Criminal Law 2 Reviewer D2015.pdf

 

SUGGESTED REVIEW GUIDE CRIMINAL LAW II PROFESSOR I. M. GUTIERREZ III SECOND SEMESTER, AY 2011-2012 BALAUAG, Kim / CASTRO, Jenna / MARFIL, Jam / PLAZA, Paula/ SERZO, Lars / TEVES, Thea / VILLAFUERTE, Aby BLOCK D 2015

 

  Title One – CRIMES AGAINST NATIONAL SECURITY AND THE LAW OF NATIONS 1. Understand carefully the definition of treason and its component elements. Distinguish the overt act from the intent. Identify the persons who may incur liability. Bear in mind the two modes of commission. Understand how the two witness rule applies, and note the exception to the rule. Q: What is the definition of treason? A: It is a breach of allegiance to the government, committed by a person who owes allegiance to it. In general, it is the “violation by a subject of his allegiance to his sovereign or liege, lord, or to the supreme authority of the State.” Q: What does allegiance mean? A: It is the obligation of fidelity and obedience an individual owes to the government or sovereign in return for the protection he/she receives. It can be classified into permanent/absolute (for Filipino citizens) and temporary (for resident aliens). Q: What are the elements of Treason under Art. 114? A: Elements of Treason: 1. That the Offender is a Filipino citizen or an alien residing in the Philippines; 2. That there is a War in which the Philippines is involved; 3. That the offender either— a. Levies war against the government, or b. Adheres to the enemies (intent), giving them aid or comfort (overt act)

b.

c.

d.

2. SECOND MODE OF COMMISSION: Adhering to the enemies (intent), giving them aid or comfort (overt act). (IMPORTANT) General rule on intent and overt act: Adherence (intent) alone, say emotional or intellectual attachment or sympathy to the enemy, without giving them actual comfort or aid (overt act) does NOT constitute treason. In the same way, an act which may appear to give aid or comfort but without showing of adherence to the enemy also does NOT constitute treason. a.

Q: Who may incur liability for treason? A: Filipino citizens and resident aliens of the Philippines

On Element #1: How can one prove Filipino citizenship? (Some possible answers) 1. Prison records which set out personal circumstances properly identified as supplied by the accused himself. 2. Testimony of witnesses who knew that the accused has been born in the Philippines with Filipino parents. On Element #2: Can Treason be committed in time of peace? ● No. Treason is a war crime and is not an all-time offense. There are no traitors during peace time. The law of treason is an emergency measure and remains dormant until emergency arises. ● Though it should be noted that NO formal declaration of war is necessary in order that parties be guilty of levying war against the Government. Actual hostilities may determine the date of the commencement of war. On Element #3: What are the modes of committing treason? 1. FIRST MODE OF COMMISSION: Levying war against the government. a. Levying war requires that (1st): there is an actual assembling of men (2nd): for the purpose of executing a treasonable design by force. Actual enlistment of men to serve against the government  PAGE 2

DOES NOT amount to levying war because there is no actual assembling of men. (3rd): There must be intent to overthrow the government, not merely resistance to a statute or a particular officer. Those who rise publicly during war to inflict an act of hate or revenge upon the persons of public officers do NOT commit treason because the public uprising is not directed against the government. It should be noted that if the levying of war is merely a civil uprising—that is, without intent to help an external enemy—the crime is not treason but may be considered only as rebellion because (4th): there should be collaboration with a foreign enemy to qualify levying war. Note that ALL these 4 requirements should be present!

The second mode can be divided into two parts, the first being: “Adherence to enemy”, which means intent to betray. ● NOTE: The two-witness rule is NOT required here. ● How can adherence be proved then? i. By one witness, ii. From the nature of the act itself, or iii. From the circumstances surrounding the act.

What is considered as “adherence”(intent) Acceptance of a position which is highly responsible and policydetermining on part of the invader is considered adherence to the enemy.

b.

What is NOT considered as “adherence”

Mere acceptance of a public office and discharge of official duties, such as government work, pilotage service, or being a policeman under the Japanese regime do not constitute treason per se absent the showing of adherence to the cause of the enemy, such acting as a spy.

“Aid or comfort”, the second part of the second mode of committing treason, is an act which strengthens or tends to strengthen the enemy in the conduct of war against the traitorʼs country or that which weakens or tends to weaken the power of the traitorʼs country to attack the enemy. However, drawing the line between treasonable and untreasonable design is not easy as they depend upon their nature, degree, and purpose. In general, it must render assistance to the enemies as enemies (giving them support to wage war against the Philippines) and

CRIIMINAL LAW 2 FINALS REVIEWER / PROF. I.M. GUTIERREZ III / SECOND SEMESTER, AY 2011-2012 BALAUAG / /CASTRO / MARFIL / PLAZA / SERZO / TEVES / VILLAFUERTE (D2015)

  not as individuals (borne out of charity/ “awa” to aid an individual Japanese) and must be in furtherance of their hostile designs. What is considered as “aid or comfort” (overt act)

What is NOT considered as “aid or comfort”

A deed or physical action, such as furnishing the enemies with arms, troops, information or means of transportation is considered giving aid or comfort. There should be a showing of intent not merely negligence.

Thoughts or those merely a mental operation do NOT constitute aid or comfort. However, an act which intentionally gives psychological comfort to the enemy may be considered treasonable.

Mere membership to the Makapili is an overt act of psychological comfort to the enemies as it furnishes aid to the causes advanced by the Japanese forces.

Acceptance of an appointment from the KKK, there nothing else having been done, is not an overt act of treason.

Though being a policeman under the Japanese regime does not constitute treason, a policeman who accompanied Japanese soldiers to the abode of guerilla leaders with him personally forcing the leaders to disclose their connections to the guerilla constitute treason.

The commandeering of women to satisfy the lust of the Japanese forces is not considered treasonable, even if it helped boost the spirit of the enemies. It was merely “trivial, imperceptible, and unintentional”.

Giving information to the enemy, such as being an informer, agent, spy, or active member of the Japanese Military Police as well as being a “finger-woman” or pointing out to the Japanese who are considered guerillas are considered overt acts.

The sale of alum crystals and water pipes may give enemies aid or comfort, but if there is no evidence of intent to betray, the person making the sale is not guilty of treason.

The defendant should be acquitted if only one of the two witnesses is believed by the court. Every act, movement, deed, and word of the defendant charged to constitute treason must be supported by the testimony of two witnesses.

Exception to the two-witness rule: ● Conviction for treason does NOT ALWAYS require the two-witness rule. ● Confession of guilt made in an open court could ALSO convict a person for treason. However, the confession should not merely be an “admission of facts” wherein an accused, for example, just narrates how he was forced to join the enemies.There should be a plead of guilt before a judge while actually hearing a case. 2. Note the distinction between the status/personal circumstances of the perpetrator in treason as opposed to that in misprision of treason. What is the specific duty violated in misprision of treason? What are the elements of Misprision of Treason under Art. 116? 1. Offender owes allegiance to the government, and is not a foreigner; 2. He has knowledge of conspiracy to commit treason against the government; 3. He conceals or does not disclose and make known the same as soon as possible to the governor or fiscal of the province in which he resides, or the mayor or fiscal of the city in which he resides. Q: Who are liable under Art. 116? A: Only citizens of the Philippines. Foreigners are not included. (UNLIKE in Art. 114) Will a person be liable for Misprision of Treason if he did not report the incident to the officers cited in Art. 116? ● The persons mentioned in Article 116 are NOT limited to mayors, fiscals or governors. Any person in authority having equivalent jurisdiction, like a provincial commander, will already negate criminal liability. If treason has already been committed, can a person still be liable? ● NO! Art. 116 speaks of “knowledge of conspiracy TO COMMIT treason” and NOT knowledge of treason already committed by another.

Commandeering foodstuffs for the enemy is evidence of both adherence and aid or comfort. On the two-witness rule: (This is ONLY APPLICABLE to the “AID OR COMFORT” PART of the second mode, NOT TO “ADHERENCE”) ● NOTE: The testimony of two witnesses is required to prove the overt act of giving aid or comfort. However, the 2 witnesses must refer to only to one same act—that is, in the same place and moment of time. It cannot be that one witness will attest to one act and another witness will attest to that of another act. ● OVERT ACT is the physical activity or deed that constitutes the rendering of aid or comfort. ● The two-witness rule is severely restrictive, but is not affected by discrepancies in minor details of the testimony. It is also NOT required that the testimonies be identical or corroborative, being uniform is sufficient.  PAGE 3

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Q: What is the specific duty violated in Misprision of Treason? A: It is the duty of one who owes allegiance to the government, with exception of foreigners, to disclose and make known his knowledge of a conspiracy to be committed against the government. To put it simply, it is the failure of the duty a citizen to prevent treason from happening to the government by which he owes allegiance. IMPORTANT NOTE: If there is no war, can one still be liable for Misprision of Treason? ● NO! It should be noted that Articles 114-116 require that there be a war in which the Philippines is involved, even though this is not a cited element under Art. 116. In the absence of war, a conspiracy to overthrow the government is a crime of rebellion. However, if one fails to disclose a conspiracy to overthrow the government in the ABSENCE of war, there is

CRIIMINAL LAW 2 FINALS REVIEWER / PROF. I.M. GUTIERREZ III / SECOND SEMESTER, AY 2011-2012 BALAUAG / /CASTRO / MARFIL / PLAZA / SERZO / TEVES / VILLAFUERTE (D2015)

  NO CRIME since there is no crime of Misprision of Rebellion. (This was asked in the 1994 Bar exams.)

1.

3. Distinguish between espionage under the Art. 117 (RPC) and CA 616 (An Act to Punish Espionage and Other Offenses against the National Security, 1941). GENERAL SUMMARY OF DIFFERENCE Article 117 ●

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There are only 2 ways by which a person can be punished. There is NO conspiracy to commit espionage under Art. 117. Penalty is up to prision correccional only for private persons while the next higher in degree is applied for a public officer or employee. Public officers have higher liability There is no misprision of espionage.

CA 616 ● ● ● ● ●

There are A LOT of ways to be punished. There IS conspiracy to commit espionage under CA 616! Penalty could be as high as death if certain acts are done during wartime. No distinction was made with regard to the liability of public and private individuals. Though not labeled as “misprision” (which actually means concealment), under Sec. 5, whoever harbors or conceals any person who he knows, or has reasonable ground to believe or suspect, has committed, or is about to commit, an offense under CA 616, shall be punished by imprisonment of not more than 10 years and may, in addition, be fined not more than P10K.

Q: What are the two modes of committing espionage and their corresponding elements? A: First Mode: By entering, without authority therefore, a warship, fort or naval or military establishment or reservation to obtain any information, plans, photograph or other data of a confidential nature relative to the defense of the Philippines. Elements: 1. That the offender Enters any of the places mentioned therein; 2. That he has No authority therfor; 3. That his Purpose is to obtain information, plans, photographs or other date of a confidential nature relative to the defense of the Philippines. Second Mode: By disclosing to the representative of a foreign nation the contents of the articles, data or information referred to in paragraph 1 of Article 117, which he had in his possession by reason of the public office he holds. Elements: 1. That the offender is a Public officer; 2. That he has in his Possession the articles, data or information referred to in the first paragraph 1 of Art. 117 1. That he discloses their contents to a representative of a foreign nation. Under CA 616, what are the other ways of committing espionage?  PAGE 4

2.

3.

4.

5.

6.

7.

Act 1: Unlawfully obtaining or permitting to be obtained information affecting national defense (Sec. 1); a. Going upon or flying upon vessels, aircrafts, work of defense or other place connected with national defense for purpose of obtaining information and using it to the injury of the Philippines. b. Copying or taking of sketches, photographs, photographic negatives, blue prints, plans, map instruments, appliances, documents, writings or notes of anything connected with national defense. with same intent in (a.) c. Receiving or obtaining form any sources those mentioned in (b.) plus code books or signal books knowing it is contrary to the Act. d. Communicating or attempting to communicate those items under under (b.) and (c.) e. Through gross negligence, permitting those items under (b.) and (c.) to be lost, stolen or destroyed when the offender is entrusted with their lawful possession. Act 2: Unlawful disclosing of information affecting national defense (Sec. 2); a. Communicating to any foreign government or country the data mentioned in Sec. 1 (b) and (c). If this is committed during wartime, offender may suffer 30 years of imprisonment to death. b. Collecting data during war time for the use of the enemy. This is also punishable by 30 years of imprisonment to death. Act 3: Disloyal acts or words in times of peace (Sec. 3); a. Causing disloyalty, mutiny or refusal of duty by any member of the military, naval or air forces of the Philippines. b. Distributing any written or printed matter that counsels or urges insubordination, disloyalty, mutiny or refusal of duty for the same intent in Sec. 3 (a) Note: This CAN BE MISTAKEN as insurrection or sedition BUT the intent here is to interfere with the loyalty of the military, naval, or air forces of the Philippines (or the US) Act 4: Disloyal acts or words in times of war (Sec. 4); a. Making or conveying false reports or false statements with intent to interfere with the operation of or success of the AFP. b. To promote the success enemies by causing or attempting to cause insubordination, disloyalty, mutiny or refusal of duty in the AFP. c. By willfully obstructing the recruiting or enlistment service. Act 5: CONSPIRACY to violate preceding sections (Sec. 5); ELEMENTS a. 2 or more conspire to violate either Sec. 1, 2, 3, or 4. b. 1 or more of the accused do any act to effect the object of conspiracy (Penalty: crime of one, crime of all) Act 6: Harboring or concealing violators of law (Sec. 6) ELEMENTS a. Offender knows a person to have committed or is about to commit an offense under CA 616. b. The offender harbors or conceal such person. Act 7: Using or permitting the use of an aircraft for the purpose of making a photograph, sketch, etc of vital installations of the AFP. (Sec. 9)

CRIIMINAL LAW 2 FINALS REVIEWER / PROF. I.M. GUTIERREZ III / SECOND SEMESTER, AY 2011-2012 BALAUAG / /CASTRO / MARFIL / PLAZA / SERZO / TEVES / VILLAFUERTE (D2015)

  8.

Act 8: Reproducing copies of vital military, naval or air post, camp or station, withour permisison of the commanding officer. (Sec. 10) 9. Act 9: Injuring or attempting to injure war materials, premises, and utilities when Philippines is at war. (Sec. 11) 10. Act 10: Making or causing war materials to be made in a defective manner when the Philippines is a at war (Sec. 12) 11. Act 11: Destroying national defense material, premises, or utilities. (Sec. 13) 12. Act 12: Making or causing to be made in a defective manner, or attempting to make or cause to be made in a defective manner, national defense material. (Sec. 14)

of the vessel;

ACTS OF OFFENDE R

Offenders either – (a.) Attack or seize a vessel; (b.) Seize in the vessel the whole or part of its cargo, its equipment or personal belongings of its complement or passengers;

Offenders either – (a.) Attack or seize a vessel; (b.) Seize in the vessel the whole or part of its cargo, its equipment or personal belongings of its complement or passengers;

Offenders either (a.) Attack upon or seizure of any vessel, (b.) Or take 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.

Offenders either (a.) Attack upon or seizure of any vessel, or (b.) Or take 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.

Other Elements

There is intent to gain, which is an essential element.

Intention may only be to ignore the shipʼs officers or prompted by a desire to commit plunder

There is violence against or intimidation of persons or force upon things.

The preceding were committed under any of the following circumstances: (a.) Seizure was done by firing upon the vessel (b.) Pirates have abandoned their victims without means of saving them; OR (c.) When the crime is accompanied by murder, homicide, physical injuries, or rape.

4. Know the distinction between piracy, mutiny, and robbery on the high seas. Note the circumstances that qualify piracy. Can they also be applied to mutiny? Comprehend fully the doctrine in People v. Lol-lo, et al.

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Piracy under Art. 122 is different from Piracy under PD 532. However, both harmoniously exist; they donʼt contradict each other. It should be noted that Section 4 of PD 532 punishes 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. They are considered accomplices. The old case of People v. Lol-lo doctrine: Piracy is a crime against mankind. It can be punished in a competent tribunal court of any country where the offender may be found or into which he may be carried. It does not matter that the crime was committed within the jurisdictional 3-mile limit of a foreign state. The definition of piracy was also given in People v. Lol-lo: Piracy is robbery or forcible depredation on the high seas, without lawful authority and done animo furandi (intention to steal), and in the spirit and intention of universal hostility. PIRACY (RPC 122)

MUTINY (RPC 122)

Location of Vessel

Philippine waters or high seas

Philippine waters or high seas

Philippine waters only

Philippine waters or high seas

Offenders

Offenders are NOT members (strangers) of its complement nor passengers

Offenders are MEMBERS of its complement or PASSENGER S of the vessel;

Offenders are ANY persons. Could be pirates/strang ers or members/pas sengers.

Offenders are ANY persons. But some acts are specific, like “abandonment by pirates” as well as the seizure by firing which can

 PAGE 5

PIRACY (PD 532)

QUALIFIED PIRACY (RPC 123)

only be done by pirates and NOT by mutineers.

When is there “Robbery on the High Seas”? ● “Robbery on the High Seas” may be seen as a “loophole” of PD 532 and Art. 122, making it a DISTINCT CRIME from piracy. It occurs when robbery is committed (1.) on the high seas (2.) by a member/ passenger of the

CRIIMINAL LAW 2 FINALS REVIEWER / PROF. I.M. GUTIERREZ III / SECOND SEMESTER, AY 2011-2012 BALAUAG / /CASTRO / MARFIL / PLAZA / SERZO / TEVES / VILLAFUERTE (D2015)

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vessel. If such elements concur, a supposedly act of piracy is treated merely as common robbery by virtue of technicality of the law. First, the act cannot be classified as piracy under PD 532 because under the Act, the vessel is required to be on Philippine waters, not on the high seas. If the vessel were on Philippine Waters, then the act of robbery could be classified as Piracy since PD 532 covers ANY person. On the other hand, Piracy under Art. 122, even if it covers both high seas and Philippine waters, only applies if a STRANGER seizes in the vessel the whole or part of its cargo, its equipment or personal belongings of its complement or passengers. However, when the seizure is done by a MEMBER/PASSENGER of the vessel, the limitation of the law sets in and NO PIRACY is committed but rather just “Robbery on the High Seas”. This is because Art. 122 only explicitly punishes “any person who is NOT a member or passenger of the vessel”. Though it appears that there is no limitation with regard to the territoriality of piracy—it being a crime against mankind and as a result of the amendment done to Art. 122 to cover both high seas and Philippine waters in the crime of Piracy —when the status of the offender is questionable, the limitation of the law sets in to favor him.

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.

Acts of the offender

Offenders either – (a.) attack or seize a vessel; or (b.) seize in the vessel the whole or part of its cargo, its equipment or personal belongings of its complement or passengers;

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Mutiny

Offender External / attack is from the outside Crew / passenger

Robbery

Crew / passenger

Piracy

Purpose Intent to gain

Vessel/ Aircraft  PAGE 6

Piracy There is distinction with strangers and members or passengers.

ANY vessel or watercraft used for transport of

Hijacking There is NO such distinction between strangers and members or passengers. There is distinction, however, between natural or juridical persons. Juridical persons could be liable for carrying explosives in any passenger aircraft operating as a public utility. -There is distinction between “aircraft of Philippine registry” and “aircraft of foreign

c. Carriage, shipping, or loading of explosives in any passenger aircraft operating as a public utility. (NOT REALLY HIJACKING PER SE, but it is PUNISHED under RA 6235) YES, there is QUALIFIED HIJACKING under the following circumstances: (a.). When offender has fired upon the pilot, member of the crew or passenger of the aircraft; (b.) Whenever offender exploded or attempted to explode any bomb or explosive to destroy the aircraft; or (c.). When crime is accompanied by murder, homicide, serious physical injuries or rape.

YES, there is QUALIFIED PIRACY under the following circumstances: (a.) Seizure was done by firing upon the vessel; (b.) Pirates have abandoned their victims without means of saving them; OR (c.) When the crime is accompanied by murder, homicide, physical injuries, or rape.

Rules on carrying explosives, flammable, corrosive or poisonous materials. Can it be used for terrorism? What

No rules.

It shall be unlawful for any person, natural or juridical, to ship, load or carry in any passenger aircraft operating as a public utility within the Philippines, and explosive, flammable, corrosive or poisonous substance or material.

Yes.

Yes.

It is only qualified (if due

On top of the other penalties, the offender

5. Note the definition of hijacking, and identify its differences/similarities to piracy.

Offenders

(b.) 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. (HIJACKING)

Can it be qualified?

Unlawful resistance to superior officer, raising of commotion and disturbances against commanderʼs authority; intent to gain NOT an element Intent to gain

Q: What is hijacking? A: Hijacking is a term which immediately conjures the image of a group of heavily armed and determined men and women holding up an airplane, ship, bus, van or other vehicle in order to achieve their nefarious objective (FFIC v. Constantino). Hijacking is also another kind of piracy which is committed in an aircraft. It is prohibited by RA 6235, the Anti Hijacking Law.

registry”. For Philippine registry, hijacking is ONLY possible when the aircraft is in flight. For foreign registry, hijacking is possible even if not in flight. - In carrying explosives, there is also the distinction between public utility aircrafts (passenger and cargo) and private aircrafts. Only those carrying explosives under public utility aircrafts are penalized. Offenders either— (a.) 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, or (HIJACKING)

CRIIMINAL LAW 2 FINALS REVIEWER / PROF. I.M. GUTIERREZ III / SECOND SEMESTER, AY 2011-2012 BALAUAG / /CASTRO / MARFIL / PLAZA / SERZO / TEVES / VILLAFUERTE (D2015)

  happens when there is damage to property due to explosives ?

to the firing pirates).

of

the

may ALSO be liable for damage to property under the RPC if it is DUE to the explosives shipped, carried, or loaded. This is a separate prosecution.

Q: Is the “in flight” requirement applicable to aircrafts of Philippine registry? A: Yes, before the anti-hijacking law can apply, the aircraft must be in flight, specifically, for aircraft of Philippine registry. If not in flight, whatever crimes committed shall be governed by the Revised Penal Code. The correlative crime may be one of grave coercion or grave threat. If somebody is killed, the crime is homicide or murder, as the case may be. If there are some explosives carried there, the crime is destructive arson. Explosives are by nature pyro-techniques. Destruction of property with the use of pyro-technique is destructive arson. If there is illegally possessed or carried firearm, other special laws will apply. Q: Is the “in flight” requirement applicable to aircrafts of foreign registry? A: No, the law does not require that it be in flight before the anti hijacking law can apply. This is because aircrafts of foreign registry are considered in transit while they are in foreign countries. Although they may have been in a foreign country, technically they are still in flight, because they have to move out of that foreign country. So even if any of the acts mentioned were committed while the exterior doors of the foreign aircraft were still open, the anti hijacking law will already govern. Q: When is an aircraft in flight? A: From the moment all its external doors are closed following embarkation until any of such doors is opened for disembarkation. This means that there are passengers that boarded. So if the doors are closed to bring the aircraft to the hangar, the aircraft is not considered as in flight. The aircraft shall be deemed to be already in flight even if its engine has not yet been started. Title Two – CRIMES AGAINST THE FUNDAMENTAL LAWS OF THE STATE 1.Understand the basic concept of crimes punished under this title. • Crimes under this title are those which violate the Bill of Rights accorded to the citizens under the Constitution. Under this title, all the offenders are public officers, except as to the last crime – offending the religious feelings under Article 133, which refers to any person. The public officers who may be held liable are only those acting under supposed exercise of official functions • In its counterpart in Title IX (Crimes Against Personal Liberty and Security), the offenders are private persons. But private persons may also be liable under this title as when a private person conspires with a public officer. What is required is that the principal offender must be a public officer. Thus, if a private person conspires with a public officer, or becomes an accessory or accomplice, the private person also becomes liable for the same crime. But a private person acting alone cannot commit the crimes under Article 124 to 132. 2. Understand the basic framework governing arrests. What is an arrest? Are there exceptions to the general rule? Note the specific elements of arbitrary  PAGE 7

detention. Who may commit this crime? How is it distinguished from kidnapping/serious illegal detention? Sec. 6. When warrant of arrest may issue. a. By the Regional Trial Court. – Within ten (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 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 preliminary investigation or when the complaint or information was filed pursuant to section 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 five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint of information.chan robles virtual law library b. By the Municipal Trial Court. – When required pursuant to the second paragraph of section of this Rule, the preliminary investigation of cases falling under the original jurisdiction of the Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court 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 paragraph (a) of this section. When the investigation is conducted by the judge himself, he shall follow the procedure provided in section 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 in order not to frustrate the ends of justice. c. When 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 municipal trial court in accordance with paragraph (b) of this section, or if the complaint or information was filed pursuant to section 7 of this Rule or is for an offense penalized by fine only. The court shall them proceed in the exercise of its original jurisdiction. Q: What is the definition of arrest? A: Arrest is the taking of a person into custody in order that he may be bound to answer for the commission of an offense. (Section 1, Rule 113) Q: Are there exception to the general rule on arrest with warrant? A: Yes, those enumerated in Rule 113, ROC governing warrantless arrest made by an officer: 1. When the person to be arrested has committed, is actually committing, or is about to commit an offense in his presence; 2. When an offense has in fact been committed, and he has reasonable ground to believe that the person to be arrested has committed it;

CRIIMINAL LAW 2 FINALS REVIEWER / PROF. I.M. GUTIERREZ III / SECOND SEMESTER, AY 2011-2012 BALAUAG / /CASTRO / MARFIL / PLAZA / SERZO / TEVES / VILLAFUERTE (D2015)

  3.

When the person to be arrested is a prisoner who has escaped from a 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.

ARBITRARY DETENTION 1. That the offender is a public officer or employee (whose official duties include the authority to make an arrest and detain persons); 2. That he detains a person; and 3. That it was without legal grounds.

5.

6.

Q: Who may commit the crime of arbitrary detention? A: Public officers who are vested with authority to detain or order the detention of persons accused of a crime (i.e. policeman, judges, mayor, barangay captain, municipal councilor) Q: How is arbitrary detention distinguished from kidnapping/serious illegal detention? A: Arbitrary detention is committed by a public officer with authority to detain or arrest a person while kidnapping/serious illegal detention is committed by a private person/ 3. Note the periods under Article 125. Bear in mind the newer, extended period under the Human Security Act of 2007. Understand the definition of “delivery.” Does this article apply to all arrests? Why or why not? Allowable Period of Detention 12 hours 18 hours 36 hours

4.

Penalty for the Crime Light penalties (or equivalent) Correctional penalties (or equivalent) Afflictive or capital penalties (or equivalent)

Q: What is the period provided for under the Human Security Act of 2007? A: Not more than three (3) Days Q: What is the definition of delivery? A: Delivery does not mean physical delivery of the person detained to judicial authority. Delivery is done when there is a making of an accusation or charges or filing of information against the person arrested with the proper court or judge. Q: Does Article 125 apply to all arrests? A: No, it does not apply to arrest made by virtue of a valid warrant of arrest since the person detain was already detained by a complaint or information filed against him?

Extrajudicial Confession a. Shall be in writing b. Signed in the presence of counsel or upon valid waiver Waiver under RPC 125 a. Shall be in writing b. Signed in the presence of counsel Visits – Any person arrested or detained shall be allowed visits by or conferences with: a. Any member of his immediate family b. Any medical doctor or priest or religious minister chosen by him or by any member of his immediate family or by his counsel c. Any national non-governmental organization (NGO) duly credited by the Commission on Human Rights d. Any international non-governmental association (NGO) duly accredited by the Office of the President

5. In violation of domicile, note the difference between entry “against the will of the owner” and entry “without the ownerʼs consent. Understand the three different circumstances contemplated in this article. Q: What is the difference between against the will of the owner and without the ownerʼs consent? A: Entry against the will of the owner contemplates a situation wherein there is express or implied opposition or prohibition by the owner. On the other hand, entry without the consent of the owner occurs when there is no opposition or prohibition from the owner. VIOLATION OF DOMICILE 1. That the offender is a public officer or employee; 2. That he is not authorized by judicial order to enter the dwelling and/or to make a search therein for papers or other effects; and 3. That he commits any of the following acts: a. entering any dwelling against the will of the owner thereof; b. searching papers or other effects found therein without the previous consent of such owner; c. refusing to leave the premises, after having surreptitiously entered said dwelling and after having been required to leave the same. 6. Bear in mind the rules for applying/executing a search warrant. Note the exceptions discussed in class. Note the two requirements expounded upon by the Court in Stonehill v. Diokno and Burgos v. Chief of Staff.

4. Note the rules under RA 7438. Important Rules: 1. On counsel – Person arrested, detained, or under custodial investigation shall at all times be assisted by counsel 2. Miranda Rights 3. Custodial Investigation Report a. Shall be reduced to writing b. Signed or thumbmarked c. Read and adequately explained to person detained or arrested in a language or dialect known to him  PAGE 8

Q: What is a search warrant? A: Rule 126, Sec. 1 (Search and Seizure) defines a search warrant as “an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a peace officer, commanding him to search for personal property described therein and bring it before the court.” Q: What is the concept of a search warrant? A: It is a criminal process akin to a mode of discovery ● It is a special and peculiar remedy, which is drastic in nature.

CRIIMINAL LAW 2 FINALS REVIEWER / PROF. I.M. GUTIERREZ III / SECOND SEMESTER, AY 2011-2012 BALAUAG / /CASTRO / MARFIL / PLAZA / SERZO / TEVES / VILLAFUERTE (D2015)

  Q: Where should one file an application for search warrant? A: Rule 126, Sec. 2 states that a search warrant shall be filed with the following • Any court within whose territorial jurisdiction a crime was committed • HOWEVER, FOR COMPELLING REASONS stated in the application, any court within the judicial region where the crime was committed if the place of the commission of the crime is known, or any court within the judicial region where the warrant shall be enforced. • EXCEPTION: However, if the criminal action has already been filed, the application shall only be made in the court where the criminal action is pending.  For #2: For example, a drug syndicate keeps his drugs in a warehouse in Pasay for the reason that it has connections in Pasay and can easily get a tip when the police officers will file for a search warrant. To avoid the drug syndicate from getting a tip of the impending search, the police officers apply for a search warrant in Makati stating the compelling reason.

•

•

People vs. Baes – Whether or not the act complained is offensive to the religious feeling must be adjudged only according to the feelings of members of that particular religion People vs. Tengson – Whether or not the act is offensive to the religious feelings should not be made upon more or less broad on narrow conceptions of a particular religion but should be gauged having in view the nature of the acts committed and after scrutiny of all the facts and circumstances which should be viewed through the mirror of an unbiased judicial criterion (Justice Laurelʼs Dissent in People vs. Baes)

Q: What are its implications as to the burden of proof required for conviction? A: The Baes doctrine requires only a showing of proof that a specific religion will be offended by the act. On the other hand, the ruling in Tengson requires a broader basis for conviction and does not rely on any specific religion. In other words, burden of proof required in Tengson is stricter than that of Baes. Title Three – CRIMES AGAINST PUBLIC ORDER

Q: What are the requisites for a valid search warrant? A: • Probable cause is present; • Such presence is determined personally by the judge; • The complainant and the witnesses he or she may produce are personally examined by the judge, in writing and under oath or affirmation; • The applicant and the witnesses testify on facts personally known to them; and • The warrant specifically describes the person and place to be searched and the things to be seized.

1. Distinguish between rebellion, insurrection, coup dʼetat, and sedition.

Rebellion

7. Understand the specific definition for “offending the religious feelings” provided in jurisprudence. What is the prevailing doctrine? What are its implications as to the burden of proof required for conviction? Definition of “Offending the Religious Feelings”

 PAGE 9

Coup dʼetat

Sedition

Nature of crime

Public order

Public order

Description

Object of movement is to completely overthrow and supersede the existing government

Seeks to merely effect some change of minor importance or to prevent the exercise of governmental authority with respect to particular matters

Persons liable

Any person: leader, participant, person deemed leader

Any person: leader, participant, person deemed leader

Person belonging to military or police or holding public office or employment

Any person: leader, participant, person deemed leader

Purpose

(1)To remove from the allegiance of Government: territory or any body of

(1)To remove from the allegiance of Government: territory or any body of

Seizing diminishing state power

(1) Prevent the promulgation or execution of any law or holding of any popular election (2) To

JURISPRUDENCE Stonehill vs. Diokno ● A warrant shall be issued ONLY UPON PROBABLE CAUSE, to be determined by the judge in the manner set forth in the Constitution ● A warrant shall PARTICULARLY DESCRIBE the things to be seized. ● A warrant can be issued only for ONE SPECIFIC offense. Burgos vs. Chief of Staff ● PARTICULARITY: When addressed to a newspaper publisher or editor, the application for a warrant must contain a specification stating with particularity the alleged subversive materials he has published or intending to publish. Broad statement in the application is a mere conclusion of law and does not satisfy the requirement of probable cause. ● PROBABLE CAUSE: Probable cause for a search is defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched.

Insurrection

Public order

Public order

Raising of commotions or disturbances in the State which leads to a violation or engendering of public peace

or

CRIIMINAL LAW 2 FINALS REVIEWER / PROF. I.M. GUTIERREZ III / SECOND SEMESTER, AY 2011-2012 BALAUAG / /CASTRO / MARFIL / PLAZA / SERZO / TEVES / VILLAFUERTE (D2015)

  land, naval or other armed forces, or (2) To deprive the Chief Executive or Congress, wholly or partially, of any of their powers or prerogatives

Overt acts

 PAGE 10

(1) Public uprising and (2) taking arms against the Government

land, naval or other armed forces, or (2) To deprive the Chief Executive or Congress, wholly or partially, of any of their powers or prerogatives

(1) Public uprising and (2) taking arms against the Government

prevent the National Government or any provincial or municipal government or any public officer thereof from freely exercising its or his functions or prevent the execution of any administrative order (3) To inflict any act of hate or revenge upon person or property of public officer or employee (4) To commit, for any political or social end, any act of hate or revenge against private persons or any social class (5) To despoil, for any political or social end, any person, municipality or province, or the National Government of all or part of its property Swift attack accompanied by violence, intimidation, threat, strategy or stealth AGAINST (1) duly constituted authorities (2) military camp or establishment (3) communication

Public and tumultuous uprising employing force, intimidation or other means outside legal methods

network, public utilities or facilities needed for exercise and continued possession of power Also punishes

Proposal, conspiracy, inciting to

Proposal, conspiracy, inciting to

Proposal, conspiracy

Conspiracy, inciting to

2. Note the rule in People v. Hernandez, as applied in Enrile v. Salazar and Enrile v. Amin. Is this doctrine still in force in the wake of the amendments to the law? Why or why not? Hernandez doctrine (1956): prohibits rebellion being complexed with any other offense committed on the occasion thereof, either as a means or intended effect Enrile vs Salazar reiterated and reaffirmed the Hernandez doctrine: rebellion cannot be complexed with common crimes which are committed in furtherance thereof because such crimes are absorbed in rebellion Enrile vs Amin: All crimes, whether punishable under special law or RPC, which are components or ingredients or committed in furtherance thereof, become absorbed in the crime of rebellion and cannot be isolated and charged as separate crimes in themselves. RA 6968 “An Act Punishing the crime of Coup dʼetat” amended Art. 134, 135 and 136 of the RPC (1990) à Supreme Court noted that rebellion cannot be conveniently utilized as an umbrella for every illegal activity undertaken during rebellion à Due to this amendment, common crimes involving killings, serious violence, robberies and/or destruction of property, even though committed in furtherance of rebellion, shall bring about the complex crime of Rebellion with Homicide, Rebellion with Robbery, Rebellion with Arson or Rebellion with Serious Physical Injuries. Note: Due to RA 6968, there is no legal impediment to prevent the complexing of rebellion with crimes listed above, however, Supreme Court has yet to overturn the Hernandez doctrine. 3. Note the rule in People v. Dasig. Under what circumstances may this doctrine be applied? In People vs Dasig, the court convicted the accused of simple rebellion and not murder. It took into account that Dasig voluntarily confessed (during the interrogation) his membership with the sparrow unit and his participation in the killing of the police officer. · Sparrow unit is the liquidation squad of the NPA with the objective of overthrowing the duly constituted government. Killing of the officer, with knowledge that he was a person in authority, was in furtherance of this objective

CRIIMINAL LAW 2 FINALS REVIEWER / PROF. I.M. GUTIERREZ III / SECOND SEMESTER, AY 2011-2012 BALAUAG / /CASTRO / MARFIL / PLAZA / SERZO / TEVES / VILLAFUERTE (D2015)

  Contrast with People vs Lovedioro: accused claimed he should be charged with Rebellion in the appeal because of mere membership in the NPA. · Alleged NPA membership was used as a means to mitigate penalty (not in extra-judicial confession; only an afterthought) · No explanation as to what contributed to the killing or how this would further political aim of rebellion 4. Bear in mind the definition of inciting to sedition. Understand the constitutional issues that impact on this article. Distinguish its definition from that of other forms of incitement (treason, rebellion, etc.) Acts punished in Inciting to Sedition: · Inciting others to the accomplishment of any of the acts which constitute sedition by means of speeches, proclamations, writings, emblems, etc. · 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 · Knowingly concealing such evil practices Uttering and writing punishable when: · They tend to disturb or obstruct any lawful officer in executing the functions of his office · They tend to instigate others to cabal and meet together for unlawful purposes · They suggest or incite rebellious conspiracies or riots · They lead or tend to stir up the people against the lawful authorities or to disturb the peace, safety and order of the community / Government Constitutional issue (discussed in class): in uttering seditious speeches and writing scurrilous libels, the text will be subject to different interpretations. Its alleged impact will depend on the interpretation of the Court. The law does not require an actual disturbance, but is only aimed to punish acts which may engender public order. There is NO inciting to treason. Inciting to rebellion, insurrection or coup dʼetat is committed ONLY through the 1st act (inciting done by speeches, writing, emblems, proclamations, etc.) à There are more means of inciting to sedition. 5. Note the issues relating to violation of parliamentary immunity. What is the status of this article in the face of jurisprudence and revisions to the Constitution? The question in Martinez v. Morfe was the scope to be accorded the constitutional immunity of senators and representatives from arrest during attendance at Congress sessions and in going to and returning from the same. The answer was that immunity from arrest does not cover any prosecution for treason, felony, and breach of the peace. Freedom from arrest = creation of a privileged class (this freedom was differentiated from according said officials utmost latitude in free speech).

 PAGE 11

Acts punished by the violation of parliamentary immunity: 1. By using force, intimidation, threats, or fraud to prevent any member of the National Assembly from a. attending meetings of the Assembly or of any of its committees or subcommittees, constitutional commissions or committees or divisions thereof b. expressing his opinions c. casting his vote *Offender is any person 2. By arresting, searching any member thereof while the National Assembly 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 Offender is a public officer or employee Note that under Section 11 Article VI of the 1987 Constitution, a public officer who arrests a member of Congress who has committed a crime punishable by prision mayor is NOT liable under Art. 145. Art 145 should be amended to read “by a penalty of prision mayor or higher” because for now it only reads “penalty higher than prision mayor” Status of article: suspended? 6. Distinguish between illegal assembly under the RPC and violations of the Public Assembly Act. In illegal assembly, the purpose of the assembly or meeting is in itself illegal. In the public assembly act, the purpose is presumed to be legal but it regulates the procedure for acquiring permits, assembly itself, etc. Illegal Assembly (Art 146)

Public Assembly Act

Acts punished 1. Any meeting attended by armed persons for the purpose of committing any of the crimes punishable under the Code; · 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.

(a) The holding of any public assembly as by any leader or organizer without having first secured that written permit where a permit is required from the office concerned, or the use of such permit for such purposes in any place other than those set out in said permit: Provided, however, That no person can be punished or held criminally liable for participating in or attending an otherwise peaceful assembly; (b) Arbitrary and unjustified denial or modification of a permit by the mayor or any other official acting in his behalf. (c) The unjustified and arbitrary refusal to accept or acknowledge receipt of the application for a permit by the mayor or any official acting in his behalf; (d) Obstructing, impeding, disrupting or otherwise

CRIIMINAL LAW 2 FINALS REVIEWER / PROF. I.M. GUTIERREZ III / SECOND SEMESTER, AY 2011-2012 BALAUAG / /CASTRO / MARFIL / PLAZA / SERZO / TEVES / VILLAFUERTE (D2015)

 

·

·

2. 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. 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.

denying the exercise of the right to peaceful assembly; (e) The unnecessary firing of firearms by a member of any law enforcement agency or any person to disperse the public assembly; (f) Acts in violation of Section 10 (re: Police Assistance) hereof; (g) Acts described hereunder if committed within 100 meters from the area of activity of the public assembly or on the occasion thereof; 1. the carrying of a deadly or offensive weapon or device such as firearm, pillbox, bomb, and the like; 2. the carrying of a bladed weapon and the like; 3. the malicious burning of any object in the streets or thoroughfares; 4. the carrying of firearms by members of the law enforcement unit; 5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a motor vehicle, its horns and loud sound systems.

7. Understand the definition of direct assault and its component elements. Note the definition of “persons in authority” and “agents of persons in authority.” Distinguish it from indirect assault. Under what circumstances may indirect assault be appreciated? DIRECT ASSAULT: First Mode: Without public uprising, by employing force or intimidation for attainment of any of the purposes enumerated in defining the crimes of rebellion and sedition ELEMENTS: 1. Offender employs force or intimidation; 2. Aim of offender is to attain any of the purposes of the crime of rebellion and sedition; 3. That there is no public uprising Second Mode: Without public uprising, by attacking, by employing force or by seriously intimidating or seriously resisting any person in authority or any of his agents, while engaged in the performance of official duties, or on the occasion of such performance ELEMENTS: 1. Offender (a) makes an attack, (b) employs force, (c) makes a serious intimidation, or (d) makes a serious resistance; 2. Person assaulted is a person in authority or his agent 3. At the time of the assault the person in authority or his agent a. is engaged in the actual performance of official duties (motive  PAGE 12

4. 5.

is not essential); or b. is assaulted by reason of the past performance of official duties (motive is essential); That the offender knows that the one he is assaulting is a person in authority or his agent (with intention to offend, injure or assault); and No public uprising.

Q: What is a person in authority and agents of person in authority? A: A Person in authority is one vested with jurisdiction, whether as an individual or as a member of some court or government corporation, board or commission · “Directly vested with jurisdiction” à power or authority to govern and execute laws · Person in authority is a matter of law. Ex. teacher (CA 578) · Examples: barangay captain, barangay chairman, teachers, professors, persons charged with the supervision of public or duly recognized private schools, colleges and universities, lawyers in the actual performance of their professional duties An Agent is one who, by direct provision of law or by election, or by appointment by competent authority, is charged with the maintenance of public order and the protection and security of life and property. · Ex. policeman, councilman, any person who comes to the aid of persons in authority, postmaster, BIR agents Q: What is the difference of direct assault from indirect assault? A: In direct assault the offended party is the person in authority or his agent while in indirect assault, the offended party is any person coming to the aid of an agent. Q: Under what circumstance may indirect assault be appreciated? A: Indirect assault can be committed only when direct assault is committed. Q: Can a private person become the subject of direct assault? A: Yes, any person coming to the aid of the person in authority is considered an agent and can thus be the subject of direct assault. 8. Who can commit the crime of delivering prisoners from jail? What prisoners are covered? Delivery of prisoner from jail: 1. That there is a person confined in a jail or penal establishment 2. The offender removes therefrom such person, or helps the escape of such person Only outsiders can commit the crime of delivering prisoners from jail. It should not be a public officer or a private person who has custody of the prisoner. Applies to a prisoner sentenced by final judgment, detention prisoner or those prisoners in hospitals or asylums. 9. When can evasion of service of sentence be committed? Evasion of service of sentence: 1. Offender is a convict by final judgment 2. He is serving his sentence which consists in deprivation of liberty

CRIIMINAL LAW 2 FINALS REVIEWER / PROF. I.M. GUTIERREZ III / SECOND SEMESTER, AY 2011-2012 BALAUAG / /CASTRO / MARFIL / PLAZA / SERZO / TEVES / VILLAFUERTE (D2015)

  3. He evades the service of his sentence by escaping during the term of his sentence

5. Presidential Decree No. 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974); and, 6. Presidential Decree No. 1866, as amended (Decree Codifying the Laws on Illegal and Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunitions or Explosives)

Sentence must be by reason of final judgment • If convict escapes within 15 days (appeal period) from promulgation or notice of judgment, without commencing to serve the sentence or without expressly waiving in writing his right to appeal, he cannot be liable under Art. 157 • Not applicable to detention prisoners and minor delinquents who escape confinement or deportees • Applicable to those serving destierro

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 shall be guilty of the crime of terrorism and shall suffer the penalty of forty (40) years of imprisonment, without the benefit of parole as provided for under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended.

Should escape during the term of the sentence.

http://www.lawphil.net/statutes/repacts/ra2007/ra_9372_2007.html

10. Know the rule on quasi-recidivism.

Title Four – CRIMES AGAINST PUBLIC INTEREST

Quasi-recidivism is a special aggravating circumstance where a person, after having been convicted by final judgment, shall commit a new felony before beginning to serve such sentence, or while serving the same.

1. Understand the framework applied to forgery, counterfeiting, falsification, particularly the distinction between making, importing, uttering and mere use.

Distinguished from reiteracion Aggravating circumstance of reiteracion requires that the offender against whom it is considered shall have served out his sentences for the prior offenses Elements: 1. Offender was already convicted by final judgment of one offense 2. He committed a new felony before beginning to serve such sentence or while serving the same 1st crime – need not be a felony 2nd crime – must be a felony, need not be of different character from that of the former offense Quasi-recidivism does not require that the two offenses are embraced in the same title of the Code. 11. Be familiar with the provisions of the Human Security Act of 2007. Terrorism.- Any person who commits an act punishable under any of the following provisions of the Revised Penal Code: a. Article 122 (Piracy in General and Mutiny in the High Seas or in the Philippine Waters); b. Article 134 (Rebellion or Insurrection); c. Article 134-a (Coup d' Etat), including acts committed by private persons; d. Article 248 (Murder); e. Article 267 (Kidnapping and Serious Illegal Detention); f. Article 324 (Crimes Involving Destruction), or under 1. Presidential Decree No. 1613 (The Law on Arson); 2. Republic Act No. 6969 (Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990); 3. Republic Act No. 5207, (Atomic Energy Regulatory and Liability Act of 1968); 4. Republic Act No. 6235 (Anti-Hijacking Law);  PAGE 13

Art 163: Making and Importing and Uttering False coins Elements: 1. That there be false or counterfeited coins (need not be legal tender). 2. That the offender either made, imported or uttered such conis, and; 3. That, in case of uttering such false or counterfeited coins, he connives with counterfeiters or importers Q: What are the distinctions for making, importing, uttering and mere use? A: Making is the act of creating, uttering is to pass, deliver or give away, importing is to bring to port and mere use is similar to uttering but without the knowledge the coin is a counterfeit. Art 164: Mutilation of coins – Importation and utterance of mutilated coins. Repealed by PD 247. Acts punished by PD 247: 1. Willfull defacement 2. Mutilation 3. Tearing 4. Burning 5. Destruction of Central bank notes and coins Q: What is mutilation? A: Mutilation is to take off part of the metal either by filling it or substituting it for another metal of inferior quality, to diminish by ingenious means the metal in the coin. Coin must be of legal tender. Art 165: Selling of false or mutilated coin, without connivance Acts punishable: 1. Possession of a coin, counterfeited or mutilated by another person, with intent to utter the same, knowing that it is false or mutilated. 2. Actually uttering such false or mutilated coin, knowing the same to be false or mutilated. Possession and uttering does not require that the coin be of legal tender.

CRIIMINAL LAW 2 FINALS REVIEWER / PROF. I.M. GUTIERREZ III / SECOND SEMESTER, AY 2011-2012 BALAUAG / /CASTRO / MARFIL / PLAZA / SERZO / TEVES / VILLAFUERTE (D2015)

  ARTICLE 163 making and uttering false coins

importing

2.

MUST BE OF LEGAL TENDER and

No. applies to foreign coins, and those withdrawn fr circ

164: Mutilation of coins

Yes

165: Selling of false or mutilated coin, without connivance

No. applies to foreign currency and those withdrawn from circulation

Art 166: Forging treasury or bank notes, obligations and securities; importing and uttering false or forged notes, obligations and securities Acts punishable: 1. Forging or falsification of treasury or bank notes or documents payable to bearer 2. Importing of such notes, or 3. Uttering of such false or forged obligations and notes in connivance with forgers and importers. NOTES:  Forging is committed by giving treasury or bank notes or documents payable to bearer or order an appearance of a true and genuine document. Falsification is committed by erasing, substituting, counterfeiting, or altering by any means the figures and letters, words, signs contained therein. Forging checks not included. This is falsification of a commercial document under Article 172. Included in this provision: Falsifying Sweepstakes and lotto tickets Includes instruments or other documents payable to bearer even if issued by a foreign government/bank. Art 167: Counterfeiting, importing, and uttering instruments not payable to bearer Elements: 1. That there be an instrument payable to order or other document of credit not payable to bearer. 2. That the offender either forged, imported or uttered such instruments; and 3. That in case of uttering, he connived with the forger or importer NOTES: Includes instruments and documents of credit issued by a foreign government or bank. Connivance is not required in uttering if the utterer is the forger. Art 168: Illegal possession and use of false treasury or bank notes and other instruments of credit Elements: 1. That any treasury or bank note or certificate or other obligation and security payable to order or payable to bearer, or any other document of credit not payable to bearer is forged or falsified by another person.

 PAGE 14

3.

That the offender knows that any of those instruments is forged or falsified; and That he performs any of these acts a. Using any of such forged or falsified instruments, or b. Possessing with intent to use any of such forged or falsified instruments.

Art 169: How forgery is committed 1. By giving to a treasury or bank note or any other instrument payable to bearer or to order the appearance of a true and genuine document; 2. By erasing, substituting, counterfeiting, altering by any means the figures, letters or words, or signs contained therein. If all acts are done but genuine appearance is not given, the crime is frustrated. 2. Note the different modes of falsification. Understand the definition and elements for each mode. Bear in mind the different elements in falsification of public documents and falsification of private documents. Art 171 Falsification by public officer, employee or notary or ecclesiastical minister Elements: 1. The offender is a public officer, employee or notary public. 2. That he takes advantage of his official position a. He has the duty to make or prepare or otherwise intervene in the preparation of the document; or b. He has official custody of the document which he falsified 3. That he falsifies a document by committing the following acts: a. Counterfeiting or imitating any handwriting, signature or rubric b. Causing it to appear that persons have participated in a proceeding when they did not in fact so participate c. Attributing to persons who have participated in an act or proceeding statements other than those in fact made by them; d. Making untruthful statements in a narration of facts; e. Altering true dates; (must be essential) 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. 4. In case the offender is an ecclesiastical minister, the act of falsification is committed with respect to any record or document of such character that its falsification may affect the civil status of persons. Who may be liable: 1. Public officer, employee, or notary public who takes advantage of official position 2. Ecclesiastical minister if it affects civil status of persons 3. Private individual if in conspiracy with public officer.

CRIIMINAL LAW 2 FINALS REVIEWER / PROF. I.M. GUTIERREZ III / SECOND SEMESTER, AY 2011-2012 BALAUAG / /CASTRO / MARFIL / PLAZA / SERZO / TEVES / VILLAFUERTE (D2015)

  RPC 171 Public officer that took advantage of his official position

Offender

Document Falsified

Any document

Acts Committed

Acts enumerated under RPC 171

Notes:

RPC 172, par. 1 1. Private individual 2. Public officer who did not took advantage of his official position Public, official, or commercial document Acts enumerated under RPC 171

RPC 172, par. 2 1. Private individual 2. Public officer who did not took advantage of his official position Note: Damage or Intent to cause such damage is essential Private document

Acts enumerated under RPC 171

Public Documents a. written official acts or records of acts of the sovereign authority, official bodies and tribunals, and of the public officers, legislative, judicial and executive, whether of the Philippines or of a foreign country; b. Documents acknowledged before notary public except last wills and testaments; c. Public records, kept in the Philippines, of private documents required by law to be entered therein. Cash disbursement vouchers or receipts evidencing payments are not commercial documents. A mere blank form of an official document is not in itself a document.

Commercial Documents cash files, deposit slips and bank statements, journals, books, ledgers, drafts, letters of credit and other negotiable instruments.

Elements of use of falsified document (RPC 172, par 3) Introducing in a judicial proceeding: 1. That the offender knew that a document was falsified by another person 2. That the false document is embraced in art 171 or in any of the subdivisions 1 &2 in art 172 3. That he introduced said document in evidence in any judicial proceeding. Use in any other transaction: 1. That the offender knew that a document was falsified by another person 2. That the false document is embraced in art 171 or in any of the subdivisions 1&2 in art 172 3. That he used such documents (not in judicial proceedings) 4. That the use of the documents caused damage to another or at least was used with intent to cause such damage. Q: When does a user of a falsified document deemed the author thereof? A: When the use was so closely connected in time with the falsification, and the user had the capacity of falsifying the document.  PAGE 15

3. Note the difference in the framework applied to the different felonies involving false testimony in court. False Testimony: 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. Art 180: False testimony against a defendant Elements: 1. That there be a criminal proceeding 2. Offender testifies falsely under oath against the defendant therein; 3. Offender knows that it is false; and 4. The defendant against whom the false testimony is given is either acquitted or convicted in a final judgment. Requires criminal intent. Cannot be committed through negligence. Witness who gave false testimony is liable even if the court did not consider his testimony Art 181: False testimony favourable to the defendant *False testimony need not directly influence the decision of acquittal not benefit the defendant (intent to favor defendant is sufficient. *Statement of mere opinion is not punishable. *Defendant who falsely imputes to another person the commission of the offense is liable under this article. If he merely denies the commission of the offense, he is not liable. Art 182: False testimony in civil cases Elements: 1. That the testimony must be given in a civil case; 2. That the testimony must relate to the issues in said case; 3. The the testimony must be false; 4. That the false testimony must be given by the defendant knowing the same to be false; and 5. That the testimony must be malicious and given with an intent to affect the issues presented in the said case. *182 not applicable when testimony is given in a special proceeding. In the case of special proceeding, the crime is perjury. Art 183: False testimony in other cases and perjury in solemn affirmation 2 ways of committing perjury: 1. By falsely testifying under oath 2. By making a false statement Elements: a. That an accused made a statement under oath or made an affidavit upon a material matter; b. That the statement or affidavit was made before a competent officer, authorized to receive & administer such oath; 3. That in the statement or affidavit, the accused made a willfull and deliberate assertion of falsehood; and 4. That the sworn statement or affidavit containing the falsity is required by law. There is no perjury through negligence or imprudence since the assertion of falsehood must be willfull and deliberate. Perjury is an offense which covers false oaths other than those taken in the course of judicial proceedings.

CRIIMINAL LAW 2 FINALS REVIEWER / PROF. I.M. GUTIERREZ III / SECOND SEMESTER, AY 2011-2012 BALAUAG / /CASTRO / MARFIL / PLAZA / SERZO / TEVES / VILLAFUERTE (D2015)

  1) 2)

Art 184: Offering false testimony in evidence Elements: 1. That the offender offered in evidence a false witness or false testimony 2. That he knew the witness or the testimony was false; and 3. That the offer was made in a judicial or official proceeding

3) 4)

184 applies when the offender, without inducing another but knowing him to be a false witness, presented him and the latter testified falsely in a judicial or official proceeding. The felony is consummated the moment a false witness is offered in any judicial or official proceeding. The false witness need not be convicted of false testimony. A mere offer to present him is sufficient. 180 False testimony against a defendant

Criminal proceeding

181 False defendant

Criminal proceeding

testimony

favourable

to

182 False testimony in civil cases

Civil case included)

(special

proceedings

183 Perjury

Statement under oath or affidavit

184 Offering false testimony in evidence

Judicial or official proceeding

not

4. Distinguish perjury from falsification of public documents. Perjury may include an oral statement, while falsification of public documents includes written documents. The statement or affidavit made when committing perjury is made before a competent officer authorized to receive and administer oath. Closest thing to perjury: making untruthful statements in a narration of facts (there needs to be a legal obligation to disclose said facts + intent to injure 3rd person) 5. When can machination in public auctions be appreciated?

Crime under Art 185 is consummated by the mere act of soliciting a gift or promise for the purpose of abstaining from taking part in any public auction. The threat need not be effective nor the offer accepted. Art 185: Machinations in public auctions Elements of machinations in public auctions 1) There be a public auction; 2) That the accused solicited any gift or a promise from any of the bidders; 3) That such gifts or promise was the consideration for his refraining from taking part in that public auction; and 4) That the accused had the intent to cause the reduction of the price of the things auctioned. Elements of attempting to cause bidders to stay away  PAGE 16

That there be a public auction; That the accused attempted to cause the bidders to stay away from that public auction; That it was done by threats, gifts, promises, or any other artifice; and That the accused had the intent to cause the reduction of the price of the thing auctioned.

Title Five – CRIMES RELATIVE TO OPIUM AND OTHER PROHIBITED DRUGS 1. Understand the basic framework governing drug regulation. What are the different classes of acts punished under the law? Arts 190-193 of the RPC were repealed by RA 6425, known as the “Dangerous Drugs Act of 1972,” which took effect on March 30, 1972, as amended by PD 1683 and further amended by RA 7659 RA 9165, known as the “Comprehensive Dangerous Drugs Act of 2002,” which took effect on July 4, 2002 repealed RA 6425 and amended RA 7659. Limited applicability of the RPC: The RPC shall not apply to this Act, except in the case of minor offenders. Where the offender is a minor, the penalty for the acts punishable by life imprisonment to death shall be reclusion perpetua to death. THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002 ACTS PUNISHED: 1) Importation of dangerous drugs and/or controlled precursors and essential chemicals 2) Sale, trading, administration, dispensation, delivery, distribution and transportation of dangerous drugs and/or controlled precursors and essential chemicals; 3) Maintenance of a dangerous drug den, dive or resort; 4) Being employees or visitors of a dangerous drug den, dive or resort; 5) Manufacture of dangerous drugs and/or controlled precursors and essential chemicals; 6) Illegal chemical diversion of controlled precursors and essential chemicals; 7) Manufacture or delivery of equipment, instrument, apparatus, and other paraphernalia for of dangerous drugs and/or controlled precursors and essential chemicals; 8) Possession of dangerous drugs; 9) Possession of equipment, instrument, apparatus, and other paraphernalia for dangerous drugs; 10) Possession of dangerous drugs during parties, social gatherings or meetings; 11) Possession of equipment, instrument, apparatus, and other paraphernalia for dangerous drugs during parties, social gatherings or meetings; 12) Use of dangerous drugs; 13) Cultivation or culture of plants classified as dangerous drugs or are sources thereof; 14) Failure to maintain and keep original records of transactions on dangerous drugs and/or controlled precursors and essential chemicals; 15) Unnecessary prescription of dangerous drugs; and 16) Unlawful prescription of dangerous drugs.

CRIIMINAL LAW 2 FINALS REVIEWER / PROF. I.M. GUTIERREZ III / SECOND SEMESTER, AY 2011-2012 BALAUAG / /CASTRO / MARFIL / PLAZA / SERZO / TEVES / VILLAFUERTE (D2015)

  2. Be familiar with the administrative framework for drug enforcement. How are substances subjected to/removed from coverage? What agencies are involved and what are their functions?

o.

p. Administrative Framework: Dangerous Drugs Board (DDB): the policy-making and strategy-formulating body in planning and formulation of policies and program on drug prevention and control. It shall develop and adopt a comprehensive, integrated, unified and balanced national drug abuse prevention and control strategy. It shall be under the Office of the President. a. Formulate, develop and establish a comprehensive, integrated, unified and balanced national drug use prevention and control strategy; b. Promulgate such rules and regulations as may be necessary to carry out the purposes of this Act c. Conduct policy studies, program monitoring and evaluations and other researches on drug prevention, control and enforcement; d. Initiate, conduct and support scientific, clinical, social, psychological, physical and biological researches on dangerous drugs and dangerous drugs prevention and control measures; e. Develop an educational program and information drive on the hazards and prevention of illegal use of any dangerous drug and/or controlled precursor and essential chemicals f. Conduct continuing seminars for, and consultations with, and provide information materials to judges g. Design special trainings in order to provide law enforcement officers, members of the judiciary, and prosecutors, school authorities and personnel of centers with knowledge and know-how in dangerous drugs and/or controlled precursors and essential chemicals control h. Design and develop, in consultation and coordination with the DOH, DSWD and other agencies involved in drugs control, treatment and rehabilitation, both public and private, a national treatment and rehabilitation program for drug dependents i. Design and develop, jointly with the DOLE and in consultation with labor and employer groups as well as nongovernment organizations a drug abuse prevention program in the workplace that would include a provision for employee assistance programs for emotionally-stressed employees; j. Initiate and authorize closure proceedings against non-accredited and/or substandard rehabilitation centers k. Prescribe and promulgate rules and regulations governing the establishment of such centers, networks and laboratories l. Receive, gather, collect and evaluate all information on the importation, exportation, production, manufacture, sale, stocks, seizures of and the estimated need for any dangerous drug and/or controlled precursor and essential chemical m. Gather and prepare detailed statistics on the importation, exportation, manufacture, stocks, seizures of and estimates need for any dangerous drug and/or controlled precursors and essential chemicals and such other statistical data on said drugs as may be periodically required by the United Nations Narcotics Drug Commission, the World Health Organization and other international organizations in consonance with the country's international commitments; n. Develop and maintain international networking;

 PAGE 17

q.

r.

s. t.

u.

v.

w.

Require all government and private hospitals, clinics, doctors, dentists and other practitioners to submit a report to it about all dangerous drugs and/or controlled precursors and essential chemicals-related cases Receive in trust legacies, gifts and donations of real and personal properties of all kinds for the benefit of government and private rehabilitation centers Issue guildliens of applications for voluntary treatment, rehabilitation or confinement, wherein it shall issue the necessary guidelines, rules and regulations pertaining to the application and its enforcement; Formulate guidelines, in coordination with other government agencies, the importation, distribution, production, manufacture, compounding, prescription, dispensing and sale of, and other lawful acts in connection with any dangerous drug, controlled precursors and essential chemicals and other similar or analogous substances Develop the utilization of a controlled delivery scheme in addressing the transshipment of dangerous drugs into and out of the Recommend the revocation of the professional license of any practitioner who is an owner, co-owner, lessee, or in the employ of the drug establishment, or manager of a partnership, corporation, association, or any juridical entity owning and/or controlling such drug establishment, and who knowingly participates in, or consents to, tolerates, or abets the commission of the act of violations as indicated in the preceding paragraph, all without prejudice to the criminal prosecution of the person responsible for the said violation; Appoint such technical, administrative and other personnel as may be necessary for the effective implementation of this Act, subject to the Civil Service Law and its rules and regulations; Establish a regular and continuing consultation with concerned government agencies and medical professional organizations to determine if balance exists in policies, procedures, rules and regulations on dangerous drugs and to provide recommendations on how the lawful use of dangerous drugs can be improved and facilitated; and Submit an annual and periodic reports to the President, the Congress of the Philippines and the Senate and House of Representatives committees concerned as may be required from time to time, and perform such other functions as may be authorized or required under existing laws and as directed by the President himself/herself or as recommended by the congressional committees concerned.

Philippine Drug Enforcement Agency (PDEA). – To carry out the provisions of this Act, the PDEA, which serves as the implementing arm of the Board, and shall be responsible for the efficient and effective law enforcement of all the provisions on any dangerous drug and/or controlled precursor and essential chemical as provided in this Act. Duties: Sec 84 Powers and Duties of the PDEA. – The PDEA shall: a. Implement or cause the efficient and effective implementation of the national drug control strategy formulated by the Board b. Undertake the enforcement of the provisions of Article II of this Act relative to the unlawful acts and penalties c. Administer oath, issue subpoena and subpoena duces tecum relative to the conduct of investigation involving the violations of this Act; d. Arrest and apprehend as well as search all violators and seize or confiscate, the effects or proceeds of the crimes

CRIIMINAL LAW 2 FINALS REVIEWER / PROF. I.M. GUTIERREZ III / SECOND SEMESTER, AY 2011-2012 BALAUAG / /CASTRO / MARFIL / PLAZA / SERZO / TEVES / VILLAFUERTE (D2015)

  e. f. g. h.

i. j. k. l. m.

n. o.

p. q. r.

Take charge and have custody of all dangerous drugs and/or controlled precursors and essential chemicals seized, confiscated or surrendered Establish forensic laboratories in each PNP office in every province and city Recommend to the DOJ the forfeiture of properties and other assets of persons and/or corporations found to be violating the provisions of this Act Prepare for prosecution or cause the filing of appropriate criminal and civil cases for violation of all laws on dangerous drugs, controlled precursors and essential chemicals, and other similar controlled substances Monitor and if warranted by circumstances, inspect all air cargo packages, parcels and mails in the central post office Conduct eradication programs to destroy wild or illegal growth of plants from which dangerous drugs may be extracted; Initiate and undertake the formation of a nationwide organization which shall coordinate and supervise all activities against drug abuse Establish and maintain a national drug intelligence system Establish and maintain close coordination, cooperation and linkages with international drug control and administration agencies and organizations, and implement the applicable provisions of international conventions and agreements related to dangerous drugs to which the Philippines is a signatory; Create and maintain an efficient special enforcement unit to conduct an investigation, file charges and transmit evidence Require all government and private hospitals, clinics, doctors, dentists and other practitioners to submit a report to it, in coordination with the Board, about all dangerous drugs and/or controlled precursors and essential chemicals which they have attended to for data and information purposes; Coordinate with the Board for the facilitation of the issuance of necessary guidelines, rules and regulations for the proper implementation of this Act; Initiate and undertake a national campaign for drug prevention and drug control programs, Submit an annual and periodic reports to the Board as may be required from time to time,

Other agencies: DepEd, Che: Information awareness; programs for deterrence DILG, DSWD, national Youth commission: establishment of a special education drug center for out-of-school youth and street children DOLE: implementation of a national drug abuse prevention program for a drug free workplace. Local Govt Units: budget for the implementation and enhancement of this Act PDEA academy: recruitment and training of PDEA agents Jurisdiction over dangerous drugs cases The Supreme Court shall designate special courts from among the existing Regional Trial Courts in each judicial region to exclusively try and hear cases involving violations of this Act. DOJ shall designate special prosecutors to exclusively handle cases involving violations of this Act. Answer (Section 93. Reclassification, Addition or Removal of Any Drug from the List of Dangerous Drugs.) The Board (DDB) shall have the power to reclassify, add to or remove from the list of dangerous drugs.  PAGE 18

Proceedings to reclassify, add, or remove a drug or other substance may be initiated by 1. the PDEA, 2. the DOH, or 3. by petition from any interested party, including the manufacturer of a drug, a medical society or association, a pharmacy association, a public interest group, a national or local government agency, or an individual citizen. When a petition is received by the Board, it shall immediately begin its own investigation of the drug. The PDEA also may begin an investigation of a drug at any time based upon the information received from law enforcement laboratories, national and local law enforcement and regulatory agencies, or other sources of information. Factors to be considered by the Board (DDB) a. Its actual or relative potential for abuse; b. Scientific evidence of its pharmacological effect if known; c. The state of current scientific knowledge regarding the drug or other substance; d. Its history and current pattern of abuse; e. The scope, duration, and significance of abuse; f. Risk to public health; and g. Whether the substance is an immediate precursor of a substance already controlled under this Act. The Board shall also take into accord the obligations and commitments to international treaties, conventions and agreements

3. What is the rule on drug testing? Q: Who can conduct drug testing? A: Any government forensic laboratory or any of the drug testing laboratories accredited and monitored by the DOH Q: What kind of test should be employed? A: There are two test required under RA 9165 1. Screening Test – determines positive results and the type of drug used 2. Confirmatory Test – confirms the positive screening test Q: What is the period of validity of the drug test? A: One (1) year from the date of issunce WHO CAN BE SUBJECTED TO DRUG TESTING 1. Applicants for driver's license. 2. Applicants for firearm's license and for permit to carry firearms outside of residence. 3. Students of secondary and tertiary schools. 4. Officers and employees of public and private offices. 5. Officers and members of the military, police and other law enforcement agencies 6. Persons charged before the prosecutor's office with a criminal offense having an imposable penalty of imprisonment of not less than six (6) years and one (1) day 7. Candidates for public office whether appointed or elected in the national or local government

STATUS Mandatory Mandatory Random Random Annual Mandatory Mandatory

Mandatory

CRIIMINAL LAW 2 FINALS REVIEWER / PROF. I.M. GUTIERREZ III / SECOND SEMESTER, AY 2011-2012 BALAUAG / /CASTRO / MARFIL / PLAZA / SERZO / TEVES / VILLAFUERTE (D2015)

  Notes: Drug test certificates issued by accredited drug testing centers shall be valid for a one-year period from the date of issue.

Þ

Duties of DOH (1) Oversee and monitor the integration, coordination and supervision of all drug rehabilitation, intervention, after-care and follow-up programs, projects and activities as well as the establishment, operations, maintenance and management of privatelyowned drug treatment rehabilitation centers and drug testing networks and laboratories throughout the country in coordination with the DSWD and other agencies; (2) License, accredit, establish and maintain drug test network and laboratory, initiate, conduct and support scientific research on drugs and drug control; (3) Encourage, assist and accredit private centers, promulgate rules and regulations setting minimum standards for their accreditation to assure their competence, integrity and stability; (4) Prescribe and promulgate rules and regulations governing the establishment of such Centers (5) The DOH shall order the closure of a Center for treatment when after investigation it is found guilty of violating the provisions of this Act or regulations issued by the Board; and (6) Charge reasonable fees for drug dependency examinations, other medical and legal services provided to the public, which shall accrue to the Board

Þ Þ

LOI 816 ( amended PD 1602): exclude domino, bingo, poker when not played with five cards stud, cuajo, pangguingue and mahjong when exclusively intended for parlor games or for home entertainment RPC 198: Illegal betting on horse races (on periods not allowed by law) RPC 199: Illegal cockfighting (on periods not allowed by law)

Cockfighting Law of 1974 (PD 449) Q: Where can cockfights be held? A: Cockfighting shall be allowed only in licensed cockpits Q: When can cockfights be held? A: Cockfights are allowed during:

1. 2.

DAY/ EVENT Sundays Legal Holidays

• • •

Title Six – CRIMES AGAINST PUBLIC MORALS 1. What is the basic definition of gambling? What forms of gambling are subject to specific regulation?

3. 4.

Q: What is the basic definition of gambling? A: Gambling is any game of chance or scheme, whether upon chance or skill, wherein wagers consisting of money, articles, or value or representative of value are at stake or made Q: What forms of gambling are subject to specific regulations? A: The following are the forms of gambling subject to specific regulations: 1. Betting, game-fixing or point shaving and machinations in sports contest (PD 483) 2. Horse Racing (RA 137, 229, 180, 946) 3. Cockfighting (PD 449) NOTES: PD 1602 Cockfighting, jueteng, jai alai, horse racing to include bookie operations & game fixing numbers, bingo and other forms of lotteries, cara y cruz, pompiang, 7-11 and any game using dice, black jack, lucky nine, poker and its derivatives, monte, baccarat, cuajo, pangguigue and other card games, pak que, high and low, mahjong, domino and the games using plastic tiles and the like, slot machines, roulette, pinball and other mechanical contraptions and devices, dog racing, boat racing car racing, and other forms of races; basketball, boxing, volleyball, bowling, pingpong and other forms of individual or team contests to include game fixing, point shaving and other machinations; banking or percentage game or any other game or scheme whether upon chance or skill wherein wagers consisting of money, articles of value or representative of value are at stake or made  PAGE 19

Local Fiestas Provincial, city or municipal agriculture, commercial or industrial fair, carnival or exposition

• • • • • •

5.

6.

For entertainment of foreign dignitaries, tourists or balikbayans For charitable purpose

•

EXCEPTION/LIMITATION Not more than three days Not more than three days Except 1. Rizal Day (Dec. 30) 2. Independence Day (June 12) 3. National Heroes Day (Nov. 30) 4. Holy Thursday and Good Friday 5. Election or Referendum Day or the day of Registration for such Not more than three days Not more than three days Upon resolution of province, city or municipality Subject to the approval of the Chief of Constabulary or his authorized representative Not be within the month of a local fiesta Not be more than two occasions in the same city or municipality Subject to the approval of the Chief of Constabulary or his authorized representative

2. What are the elements of grave scandal? What is the framework on obscenity? RCP 200 Grave scandal Elements: 1. that the offender performs an act or acts 2. that such acts be highly scandalous as offending against decency or good customs 3. that the act or acts complained of be committed in a public place or within public knowledge or view Definitions: Þ Decency: means proprietary of conduct; proper observance of the requirements of modesty, good taste, etc. Þ Customs: established usage, social conventions carried on by traditions and enforced by social disapproval of any violations therof

CRIIMINAL LAW 2 FINALS REVIEWER / PROF. I.M. GUTIERREZ III / SECOND SEMESTER, AY 2011-2012 BALAUAG / /CASTRO / MARFIL / PLAZA / SERZO / TEVES / VILLAFUERTE (D2015)

  Þ

Grave scandal: consists of acts which are offensive to decency and good customs, which having committed publicly, have given rise to public scandal to persons who have accidentally witnesses the same Note: if the act or acts of the offender are punished under ANOTHER article in the RPC, Art. 200 is NOT APPLICABLE (ex: acts of lasciviousness) -when the acts were performed in a private house and seen by one person, the crime was not committed Alarms and Scandal

Refers to moral scandal. Does not necessarily disturb the public peace but must be committed in public view.

Refers to disturbance of public peace which are not acts which are offensive to decency.

RPC 201- OBSCENITY: Immoral doctrines, obscene publication and exhibitions, indecent shows Persons liable: 1. those who shall publicly expound or proclaim DOCTRINES openly and contrary to pubic morals 2. AUTHORS of obscene literature, published with their knowledge in any form 3. EDITORS publishing such literature 4. OWNERS operating the establishment or selling the same (note that mere possession is not punishable) 5. Those who in theaters, fairs, cinematographs or any other place, EXHIBIT indecent or immoral shows which are proscribed or are contrary to morals, good customs, established policies, lawful order, decrees and edicts 6. Those who shall SELL, GIVE AWAY or EXHIBIT films, prints, engravings, sculpture, or literature which are offensive to morals --publicity is required

Þ

Þ

Morals: imply conformity with the generally accepted standards of goodness or rightness in conduct or character, sometimes specifically to sexual conduct Test of Obscenity: whether the tendency of the matter charged as obscene is to 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 indecent Indecency: an act against the good behavior and a just delicacy

RA 7610: Act re. child abuse, exploitation & discrimination Þ any person who shall hire, employ, use, persuade, induce or coerce a child to perform in obscene exhibition and indecent shows, whether live or in vieo, pose or model in obscene publication or pornographic materials or to sell or distribute the said materials shall suffer the penalty of prision mayor in its medium period Þ if the child used as a performer, subject, seller/distributor is below 12 years of age, the penalty shall be imposed in its maximum period Þ any ascendant, guardian or person entrusted in any capacity with care of child who shall cause and/or allow such child to be employed  PAGE 20

3. Understand the concept and definition of vagrancy. Relate this to the AntiTrafficking Law RPC 202: Vagrants & Prostitutes (not applicable to minors-persons below 18 yrs of age are exempt from prosecution for crimes of vagrancy & prostitution but must undergo counseling and treatment)

Grave Scandal

Þ

or to participate in a obscene play, scene, act, movie or show in any other acts covered by this section shall suffer the penalty of prision mayor in its medium period

Persons liable 1) any person having no apparent means of subsistence, who has the physical ability to work, and who neglects to apply himself to some lawful calling (aka mendicant) 2) any person found loitering about public or semipublic buildings or places or tramping or wondering about the country or the streets w/o visible means of support 3) any idle or dissolute person who lodges in houses of ill fame; ruffians or pimps and those who habitually associate with prostitutes; (vagrant) 4) any person who, not being included in the provisions of the other articles of this code, shall be found loitering in any inhabited or uninhabited place belonging to another without any lawful or justifiable purpose 5) prostitutes Definitions: Þ prostitutes: women who for money or profit habitually indulge in sexual intercourse or lascivious conduct Þ dissolutes: lax, unrestrained, immoral Þ ruffians: violent or lawless individuals PD 1563/Mendicancy Law: any person who abets mendicancy by GIVING ALMS directly to mendicants, exploited infants, and minors on public roads, sidewalks, parks & bridges RA 9208-Anti-Trafficking in Persons Act: Trafficking in persons refers to the recruitment, transportation, transfer or harboring, or receipt of persons with or without the victimʼs consent or knowledge, within and across borders Þ Means used: threat, force, vilence, coercion, abduction, fraud, deception, abuse of power or position, taking advantage of vulnerability of person (esp. if minor & a vagrant) Þ Purpose: prostitution, sexual exploitation, forced labor or services, slavery, servitude, removal or sale of organs Þ Child: any person below 18, or who is over 18 and unable to fully care of or protect himself/herself Þ Prostitution: any act, transaction, scheme involving the use of a person by another for intercourse or lascivious conduct in exchange for money, profit or other consideration Þ Forced labor or slavery: extraction of work or services by enticement, violence, intimidation, or threat, use of force or coercion, including deprivation of freedom, abuse of authority, moral ascendancy, debtbondage, deception Þ Debt bondage: pledging by the debtor of his personal services of labor or of those of a person under his control as security or payment for a debt, the nature & length of services is not defined

CRIIMINAL LAW 2 FINALS REVIEWER / PROF. I.M. GUTIERREZ III / SECOND SEMESTER, AY 2011-2012 BALAUAG / /CASTRO / MARFIL / PLAZA / SERZO / TEVES / VILLAFUERTE (D2015)

  Acts punished recruit, transport, transfer, harbor, provide or receive a person by any means under the pretext of employment, training or apprenticeship (for the purpose of prosti,slavery,etc.) 2. introduce, match for money, profit (material, economic, or other), any Filipino woman to a foreign national for marriage, acquiring, buying, selling him/her to engage in porn, sexual exploitation, forced labor etc. 3. to offer or contract marriage (real or simulated) for the purpose of porn, sex, debt bondage, etc 4. to undertake or organize tours and travel plans for sex tourism 5. to maintain or hire a person to engage in prostitution or porn 6. to adopt or facilitate the adoption of persons for the purposes listed 7. to recruit, hire, etc. for the sale of organs of the person 8. to recruit, hire, or adopt a child to engage in armed activities in the Phils. And abroad Acts that promote trafficking in persons a) knowingly leasing/subleasing or allowing the use of an establishment for this purpose b) to produce/print/issue/distribute fake counseling certification, registration stickets and certificates of govt agencies as proof of compliance with predeparture requirements c) to advertise/publish/disseminate/inform of material that promotes trafficking d) to assist in the conduct of misrepresentation or fraud to facilitate the acquisition of govt clearances e) to facilitate in the entry and exit of persons involved in trafficking f) knowingly benefiting from (financial or otherwise) persons involved in forced labor, involuntary servitude or slavery Qualified trafficking 1) if offended party is a child 2) if adoption effected through the Inter Country Adoption Act 3) committed by a syndicate 4) offender is an ascendant, parent, sibling, guardian, who exercises authority over the person 5) offender is a public officer or employee 6) act of trafficking and by reasons or on occasion the offended party becomes insane, suffer mutilation or is afflicted with HIV or STDs Prescriptive period: runs from the day on which the trafficked person is released or delivered Þ generally: 10 years Þ syndicate or large scale: 20 years 1.

Title Seven – CRIMES COMMITTED BY PUBLIC OFFICERS 1. Understand the RPC definition of public officers and the extent of its coverage RPC 203 Who are public officers Requisites: To be a public officer one must be1. taking part in the performance of public function in the Govt, or performing in said Govt, or in any of its branches public duties as an employee, agent or subordinate official, of any rank or class; and 2. that his authority to take part in the performance of public functions or to perform public duties must be a. by direct provision of the law or b. by popular election, or  PAGE 21

Þ Þ

2.

c. by appointment by competent authority Public officer embraces every public servant from the highest to the lowest Even temporary performance of a public function makes him a public officer

Distinguish between malfeasance, misfeasance, and nonfeasance. Þ Misfeasance: improper performance of some act which MIGHT LAWFULLY BE DONE Þ Malfeasance: performance of some act which ought NOT BE DONE Þ Nonfeasance: OMISSION of some act which OUGHT TO BE PERFORMED

Art. 204-212 Malfeasance & Misfeasance in Office Judge Knowingly rendering unjust judgment (204) Rendering judgment through negligence (205) Rendering unjust interlocutory order (206) Malicious delay in the administration of justice (207) Public officer/officer in law/Atty/Solicitor/Judge Dereliction of duty in prosecution of offenses-negligence and tolerance (208) Dereliction of trust by an Atty. or solicitor (209) Direct bribery (210) Indirect bribery (211) Qualified Bribery (211-A) Offender/inducer Corruption of public officials (212) 3. Note the definition of bribery and distinguish it from indirect bribery. Relate to corruption of public officials. DIRECT BRIBERY (210) Acts punished 1. By 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 official duties (acceptance of the offer or promise is enough to consummate the crime; if NO acceptance the person making the offer is liable for Attempted corruption of a public officer) 2. By 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 (gift MUST be accepted, act must be UNJUST) 3. By agreeing to REFRAIN or BY REFRAINING from doing something which it is his official duty to do, in consideration of a gift or promise Elements of direct bribery 1. Offender be a public officer 2. Offender accepts an offer, or a promise or receives a gift or present by himself or through another 3. That such offer or promise be accepted or gift or promise received by the public officer a. With view to committing a crime, or b. In consideration of the execution of an act which does not constitue a crime (but must be unjust) c. To refrain from doing something which is his official duty to do

CRIIMINAL LAW 2 FINALS REVIEWER / PROF. I.M. GUTIERREZ III / SECOND SEMESTER, AY 2011-2012 BALAUAG / /CASTRO / MARFIL / PLAZA / SERZO / TEVES / VILLAFUERTE (D2015)

  4.

That the act which the offender agrees to perform or which he executes be connected with the performance of his official duties Applicable also to: assessors, arbitrators, appraisal and claim commissioners, experts, or any other person performing public duties (Art. 210,last par), even for temporary performance of functions! INDIRECT BRIBERY (211) Elements of Indirect Bribery 1. Offender is a public officer 2. He accepts gifts 3. The gifts are offered to him by reason of his office

PD 749: grants immunity from givers of bribes and other gifts to their accomplices if they willingly testify against public officers or employees

-there is no attempted or frustrated indirect bribery; if accepts = consummated, if doesn't = no crime receiving gifts by public officials and employees and giving of gift by private persons on any occasion, including Christmas is punishable Direct bribery As consideration

to

Indirect bribery

In both crimes, public officer receives a gift

As to existence of an agreement

Agreement between the public officer and the giver of the gift or present

No agreement exists

As to necessity of the performance of the act

Offender agrees to perform or performs an act or refrains from doing something because of the gift or promise

It is not necessary that the officer should do any particular act or even promise to do an act, as it is enough that he accepts gift offered to him by reason of his office

PD 46 punishes 1. any public official or employee who receives, directly or indirectly; and 2. any private person who gives, or offer to give: any gift, present, or other valuable thing on any occasion, when it is given by reason of a former officialʼs past position, whether it is for past favors or the giver hopes or expects to receive a favor or better treatment in the future Qualified bribery 211-A Elements of qualified bribery 1. offender is a public officer entrusted with law enforcement 2. offender refrains from arresting or prosecuting an offender who has committed a crime punishable by reclusion perpetua and/or death- note: if the crime is punishable by a penalty less than reclusion perptua, the public officer is liable under Art, 208-direct bribery 3. the offender refrains from ARRESTING or PROSECUTING the offender in consideration of any promise, gift or present Corruption of public officials (212): Liability of the person who MADE THE OFFERS  PAGE 22

Elements of corruption of public officials: 1. the offender makes, offers or promises or gives gifts or presents to a public officer and 2. the offer or promises are made, or the gifts or presents are given to a public officer under circumstances that will make the public officer liable for direct bribery or indirect bribery Þ crime is attempted if the offer, promise, gift were refused; consummated if accepted

4. Familiarize yourself thoroughly with the provisions of RA 3019 (Anti Graft and Corrupt Practices Act), RA 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees), and the Plunder Law. Note the rules on disclosure and divestment. RA 3019: Anti-Graft & Corrupt practices Act Sec. 3: Corrupt practices of public officials: in addition to acts or omissions already penalized in existing law 1. persuading, influencing another public officer to perform an act constituting a violation of rules and regulation duly promulgated by competent authority or an offense in connection with the official duties of the latter or allowing himself to be persuaded, induced or influenced to commit such violation or offense persons liable: a. public officer who persudes, induces or influences another public officer b. public office who is persuaded, induced or influenced 2. directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit for himself or any other person in connection with any other contract or transaction between the govt and any other party wherein the public officer in his official capacity has to intervene under law Þ lack of demand in immaterial Þ there must be a clear intention on the part of the public officer to take the gift and consider it as his own property from then on, mere physical receipt unaccompanied by any other sign, circumstance, or act is not sufficient 3. directly or indirectly requesting or receiving any gift or present or other pecuniary or material benefit, for himself or another, from any person, for whom the public officer in any manner or capacity has secured or obtained or will secure or obtain, any govt permit or license in consideration for the help given or to be given 4. accepting or having any member of his family accept employment in a private enterprise which has pending official business with him during the pendency therof or within 1 yr after his termination 5. causing any undue injury to any party including the govt or giving any private party any unwarranted benefits, advantage or preference in the discharge of his administrative or judicil function through manifest partiality, evident bad faith or gross, inexcusable negligence. This provision shall apply to employees or offices or Govt corps charged with the grant of licenses and permits and other concessions

CRIIMINAL LAW 2 FINALS REVIEWER / PROF. I.M. GUTIERREZ III / SECOND SEMESTER, AY 2011-2012 BALAUAG / /CASTRO / MARFIL / PLAZA / SERZO / TEVES / VILLAFUERTE (D2015)

  Þ

to be held liable, the act of the accused which caused undue injury must be done with manifest partiality, evident bad faith or gross inexcusable negligence Þ if the act was committed with malic, crim may be under Art. 207 (malicious delay in the admin of justice) Þ gross negligence: want of even slight care acting or omitting to act in a situation where there is a duty to act; for public officials the breach of duty is flagrant & palpable 6. 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 favoroign his own interest or giving undue advantage in favor of or discriminating against any other party 7. entering on behalf of the Govt into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby Þ it is not necessary that the public officer profited or not from the transaction 8. directly or indirectly having financial 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 law from having any interest 9. directly or indirectly becoming interested for personal gain or having material interest in any transaction or act requiring the approval of the board, panel, or group 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 10. 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 r advantage or of a mere representative or dummy of one who is not qualified or entitlted 11. 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 info in advance of its authorized date Þ if damage was caused- Art, 229 (revelation of secrets of a public officer) Sec. 4: Prohibition on Private individuals 1. taking advantage of family or close personal relation with public official is punished Þ family relation: includes the spouse or relatives by consanguinity or affinity in the 3rd civil degree Þ close personal relation: those personal friendship, social and fraternal connection and professional employment all giving rise to intimacy which assures free access to public officer 2. knowingly inducing or causing any public official to commit any of the offense in Sec. 3 Sec. 5: Prohibition on certain relatives The spouse or any relative, by consanguinity or affinity, withinthe 3rd civil degree of the P, VP, Senate President, or the Speaker of the House is prohibited to intervene directly or indirectly in any business transaction contract or application with the govt Exceptions to the provisions: 1. Any person who prior to the assumption of office of any of those officials to whom he is related has been already dealing with the govt along the same  PAGE 23

line of business, nor to any transaction, contract or application already existing, or pendng at the time of such assumption of public office 2. 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 the requisites provided by law or rules or regualations pursuant to law 3. An act lawfully performed in an official capacity or in the exercise of a profession Sec. 6: Prohibition on members of Congress Þ Member of congress during their term are prohibited to acquire or receive personal pecuniary interest in any specific business enterprise which will be directly or particularly favored or benefited by any law or resolution authored by them Þ The prohibition shall also apply to any public officer who recommended the initation of the enactment or adoption of the resolution and acquired or receives any such interest during his incumbency Sec. 8 Prima facie evidence of dismissal due to unexplained wealth Sec.11: Prescriptive period of 15 years for all offenses Sec 12: No public officer is allowed to resign or retire pending investigation RA 7080: Anti-Plunder Act Means or schemes to acquire ill-gotten wealth: 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 or any other form of pecuniary benefit from any person, and/or entity in connection with any govt contract/project or by reason of his office or position 3. by illegal or fraudulent conveyance or disposition of assets belonging to the govt 4. by obtaining receiving or accepting (directly or indirectly) any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking 5. by establishing agri, industrial or commercial monopolies or other combinations and/or implementing decrees and ordered intended to benefit particular persons or special interests 6. by taking undue advantage of official position authority, relationship, connection or influence ot unjustly enrich himself Þ these should be committed by a combination or through a series of acts. There should be atleast 2 acts otherwise the accused should be charged with the particular crime committed and not with plunder Þ combination: at least 2 acts of a diff category Þ series: at lest 2 acts of the same category Sec. 2: Definition & penalties Þ Plunder: a crime committed by any public officer, by himself, or in connivance with his family, relatives by affinity or consanguinity, business associates, subordinates, or other persons amassing, accumulating or acquiring ill gotten wealth in the aggregate amt or total value of ATLEAST 50 MILLION PESOS Þ Penalty: recluscion perpetua to death Sec. 4: Evidence- it is not necessary to prove each and every criminal act done, a pattern of over or criminal acts indicative or the overall unlawful scheme or conspiracy is sufficient

CRIIMINAL LAW 2 FINALS REVIEWER / PROF. I.M. GUTIERREZ III / SECOND SEMESTER, AY 2011-2012 BALAUAG / /CASTRO / MARFIL / PLAZA / SERZO / TEVES / VILLAFUERTE (D2015)

  Sec. 5: Prescription: Act is punishable- prescription 20 years but NO prescription for recovery of property RA 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees) Sec.7: Prohibited Acts and transaction 7C(c) Disclosure and/or misuse of confidential information. - 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 anyone; or (2) To prejudice the public interest. Section 8. Statements and Disclosure. - Public officials and employees have an obligation to accomplish and submit declarations under oath of, and the public has the right to know, their assets, liabilities, net worth and financial and business interests including those of their spouses and of unmarried children under eighteen (18) years of age living in their households. (A) Statements of Assets and Liabilities and Financial Disclosure. - All public officials and employees, except those who serve in an honorary capacity, laborers and casual or temporary workers, shall file under oath their Statement of Assets, Liabilities and Net Worth and a Disclosure of Business Interests and Financial Connections and those of their spouses and unmarried children under eighteen (18) years of age living in their households. The two documents shall contain information on the following: (a) real property, its improvements, acquisition costs, assessed value and current fair market value; (b) personal property and acquisition cost; (c) all other assets such as investments, cash on hand or in banks, stocks, bonds, and the like; (d) liabilities, and; (e) all business interests and financial connections. The documents must be filed: (a) within thirty (30) days after assumption of office; (b) on or before April 30, of every year thereafter; and (c) within thirty (30) days after separation from the service. All public officials and employees required under this section to file the aforestated documents shall also execute, within thirty (30) days from the date of their assumption of office, the necessary authority in favor of the Ombudsman to obtain from all appropriate government agencies, including the Bureau of Internal Revenue, such documents as may show their assets, liabilities, net worth, and also their business interests and financial connections in previous years, including, if possible, the year when they first assumed any office in the Government. Husband and wife who are both public officials or employees may file the required statements jointly or separately. The Statements of Assets, Liabilities and Net Worth and the Disclosure of Business Interests and Financial Connections shall be filed by: (1) Constitutional and national elective officials, with the national office of the Ombudsman; (2) Senators and Congressmen, with the Secretaries of the Senate and the House of Representatives, respectively; Justices, with the Clerk of Court of the Supreme Court; Judges, with the Court Administrator; and all national executive officials with the Office of the President.  PAGE 24

(3) Regional and local officials and employees, with the Deputy Ombudsman in their respective regions; (4) Officers of the armed forces from the rank of colonel or naval captain, with the Office of the President, and those below said ranks, with the Deputy Ombudsman in their respective regions; and (5) All other public officials and employees, defined in Republic Act No. 3019, as amended, with the Civil Service Commission. (B) Identification and disclosure of relatives- It shall be the duty of every public official or employee to identify and disclose, to the best of his knowledge and information, his relatives in the Government in the form, manner and frequency prescribed by the Civil Service Commission. (D) Prohibited acts. - It shall be unlawful for any person to obtain or use any statement filed under this Act for: (a) any purpose contrary to morals or public policy; or (b) any commercial purpose other than by news and communications media for dissemination to the general public. Section 9. Divestment. - A public official or employee shall avoid conflicts of interest at all times. When a conflict of interest arises, he shall resign from his position in any private business enterprise within thirty (30) days from his assumption of office and/or divest himself of his shareholdings or interest within sixty (60) days from such assumption. The same rule shall apply where the public official or employee is a partner in a partnership. The requirement of divestment shall not apply to those who serve the Government in an honorary capacity nor to laborers and casual or temporary workers. 5. Understand fully the coverage and procedure under the Forfeiture Law RA 1379. Distinguish its coverage from that of other graft laws. RA 1379: An Act declaring forfeiture in favor of the state any property found to have been unlawfully acquired by any public officer for the proceedings therefor RA 1379 v. Other graft laws: primary focus is on forfeiting illegally acquired property and declaring it as property of the State; other laws focus on the acts themselves used to acquire the property Acts punishable: 1. transfer or conveyance of any unlawfully acquired property by any public officer or employee; or 2. acceptance of such transfer or conveyance by any person Definition of terms (Sec 1) Public officer or employee- any person holding any public office or employment by virtue of an appointment, election or contract and any person holding nay office or employment, by appointment or contract in any State owned or controlled corporation or enterprise Other legitimately acquired property- 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 thereof, already pertaining to him when he qualified for public office or employment, or the fruits & income of the exclusive property of the respondentʼs 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 respondentʼs spouse, ascendants, descendants, relatives or ay other person

CRIIMINAL LAW 2 FINALS REVIEWER / PROF. I.M. GUTIERREZ III / SECOND SEMESTER, AY 2011-2012 BALAUAG / /CASTRO / MARFIL / PLAZA / SERZO / TEVES / VILLAFUERTE (D2015)

  2.

Property unlawfully acquired by the respondent but transferred by him to another person or person on or after the effectivity of this act 3. Property donated to the respondent during his incumbency unless he can prove to the satisfaction of the court that the donation is lawful Filing of petition (Sec 1) 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 prima facie to have been unlawfully acquired Sol Gen. (upon complaint by a tax payer to a city or provincial fiscal) who shall conduct a previous inquiry similar to prelim investigations in criminal cases and shall certify to the SG that there is reasonable ground to believe that there has been a violation of this Act and the respondent is probably guilty thereof, shall file on behalf of the name of the Phil. In the CFI of the city or province where said public officer or employee resides or holds office, a petition for a writ commanding said officer or employee to show cause why the property aforesaid, or any part thereof, should not be declared state property. Limits: no petition shall be filed within 1 year before any general election or within 3 months before any special eelctions

1. 2. 3. 4.

those in conspiracy with public officers guilty of malversation those who are accessory or accomplice to a public officer custodian of public funds or property in whatever capacity depositary or administrator of public funds or property

Presumption: when demand is made to the accountable officer to account for the funds & property and the same is not forthcoming = prima facie evidence that he has put such missing funds or property to personal use Þ Return of funds malversed is only mitigating Þ Demand is NOT necessary in malversation. Damages to the govt is not necessary Malversation is distinguished from estafa by: 1. Public or private character of the accused 2. Nature of the funds 3. Fact that conversion is NOT required in malversation 4. The rule that there is not need of prior demand in malversation 5. Absence of a requirement of damage in malversation

The resignation, dismissal or separation of the officer or employee from his office or employment shall NOT BE A BAR to the filing of the petition. BUT the right to file such petition shall prescribe 4 YEARS from the date of resignation, dismissal or separation or expiration of the term of the officer concerned

Technical Malversation i.e. Illegal use of public funds or property (220) Elements 1. that the offender is a public officer 2. that there is a public fund or property has been appropriated by law or ordinance 3. that he applies the same to a public use OTHER THAN that for which such funds or property has been appropriated BY LAW OR ORDINANCE

6. Understand the basic concept of malversation. What is the essential element of this crime?

7. Distinguish infidelity in the custody of prisoners from evasion of service of sentence.

Malversation of public funds or property; presumption of Malversation (207) Acts punished 1. appropriating public funds or property 2. by taking or misappropriating the same 3. by consenting, or through abandonment, or negligence, permitting any other person to take such public funds or property 4. by being otherwise guilty of the misappropriation or malversation of such funds or property

Evasion of service of sentence (157): OFFENDER IS THE CONVICT Elements: 1. offender is a convict by final judgment 2. he is serving his sentence which consists in deprivation of liberty 3. he evades the service of his sentence by escaping during the term of his sentence Circumstances qualifying: 1. by means of unlawful entry (scaling) 2. breaking doors, windows, gates, walls, roofs or floors 3. by using picklocks, false keys, disguise, deceit, violence or intimidation 4. through connivance with other convicts or employess of the penal institution Ff. CANT commit evasion of service of sentence 1. Accused who escapes during appeal or a detention prisoner 2. Minor delinquents 3. Deportees

Common elements 1. that the offender be a public officer 2. that he had custody or control of funds or property by reason of the duties of his office 3. that the funds or property were public funds or property for which he was ACCOUNTABLE 4. that he appropriated, took, misappropriated or consented or through abandonment or negligence, permitted another person to take them Custody: means guarding or keeping safe -funds or property must be received in official capacity, if the public officer had no authority to receive the money and he misappropriated the same, the crime is ESTAFA, not malversation nature of the duties of the public officer not the name of the office is controlling Malversation may be committed by PRIVATE PERSONS in the ff cases:  PAGE 25

INFIDELITY OF PUBLIC OFFICERS (223-225) 1. Conniving with or consenting to evasion (223) 2. Evasion through negligence (224) Conniving with or consenting to evasion (223) Elements: 1. offender is a public officer

CRIIMINAL LAW 2 FINALS REVIEWER / PROF. I.M. GUTIERREZ III / SECOND SEMESTER, AY 2011-2012 BALAUAG / /CASTRO / MARFIL / PLAZA / SERZO / TEVES / VILLAFUERTE (D2015)

  2. 3. 4.

he had in his custody or charge a prisoner either detention prisoner or prisoner by final judgment that such prisoner escaped from his custody that he was in connivance with the latterʼs escape

Evasion through negligence (224) Elements: 1. offender is a public officer 2. he is charged with the conveyance or custody of a prisoner either detention prisoner or prisoner by final judgment 3. that such prisoner escaped through his negligence 4. positive carelessness that is short of deliberate non performance of his duties as a guard is the GRAVEMEN of the offense of crime of infidelity under 224 5. fact that he recaptured the prisoner after escape does not afford complete exculpation Liability of escaping prisoner 1. if fugitive serving sentence by reason of final judgment, liable for EVASION of service of sentence under Art. 157 2. if fugitive is only a detention prisoner, does NOT incur criminal liability

Evasion of service of sentence (157)

Infidelity in the custody of prisoners (223224)

-offender: convict by final judgment, escapes during the term of his sentence

-offender: public officer who had the prisoner in his custody or charge (charged with conveyance) -was in connivance with the prisoner in the latterʼs escape

Prisoner: convict by final judgment

Prisoner: convict OR detainee -note if convict escapes, liable under 157; if detainee escapes no liability

8. Note the definition and elements of maltreatment of prisoners and abuses against chastity. Maltreatment of prisoners (235) Elements of maltreatment of prisoners 1. offender is a public officer or employee 2. that he has under his charge a prisoner convicted by final judgment or a detention prisoner 3. that he maltreats such prisoner in either of the ff manners: a. by overdoing himself in the CORRECTION or HANDLING of a prisoner or detention prisoner under his charge either by i. the imposition of punishments NOT AUTHORIZED BY THE REGULATIONS or ii. inflicting such punishments (AUTHORIZED) in a cruel and humiliating manner, or

 PAGE 26

b.

by maltreating such prisoner to EXTORT A CONFESSION or to obtain some information from the prisoner Þ public officer or employee must have ACTUAL CHARGE of the prisoner Þ offender may also be held liable for PHYSICAL INJURIES or damage caused; there is no complex crime of maltreatment of prisoners with serious or less serious physical injuries Abuses against chastity(245) Ways of committing abuses against chastity 1. By soliciting or making immoral or indecent advance to a woman interested in matters PENDING before the offending officer to which he is required to submit a report or consult with a superior officer 2. By soliciting or making immoral or indecent advances to a woman UNDER THE OFFENDERʼS CUSTODY 3. By 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 1. that the offender is a public officer 2. that he solicits or makes immoral or indecent advances to a woman 3. that the woman must be a. interested in matters pending before the offender for decision, or with respect to which he is required to submit a report or to 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 Þ the mother of the person in custody of the offender is not included Þ solicit: propose earnestly and persistently something unchaste & immoral to a woman Þ the crime is consummated by mere proposal, if the offender succeeds in committing a crime v. chastity the solicitation and advances are merely prepatory acts Þ proof of solicitation is not necessary when there is sexual intercourse Title Eight – CRIMES AGAINST PERSONS 1. Note the basic framework and difference in circumstances governing crimes involving the killing of persons. Basic framework: there is a destruction of life in each crime (Chapter 1, Title 8) Applicable if attended by the ff. circumstances: 246: Parricide ● The deceased is the legitimate or illegitimate: ○ father, or ○ mother, or ○ child of the accused ● The deceased is Other legitimate ascendant of the accused ● The deceased is Other legitimate descendant of the accused

CRIIMINAL LAW 2 FINALS REVIEWER / PROF. I.M. GUTIERREZ III / SECOND SEMESTER, AY 2011-2012 BALAUAG / /CASTRO / MARFIL / PLAZA / SERZO / TEVES / VILLAFUERTE (D2015)

  ●

o

o Adopted children included as they are considered legitimate children o Grandparents of adopted child not included The deceased is the Legitimate spouse of the accused

b)

248: Murder Victim: not those mentioned in parricide Killing with the following circumstances: ● With treachery, taking advantage of superior strength, with the aid of 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 249: Homicide ● Applied when none of the circumstances mentioned in Murder attended the killing and ● Victim(s) is(are) not any of the persons stated in Parricide. 251: Death caused in a tumultuous affray ● Death (or physical injuries) happened when there are several persons (more than 3) quarrelled and assaulted one another in a confused and tumultuous manner 253: Giving assistance to suicide ● When a person assisted another to kill himself (whether or not suicide is consummated) to the extent that he did the killing himself 254: Discharge of firearms ● Killing happened when a person discharged a firearm at a person without the intention to kill the other 2. Understand fully the rules under Article 247, as elucidated upon by jurisprudence. What is the nature of Article 247? NATURE OF RPC247 ● It is a defense for the killing of a spouse or partner [or both] or daughter or partner [or both] ● Does not define or penalize a felony ● Punishment: destierro (if all the rules in application are met) RULES IN APPLICATION OF RPC 247: a) The accused surprises the victim(s) in the act of having sexual intercourse o Legally married – killing or inflicting serious physical injuries to the spouse and/or his/her sexual partner  PAGE 27

c)

Parent of a legitimate or illegitimate daughter under 18, living with him “Surprise” – to come upon unexpectedly and suddenly The killing or inflicting of serious physical injuries is immediately executed after surprising spouse or daughter c. The accused did not facilitate or promote the prostitution of his wife or daughter or not consented to the infidelity of the other spouse

JURISPRUDENCE: People vs. Abarca The phrase “immediately thereafter” in RPC 247 does not say that he should commit the killing instantly after witnessing the infidelity. It only requires that the killing be the direct result of the outrage suffered by the cuckolded husband. 3. Distinguish between infanticide, intentional abortion, and unintentional abortion. 255: Infanticide ● The deceased is a child less than three (3) days old or 72-hours old ● Offender: any person 256: Intentional abortion ● Death of the fetus from ○ Violence is exerted without consent of the pregnant woman ○ Without violence, offender acts with the consent of the woman 257: Unintentional abortion ● The violence intentionally exerted by the accused to a pregnant woman resulted in the unintentional death of fetus 4. Distinguish between mutilation/mayhem and other classes of physical injuries. Familiarize yourself thoroughly with the framework governing the different classes of physical injuries. In Chapter 2: Physical injuries = there is no intent to kill. If there is intent and it did not result in loss of life then it is attempted [crime in chapter 1] RPC 262: Mutilation

ACTS PUNISHED 1. Intentionally mutilating another by depriving him, either totally or partially, of some essential organ for reproduction 2. Intentionally making

RPC 263: Serious physical injuries

ACTS PUNISHED:

1. Wounding, 2. Beating, 3. Assaulting or 4. Administering injurious

RPC 264: Administering injurious substances or beverages Notice acts punished in 263 (one of them is 264) 1. Knowingly administering to

CRIIMINAL LAW 2 FINALS REVIEWER / PROF. I.M. GUTIERREZ III / SECOND SEMESTER, AY 2011-2012 BALAUAG / /CASTRO / MARFIL / PLAZA / SERZO / TEVES / VILLAFUERTE (D2015)

  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

substance (WBAA)

Consequences intentional

Consequences of WBAA not intentionally the purpose of WBAA: - Became insane, imbecile, important or blind (prision mayor)

are

1. Intentionally mutilating another by depriving him, either totally or partially, of some essential organ for reproduction A: There be a castration, that is mutilation of organs necessary for generation, such as penis or ovarium. B: The mutilation is caused purposely and deliberately, that is, to deprive the offended party of some essential organ for reproduction. 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 A: The mutilation involves a part of the body other than an organ for reproduction; B: The mutilation is done with a deliberate purpose of depriving a person of that part of his body

 PAGE 28

- Have lost the use of speech or power to hear or to smell, or shall have lost an eye, a hand, a foot, an arm, or a leg, or shall have lost the use of any such member, or shall have become incapacitated for the work in which he was theretofore habitually engaged (pirision correccional med to max) -

Person have become deformed, or shall have lost any other part of his body, or shall have lost the use thereof, or shall have been ill or incapacitated for the performance of the work in which he was habitually engage for a period of more than 90 days (prision correccional in min and med)

- Caused the illness or incapacity for labor of the injured person for more than 30 days (arresto mayor) - The offense was committed against any of the persons enumerated in 246 (Parricide) or with the attendance of any of the

another any injurious substance or beverages or 2. By taking advantage of his weakness of mind or credulity

Consequences are same in 263

circumstances in RPC 248 (Murder) Cannot be committed by imprudence or negligence

May be committed by reckless or simple imprudence or negligence

RPC 265: Less serious physical injuries

Cannot be committed by reckless or simple imprudence or negligence

RPC 266: Slight physical injuries and maltreatments

Consequence must not be any of those mentioned in previous articles Offended party is incapacitated for labor for 10 days to 30 days, or needs medical attendance from time to time

WBAA which incapacitated the offended party for labor from 1 to 9 days, or required medical assistance during that period (arresto menor) WBAA did not prevent the offended part from engage in his habitual work or which did not require medical assistance (arresto menor or a fine note to exceed P20) Ill-treatment without causing any injury (arresto menor in min period or fine not to exceed P50)

5. Familiarize yourself thoroughly with the new rules governing rape. Note the different modes by which rape can be committed. Understand when rape is deemed consummated, based on the doctrines laid down in jurisprudence. HOW RAPE IS COMMITTED (RPC 266-A) Mode 1

Mode 2

1: Offender = Man 2: Man has carnal knowledge of a woman 3: Carnal knowledge accomplished by: ● Using force or intimidation ● Woman is deprived of reason or otherwise unconscious ● Means of fraudulent machination or grave abuse of authority ● When the woman is under

1: Offender (boy or girl) commits an act of sexual assault 2: Sexual assault is committed by any of the ff. means: ● MAN inserts his penis into another personʼs (boy or girl) mouth or anal orifice ● MAN OR WOMAN inserts any instrument or object into the genital or anal orifice of another person 3: Sexual assault in accomplished under

CRIIMINAL LAW 2 FINALS REVIEWER / PROF. I.M. GUTIERREZ III / SECOND SEMESTER, AY 2011-2012 BALAUAG / /CASTRO / MARFIL / PLAZA / SERZO / TEVES / VILLAFUERTE (D2015)

  12 years of age or demented (even though consented) Reclusion perpetua

any of the ff. circumstances: ● Using force or intimidation ● Woman is deprived of reason or otherwise unconscious ● Means of fraudulent machination or grave abuse of authority ● When the woman is under 12 years of age or demented (even though consented) Prision Mayor

JURISPRUDENCE ON RAPE (How consummated) Mode 1 People v. Orita: • Perfect penetration is not essential. Any penetration of the female organ by the male organ is sufficient. Entry into vagina is sufficient to warrant conviction. • There is no such thing as frustrated rape. People vs. Mangalino:  Slightest penetration is sufficient to consummate the crime of rape. The penetration could only go as deep as the labia majora or pudendum of the female organ – this is enough to consummate rape. People vs. Castro: • Perfect penetration, rupture of the hymen or laceration of the vagina are not essential for the offense of consummate rape. Entry to the labia or lips of the female organ is sufficient. People vs. Atento: ● One can be guilty of rape when woman is deprived of reason or otherwise unconscious and at the same time when she is under 12 years old or demented. ● In this case 16 year-old victim was demented and described the rape as “masarap” She is “deprived of reason” because she is mentally-challenged. People vs. Campuhan: ● Mere grazing or touching of the penis is not rape. Absent any showing of slightest penetration, it can only be attempted rape, if not, acts of lasciviousness People vs. Gallo: ● Special qualifying circumstances need to be alleged in the information for it to be appreciated in the case. People vs. Berana: ● Physical resistance need not be established in rape cases when intimidation is exercised upon her and she submits herself against her will to the rapistʼs lust because of fear for life and personal safety. RULES/DOCTRINE: Mode 2 From Reyes book: “Inserts any instrument or object” – includes finger of a person Qualifying/Aggravating circumstances: Death penalty (if done with Mode 1); Reclusion temporal (in Mode 2) ***Note: Sir Barry always asks this in his exams  PAGE 29

1.

When the victim is under 18 years old 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; 2. When the victim is under the custody of the police or military authorities or any law enforcement or penal institution 3. When committed in full view of the spouse, parent, any of the children or other relatives within the third civil degree of consanguinity 4. Victim is a religious engaged in legitimate religious vocation or calling and is personally known to be such by the offense before or at the time of the commission of the crime 5. Victim is below 7 years old 6. Offender has HIV/AIDS or any other STD and the virus or disease is transmitted to the victim 7. Committed by members of the AFP or paramilitary units thereof or the PNP or nay law enforcement agency or penal institution, when the offender took advantage of his position to facilitate the commission of the crime 8. The victim suffered permanent physical mutilation or disability because of or on occasion of the rape 9. When the offender knew of the pregnancy of the offended party at the time of the commission of the crime 10. When the offender knew of the mental disability, emotional disorder and/or physical handicap of the offended party at the time of the commission of the rape 6. Be familiar with the definitions and scope of the new anti torture law. RA 9745 of 2009 (Anti-Torture Law) Section 3. Definitions (a) "Torture" refers to an act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him/her or a third person information or a confession; punishing him/her for an act he/she or a third person has committed or is suspected of having committed; or intimidating or coercing him/her or a third person; or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a person in authority or agent of a person in authority. It does not include pain or Buffering arising only from, inherent in or incidental to lawful sanctions. (b) "Other cruel, inhuman and 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 a person under his/her custody, which attains a level of severity causing suffering, gross humiliation or debasement to the latter. (c) "Victim" refers to the person subjected to torture or other cruel, inhuman and degrading treatment or punishment as defined above and any individual who has suffered harm as a result of any act(s) of torture, or other cruel, inhuman and degrading treatment or punishment. (d) "Order of Battle" refers to any document or determination made by the military, police or any law enforcement agency of the government, listing the names of

CRIIMINAL LAW 2 FINALS REVIEWER / PROF. I.M. GUTIERREZ III / SECOND SEMESTER, AY 2011-2012 BALAUAG / /CASTRO / MARFIL / PLAZA / SERZO / TEVES / VILLAFUERTE (D2015)

  persons and organizations that it perceives to be enemies of the State and that it considers as legitimate targets as combatants that it could deal with, through the use of means allowed by domestic and international law. Q: What can be the possible purpose of torture under this Act? A: Torture can be inflicted in order to: 1. Obtain from the victim or a third person information or a confession 2. Punish the victim for an act he/she or a third person has committed or is suspected of having committed; or 3. Intimidate or coerce the victim or a third person; 4. Or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a person in authority or agent of a person in authority Section 4. Acts of Torture (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 the genitals; (8) Mutilation or amputation of the essential parts of the body such as the genitalia, ear, tongue, etc.; (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; (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 (ii) The use of drugs to induce extreme pain or certain symptoms of a disease; and (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: (1) Blindfolding;  PAGE 30

(2) Threatening a person(s) or his/her relative(s) with bodily harm, execution or other wrongful acts; (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; (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; (7) Maltreating a member/s of a person's family; (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 (12) Other analogous acts of mental/psychological torture. NOTES: Q: Can torture absorb or be absorbed by other crimes? A: No, torture as a crime shall not absorb or shall not be absorbed by any other crime or felony committed as a consequence, or as a means in the conduct or commission thereof. It shall be treated as a separate and independent criminal act. (Section 15, RA 9745) Q: Who are criminally liable under this Act? A: The following can be held criminally liable as principals under this Act: 1. Any person who a. Actually participated or induced in the commission of the crime b. Cooperated in the execution of the criminal acts 2. Any superior military, police or law enforcement officer, or senior government official who issued an order to any lower ranking official to commit torture 3. The immediate commanding officer of the unit concerned of the AFP or the immediate senior public official of the PNP and other law enforcement agencies if: a. His act or omission, or negligence shall have led, assisted, abetted, whether directly or indirectly, the commission of the crime by his/her subordinates. b. He has knowledge of the commission of the crime but did not take preventive or corrective action before, during or immediately after its commission. (Section 13, RA 9745)

Title Nine – CRIMES AGAINST PERSONAL LIBERTY AND SECURITY 1. Understand the definition of “deprivation of liberty.” When can kidnapping be appreciated separately from homicide/murder of the person detained? When must they be appreciated together as one crime? Deprivation of Liberty (meaning)

CRIIMINAL LAW 2 FINALS REVIEWER / PROF. I.M. GUTIERREZ III / SECOND SEMESTER, AY 2011-2012 BALAUAG / /CASTRO / MARFIL / PLAZA / SERZO / TEVES / VILLAFUERTE (D2015)

  The term “actual deprivation of liberty” consists not only of placing a person in an enclosure but also of detaining a person or depriving him in any manner of his liberty. (People vs. Ramos) Helpful notes: ● The essence of the crime of kidnapping as defined and penalized under RPC 247 is the actual deprivation of the victimʼs liberty coupled with an indubitable proof of intent on the part of the malefactor to the effect such restraint on the offended partyʼs liberty. (People vs. Ramos) ● “Depriving him in any manner of his liberty” ● No physical deprivation of liberty but also psychological restraint (People vs. Tomio) ○ Japanese foreigner didnʼt know how to speak Tagalog or navigate the Philippines. Although he was released he was deprived of freedom -- still illegal detention ● Deprivation of freedom may be temporary Rules in appreciating homicide/murder with illegal detention AS SEPARATE OFFENSES: When the initial intent of the taking of the victims was to kill them and the deprivation of liberty and demand for ransom were only an afterthought – which only happened after the killing of the victim(s) – then it shall be considered murder. (People vs. Padica) APPRECIATED AS ONE OFFENSE: RA 7659: Where the person kidnapped is killed in the course of the detention, regardless of whether the killing was purposely sought or was merely an afterthought, the kidnapping and murder or homicide can no longer be complexed under RPC 48, nor be treated as separate crimes, but shall be punished as a special complex crime under the last paragraph of RPC 267. (People vs. Ramos) 2. Note the prevailing jurisprudence on abandonment. Lamera vs. CA (1991) Short facts ● Lamera is a jeepney driver who hit a tricycle and left the scene without helping or assisting the occupants thereof. ● Two informations filed against Lamera – one for reckless imprudence resulting in damage of properties with multiple physical injuries (RPC 365) and abandonment (RPC 275, par. 2) ● MeTC convicted him for RPC 365; Lamera prayed for the dismissal of criminal case for abandonment under RPC 275. Issue: WON prosecution for negligence under RPC 365 is a bar to prosecution for abandonment under RPC 275? DOCTRINE: It is not a bar. RPC 275 and 365 are two separate offenses under the Code – double jeopardy does not attach. RPC 365 is committed with culpa, the other (RPC 275) is committed with dolo. RPC 365 is neither an offense in itself or an element of the offense; its presence merely increases the penalty by one degree. 3. Distinguish between the different classes of threat and coercion. Note the specific types of threat and coercion.  PAGE 31

*** Note: I didnʼt put in all the elements – just how the crimes are distinguished from one another RPC 282: Grave Threats

RPC 283: Light Threats

RPC 285: Other light threats Acts punished:

1) Offender makes a threat to commit a wrong; 2) The wrong does not constitute a crime; 3) There is a demand for money or that other condition is imposed, even though not unlawful 4) Offender has attained his purpose or, that he has not attained his purpose

MODE 1: Threatening another with a weapon or by drawing such weapon in a quarrel, unless it be in lawful selfdefense;

Acts punished and elements: MODE 1: Offender attains purpose of threat 1) 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; 2) Such wrong amounts to a crime 3) There is a demand for money or that any other condition is imposed, even though not lawful 4) The offender attains his purpose MODE 2: Offender does not attain purpose of threat 1) 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; 2) Such wrong amounts to a crime 3) There is a demand for money or that any other condition is imposed, even though not lawful 4) The offender does not attain his purpose MODE 3: Condition is imposed 1) 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; 2) Such wrong amounts to a crime 3) Threat is not subject to a condition RPC 286: Grave Coercions

RPC 287: Light Coercions

MODE 2: Orally threatening another, in the heat of anger, with some harm constituting a crime, without persisting in the idea involved in his threat MODE 3: Orally threatening to do another any harm not constituting a felony

RPC 288: Other similar coercions

OFFENDER: Any person

OFFENDER: Creditor

OFFENDER: Person, agent or officer of any association or corporation

ACT(S) Prevents another from doing something not prohibited by law or he compelled him to do

ACT(S) Seizes anything belonging to his debtor by violence or

ACT(S) Forces his laborers or employees, directly or indirectly, to purchase

CRIIMINAL LAW 2 FINALS REVIEWER / PROF. I.M. GUTIERREZ III / SECOND SEMESTER, AY 2011-2012 BALAUAG / /CASTRO / MARFIL / PLAZA / SERZO / TEVES / VILLAFUERTE (D2015)

  something against his will, be it right or wrong

a display of material force producing intimidation

Prevention or compulsion be effected by violence, threat or intimidation; 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

merchandise or commodities of any kind from him or from corporation/firm Pays wages in currency or tokens not under legal tender of Philippines which was not expressly requested

2.

4. Understand the concept of unjust vexation. RPC 287 par. 2: “Any other coercion or unjust vexation” ● Includes any human conduct which, although not productive of some physical or material harm would, however, unjustly annoy or vex an innocent person. ● The paramount question to be considered in determining whether the crime of unjust vexation is committed, is whether the offenderʼs act caused annoyance, irritation, vexation, torment, distress or disturbance to the mind of the person to whom it is directed. ● There is no violence or intimidation in unjust vexation.

Title Ten – CRIMES AGAINST PROPERTY 1. What are the basic elements of robbery/theft? Understand the two modes by which robbery may be committed. ROBBERY

1.

THEFT

Personal property

Personal property

Belonging to another

Belonging to another

With intent to gain

With intent to gain

Unlawful taking / against ownerʼs will

Without ownerʼs consent

With violence / intimidation / force (before taking)

Without violence / intimidation / force

Robbery with violence against, or intimidation of persons [listed below are acts punished] a. Homicide b. Rape c. Intentional mutilation d. Arson e. Serious physical injuries f. Less serious physical injuries g. Slight physical injuries h. Clearly unnecessary violence or intimidation i. Intimidation only Robbery by the use of force upon things (Un / inhabited place; Public / private building; Edifice dedicated for religious worship) [listed below are acts punished] a. Entrance through an opening not intended for entrance b. Breaking wall, door, window, etc. c. Using false keys, etc. d. Using fictitious name, etc. e. Breaking of door of furniture f. Taking away of closed furniture

2. Familiarize yourself thoroughly with the rules governing robbery with homicide, rape, and physical injuries. Know the rules on robbery in band and robbery committed through the use of an unlicensed firearm. HOMICIDE ● All counts of homicide merged in one so long as all were done on the occasion of or by reason of robbery ● Intent to take property (robbery intent) must precede killing to be classified as robbery with homicide ● If homicide is not proven, crime is robbery only (and vice versa) ● All principals in the robbery are principals in robbery with homicide ● If an accessory did not know of the killing, he is guilty of robbery only RAPE ● Robbery intent must precede rape (still robbery with rape even if rape was committed in another place, so long as robbery intent preceded rape) ● There is NO such thing as robbery with attempted rape, since one is not a necessary means to commit the other offense) ● Additional rapes will not increase penalty ● If there is robbery, homicide, and rape = robbery with homicide, with rape as aggravating circumstance PHYSICAL INJURIES Serious Physical Injuries [SePI] (RPC 263) 1. Injured person becomes insane, imbecile, impotent, or blind 2. Injured person loses use of speech or the power to hear or to smell, or loses an eye, a hand, a foot, an arm, or a leg or shall have lost the use of any such member, or becomes incapacitated for work in which he was habitually engaged

TWO MODES OF COMMITTING ROBBERY

 PAGE 32

CRIIMINAL LAW 2 FINALS REVIEWER / PROF. I.M. GUTIERREZ III / SECOND SEMESTER, AY 2011-2012 BALAUAG / /CASTRO / MARFIL / PLAZA / SERZO / TEVES / VILLAFUERTE (D2015)

  3.

4.

Injured person becomes deformed, or loses any other member of his body, or the use therefor, or becomes ill or incapacitated for the performance of the work in which he as habitually engaged for more than 90 days Injured person becomes ill or incapacitated for labor for more than 30 days

The provisions on robbery with physical injuries provide that SePI #s 3 & 4 are inflicted upon any person not responsible for its (robbery) commission, and they must also be inflicted in the course of the execution of robbery. Reyesʼ example: If a robber inflicted serious physical injuries on another robber so the former can get all the loot, the former is liable for TWO crimes: robbery, and serious physical injuries. When SePI #s 2-4 (as well as less serious physical injuries, slight physical injuries, use of clearly unnecessary violence or intimidation, or intimidation only) are are committed in the ff. circumstances, the offender will be punished with the maximum period of penalties. 1. In an uninhabited place 2. By a band 3. By attacking a moving train, street car, motor vehicle, or airship 4. By entering the passengersʼ compartments in a train, or in any manner taking the passengers by surprise in their conveyances 5. On a street, road, highway, alley, and the intimidation is made with the use of firearms BAND, UNLICENSED FIREARM ● At least 4 armed malefactors take part in the commission of robbery ● When any of the arms used is unlicensed, penalty on ALL malefactors is the maximum of the corresponding penalty, without prejudice to the criminal liability for illegal possession of firearms ● Any member present during the commission of a robbery by the band shall be punished as principal of any of the assaults committed, unless it is shown that he attempted to prevent the same ● If there is robbery, homicide, band = robbery with homicide + band as aggravating circumstance ○ The special aggravating circumstance of use of unlicensed firearm DOES NOT APPLY in this case 3. What is the definition of carnapping? CARNAPPING is the taking of another personʼs motor vehicle with intent to gain, without said personʼs consent, or by means of violence against, or intimidation of persons, or using force upon things. 4. Relate highway robbery with brigandage under the RPC. How has the Court construed these crimes? BRIGANDAGE (RPC) (object is to prevent the formation of band of robbers)

 PAGE 33

HIGHWAY ROBBERY / BRIGANDAGE (PD 532)

At least 4 armed persons who form a band of robbers ● ●

●

Commit robbery on the highway Kidnap persons for extortion or to obtain ransom Any other purpose through violence, force

Committed by any person on any Philippine highway ●

●

Seizure of any person for ransom or extortion or any other unlawful purpose Taking away of another personʼs property through violence, intimidation, or force

PEOPLE v. PUNO ● PD 532 is a modification of RPC 306 and 307 (on brigandage) ● Highway robbers and brigands are synonymous ● PD 532 punishes as highway robbery / brigandage only acts of robbery perpetrated by outlaws indiscriminately against any person/s on Philippine highways and not acts of robbery committed against a particular victim 5. Familiarize yourself thoroughly with the different modes by which estafa may be committed. Distinguish estafa from theft. Distinguish estafa from violations of BP 22. MODES ● Estafa with unfaithfulness ○ Offender, to the prejudice or damage of another, alters the substance, quantity, or quality of something of value which he has an onerous obligation to deliver ● Estafa with abuse of confidence ○ Offender, to the prejudice or damage of another, misappropriates or converts money or property received in trust, etc. involving the duty to deliver or return it, or denies the receipt thereof, and the offended party makes a demand ● Estafa by means of deceit (by means of false pretenses / fraudulent acts / through fraudulent means) ○ False pretense / fraudulent acts / means were made prior or simultaneous with fraud, and offended party suffered damage because he relied on them ESTAFA (abuse of confidence) v. THEFT In estafa, the offender receives thing from offended party. In theft, the offender takes thing without the ownerʼs consent, and owner expects the immediate return of the thing upon its delivery to the offender. ESTAFA v. BP 22 Additional facts of deceit and damage are required to be convicted of estafa. For conviction under BP 22, deceit and damage are immaterial; it requires the additional fact of drawerʼs knowledge of lack or insufficiency of funds. 6. Understand the prevailing framework on arson. How does it relate to other crimes?

CRIIMINAL LAW 2 FINALS REVIEWER / PROF. I.M. GUTIERREZ III / SECOND SEMESTER, AY 2011-2012 BALAUAG / /CASTRO / MARFIL / PLAZA / SERZO / TEVES / VILLAFUERTE (D2015)

  ARSON is the malicious destruction of property by fire. There is simple, destructive, and other cases of arson. The reason for the law is to effectively discourage and deter commission of said crime, to prevent destruction of properties, and to protect the lives of innocent people. Not sure how to answer the 2nd question but arson is a crime against property because it is the malicious destruction of property by fire. :D

scandalous circumstance People in the vicinity are the best witness to prove scandalous circumstance Penalty

Prision correctional in its medium and maximum period

Prision correction in its minimum and medium periods

7. What are the elements of malicious mischief? What are its special forms? ELEMENTS 1. Offender deliberately caused damage to anotherʼs property 2. Act does not constitute arson, or other crimes involving destruction 3. Act committed merely for the sake of damaging property (due to hate / revenge / other evil motives) SPECIAL CASES 1. Causing damage to obstruct performance of public functions 2. Using any poisonous / corrosive substance 3. Spreading any infection / contagion among cattle 4. Causing damage to National Museum, National Library property, or to any archive or registry, waterworks, road, promenade, etc. used in common by the public 8. What persons are exempted from liability under this title? Only civil liability from the commission of theft, swindling / estafa, malicious mischief RPC 332 applies only when the offender and offended party are relatives and their relation is any of the following: ● Spouse, ascendants, descendants, relatives by affinity in the same line ● Widowed spouse with respect to property which belonged to the deceased spouse before the same passed into the possession of another ● Brothers and sisters and brothers-in-law and sisters-in-law, if living together at the time of the commission of the crime

2. Understand the definition of acts of lasciviousness. Distinguish from rape. Definition of Acts of Lasciviousness = Acts that are prompted by lust or lewd designs - Lewd is defined as obscene, lustful, indecent and lecherous; that which is carried on a wanton manner ACTS OF LASCIVIOUSNESS No penetration

With penetration

The intent is to perform lascivious acts

The intent is to have carnal knowledge

No attempted or frustrated stage

No frustrated stage only

3. Understand the rules on seduction. Distinguish between qualified seduction and simple seduction. SIMPLE SEDUCTION

QUALIFIED SEDUCTION

Offended Party

1. A virgin, over 12 and under 18 years of age 2. A sister or descendant, whether virgin or not

Over 12 and under 18 years of age

Acts committed by the offender

1. Sexual intercourse 2. Abuse of authority, confidence or relationship

1. Sexual intercourse 2. Deceit

Stepparents included as ascendants by affinity, common-law spouses also included Title Eleven – CRIMES AGAINST CHASTITY 1. Distinguish between adultery and concubinage. ADULTERY Acts Committed

Proof

 PAGE 34

Sexual intercourse with a man not her husband

Carnal knowledge by circumstantial evidence

CONCUBINAGE 1. Keeping a mistress in the conjugal dwelling 2. Having sexual intercourse under scandalous circumstance 3. Cohabiting with her in any other place Carnal knowledge cannot be proved by circumstantial evidence alone for there is a need to prove that it is done under

RAPE

4. Familiarize yourself thoroughly with the framework on abduction. Distinguish between forcible abduction and consented abduction. When can forcible abduction be appreciated distinctly from rape? FORCIBLE ABDUCTION Offended

Any woman

CONSENTED ABDUCTION

Virgin, over 12 and under 18 years of

CRIIMINAL LAW 2 FINALS REVIEWER / PROF. I.M. GUTIERREZ III / SECOND SEMESTER, AY 2011-2012 BALAUAG / /CASTRO / MARFIL / PLAZA / SERZO / TEVES / VILLAFUERTE (D2015)

  Party Nature of the Abduction

age 1. Against her will 2. With lewd design

1. With consent, after solicitation or cajolery from the offender 2. With lewd design

Q: When can forcible abduction be appreciated distinctly from rape? A: When there are several counts of rape, only one count of rape can be complexed with forcible abduction. The other counts would be treated as a separate offense 5. Know the rules on prosecution of offenses under this title. CONCUBINAGE/ ADULTERY Who can file the complaint

Offended spouse

SEDUCTION, ABDUCTION, ACTS OF LASCIVIOUSNESS The offended party if he or she is of age

Note: Both guilty parties mist be included in the complaint filed by the offended spouse If minor: (Note: Must be exercised in this order) 1. The minor himself/herself 2. Parents 3. Grandparents 4. Legal guardian Bar to prosecution

1. Pardon 2. Consent

1. Pardon 2. Marriage to the offender

= The fact that the first marriage is void from the beginning is not a defense in a bigamy charge = The subsequent declaration of the nullity of the first marriage is immaterial because prior to the declaration of nullity, the crime had already been consummated = The civil case for annulment of the first marriage does not pose a prejudicial question as to warrant a suspension of a trial and proceeding in the criminal case for bigamy

Title Thirteen – CRIMES AGAINST HONOR 1. Familiarize yourself thoroughly with the rules governing libel/slander. When is malice presumed? When must malice in fact be proven? What is privileged communication? What are the different types of privileged communication? What is the rule governing public officers? ELEMENTS OF LIBEL 1. That there must be an imputation of: • A crime allegedly committed by the offended party • Vice or defect, real or imaginary of the offended party • Any act, omission, condition, status of, or circumstance relating to the offended party 2. That the imputation must be made publicly • Publication means communication of the defamatory matter to some third person or persons 3. That it must be malicious; 4. That the imputation must be directed to a natural or juridical person, or who is dead 5. That the imputation must tend to cause the dishonor, discredit or contempt of the person defamed • Dishonor – disgrace, shame or ignominy • Discredit – loss of credit or reputation; disesteem • Contempt – state of being despised Test of Defamatory Character of the Words Used The words used are construed in their entirety and taken in their plain, natural and ordinary meaning as they would naturally be understood by persons reading them, unless it appears that they were used and understood in another sense.

Title Twelve – CRIMES AGAINST THE CIVIL STATUS OF PERSONS 1. Understand the concept of bigamy. Relate it to the rules governing void ab initio marriages under civil law. ELEMENTS OF BIGAMY 1. That the offender has been legally married 2. That the marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not have yet been presumed dead according to the Civil Code 3. That he contracts a second or subsequent marriage 4. That second or subsequent marriage has all the essential requisites for validity Relation to the rules governing void ab initio marriages = The parties cannot presume their marriages to be void; a judicial declaration of nullity is required  PAGE 35

SLANDER

SLANDER BY DEED

Kinds

Simple or Grave

Simple or Grave

Coverage

Involves words uttered

Involves an act committed

Factors to Determine Gravity

1. Expressions used 2. Personal relations of the parties 3. Circumstances surrounding the case 4. Position of the offended

1. Social standing of the offended party 2. Circumstances or occasion under which the act was committed

CRIIMINAL LAW 2 FINALS REVIEWER / PROF. I.M. GUTIERREZ III / SECOND SEMESTER, AY 2011-2012 BALAUAG / /CASTRO / MARFIL / PLAZA / SERZO / TEVES / VILLAFUERTE (D2015)

  party

Private Individual

Q: When is malice presumed? A: Malice in law is presumed from every defamatory imputation unless there is a showing of good intention and justifiable motive Q: When must malice be in fact proven? A: If the libelous matter involves a qualifiedly privileged communication Q: What is privileged communication? A: Malice is not presumed in the following: 1. A private communication made by any person to another in performance of legal, moral or social duty a. That the person who made the communication had a legal, moral or social duty to make the communication or at least he had an interest to be upheld; b. That the communication is addressed to an officer or a board, or superior, having some interest or duty on the matter; and c. That the statements in the communication are made in good faith without malice in fact 2. A report of official proceedings a. That report must be a fair and true report of a judicial, legislative, or other official proceedings which are not of confidential nature, or of a statement, report, or speech delivered in said proceedings, or of any other act performed by a public officer in the exercise of his functions; b. That it is made in good faith; and c. That it is made without any comments or remarks Note: The two instances provided are examples of qualifiedly privileged communication

1. CFI of the province or city where he actually resides at the time of the commission of the offense; or 2. Where the libelous matter is printed and first published

3. Familiarize yourself with the framework of the Anti-Wiretapping Law. Persons liable: 1. Any person, not being authorized by all the parties to any private communication or spoken word: a. taps any wire or cable; or b. uses 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 walkie-talkie or tape recorder, or however otherwise described. 2. Any person, whether or not a participant in the above-mentioned acts: a. knowingly possesses any tape record, wire record, disc record, or any other such record or copies thereof of any communication or spoken word; or b. replays the same for any other person/s; or c. communicates the contents thereof, either verbally or in writing, to any other person; or d. furnishes transcriptions thereof, whether complete or partial, to any other person.

NOTES:  Special exception for peace officer authorized by written order of the court to perform any of the aforementioned acts in cases involving crimes against national security and law of nations and crimes against public order and kidnapping. Any communication/spoken word obtained/secured in violation of this Act is inadmissible as evidence in any hearing or investigation.

Kinds of privileged communication: 1. Absolutely privileged – not actionable even if the actor has acted in bad faith; 2. Qualifiedly privileged – those which although containing defamatory imputations, are not actionable unless made with malice or bad faith. Q: What is the rule governing public officers? A: 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. 2. What are the rules on venue? Offended Party

Venue

Public Officer

1. CFI 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

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CRIIMINAL LAW 2 FINALS REVIEWER / PROF. I.M. GUTIERREZ III / SECOND SEMESTER, AY 2011-2012 BALAUAG / /CASTRO / MARFIL / PLAZA / SERZO / TEVES / VILLAFUERTE (D2015)