbery committed? NO. We should not adopt the literal interpretation that all types of taking of property as long as committed in a highway would be covered by PD 532.

People vs. Pulusan Facts: Accused held up a passenger jeep along the McArthur highway. Of the 6 passengers, the only woman, Marilyn was

Highway Robbery under Pres. Decree 532 differs from ordinary Robbery committed on a highway in these respects: 1 In Highway Robbery under PD 532, the robbery is committed indiscriminately against persons who commute in such highways, regardless of the potentiality they offer; while in ordinary Robbery committed on a highway, the robbery is committed only against predetermined victims;

3. In Highway Robbery under PD 532, there is frequency in the commission of the robbery in public highways and against persons travelling thereat; whereas ordinary Robbery in public highways is only occasional against a predetermined victim, without frequency in public highways. Highway Robbery (2001) Police Sgt. Diego Chan, being a member of the Theft and Robbery Division of the Western Police District and assigned to the South Harbor, Manila, was privy to and more or less familiar with the schedules, routes and hours of the movements of container vans, as well as the mobile police patrols, from the pier area to the different export processing zones outside Metro Manila. From time to time, he gave valuable and detailed information on these matters to a group interested in those shipments in said container vans. On several instances, using the said information as their basis, the gang hijacked and pilfered the contents of the vans. Prior to their sale to "fences" in Banawe, Quezon City and Bangkal, Makati City, the gang Informs Sgt, Chan who then inspects the pilfered goods, makes his choice of the valuable items and disposes of them through his own sources or "fences". When the highjackers were traced on one occasion and arrested, upon custodial investigation, they implicated Sgt. Chan and the fiscal charged them all, including Sgt. Chan as co-principals. Sgt. Chan, in his defense, claimed that he should not be charged as a

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principal but only as an accessory after the fact under P.D. 532, otherwise known as the Anti-Piracy and Anti-Highway Robbery Act of 1972. Is the contention of Sgt. Chan valid and tenable? Explain, (5%)

Duty of the owner/raiser  before the large cattle belonging to him shall attain the age of six months, register the same with the office of the city/municipal treasurer where such large cattle are raised.

SUGGESTED ANSWER: No, the contention of Sgt. Chan is not valid or tenable because by express provision of P.D. 532, Section 4, a person who knowingly and in any manner, aids or protects highway robbers/brigands, such as giving them information about the movement of police officers or acquires or receives property taken by brigands, or who directly or indirectly abets the commission of highway robbery/brigandage, shall be considered as accomplice of the principal offenders and punished in accordance with the rules in the Revised Penal Code.

Permit to Buy and Sell Large Cattle. No person, partnership, association, corporation or entity shall engage in the business of buy and sell of large cattle without first securing a permit for the said purpose from the Provincial Commander of the province where it shall conduct such business and the city/municipal treasurer of the place of residence of such person, partnership, association, corporation or entity. The permit shall only be valid in such province.

ALTERNATIVE ANSWER: No, the contention of Sgt. Chan that he should be charged only as accessory after the fact is not tenable because he was a principal participant in the commission of the crime and in pursuing the criminal design. An accessory after the fact involves himself in the commission of a crime only after the crime had already been consummated, not before, For his criminal participation in the execution of the highjacking of the container vans, Sgt. Chan is a co-principal by indispensable cooperation.

Cattle Rustling

PRESIDENTIAL DECREE NO. 533

Clearance for Shipment of Large Cattle. Any person, partnership, association, corporation or entity desiring to ship or transport large cattle, its hides, or meat, from one province to another shall secure a permit for such purpose from the Provincial Commander of the province where the large cattle is registered. Before issuance of the permit herein prescribed, the Provincial Commander shall require the submission of the certificate of ownership as prescribed in Section 3 hereof, a certification from the Provincial Veterinarian to the effect that such large cattle, hides or meat are free from any disease; and such other documents or records as may be necessary. Shipment of large cattle, its hides or meat from one city/municipality to another within the same province may be done upon securing permit from the city/municipal treasurer of the place of origin.

THE ANTI-CATTLE RUSTLING LAW OF 1974

What is cattle rustling? Cattle rustling is the taking away by any means, method or scheme, without the consent of the owner/raiser, of any of the above-mentioned animals whether or not for profit or gain, or whether committed with or without violence against or intimidation of any person or force upon things. It includes the killing of large cattle, or taking its meat or hide without the consent of the owner/raiser.

Large cattle - as herein used shall include the cow, carabao, horse, mule, ass, or other domesticated member of the bovine family.

Owner/raiser- shall include the herdsman, caretaker, employee or tenant of any firm or entity engaged in the raising of large cattle or other persons in lawful possession of such large cattle.

Presumption of Cattle Rustling. — Every person having in his possession, control or custody of large cattle shall, upon demand by competent authorities, exhibit the documents prescribed in the preceding sections. Failure to exhibit the required documents shall be prima facie evidence that the large cattle in his possession, control or custody are the fruits of the crime of cattle rustling.

Penalties Imposed Any person convicted of cattle rustling as herein defined shall, irrespective of the value of the large cattle involved, be punished by prision mayor in its maximum period to reclusion temporal in its medium period if the offense is committed without violence against or intimidation of persons or force upon things.

If the offense is committed with violence against or intimidation of persons or force upon things, the penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed.

If a person is seriously injured or killed as a result or on the

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occasion of the commission of cattle rustling, the penalty of reclusion perpetua to death shall be imposed.

When the offender is a government official or employee, he shall, in addition to the foregoing penalty, be disqualified from voting or being voted upon in any election/referendum and from holding any public office or employment.

When the offender is an alien, he shall be deported immediately upon the completion of the service of his sentence without further proceedings.

Taer vs. CA Facts: Co-accused Manocatcat, arrived at the Taer’s hourse at 2am with 2 male carabaos. Manocatcat asked Taer to tend the carabaos for him. 10 days later, the owners of the carabaos, arrived at Taer’s house to retrieve the carabaos. What was Taer’s participation in the crime? Held: Taer was an accessory because he employed the carabaos in his farm. An accessory is someone who, having knowledge of the commission of the crime, without having participated as a principal or an accomplice, takes part subsequent to its commission by profiting himself by the effects of the crime.

Ordonio vs. CA

Facts: Ordonio stole the calf of Pajunar. When Pajunar inquired abt his cow, Ordonio denied seeing it. The cow was eventually found in Ordonio’s possession, but Ordonio claimed persistently that the cow was entrusted to him by his brother Agustin, such that Pajunar had to enlist the aid of the brgy captain and PC soldiers to retrieve his cow.

Article 306. Who are brigands

Elements of brigandage:

1.

There are least four armed persons;

2.

They formed a band of robbers;

3.

The purpose is any of the following: a.

To commit robbery in the highway;

b.

To kidnap persons for the purpose of extortion or to obtain ransom; or

c.

To attain by means of force and violence any other purpose.

It must be a band of robbers. Thus, a band of dissidents or oppositionists will not qualify. The purpose of the band must be (1) to commit robbery in the highway, (2) to kidnap persons for the purpose of extortion or obtaining ransom, or (3) any other purpose to be attained by means of force and violence. To contrast, In case of robbery by a band, the purpose of the offenders is only to commit robbery, not necessarily in the highway. If any of the arms carried by any of a group of persons be an unlicensed firearm, is shall be presumed that said persons are highway robbers or brigands, and in case of conviction, the penalty shall be imposed in the max period. The arms carried by the members of the band of robbers may be any deadly weapon.

The only things to prove are: Held: The law reads “taking away by any means, methods or schemes.” Ordonio’s stubborn insistence that the calf belonged to his brother, when he knew fully well that it belonged to Pajunar, is the essence cattle rustling. The perpetrator’s intent to gain is then inferred from his deliberate failure to deliver the lost property to the proper person, knowing that the property does not belong to him.

BRIGANDAGE a crime committed by more than 3 armed persons who form a band of robbers for the purpose of committing robbery in the highway or kidnapping persons for the purpose of extortion or to obtain ransom, or for any other purpose to be attained by means of force and violence.

ii.

that there is an organisation of more than 3 armed persons forming a band of robbers iii. that the purpose of the band is any of those enumerated in Art 306 iv. that they went upon the highway or roamed upon the country for that purpose v. that the accused is a member of such band. “highway” = includes city streets as well as roads outside the cities. If the agreement among more than 3 armed men was to commit only a particular robbery, the offence is not brigandage, but only robbery in band. In brigandage, the mere formation of a band for any of the purposes mentioned in the law is sufficient; in robbery in band, it is necessary to prove that the band actually C2005 Criminal Law 2 Reviewer

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committed robbery, as a mere conspiracy to commit robbery is not punishable.

4.

Those who enter an enclosed estate or a field where trespass is forbidden or which belongs to another and, without the consent of its owner, hunt or fish upon the same or gather fruits, cereals or other forest or farm products.

Article 307. Aiding and abetting a band of brigands Elements: Elements: 1.

There is taking of personal property;

1.

There is a band of brigands;

2.

The property taken belongs to another;

2.

Offender knows the band to be of brigands;

3.

The taking was done with intent to gain;

3.

Offender does any of the following acts:

4.

The taking was done without the consent of the owner;

a.

He in any manner aids, abets or protects such band of brigands;

5.

The taking is accomplished without the use of violence against or intimidation of persons of force upon things.

b.

He gives them information of the movements of the police or other peace officers of the government; or



“taking”  taking away or carrying away; thus, theft is consummated when the culprits were able to take possession of the thing taken by them. It is not an indispensable element of theft that the thief carry, more or less far away, the thing taken by him from its owner. As of 2007, the Court held that asportation is complete from the moment the offender had full possession of the thing, even if he did not have an opportunity to dispose of the same.. animus lucandi = intent to gain The taking in theft must have the character of permanency. Thus, the offender must have the intention of making himself the owner of the thing taken. The unlawful taking may occur at or soon after the transfer of physical possession (not juridical possession) of the thing to the offender. The actual transfer of possession may not always and by itself constitute the unlawful taking, but an act done soon thereafter by the offender which may result in unlawful taking or asportation. In such case, the article is deemed to have been taken also, although in the beginning, it was in fact given to, and received by, the offender. Illustration: Tina gave Rey her rolex watch for the purpose of having it examined since Rey has a pawnshop. Rey subsequently appropriated it rolex watch with intent to gain and without consent of Tina. – This is THEFT.

c.

He acquires or receives the property taken by such brigands. 



It shall be presumed that the person performing any of the acts provided in this article has performed them knowingly, unless contrary is proven.

THEFT committed by any person who, with intent to gain but without violence against or intimidation of persons nor force upon things, shall take personal property of another without the latter’s consent.

 



Article 308. Who are liable for theft Persons liable:

 1.

Those who with intent to gain, but without violence against or intimidation of persons nor force upon things, take personal property of another without the latter’s consent;

2.

Those who having found lost property, fails to deliver the same to the local authorities or to its owner;

3.

Those who, after having maliciously damaged the property of another, remove or make use of the fruits or objects of the damage caused by them;

 

But if the accused received the thing from another person in trust or on commission, or for administration, or under a quasi-contract or a contract of bailment , and later misappropriated or converted the thing to the prejudice of another, the crime is ESTAFA, because under those transactions, the juridical possession of the thing is transferred to the offender. (note: thus, the distinction between juridical and mere physical possession is important.) Intent to gain is presumed from the unlawful taking of personal property belonging to another. There is theft even if accused did not take them for his own use. C2005 Criminal Law 2 Reviewer

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 

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It is not necessary that there was real or actual gain on the part of the offender. It is enough that on taking them, he was then actuated by the desire or intent to gain. For robbery to exist, it is necessary that there should be a taking against the will of the owner; for theft, it suffices that consent on the part of the owner is lacking. It is not robbery when violence is for a reason entirely foreign to the fact of taking. When goods were lost at the same time, in the same place, and on the same occasion, the person in possession of part of the missing property is presumed to be the thief of the entire property. The presumption regarding possession of stolen property does not exclusively refer to actual physical possession thereof but may include prior unexplained possession. In any case, for the presumption to work, the property must be recently stolen. Thus, if it was stolen a long time ago, the presumption will not lie. Intent to gain is inferred from deliberate failure to deliver the lost property to the proper person. Finder of hidden treasure who misappropriated the share pertaining to the owner of the property is guilty of theft as regards that share.

HELD: To sustain a conviction for theft, the following elements must be present: (1) personal property of another person must be taken without the latter's consent; (2) the act of taking the personal property of another must be done without the use of violence against or intimidation of persons nor force upon things; and, (3) there must be an intention to gain from the taking of another person's personal property. Appellant are guilty of theft.

Gan v. People (2007)

The Petitioner contends that he cannot be held liable for the charges on the ground that he was not caught in possession of the missing funds. This is clutching at straws. To be caught in possession of the stolen property is not an element of the corpus delicti in theft. Corpus delicti means the “body or substance of the crime, and, in its primary sense, refers to the fact that the crime has been actually committed.” In theft, corpus delicti has two elements, namely: (1) that the property was lost by the owner, and (2) that it was lost by felonious taking. In the case before us, these two elements were established. The amounts involved were lost by WUP because petitioner took them without authority to do so

Valenzuela v. People (2007) People vs. Gulinao Gulinao shot Dr Chua then left. Gulinao went back to get Dr Chua’s diamond ring. He was convicted of illegal possession and robbery. SC ruled that he is guilty of THEFT, not robbery. The taking of the ring was just an afterthought. Violence used in killing Dr Chua had no bearing on the taking of the ring.

Santos vs. People Penalosa gave car to Santos to be repaired. Owner wanted to claim it back but Santos could not be found. Convicted of estafa in RTC then CA convicted him of qualified theft. SC rule that he is guilty of THEFT, not estafa as the latter requires that the offender has juridical possession of the thing and then it is converted for his own personal use. Not qualified theft as the fact that the car was taken was not alleged in the information therefore it can only be seen as an aggravating circumstance.

Lucas v. CA, 389 SCRA 749 (2002)

FACTS: Lucas was convicted by the RTC together with Wilfredo Navarro for stealing one stereo component, a 14-inch colored TV, an electric fan, twenty-three (23) pieces of cassette tapes, one (1) box of car toys, four (4) pieces of Pyrex crystal bowls, cash of P20,000.00 and jewelry worth P10,000.00, valued at P100,000.00 all belonging to Luisito Tuazon. The said robbery took place when Luisito was at work. After the robbery, Lucas, Navarro and one Lovena escaped on board a tricycle.

The Revised Penal Code provisions on theft have not been designed in such fashion as to accommodate the Adiao, Dino and Empelis rulings. Again, there is no language in Article 308 that expressly or impliedly allows that the “free disposition of the items stolen” is in any way determinative of whether the crime of theft has been produced. The Court thus concludes that under the Revised Penal Code, there is no crime of frustrated theft.

Bar Questions Robbery; Homicide; Arson (1995) Harry, an overseas contract worker, arrived from Saudi Arabia with considerable savings. Knowing him to be "loaded", his friends Jason, Manuel and Dave invited him to poker session at a rented beach cottage. When he was losing almost all his money which to him was his savings of a lifetime, he discovered that he was being cheated by his friends. Angered by the betrayal he decided to take revenge on the three cheats. Harry ordered several bottles of Tanduay Rhum and gave them to his companions to drink, as they did, until they all fell asleep. When Harry saw his companions already sound asleep he hacked all of them to death. Then he remembered his losses. He rifled through the pockets of his victims and got back all the money he lost. He then ran away but not before burning the cottage to hide his misdeed. The following day police investigators found among the debris the charred bodies of Jason, Manuel, Dave and the caretaker of the resort. After preliminary investigation, the Provincial Prosecutor charged Harry with the complex crime of arson with quadruple homicide and robbery. Was Harry properly charged? Discuss fully.

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SUGGESTED ANSWER: No, Harry was net properly charged. Harry should have been charged with three (3) separate crimes, namely: murder, theft and arson. Harry killed Jason, Manuel and Dave with evident premeditation, as there was considerable lapse of time before he decided to commit the crime and the actual commission of the crime. In addition, Harry employed means which weakened the defense of Jason, Manuel and Dave. Harry gave them the liquor to drink until they were drunk and fell asleep. This gave Harry the opportunity to carry out his plan of murder with impunity.The taking of the money from the victims was a mere afterthought of the killings. Hence, Harry committed the separate crime of theft and not the complex crime of robbery with homicide. Although theft was committed against dead persons, it is still legally possible as the offended party are the estates of the victims. In burning the cottage to hide his misdeed. Harry became liable for another separate crime, arson. This act of burning was not necessary for the consummation of the two (2) previous offenses he committed. The fact that the caretaker died from the blaze did not qualify Harry's crime into a complex crime of arson with homicide for there is no such crime. Hence, Harry was improperly charged with the complex crime of arson with quadruple homicide and robbery. Harry should have been charged with three (3) separate crimes, murder, theft and arson.

whether the person deprived of the possession of the watch has or has no right to the watch. Theft is committed by one who, with intent to gain, appropriates property of another without the consent of its owner. And the crime is committed even when the offender receives property of another but acquires only physical possession to hold the same. Theft (2001) Francis Garcia, a Jollibee waiter, found a gold bracelet in front of his working place in Makati and, upon inspecting it, saw the name and address of the owner engraved on the inside. Remembering his parents' admonition that he should not take anything which does not belong to him, he delivered the bracelet to PO1 Jesus Reyes of the Makati Quad precinct with the instruction to locate the owner and return it to him. PO1 Reyes, instead, sold the bracelet and misappropriated the proceeds. Subsequent events brought out the fact that the bracelet was dropped by a snatcher who had grabbed it from the owner a block away from where Francis had found it and further investigation traced the last possessor as PO1 Reyes. Charged with theft, PO1 Reyes reasoned out that he had not committed any crime because it was not he who had found the bracelet and, moreover, it turned out to have been stolen. Resolve the case with reasons. (10%)

Robbery; Rape (1997)

SUGGESTED ANSWER:

After raping the complainant in her house, the accused struck a match to smoke a cigarette before departing from the scene. The brief light from the match allowed him to notice a watch in her wrist. He demanded that she hand over the watch. When she refused, he forcibly grabbed it from her. The accused was charged with and convicted of the special complex crime of robbery with rape. Was the court correct?

Charged with theft, PO1 Reyes is criminally liable. His contention that he has not committed any crime because he was not the one who found the bracelet and it turned out to be stolen also, is devoid of merit. It is enough that the bracelet belonged to another and the failure to restore the same to its owner is characterized by intent to gain. The act of PO1 Reyes of selling the bracelet which does not belong to him and which he only held to be delivered to its owner, is furtive misappropriation with intent to gain. Where a finder of lost or mislaid property entrusts it to another for delivery to the owner, the person to whom such property is entrusted and who accepts the same, assumes the relation of the finder to the owner as if he was the actual finder: if he would misappropriate it, he is guilty of theft (People vs. Avila, 44 Phil. 720).

SUGGESTED ANSWER: No. the court erred in convicting the accused of the special complex crime of robbery with rape. The accused should instead be held liable for two (2) separate crimes of robbery and rape, since the primary intent or objective of the accused was only to rape the complainant, and his commission of the robbery was merely an afterthought. The robbery must precede the rape. In order to give rise to the special complex crime for which the court convicted the accused. Theft (1998) Mario found a watch in a jeep he was riding, and since it did not belong to him, he approached policeman P and delivered the watch with instruction to return the same to whoever may be found to be the owner. P failed to return the watch to the owner and, instead, sold it and appropriated for himself the proceeds of the sale. Charged with theft, P reasoned out that he cannot be found guilty because it was not he who found the watch and, moreover, the watch turned out to be stolen property. Is P's defense valid? [5%]

Article 309. Penalties The basis of the penalty in theft is (1) the value of the thing stolen and in some cases (2) the value and also the nature of the property taken, or (3) the circumstances or causes that impelled the culprit to commit the crime. If there is no available evidence to prove the value of the stolen property or that the prosecution failed to prove it, the court should impose the minimum penalty corresponding to theft.

SUGGESTED ANSWER: No, P's defense is not valid. In a charge for theft, it is enough that the personal property subject thereof belongs to another and not to the offender (P). It is irrelevant

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PRESIDENTIAL DECREE No. 401 March 1, 1974 PENALIZING THE UNAUTHORIZED INSTALLATION OF WATER, ELECTRICAL OR TELEPHONE CONNECTIONS, THE USE OF TAMPERED WATER OR ELECTRICAL METERS, AND OTHER ACTS Who are punishable? -- any person who: installs any water, electrical or telephone connection without previous authority from the Metropolitan Waterworks and Sewerage System, the Manila Electric Company or the Philippine Long Distance Telephone Company, as the case may be; tampers and/or uses tampered water or electrical meters or jumpers or other devices whereby water or electricity is stolen; steals or pilfers water and/or electric meters or water, electric and/or telephone wires; knowingly possesses stolen or pilfered water and/or electrical meters as well as stolen or pilfered water, electrical and/or telephone wires.

R.A. 7832 Anti Electricity and Electric Transmission Lines/ Materials Pilferage Act of 1994

Acts punishable

Illegal Use of Electricity (§2)

(a) Tap, make or cause to be made any connection with overhead lines, service drops, or other electric service wires, without previous authority or consent of the private electric utility or rural electric cooperative concerned; (b) Tap, make or cause to be made any connection to the existing electric service facilities of any duly registered consumer without the latter's or the electric utility's consent or authority; (c) Tamper, install or use a tampered electrical meter, jumper, current reversing transformer, shorting or shunting wire, loop connection or any other device which interferes with the proper or accurate registry or metering of electric current or otherwise results in its diversion in a manner whereby electricity is stolen or wasted; (d) Damage or destroy an electric meter, equipment, wire or conduit or allow any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electric current; and (e) Knowingly use or receive the direct benefit of electric service obtained through any of the acts mentioned in subsections (a), (b), (c), and (d) above.

Cut, saw, slice, separate, split, severe, smelt, or remove any electric power transmission line/material or meter from a tower, pole, or any other installation or place of installation or any other place or site where it may be rightfully or lawfully stored, deposited, kept, stocked, inventoried, situated or located, without the consent of the owner, whether or not the act is done for profit or gain; Take, carry away or remove or transfer, with or without the use of a motor vehicle or other means of conveyance, any electric power transmission line/material or meter from a tower, pole, any other installation or place of installation, or any place or site where it may be rightfully or lawfully stored, deposited, kept, stocked, inventoried, situated or located without the consent of the owner, whether or not the act is done for profit or gain; Store, possess or otherwise keep in his premises, custody or control, any electric power transmission line/material or meter without the consent of the owner, whether or not the act is done for profit or gain; and Load, carry, ship or move from one place to another, whether by land, air or sea, any electrical power transmission line/material, whether or not the act is done for profit or gain, without first securing a clearance/permit for the said purpose from its owner or the National Power Corporation (NPC) or its regional office concerned, as the case may be.

Presumptions

For illegal use of electricity:

The presence of any of the following circumstances shall constitute prima facie evidence of illegal use of electricity by the person benefited thereby, and shall be the basis for: the immediate disconnection by the electric utility to such person after due notice, the holding of a preliminary investigation by the prosecutor and the subsequent filing in court of the pertinent information, and the lifting of any temporary restraining order or injunction which may have been issued against a private electric utility or rural electric cooperative

Circumstances: Theft of Electric Power Transmission Lines and Materials (§3) The presence of a bored hole on the glass cover of the

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electric meter, or at the back or any other part of said meter; The presence inside the electric meter of salt, sugar and other elements that could result in the inaccurate registration of the meter's internal parts to prevent its accurate registration of consumption of electricity; The existence of any wiring connection which affects the normal operation or registration of the electric meter; The presence of a tampered, broken, or fake seal on the meter, or mutilated, altered or tampered meter recording chart or graph, or computerized chart, graph, or log; The presence in any part of the building or its premises which is subject to the control of the consumer or on the electric meter, of a current reversing transformer, jumper, shorting and/or shunting wire, and/or loop connection or any other similar device; The mutilation, alteration, reconnection, disconnection, bypassing or tampering of instruments, transformers, and accessories; The destruction of, or attempt to destroy, any integral accessory of the metering device box which encases an electric meter, or its metering accessories; and The

acceptance of money and/or other valuable consideration by any officer of employee of the electric utility concerned or the making of such an offer to any such officer or employee for not reporting the presence of any of the circumstances enumerated above. The discovery of any of the foregoing circumstances, in order to constitute prima facie evidence, must be personally witnessed and attested to by an officer of the law or a duly authorized representative of the Energy Regulatory Board (ERB).

Sec. 8. Anti-Pilferage. - It is hereby declared unlawful for any person to: Destroy, damage or interfere with any canal, raceway, ditch, lock, pier, inlet, crib, bulkhead, dam, gate, service, reservoir, aqueduct, water mains, water distribution pipes, conduit, pipes, wire benchmark, monument, or other works, appliance, machinery buildings, or property of any water utility entity, whether public or private; Do any malicious act which shall injuriously affect the quantity or quality of the water or sewage flow of any waterworks and/or sewerage system, or the supply, conveyance, measurement, or regulation thereof, including the prevention of, or interference with any authorized person engaged in the discharge of duties connected therewith; Prevent, obstruct, and interfere with the survey, works, and construction of access road and water mains and distribution network and any related works of the utility entity. Tap, make, or cause to be made any connection with water lines without prior authority or consent from the water utility concerned; Tamper, install or use tampered water meters, sticks, magnets, reversing water meters, shortening of vane wheels and other devices to steal water or interfere with accurate registry or metering of water usage, or otherwise result in its diversion in a manner whereby water is stolen or wasted; Use or receive the direct benefit of water service with knowledge that diversion, tampering, or illegal connection existed at the time of that use, or that the use or receipt was otherwise without the authorization of the water utility; Steal or pilfer water meters, main lines, pipes and related or ancillary facilities;

For theft of electric power transmission lines and materials

Steal water for profit or resale; Knowingly possess stolen or tampered water meters; and

The possession or custody of electric power transmission line/material by any person, natural or juridical, not engaged in the transformation, transmission or distribution of electric power, or in the manufacture of such electric power transmission line/material shall be prima facie evidence that such line/material is the fruit of the offense of theft of electric power transmission lines and materials, and therefore such line/material may be confiscated from the person in possession, control or custody thereof.

RA 8041 An Act to Address the National Water Crisis and For Other Purposes

Knowingly or willfully allow the occurrence of any of the above.

Penalties: imprisonment of six (6) months to two (2) years and a fine not exceeding double the amount of the value of the water stolen or the value of the damaged facilities If the offender is assisted in the commission of the crime by a plumber, officer or employee of the water utility concerned, the said employee, officer or plumber shall be punished by imprisonment of two (2) years to six (6) years 

If the water is stolen for profit or resale, the offender shall be punished imprisonment from six (6) to twelve (12) years.

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Illegal Fishing REPUBLIC ACT NO. 8550 An Act Providing For The Development, Management And Conservation Of The Fisheries And Aquatic Resources, Integrating All Laws Pertinent Thereto, And For Other Purposes What acts are punishable? 1. Unauthorized Fishing or Engaging in Other Unauthorized Fisheries Activities (a) exploiting, breeding fish in Philippine waters without a license  Discovery of any person in an area where he has no permit or registration papers for a fishing vessel shall constitute a prima facie presumption that the person and/or vessel is engaged in unauthorized fishing: BUT, fishing for daily food sustenance or for leisure which is not for commercial, occupation or livelihood purposes may be allowed. (b) fishing by commercial fishing vessels in fishery management areas declared as over exploited (c) engaging in any commercial fishing activity in municipal waters when not listed in the registry of municipal fisherfolk 2. Poaching in Philippine Waters (a) foreign person fishing or operating a fishing vessel in Philippine waters  The entry of any foreign fishing vessel in Philippine waters shall constitute a prima facie evidence that the vessel is engaged in fishing in Philippine waters. 3. Fishing Through Explosives, Noxious or Poisonous Substance, and/or Electricity (a) fishing in Philippine waters with the use of electricity, explosives, noxious or poisonous substance such as sodium cyanide in the Philippine fishery areas, which will kill, stupefy, disable or render unconscious fish or fishery species  The Department, subject to safeguards and conditions deemed necessary and endorsement from the concerned LGUs, may allow, for research, educational or scientific purposes only, the use of electricity, poisonous or noxious substances to catch, take or gather fish or fishery species:  The use of poisonous or noxious substances to eradicate predators in fishponds in accordance with accepted scientific practices and without causing adverse environmental impact in neighboring waters and grounds shall not be construed as illegal fishing. (b) dealing in fish illegally caught  The discovery of explosives or equipment for electro-fishing in any fishing vessel or in the possession of any fishworker shall constitute prima facie evidence, that the same was used for fishing in violation of this Code.  The discovery in any fishing vessel of fish caught or killed with the use of

explosive, noxious or poisonous substances or by electricity shall constitute prima facie evidence that the fisherfolk, operator, boat official or fishworker is fishing with the use thereof. (c) Mere possession of explosive, noxious or poisonous substances or electrofishing devices for illegal fishing (d) Actual use of explosives, noxious or poisonous substances or electrofishing devices for illegal fishing  Penalty is without prejudice to the filing of separate criminal cases when the use of the same result to physical injury or loss of human life. 4. Use of Fine Mesh Net (a) fishing using nets with mesh smaller than that which may be fixed by the Department  Prohibition shall not apply to the gathering of fry and such species which by their nature are small but already mature to be identified in the implementing rules and regulations by the Department. 5. Use of Active Gear in the Municipal Waters and Bays and Other Fishery Management Areas (a) fishing in municipal waters and in all bays as well as other fishery management areas using active fishing gears 6. Ban on Coral Exploitation and Exportation (a) selling or exporting ordinary precious and semi-precious corals, whether raw or in processed form, except for scientific or research purposes.  The confiscated corals shall either be returned to the sea or donated to schools and museums for educational or scientific purposes or disposed through other means.

7. Ban on Muro-Ami, Other Methods and Gear Destructive to Coral Reefs and Other Marine Habitat (a) fishing with gear method that destroy coral reefs, seagrass beds, and other fishery marine life habitat as may be determined by the Department (b) using "Muro-Ami" and any of its variation, and such similar gear and methods that require diving, other physical or mechanical acts to pound the coral reefs and other habitat to entrap, gather or catch fish and other fishery species (c) gathering, selling or exporting white sand, silica, pebbles and other substances which make up any marine habitat 8. Illegal Use of Superlights (a) fishing with the use of superlights in municipal waters or in violation of the rules and regulations which may be promulgated by the Department on the use of superlights outside municipal waters 9. Conversion of Mangroves (a) converting mangroves into fishponds or for any other purposes

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10. Fishing in Closed Season

Overfished Area and During

11. Fishing in Fishery Reserves, Refuge and Sanctuaries 12. Fishing or Taking of Rare, Threatened or Endangered Species 13. Capture of Sabalo and Other Breeders/Spawners  However, catching of sabalo and other breeders/spawners for local breeding purposes or scientific or research purposes may be allowed subject to guidelines to be promulgated by the Department. 14. Exportation of Breeders, Spawners, Eggs or Fry 15. Importation or Exportation of Fish or Fishery Species 16. Violation of Catch Ceilings 17. Aquatic Pollution 18. Other violations Failure to Comply with Minimum Safety Standards Failure to Conduct a Yearly Report on all Fishponds, Fish Pens and Fish Cages Gathering and Marketing of Shell Fish which is sexually mature or below the minimum size or above the maximum quantities prescribed for the particular species Obstruction to Navigation or Flow and Ebb of Tide in any Stream, River, Lake or Bay Construction and Operation of Fish Corrals/Traps, Fish Pens and Fish Cages without a license/permit 19. Commercial Fishing Vessel Operators Employing Unlicensed Fisherfolk or Fishworker or Crew 20. Obstruction of Defined Migration Paths of anadromous, catadromous and other migratory species, in areas including, but not limited to river mouths and estuaries within a distance determined by the concerned FARMCs 21. Obstruction to Fishery Law Enforcement Officer

Upon a laboratory examination of the fish seized by the police and agents of the Fisheries Commission, it was indubitably determined that the fish they were selling were caught with the use of explosives. Accordingly, the three vendors were criminally charged with the violation of Section 33 of P.D. 704 which makes it unlawful for any person to knowingly possess, deal in, or sell for profit any fish which have been illegally caught. During the trial, the three vendors claimed that they bought the fish from a fishing boat which they duly identified. The prosecution however claimed that the three vendors should nevertheless be held liable for the offense as they were the ones caught in possession of the fish illegally caught. On the basis of the above facts, if you were the judge, would you convict the three fish vendors? Explain. SUGGESTED ANSWER: No, I would not convict the three fish vendors if I were the judge. Mere possession of such fish without knowledge of the fact that the same were caught with the use of explosives does not by itself render the seller-possessor criminally liable under P.D. 704. Although the act penalized in said Decree may be a malum prohibitum, the law punishes the possession, dealing in or selling of such fish only when "knowingly" done that the fish were caught with the use of explosives; hence criminal intent is essential. The claim by the fish vendors that they only bought the fish from fishing boats which they "duly identified", renders their possession of such fish innocent unless the prosecution could prove that they have knowledge that explosives were used in catching such fish, and the accused had knowledge thereof.

Article 310. Qualified theft

Theft is qualified if:

1.

Committed by a domestic servant;

2.

Committed with grave abuse of confidence;

3.

The property stolen is a motor vehicle, mail matter, or large cattle;

4.

The property stolen consists of coconuts taken from the premises of a plantation;

5.

The property stolen is fish taken from a fishpond or fishery; or

6.

If property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident, or civil disturbance.

Hizon vs. CA Some fish were taken from a fishing boat that tested positive for sodium cyanide. The accused were convicted for illegal fishing using poisonous substances under PD 703, which creates a prima facie presumption of guilt when any fish taken is positive for poisonous substances. Petitioners question the legality of the presumption. SC held that the presumption is only prima facie hence, rebuttable by competent evidence. Illegal Fishing - PD 704 (1996)

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Penalties for qualified theft are now next HIGHER BY 2 DEGREES. Theft by domestic servant is always qualified. necessary to prove grave abuse of confidence.

it is not

The abuse of confidence must be grave. There must be allegation in the information and proof of a relation, by reason of dependence, guardianship or vigilance, between the accused and the offended party, that has created a high degree of confidence between them, which the accused abused. The grave abuse of confidence need not be premeditated. Its presence in the commission of theft is sufficient. The confidence gravely abused must be that existing between offended party and the offender.

Empelis vs. IAC 4 accused were seen carrying away 50 coconuts from a plantation. They dropped the coconuts after being seen by the owner. They were convicted of qualified theft. SC held that they are guilty only of FRUSTRATED QUALIFIED THEFT as they were not able to carry away the coconuts from the plantation that is the gravamen of the offence under Art 310.

FACTS: Reynaldo Bago was an employee of Azkcon Metal Industries from 1988-1992. From 1991 to 1992, he served as team leader at the cutting department under the supervision of the Material Comptroller who kept track of all the materials coming in and going out of the company’s plant in Kalookan City. Azkcon has a business arrangement with Power Construction Supply Company (Power Construction) whereby Azkcon buys cold rolled sheets from the latter. These cold rolled sheets are also cut by Power Construction for a fee and Azkcon converts them into drums or containers. Bago’s job was to go to Power Construction’s establishment in Quezon City to oversee the cutting of the cold rolled sheets and ensure their delivery to Azkcon using the trucks sent by Hilo. Bago was discovered to have participated in the theft of materials worth P192,000.00. The trial court found him guilty of qualified theft.

HELD: The trial court correctly found that appellant was a trusted employee of Azkcon. He was in-charge of overseeing the cutting of the materials at Power Construction and ensuring their delivery to Azkcon. Due to this trust, he succeeded in withdrawing from the said supplier the cold rolled sheets. The materials he took from the supplier on March 23, 1992 could not be found in the premises of Azkcon and there was no evidence that he delivered them on said date or on any other day thereafter. Inexplicably, appellant presented the third receipt (Invoice No. 51111) dated March 23, 1992 for stamping only on April 21, 1992. The reasonable conclusion is that he asported the materials. Clearly, all the elements of theft were established, to wit: (1) there was a taking of personal property; (2) the property belongs to another; (3) the taking was without the consent of the owner; (4) the taking was done with intent to gain; and (5) the taking was accomplished without violence or intimidation against the person or force upon things. As the theft was committed with grave abuse of confidence, appellant is guilty of qualified theft.

People vs. Cañales

Facts: Accused are employees of First Base Corp. They stole a truck and 700 cartons of frozen prawn from the company. They were tasked to deliver the prawns to the pier using the truck. The truck, however, was subsequently recovered. Was there qualified theft as to the recovered truck? Held: The recovery of the stolen motor vehicle does not mean that the crime of qualified theft was not consummated. Neither will it diminish the criminal responsibility of appellant. In People v. Carpio: The gist of the offense of larceny consists in the furtive taking and asportation of property, animo lucrandi, and with intent to deprive the true owner of the possession thereof. The act of asportation in this case was undoubtedly committed with intent on the part of the thief to profit by the act, and since he effectively deprived the true owner of the possession of the entire automobile, the offense of larceny comprised the whole car. The fact that the accused stripped the car of its tires and abandoned the machine in a distant part of the city did not make the appellant any less liable for the larceny of the automobile. The deprivation of the owner and the trespass upon his right of possession were complete as to the entire car; and the fact that the thieves thought it wise promptly to abandon the machine in no wise limits their criminal responsibility to the particular parts of the car that were appropriate and subsequently used by the appellant upon his own car. People v. Reynaldo Bago (2000)

People v. Luisito Bustinera (2004)

FACTS: ESC Transport hired Luisito Bustinera as a taxi driver. It was agreed that appellant would drive the taxi from 6:00 a.m. to 11:00 p.m., after which he would return it to ESC Transport's garage and remit the boundary fee in the amount of P780.00 per day. On December 25, 1996, appellant admittedly reported for work and drove the taxi, but he did not return it on the same day as he was supposed to. The owner of ESC reported the taxi stolen. On January 9, 1997, Bustinera's wife went to ESC Transport and revealed that the taxi had been abandoned. ESC was able to recovered. The trial court found him guilty beyond reasonable doubt of qualified theft.

HELD: Bustinera was convicted of qualified theft under Article 310 of the Revised Penal Code, as amended for the unlawful taking of a motor vehicle. However, Article 310 has been modified, with respect to certain vehicles, by Republic Act No. 6539, as amended, otherwise known as "AN ACT PREVENTING AND PENALIZING CARNAPPING." When statutes are in pari materia or when they relate to the same person or thing, or to the same class of persons or things, or cover the same specific or particular subject matter, or have the

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same purpose or object, the rule dictates that they should be construed together The elements of the crime of theft as provided for in Article 308 of the Revised Penal Code are: (1) that there be taking of personal property; (2) that said property belongs to another; (3) that the taking be done with intent to gain; (4) that the taking be done without the consent of the owner; and (5) that the taking be accomplished without the use of violence against or intimidation of persons or force upon things. Theft is qualified when any of the following circumstances is present: (1) the theft is committed by a domestic servant; (2) the theft is committed with grave abuse of confidence; (3) the property stolen is either a motor vehicle, mail matter or large cattle; (4) the property stolen consists of coconuts taken from the premises of a plantation; (5) the property stolen is fish taken from a fishpond or fishery; and (6) the property was taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance. On the other hand, Section 2 of Republic Act No. 6539, as amended defines "carnapping" as "the taking, with intent to gain, of a motor vehicle belonging to another without the latter's consent, or by means of violence against or intimidation of persons, or by using force upon things." The elements of carnapping are thus: (1) the taking of a motor vehicle which belongs to another; (2) the taking is without the consent of the owner or by means of violence against or intimidation of persons or by using force upon things; and (3) the taking is done with intent to gain. Carnapping is essentially the robbery or theft of a motorized vehicle, the concept of unlawful taking in theft, robbery and carnapping being the same. From the foregoing, since appellant is being accused of the unlawful taking of a Daewoo sedan, it is the anti-carnapping law and not the provisions of qualified theft which would apply.

Jonathan D. Cariaga v. Court of Appeals (2001)

FACTS: "Luis Miguel Aboitiz was the Systems Analyst of the Davao Light & Power Company, Inc. (DLPC), whose duty was to devise means to prevent losses due to waste, pilferage or theft of company property. He received reports that some private electricians were engaged in the clandestine sale of DLPC materials and supplies. He initiated a covert operation to discover the method and to capture one of the culprits. Using an undercover agent, the group was brought down and Jonathan Cariaga was charged and found guilty of qualified by grave abuse of confidence

closed. While the mere circumstance that the petitioner is an employee or laborer of DLPC does not suffice to create the relation of confidence and intimacy that the law requires to designate the crime as qualified theft, it has been held that access to the place where the taking took place or access to the stolen items changes the complexion of the crime committed to that of qualified theft.

People v Ruben Sison (2000)

FACTS: Ruben Sison first joined the Auditing Department of the Philippine Commercial International Bank (PCIB) in December 1977. He rose from the ranks and was promoted to the position of Assistant Manager and concurrently held the position of Branch Operation Officer. As such, he was assigned to different branches until his last detail at the PCIB Luneta Branch in February 1991. He was the primary control officer directly responsible for the day to day operations of the branch, including custody of the cash vault. Sison facilitated the crediting of two (2) fictitious remittances in the amounts of P3,250,000.00 and P4,755,000.00 in favor of Solid Realty Development Corporation, an equally fictitious account, and then later the withdrawal of P6,000,000.00 from the PCIB Luneta Branch. He was charged and found guilty of qualified theft.

HELD: The appeal has no merit. The trial court correctly convicted appellant of Qualified Theft on the basis of circumstantial evidence. Ultimately, the combination of all the incriminating facts proven by the prosecution and the logical inferences derived therefrom leave no doubt in Our mind that appellant, with grave abuse of confidence, conceived and accomplished the theft of P6,000,000.00 from the PCIB Luneta Branch. The crime perpetuated by appellant against his employer, the Philippine Commercial and Industrial Bank (PCIB), is qualified theft. Appellant could not have committed the crime had he not been holding the position of Luneta Branch Operation Officer which gave him not only sole access to the bank vault but also control of the access of all bank employees in that branch, except the Branch Manager, to confidential and highly delicate computerized security systems designed to safeguard, among others, the integrity of telegraphic fund transfers and account names of bank clients. The management of the PCIB reposed its trust and confidence in the appellant as its Luneta Branch Operation Officer, and it was this trust and confidence which he exploited to enrich himself to the damage and prejudice of PCIB in the amount of P6,000,000.00.

Asuncion Roque v People (2004) HELD: The defense, verily, anchors itself on the bare denial of petitioner of the specific acts imputed by the prosecution against him. Certainly, this negative assertion cannot prevail over the unimpeached testimony of the prosecution witness describing in sufficient detail the active participation of petitioner in the commission of the crime charged. We note that the information alleged that petitioner was an employee of DLPC; that he had access to the electrical supplies of said company; and that with grave abuse of confidence, he stole electrical materials belonging to DLPC. The prosecution established that petitioner who was permanently assigned as driver of Truck "S-143" had charge of all the DLPC equipment and supplies kept in his vehicle, including lightning arresters, cut-out and wires, which were generally used for the installation of transformers and power lines; and specifically stored therein for emergency operations at night when the stockroom is

FACTS: Asuncion Roque was a teller of the Basa Air Base Savings and Loan Association Inc. (BABSLA). She was found to have taken money from several of the depositors. Unable to return the money, she was charged with qualified theft and covicted. Roque argued that since the money was lawfully received by her and later misappropriated she was guilty only of estafa.

HELD: In the present case, what is involved is the possession of money in the capacity of a bank teller. In People v. Locson this Court considered deposits received by a teller in behalf of a bank as being only in the material possession of the teller. This

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interpretation applies with equal force to money received by a bank teller at the beginning of a business day for the purpose of servicing withdrawals. Such is only material possession. Juridical possession remains with the bank. In line with the reasoning of the Court in several cases, beginning with People v. De Vera, if the teller appropriates the money for personal gain then the felony committed is theft and not estafa. Further, since the teller occupies a position of confidence, and the bank places money in the teller's possession due to the confidence reposed on the teller, the felony of qualified theft would be committed.

the bracelet belonged to another and the failure to restore the same to its owner is characterized by intent to gain. The act of PO1 Reyes of selling the bracelet which does not belong to him and which he only held to be delivered to its owner, is furtive misappropriation with intent to gain. Where a finder of lost or mislaid property entrusts it to

Astudillo v. People (2006)

another for delivery to the owner, the person to whom such property is entrusted and who accepts the same,

Mere circumstance that petitioners were employees of Western does not suffice to create the relation of confidence and intimacy that the law requires. The element of grave abuse of confidence requires that there be a relation of independence, guardianship or vigilance between the petitioners and Western. Petitioners were not tasked to collect or receive payments. They had no hand in the safekeeping, preparation and issuance of invoices. They merely assisted customers in making a purchase and in demonstrating the merchandise to prospective buyers. While they had access to the merchandise, they had no access to the cashier’s booth or to the cash payments subject of the offense.

assumes the relation of the finder to the owner as if he was the actual finder: if he would misappropriate it, he is guilty of theft (People vs. Avila, 44 Phil. 720). Theft; Qualified Theft (2002) A fire broke out in a department store, A, taking advantage of the confusion, entered the store and carried away goods which he later sold. What crime, if any, did he commit?

front of his working place in Makati and, upon inspecting

Why? (2%)

it, saw the name and address of the owner engraved on the

SUGGESTED ANSWER:

inside. Remembering his parents' admonition that he

A committed the crime of qualified theft because he took

should not take anything which does not belong to him, he

the goods on the occasion of and taking advantage of the

delivered the bracelet to PO1 Jesus Reyes of the Makati

fire which broke out in the department store. The occasion

Quad precinct with the instruction to locate the owner and

of a calamity such as fire, when the theft was committed,

return it to him. PO1 Reyes, instead, sold the bracelet and

qualifies the crime under Article 310 of the Revised Penal

misappropriated the proceeds. Subsequent events brought

Code, as amended.

out the fact that the bracelet was dropped by a snatcher

Theft; Qualified Theft (2002)

who had grabbed it from the owner a block away from

73 of 86

where Francis had found it and further investigation traced

A vehicular accident occurred on the national highway in

the last possessor as PO1 Reyes. Charged with theft, PO1

Bulacan. Among the first to arrive at the scene of the

Reyes reasoned out that he had not committed any crime

Bar Questions

because it was not he who had found the bracelet and,

Theft; Qualified Theft (2006)

moreover, it turned out to have been stolen. Resolve the

Charged with theft, PO1 Reyes is criminally liable. His

1. Forest Ranger Jay Velasco was patrolling the Balara Watershed and Reservoir when he noticed a big pile of cut logs outside the gate of the watershed. Curious, he scouted around and after a few minutes, he saw Rene and Dante coming out of the gate with some more newly-cut logs. He apprehended and charged them with the proper offense. What is that offense? Explain.

contention that he has not committed any crime because

SUGGESTED ANSWER:

he was not the one who found the bracelet and it turned

The offense is Qualified Theft under Sec. 68 of P.D. 705, amending P.D. No. 330, which penalizes any person who directly or indirectly cuts, gathers, removes, or smuggles timber, or other forest products from any of the public

case with reasons. (10%) SUGGESTED ANSWER:

out to be stolen also, is devoid of merit. It is enough that

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forest. The Balara Watershed is protected by the cited laws. 2. During the preliminary investigation and up to the trial proper, Rene and Dante contended that if they were to be held liable, their liability should be limited only to the newlycut logs found in their possession but not to those found outside the gate. If you were the judge, what will be your ruling? (2.5%) SUGGESTED ANSWER: The contention is untenable, the presence of the newly cut logs outside the gate is circumstantial evidence, which, if unrebutted, establishes that they are the offenders who gathered the same. Theft; Stages of Execution (1998) In the jewelry section of a big department store, Julia snatched a couple of bracelets and put these in her purse. At the store's exit, however, she was arrested by the guard after being radioed by the store personnel who caught the act in the store's moving camera. Is the crime consummated, frustrated, or attempted? [5%] SUGGESTED ANSWER: The crime is consummated theft because the taking of the bracelets was complete after Julia succeeded in putting them in her purse. Julia acquired complete control of the bracelets after putting them in her purse; hence, the taking with intent to gain is complete and thus the crime is consummated. Theft; Stages of Execution (2000) Sunshine, a beauteous "colegiala" but a shoplifter, went to the Ever Department Store and proceeded to the women's wear section. The saleslady was of the impression that she brought to the fitting room three (3) pieces of swimsuits of different colors. When she came out of the fitting room, she returned only two (2] pieces to the clothes rack. The saleslady became suspicious and alerted the store detective. Sunshine was stopped by the detective before she could leave the store and brought to the office of the store manager. The detective and the manager searched her and found her wearing the third swimsuit under her blouse and pants. Was the theft of the swimsuit consummated, frustrated or attempted? Explain. (5%) SUGGESTED ANSWER: The theft was consummated because the taking or asportation was complete. The asportation is complete when the offender acquired exclusive control of the personal property being taken: in this case, when Sunshine wore the swimsuit under her blouse and pants and was on her way out of the store. With evident intent to gain, the taking constitutes theft and being complete, it is consummated. It is not necessary that the offender is in a position to dispose of the property,

case of doubt as to whether it is consummated or frustrated, the doubt must be resolved in favor of the milder criminal responsibility.

Illegal Logging

P.D. 330 PenalizingTimber Smuggling or Illegal Cutting of Logs

SECTION 1. Any person, whether natural or juridical, who directly or indirectly cuts, gathers, removes, or smuggles timber, or other forest products, either from any of the public forest, forest reserves and other kinds of public forests, whether under license or lease, or from any privately owned forest lands in violation of existing laws, rules and regulation shall be guilty of the crime of qualified theft as defined and penalized under Articles 308, 309 and 310 of the Revised Penal Code; Provided, That if the offender is a corporation, firm, partnership or association, the penalty shall be imposed upon the guilty officer or officers, as the case may be, of the corporation, firm, partnership or association, and if such guilty officer or officers are aliens, in addition to the penalty herein prescribed, he or they shall be deported without further proceedings on the part of the Commissioned of Immigration and Deportation.

P.D. 705 The Forestry Reform Code (as amended)

SECTION 68. Cutting, gathering and/or collecting timber or other products without license. — Any person who shall cut, gather, collect, or remove timber or other forest products from any forest land, or timber from alienable and disposable public lands, or from private lands, without any authority under a license agreement, lease, license or permit, shall be guilty of qualified theft as defined and punished under Articles 309 and 310 of the RPC; Provided, That in the case of partnership, association or corporation, the officers who ordered the cutting, gathering or collecting shall be liable, and if such officers are aliens, they shall, in addition to the penalty, be deported without further proceedings on the part of the Commission on Immigration and Deportation.

ALTERNATIVE ANSWER; The crime of theft was only frustrated because Sunshine has not yet left the store when the offense was opportunely discovered and the article seized from her. She does not have yet the freedom to dispose of the swimsuit she was taking (People vs. Dino, CA 45 O.G. 3446). Moreover, in

The Court shall further order the confiscation in favor of the government of the timber or forest products to cut, gathered, collected or removed, and the machinery, equipment, implements and tools used therein, and the forfeiture of his improvements in the area.

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The same penalty plus cancellation of his license agreement, lease, license or permit and perpetual disqualification from acquiring any such privilege shall be imposed upon any licensee, lessee, or permittee who cuts timber from the licensed or leased area of another, without prejudice to whatever civil action the latter may bring against the offender.

of the Integrated National Police in the town or city where such store, establishment or entity is located. Penalties imposed Any person guilty of fencing shall be punished as hereunder indicated: a.

Whether lumber is different from timber? Lumber is actually processed forest raw materials or just processed timber. Therefore, lumber is necessarily included in timber as the law makes no distinction.

The penalty of prision mayor, if the value of the property involved is more than 12,000 pesos but not exceeding 22,000 pesos; if the value of such property exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years. In such cases, the penalty shall be termed reclusion temporal and the accessory penalty pertaining thereto provided in the Revised Penal Code shall also be imposed.

b.

The penalty of prision correccional in its medium and maximum periods, if the value of the property robbed or stolen is more than 6,000 pesos but not exceeding 12,000 pesos.

Fencing

c.

The penalty of prision correccional in its minimum and medium periods, if the value of the property involved is more than 200 pesos but not exceeding 6,000 pesos.

d.

The penalty of arresto mayor in its medium period to prision correccional in its minimum period, if the value of the property involved is over 50 pesos but not exceeding 200 pesos.

e.

The penalty of arresto mayor in its medium period, if such value is over five (5) pesos but not exceeding 50 pesos.

f.

The penalty of arresto mayor in its minimum period, if such value does not exceed 5 pesos.

Mustang Lumber Inc vs. CA

PRESIDENTIAL DECREE NO. 1612 ANTI-FENCING LAW OF 1979

What is fencing?

“Fencing" is the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft.

"Fence" includes any person, firm, association corporation or partnership or other organization who/which commits the act of fencing.

Presumption of Fencing. Mere possession of any good, article, item, object, or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing. Clearance/Permit to Sell/Used Second Hand Articles is required All stores, establishments or entities dealing in the buy and sell of any good, article, item, object of anything of value obtained from an unlicensed dealer or supplier thereof, shall before offering the same for sale to the public, secure the necessary clearance or permit from the station commander

Article 311. Theft of the property of the National Library and National Museum



Theft of the property on National Library and Museum has a fixed penalty regardless of its value.

Article 312. Occupation of real property or usurpation of real rights in property

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1. 2.

Taking possession of any real property belonging another by means of violence against or intimidation persons; Usurping any real rights in property belonging another by means of violence against or intimidation persons.

to of to of

Elements:

1. 2. 3. 4.

That the offender a. takes possession of any real property or b. usurps any real rights in property That the real property or real right belongs to another That violence against or intimidation of persons is used by the offender in occupying real property or usurping real rights in property That there is intent to gain.

accused threatened administrator he would "kill anyone who would drive me away" or chased administrator away with bolo.

Article 312 does NOT apply in case of open defiance of a writ of execution issued in a forcible entry case

Reason: Accused did not secure the possession of the land by means of violence or intimidation. The refusal (violent or not) of the accused to comply with writ of execution is a DISTINCT OFFENSE: contempt of court under the Rules of Court.

Criminal Action for occupation of real property NOT A BAR for civil action for forcible entry

Reason: Causes of action are different! The real property or real right must belong to another

If defendant who took possession of the land using violence or intimidation has shown he is owner of the land in question and complainant was a mere possessor, Art 312 DOES NOT apply.

Article 312 does NOT provide for a penalty, it only provides for a fine.

 IN ADDITION TO the penalty for physical injuries inflicted as a result of the acts of violence.

If at all, the crime is: grave coercion Distinguished from theft or robbery: Usurpation of Real Right, example: Usurpation

Accused, who had lost a case in a cadastral proceeding, took possession of the land adjudicated in favor of the offended party and harvested the palay, by means of threats and intimidation.

If no violence or intimidation (ex: mere use of strategy or stealth) , only CIVIL LIABILITY exists

Violence or intimidation must be DURING the occupation or usurpation.

Art 312 DOES NOT apply when the violence or intimidation only took place SUBSEQUENT to the entry into property

Example: if accused ALREADY OCCUPPIED the land, and when the administrator of such land told him to leave, but

Theft/robbery

There is intent to gain Occupation or usurpation

There is taking or asportation

Real property or real right

Personal property taken

Conchita Quinao v People (2000)

FACTS: Salvador Cases and Conchita Quinao, together with their other close relatives appeared on the property of Francisco and Bienvenido Del Monte. While there, with the use of force, violence and intimidation, usurped and took possession of the landholding, claiming that the same is their inheritance from their ascendants further they gathered coconuts and made them into copra. Thus, Bienvenido Del Monte was forcibly driven out by the accused from their landholding and was threatened that he should not return lest harm befall him. He was thus forced to seek assistance from the Lapinig Philippine National Police. In the trial court, defendants asserted a calim over the land despite the fact that a prior judicial decision declared the Del Montes as the rightful owners. Resultantly, defendants were found guilty of usurpation of real property.

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HELD: Contrary to petitioner's allegation, the decision rendered by the trial court convicting her of the crime of usurpation of real property was not based on "speculations, surmises and conjectures" but clearly on the evidence on record and in accordance with the applicable law. The requisites of usurpation are that the accused took possession of another's real property or usurped real rights in another's property; that the possession or usurpation was committed with violence or intimidation and that the accused had animo lucrandi. In order to sustain a conviction for "usurpacion de derecho reales," the proof must show that the real property occupied or usurped belongs, not to the occupant or usurper, but to some third person, and that the possession of the usurper was obtained by means of intimidation or violence done to the person ousted of possession of the property. More explicitly, in Castrodes vs. Cubelo, the Court stated that the elements of the offense are (1) occupation of another's real properly or usurpation of a real right belonging to another person; (2) violence or intimidation should be employed in possessing the real property or in usurping the real right, and (3) the accused should be animated by the intent to gain.

2} The crime would still be usurpation of real rights under Art. 312, RPC, even if the said offenders killed the caretaker because the killing is the Violence against persons" which is the means for committing the crime and as such, determinative only. However, this gives way to the proviso that the penalty provided for therein is "in addition to the penalty incurred in the acts of violence (murder or homicide] executed by them. The crime is similar to a robbery where a killing is committed by reason thereof, giving rise only to one indivisible offense (People vs. Judge Alfeche, plus the fine mentioned therein.)

Article 313. Altering boundaries or landmarks Bar Questions Usurpation of

Real Rights (1996)

Teresita is the owner of a two-hectare land in Bulacan which she planted to rice and corn. Upon her arrival from a threemonth vacation in the United States, she was surprised to discover that her land had been taken over by Manuel and Teofilo who forcibly evicted her tenantcaretaker Juliana, after threatening to kill the latter if she would resist their taking of the land. Thereafter, Manuel and Teofilo plowed, cultivated and appropriated the harvest for themselves to the exclusion of Teresita. 1) What crime or crimes did Manuel and Teofilo commit? Explain. 2) Suppose Manuel and Teofilo killed Juliana when the latter refused to surrender possession of the land, what crime or crimes did the two commit? Explain. SUGGESTED ANSWER:

1) Manuel and Teofilo committed the crime of usurpation of real rights under Art. 312 of the Revised Penal Code for employing violence against or intimidation of persons. The threats to kill employed by them in forcibly entering the land is the means of committing the crime and therefore absorbed in felony, unless the intimidation resulted in a more serious felony.

Elements:

1. 2.

That there be boundary marks or monuments of towns, provinces, or estates, or any other marks intended to designate the boundaries of the same The offender alters said boundary marks

Intent to gain NOT necessary. The mere alteration of the boundary marks or monuments intended to designate the boundaries of towns, provinces, or estate is punishable.

"Alter": General and indefinite meaning. Includes: a. b. c.

destruction of stone monument taking it to another place or removing a fence

Article 314. Fraudulent Insolvency

Elements:

1.

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2. 3. 4.

Obligation is due and payable He absconds with his property There is prejudice to his creditors

Illustration of Fraudulent Insolvency:

Defendant became indebted to several merchants in Cebu. Judgment was rendered against him and execution issued. He owned several parcels of real property which he transferred to another to place them beyond the reach of his creditors. The considerations in the deed of sale were all fictitious.

Article 315. Swindling (Estafa)

Actual prejudice, not intention alone, is required

Concealment of property not sufficient if the debtoraccused has some other property with which to satisfy his obligation.

Being a merchant is not an element of this offense. It only makes the penalty higher

P.D. 2018 Making Illegal Recruitment a Crime of Economic Sabotage

Acts punishable

1.

Any recruitment activities, including the prohibited practices enumerated under Article 34 of the Labor Code, to be undertaken by non-licensees or nonholders of authority shall be deemed illegal and punishable under Article 39 of the Labor Code. The Ministry of Labor and Employment or any law enforcement officers may initiate complaints under this Article.

2.

Illegal recruitment when committed by a syndicate or in large scale shall be considered an offense involving economic sabotage and shall be penalized in accordance with Article 39 of the Labor Code

Real property may be involved

"Absond"- does not require that the debtor should depart and physically conceal his property. Hence, real property may be the subject of fraudulent insolvency.

Person prejudiced: MUST be the creditor of the offender

Example: Wife of accused helped prepare documents to abscond with his property. Such participation does NOT prove her complicity in the fraud, since it was the creditors of her husband (not HER creditors) who were defrauded.

Distinguished from Insolvency Law:

Insolvency Law: requires that the criminal act be committed AFTER the institution of insolvency proceedings Fraudulent insolvency: no need for defendant to be adjudged bankrupt or insolvent.

Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying out any unlawful or illegal transaction, enterprise or scheme.

Illegal recruitment is deemed committed in large scale if committed against three (3) or more persons individually or as a group.

Powers of Minister of Labor and Employment (now Secretary of DOLE)

The Minister of Labor and Employment or his duly authorized representatives shall have the power to cause the arrest and detention of such non-license or non-

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holder of authority if after investigation it is determined that his activities constitute a danger to national security and public order or will lead to further exploitation of jobseekers.

The Minister shall order the search of the office or premises and seizure of documents paraphernalia, properties and other implements used in illegal recruitment activities and the closure of companies, establishment and entities found to be engaged in the recruitment of workers for overseas employment, without having been licensed or authorized to do so.

Three general ways of committing Estafa: 1. 2. 3.

Elements: 1. 2. 3.

That the offender has an onerous obligation to deliver something of value That he alters its substance, quantity, or quality That damage or prejudice is caused by another



There must be an onerous obligation

If the thing delivered had not yet been fully paid or just partially paid, NO ESTAFA even if there was alteration  Ratio: there was no damage to talk about



When there is no agreement as to the quality of the thing to be delivered, delivery of a thing unacceptable to the complainant is NOT estafa.



Even though such obligation be based on an immoral or illegal consideration. Estafa may arise even if the thing to be delivered is not subject of lawful commerce (ex. opium)

with unfaithfulness or abuse of confidence by means of false pretenses or fraudulent acts through fraudulent means

Elements of Estafa IN GENERAL: 1.

That the accused defrauded another by a. abuse of confidence or b. by means of deceit II.

2.

That damage or prejudice capable of pecuniary estimation is caused to a. the offended party or b. third person

Article 315, Paragraph 1 (b): misappropriating or converting money, goods, or other personal property OR denying having received such money, goods, or other personal property

Elements: * As seen above, DECEIT is NOT an essential requisite of estafa with abuse of confidence

* As to second general element of DAMAGE, it should be capable of pecuniary estimation, since amount of the damage is the basis of the penalty.

* intent of defrauding another is always an element

* no estafa through negligence

-Estafa through Abuse of Confidence-

I.

Article 315, Paragraph 1 (a): Estafa with unfaithfulness by altering the substance, quantity, or quality of anything of value

1.

2. 3. 4.

That money, goods, or other personal property be received by the offender in a. trust (Trust Receipts Law) b. on commission c. for administration d. under any obligation involving duty to return the very same thing There is (a) misappropriation or conversion of such property by the offender OR (b) denial of such receipt There is prejudice to another Demand was made by the offended to the offender

PRESIDENTIAL DECREE No. 115 January 29, 1973 PROVIDING FOR THE REGULATION OF TRUST RECEIPTS TRANSACTIONS "Trust Receipt" -- shall refer to the written or printed document signed by the entrustee in favor of the entruster containing terms and conditions substantially complying with the provisions of this Decree. No further formality of execution or authentication shall be necessary to the validity of a trust receipt. What constitutes a trust receipt transaction? A trust receipt transaction is any transaction by and between a person referred to as the entruster, and another person referred to as entrustee, whereby the

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entruster, who owns or holds absolute title or security interests over certain specified goods, documents or instruments, releases the same to the possession of the entrustee upon the latter's execution and delivery to the entruster of a signed document called a "trust receipt" wherein the entrustee binds himself to hold the designated goods, documents or instruments in trust for the entruster and to sell or otherwise dispose of the goods, documents or instruments with the obligation to turn over to the entruster the proceeds thereof to the extent of the amount owing to the entruster or as appears in the trust receipt or the goods, documents or instruments themselves if they are unsold or not otherwise disposed of, in accordance with the terms and conditions specified in the trust receipt, or for other purposes substantially equivalent to any of the following: 1. In the case of goods or documents, b) to sell the goods or procure their sale; or c) to manufacture or process the goods with the purpose of ultimate sale: Provided, That, in the case of goods delivered under trust receipt for the purpose of manufacturing or processing before its ultimate sale, the entruster shall retain its title over the goods whether in its original or processed form until the entrustee has complied fully with his obligation under the trust receipt; or d) to load, unload, ship or tranship or otherwise deal with them in a manner preliminary or necessary to their sale; or 2. In the case of instruments, a) to sell or procure their sale or exchange; or b) to deliver them to a principal; or c) to effect the consummation of some transactions involving delivery to a depository or register; or d) to effect their presentation, collection or renewal NOTE: The sale of goods, documents or instruments by a person in the business of selling goods, documents or instruments for profit who, at the outset of the transaction, has, as against the buyer, general property rights in such goods, documents or instruments, or who sells the same to the buyer on credit, retaining title or other interest as security for the payment of the purchase price, does not constitute a trust receipt transaction.

Lee vs. Rodil

Lee executed TRA for the purchase of materials but misappropriated the value of the goods for personal use. Charged with estafa under PD 115. Challenged the validity of the law saying that a violation of PD 115 is NOT estafa and that the law violates non-imprisonment for debts clause of the Constitution.

HELD: Sec 13 of PD 115 explicitly states that the failure to give back the proceeds or return the goods of estafa is punishable. No violation of the Constitution as the loan is separate from the trust receipt. What is punished is the violation of the trust receipt and not the nonpayment of the loan.



The 4th element is not necessary where there is evidence of misappropriation of goods by the defendant  Check is included in the word "money"  Money/goods must be received by the offender. Otherwise, crime is THEFT (taking without consent of owner)  hence, offender must have material AND juridical possession of the thing  JURIDICAL POSSESSION: means a possession which gives the transferee a right over the thing which the transferee may set up even against the owner.

 a. b.

Allied Banking v. Ordonez

PBM got equipment from bank and executed trust receipt agreement (TRA) -- acknowledged bank's ownership of equipment and PBM's obligation to turn over the proceeds of the sale of said equipments. Sec. Of Justice said that since PBM would not be selling the equipment but would just be using them, there was no violation of PD 115.

Key: if no obligation to return the very same thing, only Civil liability

 

HELD: PD 115 applies to ALL trust receipt transactions. Therefore, the fact that the goods were just to be used by PBM and not to be sold is of no importance. Any violation of the TRA is punished (Geof's notes in Comm: wrong SC decision!  )

"involving the duty to return the same" includes quasi-contracts and contract of bailment: deposit, lease, commodatum, pledge  but NOT contract of loan! Loan of money is mutuum. Ownership was transferred.  Contract of sale (ownership is transferred at the time of delivery): a) if thing sold not delivered and advance payment not returned, only CIVIL LIABILITY b) if buyer did not pay the price to owner, only CIVIL LIABILITY also

No estafa when the money or other personal property received is NOT to be used for a particular purpose. Novation of contract from one of agency to one of sale or to one of loan relieves defendant from the incipient criminal liability under the first contract  But granting extension of time is not novation, nor is acceptance of a PN for money misappropriated  Also, the novation theory may perhaps apply prior to the filing of the criminal information in court by the State prosecutors, because up to that time, the C2005 Criminal Law 2 Reviewer

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original trust relation may be converted by the parties into an ordinary creditor-debtor relation.   

 









"conversion" – thing was devoted for a purpose different from that agreed upon, as if the thing were the accused's own (ex. depositary pledged the thing deposited) "misappropriation" - using an amount for personal purposes Right of agent to deduct commission from amounts collected: IF AUTHORIZED to retain commission, no estafa. "to the prejudice of another"- not necessarily the owner of the property Partnerships:  Where a partner sold partnership property and misappropriates the selling price only gives rise to civil obligation only (it is a debt due to a partner as part of partnership funds)  Partner given money to be used for a specific purpose then misappropriated it  estafa A co-owner is not liable for estafa during the subsistence of the co-ownership

Involves public funds or property

The offender is a private individual or a public officer who is not accountable for public funds or property

Offender is usually a public officer who is accountable for public funds or property

The crime is committed by misappropriating, converting or denying having received money, goods or other personal property

The crime is committed by appropriating, taking or misappropriating or consenting, or through abandonment or negligence, permitting any other person to take the public funds or property





Private individual allegedly in conspiracy with public officer in a prosecution of the latter for malversation, may still be held liable for Estafa even if the public officer was acquitted. Misappropriation of firearms received by a policeman is Estafa, if it is not involved in the commission of a crime. It is malversation, if it is involved in the commission of a crime.

Art 314 par 1 (b) is the ONLY kind of estafa where demand is necessary. Although it is not required by law, it is necessary because failure to account upon demand, is circumstantial evidence of misappropriation. ‘Even though such obligation be totally or partially guaranteed by a bond’ – a security executed by the agent to answer for damages etc. does not relieve him from criminal liability, for this undertaking refers only to his civil liability. The gravity of the crime of Estafa is determined on the basis of the amount not returned before the institution of criminal action. Estafa with abuse of confidence

Offender acquires only material possession of the property

Offender receives the thing from the offended party

Offender takes the thing from the offended party

Additional test: In theft, upon delivery of the thing to the offender, the owner expects an immediate return of the thing to him Estafa with abuse of confidence

Saddul v. CA

Saddul was authorized to sell some car parts. 20% of the proceeds from sale would go to AMPI.

HELD: NOT guilty of estafa. Saddul did not receive the parts from AMPI in trust (received it from another party which was the owner of the parts). Saddul did not convert it for personal use. Failure to deliver the proceeds did not cause damage to AMPI, as it was not the owner of the parts. Also, AMPI did not demand return of the parts.

Theft

Offender acquires the juridical possession of the property



The funds or property are always private

Malversation

The offenders are entrusted with funds or property Both are continuing offenses

III.

Article 315, par 1, (c): estafa by taking undue advantage of the signature of the offended party in blank

Elements: 1.

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2. 3. 4.



That the offended party should have delivered it to the offender That above the signature, a document is written by offender without authority to do so That the document so written creates a liability of, or causes damage to the offended party or any third person



Pretending to possess influence: I have connections in Malacañang so pay me if you wanna get your documents approved" trick



Estafa by means of deceit vs. theft: juridical/ legal possession is still transferred to offender in case of estafa. But it is transferred through deceit.

The paper with the signature in blank MUST BE DELIVERED by the offended party to the offender (otherwise, crime is falsification of instrument)

V. -Estafa by Deceit-

Elements of Estafa by means of deceit:

 

1. 2. 3.

4.

IV.

There must be a false pretense, fraudulent act or fraudulent means; Such false pretense, fraudulent act or fraudulent means must be made or executed prior to or simultaneously with the commission of the fraud; The offended party must have relied on the false pretense, fraudulent act, or fraudulent means, that is, he was induced to part with his money or property because of the false pretense, fraudulent act or fraudulent means; As a result thereof, the offended party suffered damage.

VI.

Article 315, Paragraph 2 (b): by altering quality, fineness, or weight of anything pertaining to his art or business Example: A gives B, a jeweler, a diamond to be made into a ring. B changed the stone with one of lower quality. Manipulation of Scale: violation of Revised Administrative Code

Article 315, Paragraph 2 (c): pretending to have bribed any Government employee



Person would ask money from another for the alleged purpose of bribing a government employee but just pocketed the money after



"without prejudice to an action for calumny" : the offender may also be charged with defamation which the government employee allegedly bribed may deem proper to bring against the offender

Article 315, par 2, (a)

Three ways of committing estafa under this provision: 1. 2.

3.

using fictitious name falsely pretending to possess a. power b. influence c. qualifications d. property e. credit f. agency g. business or imaginary transactions other similar deceits

VII.

Elements: 1. 2.



fictitious name: when a person found a pawnshop ticket in the name of another and, using the name of that person, redeemed the jewelry



Pretending to possess power: "pretend to be a magician who can find gold, but pay me to find the gold under your house" trick.

Article 315, Paragraph 2 (d): postdating a check in payment of an obligation when the offender had no funds in the bank, or his funds were not sufficient to cover the amount



That the offender postdated a check, or issued a check in payment of an obligation That such postdating or issuing was done when: a. offender had no funds or b. funds deposited were not sufficient check must be genuine and not falsified, otherwise, it is estafa under paragraph 2(a), not 2(d) (example: signing a check with a fictitious name and falsely pretending said check could be encashed)

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



the issuance of a check is NOT for a pre existing obligation. It MUST be for an obligation contracted at the time of the issuance or delivery of the check.  When check is issued in substitution of a promissory note, it is in payment of a pre existing obligation  When the check is issued by a guarantor, there is no Estafa because it is not in payment of an obligation. Prima facie evidence of deceit: failure of the drawer of the check to deposit the amount necessary to cover his check within three days from receipt of notice from the bank and/or the payee or holder that said check has been dishonored for lack or insufficiency of funds  otherwise, if drawer is able to fund within 3 days from notice of dishonoring, not liable for estafa

X.

Article 315, Paragraph 3 (b): Estafa by resorting to some fraudulent practice to insure success in gambling

XI.

Article 315, Paragraph 3 (c): Estafa by removing, concealing, or destroying documents

Elements: 1. 2. 3.

VIII.

Article 315, Paragraph 2 (e): Estafa by obtaining food or accommodation at a hotel, etc

Three ways of committing estafa under the this provision: 1. 2. 3.

IX.

By obtaining food, refreshment, or accommodation at a hotel, etc. without paying therefor, with intent to defraud the proprietor or manager thereof. By obtaining credit at any of said establishments by the use of false pretenses By abandoning or surreptitiously removing any part of his baggage from any of said establishments after obtaining credit, food, refreshment, or accommodation therein, without paying therefor.

Article 315, Paragraph 3 (a): Estafa by inducing another to sign any document

Elements: 1. 2. 3. 4. 



That the offender induced the offended party to sign a document. That deceit be employed to make him sign the document That the offended party personally signed the document That prejudice be caused There must be inducement:  if the offended party was willing to sign although there was deceit as to the character or contents of the document (because the contents are different from those which the offended party told the accused to state in the document) crime is falsification accused should make statements tending to mislead the complainant as to the character of the document executed by him.

That there be court record, office files, documents or any other papers That the offender removed, concealed or destroyed any of them That the offender had intent to defraud another



If no intent to defraud, the act of destroying court record will be malicious mischief

 1.

Examples: Concealing document: A person who concealed a document evidencing a deposit of P2,600 which came into his possession when he offered to collect the deposit is guilty of estafa.

2.

Destroying documents: Destruction of a PN given back to the maker to be replaced with a new one to renew the loan, without making a new promissory note is estafa because by destroying the old one, the offended party was dispossessed of the evidence of a debt.



In a very old case, it was ruled that the act of destroying a PN, given to cover losses in gambling, by the maker thereof, is Estafa. However, there was a dissenting opinion which stated that such PN is void and of no value, hence it cannot be the subject of estafa.

Estafa under par. 3 (c)

Infidelity in the custody of documents

Manner of committing offenses is the same The offender is a private individual or even a public officer who is not officially entrusted with the documents

The offender is a public officer who is officially entrusted with the document

There is intent to defraud

Intent to defraud not an element in this crime

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  





 1. 2. 3.

The accused CANNOT be convicted of estafa with abuse of confidence under an information alleging estafa by means of deceit. If there is no deceit and no abuse of confidence, there is no estafa, even if there is damage. There is only civil liability. There CAN be a complex crime of theft and estafa, when the former is a necessary means to commit the latter. C, with intent to gain, took the pawnshop tickets without the consent of A (Theft). By redeeming the jewels by means of the tickets, C also committed estafa, using a fictitious name. The basis of the penalty for estafa is the amount or value of the property misappropriated BEFORE the institution of the criminal action. Hence, partial payment made subsequent to the commission of estafa does not reduce the amount misappropriated which is the basis of the penalty. A private person who procures a loan by means of deceit through a falsified public document of mortgage, but who effects full settlement of the loan within the period agreed upon, does not commit the crime of Estafa, there being no disturbance of proprietary rights and no person defrauded thereby. The crime committed is only falsification of public document. "Prejudice" consists in: The offended party being deprived of his money or property as a result of the fraud Disturbance in property rights Temporary prejudice

Celino vs. CA

Accused were pretending to be possessed by the spirit of a dwarf. They were able to make the victim allow them to dig in the victim's backyard and extort some funds from him with the promise that it would grow into a big amount.

HELD: GUILTY of estafa by false pretense, having pretended to have special powers and fooled the extremely stupid victim.

Abujuela vs. People

Balo offered financial assistance to Abujuela by virtue of some insurance proceeds that Balo would receive from his father. Balo borrowed Abujuela's passbook and made it appear that certain deposits were made. When the account was closed, discrepancies were found between the ledger and the account. Abujuela charged as accomplice to estafa through falsification of commercial documents

HELD: NOT guilty. Abujuela NOT aware of the fraudulent plans of Balo. Knowledge of criminal intent is essential to be an accomplice in estafa.

Koh Tieng Heng vs. People

Heng deposited two checks worth P18,060 each issued by a certain Dyaico. Then he withdrew several times from the account. Diayco questioned the withdrawals. Heng was finally caught trying to withdraw again.

HELD: Possession and utterance of a falsified check gives rise to the presumption that the possessor is the forger of the check. Attempted estafa correct as he was caught trying to withdraw.

People vs. Ong

Ong deposits checks then withdraws from the deposited accounts on the same day without waiting for the required 5-day clearance period for checks. The drawee banks subsequently dishonored deposited checks.

HELD: NOT guilty of estafa. Ong had no knowledge of lack of funds, checks not issued in payment of an obligation as required by the RPC. Lastly, Ong did not employ deceit in withdrawing the money as the bank waived the 5-day clearance period for its preferred customers where Ong was one of those.

Llamado vs. CA

Gaw delivered to accused the amount of P180,000.00, with the assurance of Aida Tan, the secretary of the accused in the corporation, that it will be repaid plus interests and a share in the profits of the corporation, if any. Upon delivery of the money, accused Ricardo Llamado and Jacinto Pascual signed a postdated Philippine Trust Company Check in the presence of Gaw. Gaw deposited the check in his current account, which the drawee bank dishonored later informed Gaw that said check because payment was stopped, and that the check was drawn against insufficient funds. Gaw was also notified by the bank that his current account was debited because of the dishonor of the said check. After trial on the merits, the trial court rendered judgment convicting the accused of violation of Batas Pambansa No. 22.

HELD: Llamado denies knowledge of the issuance of the check without sufficient funds and involvement in the transaction with Gaw. However, knowledge involves a state of mind difficult to establish. Thus, the statute itself creates a prima facie presumption, i.e., that the drawer had knowledge of the insufficiency of his funds

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in or credit with the bank at the time of the issuance and on the check's presentment for payment. Llamado failed to rebut the presumption by paying the amount of the check within five (5) banking days from notice of the dishonor. His claim that he signed the check in blank which allegedly is common business practice, is hardly a defense. If as he claims, he signed the check in blank, he made himself prone to being charged with violation of BP 22. It became incumbent upon him to prove his defenses. As Treasurer of the corporation who signed the check in his capacity as an officer of the corporation, lack of involvement in the negotiation for the transaction is not a defense.

belonging to McCullough & Co. to the American Loan Company. Because of said act, the typewriter was seized by the police, and taken into court. Throughout the trial, McCullough & Co. was placed in a doubtful position as to its right over the typewriter. [The SC] held that: “McCullough & Co. at least suffered disturbance in its property rights in the said typewriter and in the possession thereof. This fact, by itself, and without it being necessary to deal with any other considerations of material fact herein, always constitutes real and actual damage, and is positive enough under rule of law to produce one of the elements constituting the offense, the crime of estafa.”

The check was issued for an actual valuable consideration, which Gaw handed to Aida Tan, a secretary in petitioner's office. In fact, Llamado admits that Gaw made an investment in said amount with Pan-Asia Finance Corporation. Llamado contends that the money which Gaw gave the corporation was intended for investment which they agreed will be returned to Gaw with interests, only if the project became successful. But then, if this were true, the check need not have been issued because a receipt and their written agreement would have sufficed.

In the case at bar, there was a disturbance in the property rights of Lu Chiong Sun. While the funds received by Lu Hayco were deposited in his personal bank accounts, Lu Chiong Sun and Units Optical could not dispose of the said amounts. At least, this could be considered as a temporary prejudice suffered by Lu Chiong Sun, which is sufficient to constitute conversion in the context of Art. 315 (1-b) of the RPC.

Salcedo vs. CA True, it is common practice in commercial transactions to require debtors to issue checks on which creditors must rely as guarantee of payment, or as evidence of indebtedness, if not a mode of payment. But to determine the reason for which checks are issued, or the terms and conditions for their issuance, will greatly erode the faith the public reposes in the stability and commercial value of checks as currency substitutes, and bring about havoc in trade and in banking communities. So, what the law punishes is the issuance of a bouncing check and not the purpose for which it was issued nor the terms and conditions relating to its issuance. The mere act of issuing a worthless check is malum prohibitum.

Lu Hayco vs. CA

Lu Hayco had a special power of attorney from Lu Chiong Sun to manage the Units Optical Supply Company. The SPOA also authorized Lu Hayco “To deposit and withdraw funds in the name of the company.”

Lu Hayco deposited P139,000 paid by customers of the Units Optical, not in the company's banks but in his own personal accounts. After 2 demand letters were ignored, a criminal complaint for estafa thru falsification of a public document was filed against Lu Hayco.

To make a very long story short, the first case of estafa was dismissed but many more ensued (as many as 75 counts, I think). Eventually, he was convicted. Lu Hayco argues, among others, that there is no estafa since the element of misappropriation or conversion was not proven.

Salcedo was the local branch manager of Manhattan Guaranty Company, Inc. at Iligan City, which was engaged in the business of property insurance. Said company had been suspended from operating and eventually closed by the Insurance Commissioner since February 21, 1968. Salcedo was aware of the suspension and closure order but he deliberately concealed the same from complainant Ponce when he issued on March 18, 1968 a P50,000 fire insurance policy unto the complainant, and collected Pl,095.80 as premium. Eventually, the City Court of Iligan City convicted Salcedo of estafa.

HELD: Salcedo was the local branch manager of Manhattan Guarantee. When he signed and issued the policy and collected the premium thereof, he had knowledge that his company was no longer authorized to conduct insurance business. This knowledge makes him liable under paragraph 2(a) of Art. 315 of the RPC which provides that:

“2. By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud: (a) By using a fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions; or by means of other similar deceits.”

To secure a conviction for estafa under par. 2(a) of Art. 315 of the RPC, the following requisites must concur:  

HELD: The disturbance in property rights caused by misappropriation, though only temporary, is itself sufficient to constitute injury within the meaning of Art. 315(l -b) of the RPC. In U.S. v. Goyenechea (8 Phil. 117), the defendant pledged a typewriter

that the accused made false pretenses or fraudulent representations as to his power, influence, qualifications, property, credit, agency, business or imaginary that such false premises or fraudulent representations constitute the very cause which induced the offended party to part with his money or property, and that as result thereof, the offended party suffered damage.

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All these requisites are present in this case. The deliberate concealment by Salcedo of the fact that his company was no longer authorized to engage in the business of insurance when he signed and issued the fire insurance policy and collected the premium payment constitutes false representations or false pretenses, upon which the complainant relied when he paid the premium.

People v. Remullo, 383 SCRA 93 (2002)

FACTS: Quinsaat, Cadacio, and Mejia went to appellant's house sometime in March 1993, where Remullo told them she was recruiting factory workers for Malaysia. Remullo told them to fill up application forms and to go to the office of Jamila and Co., the recruitment agency where Remullo allegedly worked. Remullo also required each applicant to submit a passport, pictures, and clearance from the NBI; and then to undergo a medical examination ‘The three were then asked by Remullo to pay a placement fee of P15,000 for each applicant, which they did. No receipts were issued for said payments. At the time of their supposed departure, an immigration officer at the airport told the victims they lacked a requirement imposed by the POEA. Their passports were cancelled and their boarding passes marked "offloaded". Evelyn Landrito, vice president and general manager of Jamila later certified that appellant was not authorized to receive payments on behalf of Jamila.

HELD: In this case, appellant clearly defrauded private complainants by deceiving them into believing that she had the power and authority to send them on jobs abroad. By virtue of appellant's false representations, private complainants each parted with their hard-earned money. Each complainant paid P15,000 as recruitment fee to appellant, who then appropriated the money for her own use and benefit, but failed utterly to provide overseas job placements to the complainants. In a classic rigmarole, complainants were provided defective visas, brought to the airport with their passports and tickets, only to be offloaded that day, but with promises to be booked in a plane flight on another day. The recruits wait in vain for weeks, months, even years, only to realize they were gypped, as no jobs await them abroad. No clearer cases of estafa could be imagined than those for which appellant should be held criminally responsible.

When [petitioner] ceased reporting for work in 1994, Atoz audited some of the accounts handled by him. It was then that Atoz discovered Ocean Feed Mills' unpaid account in the amount of P318,672.00. Atoz thus notified Ocean Feed Mills that [petitioner] was no longer connected with the corporation, and advised it to verify its accounts. Promptly preparing a certification and summary of payments, Ocean Feed Mills informed Atoz that they have already fully settled their accounts and even made overpayments. Atoz filed several cases of estafa against Lee, and the trial court found him guilty.

HELD: The elements of estafa with abuse of confidence are as follows: a) that money, goods or other personal property is received by the offender in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return the same; b) that there be misappropriation or conversion of such money or property by the offender; or denial on his part of such receipt; c) that such misappropriation or conversion or denial is to the prejudice of another. The words "convert" and "misappropriate" as used in the aforequoted law connote an act of using or disposing of another's property as if it were one's own or of devoting it to a purpose or use different from that agreed upon. To "misappropriate" a thing of value for one's own use or benefit, not only the conversion to one's personal advantage but also every attempt to dispose of the property of another without a right. Misappropriation or conversion may be proved by the prosecution by direct evidence or by circumstantial evidence. Demand is not an element of the felony or a condition precedent to the filing of a criminal complaint for estafa. Indeed, the accused may be convicted of the felony under Article 315, paragraph 1(b) of the Revised Penal Code if the prosecution proved misappropriation or conversion by the accused of the money or property subject of the Information. In a prosecution for estafa, demand is not necessary where there is evidence of misappropriation or conversion. However, failure to account upon demand, for funds or property held in trust, is circumstantial evidence of misappropriation.

Jorge Salazar v. People (2004)

Through conversion or misappropriation

Crisanto Lee v. People (2005)

FACTS: Atoz Trading Corporation engaged in the trading of animal feeds. Robert Crisanto Lee was the corporation's sales manager from early 90's to 1994. In the course of Lee's employment therewith, he was able to bring in Ocean Feed Mills as a client. Having "personally found" Ocean Feed Mills, he handled said account. Transactions between the two companies were then coursed through Lee, so that it was upon the latter's instructions that Ocean Feed Mills addressed its payments through telegraphic transfers to either "Atoz Trading and/or Robert Lee" or "Robert Lee".

FACTS: Skiva International, Inc. is a New York-based corporation which imports clothes from the Philippines through its buying agent, Olivier (Philippines) Inc. Aurora Manufacturing & Development Corporation (“Aurora”) and Uni-Group Inc. (“UniGroup”) are domestic corporations which supply finished clothes to Skiva. Mr. Werner Lettmayr is the President of both Aurora and UniGroup while the petitioner, Jorge Salazar, is the Vice-President and Treasurer of Uni-Group and a consultant of Aurora. In December 1985, Skiva informed Olivier that it needs ladies jeans to be delivered sometime in January 1986. Olivier, in turn, contacted Aurora and Uni-Group to supply the jeans. Thus, a Purchase Contract was issued by Olivier to Uni-Group wherein UniGroup was to supply 700 dozens of Ladies Jeans payable by means of a letter of credit at sight. On January 7, 1986, the parties agreed that Skiva will advance to Aurora/Uni-Group the amount of US$41,300.00 (then equivalent to P850,370.00 at the exchange rate of P20.59 to US$1.00) as Aurora/Uni-Group did not have sufficient funds to secure raw

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materials to manufacture the jeans. It was also agreed that the amount advanced by Skiva represents advance payment of its order of 700 dozens of ladies jeans. Skiva remitted the funds by way of telegraphic transfer from its bank in New York, the Israel Discount Bank, to the joint account of Mr. and Mrs. Jorge Salazar and Mr. and Mrs. Werner Lettmayr at Citibank N.A.

Mr. Jorge Salazar withdrew money from the dollar account converted it into pesos and purchased cloth for the manufacture of 300 dozens of ladies jeans. The balance was allegedly returned by him. However, the balance was later found missing. Resultantly Aurora/Uni-Group failed to produce the 700 dozens of ladies jeans resulting in a suit against them. Salazar was charged and convicted. His conviction was upheld even by the Supreme Court. However in this Motion for Reconsideration, the SC reversed and held he was innocent.

HELD: We find merit in the new motion. The elements of estafa under Article 315, par. 1(b) of the Revised Penal Code are the following: (a) that money, goods or other personal property is received by the offender in trust or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return the same; (b) that there be misappropriation or conversion of such money or property by the offender, or denial on his part of such receipt; (c) that such misappropriation or conversion or denial is to the prejudice of another; and (d) there is demand by the offended party to the offender. We reiterate that the contract between Skiva and Aurora was one of sale. After the perfection of the contract of sale, Mr. Werner Lettmayr, representing Aurora/Uni-Group, requested Skiva for advance payment in order to procure the raw materials needed for the 700-dozen ladies’ jeans. It was also Mr. Lettmayr who suggested that the advance payment be made to the joint account of himself and his wife, together with petitioner and his wife. As requested, $41,300.00 was transmitted by Skiva as advance payment. Despite the payment, there was delay in the performance of contract on the part of Aurora/Uni-Group. Petitioner and the OSG contend that under these facts, Skiva has no cause to complain that petitioner committed estafa. We agree. In Abeto vs. People, we held that “an advance payment is subject to the disposal of the vendee. If the transaction fails, the obligation to return the advance payment ensues but this obligation is civil and not of criminal nature.” In fine, the remedy of Skiva against Aurora/Uni-Group for breaching its contract is a civil, not a criminal suit.

Virgie Serona v Court of Appeals (2002)

FACTS: Leonida Quilatan delivered pieces of jewelry to Virgie Serona to be sold on commission basis. By oral agreement of the parties, petitioner shall remit payment or return the pieces of jewelry if not sold to Quilatan, both within 30 days from receipt of the items. Upon petitioner's failure to pay, Quilatan required her to execute an acknowledgment receipt indicating their agreement and the total amount due. Unknown to Quilatan, Serona had earlier entrusted the jewelry to one Marichu Labrador for the latter to sell on commission basis. Serona was not able to collect payment from Labrador, which caused her to likewise fail to pay her obligation to Quilatan. After demand, Quilatan filed a complaint with the

prosecutor and Serona was charged with estafa. The trial court found her guilty.

HELD: Serona did not ipso facto commit the crime of estafa through conversion or misappropriation by delivering the jewelry to a sub-agent for sale on commission basis. We are unable to agree with the lower courts' conclusion that this fact alone is sufficient ground for holding that petitioner disposed of the jewelry "as if it were hers, thereby committing conversion and a clear breach of trust." It must be pointed out that the law on agency in our jurisdiction allows the appointment by an agent of a substitute or sub-agent in the absence of an express agreement to the contrary between the agent and the principal. In the case at bar, the appointment of Labrador as petitioner's sub-agent was not expressly prohibited by Quilatan in the acknowledgement receipt. Neither does it appear that Serona was verbally forbidden by Quilatan from passing on the jewelry to another person before the acknowledgment receipt was executed or at any other time. Thus, it cannot be said that Serona 's act of entrusting the jewelry to Labrador is characterized by abuse of confidence because such an act was not proscribed and is, in fact, legally sanctioned.

Cristeta Chua Burce v Court of Appeals (2000)

FACTS: After finding a shortage of P150,000.00 in the vault of Metrobank, Calapan Branch, several investigations were carried out, all of them concluded that the person primarily responsible was the bank’s Cash Custodian, Cristeta Chua-Burce. She was found guilty of estafa by the trial court.

HELD: Petitioner herein being a mere cash custodian had no juridical possession over the missing funds. Hence, the element of juridical possession being absent, petitioner cannot be convicted of the crime of estafa under Article 315, No. 1 (b) of the Revised Penal Code. When the money, goods, or any other personal property is received by the offender from the offended party (1) in trust or (2) on commission or (3) for administration, the offender acquires both material or physical possession and juridical possession of the thing received. Juridical possession means a possession which gives the transferee a right over the thing which the transferee may set up even against the owner. In this case, petitioner was a cash custodian who was primarily responsible for the cash-in-vault. Her possession of the cash belonging to the bank is akin to that of a bank teller, both being mere bank employees. In People v. Locson, the receiving teller of a bank misappropriated the money received by him for the bank. He was found liable for qualified theft on the theory that the possession of the teller is the possession of the bank. We explained in Locson that — "The money was in the possession of the defendant as receiving teller of the bank, and the possession of the defendant was the possession of the bank. When the defendant, with grave abuse of confidence, removed the money and appropriated it to his own use without the consent of the bank, there was the taking or apoderamiento contemplated in the definition of the crime of theft." In the subsequent case of Guzman v. Court of Appeals, 28 a travelling sales agent misappropriated or failed to return to his principal the proceeds of things or goods he was commissioned or authorized to sell. He was, however, found liable for estafa under

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Article 315 (1) (b) of the Revised Penal Code, and not qualified theft. In the Guzman case, we explained the distinction between possession of a bank teller and an agent for purposes of determining criminal liability —

prior to or simultaneously with the commission of the fraud. The offended party must have relied on the false pretense, fraudulent act or fraudulent means of the accused-appellant and as a result thereof, the offended party suffered damages.

"The case cited by the Court of Appeals (People vs. Locson, 57 Phil. 325), in support of its theory that appellant only had the material possession of the merchandise he was selling for his principal, or their proceeds, is not in point. In said case, the receiving teller of a bank who misappropriated money received by him for the bank, was held guilty of qualified theft on the theory that the possession of the teller is the possession of the bank. There is an essential distinction between the possession by a receiving teller of funds received from third persons paid to the bank, and an agent who receives the proceeds of sales of merchandise delivered to him in agency by his principal. In the former case, payment by third persons to the teller is payment to the bank itself; the teller is a mere custodian or keeper of the funds received, and has no independent right or title to retain or possess the same as against the bank. An agent, on the other hand, can even assert, as against his own principal, an independent, autonomous, right to retain money or goods received in consequence of the agency; as when the principal fails to reimburse him for advances he has made, and indemnify him for damages suffered without his fault (Article 1915, [N]ew Civil Code; Article 1730, old)."

It has been proved in this case that accused-appellants represented themselves to private complainants to have the capacity to send domestic helpers to Italy, although they did not have any authority or license. It is by this representation that they induced private complainants to pay a placement fee of P150,000.00. Such act clearly constitutes estafa under Article 315 (2) of the Revised Penal Code.

Through false pretenses, fraudulent acts or means

People v Francisco Hernandez (2002) FACTS: Eight (8) informations for syndicated and large scale illegal recruitment and eight (8) informations for estafa were filed against accused-appellants, spouses Karl and Yolanda Reichl. The evidence for the prosecution consisted of the testimonies of private complainants; a certification from the Philippine Overseas Employment Administration (POEA) that Karl Reichl and Yolanda Gutierrez Reichl in their personal capacities were neither licensed nor authorized by the POEA to recruit workers for overseas employment; the receipts for the payment made by private complainants; and two documents signed by the Reichl spouses where they admitted that they promised to secure Austrian tourist visas for private complainants and that they would return all the expenses incurred by them if they are not able to leave by March 24, 1993, 3 and where Karl Reichl pledged to refund to private complainants the total sum of P1,388,924.00 representing the amounts they paid for the processing of their papers. The defense interposed denial and alibi. The trial court convicted accused-appellants of one (1) count of illegal recruitment in large scale and six (6) counts of estafa.

HELD: SC upheld the trial court stating that, the prosecution also proved the guilt of accused-appellants for the crime of estafa. A person who is convicted of illegal recruitment may, in addition, be convicted of estafa under Art. 315 (2) of the Revised Penal Code provided the elements of estafa are present. Estafa under Article 315, paragraph 2 of the Revised Penal Code is committed by any person who defrauds another by using a fictitious name, or falsely pretends to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of similar deceits executed

Roberto Erquiaga vs Court of Appeals ( 2001) FACTS: Honesta Bal is a businesswoman who owned a bookstore. Sometime in May 1989, she was contacted by Manuel Dayandante @ Manny Cruz who offered to buy her land in Pili, Camarines Sur. He told Honesta that the company he represented was interested in purchasing her property. Her daughter and she met Dayandante and a certain Lawas (Rodolfo Sevilla) at the Aristocrat Hotel. They said they worked as field purchasing representative and field purchasing head, respectively, of the Taiwanese Marine Products. They persuaded Honesta to purchase cans of a marine preservative which, could be bought for P1,500 each from a certain peddler. In turn, they would buy these cans from her at P2,000 each. The following day, May 20, 1989 Glenn Orosco, appeared at Honesta's store and introduced himself as an agent, a.k.a. "Rey," who sold said marine preservative. Honesta purchased a can which she sold to Dayandante for P1,900. The following day, May 21, Orosco brought five more cans which Honesta bought and eventually sold to Lawas. It was during this transaction that petitioner Roberto Erquiaga, a.k.a. "Mr. Guerrerro," was introduced to Honesta to ascertain whether the cans of marine preservative were genuine or not. On May 24, Orosco delivered 215 cans to Honesta. Encouraged by the huge profits from her previous transactions, she purchased all 215 cans for P322,500. She borrowed the money from a Jose Bichara at 10% interest on the advice of Erquiaga who lent her P5,000.00 as deposit or earnest money and who promised to shoulder the 10% interest of her loan. Soon after the payment, Lawas, Dayandante, Erquiaga, and Orosco vanished. Realizing that she was conned, Honesta reported the incident to the National Bureau of Investigation (NBI) which, upon examination of the contents of the cans, discovered that these were nothing more than starch. On December 4, 1989, an Information for Estafa under Article 315, paragraph 2 (a) of the Revised Penal Code, was filed against Roberto Erquiaga, Glenn Orosco, Pastor Lawas and Manuel Dayandante. HELD: That petitioners had conspired with each other must be viewed not in isolation from but in relation to an alleged plot, a sting, or "con operation" known as "negosyo" of their group. Further, whether such a well-planned confidence operation resulted in the consummated crime of estafa, however, must be established by the prosecution beyond reasonable doubt. The elements of estafa or swindling under paragraph 2 (a) of Article 315 of the Revised Penal Code 18 are the following: 1. That there must be a false pretense, fraudulent act or fraudulent means.

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2. That such false pretense, fraudulent act or fraudulent means must be made or executed prior to or simultaneously with the commission of the fraud. 3. That the offended party must have relied on the false pretense, fraudulent act, or fraudulent means, that is, he was induced to part with his money or property because of the false pretense, fraudulent act, or fraudulent means. 4. That as a result thereof, the offended party suffered damage. Erquiaga misrepresented himself as a "verifier" of the contents of the cans. He encouraged Honesta to borrow money. Petitioner Orosco misrepresented himself as a seller of marine preservative. They used aliases, Erquiaga as "Mr. Guerrero"; and Orosco as "Rey". Honesta fell for these misrepresentations and the lure of profits offered by petitioners made her borrow money upon their inducement, and then petitioners disappeared from the scene after taking the money from her.

Elsa Jose v People [G.R. No. 148371. August 12, 2004.] FACTS: 24 November 1994, Regie Ramos del Rosario went with her aunt Yolanda B. Bautista to the office of Elsa Ramos. They asked Ramos whether she was a travel agent. Ramos told del Rosario that she was a ‘professional travel agent’ and would assist her in going to Japan, as the former had ‘several connection(s) at the Japanese Embassy.’ Ramos stated she could help in the processing of passport, visa and round trip ticket. Del Rosario gave P30,000.00 ‘as initial payment and another P17,000.00 at a later date. Ramos assured them that the visa would be obtained soon and the P17,000.00 was in payment of the round trip ticket. Further, Ramos asked for another P57,000.00 stating that part of the money would be used to expedite the release of the visa. They were assured that she would be able to leave for Japan with her mother. All these payments were accompanied by a written receipt. Thereafter, Del Rosario kept following up her papers with Ramos who insisted on her prior assurances that the visa would soon be released. Del Rosario thereafter filed a case for estafa against Ramos, the RTC found her guilty as did the Court of Appeals.

HELD: Deceit refers to a “false representation of a matter of fact (whether by words or conduct, by false or misleading allegations, or by concealment of that which should have been disclosed) which deceives or is intended to deceive another so that he shall act upon it to his legal injury.” On record are, on the one hand, the pieces of evidence submitted by the People of the Philippines establishing how petitioner held herself out as a professional travel agent who could process and obtain for private respondent a passport, as well as a round-trip ticket to and a visa for Japan. This charade convinced the latter and her family to part with their P104,000. On the other hand is the testimony of petitioner denying she ever made such misrepresentation. The prosecution has proven beyond reasonable doubt that the accused made false pretenses as to her qualifications and the transactions she had purportedly entered into as a professional travel agent, who could assist in processing private respondent’s travel papers. Undisputedly, she was not a travel agent. Neither was she licensed to engage in the business of travel agency. I ndeed, private respondent has shown her gullibility and perhaps even foolishness in believing petitioner and in

consequently parting with her P104,000; Others more sensible might not have done so in a similar situation. But such naivete cannot absolve petitioner of criminal liability. It has been established with moral certainty that she intentionally committed a crime in violation of the law enacted precisely to protect not only the wary and the wily, but more so the gullible and the guileless.

Eliza Pablo v People (2004] FACTS: The complainant Evangeline Bates was approached by Eliza Pablo and Felomina Jacobe and Victoria Roberto Bates. Eliza introduced Victoria and Felomina to her. The three convinced her to contribute P330,000.00 as her share in the payment of the back taxes due on a parcel of land owned by the late Pulmano Molintas in Baguio City, and once the title is validated she will be assigned a 2,500-square meter portion of the land. Because Eliza is her townmate and since Victoria assured her that her son is married to a daughter of Pulmano, she agreed. Evangeline gave more than P330,000.00, or the total amount of P332,000.00, because the three accused represented to her that they needed expenses in following up the papers of the land. Subsequently, Evangeline found out that instead of paying for the back taxes and validation of the property, the three accused divided the money among themselves. Evangeline demanded the return of her money and the three accused executed their respective promissory notes. Failing to pay, Evangeline filed a criminal complaint against them.

HELD: Deceit is defined as the false representation of a matter of fact, whether by words or conduct, by false or misleading allegations, or by concealment of that which should have been disclosed which deceives or is intended to deceive another so that he shall act upon it to his legal injury. False pretense is any deceitful practice or device by which another is led to part with the property in the thing taken. The deceit or false pretense employed by petitioners is the fact that they assured complainant that the amount of P330,000.00 delivered to them and accused Victoria by Evangeline was to pay the back taxes of a certain parcel of land so that a title may be secured and complainant will be given 2,500 square meters of the subject land. The failure of petitioners and accused Roberto in not paying the back taxes and in misappropriating the money to their own personal use, constitute the crime of Estafa. Even if the land exists, the crime of Estafa is committed when petitioners and accused Roberto convinced complainant to part with her money on the basis of their assurance that they will pay the back taxes due on the land so as to secure a title over the land and a portion thereof titled in the name of complainant.

Bouncing Checks BP 22

People v Grace Flores (2002)

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FACTS: Grace Flores issued a check in payment of one (1) man's ring with a 5.8 ct. diamond from Pacita Del Rosario. The check was dishonored and payment thereof refused for the reason "ACCOUNT CLOSED", notwithstanding due notice to her of such dishonor of said check, failed and refused to deposit the necessary amount of said check. Cases for Estafa and violation of B.P 22 were filed. The RTC found Flores guilty.

HELD: The elements of estafa, as defined under Art. 315, par. 2(d) of the Revised Penal Code and amended by Republic Act No. 4885, are: (1) that the offender postdated or issued a check in payment of an obligation contracted at the time of the postdating or issuance; (2) that at the time of the issuance of the check, the offender had no funds in the bank or the funds deposited were insufficient to cover the amount of the check; and (3) that the payee has been defrauded. 10 These elements are present in this case. Accusedappellant admitted that she issued PCIB Check No. 558574, dated October 20, 1992, for P662,250.00 to Pacita G. Del Rosario. 11 The check was issued as payment for a ring and the P250.00 transportation fare which accused-appellant received from complainant. The fraudulent intent of accused-appellant had been proven to exist at the time of the issuance of the check. She misrepresented to complainant that she was financially stable and that her business was flourishing. In reality, however, accused-appellant had no funds sufficient to cover the check she issued to complainant. It is thus clear that she obtained the amounts of P662,000.00 and P250.00 through deceit. As already stated, the account was closed on the very date of the postdated check issued to complainant.

People v Alexander Dinglasan (2002)

FACTS: Alexander Dinglasan was the owner and operator of Alexander Transport, while private complainant Charles Q. Sia is the owner of Schanika Enterprises engaged in retailing nylon tires. Dinglasan issued three checks as payment for tire purchases. When the checks fell due, Sia deposited them, but the drawee bank, Banco de Oro, dishonored these for insufficiency of funds. He then tried to call Dinglasan several times, but his calls were unanswered. Sia, with the assistance of a lawyer, then sent appellant a demand letter. All he got were promises that appellant would pay the amounts due, 13 finally prompting him to hale appellant to court. Dinglasan vigorously denied any intent to deceive or defraud Sia. He vehemently insisted that his refusal to pay Sia was primarily due to the poor quality of the tires sold him by the latter. The trial court convicted Dinglasan.

HELD: Dinglasan was charged and convicted of estafa under Article 315 (2) (d) of the Revised Penal Code. 22 The elements of the offense are: (1) postdating or issuing a check in payment of an obligation contracted at the time the check was issued; (2) lack of sufficient funds to cover the check; (3) knowledge on the part of the offender of such circumstances; and (4) damage to the complainant. The first element of the offense requires that the dishonored check must have been postdated or issued at the time the obligation was contracted. In other words, the date the obligation was entered into, being the very date the check was issued or postdated, is a material

ingredient of the offense. Hence, not only must said date be specifically and particularly alleged in the information, it must be proved as alleged. In the present case, the prosecution's evidence clearly and categorically shows that there was no transaction between the parties on July 30, 1994, for which Check No. 029014 was issued. In other words, no obligation was contracted on July 30, 1994, for which Check No. 029014 was allegedly postdated by appellant. The situation obtains similarly regarding Check No. 029020. Again, there was no obligation contracted by the parties on July 24, 1994 for which appellant allegedly postdated another check. Evidently, the first element of the offense was neither correctly alleged nor proven by the prosecution. Hence, appellant cannot be charged much less found guilty of estafa with respect to Checks Nos. 029014 and 029020.

People v Aloma Reyes (2005)

FACTS: Aloma Reyes, together with her daughter, issued Jules Alabastro a check for rediscounting. He was allegedly lured to part with his money due to their seeming honest representations that the check was good and would never bounce. However, when the check was presented to the drawee bank for encashment, the same was dishonored for the reason "ACCOUNT CLOSED" and after having been notified by such dishonor said accused failed and refused to redeem said check despite repeated demands.

HELD: Appellant avers that the subject check does not fall within the meaning of Section 185 of the Negotiable Instruments Law which defines a "check" as a "bill of exchange drawn on a bank payable on demand." First, the NOW check is drawn against the savings, not the current account, of appellant. Second, it is payable only to a specific person or the "payee" and is not valid when made payable to "BEARER" or to "CASH." Appellant quotes the restriction written on the face of a NOW check: "NOW" shall be payable only to a specific person, natural or juridical. It is not valid when made payable to "BEARER" or to "CASH" or when [i]ndorsed by the payee to another person. Only the payee can encash this "NOW" with the drawee bank or deposit it in his account with the drawee bank or with any other bank. Appellant posits that this condition strips the subject check the character of negotiability. Hence, it is not a negotiable instrument under the Negotiable Instruments Law, and not the "check" contemplated in Criminal Law. We disagree. Section X223 of the Manual of Regulations for Banks defines Negotiable Order of Withdrawal (NOW) Accounts as interest-bearing deposit accounts that combine the payable on demand feature of checks and the investment feature of savings accounts. The fact that a NOW check shall be payable only to a specific person, and not valid when made payable to "BEARER" or to "CASH" or when indorsed by the payee to another person, is inconsequential. The same restriction is produced when a check is crossed: only the payee named in the check may deposit it in his bank account. If a third person accepts a cross check and pays cash for its value despite the warning of the crossing, he cannot

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be considered in good faith and thus not a holder in due course. The purpose of the crossing is to ensure that the check will be encashed by the rightful payee only. Yet, despite the restriction on the negotiability of cross checks, we held that they are negotiable instruments. To be sure, negotiability is not the gravamen of the crime of estafa through bouncing checks. It is the fraud or deceit employed by the accused in issuing a worthless check that is penalized. Deceit, to constitute estafa, should be the efficient cause of defraudation. It must have been committed either prior or simultaneous with the defraudation complained of. There must be concomitance: the issuance of a check should be the means to obtain money or property from the payee. Hence, a check issued in payment of a pre-existing obligation does not constitute estafa even if there is no fund in the bank to cover the amount of the check.

her. She claimed that she was the industrial partner as she did all the legwork in getting the projects. They then shared in the profits after deducting all the miscellaneous expenses. The trial court found appellant guilty beyond reasonable doubt of estafa committed by means of false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud, that is by postdating a check or issuing a check in payment of an obligation when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check. HELD: We find the appeal meritorious. The transaction between appellant and the Abagat spouses, in our view, was one for a loan of money to be used by appellant in her business and she issued checks to guarantee the payment of the loan. As such, she has the obligation to make good the payment of the money borrowed by her. But such obligation is civil in character and in the absence of fraud, no criminal liability under the Revised Penal Code arises from the mere issuance of postdated checks as a guarantee of repayment.

Manuel Nagrampa v People (2002)

Pio TImbal v Court of Appeals (2001)

FACTS: Nagrampa issued 2 checks (Php75,000 each) to Fedcor Trading Corp represented by Federico Santander on August 31, 1989 and September 30, 1989 drawn against the Security Bank . When said checks were presented to the bank for payment, the same were dishonored for the reason that the drawer did not have any funds therein. Despite notice of dishonor thereof, Nagrampa failed and refused to redeem or make good said checks, 2 cases were filed against him. The trial court found Nagrampa guilty of two counts of violation of the Bouncing Checks Law and sentencing him to suffer imprisonment for two years and pay FEDCOR P150,000.

FACTS: A husband was held by the court a quo accountable for estafa through false pretense on account of a check issued by his wife. Judy I. Bigornia delivered hog meat to the spouses Timbal at their stall located at the Farmer's Market. In payment, Maritess Timbal issued in favor of Bigornia a check for P80,716.00. The husband- Pio Timbal was present when the check was issued and handed over by his wife Maritess to Bigornia. When the latter presented the check to the bank for encashment, it was dishonored on the ground that the account was closed. Pio Timbal contended that he had no active participation in the business of his wife and claimed that when the check was issued by his wife he was manning his own restaurant.

Petitioner appealed the decision to the Court of Appeals. The appeal was docketed as CA-G.R. CR. No. 18082. Upon noticing that the 30 September 1993 Decision of the trial court did not resolve the issue of petitioner's liability for estafa, the Court of Appeals issued on 19 May 1998 a resolution 18 ordering the return of the entire records of the case to the trial court for the latter to decide the estafa case against petitioner.

HELD: We l sustain the conviction for the crime of estafa. Settled is the rule that, to constitute estafa, the act of postdating or issuing a check in payment of an obligation must be the efficient cause of defraudation and, as such, it should be either prior to, or simultaneous with, the act of fraud. The offender must be able to obtain money or property from the offended party because of the issuance of the check, or the person to whom the check was delivered would not have parted with his money or property had there been no check issued to him. Stated otherwise, the check should have been issued as an inducement for the surrender by the party deceived of his money or property, and not in payment of a pre-existing obligation. People v. Rica Cuyugan (2002) FACTS: Rica G. Cuyugan issued to Norma Abagat several checks in payment of supplies she wanted to buy for the Philippine Armed Forces. When the checks were presented for payment, they were all dishonored either on account of DAIF (drawn against insufficient funds) or for reason of ACCOUNT CLOSED. Despite repeated demands, appellant failed to make good the checks, which constrained the Abagat spouses to file a complaint for estafa against Cuyugan. Cuygan claimed that the Abagat spousesand she were partners in obtaining construction projects with the Philippine Army. She issued postdated checks as proof that the Abagat spouses had invested their money with

HELD: The petition has merit. The decision of the trial court, as well as that of the appellate court, would reveal that the main basis used in convicting petitioner was the fact of his presence at the time of the issuance of the check by his wife. Nothing else was shown nor reflected in the appealed decision that could indicate any overt act on the part of petitioner that would even remotely suggest that he had a hand in dealing with Bigornia. Timbal’s mere presence at the scene of a crime would not by itself establish conspiracy, absent any evidence that he, by an act or series of acts, participated in the commission of fraud to the damage of the complainant.

People v. Ernst Holzer (2000) FACTS: Ernst Holzer et al were the owners of MGF ELECTRONICS SATELLITE SUPPLY, a business engaged in selling and installing satellite antenna system. They installed a system in the house of Bernhard Forster. Forster was not satisfied with the satellite antenna installed and the equipment which came with it which he thought were second-hand. Moreover, he wanted a bigger antenna. He was assured by accused-appellant Holzer that should new equipment arrive from abroad, the used equipment would be replaced and another antenna would be given. Holzer informed complainant that new equipment had arrived in Manila. His money, however, was not enough to secure the release of the equipment from the Bureau of Customs. For this reason, he asked complainant to lend him P100,000.00. Complainant agreed and issued a check for P100,000.00 to accused-appellant Holzer. In exchange, the latter issued a post dated check. Before the due date, accused-appellant Holzer asked the complainant not to deposit the check on August 1,

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1995. Four days later, accused-appellant again asked the latter not to deposit the check because the money from Switzerland to cover the check had not yet arrived. Despite the request, however, complainant deposited the check on August 9, 1995. As to be expected, the check was dishonored for having been drawn against insufficient funds. On the same day, complainant filed a complaint for estafa

denominated as crimes mala in se. The principal consideration is the existence of malicious intent. There is a concurrence of freedom, intelligence and intent which together make up the "criminal mind" behind the "criminal act." Thus, to constitute a crime, the act must, generally and in most cases, be accompanied by a criminal intent. Actus non facit reum, nisi mens sit rea. No crime is committed if the mind of the person performing the act complained of is innocent. As we held in Tabuena vs. Sandiganbayan: XXX

HELD: In view of the amendment of Art. 315(2)(d) by R.A. No. 4885, the following are no longer elements of estafa:

The rule was reiterated in People v. Pacana, although this case involved falsification of public documents and estafa:

1. knowledge of the drawer that he has no funds in the bank or that the funds deposited by him are not sufficient.

"Ordinarily, evil intent must unite with an unlawful act for there to be a crime. Actus non facit reum, nisi mens sit rea. There can be no crime when the criminal mind is wanting."

2. failure to inform the payee of such circumstance 18

American jurisprudence echoes the same principle. It adheres to the view that criminal intent in embezzlement is not based on technical mistakes as to the legal effect of a transaction honestly entered into, and there can be no embezzlement if the mind of the person doing the act is innocent or if there is no wrongful purpose.

The drawer of the dishonored check is given three days from receipt of the notice of dishonor to deposit the amount necessary to cover the check. Otherwise, a prima facie presumption of deceit will arise which must then be overcome by the accused.

People v. Ojeda (2004) FACTS: Cora Abella Ojeda used to buy fabrics (telas) from complainant Ruby Chua. For the three years approximately she transacted business with Chua, appellant used postdated checks to pay for the fabrics she bought. On November 5, 1983, appellant purchased from Chua various fabrics and textile materials worth P228,306 for which she issued 22 postdated checks bearing different dates and amounts. The 22 checks were all dishonored. Demands were allegedly made to make good the dishonored checks, to no avail. Estafa and BP 22 charges were thereafter filed against Ojeda. The trial court convicted appellant of the crime of estafa as defined and penalized under paragraph 2(d) of Article 315 of the Revised Penal Code (RPC), and sentenced her to reclusion perpetua. The trial court also convicted appellant of violation of BP 22 for issuing bouncing checks. However, the court a quo held her guilty of only 14 counts out of the 22 bouncing checks issued.

HELD: Under paragraph 2(d) of Article 315 of the RPC, as amended by RA 4885, 20 the elements of estafa are: (1) a check is postdated or issued in payment of an obligation contracted at the time it is issued; (2) lack or insufficiency of funds to cover the check; (3) damage to the payee thereof. Deceit and damage are essential elements of the offense and must be established by satisfactory proof to warrant conviction. Thus, the drawer of the dishonored check is given three days from receipt of the notice of dishonor to cover the amount of the check. Otherwise a prima facie presumption of deceit arises. The prosecution failed to prove deceit in this case. The prima facie presumption of deceit was successfully rebutted by appellant's evidence of good faith, a defense in estafa by postdating a check. Good faith may be demonstrated, for instance, by a debtor's offer to arrange a payment scheme with his creditor. In this case, the debtor not only made arrangements for payment; as complainant herself categorically stated, the debtor-appellant fully paid the entire amount of the dishonored checks. It must be noted that our Revised Penal Code was enacted to penalize unlawful acts accompanied by evil intent

The accused may thus prove that he acted in good faith and that he had no intention to convert the money or goods for his personal benefit. We are convinced that appellant was able to prove the absence of criminal intent in her transactions with Chua. Had her intention been tainted with malice and deceit, appellant would not have exerted extraordinary effort to pay the complainant, given her own business and financial reverses.

People v. Dimalanta (2004) FACTS: Josefina Dimalanta who was then employed at the Caloocan City Engineer's Office, called up complainant Elvira D. Abarca on the telephone to express her desire to purchase jewelry. Complainant went to Dimalanta’s house where the latter purchased twelve pairs of jewelry. In payment thereof, appellant issued twelve postdated checks with the representation that the same will be sufficiently funded on their respective maturity dates. The first check issued by Dimalanta was honored and paid by the drawee bank. However, the remaining eleven checks were all returned unpaid since the account was closed. On demand Dimalanta failed to make good on the checks. The trial court convicted Dimalanta of Estafa.

HELD: Damage and deceit are essential elements of the offense and must be established with satisfactory proof to warrant conviction. The false pretense or fraudulent act must be committed prior to or simultaneously with the issuance of the bad check. In the case at bar, the prosecution failed to establish beyond a shadow of a doubt that appellant employed deceit. Its evidence was overcome by the defense's proof that the pieces of jewelry were not purchased by appellant for her own use; rather the same were merely given to her for resale. We find that appellant acted in good faith during the transaction. After the first check was dishonored, she exerted best efforts to make good the value of the check, albeit only to the extent of P25,000.00. Good faith is a defense to a charge of Estafa by postdating a check. This may be manifested by appellant's act of offering to make arrangements with complainant as to the manner of payment.

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BP 22



The check may be drawn and issued to "apply on account of for value": BP 22 does not make a distinction as to whether the bad check is issued in payment of an obligation or to merely guarantee an obligation



Illustration for Section 1, par 1, element 4:

An Act Penalizing the Making or Drawing and Issuance of a Check Without Sufficient Funds or Credit and For Other Purposes

Section 1 BP 22 may be violated in TWO ways

Elements of the offense defined in the first paragraph of Section 1: 1. 2. 3.

4.

That a person makes or draws and issues any check That the check is made or drawn and issued to apply on account or for value That the person who makes or draws and issues the check knows at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment That the check a. is subsequently dishonored by the drawee bank for insufficiency of funds or credit, or b. would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment

Elements of the offense defined in the second paragraph of Section 1: 1. 2.

3. 



That a person has sufficient funds in or credit with the drawee bank when he makes or draws and issues a check That he fails to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of 90 days from the date appearing thereon That the check is dishonored by the drawee bank Gravamen of BP 22: issuance of the check, not the payment of the obligation. The law has made the mere act of issuing a bum check a malum prohibitum BP 22 vs. Estafa under Article 315 par 2 (d): 1. Unlike estafa, element of DAMAGE is NOT REQUIRED in BP 22

There was a mistake in naming the payee of the check; so the drawer ordered the bank to stop payment; and it appeared that the drawer knew at the time that the check was issued that he had no sufficient funds in the bank. In this case, NO VIOLATION OF BP 22! Even if the check would have been dishonored for insufficiency of funds had he not ordered the bank to stop payment, there was a VALID reason (wrong payee) for ordering the bank to stop payment.



BP 22: person liable when the check is drawn by a corporation, company, or entity: the person/s who ACTUALLY SIGNED the check in behalf of such drawer

Section 2

Section establishes a prima facie evidence of "knowledge of insufficiency ": when payment of the check is refused by the drawee because of insufficient funds / credit when the check is presented within 90 days from the date of such check

Exception: a. b.

when the maker or drawer pays the holder thereof of the amount due thereon or makes arrangements for payment in full by the drawee of such check within 5 banking days after receiving notice that such check has not been paid by the drawee

Section 3

Section 3 requires the drawee 1.

2.

Article 315 par 2 (d) of estafa has DECEIT as an element. BP 22 does NOT require such element.

3.

Also, the mere fact of postdating or issuing a check when the drawer had no or insufficient funds in the bank makes someone liable under Article 315 par 2(d) of estafa. BP 22, 1 st paragraph requires knowledge of insufficient funds.

in case where drawee refuses to pay the check to the holder:  Write, print, or stamp on the check or to be attached thereto the reason for dishonoring.

2.

in case drawee bank received an order to stop payment, it should state in the notice that there were no sufficient funds in or credit with it for the payment in full of the check, if such be the fact.

Introduction in evidence of any unpaid and dishonored

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check with the drawer's refusal to pay indicated thereon or attached thereto is prima facie evidence of: 1. 2. 3.

the making or issuance of the check the due presentment to the drawee for payment and the dishonor thereof; and the fact that the check was properly dishonored for the reason indicated thereto

Nievas vs. Dacuycuy

Lim issued a memorandum check that was subsequently dishonored.

HELD: Memorandum Check (one used as evidence for a debt) falls within coverage of BP 22. Memorandum check is NOT a PN.

Lim Lao vs. CA

Nievas paid 9 checks to Shell that were all dishonored. He was charged with 9 counts of estafa under the RPC. 1 count of violation of BP 22. Nievas invokes double jeopardy.

Lim was an officer in a company where she signed checks, while it was her superior who filled the blanks. Check which she signed as issuer was dishonored. Convicted for violating BP 22 as law creates a presumption of knowledge of the insufficiency of funds when check is issued.

HELD: No double jeopardy as they are separate offenses. Estafa needs deceit and damage, not for pre-existing obligations, crime against poperty and is mala in se. BP 22: deceit and damage not required because mere issuance gives presumption of guilt, can be for a pre-existing debt, crime against public order and is mala prohibitum.

HELD: NOT guilty. Lim lacked actual knowledge of the insufficiency of funds. Presumption in law is rebuttable by contrary evidence. Also, no notice of the dishonor was given to her; notice only given to the employer which is not sufficient as law requires personal notice.

People vs. Gorospe

Parulan paid check in Bulacan. Check was forwarded in BPI Pampanga, then dishonored. Case was filed in Pampanga but was dismissed, as the court had no jurisdiction on the case.

HELD: Pampanga court also has jurisdiction! Violation of BP 22 AND estafa are transitory crimes. Deceit happened in Pampanga where it was uttered/delivered while the damage was done in Bulacan where it was issued.

Idos vs. CA

Idos and Alarilla had a partnership that was terminated with each entitled to P1.8M each. Idos issued 4 postdated checks - 1 was dishonored.

HELD: Not guilty as the check was NOT issued for a debt but as a collateral or evidence of the other partners share.

Sycip vs. CA Que vs. People

Que issued checks in Quezon City. Checks were used to pay for the purchase made in Sta. Mesa. Checks were issued NOT to pay for an obligation but just to guarantee payment. Checks later dishonored.

HELD: QC RTC has jurisdiction. Fact that checks was issued to guarantee a debt NOT important as law does not distinguish-- included as long as it was an issued check that subsequently bounced.

Accused here bought a townhouse unit from FRC. Accused issued 48 postdated checks for the balance. However, due to the defects and incomplete features of the unit, accused suspended payments. FRC however continued to present the checks for payment thus always forcing him to issue stop order payments. The bank then advised accused to just close the account in order to save on hefty bank charges upon every stop order. It is here that 6 checks were presented by FRC but were dishonored. Accused convicted under BP22.

HELD: Accused not guilty. 2nd element of BP22 (knowledge by the issuer of the check that he does not have sufficient funds) not proven. Proven that there was sufficient funds in the account and that it was closed not for insufficiency but upon the banks advice to save on charges.

People vs. Nitafan

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Other statutes can be used as a valid defense under BP22. CAB, PD957 that governs sales of townhouses allows the buyer to suspend payments until the developer has complied with its obligations to properly furnish the unit. BP22 and PD957 must be construed together in order to harmonize their application.

Article 316 only penalizes only those who PRETEND to be the owner of property. Where the accused CLAIMS to be the owner, especially if he has a Certificate of Title, there was no pretension even if his ownership is defective and later compelled to return the property to the person found to be the true owner of the property.

Even if the deceit is practiced against the second purchaser and the damage is incurred by the first purchaser, there is violation of Art 316 par 1. Article 316. Other forms of swindling

I.

Paragraph 1: By conveying, selling, encumbering, or mortgaging any real property, pretending to be the owner of the same.

Elements: 1. 2. 3. 4.

That the thing be real property, such as a parcel of land or a building That the offender who is not the owner of said property should represent that he is the owner thereof That the offender should have executed acts of ownership (selling, leasing, encumbering, or mortgaging the real property) That the act be made to the prejudice of a. the owner or b. a third person

A sold a parcel of land to B. Later, A sold the same parcel of land to C, representing to the latter that he (A) was still the owner thereof. C registered the sale in his favor. Consequence: B lost the property due to non-registration in his favor.

Hence, damage fell on B, the first purchaser, while deceit was practiced against C, second purchaser. A will still be liable under Art 316 par 1 if B files a crim case.

Mere intent to cause damage NOT sufficient. There must be actual damage. In fact, fine prescribed is based on the damage caused

Art 316 par 1 vs. Art 315 par 2(a) Example:

A sold a parcel of land to B. Later, A sold the same parcel of land to C, representing to the latter that he (A) was the owner thereof. At the time he sold the land to C, A was no longer the owner of the property.

The thing disposed of must be real property

If property is chattel: ESTAFA!

There must be EXISTING real property

If accused sold non-existent land, he is guilty of estafa by means of false pretenses.

Deceit consisting in false pretense

Art 316 par 1: the offender exercises acts of ownership over the property as part of the false representation. On the other hand, Art 315 par 2(a) does not need this circumstance.

II.

Paragraph 2: By disposing of real property as free from encumbrance, although such encumbrance be not recorded.

Elements: 1. 2. 3. 4.

That the thing disposed be real property That the offender knew that the real property was encumbered, whether the encumbrance be recorded or not. That there must be express representation by the offender that the real property is free from encumbrance That the act of disposing real property be made to the damage of another

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A mortgaged his property to B. Later, A, misrepresenting that the property is free from encumbrance, mortgaged it again, this time to C.

This paragraph applies whether the property is registered under the Spanish system or under the Land Registration Act.

But if C knew that the property had already been mortgaged to B, C cannot complain, as there is neither deceit nor fraud. III. "Shall dispose of the same"

The act constituting the offense is the DISPOSING of the real property FALSELY REPRESENTING that it is free from encumbrance. "Shall dispose": includes encumbering or mortgaging. "Encumbrance": every right or interest in the land existing in favor of third persons     

Mortgage Ordinary lease Attachment Lien of a judgment Execution sale

The offended party must have been deceived, that is, he would not have granted the loan had he known that the property was already encumbered.

When the loan HAD ALREADY BEEN GRANTED when defendant later offered the property as security for the payment of the loan, Article 316, par 2 is NOT applicable

Paragraph 3: By wrongful taking by the owner of his personal property from its lawful possessor

Elements: 1. 2. 3. 4.

That the offender is owner of personal property That the personal property is in the lawful possession of another That the offender wrongfully takes it from its lawful possessor. That prejudice is caused to the possessor or third person

Example:

Accused pawned his watch to complainant. Later, pretending to redeem watch, accused asked offended party to give him the watch. Once getting hold of his watch, he ran away without paying the loan.

Note: not theft an owner cannot be held guilty of theft of his own property.

Offender owner of personal property Conflicting jurisprudence: "Although such encumbrance be not recorded"

If third person and his purpose in taking it is to return it to the owner, the crime is THEFT.

Notwithstanding this phrase, some cases held that the encumbrance must be legally constituted! In these cases, since the encumbrances were NOT registered, accused were acquitted. In lawful possession of another Thing disposed must be REAL property

If the thing encumbered and disposed is personal property, Article 319 applies (punishing one who sells or pledges personal property already subject to encumbrance.)

Finder of a lost thing is NOT a lawful possessor, it being the obligation of a finder to give the thing to the owner or to the authorities.

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If owner takes the thing from a bailee through (1) VIOLENCE, and (2) WITH INTENT TO GAIN/ CHARGE THE BAILEE WITH ITS VALUE the crime is ROBBERY.

If owner takes the thing from a bailee through (1) VIOLENCE and (2) WITHOUT INTENT TO GAIN, crime is GRAVE COERCION V. If owner took the thing (1) without consent and knowledge of possessor and (2) later charged possessor of the value of the property, crime is ESTAFA.

"To the prejudice of possessor or third person"

Example: A pledged his watch to B, his dorm mate to secure a loan of P3000. One night, A took the watch from the drawer of B without B's consent and knowledge and used it for the night. A returned later and was about to put back the watch in the drawer when B surprised A (Bulaga!!!)

By accepting any compensation for services not rendered or for labor not performed

Elements: 1. 2.

Compensation wrongfully received (accepting compensation for service not rendered nor performed) Malicious failure to return the compensation wrongfully received (fraud)

There must be fraud in this crime, otherwise, it will only be a case of solutio indebiti under the Civil Code.

VI. Is A liable under 316, par 3? NO. THERE WAS NO DAMAGE CAUSED TO B.

Paragraph 6: By selling, mortgaging, or encumbering real property or properties with which the offender guaranteed the fulfillment of his obligation as surety

Elements: IV.

By executing any fictitious contract to the prejudice of another

Elements: 1. 2.

Fictitious contract Damage to another

1. 2. 3. 4.

Example: A person who simulates (consideration is fictitious) a conveyance to another for the purpose of defrauding a creditor.

Note: The example above may become a crime of fraudulent insolvency (Art 314) if the conveyance is real and made for a consideration.

That the offender is a surety in a bond given in a criminal or civil action. That he guaranteed the fulfillment of such obligation with his real property/properties That he sells, mortgages, or, in any other manner encumbers said real property That such sale, mortgage or encumbrance is a. without express authority from the court b. made before the cancellation of his bond, or c. made before being relieved from the obligation contracted by him



There must be damage caused under this article.

Article 317. Swindling a minor

Elements: 1. 2.

That the offender takes advantage of the inexperience or emotions or feelings of a minor. That he induces such minor to: a. assume an obligation b. to give release, or C2005 Criminal Law 2 Reviewer

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3.

4.

c. to execute a transfer of any property right That the consideration is a. some loan of money b. credit, or c. other personal property That the transaction is to the detriment of such minor.

Note: Only personal property, since a minor can not convey real property

District Auditor Veloso approved 24 vouchers that led to the disbursement of 23 checks for a project that was anomalous. He was convicted of Estafa.

HELD: Guilty of Estafa as he was duty bound to ensure the veracity of the documents. He was negligent as he approved the vouchers that had mistakes which were detectable by just using the basic skills of an auditor.

PRESIDENTIAL DECREE NO. 1689

Article 318. Other deceits

Elements: A. 1. 2.

By defrauding or damaging another by any other deceit not mentioned in the proceeding articles

B. 1. 2. 3.

By interpreting dreams, making forecasts, telling fortunes, or by taking advantage of the credulity of the public in any other similar manner For profit or gain Damage to others

Increasing The Penalty For Certain Forms Of Swindling Or Estafa Any person or persons who shall commit estafa or other forms of swindling as defined RPC 315 and 316 shall be punished by life imprisonment to death if the swindling (estafa) is committed by a syndicate consisting of five or more persons formed with the intention of carrying out the unlawful or illegal act, transaction, enterprise or scheme, and the defraudation results in the misappropriation of money contributed by stockholders, or members of rural banks, cooperative, "samahang nayon(s)", or farmers association, or of funds solicited by corporations/associations from the general public.

When not committed by a syndicate as above defined, the penalty imposable shall be reclusion temporal to reclusion perpetua if the amount of the fraud exceeds 100,000 pesos.

Note: As in other cases of estafa, DAMAGE should always be present. Article 319. Removal, sale or pledge of mortgaged property Villaflor vs. CA

Elements: Villaflor borrowed P1,000, in turn he offered his car as collateral (Chattel mortgage instituted). Villaflor failed to pay the debt but the car could not be foreclosed as the car was already repossessed. Villaflor was convicted of Estafa.

HELD: Gulty of Estafa as there was deceit – he represented self as the owner of the car and failed to reveal that the car was already mortgaged.

2 Acts punishable: A. 1. 2. 3. 4. 5.

Veloso vs. CA

That personal property is validly mortgaged under the Chattel Mortgage Law That the offender knows that such property is so mortgaged That he removes such mortgaged personal property to any province or city other than the one in which it was located at the time of the execution of the mortgage That the removal is permanent That there is no written consent of the mortgage or his executors, administrators or assigns to such removal C2005 Criminal Law 2 Reviewer

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B. 1.

2. 3.

Damage to the mortgagee is not essential. That personal property is already pledged under the Chattel Mortgage Law That the offender, who is the mortgagor of such property, sells or pledges the same or any part thereof Such sale/pledge is without the consent of the mortgagee which is i. written ii. at the back of the mortgage and iii. noted on the record thereof in the office of the register of deeds

Chattel mortgage must be valid and subsisting

Estafa (316, disposing encumbered property)

Removal, sale or pledge of mortgaged property

Mortgaged property is sold in disposed of in both cases Real property

Personal property

Property must be sold as free and unencumbered

Property sold without consent of the mortgagee in writing, even if buyer is informed that property is mortgaged

Purpose of law: to protect the purchaser

Purpose of law: to protect the mortgagee

It is essential that the chattel mortgage be valid and subsisting. If the chattel mortgage does not contain an affidavit of good faith and/or is not registered, it is VOID and CANNOT be a basis for criminal prosecution under Art 319.

Articles 320 to 326-B. Arson (repealed or amended by PD 1613 and PD 1744)

Persons Liable

Kinds of arson;

Even third persons who removed the property to another province or city are liable because the offender is "ANY PERSON who shall knowingly remove…"

1. 2. 3.

The removal of the mortgaged property must be coupled with INTENT TO DEFRAUD.

Arson, under Section 1 of Presidential Decree No. 1613; Destructive arson, under Article 320 of the Revised Penal Code, as amended by Republic Act No. 7659; Other cases of arson, under Section 3 of Presidential Decree No. 1613.

P.D. 1613 Amending the Law on Arson

No violation of Article 319 if the removal was justified.

Filing a civil action for collection, not for foreclosure of chattel mortgage, relieves the accused of criminal responsibility. (based on a CA case)

If the mortgagee elected to file a suit for collection (not foreclosure), there can be no violation of Article 319 anymore since the mortgage as a basis of relief has already been abandoned by the suit for collection.

House (generally considered as immovable) may be a subject of chattel mortgage by agreement of the parties

SECTION 1. Arson. — Any person who burns or sets fire to the property of another shall be punished by Prision Mayor. The same penalty shall be imposed when a person sets fire to his own property under circumstances which expose to danger the life or property of another.

SECTION 2. Destructive Arson. — The penalty of Reclusion Temporal in its maximum period to Reclusion Perpetua shall be imposed if the property burned is any of the following: 1. 2.

Article 319 par 2 also contemplates a second mortgage.

3.

Any ammunition factory and other establishment where explosives, inflammable or combustible materials are stored. Any archive, museum, whether public or private, or any edifice devoted to culture, education or social services. Any church or place of worship or other building where people usually assemble.

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4.

Any train, airplane or any aircraft, vessel or watercraft, or conveyance for transportation of persons or property. 5. Any building where evidence is kept for use in any legislative, judicial, administrative or other official proceedings. 6. Any hospital, hotel, dormitory, lodging house, housing tenement, shopping center, public or private market, theater or movie house or any similar place or building. 7. Any building, whether used as a dwelling or not, situated in a populated or congested area. (NOTE: SECTION 2 IS REPEALED BY R.A. 7659 AMENDING ART. 320)

SECTION 3. Other Cases of Arson. — The penalty of Reclusion Temporal to Reclusion Perpetua shall be imposed if the property burned is any of the following: 1. 2. 3. 4. 5. 6.

Any building used as offices of the government or any of its agencies; Any inhabited house or dwelling; Any industrial establishment, shipyard, oil well or mine shaft, platform or tunnel; Any plantation, farm, pastureland, growing crop, grain field, orchard, bamboo grove or forest; Any rice mill, sugar mill, cane mill or mill central; and Any railway or bus station, airport, wharf or warehouse.

4. 5.

6.

7.

SECTION 7. Conspiracy to Commit Arson. — Conspiracy to commit arson shall be punished by Prision Mayor in its minimum period.

SECTION 8. Confiscation of Object of Arson. - The building which is the object of arson including the land on which it is situated shall be confiscated and escheated to the State, unless the owner thereof can prove that he has no participation in nor knowledge of such arson despite the exercise of due on his part.

SECTION 4. Special Aggravating Circumstances in Arson. — The penalty in any case of arson shall be imposed in its maximum period; 1. 2. 3. 4.

If committed with intent to gain; If committed for the benefit of another; If the offender is motivated by spite or hatred towards the owner or occupant of the property burned; If committed by a syndicate.

The offense is committed by a syndicate if its is planned or carried out by a group of three (3) or more persons.

Article 320 as amended by R.A. 7659

Article 320. Destructive Arson. — The penalty of reclusion temporal in its maximum period to death shall be imposed upon any person who shall burn: 1.

2. SECTION 5. Where Death Results from Arson. — If by reason of or on the occasion of the arson death results, the penalty of Reclusion Perpetua to death shall be imposed.

SECTION 6. Prima Facie Evidence of Arson. — Any of the following circumstances shall constitute prima facie evidence of arson: 1. 2.

3.

If the fire started simultaneously in more than one part of the building or establishment. If substantial amount of flammable substances or materials are stored within the building not necessary in the business of the offender nor for household use. If gasoline, kerosene, petroleum or other flammable or combustible substances or materials soaked

therewith or containers thereof, or any mechanical, electrical, chemical, or electronic contrivance designed to start a fire, or ashes or traces of any of the foregoing are found in the ruins or premises of the burned building or property. If the building or property is insured for substantially more than its actual value at the time of the issuance of the policy. If during the lifetime of the corresponding fire insurance policy more than two fires have occurred in the same or other premises owned or under the control of the offender and/or insured. If shortly before the fire, a substantial portion of the effects insured and stored in a building or property had been withdrawn from the premises except in the ordinary course of business. If a demand for money or other valuable consideration was made before the fire in exchange for the desistance of the offender or for the safety of the person or property of the victim.

3. 4. 5.

One (1) or more buildings or edifices, consequent to one single act of burning, or as result of simultaneous burnings, or committed on several or different occasions. Any building of public or private ownership, devoted to the use of the public in general, or where people usually gather or congregate for a definite purpose such as but not limited to official governmental function or business, private transaction, commerce, trade, worship, meetings and conferences, or merely incidental to a definite purpose such as but not limited to hotels, motels, transient dwellings, public conveyance or stops or terminals, regardless of whether the offender had knowledge that there are persons in said building or edifice at the time it is set on fire, and regardless also of whether the building is actually inhabited or not. Any train or locomotive, ship or vessel, airship or airplane, devoted to transportation or convenience, or public use, entertainment or leisure. Any building, factory, warehouse installation and any appurtenances thereto, which are devoted to the service of public utilities. Any building, the burning of which is for the purpose of concealing or destroying evidence of

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another violation of law, or for the purpose of concealing bankruptcy or defrauding creditors or to collect from insurance.

3.

Irrespective of the application of the above enumerated qualifying circumstances, the penalty of death shall likewise be imposed when the arson is perpetrated or committed by two (2) or more persons or by a group of persons, regardless of whether their purpose is merely to burn or destroy the building or the edifice, or the burning merely constitutes an overt act in the commission or another violation of law.

Consummated arson: a. any charring (CHARING! Whiz na lang, 'day!) of the wood of the building. Not necessary that the wood should be ablaze, sufficient that the fiber of the wood is destroyed b. mere scorching or discoloration by heat NOT consummated c. Setting fire to the contents of the building is already consummated arson (setting fire to a building) even if no part of the building was burned. d. However small a portion of the building is BURNED, there is consummated arson.

In attempted arson, it is not necessary that there be a fire The penalty of reclusion temporal in its maximum period to death shall also be imposed upon any person who shall burn: 1. 2.

Any arsenal, shipyard, storehouse or military powder or fireworks factory, ordnance storehouse, archives or general museum of the government. In an inhabited place, any storehouse or factory of inflammable or explosive materials.

If as a consequence of the commission of any of the acts penalized under this Article, death or injury results, or any valuable documents, equipment, machineries, apparatus, or other valuable properties were burned or destroyed, the mandatory penalty of death shall be imposed.

NOTE: The laws on arson in force today are P.D. 1613 and Article 320 as amended by R.A. 7659. The provisions of P.D. 1613 that are inconsistent with R.A. 7659 (such as Section 2 on destructive arson) are DEEMED REPEALED)

Attempted, Frustrated, and Consummated Arson

Look at the facts if there was intent to burn.

Sec 3, par 2, PD 1613

If the property burned is an inhabited house or dwelling, it is not required that the house be occupied and that the offender knew it when the house was burned.

No complex crime of arson with homicide

PD 1613: if by reason or on occasion or arson, death results, homicide is absorbed and the penalty of reclusion perpetua to Death is imposed.

Sec 6, PD 1613, 7 Circumstances constituting prima facie evidence of arson

A person, intending to burn a building, collects some rags, soaks them in gasoline and places them beside the wooden wall. When he is about to light a match to set fire to the rags, he is discovered by another who chases him away.

Standing alone, unexplained or uncontradicted, any of those circumstance is sufficient to establish the fact of arson.

1.

Article 327. Who are liable for malicious mischief

Attempted arson: the crime committed in the above scenario is attempted arson, because the offender commences the commission of the crime directly by overt acts but does not perform all the acts of execution (the setting of fire to the rags) due to timely intervention.

Elements: 1.

2.

Frustrated arson: if the person is able to set fire to the rags but the fire was put out before any part of the building was burned.

2. 3.

That the offender deliberately caused damage to the property of another That such act does not constitute arson or other crimes involving destruction That the act of damaging another's property be committed mere for the sake of damaging it C2005 Criminal Law 2 Reviewer

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* 3rd element presupposes that offender acted due to hate, revenge, or other evil motive. Sometimes, offender also inspired by the mere pleasure of destroying things.

the grandson of private complainant, Filomena M. Marigomen. On February 27, 1996, Montesclaros, in the belief that Acosta and his wife were the ones hiding his live-in partner from him, stormed the house of Acosta and burned their clothes, furniture, and appliances. Thereafter Acosta attempted to burn down the house of Marigomen. He was charged with arson and found guilty.

"Shall deliberately cause to the property of another any damage"

HELD: Acosta was proved by testimony to have tried to burn the house of Marigomen. In prosecutions for arson, proof of the crime charged is complete where the evidence establishes (1) the corpus delicti, that is, a fire because of criminal agency; and (2) the identity of the defendants as the one responsible for the crime. Corpus delicti means the substance of the crime, it is the fact that a crime has actually been committed. In arson, the corpus delicti rule is generally satisfied by proof of the bare occurrence of the fire and of its having been intentionally caused. Even the uncorroborated testimony of a single witness, if credible, may be enough to prove the corpus delicti and to warrant conviction.

This means that the offender should act under this impulse of specific desire to inflict injury to another. HENCE, malicious mischief CANNOT be committed through NEGLIGENCE. Malice and negligence are essentially incompatible.

"Damage" covers both loss and diminution.

If no malice, only civil liability for damages.

Damaging of property must not result from crime.

Example: damage done as a result of another crimeaccused chased opponent around the house to kill him and along the way broke various objects.

If after damaging the property, offender removes/ uses objects of the damage, crime is THEFT

Caballen vs. DAR

Albeit Abajon’s previous arrangement with the former owner of the property, Caballes, the new owner, asked Abajon to vacate the premises where his house was and where he had planted corn, bananas, and camote. They had a confrontation over this issue, but reached no agreement. Abajon then harvested the bananas and jackfruit. As the harvesting was done without her consent, Caballes charged him for malicious mischief.

People v. Oliva (2000) FACTS: Avelino Manguba and his family were sleeping in their house. Avelino went out of the house to urinate. He saw Ferigel Oliva set the roof of their house on fire with a lighted match. While the fire razed Avelino's house, Ferigel and three others, Dominador Oliva, Marcos Paderan and Arnel Domingo watched at a distance of about five (5) meters. One of the neighbors, Benjamin Estrellon went to the nearby river and fetched water with a pail. As Benjamin was helping put out the fire, he was shot by Ferigel at close range. The gunshot wound caused Benjamin's death. The cases for arson and murder were tried jointly. Only Oliva was found guilty. HELD: We find no reversible error and affirm the conviction. When Ferigel burned Avelino's house, the law applicable was P.D. No. 1613. 35 Under Section 3 (2) of the law, the penalty of reclusion temporal to reclusion perpetua shall be imposed if the property burned is "any inhabited house or dwelling." Under the amendment, it is the fact that the house burned is inhabited that qualifies the crime. There is no need to prove that the accused had actual knowledge that the house was inhabited. Under Section 3 (2) of Presidential Decree No. 1613, the elements of arson are: (1) that there is intentional burning; and (2) that what is intentionally burned is an inhabited house or dwelling. The records show that when Ferigel willfully set fire to the roof of Avelino's house, Avelino's wife and children were asleep therein. Proof of corpus delicti is indispensable in prosecutions for felonies and offenses. Corpus delicti is the body or substance of the crime. It refers to the fact that a crime has been actually committed. Corpus delicti is the fact of the commission of the crime that may be proved by the testimonies of witnesses. In arson, the corpus delicti rule is satisfied by proof of the bare occurrence of the fire and of its having been intentionally caused. The uncorroborated testimony of a single eyewitness, if credible, may be enough to prove the corpus delicti and to warrant conviction. Here, corpus delicti of the arson was duly proven beyond reasonable doubt.

HELD: The essential element of the crime of malicious mischief which is “damage deliberately caused to the property of another” is absent because Abajon merely cut his own plantings. Case was dismissed.

Article 328. Special cases of malicious mischief People v. Acosta (2000) FACTS: Raul Acosta y Laygo was a 38-year old mason. He used to be a good friend of Almanzor "Elmer" Montesclaros,

Special cases Mischief" are:

of

malicious

mischief/"Qualified

Malicious

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a.

b. c. d.

Causing damage to obstruct the performance of public functions distinguished from sedition: the element of public and tumultuous uprising is not present in Art 328 but, BOTH have intent to obstruct the performance or public function Using any poisonous or corrosive substance Spreading any infection or contagion among cattle Causing damage to the property of the National Museum or National Library, or to any archive or registry, waterworks, road, promenade, or any other thing used IN COMMON by the public.

Article 331. Destroying or damaging statues, public monuments, or paintings

No notes, 

Article 332. Persons exempt from criminal liability

Crimes involved in the exemption: 1. 2. 3.

Theft Swindling (estafa) Malicious mischief

 

does not include robbery or estafa through falsification reason for exemption: presumed co-ownership

Article 329. Other mischiefs

Poignant Example:

People v. Dumlao where accused scattered around the municipal building coconut husks containing human excrements.

Persons exempted from criminal liability only liablefor CIVIL liabilities): 1.

Spouses, ascendants and descendants, or relatives by affinity in the same line

2.

Widowed spouse with respect to the property which belonged to the deceased spouse before the same passed into the possession of another

3.

Brothers and sisters and brothers and sister-in-law IF LIVING TOGETHER



Article 332 only applies when BOTH the offender and offended party are relatives as enumerated in the provision. Does not apply to strangers who participated in the crime. Stepfather, adopted child, paramours, common-law spouses INCLUDED

Article 330. Damage and obstruction to means of communication

Example: damaging railways, telegraph or telephone lines

The telegraph and telephone lines must pertain to a railway system!

If the damage shall result in any derailment of cars, collision or other accident, a higher penalty shall be imposed

 

Question: What crime is committed IF as a result of the damage caused to the railway, certain passengers of the train are killed?

Answer: It depends A. B.

If no intent to kill: crime is damages to means of communication with homicide If with intent to kill: murder (cf. Article 248, par 3)

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Article 345. Civil liability of persons guilty of crimes against chastity Article 346. Liability of ascendants, guardians, teachers, or other persons entrusted with the custody of the offended party

Title Eleven CRIMES AGAINST CHASTITY

Chapter One. ADULTERY AND CONCUBINAGE

Article 333. Who are guilty of adultery Article 333. Who are guilty of adultery

Elements:

Article 334. Concubinage

Chapter Two – RAPE AND ACTS OF LASCIVIOUSNESS

1. 2. 3.

The woman is married; She has sexual intercourse with a man not her husband; As regards the man with whom she has sexual intercourse, he must know her to be married.



The essence of adultery is the violation of the marital vow. The gist of the crime is the danger of introducing spurious heirs into the family. The offended party must be legally married to the offender at the time of the criminal case. It is not necessary that there be a valid marriage between the offended husband and the guilty wife. There is adultery even if the marriage of the guilty wife is subsequently declared void. Carnal knowledge may be proved by circumstantial evidence. Direct proof of carnal knowledge is not necessary to sustain a conviction. Each sexual intercourse constitutes a separate crime of adultery. Adultery is NOT a continuing offense. Abandonment of the wife without justification is not an exempting circumstance, but only mitigates the penalty. Both defendants are entitled to this mitigating circumstance. A married man who is not liable for adultery because he did not know that the woman was married, may be held liable for concubinage. If the woman knew that the man was married, she may be held liable for concubinage as well. The acquittal of one of the defendants does not operate as a cause for acquittal of the other. If the paramour dies, the offended wife may still be prosecuted because the requirement that both offenders should be included in the complaint applies only when both offenders are alive. If the offended party dies, the proceedings must continue. This article seeks to protect the honor and reputation not only of the living but of dead persons as well. Pardon of the offended parties must come BEFORE the institution of the criminal prosecution, and both offenders must be pardoned by the offended party.

Article 335. REPLEALED (Old rape law) Article 336. Acts of lasciviousness

 Chapter Three – SEDUCTION, CORRUPTION OF MINORS, and WHITE SLAVE TRADE

 

Article 337. Qualified seduction



Article 338. Simple seduction of

Article 339. Acts of lasciviousness with the consent the offended party



Article 340. Corruption of minors



Article 341. White slave trade

Chapter Four – ABDUCTION



Article 342. Forcible abduction Article 343. Consented abduction

 

Chapter Five – PROVISIONS RELATIVE PRECEDING CHAPTERS OF TITLE ELEVEN

TO

THE

 Article 344. Prosecution of crimes of adultery, acts

concubinage, seduction, abduction, rape and of lasciviousness



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



Act of intercourse with the offending spouse subsequent to the adulterous conduct is an implied pardon. An agreement to separate, while void under the law, may be used as evidence to show consent by the husband to the infidelity of his wife.

Article 334. Concubinage

Acts punishable:

1. 2. 3.

Keeping a mistress in the conjugal dwelling; Having sexual intercourse, under circumstances; Cohabiting with her in any other place.

scandalous

Elements:

1. 2.

The man is married; He is either – a. b. c.

3.

Keeping a mistress in the conjugal dwelling; Having sexual intercourse under scandalous circumstances with a woman who is not his wife; or Cohabiting with a woman who is not his wife in any other place;

Concubinage is a violation of the marital vow.

 



   

Beltran vs People (2000)

FACTS: Petitioner Meynardo Beltran and wife Charmaine E. Felix were married on June 16, 1973 at the Immaculate Concepcion Parish Church in Cubao, Quezon City. On February 7, 1997, after twenty-four years of marriage and four children, petitioner filed a petition for nullity of marriage on the ground of psychological incapacity under Article 36 of the Family Code before Branch 87 of the Regional Trial Court of Quezon City. The case was docketed as Civil Case No. Q-97-30192. In her Answer to the said petition, petitioner's wife Charmaine Felix alleged that it was petitioner who abandoned the conjugal home and lived with a certain woman named Milagros Salting. Charmaine subsequently filed a criminal complaint for concubinage under Article 334 of the Revised Penal Code against petitioner and his paramour. Petitioner contends that there is a possibility that two conflicting decisions might result from the civil case for annulment of marriage and the criminal case for concubinage. In the civil case, the trial court might declare the marriage as valid by dismissing petitioner's complaint but in the criminal case, the trial court might acquit petitioner because the evidence shows that his marriage is void on the ground of psychological incapacity.

HELD: Parties to the marriage should not be permitted to judge for themselves its nullity, for the same must be submitted to the judgment of the competent courts and only when the nullity of the marriage is so declared can it be held as void, and so long as there is no such declaration the presumption is that the marriage exists for all intents and purposes. Therefore, he who cohabits with a woman not his wife before the judicial declaration of nullity of the marriage assumes the risk of being prosecuted for concubinage.

As regards the woman, she knows that the man is married.

 

another man’s blood into the family, so that the offended husband may have another man’s son bearing his name and receiving support from him.

A married man is NOT liable for concubinage for mere sexual relations with a woman not his wife. ‘Keeping a mistress in the conjugal dwelling’ – no positive proof of actual intercourse necessary. Conjugal dwelling – the home of the husband and wife even if the wife happens to be temporarily absent on any account. ‘Scandalous circumstances’ – any reprehensible word or deed that offends public conscience, redounds to the detriment of the feelings of honest persons, and gives occasion to the neighbors’ spiritual damage or ruin. (this is essential only in concubinage of the second type) The people in the vicinity are the best witnesses to prove scandalous circumstances. When spies are employed, there is no evidence of scandalous circumstances. ‘cohabit’ – to dwell together, in the manner of husband and wife. Adultery is punished more severely than concubinage because of the possible introduction of

Article 335. REPEALED BY R.A. 8353, ANTI-RAPE LAW OF 1997

Article 336. Acts of lasciviousness

Elements:

1. 2. 3.

Offender commits any act of lasciviousness or lewdness; The act is committed against a person of either sex; It is done under any of the following circumstances: a. b.

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c. d.







 



By means of fraudulent machination or grave abuse of authority; When the offended party is under 12 years of age or is demented.

Motive of lascivious acts is not important because the essence of lewdness is in the very act itself. Embracing, kissing and holding a girl’s breast is an act of lasciviousness, if the act was done with lewd designs. Example: if the kissing etc. was done inside church, absence of lewd designs may be proven, and the crime is unjust vexation only. But if the kissing was done in the house of a woman when she was alone, the circumstances may prove the accused’s lewd designs. Lover’s embraces and kisses are not acts of lasciviousness. The act of lasciviousness must be committed under any of the circumstances mentioned in the definition of the crime of rape. There is no frustrated crime of acts of lasciviousness. Offenses against chastity

Abuses against chastity

Committed by a private individual, in most cases

Committed by a public officer only

Some actual act of lasciviousness should have been executed by the offender

Mere immoral or indecent proposal made earnestly and persistently is sufficient

Acts of lasciviousness

Attempted Rape

People vs. Famularcano

Famularcano, a driver at the Camp John Hay, followed Dionisia after she alighted from the truck. She took her by the waist, held her to his breast and private parts. She resisted and was able to extricate herself. She then walked towards the house of her friend, instead of going home.

When a complaint for acts of lasciviousness was filed against him, Famularcano claimed that he had no intention of having sexual intercourse with her. He did the acts a s a revenge for what Dionisia’s father did to his wife.

HELD: The accused cannot be convicted of frustrated acts of lasciviousness for under the very terms of the law such frustration can never take place. In cases of acts of lasciviousness, as in all cases of crimes against chastity like adultery and rape, from the moment the offender performs all the elements necessary for the existence of the felony, he actually attains his purpose, and from that moment, all the essential elements of the offense have also been accomplished. Motive of revenge is of no consequence since the essence of lewdness is in the very act itself. He was convicted of consummated acts of lasciviousness.

People v. Sailito Perez (2002) FACTS: Sailito Perez y Gazo was charged with five counts of statutory rape against Jobelyn Ramos his 11 year old niece. The accused interposed the defense of denial and imputed ill-motive on the part of Jobelyn's mother which had led to the filing of the criminal charges. The accused testified that during all the time that the incidents were allegedly taking place, he was plying a tricycle to earn his living. The trial court rendered judgment finding the accused guilty of the crime of Statutory Rape and guilty of the offense of Acts of Lasciviousness.

Means of committing the crime are the same The offended party in both crimes is a person of either sex The performance of acts of lascivious character is common to both crimes Acts performed do not indicate that the accused was to lie with the offended party

Acts performed clearly indicate that the accused’s purpose was to lie wit the offended woman

Lascivious acts are themselves the final objective sought by the offender

Lascivious acts are preparatory to the commission of rape

Acts of lasciviousness The element of lewd designs exists

HELD: The trial court correctly found appellant guilty of acts of lasciviousness. Appellant was shrouded with lust in trying, although unsuccessfully, to get the young girl to suck his penis. The elements of this crime are that: (a) the offender commits any act of lasciviousness or lewdness; (b) by using ford or intimidation, or when the offended party is deprived of reason or otherwise unconscious, or the offended party is under 12 years of age. In acts of lasciviousness, the acts complained of are prompted by lust or lewd design where the victim has not encouraged such acts. In cases of acts of lasciviousness, the offender is deemed to have accomplished all the elements necessary for the existence of the felony once he has been able, by his overt acts, to actually achieve or attain his purpose.

Unjust vexation There is no motive of lewd designs

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RA 7877 ANTI-SEXUAL HARASSMENT ACT OF 1995 SECTION 3. Work, Education or Training-related Sexual Harassment Defined. — Work, education or training-related sexual harassment is committed by an employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted by the object of said act.

Acts punishable:

1.

Elements:

a. b. c. d.

(a) In a work-related or employment environment, sexual harassment is committed when: (1) The sexual favor is made as a condition in the hiring or in the employment, re-employment or continued employment of said individual, or in granting said individual favorable compensation, terms, conditions, promotions, or privileges; or the refusal to grant the sexual favor results in limiting, segregating or classifying the employee which in any way would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employee; (2) The above acts would impair the employee's rights or privileges under existing labor laws; or (3) The above acts would result in an intimidating, hostile, or offensive environment for the employee.

Seduction of a virgin over 12 years and under 18 years of age by certain persons, such as a person in authority, priest, teacher; and

2.

Seduction of a sister by her brother, or descendant by her ascendant, regardless of her age or reputation.

Person liable:

1.

Those who abused their authority – a. b. c. d.

(b) In an education or training environment, sexual harassment is committed: (1)

Against one who is under the care, custody or supervision of the offender; (2) Against one whose education, training, apprenticeship or tutorship is entrusted to the offender; (3) When the sexual favor is made a condition to the giving of a passing grade, or the granting of honors and scholarships or the payment of a stipend, allowance or other benefits, privileges, or considerations; or (4) When the sexual advances result in an intimidating, hostile or offensive environment for the student, trainee or apprentice. Any person who directs or induces another to commit any act of sexual harassment as herein defined, or who cooperates in the commission thereof by another without which it would not have been committed, shall also be held liable under this Act.

Offended party is a virgin, which is presumed if she is unmarried and of good reputation; She is over 12 and under 18 years of age; Offender has sexual intercourse with her; There is abuse of authority, confidence or relationship on the part of the offender.

2.

Person in public authority; Guardian; Teacher; Person who, in any capacity, is entrusted with the education or custody of the woman seduced;

them a. b. c.

3.

Those who abused confidence reposed in

Priest; House servant; Domestic; Those who abused their relationship -

a. b.

Brother who seduced his sister; Ascendant who seduced his descendant.

 



Deceit is not an element of qualified seduction. Abuse of confidence is the necessary element. The fact that the girl gave her consent to the sexual intercourse is not a defense, because lack of consent is not an element of the offense. ‘domestic’ – a person usually living under the same roof, pertaining to the same house

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







Distinguished from rape: if any of the circumstances in the crime of rape is present, the crime is not to be punished under this article In case of a teacher, it is not necessary that he be the teacher of the offended party, as long as he is a teacher in the same school. Qualified seduction of a sister or descendant is punished by a penalty next higher in degree. The age or reputation of the sister or descendant is irrelevant. An accused charged with rape cannot be convicted of qualified seduction under the same information.

People vs. Fontanilla

Fe Castro, a fifteen-year old virgin, was brought by her mother to the house of the appellant and his second wife to serve as a helper. Fe Castro testified that during her stay in the house of Fontanilla for about three months the accused succeeded in having carnal knowledge of her repeatedly, the total number of times she could not recall. She was certain, however, that the accused consummated the first sexual intercourse with her one night in September. She also declared that prior to this incident, the accused had made amorous overtures and advances toward her. Aside from giving her money, the accused repeatedly promised to abandon his wife to live with her. Fe Castro repeatedly yielded to the carnal desires of the accused, as she was induced by his promises of marriage and frightened by his acts of intimidation. Their intimacies lasted for almost three months until her aunt, the wife of the accused, caught them in flagrante on the kitchen floor. The following day she returned to her parents, and revealed everything to her mother two days later. Fontanilla denies everything.

HELD: It was qualified seduction. Anent the said marital promise, Fontanilla also claims that there is no evidence on record supporting its veracity. Granting this to be correct, it is nevertheless settled that deceit, although an essential element of ordinary or simple seduction, does not need to be proved or established in a charge of qualified seduction. It is replaced by abuse of confidence. When the offender is a public officer, a priest or minister, a servant, domestic, tutor, teacher, or under any title is in charge of the education or keeping of the offended woman, as in the present case, the act is punishable although fraud or deceit may not have been used or, if employed, has not been proved. The seduction of a virgin over twelve and under eighteen years of age, committed by any of the persons enumerated in Art. 337 "is constitutive of the crime of qualified seduction . . . even though no deceit intervenes or even when such carnal knowledge were voluntary on the part of the virgin, because in such a case, the law takes for granted the existence of the deceit as an integral element of the said crime and punishes it with greater severity than it does the simple seduction . . . taking into account the abuse of confidence on the part of the agent (culprit), an abuse of confidence which implies deceit or fraud."

Babanto vs. Zosa

Babanto, a policeman, brought Dagohoy, 13 years old and with low mentality, to the ABC Hall where he succeeded in having sexual intercourse with her. Babanto was charged with rape but convicted of qualified seduction. HELD: The complaint filed alleged that the accused abused his position as policeman by having carnal knowledge of a 13 year old girl. However, there is no allegation that the complainant was a virgin. Though it is true that virginity is presumed if the girl is over 12 but under 18, unmarried and of good reputation, virginity is still an essential element of the crime of qualified seduction and must be alleged in the complaint. A conviction of the crime of qualified seduction without the allegation of virginity would violate the petitioner’s right to be informed of the nature and cause of the accusation against him. Petitioner is guilty of rape, consider the victim’s age, mental abnormality and deficiency. There was also sufficient intimidation with the accused wearing his uniform.

Perez vs. CA

Perez was able to have sexual intercourse with Mendoza twice after he promised marriage to her. As he did not make good on said promises, Mendoza filed a complaint for Consented Abduction. The trial court found that the acts constituted seduction, and so it acquitted him on the charge of consented abduction. Mendoza then filed a complaint for qualified seduction. Perez moved to quash on the grounds of double jeopardy.

HELD: There are similar elements between Consented Abduction and Qualified Seduction, namely: (1) the offended party is a virgin, and (2) over 12 but under 18 years of age. However, there are other elements which differentiate the two crimes. For example, consented abduction requires the taking away of the victim without her consent, while qualified seduction requires that there be abuse of authority, confidence or relationship. Thus, an acquittal for Consented Abduction will not preclude the filing of a charge for Qualified Seduction, because the elements of the two crimes are different.

Article 338. Simple seduction

Elements:

1. 2. 3. 4. 

Offended party is over 12 and under 18 years of age; She is of good reputation, single or widow; Offender has sexual intercourse with her; It is committed by means of deceit. Purpose of the law: To punish the seducer who by means of promise of marriage, destroys the chastity of an unmarried female of previous chaste character C2005 Criminal Law 2 Reviewer

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  



Virginity of the offended party is not required, good reputation is sufficient. Deceit generally takes the form of unfulfilled promise of marriage. What about unfulfilled promise of material things, i.e. the woman agrees to intercourse with a man who promised to give her jewelry? This is not seduction, because she is a woman of loose morals. (she is a highclass prostitute!) Promise of marriage by a married man is not a deceit, if the woman knew him to be married.

3.

HELD: Under Article 338 of the Revised Penal Code, to constitute seduction, there must in all cases be some deceitful promise or inducement. The woman should have yielded because of this promise or inducement. In this case, the appellant claims that the acts of sexual intercourse with the private complainants were in exchange for money. He declared that, prior to every sexual intercourse with Liza and Anna, he would promise them P20. However, aside from his bare testimony, the appellant presented no proof that private complainants' consent was secured by means of such promise. As aptly opined by the trial court, the money given by the appellant to private complainants was not intended to lure them to have sex with him. Rather, it was for the purpose of buying their silence to ensure that nobody discovered his dastardly acts. The evidence for the prosecution was more than enough to show that the element of voluntariness on the part of private complainants was totally absent. Liza and Anna's respective testimonies established that the appellant had sexual intercourse with them without their consent and against their will.

party in this crime. 



Elements:

1. 2.

lewdness;

Even if the offended party consented, the offender is still liable because the consent is obtained by abuse of confidence or relationship, or by means of deceit. When the victim is under 12 years, the penalty shall be one degree higher that that imposed by law. Acts of lasciviousness (Art. 336)

Acts of lasciviousness

Committed under the circumstances which, had there been carnal knowledge, would amount to rape

Committed under circumstances which, had there been carnal knowledge, would amount to either qualified or simple seduction

(Art. 339)

Article 340. Corruption of minors

Act punishable: The promotion or facilitation of the prostitution or corruption of persons under age (minors), to satisfy the lust of ANOTHER Who are liable: Any person. If the culprit is a public officer or employee, including those in GOCCs, there is an additional penalty of temporary absolute disqualification

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 Article 339. Acts of lasciviousness with the consent of the offended party

A male cannot be the offended

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People vs Pascua (2003)

FACTS: Liza and Anna Paragas, 12 year old twins, were sexually molested by a neighbor Hipolito Pascua. Upon learning what the Pascua had done to her daughters, Leticia, their mother, confronted them. Liza and Anna revealed that Pascua had sexually abused them. Leticia wasted no time in reporting the matter to their barangay chairman and to the police before whom she filed criminal complaints. On appeal, Pascua argued that he should only be liable for simple seduction.

Offender accomplishes the acts by abuse of authority, confidence, relationship, or deceit.



It is not necessary that the unchaste acts shall have been done on the minor. What the law punishes is the act of a pimp who facilitates the corruption of minors, NOT the performance of unchaste acts upon the minor. A mere proposal will consummate the offense. When the victim is under 12 years, the penalty is one degree higher

RA 7610

Offender commits acts of lasciviousness or

The acts are committed upon a woman who is a virgin or single or widow of good reputation, under 18 years of age but over 12 years, or a sister or descendant, regardless of her reputation or age;

Special protection of Children Against Child Abuse, Exploitation and Discrimination Act

ARTICLE III Child Prostitution and Other Sexual Abuse

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SECTION 5. Child Prostitution and Other Sexual Abuse. — Children, whether male or female, who for money, profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse.

There is also an attempt to commit child prostitution, under paragraph (b) of Section 5 hereof when any person is receiving services from a child in a sauna parlor or bath, massage clinic, health club and other similar establishments.

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following:

A penalty lower by two (2) degrees than that prescribed for the consummated felony under Section 5 hereof shall be imposed upon the principals of the attempt to commit the crime of child prostitution under this Act, or, in the proper case, under the Revised Penal Code.

a) Those who engage in or promote, facilitate or induce child prostitution which include, but are not limited to, the following:

Article 341. White slave trade

1. 2. 3. 4. 5.

Acting as a procurer of a child prostitute; Inducing a person to be a client of a child prostitute by means of written or oral advertisements or other similar means; Taking advantage of influence or relationship to procure a child as prostitute; NPcBCo Threatening or using violence towards a child to engage him as a prostitute; or Giving monetary consideration goods or other pecuniary benefit to a child with intent to engage such child in prostitution.

(b) Those who commit the act of sexual intercourse of lascivious conduct with a child exploited in prostitution or subject to other sexual abuse; Provided, That when the victims is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; and

(c) Those who derive profit or advantage therefrom, whether as manager or owner of the establishment where the prostitution takes place, or of the sauna, disco, bar, resort, place of entertainment or establishment serving as a cover or which engages in prostitution in addition to the activity for which the license has been issued to said establishment.

SECTION 6. Attempt To Commit Child Prostitution. There is an attempt to commit child prostitution under Section 5, paragraph (a) hereof when any person who, not being a relative of a child, is found alone with the said child inside the room or cubicle of a house, an inn, hotel, motel, pension house, apartelle or other similar establishments, vessel, vehicle or any other hidden or secluded area under circumstances which would lead a reasonable person to believe that the child is about to be exploited in prostitution and other sexual abuse.

Acts punishable:

In any manner or under any pretext,

1. 2. 3.

Engaging in the business of prostitution; Profiting by prostitution; Enlisting the services of women for the purpose of prostitution.



Habituality is not a necessary element of white slave trade. It is sufficient that the accused has committed any of the acts in this article. ‘Under any pretext’ – one who engaged the services of a woman ostensibly as a maid, but it reality for prostitution, is guilty under this article. When the victim is under 12 years, the penalty shall be one degree higher.





Article 342. Forcible abduction

Elements:

1. 2. 3. 



The person abducted is any woman, regardless of her age, civil status, or reputation; The abduction is against her will; The abduction is with lewd designs. Abduction – the taking away of a woman from her house or the place where she may be for the purpose of carrying her to another place with intent to marry or corrupt her Crimes against chastity where age and reputation are immaterial: o Rape C2005 Criminal Law 2 Reviewer

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Acts of lasciviousness against the will or without the consent of the offended party o Qualified seduction of a sister/descendant o Forcible abduction The taking away of the woman may be accomplished by means of deceit first and then by means of violence and intimidation. If the female abducted is under 12 years of age, the crime is forcible abduction, even if she voluntarily goes with her abducter. Sexual intercourse is not necessary in forcible abduction Where there are several defendants, it is enough that one of them had lewd designs Husband cannot be found guilty of forcible abduction, as lewd design is wanting. ??? When there is deprivation of liberty and no lewd designs, the crime is kidnapping and serious illegal detention. Attempt to rape is absorbed in the crime of forcible abduction, thus there is no complex crime of forcible abduction with attempted rape (the attempt is evidence of the lewd designs) Consummated rape may absorb forcible abduction if the main objective was to rape the victim. o





   





Forcible abduction

upon complaint filed by the offended party. In the CAB, it is admitted that the sworn complaint of the victim was not formally offered in evidence by the prosecution. This failure to adhere to the rules however is not fatal and did not oust the court of its jurisdiction to hear and decide the case. Jurisprudence reveals that if the complaint in a case which cannot be prosecuted de oficio is forwarded to the trial court as part of the records of the preliminary investigation of the case, the court can take judicial notice of the same without the necessity of its formal introduction as evidence for the prosecution. The records of the case forwarded to the CFI include the complaint filed by Juanita in the municipal court of Guiguinto which conducted the preliminary investigation. Subject complaint was also marked as an exhibit.

People vs. Jose

This is the Maggie DeLa Riva story (wherein Maggie was abducted and brought to the Swanky Hotel, where the four accused each took turns in raping her)

HELD: While the first act of rape was being performed, the crime of forcible abduction had already been consummated, so that each of the three succeeding crimes of the same nature cannot legally be considered as still connected with the abduction. In other words, they should be detached from, and considered independently of, that of forcible abduction, and therefore, the former can no longer be complexed with the latter.

Corruption of minors

Purpose is to effect his lewd designs on the victim

Purpose is to lend the victim to illicit intercourse with others

Forcible abduction with rape

Kidnapping (with rape)

The violent taking of the woman is motivated by lewd designs

Not so motivated

Crime against chastity

Crime against liberty

As regards therefore, the complex crime of forcible abduction with rape, the first of the crimes committed, the latter is definitely the more serious crime. Hence, pursuant to Article 48, the penalty prescribed shall be imposed in the maximum period. Consequently, the accused should suffer the extreme penalty of death. No need to consider aggravating circumstances for the same would not alter the nature of the penalty imposed.

People vs. Alburo

Alburo and 2 other men raped Evelyn Cantina. She was a jeepney passenger when she was prevented from leaving the jeepney, taken to a remote place and was raped there. People vs. Sunpongco

Angeles was abducted from the jeepney by Silvestre Sunpongco with the aid of 3 men and was brought to Hilltop Hotel where Silvestre succeeded in having sexual intercourse with her.

HELD. Article 344 of the RPC and the Rules on Criminal Procedure require that the offenses of abduction and rape and other offenses which cannot be prosecuted de oficio shall not be prosecuted except

HELD: They are guilty of the complex crime of FORCIBLE ABDUCTION WITH RAPE. In reviewing the evidence adduced by the prosecution for this crime of Rape, we have likewise been guided by three wellknown principles, namely, (1) that an accusation of rape can be made with facility, is difficult to prove, but more difficult for the person accused, though innocent, to disprove; (2) that in view of the intrinsic nature of the crime of rape where only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; and (3) that the evidence for the prosecution must stand or fall on its own merits, and cannot be allowed to draw strength from the weaknesses of the evidence for the defense.

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The factual milieu of this criminal charge before us gives us no reason to depart from these established rules. On the contrary, we find that Appellant had taken Evelyn away against her will, with lewd designs, subsequently forced her to submit to his lust and rendering her unconscious in the process, thereby justifying his conviction for the complex crime of Forcible Abduction with Rape under Article 48 in relation to Articles 335 and 342 of the Revised Penal Code, with which he has herein been charged.

People vs. Godines

Ancajas witnessed the killing of Vilaksi by the 2 accused. The accused, upon seeing her with her baby, dragged her to a vacant lot where they took turns in raping her. Trial court convicted them of the crime of rape.

HELD: TC correctly held that forcible abduction is absorbed in the crime of rape if the main objective of the accused is to rape the victim.

Forcible Abduction with rape

People v. Ablaneda (2001) FACTS: On February 18, 1993, at around 7:00 o'clock in the morning, six-year old Magdalena Salas was walking to school. Along the way, Jaime Ablaneda approached her and asked if he could share her umbrella, since it was raining. He then boarded a trimobile with Magdalena and brought her to a small hut. While inside, Ablaneda removed his underwear and the child's panties. He applied cooking oil, which he had bought earlier, on his organ and on Magdalena's. Then, he proceeded to have sexual intercourse with the little girl. When Magdalena arrived at their house, Ailene Villaflores, her uncle's sister-in-law, noticed that she looked pale and weak, and found traces of blood on her dress. Magdalena confessed that she was raped by a man who had a scar on the stomach. Dr. Nilda Baylon, the Medico-Legal Officer who examined Magdalena, found that the latter's hymen was completely lacerated, thus confirming that she had indeed been raped. Ablaneda was charged before the RTC, with the complex crime of Forcible Abduction with Rape. He was found guilty.

HELD: All the elements of forcible abduction are present in this case. The victim, who is a woman, was taken against her will, as shown by the fact that she was intentionally directed by accused-appellant to a vacant hut. At her tender age, Magdalena could not be expected to physically resist considering that the lewd designs of accused-appellant could not have been apparent to her at that time. The employment of deception suffices to constitute the forcible taking, especially since the victim is an unsuspecting young girl. Considering that it was raining, going to the hut was not unusual to Magdalena, as probably the purpose was to seek shelter. Barrio girls are particularly prone to deception. It is the taking advantage of

their innocence that makes them easy culprits of deceiving minds. Finally, the evidence shows that the taking of the young victim against her will was effected in furtherance of lewd and unchaste designs. Such lewd designs in forcible abduction is established by the actual rape of the victim.

People v Gerry Lining (2002) FACTS: On October 4, 1997, Emelina Ornos, then fifteen (15) years old visited her aunt Josephine to spend the night. While in her aunt's house, Emelina was invited by one Sajer to a dance party to be held at the barangay basketball court. Emelina accepted the invitation and at around seven o'clock in the evening of the same day, she went to the party, accompanied by her aunt. Josephine then left Emelina at the party, telling her that she had to go home but she would return later to fetch her. Emelina decided to go home alone. On her way to her aunt's house, Emelina was accosted by Gerry Lining and Lian Salvacion. Lining poked a kitchen knife at Emelina's breast and the two held her hands. Emelina was dragged towards the ricefield and was forcibly carried to an unoccupied house where she was raped by both men. The next day, Gerry Selda, a friend of her father, saw her crying. She told him about the rape incident and Selda accompanied her to the police. The Chief of Police immediately ordered the arrest of Lining but Salvacion was able to escape. After trial, the court found Gerry Lining guilty beyond reasonable doubt for the crime of forcible abduction with rape, and for another count of rape. HELD: Accused-appellant could only be convicted for the crime of rape, instead of the complex crime of forcible abduction with rape. Indeed, it would appear from the records that the main objective of the accused when the victim was taken to the house of Mila Salvacion was to rape her. Hence, forcible abduction is absorbed in the crime of rape.

Article 343. Consented abduction

Elements:

1. 2. 3. 4. 



 

Offended party is a virgin; She is over 12 and under 18 years of age; Offender takes her away with her consent, after solicitation or cajolery; The taking away is with lewd designs. Purpose of the law: to prescribe punishment for the disgrace to her family and the alarm caused therein by the disappearance of one who is, by her age and sex, susceptible to cajolery and deceit. If the virgin is under 12, the crime is forcible abduction. (because law assumes that a person of such age cannot give consent, so this also applies to those deprived of reason) The taking away of the girl need not be with some character of permanence. When there was no solicitation or cajolery and no deceit and the girl voluntarily went with the man, C2005 Criminal Law 2 Reviewer

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there is no crime committed even if they had sexual intercourse.



 Article 344. Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and acts of lasciviousness.

 

Who may file complaint:

 

1.

For adultery and concubinage – must be prosecuted upon complaint signed by the offended person 

2.

For seduction, abduction or acts of lasciviousness – must be prosecuted upon complaint signed by  a. b. c. d.

the offended party her parents her grandparents or guardians, in the order in which they are named above.



 

Reason why the crimes against chastity cannot be prosecuted de oficio – offended woman might prefer to suffer the outrage in silence rather than go through with the scandal of a public trial

Adultery and concubinage











Offended party cannot institute criminal proceedings without including BOTH guilty parties, if they are both alive. Offended party cannot institute criminal proceedings if he shall have consented or pardoned the offenders. Pardon in adultery and concubinage must come before the institution of the criminal action and both offenders must be pardoned by the offended party if said pardon is to be effective. Consent – given before the adultery or concubinage was committed. Example: agreement to live separately. Delay in the filing of the complaint does not indicate pardon.

Seduction, abduction, acts of lasciviousness



Offended party cannot institute criminal proceedings if the offender has been EXPRESSLY pardoned by the offended party, or her parents, grandparents or guardian.



Pardon by the parent, grandparent or guardian must be accompanied by the express pardon of the offended woman herself. The right to file action of the parents, grandparents and guardian shall be exclusive of other persons and shall be exercised successively in the order provided. When the offended party is a minor, her parents may file the complaint. When the offended party is of age and is in complete possession of her mental or physical faculties, she alone can file the complaint. The guardian must be legally appointed by the court. Rape complexed with another crime against chastity need not be signed by the offended woman, since rape is a public crime. When the evidence fails to prove a complex crime of rape with another crime, and there is no complaint signed by the offended woman, the accused cannot be convicted of rape. Marriage of the offender with the offended party in seduction, abduction, acts of lasciviousness and rape, extinguishes criminal action or remits the penalty already imposed. The marriage extinguishes the criminal action even as to co-principals, accomplices and accessories of the crime. Marriage must be entered into in good faith and with the intent of fulfilling the marital duties and obligations. Pardon must be given before the institution of criminal proceedings (bar to prosecution). Marriage may take place after criminal proceedings have commenced, or even after conviction (extinguishes criminal action and remits penalty).

Pilapil vs. Ibay-Somera

Geiling, a German, was able to obtain a decree of divorce in Germany against his wife Pilapil, a Filipina. Five months after the issuance of the divorce decree, Geiling filed 2 complaints for adultery against Pilapil.

She challenged the complaint on the ground that the complainant, her husband, does not qualify as an offended spouse having obtained a final divorce decree under his national law prior to his filing the criminal complaint.

HELD: The crime of adultery, as well as four other crimes against chastity, cannot be prosecuted except upon a sworn written complaint filed by the offended spouse. It has long since been established, with unwavering consistency, that compliance with this rule is a jurisdictional, and not merely a formal, requirement. Now, the law specifically provides that in prosecutions for adultery and concubinage the person who can legally file the complaint should be the offended spouse, and nobody else. Unlike the offenses of seduction, abduction, rape and acts of lasciviousness, no provision is

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made for the prosecution of the crimes of adultery and concubinage by the parents, grandparents or guardian of the offended party. The so-called exclusive and successive rule in the prosecution of the first four offenses do not apply to adultery and concubinage.

 

It necessarily follows that such initiator must have the status, capacity or legal representation to do so at the time of the filing of the criminal action. Lack of legal capacity to sue, as a ground for a motion to dismiss in civil cases, is determined as of the filing of the complaint or petition.



Hence, with reference to adultery cases, the status of the complainant vis-à-vis the accused must be determined as of the time the complaint was filed. The person who initiates the adultery case must be an offended spouse, and by this is meant that HE IS STILL MARRIED to the accused spouse, at the time of the filing of the complaint.

The divorce obtained by Geiling and its legal effects may be recognized in the Phils. In view of the nationality principle in our civil law on the matter of status of persons. (Aliens of Filipino spouses may obtain divorces abroad, which may be recognized in the Phils. if they are valid according to their national law._

Being no longer the husband of Pilapil, Geiling had no legal standing to commence the adultery case under the imposture that he was the offended spouse at the time he filed the suit.

Article 345. Civil liability of persons guilty of crimes against chastity

parents of the female seduced, raped or abused may also recover moral damages. All offenders in multiple rape must support the offspring, as any one of them may be the father. Under the Civil Code, judgment to recognize the offspring may only be given if there is pregnancy within the period of conception, which is within 120 days from the commission of the offense (Article 283) In rape of a married woman, only indemnity is allowed. Defendant cannot be sentenced to acknowledge the offspring, because the woman is married. Support cannot also be given, because the offender cannot enter periodically the house of the married woman to give such support. This will cause disturbance to the family rights of the married couple.

Article 346. Liability of ascendants, guardians, teacher or other persons entrusted with the custody of the offended party

Persons who cooperate as accomplices but are punished as principals in rape, seduction, abduction, acts of lasciviousness etc (chapters 2, 3 and 4 of this title):

1. 2. 3. 4. 5.

ascendants guardians curators teachers any other person, who cooperates as accomplice with abuse of confidence or confidential relationship

Title Twelve

Civil liabilities of persons guilty of rape, seduction, or abduction:

1. 2. 3. 

 



To indemnify the offended woman; To acknowledge the offspring, unless the law shall prevent him from so doing; In every case to support the offspring The adulterer and concubine can be sentenced only to indemnify for damages caused to the offended spouse. No civil liability of acts of lasciviousness under this article. Only indemnity is possible in adultery and concubinage because only children born of parents who could marry at the time of conception may not be acknowledged. Support is also not possible because the person who gives birth is one of the offenders. Moral damages may be recovered in seduction, abduction, rape or other lascivious acts, as well as adultery and concubinage (Art. 2219, Civil Code). The

CRIMES AGAINST THE CIVIL STATUS OF PERSONS

Chapter One. SIMULATION OF BIRTHS AND USURPATION OF CIVIL STATUS

Article 347. Simulation of births, substitution of one child for another, and concealment or abandonment of a legitimate child Article 348. Usurpation of civil status

Chapter Two – ILLEGAL MARRIAGES

Article 349. Bigamy Article 350. Marriage contracted against provisions of

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laws Article 351. Premature marriages Article 352. Performance of illegal marriage ceremony

Article 347. Simulation of births, substitution of one child for another, and concealment or abandonment of a legitimate child.

Acts punishable:

1. 2. 3.

Simulation of births; Substitution of one child for another; Concealing or abandoning any legitimate child with intent to cause such child to lose its civil status.

The Sangalang spouses together with Gloria and Bienvenido were charged of the crime of simulation of birth. The information alleged that a child was furnished by Gloria to the Sangalangs. Accused Bienvenido registered the birth of said child in the local civil registrar by supplying to said office the necessary information required so that a birth certificate would be issued. He named the Sangalangs as the child’s parents. A birth certificate was hence issued. Information did not contain any specific allegation as to what the spouses did, except that they had conspired with Gloria and Bienvenido.

HELD: In the crime of simulation of births, it must be shown that the “pretending parents” have registered or caused in the registration of the child as their own with the Registry of Births, or that in doing so they were motivated by a desire to cause the loss of any trace as to the child’s true filiation to his prejudice.

In the instant case, SC found no evidence to sport the finding of TC that the registration was effected by the Sangalangs. As the evidence would show, it was their daughter Alicia (not Bienvenido, but still not the spouses) who had a hand in the registration of the child).

Elements:

a. b. c.

the child must be legitimate; the offender conceals or abandons such child; and the offender has the intent to cause such child to lose its civil status.

Article 348. Usurpation of civil status



  

 







The object of the crime is the creation of false, or the causing of the loss of, civil status. Example of simulation of birth: a woman pretends to be pregnant when in fact she is not, and on the day of the supposed delivery, takes the child of another as her own. The fact that the child will be benefited by the simulation of birth is not a defense Example of substituting one child for another: A and B both gave birth on the same day. The nurse in the hospital exchanges the children of A and B in the nursery. Abandon – leaving a child in a place where other people may find it, causing the child to lose its status. Example of concealing or abandoning: A mother who leaves her child at the door of an orphanage. A physician or surgeon or public officer, who cooperates in the execution of these crimes, is also liable if he acts in violation of the duties of his profession or office.

 



Committed when a person usurps the civil status of another, by assuming the filiation, or the parental or conjugal rights of another. The term ‘civil status’ includes one’s public station, or the rights, duties, capacities and incapacities which determine a person to a given classs. Usurpation of profession may be punished under this article. There must be intent to enjoy the rights arising from the civil status of another, otherwise the case will be considered only as using a fictitious name, or as estafa, depending on the facts of the case. The purpose of defrauding the offended party or his heirs qualifies the crime.

Article 349. Bigamy

Elements:

1. 2.

People vs. Sangalang

3.

Offender has been legally married; The marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead by means of a judgment rendered in a proper proceedings, according to the Civil Code; He contracts a second or subsequent marriage; C2005 Criminal Law 2 Reviewer

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4.





 







 

The second or subsequent marriage has all the essential requisites for validity. Nullity of the first marriage is not a defense in a bigamy charge. There must be a judicial declaration of the nullity of a previous marriage before contracting the second marriage. Causes which may produce the legal dissolution of the first marriage: o Death of one of the contracting parties o Judicial declaration annulling a void marriage o Judicial declaration annulling a voidable marriage Defense has the burden of proof of dissolution of first marriage. For the present spouse to contract a subsequent marriage, an absent spouse is presumed dead if he has been absent for four consecutive years and the spouse present had a well-founded belief that he is already dead. In case of disappearance where there is danger of death, an absence of only two years will be sufficient. However, a declaration of presumptive death should first be obtained from the courts. The second marriage must have all the requisites for validity were it not for the existence of the first marriage. The second spouse is not necessarily liable for the bigamy. If the second husband or wife knew of the first marriage, he/she is an accomplice in the crime of bigamy. The witness who falsely vouched for the capacity of either of the contracting parties is also an accomplice. Bigamy is not a private crime. It is an offense against the State, not against the second wife. A person convicted of bigamy may still be prosecuted for concubinage.

People vs. Aragon

Elements:

1. 2.

Offender contracted marriage; He knew at the time that a. b.





The requirements of the law were not complied with; or The marriage was in disregard of a legal impediment.

If either of the contracting parties obtains the consent of the other by means of violence, intimidation or fraud, the maximum period of the penalty shall be imposed. The offender must not be guilty of bigamy, to be punishable under this article.

Lucio Morigo v People (2002) FACTS: Lucio Morigo and Lucia Barrete were boardmates. After school year 1977-78 they lost contact with each other. In 1984, Lucio Morigo was surprised to receive a card from Lucia Barrete from Singapore. The former replied and after an exchange of letters, they became sweethearts. In 1986, Lucia returned to the Philippines but left again for Canada to work there. While in Canada, they maintained constant communication. In 1990, Lucia came back to the Philippines and proposed to Lucio to join her in Canada. Both agreed to get married. On September 8, 1990, Lucia reported back to her work in Canada leaving appellant Lucio behind. On August 19, 1991, Lucia filed with the Ontario Court for divorce which was granted on January 17, 1992. On October 4, 1992, appellant Lucio Morigo married Maria Jececha Lumbago. On September 21, 1993, accused filed a complaint for judicial declaration of nullity of marriage in the RTC. On October 19, 1993, Lucio was charged with Bigamy and found guilty thereon. HELD: The primordial issue should be whether or not petitioner committed bigamy and if so, whether his defense of good faith is valid. In Marbella-Bobis v. Bobis, we laid down the elements of bigamy thus: (1)

Aragon contracted a 2nd marriage while the first marriage was still subsisting. Eventually the first wife died. He contracted a third marriage. Aragon was charged of bigamy.

(2) the first marriage has not been legally dissolved, or in case his or her spouse is absent, the absent spouse has not been judicially declared presumptively dead; (3)

HELD: A subsequent marriage contracted by any person during the lifetime of his first spouse is illegal and void from its performance, and no judicial decree is necessary to establish its invalidity as distinguished from mere annullable marriages. The second marriage is void, hence the third marriage is valid.

Article 350. Marriage contracted against provisions of laws

the offender has been legally married;

he contracts a subsequent marriage; and

(4) the subsequent marriage would have been valid had it not been for the existence of the first. aDcTHE Applying the foregoing test to the instant case, we note that the trial court found that there was no actual marriage ceremony performed between Lucio and Lucia by a solemnizing officer. Instead, what transpired was a mere signing of the marriage contract by the two, without the presence of a solemnizing officer. The first element of bigamy as a crime requires that the accused must have been legally married. But in this case, legally speaking, the petitioner was never married to Lucia

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Barrete. Thus, there is no first marriage to speak of. Under the principle of retroactivity of a marriage being declared void ab initio, the two were never married “from the beginning.” The contract of marriage is null; it bears no legal effect. Taking this argument to its logical conclusion, for legal purposes, petitioner was not married to Lucia at the time he contracted the marriage with Maria Jececha. The existence and the validity of the first marriage being an essential element of the crime of bigamy, it is but logical that a conviction for said offense cannot be sustained where there is no first marriage to speak of. The petitioner, must, perforce be acquitted of the instant charge.

Abunado v. People (2004)

FACTS: September 18, 1967 Salvador married Narcisa Arceño at the Manila City Hall before Rev. Pedro Tiangco. In 1988 Narcisa left for Japan to work but returned to the Philippines in 1992, Narcisa found Salvador in Quezon City cohabiting with Fe Corazon Plato. She also discovered that on January 10, 1989, Salvador contracted a second marriage with a certain Zenaida Biñas. An annulment case was filed by Salvador against Narcisa. A case for bigamy was filed by Narcisa against Salvador and Zenaida. Salvador admitted that he first married Zenaida on December 24, 1955 before a municipal trial court judge in Concepcion, Iloilo and has four children with her prior to their separation in 1966. It appeared however that there was no evidence of their 1955 marriage so he and Zenaida remarried on January 10, 1989, upon the request of their son for the purpose of complying with the requirements for his commission in the military. The trial court convicted petitioner Salvador Abunado of bigamy.

HELD: Abunado claims that his petition for annulment/declaration of nullity of marriage was a prejudicial question, hence, the proceedings in the bigamy case should have been suspended during the pendency of the annulment case. Petitioner, in fact, eventually obtained a judicial declaration of nullity of his marriage to Narcisa on October 29, 1999. 15 The subsequent judicial declaration of the nullity of the first marriage was immaterial because prior to the declaration of nullity, the crime had already been consummated. Moreover, petitioner's assertion would only delay the prosecution of bigamy cases considering that an accused could simply file a petition to declare his previous marriage void and invoke the pendency of that action as a prejudicial question in the criminal case. We cannot allow that. 17 The outcome of the civil case for annulment of petitioner's marriage to Narcisa had no bearing upon the determination of petitioner's innocence or guilt in the criminal case for bigamy, because all that is required for the charge of bigamy to prosper is that the first marriage be subsisting at the time the second marriage is contracted. Thus, under the law, a marriage, even one which is void or voidable, shall be deemed valid until declared otherwise in a judicial proceeding. In this case, even if petitioner eventually obtained a declaration that his first marriage was void ab initio, the point is, both the first and the second marriage were subsisting before the first marriage was annulled.

Diego v. Castillo (2004) FACTS: On January 9, 1965, Lucena Escoto contracted marriage with Jorge de Perio, Jr. The couple were both Filipinos. In the marriage contract, the accused used and adopted the name Crescencia Escoto, with a civil status of single. In a document dated February 15, 1978, denominated as a “Decree of Divorce” purportedly issued by an American court, Crescencia de Perio was granted a Divorce from Jorge. Subsequently, Crescencia Escoto contracted marriage with Manuel P. Diego. The marriage contract shows that this time, the accused used and adopted the name Lucena Escoto, again, with a civil status of single. Later, a case for bigamy was filed against her by her brother in law. After trial of the criminal case for bigamy, Judge Castillo promulgated a decision stating that the main basis for the acquittal was good faith on the part of the accused. Judge Castillo gave credence to the defense of the accused that she acted without any malicious intent. The evidence he averred gave accused Lucena Escoto sufficient grounds to believe that her previous marriage had been validly dissolved by the divorce decree and that she was legally free to contract the second marriage with Manuel P. Diego.

1. HELD: A careful study of the disputed decision reveals that respondent Judge had been less than circumspect in his study of the law and jurisprudence applicable to the bigamy case. In his comment, respondent Judge stated: “That the accused married Manuel P. Diego in the honest belief that she was free to do so by virtue of the decree of divorce is a mistake of fact.” This Court, in People v. Bitdu, carefully distinguished between a mistake of fact, which could be a basis for the defense of good faith in a bigamy case, from a mistake of law, which does not excuse a person, even a lay person, from liability. Bitdu held that even if the accused, who had obtained a divorce under the Mohammedan custom, honestly believed that in contracting her second marriage she was not committing any violation of the law, and that she had no criminal intent, the same does not justify her act. This Court further stated therein that with respect to the contention that the accused acted in good faith in contracting the second marriage, believing that she had been validly divorced from her first husband, it is sufficient to say that everyone is presumed to know the law, and the fact that one does not know that his act constitutes a violation of the law does not exempt him from the consequences thereof. Moreover, squarely applicable to the criminal case for bigamy, is People v. Schneckenburger, where it was held that the accused who secured a foreign divorce, and later remarried in the Philippines, in the belief that the foreign divorce was valid, is liable for bigamy.

Article 351. Premature marriages

Persons liable:

1.

A widow who is married within 301 days from the date of the death of her husband, or before having delivered if she is pregnant at the time of his death; C2005 Criminal Law 2 Reviewer

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2.

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

A woman who, her marriage having been annulled or dissolved, married before her delivery or before the expiration of the period of 301 days after the date of the legal separation. Reason behind the law: to prevent doubtful paternity, because the woman might have conceived and become pregnant by her previous husband. The period of 301 days may be disregarded if the first husband was impotent or sterile.

Section Two. General Provisions Article 360. Persons responsible Article 361. Proof of the truth Article 362. Libelous remarks

Chapter Two. Incriminatory Machinations Article 363. Incriminating innocent persons Article 364. Intriguing against honor

Article 352. Performance of illegal marriage ceremony







Priests or ministers of any religious denomination or sect, or civil authorities who shall perform or authorize any illegal marriage ceremony The offender must be authorized to solemnize marriages. If the accused is not authorized, he is liable under article 177 (usurpation of authority or official functions) Offender is punished under the marriage law (there is such a law?!?).

Article 353. Definition of Libel A libel is a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstances tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.

Elements: 1.

Title Thirteen CRIMES AGAINST HONOR

2. 3. 4. 5.

There must be an imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance; The imputation must be made publicly; It must be malicious; The imputation must be directed at a natural or juridical person, or one who is dead; The imputation must tend to cause the dishonor, discredit or contempt of the person defamed.

Chapter One. Libel Section One. Definition, forms and punishment of this crime Article 353. Libel

There must be a defamatory imputation. The imputation may cover: a.

Article 354. Requirement for publicity

b.

Article 355. Libel by means of writings or similar means

c.

Article356. Threatening to publish and offer to present such publication for a compensation Article 357. Prohibited publication of acts referred to in the course of official proceedings Article 358. Slander Article 359. Slander by deed

crime allegedly committed by the offended party; vice or defect, real or imaginary, of the offended party; or any act or omission, condition, status of, or circumstance relating to the offended party.

 “Defamation” is the proper term for libel as used in Art. 353.

 “Libel” strictly is a defamation committed by means of writing, printing, lithography, engraving, radio, phonograph …. or any similar means.  When the defamation is oral, it is called “slander”.

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 Seditious libel is punished not in this chapter but in Art. 142 (Inciting to sedition).

 Test of defamatory character of words used: A charged is sufficient if the words are calculated to induce the hearers to suppose and understand that the person against whom they were uttered was guilty of certain offenses, or are sufficient to impeach his honesty, virtue or reputation, or to hold him up to public ridicule.

 The meaning of the writer is immaterial. It is not the intention of the writer or speaker, or the understanding of the plaintiff or of any hearer or reader by which the actionable quality of the words is to be determined, but the meaning that the words in fact conveyed on the minds of persons of reasonable understanding, discretion and candor, taking into consideration the surrounding circumstances which were known to the hearer or reader.

 Malice may be in-fact or in-law.  Malice in fact - must be proved by a showing of ill-will, hatred or purpose to injure  Malice in law - is presumed from a defamatory imputation  proof of malice is not required  (The distinction exists for purposes of determining WON there is defamation where privileged communication is involved thus:) As a general rule, malice in law is presumed from a defamatory imputation. But where privileged communication is involved, malice (in law) is NOT presumed  the plaintiff must prove malice in fact. In either case, where malice in fact is present, justifiable motives cannot exist and the imputations become actionable.

ELEMENT 4: IDENTIFICATION  ELEMENT 1: IMPUTATION Examples:

 It must be shown that at least a 3 rd person could identify the offended party as the object of the libelous publication.

* Imputation of a vice  imputing upon a person lascivious and immoral habits in an article

 But libel published in different parts may be taken together to establish the identification of the offended party.

* Imputation of an act or omission  “X borrows money without intention to pay, she had her breasts augmented without paying the doctor” * Imputation of condition, status or circumstance  calling another a bastard or mangkukulam

ELEMENT 5: DISHONOR, DISCREDIT, CONTEMPT  Dishonor – disgrace, shame, ignominy Discredit – loss of credit or reputation; disesteem Contempt – state of being despised

 ELEMENT 2: PUBLICATION  Publication is the communication of the defamatory matter to some third person or persons.  Hence, sending a latter in a sealed envelope through a messenger is not publication. But sending to the wife, a letter defamatory of her husband, is sufficient publication. (The person defamed is the husband and the wife is already considered a 3rd person) If the defamatory imputation is not published there is NO crime. The law permits us to think as badly as we please of our neighbors so long as we keep our uncharitable thought to ourselves.

 ELEMENT 3: MALICE  Malice is used to indicate that the offender is prompted by personal ill-will or spite and speaks merely to injure the reputation of the person defamed.

There are as many offenses as there were persons defamed (PP vs. Del Rosario). When the alleged slanderous utterances were committed on the same date and at the same place, but against two different persons, the situation has given rise to two separate and individual causes for prosecution, with respect to each of the persons defamed.

Mercado vs. CFI Petitioner was charged with libel for imputing to Mrs. Virginia Mercado acts constituting enrichment thru corrupt practices. The offensive telegram which contained the allegations was addressed to the Secretary of the, Department of Public Works and Communications purportedly in line with President Marcos' appeal to the public to give information on undesirable employees in the government service to achieve the objectives of the New Society. He filed an MTD on the ground of the telegram being privileged

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communication. After the same was denied, a MTQ, alleging that the facts charged do not constitute an offense, was filed but when the same again met with a denial, the present action was instituted to annul the aforesaid orders. Respondents, in their Comment, stressed there was absence of any privilege, there being malice and bad faith, petitioner having been motivated by vengeance and ill-will in making the said communication as established by his previous conduct viz a viz the private respondent: the filing of several complaints, both administrative and criminal aimed to malign her good character and reputation which were subsequently dismissed or closed for lack of merit and/or insufficiency of evidence. HELD: Petition dismissed. Qualified privilege communication may be lost by proof of malice. The prosecution should be given the opportunity of proving malice in view of petitioner's conduct towards private respondent which casts doubt on his good faith.

position is open only for proprietary members and Marquez has failed to show any proof of his proprietary membership, that in view of these, he has been holding the position in a de facto capacity. This letter was published in the publication of the association.

HELD: The test of libelous meanings is not the analysis of a sentence into component phrases with the meticulous care of the grammarian or stylist, but the import conveyed by the entirety of the language to the ordinary reader. The SolGen is correct in holding that the imputation of being called a de facto president is tantamount to being acknowledged as a pretender or impostor.

Soriano vs. IAC Agbayani vs. Sayo Mahinan, manager of the Cagayan Valley Branch of the GSIS at Cauayan, Isabela, file at Bayombong, Nueva Vizcaya a complaint for written defamation against 4 subordinates. The 4 accused filed a MTQ, contending that the CFI Nueva Vizcaya has no jurisdiction over the case.

HELD: The proper venue of Mahinan’s criminal action against the petitioners is the CFI Isabela, since as GSIS branch manager, he was a public officer stationed at Cauayan, Isabela and that alleged libel was committed when he was in the public service.

Newsweek vs. IAC An article entitled “An Island of Fear” was published in Newsweek. The author wrote that that the island province of Negros Occidental is a place dominated by big landowners who not only exploited the impoverished and underpaid sugarcane laborers, but also brutalized and killed them with impunity. The sugarcane planters instituted a class action for libel.

HELD: To maintain a libel suit, a victim must be identifiable. Defamatory matter which does not reveal the identity of the person upon whom the imputation is cast affords no ground of action unless it can be shown that the readers of the libel could have identified the personality of the individual defamed. Defamatory remarks directed at a group of persons is not actionable unless the statements are all-embracing or sufficiently specific for the victim to be identifiable.

Lacsa vs. IAC Lacsa and Marquez were officers of the Philippine Columbian Association. Lacsa uncovered a glitch in the qualification of Marquez to be president. He addressed a letter to Marquez in the ff. tenor: that Marquez should step down from the presidency, because the

Soriano’s criminal liability was based on an article published in “The Guardian”, of which he is the editor. The basis of the article was a press release prepared in Tacloban and delivered to various newspapers. The intended circulation of “The Guardian” is nationwide. The libel case was docked at the RTC Letye. Soriano filed n MTQ on the basis of improper venue. He argues that the Leyte court had no jurisdiction because the publication house of “The Guardian” was located in Quezon City and that Tantuico also holds office in QC.

HELD: Local jurisprudence follow the “multiple publication” rule – that each and every publication of the same libel suit constitutes a separate offense, and warrants a separate cause of action for filing a libel suit. However, the publication requirement set forth by RPC360 refers to the “publication” (the official circulating organ) and not the “press release”. In harmonizing RPC360 with the “multiple publication” rule, the “press release” is not the document to be examined. Since the official publication is produced in QC and was not proven to have been produced/copied in Leyte or elsewhere, the trial should have been handled by a QC court.

Bulletin vs. Noel The article contained statements to the effect that American influence was a significant driver of the political ascendancy of the Mindalanos of Lanao. Complainants claimed this was an insulting statement that damaged the social standing of the clan.

HELD: The published work alleged to contain the libelous excerpt must be examined and viewed as a whole. Titles of royalty and nobility are not generally recognized or acknowledged socially in the national community. Personal hurt or embarrassment, even if real, is not automatically equivalent to defamation. The law against defamation protects the interest of a person in acquiring, retaining, and enjoying a reputation as good as one’s character and conduct warrant in the community. It is the community standards, not personal or family standards, that a court must refer in evaluation a publication claimed to be defamatory.

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Santos vs. CA The article published was a verbatim copy of a complained filed by Sandejas with the SEC against the brokerage firm of Carlos Sison.

Petitioner claims that private respondent alluded to him when she said the words "stupid", "bastards", "swindlers", and "plunderers" while testifying on the Deed of Sale with Right of Repurchase subject of a civil case. In her Answer, private respondent cited decisions of the Supreme Court to the effect that no action for libel or for damages may be founded on utterances made in the course of judicial proceedings.

HELD: The public article is but a faithful reproduction of a pleading filed before a quasi-judicial body. There are no embellishments, wild imputations etc. calculated to damage the reputation of the offended parties and expose them to public contempt. No valid cause of action to institute an action for libel exists.

HELD: It is a settled principle in this jurisdiction that statements made in the course of judicial proceedings are absolutely privileged. This absolute privilege remains regardless of the defamatory tenor and the presence of malice if the same are relevant, pertinent or material to the cause in hand or subject of the inquiry. Thus, the person making these statements such as a judge, lawyer or witness does not thereby incur the risk of being found liable thereon in a criminal prosecution or an action for the recovery of damages.

Sazon vs. CA

The statements made during the course of judicial proceedings enjoy the shield of absolute privilege. The privilege is not intended so much for the protection of those engaged in the public service and in the enactment and administration of law, as for the promotion of public welfare, the purpose being that members of the legislature, judges of courts, jurors, lawyers and witnesses may speak their minds freely and exercise their respective functions without incurring the risk of a criminal prosecution or an action for damages. In determining the issue of relevancy of statements made in judicial proceedings, courts have adopted a liberal attitude by resolving all doubts in favor of relevancy. Without question, the use of blatantly defamatory language like "stupid", "bastards", "swindlers", and "plunderers" in describing the adverse parties detract from the honor and dignity that befits a court proceeding and should have been stricken out of the records. The foregoing notwithstanding, the Court finds that the terms used by the private respondent in her pleading and in her testimony cannot be the basis for an award of moral damages and attorney's fees in favor of petitioner.

HELD: When the imputation is already held defamatory, malice on the part of the defendant (malice-in-fact) need not be proved because the law already presumes that the imputation is malicious (malice-in-law).

Defamatory remarks and comments on the conduct or acts of public officers which are related to the discharge of their duties will not constitute libel if the defendant proves that truth of the imputation (thus a form of privileged communication), but any attack on the private capacities of a public officer clearly beyond the scope of his official duties may constitute libel.

Even if the article falls under the cloak of privileged communications, it will not discount the fact that he wrote the same with malice, due to grudges an ill-will attendant in the circumstances surrounding the facts.

Vasquez vs. CA HELD: If the defamatory statement is made against a public official with respect to the discharge of his official duties and functions and the truth of the allegation is shown, the accused will be entitled to an acquittal even though he doesn’t prove that the imputation was published with good motives and for justifiable ends. (Because, upon proof of truth, the burden of proving that the offender acted with malice would be on the public officer)

Actual Malice Rule – Even if the defamatory statement is false, no liability can attach if it relates to official conduct, unless the public official concerned proves that the statement was made with knowledge that it was false or with reckless disregard of whether it was false or not.

Jalandoni vs. Drilon Respondents here were accused of printing libelous matter in newspapers. The matter pertained to actions by Jalandoni as member of the PCGG alleged to be illegal and unauthorized (sold certain shares of a company at undervalued prices to RCBC thereby defrauding the government). Justice secretary reversed the findings of prosecutors and dismissed the complaints.

HELD: Articles are not libelous. Articles merely stated insinuations on the deal between RCBC and Jalandoni as part of the PCGG. It just served to inform the public of irregularities in the transaction. In libels against public officers, to be liable, libel must relate to official conduct, even if the statement is false, unless officer proves that it was made with actual malice (with knowledge that it was false or not).

Borjal vs. CA

Navarette vs. CA

Borjal wrote a series of articles in his column about a certain “Edsa hero who is organizing conferences and seminars and soliciting money in the name of the President and DOTC secretary without the latter’s consent and authority. Wenceslao filed a case for libel saying that he

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felt alluded to in the articles as the organizer and that he was almost certain that it was him.

HELD: No libel. In libel, it is essential that the victim be identifiable even if not actually named. It is not sufficient that the victim himself made the identification, but it is necessary that at least the victim be identifiable by a 3rd person.

Rafael filed an action for annulment of his marriage to Teresita. Among the evidence presented by Rafael in the trial court were several tape recordings of telephone conversations between Teresita and unidentified persons. The recordings were obtained when Rafael allowed his friends from the military to wire tap his home telephone.

CAB, no sufficient identification. Victim was not named, there were many Edsa heroes and many organizers of the seminars. And even the victim was not absolutely sure that it was him being alluded to.

HELD: Rep. Act No. 4200 entitled "An Act to Prohibit and Penalize Wire Tapping and Other Related Violations of the Privacy of Communication, and for other purposes" expressly makes such tape recordings inadmissible in evidence. Absent a clear showing that both parties to the telephone conversations allowed to recording of the same, the inadmissibility of the subject tapes is mandatory under Rep. Act No. 4200.

Fortich vs. Galleron

People v. Ogie Diaz (2007)

Fortich is a salesman of San Miguel. His supervisor Galleron suspected him of misappropriating the collections he received retailers and buyers, so an investigation was conducted on the matter. Galleron submitted an inter-office memorandum containing the results of his investigation. The memo was addressed to the Regional Sales Manager and contained this paragraph:

“In addition, I would like to further inform management that S/M Stanley Fortich is an avid mahjong player and a cockfighting enthusiast. In spite of several advices, there seems to be no change in his lifestyle. Also, respondent had a similar case last September 11, 1978.”

HELD: The controversial paragraph is not libelous. First, the memo was part and parcel of the investigation on Fortich’s non-remittance of collections. Secondly, the memo was notcirculated or publicized, much less read by officers of the corporation other than those involved in the investigation or those directly supervising the petitioner's work. More importantly, Fortich was unable to prove that the issuance of the memo was motivated by malice.

The last element of libel is that the victim is identified or identifiable from the contents of the libelous article. In order to maintain a libel suit, it is essential that the victim be identifiable, although it is not necessary that the person be named. It is enough if by intrinsic reference the allusion is apparent or if the publication contains matters of description or reference to facts and circumstances from which others reading the article may know the person alluded to, or if the latter is pointed out by extraneous circumstances so that those knowing such person could and did understand that he was the person referred to. Kunkle v. Cablenews-American and Lyons laid the rule that this requirement is complied with where a third person recognized or could identify the party vilified in the article.

Article 354. Requirement for Publicity

Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justiable motice for making it is shown, except in the following cases: 1.

While malice is presumed in every defamatory imputation, there are certain exceptions to this rule. The memo falls under the privileged communication rule. A privileged communication is one made bona fide upon any subject matter in which the party communicating has an interest, or in reference to which he has a duty. In the case at bar, Galleron, being Fortich’s supervisor, was charged with the duty to carry out and enforce company rules and policies, including the duty to undertake initial investigation of possible irregularities in customer accounts. The memo was an official act done in good faith, an honest innocent statement arising from a moral and legal obligation which the private respondent certainly owed to the company in the performance of his duties.

2.

A private communication made by any person to another in the performance of any legal, moral, or social duty; A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative, or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.

 The two exceptions in Art. 354 are the so-called privileged communications. When privileged communication is involved, malice in fact must be proved to convict the accused.

Salcedo-Ortanez vs. CA

Illustration of Art. 354: A tells C that B is a thief. The fact is B is really is a thief, because he was previously convicted of C2005 Criminal Law 2 Reviewer

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theft. Can it be presumed that the imputation by B is malicious? Yes, because Art. 354 says that “every defeamatory imputation is presumed to be malicious even if it be true.” But the presumption of malice is rebutted if A can show (1) good intention and (2) justifiable motive for making the imputation.

Thus, if B is applying for a position of security guard in the store of C, brother of A, and the purpose of A is to protect his brother from undesirable employees, then malice cannot be presumed.

 Tapos, if the accused sets up privileged communication as a defense, to overcome it, the prosecutions must prove that (1) the defendant acted with malice in fact (because the privileged only negates the presumption of malice in law), or (2) there is no reasonable ground for believing the charge to be true.

Illustration of “no reasonable ground for believing the charge to be true”: X admitted that he had personally made no investigation with reference to the truth of many of the statements made in the communication to the Secretary of Justice, especially with reference to the statements based on rumors that a judge received a bribe for dismissing a murder case.

 Two kinds of privileged communication: (1) Absolute

 RE: Par. 2 (Fair and true report of official proceedings…)

- not actionable, EVEN IF its author acted in bad faith - this class includes statements made by members of Congress in the discharge of their functions as such, allegations in pleadings made by parties or their counsel, answers given by witnesses in reply to questions propounded to them (provided the answers are responsive and the allegations are relevant) - usually limited to legislative and judicial proceedings and other acts of state

 Defamatory remarks and comments on the conduct or acts of public officers which are related to the discharge of their official duties will not constitute libel if the defendant proves the truth of the imputation. The conduct of public officers which are related to the discharge of their official duties are matters of public interest, and it is a defense to an action for libel or slander that the words complained of are a fair comment on a matter of public interest.

(2) Conditional or qualified - not actionable UNLESS made with malice or bad faith - this class includes those communications mentioned as exceptions in Art. 354

 RE: Par. 1 (Private communication made by any person to another…)

Illustration: X files a complaint in good faith against a priest to his ecclesiastical superior allegedly for taking indecent liberties of women  private communication in the performance of a moral duty  privileged!

 Unnecessary publicity destroys good faith. So for example, if a copy of the complaint above is sent to a newspaper for publication, the privilege is destroyed.

 That the statement is a privileged communication is a matter of defense and, like all other matters of defense, must be established by the accused.

What is a fair comment? If the comment is an expression of an opinion, based upon proven facts, then it is no matter that the opinion happens to be mistaken so long as it might be reasonably inferred from the facts. Comment may be fair, although wrong.

 But any attack upon the private character of the public officer on matters which are not related to the discharge of their official functions, may constitute libel. No one has the right to invade another’s privacy.

 Rule on self-defense – A person libeled is justified to hit back with another libel. But the defamatory statements made by the accused must be a fair answer to the libel made by the offended party and must be related to the imputation made. The answer should not be unnecessarily libelous.

Illustration: A to B, C & D: “You pimp, women of ill repute, thieves, paramours of my husband”. B to A: “You are a woman of the street, you smell bad, and your money was stolen from the PCAU” + C to A “You are shameless, blackmailer, murderer” + D to A “You have a thick face, you are not legally married, you are the paramour of Father Baluyut.”

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Held: To repel attack, the defendant may make an explanation of the imputation, and it is only where, if by explaining, he must of necessity have to use scurrilous and slanderous remarks, that he may legally be allowed to do so without placing himself under criminal prosecution. Here, B, C, D’s remarks were unnecessarily scurrilous.

Article 355. Means

Libel by Means of Writings or Similar

A libel may be committed by means of 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

the CA in his belief that he was merely exercising a civil or moral duty in writing the letter to private complainant. In fact, petitioner could have applied for probation to evade prison term but he did not do so believing that he did not commit a crime thus, he appealed his case. We believe that the State is concerned not only in the imperative necessity of protecting the social organization against the criminal acts of destructive individuals but also in redeeming the individual for economic usefulness and other social ends. Consequently, we delete the prison sentence imposed on petitioner and instead impose a fine of six thousand pesos.

Writing; Printing; Lithography; Engraving; Radio; Photograph; Painting; Theatrical exhibition; Cinematographic exhibition; or Any similar means.

 Defamation through amplifier is not libel, but oral defamation. The word ‘radio’ should be considered in relation to the terms with which it is associated – all of which have a common characteristic, namely, their permanent nature as a means of publication.  But defamation made in a TV program is libel. It easily qualifies under the general provision “or any similar means”. Magno v. People (2006) Sending an unsealed libelous letter to the offended party constitutes publication.

Buatis v. People (2006)

This is not the first time that we removed the penalty of imprisonment and imposed a fine instead in the crime of libel. In Sazon v. Court of Appeals, petitioner was convicted of libel and was meted a penalty of imprisonment and fine; and upon a petition filed with us, we affirmed the findings of libel but changed the penalty imposed to a mere fine.

Article 356. Threatening to Publish and Offer to Prevent Such Publication for A Compensation Acts punished 1.Threatening another to publish a libel concerning him, or his parents, spouse, child, or other members of his family; 2. Offering to prevent the publication of such libel for compensation or money consideration.  Blackmail - In its metaphorical sense, blackmail may be defined as any unlawful extortion of money by threats of accusation or exposure. Two words are expressive of the crime - hush money.  In what felonies is blackmail possible? Blackmail is possible in (1) light threats under Article 283; and (2) threatening to publish, or offering to prevent the publication of, a libel for compensation, under Article 356.

Facts: One lawyer sent another an insulting letter, in closing saying, “Yours in Satan’s name”. Held: There is publication in this case. In libel, publication means making the defamatory matter, after it is written, known to someone other than the person against whom it has been written. Petitioner’s subject letter-reply itself states that the same was copy furnished to all concerned. Also, petitioner had dictated the letter to his secretary. It is enough that the author of the libel complained of has communicated it to a third person. Furthermore, the letter, when found in the mailbox, was open, not contained in an envelope thus, open to public.

Article 357. Prohibited Publication of Acts Referred to in the Course of Official Proceedings Elements 1. 2.

While Vaca case is for violation of B.P. 22, we find the reasons behind the imposition of fine instead of imprisonment applicable to petitioner’s case of libel. We note that this is petitioner’s first offense of this nature. He never knew respondent prior to the demand letter sent by the latter to Mrs. Quingco who then sought his assistance thereto. He appealed from the decision of the RTC and

3.

Offender is a reporter, editor or manager of a newspaper, daily or magazine; He publishes facts connected with the private life of another; Such facts are offensive to the honor, virtue and reputation of said person.

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 The provisions of Art. 357 constitute the so-called “Gag Law”. Newspaper reports on cases pertaining to adultery, divorce, issues about the legitimacy of children etc., will necessarily be barred from publication.

People vs. Pelayo

 The prohibition applies even though said publication be made in connection with or under the pretext that it is necessary in the narration of any judicial or administrative proceedings wherein such facts have been mentioned.

Pelayo told Clapano (councilor), within the hearing of three people, that in one of his investigations on illegal gambling, an operator, Lim Peng, told him Almendras (governor) received P500 from said operator as protection money. The following day, Pelayo delivered a privileged speech in the City Council’s session where it could be inferred that he was referring to Almendras as a “tong collector”.

Illustration: A uttered defamatory remarks calling a priest a savage and that he had a concubine. While the case was pending trial, a newspaper published the complaint verbatim including the defamatory expressions of A.

 RA1477 – The publisher, editor, columnist or reporter of any periodical of general circulation cannot be compelled to reveal the source of any news report or information appearing in said publication which was related in confidence to such publisher etc. unless the court or a House or committee of Congress finds that such revelation is demanded by the security of the State, without prejudice to the publisher’s etc. liability under civil and criminal laws.

Article 358. Slander Slander is oral defamation. There are tow kinds of oral defamation: (1) Simple slander; and (2) Grave slander, when it is of a serious and insulting nature.  Factors that determine the gravity of oral defamation: 1. 2. 3.

expressions used personal relations of the accused and the offended party circumstances surrounding the case

Illustration of grave slander: “You sold the union. You swindled the money of the members and received bribe money in the amount of P10K…”

Illustration of simple slander: An accusation that the offended party has been living successively and with several men uttered before several persons, when intended to correct an improper conduct of the offended party, a kin of the accused, is only simple slander.  The slander need not be heard by the offended party, because a man’s reputation is the estimate in which other hold him, not the good opinion which he has of himself.

HELD: Facts of the case do NOT constitute intriguing against honor where the source of the derogatory information cannot be determined and defendant borrows the same without subscribing to the truth thereof, passes it to others. The information allegedly came from a definite source (Lim Peng) which he adopted as his, passed it to another for the purpose of causing dishonor to the other’s reputation. The act is slander (light oral defamation).

Victorio vs. CA Father and son Victorio were overheard by people to have uttered defamatory words against Atty. Ruiz after a hearing where Atty. Ruiz moved for contempt of the counsel of Victorio. They were found guilty of Grave Oral Defamation.

HELD: Oral defamation or slander has been defined as the speaking of base and defamatory words which tend to prejudice another in his reputation, office, trade, business or means of livelihood. The special circumstances of the case, antecedents or relationship between offended and offender, which might tend to prove intention of offender at the time, aside from the sense and grammatical meaning of the defamatory words are considered as guidelines in determining whether the offense is serious or slight.

Attributing to a prominent lawyer a crime (estafa) is a serious and insulting imputation that strikes deep into the character of the victim. No special circumstance need be shown for defamatory words to be considered grave oral defamation.

That defamatory words were uttered in the heat of anger cannot lie where there was no reason or lawful cause to be angry against Ruiz who was merely performing his duties aw a lawyer in defense of client, and no provocation.

People vs. Orcullo Judge Orcullo dismissed the case for oral defamation against Peralta (she imputed adultery and prostitution against Flores) on the ground that it was a private crime to be instituted by the offended party. SC reinstated case for trial.

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HELD: The words said by Peralta are indubitably imputation of the crime of prostitution, which can be prosecuted de oficio and not adultery. Connotation of hostess is notoriously referred to prostitutes. Only when derogatory remarks clearly and categorically reflect the elements constituting adultery would the complainant for libel by the offended party be necessary to commence prosecution

 What is slander by deed? It is a crime against honor which is committed by performing an act which casts dishonor, discredit, or contempt upon another person. Illustrations: slapping the face of another if the intention is to cause shame and humiliation, fighting another with intention to humiliate him

Villanueva v. People (2006)

The Court does not condone the vilification or use of scurrilous language on the part of petitioner, but following the rule that all possible circumstances favorable to the accused must be taken in his favor, it is our considered view that the slander committed by petitioner can be characterized as slight slander following the doctrine that uttering defamatory words in the heat of anger, with some provocation on the part of the offended party, constitutes only a light felony.

Figeroa v. People (2006)

While it is true that a publication's libelous nature depends on its scope, spirit and motive taken in their entirety, the article in question as a whole explicitly makes mention of private complainant Rivera all throughout. It cannot be said that the article was a mere general commentary on the alleged existing state of affairs at the aforementioned public market because Rivera was not only specifically pointed out several times therein but was even tagged with derogatory names. Indubitably, this name-calling was, as correctly found by the two courts below, directed at the very person of Rivera himself.

 vs. Acts of lasciviousness Kissing a girl in public and touching her breasts without lewd designs, committed by a rejected suitor to cast dishonor on the girl is slander by deed NOT acts of lasciviousness.

 vs. Maltreatment The nature and effects of the maltreatment determine the crime committed. If the offended party suffered from shame or humiliation caused by the maltreatment, it is slander by deed.

Unjust vexation

Slander by deed

Acts of lasciviousness

Irritation or annoyance + With publicity and dishonor or contempt

+ presence of the circumstances provided for in RPC 335 on rape (force or intimidation, unconscious etc.) together with lewd designs

Article 359. Slander by Deed

Elements 1. 2. 3.

Offender performs any act not included in any other crime against honor; Such act is performed in the presence of other person or persons; Such act casts dishonor, discredit or contempt upon the offended party.

Slander by deed refers to performance of an act, not use of words.

Two kinds of slander by deed 1. 2.

Simple slander by deed; and Grave slander by deed, that is, which is of a serious nature.

People vs. Motita Motita used a mirror to view reflection of private parts of Letada. Crowd nearby were laughing with their eyes directed towards her.

HELD: Crime committed was slander by deed.

Unjust vexation is committed when the offender’s act caused annoyance, irritation, vexation, torment, distress or disturbance to the mind of the person to whom it is directed. If there was attendant publicity and dishonor or contempt in addition to the irrigation or annoyance, offense would be slander by deed as in this case. If any of the circumstances provided for rape together with lewd designs were present in addition to the annoyance, the offense would be act of lasciviousness.

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Article 360. Persons responsible The persons responsible for libel are:

1. 2. 3. 4.

The person who publishes, exhibits or causes the publication or exhibition of any defamation in writing or similar means; The author or editor of a book or pamphlet; The editor or business manager of a daily newspaper magazine or serial publication; The owner of a printing plant which publishes a libelous article with his consent and all other persons who in any way participate in or have connection with its publication.

Venue of criminal and civil actions for damages in cases of written defamations (In case one of the offended parties is a private individual)

1. 2.

Where the libelous article is printed and first published; or Where any of the offended parties actually resides at the time of the commission of the offense.

 Where one of the offended parties is a public officer, the action shall be filed in the CFI (1) of the province or city where he held office at the time of the commission of the offense OR (2) where the libelous article is printed and first published.

Article 361. Proof of the truth In every criminal prosecution for libel, the truth may be given in evidence to the court and if it appears that the matter charged as libelous is true, and, moreover, that it was published with good motives and for justifiable ends, the defendant shall be acquitted.

Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted, unless the imputation shall have been made against the Government employees with respect to facts related to the discharge of their duties.

In such cases, if the defendant proves the truth of the imputation made by him, he shall be acquitted.

Proof of truth is admissible in any of the following:

1. 2.

 The civil action shall be filed in the same cdourt where the criminal action is filed and vice versa.

 The court where the criminal action or civil action for damages is 1st filed shall acquire jurisdiction to the exclusion of other courts.

 If the defamation consists in the imputation of a crime which cannot be prosecuted de oficio (adultery, concubinage, seduction, abduction and acts of lasciviousness), then the offended party must a complaint.

 RE: DAMAGES recoverable  Actual damages need not be proved, at least (1) where the publication is libelous per se or (2) when the amount of the award is more or less nominal, because libel, by its nature, causes injury to the reputation of the offended party.  There is no remedy for damages for slander or libel in case of absolutely privileged communication.

When the act or omission imputed constitutes a crime regardless of whether the offended party is a private individual or a public officer; When the offended party is a Government employee, even if the act or omission imputed doesn’t constitute a crime, provided, it is related to the discharge of his official duties.

Illustration: A said that B, a gov’t official, was in the habit of drinking during office hours and that he was always in a boisterous condition. Is proof of truth allowed in case B should file a complaint against A for defamation? Yes. Both public interest and the good of the service demand that a drunkard be barred from the service. But when the imputation involves the private life of B which is not related to the discharge of his official duties, the offender cannot prove the truth thereof.

Another illustration: A made several imputations against C, a private individual, some of which insinuated the commission of crimes and some did not. Is proof of truth allowed? It depends. The defendant will be allowed to prove the truth of the imputations constituting crimes but he will not be allowed to prove the truth of the imputations not constituting crimes.

 DEFENSE in defamation, requisities: 1. 2.

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3.

For justifiable ends

machinations

 Retraction may mitigate damages. But in order to have the desired effect, the retraction should contain an admission of the falsity of the libelous publication and evince a strong desire to repair the wrong occasioned thereby.

Article 362. Libelous remarks Libelous remarks or comments connected with the matter privileged under the provisions of Article 354, if made with malice, shall not exempt the author thereof nor the editor or managing editor of a newspaper from criminal liability.

Offender doesn’t avail himself of written or spoken words in besmirching the victim’s reputation

Words, written or spoken, are availed of

Not required

Imputation must be public and malicious & must be calculated to cause the dishonor, discredit or contempt of the aggrieved party

People vs. Alagao Is there a complex crime of incriminating an innocent person through unlawful arrest?

 Thus, the author of a publication who distorts or discolors official proceedings reported by him, or adds comments thereon to cast aspersion on the character of the parties concerned, is guilty of libel, notwithstanding that the defamatory matter is published in connection with a privileged matter.

Article 363. Incriminating Innocent Persons

HELD: Yes. The two acts imputed to the accused closely followed each other, the unlawful arrest being a necessary means to plant the incriminatory evidence. Under the circumstances of the case, the accused had to arrest M because it was the only way that they could with facility detain him, search his person or effects and, commingle therewith the marked peso bill. A complex crime was committed.

Huggland vs. Lantin

Elements 1. 2. 3.

Offender performs an act; By such an act, he incriminates or imputes to an innocent person the commission of a crime; Such act does not constitute perjury.

 This article is limited to “planting” evidence and the like, which do not in themselves constitute false prosecutions but tend directly to cause false prosecution.

Incriminating an innocent person

Perjury by making false accusation

Committed by performing an act by which the offender directly incriminates another

The gravamen is the imputation itself, falsely made before an officer

Limited to the planting evidence

Giving of false statement under oath or making a false affidavit, imputing to another the commission of a crime

act

of

Judge Lantin was arrested for bribery for allegedly having received marked money amounting to P5,000 from one Magdalena Huggland who was implicated in a criminal case. The P5,000 was allegedly part of the P25,000 being asked by Judge Lantin for the cancellation of the hold departure order issued against Ms. Huggland. The issue is whether this is case of entrapment or planting of evidence. HELD: This is a case of entrapment. Let us distinguish entrapment from planting of evidence. In entrapment, the criminal intent or design to commit the offense charged originates in the mind of the accused and the law enforcement officials merely facilitate the commission of the offense, the accused cannot justify his conduct. Planting of evidence or incriminating innocent person is committed by performing an act by which the offender directly incriminates or imputes to an innocent person the commission of a crime. From the testimonial and documentary evidence submitted by the parties, there is reason to believe that indeed, this is a case of entrapment not planting of evidence. The conclusion is based on the following: (1) The subpoena was illegally issued; (2) The Motion to Quash Hold Departure Order and the Order of Cancellation of the Hold Departure Order were prepared and typewritten by the respondent; and (3) The Money used in the entrapment operation was recovered from one of the left drawers of the respondent's table.

Article 364. Intriguing against Honor Incriminatory

Defamation

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This crime is committed by any person who shall make any intrigue which has for its principal purpose to blemish the honor or reputation of another person.

Incriminating an innocent person

Intriguing against Honor

Offender performs an act by which he directly incriminates or imputes to an innocent person the commission of a crime

Offender resorts to an intrigue for the purpose of blemishing the honor or reputation of another person

g)

persons; or (3) to communicate the contents thereof, either verbally or in writing, or (4) to furnish transcriptions thereof, whether complete or partial, to any other person. Provided, That the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses, shall not be covered by this prohibition; for any person who willfully or knowingly does or who shall aid, permit, or cause to be done any of the acts declared to be unlawful or who violates the provisions of the following section or of any order issued thereunder, or aids, permits, or causes such violation.

It is not unlawful: Defamation

Intriguing against Honor

Done by availing directly of spoken words

Committed by means which consists of some tricky and secret plot

ex., gossiping

Slander

Intriguing against Honor

The source of the info can be pinpointed and the defendant, adopting as his own the information he has obtained, passes the same to another for the purpose of causing dishonor to complainant’s reputation

The source or the author of the derogatory info cannot be determined and the defendant borrows the same, and without subscribing to the truth thereof, passes it to others

REPUBLIC ACT No. 4200 AN ACT TO PROHIBIT AND PENALIZE WIRE TAPPING AND OTHER RELATED VIOLATIONS OF THE PRIVACY OF COMMUNICATION, AND FOR OTHER PURPOSES It shall be unlawful: e)

f)

for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or dictaphone or walkie-talkie or tape recorder, or however otherwise described; for any person, be he a participant or not in the act or acts penalized in the next preceding sentence, (1) to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or (2) to replay the same for any other person or

a)

for any peace officer, who is authorized by a written order of the Court, to execute any of the acts declared to be unlawful in cases involving the crimes of treason, espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping as defined by the Revised Penal Code, and violations of Commonwealth Act No. 616, punishing espionage and other offenses against national security: Provided, That such written order shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and a showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed or is being committed or is about to be committed: Provided, however, That in cases involving the offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, and inciting to sedition , such authority shall be granted only upon prior proof that a rebellion or acts of sedition, as the case may be, have actually been or are being committed; (2) that there are reasonable grounds to believe that evidence will be obtained essential to the conviction of any person for, or to the solution of, or to the prevention of, any of such crimes; and (3) that there are no other means readily available for obtaining such evidence.

Effect of violation of the law: Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or any information therein contained obtained or secured by any person in violation of this Act shall not be admissible in evidence in any judicial, quasijudicial, legislative or administrative hearing or investigation.

Gaanan vs. IAC Atty. Pinto filed a complaint for direct assault against Atty. Laconico. Pintor, through phone, offered to withdraw the complaint for

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consideration. Atty. Gaanan was able to overhear this conversation through a telephone extension. Pinto was arrested for extortion. But Gaanan and Laconico were charged with violation of RA4200 and found guilty by the lower court.

HELD: The phrase “any other device or arrangement” in the AntWiretapping Law doesn’t cover an extension line. The law refers to a tap of a wire or cable or the use of a device or arrangement for the purpose of secretly overhearing, intercepting or recording the communication. There must be the physical interruption through a wiretap or the deliberate installation of a device or arrangement in order to overhear, intercept or record the spoken words. The extension here was not installed for the purpose but for ordinary office use. Also, an extension phone is an instrument which is very common, not what the law refers to in which the presence of such devices cannot be presumed by the party being overheard.

Ramirez vs. CA Ramirez field a civil case for damages against Garcia. IN support of her claim, she produced a verbatim transcript of the confrontation with Garcia where the latter allegedly vexed, insulted and humiliated her. The transcription on which the civil case was based was culled from a tape recording of the confrontation made by petitioner. As a result of the recording, Garcia filed a criminal case against Ramirez for violation of RA 4200.

HELD: The law makes no distinction as to whether the party sought to be penalized by the statute ought to be a party other than or different from those involved in the private communication. The statute’s intent to penalize all persons unauthorized to make such recording is underscored by the use of the qualifier “any”. Consequently, as respondent CA correctly concluded, even a person privy to a communication who records his private conversation with another without the knowledge of the latter (will) qualify as a violator under the provisions of RA4200. The lawmakers contemplated to make illegal unauthorized taped recording of private conversation or communication taken by either of the parties themselves of by third persons. The nature of the conversation is immaterial for conviction of the crime and communication as used includes conversation.

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